RICHARDSON v. COMMISSIONER OF SOCIAL SECURITY
Filing
15
OPINION. Signed by Judge Renee Marie Bumb on 10/29/2013. (tf, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
LARRY RICHARDSON,
Plaintiff,
Civil No. 12-6422 (RMB)
v.
OPINION
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
APPEARANCES:
Robert Anthony Petruzzelli
Jacobs, Schwalbe & Petruzzelli, PC
Woodcrest Pavilion
Ten Melrose Avenue, Suite 340
Cherry Hill, NJ 08003
Attorney for Plaintiff
Amanda Lockshin
Elizabeth Rothstein
United States Attorney’s Office
c/o Social Security Administration
26 Federal Plaza, Room 3904
New York, NY 10278
Attorneys for Defendant
BUMB, UNITED STATES DISTRICT JUDGE:
Plaintiff Larry Richardson (the “Plaintiff”) seeks judicial
review pursuant to 42 U.S.C. § 405(g) of the final decision of
the Acting Commissioner of Social Security (the “Commissioner”)
denying his application for Disability Insurance Benefits
(“DIB”) and Social Security Supplemental Income (“SSI”). For the
reasons set forth below, the Court will vacate the decision of
the Commissioner and remand.
I.
Background
a) Procedural History
Beginning on July 23, 2008, Plaintiff filed applications
for DIB and SSI that alleged a disability onset date of March 2,
2007, due to Human Immunodeficiency Virus (“HIV”) infection,
other arthropathies, a torn ligament in his left knee with bone
deterioration, and Hepatitis C.
61, 122-128, 142-160).
(Administrative Record “R.” 58-
Plaintiff’s claims were denied on
February 3, 2009, and upon reconsideration on July 23, 2009.
(R. 58-61).
Plaintiff then filed a Request for Hearing before
an Administrative Law Judge (“ALJ”) on August 18, 2009 (R. 8486), and the hearing was held on May 28, 2011. (R. 25-57).
The
ALJ issued a decision denying Plaintiff’s application for
benefits on July 18, 2011. (R. 14-24).
Plaintiff subsequently
filed a Request for Review by the Appeals Council on September
19, 2011, (R. 7-10), and the Council denied that request on
September 14, 2012 (R. 1-6).
Thus, the decision of the ALJ
became the final decision of the Commissioner.
2
Plaintiff filed
his appeal of the final decision with this Court on October 12,
2012.
b) Hearing Testimony
At the ALJ hearing, Plaintiff was represented by counsel
and testified that he is a 48-year-old male with some high
school education. (R. 32-33).
Plaintiff has previously worked
in a slaughter house, seasonally in a farmhouse, as a laborer
for wood fabrication, and in temporary employment sorting mail.
(R. 33-35).
Plaintiff has Hepatitis C and HIV and first started
feeling pain in 2004 when he “stopped drinking and doing drugs.”
(R. 37).
Plaintiff has not had any other jobs since 2007 and
stated that he had to stop working as a mail sorter because he
could not “keep up with” the walking back and forth that the job
required. (R. 34—36).
He also stated that he suffers from
shortness of breath “all the time.” (R. 54).
Plaintiff
previously had a cerebral aneurism, and prior to the ALJ
hearing, he had a CAT scan and balance tests because of
dizziness; he testified that he takes medicine that makes him
dizzy and has caused him to pass out. (R. 38-40).
Plaintiff
also stated that he takes muscle relaxers, sleeping pills,
medication for arthritis, low testosterone, and medication for
HIV.
(R. 50-51).
These medications give Plaintiff dry mouth
and, as a result, he drinks a lot of water and needs to urinate
every fifteen to twenty minutes (R. 52-53).
3
Plaintiff stated that he is being treated by Dr. Denise
Scaringe-Dietrich (“Dr. Dietrich”) because his “whole body
burns.” (R. 36).
He also stated that his neuropathy causes him
to feel the sensation of “needles poking” him in his hands,
thumbs and throughout his body, which prevents him from using a
cane. (R. 41). With respect to his activities, Plaintiff stated
that he can walk three blocks at a slow pace and then has to
stop.
(R. 41).
Plaintiff takes eight muscle relaxers a day
because “everything just tightens up” when he sits too long and
that he can only sit for twenty minutes to half-an-hour. (R. 4546).
He can carry one bag of groceries. (R. 47-48).
On a
regular day, he wakes, showers, and fixes himself breakfast. (R.
52).
He tries to sleep an hour during the day as he testified
that he is unable to sleep at night. (R. 52).
Plaintiff
testified that he tries to read but gets dizzy and suffers from
low energy, forgetfulness and loss of concentration. (R. 53 &
55).
c) The ALJ’s Decision
Applying the requisite five-step analysis,1 the ALJ
concluded that Plaintiff met the insured status requirements of
the Social Security Act and had not engaged in substantial
gainful activity since March of 2007. (R. 16-18).
1
Described on pages 12-13 infra.
4
The ALJ
determined that Plaintiff has the severe impairments of
asymptomatic HIV, Hepatitis C, and neuropathy. (R. 16-18).
In
making this finding, the ALJ opined that Plaintiff’s other
complaints such as “pain in his bones” are “not adequately
supported by the medical record” and that the “record does not
substantiate the extent of the claimant’s allegations.” (R. 1617).
The ALJ stated that Plaintiff has had trouble with his
lower extremities and the medical record shows subjective
complaints of pain in 2008, 2010 and 2011, but that the record
“does not correlate the pain with positive objective tests.”
(R. 17).
Instead, such complaints were consistent with
peripheral neuropathy as diagnosed by Plaintiff’s most recent
treating physician. (R. 17).
Relying heavily on the findings of Dr. Jorge HernándezDenton, (R. 729-738), an impartial medical expert who reviewed
Plaintiff’s entire medical record, the ALJ noted that Dr.
Hernández-Denton’s opinion was given “great weight,” including
his findings that there was neither “objective medical evidence
support for the claimant’s complaints of generalized pain, upper
extremity pain, pulmonary restrictions or musculoskeletal
disorders” nor “support for the fibromyalgia diagnosis.” (R.
17).
The ALJ did, however, find that the objective evidence
showed osteopenia and, with respect to Plaintiff’s left knee
impairment, he allowed Plaintiff “the benefit of the doubt as to
5
the limitations the pain could cause.” (R. 17-18).
The ALJ
noted that Plaintiff’s spirometry results showed “mild
obstructive disease, which markedly improved with
bronchodilators” and, as such, Plaintiff was found not to have
any significant vascular or respiratory impairment. (R. 18).
Moreover, the ALJ found that while Plaintiff alleged that his
impairments cause him disabling pain, and Plaintiff began taking
“multiple painkillers” in October 20110, that “the treatment
record does not document such extreme pain.” (R. 18).
Based on the above, and relying primarily on the opinion of
Dr. Hernández-Denton, the ALJ determined that these impairments
did not meet with criteria for listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1.
Furthermore, based on the
above findings, and considering Plaintiff’s allegations of the
intensity, persistence and functionally limiting effects of his
pain, which the ALJ found to be unsubstantiated by objective
medical evidence, (R. 20), the ALJ determined that Plaintiff had
the following residual functional capacity:
He could lift and carry 10 lbs frequently and 20 lbs
occasionally;
He could sit for 6 hours in an 8 hour workday and
stand or walk for 2 hours in an 8 hour workday given
the option to alternate between positions at will; and
He does not have any restrictions to performing
repetitive hand movements. (R. 19).
6
The ALJ predicated his findings on the following medical
determinations:
Plaintiff’s primary podiatrist who noted that 80% of
Plaintiff’s walking pain had improved with orthotic
therapy. (R. 20).
The RFC assessment by Dr. Hernández-Denton as he found
Dr. Hernández-Denton’s opinion to be consistent with
the findings of “the consulting evaluator, by the
treating physicians, and by the record as a whole.”
(R. 20).
The findings of Dr. Soloway, who examined Plaintiff on
September 11, 2008, and determined that despite
Plaintiff’s complaints of pain, there were no
“constitutional symptoms, muscle weakness or shortness
of breath,” and instead found only “some joint
tenderness and low grade inflammation.” (R. 20).
The findings of Dr. Lightfoot that Plaintiff had no
neurological or musculoskeletal deficit; Dr. Amori who
noted normal muscle tone, strength, and reflexes; and
Dr. Judge, who noted no joint tenderness or
deformities. (R. 20-21).
Furthermore, with respect to the RFC, the ALJ relied
heavily on the findings of Dr. Khona, the consultative
orthopedist, who, the ALJ found, “provided the most detailed
examination of record” but did not find any “positive physical
findings despite a multitude of complaints.” (R. 21).
examined Plaintiff on January 22, 2009. (R. 463).
Dr. Khona
The ALJ
stated that:
Great weight is given to the findings and opinions of Dr.
Khona. Dr. Khona’s findings are consistent with the
findings by the treating physicians and with the medical
record as a whole, even more so, Dr. Khona provided the
most detailed examination. During Dr. Knona’s examination,
7
the claimant reported a functional capacity that directly
contradicts his allegations [given] as part of the
application. Greater weight is afforded to the information
claimant’s [sic] is given to Dr. Khona than to his
allegations because his current allegations are unsupported
by the medical evidence.
(R. 21).
The ALJ further found that on March 7, 2011, Plaintiff
reported overall improvement and held that Dr. Dietrich lacked
substantial findings; her opinion was given “little weight”
because it “is based on the claimant’s subjective complaints and
is not substantiated by the medical evidence of record.” (R.
22).
The ALJ also found that Plaintiff’s statements regarding
the “intensity, persistence and limiting effect of [his]
symptoms are not credible [and] [t]hey are inconsistent with the
. . . residual functional capacity assessment.” (R. 22).
After performing the RFC assessment, the ALJ determined
that Plaintiff was unable to perform any past relevant work. (R.
22).
Then, considering Plaintiff’s age, education, work
experience, and RFC as determined, the ALJ found that there were
jobs in significant numbers in the national economy that
Plaintiff could perform. (R. 22).
In making this finding, the
ALJ relied on a vocational expert (“VE”), who had been asked to
determine “whether jobs exist in the national economy for an
individual with the claimant’s age, education, work experience
and residual functional capacity.” (R. 23).
8
The VE found that
Plaintiff would be able to perform jobs in “Production
Occupations, which have an incidence of 31,460 jobs in the
Salem, New Jersey regional economy and 9,919,120 jobs in the
national economy.”
(R. 23).
Consistent with the VE’s testimony
and in consideration of other factors of age, education, work
experience, and RFC, the ALJ concluded that a Plaintiff was “not
disabled.”
II.
(R. 23).
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
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);
9
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.
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.,
10
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 ALJ applied the
correct legal standards. See Friedberg v. Schweiker, 721 F.2d
445, 447 (3d Cir. 1983); Sykes 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 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
11
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:
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
12
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).
III. Analysis
a) ALJ’s Finding of Severity at Step Two
Plaintiff first argues that the ALJ erred by not properly
considering Plaintiff’s fibromyalgia and myofascial spasms and
pain as “severe” impairments at step two of the Sequential
Evaluation Process.
The ALJ, however, did find in Plaintiff’s
favor at step two, holding that Plaintiff suffered from the
severe impairments of “asymptomatic HIV, hepatitis C and
neuropathy.” (R. at 16-18). Thus, “even if [the ALJ] had
erroneously concluded that some of [Plaintiff’s] other
impairments were non-severe, any error was harmless.”
13
Salles v.
Comm’r of Soc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir.
2007)(citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir.
2005)).
Thus, remand is not warranted on these grounds. See
Williams v. Comm’r of Soc. Sec., No. 12-5637, 2013 U.S. Dist.
LEXIS 118525, at *48 (D.N.J. Aug. 21, 2013)(finding that remand
was not warranted to reconsider the step two determination as
any error regarding a severe impairment determination was
harmless).
b) The Opinion of the Plaintiff’s Treating Physician
Plaintiff asserts that the ALJ improperly dismissed Dr.
Dietrich’s opinion that he is disabled for at least 12 months
and that Plaintiff “cannot work and can only ambulate with
difficulty due to pain.” (R. 709-28).
Dr. Dietrich’s clinical
evaluations were based on seeing the Plaintiff on several
occasions between October 17, 2010 and March 7, 2011. (Id.).
On
November 11, 2010, Dr. Dietrich diagnosed Plaintiff with leg
pain, neuropathy, low back pain, myofasical pain and found that
Plaintiff had work limitations with respect to standing,
walking, climbing and bending.
(R. 709-10).
Dr. Dietrich’s
notes from March 7, 2011 noted that Plaintiff reported pain as a
10 on a 10 point scale, though noted he was “not a good
historian.”
(R. 711-12).
Dr. Dietrich found that Plaintiff
appeared “mildly distressed due to pain” had decreased range of
14
motion in his ankles “due to spasm” and that his extremities
were “tender to palpation over the pretibial area and bilateral
peroneal area.” (R. 712-713).
Based on her exam she entered a
diagnosis of leg pain, arthritis, fibromyalgia, myofascial
spasm, and neuropathy. (R. 713).
Plaintiff argues that Dr. Dietrich’s evaluations are
supported by the evaluation of Dr. Lightfoot in 2008, who noted
abnormal findings of bone and joint pain as well as weakness and
limited activities of daily living. (R. 501).
In addition, Dr.
Lightfoot noted in July of 2010 that, while Plaintiff did not
have muscle weakness, he did suffer from neuropathic pain and
she recommended a change in Plaintiff’s occupation from his
prior work due to “chronic pain and peripheral neuropathy.”
274-277).
(R.
At that time, Dr. Lightfoot did not find any specific
limitations with respect to Plaintiff’s standing, walking,
lifting, or the like. (R. 276).
In her opinion, the ALJ relied most heavily on the findings
of Dr. Hernández-Denton and Dr. Khona.
As stated above, Dr.
Hernández-Denton never examined Plaintiff and instead did a onetime evaluation of his medical records, finding that, inter
alia, Plaintiff:
Could lift 10 lbs frequently and 20 lbs occasionally;
Could sit 6 hours in an 8 hour workday;
Did not need a cane to ambulate; and
Could use both hands frequently for reaching,
handling, and fingering.
15
(R. 729-734).
Similarly, Dr. Khona, who examined Plaintiff in
January of 2009, found that Plaintiff had normal upper and lower
extremities and that “claimant had no positive physical
findings,” even though “[h]e had a multitude of complaints of
aches and pains.” (R. 463-464).
An ALJ must consider every medical opinion and decide how
much weight to give the opinion. 20 C.F.R. § 404.1527(c).
The
ultimate decision about whether a plaintiff is disabled is
reserved for the Commissioner. 20 C.F.R. § 404.1527 (d) &
(d)(1). "[T]reating source opinions on issues that are reserved
to Commissioner are never entitled to controlling weight or
special significance." SSR-96-5p, 1996 SSR LEXIS 2; see also 20
C.F.R. § 404.1527(d)(3).
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).
The ALJ must also
consider the findings and opinions of state agency medical
consultants and other sources consulted in connection with ALJ
hearings. 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
16
treating physician's opinion.
Alexander v. Shalala, 927 F.
Supp. 785, 795 (D.N.J. 1995), aff'd per curiam, 85 F.3d 611 (3d
Cir. 1996).
"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 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).
There is certainly conflicting medical evidence in this
case, and, as stated above, where a conflict exists, the ALJ may
choose whom to credit, but must give reasons for discounting
rejected evidence.
Plummer, 186 F.3d at 429.
Plaintiff
correctly points out, however, that the Commissioner seeks to
bolster the ALJ’s determination by relying on medical evidence
not expressly considered by the ALJ – i.e., the reports of Dr.
Rampello and Dr. Golish. (Comm’r Br. at 11-12).
Because there
is no mention of the reports of Dr. Rampello or Dr. Golish by
the ALJ, this Court cannot hold that the ALJ relied on their
evaluations as substantial evidence in support of her findings.
See Pearson v. Barnhart, 380 F. Supp. 2d 496, 506 (D.N.J. 2005)
(stating that the court will not make factual determinations on
17
behalf of an ALJ where the ALJ fails to cite specific medical
facts).
While the ALJ cites Dr. Lightfoot’s findings as support for
her decision to discount Dr. Dietrich’s opinion (R. 20-21), she
fails to address Dr. Lightfoot’s findings which support Dr.
Dietrich’s findings – i.e., chronic pain, bone pain, and
limitations in daily living. (R. 277, 501).
Moreover, with
respect to Dr. Dietrich’s records, the ALJ incorrectly states
that “[o]n the last evaluation on the record, dated March 7,
2011, the claimant reported overall improvement.” (R. 21).
Instead, Plaintiff reported some improvement on January 31,
2011, (R. 714), and on March 7, 2011, the last recorded
evaluation, Plaintiff described his pain as “shooting” and a “10
on a 10 point scale.”
(R. 711-714).
Additionally, the ALJ
fails to discuss the fact that she relies heavily on less recent
medical records to substantiate her findings – e.g., Dr. Khona
last saw Plaintiff in January of 2009, whereas Dr. Dietrich made
her findings based on examining the Plaintiff over two years
later.
January 2009 findings, however, are not as probative of
2012 health.
See Egan v. Astrue, No. 10-5150, 2011 U.S. Dist.
LEXIS 149675, at *14 (D.N.J. Dec. 29, 2011)(finding that “2006
health data is not, as a general matter, probative of 2008
health.”).
18
The ALJ should re-visit these inconsistencies on remand and
more clearly state her reasoning for discounting the opinion of
Dr. Dietrich, if that is again her finding in light of her
examination of all relevant evidence.
2
See Williams, 2013 U.S.
Dist. LEXIS 118525, at *40 (finding that the ALJ erred by
failing to discuss all medical evidence that supported the
decision of claimant’s treating physician).
c) Plaintiff’s RFC and His Subjective Limitations
This Court will consider together Plaintiff’s arguments
that the ALJ failed to properly weigh all of Plaintiff’s
impairments in determining Plaintiff’s Residual Functional
Capacity ("RFC") and whether the ALJ properly discounted
Plaintiff’s testimony regarding his disabling pain and
limitations.
RFC is what a person is still able to do despite the
limitations caused by his impairments. 20 C.F.R. §§ 404.1545(a)
and 416.945. Social Security Ruling 96-8p (“SSR” 96-8p),
dictates that the RFC assessment is a "function-by-function
2
Based on the record as a whole, the ALJ may very well
determine again that Dr. Dietrich’s findings are belied by the
objective medical evidence. That said, remand is warranted,
nevertheless, as it is the duty of the ALJ to consider every
medical opinion, 20 C.F.R. § 404.1527(c), support her
conclusions with substantial evidence and give clear reasons why
she rejects any particular evidence. See Plummer, 186 F.3d at
429.
19
assessment based upon all the relevant evidence of an
individual's ability to do work related activities." SSR 96-8p.
In order to meet the requirements of 96-8p, the ALJ "must
'specify the evidence that he relied upon to support his [or
her] conclusion.'" Pearson, 380 F. Supp. 2d at 506 (citation
omitted). Moreover, "the ALJ's residual functional capacity
assessment must ‘be accompanied by a clear and satisfactory
explanation of the basis on which it rests.'" Id. (quoting
Fargnoli, 247 F.3d at 41).
In addition,
[T]he ALJ is required to "discuss the individual's
ability to perform sustained work activities in an
ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day for 5 days a week, or an
equivalent work schedule), and describe the maximum
amount of each work-related activity the individual
can perform based on the evidence available in the
case record." SSR 96-8p, 1996 SSR LEXIS 5. Moreover,
such a discussion must be made by the ALJ in narrative
form, "citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily
activities, observations)." SSR 96-8p, 1996 SSR LEXIS
5.
Pearson, 380 F. Supp. 2d at 505-06. Here, Plaintiff argues that
the ALJ failed to engage in a proper function-by-function
assessment that considered both Plaintiff’s severe and nonsevere impairments, including fibromyalgia, myofascial pain,
osteopenia, osteoarthritis in the knees, and breathing problems.
Plaintiff further argues that the ALJ failed to consider
20
sustained work activities as required – i.e., 8 hours a day, 5
days a week.
First, for reasons stated above, with respect to the ALJ’s
finding on the medical records, this Court will remand as to the
Plaintiff’s RFC determination.
On remand, the ALJ may give
different weight to the findings of Plaintiff’s treating
physician, which would, in turn, impact the RFC.3
For purposes
of this analysis, this Court finds that, because there are
outstanding issues to address on remand with respect to the
ALJ’s treatment of the treating physician’s report, the ALJ will
also need to re-examine the RFC determination.4
Weinsteiger v.
Astrue, 09-1769, 2010 U.S. Dist. LEXIS 5971, at *24 (E.D. Pa.
Jan. 5, 2010)(“In light of the court's recommendation that the
case be remanded to the Commissioner for further consideration
of the treating physician evidence, this court further
recommends that upon remand, the Commissioner reevaluate
plaintiff's RFC.”).
3
Dr. Dietrich found that Plaintiff had limitations as to
standing, walking, bending, etc. (R. 710).
4
While the ALJ did not expressly state whether Plaintiff
could perform the RFC functions on a regular and continuing
basis, this alone is not a basis for remand. Because “the RFC
is ‘the individual's maximum remaining ability to do sustained
work activities in an ordinary work setting on a regular and
continuing basis,’ SSR 96-8p, 1996 SSR LEXIS 5, there [i]s no
need for the ALJ to make a separate finding” where the decision
is supported by substantial evidence. Bogar v. Comm'r of Soc.
Sec., No. 08-1871, 2009 U.S. Dist. LEXIS 51923, at *33 n.11
(D.N.J. June 18, 2009).
21
Related to the function-by-function argument is Plaintiff’s
contention that the ALJ failed to adequately consider
Plaintiff’s subjective complaints.
More specifically, Plaintiff
points to record evidence that supports his contention of pain
and weakness, including the report of Dr. Lightfoot (R. 501).
He also points to an absence in the ALJ’s opinion of any
discussion regarding the side-effects of Plaintiff’s
medications, his hand pain, and his need to use the bathroom
frequently.
"An ALJ must give serious consideration to a claimant's
subjective complaints of pain, even where those complaints are
not supported by objective evidence." Mason v. Shalala, 994 F.2d
1058, 1067 (3d Cir. 1993) (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.
This Court agrees with Plaintiff that the ALJ failed to
adequately discuss Plaintiff’s subjective complaints.
Even
though Plaintiff testified during the hearing that he could not
22
sit too long because “everything just tightens up and then I’m
really no good for nothing [sic]” and that, as a result, he
could only sit for twenty minutes to half-an-hour, (R. 45-46),
the ALJ, without explanation, stated that Plaintiff “has no
difficulties sitting and can sit for long periods of time.” (R.
20).
Additionally, the ALJ’s opinion is devoid of any discussion
of the side-effects of Plaintiff’s medications – particularly
dizziness.
This is puzzling in light of the fact that the ALJ
and Plaintiff discussed his dizziness at length during the
hearing, (R. 30, 39-41, 46-48, 51-53), yet there is no mention
of this side-effect in the ALJ’s opinion whatsoever.
Moreover, the ALJ summarily dismissed Plaintiff’s
statements concerning the “intensity, persistence and limiting
effects” of his pain as “not credible” because “[t]hey are
inconsistent with the above residual functional capacity.” (R.
22).
Although this conclusion may ultimately be reached under a
more thorough analysis, the ALJ failed to adequately address the
conflicting evidence in the record, including the findings of
Dr. Dietrich and Dr. Lightfoot.
It is the responsibility of the
ALJ to weigh the evidence and make determinations on
contradicting evidence.
Rodriguez-Pagan v. Comm’r Soc. Sec.,
No. 10-4273, 2011 U.S. Dist. LEXIS 105425, at *45-46 (D.N.J.
Sept. 16, 2011).
23
If the ALJ changes her determinations with respect to Dr.
Dietrich’s report on remand and Plaintiff’s subjective
complaints, including his inability to sit for prolonged periods
and his medication side-effects, which were not discussed by the
ALJ, her analysis may be significantly affected.5
Thus, this
Court remands this case for further discussion on these issues
as related to Plaintiff’s RFC and the credibility of his
subjective limitations.
See Cotter v. Harris, 642 F.2d 700, 705
(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.”).
d) Vocational Evidence
At step five of the required analysis, the ALJ is required
to demonstrate that the claimant is capable of performing other
available work in order to deny a claim of disability. 20 C.F.R.
§ 404.1520(f).
In this matter, the ALJ consulted a Vocational
Expert (“VE”), who completed interrogatories after reviewing the
5
The reverse is also true; again, the ALJ may ultimately
determine that Plaintiff is not disabled after considering
Plaintiff’s subjective complaints and medication side-effects in
formulating Plaintiff’s RFC and completing the requisite fivestep analysis.
24
evidence of record. (R. 323-28).
The VE was posed a
hypothetical that described a younger individual, with a limited
education, Plaintiff’s work experience, and an RFC as determined
by the ALJ. (R. 325).
The VE found that Plaintiff would be able
to perform jobs in “Production Occupations, which have an
incidence of 31,460 jobs in the Salem, New Jersey regional
economy and 9,919,120 jobs in the national economy.”
(R. 23).
Consistent with the VE’s testimony and in consideration of other
factors of age, education, work experience, and RFC, the ALJ
concluded that a Plaintiff was “not disabled.”
(R. 23).
Plaintiff argues that ALJ erred by relying on an erroneous
assumption made by the VE – i.e., that the Plaintiff would be
able to alternate positions of sitting and standing at will, (R.
325), and that there exists a large number of jobs that permit a
sit/stand option at will because SSR 83-12 states, in relevant
part, that “[u]nskilled types of jobs are particularly
structured so that a person cannot ordinarily sit or stand at
will.”
Plaintiff reads SSR 83-12 in combination with SSR 00-4,
which provides that “SSA adjudicators may not rely on evidence
provided by a VE . . .
if that evidence is based on underlying
assumptions or definitions that are inconsistent with our
regulatory policies or definitions.”
Thus, Plaintiff argues,
the VE’s determination that there are nearly 10 million jobs
that Plaintiff can perform with a sit/stand option is in
25
conflict with Agency’s ruling that this is an unusual
circumstance and, thus ALJ cannot rely on it.
This Court finds that remand is not warranted simply
because the VE found there were jobs in significant numbers that
Plaintiff could perform even with the need for a sit/stand
option.
See Martin v. Barnhart, 240 Fed. Appx. 941, 945-46)(3d
Cir. 2007)(finding that an ALJ’s step five determination was
supported by substantial evidence where a VE was consulted who
determined there existed significant jobs even with a sit/stand
limitation).
That said, however, if the RFC determination
changes on remand, the ALJ will then need to reexamine her
conclusion as to whether work exists in significant numbers in
the national economy given Plaintiff’s impairments, age,
education and past work experience.
See Sylvester v. Astrue,
No. 10-1012, 2011 U.S. Dist. LEXIS 11100, *46-48 (W.D. Pa. Feb.
4, 2011)(discussing the need for reexamination at step five if
the ALJ changed the RFC determination on remand).
Then, the ALJ
would need to post a hypothetical to the VE that reflects
Plaintiff’s impairments as supported.
IV.
Id. at *47-48.
Conclusion
While the Plaintiff avers that an award of benefits is
warranted without remand, for the reasons stated above, this
26
Court will vacate the Commissioner’s final decision and remand
for further proceedings consistent with this Opinion.
An
accompanying Order will issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated October 29, 2013
27
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