ROGRIGUEZ-PAGAN v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION. Signed by Judge Renee Marie Bumb on 09/16/2011. (tf, )
NOT FOR PUBLICATION
[Dkt. Ent. 11]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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ALICIA RODRIGUEZ-PAGAN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Civil No. 10-4273
OPINION
Appearances:
Robert A. Petruzzelli, Esq.
Jacobs, Schwalbe & Petruzzelli, P.C.
Woodcrest Pavilion
10 Melrose Avenue, Suite 340
Cherry Hill, NJ 08003
Attorney for Plaintiff
Amanda J. Lockshin, Esq.
Special Assistant U.S. Attorney
United State’s Attorney’s Office
c/o Social Security Administration
26 Federal Plaza, Room 3904
New York, NY 10278
Attorney for Defendant
Bumb, United States District Court Judge.
Plaintiff Alicia Rodriguez-Pagan (“Plaintiff”) seeks review
1
pursuant to 42 U.S.C. § 405(g) of the Commissioner of Social
Security’s (the “Commissioner’s”) final decision denying her claim
for disability insurance benefits (“DIB”).
Plaintiff filed a motion
for summary judgment, and the Commissioner opposed that motion.
For
the following reasons, the Court denies Plaintiff’s motion and
remands the case to the administrative law judge (“ALJ”) for further
proceedings.
I. BACKGROUND
A.
Procedural History
Plaintiff filed an application for DIB on April 17, 2006,
alleging disability beginning January 21, 2006, due to a back injury,
herniated spine problem, and dizziness.
(“R.”) 140-44, 155-63.)
(Administrative Record
The claim was initially denied and again
denied on reconsideration.
(R. 69-73, 76-78.)
Plaintiff requested a hearing.
(R. 79.)
On January 7, 2008,
As part of her appeal, she
submitted a disability report on October 30, 2008, which listed new
disabilities, including problems associated with her hands, her
right knee, and right shoulder.
(R. 219-26.)
She stated that she
had had surgery on both hands for carpal tunnel syndrome and that
she had also had surgery on her shoulder and planned to have surgery
on her knee.
(R. 219.)
Despite the surgeries, she reported still
having pain and “lack of feeling” in her hands and shoulder, which
2
caused her to need help washing her hair and getting dressed.
(R.
223.)
The administrative hearing was held on August 19, 2009, before
ALJ Daniel N. Shellhamer.
(R. 40-63.)
Plaintiff, who was
represented by counsel, appeared and testified at the hearing, as
well as Mitchell A. Schmidt, an impartial vocational expert.
(R.
22.)
The ALJ issued a decision denying Plaintiff’s claim on September
30, 2009.
(R. 16-35.)
The ALJ first determined that Plaintiff’s
earnings record shows that she had acquired sufficient quarters of
coverage to remain insured through March 31, 2011, well after the
disability onset date, so she met the insured status requirements
of the Social Security Act.
(R. 24.)
At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since her disability onset date of
January 21, 2006.
(R. 24.)
At step two, he determined that she
suffered from a back disorder, which was her only “severe”, or
medically determinable, impairment.
(R. 24.)
At step three, he
found that she did not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. Pt. 404, Subpart P, App. 1.
(R. 27.)
Before considering step four, the ALJ determined that despite her
3
impairments, Plaintiff had the residual functional capacity (“RFC”)
to perform light work as defined in 20 C.F.R. 404.1567(b), with some
non-exertional limitations.
(R. 27.)
At step four, the ALJ found
that in light of Plaintiff’s RFC, she was unable to perform any of
her past relevant work as a secretary, packer, teacher’s aide,
housekeeper, or home health aide.
(R. 33.)
At step five, the ALJ
concluded that Plaintiff could perform jobs that exist in significant
numbers in the national economy, including sedentary unskilled
positions like nut sorter or assembler.
(R. 34.)
He based his
opinion upon Plaintiff’s RFC, age, education, work experience, and
in conjunction with the Medical-Vocational Guidelines, 20 C.F.R. §
404, Subpt. P, App. 2, and the vocational expert’s testimony.
34-35.)
(R.
Thus, the ALJ concluded that Plaintiff was not under a
disability as defined in the Social Security Act.
(R. 35.)
Plaintiff sought review of the ALJ’s decision on October 21,
2009.
(R. 13.)
July 13, 2010.
The Appeals Council denied Plaintiff’s request on
(R. 1-7.)
Accordingly, the ALJ’s decision became
the final decision of the Commissioner for purposes of judicial
review.
See 20 C.F.R. § 404.981.
On August 20, 2010, Plaintiff
filed the above-captioned action in this Court.
[Dkt. Ent. 1.]
Plaintiff filed a brief pursuant to Local Rule 9.1 on February 11,
2011, in which she moved for summary judgment.
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[Dkt. Ent. 11.]
The
Commissioner filed a brief in opposition on March 14, 2011 [Dkt. Ent.
12], and Plaintiff never filed a reply.
B.
Evidence in the Record
1. The Hearing
At the time of the administrative hearing on August 19, 2009,
Plaintiff was 41 years old, five feet, six inches tall, and weighed
310 pounds.
(R. 44.)
She testified that she attended three years
of college and received an x-ray technician degree in Puerto Rico.
(R. 46.)
She also stated that she went to medical secretarial school
for three and a half years and that she understood some English but
could not write any.
(R. 46-47.)
She testified that she has been
living in the United States since 1995, and lives with her husband
and children, ages two and four.
(R. 45.)
Plaintiff testified that
she previously worked at Loving Care, where she gave direct patient
care to people in their homes, at Bishop McCarthy Nursing Home, where
she performed housekeeping, and at Cherry Hot, where she stuffed hot
peppers while standing or sitting at an assembly line.
(R. 47-49.)
She also testified that she worked as a teachers’ aide and as a
municipal clerk in Puerto Rico.
(R. 47-48.)
Plaintiff testified that she had surgery on her hands for carpal
tunnel syndrome, but that she still has numbness and charley horses.
(R. 49.)
She testified that as a result, she has difficulty driving
5
and will only drive to the church or post office, and when she has
to drive a distance, she will have someone drive her.
(R. 45.)
She
also reported difficulty picking up items like milk or a pot because
she does not feel the objects due to numbness.
(R. 50.)
She said
that due to the discomfort in her wrists, she does not think she could
pack or stuff peppers because her fingers remain stiff.
(Id.)
also stated that she has been diagnosed with arthritis.
She
(Id.)
Plaintiff testified that she recently had surgery on her right
shoulder, but it is now worse than before, and she has been told it
is due to arthritis.
(R. 50-51.)
She stated that it is now
difficult for her to lift things and perform tasks such as dressing,
putting on underwear, and doing her hair.
(R. 51.)
Plaintiff also testified that she can only walk two blocks and
stand for ten minutes or less.
constantly wears a brace.
(Id.)
(R. 52.)
She stated that she
She also reported that she can only
sit for ten minutes, and then she must get up and move around to
relieve the pain, which radiates to her right leg.
(R. 52-53.)
She
testified that she was sitting at the edge of her seat because it
is more comfortable.
(R. 53.)
Plaintiff also testified that she has neck problems and that
Dr. Soloway diagnosed her with fibromyalgia.
(Id.)
She stated that
she spends her days at home, and her mother is always at her house
6
to help with her children.
(R. 55.)
day, she sits and lies down.
She testified that during the
(Id.)
Plaintiff testified that her problems began while working for
the county in 2003, when a child pulled a chair out from behind her,
and she fell to the floor.
(R. 56.)
She stated that she filed a
worker’s compensation case, which settled.
(R. 56-57.)
Her back
pain caused her to file for Social Security Benefits in April 2006.
Mitchell Schmidt, the vocational expert (“VE”), testified that
Plaintiff’s past work ranged between the categories of “sedentary”
and “medium” and “skilled” and “unskilled.”
(R. 59-60.)
The ALJ asked the VE to consider a hypothetical individual of
similar age, education and past work experience as the claimant, with
limited use of English, who was restricted to sedentary work and only
“occasional fine fingering and handling”, where the work involved
simple routine instructions, repetitive tasks, simple work-related
decisions, some common sense, but only minor or few work changes in
a routine work setting.
(R. 60-61.)
The VE testified that there
would be no jobs that fit that profile, because the jobs at the
sedentary unskilled level that would have only occasional handling
and fingering would require communication.
(R. 61.)
The ALJ noted
that he had to consider Plaintiff’s problem with her hands given the
time at which it arose.
(R. 61.)
7
However, he then told the VE to
reconsider the hypothetical without the limitation of only
occasional handling and fingering.
(Id.)
The VE then responded
that Plaintiff could perform the occupation of nut sorter or final
assembler of eyeglasses.
(Id.)
2. Relevant Medical Records
On April 19, 2006, Plaintiff saw Dr. Stephen Soloway for the
first time in eighteen months, with complaints of pain in her back,
knees, and hands.
(R. 354.)
Examination revealed presacral
trigger point pain and tenderness, but neurovascular status was
intact.
(R. 354.)
Plaintiff was morbidly obese.
(R. 354.) Dr.
Soloway injected Plaintiff’s trigger points with Depo-Medrol,
prescribed Darvocet and Naprosyn, and recommended physical therapy.
(R. 354.)
Lumbar spine x-rays revealed dextroscoliosis and
straightening of lordosis; knee x-rays indicated bilateral mild
osteoarthritis; and elbow x-rays revealed no abnormality. (R. 355.)
On April 26, 2006, Plaintiff complained of left elbow pain.
353.)
(R.
Her examination was otherwise unremarkable; she “appear[ed]
well,” and her back pain had improved.
(R. 353.)
Dr. Soloway
diagnosed lateral epicondylitis, commonly known as tennis elbow.
(R. 353.)
He injected her elbow, and prescribed Darvocet and
physical therapy for her lower back.
(R. 353.)
On June 5, 2006,
Plaintiff complained of neck pain and an injury to her left elbow.
8
(R. 352.)
She had decreased range of motion in her elbow and neck
muscle spasm and tenderness for which she received an injection.
352.)
She again “appear[ed] well”.
(R.
(R. 352.) Magnetic resonance
imaging (MRI) of the cervical spine revealed mild narrowing of the
right neuroforamen at the C3-C5 levels, with a central disc
protrusion at C5-C6.
(R. 350.)
A left elbow MRI revealed minimal
joint effusion but no bone or soft tissue abnormality.
(R. 351.)
On June 19, 2006, Plaintiff complained only of left elbow pain,
for which she received an injection.
(R. 349.)
Dr. Soloway noted
that Plaintiff’s elbow MRI was normal and cervical spine was
“adequate”.
(R. 349.)
Plaintiff’s left elbow pain was “much better” by July 13, 2006.
(R. 348.)
She complained of right elbow pain, but had full range
of motion bilaterally.
(R. 348.)
Dr. Soloway again injected her
elbow, and again recommended physical therapy.
(R. 348.)
On September 21, 2006, Plaintiff reported “pain all over” but
had no fever, constitutional symptoms, Raynaud’s, sicca, muscle
weakness, dysphagia, or shortness of breath, and her elbows were
better following the earlier injections.
(R. 329.)
Dr. Soloway
noted “fibromyalgic pain” and ordered a follow up in one month.
329.)
He prescribed Ambien, Elavil and tramadol, and again
suggested physical therapy.
(R. 329.)
9
(R.
Despite Plaintiff’s complaints, Dr. Soloway completed an
assessment the same day in which he stated that she could walk at
a reasonable pace and had nearly full (4/5) strength bilaterally.
(R. 331.)
She had normal grip strength, could extend her hand, make
a fist and oppose her fingers bilaterally; she also was able to
separate papers and fasten buttons.
(R. 331.)
She had full range
of motion in her shoulders, elbows, wrists, knees, hips, ankles and
cervical spine.
(R. 330-331.) She could squat, walk on heels and
toes, and had no sensory or reflex loss.
(R. 331.)
Cervical spine x-rays on October 3, 2006 revealed “minimal”
degenerative changes, with a “tiny” spur at C5.
shoulder x-ray revealed no abnormality.
(R. 408.)
Right
(R. 409.)
Plaintiff was consultatively examined by orthopedist Dr.
Nithyashuba Khona on October 17, 2006.
(R. 286-88.)
Plaintiff said
her main problem was severe neck and back pain, but was unable to
describe this further.
(R. 286.)
She also alleged a history of
depression and anxiety following a back injury in 2003.
(R. 286.)
Medications included Celebrex, amitriptyline, etodolac, naproxen,
Cymbalta, tramadol, dicyclomine, and propoxyphene napsylate with
acetaminophen (propoxy-N/APAP).
(R. 286-87.)
Plaintiff lived with her husband and one-year-old child.
287.)
(R.
She cooked twice a week, showered and dressed daily, and cared
10
for her child with help from her mother.
(R. 287.)
She listened
to the radio and went to church, but claimed she had no friends.
(R.
287.)
Plaintiff was five feet, six inches tall and 210 pounds.
287.) Her gait was slow, but normal.
(R. 287.)
(R.
She needed no help
changing or getting on and off the examination table, and was able
to rise from a chair without difficulty.
(R. 287.)
She refused to
squat or walk on heels and toes, saying both would cause her pain.
(R. 287.)
Her hand and finger dexterity were intact, and grip
strength was full (5/5) bilaterally.
(R. 287.)
However, she
refused to lie down or move her shoulders, spine, or legs as she said
this would cause her pain.
(R. 287-88.)
Dr. Khona did examine
Plaintiff’s back for tenderness, and noted no sacroiliac joint or
sciatic notch tenderness, no spasm, and no obvious scoliosis or
kyphosis.
(R. 288.)
Dr. Khona assessed that Plaintiff’s reported
pain was out of proportion when he touched her back for palpation.
(R. 288.)
He could not offer a prognosis because of the limited
examination.
(R. 288.)
Plaintiff saw Dr. Timothy Rhyme on October 16, 2006, with
complaints of wrist, neck, and shoulder pain.
(R. 407.) Dr. Rhyme
continued her Ultram (tramadol) prescription and added Celebrex.
(R. 407.)
11
Plaintiff saw Dr. Soloway on October 19, 2006, with complaints
of neck and back pain.
(R. 327.)
Upon examination, she “appear[ed]
well” despite splenius capitis tender points (at the back of her neck)
that were worse with range of motion and for which she received an
injection.
(R. 327.)
(R. 327.)
The examination was otherwise unremarkable.
Dr. Soloway again recommended physical therapy, and
medications including Ambien, Elavil and tramadol, which Plaintiff
appeared not to have started.
(R. 327.)
Cervical spine x-ray
revealed reversal of cervical lordosis, spondylitic changes, and
narrowing at C6-C7.
(R. 328; but see R. 408.)
On November 2, 2006, Plaintiff complained only of low back pain.
(R. 326.)
She had pain with lumbar spine motion and some
paravertebral spasm, but “appear[ed] well”.
(R. 326)
State agency physician Dr. Jose Acuna completed a Physical
Residual Functional Capacity Assessment form on December 12, 2006,
which was later affirmed by Dr. Martin Sheehy.
(R. 207, 289-96.)
Dr. Acuna noted that Plaintiff alleged a history of back injury with
herniated nucleus pulposus (herniated disc), and that medical
evidence of record included a history of a small right paracentral
disc herniation at L4-L5, impinging on the nerve root, as well as
lumbar spine facet osteoarthritis.
459.)
(R. 290; see R. 251, 255, 458,
He also considered that Plaintiff alleged depression,
12
anxiety, low back pain, neck pain, right hip pain, headaches,
dizziness, inability to lift, difficulty in changing positions, and
shoulder tightness.
(R. 290; see R. 156, 243.) He noted that she
exhibited some problems with positional changes at the field office.
(R. 290; see R. 153.)
He considered that she was self-sufficient
in her activities of daily living, although slowed, and that she was
able to drive and perform light chores.
199-204.)
(R. 290; see R. 164-71, 196,
Dr. Acuna further noted that Plaintiff said she could lift
up to fifteen pounds, and walk twenty minutes before tiring.
290; see R. 169.)
(R.
He considered that her low back pain had improved
as of April 2006, although she received an injection for left lateral
epicondylitis and knee x-rays showed mild osteoarthritis.
see R. 353, 355.)
(R. 290,
Dr. Acuna further considered that in July 2006,
Plaintiff received an injection for right epicondylitis, but
reported her left elbow pain was much improved.
348.)
(R. 290-91; see R.
In September 2006, Plaintiff was able to walk at a reasonable
pace, and had lower extremity strength that was nearly full at 4/5,
with otherwise unremarkable examination.
(R. 291; see R. 330-31.)
Dr. Acuna noted that Plaintiff alleged arthritis and back pain when
examined by Dr. Khona in October 2006, but was unable to provide
details.
(R. 291; see R. 286.)
He considered that she declined much
of the examination, and had no spasm with an exaggerated response
13
to palpation.
(R. 291; see R. 288.)
Based on his review of the record, Dr. Acuna assessed that
Plaintiff’s symptoms of lumbar back pain, neck pain, and right hip
pain were attributable to medically determinable impairments.
294.)
(R.
However, he assessed that the severity of her symptoms and
their alleged effect on function was only partially consistent with
the total evidence, as a history of chronic headaches, dizziness,
inability to lift, and shoulder tightness were not corroborated by
review of the total evidence and objective findings.
(R. 294.)
He
again noted that Plaintiff exhibited a “significant degree of symptom
magnification” and could not describe her pain when seen by Dr. Khona.
(R. 294.)
Plaintiff saw Dr. Jennifer Lane Vanderbeck on October 17,
2007, with complaints of shoulder pain and difficulty lifting her
three-month-old child.
(R. 555.)
Given the total evidence, Dr. Acuna opined that Plaintiff could
occasionally lift twenty pounds and frequently lift ten pounds, and
could stand and/or walk for six hours as well as sit for six hours
in an eight-hour workday.
(R. 290-91.) He opined that she should
avoid frequent pushing and pulling with upper extremities; could not
climb ladders, ropes, and scaffolds; could only occasionally stoop,
kneel, crouch, crawl, and climb ramps or stairs; and should avoid
concentrated exposure to vibration and hazards.
14
(R. 290-91, 293.)
On January 19, 2007, Plaintiff was consultatively examined by
psychologist Dr. Lewis Lazarus.
provided translation.
(R. 297-299.)
(R. 297.)
Her aunt drove and
Plaintiff reported symptoms of
depression with excessive worry and nervousness, but no panic
attacks.
(R. 298.) She also complained of short-term memory
problems and difficulty concentrating.
(R. 298.)
She had never
received inpatient or outpatient psychiatric treatment.
(R. 297.)
Medications included propoxy-N/APAP, tramadol, amitryptyline,
Cymbalta, etodolac, and naproxen.
(R. 297.)
With respect to her activities of daily living, Plaintiff could
dress, bathe and groom herself, but said she had some trouble with
lower extremity dressing and bending.
(R. 298.)
She cooked and
prepared meals, but said she did not clean, do laundry, shop, or
manage money.
(R. 298; but see R. 164-71.)
family, and had some friends from church.
to drive.
She spent time with her
(R. 298.)
She was able
(R. 298.)
Upon examination, Plaintiff was cooperative and friendly, with
adequate social skills and manner of relating.
(R. 298.)
Her gait
was normal, although her posture was tense and motor behavior
restless secondary to pain.
(R. 298.)
Eye contact was appropriate
and speech unremarkable; thought processes were coherent and
goal-directed, with no evidence of delusions, hallucinations, or
15
paranoia; and she had full affect including laughter.
(R. 298.)
Plaintiff’s recent and remote memory skills appeared compromised,
in that she was able to recall three out of three objects immediately
but none after a five to ten minute delay, but her attention and
concentration were intact.
(R. 298.)
simple calculations and serial threes.
She could count, and perform
(R. 298.)
Dr. Lazarus
estimated that her intellectual functioning was in the low average
to average range.
(R. 298.)
She understood and spoke some English.
(R. 298.)
Dr. Lazarus diagnosed adjustment disorder with mixed anxiety
and depressed moods, pain disorder associated with both
psychological factors and a general medical condition, and noted her
report of a herniated disc.
(R. 298.)
He opined that her prognosis
was largely dependent upon her physical condition, and that
vocational opportunities might be limited by her language skills and
apparent physical limitations.
(R. 299.)
He assessed that
Plaintiff would be able to manage her funds, although her husband
currently did so.
(R. 298.)
State agency psychologist Dr. Carol Bruskin completed both a
Psychiatric Review Technique form and a Mental Residual Functional
Capacity (MRFC) Assessment form on January 24, 2007.
(R. 300-16.)
She opined that Plaintiff’s condition did not meet or equal a listed
16
impairment, with particular attention to listing 12.04 for affective
disorders and 12.06 for anxiety-related disorders.
(R. 300.)
Dr.
Bruskin noted Plaintiff’s allegations of back injury, herniated disc
and dizziness, and described and considered evidence from
consultative psychologist Dr. Lazarus.
(R. 316.)
Dr. Bruskin
noted that Plaintiff’s activities of daily living were unremarkable
except for difficulties caused by her back impairment, and that she
was able to drive, socialize, shop, and care for her small child.
(R. 316.)
Based upon her review of the record, Dr. Bruskin opined
that Plaintiff could maintain concentration, persistence and pace,
and was able to understand, remember, and execute responsibilities
associated with a work environment.
(R. 316.)
Plaintiff also could
accept criticism from authority, relate to others, and cope with
stress or change with only mild to moderate interference from
psychiatric symptoms.
(R. 316.)
Dr. Bruskin’s opinion was later
affirmed by psychologist Dr. Jane Curran.
(R. 208.)
On March 19, 2007, Plaintiff saw Dr. Rhyme with complaints of
hand numbness and cramping as well as dropping things.
She was nearly six months pregnant.
(R. 394.)
(R. 465.)
Neurologist Dr. Sharan Rampal examined Plaintiff on April 2,
2007.
(R. 465-66.)
Plaintiff was alert, oriented and appropriate,
with normal speech and thought.
(R. 465.)
17
She was able to remember
three out of three objects after three minutes, and had no impairment
in remote memory.
(R. 465.)
She had mild cervical tenderness and
patchy tenderness over her wrists and elbows; Tinel’s sign and
Phalen’s sign were positive bilaterally, suggesting carpal tunnel
syndrome (CTS).
(R. 465.)
Electromyography (“EMG”) and nerve
conduction studies (NCV) revealed severe CTS, greater on the right
than left.
(R. 463-64, R. 582-83.)
On May 10, 2007, Plaintiff saw Dr. Rhyme with complaints of
aching, soreness and numbness in her hands.
(R. 462.)
Examination
revealed normal, symmetrical muscle tone and power, with
unremarkable gait.
(R. 462.)
Plaintiff had dysesthesia over both
palms, with positive Tinel’s sign at wrists and elbows bilaterally,
and no extinction or intention tremor.
(R. 462.)
She wanted to
await delivery of her child before considering any intervention for
CTS.
(R. 462.)
Plaintiff saw Dr. Stuart Trager on July 23, 2007, with
complaints of bilateral hand numbness, weakening, and nocturnal
pain.
(R. 581.)
Plaintiff also had left trigger thumb and right
index trigger finger, with diffuse tenderness at the A-1 pulley
levels.
(R. 581.)
Tinel’s, Phalan’s, and carpometacarpal grind
tests were positive bilaterally.
(R. 581.)
Dr. Trager diagnosed
CTS, and suggested injections as she had delivered nineteen days
18
earlier.
(R. 581.)
On August 14, 2007, Plaintiff had surgery for right CTS and right
thumb trigger finger.
(R. 566-67.)
She reported being “quite
pleased with her progress” by August 27, 2007, experiencing no
numbness, tingling or locking at that time.
(R. 563.)
Plaintiff had surgery for left carpal tunnel syndrome and left
thumb trigger finger on September 11, 2007.
September 26, she was “doing quite well”.
(R. 558-59.)
By
(R. 491, R. 557.)
Her
numbness and tingling had “markedly improved” and her wounds had
“healed nicely”.
bicycle gloves.
(R. 491.)
Dr. Trager instructed her to wear
(R. 491.)
On October 4, 2007, Plaintiff saw Dr. Rhyme with complaints of
back and neck pain.
(R. 384.)
“minimal” degenerative change.
Cervical spine x-rays revealed
(R. 393.)
Tylenol, as Plaintiff was breast-feeding.
Dr. Rhyme recommended
(R. 384.)
Plaintiff saw Dr. Jennifer Lane Vanderbeck on October 17, 2007,
with complaints of shoulder pain and difficulty lifting her
three-month-old child.
(R. 555.)
She had pain with overhead
activities and backward reaching, but denied locking, popping, or
numbness or tingling into the hand.
(R. 555.)
Upon examination,
she had 170 degrees of forward elevation with pain, symmetric
external rotation to forty-five degrees, and internal rotation to
19
T10.
(R. 555.)
She had tenderness to palpation at the
acromioclavicular (AC) joint, and pain with supraspinatus testing
but no weakness and normal external rotation strength.
(R. 555.)
X-rays revealed changes consistent with chronic impingement.
555.)
(R.
Dr. Vanderbeck diagnosed right rotator cuff tendonitis,
provided a cortisone injection and suggested physical therapy.
(R.
555.)
On October 19, 2007, Plaintiff told Dr. Trager that she was
“significantly better” after surgery.
(R. 554.)
Upon examination,
her scars were well-healed but somewhat tender and inflamed.
554.)
She had not yet obtained bicycle gloves.
(R. 554.)
(R.
Dr.
Trager noted that she had a three-month-old child at home, which was
“likely the cause of her aggravation”.
(R. 554.)
Dr. Stephen Soloway completed an assessment on November 2, 2007
in which he noted that Plaintiff had full range of motion in her
shoulders, elbows, wrists, knees, hips, ankles, and cervical spine.
(R. 322-23.)
She had some weakness, with strength assessed at 3/5
bilaterally; however, she was able to squat and walk on heels and
toes, and had no sensory or reflex loss on either side.
(R. 323.)
She could walk at a reasonable pace, and had no other limitations.
(R. 323-24.)
On November 11, 2007, Plaintiff saw Dr. Vanderbeck with
20
complaints of shoulder pain.
(R. 553.)
She said the injection had
helped, but not completely, and that her pain was worse when “lifting
young children at home”.
(R. 553.)
Dr. Vanderbeck noted tenderness
to palpation at the AC joint, and with cross-body adduction.
553.)
(R.
She also had pain and “a little bit” of weakness with
supraspinatus testing.
(R. 553.)
Range of motion was to 170
degrees of forward elevation, with forty-five degrees of external
rotation, and internal rotation to T10.
(R. 553.)
Dr. Vanderbeck
gave Plaintiff samples of Celebrex and a handout of shoulder
exercises, as insurance problems had delayed physical therapy.
(R.
553.)
Plaintiff began physical therapy on November 21, 2007, after
cancelling two prior evaluations.
(R. 521, 548.)
She complained
of diffuse right shoulder pain following a car accident in December
2006.
(R. 550.)
She attended seven sessions, did not return, and
was discharged on January 24, 2008.
(R. 521.)
On November 28, 2007, Plaintiff complained of neck and shoulder
pain; she also reported having surgery for uterine prolapse the
previous week.
(R. 544.)
She had restricted range of motion of the
cervical spine; tenderness to palpation on the right AC joint; and
pain and “a little bit” of weakness with supraspinatus testing.
544.)
(R.
She also had full range of shoulder motion with no evidence
21
of instability.
(R. 544.)
Dr. Vanderbeck diagnosed right shoulder
rotator cuff tendinitis, AC joint arthritis, and cervical pain.
(R.
544.)
Dr. Vanderbeck also completed a public assistance examination
report on November 28, 2007.
(R. 546-47.)
She diagnosed right
shoulder rotator cuff tendinitis and right AC joint arthritis,
described both conditions as stable, and reported that Plaintiff had
decreased range of motion in her neck and right shoulder.
(R. 546.)
Dr. Vanderbeck opined that Plaintiff could not do repetitive overhead
reaching, or overhead reaching with more than five pounds, but noted
no other limitations.
(R. 546.)
She said Plaintiff was medically
cleared to participate voluntarily in part-time employment, and
opined that Plaintiff’s disability would last more than thirty days
but less than ninety days.
(R. 547.)
She further opined that
Plaintiff’s functional capacity was adequate to conduct normal
activities.
(R. 547.)
On November 29, 2007, Plaintiff saw Dr. Trager with complaints
of recent finger lock and nodules on her right small and ring fingers,
and some pain at the base of her left incision.
(R. 542.)
Upon
examination, she had small seed ganglia on the small and ring fingers
but full range of motion and no triggering.
(R. 542.)
Dr. Trager
injected her hand, and felt the incision pain would resolve with time.
22
(R. 542.)
Plaintiff saw Dr. Vanderbeck on December 13, 2007, with
complaints of shoulder pain.
(R. 538.)
She had active range of
motion with elevation to 160 degrees, and external rotation to six
degrees.
(R. 538.)
Right shoulder MRI revealed subacromial-
subdeltoid bursitis and supraspinatus rotator cuff tendinosis.
(R.
534.)
Plaintiff also saw Dr. Trager on December 13, 2007, and
complained of new “locking and catching” of her right small and long
fingers, as well as a ganglion cyst.
(R. 539.) She asked about
surgery, which was performed on December 27, 2007, for right long
ring and small finger triggers, and ring and small finger tendon
sheath cysts.
(R. 526-27, 539.)
Plaintiff sought treatment for her right knee on January 9,
2008, following a bus accident in December 2006.
(R. 523-24.)
She
reported painful “popping” and difficulty with stairs, but denied
numbness or tingling.
(R. 523.)
Range of motion was to 130 degrees,
with crepitation but no effusion or instability.
(R. 523.)
Patellar apprehension sign was positive, and she had pain with
patellofemoral loading.
(R. 523.)
McMurray test for meniscus tear
was negative, her leg was neurovascularly intact, and x-rays revealed
no abnormality.
(R. 523.)
23
On January 23, 2008, Plaintiff reported that her range of motion
was “gradually improving” following trigger finger surgery, although
she could not yet flex her fingertips to her palms.
Trager recommended physical therapy.
(R. 522.)
Dr.
(R. 522.)
Plaintiff said her knee pain was worse on February 1, 2008,
although she was not limping.
(R. 519.)
She had superficial
swelling with range of motion to 110 degrees.
(R. 519.)
Patellar
apprehension sign was positive, and she had pain with patellofemoral
loading and mild lateral joint line tenderness.
condition remained unchanged on February 28.
(R. 519.)
(R. 514.)
Her
Right knee
MRI revealed mild (grade two) degeneration of the medial meniscus,
and edema adjacent to the tibial collateral ligament.
(R. 507.)
Plaintiff had shoulder surgery on March 4, 2008, for right AC
joint arthritis and impingement syndrome.
(R. 498-99.)
By March
13, Plaintiff’s shoulder was “healing nicely” and “not having any
problems”, although her pain returned in October of that year.
497, 480.)
(R.
However, at the March 13th appointment, she complained
of knee pain.
(R. 497.)
Dr. Vanderbeck advised physical therapy,
and told Plaintiff she could drive.
(R. 497.)
Plaintiff began physical therapy for her right shoulder and knee
on March 26, 2008.
(R. 494.)
She complained of right knee pain with
ambulation and right knee swelling in the morning.
24
(R. 495.)
Her
gait was antalgic.
(R. 495.)
Hip, knee, and ankle ranges of motion
were within functional limits, except that right knee extension was
to zero degrees and right knee flexion was limited to eightyfive degrees active range of motion and ninety-five degrees passive.
(R. 495.)
She had minimal tightness in her legs, and some tenderness
to palpation on the right.
throughout.
(R. 495.)
(R. 495.)
Strength was 3+/5 to 4/5
otherwise unremarkable.
Examination of her lower extremities was
(R. 495.)
Her right shoulder was painful
and tender to palpation following surgery three weeks earlier, with
limited range of motion.
(R. 496.)
On April 8, 2008, Plaintiff described her shoulder as “much
better”; she was doing “quite well” in physical therapy and had nearly
full range of motion, with no pain or weakness.
(R. 493.)
However,
she complained of knee pain for which she received an injection.
(R.
493.)
On April 23, 2008, Plaintiff saw Dr. Trager with complaints of
right hand pain.
(R. 490, 492.)
until her shoulder surgery.
She said she was “doing better”
(R. 490.)
Upon examination, her wounds
were well healed with no contractures, nodules or locking.
(R. 490.)
She had full active flexion, but lacked the last half-centimeter of
positive motion.
(R. 490.) Dr. Trager recommended continued
exercise and physical therapy.
(R. 490.)
25
On May 7, 2008, Plaintiff told Dr. Vanderbeck that physical
therapy had helped “significantly.”
(R. 488.)
She was “not having
any shoulder problems” and her right knee was “significantly better”.
(R. 488.)
She had full painless range of motion of the right
shoulder, and no pain or weakness on rotator cuff testing.
(R. 488.)
She also had full range of motion of the knee, with “very mild”
tenderness.
(R. 488.)
Plaintiff returned to Dr. Trager on June 23, 2008, complaining
that her hands felt stiff.
(R. 487.)
She had subjectively
decreased sensibility in the small, ring, and long fingers, but full
active and passive motion.
retained suture.
(R. 487.)
Dr. Trager noted a possible
(R. 487.)
Plaintiff saw Dr. Sharan Rampal on June 27, 2008 with complaints
of aching soreness in the hands exacerbated by manual activity.
485.)
(R.
Upon examination, she was alert, oriented and appropriate.
(R. 485.)
She could remember three out of three objects in three
minutes, and remote memory was normal as well.
(R. 485.)
Gait and
muscle tone were normal, with full (5/5) strength bilaterally, no
atrophy, and straight leg raising to ninety degrees.
(R. 485.)
Tinel’s sign was positive bilaterally, but Phalan’s sign was
negative.
(R. 485.)
Plaintiff had some reduced sensation on the
radial-palmar aspect of both hands, and mild patchy tenderness over
26
her wrists and elbows.
(R. 485.)
Dr. Rampal assessed unexplained
residual symptoms following carpal tunnel release, and recommended
further testing.
(R. 485.) There was “significant improvement”
compared to pre-operative studies in April 2007, but the EMG and NCV
testing revealed moderate right and mild left median CTS. (R. 460-61,
R. 463-64.)
On July 18, 2008, Dr. Trager noted a small area of inflammation
consistent with a retained portion of suture, and scheduled removal
for July 31, 2008.
(R. 482-84.)
On September 22, 2008, however,
Plaintiff said she was unable to get her suture removed because she
was pregnant.
(R. 482-83.)
Removal was rescheduled for October.
(R. 482.)
On October 6, 2008, Plaintiff saw Dr. Vanderbeck with complaints
of right shoulder and right knee pain.
shoulder stiffness on examination.
(R. 480.)
(R. 480.)
She had some right
Her right knee had
a “slight” limitation in flexion, with tenderness and pain with
patellofemoral loading.
(R. 480.)
Dr. Vanderbeck recommended that
she return to physical therapy and discussed possible surgery.
(R.
480.)
Dr. Vanderbeck completed a public assistance examination report
on October 23, 2008.
(R. 476.)
Plaintiff’s primary diagnoses
included right shoulder impingement and AC joint arthritis, and Dr.
27
Vanderbeck also noted a right knee meniscal tear.
(R. 476.)
Each
condition was present since December 2006, and Dr. Vanderbeck
assessed that Plaintiff’s shoulder conditions were improving, while
her knee injury was progressive.
(R. 476.)
Plaintiff had stiffness
in her right knee and shoulder, but no muscle weakness, or motor,
reflex or sensory loss.
therapy.
(R. 476.)
(R. 477.)
She was receiving physical
Dr. Vanderbeck stated that a right knee partial
meniscectomy could either improve functioning, or correct or control
her condition.
(R. 476-77.)
Dr. Vanderbeck indicated that Plaintiff was ambulatory, but had
limitations in walking, climbing, and stooping, and should not lift
more than fifty pounds with her right side.
(R. 476.)
The doctor
checked boxes to indicate that Plaintiff could not work full time,
and that her functional capacity allowed her to perform little or
none of her usual occupations or self-care.
(R. 477.)
However, Dr.
Vanderbeck stated that she was medically cleared to participate
voluntarily in part-time employment, provided she did not squat or
lift more than fifty pounds.
(R. 477.)
She opined that Plaintiff’s
incapacity had begun in December 2006 and would last until January
2009.
(R. 477.)
Plaintiff returned to Dr. Trager for a repeat evaluation on
October 27, 2008, after having her suture removed.
28
(R. 475; see R.
482, scheduling removal for October 14, 2008.)
and was able to make a full fist.
knee surgery on November 14, 2008.
(R. 475.)
She had no complaints
Plaintiff had right
(R. 468-69.)
Plaintiff’s
medical records end here.
II.
DISCUSSION
A. Standard of Review
When reviewing a final decision of the Social Security
Commissioner, the Court must uphold the Commissioner’s factual
decisions if they are supported by “substantial evidence.”
42
U.S.C.§§ 405(g), 1383(c)(3); Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.
2000).
“Substantial evidence” means “‘more than a mere scintilla.
It 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) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
Where such evidence supports the ALJ’s findings of fact, the Court
is bound by the Commissioner’s findings, “even if [it] would have
decided the factual inquiry differently.”
Fargnoli v. Massanari,
247 F.3d 34, 38 (3d Cir. 2001) (citing Hartranft v. Apfel, 181 F.3d
358, 360 (3d Cir. 1999)).
Thus, this Court must “review the evidence
in its totality, but where it is susceptible of more than one rational
interpretation, the Commissioner’s conclusion must be upheld.”
29
Ahearn v. Comm’r of Soc. Sec., 165 Fed. Appx. 212, 215 (3d Cir. 2006)
(citing Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984); Monsour
Med. CR. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986)).
Where the Commissioner is faced with conflicting evidence,
however, “he must adequately explain in the record his reason 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)).
Stated differently,
“[U]nless the [Commissioner] has analyzed all evidence and has
sufficiently explained the weight he has given to obviously
probative exhibits, to say that his decision is supported by
substantial evidence approaches an abdication of the court’s
‘duty to scrutinize the record as a whole to determine whether
the conclusions reached are rational.’”
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978) (quoting Arnold
v. Sec’y of Health, Ed. & Welfare, 567 F.2d 258, 259 (4th Cir. 1977));
see also Guerrero v. Comm’r of Soc. Sec., Civ. No. 05-1709, 2006 WL
1722356, *3 (D.N.J. June 19, 2006) (stating that it is the ALJ’s
responsibility “to analyze all the evidence and to provide adequate
explanations when disregarding portions of it”), aff’d, 249 Fed.
Appx. 289 (3d Cir. 2007).
While “[t]here is no requirement that the ALJ discuss in [her]
opinion every tidbit of evidence included in the record,” Hur v.
Barnhart, 94 Fed. Appx. 130, 133 (3d Cir. 2004), the ALJ must review
30
and consider all pertinent medical and non-medical evidence and
“explain [any] conciliations and rejections.”
Burnett v. Comm’r of
Soc. Sec., 220 F.3d 112, 122 (3d Cir. 2000); see also Fargnoli, 247
F.3d at 42 (“Although we do not expect the ALJ to make reference to
every relevant treatment note in a case where the claimant . . . has
voluminous medical records, we do expect the ALJ, as the factfinder,
to consider and evaluate the medical evidence in the record
consistent with his responsibilities under the regulations and case
law.”).
In addition to the substantial evidence inquiry, this Court must
also review whether the administrative determination was made upon
application of the correct legal standards.
See Sykes v. Apfel, 228
F.3d 259, 262 (3d Cir. 2000); Friedberg v. Schweiker, 721 F.2d 445,
447 (3d Cir. 1983).
The Court’s review of legal issues is plenary.
Sykes, 228 F.3d at 262 (citing Schaudeck v. Comm’r of Soc. Sec., 181
F.3d 429, 431 (3d Cir. 1999)).
B. “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.”
31
42
U.S.C. § 1382c(a)(3)(A).
The Act further states,
[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).
In Plummer, 186 F.3d at 428, the Third
Circuit set out the Commissioner’s inquiry at each step of this
analysis:
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful activity.
20 C.F.R. § 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 her impairments are “severe,” she
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 her past relevant work. 20 C.F.R. § 404.1520(d). The
claimant bears the burden of demonstrating an inability to
return to her past relevant work. Adorno v. Shalala, 40 F.3d
32
43, 46 (3d Cir. 1994).
If the claimant is unable to resume her former occupation,
the evaluation moves to the final step. At this 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 her 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
she 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).
C. Analysis
Plaintiff argues that the ALJ erred in concluding that she is
not disabled and seeks a reversal of his decision.
She advances the
following arguments: (1) the ALJ failed to evaluate all of her
impairments at step two, and erred by not finding them “severe”, (2)
the ALJ failed to consider her obesity, (3) the ALJ failed to properly
determine her residual functional capacity, (4) the ALJ failed to
properly evaluate and weigh all of the medical evidence of record;
and (5) the ALJ improperly discounted Plaintiff’s testimony of
disabling pain and limitations.
1. The ALJ’s Determinations at Step Two
Plaintiff first argues that the ALJ erred by not crediting all
of her severe impairments, which included her cervical condition,
33
adjustment disorder, right shoulder condition, right knee condition,
elbow condition, hypertension, bilateral hand condition, and
obesity.
However, the ALJ found in Plaintiff’s favor at Step Two,
concluding that she suffered from a severe back disorder.
Thus,
“even if [the ALJ] had erroneously concluded that some of her other
impairments were non-severe, any error was harmless.”
See Salles
v. Comm’r of Soc. Sec., 229 Fed. Appx. 140, 145 n.2 (3d Cir. 2007)
(citing Rutherford v. Barnhart, 339 F.3d 546, 553 (3d Cir. 2005)).
2. Consideration of Obesity
Although Plaintiff now argues that the ALJ erred by failing to
consider her obesity, she neither identified any limitations due to
her obesity when she applied for benefits (R. 165), nor when she
testified at the administrative hearing, (R. 40-57).
In fact, she
still has not identified any additional limitations attributable to
obesity or explained how they would prevent her from performing the
unskilled, sedentary work identified by the ALJ at step five.
Br. 12-14.)
(Pl.’s
While the ALJ did not explicitly consider Plaintiff’s
obesity, he did rely upon Dr. Soloway’s reports, which mentioned
Plaintiff’s condition and thus put him on notice of the impairment.
(R. 29.)
This constituted a satisfactory, albeit indirect,
consideration of Plaintiff’s condition.
See Rutherford, 399 F.3d
at 553 (citing Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir.
34
2004)).
Moreover, Plaintiff never argued that her obesity would
impact her job performance, and thus a remand would not affect the
outcome of this matter anyway.
See Rutherford, 339 F.3d at 553
(holding that remand on obesity issue was not required where it “would
not affect the outcome”).
3. Consideration of the Evidence & Credibility Findings
The Court considers Plaintiff’s remaining arguments together,
i.e., whether the ALJ failed to properly weigh all of the medical
evidence of record and determine her RFC, and whether the ALJ properly
discounted Plaintiff’s testimony of disabling pain and limitations.
Plaintiff argues that the ALJ did not give appropriate weight to
several of her conditions, including her hand and shoulder
impairments.
Defendant responds that the ALJ correctly concluded
that Plaintiff’s other impairments did not cause additional
restrictions, because they were either temporary, intermittent, or
unsupported by the record.
When an ALJ renders his decision, he must provide sufficient
explanation of his final determination so the reviewing court has
the benefit of the factual basis underlying the ultimate disability
finding.
Cotter v. Harris, 642 F.2d 700, 705 & n.7 (3d Cir. 1981),
reh’g den’d, 650 F.2d 481 (1981); see also Fargnoli v. Massanari,
247 F.3d 34, 42 (3d Cir. 2001); Morales v. Apfel, 255 F.3d 310, 317
35
(3d Cir. 2000); Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993).
He must provide sufficient discussion to allow the court to determine
whether any rejection of potentially pertinent, relevant evidence
was proper.
Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d
Cir. 2000); Cotter, 642 F.2d at 706-07.
Moreover, “[a] cardinal
principle guiding disability eligibility determinations is that the
ALJ accord treating physicians’ reports great weight, especially
‘when their opinions reflect expert judgment based on a continuing
observation of the patient’s condition over a prolonged period of
time.’”
Morales, 225 F.3d at 317 (citations omitted).
Plaintiff’s Shoulder Impairment
Turning first to Plaintiff’s shoulder impairment, while the ALJ
provided significant analysis of the record, he did not properly
consider an examination report by Plaintiff’s treating physician
concerning Plaintiff’s shoulder impairment.
He also did not
adequately explain his disregard for other treating records and
Plaintiff’s own testimony on this matter.
Dr. Vanderbeck, one of
Plaintiff’s treating physicians at Cumberland Orthopedic, completed
an examination report on October 23, 2008, for the New Jersey Division
of Family Development, in which she discussed Plaintiff’s shoulder
problem.
(R. 476.)
In her report, she diagnosed Plaintiff with
shoulder impingement and acromioclavicular (“AC”) joint arthritis,
36
noting that Plaintiff had had this problem since December 2006, and
that she expected the impairment to last “more than 12 months.”
476-77.)
(R.
She reported that the impairment caused Plaintiff to have
difficulty lifting things and that she could not lift more than 50
pounds.
Notably, she described Plaintiff’s functional capacity as
“adequate to perform only little or none of the duties of usual
occupation or of self care.”
(R. 476.)
In his assessment of
Plaintiff’s RFC, the ALJ dismissed this report, noting that a second,
undated report by Dr. Vanderbeck was “apparently filled out” after
it and should thus supersede the first report.
(R. 30.)
In the
undated report, Dr. Vanderbeck discussed a “rotator cuff tendonitis”
as well as the “ACJ OA” (presumably meaning AC Joint Osteoarthritis).
(R. 546.)
She opined that Plaintiff’s shoulder disability would
only last between 30 and 90 days and that her functional capacity
was “adequate to conduct normal activities despite handicap,
discomfort, or limited mobility of one or more joints.”
(R. 30.)
Upon careful evaluation of both reports, however, there is no reason
to think that this second report was written after the October 23,
2008 report.
In fact, the opposite is true.
The records from
Cumberland Orthopedic are generally filed in reverse chronological
order, and the second report is in the section pertaining to November
2007, well after the October 2008 section of the record, where the
37
first report is located.
Further, the second report opines that the
shoulder issue arose on November 28, 2007, and will last between 30
and 90 days, with the anticipated end date left blank.
(R. 547.)
Clearly, Dr. Vanderbeck filled out this report before the 30-90 day
period had passed following November 28, 2007.
If she wrote this
after October 2008, more than eleven months would have already passed
since November 2007, and the disability would have therefore already
lasted well over the estimated 30-90 days.
This is an important
distinction, since, as the ALJ notes, these are the only
function-by-function assessments of Plaintiff’s abilities or
limitations from any treating physician, and given that the October
2008 report deemed Plaintiff’s shoulder impairment to be much more
debilitating than the earlier report.
(R. 30.)
Thus, the ALJ
should have properly considered the October 2008 report by
Plaintiff’s treating physician as superseding the earlier report,
which underestimated the length and degree of her shoulder
impairment.
The ALJ also appears to have disregarded Plaintiff’s
treating records, which reflect that her shoulder pain persisted
following surgery.
(R. 480.)
The ALJ’s opinion instead suggests
that surgery resolved this problem.
(R. 26.)
Thus, it is unclear
whether the ALJ adequately considered and rejected certain evidence
or merely disregarded it.
38
Plaintiff also argues that the ALJ improperly discounted her
testimony regarding her shoulder limitations and pain.
At the
administrative hearing, she reported that she had recently had
surgery on her right shoulder, but it was now worse than before.
50-51.)
(R.
She also believed that her shoulder problems were due to
her arthritis.
(R. 50-51.)
She stated that it is difficult for her
to lift things and perform tasks such as getting dressed, putting
on underwear, and doing her hair.
(R. 51.)
“An ALJ must give serious consideration to a claimant’s
subjective complaints of pain, even where those complaints are not
supported by objective evidence.”
Shalala, 994 F.2d at 1067 (citing
Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985)).
“Where
medical evidence does support a claimant’s complaints of pain, the
complaints should then be given ‘great weight’ and may not be
disregarded unless there exists contrary medical evidence.”
Id. at
1067-68 (citations omitted). Nevertheless, “[a]lthough the ALJ may
weigh the credibility of the evidence, he must give some indication
of the evidence that he rejects and his reason(s) for discounting
that evidence.” Fargnoli, 247 F.3d at 43.
The ALJ dismissed Plaintiff’s testimony concerning her shoulder
pain and limitations, explaining simply that while “the claimant
testified that she experienced difficulty lifting,” this allegation
39
was “quite extreme” and “not supported by the medical evidence in
the record.”
(R. 30.)
However, the ALJ did not cite to any specific
evidence in the record nor elaborate on Plaintiff’s credibility with
respect to her shoulder injury other than to cite reports of
Plaintiff’s daily activities prior to her shoulder surgery and
subsequent impairment in 2008 and 2009.
The ALJ relies on the fact
that Plaintiff was reported to be able to pick up her baby and perform
some housework, but appears to have disregarded Plaintiff’s repeated
complaints to her treating physician, Dr. Vanderbeck, in October and
November 2007, that her shoulder pain made it difficult for her to
lift her three-month-old infant.
(R. 553, 555.)
The ALJ also did
not acknowledge the fact that as part of her appeal, Plaintiff
submitted an amended disability report on October 30, 2008, which
listed her shoulder impairment as a new problem.
(R. 219-26.)
It is the responsibility of the ALJ to weigh the evidence and
make determinations on contradicting evidence.
Cotter v. Harris,
642 F.2d 700, 705 (3d Cir. 1981), reh’g den’d, 650 F.2d 481 (3d Cir.
1981) (“[W]e need from the ALJ not only an expression of the evidence
s/he considered which supports the result, but also some indication
of the evidence which was rejected.
In the absence of such an
indication, the reviewing court cannot tell if significant probative
evidence was not credited or simply ignored.).
40
The ALJ must explain
how he came to his conclusions on Plaintiff’s shoulder injury and
why he discounted relevant medical records and Plaintiff’s
testimony.
Indeed, had the ALJ given due consideration to Dr.
Vanderbeck’s October 2008 report, his analysis of Plaintiff’s
complaints of pain might have been significantly affected.
The
Court remands this case for further discussion on these issues
related to Plaintiff’s RFC and the credibility of her testimony at
the administrative hearing.
Hand Impairment
Similarly, Plaintiff argues that in determining her RFC, the
ALJ failed to properly consider the medical records as well as her
testimony concerning her hand impairments.
She also claims the ALJ
failed to fully account for the extent of her hand problems by
withdrawing them from the hypothetical question posed to the
vocational expert (“VE”).
The record reflects that Plaintiff suffered from carpal tunnel
syndrome and ganglion cysts.
She reported numbness and stiffness
in her hands, which were exacerbated by manual activity, even after
carpal tunnel surgery.
(R. 485.)
Plaintiff saw Dr. Trager on June
23, 2008, complaining of “decreased sensibility in the small, ring,
and long finger,” and clumsiness and stiffness in her hands.
487.)
(R.
Dr. Trager recommended Plaintiff to Dr. Sharan Rampal for EMG
41
and nerve conduction studies.
(R. 487, 485.)
Subsequently, on June
27, 2008, Dr. Rampal evaluated Plaintiff, who described aching
soreness in her hands.
(R. 485.)
Dr. Rampal’s impression was that
these symptoms were residual effects of Plaintiff’s carpal tunnel
release surgery.
(R. 486.)
After conducting an EMG, Dr. Rampal
noted “significant improvement” compared to the pre-operative study,
but also reported “moderate Right and mild Left residual Median
neuropathy across the Carpal tunnels.”
(R. 461.)
In a letter to Dr.
Trager, Dr. Rampal described her impression as “unexplained residual
symptoms” for Carpal Tunnel release.
(R. 486.)
On July 18,
2008, Dr. Trager noticed inflammation in Plaintiff’s hand due to a
retained suture from prior hand surgery, so Plaintiff underwent an
operation to have the suture removed.
(R. 484.)
She was
subsequently able to make a full fist (R. 475), although it is unclear
whether her neuropathy resolved.
here.
Plaintiff’s medical records end
However, Plaintiff subsequently filed an amended disability
report on October 30, 2008, in which she complained of pain and lack
of feeling in her hands, which caused her to need help washing her
hair and getting dressed.
(R. 219-26.)
At the administrative hearing, Plaintiff testified that even
after her hand surgery for carpal tunnel syndrome, she still
experiences numbness, stiffness, and charley horses.
42
(R. 49-50.)
According to Plaintiff, this condition has made it difficult for her
to drive, so she only drives short distances, such as to church or
the post office.
(R. 45.)
She also reported difficulty picking up
items like milk or a pot because she does not feel the object due
to numbness.
(R. 50.)
She stated that due to the discomfort in her
wrists and the stiffness of her fingers, she does not think she could
pack or stuff peppers again.
(Id.)
been diagnosed with arthritis.
She also testified that she has
(Id.)
The ALJ determined that Plaintiff’s allegations were “quite
extreme” and “not supported by the medical evidence in the record,”
although he did not cite to any contrary medical evidence other than
reports from 2006 and 2007, which predate Plaintiff’s post-surgery
symptoms.
(R. 30.)
He also cited her ability to drive, which, he
noted, requires a person to “use the hands with some dexterity.”
31.)
(R.
He did not discuss, however, whether her ability to drive only
short distances suggested a lack of such dexterity.
The ALJ also determined that Plaintiff’s hand impairment was
a “temporary” condition, relying on Dr. Rampal’s comment that
Plaintiff had made “significant improvement” as compared to her
pre-operative condition, but ignoring the same doctor’s reports that
Plaintiff continued to have unexplained neuropathy across the carpal
tunnels.
(R. 461, 486.)
The ALJ also relied on Dr. Trager’s
43
assessment that Plaintiff was able to make a “full fist” after
removing the suture (R. 475), but did not explain how the ability
to make a full fist indicated that Plaintiff’s carpal tunnel syndrome
had resolved.
Nevertheless, when crafting his hypothetical to the VE, the ALJ
first included a limitation addressing Plaintiff’s hand impairment.
He asked the VE to consider jobs given Plaintiff’s profile that
required only “occasional fine fingering and handling.”
(R. 60-61.)
Only after the VE answered that there were no jobs given the
restriction on occasional handling and fine fingering did the ALJ
remove this limitation.
The VE then listed two jobs in the national
economy that would fit Plaintiff’s profile:
the occupation of a nut
sorter and a final assembler of eyeglasses.
(R. 61.)
Notably, the
ALJ did not explain what components of the medical evidence he
accepted or rejected in formulating this hypothetical.
An ALJ may not “employ [his or] her own expertise against that
of a physician who presents competent medical evidence.”
Plummer
v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (citing Ferguson v.
Schweiker, 765 F.2d 31, 37 (3d Cir. 1985)).
“The ALJ must consider
all the evidence and give some reason for discounting the evidence
she [or he] rejects.”
Id. (citing Stewart v. Sec’y of H.E.W., 714
F.2d 287, 290 (3d Cir. 1983)).
In other words, he must “do more than
44
simply state ultimate factual conclusions.
The ALJ must include
subsidiary findings to support the ultimate findings” and must
provide “not only an expression of the evidence s/he considered which
supports the result, but also some indication of the evidence which
was rejected.
In the absence of such an indication, the reviewing
court cannot tell if significant probative evidence was not credited
or simply ignored.”
Stewart, 714 F.2d at 290 (quotations omitted).
Here, the hypothetical suggests that the ALJ disregarded Dr. Rampal’s
opinion that Plaintiff continued to have unexplained residual carpal
tunnel symptoms.
Perhaps the ALJ did not credit this report in light
of Plaintiff’s subsequent reports from Dr. Trager.
Where there is
such conflicting probative evidence in the record, courts have
recognized a “particularly acute need for an explanation of the
reasoning behind the ALJ's conclusions, and will vacate or remand
a case where such an explanation is not provided.”
F.3d at 42.
Fargnoli, 247
Moreover, the ALJ also did not adequately explain why
Plaintiff’s complaints of numbness and pain in her hands were
“extreme” and not supported by the record.
It is therefore unclear
whether the ALJ should have submitted the hand impairment to the
vocational expert in order to accurately convey all of Plaintiff’s
credibly established limitations.
Rutherford v. Barnhart, 399 F.3d
546, 554 (3d Cir. 2005) (citing Plummer, 186 F.3d at 431) (finding
45
that while the ALJ need not submit to the vocational expert every
alleged impairment, he must accurately convey all of a claimant’s
credibly established limitations).
It is impossible to properly review the ALJ’s decision because
the Court cannot tell if significant probative evidence was
considered and not credited or simply ignored. The Court cannot
fulfill its duty of review absent sufficient explanation of the ALJ's
credibility determinations with regard to Plaintiff’s testimony and
its rejection of certain medical opinions.
The Court must therefore
remand this matter to permit the ALJ to either credit such testimony
and opinions or provide an adequate explanation for rejecting them. 1
III. CONCLUSION
Accordingly, for the reasons discussed above, the decision
below is vacated, and this case is remanded to the ALJ for further
consideration consistent with this opinion. An accompanying Order
will issue this date.
Dated: September 16, 2011
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
1
Given the Court’s decision to remand this matter, it need not reach Plaintiff’s
remaining arguments.
46
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