REPETTO v. COMMISSIONER OF SOCIAL SECURITY
OPINION filed. Signed by Judge Freda L. Wolfson on 5/9/2017. (mps)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
Civ. Action No.: 16-1399 (FLW)
WOLFSON, United States District Judge:
Julio Repetto (“Plaintiff”) appeals from the final decision of the Acting Commissioner of
Social Security, Carolyn W. Colvin (“Defendant” or “Commissioner”), who denied Plaintiff
disability insurance benefits (“DIB”) under Title II of the Social Security (the “Act”). After
reviewing the administrative record (“A.R.”), the Court finds that the Administrative Law
Judge’s (“ALJ”) determinations were based on substantial evidence and, accordingly, affirms the
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff was born on November 8, 1966, and was 44 years old on his alleged disability
onset date of October 17, 2011. On January 10, 2013, Plaintiff filed an application for DIB
based on knee and hip injuries. That application was denied, and Plaintiff requested
reconsideration, which was also denied. Plaintiff appealed and requested a hearing before an
ALJ. On August 1, 2014, a hearing was held before ALJ Jack Russak. On October 1, 2014, the
ALJ issued a written opinion, finding that Plaintiff was not disabled. Plaintiff appealed that
decision to the Appeals Council, which denied his request for review. Having exhausted his
administrative remedies, Plaintiff filed his Complaint in the instant action.
Work Activity and Function Reports
Although Plaintiff did not complete high school, he obtained a General Educational
Development (“GED”) certificate in December 1988. See A.R. at 42. In his work history report,
Plaintiff stated that he began working as a police officer in the New York City Police
Department (“NYPD”) in June 1992. Id. at 149. After injuring his left knee on October 17,
2011, Plaintiff explained that he was “placed on limited duty” and his hours were reduced. Id.
at 151-152. Approximately one year after his knee injury, on October 30, 2012, Plaintiff stopped
working for the NYPD. 1 Id. at 149.
In his function report, Plaintiff stated that he lives with his family on Staten Island, New
York. Id. at 195. Plaintiff explained that he prepares his own food, but he only “prepare[s]
meals that do not require extensive standing, or [he] use[s] [a] stool to prepare food.” Id. at 196.
Plaintiff performs household chores, including “[p]icking up after [his] dogs [with the] assistance
of scooper [and] [he] can use [a] hose if [he] sits often.” Id. at 197. Plaintiff clarified that he is
“unable to do yard work because it requires [him] to extensively use [his] knees.” Id. In
addition, Plaintiff stated that is able to drive and shop for food, but “any other shopping is done
by [his] wife while [he] waits in [the] car.” Id. at 197-98.
Plaintiff was awarded disability retirement benefits from the NYPD; the Medical Board Police
Pension Fund found that “[Plaintiff] is disabled from performing the full duties of a New York
City Police Officer” because of his knee injury and related ailments. Id. at 249-54, 513-18.
Plaintiff reported that it is “somewhat difficult” to sit and “difficult” to lift, stand and
climb stairs. Id. at 200. Plaintiff further reported that it is “very difficult [to walk] without pain
medication” and “impossible” to either kneel or squat. Id.
Review of the Objective Medical Evidence
On October 17, 2011, Plaintiff was taken to Staten Island University Hospital to treat his
knee injury. Id. at 301-08, 669-712. Several days later, on October 24, 2011, Plaintiff visited
Charles DeMarco (“Dr. DeMarco”), an orthopedic surgeon, for an initial evaluation. Id. at 298.
In his report, Dr. DeMarco noted that Plaintiff had “stepped out of his [police] vehicle and
twisted his leg on a rock and sustained a twisting injury and hyperextended injury to his left
knee.” Id. Plaintiff reported “having pain, clicking, popping and buckling in [his] left knee.” Id.
Dr. DeMarco found that Plaintiff was experiencing swelling and tenderness, and an MRI showed
an osteochondral fracture, an osteochondral defect, a medial collateral ligament sprain, a torn
meniscus and a subchondral fracture. Id. Dr. DeMarco advised Plaintiff that “he may eventually
require surgical intervention.” Id.
On October 31, 2011, Plaintiff returned to Dr. DeMarco for a follow-up evaluation. Id. at
295. Plaintiff explained that he was still suffering from knee pain. Id. Dr. DeMarco
recommended that Plaintiff obtain a second opinion from Steven Touliopoulos (“Dr.
Touliopoulos”), another orthopedic surgeon. Id. On November 7, 2011, Dr. DeMarco saw
Plaintiff, who complained of “pain and dysfunction in the left knee… [that is] worse with any
prolonged walking, prolonged standing, heavy lifting, or ascending or descending stairs.” Id. at
291. Dr. DeMarco explained to Plaintiff that “he may be a candidate for arthroscopy,
meniscectomy, debridement, and possible anterior cruciate ligament reconstruction based on
level of degenerative arthritis.” Id. While Dr. DeMarco advised Plaintiff that “[he] must let his
MCL heal before proceeding with surgical intervention,” the doctor instructed Plaintiff to
immediately “start a course of physical therapy with stretching, strengthen, and range of motion
On December 6, 2011, Plaintiff visited Dr. Touliopoulos, who opined that “[Plaintiff] has
decreased activity of daily living, [and is] able to walk only about five blocks before having to
stop for pain,” but “[he] is taking Percocet with mild relief.” Id. at 285. Dr. Touliopoulos noted
that an “MRI revealed medial meniscus tear, grade II tear of the medial collateral ligament, and
large joint effusion and grade IV chondral damage of the medial compartment as well as the
lateral patellar facet.” Id. Dr. Touliopoulos determined that Plaintiff should undergo left knee
arthroscopic surgery, and the doctor informed Plaintiff that he will likely require a total knee
replacement “in the not so distant future.” Id. at 285-86.
On January 2, 2012, Dr. DeMarco saw Plaintiff and determined that “[he] needs to have
[the surgery] done as soon as possible,” and Dr. DeMarco noted that “[Plaintiff] understands he
eventually may require knee replacement down the road.” Id. at 284. On January 13, 2012, Dr.
DeMarco performed knee surgery on Plaintiff with the assistance of Dr. Touliopoulos. Id. at
279-80. Later that same month, on January 23, 2012, Plaintiff visited Dr. DeMarco for a postoperative examination. Id. at 278. Dr. DeMarco noted that, “[d]ue to his post traumatic arthritis,
[Plaintiff] was not a candidate for ligamentation reconstruction,” and “[he] was told to continue
protected weight bearing, physical therapy with active and active-assisted range of motion
The following week, Plaintiff had his sutures removed, and Dr. DeMarco advised
Plaintiff to “[c]ontinue course of physical therapy.” Id. at 277. On February 28, 2012, Dr.
DeMarco told Plaintiff that he “will eventually require knee replacement surgery” and
recommended that Plaintiff should “start some gentle walking to keep his weight down and allow
motion to allow healing of his cartilage.” Id. at 276. Dr. DeMarco also informed Plaintiff that
he was allowed to do “full weight bearing” activities at physical therapy. Id.
On April 24, 2012, Dr. DeMarco recommended that Plaintiff should continue with some
gentle walking, but concluded that “[he] will not be able to return to work as a New York City
police officer.” Id. at 273. On May 29, 2012, Dr. DeMarco again stated that Plaintiff will most
likely need a knee replacement surgery “down the road.” Id. at 271. On June 18, 2012, Dr.
DeMarco reported that “[Plaintiff] still has pain and dysfunction,” and that he has “significant
damage” in his left knee. Id. at 270. In his September 24, 2012 and November 12, 2012 reports,
Dr. DeMarco remarked that “[w]e will continue course of conservative management.” Id. at 548,
From January to July 2012, Plaintiff attended physical therapy. Id. at 311-75. On July 5,
2012, Carla Buonviaggio (“Buonviaggio”), a physical therapist, wrote a letter stating that she had
treated Plaintiff following his surgery on January 13, 2012. Id. at 311. According to
Buonviaggio, “[Plaintiff’s] knee range of motion remains painful at end ranges... [and] [he] is
unable to perform a single leg stance with full knee extension,” which “means his knee is always
bent, making it slightly unstable.” Id. She also noted some atrophy in the left quadriceps. Id.
Buonviaggio stated that Plaintiff complains of “pain with walking, standing, and stairs, and the
inability to walk without a limp. He is still unable to run or jog at this time secondary to pain.
He is unable to squat without pain.” Id. Buonviaggio reported that “[Plaintiff] has been
receiving extensive physical therapy for over 6 months,” but she thinks that “he has reached his
maximal therapeutic potential” and is disabled “both clinically and functionally.” Id.
On January 7, 2013, Plaintiff saw Dr. DeMarco complaining about “pain, clicking, and
popping in the left hip,” which prompted Dr. DeMarco to request an MRI and x-ray. Id. at 549.
On February 15, 2013, Plaintiff had an x-ray of his hip, which revealed “[n]o acute fracture of
dislocation” and “[j]oint space and articular surfaces are maintained.” Id. at 544. On February
23, 2013, an MRI of the hip revealed acetabular dysplasia, a diffuse superior labral tear, a
posterior labral tear, an anterior sublabral erosion and bilateral hamstring tears. Id. at 545-46.
With respect to his sleeping problems, Plaintiff underwent a sleep study on January 30,
2013, and was diagnosed with “severe obstructive sleep apnea syndrome. Id. at 500-01.
Plaintiff was instructed to “undergo an aggressive course of weight loss,” as well as “refrain
from driving and other such activities until excessive daytime somnolence has been corrected.”
Id. at 501. Plaintiff was prescribed CPAP therapy. Id.
In July 2013, testing revealed that Plaintiff had developed a cancerous renal mass on his
kidney. Id. at 732-43. On August 20, 2013, Simon Saada (“Dr. Saada”), M.D., performed
surgery on Plaintiff to remove the renal carcinoma through a rib resection. Id. at 732-34.
Fortunately, the cancer was limited to his kidney. Id. at 739-40. On July 24, 2014, Dr. Saada
completed a medical report for the Social Security agency in which he stated that “I cannot
provide a medical opinion regarding [Plaintiff’s] ability to do work-related activities.” Id. at
753. However, Dr. Saada reported that Plaintiff did not have any limitations in connection with
standing or walking, but indicated that Plaintiff can only occasionally lift five pounds. Id. at 752.
Sujit Chakrabarti (“Dr. Chakrabarti”), M.D., examined Plaintiff twice on behalf of the
Social Security agency. During the first examination, on May 8, 2013, Dr. Chakrabarti reported
that Plaintiff complained of knee and hip pain. Id. at 714-15. Dr. Chakrabarti also reported that
“[Plaintiff] claims that he can stand for about 10 minutes without significant problems,” and that
“[h]e can sit for about 30-45 minutes without any significant problem, and can walk about 4-5
blocks.” Id. at 715-16. Dr. Chakrabarti noted that “[Plaintiff] walks in a heel-toe [motion], [with
a] minimal limp favoring the right side.” Id. at 716. Dr. Chakrabarti only reported a ten degree
difference in his Plaintiff’s ability to flex both his right and left knees. Id.
During the second examination, on July 12, 2014, Dr. Chakrabarti noted that “[Plaintiff]
claims his left knee buckles,” and that “[h]e has constant, annoying pain aggravated by activity
and walking.” Id. at 720. In addition, Plaintiff reported that “[h]e can stand between 10 to 15
minutes and sitting 20 minutes to ½ hour,” and “[h]e can walk about 3 to 4 blocks without any
problems and will be able to carry about 10 pounds of weight.” Id. at 721. Dr. Chakrabarti
noted that Plaintiff was still “grossly overweight” at 290 pounds. Id.
Dr. Chakrabarti also completed a Medical Source Statement opining that Plaintiff can
frequently lift up to ten pounds, and he can occasionally carry up to ten pounds. Id. at 725.
According to Dr. Chakrabarti, Plaintiff can sit for thirty minutes up to four hours a day; stand for
fifteen minutes up to two hours a day; and, walk for twenty minutes up to two hours a day. Id. at
725-26. Dr. Chakrabarti determined Plaintiff can also occasionally climb stairs and crouch, but
he can never climb ladders or scaffolds, balance, stoop, kneel and crawl. Id. at 728. In addition,
Dr. Chakrabarti opined that Plaintiff can occasionally operate a vehicle, but he can never interact
with unprotected heights or moving mechanical parts. Id. at 729. It was also suggested that
Plaintiff could occasionally be exposed to humidity and wetness, pulmonary irritants, extreme
heat and vibrations. Id.
Review of the Testimonial Record
At his hearing, Plaintiff testified that he was 5’11” and weighed 290 pounds, and that he
suffers from several ailments. Id. at 38. Plaintiff first stated that, while he was working as a
police officer, he injured his knee stepping out of his police car. Id. at 39. Plaintiff explained
that, after his knee injury, he started experiencing hip problems because of his limp. Id. at 45.
Plaintiff also testified that he had surgery to remove a renal mass located on his kidney, which
was malignant. Id. at 38. Because the mass was “isolated to the kidney,” Plaintiff was not
required to undergo chemotherapy or radiation treatment. Id. at 38. However, when his kidney
was removed, Dr. Saada was required to make a ten inch incision “through  a thick portion of
muscle” on his stomach, and, as a result, “[Plaintiff’s] entire side is numb” and he is at an
increased risk of sustaining a hernia. Id. at 48-49. Plaintiff testified that he also suffers from
asthma and gastroesophageal reflux disease. Id. at 43-44.
With respect to his daily activities, Plaintiff stated that he and his wife normally have
breakfast together, and then Plaintiff will “drive [his] wife so she can do [errands].” Id. at 47.
Indeed, Plaintiff stated that he drives “[o]n a daily basis,” and that he only experiences pain in
his left leg after “extensive driving,” which is ameliorated by stretching. Id. at 40-41. Once the
daily errands are completed, Plaintiff testified that he spends the rest of the day at his house. Id.
at 47. Plaintiff enjoys cooking and performs some housework, including light cleaning and
bringing out the garbage. Id. at 46-47. Plaintiff also uses a smartphone and computer for
checking his Facebook and email accounts. Id. at 41. In regard to his social activities, Plaintiff
stated that he “flew to St. Martin” for a vacation with his family. Id. at 42.
Plaintiff testified that “the physical pain is constant” in his left knee and right hip, but
“[i]t just gets aggravated by walking and sitting.” Id. at 45. Plaintiff specifically stated that he
“can walk three or four blocks before the pain become almost unbearable, where [he would] have
to stop.” Id. Plaintiff claimed that he can only “stand [for] ten minutes” and “sit [for] 25
minutes, half an hour before the pain… radiates from my rear down to my ankle.” Id. at 46.
Despite the pain from both walking and sitting, Plaintiff testified that he no longer goes to a
physical therapist, nor does he use a cane. Id. at 40. Additionally, Plaintiff does not have a
problem showering, and he is he is able to climb the stairs with the help of a hand rail, but he has
some “difficulty with [putting on] long pants and socks at times.” Id. at 40. Plaintiff stated that
he does not go to the gym and he smokes “20 cigarettes a day.” Id. at 40, 42.
Vocational Expert’s Testimony
Jackie Wilson (“Wilson”), a vocational expert, also testified before the ALJ. Id. at 49-54.
At the hearing, the ALJ asked Wilson to assume a hypothetical individual who is able to perform
sedentary work, but had the following limitations:
I’m going to add a sit/stand option, allowing this person to sit or stand alternately
at will, provided this person is not off task more than five percent of the work
period. For postural limitations. Climb ramps and stairs occasionally. Never
climb ladders, ropes, scaffolds. Occasionally stop, crouch, kneel, [and] never
crawl. There would be no exposure to moving machinery, unprotected heights, or
driving vehicles. In addition, for environmental limitations, avoid… extreme
heat, wetness, humidity, irritants such as fumes, odors, dust gases, poorly
ventilated areas and chemicals.
Id. at 51. In response, Wilson testified that Plaintiff could not perform his past work as a police
officer. Id. at 50-51. However, Wilson concluded that Plaintiff could perform the following jobs
that exist in significant numbers in the national economy: (i) Order Clerk, Dictionary of
Occupational Titles (“DOT”) Code 209.567-014; (ii) Ampoule Sealer, DOT Code 559.687-014;
(iii) Surveillance System Monitor, DOT Code 379.367-010. Id. at 51-52.
Review of the ALJ’s Decision
The ALJ issued his written decision on October 1, 2014. Id. at 18-28. The ALJ
concluded that Plaintiff “has not been under a disability within the meaning of the Social
Security Act from October 17, 2011, [the alleged disability onset date,] through the date of this
decision.” Id. at 18. The ALJ determined that Plaintiff’s date of last insured is December 31,
2016, and that he had not engaged in substantial gainful activity. Id. at 20. The ALJ next found
that Plaintiff suffered from the following severe impairments:
[S]tatus post left knee arthroscopy and associated osteoarthritis; obesity; renal cell
carcinoma and status post related nephrectomy; right hip osteoarthritis;
obstructive sleep apnea; and asthma.
Id. The ALJ also found that Plaintiff suffered from the following non-severe impairments:
“coronary artery disease and hypothyroidism.” Id. However, the ALJ noted that the record is
devoid of any medical evidence that those impairments “have had greater than a slight or
minimal effect on [Plaintiff’s] ability to perform basic work activities….” Id. Relatedly, the
ALJ determined that Plaintiff “does not have an impairment or a combination of impairments
that meets or medically equals the severity of one of the limited impairments in 20 CFR Part 404,
Subpart p, Appendix 1.” Id. at 21.
With respect to his residual capacity determination, the ALJ determined that Plaintiff was
able to “perform sedentary work allowing him to sit or stand alternatively at will provided that he
is not off task more than 5% of the work period.” Id. The ALJ concluded that Plaintiff “can
occasionally climb ramps and stairs,” but he “can never climb ladders, ropes or scaffolds.” Id.
“He can only occasionally stoop, couch or kneel,” but “[h]e can never crawl” or “have exposure
to moving machinery, unprotected heights or driving vehicles.” Id. Finally, the ALJ found that
Plaintiff cannot be exposed to “extreme heat or cold, wetness or humidity and to irritants,”
including fumes, odors and gases. Id. at 21-22.
With respect to credibility, the ALJ concluded that Plaintiff’s own testimony that “he is
unable to work… is not credible because it is not supported by a record showing that[,] despite
multiple physical impairments[,] he is able to function on a daily basis.” Id. at 25. The ALJ
specifically reasoned that Plaintiff does not use a cane to walk, and that “he has no problems
showering and he only has a problem when he must put on his shoes and socks.” Id. at 22, 25.
The ALJ found that Plaintiff is able to drive, but “he could not do so for long trips.” Id. Indeed,
the ALJ noted that Plaintiff “drove to the hearing alone.” Id. Plaintiff is able to use his
computer and smartphone, and “[h]e also stated that he can cook, do shopping and take out the
trash… [as well as] run errands with his wife.” Id. Despite complaints of significant pain, the
ALJ stated that “[h]e no longer goes to physical therapy and he also went on vacation.” Id.
Similarly, “[h]e only sees his orthopedist every six months.” Id. With regard to his weight, the
ALJ reasoned that Plaintiff “currently weighs 290 pounds because he gained 60 pounds from
lack of exercise.” Id. And, although he has asthma and sleep apnea, Plaintiff “smokes one pack
of cigarettes daily.” Id.
After conducting a thorough review of the medical record, the ALJ determined that,
“[s]ince nothing in the medical evidence… shows that [Plaintiff’s] impairments preclude him
from performing physical related work activities, [Plaintiff] is not disabled….” Id. at 25. The
ALJ assigned “little weight” to Dr. DeMarco’s opinion that Plaintiff is “totally disabled” and
Buonviaggio’s opinion that Plaintiff has a “permanent disability.” Id. at 25-26. The ALJ
explained that those opinions “are not supported by the physical consultative examiner and
treating physician 2014 opinions that [Plaintiff] can perform sedentary exertion in addition to
physical examination reports showing that [Plaintiff] has had a primarily normal gait, only
somewhat limited right hip motion, cancer that was responsive to surgery, [and] left knee pain
that medically improved with surgery and medication.” Id. at 26.
In contrast, the ALJ gave “[g]reat weight… to the 2013 and 2014 physical consultative
examiner and treating physician opinions that [Plaintiff] is capable of sedentary exertion….” Id.
The ALJ found that Plaintiff has “had medical improvements in his left knee and cancer while
his most recent physical examination reports show that he has an essentially normal gait, only
mild to moderate limited ranges of musculoskeletal motion and that he was essentially
neurologically intact.” Id. The ALJ specifically reasoned that Plaintiff testified that “he stopped
attending physical therapy, only sees an orthopedist twice a year, [and] went on vacation after
the alleged onset date….” Id.
Next, the ALJ determined that Plaintiff was not capable of performing his past relevant
work as a police officer “because it is too physically demanding.” Id. However, based on the
testimony of Wilson, the vocational expert, the ALJ concluded that Plaintiff could perform the
following jobs, which exist in significant numbers in the national economy: (i) Order Clerk,
Dictionary of Occupational Titles (“DOT”) Code 209.567-014; (ii) Ampoule Sealer, DOT Code
559.687-014; (iii) Surveillance System Monitor, DOT Code 379.367-010. Id. at 26-27.
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 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 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” to perform his or her past relevant work. 20 C.F.R. §
404.1520(e); Bowen, 482 U.S. at 141. If the claimant is able to perform previous work, the
claimant is determined to not be disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e); Bowen, 482
U.S. at 141-42. The claimant bears the burden of demonstrating an inability to return to the past
relevant work. Plummer, 186 F.3d at 428. Finally, if it is determined that the claimant is no
longer able to perform his or her previous work, the burden of production then shifts to the
Commissioner to show, at step five, that the “claimant is able to perform work available in the
national economy.” Bowen, 482 U.S. at 146-47 n.5; Plummer, 186 F.3d at 428. This step
requires the ALJ to consider the claimant’s residual functional capacity, age, education, and past
work experience. 20 C.F.R. § 404.1520(f). The ALJ must analyze the cumulative effect of all
the claimant’s impairments in determining whether the claimant is capable of performing work
and not disabled. Id.
Plaintiff presents two arguments on appeal as to why the ALJ’s residual functional
capacity determination at step four is unsupported by substantial evidence. First, Plaintiff
contends that the ALJ failed to properly weigh the medical opinion evidence because he
disregarded the opinions of Plaintiff’s treating sources. Second, Plaintiff maintains that the ALJ
failed to properly evaluate Plaintiff’s credibility on the severity of his symptoms and resulting
Whether the ALJ Properly Considered the Medical Opinion Evidence
Plaintiff argues that, although the ALJ stated that he gave “great weight” to the opinions
of the treating sources, such opinions clearly lead to the inevitable conclusion that Plaintiff is
disabled. Plaintiff speculates that, had the ALJ actually given “great weight” to Dr. Saada’s
opinion that Plaintiff was only able to occasionally lift five pounds, it is improbable for the ALJ
to find that Plaintiff is capable of sedentary work, which “requires lifting and carrying of up to
10 pounds in an 8 hour workday.” 2 Pl.’s Br. at p. 19. Moreover, Plaintiff contends that Dr.
DeMarco opined that Plaintiff is “totally disabled” because Plaintiff continues to suffer pain in
his left knee and hip, and that he will eventually require knee replacement surgery. In addition,
Plaintiff maintains that Buonviaggio determined that Plaintiff is “permanently disabled” because
she found that he had an antalgic gait, muscle atrophy in his left quadriceps and decreased
strength as a result of his knee injury and subsequent surgery.
“[I]n making a residual functional capacity determination, the ALJ must consider all
evidence before him,” and must “give some indication of the evidence which he rejects and his
reason(s) for discounting such evidence.” Burnett v. Comm’r of Soc. Sec., 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). “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
“Sedentary work” is defined as a job that “involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers, and small tools.” 20 C.F.R.
404.1567(a). “Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary
if walking and standing are required occasionally and other sedentary criteria are met.” Id
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: length of treatment relationship, the nature and extent of the treatment relationship,
supportability by 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 the instant matter, while Plaintiff contends that Dr. Saada’s opinion leads to a finding
that Plaintiff cannot satisfy the minimum lifting requirements for sedentary work, that opinion is
not entitled to “controlling weight” because it is inconsistent with the medical evidence as a
whole. 3 See Morales, 225 F.3d at 317; see also Plummer, 186 F.3d at 429. Instead, the ALJ
concluded that Dr. Chakrabarti’s consultative reports and Medical Source Statement, as well as
In his report, Dr. Saada checked a box on the Social Security form, which stated that “[he]
cannot provide a medical opinion regarding [Plaintiff’s] ability to do work-related activities.
A.R. at 753. However, it appears that Dr. Saada mistakenly check that box because he
specifically provided his opinion on Plaintiff’s functional limitations. In addition, the ALJ
considered Dr. Saada’s opinions in his decision. Thus, the Court will assume that Dr. Saada
intended to render a medical opinion on Plaintiff’s residual functional capacity.
Plaintiff’s own testimony, support the finding that Plaintiff is capable of “sedentary exertion,”
which includes the ability to lift up to ten pounds throughout the workday. A.R. at 26.
In particular, the ALJ concluded that “[the] most recent physical examination reports
show that [Plaintiff] has an essentially normal gait, only mild to moderately limited ranges of
musculoskeletal motion and that he was essentially neurologically intact.” Id. The ALJ
reasoned that Dr. Chakrabarti concluded, in his 2013 report, that “[Plaintiff] had a minimal limp;
and he was able to partially squat with help.” Id. at 24. The ALJ stated that “Dr. Chakrabarti 
wrote that [Plaintiff’s] right knee flexion was 110/120 degrees; his left knee flexion was 90/120;
his bilateral hip flexion was 100 degrees on both side… [and] he had only minimally positive
straight leg raising.” Id. Moreover, the ALJ explained that Dr. Chakrabarti concluded, in his
2014 report, that Plaintiff was able to perform many of the activities of daily living, and that “his
right knee flexion and extension was 120 degrees; his left knee flexion and extension was 100
degrees; his left side hip flexion was 100 degrees; [and] his right side hip flexion was 90
degrees….” Id. Also relying on the Medical Source Statement, the ALJ determined that “Dr.
Chakrabarti opined that in an 8 hour workday [Plaintiff] could lift and carry up to 10 pounds; sit
for 4 hours; stand and/or walk for 2 hours; occasionally climb ramps and stairs; occasionally
crouch; an never perform any other postural functions.” Id.
In addition to the medical evidence, the ALJ found that Plaintiff’s own testimony
indicates that “his impairments have improved and stabilized,” and thus, Plaintiff is capable of
sedentary work. Id. at 25-26. The ALJ noted that, “[d]espite his history of degenerative joint
disease in his knee, [Plaintiff] has been able to ambulate effectively without the use of an
assistive device,” such as a cane. Id. at 22. The ALJ reasoned that “[Plaintiff] can cook, do
shopping and take out the trash while he also can run errands with his wife.” Id. Similarly, the
ALJ determined that Plaintiff has “stopped attending physical therapy, only sees an orthopedist
twice a year, [and] went on vacation after the alleged onset date….” Id. at 26.
In addition, Plaintiff argues that the ALJ improperly assigned “little weight” to Dr.
DeMarco’s opinion that Plaintiff is “totally disabled” and Buonviaggio’s opinion that Plaintiff is
“permanent[ly] disabled.” Id. at 25. However, the Third Circuit has recognized that “a treating
source’s opinion about a claimant’s ability to work is not entitled to special deference; the
disability determination is the province of the [Commissioner] alone.” Dula v. Barnhart, 129
Fed. Appx. 715, 719 n.3 (3d Cir. 2005). Indeed, the ALJ concluded that those opinions are not
supported by the medical evidence – specifically that Plaintiff “has had a primarily normal gait,
only somewhat limited right hip motion, cancer that was responsive to surgery, left knee pain
that medically improved with surgery and medication.” A.R. at 26.
Accordingly, the Court concludes that the ALJ’s determination that Plaintiff possessed
the residual functional capacity to perform sedentary work is supported by substantial evidence.
Dr. Saada’s opinion that Plaintiff can only occasionally lift five pounds conflicts with Dr.
Chakrabarti’s opinions that Plaintiff is capable of limited work, including lifting up to ten
pounds. Similarly, Dr. Chakrabarti’s opinions contradict the opinions of both Dr. DeMarco and
Buonviaggio that Plaintiff was “disabled.” Based on those inconsistences, the ALJ was allowed
to credit Dr. Chakrabarti’s opinions and reports, along with the evidence in the record as a
whole. Relying on objective medical evidence, as well as Plaintiff’s own testimony, the ALJ
properly concluded that Plaintiff has experienced a gradual improvement in connection with his
limitations, especially his knee and hip impairments, and that Plaintiff has generally stabilized
since his surgeries. Additionally, the ALJ provided adequate explanation as to why Plaintiff
maintains some residual functional capacity.
Whether the ALJ Properly Evaluated Plaintiff’s Credibility
Plaintiff argues that the ALJ improperly discounted his subjective complaints.
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)
(stating 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.”). When making
credibility determinations, the ALJ must consider “all [the] symptoms, including pain, and the
extent to which [the] symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence.” 20 C.F.R. § 404.1529(a); see Hartranft v. Apfel, 181
F.3d 358, 362 (3d Cir. 1999) (“Allegations of pain and other subjective symptoms must be
supported by objective medical evidence.”). Rejection of subjective testimony must be based on
substantial evidence. See VanHorn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983).
Here, the ALJ concluded that Plaintiff’s own testimony that “he is unable to work… is
not credible because it is not supported by a record showing that[,] despite multiple physical
impairments[,] he is able to function on a daily basis.” A.R. at 22, 25. Although Plaintiff
testified that he is in constant pain and unable to work, the ALJ reasoned that Plaintiff does not
use a cane to walk, and is still able to perform most activities of daily living, such as cooking and
doing chores around the house. Id. The ALJ found that Plaintiff still uses his computer and a
smartphone, and is capable of driving a car, especially considering the fact that he drove to the
hearing. Id. Despite complaints of pain, the ALJ stated that Plaintiff stopped going to physical
therapy, and he only sees his orthopedist every six months. Id. He also went on a vacation to St.
Martin after his alleged onset date. Id. Finally, the ALJ reasoned that Plaintiff “currently weighs
290 pounds because he gained 60 pounds from lack of exercise.” Id. And, although he has
asthma and sleep apnea, Plaintiff “smokes one pack of cigarettes daily.” Id. Thus, the ALJ
thoroughly considered Plaintiff’s subjective complaints in reaching the residual functional
capacity determination and, based on the record, the ALJ’s rejection of Plaintiff’s subjective
complaints of pain and his inability to work is supported by substantial evidence in the record.
Additionally, Plaintiff argues that the ALJ should have considered his long work history
with the NYPD when assessing his credibility. However, that argument is misplaced. Although
the Third Circuit has stated that, for a claimant with a long work history, “testimony as to his
capabilities is entitled to substantial credibility,” such testimony must be “supported by
competent medical evidence.” Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979).
Here, the ALJ did not entirely discredit Plaintiff’s own testimony. To the contrary, he concluded
that Plaintiff’s testimony was “credible to the extent that it is supported by a record showing that
all of his impairments have improved or stabilized.” Id. at 25. However, the ALJ found that
portions of Plaintiff’s testimony were not supported by the objective medical evidence,
specifically “[Plaintiff’s] testimony that he is unable to work.” As discussed supra, the ALJ’s
conclusion is supported by the evidence in the record as a whole. Thus, this Court cannot
substitute its opinion for that of the ALJ.
Therefore, this Court accords great deference to the ALJ’s credibility determination of
Plaintiff’s subjective testimony and finds the ALJ’s decision in that regard is supported by
substantial evidence. See, e.g., Malloy v. Comm’r of Soc. Sec., 306 Fed. Appx. 761, 765 (3d
Cir. 2009) (“Credibility determinations as to a claimant’s testimony regarding pain and other
subjective complaints are for the ALJ to make. In view of the evidence presented in the record
and of the ALJ’s ‘opportunity to observe the demeanor and to determine the credibility of the
claimant,’ these findings are entitled to ‘great weight’ and should be upheld.”) (citation omitted).
For the reasons set forth above, the Court finds that the ALJ’s decision is supported by
substantial evidence in the record. Accordingly, the ALJ’s decision is affirmed, and Plaintiff’s
Complaint is dismissed.
DATE: May 9, 2017
/s/ Freda L. Wolfson
The Honorable Freda L. Wolfson
United States District Judge
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