1

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TOUFIK SERBOUTI, 

 Plaintiff,

v.

COMMISIONER OF SOCIAL SECURITY,

 Defendant.

Civil Action No.: 11-4217 (JLL)

OPINION

LINARES, District Judge.

Toufik Serbouti (“Claimant”) filed an appeal with this Court seeking review of 

Administrative Law Judge Donna Krappa’s (the “ALJ”) decision to deny him Social 

Security disability benefits. This Court may consider the submissions both in support of 

and in opposition to this appeal and decide this matter without oral argument pursuant to 

Federal Rule of Civil Procedure 78. Based on the evidence in the record and the standard 

of review for such cases (dictating that the ALJ’s findings must be upheld provided they 

are “reasonable” and supported by “substantial evidence”) the Court should find the 

ALJ’s determination that the Claimant is not disabled was proper.

I. BACKGROUND

Claimant Toufik Serbouti suffers from a severe impairment of the cervical and 

lumbar spine and has not worked since May 1, 2007, the date of the alleged onset of his 

disability. (R. 18). In April 2008, Claimant underwent a cervical fusion. (Id. at 20). Since 

the surgery, Claimant alleges he is “always in pain,” it takes him “forever to shower and 

dress,” he can only walk one block before he has “problems,” he can only stand or sit for 

an hour before he tires, lifting even one pound causes him “problems,” he drops objects

he attempts to lift, and his wife prepares his meals and does all the housework. (Id. at 19).

The ALJ reviewed Claimant’s records reflecting the periods both prior and 

subsequent to Claimant’s surgery. The ALJ found Claimant did not have an “impairment 

or combination of impairments that met or medically equaled one of the listed 

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (R. 18). She explained: “no 

medical source has reported clinical signs and laboratory findings of listing level severity. 

In this regard, Listing 1.04, pertaining to disorders of the spine, [was] not met because 

there [was] no evidence of persistent motor, sensory or reflex loss, of sitting and supine 

straight leg raising or of an inability to ambulate effectively.” (Id.) The ALJ considered

Claimant’s residual functional capacity (“RFC”), calculated by a consulting physician, in 

making her decision. The RFC stipulated Claimant could perform “light work.” (Id.) The 

ALJ elaborated that Claimant could to “lift and/or carry 10 lbs. frequently and 20 lbs. 

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occasionally; perform unlimited pushing and pulling within the weight restriction noted 

above; frequently balance; sit for a total of 6 hours; and stand or walk a total of 6 hours.” 

(Id.) The ALJ further stated that the Claimant was able to “maintain adequate 

concentration and focus to perform simple, unskilled work” and could perform jobs that 

require:

no climbing of ladders, ropes or scaffolds; that require only occasional 

climbing of stairs and ramps; that require only occasional stooping, 

kneeling, crouching and no crawling; that do not involve exposure to 

extreme cold; that require no quick movements of the neck and no 

movement of the neck side to side at greater than a 45 degree angle; and 

that are simple, unskilled and repetitive.

(Id.)

In her February 16, 2010 decision, the ALJ determined Claimant was not disabled 

within the meaning of the SSA. (Id. at 16). While the ALJ noted Claimant cannot return 

to his past work, (Id. at 23), she looked to the record, Claimant’s RFC, and Claimant’s 

vocational factors (including the testimony of a vocational expert) and determined 

Claimant was employable as a tabber, decal applier, assembler, inspector, and microfilm 

processor. (Id. at 24). These jobs exist in significant numbers in both the regional and 

national economies. (Id.)

In her decision, the ALJ reported that Claimant’s post-surgery MRI showed 

evidence of spondylosis of the cervical spine and a slight disk herniation. (Id. at 19). She 

elaborated: “physical examinations have been limited to a slightly broad based gait, mild 

tenderness and limitation of motion in the lumbar spine, mildly decreased motor strength 

in the proximal upper and lower extremities, moderately diminished motor strength in the 

hands, and markedly brisk reflexes.” (Id. at 20). She also considered Claimant’s June 

2007 EMG and nerve conduction studies, which were normal, (Id. at 19), and a 

“monopolar needle examination of selected muscle of the left arm,” which was normal 

despite “possible” evidence of “multi-level left cervical radiculopathy without 

electrodiagnostic evidence of limb involvement.” (Id. at 20). The Claimant’s July 2008 

carotid artery studies and August 2008 EMG and nerve conduction studies were also 

normal “with no evidence of peripheral polyneuropathy or left lumbosacral radiculopathy. 

Lower venous studies from July 2008 showed no evidence of deep vein thrombosis, 

bilaterally.” (Id.) The ALJ also cited physical evaluations by numerous physicians 

revealing Claimant possesses full or nearly full grip strength. (Id. at 20-22). The ALJ also 

considered Claimant’s August 22, 2007 and February 2, 2008 SSA Function Reports 

which indicate that he prepares “light meals” and helps with the laundry (Id. at 23).

The ALJ addressed Claimant’s allegations of pain as follows: “Although 

assertions of pain and symptoms are reasonable to a degree, the overall record does not 

support them to the debilitating extent asserted . . . . [T]he evidence does not support such 

extensive limitations” as the Claimant asserts. (Id. at 22). She concludes, “I find the 

[C]laimant’s complaints of severe pain are not entitled to significant weight, as they are 

in sharp contrast with the documentary evidence.” (Id. at 23). 

The ALJ considered reports from Claimant’s evaluating physicians in her decision. 

She referred to the findings of Dr. Mills who examined Claimant on March 12, 2008 at 

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the request of the SSA. The examination revealed some limitations in the Claimant’s 

range of motion and slight clonus in the ankles but showed that Claimant could “squat, 

walk on heels, and walk on toes.” (Id. at 20). Additionally the Claimant displayed “no 

sensory loss” and his “motor strength was 5/5 throughout. He was able to fully extend his 

hands. He could make fist. He could oppose all digits and his grip and pinch strength was 

5/5.” (Id.) Finally, Dr. Mills noted Claimant was able to “transfer papers appropriately 

and . . . walk at a reasonable pace.” 

The ALJ also cited the opinion of Dr. Kane, another evaluating physician. Dr. 

Kane examined the Claimant on June 15, 2009 and noted “only . . . minimal clinical 

evidence of mild loss of forward flexion.” (Id. at 21). The doctor noted the following 

physical findings:

hyperextension was appreciable to 30 degrees, bilateral rotation of the 

neck was only mildly decreased, and there was some tightness in the 

trapezius muscles, bilaterally. There was full range of motion with testing 

of the upper extremities. On strength testing, thumb opposition and grip 

strength was 4+/5; however, biceps, triceps, shoulder internal and external 

rotation, as well as wrist dorsiflexion and volar flexion were all 5/5, 

bilaterally. Upper extremity reflexes were 2+. On sensory testing, he was 

“fairly” sharp to pinprick throughout the upper extremities. Upon 

examination of the lumbar spine he was unable to toe walk but he had no 

major pain on direct palpation within the back. Forward flexibility and 

hyperextension were good; lateral bending was normal; straight leg raising 

was negative and hip mobility was normal and pain free. Range of motion 

of the knee and ankle was normal. On sensory testing, everything from the 

toes up to the thighs was “sharp” to pinprick. Motor testing of the lower 

extremities showed less toe dorsiflexion strength on the left side by 4/5; 

however, plantar flexion strength, right toe dorsiflexion, and quadriceps 

and hamstring strength was 5/5, bilaterally. Lower extremity reflex testing 

showed knee jerks were 2+; ankle jerk on the right was 3 and about 5 

clonus on left. 

(Id.) At Claimant’s final visit to Dr. Kane, the physician noted “mild loss of mobility of 

the neck in all directions; ‘some’ trapezius tightness, bilaterally; and mild decrease of 

thumb opposition and grip strength to the hands.” (Id.) Despite some weakness, Dr. Kane 

declared his findings “normal” and stated the latest MRI showed good results with only a 

minor lumbar bulge. Dr. Kane did not see “any anatomic explanation for the [C]laimant’s 

lumbar radicular complaints.” (Id.)

The ALJ also noted Claimant’s physical examinations did not reveal any

significant problems ambulating. (Id. at 23). Dr. Mills’ examination revealed only a 

“slight decrease of lumbar spine flexion by 15 degrees, bilaterally and positive supine 

straight leg raising; [which] was 70 degrees, bilaterally but in the seated position, it was 

90 degrees.” (Id.) Dr. Mills also noted that Claimant could “squat, walk on heels and 

walk on toes,” displayed “no sensory loss,” had “increased” reflexes with a “few beats of 

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clonus at the ankles, bilaterally” and “motor strength” at “5/5 throughout.” (Id. at 20, 

23).

1

The ALJ also reviewed medical records from Claimant’s treating physician, Dr. 

Arginteanu. On May 7, 2008, Dr. Arginteanu remarked that Claimant complained of a 

“fair bit of local pain as well as radicular symptomatology.” (Id. at 313). On June 30, 

2008, Dr. Arginteanu noted that Claimant’s physical examination “did not reveal any 

significant abnormalities” apart from “diminished sensory function on the left side and 

brisk reflexes” and he noted “no gross focal motor deficits.” (Id. at 20). Dr. Arginteanu 

noted Claimant’s September 2008 post-surgery MRI results were “consistent with status 

post anterior cervical spinal fusion at the C4-C7 levels; congenital ‘block vertebra’ at the 

C3-C4 levels; bulging annulus and mild degenerative changes at C2-C3, with no 

evidence of spinal stenosis or herniated disc.” (Id. at 20). As for Claimant’s complaints of 

lumbar back pain, Dr. Arginteanu stated that Claimant did not need surgery. (Id. at 315). 

Despite Claimant’s normal test results, in a letter dated January 2, 2009, Dr. Arginteanu 

opined: “Due to [Claimant’s] continued agonizing miserable pain despite significant 

surgery with decompression, fusion, and instrumentation of the cervical spin, I do believe 

at this time the patient is totally and completely disabled and unable to work.” (Id.)

The ALJ did not rely on Dr. Arginteanu’s conclusory opinion in her report. She 

explained:

Dr. Arginteanu simply recounts the [C]laimant’s claims of pain and 

concludes that the [C]laimant is totally disabled because of it. However, 

the records that the doctor has submitted show only complaints of pain 

after the procedure he performed and fail to chronicle any other 

complaints of extreme pain . . . I find that that [sic] Dr. Arginteanu’s 

assessment of disability is unsupported by his own objective findings or 

record as a whole. Therefore, no significant weight was given to the 

assessment of Dr. Arginteanu (Exhibit 13F, 16F). Under the Regulations I 

am not bound to accept a treating source’s conclusion as to disability—

particularly if this conclusion is not supported by clinical and laboratory 

evidence (20 CFP 404.1527(d), 416.927(d) and SSR 96-2p).

(Id. at 23). 

 1 Furthermore, May 22 and June 4, 2007 examinations by Dr. Feldman revealed 

the Claimant’s lower extremities were “normal to inspection and palpation,” did not 

exhibit “instability,” demonstrated a “full [range of motion],” and had “intact motor 

strength” and “normal muscle tone.” (Id. at 235, 244, 336, 345). Similarly, a September 6, 

2007 visit to Active Orthopedics & Sports Medicine, P.A. revealed a “smooth, narrowbased, reciprocal, nonantalgic” gait. (Id. at 292). On March 31, 2008, Dr. Arginteanu 

noted Claimant was “able to ambulate around the examining room.” (Id. at 368). On the 

other hand, on a Multiple Impairment Questionnaire dated April 5, 2010, Dr. Arginteanu 

stated Claimant had a “good” prognosis, (Id. at 404), despite alleging that Claimant could

only “stand/walk” for 0-1 hours out of an eight-hour day. (Id. at 406).

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Claimant filed a request for disability benefits with the Social Security 

Administration (“SSA”) on July 11, 2007. He alleges his disability began May 1, 2007. 

The SSA denied Claimant’s request for benefits on October 11, 2007 and again on March 

27, 2008. Claimant requested a hearing with an ALJ on May 21, 2008. The hearing took 

place on August 3, 2009. A supplemental hearing featuring a vocational expert took place 

on January 11, 2010. The ALJ denied Claimant’s request for benefits on February 16, 

2010. Claimant now alleges the ALJ failed to follow the treating physician rule and failed 

to properly evaluate Claimant’s credibility in making her determination as to Claimant’s 

disability. The case is before us on appeal.

II. LEGAL STANDARD:

1. Determining Disability

In order to receive disability benefits under the Social Security Act, a claimant 

must show he is disabled based on his inability 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A person 

is disabled for these purposes only if his physical or mental 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. § 1382c(a)(3)(B). The Social 

Security Regulation employs a five-step evaluation to adjudicate disability claims. 20 

C.F.R. §404.1520(a)(4).

The five steps are analyzed in order. If it is determined the claimant is or is not

disabled at any step, a decision is made and the evaluation will cease. If a determination 

cannot be made that the claimant is or is not disabled at a particular step the evaluation 

will continue. At step one, the Commissioner determines whether the claimant is 

engaging in substantial gainful activity. If he is not, the Commissioner continues to step 

two and determines whether the claimant has a severe impairment. If the claimant has a 

severe impairment, the Commissioner proceeds to step three to determine whether the 

claimant’s impairment meets or equals the criteria of an impairment listed in 20 C.F.R. 

Part 404, Subpart P, Appendix 1. If the claimant does not suffer from a listed impairment 

or its equivalent, the Commissioner proceeds to step four and considers the claimant’s 

RFC along with his relevant past work to determine whether the claimant can return to 

his past work. If the claimant cannot perform his past work based on his RFC, the 

Commissioner proceeds to step five where the burden shifts to the Commissioner to show 

that, based on the claimant’s RFC and vocational factors, the claimant can perform other 

work existing in significant numbers in the national economy. If the Commissioner 

cannot show that claimant can perform other work in existence, the claimant is deemed

disabled and is entitled to disability benefits.

The SSA will generally give more weight to the medical opinions of treating 

sources (those who have examined a claimant over a period of time) than the opinions of 

those who have not examined the claimant. 20 C.F.R. § 404.1527(d)(2). The Court may, 

however, reject a treating physician’s opinion when it contradicts medical evidence in the 

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record. 20 C.F.R. § 404.1527(d)(2); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 202 

(3d Cir. 2008). When an ALJ does not afford a treating source’s opinion controlling 

weight he should provide an explanation for his decision. 20 C.F.R. § 404.1527(d)(2).

The SSA may also determine whether a claimant’s statements about the “intensity, 

persistence, and limiting effects of [his] symptoms” are credible. 20 C.F.R. § 

404.1529(c)(4). The SSA will look at whether “symptoms, including pain . . . can 

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

evidence.” Id.; see also Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (in 

determining a claimant’s credibility, the ALJ may “determine the extent to which a 

claimant is accurately stating the degree of pain or the extent to which he or she is 

disabled by it” based upon whether the “objective medical evidence” is indicative of the 

type of “pain and other subjective symptoms” the claimant alleges.) In making a 

determination regarding a claimant’s credibility, the SSA will consider (i) the claimant’s 

daily activities; (ii) the “location, duration, frequency, and intensity of [claimant’s] pain 

or other symptoms”; and (vii) “other factors concerning [claimant’s] functional 

limitations and restrictions due to pain or other symptoms,” among other factors. 20 

C.F.R. § 404.1529(c)(3). The Court must uphold the Commissioner’s decision to 

disregard a claimant’s alleged pain if the Commissioner’s findings are supported by 

substantial evidence. See Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002).

2. Standard of Review

This Court has jurisdiction to review the Commissioner’s decision under 42 

U.S.C. § 405(g). The Court must affirm the ALJ’s decision if it is supported by 

substantial evidence. Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986); see also 42 U.S.C. 

§ 405(g). Substantial evidence is more than a “mere scintilla” of evidence and “means 

such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consol. Edison Co. 

v. NLRB, 305 U.S. 197, 229 (1938)). Thus, when the ALJ “is faced with conflicting 

evidence he must adequately explain in the record his reasons for rejecting or discrediting 

competent evidence.” Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing 

Brewster v. Heckler, 786 F.2d 581 (3d Cir.1986)). The reviewing court must consider the 

totality of the evidence to determine whether there is substantial evidence to support the 

Commissioner’s decision. See generally Taybron v. Harris, 667 F.2d 412, 413 (3d Cir. 

1981). Furthermore, the reviewing court is not “empowered to weigh the evidence or 

substitute its conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 

1178, 1182 (3d Cir. 1992). Rather, the court must give deference to the administrative 

decision. See Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978) (review is limited to 

determining whether decision as a whole is arbitrary, capricious, or contrary to law).

In determining whether there is substantial evidence to support the 

Commissioner’s decision, the reviewing court must consider the: “(1) objective medical 

facts; (2) diagnoses and medical opinions of examining physicians; (3) subjective 

evidence of pain and disability as described by plaintiff and corroborated by others who 

have observed him; and (4) plaintiff’s age, educational background and work history.” 

Curtain v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981). When a medical opinion is 

consistent with other substantial evidence, it is given controlling weight. 20 C.F.R. §§ 

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416.927(c)(1), (d)(2) (2007). However, if a medical opinion is either inconsistent with 

other evidence in the case or is internally inconsistent, the Commissioner will “weigh all 

of the evidence” to decide whether the claimant is disabled. Id. at § 416.927(c)(2).

III. ANALYSIS

The Court begins by reviewing the ALJ’s application of the five-step process. At 

step one, the ALJ found that the Claimant has not engaged in substantial gainful activity 

since the date of the alleged onset of his disability, May 1, 2007. (R. 18). At step two the 

ALJ concluded that Claimant has a severe impairment in the form of a back disorder of 

the cervical and lumbar spine. (Id.) At step three, the ALJ found that the Claimant did not 

have an “impairment or combination of impairments that met or medically equaled one of 

the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (Id.) She explained 

“no medical source has reported clinical signs and laboratory findings of listing level 

severity. In this regard, Listing 1.04, pertaining to disorders of the spine, [was] not met 

because there [was] no evidence of persistent motor, sensory or reflex loss, of sitting and 

supine straight leg raising or of an inability to ambulate effectively.” (Id.) At step four, 

the ALJ found Claimant had the RFC to perform light work since he could “lift and/or 

carry 10 lbs. frequently and 20 lbs. occasionally; perform unlimited pushing and pulling 

within the weight restriction noted above; frequently balance; sit for a total of 6 hours; 

and stand or walk a total of 6 hours.” (Id.) The ALJ further stipulated that the Claimant 

was able to “maintain adequate concentration and focus to perform simple, unskilled 

work” and could perform jobs that require:

no climbing of ladders, ropes or scaffolds; that require only occasional 

climbing of stairs and ramps; that require only occasional stooping, 

kneeling, crouching and no crawling; that do not involve exposure to 

extreme cold; that require no quick movements of the neck and no 

movement of the neck side to side at greater than a 45 degree angle; and 

that are simple, unskilled and repetitive.

(Id.) The ALJ considered Claimant’s RFC and medical history and determined Claimant 

could not return to his past work. (Id. at 23). Finally, the ALJ determined that based upon 

his RFC and vocational factors, Claimant is capable of performing other work existing in 

significant numbers in the national economy. (Id. at 24). The ALJ relied on the testimony 

of a vocational expert who indicated Claimant was employable as tabber, decal applier, 

assembler, inspector, and microfilm processor. (Id. at 24). These jobs exist in significant 

numbers in both the regional and national economies. (Id.)

The ALJ’s analysis of the five steps was proper. She looked at each step in turn 

and explained the rationale behind the subjective aspects of her determination. 20 C.F.R. 

§ 404.1527(d)(2). Despite the fact that the ALJ properly evaluated the totality of the

medical evidence, see generally Taybron, 667 F.2d at 413, Claimant asserts the ALJ was 

incorrect in her decision not to apply the treating physician rule in considering Claimant’s

disability application.

To begin, Claimant asserts it is not the role of the ALJ to interpret medical 

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evidence. The Claimant refers to Morales v. Apfel, stating: “The ALJ cannot reject the 

medical findings from a treating specialist ‘due to his or her own credibility judgments, 

speculation or lay opinion.” Brief for Plaintiff at 19, Serbouti v. Astrue, No. 11-4217 (3d

Cir. Dec. 13, 2011), ECF No. 8 (citing Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 

2000)). This is a mischaracterization of both Morales and the standard established in 20 

C.F.R. § 404.1527(d)(2). The context from which the Morales quotation is drawn is as 

follows: “In choosing to reject the treating physician's assessment, an ALJ may not make 

‘speculative inferences from medical reports’ and may reject ‘a treating physician's 

opinion outright only on the basis of contradictory medical evidence’ and not due to his 

or her own credibility judgments, speculation or lay opinion.” Morales, 225 F.3d at 317-

18 (citing Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)). Both Morales and 20 

C.F.R. § 404.1527(d)(2) allow an ALJ to reject a treating physician’s opinion so long as 

the ALJ bases his decision on contradictory medical evidence in the record and not 

“speculative inferences” or “his or her own credibility judgments, speculation or lay 

opinion.” Id. The ALJ in this case did not err in interpreting the medical evidence in the 

record (see infra p. 10-11). 

Next, the ALJ was correct to disregard the treating physician rule. Claimant’s 

treating physician, Dr. Arginteanu, provided only conclusory statements regarding the 

Claimant’s condition and his determination of disability contradicts the medical evidence 

in the record. In a letter dated January 2, 2009, nearly a year after Claimant’s April 2008 

cervical fusion, (R. 20), Dr. Arginteanu concluded: “Due to [Claimant’s] continued 

agonizing miserable pain despite significant surgery with decompression, fusion, and 

instrumentation of the cervical spin, I do believe at this time the patient is totally and 

completely disabled and unable to work.” (Id. at 315). The record does not corroborate 

this statement. For example, Dr. Arginteanu noted that Claimant’s September 2008 postsurgery MRI results were “consistent with status post anterior cervical spinal fusion at the 

C4-C7 levels; congenital ‘block vertebra’ at the C3-C4 levels; bulging annulus and mild 

degenerative changes at C2-C3, with no evidence of spinal stenosis or herniated disc.” 

(Id. at 20). While Dr. Arginteanu noted that Claimant complained of a “fair bit of local 

pain as well as radicular symptomatology,” (Id. at 313), there is no empirical evidence 

supporting this allegation. Furthermore, the presence a “fair bit” of pain does not support 

Dr. Arginteanu’s assertion that Claimant is “totally and completely disabled.” Finally, on 

June 30, 2008, Dr. Arginteanu noted that Claimant’s physical examination “did not reveal 

any significant abnormalities.” (Id. at 20). Apart from “diminished sensory function on 

the left side and brisk reflexes,” he noted “no gross focal motor deficits.” (Id.)

On the other hand, the ALJ reported that while Claimant’s post-surgery MRI 

showed evidence of spondylosis of the cervical spine and a slight disk herniation, (Id. at 

19), “physical examinations have been limited to a slightly broad based gait, mild 

tenderness and limitation of motion in the lumbar spine, mildly decreased motor strength

in the proximal upper and lower extremities, moderately diminished motor strength in the 

hands, and markedly brisk reflexes.” (Id. at 20). The ALJ also looked at other studies the 

Claimant underwent. For example, Claimant’s June 2007 EMG and nerve conduction 

studies were normal, (Id. at 19), and a “monopolar needle examination of selected muscle 

of the left arm” was normal despite “possible” evidence of “multi-level left cervical 

radiculopathy without electrodiagnostic evidence of limb involvement.” (Id. at 20). The 

Claimant’s July 2008 carotid artery studies and August 2008 EMG and nerve conduction 

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studies were also normal “with no evidence of peripheral polyneuropathy or left 

lumbosacral radiculopathy. Lower venous studies performed in July 2008 showed no

evidence of deep vein thrombosis, bilaterally.” (Id.)

The ALJ also cited reports by several of Claimant’s evaluating physicians. Dr. 

Mills examined Claimant on March 12, 2008 at the request of the SSA. The examination

revealed that despite some limitations in Claimant’s range of motion and slight clonus in 

the ankles, Claimant was nonetheless able “to squat, walk on heels, and walk on toes.” 

(Id. at 20). Additionally, Claimant displayed “no sensory loss” and his “motor strength 

was 5/5 throughout. He was able to fully extend his hands. He could make fist. He could 

oppose all digits and his grip and pinch strength was 5/5.” (Id.) Finally, Dr. Mills noted

that the Claimant was able to “transfer papers appropriately and . . . walk at a reasonable 

pace.” 

The ALJ also cited Dr. Kane’s June 15, 2009 examination of Claimant. The ALJ 

noted Dr. Kane’s examination revealed “only . . . minimal clinical evidence of mild loss 

of forward flexion.” (Id. at 21). He cited the following physical findings:

hyperextension was appreciable to 30 degrees, bilateral rotation of the 

neck was only mildly decreased, and there was some tightness in the 

trapezius muscles, bilaterally. There was full range of motion with testing 

of the upper extremities. On strength testing, thumb opposition and grip 

strength was 4+/5; however, biceps, triceps, shoulder internal and external 

rotation, as well as wrist dorsiflexion and volar flexion were all 5/5, 

bilaterally. Upper extremity reflexes were 2+. On sensory testing, he was 

“fairly” sharp to pinprick throughout the upper extremities. Upon 

examination of the lumbar spine he was unable to toe walk but he had no 

major pain on direct palpation within the back. Forward flexibility and 

hyperextension were good; lateral bending was normal; straight leg raising 

was negative and hip mobility was normal and pain free. Range of motion 

of the knee and ankle was normal. On sensory testing, everything from the 

toes up to the thighs was “sharp” to pinprick. Motor testing of the lower 

extremities showed less toe dorsiflexion strength on the left side by 4/5; 

however, plantar flexion strength, right toe dorsiflexion, and quadriceps 

and hamstring strength was 5/5, bilaterally. Lower extremity reflex testing 

showed knee jerks were 2+; ankle jerk on the right was 3 and about 5 

clonus on left.

(Id. at 21). At Claimant’s final visit to Dr. Kane, the physician noted “mild loss of 

mobility of the neck in all directions; ‘some’ trapezius tightness, bilaterally; and mild 

decrease of thumb opposition and grip strength to the hands.” (Id.) Despite some 

weakness, Dr. Kane reported “normal” findings and stated the latest MRI showed good 

results with only a minor lumbar bulge. The doctor did not see “any anatomic explanation 

for the [C]laimant’s lumbar radicular complaints.” (Id.)

As for Claimant’s allegations of lumbar back pain, Dr. Arginteanu has stated that 

Claimant does not need surgery at this time, (R. 315), while Dr. Kane noted in July of 

2009 that Claimant’s MRI showed only a “minor” disc bulge in the lumbar spine and 

stated that “he did not see any anatomic explanation for the [C]laimant’s lumbar radicular 

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complaints.” (Id. at 21). The ALJ correctly minimized the relevance of Claimant’s 

lumbar pain in fashioning his opinion. (Id. at 22).

Based on the evidence in the record, the ALJ was correct to disregard Dr. 

Arginteanu’s unsubstantiated conclusion that Claimant is disabled. 20 C.F.R. § 

404.1527(d)(2); Johnson, 529 F.3d at 202. The ALJ discussed her decision not to rely 

upon Dr. Arginteanu’s analysis in her report. 20 C.F.R. § 404.1527(d)(2); Ogden, 677 F. 

Supp. at 278. She explained: 

Dr. Arginteanu simply recounts the [C]laimant’s claims of pain and 

concludes that the [C]laimant is totally disabled because of it. However, 

the records that the doctor has submitted show only complaints of pain 

after the procedure he performed and fail to chronicle any other 

complaints of extreme pain . . . I find that that [sic] Dr. Arginteanu’s 

assessment of disability is unsupported by his own objective findings or 

record as a whole. Therefore, no significant weight was given to the 

assessment of Dr. Arginteanu (Exhibit 13F, 16F). Under the Regulations I 

am not bound to accept a treating source’s conclusion as to disability—

particularly if this conclusion is not supported by clinical and laboratory 

evidence (20 CFP 404.1527(d), 416.927(d) and SSR 96-2p).

(Id. at 23). The ALJ clearly explained her decision to disregard Dr. Arginteanu’s opinion 

and correctly cited the law in support of her decision. 20 C.F.R. § 404.1527(d)(2); Ogden, 

677 F. Supp. at 278.

Since Dr. Arginteanu’s opinion was not consistent with the evidence in the record, 

the ALJ was entitled to “weigh all of the evidence” in determining whether or not 

Claimant was disabled. 20 C.F.R. §§ 416.927(c)(2). The record provides more than a 

“mere scintilla” of evidence in support of the ALJ’s analysis of the five steps and her 

conclusion is such that a “reasonable mind might accept [it] as adequate.” Richardson, 

402 U.S. at 401. In making her decision, the ALJ looked at “(1) objective medical facts; 

(2) diagnoses and medical opinions of examining physicians; (3) subjective evidence of 

pain and disability as described by plaintiff and corroborated by others who have 

observed him; and (4) plaintiff’s age, educational background and work history.” Curtain, 

508 F. Supp. at 793. The Court should honor the ALJ’s evaluation of Claimant’s 

condition over the conclusory statements of Claimant’s treating physician, as the ALJ’s 

conclusion is based on the substantial medical evidence in the record, Doak, 790 F.2d at

28, and is such that a “reasonable mind might accept [it] as adequate.” Richardson, 402 

U.S. at 401.

Finally, Claimant challenges the ALJ’s reliance on the RFC, determined by a 

consulting physician, over his treating physician’s opinion. While the opinions of treating 

physicians are generally afforded more weight than those of non-examining physicians,

the ALJ did not rely solely on the consulting physician’s RFC analysis in her decision. 

Instead she considered the consulting physician’s RFC along with the opinions of 

Claimant’s examining physicians and the evidence in the medical record to determine the 

RFC was appropriate. In light of the evidence in the record and the fact that the treating 

physician’s conclusions were not substantiated, the ALJ was correct to consider

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Claimant’s RFC in determining his disability status. 20 C.F.R. § 404.1527(d)(2); Johnson, 

529 F.3d at 202. 

In spite of the normal test results detailed above, Claimant continues to allege

pain. (R. 19). The ALJ concluded the Claimant’s self-reported limitations regarding the 

“intensity, persistence, and limiting effects of [his] symptoms,” 20 C.F.R. § 

404.1529(c)(4), were inconsistent with the evidence in the record. (R. 23). The Claimant 

asserts he is “always in pain,” it takes him “forever to shower and dress,” he can only 

walk one block before he has “problems,” he can only stand or sit for one hour before he 

tires, lifting even one pound causes him “problems,” he drops objects he attempts to lift,

and his wife prepares his meals and does all the housework. (Id. 19). These claims are 

belied by the Claimant’s assertions elsewhere. For example, on August 22, 2007 and 

February 2, 2008, Claimant filled out SSA Function Reports indicating he prepares light 

meals and that he helps with the laundry. (Id. at 23).

The Claimant cites Frankenfield v. Bowen as evidence that his ability to partake 

in daily activities, such as preparing light meals and helping with the laundry, is not 

relevant to determining whether or not he is disabled. Frankenfield v. Bowen, 861 F.2d 

405, 408 (3d Cir. 1988). This case does not provide an appropriate comparison, however, 

since the ALJ in Frankenfield disregarded medical opinions that were corroborated by the 

evidence in the record in making his determination of disability. In the instant case, 

however, the ALJ did not disregard corroborated medical opinions in making her 

determination. Furthermore, the ALJ in the instant case discussed Claimant’s daily tasks 

not to definitively determine Claimant’s disability but because they speak to the issue of 

credibility in that Claimant’s pain is not as incapacitating as he has at times alleged.

Claimant’s credibility as to the “intensity, persistence, and limiting effects of” his 

pain is further undermined because his physical examinations do not reveal any 

significant problems ambulating, (R. 23), despite the extreme limitations he claims.

2

 2 On the contrary, Dr. Mills’ examination revealed only a “slight decrease of 

lumbar spine flexion by 15 degrees, bilaterally and positive supine straight leg raising; 

[which] was 70 degrees, bilaterally but in the seated position, it was 90 degrees.” (R. 23) 

Dr. Mills noted Claimant could “squat, walk on heels and walk on toes,” displayed “no 

sensory loss,” had “increased” reflexes with a “few beats of clonus at the ankles, 

bilaterally” and “motor strength” at “5/5 throughout.” (Id. at 20, 23). Furthermore, May 

22 and June 4, 2007 examinations by Dr. Feldman show the Claimant’s lower extremities 

were “normal to inspection and palpation,” did not demonstrate “instability,” had a “full 

[range of motion],” and had “intact motor strength” and “normal muscle tone.” (Id. at 235, 

244, 336, 345). Similarly Claimant’s medical records from a September 6, 2007 visit to 

Active Orthopedics & Sports Medicine, P.A. revealed a “smooth, narrow-based, 

reciprocal, nonantalgic” gait. (Id. at 292). On March 31, 2008 Dr. Arginteanu noted that 

Claimant was “able to ambulate around the examining room.” (Id. at 368). The only 

evidence in the record supporting Claimant’s allegation of problems ambulating is a 

Multiple Impairment Questionnaire dated April 5, 2010 in which Dr. Arginteanu alleged 

Claimant can only “stand/walk” for 0-1 hours out of an eight-hour day. (Id. at 406). This 

claim is contradicted by Dr. Arginteanu’s comment earlier on the same questionnaire that 

the patient had a “good” prognosis. (Id. at 404).

Finally, Claimant’s allegations that he cannot lift weight and that he frequently drops 

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items he picks up are refuted by numerous physical evaluations that have shown full or 

nearly full grip strength. (Id. at 20-22).

Based on the evidence in the record, the ALJ addressed Claimant’s allegations of 

pain with the following: “although assertions of pain and symptoms are reasonable to a 

degree, the overall record does not support them to the debilitating extent asserted.” (Id.

at 22). She concluded, “I find the [C]laimant’s complaints of severe pain are not entitled 

to significant weight, as they are in sharp contrast with the documentary evidence.” (Id. at 

23). This conclusion is consistent with 20 C.F.R. § 404.1529(c)(4) and the Hartranft

standard which establishes that an ALJ may compare a claimant’s allegations of pain to 

the objective medical evidence in the record. 20 C.F.R. § 404.1529(c)(4); Hartranft, 181 

F.3d at 362. Furthermore, the ALJ provided an explanation for her determination that the 

Claimant’s allegations of pain were not credible, as required by Ogden. Ogden, 677 F. 

Supp. at 278. 

The ALJ properly evaluated the evidence in the record regarding the “intensity, 

persistence, and limiting effects of [Claimant’s] symptoms.” 20 C.F.R. § 404.1529(c)(4).

She considered Claimant’s daily activities, Claimant’s subjective allegations of pain or 

other symptoms,” and “other factors concerning [Claimant’s] functional limitations and 

restrictions due to pain or other symptoms” in making her determination. 20 C.F.R. § 

404.1529(c)(3). She concluded Claimant’s allegations regarding the debilitating extent of 

his pain are not entirely reasonable. The ALJ’s decision to look to the record for objective 

evidence of pain was therefore correct. Hartranft, 181 F.3d at 362. Pursuant to Burns, this 

Court must uphold the ALJ’s decision regarding Claimant’s alleged pain as it is 

supported by substantial evidence. Burns, 312 F.3d at 129.

Finally, Claimant alleges the ALJ acted in defiance of 20 C.F.R. § 404.1529(c)(4)

by performing her credibility analysis on the RFC and not the record as a whole. While 

one could read the ALJ’s finding as though it decided the Claimant’s credibility based 

upon the RFC, the ALJ’s larger analysis makes it clear that she relied on the evidence 

throughout the record in making her determination. For example, in analyzing Claimant’s 

credibility she cited Claimant’s self-reported limitations and allegations of pain along

with his own testimony elsewhere and the various medical opinions in the record, in 

accordance with 20 C.F.R. § 404.1529(c)(4).

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IV. CONCLUSION

For the reasons set forth above, the ALJ’s determination that Claimant was not 

disabled within the meaning of the SSA is supported by substantial evidence and the 

decision of the ALJ is affirmed. An appropriate Order accompanies this Opinion.

DATED: August 6, 2012

s/ Jose L. Linares 

JOSE L. LINARES

U.S. DISTRICT JUDGE

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