NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ANTHONY PEREZ,

Plaintiff,

v.

MICHAEL ASTRUE,

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Civil Action No. 2:10-6256-SDW

 

OPINION

January 19, 2012

Wigenton, District Judge,

Before the court is Plaintiff Anthony Perez‟s (“Plaintiff” or “Perez”) appeal of the final 

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

Administrative Law Judge James Andres‟s (“ALJ”) denial of Perez‟s claim for Social Security 

Disability Insurance benefits (“SSDI benefits”) under 42 U.S.C. § 405(g). The Commissioner, 

pursuant to Local Civil Rule 9.1, seeks a judgment affirming his final decision that Plaintiff is not 

entitled to SSDI benefits under the Social Security Act (the “Act”). (Def.‟s Br. 1.) 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). This appeal is decided without oral argument pursuant to Federal Rule of Civil 

Procedure 78. For the reasons stated herein, this Court AFFIRMS the Commissioner‟s decision. 

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BACKGROUND

On May 16, 2007, Plaintiff filed an application for SSDI benefits alleging disability since 

June 15, 2004, due to his medical conditions. (R. at 9.) The application was initially denied and 

later denied upon reconsideration. (Id. at 9.) Subsequently, on September 20, 2008, Plaintiff 

timely requested a hearing before an ALJ. (Id.) 

On November 24, 2009, a hearing was conducted before the ALJ. (Id.) On December 18, 

2009, the ALJ denied Plaintiff‟s application. (Id.) Thereafter, on August 6, 2010, Plaintiff 

requested a review of the ALJ‟s decision with the Appeals Council alleging various legal errors. 

(See R. at 120-31.) On October 4, 2010, the Appeals Council affirmed the ALJ‟s decision. (Id. at 

1.) On December 3, 2010, Plaintiff filed an appeal with this Court challenging the denial of his 

request for SSDI benefits. (See Compl.) 

FACTS

A. Employment History

Plaintiff was born in 1967, in the Dominican Republic, and immigrated to the United States

in 1993. (R. at 61; Pl.‟s Br. 3.) Plaintiff received a Bachelor of Arts degree in the Dominican

Republic, and obtained a Master‟s Degree in Communication Arts from the New York Institute of

Technology. (R. at 61.) Plaintiff later became employed as a reporter/anchor for a Spanish news 

television station, Univision. (Id. at 62-63, 89.) 

On May 9, 2001, while covering a news story for Univision, Plaintiff was allegedly 

brutalized by a police officer. (Id. at 63.) As a result, Plaintiff suffered injuries to his back, and 

left knee. (Id. at 12-13.) Due to these injuries, Plaintiff was out of work for six months. (Id. at 

13.) Upon recovery, Plaintiff returned to his job as a reporter and reinjured his leg. (Id. at 63.) 

Plaintiff‟s contract with the news station was not renewed. (R. at 85.) Consequently, Plaintiff 

began working as a real estate agent. (Id. at 88.) On June 15, 2004, Plaintiff ceased working 

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because he began to develop symptoms of Post-Traumatic Stress Disorder (“PTSD”), depression, 

had a herniated disc in his lumbar spine, and pain in his left ankle, knee, and hip. (Id. at 88.) 

B. Medical History

i. Back Impairment

On May 26, 2001, an MRI of the lumbar spine revealed probable annular fissure 

degeneration at L5-S1, with central protrusion abutting the S1 roots without displacement. (Id. at 

278.) Dr. Jonathan Lester (“Lester”) prescribed the following ambulatory remedies: epidural 

injections, and the narcotic pain killers Vicodin and Oxycontin. (Id. at 168-222.) On July 16, 

2003, April 16, 2004, and June 18, 2004, Dr. Abe Halizer (“Halizer”) at the Hackensack 

University Medical Center Pain Clinic, also administered epidural injections. (Id. at 145, 149, 

153.) On December 9, 2005 and January 13, 2006, Lester administered epidural injections. (R. at 

168-222.) 

On September 26, 2003, Dr. Ari Ben-Yishay (“Ben-Yishay”), of Comprehensive Spine 

Care examined Plaintiff. (Id. at 222-223.) Ben-Yishay observed that Plaintiff walked with a nonantalgic gait, and could heel and toe walk without difficulty. (Id. at 223.) Additionally, BenYishay‟s exam indicated mild tenderness over the lumbar paraspinal muscles and mild 

exacerbation of back pain. (Id.) 

On February 16, 2004, Plaintiff went to Hackensack University Medical Center 

complaining of lower back pain. (Id. at 135.) Plaintiff underwent a lumbar x-ray, which showed 

that Plaintiff‟s bone density was normal. (Id. at 140) Plaintiff was diagnosed with lumber strain, 

and Plaintiff was released in stable condition. (R. at 139) 

On September 20, 2005, Plaintiff was examined by Ben-Yishay in response to numbness

and pain over his left thigh and lower back. (Id. at 168.) The exam revealed mild to moderate 

tenderness in the lumbar spine, with reduced range of motion. (Id. at 169.) Ben-Yishay noted the 

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presence of mild degenerative changes at L5-S1 and S1-S2 disk. (Id.) Ben-Yishay diagnosed 

lumbar disc herniated nucleus pulposus (“HNP”) without myelopathy, lumber disc degeneration, 

and lumbar radiculitis/radiculpathy. (Id. at 169) Ben-Yishay determined that Plaintiff was 

disabled and ordered an updated lumbar MRI, and prescribed Vicodin. (Id. at 170)

On September 27, 2005, another lumber MRI showed disc desiccation at L5-S1 level with a 

posterior annular bulge impinging upon the thecal sac, and partial fusion of the T11-12 vertebral 

bodies. (R. at163) 

On October 25, 2005, Plaintiff complained of continued back pain with some numbness 

and tingling. (Id. at 172.) Ben-Yishay reviewed the September 27, 2005, MRI results and 

indicated that Plaintiff could return to work on October 26, 2005, but should avoid repetitive 

bending, and could stand or sit for as long as tolerable. (Id. at 174.) 

On January 24, 2006, Ben-Yishay examined Plaintiff, and observed that Plaintiff 

experienced “only mild back discomfort.” (Id. at 187.) In February 2006, Ben-Yishay examined 

Plaintiff and noted that sensation was “mildly” diminished in the left L4 distribution, and there 

was “mild” back pain with lumbar flexion and extension, but Plaintiff‟s gait was normal. (Id. at 

190.) Plaintiff informed Ben-Yishay that his radicular pain improved after receiving the epidural 

shots. (Id. at 189.) Ben-Yishay again assessed Plaintiff as disabled, but noted that Plaintiff was 

not a candidate for back surgery, and recommended continued exercise. (R. at 189-191.) 

On February 28, 2006, Dr. Jonathan Lester (“Lester”) treated Plaintiff for pain 

management. (Id. at 192.) Lester noted that hydrocodone helped control Plaintiff‟s pain and 

allowed him to function on a daily basis, and also care for his child during the daytime. (Id.) In 

April 2006, Lester noted that Plaintiff‟s low back pain was “reasonably controlled . . . without 

significant side effects.” (Id. at 202.) Lester found that Plaintiff could return to work on April 4, 

2006, lifting up to 20 pounds, and avoiding repetitive bending and commercial driving. (Id. at 

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202-03.) Lester also changed Plaintiff‟s medication from Oxycontin to Hydrocodone, due to 

Plaintiff‟s discomfort with Oxycontin. (Id. at 206.) In June 2006, Plaintiff reported no side 

effects, and Lester again noted that Plaintiff could work with the same restrictions indicated in 

February 2006 except the restriction regarding performing commercial driving. (R. at 211.) 

ii. Knee Impairment

On May 26, 2001, an MRI of the Plaintiff‟s left knee showed degeneration of the posterior 

horn of the medial meniscus, but no evidence of meniscal tear, and edema. (Id. at 279.) In the 

summer of 2001, Plaintiff underwent knee surgery, and subsequently, physical therapy. (Id. at 65, 

63.) Plaintiff returned to work after the knee surgery, but in April 2002, Plaintiff reinjured his 

knee. (Id. at 163.)

On September 26, 2003, after meeting with Plaintiff, Ben-Yishay noted that reflexes were 

equal and symmetric at the knees and ankles. (Id. at 223.) Ben-Yishay also noted, that the 

straight leg raising test caused some sided back pain without radicular pain. (Id.) 

On April 20, 2005, Dr. James Cahill (“Cahill”) diagnosed Plaintiff as having a patella 

femoral syndrome and chondral injury in his knee necessitating arthroscopic repair, as well as a 

series of synvisc injections. (R. at 304-320). Cahill also noted moderate crepitus in the left knee 

as well as atrophy of the quadricep muscle above the affected knee joint. (Id. at 309.)

On September 20, 2005, Ben-Yishay noted that Plaintiff had tenderness in the left knee 

with full range of motion and numbness to pinprick. (Id. at 169.) The straight leg raising test 

caused pain in the left hip and knee, but not in the lower back, and there was no gross muscle 

weakness and mild quadricep atrophy. (Id.) 

On September 26, 2005, Plaintiff was examined by Douglas Holden (“Holden”) of Garden 

State Orthopedic Associates for treatment of his knee impairment. (Id. at 331.) Holden 

recommended an MRI. (Id.) On October 17, 2005, an MRI revealed post-surgical changes in the 

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medial meniscus. (Id. at 321.) After reviewing the MRI results, Ben-Yishay stated that Plaintiff 

could return to work on October 26, 2005. (R. at 174.) 

In November 2005, an exam with Holden showed tenderness in Plaintiff‟s left knee, but 

good range of motion and no effusion. (Id. at 325.) After receiving an epidural injection in 

December 2005, Plaintiff reported significant overall improvement in back and leg symptoms. 

(Id. at 181.) Subsequently, Ben-Yishay determined that Plaintiff was disabled and recommended 

a second steroid injection because Plaintiff had a “good response” to the one he previously 

received in December 2005. (Id. at 181-182.) 

On January 24, 2006, Ben-Yishay examined Plaintiff. (Id. at 187.) Plaintiff experienced 

mild left sciatic notch tenderness, but Plaintiff‟s leg was neurologically intact, and motor strength 

and gait were normal. (Id.) Ben-Yishay also noted that no further injections were warranted, and 

recommended a home exercise program. (R. at 187.) 

In February 2006, Plaintiff returned to Ben-Yishay and reported intermittent left thigh 

numbness and tingling, but added that his radicular pain was much improved after receiving the 

epidural injections. (Id. at 189.) Ben-Yishay‟s exam showed “mildly” diminished left knee jerk. 

(Id. at 190) On February 28, 2006, Plaintiff returned to Lester for another examination. (Id. at 

193.) Lester‟s examination of Plaintiff showed: (1) diminished pinprick sensation along the left 

thigh and leg, but no gross lower extremity weakness, (2) symmetrical reflexes at the knees and 

ankles, and (3) a negative straight leg raising test. (Id.) In June 2006, Lester indicated that 

Plaintiff could work full time, lifting up to twenty pounds and avoiding repetitive bending. (Id. at 

211.) Plaintiff returned to Lester again for an examination in July 2006. (R. at 213.) Lester‟s July 

2006 exam showed no lower extremity weakness. (Id.) In October 2006, Plaintiff informed 

Lester of continued left leg pain. (Id. at 215.) An examination revealed full muscle strength in the 

lower extremities, and a negative straight leg raising test. (Id. at 216.) In January 2007, another

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examination with Lester revealed no changes from the October 2006, medical determinations. (Id. 

at 220.) 

iii. Mental Impairment

Following the May 2001 incident with the police, Plaintiff sought psychiatric treatment 

with Dr. Rueben Gross (“Gross”). (Id. at 157.) From May 17, 2001 until February 3, 2003, 

Plaintiff was treated by Gross. (R. at 285-286.) Gross diagnosed Plaintiff with PTSD, major 

depressive disorder, and reported that Plaintiff‟s condition had improved with therapy. (Id. at 286, 

288.) 

On September 8, 2003, Dr. Terry Tuchin (“Tuchin”) conducted an initial evaluation of 

Plaintiff and also diagnosed him with PTSD. (Id. at 267) On October 7, 2004, Tuchin reevaluated 

Plaintiff and also diagnosed him with mood disorder. (Id.) 

In February 2005, Plaintiff began treatment with Dr. Luis Handel (“Handel”)1. (Id. at 

371.) Handel diagnosed Plaintiff with PTSD, and adjustment mood disorder with depressed 

mood. (Id. at 373.) Handel also concluded that Plaintiff had a Global Assessment of Functioning 

(“GAF”) score of 40, which indicates severe psychiatric impairment.2 (R. at 373.) Handel treated 

Plaintiff with weekly psychotherapy sessions, and psychotropic medications including Welbutrin, 

and Xanax. (Id. at 340-371.) 

In September 2006, Plaintiff reported flashbacks, panic attacks, and low energy, however 

later that month Plaintiff indicated he was feeling better. (Id. at 367.) Plaintiff also denied 

suicidal thoughts. (Id.) Throughout October, November, and December 2006, Plaintiff denied 

 

1

Plaintiff‟s Brief misspells Handel‟s last name. Plaintiff‟s brief spells his last name as follows: H-A-N-D-A-L. The 

proper spelling is H-A-N-D-E-L, per the doctor‟s report in the record. (R. at 367.) 

2 The GAF is part of the diagnostic criteria set forth in the Diagnostic Manual of Mental Disorder (“DSM”) Volume 

IV which was published by the American Psychiatric Association in July 2000. The GAF scale set forth in the DSM 

is a 1-100 point scale that measures a patient‟s overall level of psychological, social, and occupational functioning, 

and is often used to determine eligibility for treatment and disability benefits. A rating between 31-40 indicates 

impairment in reality testing, or major impairment in several areas, such as in social, occupational, or school 

functioning. 

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suicidal thoughts and reportedly benefited from treatment. (Id. at 365-367) Mental status exams 

between May and July 2007 showed Plaintiff was fully oriented. (Id. at 352-355.) Plaintiff also 

spoke in a normal tone, possessed normal reasoning, judgment, intact thought processes and no 

loosening of associations. (R. at 352-355.) In September 2008 Plaintiff‟s treatment with Handel 

ceased. (Id. at 340-48.) 

On October 18, 2006 and February 22, 2007, Plaintiff was examined by Dr. Mario 

Finkelstein (“Finkelstein”) for independent psychiatric evaluations. (Id.at 322-339.) Finkelstein 

also diagnosed Plaintiff with PTSD with superimposed major depression, and assessed a GAF 

score of 60.3 (Id.) 

C. Medical Evidence

On June 21, 2008, Plaintiff underwent a consultative psychiatric examination with Dr. 

Alec Roy (“Roy”) as required by the SSA. (Id. at 229; Pl.‟s Br. 7.) Roy concluded that Plaintiff 

was severely psychiatrically impaired and concurred with the diagnosis of PTSD, along with comorbid depression. (Id. at 231.) Roy found that Plaintiff had a GAF score of 40, indicating a 

severe mental impairment. (Id. at 231; Pl.‟s Br. 7.)

On June 27, 2008, Dr. Frances Hecker (“Hecker”) an SSA medical consultant, reviewed 

the medical record and completed a Psychiatric Technique Review Form (“PTRF”). (R. at 233.) 

Hecker assessed Plaintiff‟s psychiatric impairment under various sections of Listing 12.00 of 20 

C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). (Id. at 233-246.) Hecker found that 

Plaintiff had “moderate” restriction of activities of daily living and “moderate” difficulties 

maintaining concentration, persistence, or pace, but mild difficulties in maintaining social function

and no episodes of decompensation. (Id.) 

 

3 A GAF of 51-60 is indicative of “moderate symptoms.” (e.g. flat effect, circumstantial speech, and occasional panic 

attacks). (Pl.‟s Br. 7; Def.‟s Br. 11.) 

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Hecker also provided a Mental Residual Functional Capacity Assessment (“MRFCA”). 

(Id. at 247-250) In executing the MRFCA, Hecker assessed Plaintiff as being “not significantly 

limited” to “moderately limited” in all areas of understanding and memory. (Id.) Hecker found 

that Plaintiff is able to maintain pace, persistence and concentration in simple routine tasks, and is 

able to relate appropriately to co-workers and the public in limited contact settings. (Id.) 

On July 9, 2008, Plaintiff saw Tuchin for a second independent examination during which 

Plaintiff stated that Handel‟s treatment was “really helping.” (R. at 268-69.) Tuchin concluded 

that Plaintiff did not appear able to return to work in his previous capacity. (Id. at 271-72.)

D. Residual Functional Capacity

On July 9, 2008, pursuant to the Commissioner‟s request, Dr. Richard Mills (“Mills”) met 

Plaintiff for a consultative exam. (Id. at 251; Def.‟s Br. 8.) Mills noted that range of motion was 

limited in Plaintiff‟s knee and hip, and back. (Id. at 252-54.) Mills asserted that Plaintiff could 

stand for five minutes, walk about 200 meters, sit for thirty minutes, and lift up to twenty pounds. 

(Id. at 252.) 

On July 30, 2008, an SSA medical consultant, Dr. Norman W. Schachtel (“Schachtel”), 

reviewed Plaintiff‟s records and provided a Physical Residual Functional Capacity Assessment 

(“RFC”). (Id. at 257-263.) Schachtel concluded that Plaintiff could lift and/or carry up to 20 

pounds and sit about six hours in an eight-hour workday. (R. at 257-263) Schachtel also 

concluded that Plaintiff could stand and/or walk at least two hours in an eight-hour workday, and 

also noted that Plaintiff could stand/walk for four hours. (Id.) Schachtel opined that there was “no 

medical credibility” for Mills‟ statements that Plaintiff could only stand for five minutes and was 

only able to walk 200 meters. (Id.at 262)

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E. Plaintiff’s Testimony

On November 24, 2009, Plaintiff testified before the ALJ. (Id. at 58.) Plaintiff testified 

that he needs to use a cane when he is not sure of the surface that he will be walking on or going to 

an unfamiliar place. (Id. at 64-65.) Plaintiff testified that he could not stand for more than ten 

minutes or sit for more than twenty minutes without discomfort. (Id. at 65-66) Plaintiff also 

testified that he: (1) could not read a paragraph without being distracted, (2) had lost his sense of 

time, and (3) was unable to get back to a normal life. (R. at 67-68.) Plaintiff stated that he does 

not do household chores, but does look after his ten-year old daughter. (Id.) Plaintiff also stated 

that he has nightmares and recurring thoughts about his altercation with the police, and becomes

alarmed when he hears a siren or sees police and firemen. (Id.) 

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)). 

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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 

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 unable to “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) (2004). 

The physical or mental impairment must be severe enough to render the individual “not only 

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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) (2004). A claimant 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) (2004). 

The SSA utilizes a five-step sequential analysis to determine disability. Cruz v. Comm’r of 

Soc. Sec., 244 F. App‟x 475, 480 (3d Cir. 2007) (citing 20 C.F.R. § 404.1520 (a)(4)(i)-(v) (2012)). 

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.

Sullivan v. Zebley, 493 U.S. 521, 525-26 (1990) (internal citations omitted). 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 SSDI benefits at step-five, ultimately 

determining that there are jobs that exist in significant numbers in the national economy that 

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Plaintiff can perform. (R. at 9.) 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 he erred as a matter of law in 

evaluating the case. Plaintiff‟s argument has four grounds: 1) the ALJ failed to recognize that the 

medical evidence regarding Plaintiff‟s impairments was uncontroverted; 2) the ALJ‟s RFC 

conclusion was not based on substantial medical evidence; 3) the ALJ erred by failing to require 

the testimony of a vocational expert to testify as to how Plaintiff‟s mental impairment would limit 

his occupational base; and 4) the ALJ failed to properly consider Plaintiff‟s allegations concerning 

pain and symptoms. (See generally, Pl.‟s Br.) 

The Commissioner, however, argues that: 1) the ALJ‟s decision is supported by substantial 

evidence; 2) SSDI benefits are not available to an individual that is able to work; Plaintiff was not 

disabled by his impairments; 3) the ALJ properly evaluated medical and opinion evidence, and 

determined that Plaintiff could perform a range of light work; 4) the ALJ properly evaluated 

Plaintiff‟s credibility; and 5) the ALJ properly determined 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: Whether Plaintiff has performed any “substantial gainful activity”

SGA 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) (2012). 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 Plaintiff has not engaged in any SGA since November 20, 2006, the date of his 

SSI application. (R. at 11.) 

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B. Step Two: Whether Perez 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 (2012). 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." 

20 C.F.R. § 404.1521(b) (2012).

The ALJ, at step two, determined that Plaintiff has a severe impairment or combination of 

impairments limiting his physical and mental ability to do basic work. (R. at 11.) 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. (Id. at 15-16.)4 

C. Step Three: Whether Perez’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). 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 is required to 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 v. Comm’r 

of Soc. Sec. Admin., 220 F.3d at 119-20). “Burnett[, however,] „does not require the ALJ to use 

 

4 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). 

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

The ALJ, at step three, determined that Plaintiff did not have an impairment or 

combination of impairments that matched or was equivalent to a listed impairment. (R. at 11-12.) 

In assessing whether or not 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 (2012). The ALJ 

explained his findings in detail and found that Plaintiff‟s mental impairments, left knee pain, and 

back pain, either singly or in combination, did not meet or equal the applicable listings provided 

by the SSA. (R. at 11-12.)

In finding that Plaintiff‟s back pain did not meet or equal the applicable listed impairment, 

the ALJ found no evidence that Plaintiff had either “a disorder of the spine with evidence of nerve 

root compression, characterized by neuro-anatomic distribution of pain, limitation of motion, 

atrophy and/or muscle weakness, accompanied by sensory or reflex loss and positive straight leg 

raising in the sitting and supine positions,” or that Plaintiff was unable to ambulate effectively. 

See 20 C.F.R. pt. 404 subpart P app. 1 (2012); (R. at 11-12.)

In finding that Plaintiff‟s left knee pain did not meet or equal the applicable listed 

impairment, the ALJ found no evidence that Plaintiff was unable to ambulate effectively as 

required to meet or equal Listings 1.02A or 1.03. See id.

In finding that Plaintiff‟s mental impairments did not meet or equal the applicable listed 

impairment under Listings 12.04 and 12.06, the ALJ acknowledged that Plaintiff has major 

depression and chronic PTSD. However, the ALJ noted that neither impairment results, either 

singly or in combination with another impairment, “[to] at least two of the following: marked 

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restriction of activities of daily living, marked difficulties in maintaining social functioning; 

marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of 

decompensation, each of extended duration.” See 20 C.F.R. pt. 404 subpart P app. 1 (2012); (R. 

at 12.)

D. Whether the ALJ properly determined Plaintiff’s RFC

If a claimant‟s impairment does not meet or equal a listed impairment, the ALJ must 

determine Plaintiff‟s RFC before proceeding to the fourth step of the analysis. See 20 C.F.R. 

404.1520(e) (2012). The RFC will then be used in the fourth step. See id. In making this 

determination the ALJ must consider all of Plaintiffs impairments, including those that are not 

severe. See 20 C.F.R. § 404.1520(e) (2012); 20 C.F.R. § 404.1545 (2012); 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 be 

expected to produce Plaintiff‟s pain or other symptoms. See 20 C.F.R. § 404.1527 (2012). Then 

the ALJ must evaluate the intensity, persistence, and limiting effects of Plaintiff‟s symptoms to 

determine the extent to which they limit Plaintiff‟s ability to do basic work activities. Id. 

Whenever statements about the intensity, persistence, and limiting effects of Plaintiff‟s symptoms 

are not corroborated by objective medical evidence, the ALJ must make a finding on the 

credibility of the statements based on a consideration of the entire record. Id. The Commissioner 

has the discretion to evaluate Plaintiff‟s credibility and render an independent judgment based 

upon the medical findings and other evidence regarding the extent of symptomatology. See 

LaCorte v. Bowen, 678 F. Supp. 80, 83 (D.N.J. 1988). 

Here, the ALJ determined that Plaintiff had the RFC for limited range of light work which 

had not been significantly compromised to the point of disability. 

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In making his decision, the ALJ relied on the following: 1) Plaintiff reported that he had no 

limitations and “just avoids prolonged walking or sitting because it increases his back discomfort”; 

2) the fact that epidural injections provide relief to Plaintiff‟s back; 3) Plaintiff reported that he 

helps take care of his daughter while his wife works; 4) Plaintiff was not a candidate for back 

surgery; 5) Plaintiff was considered able to work as of April 4, 2006, with certain restrictions; and 

6) the examinations of doctors that treated and provided consultative reports for the SSA regarding 

Plaintiff‟s physical and mental impairments generally concluded that Plaintiff‟s impairments were 

not disabling. (R. at 12-17.) 

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

determined Plaintiff‟s RFC.

E. Step Four: Whether Plaintiff had the RFC to perform the requirements of his past 

relevant work. 

At step-four the Commissioner must determine whether Plaintiff has the RFC to perform

the requirements of his past relevant work. See 20 C.F.R. § 404.1520(f)(2012). The term “past 

relevant 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)(2012). 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 (2012). 

In step four, the ALJ properly determined that Plaintiff is unable to perform any past 

relevant work pursuant to 20 C.F.R. § 404.1565. Plaintiff has the past relevant work as a 

television reporter and a realtor. (R. at 17.) Since Plaintiff is limited to simple, routine tasks, the 

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

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F. Step Five: Whether Plaintiff is able to do any other work considering his RFC, age, 

education, and work experience.

At the last step of the evaluation process the ALJ must determine whether Plaintiff is able 

to do any other work considering his RFC, age, education, and work experience in conjunction 

with the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. See 20 

C.F.R. 404.1520(f) (2012). If Plaintiff is able to do other work he is not disabled. (Id.) If 

Plaintiff is not able to do other work and meets the duration requirement, he is disabled. (Id.) The 

ALJ bears the burden of proof at this step. See 20 C.F.R. § 416.920(g)(2012); Kangas, 823 F.2d at 

777. The SSA is responsible for providing evidence that demonstrates that other work exists in 

significant numbers in the national economy that Plaintiff can do, given the RFC, age, education, 

and work experience. See 20 C.F.R. §404.1512(g)(2012); § 404.1560(c) (2012). 

The ALJ must consider whether Plaintiff has exertional or nonexertional limitations. See

C.F.R. § 404.1569a(a)(2012). 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 nonexertional if it affects the Plaintiff‟s “ability to meet the demands 

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

use 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 (2012). Also, if Plaintiff retains the 

mental capacity to perform unskilled work, the ALJ may rely on the Medical Vocational 

Guidelines (“MVG”). See Davis v. Astrue, No. 08-928, 2009 WL 3241853 *at 6 (W.D. Pa Oct. 5, 

2009). However, if there are both exertional and nonexertional 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). 

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Under Section 416.963 a younger person (under the age of 50), 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

(2012). 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 Plaintiff had the RFC to perform the full range of light work, 

considering Plaintiff‟s age, education, and work experience; therefore, a finding of “not disabled” 

would be directed by Medical Vocational Rule 202.21 (“MVR”). The ALJ also found that “the 

additional limitations have little or no effect on the occupational base of unskilled light work as 

per SSR‟s 96-9p, 85-15, and C.F.R. 404.1527. (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 mental impairment would limit his occupational base given his 

nonexertional limitations. (Pl.‟s Br. 16.) The ALJ explained in his decision that while Plaintiff at 

one time had a GAF of 40, which signifies a low level of functioning, Plaintiff testified that he 

takes care of his daughter while his wife is at work. (R. at 15.) Plaintiff also testified that he 

could travel alone and get out daily. (Id.) Furthermore, the ALJ noted that reports from Dr. 

Handel in July 2007 and May 2008 noted that Plaintiff‟s ability to read, write, and perform series 

7‟s was within normal limits. (Id.) Also, the ALJ relied on the assessment of Dr. Hecker in 

reaching his decision regarding Plaintiff‟s nonexertional limitations. Since the ALJ relied on 

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evidence that demonstrates that Plaintiff has the mental capacity to perform unskilled work, the 

ALJ was correct in relying on the MVG to determine Plaintiff‟s ability to perform other work.

Thus, the ALJ‟s determination that Plaintiff could do other work was accurate. 

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. 

SO ORDERED.

s/Susan D. Wigenton

U.S.D.J.

Orig: Clerk

Cc: parties

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