NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

DONALD VANORDEN,

Plaintiff,

v.

MICHAEL ASTRUE,

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Civil Action No. 2:11-2642-SDW

 

OPINION

June 7, 2012

WIGENTON, District Judge.

Before the court is plaintiff Donald Vanorden’s (“Plaintiff” or “Vanorden”) appeal of the 

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

respect to Administrative Law Judge Michal L. Lissek’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 

SSI benefits under the Social Security Act (“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 stated herein, this Court AFFIRMS the ALJ’s Decision (“ALJ’s Decision”). 

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FACTUAL AND PROCEDURAL HISTORY

On September 13, 2007, Plaintiff filed an application for SSI benefits alleging that he had 

been unable to work since July 8, 2002 due to his medical conditions. (R. at 12.)1 The application 

was initially denied and then later denied upon reconsideration. (Id.) Subsequently, on May 28, 

2008, Plaintiff filed a written request for a hearing. (Id.) 

On August 13, 2009, a hearing was conducted before the ALJ. (Id. at 19-39.) On August 

27, 2009, the ALJ denied Plaintiff’s application in the ALJ’s Decision. (Id. at 12-18.) Thereafter, 

Plaintiff requested review of the ALJ’s Decision by the Appeals Council, and on March 7, 2011, 

the Appeals Council affirmed the ALJ’s Decision. (Id. at 1-3.) On May 13, 2011, Plaintiff filed 

an appeal with this Court challenging the denial of his request for SSI benefits. (See Compl.) 

A. Background and Employment History

Plaintiff was born in 1962. Plaintiff was 40 years old at the time of his injury, which he 

claims to have sustained on or around July 8, 2002.

2

 (R. at 17, 24, 26.) From 1979 to 1988, after 

graduating high school, Plaintiff worked in the warehouse of a furniture company and delivered 

furniture for approximately nine years. (Id. at 24, 131-32.) From 1989 to 1999, Plaintiff worked 

for multiple food companies, where he was employed as a driver’s helper and stocked shelves at 

various supermarkets. (Id. at 131, 133-34.) From 2000 to 2002, Plaintiff worked for Shop Rite 

Supermarket,3 where he stocked shelves at night. (Id. at 25, 135.) At this job, he frequently lifted 

fifty pounds or more, and occasionally had to lift objects up to eight to ninety pounds by himself, 

which he stated was “less strenuous” than delivering furniture. (Id. at 25, 135.)

 1 The ALJ’s Decision is in the record (“R.”) on pages 12-18. 2 In Plaintiff’s testimony to the ALJ, regarding when he experienced the back injury, Plaintiff stated “I think, 

[ ] the 8th, or a couple of days before maybe. I don’t know, I went right away to the doctor.” (R. at 26.) 3 In the transcript of the hearing, “Rite” is spelled “Right.” (R. at 24; see also, R. at 25). Whereas, in the doctors’ 

reports in the record, “Rite” is spelled “Rite.” (R. at 151-154.). 

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Plaintiff last worked on July 8, 2002, when he claims to have sustained an injury to his 

back. (Id. at 26.) The injury occurred when Plaintiff was lifting a “heavy box” at which point 

Plaintiff experienced “a snap in [his] back [and] fell to the ground,” landing on his knees. (Id. at 

27.) Plaintiff testified that he attempted to go back to work following the injury, but he was fired. 

(Id.) 

B. Medical History

After Plaintiff was injured, on July 26, 2002, he sought medical care for his lower back at 

Multi-Care, a health center. (Id. at 151.) The examining physician at Multi-Care diagnosed 

Plaintiff with a lumbar strain and prescribed medication. (Id. at 152.) The doctor instructed 

Plaintiff to limit his bending and restricted him to lifting objects that did not exceed ten pounds. 

(Id.) 

On August 9, 2002, Plaintiff went for a second visit and the diagnosis remained 

unchanged, but the doctor suggested that Plaintiff take two weeks off from work as he claimed he 

had been unable to cope with work duties. (Id.) On August 27, 2002, Plaintiff went for a 

reevaluation. (Id. at 152-53.) During this visit, the doctor reported that Plaintiff’s lumbar strain 

was improving, however, since Plaintiff still had limitations, the doctor suggested that he continue 

taking his medications and receive therapy for two more weeks. (Id. at 153.) Plaintiff was also 

instructed to avoid repetitive bending, as well as lifting anything over twenty pounds, and pushing 

or pulling anything over thirty-five pounds. (Id.) Plaintiff was further instructed to avoid ladders. 

(Id.) 

On September 3, 2002, Plaintiff returned to Multi-Care complaining of pain and other 

symptoms, including difficulty sleeping. (Id. at 154.) The examining physician ordered an MRI for 

Plaintiff and a follow-up visit. (Id.) On September 6, 2002, Plaintiff had a MRI for his 

lumbosacral spine, and the examination revealed “moderate hypertrophic degenerative changes 

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with disc space narrowing at the L3/L4, L4/L5 and L5-S1 levels,” along with small disc 

herniations present at the L4-L5 and L5-S1 levels. (Id. 261.)

On September 18, 2002, Plaintiff was examined by Dr. Gregory Gallick (“Dr. Gallick”). 

(Id. at 15, 258.) Upon examination, Dr. Gallick found no tenderness, muscle spasms, trigger 

points, redness, or swelling. (Id. at 15, 259.) Further, Dr. Gallick provided: “[h]is straight leg raise 

was negative and neurovascular status of both lower extremities, to include motor, sensory and 

reflexes were normal. Babinski’s were downward going and no clonus was present.” (Id.) 

Plaintiff was able to walk normally without the assistance of crutches, orthopedics, or a cane. (Id.) 

He could forward flex approximately sixty-five degrees and his fingertips were around a foot from 

the ground. Plaintiff had good lateral bend and rotation, but refused to have x-rays done. (Id.) Dr. 

Gallick noted that Plaintiff “does have a past medical history significant for injuring his back in 

the 1980’s when he was delivering furniture and his back has never been great ever since” but 

“[h]e has been doing this job at Shop Rite for about the last nine months and his back has not 

bothered him.” (Id. at 258.) 

Upon evaluation of Plaintiff’s MRI, Dr. Gallick noted that Plaintiff’s disc herniations were 

not significantly compressing his thecal sac, nor were they narrowing his neural foramen or 

causing any damage to his exiting nerve roots. (Id. at 16, 259.) In Dr. Gallick’s opinion, the MRI 

was essentially benign, and the degenerative changes were more likely related to an accident that 

Plaintiff had in the 1980s when he injured his back. (Id.) Dr. Gallick opined that Plaintiff was “at 

maximum medical benefits from treatment,” and he had received appropriate care from previous 

doctors. (Id. at 259.)

On August 4, 2005, Plaintiff commenced treatment with Dr. James Aragona (“Dr. 

Aragona”), an orthopedic surgeon. (Id. at 16, 255.) Dr. Aragona prescribed epidural blocks and 

physical therapy for Plaintiff to manage his chronic back pain and multilevel lumbosacral 

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radiculopathy. (Id.) Dr. Aragona also encouraged Plaintiff to join the workforce, “doing a job not 

involving his back.” (Id.; see also, R. at 255.) 

On October 7, 2005, Plaintiff received another MRI which showed that there was 

“moderate hypertonic degenerative changes with facet joint arthropathy and disc desiccation at the 

three lower lumber levels” and “central subligamentous disc herniations [ ] present at L3/4, L4/5 

and L5/S1.” (Id. at 245.) Further, L3/4 had slightly evolved since the previous examination in 

September 6, 2002,4 while L4/5 and L5/S1 exhibited no significant change. (Id.) There was also 

“moderate[] impressing on the anterior thecal sac and mild[] narrowing [of] the lateral recesses at 

these levels.” (Id.) An electro diagnostic examination was also conducted and the results 

confirmed the neuropathy of the legs, and multilevel lumbosacral radiculopathy. (Id. at 242-44.) 

On March 7, 2006, Plaintiff was admitted to Union Hospital for severe lower back pain 

and he underwent surgery for decompression, fixation and fusion of his L3 through L5. (Id. at 

184-86.) Plaintiff had laminectomies on his L3-L4 and L4-L5 with bilateral foraminotomy and 

disc excisions. (Id. at 187.) Further, Plaintiff had a posterior lumbar interbody fusion with the 

insertion of a pedicle screw and rod fixation at L3-L4 and L4-L5. (Id.) Finally, Plaintiff received 

autologous and autogenous bone grafts and a bilateral lateral fusion at his L3-L4 and L4-L5 with a 

right iliac crest bone graft. (Id.) After the surgery, Plaintiff received physical therapy at the 

hospital. (Id.) On March 12, 2006, Plaintiff was discharged with instructions to walk everyday 

and to avoid heavy lifting or bending. (Id.) 

On November 7, 2006, Dr. Aragona had a follow-up with Plaintiff where he noted that 

Plaintiff still had back pain in the morning. (Id. at 164.) Dr. Aragona noted that Plaintiff walked 

with a cane, but he did not limp. (Id.) Plaintiff had decreased lumbar flexibility, but good strength 

 4 There is a discrepancy with the actual date of the MRI. According to medical records, the MRI took place on 

September 6, 2002. (R. at 261.) The ALJ Decision, as well as Dr. Damien’s medical report, states the MRI took place 

in “2003,” when in fact it took place in “2002”. (R. at 16, 245.).

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and intact vascularity. (Id.) Plaintiff was encouraged to exercise every other day and to do outside 

walking. (Id.) Dr. Aragona cleared Plaintiff to return to work in early December 2006 “for limited 

duties such as light retail work or deskwork, [with] no prolonged standing [or] walking, no 

ladders, no bending, [and] no lifting over 10 pounds.” (Id.) Plaintiff was prescribed pain 

medication, but the prescribing physician noted that he “infrequently needed [the medication] for 

his pain.” (Id.)

On February 15, 2007, Plaintiff had his second post-operative visit with Dr. Aragona. (Id. 

at 163.) Plaintiff stated that his condition had improved after the operation; however, he still 

experienced pain in his legs and hips. (Id.) Plaintiff was able to walk, had good strength and 

reflexes, and no atrophy. (Id.) Dr. Aragona noted that Plaintiff’s lumbar spine did have 

diminished flexibility, and prescribed Darvocet for the pain since Plaintiff no longer wanted his 

previous pain medication, Vicodin, and asked to be put on Percocets instead. (Id.)

On June 5, 2007, Plaintiff was examined by Dr. Albert Thrower (“Dr. Thrower”). (Id. at 

161.) In a letter dated June 14, 2007, which included a brief medical history of the Plaintiff, Dr. 

Thrower stated that Plaintiff complained of pain in his lower back and thighs, and denied “any 

prior injury or accident.” (Id.) Dr. Thrower noted that Plaintiff had “moderate restriction of lateral 

bending and extension,” but exhibited normal strength in his legs and had a normal gait. (Id.) 

Additionally, Plaintiff experienced lower back pain when doing straight leg raises. (Id.) Dr. 

Thrower estimated that Plaintiff’s disability was “at 11% of partial total” and concluded that 

Plaintiff was capable of light work. (Id. at 162.)

On January 11, 2008, Plaintiff was examined by Dr. Allen Glushakow (“Dr. Glushakow”). 

(Id. at 17, 276.) Dr. Glushakow noted that Plaintiff carried a cane and claimed to have back pain. 

(Id. at 17.) Plaintiff had a limited range of motion. (Id.) Plaintiff could do a partial squat, 

approximately fifty percent and his “straight leg raise testing was positive at seventy degrees 

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bilaterally in the supine position and negative in the sitting position.” (Id.) Plaintiff was, however, 

able to walk on his heels and toes. (Id.) After administering an X-ray, Dr. Glushakow observed 

the “presence of pedicular screws, a spinal fusion extending from L3 through L5 areas on AP and 

on the lateral views.” (Id. at 277.) Further, Dr. Glushakow stated that the impression on Plaintiff’s 

spine was post-surgery. (Id.) 

C. Plaintiff’s Testimony

On August 13, 2009, Plaintiff testified before the ALJ. (Id. at 23-39.) Plaintiff stated that 

he had not gone back to any doctors after February 15, 2007. (Id. at 37.) Plaintiff testified that he 

felt better after the surgery than he does currently, and “as time went on, [ ] everything 

progressively just started getting worse [ ].” (Id. at 35.) On a scale of one to ten, Plaintiff claimed 

his pain on an average day is “close to a nine, eight or nine,” while some days it strengthened to “a 

ten plus.” (Id. at 37.) Plaintiff stated that he is unable to lift anything or “reach for anything that’s 

too heavy.” (Id. at 38.) Plaintiff further provided that due to the pain in his back he now sits when 

he washes his feet and legs while showering, and he cannot walk fast. (Id. at 38-39.) 

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). 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 

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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 deference to the ALJ’s 

findings if supported by substantial evidence. 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 this Act if he 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). 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 other kind of substantial gainful work which exists in the national economy . . . .” 

42 U.S.C.A § 423(d)(2)(A). Subjective complaints of pain, alone, cannot be used to conclusively 

establish disability. 42 U.S.C. § 423(d)(5)(A). A claimant must show that the “medical signs and 

findings” related to his ailment have been “established by medically acceptable clinical or 

laboratory diagnostic techniques, which show the existence of a medical impairment that results 

from anatomical, or physiological abnormalities which could reasonably be expected to produce 

the pain or other symptoms alleged . . . .” Id.

The Social Security Administration (“SSA”) 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, 110 S.Ct. 885 (1990) (citations omitted); see also 20 

C.F.R. §§ 404.1520(a)(4)(i)(v) and 416.920(a)(4)(i)(v). 

The burden of persuasion belongs to 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 is able to show 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 the instant matter, the ALJ denied Plaintiff’s request for SSI benefits at step-five, 

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

that the claimant can perform. (R. at 18.) On appeal, Plaintiff argues that the ALJ’s final 

administrative decision was not based on the substantial evidence in the administrative record. 

(Pl.’s Br. 8.) Plaintiff’s argues the following: 1) the ALJ, in finding that Plaintiff was not disabled 

at step three of the sequential evaluation, did not provide any thought, reason, evidentiary 

foundation, or explanation for its finding; 2) the ALJ, in determining that the Plaintiff was capable 

of the full range of sedentary work as defined under 20 C.F.R. §§ 404.1567(a) and 416.967(a), 

failed to explain his determination of Plaintiff’s residual functional capacity (“RFC”), and his 

decision was at odds with the evidence on record; and 3) the ALJ’s pain analysis violated the 

Commissioner’s own policies with respect to taking into consideration subjective evidence from 

Plaintiff, such as his statements about his symptoms of pain. (See Pl.’s Br. 9-36.)

The Commissioner, however, asserts that the ALJ’s Decision is supported by substantial 

evidence in the record and the opinion needs to be read as a whole. (See generally, Def.’s Br. 9-

19.) The Commissioner argues the following: 1) the ALJ’s conclusion in step three of the analysis 

is supported by substantial evidence; 2) the ALJ properly concluded that “Plaintiff retained the 

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RFC for a full range of sedentary work,” based on both medical and non-medical evidence on the 

record; 3) The ALJ properly determined that Plaintiff’s statements about his back pain were not 

credible because they were inconsistent with the RFC assessment; and 4) “Plaintiff’s ability to 

perform postural activities did not affect his capacity for the full range of unskilled sedentary 

work,” and therefore, a vocational expert was not necessary. (See Def.’s Br. 9-19.) For the reasons 

expressed below, this Court affirms the ALJ Decision because substantial evidence supports the 

ALJ’s findings and determination. 

Step One

If Plaintiff is found to be engaged in substantial gainful activity (“SGA”), the disability 

claim will be denied. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987). SGA is work that involves 

significant physical or mental activities and is done for pay or profit. See 20 C.F.R. §§ 

404.1572(a)-(b), 416.972(a)-(b). In the instant matter, the ALJ determined that Plaintiff was not 

engaged in SGA since July 8, 2002, the date of his alleged injury. (R. at 14.) 

Step Two

In determining step two, the ALJ must consider all 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. §§ 404.1529, 416.929. Under the regulations, an impairment or combination of 

impairments is “severe” if it significantly restricts the Plaintiff’s physical or mental ability to do 

“basic work activities.” In the instant matter, the ALJ determined that the Plaintiff suffered from 

severe impairment as a result of work injuries, including back and leg pain, and post lumbar fusion 

and discectomy, which significantly limited Plaintiff’s ability to perform basic work activities. (R. 

at 14.)

Step Three

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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 Plaintiff’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). 

Furthermore, 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, 220 F.3d at 119-20). However, the relevant case law “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. 09-2890, 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, the ALJ determined that the claimant did not have an impairment or 

combination of impairments that met or medically equaled one of the listed impairments. (R. at 

14.) Plaintiff argues that the ALJ’s finding at step three lacks explanation as to why Plaintiff was 

not rendered disabled. (Pl.’s Br. 9.) The Commissioner contends that under Jones v. Barnhart, “an 

ALJ’s decision, read as a whole, should illustrate that the ALJ considered the appropriate factors 

in reaching the conclusion that the claimant did not meet the requirements for any listed 

impairment.” (Def.’s Br. 9.) (citing Jones v. Barnhart, 364 F.3d 501, 505 (2004). The 

Commissioner also submits that the Plaintiff did not satisfy the criteria of Listing 1.04A for 

degenerative disc disease5 since the Plaintiff did not exhibit muscle atrophy and denied muscle 

 5 The requirement for degenerative disc disease is “[e]vidence of nerve root compression characterized by neuroanotomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness 

or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive 

straight leg raising (sitting and supine).” 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 1.04A.

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weakness, the doctor’s reports did not indicate significant disc herniations, and clinical 

observations indicated that Plaintiff had negative leg raising, and normal neurovascular status of 

the lower extremities, including reflexes and motor strength. (Def.’s Br. 10.) This Court finds that 

there is substantial evidence in the record to support the ALJ’s Decision that Plaintiff was not 

disabled. “The ALJ must analyze all of the evidence in the record and provide adequate 

explanations for disregarding or rejecting evidence.” See LaCorte v. Bowen, 678 F. Supp. 80, 83 

(3d Cir. 1998) (citing Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981). The ALJ considered the 

totality of the record, and supported its determination with an account of the evidence considered 

in the ALJ’s Decision. 

Second, Plaintiff asserts that the ALJ violated the Commissioner’s policy of considering all 

evidence presented, including testimony regarding symptoms such as pain. (Pl.’s Br. 30) (citing 20 

C.F.R. § 404.1529(c). However, the Commissioner contends that the ALJ properly evaluated 

Plaintiff’s subjective testimony of pain and functional limitations because “the totality of the 

medical evidence does not corroborate Plaintiff’s subjective complaints to the disability alleged.” 

(Def.’s Br. 15.) 

The Commissioner issued a protocol which would take into consideration subjective 

complaints such as pain where the ALJ would consider factors such as:

(i) [ ] daily activities; (ii) the location, duration, frequency and intensity of [ ] pain or other 

symptoms; (iiii) precipitating or aggravating factors; (iv) the type, dosage, effectiveness 

and side effects of any medication [Plaintiff] take[s] or [has] taken to alleviate [ ] pain of 

other symptoms; (v) treatment, other than medication, [ ] for relief; (vi) any measured [ ] 

used to relieve [ ] pain or other symptoms [ ]; and (vii) other factors considering [ ] 

functional limitations and restrictions due to pain or other symptoms.

20 C.F.R. § 404.1529(c). In Hartranft, the court held “[a]llegations of pain and other subjective 

symptoms must be supported by objective medical evidence.” 181 F.3d at 362 (citing 20 C.F.R. § 

404.1529); see also, Williams, v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992) (holding that the 

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burden is on the Plaintiff to prove through medical evidence that he is unable to do work). 

Accordingly, the Commissioner has discretion to evaluate the credibility of the Plaintiff’s 

testimony about pain and other symptoms and render a judgment about the true extent of 

Plaintiff’s symptomatology based on the medical and non-medical evidence of record. Williams, 

970 F.2d at 1186-87 (“The fact-finder has an obligation to review all the evidence of record to 

decide whether or not the claimant’s testimony is credible.”); see also, LaCorte, 678 F. Supp. at 84

(“it is within the ALJ’s discretion to weigh the medical assessments and to resolve the conflict 

accordingly”); Brown v. Schweiker, 562 F. Supp. 284, 287 (E.D. Pa 1983) (“where the evidence of 

the severity of the pain is conflicting, the ALJ can, in the exercise of his discretion, consider this 

rebutting testimony in assessing the claimant’s alleged disabling pain.”).6

The ALJ found that Plaintiff showed an improvement after the surgery as he no longer 

experienced severe pain, had less stiffness in his back, seldom needed his pain medication, and 

had not sought medical care for his back problem since February 2007. (R. at 16-17, 164, 169.) 

The ALJ further noted that Plaintiff testified to walking on a daily basis and spent an average of 

two hours a day walking or standing, lifted and carried items weighing between five to ten pounds, 

and partook in everyday activities such as shopping, cooking, socializing with friends and family, 

doing laundry on a weekly basis, and occasionally visiting Atlantic City. (R. at 16, 31-32, 37, 125-

27.) The ALJ determined Plaintiff’s subjective claims regarding his symptoms were not credible 

as they were inconsistent with his RFC assessment and medical evidence. (R. at 15.) This 

determination is consistent with the record.

Next, 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. §§

 6 Additionally, in the Brown case, the court found that although the medical record supported the basis for claimant’s 

pain, the fact that the claimant could “stand, walk, sit, although on a limited basis, as well as his ability to move his 

upper and lower extremities, negate[d] the constancy and severity of the pains suffered by him.” 562 F. Supp. at 287.

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404.1520(e), 416.920(e). The RFC will then be used in the fourth step to determine whether the 

Plaintiff can perform the requirements of his past relevant work. See id. In determining Plaintiff’s 

RFC, the ALJ must consider all of the Plaintiff’s impairments, even the ones that are deemed not 

severe. See 20 C.F.R. §§ 404.1520(e), 404.1545, 416.920(e), 416.945. 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. §§ 404.1529, 416.929. Further, 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. See id. 

Whenever statements about 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. 

Here, the ALJ determined that Plaintiff had the RFC to perform the full range of sedentary 

work as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a). (R. at 15.) Sedentary work involves 

lifting no more than ten pounds at a time, sitting for a significant portion of the work day (about 

six out of an eight hour work day) and standing or walking (for about two hours of an eight hour

work day). 20 C.F.R. §§ 404.1567(a), 416.967(a); Social Security Ruling (“SSR”) 96-9p. 

Additionally, activities such as climbing ladders scaffolds, or ropes, kneeling, crouching, 

balancing, or crawling, are not required in sedentary work. (Id.) 

In making this finding, the ALJ “considered all symptoms and the extent to which these 

symptoms can reasonably be accepted as consistent with the objective medical evidence and other 

evidence, based on the requirements of 20 C.F.R. § 404.1567 and § 416.929.” (R. at 15.) The 

ALJ’s Decision was based on several medical assessments, including Dr. Aragona, an orthopedic 

surgeon who was a treating physician. (See R. at 15-17.) The ALJ noted that in September 2002, 

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Dr. Gallick examined Plaintiff and reported that he had “no problems other than low back pain . . . 

[h]is straight leg raise was negative and neurovascular status of both lower extremities [including] 

motor, sensory and reflexes, [was] normal.” (R. at 15.) Plaintiff walked with a normal gait, did 

not need crutches or canes, and was able to walk toe and heel and mount the examination table 

without any discomfort.” (Id.) Dr. Gallick treated Plaintiff with medication and physical therapy 

and opined that Plaintiff was receiving the maximum medical care. (Id. at 15-16.) In August 2005, 

Dr. Aragona reported that Plaintiff’s reflexes, strength and sensation were intact, and there was no 

muscular atrophy; and, in the ALJ Decision it is noted that Dr. Aragona encouraged Plaintiff to 

join the workforce, engaging in employment which did not involve his back. (R. at 16; see also, R. 

at 255). The ALJ also noted that in November 2006, Dr. Aragona reported that Plaintiff could 

engage in light duty work as early as December 11, 2006. (R. at 16.) Plaintiff was limited to desk 

work, but no work involving prolonged standing or walking, ladders or bending, and no lifting 

over ten pounds. (Id.; see also, R. at 165). In June 2007, Dr. Thrower estimated that Plaintiff had 

a total of eleven percent disability, and opined that claimant was capable of light work. (R. at 17, 

162.)7 In light of the medical evidence relied upon by the ALJ, this Court concludes that the ALJ 

properly determined Plaintiff’s RFC. 

Step Four

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

his past relevant work.8 See 20 C.F.R. § 404.1520(f). If Plaintiff does not have the RFC to 

perform any past relevant work, the analysis proceeds to the fifth step. 20 C.F.R. §§ 404.1560, 

416.960.

 7 The ALJ’s Decision lists this finding as by Dr. Aragona, but the content is correct. 8 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), 416.960(b).

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

relevant work pursuant to 20 C.F.R. §§ 404.1565, 416.965. Plaintiff’s past employment involved 

stocking shelves at a grocery store, which required heavy work. (R. at 17.) Since the Plaintiff is 

limited to sedentary work, the ALJ correctly rendered Plaintiff unable to perform his past relevant 

work.

Step Five

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

to perform any other work, taking into consideration his RFC, age, education, and work 

experience in conjunction with the Medical-Vocational Guidelines (“MVG”), 20 C.F.R Part 404, 

Subpart P, Appendix 2. See 20 C.F.R. §§ 404.1520(f), 416.920(f). If Plaintiff is able to do other 

work then he is not disabled. Id. If Plaintiff is unable 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. §§ 

404.1520(g), 416.920(g); 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 perform. See 20 C.F.R. §§ 404.1512(g), 416.912(g); See also 20 C.F.R. §§

404.1560(c), 416.960(c).

The ALJ must first consider whether Plaintiff has exertional and/or nonexertional 

limitations. See 20 C.F.R. §§ 404.1569(a), 416.969(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 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 20 C.F.R. pt. 404, Subpart P, app. 2. 

However, if there are both exertional and nonexertional limitations, the ALJ cannot only depend 

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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).

Plaintiff, citing Metullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990), notes that “[t]here 

must be medical evidence to disprove a claimant’s testimony regarding pain.” (Pl.’s Br. 32.) 

Here, the ALJ did not find Plaintiff’s assertions regarding pain credible considering his range of 

activities and as the record demonstrates that when prescribed pain medication Plaintiff took it 

infrequently because he did not need it. (R. at 15, 164.) According to Plaintiff’s testimony, he has 

not sought medical care since February 2007, nor was he taking any medication for his back pain

at the time of his hearing. (Id. at 17, 29.) 

Further, the 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). 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, under sections 404.1563 and 416.963(c) is a younger 

person (under the age of 50), who had the RFC to perform the full range of sedentary work as 

defined in 20 C.F.R §§ 404.1567(a), 416.967(a). Considering his age, education, and work 

experience, the ALJ concluded that there are jobs that exist in significant numbers in the national 

economy that Plaintiff can perform. (R. at 18.) Therefore, the ALJ found Plaintiff “not disabled” 

as directed by Medical Vocational Rules (“MVR”) 201.21 and 201.28. Additionally, the ALJ 

noted that “transferability of job skills is not material to the determination of disability because 

applying the Medical-Vocational Rules directly supports a finding of ‘not disabled’ . . . .” (R. at 

17) (citing SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).

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Finally, Plaintiff argues that the ALJ erred by not requiring the testimony of a vocational 

expert at step five. (Pl.’s Br. 36). Under Sykes, a vocational expert is required when Plaintiff’s 

nonexertional impairments limits his occupational base. 228 F.3d at 261. Here, the medical record 

indicates exertional and postural limitations, and there is no medical record of nonexertional 

limitations affecting Plaintiff’s ability to perform a full range of sedentary work, or limiting his 

sedentary occupational base. (R. at 280, 290; see also, R. at 298; see generally, R. at 151-298.) 

The ALJ determined that Plaintiff was in the 45-49 age range, which put him in the younger 

individual category, he had a high school degree, and based on his medical records, Plaintiff had 

significant functionality which allowed him to perform sedentary activities, and his nonexertional 

limitations did not compromise the full range of unskilled activity. (R. at 17; see also, Def.’s Br. 

19.) Plaintiff’s RFC for the full range of sedentary work, in conjunction with his age, education, 

and work experience led the ALJ to the finding of “not disabled” under MVR 201.21 and 201.28. 

(R. at 18.) The ALJ relied on and noted evidence which demonstrated that Plaintiff was capable 

of a full range of sedentary work and his postural impairments did not pose a nonexertional

limitation, and thus, after reviewing the guidelines found Plaintiff “not disabled” without the 

consultation of a vocational expert. 

CONCLUSION

For the foregoing reasons, the Court holds 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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