EGAN v. COMMISSIONER OF SOCIAL SECURITY
Filing
19
OPINION. Signed by Judge Renee Marie Bumb on 12/29/2011. (tf, )
NOT FOR PUBLICATION
[Dkt. No. 1]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MICHELLE EGAN,
Civil No. 10-5150 (RMB)
Plaintiff,
OPINION
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Appearances:
Richard L. Frankel
Boss & Group, PA
102 Browning Lane, Building C-1
Cherry Hill, NJ 08003
Attorneys for Plaintiff
Susan Reiss
Special Assistant U.S. Attorney
Office of General Counsel
Social Security Administration
26 Federal Plaza, Room 3904
New York, New York 10278
Attorneys for Defendant
BUMB, United States District Judge:
Plaintiff Michelle Egan appeals the final decision of
Defendant Social Security Commissioner denying her disability
benefits.
For the reasons that follow, that decision is
AFFIRMED, in part, and REMANDED for further proceedings
consistent with this opinion.
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I.
Background
A.
Procedural
Plaintiff filed for disability on February 8, 2006,
claiming that she became disabled as of September 7, 2005.
Plaintiff’s immediate prior job was as a driving instructor.
Plaintiff’s claim was initially premised largely on wrist pain
and back problems. Her initial request for disability was denied
on October 25, 2006.
Plaintiff filed a request for
reconsideration on December 30, 2006.
on May 1, 2007.
That request was denied
Almost two months later, on June 15, 2007,
Plaintiff requested a hearing before an Administrative Law
Judge.
A hearing was held on October 15, 2008 before
Administrative Law Judge Daniel W. Shoemaker, Jr. (the “ALJ”).
At the hearing, Plaintiff also presented evidence that
fibromyalgia, first diagnosed shortly after the hearing was
requested, also contributed to her claimed disability.
On
January 27, 2009 the ALJ issued a decision concluding that
Plaintiff was not disabled.
B.
The ALJ’s Findings
Pursuant to Social Security Administration regulation, the
ALJ conducted a five-part test to determine disability.
steps are discussed in more detail below.
Those
At step one, he found
that Plaintiff had not engaged in substantial gainful activity.
At step two, he found that Plaintiff was severely impaired as a
2
result of fibromyalgia, DeQuervain’s syndrome of both wrists,
and residuals of right dominant wrist syndrome.
At step three,
he concluded that Plaintiff’s impairment did not amount to an
impairment listed in the Code of Federal Regulations, which
would automatically qualify her as disabled.
Finally, at step
four, the ALJ concluded that Plaintiff had the residual
functioning capacity to perform the full range of light work and
was therefore capable of returning to her old job as a driving
instructor and not disabled.
C.
The Evidence Before The ALJ
The ALJ’s conclusions were based on documentary evidence,
as well as live testimony.
The Plaintiff presented evidence that she saw a physician
on September 26, 2005 complaining of pain on both hands and
exhibiting decreased range of motion in both hands.
Plaintiff
expressed similar complaints in an October 6, 2005 visit, at
which she also showed decreased range of motion in her right
wrist.
On a follow-up visit on November 7, 2005, the Plaintiff
again reported wrist pain and examination revealed tenderness
and decreased range of motion.
Plaintiff’s follow-up visit on
January 20, 2006 was more of the same and Plaintiff was also
diagnosed with DeQuervain’s syndrome.
That same month,
Plaintiff enrolled in community college and began taking
classes.
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On February 14, 2006, Plaintiff underwent an orthopedic
examination by Dr. David A. Fuller.
Dr. Fuller noted
tenderness, swelling, and a positive Finkelstein test.
He
diagnosed the Plaintiff with status post lunate triquetrum
fusion of the right wrist and DeQuervain’s syndrome and
administered cortisone injections.
In a follow-up visit with
Dr. Fuller on March 28, 2006, he noted decreased swelling and a
negative Finkelstein test.
On April 29, 2006, Plaintiff completed a Social Security
Administration questionnaire regarding her claimed disability.
In the questionnaire, Plaintiff describes her average day as
waking up very early to “do [her] ADA’s then take care of [her]
daughter.
feed baby.
Open the back door, let out the dogs, make coffee.
drive to sitters, go to college, study, write papers
so my mom can type them for me, finish classes pick up baby,
drive home, put dogs out, feed baby, make dinner, dishes if
possible, nap (if poss.), study[.]”
The questionnaire also
indicates that Plaintiff prepared meals daily, read daily,
watched two hours of television a day, went dancing once a
month, and cooked, baked, and shopped as needed.
She also
regularly went grocery shopping, attended church, school,
doctors offices, and visited family and friends.
On the form,
Plaintiff claimed it was difficult for her to lift anything
without pain and she could not stand, sit, or walk for very
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long.
On August 23, 2006, Plaintiff was examined by Dr.
Nithyashuba Khona.
Dr. Khona noted that Plaintiff did not
appear to be in any “acute distress,” there were no abnormal
findings except for slightly decreased range of motion of
Plaintiff’s right wrist, and that Plaintiff functioned with the
use of both arms and performed tasks that required hand and
wrist movements.
Dr. Khona observed that Plaintiff was able to
walk on her toes and heels and required no help getting on and
off the examining table. Dr. Khona also noted that Plaintiff was
able to shower, do laundry, and dress herself.
She was also
able, according to Dr. Khona’s notes, to take care of her 9month old child, which required constant hand and wrist
movements for changing diapers, feeding, and carrying the baby
from one place to another.
On June 26, 2007, Plaintiff was diagnosed with probable
fibromyalgia by Dr. Brian L. Grimmett, a rheumatologist.
Follow-up visits in July, August, October, and December of 2007
confirmed this diagnosis.
On April 25, 2008, Dr. Charles P. Catania examined
Plaintiff.
In his report, Dr. Catania noted that Plaintiff had
a physical disability that prevented her from standing for more
than 30 minutes, sit for long periods, drive for more than 100
minutes, and generally affecting her ability to work.
5
Dr.
Catania also completed a supplemental “Medical Source Statement”
on April 28, 2008.
That statement indicated that Plaintiff’s
condition would keep her out of work more than 3-4 days per
month, that physical activity greatly increased Plaintiff’s
pain, that Plaintiff would need supine rest for at least 1-2
hours 1-2 days per week, and that Plaintiff’s pain and fatigue
would frequently interfere with her attention and concentration
at work.
During the administrative hearing, on October 15, 2008, the
Plaintiff presented testimony from herself, as well as her
mother - Betty Egan - and friend - Noelle Pool.
Plaintiff
testified that she drives four days a week, but has to limit her
driving because it is painful and uncomfortable.
She also
testified that she often dropped things and had a high degree of
difficulty lifting and carrying objects, to the extent that it
often took two hands to lift milk out of the refrigerator.
According to Plaintiff, sitting, standing, or walking for any
extended period caused her extreme discomfort and she could not
stand for more than 10-15 minutes at a time or walk more than a
block or two.
She testified that she required assistance to
carry heavy objects after she shops for groceries.
Ms. Egan
testified that she could not type for more than half an hour a
day and that she could not take handwritten notes for an
extended period of time.
Plaintiff testified that, while she
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was able to attend class at college, she was generally permitted
to stand up or walk out of the class if need be. Plaintiff
testified that cleaning the house by herself is too difficult
for her and that she requires, and receives, assistance from a
friend.
Plaintiff disputed Dr. Khona’s conclusion that she was
able to care for her baby normally, indicating that she used a
sling and carriage to transport her baby.
Plaintiff testified
that she could not carry her school books and instead had to
rely on a backpack on wheels.
Finally, Plaintiff testified that
she was unable to take her daughter to Story Book Land because
she would need, and did not want to use, a wheelchair to move
throughout the park.
Betty Egan testified that there were days when her daughter
could not get up the steps when she came home from school and
that she could no longer dance as she had in the past.
Ms. Pool
testified that: Plaintiff is often fatigued; Plaintiff has
trouble with basic tasks like removing a roast from the oven;
Ms. Pool would be very concerned with Plaintiff’s ability to
work everyday; Ms. Pool often has to help Plaintiff with
homework; and that another of Plaintiff’s friends often assists
Plaintiff with bathing her child.
II.
Standard of Review
This Court reviews both the legal and factual decisions of
the Social Security Commissioner.
7
Legally, the Court reviews
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)).
In contrast, the Court reviews the factual decisions of the
Commissioner with greater deference and 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,
91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quotation and citation
omitted)); 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.” Ahearn v. Comm'r of
8
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)
(quotation and citation omitted); 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
[the] opinion every tidbit of evidence included in the record,”
Hur v. Barnhart, 94 Fed. Appx. 130, 133 (3d Cir. 2004), the ALJ
must review 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
9
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.”).
III. Analysis
At issue here is the Commissioner’s finding that Plaintiff
was not disabled under the law.
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 had laid out 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. § 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, 107 S.Ct.
2287, 96 L.Ed.2d 119 (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 43, 46 (3d
Cir.1994).
If the claimant is unable to resume her former
10
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).
Plummer, 186 F.3d at 428.
Here, as described above, the ALJ found at step 4 that
Plaintiff retained the residual functional capacity to return to
her prior job as a driving instructor.
Plaintiff argues that
this finding was not supported by substantial evidence.
Specifically, Plaintiff contends that the Commissioner’s finding
failed to properly consider: (1) the opinion of Dr. Catania; (2)
Plaintiff’s non-exertional limitations; (3) Plaintiff’s
fibromyalgia; and (4) the testimony of Plaintiff, her mother,
and her friend.
This evidence, though acknowledged by the ALJ, was largely
discounted, with the ALJ rejecting Dr. Catania’s functional
capacity assessment.
The ALJ found that the evidence was
contrary to the May 1, 2006 questionnaire completed by the
Plaintiff and August 23, 2006 medical examination by Dr. Khona both of which suggested, according to the ALJ, that Plaintiff
11
was able to maintain a higher activity level than claimed at the
hearing and by Dr. Catania.
The ALJ also found that Dr. Catania
was not the treating physician and that his “minimal findings on
examination” did not support his disability determinations.
The
ALJ’s analysis was flawed.
The ALJ ignored the fact that Dr. Khona’s examination and
the questionnaire were completed in 2006, roughly one year prior
to Plaintiff’s diagnosis of fibromyalgia in June 2007 and
roughly two years prior to Dr. Catania’s April 2008 examination,
and the October 15, 2008 administrative hearing at which
testimony as to Plaintiff’s condition was taken.
That 2006
health data could be, in some ways, inconsistent with 2008 data
is not particularly meaningful.
2006 health data is not, as a
general matter, probative of 2008 health.
And it is
particularly suspect where, as here, the individual is diagnosed
with a new medical disorder in the interim. See generally
Collins v. Apfel, 31 F. Supp. 2d 1057, 1060 (N.D.Ill.
1998)(rejecting ALJ’s dismissal of endocrinologist’s report
where the report and the plaintiff’s testimony were “fresh” and
the only contrary medical evidence was “stale” at the time of
the hearing and noting that “[m]edical conditions . . . can
change dramatically over time”).
The evidence from Dr. Catania’s 2008 examination, whether
regarded as treating physician evidence or not, suggests a
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higher level of impairment than found by the ALJ.
The evidence
presented at the hearing was consistent with Dr. Catania’s
determination.
That evidence was that, although Plaintiff was
able to attend college, drive, and take care of her children and
home, she required substantial assistance and accommodation and
struggled to do so.
Because the 2006 evidence was the only
evidence potentially inconsistent with Dr. Catania’s opinion,
and was of dubious value with respect to 2008 health, the ALJ
effectively substituted his own judgment against that of
competent medical evidence from a physician in rejecting Dr.
Catania’s conclusions.
This is not permitted.
Plummer, 186
F.3d at 429 (“[A]n ALJ is not free to employ her own expertise
against that of a physician who presents competent medical
evidence.”).
The ALJ’s determination as to Plaintiff’s
residual functional capacity following Dr. Catania’s examination
was therefore not supported by substantial evidence.
The Court
will therefore remand this case for further proceedings as
described below.
However, the 2006 data cited by the ALJ does provide
substantial evidence in support of the ALJ’s conclusion as to
Plaintiff’s residual functional capacity prior to Dr. Catania’s
2008 examination. Plaintiff submitted medical evidence
establishing other medical problems prior to her diagnosis of
fibromyalgia and Dr. Catania’s examination.
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That evidence, and
Plaintiff’s subsequent fibromyalgia diagnosis, was acknowledged
by the ALJ. Plaintiff failed to point to any objective evidence,
however, establishing an impairment to the extent alleged by
Plaintiff during this time period.
Prior to Dr. Catania’s April
2008 opinion, Plaintiff’s objective evidence of impairment was
largely confined to wrist issues.
And, as found by the ALJ, the
level of impairment claimed by Plaintiff for at least part of
the time period is objectively contradicted by Dr. Khona’s
report, which shows only minimal impairment.
That leaves Plaintiff primarily reliant on subjective
complaints of pain and functional limitations.
To the extent
the ALJ did not credit Plaintiff’s subjective complaints of pain
and functional limitations, that decision was permissible. The
ALJ found, and was permitted to find, that the activity level
described in the April 2006 questionnaire and in Dr. Khona’s
August 2006 report, in which Plaintiff reported that she reads,
takes care of her baby and dog, prepares meals, drives, attends
school and writes papers, cleans and dresses herself, regularly
visits family and church, and dances once a month, were
inconsistent with Plaintiff’s claimed impairment.
Milano v.
Comm’r of Soc. Sec. Admin., 152 F. App’x 166, 170 (3d Cir.
2005)(holding that the ALJ could consider, among other things,
the plaintiff’s daily activities in determining the extent to
which subjective complaints of pain and functional limitations
14
are credited).
The ALJ also found, and was permitted to find,
that in light of Plaintiff’s activity level and Dr. Khona’s
objective findings, Plaintiff’s subjective complaints were of
diminished credibility generally.
Boyce v. Barnhart, 66 F.
App’x 297, 299-300 (3d Cir. 2003)(finding that subjective
complaints’ credibility could be diminished based on finding
that complainant’s “general credibility” was suspect).
IV. Conclusion
The Court AFFIRMS the Commissioner’s decision that, prior
to Dr. Catania’s opinion, Plaintiff failed to demonstrate that
she was disabled.
The Court REMANDS this matter for further
proceedings to determine Plaintiff’s residual functional
capacity following Dr. Catania’s opinion and whether, following
the issuance of that opinion, she qualified as disabled.
Dated: December 29, 2011
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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