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Buccellato v. Commissioner of Social Security

United States District Court, D. New Jersey

November 14, 2019

ANDREW BUCCELLATO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION

          Hon. Kevin McNulty United States District Judge.

         Plaintiff Andrew Buccellato brings this action pursuant to 42 U.S.C. § 1383(c)(3) to review a final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381. Buccellato seeks to reverse the finding of the Administrative Law Judge ("ALJ") that he has not met the Social Security Act's definition of disabled since February 8, 2014, the alleged injury-onset date.

         The question is whether the ALJ's decision is supported by substantial evidence. Specifically, Buccellato contends that the evidence does not support the ALJ's (1) finding as to his residual functional capacity ("RFC"); and (2) decision that the Commissioner met the burden of proof at Step Five of the Sequential Evaluation Process in determining that there were a significant number of jobs existing in the national economy that Buccellato was able to perform.

         For the reasons stated below, the decision of the ALJ is AFFIRMED.

         I. BACKGROUND[1]

         A. Facts

         The claimant, Mr. Buccellato, injured his back while playing college lacrosse in 2011 or 2012. (R. 364). He graduated later that year and worked full-time until 2014. (R. 364-65). At some point thereafter, Buccellato's back injury was diagnosed as spondylolisthesis. (R. 13). On April 16, 2014, Buccellato underwent spinal fusion back surgery to address the spondylolisthesis. (R. 364). After the surgery, the surgeon advised him to avoid heavy lifting but did not otherwise restrict his activities. (R. 297 85 324).

         In February 2015, Buccellato underwent a second surgery to correct the "botched" first procedure. (R. 111). Six months after the second surgery, Buccellato tore a tendon in his ankle while shooting basketballs with his friends. (R. 116). His podiatrist, Dr. Ralph Napoli, gave him a brace to wear as his ankle healed, for "sports and physical activity." (R. 602). The injury eventually healed and is no longer problematic. (R. 118).

         Beginning in the fall of 2016, Buccellato began working as a paid, part-time, grade-school lacrosse coach. (R. 102-105).

         Throughout this time, Buccellato's spinal health was monitored by Dr. Robert Parangi, who also completed two disability reports on Buccellato. On September 18, 2014-about seven months after the first surgery-Dr. Parangi opined that Buccellato could not sit, stand, or walk sufficiently to work an eight-hour day and that he had limitations reaching, handling, fingering, and feeling (R. 376-77).

         On March 22, 2017, Dr. Parangi opined that Buccellato could not sit, stand, or walk sufficiently to work an eight-hour day; would be less than 80% efficient while working; and would likely miss two to three days per month due to his physical impairments and periodic medical treatment. (R. 625-627).

         B. The SSI Application and Hearing

         On August 24, 2014, Buccellato applied for SSI under Title XVI of the Social Security Act, asserting that his disability-lumbar spine fractures and severe muscle spasms-began on February 8, 2014. (R. 79). His application was initially denied on

         October 29, 2014, and again upon reconsideration on March 11, 2015. Id., On May 16, 2017, Buccellato, accompanied by a non-attorney representative, appeared before ALJ Ricardy Damille. Id.; see also (R. 96). The ALJ heard testimony from Buccellato and Mary Anderson, a vocational expert ("VE"). (R. 94).

         At the hearing, the ALJ posed to Anderson three hypothetical, essentially variations on Dr. Parangi's diagnosis of Buccellato:

1. The First Hypothetical
[ALJ:] Assume a person [of the] same age, education, [and] work experience as the claimant. Let us assume that this individual is restricted to light work; the individual can occasionally climb ramps, stairs, ladders, ropes, and scaffolds; the individual can occasionally balance, stoop, kneel, crouch, and crawl. Can an individual with these restrictions perform the claimant's past work, as [has] been described?
[Anderson:] The individual he would not be able to do the warehouse work, and the forklift operator jobs. . . . The individual would be able to do the work of the quality control . . . inspector. . . . The individual would be able to do the assistant manager job as well.
2. The Second Hypothetical[2]
[ALJ:] . . . Let's say, if the individual [were] restricted to sedentary work; the individual can occasionally climb ramps and stairs; [could] never climb ladders, ropes, and scaffolds; the individual [could] occasionally balance, stoop, kneel, crouch, and crawl; the individual must be afforded the option to alternate from sitting to standing, so long as the individual is not off-task for more than 10 percent of the work day. And let's also add that the individual is restricted to understanding, remembering, and carrying out simple instructions. Ill. conclude that this individual cannot perform the claimant's past work as we described?
[Anderson:] He cannot, your honor.
[ALJ:] Is there other work for such an individual?
[Anderson:] Yes, your honor. The individual . . . would be able to do the work of address clerk; . . . document specialist; . . . [and] election clerk ....
3. The Third Hypothetical[3]
[ALJ:] . . . [N]ow let's say if the individual can sit for no more than two hours in an eight[-]hour day, can stand for no more than two hours in an eight[-]hour day. How would that affect your answer?
[Anderson:] The individual would not be able to do these jobs.
[ALJ:] Is there other work for such an individual with these restrictions?
[Anderson:] No, your honor.
[ALJ:] All right. Is your opinion consistent with the [Dictionary of Occupational Titles ("DOT")]?
[Anderson:] It is, your honor.

(R. 121-23).

         C. The ...


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