BRESLIN v. COMMISSIONER OF SOCIAL SECURITY
Filing
16
OPINION. Signed by Chief Judge Jerome B. Simandle on 3/10/2014. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
PATRICIA BRESLIN,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil No. 13-1190
v.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
OPINION
Defendant.
APPEARANCES:
Robert A. Petruzzelli, Esq.
Jacobs, Schwalbe & Petruzzelli, PC
Woodcrest Pavilion
Ten Melrose Avenue
Suite 340
Cherry Hill, NJ 08003
Attorney for Plaintiff
Jason P. Peck, Special Assistant U.S. Attorney
c/o Social Security Administration
Office of the General Counsel
26 Federal Plaza
Room 3950
New York, NY 10278
-andThomas C. Gray, Esq.
Social Security Administration
Office of the General Counsel
26 Federal Plaza
Room 3904
New York, NY 10278
Attorneys for the Commissioner of the Social Security
Administration
SIMANDLE, Chief Judge:
I.
INTRODUCTION
This matter comes before the Court on Plaintiff Patricia
Breslin’s appeal of the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying her
application for Disability Insurance Benefits under Title II of
the Social Security Act (“Act”).
Plaintiff argues that the Administrative Law Judge (“ALJ”)
improperly evaluated her Residual Functioning Capacity and failed
to consult a vocational expert. The Court holds that substantial
evidence supported the ALJ’s decision, particularly his finding
that Plaintiff lacked credibility about her substance abuse, and
that a vocational expert was not required because the ALJ did not
reach step five of the sequential analysis. The Court will affirm
the Commissioner’s decision.
II.
BACKGROUND
A. Procedural History
Plaintiff filed an application for disability benefits on
September 2, 2010 alleging an onset of disability on September 30,
2009 due to lumbar degenerative disc disease, schizoaffective
disorder, and mood disorders. (R. at 59.) Her application was
denied initially and on reconsideration. (R. at 68, 82.) Plaintiff
then requested a hearing before an Administrative Law Judge
(“ALJ”), which occurred on March 6, 2012. (R. at 88, 29.) The ALJ
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issued an opinion denying her application. (R. at 10-28.)
Plaintiff requested and was denied review by the Appeals Council.
(R. at 7, 1.) The ALJ’s March 6, 2012 Opinion then became the
Commissioner’s final decision. Plaintiff timely filed this action.
This Court has jurisdiction to review the Commissioner’s decision
under 42 U.S.C. § 405(g).
B. Plaintiff’s Statements
Plaintiff testified at her hearing that she is a 47-year-old
high school graduate. (R. at 33.) She attended St. Anne’s Business
School for two years after high school. (R. at 56.)
She worked as a server at various coffee shops and
restaurants. (R. at 35.) When asked if she “ha[d] difficulty
performing those jobs,” she said “no” and did not remember why she
left the server jobs. (R. at 35.) When asked whether it was
“accurate” that she “found it difficult to work as a server,
especially during the rushes when there were a lot of people that
came into the restaurant,” she responded “[y]es, I can’t be around
a lot of people due to my disability.” (R. at 36.)
After working as a server, she obtained her Certified Nursing
Assistant (CNA) license. (R. at 33-34.) She worked as a CNA for
eight months in 2000 at the Victoria Manor Nursing Home. (R. at
34.) She left that position because she “was having an abusive
relationship” and “my boyfriend used to bring my kids to my job
and . . . my boss said it would better if . . . I didn’t work
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there anymore.” (R. at 34.) When asked whether she also left the
job because she was “having difficulty dealing with the fact that
patients there would pass away,” she responded “[t]hat’s true,
too.” (R. at 35.) She did not work anywhere else as a CNA. (R. at
35.)
In 2001, she stayed home with her children. (R. at 36.) In
2002, she worked for Super Fresh Food markets in the deli
department. (R. at 36.) When asked why she left that job, she
responded that “[a]gain, my boyfriend I had at the time was
abusive and I had to -- it was between me and my boss that we said
. . . we would end it at this.” (R. at 37.) When told that she had
previously mentioned that she “left that job during the summertime
because of the amount of people that would come in,” she
responded, “yes, it was all -- the people, I can’t work around a
lot of people.” (R. at 37.)
After Super Fresh, she worked as an assistant in a pharmacy.
(R. at 37.) When asked whether she had any difficulty working as a
pharmacy assistant, she said “no” and that she left the job
because she “just quit.” (R. at 37.) When asked whether it was
“true” that she was “having difficulty following instructions and
didn’t understand a lot of the procedures and the job was too
difficult,” she responded “yes” and clarified that she “left
because I just quit because I knew that I was having problems with
concentrating.” (R. at 38.)
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She also made hoagies seasonally at a Richard Baneli store
and worked as a cashier for Family Dollar through 2009. (R. at
38.) She left her employment with Richard Baneli in September 2009
and has not worked since then because “I’ve had deep depression.
My back went out. I have schizophrenia.” (R. at 38.) She also left
Richard Baneli because “there were too many people and I can’t be
around a lot of people like that.” (R. at 39.)
She received medications, but no counseling, from Cape
Counseling. (R. at 39.) She did not notice any improvement with
the medications. (R. at 40.) In 2010, she became suicidal and was
hospitalized for one week. (R. at 41.) When the ALJ questioned her
about drug use indicated in the records from that hospital visit,
she testified that she “tried to commit suicide because I had
eight years clean and I relapsed that one day.” (R. at 53.) She
also attempted suicide in 1997. (R. at 41.)
During a short period in 2011, her son, uncle, aunt, and
children’s father all died; she was “devastated” and has not
recovered. (R. at 42.)
In 2010, she began experiencing back pain, which affects her
right leg. (R. at 43.) She takes medication for her back pain and
it sometimes helps. (R. at 52.)
Plaintiff also has asthma and shortness of breath due to
chronic obstructive pulmonary disease (“COPD”), which makes it
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“really hard for [her] to walk.” (R. at 44.) She has a breathing
machine to treat the COPD. (R. at 44.)
She testified that, after 15 minutes of standing, her back
“really hurts” and she must rest for 20 minutes. (R. at 45.) She
cannot walk further than half a block because of back pain and
because “I can’t catch my breath and I have trouble breathing.”
(R. at 45.) After sitting for 20-25 minutes, she needs to move and
needs a 15-minute break before sitting again. (R. at 46.) Her most
comfortable position is sitting in her kitchen chair. (R. at 51.)
Her hands get numb sometimes, but she has not mentioned this
problem to a doctor. (R. at 46.) She does not drive, has never
driven, and does not have a license. (R. at 46.) She travels by
fare-free bus to her appointments. (R. at 47.)
Her various medications cause shakiness, but no other side
effects. (R. at 47.) She wakes up at night after only four hours
of sleep because of back pain and then she is only able to sleep
another 90 minutes. (R. at 47.) She takes a 90-minute nap during
the day. (R. at 48.)
She has concentration problems. (R. at 49.) Sometimes “I just
like stare at the space and then I . . . forget what I’m looking
at.” (R. at 49.) In her benefits application, Plaintiff wrote that
she cannot follow written instructions because she gets
distracted. (R. at 207.)
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She lives alone and watches television during the day. (R. at
48.) She “do[es]n’t want to be around anybody” and “when it’s
really windy out, I don’t go outside because I am afraid
something’s going to fall on my head.” (R. at 50.) In her benefits
application, Plaintiff wrote that she cannot socialize or be
around people, she wants to be alone, she does not want to leave
her home, she does not answer her phone, and she has no ambition.
(R. at 203, 219, 237, 240, 244.)
She testified that she does no chores and that a friend helps
with cooking, cleaning, dishes, and laundry. (R. at 50.) In her
disability application, Plaintiff wrote that she sometimes needs
reminders to shower, she prepares frozen meals for herself daily,
and she does laundry when she really needs it. (R. at 204.) In
terms of her ability to care for personal needs, Plaintiff wrote,
“I can do everything but often have no desire to bathe, brush my
teeth, do my hair, put on make up, or even get dressed.” (R. at
219.) She said a friend calls her to make sure she takes her
medicine. (R. at 226.)
She sees a psychiatrist every two months for medication
management. (R. at 51.) She wanted a therapist and she spoke with
someone at Cape Counseling, but she stopped “because when she
would ask me questions, I would start crying and I couldn’t -- get
it out what I was trying to say.” (R. at 51.) At the hearing, she
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testified that her depression level was eight on a scale from one
to ten. (R. at 51.)
Aside from the one-time relapse in 2010, Plaintiff testified
that she is sober. (R. at 53.) She does not participate in
sobriety programs. (R. at 54.) She reduced her cigarette
consumption from one-and-a-half packs per day to one-half pack per
day. (R. at 54.)
She also takes medication for Hepatitis C and says the
treatment is “going fine.” (R. at 53-54.)
The state pays for her housing and, before she had her
apartment, she was homeless for one month. (R. at 55.)
C. Medical History
1. Plaintiff’s Diagnoses
Plaintiff has been diagnosed with degenerative disc disease
of the lumbar spine, major depressive disorder, asthma,
schizoaffective disorder, panic disorder with agoraphobia,
obesity, COPD, lumbar radiculopathy, hypertension, Hepatitis C,
and cocaine addiction. (R. at 287, 341, 396, 416, 457, 486, 51516, 518, 540, 608.)
2. Mental Health
On March 15, 2010, Plaintiff sought help from Cape Counseling
Services complaining of “crying often,” “racing thoughts,” and
“stressed out, snapping out at people, heart palpitations,
anxious, [history] of suicidal thoughts.” (R. at 566.) One care
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provider noted that Plaintiff “is anxious, tearful at times.” (R.
at 568.) A doctor noted that Plaintiff said she suffered from
mild-moderate anxiety and that stress aggravates her anxiety. (R.
at 404.) On that visit, Plaintiff said that she “[s]tarts job in
May, not worried about work at all.” (R. at 566.)
Dr. Charles Dick prescribed her various psychiatric
medications, and saw Plaintiff for medication
assessment/monitoring approximately every three months. (R. at
536.)
3. Back Pain
On May 4, 2010, Plaintiff went to Cape Regional Medical
Center and the triage nurse noted that her chief complaint was
“back pain now so bad going down both legs H[istory] of same had
epidural 2 weeks ago no improvements reports ran out of pain
meds.” (R. at 326.) On August 7, 2009, Plaintiff went to the Cape
Regional Medical Center complaining that her back “just went out”
while she was getting out of the shower. (R. at 285.) On February
4, 2010, Plaintiff went to Cape Regional Medical Center again
complaining of “aching, sharp and shooting” back pain. (R. at
291.) An exam revealed that her lower back was tender and painful
with limited range of motion. (R. at 292.)
4. Substance Abuse
Plaintiff was hospitalized in July of 2010 and admitted to
cocaine abuse; as her hospitalization progressed, her mood
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improved and there were no significant behavioral issues. (R. at
349-350.) While hospitalized, she told a doctor that her stressors
included her recent relapse on cocaine and said, “‘I used a bag a
day before admission after being sober for 8 yrs.’” (R. at 352.)
When she was admitted, her Global Assessment of Functioning
(“GAF”)1 score was 10. (R. at 368.) When she was discharged, her
GAF score was 60. (R. at 580.) Notes from an August 9, 2010
examination indicated improvements in Plaintiff’s mood, impulse
control, sleep, and appetite. (R. at 540.)
5. Doctors’ Assessments
Dr. Charles Dick at Cape Counseling met with Plaintiff every
few months to monitor her medications. On May 24, 2011, he wrote
“mem/conc fair; speech coherent, goal direction; no ah, vh, si,
hi; affect/mood guarded; r/j fair.” (R. at 532.) His notes on
March 29, 2011, December 14, 2010, and October 26, 2010 were
identical except he noted that her affect/ mood was “anxious.” (R.
at 533, 537, 538.) On September 13, 2010, Dr. Dick noted
“affect/mood=anxiety.” (R. at 539.) His notes on January 27, 2011
1
“The GAF scale ranges from 0 to 100 and indicates a clinician's
judgment of a patient's overall symptom severity and functioning
level. A GAF of 51–60 indicates a person with moderate symptoms or
moderate difficulty in social, occupation, or school functioning.
A GAF of 61–70 indicates a person with some mild symptoms or some
difficulty in social, occupational, or school functioning, but who
is generally functioning well and has some meaningful
interpersonal relationships.” Williams v. Comm'r of Soc. Sec.
Admin., Civ. 12-5637, 2013 WL 4500335, at *6 n.1 (D.N.J. Aug. 21,
2013) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS, 32 (4th ed., 2000)).
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were also identical except he noted that her affect/mood was
“depressed.” (R. at 534.) On August 9, 2010 and July 27, 2010, he
noted her affect/mood was “positive” and that she had a history of
cocaine addiction. (R. at 540.) Essentially, Dr. Dick consistently
found that Plaintiff’s memory and concentration were fair and her
speech was coherent and goal directed. Her affect and mood varied
between depressed, anxious, guarded, and positive.
On October 26, 2010, Dr. Joseph Michel, a medical consultant
for the New Jersey Division of Disability Determination, opined
that Plaintiff could lift twenty pounds occasionally, ten pounds
frequently and sit for six hours in an eight-hour workday. (R. at
126.) He determined that Plaintiff had no postural, manipulative,
communicative, or visual limitations. (R. at 127-129.) He found
that she did not have environmental limitations, except that she
should avoid concentrated exposure to fumes, odors, dusts, gases,
and poor ventilation due to her asthma. (R. at 429.)
Dr. Seifer, a licensed psychologist, conducted a consultative
medical examination on November 30, 2010. Plaintiff denied any
history of alcohol and drug abuse. (R. at 485.) Dr. Seifer noted
that Plaintiff “had some difficulty following the conversation due
to her circumstantial thinking.” (R. at 485.) He found that her
attention was adequate, but her concentration was impaired. (R. at
485.) Plaintiff told Dr. Seifer that she has feelings of paranoia:
“I think cops are breaking into my house. I see shadows. I have
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heard my dead brother talking to me at night: everything’s gonna
be alright.” (R. at 485.) Dr. Seifer found that her GAF score was
50. (R. at 484-486.) He concluded that Plaintiff’s
“moderate/severe limitations are due to a combination of the
mental and physical status and are enduring.” (R. at 486.) He
noted that Plaintiff can function independently and “can handle
her finances, should be able to continue to do so.” (R. at 48586.)
Dr. Nenuca Bustos, a medical consultant for the New Jersey
Division of Disability Determinations, examined Plaintiff on
December 15, 2010 and wrote that Plaintiff “lives alone
independently. Takes care of personal needs. Able to prepare
simple meals, do laundry, go out alone, use public transportation,
shop for necessities, handle her money, keep her appointmen[ts] .
. . able to follow simple instructions.” (R. at 529.) Dr. Bustos
noted “memory/concentration fair. Speech coherent, goal directed.”
(R. at 529.) Dr. Bustos noted that Plaintiff “reports no friends,
does not socialize.” (R. at 529.) Dr. Bustos found that Plaintiff
suffered mild restriction of her daily living activities; moderate
difficulties in maintaining social functioning; moderate
difficulties in maintaining concentration, persistence, or pace;
and one or two episodes of decompensation. (R. at 523.) Dr. Bustos
concluded, “severity of [Plaintiff]’s mental impairment imposes
some limitations in her functioning but not to the degree of
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severity that prevents [her] from living independently and still
allowing [her] to retain her capacity to understand, remember and
follow simple instructions, make simple decisions and do simple,
work related mental activities.” (R. at 529.)
On March 29, 2011, Dr. Joshua Weisbrod, a medical consultant
for the New Jersey Division of Disability Determination, noted
that Plaintiff had “[n]o problems with personal care.” (R. at
575.) He concluded that she had the “ability to perform a full
range of light work.” (R. at 575.)
On March 31, 2011, Dr. Joseph Wieliczko noted Plaintiff “is
oriented, speech is normal, psychotic features (which is not
supported by the TP records and is consistent with cocaine use) .
. . cognitive functioning is adequate . . . .” (R. at 576.) He
concluded that Plaintiff “was less than truthful when asked about
her drug/alcohol history . . . .” (R. at 576.)
Dr. Andrew Alloy examined Plaintiff on June 11, 2011,
diagnosed her with Hepatitis C, recommended a follow-up visit to
consider new medication, and found no problems with her heart,
lungs, abdomen, and bowels. (R. at 597.) When Dr. Alloy saw
Plaintiff on May 4, 2011, she denied any history of alcohol use.
(R. at 599.)
D. ALJ’s Decision
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The ALJ found that Plaintiff had a disability but, because
substance abuse disorders materially contributed to the disability
determination, Plaintiff was not disabled under the Social
Security Act.
The ALJ found that Plaintiff met insured status requirements
through March 31, 2012, had not been engaged in substantial
gainful activity since September 30, 2009, and had the following
severe combination of impairments: degenerative disc disease of
the lumbar spine, asthma, hepatitis C virus, schizoaffective
disorder, major depressive disorder, panic disorder with
agoraphobia, and polysubstance abuse. (R. at 15-16.) The ALJ also
noted that Plaintiff suffered from hypertension, palpitations, and
foot calluses, but he found that those impairments were not severe
because there was no evidence that they limited her ability to do
work-related activities. (R at 16.) He found that this combination
of disabilities met or equaled listed impairments. (R. at 19.)
He recounted visits to the emergency room in which Plaintiff
complained of severe low back pain, was observed to walk with a
slight limp, and had limited and painful range of motion of her
lumbar spine. (R. at 16.) He summarized Plaintiff’s visit to Dr.
Alloy, in which she was diagnosed with Hepatitis C. (R. at 19.) He
noted Plaintiff’s complaints of seeing shadows, hearing her dead
brother speaking to her, and suffering panic attacks. (R. at 19.)
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The ALJ found that Plaintiff “had moderate restriction of
activities of daily living; marked difficulties in maintaining
social functioning; marked difficulties in maintaining
concentration, persistence, or pace; and she had one or two
episodes of decompensation, each of extended duration.” (R. at
20.)
He found, however, that substance abuse contributed
materially to Plaintiff’s disability. He gave “great weight” to
the assessments of Drs. Michel, Weisbrod, Wieliczko, and Bustos.
(R. at 17, 19-20.) He noted that Dr. Michel opined that Plaintiff
could lift and carry twenty pounds occasionally, ten pounds
frequently, sit for six hours in an eight-hour workday, stand/walk
for six hours in an eight-hour workday, and has no postural or
manipulative limitations. (R. at 17.) He summarized Dr. Bustos’
findings, including her opinion that Plaintiff “retains the
capacity to understand, remember and follow simple instructions,
make simple decisions, and do simple work-related mental
activities.” (R. at 19.) The ALJ specifically noted that “Dr.
Wieliczko . . . reported that the claimant was less than truthful
about her drug/alcohol history, . . . and [Dr. Wieliczko] noted
that claimant’s psychotic features were not supported by treating
physician’s records, but rather consistent with cocaine use.” (R.
at 20.)
15
The ALJ found that Plaintiff was “not credible regarding her
alcohol and cocaine abuse.” (R. at 20.) He noted that she “denied
having a history of alcohol or cocaine use to Dr. Seifer and when
seen at the emergency room in February 2010; and she reported to
Dr. Bhamidipati that she had stopped drinking alcohol in 2009; but
in March 2010 she had reported that she rarely drank alcohol and
that she had not used cocaine in more than ten years.” (R. at 20
(internal citations omitted).) He contrasted that evidence with
information that “on July 14, 2010 she reported having a chronic
history of alcoholism and seizures and she was requesting
inpatient rehabilitation.” (R. at 20.)
The ALJ emphasized evidence about the impact of Plaintiff’s
substance abuse. He noted that “[o]n July 20, 2010, the claimant
was hospitalized due to suicidal ideation, and her GAF was
estimated to be 10. At the time of admission, she admitted using
cocaine; however, by the time of discharge on July 23, 2010, just
a few days later, she was free of the effects of cocaine, and her
mood had improved and her GAF score had risen to 60 . . . .” (R.
at 20.) He also noted that, when Plaintiff was seen in August
2010, she reported that her mood, appetite, impulse control, and
sleep had all improved. (R. at 20.) Treatment notes from December
2010, several months later, indicate that her mood was stable, and
she had no unusual anxiety or evidence of depression. (R. at 20.)
16
The ALJ noted that “when the claimant filed her supplemental
security income application through teleclaim, it was noted that
the claimant had no difficulty with understanding, coherency, and
concentration and was able to answer all questions asked.” (R. at
22 (citing R. at 164).) He also noted that treatment notes from
Cape Counseling Services indicate that, in March 2010, Plaintiff
reported that she would start a job in May and that she was not
worried about work at all. (R. at 22.)
He concluded that “the claimant’s reported restrictions are
not fully persuasive to the extent alleged, when considered with
the totality of the medical evidence of record” and that “the
reports of the treating and examining physicians provide
substantial evidence that the claimant’s impairments, without
[drug & alcohol abuse], do not impose such severe limitations on
her functional capacity as to preclude the performance of all work
activity.” (R. at 23.)
The ALJ concluded that “[i]f the claimant stopped the
substance use, . . . the claimant’s medically determinable
impairments could reasonably be expected to produce the alleged
symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are
not credible to the extent they are inconsistent with the residual
functional capacity assessment . . . .” (R. at 22.)
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He found that, without substance abuse, “the claimant
demonstrates a mild degree of limitation in the activities of
daily living area of functioning; a mild degree of limitation in
the social functioning area of limitation; a moderate degree of
limitations in the concentration, persistence and pace area of
functioning.” (R. at 22.) The ALJ explained that “‘moderate’ means
the claimant can perform these functions at a competitive level on
a regular and sustained basis.” (R. at 22.) He found that the
evidentiary record did not indicate that Plaintiff experienced
repeated episodes of decompensation of extended duration, that a
minimal increase in mental demands or changes in her environment
would cause decompensation, or that Plaintiff could not function
outside of a highly supportive living arrangement. (R. at 22.)
He concluded that if Plaintiff “stopped the substance abuse,
the claimant would not have an impairment or combination of
impairments that meets or medically equals any of the impairments
listed in [the code of federal regulations].” (R. at 21.)
He defined her residual functioning capacity (“RFC”): “If the
claimant stopped the substance use, the claimant would have the
residual functional capacity to perform light work . . . except
she must avoid concentrate exposure to environmental irritants,
and she cannot perform food service work due to her hepatitis. In
addition, she is limited to unskilled tasks and to goal-oriented
rather than production-paced tasks and she requires a stable
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workplace with few, if any changes of setting, processes and
tools.” (R. at 21.)
He noted Plaintiff’s past relevant work as a cashier, the
classification of that position as “unskilled, light work,” and
held that Plaintiff could perform this job. (R. at 23.)
He concluded that Plaintiff was not disabled.
E. Plaintiff’s Arguments
Plaintiff asks the Court to reverse the Commissioner’s final
Order of “no disability” or to remand this case. She challenges
the Commissioner’s findings at steps four and five of the
disability-determination process. Plaintiff argues that the ALJ
failed to properly evaluate her RFC by: ignoring limitations
associated with her myriad medical problems; failing to define
“goal-oriented” versus “production-paced”; failing to properly
weigh Plaintiff’s testimony and evidence from her treating
physicians; failing to explain the reasons for dismissing
Plaintiff’s testimony and evidence from her treating physicians;
and failing to properly evaluate her drug use because there is no
evidence that Plaintiff would not be disabled absent her drug use.
In addition, Plaintiff asserts that the Dictionary of Occupational
Titles (“DOT”) definition of cashier is inconsistent with
Plaintiff’s RFC, thus showing that Plaintiff is incapable of
performing her past work as a cashier. Plaintiff also argues that
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the ALJ erred at step five by failing to consult a vocational
expert.
III. ANALYSIS
A. Standard of Review
“The findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be
conclusive . . . .” 42 U.S.C. § 405(g). In other words, “[t]he
Court is bound by the ALJ's findings of fact if they are supported
by substantial evidence in the record.” Plummer v. Apfel, 186 F.3d
422, 427 (3d Cir. 1999). Substantial evidence means more than “a
mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
It means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. “[T]he substantial
evidence standard is a deferential standard of review.” Jones v.
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).
B. Legal Standard For Determination of Disability
Under the Social Security Act, a “disability” is defined, for
the purposes of an entitlement to benefits, as the inability “to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment . . . 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). A
claimant is unable to engage in any substantial gainful activity
“only if his physical or mental impairment or impairments are of
20
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 . . . .” 42
U.S.C. § 1382c(a)(3)(B).
The disability determination involves a five-step sequential
process:
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful
activity . . . .
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment . . . .
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 . . . . 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 . . . . If the claimant
is unable to resume her former occupation, the
evaluation moves to the final step.
At this stage, . . . the Commissioner . . . must
demonstrate the claimant is capable of performing other
available work . . . .
Plummer, 186 F.3d at 428 (internal citations omitted).
In cases involving substance abuse, there is additional
analysis because “[a]n individual shall not be considered to be
disabled . . . if alcoholism or drug addiction would . . . be a
contributing factor material to the Commissioner's determination
that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C).
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“The key factor . . . in determining whether drug addiction or
alcoholism is a contributing factor material to the determination
of disability is whether we would still find you disabled if you
stopped using drugs or alcohol.” 20 C.F.R. § 404.1535(b)(1).
On appeal, Plaintiff challenges the ALJ’s decisions at steps
four and five.
C. The ALJ Properly Determined Plaintiff’s RFC at Step 4
i. The ALJ Properly Considered Plaintiff’s Testimony
Plaintiff argues that the ALJ improperly weighed her
testimony. This argument lacks merit.
An ALJ need not accept an applicant’s statements about her
own symptoms at face value. The ALJ has discretion to assess the
credibility to be given to such statements in line with guidance
in the SSA’s regulations. “[T]he extent to which an individual’s
statements about symptoms can be relied upon as probative evidence
in determining whether the individual is disabled depends on the
credibility of the statements.” Titles II & Xvi: Evaluation of
Symptoms in Disability Claims: Assessing the Credibility of an
Individual's Statements, SSR 96-7P, at *4 (S.S.A July 2, 1996).
The ALJ’s decision “must contain specific reasons for the finding
on credibility, supported by the evidence in the case record, and
must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the
individual's statements and the reasons for that weight.” Id. “The
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adjudicator must also consider any observations about the
individual recorded by Social Security Administration (SSA)
employees during interviews, whether in person or by telephone.”
Id. at *5. In addition, “[t]he adjudicator must compare statements
made by the individual in connection with his or her claim for
disability benefits with statements he or she made under other
circumstances.” Id. Essentially, “‘[c]redibility determinations
are the province of the ALJ and only should be disturbed on review
if not supported by substantial evidence.’” Hall v. Astrue, 882 F.
Supp. 2d 732, 736 (D. Del. 2012) (quoting Pysher v. Apfel, 2001 WL
793305, at *3 (E.D. Pa. July 11, 2001)).
The ALJ found that Plaintiff was not credible, and
substantial evidence supports his conclusion. He noted that “when
the claimant filed her supplemental security income application
through teleclaim, it was noted that the claimant had no
difficulty with understanding, coherency, and concentration and
was able to answer all questions asked.” (R. at 22 (citing R. at
164).) He also cited March 2010 treatment notes from Cape
Counseling indicating that Plaintiff “reported she would be
starting a job in May and she was not worried about work at all.”
(R. at 22.)
The ALJ found that Plaintiff was “not credible regarding her
alcohol and cocaine abuse.” (R. at 20.) He noted that she “denied
having a history of alcohol or cocaine use to Dr. Seifer and when
23
seen at the emergency room in February 2010; and she reported to
Dr. Bhamidipati that she had stopped drinking alcohol in 2009; but
in March 2010 she had reported that she rarely drank alcohol and
that she had not used cocaine in more than ten years.” (R. at 20.)
He contrasted that evidence with information that “on July 14,
2010 she reported having a chronic history of alcoholism and
seizures and she was requesting inpatient rehabilitation.” (R. at
20.)
The ALJ also had the benefit of meeting Plaintiff and
observing her testimony and demeanor at the hearing on March 6,
2012.
Plaintiff argues that ample records during times of sobriety
show her disabling mental limitations and that there is no
evidence that she would not be disabled absent her drug use. But
Plaintiff did not provide evidence of her sobriety, other than her
own statements attesting to her lack of substance abuse.
Moreover, the ALJ emphasized evidence about the impact of
Plaintiff’s substance abuse. He noted that “[o]n July 20, 2010,
the claimant was hospitalized due to suicidal ideation, and her
GAF was estimated to be 10. At the time of admission, she admitted
using cocaine; however, by the time of discharge on July 23, 2010,
just a few days later, she was free of the effects of cocaine, and
her mood had improved and her GAF score had risen to 60 . . . .”
(R. at 20.) In other words, he emphasized that her GAF score rose
24
50 points within a few days due to the absence of cocaine. He also
noted that, in August 2010, Plaintiff reported improvements in her
mood, appetite, impulse control, and sleep. (R. at 20.) He cited
treatment notes from December 2010, which indicate that her mood
was stable and that she had no unusual anxiety or evidence of
depression. (R. at 20.)
In addition, he cited Dr. Wieliczko’s findings that Plaintiff
was not truthful about her drug and alcohol use and that her
psychotic conditions were consistent with cocaine use. He noted
Dr. Bustos’ conclusions that “claimant’s mental impairments
impose[] some limitations in her functioning but not to the degree
of severity that prevents [her] from living independently” and
that “the claimant retain[ed] the capacity to understand, remember
and follow simple instructions, make simple decisions and do work
related mental activities.” (R. at 20.)
Essentially, the ALJ cited multiple sources that informed his
assessment that Plaintiff lacked credibility about her substance
abuse. This evidence is reasonable, is far more than a scintilla,
and is substantial. It supports the ALJ’s findings that the
Plaintiff lacked credibility about her substance abuse and that
substance abuse contributed materially to her disability.
Moreover, Plaintiff’s argument that the ALJ failed to explain his
reasoning for discounting her testimony lacks merit; he provided
ample explanation. Due to the substantial evidence in the record,
25
the Court is bound by the ALJ’s finding that Plaintiff’s testimony
was not credible.
ii. The ALJ Properly Considered Medical Evidence
Plaintiff argues that the ALJ “discarded the medical opinions
provided by Cape Counseling Services (Dr. Charles Dick), Cape
Regional Medical Center, Dr. Seifer, and Dr. Alloy.” (Pl. Br. at
14.) In support of this argument, Plaintiff cites 131 pages of the
record and asserts that this evidence supports Plaintiff’s
symptoms, including crying spells, racing thoughts, regular panic
attacks, feelings of isolation, depression, paranoia, suicidal
ideations, seeing shadows and hearing voices, impaired
concentration, fatigue, and low GAF scores. Plaintiff also noted
that “Dr. Dick’s records provide the benefit of a longitudinal
picture of the Plaintiff’s mental impairments . . . .” (Id. at
14.)
The ALJ must “accord treating physicians’ reports great
weight, especially ‘when their opinions reflect expert judgment
based on a continuing observation of the patient’s condition over
a prolonged period of time.’” Morales v. Apfel, 225 F.3d 310, 317
(3d Cir. 2000) (quoting Plummer, 186 F.3d at 429).
Dr. Dick consistently found that Plaintiff’s memory and
concentration were fair and her speech was coherent and goal
directed. His records do not indicate that Plaintiff is incapable
of cashier work. Dr. Alloy’s records indicate that Plaintiff has
26
Hepatitis C, not that she is incapable of cashier work. The ALJ
found that Plaintiff denied her history of substance abuse to Dr.
Seifer; Dr. Seifer’s records do not negate the ALJ’s findings
about Plaintiff’s credibility.
As a general matter, the ALJ’s consideration of Plaintiff’s
impairments and medical history was extensive. He found that
Plaintiff had degenerative disc disease of the lumbar spine,
asthma, hepatitis C virus, schizoaffective disorder, major
depressive disorder, panic disorder with agoraphobia, and
polysubstance abuse, hypertension, palpitations, and foot
calluses. (R at 15-16.) The ALJ found that “the claimant’s
statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they are
inconsistent with the [RFC] assessment . . . .” (R. at 22.)
He
noted there was no evidence indicating that Plaintiff experienced
repeated episodes of decompensation of extended duration, that a
minimal increase in mental demands or changes in her environment
would cause decompensation, or that Plaintiff required a highly
supportive living arrangement to function. (R. at 22.) The ALJ
found that substance abuse contributed materially to her
disability and that, absent substance abuse, she was capable of
performing her past relevant work as a cashier.
Plaintiff’s brief repeatedly cites her testimony, her
statements in her benefits application, and her statements to
27
treating physicians about her disabilities. “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),
“[a]lthough the ALJ can reject such claims if he does not find
them credible,” Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d
429, 433 (3d Cir. 1999). In addition, “[a]n individual's statement
as to pain or other symptoms shall not alone be conclusive
evidence of disability . . . .” 42 U.S.C. § 423(d)(5)(A).
Moreover, “the mere memorialization of a claimant's subjective
statements in a medical report does not elevate those statements
to a medical opinion.” Morris v. Barnhart, 78 F. App'x 820, 824
(3d Cir. 2003); see also McKinnon v. Comm'r of Soc. Sec., Civ. 124717 (NLH), 2013 WL 5410696, at *3 n.2 (D.N.J. Sept. 26, 2013)
(“[s]imply because this doctor and others noted Plaintiff's
complaints of pain does not automatically require the ALJ to
accept the credibility of Plaintiff's complaints”).
The ALJ thoroughly reviewed Plaintiff’s medical history,
found that Plaintiff’s testimony was not credible, substantial
evidence supported that finding, and this Court is bound by his
finding. Where substantial evidence supports the ALJ’s finding set
forth in articulated reasoning, the district court is not
“empowered to weigh the evidence or substitute its conclusions for
28
those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178,
1182 (3d Cir. 1992).
iii. Cashier Work Is Consistent with Plaintiff’s RFC
Plaintiff argues that the ALJ failed to define “goaloriented” versus “production-paced.” Plaintiff also asserts that
the Dictionary of Occupational Titles (“DOT”) definition of
cashier is inconsistent with Plaintiff’s RFC because the DOT
states that cashier work requires an individual to perform
Reasoning Level 3 work, which necessitates an ability to handle
problems involving several concrete variables and thus conflicts
with the RFC limiting Plaintiff to a stable workplace with few
changes in processes. Plaintiff also notes that cashier work
requires Specific Vocational Preparation Level 2 (“SVP 2”), which
can involve up to one month of training, and argues that
Plaintiff’s panic disorder and inability to interact with others
make her incapable of SVP 2 work.
The ALJ found that “[i]f the claimant stopped the substance
use, the claimant would have the residual functional capacity to
perform light work . . . .” (R. at 21.) He noted Plaintiff’s past
relevant work as a cashier and the classification of that position
as “unskilled, light work.” (R. at 23.) The DOT classifies a
cashier position as “Light Work,” which requires “Reasoning: Level
3 - Apply commonsense understanding to carry out instructions
furnished in written, oral, or diagrammatic form. Deal with
29
problems involving several concrete variables in or from
standardized situations” and SVP 2, which is “[a]nything beyond
short demonstration up to and including 1 month . . . .” DICOT
211.462-010, 1991 WL 671840.2
The ALJ was not required to explain Plaintiff’s ability to
perform every component of the DOT definition for cashier work.
“The claimant bears the burden of demonstrating an inability to
return to her past relevant work.” Plummer, 186 F.3d at 428.
Plaintiff argues that “[h]ow she can be expected to work closely
with another co-worker for up to one-months’ time is left
unclear.” (Pl. Br. at 24.) Plaintiff also argues that the ALJ
failed to address her obesity and chronic liver disease and that
“there is no indication that her obesity or chronic liver disease
have no effect on her ability to perform basic work activities on
a regular and continuing basis.” (Pl. Br. at 13.) These arguments
are inapt because Plaintiff bears the burden of demonstrating that
she cannot perform her past relevant work; the Commissioner does
not carry the burden of demonstrating that she can. Plaintiff
cites multiple sources identifying her medical impairments, but
2
Plaintiff also argues that “the job of cashier often involves
the handling of food items which would also be precluded due to
the claimant’s restriction due to hepatitis.” (Pl. Reply at 6.)
Plaintiff cites no authority for this statement and does not
allege that her past work as a cashier involved handling
unpackaged food. In any event, there are many cashier jobs that do
not involve handling food, as shown by everyday experience in
department stores, office supply stores, home improvement stores,
movie theaters, boutiques, and the like, too numerous to list.
30
she does not cite sources, other than her own statements, about
how those impairments impact her ability to function in a work
environment. As discussed supra, substantial evidence supports the
ALJ’s determination of Plaintiff’s credibility and this Court is
bound by that determination. Plaintiff did not sustain her burden
at step four.
Furthermore, “[w]hile the ALJ did not explicitly discuss the
[difference between goal-oriented and production-paced], Plaintiff
does not explain that evidence's probative value to the central
inquiry of ‘whether we would still find [Plaintiff] disabled if
[she] stopped using drugs or alcohol.’” Martin v. Comm'r of Soc.
Sec., 13-2150, 2013 WL 6501335, at *4 (3d Cir. Dec. 12, 2013)
(quoting 20 C.F.R. § 404.1535(b)(1)). Moreover, there is no
obvious contradiction in an RFC that requires a stable workplace
with few changes of setting, processes, and tools, and a work
description that requires the ability to reason with several
concrete variables. Plaintiff’s RFC limits her workplace setting,
processes, and tools; it does not describe reasoning limitations.
Finally, Plaintiff cites her statements about her need for
reminders to handle her personal care, her inability to interact
with others, and her fears of leaving the home. These arguments
are inapposite. The Court defers to the ALJ’s findings when they
are supported by substantial evidence and, as discussed supra, the
31
ALJ’s assessment of Plaintiff’s credibility is supported by
substantial evidence.
D. This Case Did Not Require Step 5 Analysis
Plaintiff argues that “the nonexertional limitations involved
in this case made it necessary to consult a vocational expert to
determine the extent of erosion of Plaintiff’s occupational base.”
(Pl. Br. at 23.)
At step five, the Commissioner must show that work exists in
significant numbers in the national economy which the claimant
could perform. Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000).
The Commissioner can satisfy this burden by introducing testimony
from a vocational expert. Id.
In this case, the ALJ did not need to consult a vocational
expert because he found that Plaintiff was capable of performing
her past relevant work and, thus, the sequential analysis did not
proceed to step five. See Miranda v. Barnhart, Civ. 03-333, 2005
WL 705343, at *4 (D. Del. Mar. 28, 2005) (“Because ALJ Antrobus
determined that [Plaintiff] was not disabled at step four of the
analysis, it was unnecessary for him to proceed to step five”).
Step five analysis only occurs when the ALJ determines that the
claimant cannot perform past relevant work.
Plaintiff argues that the ALJ failed to adhere to the Third
Circuit’s holding in Sykes v. Apfel and that “the ALJ’s failure to
consult a vocational expert in this matter, again where
32
significant nonexertional limitations are at play, also violates
SSRs 96-9p and 83-12.” (Pl. Br. at 24.) Sykes and SSRs 96-9p and
83-12 are all inapt because they address step five analysis. See
Sykes, 228 F.3d at 262 & 266 (“the ALJ found that Sykes had
several severe impairments . . . and that he could not perform his
past work” and the key issue “raised by Sykes's appeal [wa]s
whether the Commissioner met his burden of proof for the step-five
inquiry”); Titles II & Xvi: Determining Capability to Do Other
Work, SSR 96-9P, at *1 (S.S.A July 2, 1996) (“Under the sequential
evaluation process, once it has been determined that an individual
. . . has a ‘severe’ medically determinable impairment(s) which .
. . prevents the individual from performing past relevant work
(PRW), it must be determined whether the individual can do any
other work”); Titles II & Xvi: Capability to Do Other Work, SSR
83-12, at *1 (S.S.A 1983) (“If a person has a severe medically
determinable impairment which . . . prevents the person from
performing past relevant work, we must decide whether he or she
can do other work”). When the ALJ finds that the claimant is able
to perform past relevant work, none of these sources require an
ALJ to consult a vocational expert at step four, regardless of the
nature of the claimant’s impairments.
The ALJ did not err by not consulting a vocational expert
because his analysis did not reach step five of the sequential
process.
33
IV.
CONCLUSION
The Commissioner’s denial of social security benefits will be
affirmed because substantial evidence supports the ALJ’s
determination of Plaintiff’s credibility; the ALJ properly
considered Plaintiff’s medical evidence; cashier work is
consistent with Plaintiff’s RFC; and this case did not require a
step five analysis. The ALJ’s decision will be affirmed and the
accompanying Order will be entered.
March 10, 2014
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
34
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