UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CARMINE POTESTA,

Plaintiff,

v.

MICHAEL ASTRUE,

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Civil Action No. 2:11-1654-SDW

 

OPINION

December 22, 2011

Wigenton, District Judge,

Before the court is Plaintiff Carmine Potesta‟s (“Plaintiff” or “Potesta”) appeal of 

the final administrative decision of the Commissioner of Social Security 

(“Commissioner”), with respect to Administrative Law Judge Brian H. Ferrie‟s (“ALJ”) 

denial of Potesta‟s claim for Social Security Disability Insurance benefits (“SSDI”) under 

42 U.S.C. § 405(g).

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

Procedure 78. This court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 405(g) 

and 1383(g). Venue is proper under 28 U.S.C. § 1391(b). For the reasons stated herein, 

this Court AFFIRMS the Commissioner‟s decision. 

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BACKGROUND

Plaintiff was previously receiving Supplement Security Income benefits (“SSI”) 

as a result of being diagnosed with post traumatic stress disorder (“PTSD”). (Pl.‟s Br. 3.) 

In 2003, Plaintiff‟s SSI ceased as a result of Plaintiff being incarcerated. (Id.) On 

November 20, 2006, Plaintiff reapplied for SSI. (Id.) The Commissioner denied the 

application initially and upon reconsideration. (Pl.‟s Br. 2-3.) Subsequently, Plaintiff 

requested a hearing before an ALJ, who on February 19, 2010, held that Plaintiff had 

neither a severe impairment nor a severe combination of impairments, and consequently, 

was not disabled. (Id. at 2.) Thereafter, Plaintiff appealed the ALJ‟s decision, and in 

September 2010 the Social Security Appeals Council denied Plaintiff‟s request for 

review, thus the ALJ‟s decision became final. (Def.‟s Br. 2.) On September 14, 2011,

Plaintiff filed an appeal with this Court. (Pl.‟s Br. 1.)

Plaintiff, pursuant to 42 U.S.C. § 405B, seeks judicial review from the final 

administrative decision of the Commissioner denying his claim for Social Security 

Disability Insurance (“SSDI”) benefits. (Pl.‟s Br. 1) The Commissioner, pursuant to 

Federal Rule of Civil Procedure 12(c), seeks a judgment affirming his final decision that 

Plaintiff was not disabled, and thus, not eligible for SSI under Title XCI of the Social 

Security Act (the “Act”). (Def.‟s Br. 1)

FACTS

A. Employment History

Plaintiff was born on September 15, 1963. (Pl.‟s Br. 3.) From 1980 to 2001 

Plaintiff was employed as a waiter. (R. at 98.) As a waiter, Plaintiff took food orders, 

carried orders from the kitchen to tables and vice versa, and generally walked and stood 

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for seven hours. (R. at 99.) Plaintiff also frequently lifted eighty pounds during the

workday. (Id.) 

B. Medical History

In September 2001 an ALJ found Plaintiff to be disabled beginning on August 21, 

2001, thereby making Plaintiff eligible for SSI. (R. at 26-27.) In June 2003, Plaintiff 

was imprisoned for forty-one months, during which his SSI was suspended. (R. at 27.) 

Despite having been previously diagnosed with PTSD, Plaintiff did not see a psychiatrist

while he was imprisoned. (R. at 33.) Plaintiff alleged that he did not seek mental help 

while in prison because he was in solitary confinement. (R. at 34.) Plaintiff did, 

however, seek treatment while in prison for stomach problems, diarrhea, and headaches. 

(R. at 149.) 

In November 2006, upon release from prison, Plaintiff began seeing Rachel 

Markowitz (“Markowitz”) from Meridian Behavioral Health as a preventive measure

because he felt he was unstable and believed his health had deteriorated in prison. (R. at 

31.) Markowitz started Plaintiff on 300 milligrams of Seroquel, and Xanax three times a 

day. (Id.) 

At his hearing, Plaintiff alleged that due to the severity of his condition his 

medication was going to be changed because, “[he] need[ed] more stuff.” (R. at 31.) 

Plaintiff stated that due to being shot in the stomach four times, his organs can only 

tolerate the medications prescribed for a certain time before they start affecting his liver. 

(R. at 32.) At the time of the hearing before the ALJ, Plaintiff was being tested to 

determine what medications would be suitable. (Id.) 

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C. Daily Activities and Residual Functional Capacity

Plaintiff begins his day by eating breakfast, and then attending doctor 

appointments. (R. at 106.) Afterwards, he returns home, goes for a walk, eats dinner, 

takes a shower, and goes to sleep. (Id.) Plaintiff also spends about two hours a day doing 

basic cleaning and laundry. (R. at 107.) Plaintiff prepares his meals daily. (R. at 108.) 

Plaintiff goes outside daily. (Id.) He goes shopping for food, clothes, and basic 

necessities. (R. at 109.) Plaintiff does not drive because it frustrates him. (Id.) 

Plaintiff spends time daily watching television, reading, and relaxing. (Id.) Plaintiff also 

goes to the movies and church weekly. (Id.) However, Plaintiff alleges that he limits the 

time he spends with people because he cannot tolerate the stress. (R. at 110.)

D. Medical Evidence

On December 27, 2006, Dr. Christopher Williamson (“Williamson”), a 

consultative psychologist, evaluated Plaintiff at the request of the Social Security 

Administration (“SSA”). (Def.‟s Br. 3.) Williamson observed that Plaintiff‟s speech was 

clear, coherent, and goal directed. (Id.) His mood was sullen, depressed, anxious, and 

somewhat irritable. (Def.‟s Br. 3.) Williamson also diagnosed Plaintiff with PTSD. (Id.) 

On March 2, 2007, Dr. Michael D‟Adamo (“D‟Adamo”), a psychological 

consultant, reviewed Plaintiff‟s medical record and assessed that Plaintiff‟s depressive 

disorder and anxiety-related disorder did not meet any of the listed impairments1. (Def.‟s 

Br. 3.) D‟Adamo assessed that Plaintiff had mild restrictions in performing daily 

activities of living, maintaining social functioning, and in maintaining concentration, 

persistence, or pace. (Id.) D‟Adamo opined that “[P]laintiff could handle three-step 

 

1 A claimant‟s impairment or combination of impairments must meet or medically equal the criteria of 

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. 416.920(d), 416.925, and 

416.926. 

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directions, focus adequately upon routine job tasks, adapt socially in a job where the 

interpersonal demands were modest, and be productive in slower paced jobs where there 

was minimal coordination with others.” (Id.) 

On June 11, 2007, Plaintiff was evaluated at Riverview Medical Center. (Pl.‟s Br.

5.) Plaintiff reported that he had significant anxiety and flashbacks to the time when he 

was shot, and that he was also stressed because his mother had a brain tumor. (Id.) 

Plaintiff was also seen in the past by Dr. Brett Prince (“Prince”) who diagnosed

Plaintiff with PTSD and mixed personality disorder with borderline and antisocial traits. 

(Id.) 

Markowitz treated Plaintiff for complaints of anxiety from June 11, 2007 through 

January 31, 2008. (Id.) Markowitz observed that Plaintiff‟s: (1) “mood was anxious”;

(2) “thought process was somewhat tangential, but redirectable”; (3) “insight and 

judgment were fair”; and (4) “impulse control was adequate”. (R. at 191-92.) Markowitz 

also diagnosed Plaintiff with PTSD, and intermittent explosive disorder. (Id.) From July 

2007 through January 2008, Markowitz observed that Plaintiff‟s mental status had

generally remained unchanged since her June 2007 examination. (R. at 194-197.) 

In July 2007, Plaintiff told Markowitz that his mood was better, his girlfriend was 

moving in with him, he was sleeping better, and his medications were helpful. (R. at 

194.) Plaintiff complained of stress due to work and that he could not keep a job due to 

his temper. (Id.) In September 2007, Plaintiff told Markowitz that he had lost his job as 

a waiter due to verbally lashing out at customers, but had found a new job. (R. at 195.) 

In November 2007, Plaintiff attended his daughter‟s twenty-first birthday party in 

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Florida. (R. at 196.) In January 2008, Plaintiff told Dr. Markowitz that he was attending 

culinary school. (Id.) 

On January 31, 2008, Markowitz completed a medical questionnaire for the

Monmouth County Division of Social Services. (R. at 184-87.) Markowitz determined

that Plaintiff would be disabled for up to one year due to his anxiety disorder. (R. at 

185.) 

On August 17, 2010, after the ALJ‟s February 19, 2010 decision, Plaintiff‟s 

treating physician, Dr. Mark Seglia (“Seglia”), completed an exam on behalf of the State 

of New Jersey. .(Pl.‟s Br. 6.) Seglia indicated that the Plaintiff suffered from bipolar and 

personality disorder. (Id.) Seglia also indicated that Plaintiff had severe mood disorders, 

oscillations, obsessive reflections and impulsive behavior. (Id.) Seglia stated that the 

length of disability was 12 months or more. (Id.) 

E. ALJ Decision 

On July 20, 2009, Plaintiff had a hearing before ALJ Ferrie. (R. at 23.) The ALJ 

asked Plaintiff if there was additional information available regarding the duration of his 

condition. (R. at 35.) Plaintiff responded in the affirmative and stated that he would 

provide the information. (Id.) At this hearing Plaintiff noted that Dr. Prince had made a 

diagnosis of PTSD with explosive disorder. (Id.) The ALJ further noted that Plaintiff 

had “mixed personality disorder and all of the symptoms and signs consist[ent] with at 

least 8515 limitations as to sustained persistence.” (Id.) The ALJ stated that if Plaintiff 

provided documentation indicating that the duration of Plaintiffs impairments meet the 

statutory requirement, he would rule in the Plaintiff‟s favor. (Id. at 16.) Plaintiff offered 

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to provide the ALJ with the additional documents regarding his condition no later than 

four days after the hearing. (Id.)

In November 2009 and January 2010, the Commissioner arranged for Plaintiff to 

undergo a psychiatric evaluation by a consultative psychologist; however, both times 

Plaintiff failed to attend his evaluation. (Def.‟s Br. 2.) Subsequently, on February 19, 

2010, the ALJ issued an unfavorable decision2. (R. at 13-19.) 

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 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 

 

2

Plaintiff‟s Brief states the date of the ALJ‟s decision as February 18, 2010, however, the ALJ‟s decision

on the record is dated February 19, 2010. 

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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.” 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). The 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 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).

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DISCUSSION

An individual will be considered disabled under the Social Security Act (the 

“Act”) if he or she is unable to “engage in any substantial gainful activity (“SGA”) by 

reason of any medically determinable physical or mental impairment” lasting 

continuously for at least twelve months. 42 U.S.C. § 423(d)(1)(A). The physical or 

mental 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. § 423(d)(2)(A). A claimant must show that the “medical signs and 

findings” related to her 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 . . . .” Id. 

In order to establish a prima facie case of disability under the Act, a plaintiff bears 

the burden of demonstrating (1) that he was unable to engage in SGA by reason of 

physical or mental impairment that could have been expected to last for a continuous 

period of at least twelve months, and (2) that the existence of such impairment was 

demonstrated by evidence supported by medically acceptable clinical and laboratory 

techniques. See 42 U.S.C. § 1382c(a)(3). 

In determining disability, the SSA utilizes a five-step sequential analysis. See 20 

C.F.R. § 416.920; See also Cruz, 244 F. App‟x. at 479. A determination of non-disability 

at steps one, two, four or five in the five-step analysis ends the inquiry. See 20 C.F.R. § 

416.920. A determination of disability at steps three and five results in a finding of 

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disability. See id. If an affirmative answer is determined at steps one, two, or four the 

SSA proceeds to the next step in the analysis. See id. 

At step one, the Commissioner must determine whether the claimant is engaging 

in SGA. See 20 C.F.R. 416.920(b). SGA is defined as work activity that is both 

substantial and gainful. “Substantial work activity” is work activity that involves doing 

significant physical or mental activities. See 20 C.F.R. 416.972(a). “Gainful work 

activity” is work that is usually done for profit, whether or not profit is realized. See 20 

C.F.R. 416. 972(b). If an individual engages in SGA, he is not disabled regardless of the 

severity of his physical or mental impairments. See id. If the individual is not engaging 

in SGA, the Commissioner proceeds to the next step. See id.

At step two, the Commissioner must determine whether the claimant has a 

medically determinable severe impairment or a severe combination of impairments. See

20 C.F.R. 416.920(c). An impairment or combination of impairments is “severe” within 

the meaning of the regulations if it significantly limits an individual‟s ability to perform 

basic work activities. See 20 C.F.R. 416.921. An impairment or combination of 

impairments is not severe when medical and other evidence establish only a slight 

abnormality or combination of abnormalities that would have a minimal effect on an 

individual‟s ability to work. See id. If the claimant does not have a severe impairment or 

severe combination of impairments, he is not disabled. See 20 C.F.R. 416. 972(c). If the 

claimant has a severe impairment or severe combination of impairments, the analysis 

proceeds to the third step. See id. 

At step three, the Commissioner must determine whether the claimant‟s 

impairment or combination of impairments meets the criteria of an impairment listed in 

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20 C.F.R. Part 404, Subpart P Appendix 1. See 20 C.F.R. 416.920(d), 416.925, 416.926. 

If the claimant‟s impairment or combination of impairments meets the criteria of a listing 

and the duration requirement, the claimant is disabled. See 20 C.F.R. 416.920(d). If the 

claimant does not, the analysis proceeds to the next step. See id. 

After step three, but before considering step four, the Commissioner must first 

determine the claimant‟s residual functional capacity (“RFC”). See 20 C.F.R. § 

416.920(e); Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987). An individual‟s RFC is 

his ability to do physical and mental work activities on a sustained basis despite 

limitations from his impairments. See 20 C.F.R. § 404.1545. In making this 

determination, the Commissioner must consider all of the claimant‟s impairments, 

including impairments that are not severe. See 20 C.F.R. § 416.920(e), 416.945. 

At step four, the Commissioner must determine whether the claimant has the RFC 

to perform the requirements of his past relevant work. See 20 C.F.R. 416.920(f). “Past 

relevant work” means work performed within the fifteen years prior to the date that 

disability must be established. See id. If the claimant has the RFC to perform his past 

relevant work, the claimant is not disabled. See id. If the claimant is unable to do any 

past relevant work or does not have any past relevant work, the analysis proceeds to the 

fifth step. See id.

At step five, the Commissioner must determine whether the claimant is able to do 

any other work considering his RFC, age, education, and work experience. See 20 C.F.R. 

§ 416.920(g). 

The claimant bears the burden of persuasion in the first four steps. Malloy v. 

Comm’r of Soc. Sec., 306 F. App‟x. 761, 763 (3d Cir. 2009). If the claimant establishes 

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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. 

In this instant case, the ALJ only addressed the first two steps. The ALJ found

that: (1) Potesta has not engaged in SGA since November 20, 2006, the date of the 

application; (2) Potesta has the following medically determinable impairments: affective 

mood disorder and anxiety; (3) Potesta‟s impairment does not significantly limit his 

ability to perform basic work related activities; and (4) Potesta, as of November 20, 2006, 

does not have a disability as defined in the Act. (R. at 15-19.) 

On appeal, Plaintiff argues that the ALJ‟s decision was not based on substantial 

evidence as required by 42 U.S.C. § 405(g) and that the ALJ erred as a matter of law in 

evaluating the case. Plaintiff‟s argument has four grounds. First, Plaintiff argues that the 

ALJ violated the Third Circuit‟s rule set forth in Burnett v. Commissioner of Social 

Security Administration, 220 F.3d 112, 119-20 (3d Cir. 2000), when the ALJ held that 

Plaintiff did not meet the listings. Second, Plaintiff argues that the ALJ failed to comply 

with 20 C.F.R. § 404.1527 and Plummer v. Apfel, 186 F.3d 422 (3d Cir. 1999), by failing 

to accord weight to the opinion of Plaintiff‟s treating physicians. Third, Plaintiff argues 

that the ALJ failed to properly evaluate the Plaintiff‟s residual function capacity as 

required by Burnett. Last, Plaintiff argues that, the ALJ erred in properly evaluating 

Plaintiff‟s subjective complaints as required by Social Security Ruling 96-7P and 

Schaudeck v. Commissioner, 181 F.3d 429 (3d Cir. 1999). 

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The Commissioner, however argues that: 1) Plaintiff‟s impairment was not of 

listings-level severity; 2) the ALJ properly evaluated the medical evidence; 3) the ALJ 

properly evaluated Plaintiff‟s credibility; and 4) the evidence submitted to the appeals 

council following the issuance of the ALJ‟s decision provided no basis to change the 

ALJ‟s decision. 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. 

Step One: Whether Potesta is Currently Engaging in Substantial Gainful Activity.

As SGA is work that involves significant physical or mental activities and done 

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

SGA, the disability claim will be denied. See Bowen v. Yuckert, 482 U.S. 137, 140 

(1987). The ALJ determined that Potesta has not engaged in any SGA since November 

20, 2006, the date of his SSI application. (R. at 15.) 

A. Step Two: Whether Potesta has a “severe” impairment or combination of 

impairments that affects his ability to do basic work activities.

In executing step two, the ALJ must consider all symptoms and the extent to 

which these symptoms can reasonably be accepted with objective medical evidence and 

other evidence. See 20 C.F.R. 416.929. Under the applicable regulations, an impairment 

is severe only if it significantly limits the claimant‟s physical or mental ability to do

“basic work activities,” such as,

physical abilities and aptitudes necessary to do most jobs, 

including, for example, walking, standing, sitting, lifting, 

pushing, pulling, reaching, carrying or handling, or mental 

activities such as understanding, carrying out, and 

remembering simple instructions; use of judgment; 

responding appropriately to supervision, co-workers and 

usual work situations; and dealing with changes in a routine 

work setting. 

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20 C.F.R. § 404.1521(b). A “severe” impairment is distinguishable from “a slight 

abnormality,” which has such a minimal effect that it would not be expected to interfere 

with the claimant's ability to work, regardless of his age, education, or work experience. 

See Bowen, 482 U.S. at 149-51. As previously stated, the claimant has the burden of 

showing that an impairment is severe. Id. at 146 n.5.

Here, the ALJ, determined that Plaintiff did not have a severe impairment or 

combination of impairments limiting his mental ability to do basic work. (R. at 16.) In 

assessing the severity of Plaintiff‟s affective mood disorder and anxiety disorder, the ALJ 

considered the four broad areas of functioning specified in the Commissioner‟s 

regulations for determining the severity of a mental impairment. (R. at 18.) The four 

areas of functioning are: (1) activities of daily living, (2) maintaining social functioning

(3) maintaining concentration, persistence, or pace, and (4) episodes of decompensation. 

See 20 C.F.R. § 416.920a(b)(3). The ALJ, based on the evidence, properly assessed that 

Plaintiff did not have a severe impairment.

 Regarding the first functioning area, D‟Adamo assessed that Plaintiff had mild 

restrictions in performing daily activities of living. Plaintiff stated in his Function Report 

that, “he goes to doctors appointments . . . goes for a walk, eats dinner, takes a shower, 

and goes to sleep . . . spends about 2 hours doing basic cleaning and laundry. . .and 

prepares his meals daily.” (R. at 106.) Plaintiff spends time daily watching television,

reading, and relaxing. (Id.) Plaintiff also goes to the movies and church weekly. (Id.) 

Regarding the second functioning area, Plaintiff, by his own actions has 

demonstrated the ability to maintain social functioning. In July 2007, Plaintiff reported 

to Markowitz that his mood was better and that his girlfriend was moving with him. (R.

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at 194.) In November 2007, Plaintiff attended his daughter‟s twenty-first birthday party 

in Florida. (Id. at 196.) In January 2008, Plaintiff told Dr. Markowitz that he was 

attending culinary school. (Id. at 197.) Williamson also observed that Plaintiff‟s speech 

was clear, coherent, and goal directed. (R. 161.) 

Last, regarding the third functioning area, D‟Adamo observed that Plaintiff only 

had moderate limitations in accepting instructions and responding appropriately to 

criticism from supervisors; and getting along with co-workers. (Id. at 176-77.) 

D‟Adamo concluded that Plaintiff could “handle three-step directions”, “focus adequately 

upon routine job tasks”, “adapt socially in a job where the interpersonal demands were 

modest”, and “be productive in slower paced jobs where there was minimal coordination 

with others.” (Id. at 178.) 

In light of the evidence in the record, the ALJ‟s determination was proper. 

B. Step Three: Whether Potesta’s 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). This is an “argument which is entirely 

dependent upon the merits of [Plaintiff‟s] argument that the ALJ erred at [s]tep [t]wo.” 

Salles, 229 Fed. App‟x. at 145. When a claimant‟s impairments meet or equal a listing, 

“disability is conclusively established and the claimant is awarded benefits.” Knepp v. 

Apfel, 204 F.3d 78, 85 (3d Cir. 2000). 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 is required to issue more than just a 

conclusory statement that a claimant does not meet the listings. See Fargnoli v. 

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Massanari, 247 F.3d 34, 40 (3d Cir. 2001) (citing Burnett v. Comm’r of Soc. Sec. Admin., 

220 F.3d at 119-20). 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) (citing Jones v. Barnhart, 

364 F.3d 502, 505 (3d Cir. 2004)). 

The ALJ, at step two, determined that Plaintiff did not have a severe impairment 

or combination of impairments that affected his ability to do work. (R. at 16.) 

Consequently, the ALJ did not conduct a step three analysis. A finding of non-disability 

at step two of the five-step analysis ends the inquiry. See Cruz v. Comm’r of Soc. Sec., 

244 F. App‟x. 475, 479 (3d Cir. 2007). Therefore, Plaintiff‟s argument that the ALJ 

failed to consider his RFC is misplaced. 

CONCLUSION

For the foregoing reasons, the Court holds that substantial evidence supports the 

ALJ‟s decision. Accordingly, the Court AFFIRMS the judgment of the ALJ. 

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

Orig: Clerk

Cc: Madeline Cox Arleo, U.S.M.J.

Parties 

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