DICKERSON v. COMMISSIONER OF SOCIAL SECURITY
Filing
28
OPINION. Signed by Judge Renee Marie Bumb on 2/11/2014. (dmr)(n.m.)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MICHAEL DICKERSON,
Plaintiff,
v.
Civil Action No. 12-CV-05585
CAROLYN W. COLVIN, COMMISSIONER
OF SOCIAL SECURITY,1
OPINION
Defendant.
BUMB, United States District Judge
Plaintiff Michael Dickerson (the “Plaintiff”), appearing
pro se, seeks judicial review pursuant to 42 U.S.C. § 405(g) of
the final decision of the Commissioner of Social Security (the
“Commissioner”) denying his application for disability insurance
benefits (DIB) and supplemental security income (SSI). Before
the Court is the Commissioner’s motion for judgment on the
pleadings requesting that the Court affirm the Commissioner’s
decision.
I.
STANDARD OF REVIEW
A reviewing court must uphold the Commissioner of Social
Security’s factual findings if they are supported by
“substantial evidence,” even if the court would have decided the
1
Carolyn W. Colvin is now the Acting Commissioner of Social
Security and, therefore, she is automatically substituted as the
defendant in this action pursuant to Federal Rule of Civil
Procedure 25(d).
1
inquiry differently. 42 U.S.C. §§ 405(g), 1383(c)(3); Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000); Fargnoli v. Massanari,
247 F.3d 34, 38 (3d Cir. 2001). “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 Cons. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Where the
evidence is susceptible to “more than one rational
interpretation, the Commissioner’s conclusion must be upheld.”
Ahearn v. Comm’r of Soc. Sec., 165 F. App’x 212, 215 (3d Cir.
2006) (citing Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984);
Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir.
1986)).
If faced with conflicting evidence, however, the
Commissioner “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.
2
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)) (internal quotations omitted); see also Guerrero v.
Comm’r of Soc. Sec., No. 05-1709, 2006 WL 1722356, at *3 (D.N.J.
June 19, 2006) (“The [administrative law judge’s] responsibility
is to analyze all the evidence and to provide adequate
explanations when disregarding portions of it.”), aff’d, 249 F.
App’x 289 (3d Cir. 2007).
While the Commissioner’s decision need not discuss “every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App’x 130, 133 (3d Cir. 2004), it must 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 [administrative law judge] 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, the
reviewing court must also determine whether the Administrative
Law Judge (“ALJ”) applied the correct legal standards. See
Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983); Sykes
3
v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). 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)).
“Disability” Defined
The Social Security Act (“SSA”) defines “disability” as the
inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Act
further states,
[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 described the Commissioner’s inquiry at each
step of this analysis:
4
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 [his] impairments are “severe,” [he] is
ineligible for disability benefits.
In step three, the Commissioner compares the medical
evidence of the claimant's impairment to a list of
impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant
does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and
five.
Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to
perform [his] past relevant work. 20 C.F.R.
§ 404.1520(d). The claimant bears the burden of
demonstrating an inability to return to [his] past
relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994). If the claimant is unable to resume [his]
former occupation, the evaluation moves to the final
step.
At this [fifth] stage, the burden of production shifts
to the Commissioner, who must demonstrate the claimant
is capable of performing other available work in order
to deny a claim of disability. 20 C.F.R.
§ 404.1520(f). The ALJ must show there are other jobs
existing in significant numbers in the national
economy which the claimant can perform, consistent
with [his] medical impairments, age, education, past
work experience, and residual functional capacity. The
ALJ must analyze the cumulative effect of all the
claimant's impairments in determining whether [he] is
capable of performing work and is not disabled. See 20
C.F.R. § 404.1523. The ALJ will often seek the
assistance of a vocational expert at this fifth step.
See Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.
1984).
5
II.
BACKGROUND
a. Procedural History
On March 25, 2008, Plaintiff filed applications for DIB and
SSI, alleging a disability onset date of April 15, 2004.
(Administrative Record “R.” 18.) These claims were denied on
July 25, 2008 and again upon reconsideration on October 9, 2008.
(Id.) Plaintiff then requested a hearing, which was held before
the Honorable Richard J. Ortiz-Valero, ALJ, on October 1, 2010.
Plaintiff appeared at the hearing and was represented by
counsel. (Id.) The ALJ issued his decision on October 18, 2010,
finding that Plaintiff was not disabled and denying DBI and SSI.
(R. 18-31.) Plaintiff requested review of the ALJ’s decision,
which was denied on July 13, 2012 (R. 1-3) and thus the ALJ’s
decision became the final decision of the Commissioner. See 20
C.F.R. § 404.981.
b. Hearing Testimony
Plaintiff is a 6’2”, 44-year-old male whose weight during
the relevant period has ranged from 345 to 508 pounds. (See R.
41, 44; see also id. at 296, 502.) Plaintiff attended a special
high school for at least a portion of his high school
instruction and has a twelfth grade education. (Id. at 51-52.)
Plaintiff testified that he has difficulty reading and writing
such that he is unable to read a menu or newspaper, but he also
testified that he has filled out application(s) for benefits or
6
jobs. (Id. (“Q. When you filed the applications for benefits, or
for jobs how did you do that? A. Either I would – my sister
would – how I got the job with the construction job [sic], my
younger brother was working there and he got me in.”).)
Plaintiff previously worked in asphalt construction for
approximately 20 years during which he started out shoveling
asphalt and then worked his way into operating heavy machinery.
(Id. at 41.)
In April 2004, Plaintiff began experiencing back and knee
problems, as well as heart issues, which prevented him from
continuing to work. (Id. at 42, 45, 57.) Plaintiff testified
that he experiences shortness of breath, which combined with the
back and knee pain, makes movement difficult though Plaintiff is
able to care for himself. (See id. at 47-48, 50, 52-53.)
Plaintiff has tried to lose weight through diet and exercise but
has been unsuccessful despite the fact that there is no medical
reason for his obesity. (Id. at 58.) He lives with his mother
and son, but his sister comes over and does the cleaning and
upkeep of the house. (Id. at 49.) As to his functional
abilities, Plaintiff testified that he is able to stand for
approximately 15-20 minutes at a time, sit for around 10-15
minutes at a time, and carry up to 20 pounds but only short
distances. (Id. at 53, 59.) He further testified that he has
7
difficulty sleeping and spends his time watching TV, and
socializes with friends outside of his home. (Id. at 54, 59-60.)
c. The ALJ’s Decision
Applying the requisite five-step analysis described above,
the ALJ concluded that Plaintiff meets the insured status
requirements of the SSA through March 31, 2010 but has not
engaged in substantial gainful activity (“SGA”) since April 15,
2004, the alleged onset date. (R. 20.) At Step 2, the ALJ found
that Plaintiff suffers the following severe impairments: lumbar
pain, degenerate disc disease, congestive heart failure,
bronchitis, sleep apnea, and morbid obesity. (R. 20.) He further
found that Plaintiff’s dysthymic disorder, a “mood disorder that
is usually mild in severity,” did not constitute a severe
impairment. (Id. at 24, 72.) In making these findings, the ALJ
relied on Plaintiff’s medical records related to his conditions,
including:
The medical reports of Dr. Marvin Wallach, Plaintiff’s
family doctor (Exs. 4F, 7F, 15F);
The medical records of West Jersey Health System
related to Plaintiff’s hospitalization for chest pain
and shortness of breath (Exs. 1F, 2F, 3F);
The medical reports of Dr. Ronald A. Cohen, a treating
cardiologist, concerning Plaintiff’s congestive heart
failure and atrial fibrillation (Exs. 5F, 6F, 14F,
17F, 19F, 20F);
The report of consulting physician Dr. Ken Klausman
related to Plaintiff’s chest and spinal pain (Ex. 9F);
The report of Dr. Komal A. Malik, an associate in Dr.
Wallach’s office (Ex. 18F);
8
The Physical RFC Assessments conducted by Drs. A.
Cirillo and Joshua Weisbrod, medical consultants (Exs.
13F, 16F);
The Psychiatric Review Technique and the Mental RFC
Assessment completed by Dr. Joseph Wieliczko, medical
consultant (Exs. 10F, 11F).
At Step 3, the ALJ relied heavily on the testimony of
medical expert, Dr. Jose Rolon, and concluded that the Plaintiff
does not have an impairment or combination of impairments that
meets or is medically equivalent to a listed impairment in 20
C.F.R. § 404.1520(d). (Id. at 24-25.)
The ALJ then considered Plaintiff’s residual functional
capacity (“RFC”). He determined that Plaintiff has the RFC to
perform light work as defined in 20 C.F.R. 404.1567(b) and
416.967(b) and that Plaintiff
is able to lift/carry 20 pounds occasionally and 10
pounds frequently, he can sit for 6 hours, alternating
every two hours, in an 8-hour day. He can stand and
walk for 2 hours in an 8 hour day, he can occasionally
climb stairs, and can never stoop, crouch, kneel or
crawl, and should avoid exposure to unprotected
heights and avoid concentrated exposure to gases,
[fumes], dust, and to extreme heat and extreme cold.
(Id. at 25.) Given this RFC, the ALJ determined at Step 4 that
Plaintiff was unable to perform any past relevant work, which
was medium and skilled. (Id. at 29.) Moreover, according to the
impartial vocational expert, none of Plaintiff’s skills were
transferrable but the ALJ found this to be immaterial to the
disability determination because of the Medical-Vocational
Guidelines. (Id.) The ALJ further determined that Plaintiff has
9
a high school education and is able to communicate in English.
(Id.)
Finally, at Step 5, the ALJ determined that there are
significant numbers of jobs in the national economy that
Plaintiff can perform given his age, education, work experience,
and RFC. (Id.) The ALJ relied upon the testimony of a vocational
expert who determined that Plaintiff would be able to perform
the requirements of a Stem Mounter, DOT 692.685-206, Patcher,
DOT 789.687-174, and/or a Getterer, DOT 692.685-266, all of
which are unskilled, sedentary positions. (Id. at 30.)
Therefore, the ALJ concluded that Plaintiff has not been under a
disability within the meaning of the Social Security Act from
April 15, 2004, the alleged onset date, through October 18,
2010, the date of the ALJ’s decision. (Id. at 18, 30.)
III.
LEGAL ANALYSIS
The Court has gone to great lengths to identify and
articulate the legal arguments upon which Plaintiff grounds his
appeal. Although it is unclear from Plaintiff’s submissions, the
Court understands him to be challenging the ALJ’s decision on
several grounds: (1) the ALJ failed to consider Plaintiff’s
depression and agoraphobia as a severe impairment; (2) the ALJ
failed to account for the significant limitations suggested by
the treating physicians or for the impact of Plaintiff’s obesity
on his ability to do basic work functions; (3) the ALJ
10
improperly relied upon the testimony of the vocational expert,
and his determination that other work exists in the national
economy is unsupported.2
1. Mental Impairments
Plaintiff appears to assert that the ALJ committed error by
failing to consider as a severe impairment Plaintiff’s
“documented depression” and associated agoraphobia. (See Opp.
1.) “An impairment is ‘severe’ if the evidence presented by a
claimant demonstrates more than a ‘slight abnormality,’ having
‘more than a minimal effect’ on the claimant’s ability to do
‘basic work activities.’” Rosa v. Comm’r of Soc. Sec., No. 122
In addition, Plaintiff claims that his due process and
equal protection rights were violated. (See, e.g., Opp., Dkt.
Ent. 24 at 1.) However, he fails to identify any particular
constitutional violations or to submit evidence that he was
treated differently than other Social Security claimants.
Rather, his claims focus on this Court’s alleged failure to
provide him with counsel in this proceeding. However, Plaintiff
does not have a right to counsel in this matter. See Gorrell v.
Comm’r of Soc. Sec., 449 F. App’x 176, 178-80 (3d Cir. 2011)
(acknowledging civil litigants have no statutory right to
counsel and finding district court did not abuse its discretion
in denying motion to appoint counsel in social security appeal);
see also Gabrys v. Astrue, No. 12-6099, 2012 WL 6527331, at *12 (E.D. Pa. Dec. 14, 2012) (denying motion for appointment of
counsel in social security appeal and noting “[i]t is well
settled that ‘indigent civil litigants possess neither a
constitutional nor a statutory right to appointed counsel’”)
(quoting Gordon v. Gonzalez, 232 F. App’x 153, 156 (3d Cir.
2007)). Moreover, it is undisputed that Plaintiff was
represented by counsel throughout the proceedings below and that
counsel fully participated in submitting evidence and examining
the witnesses at the hearing before the ALJ. (R. 38-93.) See,
e.g., 42 U.S.C. § 406; Phifer v. Comm’r of Soc. Sec., 84 F.
App’x 189, 190-91 (3d Cir. 2003). Thus, the Court finds
Plaintiff’s allegations to be without merit.
11
5176, 2013 WL 5322711, at *3 n.5 (D.N.J. Sept. 20, 2013) (citing
McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir.
2004)); Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d
Cir. 2003); SSR 85–28). “Basic work activities” are “the
abilities and aptitudes necessary to do most jobs,” and include
(1) “Physical functions;” (2) “Capacities for seeing, hearing,
and speaking;” (3) “Understanding, carrying out, and remembering
simple instructions;” (4) “Use of judgment;” (5) “Responding
appropriately to supervision, co-workers and usual work
situations;” and (6) “Dealing with changes in routine work
setting.” 20 C.F.R. § 416.921(b); see also Rosa v. Comm’r of
Soc. Sec., No. 12-5176, 2013 WL 5322711, at *6 (D.N.J. Sept. 20,
2013). In determining the degree of functional limitation
presented by a mental impairment, the ALJ assesses four broad
areas: activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of
decompensation. 20 C.F.R. § 404.1520a(c)-(d).
Here, the ALJ determined that, while the medical evidence
reflected a diagnosis of dysthymic disorder,3 the record
reflected no treatment for an emotional condition and the mental
3
“Dysthymic disorder . . . involves either depressed mood
or loss of interest or pleasure in all or almost all usual
activities and pastimes, and associated symptoms, but not of
sufficient severity and duration to meet the criteria of a major
depressive episode.’” Rosa, 2013 WL 5322711, at *3 n.5 (quoting
Mosby’s Dictionary 564).
12
status findings did not support any moderate limitations. (R.
24.) Specifically, the Psychological Consultative Examination
reflects that Plaintiff exhibited appropriate emotional
responsiveness, logical and coherent thoughts, good attention,
intact memory, and good judgment. (Id. at 24; see also id. at
397-98.) The Report notes Plaintiff’s concentration was impaired
in that he could not do serial 7s and made an error in serial
3s, and he had impaired abstracting abilities. (Id. at 397.)
However, he did not suffer delusions or hallucinations and
denied suicidal/homicidal ideation. (Id. at 24; see also id. at
398.) The ALJ further noted that a report by the State agency
psychologist, Dr. Wieliczko, concluded that Plaintiff had only
mild limitations for daily activities, no limitations in social
functioning and only moderate limitations regarding
concentration, pace and persistence with no episodes of
decompensation. (R. 24 (citing Exs. 10F and 11F).) Dr. Wieliczko
noted these “conditions are not so severe that they would
prevent [Plaintiff] from meeting the mental demands of simple
work related activities.” (R. 426.) In finding that dysthymic
disorder is not a severe impairment, the ALJ also placed great
weight on the testimony of impartial medical expert Dr. Luis E.
Canepa, who supported most of Dr. Wieliczko’s conclusions. (Id.
at 24.) Dr. Canepa testified that the claimant has mild
limitations for daily activities, social functioning, and
13
concentration and no episodes of decompensation. (Id.; see also
id. at 71-73.) This evidence supports the ALJ’s conclusion that
Plaintiff’s dysthymic disorder was not a severe impairment. See
Berrocal v. Astrue, No. 10-cv-02226, 2011 WL 890150, at *3
(D.N.J. Mar. 14, 2011) (finding substantial evidence supported
ALJ’s conclusion that evidence does not support a claim of
severe mental impairment). Moreover, the record contains no
medical evidence of Plaintiff’s alleged agoraphobia. The burden
of persuasion lies with Plaintiff to demonstrate the existence
of a severe impairment and Plaintiff failed to do so with
respect to depression or agoraphobia. See, e.g., Sykes, 228 F.3d
at 263; Walker v. Astrue, No. 12-07042, 2013 WL 5947008, at *6
(D.N.J. Nov. 4, 2013).
Notably, Plaintiff points to no evidence in the record that
the ALJ failed to consider but rather appears to be claiming
that new evidence concerning his medical conditions, and in
particular his alleged mental impairments, demonstrate his
entitlement to benefits. (See Compl. 2; see also Dkt. Ent. 26.)
Specifically, Plaintiff submits a letter dated November 13, 2013
from Sara Baran, M.A., a Clinician at South Jersey Behavioral
Services. (Dkt. Ent. 25.) Ms. Baran advises that Plaintiff
attended an intake appointment on February 8, 2013, reported
symptoms such as insomnia, weight gain, decreased appetite,
hopelessness, helplessness, lack of motivation, crying when
14
alone, and a sad mood. He was diagnosed with Adjustment Disorder
with Depressed Mood. (Id. at 3.) Since then, he has been
attending individual therapy 1-2 times per month. Ms. Baran also
relates that Plaintiff indicated his mental health issues began
some time after his diagnosis with congestive heart failure.
(Id.) This evidence does not significantly augment the record
considered by the ALJ as it indicates only that Plaintiff began
experiencing mental health issues during the relevant period. He
did not seek treatment, however, until early 2013--well over two
years beyond the relevant period--and thus the extent of the
symptoms described during his intake procedure cannot even be
attributed to the relevant period. See Hagans v. Astrue, No. 101951, 2011 WL 1344188, at *13 (D.N.J. Apr. 8, 2011) (“If the new
evidence suggests that Plaintiff’s condition may have become
disabling subsequent to the cessation of benefits, or there is a
new impairment, Plaintiff must file a new application.”), aff’d
694 F.3d 287 (3d Cir. 2012); Tommas v. Astrue, No. 10-2495, 2011
WL 5599699, at *6 (D.N.J. 2011) (“Material evidence is ‘relevant
and probative,’ and must pose a ‘reasonable possibility’ of
changing the ALJ’s decision. An ‘implicit’ requirement of
materiality is that the evidence must ‘relate to the time period
for which benefits were denied.’ Moreover, the new evidence
cannot be of either ‘a later-acquired disability or of the
subsequent deterioration of the previously non-disabling
15
condition.’” (internal citations omitted)); Thomas v. Chater,
945 F. Supp. 104, 105 (D. V.I. 1996).4 Thus, the Court must
uphold the ALJ’s finding as supported by substantial evidence.
Regardless, any error related to this “evidence” would not
necessitate remand in light of the other severe impairments
assessed by the ALJ. See Rosa, 2013 WL 5322711, at *7 (“The
Third Circuit has indicated that an ALJ’s erroneous finding that
some of a claimant’s impairments are not severe at step two is
harmless if the ALJ finds that the claimant has other severe
impairments.”).
2. Evaluation of Plaintiff’s RFC
Next, Plaintiff appears to challenge the ALJ’s evaluation
of his RFC on grounds that he improperly discounted the opinions
of the treating physicians and failed to consider the effect of
Plaintiff’s obesity on his ability to do work activities.5 These
arguments are meritless.
4
For similar reasons, the letter dated October 14, 2013
from Jennifer Burrows, PA-C, of Berlin Medical Associates does
not constitute new evidence. (See Dkt. Ent. 27.) Ms. Burrows
notes a recently-developed increase in ankle and knee pain and
opines that “Michael cannot work at this time.” (Id.) However,
these recent developments and/or aggravations in Plaintiff’s
condition are well outside the relevant period addressed by the
ALJ’s decision. See Hagans, 2011 WL 1344188, at *13; Tommas,
2011 WL 5599699, at *6; Chater, 945 F. Supp. at 105.
5
The Court interprets Plaintiff’s arguments as challenging
the ALJ’s conclusions regarding Plaintiff’s ability to perform
other jobs in the national economy, and thus addresses these
arguments in the context of the ALJ’s RFC finding. See Johnson
v. Comm’r of Soc. Sec., 529 F.3d 198, 201 (3d Cir. 2008)
16
An ALJ must consider every medical opinion in the record
and decide how much weight to give each. 20 C.F.R.
§ 404.1527(c). An ALJ must, however, 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.” Plummer, 186 F.3d at 429 (internal citations omitted).
However, the opinion must be “well supported by medically
acceptable clinical and laboratory diagnostic techniques and []
not inconsistent with other substantial evidence in the record.”
Alexander v. Shalala, 927 F. Supp. 785, 7994-95 (D.N.J. 1995),
aff’d per curiam, 85 F.3d 611 (3d Cir. 1996). The ALJ must also
consider the findings and opinions of state agency medical
consultants and other sources consulted in connection with the
hearing. 20 C.F.R. § 404.1527(e)(2)(i). If non-examining medical
source opinions are supported by medical evidence in the record,
they may constitute substantial evidence and override a treating
physician’s opinion. Alexander, 927 F. Supp. at 795. “When a
conflict in the evidence exists, the ALJ may choose whom to
credit but cannot reject evidence for no reason or for the wrong
(“Johnson’s arguments regarding Dr. Hunter’s opinions challenge
the ALJ’s conclusions regarding Johnson’s ability to perform
‘past relevant work’ and ‘several other jobs’ in the national
economy. We construe this as a challenge to the ALJ’s step four
finding . . . .”); Sullivan v. Comm’r of Soc. Sec., No. 12-7668,
2013 WL 5973799, at *7 n.4 (D.N.J. Nov. 8, 2013).
17
reason. The ALJ must consider all the evidence and give some
reason for discounting the evidence she rejects.” Plummer, 186
F.3d at 429 (internal citations omitted). An ALJ errs by failing
to address evidence in direct conflict with his findings.
Landeta v. Comm'r of Soc. Sec., 191 F. App’x 105, 110 (3d Cir.
2006); see also Richardson v. Comm’r of Soc. Sec., No. 12-6422,
2013 WL 5816883, at (D.N.J. Oct. 29, 2013).
Here, Plaintiff points to the opinions of Dr. Cohen, his
treating cardiologist, and Dr. Malik, an associate in Dr.
Wallach’s office, whom Plaintiff maintains suggested more
significant limitations than those included as part of
Plaintiff’s RFC. (See Compl. at 8-9.)6 As the ALJ acknowledged,
Dr. Cohen’s notes refer to Plaintiff as “totally disabled” or
“profoundly debilitated,” and also question his ability to work.
(R. 438, 480, 484.) However, the ALJ was not required to
attribute controlling weight to these opinions because the
ultimate determination of whether an individual is disabled or
unable to work is reserved for the Commissioner. 20 C.F.R.
§ 404.1527(d) & (d)(1). Accordingly, under the regulations, “[a]
6
Plaintiff also suggests that the ALJ failed to account for
Dr. Wallach’s opinions, but points to no specific opinion or
evidence dismissed by the ALJ and a review of the medical
records revealed none. (See Compl. at 9.) In addition to the
extent that Plaintiff maintains that the other physicians’
opinions also contradict the ALJ’s RFC, this argument is
incorrect. (Compare R. 429-36 (Dr. Cirrillo) & 459-66 (Dr.
Weisbrod), with R. 25.)
18
statement by a medical source that you are ‘disabled’ or ‘unable
to work’ does not mean that we will determine that you are
disabled.” 20 C.F.R. § 404.1527(e)(1). “[T]reating source
opinions on issues reserved to the Commissioner are never
entitled to controlling weight or special significance.” SSR 96–
5p (1996); see also 20 C.F.R. § 404.1527(d)(3); Smith v. Comm’r
of Soc. Sec., 178 F. App’x 106, 112 (3d Cir. 2006). The ALJ
recognized that Dr. Cohen’s opinion was “of evidentiary value”
but determined that it was also “clearly unsupported by the rest
of the evidence in the record” (R. 29), which demonstrates that
the cardiac conditions were responsive to treatment. This
evidence includes Dr. Cohen’s own reports, which reflect that
Plaintiff’s congestive heart failure was largely compensated (R.
27-28; see also id. at 480, 491), and his peripheral edema had
improved through treatment with Lasix therapy (id. at 27-28; see
also id. at 491). He further notes that Plaintiff’s “motor exam
was . . . normal.” (id. at 480; see also id. at 491.) Dr. Malik
had also reported that Plaintiff’s atrial fibrillation “was
stable and controlled with Coumadin.” (Id. at 27; see also id.
at 479.) In addition, Dr. Klausman, consultative physician,
observed that Plaintiff had lumbar limitation of motion and
positive straight leg raising, but that he walked “with a normal
gait”, got and off the examining table without difficulty, and
sat up without assistance. (Id. at 23, 28, 407.) Accordingly,
19
the ALJ did not err in according less weight to Dr. Cohen’s
conclusions on an issue reserved to the ALJ, especially in light
of the medical evidence. Sternberg v. Comm’r of Soc. Sec., 438
F. App’x 89, 98 (3d Cir. 2011) (“There was medical evidence in
the record—the objective medical evidence cited above—that
contradicted Dr. O’Hara’s opinion. Furthermore, his opinion that
Sternberg was ‘unemployable/disabled’ was not entitled to any
special significance, as it is a determination explicitly left
to the ALJ.”); Russo v. Astrue, 421 F. App’x 184, 191 (3d Cir.
2011) (“We also note that Dr. Nashed’s opinion whether Russo
should receive disability benefits was not entitled to
controlling weight because that determination is reserved for
the Commissioner. . . . Dr. Nashed could properly opine on
Russo’s functional limitations but not the ultimate issue
whether Russo was eligible for benefits.” (internal citations
omitted)); Adorno, 40 F.3d at 47–48; see also Plummer, 186 F.3d
at 429.
As to Dr. Malik, he provided an RFC assessment that
indicated Plaintiff was able to sit, stand, and walk for less
than one hour a day (R. 476), which would preclude the
performance of any work activities (see id. at 48). The ALJ,
however, rejected Dr. Malik’s assessment as inconsistent with
Dr. Wallach’s assessments and otherwise unsupported by the
20
medical evidence. (Id. at 28.) The Court does not find this to
be in error. Dr. Wallach, whose opinions Plaintiff requests this
Court to consider significant (Compl. at 1), reported only
limitations related to lumbar spine flexion. (See R. 445-47; see
also id. at 357 (declining to provide work-related
limitations).) As to Plaintiff’s pain, Drs. Wallach and Malik
referred Plaintiff for pain management treatment but the record
reflects no treatment notes. (Id. at 27.) Despite his pain, Dr.
Klausman, concluded that Plaintiff showed only mild degenerative
joint disease (id. at 402) and his observations reflected that
Plaintiff’s “physical mobility and functions remained adequate.”
(Id. at 27; see also id. at 402.) Moreover, Dr. Malik’s RFC
acknowledged that Plaintiff’s pain could be mediated through
pain management treatment and medication, which he stated has
proven successful for similar complaints in other patients. (Id.
at 477-78.) The ALJ also observed Plaintiff at the hearing and
concluded that his demeanor at the hearing and throughout the
record do not substantiate the “severe physical distress or
limitations as alleged.” (Id. at 27.) Further, to the extent Dr.
Malik opined that Plaintiff’s pain is distracting and likely to
increase with walking, standing, bending, or stooping, the ALJ
implicitly acknowledged such limitations in crafting Plaintiff’s
RFC. (Compare id. at 477, with id. at 25.). Accordingly, the
Court finds that the ALJ’s explanation for why he rejected the
21
limitations suggested by Dr. Malik is supported by substantial
evidence. See also Salles v. Comm’r of Soc. Sec., 229 F. App’x
140, 148-49 (3d Cir. 2007) (“Because the consultative
physician’s observations were more consistent with the weight of
the evidence, the ALJ properly afforded them greater weight than
the opinion of the treating physician.”).
Finally, Plaintiff seemingly argues that the ALJ failed to
account properly for any functional limitations due to
Plaintiff’s obesity. (R. 28.) SSR 02-1p provides:
The functions likely to be limited depend on many
factors, including where the excess weight is carried.
An individual may have limitations in any of the
exertional functions such as sitting, standing,
walking, lifting, carrying, pushing, and pulling. It
may also affect ability to do postural functions, such
as climbing, balance, stooping, and crouching. The
ability to manipulate may be affected by the presence
of adipose (fatty) tissue in the hands and fingers.
The ability to tolerate extreme heat, humidity, or
hazards may also be affected.
As the ALJ recognized, “[t]he effects of obesity may not be
obvious”; for example, obese individuals may suffer from sleep
apnea, which may lead to drowsiness and lack of mental clarity.
(R. 28 (citing SSR 02-1p).) In accordance with SSR 96-8p, the
ALJ’s RFC assessment must consider Plaintiff’s “maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis.” SSR 02-1p
(citing SSR 96-8p); (see also R. 28). In his opinion, the ALJ
acknowledged the requirements of SSR 02-1p and found that
22
Plaintiff’s obesity constituted a severe impairment in light of
the medical evidence. (See R. 20-25, 28.) The ALJ also addressed
the impact of Plaintiff’s obesity on his ability to perform work
activities and found that “it does not have a significant impact
on his other body systems or that it does not affect
significantly his ability to ambulate, mobility or
manipulation.” (Id. at 28.) This determination is supported by
substantial evidence.
For example, as discussed above, Dr. Klausman noted that
Plaintiff’s gait was normal, he climbed on and off the examining
table without difficulty, he was able to lie down and sit up
without assistance, and he exhibited “normal hand movements
. . . . within normal limits bilaterally.” (R. 27, 407; see also
id. at 426 (Dr. Wieliczko reported Plaintiff’s “gait/posture are
normal”).) Dr. Malik also noted Plaintiff did not have
difficulty with manipulating objects, and was capable of
grasping, pushing and pulling objects with both hands. (Id. at
438, 476.) Dr. Cohen continually observed that Plaintiff’s motor
exam was normal (see, e.g., id. at 480), and the ALJ observed no
obvious difficulty in ambulation or mobility throughout the
hearing (id. at 27). Furthermore, Dr. Rolon-Rivera, impartial
expert, Dr. Cirillo, and Dr. Weisbrod found physical limitations
consistent with the RFC as determined by the ALJ. (See id. at6
28-29, 62-67, 429-36, 459-66). As such, the Court concludes that
23
the ALJ properly accounted for Plaintiff’s obesity and his
decision that it does not impose limitations on Plaintiff’s
ability to perform work activities is supported by substantial
evidence. See Martin v. Comm’r of Soc. Sec., 369 F. App’x 411,
414-15 (3d Cir. 2010) (determining ALJ properly addressed
plaintiff’s obesity and findings were supported by substantial
evidence); see also Cruse v. Astrue, No. 09-1316, 2010 WL
1133423, at *3 n.15 (W.D. Pa. March 23, 2010) (finding ALJ
properly addressed obesity in evaluating medical evidence).7
3. Vocational Expert Testimony
Plaintiff also appears to challenge the ALJ’s reliance on
the vocational expert’s testimony and correspondingly, the ALJ’s
conclusion that Plaintiff can perform other jobs with his
limitations. At Step 5, the ALJ evaluates Plaintiff’s ability to
adjust to other work through consideration of Plaintiff’s RFC,
and “the vocational factors of age, education, and work
experience.” 20 C.F.R. § 416.960(c)(1). This other work must
exist in significant numbers in the national economy. Id.; 20
C.F.R. § 416.966(a). In making this evaluation, the regulations
permit the ALJ to rely upon the Medical-Vocational Guidelines,
7
Plaintiff cites a history of childhood health problems but
has failed to demonstrate that those impairments continued
during the relevant period or that they caused greater
functional limitations that those included in the RFC. Cf. 20
C.F.R. § 404.1527(c) (“You must provide medical evidence showing
that you have an impairment(s) and how severe it is during the
time you say that you are disabled.”).
24
which were promulgated by the Secretary of Health and Human
Services and which “establish, for exertional impairments only,
that jobs exist in the national economy that people with those
impairments can perform.” Schmidt v. Comm’r of Soc. Sec., No.
12-06825, 2013 WL 6188442, at *10 n.2 (D.N.J. Nov. 25, 2013); 20
C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(b) (hereinafter “App.
2”). Here, because the ALJ determined that Plaintiff suffered
exertional and non-exertional limitations, he properly obtained
testimony from a vocational expert, Dr. Gara. See 20 C.F.R.
§ 404.1566(e), § 416.960, § 416.969a; see also Sykes, 228 F.3d
at 273; Kuczewski v. Comm’r of Soc. Sec., 2013 WL 1007684, at *4
(D.N.J. March 12, 2013) (citing cases); Chater, 933 F. Supp. at
1279 (“The testimony of a vocational expert constitutes
substantial evidence for purposes of an ALJ’s decision. Here,
the expert indicated that 1,500 jobs within plaintiff’s
capacities exist in the Caribbean region. No more is required.”
(internal citations omitted)). Dr. Gara testified that a person
with Plaintiff’s limitations8 and “considering his age, education
and work experience,” Plaintiff would have to perform a
sedentary job of which Dr. Gara provided three examples:
8
These limitations are lifting and carrying 20 pounds
occasionally and 10 pounds frequently; sitting for 6 hours in an
8-hour day alternating every 2 hours; standing and walking for 2
hours in an 8-hour day; occasionally climbing stairs but never
stooping, crouching, kneeling, or crawling; avoiding exposure to
unprotected heights; and avoiding concentrated exposure to
gases, fumes, dust, and to extreme heat or cold. (R. 79.)
25
(1) stem mounter, DOT 692.685-206, with 1,100 regional jobs and
165,800 national jobs, (2) patcher, DOT 789.687-174, with 900
regional jobs and 165,800 national jobs, and (3) getterer, DOT
692.685-266, with 1,300 regional jobs and 165,800 national jobs.
(R. 30; see also id. at 79-81.)
Plaintiff lodges a general attack on the ability of the SSA
to rely on such data concerning the numbers of available
positions and insists that the SSA must prove that a specific
position is available for Plaintiff. That is contrary to the
regulations and caselaw, which have long recognized that an ALJ
may appropriately rely upon the testimony of a vocational expert
while utilizing the Medical-Vocational Guidelines as a
framework. Santise v. Schweiker, 676 F.2d 925, 927-28 (3d Cir.
1982).9 Moreover, the regulations permit the use of “job
information available from various governmental and other
publications,” including for example the Dictionary of
Occupational Titles (“DOT”), published by the Department of
Labor. 20 C.F.R. § 416.966(d); SSR 00-4p. However, contrary to
Plaintiff’s contention (see Opp. 4), “[i]t does not matter
whether--(1) Work exists in the immediate area in which you
live; (2) A specific job vacancy exists for you; or (3) You
9
See SSR 83-12 (“The adjudicator will consider the extent
of any erosion of the occupational base and access its
significance. . . . Where the extent of erosion of the
occupational base is not clear, the adjudicator will need to
consult a vocational resource.”).
26
would be hired if you applied for work.” 20 C.F.R. § 416.966(a);
see also Wafford v. Comm’r of Soc. Sec., No. 09-00805, 2010 WL
5421303, at *5 (S.D. Ohio Aug. 19, 2010) (“There is no
requirement that there are potential jobs available in the
immediate area where plaintiff lives, as long as there are jobs
available nationally and are not all concentrated in one
region.” (citing Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir.
1999))).
Plaintiff next appears to contend that the job requirements
of getterer, patcher, and stem mounter conflict with the ALJ’s
RFC determination inasmuch as they require exposure to gases.
(Opp. 9.) A stem mounter works on light bulbs by attaching wire
to a glass stem using a brush and carbon cement.10 A getterer
applies a chemical solution to lead wires used to make
incandescent lamps.11 A patcher covers wired electrical appliance
components with insulation by applying a type of adhesive.12
Neither the ALJ nor the vocational expert addressed whether the
carbon cement or chemical solutions applied by the stem mounter
or getterer would involve “concentrated exposure” to gases and
10
See DOT 725.684-018, https://www.oalj.dol.gov/LIBDOT.HTM
(last visited Feb. 5, 2014). Although the DOT numbers provided
by the vocational expert were different, the Court was able to
identify the positions based upon the job titles and
descriptions given by the vocational expert.
11
See DOT 725.687-022.
12
See DOT 723.687-010.
27
fumes, which Plaintiff must avoid according to his RFC. (See R.
25.) Notably, Plaintiff and his counsel did not question the
vocational expert about this seeming contradiction during the
hearing. (See R. 47.) However, the vocational expert testified
that these three jobs represented examples of positions that
Plaintiff could perform and did not constitute the only
positions available to him. (R. 81, 83.) Moreover, because there
is no suggestion that the adhesive utilized by a patcher
involves any type of gas or fume, and because it is sufficient
for the ALJ to identify at least one job that exists in
significant numbers, the Court finds that remand for this issue
is not necessary. See, e.g., Schmits v. Astrue, 386 F. App’x 71,
76 (3d Cir. 2010) (substantial evidence supported finding that
claimant could work as surveillance system monitor); Rutherford
v. Barnhart, 399 F.3d 546, 554-58 (3d Cir. 2005) (“As for the
other instances of claimed inconsistency, which relate to two
jobs identified by the expert with specified vocational
preparation classifications that render them beyond the ALJ's
limitation to unskilled work, they are simply not egregious
enough—either in number or in substance—to bring into question
the ALJ’s reliance on the expert testimony as a whole.”); see
also 20 C.F.R. § 404.1566(b).
Finally, Plaintiff seemingly asserts that the ALJ erred in
concluding that Plaintiff could perform other work because he
28
failed to account for Plaintiff’s illiteracy. The regulations
provide four education-related categories established by the
regulations: “high school graduate or more”; “limited or less”;
“marginal or none”; and “illiterate or unable to communicate in
English.” 20 C.F.R. § 404.1564 & App. 2. A person is considered
“illiterate if the person cannot read or write a simple
message.” 20 C.F.R. § 404.1564(b)(1). Education “is ascertained
by measuring the amount of any ‘formal schooling or other
training which contributes to [Plaintiff’s] ability to meet
vocational requirements,’ but evidence relating to test scores,
past work experience and responsibilities, and daily activities
also may be considered.” Santise, 676 F.2d at 927 n.5. “The term
education also includes how well you are able to communicate in
English since this ability is often acquired or improved by
education.” 20 C.F.R. § 404.1564(b). Here, in considering all of
Plaintiff’s severe impairments, the ALJ determined that
Plaintiff was a younger individual, with a high school education
and non-transferrable skills, who retained the RFC to perform
some light work. (R. 25-30.) Based on these findings, § 202.21
of the Medical-Vocational Guidelines would direct a finding of
“not disabled” before consideration of Plaintiff’s additional
limitations. (See R. 30); App. 2. Even if the ALJ had concluded
that Plaintiff were illiterate, both § 202.16 (light work) and
§ 201.23 (sedentary work) would still suggest a finding of “not
29
disabled,” especially because the work being considered is
unskilled benchwork.13 See id. As the vocational expert
indicated, these jobs involve assembly work and the materials
are provided to Plaintiff at his bench; the job descriptions do
not necessitate an ability to read or write. (R. 48.) Thus, the
Court would not remand on this point alone.
In any event, the record contains sufficient evidence
demonstrating that while Plaintiff may not read or write well,
he has sufficient abilities that he is able to communicate in
English. (See R. 29.) Plaintiff’s testimony that he has “trouble
with reading,” and also “can’t read and write that good” is
consistent with this conclusion. (R. 51, 52, 60 (emphasis
added); see also id. at 265 (“I can’t read good.”).)14 Moreover,
Plaintiff graduated from twelfth grade and was ranked 250/330
13
App. 2, § 202.00(g) (“While illiteracy or the inability
to communicate in English may significantly limit an
individual’s vocational scope, the primary work functions in the
bulk of unskilled work relate to working with things (rather
than with data or people) and in these work functions at the
unskilled level, literacy or ability to communicate in English
has the least significance. Similarly, the lack of relevant work
experience would have little significance since the bulk of
unskilled jobs require no qualifying work experience. The
capability for light work, which includes the ability to do
sedentary work, represents the capability for substantial
numbers of such jobs. This, in turn, represents substantial
vocational scope for younger individuals (age 18–49) even if
illiterate or unable to communicate in English.”).
14
Plaintiff also acknowledged in at least one form that he
is able to pay bills (R. 245), which suggests some ability to
read and write. (See also R. 399 (noting that Plaintiff handles
his own finances).)
30
students. (R. 83.) The few school records in evidence do not
mention an inability to read or write, though they do suggest
receipt of some special education services. (R. 281-84.) More
importantly, however, the social security record contains
several handwritten documents, written in the first-person,
which were completed by Plaintiff — indeed, he admitted to
completing application(s) for benefits — all of which undermine
his assertion that he is unable to read or write a simple
message. (See, e.g., R. 249, 267.) In light of this evidence,
the Medical-Vocational Guidelines, and the job descriptions
provided, the Court finds substantial evidence supporting the
ALJ’s decision.
31
IV.
CONCLUSION
For the reasons set forth above, the decision below is
AFFIRMED.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Date: February 11, 2014
32
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