BRANDO v. COMMISSIONER OF SOCIAL SECURITY

Filing 19

OPINION filed. Signed by Judge Freda L. Wolfson on 5/31/2017. (km)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
JOSEPH BRANDO,
:
:
:
Plaintiff,
:
:
Civil Action No. 15-3219 (FLW)
v.
:
:
OPINION
CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
:
Defendant.
:
___________________________________ :
WOLFSON, United States District Judge:
Joseph Brando (“Plaintiff”), appeals from the final decision of the Acting Commissioner
of Social Security, Carolyn W. Covlin (“Defendant”) denying Plaintiff disability insurance
benefits under Title II and XVI of the Social Security Act (the “Act”). After reviewing the
Administrative Record, the Court finds that the Administrative Law Judge’s (“ALJ”) opinion was
based on substantial evidence and, accordingly, affirms the decision.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff was born on July 20, 1973, and was twenty-six years old on the alleged

disability onset date of July 1, 2000. Administrative Record 39, 607 (hereinafter “A.R.”).
Plaintiff graduated from high school, and, prior to his alleged disability, worked as a customer
service representative and a service clerk. A.R. 66, 607, 904-05.
This case has a long and protracted procedural history. On September 14, 2000, Plaintiff
applied for disability insurance benefits (“DIB”) and supplemental security income (“SSI”)
under the Act, alleging disability beginning on July 1, 2000. A.R. 57-59, 523-25. Plaintiff’s
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claims were denied initially and again upon reconsideration. A.R. 11. On August 8, 2001,
Plaintiff requested a hearing, which was held on February 19, 2002 before Administrative Law
Judge (“ALJ”) Dennis O’Leary. A.R. 11, 22-38. ALJ O’Leary issued a decision on March 1,
2002, finding that Plaintiff was not disabled under the Act, and thus, denied Plaintiff’s claims for
disability insurance benefits and supplemental security income. A.R. 11-17. Plaintiff filed a
timely Request for Review with the Appeals Council, which request was denied, making ALJ
O’Leary’s decision the final, reviewable decision of the Commissioner. A.R. 5-7. Plaintiff
subsequently filed an appeal in the District Court for the District of New Jersey. A.R. 595. On
July 16, 2003, the Honorable Faith S. Hochberg, U.S.D.J. signed a consent order, remanding the
case for further administrative action. A.R. 346-47.
On August 8, 2002, Plaintiff filed subsequent DIB and SSI applications, which were
consolidated with his prior applications. A.R. 595. On February 19, 2004, ALJ O’Leary held
another hearing in this matter, wherein Plaintiff, an independent medical expert, and a vocational
expert testified. A.R. 530-86. ALJ O’Leary issued a decision on March 18, 2004, again finding
that Plaintiff was not disabled under the Act. A.R. 332-41. Plaintiff filed a Request for Review
with the Appeals Council on June 25, 2004, which request was denied on March 20, 2007. A.R.
595. Plaintiff appealed that decision to the District Court. A.R. 595-96. The Honorable Joel A.
Pisano, U.S.D.J., signed a consent order remanding the case for further administrative action.
A.R. 595-96.
By letter dated April 14, 2009, the Appeals Council vacated the ALJ’s decision and
remanded the case for further evaluation of Plaintiff’s subjective complaints, as well as an
explanation of the discrepancies in the treating and State agency medical consultant opinions.
A.R. 596. Following remand, a hearing was conducted before ALJ George C. Yatron on

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September 13, 2010. A.R. 834-64. On October 14, 2010, ALJ Yatron issued a decision finding
that Plaintiff was not disabled under the Act. A.R. 679-90. Plaintiff filed a Request for Review,
and the Appeals Council granted Plaintiff’s appeal and remanded the case for further
proceedings on February 28, 2011. A.R. 596.
On April 9, 2012 and April 10, 2013, ALJ Daniel L. Rubini conducted additional
administrative hearings in this matter. A.R. 867-944. ALJ Rubini issued a decision on June 28,
2013, finding that Plaintiff was not disabled under the Act and denying his claims for DIB and
SSI. A.R. 595-609. On July 31, 2013, Plaintiff filed a statement of exception requesting review
with the Appeals Council, A.R. 610-13, which request was denied on March 6, 2015. A.R. 58790. On May 5, 2015, Plaintiff filed the instant appeal requesting review of the June 28, 2013
decision.
A.

Plaintiff’s Background and Work Experience

Plaintiff was twenty-six years old at the time of the alleged disability onset date, and thus,
is classified as a “younger individual,” age eighteen to forty-nine, under the Commissioner’s
regulations. A.R. 607. Plaintiff graduated high school in 1991, and is able to communicate in
English. A.R. 66, 775, 904-05. Plaintiff testified that he was last employed as a customer
service representative, a position that he held for two years before resigning in July 2000 because
he “felt sick all the time (with flu-like symptoms)” and experienced “constant fatigue and
difficulty concentrating.” A.R. 14, 775.
Plaintiff testified that he lives with his parents, and a typical day involves waking up
around 10:00 a.m., eating breakfast, taking a nap for a few hours, and watching television or
reading, before going to bed at approximately 11:00 p.m. A.R. 14. Plaintiff is able to drive

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locally, leaves the house once per month to attend church with his parents, and a few times a year
to go shopping or visit friends. A.R. 14.
B.

Review of the Medical Evidence
1.

Plaintiff’s Treatment Regimen

Plaintiff testified that he was first diagnosed with HIV when he was eighteen years old,
and that he received no treatment for that condition until he started a treatment regimen with Paul
Bellman, M.D., in August 2000. A.R. 14. By that time, Plaintiff also suffered from Hepatitis B
and anal warts. A.R. 137. During Plaintiff’s initial follow up visit with Dr. Bellman, he noted
no symptoms other than significant lymphadenopathy. A.R. 142. Following a physical
examination of Plaintiff, Dr. Bellman found that Plaintiff did not have any “abnormalities in [his]
general appearance,” and appeared “well developed” and “well nourished.” A.R. 142. Dr.
Bellman prescribed Plaintiff the following medications and antiretroviral therapy (“ART”):
Sustiva, Combavir, Agenerase, and Rescriptor, as well as Famvir and Epivir to treat Hepatitis B.
A.R. 142-43. At the end of Plaintiff’s first month of treatment, Dr. Bellman noted that Plaintiff
was tolerating his medications, except for an initial adverse reaction to Sustiva. A.R. 140-41.
During a follow up visit on October 2, 2000, Dr. Bellman found that there was a dramatic
drop in Plaintiff’s viral load after just sixteen days of therapy. A.R. 139. Plaintiff complained of
“some difficulty sleeping” and still exhibited signs of lymphadenopathy, but otherwise reported
that he felt “okay.” A.R. 139. As a result, Dr. Bellman continued Plaintiff’s medication
regimen. A.R. 139.
On October 10, 2000, Dr. Bellman completed an Internal Medicine Report regarding
Plaintiff for submission to the Social Security Administration. A.R. 187-91. In response to
question thirteen of that Report, which asked the physician for his opinion about the claimant’s

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ability, “despite the functional limitations imposed by the [claimant’s] impairment(s), to do work
related physical activities (such as sitting, standing, walking, lifting, carrying, handling objects,
hearing, speaking, and traveling),” Dr. Bellman indicated that Plaintiff was “disabled due to
AIDS.” A.R. 190.
Plaintiff visited Dr. Bellman on at least a bi-weekly basis through November 2000,
during which time Dr. Bellman continued Plaintiff on his medication. A.R. 135-138. Dr.
Bellman reported that Plaintiff was “feeling well,” and that his viral load continued to drop.
A.R. 135. Specifically, on November 16, 2000, Dr. Bellman indicated that Plaintiff’s Tcells/CD4 were above 300, and that Plaintiff’s viral load continued to drop at 270. A.R. 135.
However, Plaintiff complained of pain from areas of anal warts, and continued to demonstrate
signs of lymphadenopathy. A.R. 137. Dr. Bellman directed Plaintiff to undergo surgery for anal
warts. A.R. 135.
On December 7, 2000, Dr. Bellman indicated that Plaintiff reported relief following anal
wart surgery, and noted that Plaintiff’s liver function remained “stable.” A.R. 134. Additionally,
Dr. Bellman reported that Plaintiff’s viral load continued to decrease, that his T-cells/CD4 were
improving, and that Plaintiff did not exhibit any significant toxicity. A.R. 134.
Dr. Bellman continued to report positive results through February of 2001. In that
regard, Dr. Bellman reported that Plaintiff was “generally doing well,” and that his last
laboratory results were “excellent,” with an undetectable viral load and T-cells/CD4 above 300.
A.R. 222-23. Nonetheless, Dr. Bellman noted that Plaintiff was getting recurrent treatment for
anal warts, and exhibited dietary issues and increased cholesterol, which may have been
attributable to Sustiva. A.R. 222. Additionally, on January 18, 2001, Dr. Bellman submitted a
supplement to his October 10, 2000 Internal Medicine Report to the Social Security

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Administration, responding to a question asking him to indicate any “functional loss that would
interfere with [Plaintiff’s] work activity” by stating that Plaintiff suffered from “fatigue” and
“depression.” A.R. 133.
During several follow up visits in March 2001, Dr. Bellman reported that Plaintiff’s
laboratory results showed elevated liver enzymes of unclear etiology, which he opined was likely
due to a combination of Hepatitis B and HIV medications. A.R. 218-221. Plaintiff did admit to
drinking small amounts of alcohol on occasion, which Dr. Bellman advised him to discontinue
completely. A.R. 220. Otherwise, Dr. Bellman noted that Plaintiff was responding “extremely
well” in terms of his HIV, with an undetectable viral load. A.R. 220-21. Given the rise in liver
functions, however, Dr. Bellman temporarily halted Plaintiff’s HIV medications on March 27,
2001. A.R. 216-18.
On April 30, 2001, following approximately one month of being off HIV medications,
Plaintiff reported swollen lymph nodes and increased fatigue. A.R. 215. On May 3, 2001, Dr.
Bellman reported that Plaintiff’s liver functions had “dramatically improved,” most likely due to
the discontinuation of his antiviral medications. A.R. 214. Dr. Bellman restarted Plaintiff’s HIV
medications, substituting AZT for Zerit, and, in May and June of 2001, Plaintiff reported feeling
“much better” since restarting his medications, with decreased swelling in his lymph nodes and
stable liver functions. A.R. 213-15.
In July 2001, Dr. Bellman reported that Plaintiff’s laboratory results showed anemia,
which was most likely attributable to AZT. A.R. 210-11. Dr. Bellman added Epogen to
Plaintiff’s medications to combat the anemia. A.R. 211. Dr. Bellman indicated further that
Plaintiff was generally feeling well, although Plaintiff reported feeling “a little tired.” A.R. 210-

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11. Plaintiff’s T-cells/CD4 were in the mid-200 range, and Dr. Bellman recommended that
Plaintiff continue with his regimen. A.R. 210-11.
On January 16, 2002, Dr. Bellman submitted the following statement regarding Plaintiff’s
condition:
Mr. Joseph Brando has asked me to dictate a short note in support of his disability as his
attending physician. I have taken care of Mr. Brando since August 8, 2000. Mr. Brando is
under my care for AIDS and multiple complications of AIDS including anemia,
neutropenia, recurrent infections, depression and chronic Hepatitis B. Mr. Brando's
condition remains serious. He requires weekly injections with growth factors to maintain
his white and red cells at a safe range and requires frequent monitoring for toxicity and
the determination of the efficacy of his medications. In my opinion, he remains
completely disabled.
A.R. 283.
On September 6, 2002, Jack Baharlias, Ed.D., performed a psychological consultative
examination of Plaintiff at the request of the State. A.R. 485-87. Following a series of cognitive
tests, Dr. Baharlias made the following observations in his examination notes:
Mr. Joseph Brando is a 29 year old young man, who is appropriately dressed with jeans
and a short sleeved shirt and he has brown hair. The mental status interview, as requested
by the Division of Disability Determinations, began with a brief cognitive screening on
the information and orientation subtest of the Wechsler Memory Scale to which the
claimant answered all questions correctly, except he was unaware of the name of the
town in which the examiner's office was located. On the mental control subtest, this
claimant was able to count backwards from 20 to 1 and recite the alphabet but he was not
able to do a 3 step mathematical activity. When given serial 7's, he was able to verbalize
only the first declination and made an error after that. When asked to spell the word,
"World", he was able to spell it forward and backwards. On digit span subtest, the
claimant was able to remember 7 numbers forward, which is above average, and 4
numbers backwards, which is somewhat below average, thus indicating that his
immediate memory for numbers is adequate, while his concentration and active working
memory may be slightly impaired.
A.R. 486-87.
Dr. Baharlias noted further that Plaintiff was “not experiencing any pain on the day of the
evaluation, but that he is subject to getting headaches, stomach aches, colds, and is always under

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the weather . . . as he is vulnerable to infections due to his HIV condition.” A.R. 487. Dr.
Baharlias continued:
The claimant's posture and gait were unremarkable. There were no involuntary
movements and he was quite cooperative during the interview. The claimant indicated
that he was never an IV drug user. He had, on occasion, smoked marijuana and had, in
the past, used alcohol but not excessively.
The claimant denied paranoid ideation, and suicidal as well as homicidal ideation. The
claimant, however, indicated that, sometimes, he feels like not taking his medicine, and
that would be tantamount to hastening his ill health development.
The claimant's thought process was felt, by this examiner, to be essentially logical. He,
however, indicated that he frequently feels confused. He acknowledged flight of ideas,
and having difficulty concentrating on any one thing.
The claimant's eye contact was satisfactory. He was well oriented in all 3 spheres, and his
mood was obviously depressed. The claimant was neither lethargic nor agitated, nor was
he spontaneous. When he did speak, it was with adequate volume and adequate rate. He
was goal directed and there was no evidence of a thought disorder or tangential or
circumstantial conversation. When asked what makes him happy, he indicated that he
does not get happy or excited about anything at this time, but that he used to enjoy going
to amusement park rides, and that he feels limited at this time.
A.R. 487. Dr. Baharlias also indicated that Plaintiff’s behavior was “essentially appropriate,”
and that while Plaintiff was concerned about his health, he was not suffering from auditory or
visual hallucinations, obsessive thoughts, or compulsive behavior. A.R. 487-88. In his closing
remarks, Dr. Baharlias attested to the following:
The examiner felt that, overall, the claimant's insight and judgment were fair. If the
claimant is found eligible for funding, I believe that he is capable of managing his funds
on his own at the present time. The diagnosis which most closely approximates this
claimant's functioning, in this examiner's opinion, would be as follows:
Axis I: Adjustment disorder, with depressed mood, sometimes rising to the level
of a dysthymic disorder, secondary to HIV status.
Axis II: There is a possibility that he has a cognitive disorder, not otherwise
specified, as related to his HIV condition, although I do not see any specific signs
at this time, of a significant impairment or what is called the HIV cognitive motor
complex, although a further evaluation on cognitive tests and memory tests may
be in order at the discretion of the Division of Disability Determinations.
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Axis III: HIV and other related illnesses.
A.R. 488.
On September 30, 2002, Vinod K. Sinha, M.D., examined Plaintiff at the request of the
State agency. A.R. 489-91. Dr. Sinha began by assessing Plaintiff’s work history. A.R. 489.
Dr. Sinha found that while Plaintiff has previously worked as a customer service representative,
he stopped working in July 2000 after experiencing “symptoms of frequent respiratory infection,
fatigue, tiredness and flu-like symptoms.” A.R. 489. Dr. Sinha noted that Plaintiff had indicated
that those symptoms still persisted, but were “less intense than before.” A.R. 489. Dr. Sinha
explained that Plaintiff’s “other problem is feeling of anxiety, depression, and tiredness and he
feels that the medication makes him lose sleep at night.” A.R. 489.
Dr. Sinha also performed a physical examination of Plaintiff, and made the following
remarks in his examination notes:
On physical examination Mr. Brando is a 29-year-old Caucasian male. He is 69 inches
tall and weighs 161 pounds. He is alert, cheerful, ambulatory, well nourished, and well
built, not in any distress. Pupils are equal and reacting to light and accommodation.
Vision in the right eye is 20/25 with contact lenses. Vision in the left eye is 20/25 with
contact lenses. ENT examination is normal. No evidence of jaundice, cyanosis, clubbing,
lymph node enlargement, or pitting edema of the legs are noted. Thyroid gland is not
enlarged. Neck veins are not engorged.
A.R. 490. Dr. Sinha concluded the examination with the following assessment:
Mr. Brando is a 29-year-old, well-nourished, well-built, Caucasian male who has history
of infection with human immune deficiency virus, on treatment, and at this time he has
clinical signs and symptoms of reactive anxiety and mild depression.
A.R. 491.
On March 7, 2003, after not having visiting a treating physician since November 2002,
Plaintiff sought treatment from Ricky Hsu, M.D. A.R. 393-94. Following a physical
examination, Dr. Hsu noted “no abnormalities” in Plaintiff’s general physical appearance,
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indicating that Plaintiff appeared “well developed” and “well nourished,” with stable vital signs.
A.R. 393. However, Dr. Hsu did document mild lymphadenopathy, as well as the fact that
Plaintiff had difficulty sleeping due to taking Sustiva. A.R. 393. Dr. Hsu continued Plaintiff on
his medication regimen. A.R. 394.
During a follow up visit on March 21, 2003, Dr. Hsu indicated that Plaintiff felt “very
tired,” had “[n]o sex drive,” and experienced increased fatigue over the last few weeks. A.R.
391. In June and July of 2003, Dr. Hsu reported that “[e]verything [was] going well” and
Plaintiff was not exhibiting any physical abnormalities, although Plaintiff reported feeling
depressed and isolated. A.R. 387-89. Dr. Hsu noted that Plaintiff was occasionally smoking
marijuana, and that the doctor may consider placing Plaintiff on Lexepro after receiving
Plaintiff’s bloodwork results. A.R. 389-90.
On August 13, 2003, Dr. Hsu examined Plaintiff and reported “concern” over the fact
that Plaintiff had lost ten pounds since his last visit. A.R. 413. Dr. Hsu indicated that Plaintiff
“had lowest T cell count around 100,” and Plaintiff’s “[m]ood still fluctuates a fair amount.”
A.R. 413. However, during a follow up visit on October 14, 2003, Dr. Hsu reported that
Plaintiff’s mood had improved since using Lexepro, and that Plaintiff appeared to be “more
focused.” A.R. 411.
On July 13, 2006, Plaintiff began treatment at the Lehigh Valley Hospital and Health
Network AIDS Activity Office (the “AAO”). A.R. 761. During his initial visit, Plaintiff’s only
complaints were depression, which related in part to his living situation, and “mild” interruption
of his sleep cycle. A.R. 761. With regard to HIV treatment, Plaintiff reported that he had been
on a regimen of AZT, 3TC, and efavirenz for several years “without any significant side effects.”
A.R. 761. Plaintiff also underwent a physical examination under the direction of Joseph

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Yozviak, D.O. A.R. 762. Dr. Yozviak reported that Plaintiff’s viral load was “undetectable with
a good CD4 responsive to current regimen of Combivir and efavirenz.” A.R. 763. However, Dr.
Yozviak noted a possible medication adjustment to “Truvada, efavirenz, or possible Atripla for
the sake of convenient dosing and also to add tenofovir to his regimen for treatment of active
hepatitis B.” A.R. 763. Because Plaintiff experienced “elevated transaminases” after taking
Lexapro, Dr. Yozviak discontinued Plaintiff on Lexapro, and prescribed him a low dose of
Zoloft as an alternative to treat depression. A.R. 763.
On August 3, 2006, Plaintiff had a follow up appointment at the AAO, and reported that
his depression and mood had improved since he started taking Zoloft. A.R. 752. Plaintiff’s
sleep pattern improved, and he reported rising at a “reasonable hour in the morning.” A.R. 752.
Additionally, at the time of the visit, Plaintiff had a viral upper respiratory infection, with
“[s]ymptoms of a cough and myalgias.” A.R. 753. Plaintiff continued to take Combivir and
efavirenz without side effects, and Dr. Yozviak increased Zoloft and, again, started Plaintiff on
tenofovir to treat Hepatitis B. A.R. 753.
On September 18, 2006, Plaintiff visited the AAO for a regular visit, and reported
discontinuing Zoloft approximately two weeks prior, after reading about its side effects on the
Internet. A.R. 743. Plaintiff indicated that symptoms of depression had returned since
discontinuing Zoloft, and that he was having trouble sleeping with nightmares, “probably related
to Sustiva use.” A.R. 743. Plaintiff indicated that he had “problems with energy in the
morning,” feeling lethargic and like he did not want to get out of bed, and reported rectal pain
and blood after bowel movements. A.R. 743. Plaintiff was examined by Paul Layden, M.D.,
who indicated that Plaintiff was “in no apparent distress,” and was “alert,” “oriented,” “very
interactive,” and in “very good mood and affect.” A.R. 743. Dr. Layden prescribed a low dose

11

of Lexapro to treat Plaintiff’s depression, and changed his HIV therapy from Sustiva Truvada to
Atripla daily. A.R. 744.
On November 13, 2006, Darren C. Aboyoun, Ph.D., performed a psychological
consultative examination of Plaintiff on behalf of the State agency. A.R. 775-777. During that
visit, Plaintiff stated that he was “unable to function in a vocational position due to his frequent
illnesses, side effects from this medication, and concentration impairments.” A.R. 775. Dr.
Aboyoun described Plaintiff’s medical history as “significant for several hospitalizations,”
including being hospitalized for pneumonia and medical testing related to his HIV. A.R. 775.
Dr. Aboyoun reported that Plaintiff had been diagnosed with HIV in 1993 and Hepatitis B in
2001, and was currently taking Lexapro and Atripla. A.R. 775. Dr. Aboyoun made the
following observations regarding Plaintiff’s mental status:
The claimant described his mood as being depressed. He reported experiencing
symptoms of hopelessness, helplessness, and worthlessness. He stated that his depressed
mood has persisted every day for at least two weeks. The claimant reported experiencing
anhedonia. The claimant reported experiencing passive suicidal ideation, but denied
having any suicidal intent or plan. No history of suicide attempts was reported. No
history of manic behavior was reported. The claimant indicated that he has experienced
intermittent panic attacks that occur approximately once per week. His panic symptoms
include feelings of fearfulness, increased heart rate, increased breathing, concentration
problems, and an increase in perspiration. The claimant reported that he typically sleeps
approximately four to six hours per night. He reported having difficulties remaining
asleep. The claimant noted that he naps for approximately four hours per day. He
described his appetite as being poor, but was uncertain about experiencing recent weight
change. The claimant described his energy level as being decreased. He reported
experiencing significant problems with recent and remote memory as well as
concentration. The claimant denied engaging in current illicit drug or alcohol use. He
denied having any history of illicit drug use or prescription drug abuse. He denied having
any history of intravenous drug use. The claimant's history is significant for intermittent
bouts of alcohol abuse that occurred in the 1990s. The claimant's thought process was
coherent and goal directed with no evidence of hallucinations or delusions. His affect was
of full range and appropriate in speech and thought content. He was oriented to person,
place, and time. He was able to count to ten. He was able to complete simple calculations
accurately (e.g., 7*3, 17+ 12, 30/6). He was able to complete serial threes from 20 to two
without any errors. He was able to recall three of three objects immediately and two of
three objects after a five-minute delay. He was able to recall up to seven digits forward
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and five digits backward. His insight and judgment were fair. His estimated intelligence
is in the average range.
A.R. 775-76.
In regards to Plaintiff’s behavior, Dr. Aboyoun observed that Plaintiff was “cooperative
throughout the evaluation,” dressed neatly and casually, was well groomed, maintained
appropriate eye contact, and had a normal gait. A.R. 776. Additionally, Dr. Aboyoun indicated
that Plaintiff “appeared younger than his stated age,” spoke fluently and clearly, and was
expressive and receptive. A.R. 776. Dr. Aboyoun also made the following observations
regarding Plaintiff’s daily activities:
The claimant indicated that he typically awakens between 9 and 10 am. After he
awakens, he either talks with his parents or with his friends. The claimant stated that he
typically skips breakfast, watches television, and uses the computer in the morning. In the
afternoon, the claimant reportedly prepares a simple meal for himself. He stated that he
returns to bed to nap between 12 and 4pm. The claimant indicated that he sometimes
grooms himself upon awakening from his nap. After napping, the claimant typically eats
dinner with his family. He noted that he spends the evening visiting with friends. He
reported that he typically retires between 11 pm and 1 am. The claimant indicated that he
does not do any household chores consistently. He noted that he is financially dependent
upon his parents and that he does not have any source of income. He denied having any
problems with money management.
A.R. 776. Dr. Aboyoun continued:
The claimant is able to follow and understand simple directions. He is able to perform
simple tasks independently or with supervision. He has a limited ability to maintain
attention and concentration. He may have some difficulty with maintaining a regular
schedule. He is able to learn new tasks. His ability to perform complex tasks
independently is limited. His ability to make appropriate decisions is limited. He is able
to relate adequately to others. His ability to appropriately deal with stress is limited.
A.R. 776. In closing, Dr. Aboyoun recommended that Plaintiff seek counseling to address his
depression, but noted that Plaintiff had a “good” prognosis with appropriate treatment, and
would “be able to manage any funds that he is awarded.” A.R. 776-77.
On January 21, 2008, Plaintiff returned to the AAO and was examined by Dr. Yozviak.

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A.R. 827-29. According to Dr. Yozviak’s report, Plaintiff noted compliance with his
medications, and denied any side effects including fatigue, night sweats, weight loss, and
headaches. A.R. 827. Dr. Yozviak documented a normal physical examination, except for a
plantar wart on Plaintiff’s right foot, which Plaintiff indicated was causing him discomfort, and
for which he was referred to a dermatologist. A.R. 829-30. Plaintiff reported that he exercised
three times per week, consisting of cardio and weight lifting. A.R. 827. Dr. Yozviak refilled
Plaintiff’s ART therapy, noting he was “tolerating current antiretroviral therapy and
immunologic response.” A.R. 829. Dr. Yozviak also noted that Plaintiff’s Hepatitis B was
suppressed on Truvada, and that his weight was stable. A.R. 830. Dr. Yozviak indicated that
Plaintiff was “[a]lert and cooperative,” and exhibited a normal mood, attention span, and
concentration. A.R. 829.
Plaintiff had a follow up appointment with Dr. Yozviak on June 23, 2008, at which time
he reported general medication compliance with no side effects. A.R. 819-23. Plaintiff alerted
Dr. Yozviak to right shouldler pain that Plaintiff had suffered as a result of an exercise-induced
injury a few months earlier. A.R. 819. However, Plaintiff noted that he had rested his shoulder
over the past few weeks with some improvement. A.R. 819. A physical examination of
Plaintiff’s shoulder revealed a full range of motion, with tenderness to palpation of the right AC
joint. A.R. 822. The remainder of Plaintiff’s physical examination was normal. A.R. 822. Dr.
Yozviak indicated that Plaintiff’s viral load continued to rise, despite “excellent adherence” to
his medication regime, and thus, noted that Plaintiff’s medication would be monitored and might
require adjustment. A.R. 822. Dr. Yozviak also recommended that Plaintiff “return to work as
soon as possible to ensure financial stability later in life and also improve mood and outlook.”
A.R. 822.

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In follow up examinations with Dr. Yozviak in August and September of 2008, Dr.
Yozviak noted that Plaintiff had complied with his medications without side effects. A.R. 813,
815. During the August 12, 2008 visit, Plaintiff indicated that his shoulder pain had persisted,
despite a cortisone injection, A.R. 813, and complained of urinary frequency and diarrhea. A.R.
814. During the September 11, 2008 visit, Plaintiff reported urinary frequency without fever,
dysuria, and fatigue. A.R. 815. Plaintiff had no other complaints, and Dr. Yozviak continued
Plaintiff’s medication and noted that he would recheck Plaintiff’s viral load. A.R. 828.
2.

State Agency Assessments

On October 29, 2002, A.M. Pirone, M.D., a State agency physician, reviewed Plaintiff’s
medical records and rendered an opinion as to Plaintiff’s functional capacity. A.R. 495-513. In
that regard, Dr. Pirone noted that Plaintiff could occasionally lift up to fifty pounds, frequently
lift up to twenty-five pounds, stand and/or walk (with normal breaks) for a total of approximately
six hours in an eight-hour workday, sit (with normal breaks) for a total of about six hours in an
eight-hour workday, and can push and/or pull objects. A.R. 496. In reaching those conclusions,
Dr. Pirone explained that Plaintiff was a twenty-nine-year-old man alleging disability because of
HIV, Hepatitis B, and anemia, who had stated that his medications caused fatigue, but had not
had any hospitalizations, had no abdominal symptoms, and maintained a stable weight with a
healthy appetite. A.R. 496. Dr. Pirone did not note any ostural limitations, manipulative
limitations, visual limitations, communicative limitations, or environmental limitations. A.R.
497-99.
Plaintiff was also evaluated in October 2002 by D. Fugate, Ph.D. a State agency
psychologist. A.R. 503-18. In evaluating Plaintiff’s mental residual functional capacity over a
normal workday and workweek, Dr. Fugate noted that Plaintiff was not significantly limited in

15

the following areas: remembering locations and work-like procedures; understanding and
remembering very short and simple instructions; carrying out very short and simple instructions;
performing activities within a schedule, maintaining regular attendance, and being punctual;
sustaining an ordinary routine without special supervision; working in coordination with or in
proximity to others without being distracted; making simple work-related decisions; asking
simple questions or requesting assistance; accepting instructions and responding appropriately to
criticism from supervisors; getting along with coworkers or peers; maintaining socially
appropriate behavior and adhering to basic standards of neatness and cleanliness; being aware of
hazards and taking appropriate precautions; traveling in unfamiliar places or using public
transportation; and setting realistic goals or making plans indecently of others. A.R. 503-504.
Dr. Fugate noted that Plaintiff was moderately limited in the following areas: the ability to
understand and remember detailed instructions; the ability to carry out detailed instructions; the
ability to maintain attention and concentration for extended periods; 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; the
ability to interact appropriately with the general public; and the ability to respond appropriately
to changes in the work setting. A.R. 503-504. Dr. Fugate rated Plaintiff’s functional limitations
as follows: mild restriction of activities of daily living; moderate difficulty maintaining social
functioning; moderate difficulty maintaining concentration, persistence, and pace; and no
episodes of extended periods of compensation. A.R. 517. Dr. Fugate concluded that Plaintiff
“appears capable of performing simple, repetitive, work-related tasks.” A.R. 505.
On December 12, 2006, Frances E. Hecker, a State agency psychologist, reviewed
Plaintiff’s records and examined Plaintiff. A.R. 778-95. Dr. Hecker found that Plaintiff suffered

16

from major depressive disorder and panic disorder. A.R. 781-83. Dr. Hecker also rated
Plaintiff’s functional limitations as follows: moderate restriction of activities of daily living;
mild difficulty in maintaining social functioning; moderate difficulty in maintaining
concentration, persistence, or pace; and no extended episodes of decompensation. A.R. 788. In
regards to Plaintiff’s functional capacity, Dr. Hecker found that Plaintiff demonstrated a
depressed mood, anhedonia, passive suicidal ideation without intent, poor sleep and appetite, low
energy intermittent panic attacks, and adequate memory and concentration. A.R. 794. Dr.
Hecker concluded that, “from a pysch perspective, [Plaintiff] is able to maintain pace,
persistence and concentration in simple routine tasks,” and was “able to relate appropriately to
coworkers and the public.” A.R. 794.
C.

Review of Testimonial Record

On April 9, 2012 ALJ Rubini held a hearing in Plaintiff’s case, at which time Plaintiff
and vocational expert Sherry L. Kristal Turetzky (“VE Turetzky”) testified. A.R. 869. For the
sake of completeness, this section will also examine prior testimony given in this case.
1.

Plaintiff's Testimony

Plaintiff testified that he was thirty-eight years old at the time of the hearing, and that he
was single with no children. A.R. 869. Plaintiff stated that he had completed high school, and,
upon graduation, attended a technical school for a year to pursue a career in the music industry.
A.R. 880-82. Plaintiff testified that he had an active driver’s license, but that his parents drove
him to the hearing, and that he only drives locally due to an inability to concentrate on the road.
A.R. 870-71. In that regard, Plaintiff explained that he would not have driven to the hearing
unless it was an emergency. A.R. 872. Additionally, Plaintiff stated that his inability to

17

concentrate extends beyond driving, as he often forgets tasks that people ask him to perform.
A.R. 873.
In terms of his alleged disability, Plaintiff testified that he had contracted HIV
approximately twenty years prior to the date of the hearing, and that he consumes various
medications, including Atripla, which cause serious side effects. A.R. 871. In particular,
Plaintiff testified that Atripla causes hallucinatory dreams and thoughts, depression, and nausea,
and prevents him from sleeping well. A.R. 871-72. Plaintiff explained his condition as follows:
“And I feel, the only way I could describe it is I feel most of the time like I have the flu. So I feel
sick more often than not. And I'm tired during the day because the medicine that I take causes
nightmares, so I don't sleep very good at night.” A.R. 872. Plaintiff stated that he feels fatigued
during the day, with flu-like symptoms, including congestion, headaches, diarrhea, nausea,
stomach aches, and tiredness. A.R. 872. He also testified to having muscle aches and pains
throughout his body. A.R. 872.
When prompted to recount the symptoms that he experiences on a daily basis, Plaintiff
explained, “I feel exhausted all the time, tired, headaches, stomach aches, nausea, diarrhea,
anxiety, depression. My body hurts, so I don't know if you'd call that, you know, muscle or bone
or whatever.” A.R. 896. Plaintiff also cited a need to use the bathroom frequently, i.e.,
approximately once per hour and several times at night. A.R. 896. Plaintiff stated that he feels
uncomfortable leaving his house because he has frequent “bathroom accidents.” A.R. 900.
Plaintiff reported that he often feels pain in his legs and lower back, and explained that he would
not be able to stand or walk for three or four hours a day, even with breaks. A.R. 896-97.
Plaintiff also explained feeling discomfort while sitting. A.R. 897.

18

Plaintiff testified that he last worked as a customer service representative in 2000,
performing data entry, communicating over the telephone and through a facsimile machine,
conducting routine office tasks, and handling products in the warehouse. A.R. 873-75.
Plaintiff’s duties consisted primarily of sitting, but the warehouse operations required him to
stand and lift packages weighing twenty-five to forty pounds. A.R. 875. Plaintiff testified that
prior to stopping work, he began experiencing many of the symptoms that he indicated he was
suffering from at the time of the hearing, which caused him difficulty at work. A.R. 876.
Plaintiff testified that he began making mistakes at work, and was showing up late or missing
days of work because he felt ill. A.R. 876-77.
Plaintiff explained that since he stopped working in 2000, he has lived with his parents,
who pay for his food, bills, and transportation. A.R. 879. Plaintiff does not pay rent to his
parents. A.R. 879-80. Plaintiff explained that he receives food stamps, which he gives to his
parents. A.R. 879-80. Plaintiff testified that he experiences anxiety when he leaves his home,
and thus, does not like to do so. A.R. 888. Plaintiff indicated that he does attend church with his
family, approximately once per month. A.R. 890-91. Plaintiff also stated that he sees one of his
friends four to five times per year, and speaks to several others on the phone. A.R. 891-92.
Plaintiff stated that he uses a home computer, typically to read the news. A.R. 892. He
explained that he does not assist his parents with any housework, cooking, laundry, or yard work,
and does not do any household shopping. A.R. 892-93. Plaintiff testified that he no longer reads
books, because he is unable to recall what he has read after finishing a page. A.R. 898. Plaintiff
stated that his last romantic interest occurred more than ten years prior to the hearing. A.R. 901.
2.

Testimony of the Vocational Experts

19

Sherry L. Kristal Turetzky testified as the vocational expert (“VE Turetzky”) at the
hearings held before ALJ Rubini on April 9, 2012 and April 10, 2013. A.R. 901, 915-944. VE
Turetzky placed Plaintiff’s prior work experience under several different classifications. First,
VE Turetzky testified that Plaintiff’s former job as a customer service representative, engaging
with customers over the phone and through the computer, is a “semi-skilled,” “sedentary”
position, associated with DOT 249.362-026. A.R. 904. Second, VE Turetzky classified
Plaintiff’s experience working in the warehouse as a store laborer as a “medium” and “unskilled”
position, associated with DOT 922.687-058. A.R. 904. Third, VE Turetzky classified Plaintiff’s
work experience as a waiter as “entry-level semi-skilled,” corresponding to DOT 311.477-030,
because Plaintiff was required to lift up to fifty pounds, i.e., a “medium exertional level.” A.R.
904. Finally, VE Turetzky testified that Plaintiff’s experience as a counter attendant at a coffee
shop was a “light” and “unskilled” position, associated with DOT 311.477-014. A.R. 904-05.
VE Turetzky was asked several hypotheticals, based on Plaintiffs functional limitations,
and concluded that Plaintiff could perform the following unskilled jobs, involving medium, light,
or sedentary work, which exist in significant numbers in the national economy: industrial
sweeper and cleaner, DOT 389.683-010 (1,000,000 of these medium exertion jobs exist
nationally, with 2,000 existing regionally); laundry laborer, DOT 381.687-018 (mediumexertion; 100,000 nationally; 1,000 regionally); cleaner and housekeeping, DOT 323.687-014
(medium-exertion; 200,000 nationally; 500 regionally); grinder operator, DOT 603.685-058
(light-exertion; 70,000 nationally; 200 regionally); and cable worker, DOT 739.687-182
(sedentary-exertion; 50,000 nationally; 200 regionally). A.R. 906-11.
VE Turetzky continued her testimony on April 10, 2013. A.R. 915-944. In responding to
various hypotheticals regarding a person’s ability to “maintain a regular schedule”, VE Turetzky

20

explained that “the maximum tolerance for absenteeism is typically no more than one day per
month,” and thus, a person who would miss more than one day per month is typically unable to
“sustain work over the long run.” A.R. 919. In terms of maintaining concentration and
attention, VE Turetzky explained that a person whose attention lapses occasionally can perform
“simple, routine, repetitive unskilled work.” A.R. 921. By contrast, in regards to more frequent
lapses in attention, VE Turetzky explained as follows:
If it starts exceeding, if one is – if it's framed in terms of being off task more than say 10,
12, 15 percent of the time, you wouldn't be able to keep up with productivity
expectations. That's a -- that is an important factor for keeping a job. If you're not able t
keep up with productivity expectations because you're just-- your mind is wandering that
much, you're off task for whatever reason, pain, emotions, whatever, you're not going to
be able to keep up with the job and you're not going to be able to keep the job. You could
be making too many mistakes. You'll be missing too much.
A.R. 921-22. Indeed, VE Turetzky testified that person who is “off task” more than ten percent
on a sustained basis would not be able to sustain a job. A.R. 922. Thus, in summary, VE
Turetzky testified that a person who was either off task more than ten percent of the time, or
missed more than one day of work per month, would not be able to sustain any type of job. A.R.
927-28.
Additionally, prior to the most recent hearings before ALJ Rubini, two other vocational
experts have testified in Plaintiff’s case before other ALJs. First, on February 19, 2004,
vocational expert Rocco Meola (“VE Meola”) classified Plaintiff’s former job, as a customer
service representative, as unskilled “sedentary work,” involving some walking. A.R. 577.
VE Meola was provided with a hypothetical scenario of a person who was restricted to
sedentary work, and had a mild restriction and fatigue that would affect the person’s ability to
maintain concentration and persistence of pace. A.R. 578. VE Meola opined that there would be
jobs available for such a person, including talking to customers and taking orders over the phone,

21

including jobs as a “ticketer,” “parts sorter,” [or] “order clerk.” A.R. 578. Regionally, VE
Meola opined that aggregate number of such jobs ranged between 17 and 1,700, with 30,000 jobs
existing on a national basis. A.R. 578. VE Meola opined that even if the hypothetical person’s
restriction was upgraded from mild to moderate, 1 due to fatigue and ability to maintain
concentration and persistence of pace, that person could perform those same jobs. A.R. 578.
Second, on September 13, 2010, vocational expert Richard J. Baine (“VE Baine”),
testified at the hearing before ALJ George C. Yatron. A.R. 848-866. VE Baine classified
Plaintiff’s prior work experience as both a customer service representative and a waiter as
“light,” “semi-skilled,” associated with DOT 239.362-014, based on the fact that Plaintiff had to
perform data entry, packing, and shipping, as well as controlling supplies. A.R. 848-49.
ALJ Yatron then posed the following hypothetical to VE Baine:
I would like you to consider hypothetically an individual 37 years of age, with training,
education, and experience as in the present case, who is able to lift 20 pounds, stand and
walk six hours in an eight hour day, sit for six or more eight hours in an eight hour day.
Nonexertional limitation, no detailed instructions. Given those facts and circumstances, is
there any work the hypothetical individual could perform on a sustained basis, including
the past work of the Claimant.
A.R. 849-50. VE Baine responded as follows:
Based on the limitation of no detailed work, I would be of the opinion that this gentleman
would not be able to perform either of his past work activities, including the waitering
activities, because although it's listed as a vocational preparation of three, a waiter is
responsible for taking care of many customers, keeping orders straight, and in some cases
taking change, or monies, or credit cards, making sure things are accurate. I think those
types of activities would be not warranted for someone with the hypothetical that is
given. However, there are light duty unskilled work activities that would be appropriate,
including those of being a packer. And I'm using numbers for the Allentown-BethlehemEaston labor market because the Phillipsburg, New Jersey area is considered part of that
area geographically. And for packers in the Allentown area you have 1200 packers, light
duty, unskilled, 300,000 nationally. He would be able to do a position such as a, unskilled
1

The VE explained that a “moderate” restriction is defined as someone working at 60 to 65
percent of the rate of a typical worker. A.R. 579. By contrast, someone with a “mild” restriction
is restricted 10 to 15 percent of the time. A.R. 579.
22

inspectors. In the Allentown region, there's 1,000, 289,000 nationally. And there would
be unskilled work activities such as attendants. And in the Allentown region there's 1800,
300,000 nationally.
A.R. 850-51. VE Baine testified further that his testimony was consistent with the Dictionary of
Occupational Titles. A.R. 851.
VE Baine also testified as to the requisite ability to maintain attention, persistence, and
pace in the light-work, unskilled jobs that he outlined for ALJ Yatron. A.R. 855. In that regard,
VE Baine stated that an individual who had a moderate limitation in maintaining attention, for
fifteen minutes each hour, would be unable to meet the production standard, and thus, would be
unemployable in such a position. A.R. 856. Additionally, VE Baine testified that an individual
who had a moderate limitation in his ability to complete a normal work day or work week
without interruptions from psychologically based symptoms, or to perform at a persistent pace
without an unreasonable number and length of rest periods, would be at risk for maintaining
employment with those types of restrictions.” A.R. 858-59. However, VE Baine noted that such
a person’s capability to work is ultimately the ALJ’s determination. A.R. 859.
3.

Medical Expert Testimony

Dr. Martin Fethsner testified as an independent medical expert at the hearing held before
ALJ O’Leary on February 19, 2004. A.R. 555. Dr. Fethsner testified that Plaintiff was a thirtyyear-old man who had been HIV positive since 1992, and has had anemia in the past. A.R. 55556. However, Dr. Fethsner stated that Plaintiff had been taking Epogen to treat the anemia,
which had kept it “under control very nicely.” A.R. 556.
Dr. Fethsner noted that Plaintiff’s medical records seemed to contradict his statements as
to suffering from diarrhea and night sweats, as neither of those symptoms had been marked in his
physician visits. A.R. 556. Dr. Fethsner confirmed that Plaintiff’s weight had fallen below 140

23

pounds in October of 2000, reaching a low of 134 pounds. A.R. 556. Subsequently, Plaintiff
was placed on medication and his weight went up. A.R. 556. Dr. Fethsner indicated that
Plaintiff’s most recent weight, taken in October of 2003, was 159 pounds. A.R. 557. Dr.
Fethsner testified that Plaintiff exhibited “no evidence” of a major opportunistic infection in the
past, but that Plaintiff was positive for Hepatitis B. A.R. 557.
In terms of Plaintiff’s residual functional capacity, Dr. Fethsner opined that, taking into
account Plaintiff’s anemia, white blood cell count, and CD4 count, as well as the general
weakness that would occur given Plaintiff’s condition, Plaintiff “would be limited to sedentary
activity at this point.” A.R. 557-58. Dr. Fethsner testified that Plaintiff could experience
tiredness and fatigue as a result of his medication regime, but that he considered these factors in
rendering his opinion as to Plaintiff’s residual functional capacity. A.R. 558-60. Dr. Fethsner
testified further that the average person taking Plaintiff’s medications would be able to perform
sedentary work. A.R. 566. Dr. Fethsner stated that he disagreed with Dr. Bellman’s opinion that
Plaintiff was “disabled as far as Social Security criteria.” A.R. 575.
4.

Affidavit of Shirley Brando

On May 1, 2002, Shirley Brando, the mother of Plaintiff, submitted an affidavit in
support of Plaintiff’s application for disability benefits. A.R. 327-28. Mrs. Brando testified that
Plaintiff was diagnosed with HIV in 1994, and that he continued working until 1999, when he
was no longer able. A.R. 327. Mrs. Brando noted that Plaintiff had lost several jobs due to
absences caused by his illness, and “had lost a lot of weight.” A.R. 327. She testified further
that Plaintiff “has always lived with us.” A.R. 327.
In terms of Plaintiff’s treatment regimen, Mrs. Brando testified that Plaintiff treated
initially with Dr. Bellman, who prescribed him Sustiva, Zerit, and Epivir. A.R. 327. Mrs.

24

Brando stated that the toxicity of the medications adversely affected Plaintiff’s liver, causing him
to develop Hepatitis B, and resulting in Dr. Bellman swapping out Zerit with AZT. A.R. 327-28.
Mrs. Brando testified that Plaintiff suffers from nightmares, night sweats, depression, and nausea
as a result of taking Sustiva. A.R. 328. Mrs. Brando also stated that as a result of taking his
medication, Plaintiff is “constantly fatigued and depressed and has no appetite.” A.R. 328.
D.

The ALJ’s Findings

On June 28, 2013, ALJ Rubini issued a written decision regarding Plaintiff’s application
for disability benefits. A.R. 595-609. In determining Plaintiff’s eligibility for disability benefits,
ALJ Rubini applied the standard five-step sequential evaluation process for determining whether
an individual is disabled. See 20 C.F.R. § 404.1520.
At step one, ALJ Rubini found that Plaintiff had not engaged in substantial gainful
activity since July 1, 2000, the alleged onset date, through the date of his decision. A.R. 600.
At step two, ALJ Rubini found that Plaintiff had the following severe impairments:
“HIV infection, Hepatitis B, and depression.” A.R. 601.
At step three, ALJ Rubini 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 under that Act that would qualify for disability benefits. A.R. 601-04. ALJ Rubini
began his evaluation of step three by chronicling Plaintiff’s medical evidence, noting that his
decision adopted the summary of the medical evidence contained in the ALJ Yatron’s prior
decision. A.R. 601-603. ALJ Rubini noted that an independent medical expert, Dr. Martin
Fethsner, testified, in the 2004 hearing before ALJ O’Leary, that “claimant’s impairments did not
meet or equal any listed impairment,” and found that Plaintiff had not “submitted any additional

25

medical evidence, to change, or contradict, the credible testimony of the medical expert.” A.R.
601.
ALJ Rubini found that the medical evidence obtained since the 2004 hearing showed that
Plaintiff began treatment at the AAO in July 2006. A.R. 601. ALJ Rubini noted that Plaintiff
“continued on a regimen of AZT, 3TC, and efavirenz, and reported no significant side-effects,”
other than a disruption of his sleep schedule. A.R. 601. ALJ Rubini also indicated that Plaintiff
had started treatment for Hepatitis B approximately one year prior to visiting the AAO, and that
Plaintiff complained of depression, anhedonia, decreased libido, and an increase in fatigue. A.R.
601. ALJ Rubini explained that Plaintiff denied suicidal or homicidal ideation, and had taken
Lexapro and Zoloft to combat his depression, reporting improvement after taking Zoloft. A.R.
601. ALJ Rubini also documented several ailments over the course of Plaintiff’s treatment,
including a viral respiratory infection in August 2006, a plantar wart in January 2008, and right
shoulder discomfort in June 2008. A.R. 601-02.
After conducting a thorough review of Plaintiff’s medical record, ALJ Rubini found that
Plaintiff adduced no evidence to warrant a finding that he met or medically equaled Listing 14.08
regarding HIV. A.R. 602. Similarly, ALJ Rubini found that Plaintiff “did not have liver disease,
meeting the criteria of Listing 5.05,” and that the severity of Plaintiff's mental impairment did
not meet or medically equal the criteria of listing 12.04. A.R. 602-03.
In making this step three determination, ALJ Rubini considered whether the “paragraph
B” criteria were satisfied, i.e., whether the impairments alleged resulted in at least two of the
following: marked restriction of activities of daily living; marked difficulties in maintaining
social functioning; marked difficulties in maintaining concentration, persistence, or pace; or
repeated episodes of decompensation, each of extended duration. A.R. 603. A limitation is

26

“marked” if it is more than moderate, but less than extreme. A.R. 603. Repeated episodes of
decompensation, each of extended duration, means three episodes within one year, or an average
of once every four months, each lasting for at least two weeks. A.R. 603.
ALJ Rubini found that Plaintiff has a “mild restriction” in activities of daily living. A.R.
603. In that regard, ALJ Rubini noted that Plaintiff currently lives with his parents, but found
that “there is no indication that he cannot attend to his personal needs. He testified that he
spends the day relaxing, goes on the computer to read news, and watches television for about an
hour a day.” A.R. 603. ALJ Rubini also placed emphasis on the fact that Plaintiff had testified,
during a psychological evaluation in November 2006, that he watched television and used the
computer in the morning, “fixed simple meals for himself, took a nap in the afternoon, ate dinner
with his family, and then visited with friends in the evening.” A.R. 603. ALJ Rubini noted that
Plaintiff denied having issues with money management, although he was financially dependent
on his parents due to his lack of income. AR. 603.
Similarly, ALJ Rubini found that Plaintiff had only “mild difficulties” in social
functioning. A.R. 603. To that end, ALJ Rubini reasoned that Plaintiff testified that he sees a
friend a few times a year, goes to church with his parents once a month, goes to the store with his
parents a few times a year, and, at one point a few years prior to the date last insured, had told an
examining psychologist that he “regularly spends the evening visiting with friends.” A.R. 603.
Accordingly, ALJ Rubini concluded that there was “no evidence that [Plaintiff] cannot interact
appropriately with other people, in routine, public situations.” A.R. 603-04.
With regard to concentration, persistence, and pace, ALJ Rubini found, based upon
Plaintiff’s mental status evaluations, that Plaintiff had “moderate difficulties.” A.R. 604. ALJ
Rubini noted that Plaintiff “had not submitted any evidence of psychiatric evaluation or

27

treatment for the past several years.” A.R. 604. Finally, ALJ Rubini found that Plaintiff had
“experienced no episodes of decompensation, which have been of an extended duration.” A.R.
604. Thus, ALJ Rubini concluded that “[b]ecause the claimant's mental impairment does not
cause at least two ‘marked’ limitations or one ‘marked’ limitation and ‘repeated’ episodes of
decompensation, each of extended duration, the ‘paragraph B’ criteria are not satisfied.” A.R.
604. ALJ Rubini also considered the “paragraph C” criteria of the Listings of Impairments,
pursuant to SSR 96-8p, finding that the evidence failed to establish the presence of the
“paragraph C” criteria. A.R. 604.
At step four, ALJ Rubini found that Plaintiff had the residual functional capacity to
perform light work as defined in 20 CFR §§ 404.1567(b) and 416.967(b), except limited to jobs
which do not involve complex instructions. A.R. 604. In reaching this RFC determination, ALJ
Rubini considered Plaintiff’s statements concerning his own limitations, relevant medical
evidence concerning both his alleged physical and mental impairments, and medical source
opinion evidence. A.R. 604-06.
ALJ Rubini noted initially that Plaintiff’s alleged symptoms and limitations consisted
primarily of various side-effects from his medications, including feeling “tired” and “like he has
the flu,” as well as lower back and leg pain, difficulty concentrating, anxiety, and depression.
A.R. 605. ALJ Rubini then found that while Plaintiff’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms; . . . [Plaintiff’s] statements
concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely
credible,” since they could not be corroborated by the relevant medical evidence. A.R. 605.
ALJ Rubini discredited the opinion evidence of Dr. Bellman, Plaintiff’s prior treating
physician, that Plaintiff was disabled, on the grounds that Dr. Bellman’s opinion was not

28

supported by his own treatment records, or records from other treating sources. 2 A.R. 605-06.
In rendering that opinion, Dr. Bellman indicated “that he had treated the claimant for
complications of AIDS, including anemia, neutropenia, recurrent infections, depression, and
chronic Hepatitis B,” and stated that Plaintiff “required weekly injections of growth factors to
maintain his white and red cells at a safe range, and required frequent monitoring for toxicity and
the determination of efficacy of his medication.” A.R. 605. ALJ Rubini found that Dr.
Bellman’s opinion was not supported by his own treatment records, as the majority of Plaintiff’s
laboratory results “were within normal levels, including red blood cells,” and Plaintiff’s records
did “not show that the claimant had persistent anemia or immune system compromise of a degree
that is associated with opportunistic infections or other HIV-related complications.” A.R. 605.
Indeed, ALJ Rubini noted that Plaintiff’s “[s]ubsequent lab studies show that his viral load was
low, and his CD4 count within normal range.” A.R. 605.
Conversely, ALJ Rubini assigned significant weight to the opinions of Dr. Yozviak and a
State agency medical consultant 3; opinions which ALJ Rubini concluded undermined the
opinion of Dr. Bellman. A.R. 605-06. Specifically, ALJ Rubini noted that on June 23, 2008, Dr.
Yozviak recommended that Plaintiff “return to work as soon as possible to ensure financial
stability later in life, and also improve mood and outlook.” A.R. 605. ALJ Rubini found that
this recommendation was “consistent with Dr. Yozviak’s own treatment records, which show
that [Plaintiff’s] condition is stable; he has no significant HIV-related complications; his CD4

2

In rejecting Dr. Bellman’s opinion, ALJ Rubini noted that Dr. Bellman failed to specify or
explain any exertional or non-exertional limitations. A.R. 606.
3
ALJ Rubini did not identify by name the State agency medical consultant that conducted the
February 28, 2001 evaluation of Plaintiff, and the Court is unable to discern the identity of that
individual from the record. A.R. 269-76.
29

count was well above the level associated with an increased risk of opportunistic infection, and,
in fact, his viral load was at times, undetectable.” A.R. 605-06.
ALJ Rubini also assigned significant weight to a physical residual capacity assessment
that was completed by a medical consultant for the State agency on February 28, 2001. A.R.
606. In that assessment, the State consultant concluded that Plaintiff:
[C]ould lift and carry 20 pounds occasionally and 10 pounds frequently; could stand
and/or walk about six hours in an eight-hour workday; and could sit for about six hours,
in an eight-hour workday; his ability to push and pull was unlimited, for hand and foot
controls; he had no postural, manipulative, visual, communicative, or environmental
limitations.
A.R. 606, 270-76.
Finally, ALJ Rubini analyzed the opinion of Darren C. Aboyoun, Ph.D., a psychologist
who conducted a psychiatric evaluation of Plaintiff in November 2006. Dr. Aboyoun concluded
that Plaintiff was able follow and understand simple instructions, perform simple tasks
independently or with supervision, relate adequately to others, and learn new tasks. A.R. 606.
Dr. Aboyoun also found that Plaintiff “might have some difficulty maintaining a regular
schedule,” and that Plaintiff had a limited ability to maintain attention and concentration,
perform new complex tasks independently, make appropriate decisions, and deal with stress.
A.R. 606. ALJ Rubini noted that there was no evidence that Plaintiff followed Dr. Aboyoun’s
recommendation to pursue counseling, that Plaintiff has ever been under the regular treatment of
a psychologist or psychiatrist, or that Plaintiff had been treated for a panic or anxiety disorder.
A.R. 606. Accordingly, ALJ Rubini found that Plaintiff’s limitations “do not appear to preclude
work involving relatively simple instructions or routine/repetitive work.” A.R. 606.
ALJ Rubini found that Plaintiff is capable of performing past relevant work as either: (1)
a customer service associate, which is a sedentary, semi-skilled position associated with DOT

30

249.362-026; or (2) a counter clerk, which is a light, unskilled position associated with DOT
311.477-014. A.R. 607. In that regard, ALJ Rubini considered VE Turetzky’s testimony that a
person with a marked inability to focus could not keep up with the workload associated with
those positions, but a person with a moderate limitation on the inability to focus could. A.R.
607. ALJ Rubini then compared Plaintiff’s RFC to the physical and mental demands of those
positions, and concluded that Plaintiff would be able to perform such work “as generally
performed.” A.R. 607.
Alternatively, at step five, despite his prior determination that Plaintiff retained the RFC
to perform his past relevant work, ALJ Rubini found that, taking into consideration Plaintiff’s
age, education, work experience, and RFC, “there are other jobs existing in the national economy
that he is also able to perform.” A.R. 607-08. In reaching this determination, ALJ Rubini relied
on the testimony of VE Turetzky, who was asked to assess a hypothetical claimant who “could
not understand, remember, and carry out complex or detailed instruction, and could only perform
simple instructions or routine/repetitive work; could have limited contact with the public; and
had difficulty maintaining concentration and attention for long periods.” A.R. 608. VE Turetzky
testified that such an individual could “could perform jobs at the medium exertional level,
including: industrial sweeper (DOT code 389.683-010, 2,000 jobs nationally, I ,000,000 jobs
nationally); laundry laborer (DOT code 361.687-018, 1,000 jobs locally, 100,000 jobs
nationally).” A.R. 608. VE Turetzky also testified that, “assuming that the claimant was limited
to light work, he could perform jobs such as office cleaner (DOT code 323.687-014, 500 jobs
locally, and 200,000 jobs nationally); and, at the sedentary level, he could perform a job as a
table worker.” A.R. 608. ALJ Rubini concluded that VE Turetzky’s testimony was consistent
with the information contained in the Dictionary of Occupational Titles. A.R. 608. Therefore,

31

ALJ Rubini found that Plaintiff “is capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.” A.R. 608.
Accordingly, the ALJ concluded that “[t]he claimant has not been under a disability, as
defined in the Social Security Act, from July 1, 2000, through the date of this decision.” A.R.
609.
II.

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 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),
cert. denied, 507 U.S. 924 (1993). Accordingly, even if there is contrary evidence in the record

32

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).
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 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. at § 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.
at § 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

33

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. at § 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. at §
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” (“RFC”) 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

34

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.
III.

PLAINTIFF’S ARGUMENTS ON APPEAL
Plaintiff raises three arguments on appeal as to why the ALJ’s disability determinations

were unsupported by substantial credible evidence. First, Plaintiff argues that ALJ Rubini’s
assessment of Plaintiff’s RFC lacks an adequate evidentiary foundation. Second, Plaintiff also
argues that ALJ Rubini erred at step four by determining that, given Plaintiff’s RFC, Plaintiff could
perform his past relevant work. Third, Plaintiff argues that ALJ Rubini erred in finding that, given
Plaintiff’s RFC, Plaintiff could perform other work available in the national economy. The Court
addresses each argument in turn.
A.

Determination of Residual Functional Capacity

At step four, ALJ Rubini determined that Plaintiff had the RFC to “perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except limited to jobs which do not involve
complex job instructions.” A.R. 604. Plaintiff challenges ALJ Rubini’s RFC findings, arguing
that ALJ Rubini’s RFC determination was not based on substantial evidence in the record. Pl.’s
Br. at 19-26. Specifically, he argues that: (1) ALJ Rubini failed to articulate a sufficient basis for
his RFC assessment; (2) ALJ Rubini improperly weighed the medical opinion evidence; (3) ALJ
Rubini improperly evaluated Plaintiff’s credibility; and (4) ALJ Rubini failed to address all
probative evidence in rendering his RFC determination.
1.

Substantial Evidence Supports ALJ Rubini’s RFC Assessment

35

Plaintiff challenges both the physical and mental components of ALJ Rubini’s RFC
assessment, arguing that ALJ did not sufficiently articulate a rationale for his RFC assessment.
The ALJ is responsible for making the ultimate determination of an individual’s RFC. 20
C.F.R. § 404.1546; see Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“The
ALJ—not treating or examining physicians or State agency consultants—must make the ultimate
disability and RFC determinations.”). “[I]n making a residual functional capacity determination,
the ALJ must consider all evidence before him,” and, 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., 220 F.3d 112, 121 (3d Cir. 2000);
see Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981); see also Goldberg v. Colvin, No. 13-6055,
2015 U.S. Dist. LEXIS 31012, at *24-25 (D.N.J. Mar. 13, 2015). “In the absence of such an
indication, the reviewing court cannot tell if significant probative evidence was not credited or
simply ignored.” Cotter, 642 F.2d at 705. For example, in Burnett, the Third Circuit determined
that remand was warranted, because the ALJ “fail[ed] to consider and explain his reasons for
discounting all of the pertinent evidence before him in making his residual functional capacity
determination.” 220 F.3d at 121. “Where the ALJ's findings of fact are supported by substantial
evidence, [district courts] are bound by those findings, even if [the courts] would have decided the
factual inquiry differently.” Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 292 (3rd Cir. 2012)
(internal quotation marks and citation omitted).
Here, in determining Plaintiff’s RFC, ALJ Rubini satisfied his obligations to consider all
relevant evidence, and to provide reasoning for accepting or rejecting certain evidence. In
assessing Plaintiff’s RFC, ALJ Rubini considered the objective medical evidence and Plaintiff’s
subjective complaints. As mandated by Cotter, ALJ Rubini identified the medical and opinion

36

evidence that supported his assessment that Plaintiff was capable of performing “light work,”
limited to jobs that do not involve complex job instructions. Specifically, ALJ Rubini considered
the following evidence: (1) Plaintiff’s statements concerning the intensity, persistence, and
limiting effects of his alleged symptoms and limitations, including Plaintiff’s testimony that he
“has serious side-effects from medications, he always feels tired and like he has the flu, and he has
lower back pain,” as well as Plaintiff’s testimony that he has “difficulty concentrating” and suffers
from depression and anxiety, A.R. 605; (2) the medical opinion of Dr. Bellman that Plaintiff was
“disabled due to AIDS,” A.R. 190, 605; (3) Dr. Yozviak’s medical opinion and treatment records,
which indicated that Plaintiff’s condition was “stable,” and included a recommendation that
Plaintiff return to work, A.R. 605, 822, 830; (4) the treatment records of the various treating
sources in this case; (5) the opinion of a medical consultant for the State agency, indicating that
Plaintiff could “lift and carry 20 pounds occasionally and 10 pounds frequently; could stand and/or
walk about six hours in an eight-hour workday; and could sit for about six hours, in an eight-hour
workday; his ability to push and pull was unlimited, for hand and foot controls; he had no postural,
manipulative, visual, communicative, or environmental limitations,” A.R. 606; and (6) the opinion
of examining psychologist Dr. Aboyoun, who concluded, inter alia, that Plaintiff “could follow
and understand simple instructions, and could perform simple tasks independently, or with
supervision,” but had a limited ability to maintain attention and concentration, and might have
some difficulty maintaining a regular schedule,” A.R. 606, 775-76.
ALJ Rubini engaged in a thorough analysis of those opinions, comparing them to the
relevant treatment records. In so doing, he provided adequate reasons for accepting certain medical
opinions, while discrediting others. Importantly, ALJ Rubini indicated that Dr. Bellman’s opinion
that Plaintiff was “disabled due to AIDS” was inconsistent with Plaintiff’s treatment records,

37

wherein Plaintiff generally reported feeling well, A.R. 135, 210-11, 222-23, 606, and which
showed that Plaintiff’s HIV, Hepatitis B, and anemia were stable and well-controlled. A.R. 135,
222-23, 393, 606, 753, 830. Accordingly, the Court finds that ALJ Rubini supported his decision
with a “clear and satisfactory explication of the basis on which its rests.” Cotter, 642 F.2d at 705.
2.

ALJ Rubini Properly Weighed the Medical Opinion Evidence

Next, Plaintiff contends that ALJ Rubini improperly weighed the medical opinion evidence
in formulating Plaintiff’s RFC. Pl.’s Br. at 15-16, 24-26. The Court disagrees.
Under 20 C.F.R. § 404.1527(c)(2), a treating source's opinion will be given 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 [the] case record.” Several
factors may also be used to determine the weight given to a medical opinion including: the length
of the treatment relationship; the nature and extent of the treatment relationship; supportability by
the medical evidence; and consistency with the record as a whole. Id. If a treating source's opinion
conflicts with that of a non-treating source, “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 source's opinion, rather than “credibility judgments, speculation or lay opinion.” Id. An
ALJ is required to provide “an explanation of the reasoning behind [his] conclusions,” including
“reason(s) for discounting rejected evidence.” Fargnoli v. Halter, 247 F.3d 34, 43 (3d. Cir. 2001).
In this case, Plaintiff argues that ALJ Rubini’s determination that Plaintiff could perform
“light work” is inconsistent with the opinion of Dr. Bellman that Plaintiff was “disabled due to
AIDS.” A.R. 190. To that end, Plaintiff maintains that ALJ Rubini improperly rejected the
opinion of Dr. Bellman, based on his own lay opinion of the medical record.

38

ALJ Rubini rejected Dr. Bellman’s opinion of Plaintiff’s disability, on the grounds that
Dr. Bellman’s opinion did not “explain or specify any limitations,” and was not supported by
“either his own treatment records, or records from other treating sources.” A.R. 606. While Dr.
Bellman concluded that Plaintiff suffered from AIDS and complications arising therefrom, and
required weekly injections to maintain his white and red cells at a safe range, ALJ Rubini found
that these conclusions were inconsistent with Dr. Bellman’s own treatment records, which
showed that Plaintiff’s “lab studies were within normal levels, including red blood cells,” and did
“not show that the claimant had persistent anemia or immune system compromise of a degree
that is associated with an opportunistic infections or other HIV-related complications.” A.R.
605. Specifically, ALJ Rubini discussed the following excerpts from Dr. Bellman’s treatment
notes:
In July 2001, his hemoglobin was 12.02 and his hemoglobin was 35%, which indicates
anemia. His CD4 count was 272. In August 2001, his hematocrit was 44.7%, and
hemoglobin was 15.2, both within normal range. His CD4 count was 351. On October 8,
2001, his hemoglobin was 14.2 and hematocrit was 41%, also within normal range, and
his CD4 count was 334. On November 17, 2001, his hemoglobin was 12.7 and hematocrit
was 37.3%, within normal range (Exhibit 8F).
A.R. 605. Indeed, it appears Dr. Bellman’s proscribed treatment for Plaintiff at that time was
effective.
ALJ Rubini also found Dr. Bellman’s conclusion that Plaintiff was disabled inconsistent
with the treatment records of another of Plaintiff’s treating physicians, Dr. Yozviak, who
recommended that Plaintiff “return to work as soon as possible to ensure financial stability later
in life, and also improve mood and outlook.” A.R. 605. ALJ Rubini found that Dr. Yozviak’s
recommendation was consistent with his own treatment records, which showed that Plaintiff’s
viral load was “undetectable,” and that Plaintiff’s CD4 count was above the level associated with
an increased risk of opportunistic infection. A.R. 761-63. Dr. Yozviak’s records also show that
39

Plaintiff denied having any significant side effects from his medication, exercised three times per
week, and exhibited a normal mood, attention span, and concentration. A.R. 827-29.
Accordingly, because ALJ Rubini’s rejection of Dr. Bellman’s opinion was based on
“contradictory evidence,” rather than “credibility judgments, speculation or lay opinion,”
Morales, 225 F.3d at 317, and ALJ Rubini provided an adequate basis for rejecting Dr.
Bellman’s opinion, the Court finds that ALJ Rubini did not err in rejecting Dr. Bellman’s
opinion.
Plaintiff also argues that ALJ Rubini improperly discredited the finings of Dr. Aboyoun.
Pl.’s Br. at 17. In addressing Dr. Aboyoun’s psychiatric evaluation of Plaintiff, ALJ Rubini
noted that Dr. Aboyoun found that Plaintiff could follow simple instructions and perform simple
tasks, his ability to maintain attention and concentration, perform complex tasks, make
appropriate decisions, and maintain a regular schedule, was “limited.” A.R. 606. Plaintiff
maintains that ALJ Rubini rejected Dr. Aboyoun’s opinion, based on ALJ Rubini’s statement
that Dr. Aboyoun’s “assessment was based on the claimant’s own statements, not Dr. Aboyoun’s
own observations or clinical findings, based on an established treatment relationship.” A.R.
606. Plaintiff overstates the implications of ALJ Rubini’s finding. While ALJ Rubini may have
accorded Dr. Aboyoun’s opinion little weight, he did not outright reject that opinion. To the
contrary, ALJ Rubini found that, even accepting Dr. Aboyoun’s limitations, those “limitations do
not appear to preclude work involving relatively simple instructions or routine/repetitive work.”
A.R. 606. Moreover, even if Dr. Aboyoun’s opinion should have been accorded substantial
weight, that opinion still would not preclude Plaintiff from performing unskilled work.
Accordingly, ALJ Rubini’s weighing of Dr. Aboyoun’s testimony does not provide an adequate
basis for remand.

40

3.

ALJ Rubini Properly Evaluated Plaintiff’s Credibility

Plaintiff argues that ALJ Rubini’s determination of Plaintiff’s RFC was improper, because
ALJ Rubini erred in determining that Plaintiff’s testimony was “not entirely credible,” as well as
in failing to consider the affidavit of Plaintiff’s mother. A.R. 605. Credibility determinations are
entitled to substantial deference on appeal. See Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir.
2003) (stating that courts “ordinarily defer to an ALJ's credibility determination because he or she
has the opportunity at a hearing to assess a witness's demeanor.”); see also Izzo v. Comm'r of Soc.
Sec., 186 Fed. Appx. 280, 286 (3d Cir. 2006) (finding that “a reviewing court typically defers to
an ALJ's credibility determination so long as there is a sufficient basis for the ALJ's decision to
discredit a witness.”).
A claimant’s subjective symptoms must be corroborated by objective medical evidence;
i.e., evidence of a medically determinable impairment that can reasonably be expected to produce
the claimant’s underlying symptoms. Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (citing
20 C.F.R. § 404.1529). If the ALJ determines that a medical impairment that could reasonably
cause the alleged symptoms exists, he must evaluate the “intensity, persistence, and functionally
limiting effects of the symptoms” to determine the extent to which it affects the Plaintiff's ability
to work. SSR 96-7p, 1996 SSR LEXIS 4 (S.S.A. July 2) at *2 4; Garibay v. Comm'r Of Soc. Sec.,

4

The Court notes that although the parties do not raise this issue, SSR 96-7p has been
superseded by SSR 16-3p, which alters the standard by which ALJs are to evaluate a claimant’s
symptoms. Specifically, SSR 16-3p eliminates the word “credibility” from the sub-regulatory
policy because the regulations do not use the term. SSR 16-3p, 2016 WL 1119029, at *1
(S.S.A.). However, SSR 16-3p became effective on March 16, 2016, after the ALJ rendered his
June 28, 2013 decision in this case. Accordingly, ALJ Rubini was bound by SSR 96-7p, not
SSR 16-3p, and the Court will evaluate his decision under the former standard. See Sponheimer
v. Comm'r of Soc. Sec., No. 15-4180, 2016 WL 4743630, at *6 (D.N.J. Sept. 8, 2016) (finding
that the ALJ was bound to evaluate Plaintiff’s testimony regarding his symptoms under SSR 967p, because SSR 16-3p became effective after the ALJ’s decision). Nonetheless, even if ALJ
Rubini was bound by SSR 16-3p, this Court's analysis of Plaintiff's subjective symptoms remains
41

336 F. App'x 152, 157 (3d Cir. 2009). “This requires the adjudicator to make a finding about the
credibility of the individual's statements about the symptom(s) and its functional effects.” SSR
96-7p, at *2; Garibay, 336 F. App'x at 157. In complying with this standard, “[i]t is not sufficient
for the adjudicator to make a single, conclusory statement that 'the individual's allegations have
been considered' or that 'the allegations are (or are not) credible.'” SSR 96-7p, at *3. Rather, the
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.” SSR 96-7p, at *3-4.
In evaluating a claimant’s subjective complaints of pain, the ALJ considers factors such as
the objective medical evidence, treatment course and effectiveness, daily activities, the type,
dosage, effectiveness, and side effects of any medication that the claimant is taking, as well as the
consistency of the claimant’s statements with the evidence of record. 20 C.F.R. § 404.1529(c).
Rejection of subjective testimony must be based on substantial evidence. See VanHorn v.
Schweiker, 717 F.2d 871, 873 (3d Cir. 1983).
Here, in accordance with SSR 96-7p, and based on the objective medical evidence, ALJ
Rubini first found that Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms . . . .” A.R. 605. However, in considering Plaintiff’s
credibility, as he was required to do, ALJ Rubini concluded that Plaintiff’s “statements concerning

the same. SSR 16-3p states that an ALJ must evaluate a claimant's symptoms based on all
evidence in the record, and not the claimant's character. In this case, ALJ Rubini discounted
Plaintiff's testimony because portions of it conflicted with the relevant medical evidence, not
because of Plaintiff's character. ALJ Rubini’s decision thus comports with the new standard
promulgated in SSR 16-3p.

42

the intensity, persistence and limiting effects of these symptoms [were] not entirely credible,” since
they could not be corroborated by the relevant medical evidence. A.R. 605. In so doing, ALJ
Rubini did not merely support his finding with a conclusory statement; rather, he expanded on his
finding by analyzing the objective medical evidence, Plaintiff’s statements to his treating
physicians, and Plaintiff’s treatment record.
In regards to Plaintiff’s complaints concerning side effects from his medications, including
feeling tired and suffering from flu-like symptoms, ALJ Rubini found that Plaintiff’s complaints
were undermined by the objective medical evidence, Plaintiff’s subjective statements, and
Plaintiff’s treatment records. To wit, ALJ Rubini explained that Plaintiff’s statements to his
treating sources that he “felt well” and experienced “no significant symptoms or medication sideeffects” were inconsistent with his testimony that he “constantly felt ill” and was “too tired to
work.” A.R. 606. Additionally, ALJ Rubini noted that Plaintiff’s medical results showed that his
HIV and Hepatitis B were “stable” and “adequately controlled.” A.R. 606.
Furthermore, ALJ Rubini also provided an adequate basis for finding Plaintiff’s alleged
psychiatric impairments were not credible. In that regard, ALJ Rubini explained that Plaintiff’s
medical records showed a “limited psychiatric treatment history,” consisting of low dosage antidepressant medication, with “no evidence” that Plaintiff “has ever been under the regular treatment
of a psychologist or psychiatrist,” or that Plaintiff had “ever been diagnosed or treated for a panic
or anxiety disorder.” A.R. 606. Accordingly, in discounting Plaintiff’s subjective complaints, the
record indicates that ALJ Rubini considered them in light of the objective medical evidence in the
record, as the regulations and this circuit’s law require.
Plaintiff’s contention that ALJ Rubini erred by failing to reference the affidavit of
Plaintiff’s mother, Shirley Brando, is also without merit.

43

While the regulations advise that an

ALJ “may” draw inferences and conclusions about the credibility of a claimant’s statements from
statements of lay witnesses, including the claimant’s family and friends, it is harmless error for an
ALJ to omit statements that are merely duplicative of the Plaintiff’s own claims. See Crosby v.
Barnhart, 98 F. App'x 923, 926 (3d Cir. 2004) (“Crosby contends that it was error for the ALJ to
reject her fiancé’s affidavit detailing her daily physical limitations. We need not dwell on this
issue, because any error, if present, was harmless. The fiancé’s description of Crosby's limitations
mirrored her own description, which the ALJ considered.”). Here, Mrs. Brando’s affidavit was
cumulative of Plaintiff’s own statements, which ALJ Rubini considered thoroughly. Accordingly,
because ALJ Rubini’s failure to reference Mrs. Brando’s affidavit specifically was not prejudicial
to Plaintiff, that failure does not provide a basis for remand or reversal. See Rosa v. Colvin, 956
F.Supp.2d 617, 624–25 (E.D. Pa. 2013) (“Under the harmless error rule, an error only warrants
remand if it prejudiced a party's ‘substantial rights.’ ”) (citing Shinseki v. Sanders, 556 U.S. 396,
407 532 (2009)).
4.

ALJ Rubini Adequately Addressed All Probative Evidence in Rendering
his RFC Determination

Plaintiff also maintains that ALJ Rubini failed to address certain probative evidence in
rendering his RFC determination. Specifically, Plaintiff argues that ALJ Rubini erred in assessing
Plaintiff’s RFC because he did not consider explicitly: (a) the testimony of VE Meola and VE
Baine in prior hearings in Plaintiff’s case; (b) Dr. Fethsner’s RFC determination; and (c) the reports
of Dr. Fugate and Dr. Baharlias.
First, Plaintiff contends that ALJ Rubini erred in failing to reference specifically the
testimony of two prior vocational experts, VE Meola and VE Baine, given at prior hearings before
different ALJs in this case. Pl.’s Br. at 34-35. However, where an ALJ properly relies on the
testimony of one vocational expert, “he need not address the testimony of another VE.” Villa v.
44

Astrue, No. 11-8992, 2012 WL 2847730, at *3 (C.D. Cal. July 11, 2012), aff'd sub nom. Villa v.
Colvin, 540 F. App'x 639 (9th Cir. 2013); see Johnson v. Colvin, No. 14-1167, 2015 WL 1954644,
at *4 (W.D. Pa. Apr. 29, 2015) (“As a general matter, the ALJ properly relied on the vocational
expert's testimony from the Second Hearing, and was not required to address the vocational
expert's testimony from the First Hearing.”); Ramirez v. Comm'r of Soc. Sec. Admin., 463 F. App'x
640, 643 (9th Cir. 2011) (“[D]espite the ALJ's lack of explanation for not relying on the testimony
of the unavailable vocational expert from the first hearing, the ALJ properly relied on the
vocational expert's testimony at the second hearing . . . .”). Here, ALJ Rubini properly relied on
the testimony of VE Turetzky in determining whether Plaintiff is capable of performing his past
relevant work. Thus, ALJ Rubini’s failure to address the testimony of the prior vocational experts
is not a basis for remand or reversal. 5
Second, Plaintiff maintains that ALJ Rubini erred in failing to explain why he rejected the
RFC finding of Dr. Fethsner. Pl.’s Br. at 15-16. At the February 19, 2004 hearing before ALJ
O’Leary, Dr. Fethsner testified that, taking into account Plaintiff’s anemia, white blood cell count,
and CD4 count, as well as the general weakness that would occur given Plaintiff’s condition,
Plaintiff “would be limited to sedentary activity at this point.” A.R. 557-58. While the Court
acknowledges that ALJ Rubini did not address Dr. Fethsner’s opinion that Plaintiff was limited to
sedentary work, finding instead that Plaintiff could perform “light work,” ALJ Rubini’s omission
constitutes harmless error. To that end, while Dr. Fethsner’s opinion as to Plaintiff’s exertional

5

Moreover, even assuming that his testimony was relevant, VE Meola did not testify that an
individual with Plaintiff’s RFC could not find substantial gainful employment in the national
economy; rather, VE Meola opined that a person restricted to sedentary work, with a moderate
restriction due to fatigue and ability to maintain concentration and persistence of pace, could
perform jobs existing in the national economy, including jobs as a “ticketer,” “parts sorter,” [or]
“order clerk.” A.R. 578.
45

limitations differs from that of ALJ Rubini, Plaintiff would not have been entitled to disability
even if Dr. Fethsner’s opinion was accepted by ALJ Rubini. Indeed, Dr. Fethsner also testified
that he disagreed with Dr. Bellman’s opinion that Plaintiff was “disabled as far as Social Security
criteria.” A.R. 575. Moreover, the ultimate decision as to a claimant’s RFC is left to the ALJ, not
an independent medical expert. 20 C.F.R. § 404.1546. Accordingly, ALJ Rubini’s decision not
to address Dr. Fethsner’s RFC determination does not warrant remand.
Third, Plaintiff maintains that ALJ Rubini erred in determining the mental component of
Plaintiff’s RFC, because he did not reference the opinions of Dr. Fugate and Dr. Baharlias. As
with the opinion of Dr. Fethsner, neither the opinion of Dr. Fugate nor Dr. Baharlias is material to
Plaintiff’s RFC determination, and thus, ALJ Rubini’s decision not to reference those opinions in
his decision was harmless error. In that regard, Dr. Fugate opined that Plaintiff’s limitations ranged
from mild to moderate, but were not marked, and concluded that Plaintiff “appears capable of
performing simple, repetitive, work-related tasks.” A.R. 505, 517. Additionally, following a
cognitive screening of Plaintiff, Dr. Baharlias opined that while there was a “possibility” that
Plaintiff had a cognitive disorder, he did not “see any specific signs at this time, of a significant
impairment or what is called the HIV cognitive motor complex . . . .” A.R. 488. Moreover, Dr.
Baharlias found that Plaintiff was “capable of managing his funds on his own . . . .” A.R. 488.
Accordingly, nothing in the opinions of Dr. Fugate or Dr. Baharlias undermine ALJ Rubini’s
conclusion that Plaintiff could perform light work, limited to jobs which do not involve complex
instructions.
B.

Determination of Plaintiff’s Ability to Perform Past Work

Plaintiff also argues that ALJ Rubini erred at step four by determining that, given Plaintiff’s
RFC, Plaintiff could perform his past relevant work. Pl.’s Br. at 31-35. Specifically, ALJ Rubini

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found that Plaintiff had the RFC to perform his past relevant work as a customer service
representative and a counter clerk. A.R. 607.
In assessing a claimant's past relevant work:
(1) the ALJ must make specific findings of fact as to the claimant's residual functional
capacity; (2) the ALJ must make findings of the physical and mental demands of the
claimant's past work; and (3) the ALJ must compare the residual functional capacity to the
past relevant work to determine whether claimant has the level of capability needed to
perform the past relevant work.
Garibay, 336 F. App'x at 158 (quoting Burnett, 220 F.3d at 120). According to the Social Security
Administration:
The claimant is the primary source for vocational documentation, and statements by the
claimant regarding past work are generally sufficient for determining the skill level,
exertional demands and nonexertional demands of such work. Determination of the
claimant's ability to do [past relevant work] requires a careful appraisal of (1) the
individual's statements as to which past work requirements can no longer be met and the
reason(s) for his or her inability to meet those requirements; (2) medical evidence
establishing how the impairment limits ability to meet the physical and mental
requirements of the work; and (3) in some cases, supplementary or corroborative
information from other sources such as employers, the Dictionary of Occupational Titles,
etc., on the requirements of the work as generally performed in the economy.
Titles II & XVI: A Disability Claimant's Capacity to Do Past Relevant Work, in Gen., SSR 82–62
(S.S.A. 1982); see also Burnett, 220 F.3d at 120; Garibay, 336 F. App'x at 158. In evaluating this
evidence, the ALJ should find whether “the claimant retains the capacity to perform the particular
functional demands and job duties peculiar to an individual job as he or she actually performed it”
or whether “the claimant retains the capacity to perform the functional demands and job duties of
the job as ordinarily required by employers throughout the national economy.” SSR 82–61. The
ALJ may rely on job descriptions found in the Dictionary of Occupational Titles (“DOT”) to assist
in determining the ordinary job requirements of the occupations in question. Id. “If the claimant
cannot perform the excessive functional demands and/or job duties actually required in the former
job but can perform the functional demands and job duties as generally required by employers
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throughout the economy, the claimant should be found to be ‘not disabled.’” Garibay, 336 F.
App'x at 158 (citing SSR 82–61).
In this case, ALJ Rubini found that Plaintiff has the RFC to perform “light work,” limited
to jobs that do not involve complex job instructions. A.R. 604. As noted above, ALJ Rubini made
specific findings regarding Plaintiff’s RFC; findings that were supported by substantial evidence
in the record. ALJ Rubini then examined the testimony of VE Turetzky, who classified Plaintiff’s
past relevant work experience as a customer service representative as sedentary, semi-skilled work,
with a SVP of 4 (DOT 249.362-026), and his past work experience as a counter clerk as light,
unskilled work, with a SVP of 2 (DOT 311.477-014). ALJ Rubini then compared Plaintiff’s RFC
with his past relevant work, finding that the physical and mental demands of those positions did
not exceed the capabilities of someone with Plaintiff’s RFC. A.R. 607. ALJ Rubini properly
evaluated Plaintiff’s impairments and subjective complaints in light of the objective medical
evidence and his stated activities of daily living, and thus, ALJ Rubini’s conclusion that Plaintiff
retained the RFC to perform the job requirements of customer service representative or counter
clerk is supported by substantial evidence.
C.

Determination of Plaintiff’s Ability to Perform Other Work Available in the
National Economy

Finally, Plaintiff contends that ALJ Rubini erred at step five, by determining that Plaintiff
could perform other kinds of substantial gainful work existing in the national economy. Pl.’s Br.
at 34. At step five, the ALJ must determine whether there are jobs existing in significant numbers
in the national economy that are capable of being performed by the claimant, after considering the
claimant's age, education, past work experience, and residual functional capacity. 20 C.F.R.
§416.920(g)(1). If the ALJ does find that the plaintiff is capable of performing other work, the
ALJ may conclude that the claimant is not disabled. Id.
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In this case, ALJ Rubini relied on the testimony of VE Turetzky, who was asked whether
jobs existed in the national economy for a hypothetical individual with Plaintiff’s age, education,
work experience, and functional capacity. A.R. 608. Specifically, VE Turetzky was asked to
assume that the hypothetical individual “could not understand, remember, and carry out complex
or detailed instruction, and could only perform simple instructions or routine/repetitive work;
could have limited contact with the public; and had difficulty maintaining concentration and
attention for long periods.” A.R. 608. Based on the DOT codes provided by the Department of
Labor, VE Turetzky responded that such an individual could perform the job of an office cleaner,
which involves light, unskilled work, and the job of a table worker, which involves sedentary,
unskilled work. A.R. 905-07. ALJ Rubini accepted that testimony, finding that VE Turetzky’s
testimony was consistent with the information contained in the Dictionary of Occupational Titles,
and that the evidence in the record did “not show that the claimant would require an inordinate
amount of supervision to perform even simple types of jobs, or that he could not maintain an
acceptable level of production pace or quality of work.” A.R. 608. And, while Plaintiff argues
ALJ Rubini’s finding that Plaintiff would be able to find other work existing in the national
economy fails to account for VE Turetzky’s testimony that a claimant could not sustain
employment if he was off task six minutes an hour, two days a week, or absent more than once a
month, the hypothetical posed to VE Turetzky accounted for Plaintiff’s cognitive limitations. A.R.
608. Furthermore, the ALJ, based on medical evidence, did not find that Plaintiff has any cognitive
limitations that would have prevented him from performing other work available in the national
economy. Additionally, to the extent Plaintiff argues that ALJ Rubini failed to consider whether
his physical limitations would cause him to miss more than one day per month, Plaintiff’s
argument is not substantiated by the evidence in the medical record. Indeed, Plaintiff has not

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presented any evidence to show that the medications he was taking, or the symptoms that he is
exhibiting from his impairments, would cause him to consistently miss work, at least one day per
month. For these reasons, ALJ Rubini properly found that there are a sufficient number of jobs
available in the national economy that Plaintiff can perform.
IV.

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.

Dated: May 31, 2017

/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
United States District Judge

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