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Siravo v. Commissioner of Social Security

United States District Court, D. New Jersey

April 4, 2017

ANTHONY A. SIRAVO, JR., Plaintiff,

          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



         This 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”).


         A 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)).

         “Disability” Defined

         The 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).

         The 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 disability benefits.
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 step.
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).


         The Court recites only the facts that are necessary to its determination on appeal.

         A. Medical History

         On June 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.

         On 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.

         Plaintiff 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.

         On 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. 373.

         Dr. 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.

         On or 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.

         On 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.

         On 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 loose ...

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