RUSSO v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

OPINION filed. Signed by Judge Freda L. Wolfson on 12/10/2014. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
NICOLAS A. RUSSO
:
:
Plaintiff,
:
:
Civil Action No. 13-06918 (FLW)
v.
:
:
OPINION
COMMISSIONER OF SOCIAL
:
SECURITY,
:
:
Defendant.
:
___________________________________ :

WOLFSON, United States District Judge:

Nicolas A. Russo (“Plaintiff”) appeals from the final decision of the Commissioner of
Social Security (“Defendant” or “Commissioner”) denying Plaintiff disability benefits under the
Social Security Act. Plaintiff contends that the record does not support the decision made by the
Administrative Law Judge (“ALJ”). Specifically, Plaintiff argues that the ALJ’s determination of
Plaintiff’s residual functional capacity is unsupported, and that the ALJ did not meet his burden
of proving that there is other work that Plaintiff can perform. After reviewing the Administrative
Record (“A.R.”), this Court finds that the ALJ’s decision is supported by substantial evidence in
the record, and accordingly, affirms the denial of disability benefits to Plaintiff.

Procedural History
On April 12, 2012, Plaintiff filed an application for disability benefits alleging a
disability onset date of December 28, 2010. A.R. 136. The application was denied on July 31,

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2012, A.R. 86. On August 7, 2012, Plaintiff made a request for reconsideration, A.R. 91, which
was denied on December 28, 2012, A.R. 92–94. On February 6, 2013, Plaintiff requested a
hearing before an Administrative Law Judge. A.R. 95. A hearing was held on May 15, 2013,
before ALJ Jonathan Wesner. A.R.32. On May 23, 2013, the ALJ issued a decision holding that
Plaintiff was not disabled under the Social Security Act. A.R. 15–26. Plaintiff requested
reconsideration on July 26, 2013, A.R. 7–10, and the Appeals Council denied reconsideration on
September 12, 2013, A.R. 1–6. Plaintiff filed the present complaint against the Commissioner on
November 14, 2013.

Background
Plaintiff, a high school graduate, was born in 1983, and was 27 years old at the time of
the alleged disability onset date. A.R. 136, 36. Before his disability onset date, Plaintiff had been
working as a parts clerk at a car dealership. A.R. 36–37. Although he had only been at his job
for two and a half months before leaving, Plaintiff held his prior job, also as a parts clerk, for five
years. A.R. 37. Plaintiff stopped working as a result of chronic fatigue and social anxiety. A.R.
41. In addition, Plaintiff suffers from severe depression, which makes him “very reclusive.” A.R.
45. Plaintiff has also been diagnosed with HIV and Hepatitis C. A.R. 42. The medications for
HIV, according to Plaintiff, cause nausea, chronic headaches, muscle aches, and chronic fatigue.
A.R. 44.
Plaintiff was treated by several doctors for his medical problems, and visited other
medical professionals in connection with his application for disability insurance benefits. The
relevant findings of Plaintiff’s treating and evaluating medical professionals are detailed below.

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Review of the Medical Evidence
1. Treating Medical Professionals
Plaintiff’s physician, Dr. Christopher Lucasti, provided a General Medical Report, dated
May 7, 2012. A.R. 208–10. Dr. Lucasti treated Plaintiff on a monthly or biweekly basis,
beginning in November 9, 2009. A.R. 208. Dr. Lucasti diagnosed Plaintiff with HIV, Hepatitis
C, and depression, and indicated that Plaintiff had a history of IV drug use. Id. The Report
indicated that Plaintiff was being treated with HAART1, Wellbutrin, Prestiq, Abilify, and Xanax.
A.R. 209. Dr. Lucasti noted that Plaintiff suffered no limitations in his ability to lift and carry,
stand and/or walk, sit, push and/or pull, or any other disabilities. Id.
Frank Abenante, M.D., a psychiatrist, treated Plaintiff beginning in July of 2009. A.R.
212. In a Psychiatric Report dated May 24, 2012, Dr. Abenante diagnosed Plaintiff with Bipolar
disorder, and stated that he presented as awake and alert. A.R. 212–13. According to the Report,
Plaintiff was able to recall three of three words immediately and one word at five minutes, as
well as events of earlier sessions, events of the past week, and long-term events. A.R. 213.
Plaintiff was able to spell “world” forward and backwards. Id. Plaintiff could track conversation
but needed frequent refocusing and slow, simplified language. Id. Dr. Abenante described
Plaintiff’s understanding and memory, sustained concentration and persistence, social
interaction, and adaptation as limited. A.R. 215.
Dr. Abenante also wrote a letter dated April 30, 2013. In the letter, Dr. Abenante
diagnosed Plaintiff with Major Depression with anxiety, as well as HIV and Hepatitis C. A.R.
226. Dr. Abenante stated that Plaintiff’s symptoms included: extreme mood swings; decreased
mood with increased anxiety; difficulty coping with stressors; and decreased appetite, weight,

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Highly active antiretroviral therapy.
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energy, activity, motivations, mobility, and ability to function. Id. Plaintiff also had increased
worry and difficulty coping with HIV and his morbidity. Id. Dr. Abenante wrote that plaintiff
had been reclusive and isolated with minimal social interactions, and “is currently unable to
work in a workplace environment.” Id.
2. Consultative Psychological Evaluation
Plaintiff underwent a Psychological Evaluation with Thomas J. PlaHovinsak, Ph.D., an
agency consultative psychologist, on July 27, 2012. A.R. 218–221. Dr. PlaHovinsak noted that
Plaintiff “does not have any physical problems that limit his ability to stand, lift, walk, or bend,”
other than fatiguing easily. A.R. 219. Dr. PlaHovinsak found that Plaintiff did his own laundry,
managed his own checking account, and had a driver’s license. A.R. 219. Dr. PlaHovinsak
opined that Plaintiff was “alert, oriented to all three spheres, and had a clear sensorium, while his
speech was lucid, well modulated, and goal directed.” A.R. 220. Plaintiff was described as
tending “to ruminate and dwell on problems, which causes him to feel overwhelmed and to
subsequently manage the stress via avoidance or procrastination.” Id. Additionally, Plaintiff
“continues to feel anxious in new situations or in large crowds.” Id. Dr. PlaHovinsak noted that
Plaintiff was able to count backwards from twenty to zero in twenty seconds, without error;
recite serial threes; and recall eight digits forward and five digits backwards. Id. Plaintiff also
correctly answered two out of three simple math problems. Id. Dr. PlaHovinsak diagnosed
Plaintiff with Major Depressive Disorder, Generalized Anxiety Disorder, Bipolar Disorder, and
Personality Disorder NOS (avoidant type). Id.
Dr. PlaHovinsak additionally noted that Plaintiff was avoiding treatment for Hepatitis C
due to his anxiety and avoidance behaviors. A.R. 221. Overall, Dr. PlaHovinsak opined that
Plaintiff’s prognosis was uncertain “because he is not maximally pursuing treatment for his

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problems. Id. Dr. PlaHovinsak found that Plaintiff would be able to follow moderate to complex
directions, but would demonstrate moderate-significant problems interacting with others. Id.

Testimonial Evidence
1. Plaintiff’s Testimony
At the hearing on May 15, 2013, Plaintiff testified to his impairments. Under questioning
from his attorney, Plaintiff testified that his most recent job had been working as a “parts
counterman” at a Ford dealership for two and a half months; he had held the same position at a
different dealership for five years previously. A.R. 36–37. That job required Plaintiff to interact
with customers and retrieve parts for their vehicles. A.R. 37. Plaintiff typically worked a seven to
eight hour day, and spent five or six hours on his feet. A.R. 38. The heaviest item plaintiff was
required to carry was over 50 pounds, and he occasionally needed to climb on a ladder to retrieve
certain parts. A.R. 39. Plaintiff’s earlier jobs were cashier or deli-type positions at McDonald’s
and Wawa. Id. Plaintiff stated that he left his most recent position because he “was falling asleep
at the counter” and had “chronic fatigue.” A.R. 41. Plaintiff also had difficulty dealing with the
customers: he become “very very nervous and very confused with any social interactions.” Id.
Plaintiff testified that he was diagnosed with HIV in 2008 or 2009. A.R. 42. According to
Plaintiff, Dr. Lucasti put Plaintiff on the “cocktail or the combination medicines” for HIV, which
improved Plaintiff’s immune system. A.R. 43. Dr. Lucasti also treated Plaintiff for Hepatitis C,
but had not put Plaintiff on “full-blown Interferon treatment” due to fears of interactions with
psychiatric medications. Id. Plaintiff stated that the HIV and Hepatitis C cause him to be
“chronically fatigued” and “chronically weak.” A.R. 42. In addition, the HIV medications “give

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me nausea constantly”; Plaintiff also complained of “chronic headaches,” “muscle aches” and
“sometimes my bones hurt.” A.R. 44.
Plaintiff indicated that anxiety and nervousness first became “a serious problem” in 2009
or 2010. Id. Plaintiff stated that Dr. Abenante had been treating him for anxiety since 2009, and
that Plaintiff saw Dr. Abenante once a month. Id. The treatment Plaintiff received was described
as “psychiatric, we talked for a little while and then he prescribes me meds and we just discuss
. . . how my life has been.” Id. Plaintiff described his psychiatric conditions as including “severe
depression.” A.R. 45. Plaintiff stated that he became “very reclusive,” remaining in his room for
18 hours a day; that he was “very scared to go out and . . . interact with others that I don’t
know”; and that he became “very fearful and fear my own death.” Id. Plaintiff indicated that he
usually could not sleep for more than two hours at a time, because his “anxiety starts going.”
A.R. 46. Thus, he usually alternated between sleeping and watching TV over a twenty-four hour
period. Id. Plaintiff felt that the psychiatric medication “just doesn’t seem to be helping me.”
A.R. 49.
With regard to his living arrangements, Plaintiff testified that he lived with his family,
namely his parents and two younger siblings, ages 27 and 22. A.R. 45. Plaintiff explained that he
“pretty much . . . spend[s] my life” in his room, where he mostly watches TV or sleeps. A.R. 46.
Although Plaintiff socialized with his parents and siblings, he usually ate meals in his room. A.R.
46–47. Plaintiff’s mother would prepare meals, which Plaintiff would microwave. A.R. 47.
Plaintiff’s mother also cleaned his room, though it usually “just stays in the state of disrepair.”
Id. Plaintiff stated that he does no chores, although he will “put in laundry and usually hope that
[his mother] finishes it off.” Id. Plaintiff indicated that he goes out one or twice a week, “either
to the pharmacy, to the doctor, or to Wawa to pick up a pack of cigarettes.” A.R 48. Plaintiff

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usually would go out with his family. Id. He drove a car “maybe once a month,” again usually
with a family member. A.R. 48–49.
2. Vocational Expert Testimony
Mitchell A. Schmidt, an impartial vocational expert, also testified. Mr. Schmidt defined
Plaintiff’s past work as being a “parts clerk” which is “heavy duty and semi-skilled.” A.R. 51.
The ALJ then considered both exhibit 1F (Dr. Lucasti’s report), which stated that Plaintiff had no
exertional limitations, and 3F (Dr. PlaHovinsak’s report), which stated that Plaintiff has “issues
with fatigue.” A.R. 51. Taking these exhibits into consideration, the ALJ then described the
following hypothetical: a claimant who was 30 years old, with a high school education “and the
same work experience and training as you gleaned from the record,” who had “the ability to lift
and carry ten pound[s] frequently,” “lift and carry 20 pounds occasionally,” and who could
“stand and walk for about six hours in an eight-hour workday and sit for about six hours in an
eight-hour workday.” A.R. 51–52. Mr. Schmidt stated those limitations covered “the full range
of light duty, which also covers sedentary.” A.R. 52.
The ALJ then considered Exhibit 2F (Dr. Abenante’s report), which denoted some kind
of mental limitation. Id. The ALJ stated that Plaintiff’s prior job was “a people job as opposed to
a thing job,” meaning “he had to wait on the general public,” in contrast with “unskilled work
that does not involve any contact with the general public at all.” A.R. 53. The ALJ asked whether
Mr. Schmidt could “quantify out of the light and sedentary range what percentage of jobs would
be thing versus people?” Id. Mr. Schmidt responded that for light duty work 60–70 percent of
unskilled jobs were “thing jobs,” and that for sedentary jobs “probably closer to 80 percent are
thing jobs.” A.R. 53–54. The ALJ then asked whether supervisory interaction is “minimal in
unskilled work”; Mr. Schmidt replied “Correct. You’re shown how to do the job . . . [and] the

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supervisor leaves you alone as long as you’re working ok.” A.R. 54. The ALJ then described
another potential limitation, namely the need to “concentrate on your job,” and to “come to work,
stay all day and be productive.” Id. The ALJ noted that a person with a GAF score of 60 is “not
going to be able to sustain any semi-skilled or skilled work,” and stated that a person in that
range “even if he was physically capable of doing that counter job, he wouldn’t be able to do it
because he doesn’t have the mental to sustain [sic].” A.R. 55. Mr. Schmidt agreed, but stated that
the same could not be said for unskilled work. Id.
Plaintiff’s counsel then questioned Mr. Schmidt. Plaintiff’s counsel asked, in unskilled
work, where a person is working seven- or eight-hour days, with two fifteen-minute breaks and a
lunch hour, “out of each hour, how many [minutes] do you have to be on task?” A.R. 55–56. Mr.
Schmidt responded “In general, 53, 54 minutes.” A.R. 56. Plaintiff’s counsel clarified, that, as far
as breaks in unskilled work, “are you allowed extra breaks in there, an extra 10 or 15-minute
break?” A.R. 57. Mr. Schmidt responded “No.” Id. In response to further questioning, Mr.
Schmidt stated that “in general, employers in unskilled work . . . there’s a low tolerance for the
interruptions in the work, the absenteeism, the lateness.” A.R. 57–58. Regarding absences or
days off, Mr. Schmidt testified that in unskilled work a person would get “no more than one day
per month, and that would include one of those days that a person needed the extra break.” A.R.
58.
The ALJ then asked Mr. Schmidt whether, regarding “thing jobs,” “wouldn’t it be a fair
statement that irrespective of whether it was light or sedentary, if that degree of limitation would
approach that unacceptable level . . . that’s going to apply to all of these jobs.” A.R. 58. Mr.
Schmidt agreed, stating that “the standard for pace, persistence, concentration, attention,
attendance, that’s not affected by what you’re doing.” A.R. 58–59. The ALJ then limited the

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questioning, stating “I could get . . . him to name a job and if the limitations I found to that
degree would go out the window, and I can get him to name another job and the same thing
would happen. So we’re just going to skip that, if that’s okay.” A.R. 59. Plaintiff’s counsel
agreed, but asked Mr. Schmidt, “You have to keep a schedule on these jobs. You have to show
up at a certain time, break at a certain time, lunch and a certain time, and go home at a certain
time, correct?” Id. Mr. Schmidt answered, “Particularly for unskilled work, yes.” Id.

ALJ Findings
In his decision dated May 23, 203, the ALJ began by finding that Plaintiff met the insured
requirements of the Social Security Act through December 31, 2014. A.R. 18. The ALJ then
applied the standard five-step process to determine if Plaintiff had satisfied his burden of
establishing disability. Id. The ALJ found that Plaintiff had not engaged in substantial gainful
activity since December 28, 2010, the alleged onset date. Id. The ALJ next found that Plaintiff
has severe impairments of Bipolar disorder, mood disorder, HIV, and Hepatitis C. Id. In finding
those severe impairments, the ALJ discounted Dr. Lucasti’s opinion that Plaintiff had no workrelated limitations due to HIV or Hepatitis C, because of the side effects of Plaintiff’s treatments,
and Plaintiff’s reports of weakness and fatigue during his consultative examination. Id. However,
the ALJ found 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. Id.
Next, the ALJ determined that Plaintiff “has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except limited to unskilled work and can have no
contact with the general public.” A.R. 21. Noting that Plaintiff’s claims of disability are based on

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depression, Anxiety, Hepatitis C and HIV, the ALJ briefly described Plaintiff’s testimony. Id.
The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence, and limiting effects of these symptoms are not entirely credible.” A.R. 22.
The ALJ then described the medical testimony. Id.
To explain his RFC determination, the ALJ first observed that “there is limited objective
evidence of record” regarding Plaintiff’s physical impairments. A.R. 23. Regarding the opinion
evidence, the ALJ gave little weight to Dr. Abenante’s opinion, because (1) “opinions as to the
ultimate issue of disability are reserved for the Commissioner”; (2) because the opinion “is not
‘well-supported’ by clinical and laboratory diagnostic techniques and is inconsistent with the
claimant’s own statement[s]” regarding his abilities; and (3) because Dr. Abenante’s history of
treatment “does not sufficiently outweigh the lack of supporting credible evidence.” Id. The ALJ
commented that Dr. Abenante had not sent Plaintiff for psychological therapy, and that the
evidence “does not establish significant testing to determine the extent of the claimant’s
limitations in functioning.” Id. Further, the ALJ noted that “Dr. Abenanted has provided very
little explanation for his opinion and has simply imparted extreme limitations on the claimant’s
ability for work despite not having any familiar[ity] with Social Security Regulations and Policy.
Id.
In contrast, the ALJ gave “great weight” to Dr. PlaHovinsak’s opinion, which “is
supported by testing of the claimant along with specific statements made by the claimant
regarding his ability to function.” Id. The ALJ assigned little weight to Dr. Lucasti’s opinion,
“because it is not supported by specific references to testing” and because Plaintiff likely
suffered some weakness and fatigue due to his medications. Id. The ALJ further noted that

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“despite the claimant living at home he is still fairly independent in the activities of daily living
which were previously identified in the record as banking, simple meal preparation, hygiene and
doing his own laundry.” A.R. 23–24. Moreover, the ALJ interpreted Dr. PlaHovinsak’s
evaluation as implying that Plaintiff’s “psychological functioning would improve to a greater
degree with proper treatment.” A.R. 24.
The ALJ then found that Plaintiff is unable to perform any past relevant work. Id. Finally,
considering Plaintiff’s age, education, work experience, and residual functional capacity, the
ALJ held that there are jobs that exist in significant numbers in the national economy that
Plaintiff could perform. Id. The ALJ noted that if Plaintiff had the residual functional capacity to
perform the full range of light work, a finding of “not disabled” would be required; however
Plaintiff’s ability to perform all the requirements of light work “has been impeded by additional
limitations.” A.R. 25. The ALJ described the vocational expert’s testimony that 60–70% of
light/sedentary exertional jobs in the national economy are “thing” jobs, which the ALJ defined
as meaning “unskilled work with no contact with the general public.” Id. The ALJ therefore
found that Plaintiff “is capable of making a successful adjustment to other work that exists in
significant numbers in the national economy,” and that Plaintiff therefore “has not been under a
disability, as defined in the Social Security Act, from December 28, 2010, through the date of
this Decision.” Id.

Standard of Review
On a review of a final decision of the Commissioner of the Social Security
Administration, a district court “shall have power to enter, upon the pleadings and transcript of
the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of

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Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see
Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001). The Commissioner’s decisions regarding
questions of fact are deemed conclusive on a reviewing court if supported by “substantial
evidence in the record.” 42 U.S.C. § 405(g); see Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
While the court must examine the record in its entirety for purposes of determining whether the
Commissioner’s findings are supported by substantial evidence, Gober v. Matthews, 574 F.2d
772, 776 (3d Cir. 1978), the standard is highly deferential. Jones v. Barnhart, 364 F.3d 501, 503
(3d Cir. 2004). Indeed, “substantial evidence” is defined as “more than a mere scintilla,” but less
than a preponderance. McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). “It
means such relevant evidence as a reasonable mind might accept as adequate.” Plummer v.
Apfel, 186 F.3d 422, 427 (3d Cir. 1999). A reviewing 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). Accordingly, even if there is contrary evidence in the record that
would justify the opposite conclusion, the Commissioner’s decision will be upheld if it is
supported by the evidence. See Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986).

Standard for Entitlement to Benefits
Disability insurance benefits may not be paid under the Act unless Plaintiff first meets the
statutory insured status requirements. See 42 U.S.C. § 423(c). Plaintiff must also demonstrate the
“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 12 months. . . .” 42 U.S.C. §
423(d)(1)(A); see Plummer, 186 F.3d at 427. An individual is not disabled unless “his physical

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or mental impairment or 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). Eligibility for supplemental security income requires the same showing of
disability. Id. § 1382c (a)(3)(A)–(B).
The Act establishes a five-step sequential process for evaluation by the ALJ to determine
whether an individual is disabled. See 20 C.F.R. § 404.1520. First, the ALJ determines whether
the claimant has shown that he or she is not currently engaged in “substantial gainful activity.”
Id. § 404.1520(a); see Bowen v. Yuckert, 482 U.S. 137, 146–47 n. 5 (1987). If a claimant is
presently engaged in any form of substantial gainful activity, he or she is automatically denied
disability benefits. See 20 C.F.R. § 404.1520(b); see also Bowen, 482 U.S. at 140. Second, the
ALJ determines whether the claimant has demonstrated a “severe impairment” or “combination
of impairments” that significantly limits his physical or mental ability to do basic work activities.
20 C.F.R. § 404.1520(c); see Bowen, 482 U.S. at 146–47 n. 5. Basic work activities are defined
as “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b). These
activities include physical functions such as “walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying or handling.” Id. A claimant who does not have a severe impairment is not
considered disabled. Id. § 404.1520(c); see Plummer, 186 F.3d at 428.
Third, if the impairment is found to be severe, the ALJ then determines whether the
impairment meets or is equal to the impairments listed in 20 C.F.R. Pt. 404, Subpt. P., App. 1
(the “Impairment List”). 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant demonstrates that his or
her impairments are equal in severity to, or meet those on the Impairment List, the claimant has
satisfied his or her burden of proof and is automatically entitled to benefits. See id. §

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404.1520(d); see also Bowen, 482 U.S. at 146–47 n. 5. If the specific impairment is not listed,
the ALJ will consider in his or her decision the impairment that most closely satisfies those listed
for purposes of deciding whether the impairment is medically equivalent. See 20 C.F.R. §
404.1526(a). If there is more than one impairment, the ALJ then must consider whether the
combination of impairments is equal to any listed impairment. Id. An impairment or combination
of impairments is basically equivalent to a listed impairment if there are medical findings equal
in severity to all the criteria for the one most similar. Williams, 970 F.2d at 1186.
If the claimant is not conclusively disabled under the criteria set forth in the Impairment
List, step three is not satisfied, and the claimant must prove at step four whether he or she retains
the residual functional capacity to perform his or her past relevant work. 20 C.F.R. §
404.1520(e); Bowen, 482 U.S. at 141. If the claimant is able to perform previous work, the
claimant is determined to not be disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e); Bowen, 482
U.S. at 141–42. The claimant bears the burden of demonstrating an inability to return to the past
relevant work. Plummer, 186 F.3d at 428. Finally, if it is determined that the claimant is no
longer able to perform his or her previous work, the burden of production then shifts to the
Commissioner to show, at step five, that the “claimant is able to perform work available in the
national economy.” Bowen, 482 U.S. at 146–47 n. 5; Plummer, 186 F.3d at 428. This step
requires the ALJ to consider the claimant’s residual functional capacity, age, education, and past
work experience. 20 C.F.R. § 404.1520(f). The ALJ must analyze the cumulative effect of all the
claimant's impairments in determining whether the claimant is capable of performing work and
not disabled. Id.

Plaintiff’s Claims on Appeal

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1. ALJ’s Determination of the Residual Functional Capacity
Plaintiff argues that the ALJ’s residual functional capacity (“RFC”) determination is
unsupported. Plaintiff states that the determination that Plaintiff is capable of light work
“amounts too [sic] little more than guesswork,” and claims that Plaintiff’s fatigue and weakness
would “more likely” prevent him “from sustaining an eight-hour workday regardless of
exertional requirements.” Pl. Br. at 17. In addition, Plaintiff asserts that the limitation to
unskilled work with no contact with the general public failed to consider that Plaintiff’s anxiety
“might very well interfere with his ability to relate to coworkers without distraction or accept
criticism from supervisors.” Id. at 17–18. Plaintiff also criticizes the ALJ’s failure to identify the
“mood disorder” from which Plaintiff suffers. Id. at 18. Further, Plaintiff contends that the ALJ
erred in rejecting the opinion of Dr. Abenante, Plaintiff’s treating physician. Id. at 19. Plaintiff
states that ALJ’s “preference does not acknowledge that the treating psychiatrist is indeed a
medical doctor while the consultant is not,” Pl. Br. at 13. Plaintiff further takes issue with the
ALJ’s reasoning that Dr. Abenante is unfamiliar with social security regulations, and asks “what
difference does it make?” Pl. Br. at 24. Finally, Plaintiff maintains that the ALJ failed to
properly evaluate Plaintiff’s testimony regarding his subjective symptoms. Id. at 28.
The Commissioner argues that the RFC determination is supported by substantial
evidence. Def. Br. at 5. In particular, the Commissioner asserts that Dr. Abenante’s assessment
was contradicted by the opinions of Dr. Plahvinsak and Dr. Lucasti. Id. at 6. Additionally, the
Commissioner asserts that the ALJ properly considered Plaintiff’s symptoms, and the extent to
which the symptoms are consistent with the objective medical evidence, including the medical
opinions. Id. at 10. Overall, the Commissioner states that the ALJ “properly exercised his
discretion to conclude that Plaintiff remained capable of at least some work activity.” Id. at 11.

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“In making a residual functional capacity determination, the ALJ must consider all
evidence before him,” and 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., 200 F.3d 112, 121 (3d
Cir. 2000). Id. Ultimately, “[w]here the ALJ’s findings of fact are supported by substantial
evidence, we are bound by those findings, even if we would have decided the factual inquiry
differently.” Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 292 (2012). When looking at the
medical testimony, an ALJ must give a treating physician’s opinion controlling weight if the
opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in your case record.” 20 C.F.R. §
404.1527(c)(2). The ALJ may also consider other factors, such as the “amount of understanding
of our disability programs and their evidentiary requirements that an acceptable medical source
has.” 20 C.F.R. § 404.1527(c)(6). If, however, a treating physician’s opinion conflicts with that
of a non-treating physician, “the ALJ may choose whom to credit but cannot reject evidence for
no reason or for the wrong reasons.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). That is,
the ALJ must rely only on “contradictory medical evidence” in rejecting the treating physician’s
opinion, rather than “credibility judgments, speculation or lay opinion.” Id.
Although the Plaintiff presents plausible alternative findings, the ALJ’s RFC
determination is supported by substantial evidence in the record, and this Court is therefore
bound by that decision. The ALJ described the three primary pieces of medical evidence, and
indicated that he gave little weight to both treating sources. The ALJ explained that Dr.
Abenante’s opinion was entitled to little weight because it was not “well-supported” by clinical
and laboratory techniques, and because it was contradicted by Plaintiff’s statements of his
abilities. Although Plaintiff disparages the ALJ’s reasoning, the Court finds that the ALJ’s

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credibility determinations are well-supported. The testing performed by Dr. Abenante, according
to the May 24, 2012 Psychiatric report, A.R. 212–215, indicates that Plaintiff has decreased
ability to function, but does not support Dr. Abenante’s conclusion, in his 2013 letter, that
Plaintiff “is unable to do any type of workplace functioning.” A.R. 226. Plaintiff claims that
“five years of monthly treatment is the explanation” for Dr. Abenante’s opinion, Pl. Br. at 23, but
the record does not show what medically acceptable clinical techniques used in this course of
treatment led to the doctor’s conclusions. See 20 C.F.R. § 404.1527(c)(2) (requiring a treating
physician’s testimony to be “well-supported by medically acceptable clinical and laboratory
diagnostic techniques.”). The ALJ also appropriately commented that Dr. Abenante “has simply
imparted extreme limitations on the claimant’s ability for work despite not having any
familiar[ity] with Social Security Regulations and Policies.” A.R. 23; see 20 C.F.R. §
404.1527(c)(6) (noting that “amount of understanding of our disability programs and their
evidentiary requirements that an acceptable medical source has” is relevant factor in weight
given to medical opinion). The ALJ’s decision to give little weight to Dr. Lucasti’s opinion—
which Plaintiff does not take issue with—was similarly appropriate. Dr. Lucasti did not indicate
any testing to determine Plaintiff’s abilities, and the doctor’s conclusions were inconsistent with
the side effects of Plaintiff’s medications and complaints of fatigue. A.R. 23.
Furthermore, the ALJ relied on appropriate medical evidence in rejecting Dr. Abenante’s
opinion. The ALJ looked to Dr. PlaHovinsak’s opinion, which was supported by clinical testing.
See A.R. 220 (describing Plaintiff’s abilities to count backwards, recall digits, and answer simple
math problems). While Dr. PlaHovinsak is a psychologist, not a physician, both physicians and
psychologists are considered “acceptable medical sources” who may provide evidence of

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impairment. 20 C.F.R. § 404.1513(a). Faced with conflicting medical evidence, the ALJ made
proper credibility determinations.
The ALJ also properly took into account Plaintiff’s testimony of his subjective
symptoms. 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 also Hartranft v.
Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (“Allegations of pain and other subjective symptoms
must be supported by objective medical evidence.”). However, after the ALJ finds a medical
impairment which could cause the symptoms, “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.” Hartranft, 181 F.3d at 362. Thus, the ALJ must “determine 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.” Id.
Here, the ALJ gave detailed descriptions of the medical evidence that led to his
evaluation of Plaintiff’s mental and physical capacities. The ALJ described the cognitive testing
conducted by Dr. Abenante in May of 2012 and by Dr. PlaHovinsak in July of 2012. A.R. 22.
The ALJ also noted that there is “limited objective evidence of record” regarding Plaintiff’s
physical impairment. A.R. 23. Furthermore, while Plaintiff stated he could not work due to
fatigue, Plaintiff also “has not sought treatment for his Hepatitis C, despite his primary care
physician recommending it, and that his stamina problems are likely linked to his Hepatitis C.”
A.R. 23, 22. The ALJ appropriately evaluated the intensity and persistence of Plaintiff’s
subjective symptoms, based on the medical evidence.
Thus, the ALJ’s determination of Plaintiff’s RFC is supported by substantial evidence in
the record.

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2. ALJ’s Determination of Plaintiff’s Ability to Perform Other Work
Plaintiff argues that the ALJ erred in failing to obtain evidence from the vocational expert
as to the specific jobs which Plaintiff could perform, their titles as listed Dictionary of
Occupational Titles, and the numbers of those jobs in the regional and national economies. Pl.
Br. at 35. Plaintiff also asserts that the ALJ failed to consider the vocational expert’s testimony
that Plaintiff would be unable to sustain unskilled work if Plaintiff’s condition led to absences,
lateness, or failure to keep pace. Id. at 36. The Commissioner, in response, argues that the
vocational testimony, used in combination with the Medical-Vocational Guidelines, found at 20
C.F.R. pt. 404, subpt. P., app’x 2, suggests that Plaintiff is capable of performing 960 sedentary
or light occupations, or 160 sedentary occupations, “each representing numerous jobs in the
national economy.” Def. Br. at 12. Defendant maintains that this evidence was sufficient to meet
the Commissioner’s burden of proof at step five of the analysis. Id.
At step five, it is the Commissioner’s burden to prove that there are jobs in the national
economy that the Plaintiff can perform, given the impairments accepted by the ALJ. See Sykes v.
Apfel, 228 F.3d 259, 266 (3d Cir. 2000). If work a claimant can do “exists in the national
economy”—that is, if “there is a significant number of jobs (in one or more occupations) having
requirements which [the claimant is] able to meet with [his] physical or mental abilities and
vocational qualifications”—the claimant will not be considered disabled. 20 C.F.R. §
404.1566(b); see also Craigie v. Bowen, 835 F.2d 56, 58 (3d Cir. 1987) (holding that 200 jobs in
regional economy “is a clear indication that there exists in the national economy other substantial
gainful work which [claimant] can perform.”). According to the Medical-Vocational Guidelines
at 20 C.F.R. pt. 404, subpt. P., app’x 2 ((hereinafter “the guidelines” or “the grids”), where a
claimant has both strength and nonexertional limitations, the rules listed in that appendix may be

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used “in determining first whether a finding of disabled may be possible based on the strength
limitations alone.” Id. at ¶ 200.00(e)(2). If no such finding is possible, then “the rule(s) reflecting
the individual’s maximum residual strength capabilities, age, education, and work experience
provide a framework for consideration of how much the individual’s work capability is further
diminished in terms of any types of jobs that would be contraindicated by the nonexertional
limitations.” Id. However, “the grids cannot automatically establish that there are jobs in the
national economy when a claimant has severe exertional and nonexertional impairments.” Sykes,
228 F.3d at 267. In that case, an ALJ must take additional evidence to determine the effect of a
nonexertional limitation on residual functional capacity. Id. at 270.
The taking of additional evidence to determine residual functional capacity is preferably
done through the testimony of a vocational expert. Jesarum v. Sec’y of U.S. Dep’t of Health and
Human Servs., 48 F.3d 114, 121 (3d Cir. 1995). Such testimony “‘typically includes, and often
centers upon, one or more hypothetical questions posed by the ALJ . . . . [W]hether, given certain
assumptions about the claimant’s physical capability, the claimant can perform certain types of
jobs, and the extent to which such jobs exist in the national economy.’” Rutherford v. Barnhart,
399 F.3d 546, 553 (3d. Cir. 2005) (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d
Cir.1984). The vocational expert’s testimony, however, “‘may only be considered for purposes
of determining disability if the question accurately portrays the claimant’s individual physical
and mental impairments.’” Id. at 554 (quoting Podedworny, 745 F.2d at 218). That is, “the ALJ
must accurately convey to the vocational expert all of a claimant’s credibly established
limitations.” Id. “Limitations that are medically supported and otherwise uncontroverted in the
record, but that are not included in the hypothetical question posed to the expert, preclude

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reliance on the expert's response.” Id. On the other hand, if an ALJ has appropriately rejected a
limitation, that limitation need not be conveyed to the vocational expert. See id.
Here, because Plaintiff has both exertional and nonexertional limitations, the ALJ
properly called a vocational expert to give evidence on the types of jobs Plaintiff could perform,
and the extent to which such jobs exist in the national economy. The ALJ presented the
vocational expert with Plaintiff’s credibly established limitations: the ability to lift/carry ten
pounds frequently and twenty pounds occasionally; to stand and walk for about six hours in an
eight-hour workday and to sit for about six hours in an eight-hour workday; limited to unskilled
work that “does not involve any contact with the general public at all.” A.R. 52–53. The
limitations suggested by Plaintiff’s counsel during the vocational expert’s testimony—that
Plaintiff would be unproductive and would require additional breaks and days off—were rejected
by the ALJ in his RFC determination, see A.R. 21–24. This determination is supported by
substantial evidence, as described ante. The ALJ was therefore entitled to rely on the vocational
expert’s response to his hypothetical, and was not required to consider the additional limitations
suggested by Plaintiff’s counsel.
Moreover, the vocational expert presented sufficient evidence to show that Plaintiff can
perform jobs which exist in the national economy. The ALJ, having defined “thing jobs” as
“unskilled work that does not involve any contact with the general public at all,” asked the
vocational expert to “quantify out of the light and sedentary range what percentage of jobs would
be thing versus people.” A.R. 53. The expert stated that probably 60 to70 percent of unskilled
jobs in the light and sedentary range were “thing” jobs, while close to 80 percent of sedentary
jobs fall into that category. Under the guidelines “[a]pproximately 200 separate unskilled
sedentary occupations can be identified, each representing numerous jobs in the national

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economy,” and “approximately 1,600 separate sedentary and light unskilled occupations can be
identified in eight broad occupational categories.” 20 C.F.R. pt. 404, subpt. P, app’x 2 §§
201.00(a); 202.00(b). If Plaintiff is restricted only to sedentary occupations, the vocational
expert’s testimony indicates that he can perform roughly 160 occupations; if he is able to
perform light work as well, he can perform between 960 and 1120 occupations. The existence of
a 200 jobs in a regional economy has sufficed to show that “other substantial gainful work”
exists, and prevented a finding of disability, see Craigie, 835 F.2d at 58. Thus, evidence
indicating that Plaintiff can perform a minimum of 160 occupations which exist in the national
economy meets the ALJ’s burden of proving that Plaintiff is not disabled. See 20 C.F.R. §
404.1566(b) (“if work that you can do does exist in the national economy, we will determine that
you are not disabled”). Given the large number of occupations that Plaintiff is qualified for, the
ALJ’s failure to elicit specific job titles and numbers from the Dictionary of Occupational Titles
does not undermine his finding that Plaintiff is not disabled.
Thus, the evidence given by the vocational expert was sufficient to meet the
Commissioner’s burden of proving the existence of jobs in the national economy which Plaintiff
can perform.

Conclusion
For the reasons set forth above, I find that the ALJ’s decision was supported by
substantial evidence in the record. Accordingly, the ALJ’s decision is affirmed. An appropriate
Order shall follow.

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Dated: _12/102014

/s/ Freda L. Wolfson
The Honorable Freda L. Wolfson
United States District Judge

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