United States District Court, D. New Jersey
Kevin McNulty United States District Judge.
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
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.
reasons stated below, the decision of the ALJ is
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).
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).
in the fall of 2016, Buccellato began working as a paid,
part-time, grade-school lacrosse coach. (R. 102-105).
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).
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).
The SSI Application and Hearing
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
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).
hearing, the ALJ posed to Anderson three hypothetical,
essentially variations on Dr. Parangi's diagnosis of
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]
[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
2. The Second Hypothetical
[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
[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
[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
[ALJ:] Is there other work for such an individual with these
[Anderson:] No, your honor.
[ALJ:] All right. Is your opinion consistent with the
[Dictionary of Occupational Titles ("DOT")]?
[Anderson:] It is, your honor.