NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MARTIN BRESLIN,

Plaintiff,

v.

MICHAEL ASTRUE,

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Civil Action No. 11-0261-SDW

 

 OPINION

March 22, 2012

WIGENTON, District Judge.

Before the court is plaintiff Martin Breslin’s (“Plaintiff” or “Breslin”) appeal of the final 

administrative decision of the Commissioner of Social Security (“Commissioner”), with respect to 

Administrative Law Judge Cameron Elliot’s (“ALJ”) denial of Plaintiff’s claim for Supplemental 

Security Income (“SSI”) under 42 U.S.C. § 405(g). The Commissioner, pursuant to Local Civil 

Rule 9.1, seeks a judgment affirming the final decision that Plaintiff is not entitled to benefits 

pursuant to Title XVI, 42 U.S.C. §§ 1381-83, of the Social Security Act (the “Act”). 

This court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(g). 

Venue is proper under 28 U.S.C. § 1391(b). 

This appeal is decided without oral argument pursuant to Federal Rule of Civil Procedure 

78. For the reasons set forth below, this Court AFFIRMS the Commissioner’s Decision. 

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FACTUAL AND PROCEDURAL HISTORY

On January 18, 2007, Plaintiff filed an application for SSI benefits alleging that he had 

been prevented from working since September 26, 2006, due to his medical conditions. (R. at 11, 

94.) The application was initially denied and later denied upon reconsideration. (Id. at 11.) 

Subsequently, on April 8, 2008, Plaintiff filed a written request for a hearing before an ALJ. (Id.) 

On July 24, 2009, a hearing was conducted before the ALJ. (Id. at 19-40.) On August 25, 

2009, the ALJ denied Plaintiff’s application in a written Decision (“ALJ Decision”). (Id.) 

Thereafter, Plaintiff requested a review of the ALJ’s Decision with the Appeals Council, and on 

December 3, 2010, the Appeals Council affirmed the ALJ’s Decision. (Id. at 1-4.) On January 15, 

2011, Plaintiff filed an appeal with this Court challenging the denial of his request for SSI. (See

Compl.) 

A. Background and Employment History

Plaintiff was born in 1961, and was 48 years old at the time of his hearing before the ALJ. 

(R. at 15.) Plaintiff attended two years of college but did not receive a degree. (Id.) Plaintiff 

worked at the Meadowlands complex setting up souvenir stands from 1982 to 1998. (Id. at 25, 95.)

Plaintiff reported that from 1990 until 1992, he was employed as a package handler for UPS. (Id. 

at 95.) Plaintiff was employed as a film expeditor at NBC in 1994 and 1995, where his 

responsibilities included packaging films for shipment to Rockerfeller Center. (Id. at 15, 26-27.)

At this job, he lifted between 30 and 50 pounds and had to climb ladders. (Id. at 27.) Plaintiff 

testified that he was fired from the job at NBC for alcoholism related reasons. (Id.) Plaintiff last 

worked, according to his testimony, as a part of an AQL Decorating Service at a warehouse for 

about a year, until he left around 2000. (Id. at 24, 95.) This job entailed being on his feet all day, 

moving plastic and glass bottles, lifting up to 50 pounds, and loading trucks. (Id. at 24-25.)

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B. Medical History

i. 2003 Incident

On December 25, 2003, Plaintiff was admitted to the Palisades Medical Center for alcohol

intoxication and cardiopulmonary arrest. (Id. at 151.) Plaintiff was diagnosed with chronic heart 

failure, hepatic encephalopathy, acute respiratory failure, pneumonia, dehydration, gastrointestinal 

bleeding, and electrolyte imbalance. (Id. at 14, 151-52.) All of these diagnoses were related to 

acute alcohol poisoning, as Plaintiff had been drinking beer without eating for the prior three 

weeks before he collapsed in his bathroom. (Id. at 14, 155-56) On the day of the collapse, 

Plaintiff had consumed six bottles of beer before collapsing in the bathroom. (Id. at 160.) After 

being found, lying on the floor and unresponsive, Plaintiff was transported to the hospital where 

he went into cardiorespiratory arrest and had to be shocked twice in order to be revived. (Id. at 14, 

156.) 

Plaintiff received a renal consultation from Dr. Haroon Rashid who found that Plaintiff had 

“acute and severe life-threatening hyponatremia of a value of 108.” (Id. at 160.) Plaintiff was 

intubated and put on a ventilator. (Id.) Plaintiff was treated with a saline drip along with a number 

of medications including antibiotics, Lasix, and Coumadin. (Id. at 14.) Radiological tests during 

the hospitalization period showed ascites, fatty liver, mild colonic distention, and chronic heart 

failure. (Id. at 14.) However, these tests showed that the heart failure was gradually improving 

and Plaintiff was discharged in good condition on March 21, 2004. (Id. at 14, 152.) 

ii. Weight

Plaintiff alleges that obesity should be a factor. A report from the Palisades Medical 

Center from December 25, 2003, stated that Plaintiff was five feet and nine inches tall and listed

Plaintiff’s weight as 250 pounds. (Id. at 155; Pl.’s Br. 10.) However, Defendant notes that in his 

disability report, submitted as part of his January 18, 2007, claim for benefits, Plaintiff reported 

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that he was six feet tall, and listed his weight as being 175 pounds. (R. at 93; Def.’s Br. 12.) In 

addition, Defendant argues that when Plaintiff saw Dr. Ashraf K. Faltas (“Dr. Faltas”) in March 

2007, he was measured at a height of six feet and a weight of 202 pounds, (R. at 260; Def.’s Br. 

12) and when Plaintiff returned to Dr. Faltas in January 2008, he was measured at the same height

of six feet and his weight was 199 pounds. (R. at 277; Def.’s Br. 12.) 

iii. Consultative Examination

On March 20, 2007, Plaintiff underwent a consultative examination with Dr. Faltas. (Id. at 

14, 259.) Plaintiff claimed to have difficulty resting his legs, fatigue, and shortness of breath. (Id.) 

Dr. Faltas stated that there was no support in his examination or investigation for the alleged poor 

circulation in Plaintiff’s legs. (Id.) Plaintiff had previously been diagnosed with a pitting edema 

and multiple heart-related abnormalities in December 2003 following the incident discussed 

supra, when he was admitted to the Palisades Medical Center. (Id. at 162, 252.) Dr. Faltas found 

Plaintiff’s extremities to be without cyanosis, clubbing, or edema and Plaintiff’s heart to be 

normal with no gallops, murmurs, or thrills. (Id. at 260.) Plaintiff had full range of motion and full 

power along with gait and gross manipulation that were “within normal” limits without the need 

for any assistive devices. (Id.) Dr. Faltas noted that his overall physical examination of Plaintiff 

was “‘completely unremarkable’ except for atrial fibrillation and atrial flutter shown on EKG.” 

(Id. at 14, 260.)

In his report to the Division of Disability Determination Services, Dr. Faltas noted that 

Plaintiff had a twenty-year history of chronic alcohol consumption. (Id. at 259.) Plaintiff testified 

before the ALJ that he last drank alcohol the day he was admitted to the hospital in 2003. (Id. at 

15, 28.) However, on March 20, 2007, Plaintiff told Dr. Faltas that he was drinking one pint of

alcohol and a six-pack of beer every day. (Id. at 259.)

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After another visit on January 3, 2008, Dr. Faltas noted that Plaintiff “was diagnosed with 

cardiomyopathy and cardiac arrhythmia secondary to alcohol consumption.” (Id. at 276.) Dr. 

Faltas further noted that Plaintiff complained of “easy fatigability and dyspnea” as well as “pain in 

the legs bilaterally” which Plaintiff claimed had been previously diagnosed as poor circulation. 

(Id.) However, Dr. Faltas stated that plaintiff “had never had a work-up done to confirm such a 

diagnosis,” and he did not change any of Plaintiff’s medications. (Id.) Further, Plaintiff told Dr. 

Faltas that he had quit smoking and drinking alcohol since his last visit in March 2007. (Id.) 

iv. Residual Functional Capacity

On March 27, 2007, Dr. Harvey Silver (“Dr. Silver”) a state agency physician, reviewed 

the medical record and completed a Physical Residual Functional Capacity Assessment 

(“Assessment”). (Id. at 266-273) In executing the Assessment, Dr. Silver concluded that Plaintiff 

could occasionally lift and/or carry twenty pounds and that he could frequently lift and/or carry ten

pounds. (Id. at 267.) Dr. Silver also concluded that Plaintiff could stand and/or walk for at least 

two hours in an eight-hour workday, and also noted that Plaintiff could sit for about four hours 

over the same period. (Id.) Further, Dr. Silver noted that Plaintiff was not limited with regard to 

pushing and pulling other than the lifting and carrying restrictions noted above. (Id.) Plaintiff 

could occasionally work in any posture, though he could never climb ladders, ropes, or 

scaffolding. (Id. at 268.) Dr. Silver also reported that Plaintiff was only environmentally limited 

in that he had to avoid concentrated exposure to hazards, such as machinery and heights. (Id. at 

270.) Dr. Silver opined that the symptoms which Plaintiff alleged produced his physical 

limitations were “due to alcoholic cardiomyopathy.” (Id. at 271.) He stated that the “severity of 

symptoms [we]re proportionate to [the] above diagnosis,” and that the “severity of symptoms are 

consistent with medical and non medical evidence.” (Id.)

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v. Plaintiff’s Testimony

On July 24, 2009, Plaintiff testified before the ALJ. (Id. at 11.) Plaintiff testified that he 

last drank alcohol on December 24, 2003, – the “same day” he was admitted to the hospital.1 (Id.

at 28.) Plaintiff testified that he was in the hospital for six weeks followed by a stint in a different 

hospital in January 2007 or January 2008. (Id. at 28-29.) Plaintiff testified that he has poor 

circulation in his legs, gets fatigued very easily, and gets lightheaded when bending over 

repeatedly. (Id. at 30.) Plaintiff testified that if he sits for longer than approximately ten minutes he 

loses feeling in his legs, which can be alleviated by stretching and rubbing his legs and changing 

his sitting position. (Id. at 31-32.) Plaintiff also testified that he: 1) could walk at most six city 

blocks before having to sit and rest; 2) could stand about twenty minutes if he’s able to shift his 

weight; and 3) could lift and carry 35 pounds at most, but less if forced to lift and carry repeatedly. 

(R. at 33-34.) Plaintiff stated that he no longer drives on the recommendation of his treating 

physician, Dr. Samir Amin (“Dr. Amin”), due to the occasional loss of feeling in his legs. (Id. at 

37.) However, Plaintiff testified that Dr. Amin had not changed his medication in a long time and

that currently he has no problems using his arms or hands. (Id. at 35.) Plaintiff also stated that he 

no longer takes public transportation because of fear of bumping into people and falling down. 

(Id. at 38.) 

LEGAL STANDARD

In social security appeals, this Court has plenary review of the legal issues decided by the 

Commissioner. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). Yet, this Court’s review of the 

ALJ’s factual findings is limited to determining whether there is substantial evidence to support 

those conclusions. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence 

“does not mean a large or considerable amount of evidence, but rather such relevant evidence as a 

 1 Plaintiff was actually admitted to the hospital on December 25, 2003. (R. at 151.)

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reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 

U.S. 552, 565 (1988) (internal quotations omitted). 

Substantial evidence is “less than a preponderance of the evidence, but ‘more than a mere 

scintilla’; it is ‘such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.’” Bailey v. Comm’r of Soc. Sec., 354 F. App’x. 613, 616 (3d Cir. 2009) (quoting 

Richardson v. Perales, 402 U.S. 389, 401 (1971)). Importantly, “[t]his standard is not met if the 

Commissioner ‘ignores, or fails to resolve, a conflict created by countervailing evidence.’” 

Bailey, 354 F. App’x. at 616 (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). 

However, if the factual record is adequately developed, “‘the possibility of drawing two 

inconsistent conclusions from the evidence does not prevent an administrative agency’s finding 

from being supported by substantial evidence.’” Daniels v. Astrue, No. 4:08-cv-1676, 2009 WL 

1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 

620 (1966)). “The ALJ’s decision may not be set aside merely because [a reviewing court] would 

have reached a different decision.” Cruz v. Comm’r of Soc. Sec., 244 F. App’x. 475, 479 (3d Cir. 

2007) (citing Hartranft, 181 F.3d at 360). This court is required to give substantial weight and 

deference to the ALJ’s findings. Scott v. Astrue, 297 F. App’x. 126, 128 (3d Cir. 2008). 

Nonetheless, “where there is conflicting evidence, the ALJ must explain which evidence he 

accepts and which he rejects, and the reasons for that determination.” Cruz, 244 F. App’x. at 479 

(citing Hargenrader v. Califano, 575 F.2d 434, 437 (3d Cir. 1978)).

In considering an appeal from a denial of benefits, remand is appropriate “where relevant, 

probative and available evidence was not explicitly weighed in arriving at a decision on the 

plaintiff’s claim for disability benefits.” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 

1979) (quoting Saldana v. Weinberger, 421 F. Supp. 1127, 1131 (E.D. Pa. 1976)). Indeed, a 

decision to “award benefits should be made only when the administrative record of the case has 

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been fully developed and when substantial evidence on the record as a whole indicates that the 

claimant is disabled and entitled to benefits.” Podedworny v. Harris, 745 F.2d 210, 221-22 (3d 

Cir. 1984).

DISCUSSION

An individual will be considered disabled under the Act if he or she is cannot “engage in 

any substantial gainful activity by reason of any medically determinable physical or mental 

impairment” lasting continuously for at least twelve months. 42 U.S.C.A § 423(d)(1)(A). The 

impairment must be severe enough to render the individual “not only unable to do his previous 

work but [unable], considering his age, education, and work experience, [to] engage in any kind of 

substantial gainful work which exists in the national economy . . . .” 42 U.S.C.A. § 423(d)(2)(A). 

Plaintiff must show that the “medical signs and findings” related to his ailment have been 

“established by medically accepted clinical or laboratory diagnostic techniques, which show the 

existence of a medical impairment that results from anatomical, physiological, or psychological 

abnormalities which could reasonably be expected to produce the pain or other symptoms 

alleged.” 42 U.S.C.A § 423(d)(5)(A). 

The Social Security Administration utilizes a five-step sequential analysis to determine 

disability under the Act. Cruz, 244 F. App’x at 480 (citing 20 C.F.R. § 404.1520 (a)(4)(i)-(v)). 

The United States Supreme Court describes the evaluation process as follows: 

The first two steps involve threshold determinations that the claimant is not 

presently working and has an impairment which is of the required duration and 

which significantly limits his ability to work. In the third step, the medical 

evidence of the claimant’s impairment is compared to a list of impairments 

presumed severe enough to preclude any gainful work. If the claimant’s 

impairment matches or is “equal” to one of the listed impairments, he qualifies for 

benefits without further inquiry. If the claimant cannot qualify under the listings, 

the analysis proceeds to the fourth and fifth steps. At these steps, the inquiry is 

whether the claimant can do his own past work or any other work that exists in the 

national economy, in view of his age, education, and work experience. If the 

claimant cannot do his past work or other work, he qualifies for benefits.

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Sullivan v. Zebley, 493 U.S. 521, 525-26 (1990). The burden of persuasion lies with the claimant 

in the first four steps. Malloy v. Comm’r of Soc. Sec., 306 F. App’x 761, 763 (3d Cir. 2009). 

Once the claimant shows that the impairment prevents him from performing his past work, the 

burden shifts to the Commissioner to demonstrate “that the claimant still retains a residual 

functional capacity to perform some alternative, substantial, gainful activity present in the national 

economy.” Id. (citing Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987)). 

In this instant case, the ALJ denied Plaintiff SSI at step five, ultimately determining that 

there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. 

(R. at 17.) On appeal, Plaintiff argues that 1) the ALJ’s residual functional capacity (“RFC”)

conclusion improperly evaluated the medical evidence; and 2) the ALJ erred by failing to require 

the testimony of a vocational expert to testify as to how Plaintiff’s non-exertional impairments

would limit his occupational base. (See generally, Pl.’s Br.) 

The Commissioner, however, argues that: 1) the ALJ’s Decision is supported by 

substantial evidence; 2) the ALJ properly evaluated medical evidence and determined that Plaintiff 

could perform a range of light work; 3) the ALJ properly evaluated Plaintiff’s credibility; and 4)

the ALJ properly used the Medical-Vocational Guidelines to determine that Plaintiff could do 

other work. (See generally, Def.’s Br.) For the reasons expressed below, this Court affirms the 

ALJ’s Decision because substantial evidence supports the ALJ’s findings. 

A. Step One

Substantial gainful activity is work that involves significant physical or mental activities 

and is done for pay or profit. See 20 C.F.R. § 416.972(a)-(b). If a claimant is found to be 

engaged in substantial gainful activity, the disability claim will be denied. See Bowen v. Yuckert, 

482 U.S. 137, 140 (1987). In the instant matter, the ALJ determined that Plaintiff had not 

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engaged in any substantial gainful activity since January 18, 2007, the date of his SSI application. 

(R. at 13.) 

B. Step Two

In determining step two, the ALJ should consider the symptoms and the extent to which 

they can reasonably be accepted with objective medical evidence as well as other relevant 

evidence. See 20 C.F.R. § 416.929. Under the applicable regulations, a severe impairment exists

only if it significantly restricts the Plaintiff’s physical or mental ability to do “basic work 

activities.” 20 C.F.R. § 404.1521(b).

In the instant matter, at step two, the ALJ determined that Plaintiff has the severe 

impairment of chronic heart failure limiting his physical ability to do basic work. (R. at 13.) The 

ALJ determined that Plaintiff’s other ailments “were generally acute and not expected to last at 

least 12 months, or claimant has recovered from them.” (Id.) Additionally, the ALJ found that 

there was no medical evidence to support Plaintiff’s claims of bad circulation in his legs or a 

myocardial infarction. (Id.)

C. Step Three

a. Whether Impairment Matches or is Equivalent to a Listed Impairment 

At step three, the ALJ must “compare the claimant’s medical evidence to a list of 

impairments presumed severe enough to negate any gainful work.” Caruso v. Comm’r of Soc. 

Sec., 99 F. App’x. 376, 379 (3d Cir. 2004). When a claimant’s impairments meet or equal a 

listing, “disability is conclusively established and the claimant is awarded benefits.” Knepp, 204 

F.3d at 85. The Third Circuit requires the ALJ to “fully develop the record and explain his 

findings at step three.” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000). 

The ALJ must issue more than just a conclusory statement that a claimant does not meet the 

listings. See Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir. 2001) (citing Burnett, 220 F.3d at 

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119-20). However, “Burnett ‘does not require the ALJ to use particular language or adhere to a 

particular format in conducting his analysis.’” Padilla v. Comm’r of Soc. Sec., No. 09-2897, 2010 

WL 2346650 at *5 (D.N.J. June 9, 2010) (quoting Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 

2004)). 

In the instant matter, at step three, the ALJ determined that Plaintiff did not have an 

impairment that matched or was equivalent to a listed impairment. (R. at 13.) In assessing 

whether the Plaintiff had an impairment that would match a listed impairment, the ALJ analyzed 

and compared Plaintiff’s medical evidence in accordance with the applicable listings in 20 C.F.R. 

pt. 404 subpart P appendix. 1. 20 C.F.R. § 404.1525. The ALJ found that there was “insufficient 

evidence to establish the requirements of listing 4.02, pertaining to chronic heart failure.” (R. at

13.)

b. Determination of RFC

If an impairment is found to not meet or equal a listed impairment, the ALJ must determine 

Plaintiff’s RFC before moving on to the fourth step of the analysis. See 20 C.F.R. 404.1520(e). In 

making this determination the ALJ must consider all of Plaintiff’s impairments, including those 

that are not severe. See 20 C.F.R. § 404.1520(e) (2012); 20 C.F.R. § 404.1545; and SSR 96-8. 

When considering Plaintiff’s symptoms, the ALJ must first determine whether there are

underlying medically acceptable clinical and laboratory diagnostic techniques that could 

reasonably demonstrate Plaintiff’s pain or other symptoms. See 20 C.F.R. § 404.1527. Then the 

ALJ must evaluate the intensity, persistence, and restrictive effects of Plaintiff’s symptoms to 

determine how much they limit Plaintiff’s ability to do basic work activities. Id. Whenever 

statements about the intensity, persistence, and restrictive effects of Plaintiff’s symptoms are not 

corroborated by medical evidence, the ALJ must determine the credibility of the statements based 

on a consideration of the entire record. Id. The Commissioner has the discretion to determine 

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credibility and independently make a judgment based on medical findings and other evidence 

related to Plaintiff’s symptoms. See La Corte v. Bowen, 678 F. Supp. 80, 83 (D.N.J. 1988). 

In the instant matter, the ALJ determined that Plaintiff had the RFC “to perform the full 

range of light work as defined by 20 C.F.R. § 416.967(a)” with specific exceptions regarding 

standing and walking more than two hours a day and avoiding concentrated exposure to hazards. 

(R. at 13.) In addition, the ALJ made an exception stating that Plaintiff was “limited to occasional 

balancing, stooping, kneeling, crouching, crawling, and climbing ramps and stairs, and cannot 

climb ladders ropes, or scaffolds.” (Id.)

In making his decision, the ALJ relied on the following: 1) Plaintiff stated in his Function 

Reports that he can walk 2-3 blocks at a time, lift 25 pounds but not repeatedly, and cannot bend.”

(Id. at 15, 126, 145);2 2) Plaintiff’s consultative examination was “completely unremarkable” and 

suggested no limitations (Id. at 16, 260); 3) Plaintiff was not credible in his allegations of poor 

circulation in his legs and a prior heart attack (Id. at 16); and 4) Plaintiff was not credible and 

inconsistent regarding his drinking. (Id.)3

In light of the evidence relied upon by the ALJ, this Court concludes that the ALJ properly 

determined Plaintiff’s RFC.4

D. Step Four

At step four, the Commissioner must determine whether Plaintiff has the RFC to fulfill the 

requirements of his past relevant work. See 20 C.F.R. § 404.1520(f). The term “past relevant 

 2 Plaintiff also “testified that he can walk six blocks, sit for 10 minutes at a time, lift 35 pounds but not repeatedly, and 

cannot bend without risk of passing out.” (R. at 16, 31-34.)

3 Dr. Faltas also stated that Plaintiff had “cardiomyopathy and cardiac arrhythmia secondary to alcohol consumption.” 

(R. at 276) (emphasis added). 4 Plaintiff alleges in his brief that Plaintiff was obese and the ALJ was required to consider this as a factor and did not 

do so. (Pl.’s Br. 10.) These allegations are unsustainable given that the only documented example of Plaintiff in an 

obese range is a report from the Palisades Medical Center, which was filled out in 2003, before the timeframe to be 

considered for Plaintiff’s SSI application. (R. at 155; see also Def.’s Br. 12.) 

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work” means work performed, either as Plaintiff performed it or as it is generally performed in the 

national economy, within the last fifteen years or fifteen years prior to the date that disability must 

be established. 20 C.F.R. § 404.1560(b). If Plaintiff does not have the RFC to perform any past 

relevant work, the analysis proceeds to the fifth step. 20 C.F.R. § 404.1520. 

At step four, in this case, the ALJ properly determined that Plaintiff is unable to perform 

any past relevant work pursuant to 20 C.F.R. § 404.1565. The ALJ noted that Plaintiff has the 

past relevant work as a film expeditor. (R. at 16.) As Plaintiff is limited physically with regard to 

exertion and exposure to hazards, the skills required by that job are outside his RFC. Therefore,

the Commissioner correctly found that Plaintiff is unable to perform any past relevant work. 

E. Step Five

At the fifth step, the ALJ must determine whether Plaintiff is able to do any other work 

considering his RFC, age, education, and work experience. See 20 C.F.R. 404.1520(f),(g). If 

Plaintiff can do other work, he is not disabled. (Id.) If the claimant establishes that his 

impairment prevents him from performing any of his past work, the burden shifts to the 

Commissioner at step five to determine whether the claimant is capable of performing alternative, 

substantial, gainful, activity present in the national economy. See 20 C.F.R. § 416.920(g);

Kangas, 823 F.2d at 777.

The ALJ has to consider whether Plaintiff’s limitations are exertional or non-exertional. 

See C.F.R. § 404.1569a(a). A limitation is exertional if it affects the Plaintiff’s “ability to meet 

the strength demands of [a job]” such as “sitting, standing, walking, lifting, carrying, pushing, and 

pulling.” Id. A limitation is non-exertional if it affects the Plaintiff’s “ability to meet the 

demands of [a job] other than strength demands.” Id. If the limitations are only exertional, the 

ALJ can refer to the Medical-Vocational Guidelines to determine whether Plaintiff can perform 

any other job in the national economy. See C.F.R. pt. 404, subpart P, app. 2; 20 C.F.R. 

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404.1520(f),(g). However, if there are both exertional and non-exertional limitations, the ALJ 

cannot depend on the guidelines to determine whether there are jobs in the national economy that 

Plaintiff can perform. See Sykes v. Apfel, 228 F.3d 259, 269 (3d Cir. 2000). 

Under Section 416.963, a younger person, under the age of fifty, with at least a high school 

education and previous work experience, is not disabled unless the ALJ finds particular 

limitations specific to the individual. See 20 C.F.R. §§ 416.963(c), 416.964(b)(4), 416.965. An 

ALJ must make an “assessment of factors such as the type and extent of the individual’s 

limitations or restrictions and the extent of the erosion of the occupational base.” 20 C.F.R. pt. 

404, subpart P, app. 2 § 201.00(h)(3) (2012). Additionally, this finding “requires an 

individualized determination that considers the impact of the limitations or restrictions on the 

number of sedentary, unskilled occupations or the total number of jobs to which the individual 

may be able to adjust.” Id. 

Here, the ALJ found that although there were exceptions to Plaintiff’s ability to perform a

full range of light work, a finding of “not disabled” was still warranted under Medical-Vocational 

Rule 202.21. (R. at 17.) The ALJ found that Plaintiff had only exertional limitations and that “the 

additional limitations have little effect on the unskilled light or sedentary occupational bases.”

(Id.) The ALJ noted that restrictions on climbing and unusual hazards do not significantly erode 

the sedentary occupational base as per SSR’s 96-9p. (R. at 17.) The ALJ further elaborated that 

“stooping is required occasionally, at most, and limitations on climbing ropes, ladders, and 

scaffolds, balancing, kneeling, crouching, and crawling do not erode the sedentary occupational 

base.” (SSR 96-9p, R. at 17.) 

Plaintiff argues that the ALJ erred by not requiring the testimony of a vocational expert to 

testify as to how Plaintiff’s non-exertional impairments would limit his occupational base. (Pl.’s 

Br. 12.) The ALJ stated that Plaintiff is capable of performing sedentary, unskilled jobs such as 

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surveillance system monitor, call-out operator, telephone quotation clerk, and scoreboard 

operator. (R. at 17.) The ALJ properly applied Medical-Vocational Rule 202.21 and was not 

required to give examples of jobs which Plaintiff was able to perform. However, contrary to 

Plaintiff’s assertion, the fact that he did so does not constitute the ALJ substituting his own 

testimony for that of a vocational expert. (See Pl.’s Br. 12.) In addition, the ALJ was considering 

exertional limitations and did not find any relevant non-exertional limitations. (See R. at 17.) As 

such, the ALJ’s use of the Medical-Vocational Guidelines and determination that Plaintiff could 

perform other work was warranted. 

CONCLUSION

For the foregoing reasons, the Court finds that substantial evidence supports the ALJ’s 

Decision. Accordingly, the Court AFFIRMS the ALJ’s Decision. 

s/Susan D. Wigenton, U.S.D.J.

Orig: Clerk

Cc: parties

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