NOT FOR PUBLICATION CLOSED

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_____________________________________ 

 :

ANTHONY MILANO, :

 :

Plaintiff, :

 : Civil Action No. 10-6740(FSH)

 :

v. : OPINION & ORDER

 :

COMMISSIONER OF SOCIAL : Dated: November 30, 2011

SECURITY, :

 :

Defendant. :

_____________________________________ : 

HOCHBERG, District Judge:

This matter comes before the Court upon Plaintiff Anthony Milano’s motion to review a 

final determination of the Commissioner of the Social Security Administration (the 

“Commissioner”) pursuant to the Social Security Act, as amended, 42 U.S.C. § 405(g). The 

motion has been decided upon the written submissions of the parties pursuant to Federal Rule of 

Civil Procedure 78.

I. BACKGROUND

A. Plaintiff’s Medical and Vocational History

1.

On September 27, 2007, Plaintiff filed a claim for a period of disability and disability 

insurance benefits. Plaintiff claimed the disability began January 2, 2005 and consisted of 

depression, bipolar disorder, back problems, and arthritis in the neck. (Tr. 127). Plaintiff

clarified at his hearing before the ALJ that he would be pursuing his claim for benefits solely as 

General Medical and Vocational Background

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to his non-exertional impairments. (Tr. 27). In 2009, Plaintiff was incarcerated for six months 

for working at least part time doing maintenance and plumbing and collecting unemployment at 

the same time. Id. Other than the work leading to his incarceration, Plaintiff has been out of 

work since the onset of his symptoms on January 2, 2005. (Tr. 16). 

Plaintiff is a 55-year-old male with an 8th grade education. (Complaint 1). He was in 

special education throughout his academic career and he can write a little, but cannot spell. (Tr. 

17). He suffers from depression and bipolar disorder. (Tr. 14-15). Plaintiff’s previous work 

experience consisted of doing maintenance and repairs in hotels and office buildings. (Tr. 17). 

He worked fixing sheetrock, painting, and did general repairs on site. Id. Plaintiff could not 

keep a job for more than one year at a time as he thought others were constantly talking about 

him and plotting against him. (Tr. 18). 

Plaintiff lives in a rooming house with a shared kitchen and bathroom. (Tr. 18). He 

is able to cook and clean for himself and will take occasional walks through the park. Id. He has 

trouble reading, but can read simple notes or instructions. Id. He sleeps a lot and will sometimes 

cry and stay in bed all day. Id. He will watch TV, but has poor concentration and quickly gets 

bored. Id. He went to Trinitas for mental health treatment for six months until his insurance 

stopped covering the costs. Id. He is now using Xanax to cope with his symptoms. Id.

2.

Dr. Saul Gorman, a psychiatric specialist at Trinitas Hospital, explained in a report 

dated August 11, 2008 that Plaintiff was receiving ongoing treatment for mild depression and 

anxiety. Id. Plaintiff was first seen at Trinitas in the emergency room on January 22, 2008. Id. 

He further explained that Plaintiff had been previously diagnosed with bipolar disorder. Id. 

According to Dr. Gorman, Plaintiff was taking medication and handling it well. Id. Plaintiff was 

The Assessments of Plaintiffs Primary Care Physician and Psychiatrist

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reported to have a good appetite and was sleeping well. Id. Dr. Gorman noted Plaintiff did have 

anxiety, however his thought process was coherent with intact cognitive capabilities. Id. Plaintiff

was not noted to be a suicide risk. Id. (citing Exhibit F). Dr. Gorman’s report further explained 

that Plaintiff was not on any medication and did not have prior hospitalizations. Id. Finally, Dr. 

Gorman’s progress notes regarding Plaintiff explained “there were no significant limitations with 

regard to working resulting from [Plaintiff’s] mental condition.” Id. (citing Exhibit 10F).

While at Trinitas, Dr. Benjamin Chu, a psychiatric specialist, also treated Plaintiff. 

Id. Dr. Chu transferred Plaintiff to out-patient care and explained that although Plaintiff had 

been off medication for some time, “it did not affect him much.” Id.

3.

A Disability Determination Services (“DDS”) consultant, Michael Britton, Ed.D., 

also examined Plaintiff. This consultant found that Plaintiff had a severe impairment, 

depression, but it did not “prevent him from understanding, remembering and following simple 

instruction[s].” (Exhibit 9F). The DDS consultant further explained that Plaintiff could 

acclimate to “supervision and occasional changes in routine.” Id. Last, the DDS examiner found 

that Plaintiff could sustain “adequate concentration, persistence and pace for simple, routine 

work.” Id.

The Residual Functioning Capacity Assessment

4.

An administrative hearing was held before the Administrative Law Judge (“ALJ”) on 

May 12, 2010. Plaintiff testified that he had been unable to obtain substantial and gainful 

employment since January 2005. (Brief of Comm’r of Social Security at 7). He did not think he 

could perform his last job as the skill level required was above his alleged capabilities. (Brief of 

Plaintiff at 15). Plaintiff argued that he completed skilled repair tasks in varied environments. 

Testimonial Evidence

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See id. at 17 (explaining, for example, that Plaintiff was now “only capable of simple routine 

work and his past relevant work required skilled and semi-skilled tasks, fixing sheet rock, 

painting and performing all of the aspects of a maintenance worker in commercial buildings and 

hotels”). Plaintiff did, however, state that most of his jobs were maintenance and minor repairs 

although he did do a little plumbing and a little lifting. (Tr. 18). Plaintiff expressed his desire to 

work by himself, as having other people around would bother him. Id.

Plaintiff explained that he was currently unable to do many things, including work, as 

a result of his mental problem. (Tr. 17). He further explained that he can get himself in the right 

mental place for a job, but after some time has elapsed, he feels that people are against him and 

want to get rid of him. Id. He said he could not hold a job for more than one year and it is hard 

for him to understand things. (Tr. 18). He has trouble concentrating and stays away from 

crowds, as he believes others are talking about him. Id. Plaintiff further described that he gets 

very sad and will sometimes cry and stay in bed all day. Id.

B. The Disability Standard and the ALJ’s Decision

1.

A person is technically disabled under the Social Security Act (“SSA”) if he or she is 

unable 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) (2006).

The Statutory Standard for a Finding of Disability

The SSA defines a physical or mental impairment as “an impairment that results from 

anatomical, physiological, or psychological abnormalities which are demonstrable by medically 

acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3) (2006). 

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A person will be considered disabled “only if his physical or mental impairments are of

such severity that he is not only unable to do his previous work but cannot, considering his age, 

education, and work experience, engage in any other kind of substantial gainful work which 

exists in the national economy . . . .” 42 U.S.C. § 423(d)(2)(A) (2006).

Finally, the SSA defines work which exists in the national economy as “work which 

exists in significant numbers either in the region where such individual lives or in several regions 

of the country.” 42 U.S.C. § 423(d)(2)(A) (2006).

In determining disability claims, the Commissioner applies a five-step procedure 

according to 20 C.F.R. §§ 404.1520, 416.920 and Plummer v. Apfel, 186 F.3d 422 (3d Cir. 

1999). The steps are explained as follows:

Step One: Substantial Gainful Activity. The Commissioner first looks to a claimant’s 

current employment situation and considers whether such employment constitutes substantial 

gainful activity. Substantial here means the employment requires “significant physical [or] 

mental activities.” 20 C.F.R. § 416.972 (2010). Further, even part time or inconsistent work can 

still be considered substantial. Id. Gainful work is “work activity that you do for pay or profit.” 

Id. If the claimant is currently engaged in substantial gainful activity, he or she will not be found 

disabled and consideration of any medical condition is unnecessary. 20 C.F.R. § 416.920(b) 

(2010).

Step Two: Severe Impairment. If the claimant is not engaged in substantial gainful 

activity, he or she must then demonstrate the existence of a severe impairment. A “severe 

impairment” is an impairment “which significantly limits [the claimant’s] physical or mental 

capacity to perform basic work activities.” 20 C.F.R. § 416.920(c) (2010). If the claimant is 

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unable to present a severe impairment, or combination of impairments considered severe, he or 

she will not be found disabled. Id. 

Step Three: Listed Impairment. If the claimant is able to demonstrate a severe 

impairment, the Commissioner next determines if the impairment meets or equals an impairment 

listed on the Listing of Impairments in 20 C.F.R. § 404, subpt. P, app. 1 (2010). If the claimant 

has such an impairment, he is found disabled. If not, the Commissioner proceeds to the fourth 

step. 20 C.F.R. § 416.920(d) (2010).

Step Four: Residual Functioning Capacity (RFC).

Step Five: Other Work. If the claimant is unable to perform his past work, the 

Commissioner considers the individual’s RFC, age, education, and past work experience to 

determine if he is able to make an adjustment to other work. If he cannot do so, the claimant is 

found disabled. 20 C.F.R. § 416.920(g) (2010).

 In the fourth step, the Commissioner 

decides whether, despite his or her impairment, the claimant still possesses the RFC to perform 

his past relevant work. If so, the claimant is found not disabled and the inquiry is at an end. If 

not, the Commissioner then proceeds to the fifth step. 20 C.F.R. § 416.920(e)-(f) (2010).

This five-step analysis has a shifting burden of proof. Wallace v. Sec’y of Health & 

Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). For the first four steps, the claimant bears 

the burden of persuasion. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the analysis 

reaches the fifth step, however, the Commissioner then bears the burden of proving that the 

claimant is unable to perform other work that is available in the national economy. Id.

2. The ALJ’s Decision

Applying this five-step analysis, and upon review of the entire record, the ALJ first found 

that Plaintiff had not engaged in any substantial gainful activity since January 2, 2005. (Tr. 16). 

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At step two, the ALJ determined that Plaintiff suffers from depression, a severe impairment. Id. 

At step three, the ALJ found that Plaintiff’s impairments do not meet or medically equal any of 

the listed impairments in 20 C.F.R. § 404, subpt. P, app. 1. (Tr. 17).

At step four, the ALJ determined that Plaintiff has the RFC to perform a full range of 

work at all exertional levels. Id. The ALJ did find the following non-exertional limitation: 

claimant is capable of understanding, remembering, and following simple instructions. Id. He is 

further able to adapt to supervision and occasional changes in routine while sustaining adequate 

concentration, persistence, and pace for routine work. Id. 

The ALJ determined that despite the presence of a severe impairment, the evidence 

established that Plaintiff is able to perform many basic activities associated with his previous 

work experience. (Tr. 19). The ALJ relied on the reports of Plaintiff’s physician, Dr. Gorman, 

which explained that Plaintiff did not have any significant mental limitations with regard to 

working. Id. (citing Exhibit 10F). The ALJ also looked to the examination of Plaintiff by 

Michael Britton, a DDS consultant. Mr. Britton found that Plaintiff was capable of basic work 

activity and could maintain concentration, persistence, and pace adequate for routine work. Id.

(citing Exhibit 9F). On this basis, the ALJ found that Plaintiff is capable of performing his past 

relevant work as a maintenance worker. Id. As Plaintiff was found capable of resuming his past 

relevant work, Plaintiff was deemed not disabled and the ALJ did not need to proceed to step 

five. 20 C.F.R. § 416.920(b) (2010).

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II. DISCUSSION

A. Standard of Review

This Court reviews the decision of the Commissioner to determine whether there is 

substantial evidence in the administrative record supporting his decision. 42 U.S.C.A. § 405(g); 

Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Substantial evidence is “more than a 

mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate.” 

Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quoting Richardson v. Perales, 402 U.S. 

389, 401 (1971)). If there is substantial evidence supporting the Commissioner’s finding, this 

Court must uphold the decision even if it might have reasonably made a different finding based 

on the record. Simmons v. Hecker

A. Review of the Commissioner’s Decision

, 807 F.2d 54, 58 (3d Cir. 1986).

Plaintiff contends that the ALJ erred because the ALJ’s conclusion is not supported by 

substantial evidence and the ALJ did not sufficiently articulate his reasoning or give adequate 

weight to the evidence. Specifically, Plaintiff argues that (1) the ALJ did not properly consider 

Plaintiff’s subjective evaluations of his ability level and; (2) the ALJ’s RFC finding was not 

supported by substantial evidence. The Court will address each argument in turn.

1.

Plaintiff argues that the ALJ did not properly consider Plaintiff’s subjective account of 

his condition. In evaluating medically determinable impairments and the extent to which they 

limit one’s capacity to work, the Commissioner is required to consider “all reasonable evidence . 

. . including statements from [the claimant].” 20 C.F.R. §§ 416.927(c), 404.1529(c). In addition, 

the Commissioner must consider the claimant’s history, laboratory findings, statements from 

treating and non-treating sources, and treating and non-treating medical opinions. Id. Subjective 

The ALJ’s Evaluation of Plaintiff’s Credibility

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complaints of symptoms and disability must be substantiated by medical evidence. 42 U.S.C. § 

423(d); Williams v. Sullivan

Here, the record supports the ALJ’s conclusion that Plaintiff’s conditions were mild or 

controlled and that Plaintiff could function beyond the limitations he claimed in his testimony. 

(Tr. 16-18). Additionally, Plaintiff was actually working, after the claimed onset date in January, 

2005. (Tr. 115-16). Plaintiff admitted as much in his hearing when he explained that he was 

employed in 2008 or 2009. (Tr. 39, 112, 115-16). Indeed, Plaintiff was then incarcerated for 

lying about his employment status while collecting disability. (Tr. 18). Plaintiff’s willingness to 

say he was ready, willing, and able to work, in order to collect unemployment during the period 

of his alleged disability further discredits his testimony.

, 380 F. Supp. 2d 496, 508 (D.N.J. 2005).

The Commissioner is authorized to use discretion when evaluating Plaintiff’s credibility 

while looking at all of the evidence available. Cotter v. Harris, 642 F.2d 700, 705-06 (3d Cir. 

1981). In the present case, there is ample evidence to support any reduced weight the ALJ 

accorded Plaintiff’s testimony. See

2.

Tr. 16-18 (detailing the medical evidence explaining that 

Plaintiff is still able to work and Plaintiff’s own history of working without special 

considerations after the alleged onset date).

In determining whether a claimant is disabled, the ALJ must determine the Plaintiff’s 

RFC. 20 C.F.R. § 416.920(e) (2010). In making this determination, the ALJ will consider all 

relevant medical evidence, as well as all impairments. Here the ALJ determined that Plaintiff

has the capacity to perform routine maintenance work, plumbing, lifting, and repairs as well as 

following simple instructions. (Tr. 18-19). The ALJ noted that Plaintiff did suffer some 

limitation due to his impairment, but he could nonetheless perform at all exertional levels with 

The ALJ’s Determination of Plaintiff’s RFC

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the caveat that claimant could not comprehend complex instructions or perform more nuanced, 

non-routine work. Id. Further, Plaintiff is able to care for himself and carry out daily activities 

such as cooking and cleaning. Id.

The ALJ also gave deference to the medical opinions offered by the Plaintiff’s physician, 

Dr. Gorman, and the DDS Consultant, Mr. Britton. Both of these individuals offered reports 

explaining that while Plaintiff was suffering from depression and could be somewhat limited as a 

result, it was not such a hindrance so as to prevent him from working altogether. (Tr. 19). The 

ALJ therefore found that Plaintiff is still capable of performing his past relevant work as a 

maintenance worker. Id.

Plaintiff argues that his own testimony, as well as the reconsideration letter from Social 

Security dated February 11, 2009, should be enough to show that he can no longer perform his 

past work. Plaintiff further argues that his past work was non-routine and therefore he is unable 

to resume this work, as he should now be limited to routine work. 

However, Plaintiff offers little objective evidence to counter the ALJ’s opinion that 

Plaintiff is able to perform his past relevant work. Plaintiff did meet with Dr. Gorman at Trinitas 

for six months until his insurance stopped paying and has been off and on certain medications, 

including Xanax. (Tr. 18). Dr. Gorman noted that Plaintiff was being seen for mild depression 

and anxiety and had previously been diagnosed with bipolar disorder. (Exhibit 7F). Dr. Gorman 

then reported that Plaintiff was on medication and handling it well. Id. Dr. Gorman did find 

Plaintiff to have some anxiety, however his thought process was coherent with intact cognitive 

capabilities. Id. Finally, Dr. Gorman explained “there were no significant limitations with 

regard to working resulting from [Plaintiff’s] mental condition.” Id. This finding was reinforced 

by Dr. Chu’s notes upon Plaintiff’s transition to an outpatient program. There, Dr. Chu 

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explained that Plaintiff seemed to have consistent behavior whether he was using medication or 

not. Id.

These medical findings, relied on by the ALJ, are further confirmed by the DDS 

Consultant, Mr. Britton. Mr. Britton found that Plaintiff did suffer from depression, but it did 

not “prevent him from understanding, remembering and following simple instruction[s].” Id. 

Mr. Britton also found that Plaintiff could acclimate to supervision and some changes in routine 

while also sustaining “adequate concentration, persistence and pace for simple, routine work.” 

Id. (citing Exhibit 9F). Mr. Britton found there were only moderate limitations on Plaintiff’s 

daily life activities and ability to function in social functioning. (Tr. 210). Mr. Britton’s notes 

described Plaintiff’s marked settings in understanding, remembering, and carrying out detailed 

instructions. (Tr. 214). These limitations were directly followed by the ALJ. (Tr. 17-18).

Plaintiff relies on the Dictionary of Occupational Titles

The limited medical evidence proffered by Plaintiff’s physician and the DDS Consultant 

show that Plaintiff did well on and off his medication and only had mild impairments. There is 

as a source explaining that 

Plaintiff has a specific vocational preparation of seven. (Brief of Plaintiff at 24). This would 

mean that Plaintiff’s work as a maintenance worker would require two to four years of training to 

learn. However, Plaintiff has already been trained in maintenance work and has performed it for 

years, including when he was collecting unemployment in 2009 after the onset of his disability in 

2005. As the ALJ found, relying on medical and DDS consultant testimony, that Plaintiff could 

resume his past work, Plaintiff’s argument that he is unable to receive proper vocational training 

is irrelevant. This argument would be proper in step five, but the ALJ had sufficient evidence, 

namely the reports of Dr. Gorman and Mr. Britton, to find that Plaintiff was capable of 

performing his past relevant work despite his non-exertional limitations.

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minimal objective evidence describing abnormal cognitive functioning or severe adverse effects 

due to Plaintiff’s disability. Plaintiff must bring forth more substantial evidence than selfprovided statements of his symptoms. 20 C.F.R. §§ 404.1508, 416.908. Plaintiff must also 

provide medical evidence demonstrating any impairments and their respective severities during 

the alleged period of disability. 20 C.F.R. §§ 404.1512, 416.912. Plaintiff must be able to 

demonstrate, looking at the totality of evidence, that he or she is disabled. This should be done 

using medical findings which attest to the existence of a severe condition that produced the 

alleged limitations. 20 C.F.R. §§ 404.1529(b), 416.929(b); Hartranft v. Apfel

The Plaintiff’s lack of medical evidence in conjunction with medical evidence showing 

that Plaintiff’s disability was not a large restriction on his occupation is substantial evidence that 

supports the ALJ’s opinion. The Third Circuit has explained that a “single piece of evidence will 

not satisfy the substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict 

created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other 

evidence-particularly certain types of evidence (e.g. that offered by treating physicians)-or if it 

really constitutes not evidence but mere conclusion.” Kent v. Schweiker, 710 F.2d 110, 114 (3d 

Cir.1983). Therefore, the relevant determination for the Court is not to make a de novo review of 

the circumstances, but instead to see if the ALJ’s conclusions are reasonable. See Brown v. 

Bowen, 845 F.2d 1211, 1213 (3d Cir.1988). Even should the reviewing Court think a case could 

be decided differently, it nonetheless must defer to the ALJ and affirm the decision where it is 

supported by substantial evidence. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 

(3d Cir. 1986). In a similar case, the Third Circuit found that without medical evidence on 

behalf of a Plaintiff describing his or her “work-related functional limitations . . . [Plaintiff] 

, 181 F.3d 358, 

362 (3d Cir. 1999).

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cannot establish disability under the Social Security Act.” Lane v. Comm’r of Social Security, 

100 Fed App’x 90, 95-96 (3d Cir. 2004) (citing Petition of Sullivan, 904 F.2d 826, 845 (3d Cir. 

1990) (“A claimant must show not just diagnosis, but functional limitations preventing 

performance of substantial gainful activity.”)). The ALJ considered the opinions of Dr. Gorman 

and Dr. Chu, along with Mr. Britton’s evaluation of Plaintiff’s disability. The ALJ found, based 

in large part on these opinions, that Plaintiff was able to resume his past relevant work. (Tr. 18-

19). Therefore, the Court finds that there is substantial evidence in the record to indicate that the 

ALJ’s inquiry was at an end and there was no need to proceed to step five. 

III. CONCLUSION & ORDER

For the reasons set forth above, and after careful review of the record in its entirety, the 

Court finds that the ALJ’s conclusion that Plaintiff is not disabled is based on substantial 

evidence in the record. Accordingly, this Court AFFIRMS the Commissioner’s decision to deny 

Plaintiff Social Security Benefits.

Therefore, IT IS on this 30th day of November, 2011, hereby

ORDERED that the Commissioner’s decision is AFFIRMED; and it is further

ORDERED that this case is CLOSED.

Hon. Faith S. Hochberg, U.S.D.J.

s/ Faith S. Hochberg _

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