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NOT FOR PUBLICATION CLOSED

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY

 

WILSON MARTE,

 Plaintiff,

 v. 

MICHAEL J. ASTRUE,

COMMISSIONER OF SOCIAL SECURITY,

 Defendant.

 

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Civil Case No. 11-3087 (FSH)

OPINION & ORDER

Date: January 12, 2012

HOCHBERG, District Judge:

This matter comes before the Court upon Plaintiff Wilson Marte’s motion to review a 

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

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

motion has been decided upon the written submissions of the parties pursuant to Fed. R. Civ. P. 

78. 

I. BACKGROUND

A. Factual Background

Plaintiff is a thirty-four year old male and a native of the Dominican Republic. 

(Complaint ¶4; Tr. 18.) He has a limited education and is limited in his ability to read or speak 

English. (Tr. 18.) Plaintiff’s work history consists of a variety of unskilled labor. In 2001, 

Plaintiff worked as a machine operator, and in 2003, he worked as a chemical tank cleaner and a 

dispatcher for a large food warehouse. (Tr. 82.) Since January 2007, Plaintiff has been working 

as a forklift operator. (Tr. 258.) 

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Plaintiff had rheumatic fever as a child and now has valvular heart disease; in 1999, he 

had aortic and mitral valve replacement surgery. (Tr. 259.) On discharge from his 1999 surgery, 

Plaintiff was diagnosed with rheumatic heart disease, mitral stenosis, mitral and aortic 

regurgitation, sinus tachycardia, congestive heart failure, pulmonary hypertension, and anemia. 

(Tr. 116.) He has also been diagnosed with cardiomyopathy, and he has suffered one myocardial 

infarction. (Tr. 267.) 

In 2003, Plaintiff was hospitalized after complaining of dizziness, arm weakness, 

numbness, and slurred speech attributable to a cerebrovascular accident (stroke). (Tr. 137, 260.) 

Plaintiff did not suffer any significant debilitating side effects or require rehabilitation as a result 

of this stroke. (Tr. 260.) In November 2003, Dr. Celia Roque performed a consultative medical 

examination of Plaintiff for the New Jersey Division of Disability Determination Services. (Tr. 

173-78.) Dr. Roque diagnosed Plaintiff with “Status-Post Mitral and Aortic Valves Replacement 

Secondary to Mitral Valve Stenosis and Aortic Insufficiency Secondary to Rheumatic Heart 

Disease” and “Chest Pain and Dizziness most likely Secondary to Heart Valve Problems and or 

Stable Angina Secondary to Ischemic Heart Disease.” (Tr. 175.) Dr. Roque noted that the 

results of an electrocardiogram showed “questionable anteroseptal wall myocardial infarction 

most likely ischemia [and] left ventricular hypertrophy,” and also noted that Plaintiff “appears 

capable of performing activities of daily living and instrumental activities of daily living.” Id. 

A residual functional capacity report by a Dr. Jason was completed in May 2005 at the 

Raritan Bay Medical Center, wherein the doctor opined that Plaintiff would likely be absent from 

work about three times per month, that his symptoms would often interfere with attention and 

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concentration, that he could tolerate a low stress job, and that in a typical work day, Plaintiff 

could sit and stand/walk for about 4 hours respectively. (Tr. 223-27.) 

Plaintiff sought treatment multiple times in 2005 and 2006 after complaining of chest 

pain, palpitations, and headaches. (Tr. 260.) In August 2005, Plaintiff was hospitalized for chest 

pain, dizziness, and numbness, but this was diagnosed as atypical and not attributed to any 

cardiac or neurological event. Id. In May 2006, Plaintiff was again admitted to the hospital with 

complaints of rectal bleeding and epistaxis, as well as a prolonged nosebleed, all attributable to 

his use of the blood thinner Coumadin. Id. Plaintiff presented again at the hospital in December 

2006 after being accidently struck in the head with a baseball bat, but was discharged without 

being admitted after stabilizing. Id. Finally, in November 2007, Plaintiff presented to the 

emergency room with complaints of palpitations and dizziness, and although he was stabilized 

and not admitted, he was diagnosed with new onset rapid atrial fibrillation. Id. 

B. Procedural History

Plaintiff initially filed an application for Disability Insurance Benefits on September 5, 

2003 alleging disability since January 15, 2002. Plaintiff’s Brief (“Pl. Br.”) at 1. After the 

application was denied by the Social Security Commission both initially and upon 

reconsideration, Plaintiff requested and had a hearing before an Administrative Law Judge 

(“ALJ”) on June 23, 2005. Id. On August 12, 2005, ALJ Dennis O’Leary issued an unfavorable 

decision, and the Appeals Council concluded on July 13, 2006 that there were no grounds for 

review. Id. 

Plaintiff then sought District Court review and on June 2, 2008, the Honorable Susan D. 

Wigenton issued an opinion remanding the case to the Commissioner. (Tr. 265.) Judge 

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Wigenton found that the ALJ’s opinion did not fully discuss the evidence used to determine the 

credibility of Plaintiff’s subjective complaints and that the ALJ needed to use a vocational expert 

to assess the impact of Plaintiff’s non-exertional impairments on his ability to participate in an 

occupational base. (Tr. 272.) Judge Wigenton also found that the ALJ failed to establish 

whether or not Plaintiff could work for six out of eight hours in a day, and that the ALJ did not 

meet his burden of proof in determining that other work in the national economy exists that 

Plaintiff can perform. (Tr. 273.) 

The Appeals Council subsequently ordered the matter remanded for further proceedings 

on October 15, 2008, and a second hearing was held in front of ALJ O’Leary on February 13, 

2009. (Pl. Br. at 3.) The result of the second hearing was another unfavorable decision issued on 

April 7, 2009 and the subsequent refusal of the Appeals Council to assume jurisdiction on March 

29, 2011. Id. As a result, Plaintiff once again brought this matter to the District Court by filing a 

complaint on May 26, 2011.

C. The Disability Standard And The Decision Of The ALJ

1. The Statutory Standard For A Finding Of Disability

An individual is considered disabled under the Social Security Act if he is unable to 

“engage in any substantial gainful activity by reason of any medically determinable physical or 

mental impairment which can be expected to result in death or which has lasted or can be 

expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 

A physical or mental impairment is defined as “an impairment that results from anatomical, 

physiological, or psychological abnormalities which are demonstrable by medically acceptable 

clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). An individual will be 

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deemed disabled “only if his physical or mental impairment or impairments are of such severity 

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

work experience, engage in any other kind of substantial gainful work which exists in the 

national economy . . . .” 42 U.S.C. § 423(d)(2)(A).

In determining whether a claimant meets this definition of disability, the Commissioner 

applies the following sequential analysis prescribed by Social Security Regulations 20 C.F.R. § 

416.920(a):

Step One: Substantial Gainful Activity. The Commissioner first considers whether the 

claimant is presently employed, and whether that employment is substantial gainful activity.1

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

activity, she must then demonstrate that she suffered from a severe impairment or combination of

impairments considered severe. A “severe impairment” is one “which significantly limits [the 

claimant’s] physical or mental capacity to perform basic work activities.” If the claimant does 

not demonstrate a severe impairment, he will be found not disabled. 20 C.F.R. § 416.920(c). 

If 

the claimant is currently engaged in substantial gainful activity, the claimant will be found not 

disabled without consideration of his medical condition. 20 C.F.R. § 416.920(b).

Step Three: Listed Impairment. If claimant demonstrates a severe impairment, the 

Commissioner will then determine whether the impairment meets or equals an impairment listed 

on the Listing of Impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. If the 

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

fourth step. 20 C.F.R. § 416.9209(d).

 1 “Substantial” work involves significant physical and mental activities. “Gainful” work 

is performed for pay or profit. 20 C.F.R. § 416.972. 

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Step Four: Residual Functional Capacity. At step four, the Commissioner determines 

whether, despite his impairment, the claimant retains the residual functional capacity (“RFC”)2

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

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

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

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

to perform his past relevant work. If so, the claimant is found not disabled and the inquiry 

proceeds no further. If not, the Commissioner proceeds to the fifth step. 20 C.F.R. § 416.920(e)-

(f).

This five-step analysis involves shifting burdens of proof. Wallace v. Sec’y of Health & 

Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). The claimant bears the burden of persuasion 

during the first four steps. Bowen v. Yuvkert, 482 U.S. 137, 146 n.5 (1987). If the analysis 

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

is able to perform other work available within the national economy. Id.

2. The ALJ’s Determination At The First Hearing

Applying this five-step analysis, the ALJ during the first hearing before him found at step 

one that while Plaintiff had worked since his alleged disability onset date, that work qualified as 

an “unsuccessful work attempt,” and therefore that Plaintiff had not been engaged in any 

substantial gainful activity. (Tr. 16.) At the second step, the ALJ determined that Plaintiff had 

severe cardiac and neurological impairments that impose more than minimal restrictions on his 

 2 RFC designates the claimant’s ability to work on a sustained basis despite his physical 

or mental limitations. The RFC determination is not a decision as to whether a claimant is 

disabled, but is used as the basis for determining the particular types of work a claimant may be 

able to perform despite his impairment(s). 20 C.F.R. § 416.945. 

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ability to perform basic physical work-related activities. Id. At the third step, the ALJ found that 

Plaintiff did not meet or equal one of the required Listings. Id. Specifically, the ALJ found that 

Plaintiff’s cardiac and neurological impairments were not accompanied by the abnormal clinical 

findings, diagnostic results, mental function limitations, or secondary complications required by 

the Listings. Id. 

At the fourth step, the ALJ found that Plaintiff’s subjective allegations of pain were 

incredible to the extent that they were not consistent with the medical evidence when considered 

in totality. (Tr. 16-18.) Thus, the ALJ found that the Plaintiff retained the capacity to perform a 

full range of light work, including lifting no more than 20 pounds at a time, sometimes lifting 

and carrying 10 pounds, and prolonged standing and walking. (Tr. 18.) Because Plaintiff’s 

previous relevant work consisted of heavy exertional work, the ALJ found that Plaintiff did not 

have the RFC to return to his previous work. Id. Finally, at step five, the ALJ found that 

because of Plaintiff’s RFC, age, education, and relevant prior work experience, a determination 

of not disabled was warranted via Table No. 2, Appendix 2, Subpart P, Regulations No. 4. (Tr. 

18-19.)

3. The ALJ’s Determination At The Second Hearing

Upon remand, the ALJ held a second hearing and issued a second ruling. At step one, the 

ALJ once again found that Plaintiff had not engaged in substantial gainful activity.3

 3 As the ALJ noted, plaintiff returned to work as a forklift operator beginning in January 

2007, and earned $10,507.25 in 2007, roughly $300 less than the threshold at which point he 

would be deemed to have engaged in substantial gainful activity. Because plaintiff now seeks 

benefits only for the period from January 15, 2002 to January 2007, plaintiff’s return to work in 

2007 does not prevent him from pursuing this action. (Tr. 258.) 

 At step two, 

the ALJ found once again that Plaintiff had the severe impairments of cardiac and neurological 

disorders. (Tr. 258.) At step three, the ALJ again concluded that Plaintiff did not have an 

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impairment or combination of impairments that meets or medically equals one of the Listings. 

Id. The ALJ found once again that no treating or examining physician had mentioned clinical 

findings suggesting that Plaintiff’s impairments met or equaled one of the Listings. Id. The ALJ 

further found that Plaintiff’s impairments were not accompanied by the clinical findings, 

diagnostic test results, and secondary complications required by the Listings. Id. Addressing 

Plaintiff’s newly-diagnosed cardiac arrhythmia, the ALJ noted that it has not resulted in 

uncontrolled, recurrent episodes of cardiac syncope or near syncope as would be required to 

meet or equal a listed impairment. Id. 

The ALJ at step four found that Plaintiff has the RFC to perform light work with specific 

limitations, including the inability to sit more than four hours, to stand more than four hours, and 

“the need to avoid undue concentrations of dust, smoke, fumes, or other pulmonary irritants.” 

(Tr. 259.) The ALJ also determined that given his functional limits, Plaintiff had the ability to 

work as a forklift operator, which he had been doing for approximately two years at the time of 

the hearing. (Tr. 262.) Finally, although he was not required to do so, the ALJ proceeded to step 

five and utilized a vocational expert to confirm that, even if Plaintiff had not been able to return 

to his past work as a forklift operator, there were jobs available in the national economy that 

Plaintiff could perform with his limitations. (Tr. 263.) Accordingly, the ALJ concluded that 

Plaintiff was not disabled from January 15, 2002 until the date of the second decision. Id. 

II. DISCUSSION

A. Standard Of Review

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

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

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

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

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

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

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

on the record. Simmonds v. Hecker, 807 F.2d 54, 58 (3d Cir. 1986). 

B. Review Of The Commissioner’s Decision

Plaintiff challenges the decision of the Commissioner, contending that the ALJ’s denial 

of benefits is not supported by substantial evidence. Specifically, Plaintiff argues that the ALJ 

erred by: (1) failing to compare Plaintiff’s impairments, individually or in combination, to the 

relevant listed impairments at the third step in the sequential evaluation (Pl. Br. 11-15); (2) 

failing to provide adequate evidentiary support for his RFC assessment (Pl. Br. 15-20); (3) 

failing to properly evaluate Plaintiff’s subjective complaints of pain (Pl. Br. 20-22); and (4) 

selectively and improperly relying on the testimony of the vocational expert in concluding that 

Plaintiff is not disabled. (Pl Br. 22-29). The Court will address each argument in turn.

1. Comparing and Combining Impairments

Under 20 C.F.R. § 416.920(d), if the claimant has an impairment found in the relevant 

Listings, the Commissioner will consider him disabled regardless of his age, education, and work 

experience. To be disabling, an impairment must meet all the criteria of a listed impairment. 

Sullivan v. Zeblev, 493 U.S. 521, 530 (1996). If a claimant has multiple impairments, but none 

alone meets or equals an impairment in the Listings, the Commissioner will consider whether 

findings related to a combination of the claimant’s impairments are at least of equal medical 

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significance to those of a listed impairment. 20 C.F.R. § 416.926(b)(3). Plaintiff argues that the 

ALJ’s severity finding in his second decision is repeated verbatim from his first decision, and 

ignores substantial evidence within the record showing that Plaintiff does indeed meet Listing 

4.04. (Pl. Br. 13.) The ALJ’s review of the record and explicit citations to specific Listings 

demonstrate that the ALJ conducted a proper evaluation and comparison of all relevant medical 

evidence in the record at step three. 

The ALJ concluded in both his first and second opinions that Plaintiff did not meet the 

requirements of any of the Listings, and specifically focused on Listings 4.04 and 4.05. (Tr. 

258.) As the ALJ noted, although Plaintiff did suffer from valvular heart disease and 

cardiomyopathy, the record does not contain clinical evidence or diagnostic tests sufficient to 

satisfy any of the Listings showing chronic heart failure, ischemic heart disease, recurrent 

arrhythmias, or evidence of a central nervous system vascular accident with significant and 

persistent disorganization of motor function in two extremities. (Tr. 258); 20 C.F.R. Pt. 404, 

Subpt. P, App. 1, §§ 4.02, 4.04, 4.05, 4.05, 4.07, 4.08, 11.04. Additionally, Dr. Martin Fechner, 

who testified as a medical expert in the first hearing, determined that Plaintiff did not meet any 

of the Listings after reviewing Plaintiff’s medical records. (Tr. 239.)

Plaintiff insists that “all he needed was ischemic heart disease” to meet 4.04 and 4.05 of 

the Listings and therefore be presumptively disabled at step three. (Pl. Br. 15.) This contention 

is an oversimplification of the Listings and lacks merit. Listing 4.04 sets forth specific medical 

requirements a claimant must meet in order to be found to have presumptively disabling 

ischemic heart disease. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.04 (setting forth three 

possible ways to meet the Listing, each of which requires specific medical evidence 

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demonstrating the nature and severity of the claimed impairment). As the ALJ noted, after 

evaluating Plaintiff, Dr. Roque concluded that Plaintiff suffered from “Chest Pain and Dizziness 

most likely Secondary to Heart Valve Problems and or Stable Angina Secondary to Ischemic 

Heart Disease” and “questionable anteroseptal wall myocardial infarcation most likely ischemia, 

left ventricular hypertrophy.” (Tr. 175).4

Dr. Roque’s findings were cited in the step five portion of Judge Wigenton’s opinion and 

are not disputed. However, Judge Wigenton found no problem with the ALJ’s analysis of his 

findings for purposes of the step three analysis. Dr. Roque’s findings did not cite the detailed 

medical evidence requirements of Listing 4.04, nor establish for purposes of the step three 

analysis that plaintiff had presumptively disabling ischemic heart disease as defined by that 

Listing. In addition, Dr. Martin Fechner, after evaluating Plaintiff’s medical records, concluded 

that plaintiff’s cardiac impairments did not meet or equal any of the listed impairments. (Tr. 

239) The similar nature of the ALJ’s pre and post remand step three analysis is not in tension 

with Judge Wigenton’s opinion.

 

A claimant bears the burden of establishing that his impairment meets or equals a listed 

impairment. Poulos v. Comm’r of Social Security, 474 F.3d 88, 92 (3d Cir. 2007). By failing to 

identify any medical evidence in the record that would satisfy the requirements of Listing 4.04, 

plaintiff has failed to establish that his cardiac impairment meets or equals that Listing. Because 

substantial evidence supports the ALJ’s conclusion that plaintiff’s cardiac impairments do not 

meet or equal Listing 4.04, this Court must uphold the ALJ’s determination on this issue. See 

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

 4 Dr. Roque also found that Plaintiff’s chest pains were “atypical for coronary heart 

disease (angina),” and that Plaintiff allegations of pain were credible but “not bad enough to 

warrant abstaining from work.” (Tr. 184.) 

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Plaintiff also contends that he should have been found disabled pursuant to Listing 4.05, 

because he suffered cardiac arrhythmia after the first hearing. To meet the requirements of 

Listing 4.05, the claimant’s arrythmia must resulting in uncontrolled, recurrent episodes of 

cardiac syncope or near syncope and be documented in accordance with the terms of the Listing. 

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.05. As the ALJ correctly noted, Plaintiff adduced no 

evidence within the record of recurrent episodes of syncope or near syncope, and thus, Plaintiff 

fails to meet or equal this Listing. (Tr. 258.) Accordingly, substantial evidence supports the 

ALJ’s conclusion regarding Listing 4.05, and it must also be upheld by this Court. Simmonds, 

807 F.2d at 58. 

Plaintiff finally argues that the ALJ failed to compare the combined effects of his 

impairments with the relevant Listings. However, Plaintiff adduced no evidence into the record 

nor any medical theory in his briefs to this Court as to how his impairments considered together 

would meet or equal any of the Listings. Plaintiff’s argument also fails because he has identified 

no “medical evidence ignored by the ALJ that would show that [his] impairments medically 

equaled one of the listings.” Cosby v. Comm’r of Social Security, 231 Fed. Appx. 140, 146 (3d 

Cir. 2007). 

When conducting a step three analysis, an ALJ is not required “to use particular language 

or adhere to a particular format in conducting his analysis.” Jones v. Barnhart, 364 F.3d 501, 

505 (3d Cir. 2004). Here, by analyzing Plaintiff’s medical history and specifically considering 

each of Plaintiff’s impairments, (Tr. 258-60), the ALJ provided a “sufficient development of the 

record and explanation of findings to permit meaningful review” of the step three determination. 

Id. (citing Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000)). For the 

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reasons discussed above, substantial evidence supports the ALJ’s step three determination and it 

must therefore be upheld. Simmonds, 807 F.2d at 58. 

2. RFC Assessment

At step four, the ALJ found that Plaintiff has the RFC to perform light work with 

additional limitations: the work could not require the ability to stand for more than four hours per 

day, and the work could not expose Plaintiff to undue concentrations of dust, smoke, fumes, or 

other pulmonary irritants. (Tr. 259.) Plaintiff claims that the ALJ failed to follow Judge 

Wigenton’s order to reconsider certain evidence in determining whether Plaintiff had the RFC to 

perform light work. (Pl. Br. 20.) Judge Wigenton specifically asked the ALJ to address the 

credibility of that portion of Dr. Jason’s report that evaluated the intensity, persistence and cause 

of Plaintiff’s chest pain and dizziness, as well as to address Dr. Jason’s determination about

Plaintiff ‘s ability to perform light work, with limitations. (Tr. 273-78.) 

The ALJ addressed Judge Wigenton’s concerns in his second decision. The ALJ noted 

that Plaintiff had returned to work as a forklift operator in January 2007 and had been working as 

a forklift operator for approximately two years as of the time of the second hearing. (Tr. 262.) 

The ALJ concluded that based on the medical evidence, Plaintiff’s testimony, and Plaintiff’s 

recent work history, Plaintiff was capable of returning to his past work as a forklift operator, 

which a vocational expert classified as light work. (Tr. 262; Tr. 432-33.) In the alternative, the 

ALJ concluded that Plaintiff was capable of performing light work after posing to the vocational 

expert a series of hypothetical questions addressing Plaintiff’s non-exertional limitations. (Tr. 

263; 432-37.) The ALJ explained his use of portions of Dr. Jason’s opinion and described in 

detail his evaluation of Plaintiff’s subjective complaints regarding his symptoms. (Tr. 259-62.)

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In assessing the limiting effects of Plaintiff’s impairments, the ALJ considered the 

evidence according to 20 C.F.R. § 404.1529(c). Because the medical evidence showed that 

Plaintiff has an impairment that could reasonably be expected to produce his symptoms, the ALJ 

evaluated the intensity and persistence of the symptoms by considering Plaintiff’s medical 

history, his statements, statements from his treating and examining physicians, and medical 

opinions. 20 C.F.R. § 404.1529(c). The ALJ concluded that Plaintiff’s impairments could be 

expected to produce his symptoms. However, the ALJ also found that Plaintiff’s allegations 

about the intensity, persistence, and limiting effects of the symptoms were not credible to the 

extent that Plaintiff claimed an inability to perform light work. (Tr. 262.) The ALJ’s second 

decision is by no means a verbatim recitation of his first decision, and it respects and complies 

with Judge Wigenton’s ruling by providing substantial explanations for its findings. 

First, the ALJ noted that Plaintiff underwent successful cardiac surgery in 1999 and that 

his subsequent tests have shown adequate heart function; the Plaintiff’s heart function, as 

evidenced by his significantly improving ejection fraction levels, is significantly better than the 

ejection fraction measurements that are listed in 4.02.

5 (Tr. 259-60.) Next, the ALJ took note of 

Plaintiff’s 2003 stroke, from which he suffered no lasting neurological impairment.

6

 5 Plaintiff’s left ventricular ejection fraction was measured as 38% in 2003, 39% in 2005, 

and 47% in 2006 (Tr. 259-60); to qualify as disabled under Listing 4.02, it must be less than 

30%. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.02(A)(1). 

(Tr. 260.) 

The ALJ acknowledged Plaintiff’s episode of rectal and nose bleeding, but observed that it was a 

result of side effects from the blood thinner Coumadin. (Tr. 260.) Next, the ALJ specifically 

discussed Plaintiff’s hospital records, noting that tests in 2005 showed him as asymptomatic with 

6 The record and the testimony of Dr. Fechner both support the conclusion that there were 

no focal defects following Plaintiff’s stroke. Six months after the stroke, Dr. Roque reported that 

Plaintiff had no issues walking, talking, dressing or undressing, and that he displayed normal fine 

and gross manipulation. (Tr. 174-75.) 

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a borderline normal ejection fraction percentage and revealed no intracranial hemorrhage or 

infarct. Id. In addition, the ALJ noted that a brain CT scan in 2006 (following Plaintiff’s 

accident with a baseball bat) was normal. In addition, the ALJ noted that Plaintiff’s atrial 

fibrillation in 2007 stabilized without any need for inpatient hospital admission. Id. 

After going through the medical evidence, the ALJ made an RFC assessment that is 

“accompanied by a clear and satisfactory explication of the basis on which it rests.” Fargnoli v. 

Massanari, 247 F.3d 34, 43 n.7 (3d Cir. 2001). Plaintiff observes that an ALJ must support his 

findings with specific references to the facts in the record in order to allow a court to conduct a 

proper review. (Pl. Br. 19.) This is exactly what the ALJ did in this case. The ALJ explained

that Dr. Jason did not conclude that Plaintiff could only work for four hours per day. (Tr. 261.) 

This is supported by the record, as indeed, the questionnaire notes that Plaintiff could sit for four 

hours and stand for four hours. (Tr. 225.) The ALJ’s revised RFC includes in it the 

environmental limitations suggested by Dr. Jason. (Tr. 261.) Judge Wigenton also asked the 

ALJ to revisit the issue of what impact Plaintiff’s concentration difficulties would have on his 

RFC, which the ALJ did by posing several hypothetical questions to the vocational expert. In 

response to those questions, the vocational expert testified than an individual with Plaintiff’s 

RFC who was limited as a result of fatigue and pain to performing simple and repetitive tasks 

was capable of performing a significant number of jobs in the economy. (Tr. 435.) 

The ALJ also clearly explained the basis for his partial, rather than complete, reliance on 

Dr. Jason’s opinion, noting that some of Dr. Jason’s conclusions were not consistent with the 

evidence in the record. (Tr. 262.) Notably, both Dr. Roque, Plaintiff’s examining physician, and 

Dr. Fechner, determined that Plaintiff was capable of light work. Dr Jason further opined that 

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Plaintiff would likely miss work three days per month. Id. The ALJ concluded that this 

observation by Dr. Jason was inconsistent with both the testimony at the hearing and Plaintiff’s 

own actions. (Tr. 262, 431). The ALJ specifically noted that at the time of the hearing, Plaintiff 

had been working for two consecutive years as a forklift operator, a light job, which Plaintiff did 

not have to miss due to illness. (Tr. 262, 431.) Finally, the ALJ noted that Plaintiff has relied 

only on non-prescription Tylenol for his aches and pains and that this would not affect his ability 

to do light work.7

 7 The ALJ found that Plaintiff’s subjective complaints of pain were not entirely credible 

(Tr. 262.) The ALJ found, in essence, that Plaintiff would have some pain associated with his 

impairments, but not such extreme pain as to render him unable to do light work, with 

restrictions. The ALJ gave Plaintiff’s assertions of pain “serious consideration.” Smith v. 

Califano, 637 F.2d 968, 972 (3d Cir. 1981). However, such assertions alone will not establish 

that a claimant is disabled; rather, “there must be medical signs and laboratory findings which 

show . . . medical impairment(s) which could be reasonably expected to produce pain or other 

symptoms alleged.” 20 C.F.R. § 404.1529(a). The claimant “bears the burden of demonstrating 

that [his] subjective complaints [are] substantiated by medical evidence.” Alexander v. Shalala, 

927 F. Supp. 785, 795 (D.N.J. 1995) (citing Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 

1992). The ALJ has discretion to “evaluate the credibility of a claimant and to arrive at an 

independent judgment in light of the medical findings and other evidence regarding the true 

extent of the pain alleged by claimant.” Id. In performing this evaluation, the ALJ must consider 

the claimant’s daily activities; the location, duration, frequency, and intensity of the alleged pain 

or other symptoms; precipitating and aggravating factors; the claimant’s medications; and 

treatment and any other measures used to relieve the claimant’s pain or symptoms, which in this 

case were relieved with Tylenol. 20 C.F.R. § 404.1529(c)(3). 

 Id. 

Plaintiff mocks the ALJ’s findings and claims that he disregarded Judge Wigenton’s 

opinion. (Pl. Br. 21-22.) To the contrary, it is clear that the ALJ specifically considered and 

analyzed whether Plaintiff’s subjective complaints were credible. Indeed, in his second decision, 

the ALJ finds Plaintiff’s complaints partially credible - but not to the extent that they are 

inconsistent with his RFC findings and analysis. (Tr. 262.) The ALJ properly took the evidence 

viewed as a whole into consideration when evaluating Plaintiff’s complaints of pain and formed 

his opinion regarding Plaintiff’s credibility after a thorough analysis of Plaintiff’s medical 

history and symptoms and the extent to which Plaintiff’s symptoms were consistent with the 

objective medical evidence and other evidence presented. 

Specifically, the ALJ noted that Plaintiff’s 1999 heart surgery, which took place roughly 

three years before Plaintiff’s claimed onset of disability, was successful and has not required 

additional hospital stays. (Tr. 259-260) The ALJ further noted that the mild stroke Plaintiff 

suffered in 2003 did not result in any after-effects. (Tr. 260.) Additionally, Plaintiff’s ejection 

fraction level was measured successively at 38%, 39%, and 47%, indicating that his exercise 

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The ALJ’s findings and the record support the conclusion that Plaintiff was capable of 

light work. The ALJ followed the proper framework in evaluating Plaintiff’s RFC, and he 

sufficiently considered the evidence before him and explained his findings. The ALJ further 

addressed in his second opinion each of the issues raised by Judge Wigenton and the ALJ’s 

determination that Plaintiff is capable of light work with certain environmental limitations is 

supported by substantial evidence. 

3. Past Relevant Work And Testimony of Vocational Expert

Finally, Plaintiff takes issue with the ALJ’s conclusion that Plaintiff was capable of 

performing his past relevant work as a forklift operator and with the ALJ’s use in the alternative 

of a vocational expert. In his first decision, the ALJ found that Plaintiff was not capable of 

performing his past relevant work, but retained the capacity to perform light work. In the second 

decision, the ALJ considered Plaintiff’s past relevant work to include working as a forklift 

operator, a job which he got after the first decision and had held since January 2007. That job is 

classified by the vocational expert as light work. (Tr. 262, 232). The ALJ therefore concluded 

that Plaintiff was capable of performing his past work as a forklift operator. (Tr. 262). 

 

capacity has improved. (Tr. 259-60.) The ALJ noted that when Plaintiff presented to the 

hospital for chest pain in 2004, his pain was quickly alleviated by medication and a “clinical 

workup did not attribute his chest pain to heart disease related origins.” (Tr. 259.) Next, the ALJ 

noted that Plaintiff denied episodes of dizziness after suffering a stroke, walked with a normal 

gait and without assistance, and had good overall mobility. (Tr. 261.) 

A heart exam of Plaintiff in 2003 showed a regular rhythm and no focal deficits, intact 

sensation to pinprick, a range of motion within normal limits, and normal muscle strength. Id. 

Finally, the ALJ noted that Plaintiff’s complaints of chest pain in 2005 and 2006 were evaluated 

as atypical and unrelated to cardiac, cardiovascular, traumatic, neurological, or cerebrovascular 

causes. Id. The ALJ’s analysis properly considered Plaintiff’s conditions and medical history 

and found Plaintiff’s symptoms incredible only to the extent that they are inconsistent with 

plaintiff’s capacity to perform light work of the type he had been performing for approximately 

two years at the time of the second hearing. Thus, the ALJ properly exercised his discretion to 

evaluate the credibility of Plaintiff’s subjective complaints and “to arrive at an independent 

judgment in light of the medical findings and other evidence.” Alexander v. Shalala, 927 F. 

Supp. 785, 795 (D.N.J. 1995) (citing Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992)).

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In the alternative, the ALJ took the testimony of a vocational expert. An ALJ may rely 

on vocational expert testimony where the vocational expert accounts for the claimant’s 

functional limitations, age, education, and work experience. Podedworny v. Harris, 745 F.2d 

210, 218 (3d Cir. 1984); see also Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005) 

(noting that an ALJ may rely on a vocational expert’s answers to hypothetical questions that 

accurately convey the claimant’s credibly established limitations). 

Plaintiff contends that the ALJ disregarded Judge Wigenton’s order to consider Plaintiff’s 

non-exertional limitations. (Pl. Br. 23.) However, the ALJ did so by asking the vocational expert 

to assume that Plaintiff had a limited ability to concentrate as a result of the effects of his pain. 

(Tr. 434; Tr. 261.) The vocational expert opined that if Plaintiff frequently experienced 

difficulty in concentrating, Plaintiff would not be able to work. (Tr. 438.) However, the ALJ 

correctly noted that there is no medical indication in the record by any of plaintiff’s doctors that 

Plaintiff frequently has difficulty concentrating. (Tr. 224.) 

Finally, Plaintiff contends that when he asked the vocational expert if Plaintiff could 

work if he needed to be absent more than three times per month, as Dr. Jason suggested, the 

expert opined that Plaintiff could not work. (Pl. Br. 26; Tr. 227) However, the ALJ specifically 

considered and rejected this aspect of Dr. Jason’s report as unsupported by the record because it 

conflicted with the opinions of Dr. Roque and Dr. Fechner and with the most recent two years of 

Plaintiff’s employment history. (Tr. 262.) Therefore, the ALJ was not required to accept that 

portion of the vocational expert’s opinion. See Jones, 364 F.3d 501, 506 (3d Cir. 2004) (noting 

that an ALJ has the authority to disregard responses to hypothetical questions that are 

inconsistent with the medical record). 

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III. CONCLUSION AND ORDER

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

Court finds that the ALJ’s conclusion is based on substantial evidence in the record. 

Accordingly, this Court will AFFIRM the Commissioner’s decision to deny Plaintiff Social 

Security benefits.

Therefore, IT IS on this 12th day of January, 2012, hereby

ORDERED that the decision of the Commissioner is AFFIRMED; and it is further 

ORDERED that this case is CLOSED.

/s/ Faith S. Hochberg 

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

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