United States District Court, D. New Jersey
ANTHONY A. SIRAVO, JR., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Anthony A. Siravo, Jr. Pro Se
Plaintiff Antonia Maria Pfeffer, Esq. Social Security
Administration Office of the General Counsel Attorney for
Defendant Commissioner of Social Security
RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon the appeal by pro
se Plaintiff Anthony A. Siravo, Jr. (the
“Plaintiff”) of the final determination of the
Commissioner of Social Security (the
“Commissioner”) denying Plaintiff's
application for social security benefits for the period
January 10, 2012 through October 22, 2012 [Docket No. 1]. For
the reasons set forth below, the Court AFFIRMS the decision
of the Administrative Law Judge (the “ALJ”).
STANDARD OF REVIEW
reviewing court must uphold the Commissioner's factual
findings if they are supported by “substantial
evidence, ” even if the court “would have decided
the inquiry differently.” Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000); see also
42 U.S.C. §§ 405(g), 1383(c)(3).
“‘Substantial evidence' has been defined as
‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Dellapolla v.
Comm'r of Soc. Sec., 662 F.App'x 158, 160 (3d
Cir. 2016) (quoting Smith v. Califano, 637 F.2d 968,
970 (3d Cir. 1981) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971))). Where the evidence is susceptible
to “more than one rational interpretation, the
Commissioner's conclusion must be upheld.”
Ahearn v. Comm'r of Soc. Sec., 165 F.App'x
212, 215 (3d Cir. 2006) (citing Monsour Med. Ctr. v.
Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986)); see
also New Jersey Bd. of Pub. Utilities v. F.E.R.C., 744
F.3d 74, 94 (3d Cir. 2014). In addition to the
“substantial evidence” inquiry, the reviewing
court must also determine whether the ALJ applied the correct
legal standards. See Mitton v. Comm'r of Soc.
Sec., --- F.App'x ----, 2016 WL 6933937, at *1 (3d
Cir. Nov. 28, 2016); Sykes v. Apfel, 228 F.3d 259,
262 (3d Cir. 2000). The Court's review of legal issues is
plenary. Mitton, 2016 WL 6933937, at *1 (citing
Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 292
(3d Cir. 2012)); Sykes, 228 F.3d at 262 (citing
Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429,
431 (3d Cir. 1999)).
Social Security Act defines “disability” as the
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). The Act further states that:
[A]n individual shall be determined to be under a disability
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, regardless
of whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
Commissioner has promulgated a five-step, sequential analysis
for evaluating a claimant's disability, as outlined in 20
C.F.R. § 404.1520(a)(4)(i)-(v). The Third Circuit has
described the Commissioner's inquiry at each step of this
analysis, as follows:
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful
activity. 20 C.F.R. § 404.1520(a). If a claimant is
found to be engaged in substantial activity, the disability
claim will be denied. Bowen v. Yuckert, 482 U.S.
137, 140 (1987).
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment. 20 C.F.R.
§ 404.1520(c). If the claimant fails to show that his
impairments are “severe, ” he is ineligible for
In step three, the Commissioner compares the medical evidence
of the claimant's impairment to a list of impairments
presumed severe enough to preclude any gainful work. 20
C.F.R. § 404.1520(d). If a claimant does not suffer from
a listed impairment or its equivalent, the analysis proceeds
to steps four and five.
Step four requires the ALJ to consider whether the claimant
retains the residual functional capacity to perform his past
relevant work. 20 C.F.R. § 404.1520(d). The claimant
bears the burden of demonstrating an inability to return to
his past relevant work. Adorno v. Shalala, 40 F.3d
43, 46 (3d Cir. 1994). If the claimant is unable to resume
his former occupation, the evaluation moves to the final
At this [fifth] stage, the burden of production shifts to the
Commissioner, who must demonstrate the claimant is capable of
performing other available work in order to deny a claim of
disability. 20 C.F.R. § 404.1520(f). The ALJ must show
there are other jobs existing in significant numbers in the
national economy which the claimant can perform, consistent
with his medical impairments, age, education, past work
experience, and residual functional capacity. The ALJ must
analyze the cumulative effect of all the claimant's
impairments in determining whether he is capable of
performing work and is not disabled. See 20 C.F.R.
§ 404.1523. The ALJ will often seek the assistance of a
vocational expert at this fifth step. See Podedworny v.
Harris, 745 F.2d 210, 218 (3d Cir. 1984).
Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999).
FACTUAL AND PROCEDURAL BACKGROUND
Court recites only the facts that are necessary to its
determination on appeal.
15, 2010, Plaintiff underwent an MRI of his right shoulder.
Dr. Allan Cummings, a board certified radiologist, observed
“a nearly complete tear of the distal supraspinatus
just proximal to its insertion onto the greater tuberosity, a
significant worsening in its appearance when compared to the
previous study of 4/07. The remainder of the rotator cuff
appears intact.” R. 372.
March 25, 2011, Plaintiff was examined by Dr. Matthew Pepe.
Dr. Pepe noted that “Examination of his shoulder
demonstrates full motion. Tenderness over the biceps and
tuberosity. Positive impingement signs. Negative biceps
maneuvers. Negative SLAP maneuvers. Skin is intact. Motor and
sensory examination is intact.” Dr. Pepe reviewed an
MRI of Plaintiff's shoulder, which “demonstrate[d]
a full-thickness 1 cm anterior supraspinatus tear, no
retraction, no atrophy, type II acromion, and AC
arthropathy.” Dr. Pepe diagnosed Plaintiff with a right
shoulder chronic full-thickness rotator cuff tear and
administered a platelet rich plasma injection. He noted that
Plaintiff “tolerated the injection well” and
“will rest for one week and begin a gentle stretching
and strengthening program.” R. 358.
underwent an MRI of his right shoulder on July 13, 2011. Dr.
Cummings observed “a small, partial tear of the distal
supraspinatus, ” which “represents a substantial
improvement when compared to the previous exam, where the
distal supraspinatus was nearly completely torn.” Dr.
Cummings also noted “a probable small loose body in the
posterosuperior aspect of the glenohumeral space, which was
not seen on the prior study.” R. 360.
August 19, 2011, Daniel J. Colache, Plaintiff's
chiropractor, completed an Examination Report. He noted that
Plaintiff was diagnosed with a rotator cuff tear with
shoulder instability on right, with an onset date of 2008. R.
David Lunt also completed an Examination Report on December
19, 2011. He noted that Plaintiff's primary diagnosis is
right shoulder torn rotator cuff. He also wrote:
“disabled”. R. 374-75.
around March 1, 2012, Mr. Colache, in response to a request
for medical records regarding Plaintiff, wrote to the Social
Security claims adjudicator: “I have not treated in
over a year sorry cannot fill out paperwork.” R. 376.
April 4, 2012, Dr. Mark Jacknin, a State agency medical
consultant, reviewed Plaintiff's medical records and
noted that Plaintiff's June 15, 2010 MRI showed a nearly
complete tear of the distal supraspinatus. The July 2011 MRI,
however, demonstrated “substantial improvement of the
appearance of the supraspinatus since prior study, w a small
partial tear seen distally in ant. supraspinatus @ current
time as opposed to the nearly complete tear of the distal
supraspinatus noted prev.” Dr. Jacknin also observed
“a probable small loose body in the posteriosuperior
aspect of glenohum space, which wasn't seen on prior
study.” R. 127.
April 17, 2012, Plaintiff underwent an MRI of his right
shoulder. Dr. Cummings observed “once again . . . a
small tear involving the distal supraspinatus, stable since
the previous exam.” Dr. Cummings reported that
“there is little overall change since the prior study
of 7/11 with a small tear of the distal supraspinatus noted
and unchanged between studies.” He did not see the