PAGAN v. COMMISSIONER OF SOCIAL SECURITY

Filing 20

OPINION. Signed by Judge Noel L. Hillman on 3/14/2016. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

VIRGINIA M. PAGAN,
Civil No. 15-2167(NLH)
Plaintiff,
OPINION
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
MICHAEL JOSEPH BROWN
WOLF & BROWN, LLC
228 KINGS HIGHWAY EAST
HADDONFIELD, NJ 08033
On behalf of Plaintiff
TARA A. CZEKAJ
SOCIAL SECURITY ADMINISTRATION
300 SPRING GARDEN STREET
6TH FLOOR
PHILADELPHIA, PA 19123
On behalf of defendant
HILLMAN, District Judge
This matter comes before the Court pursuant to Section
205(g) of the Social Security Act, as amended, 42 U.S.C. §
405(g), to review the final decision of the Commissioner of the
Social Security Administration, denying Plaintiff’s application
for Disability Insurance Benefits (“Social Security benefits”)
under Title II of the Social Security Act.
seq.

42 U.S.C. § 401, et

The issue before the Court is whether the Administrative

Law Judge (“ALJ”) erred in finding that there was “substantial
evidence” that Plaintiff was not disabled at any time since her
alleged onset date of disability, April 1, 2009.

For the

reasons stated below, this Court will affirm that decision.
I.

BACKGROUND AND PROCEDURAL HISTORY
On September 12, 2011, Plaintiff filed an application for

disability benefits, claiming that since April 1, 2009 her
severe disabilities of fibromyalgia, obesity, depression and
anxiety have rendered her completely disabled and unable to
work.

Prior to her claimed disability, Plaintiff worked as a

bench assembler.
After a hearing before an ALJ, it was determined that
Plaintiff was not disabled, as she retained the ability to
perform light work with certain restrictions.
appealed the decision.

Plaintiff

The Appeals Council reviewed the ALJ’s

decision, and upheld it, thus rendering it as final.

Plaintiff

now seeks this Court’s review.
II.

DISCUSSION
A.

Standard of Review

Under 42 U.S.C. § 405(g), Congress provided for judicial
review of the Commissioner’s decision to deny a complainant’s
application for Disability Insurance Benefits.

2

Ventura v.

Shalala, 55 F.3d 900, 901 (3d Cir. 1995).

A reviewing court

must uphold the Commissioner’s factual decisions where they are
supported by “substantial evidence.”

42 U.S.C. §§ 405(g),

1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.
2001); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000);
Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Substantial evidence means more than “a mere scintilla.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting
Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).

It

means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”

Id.

The inquiry is not

whether the reviewing court would have made the same
determination, but whether the Commissioner’s conclusion was
reasonable.

See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.

1988).
A reviewing court has a duty to review the evidence in its
totality.
1984).

See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.

“[A] court must ‘take into account whatever in the

record fairly detracts from its weight.’” Schonewolf v.
Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks
v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th
Cir. 1988) (quoting Universal Camera Corp. V. NLRB, 340 U.S.

3

474, 488 (1951)).
The Commissioner “must adequately explain in the record his
reasons 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)).

The Third

Circuit has held that an “ALJ must review all pertinent medical
evidence and explain his conciliations and rejections.”

Burnett

v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
Similarly, an ALJ must also consider and weigh all of the nonmedical evidence before him.

Id. (citing Van Horn v. Schweiker,

717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d
700, 707 (3d Cir. 1981).
The Third Circuit has held that access to the
Commissioner’s reasoning is indeed essential to a meaningful
court review:
Unless 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).

Although

an ALJ, as the fact finder, must consider and evaluate the
4

medical evidence presented, Fargnoli, 247 F.3d at 42, “[t]here
is no requirement that the ALJ discuss in its opinion every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App’x 130, 133 (3d Cir. 2004).

In terms of judicial review,

a district court is not “empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.”
Williams, 970 F.2d at 1182.

However, apart from the substantial

evidence inquiry, a reviewing court is entitled to satisfy
itself that the Commissioner arrived at his decision by
application of the proper legal standards.

Sykes, 228 F.3d at

262; Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983);
Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
B.

Standard for Disability Insurance Benefits

The Social Security Act defines “disability” for purposes
of an entitlement to a period of disability and disability
insurance benefits 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 12 months.
1382c(a)(3)(A).

See 42 U.S.C. §

Under this definition, a Plaintiff qualifies as

disabled only if his physical or mental impairments are of such

5

severity that he is not only unable to perform his past relevant
work, but cannot, given his age, education, and work experience,
engage in any other type 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)

(emphasis added).
The Commissioner has promulgated regulations for
determining disability that require application of a five-step
sequential analysis.

See 20 C.F.R. § 404.1520.

This five-step

process is summarized as follows:
1.

If the claimant currently is engaged in substantial
gainful employment, he will be found “not disabled.”

2.

If the claimant does not suffer from a “severe
impairment,” he will be found “not disabled.”

3.

If the severe impairment meets or equals a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix
1 and has lasted or is expected to last for a
continuous period of at least twelve months, the
claimant will be found “disabled.”

4.

If the claimant can still perform work he has done in
the past (“past relevant work”) despite the severe
impairment, he will be found “not disabled.”

5.

Finally, the Commissioner will consider the claimant’s
ability to perform work (“residual functional
capacity”), age, education, and past work experience
to determine whether or not he is capable of
6

performing other work which exists in the national
economy. If he is incapable, he will be found
“disabled.” If he is capable, he will be found “not
disabled.”

20 C.F.R. § 404.1520(b)-(f).

Entitlement to benefits is

therefore dependent upon a finding that the claimant is
incapable of performing work in the national economy.
This five-step process involves a shifting burden of proof.
See Wallace v. Secretary of Health & Human Servs., 722 F.2d
1150, 1153 (3d Cir. 1983).

In the first four steps of the

analysis, the burden is on the claimant to prove every element
of his claim by a preponderance of the evidence.

See id.

In

the final step, the Commissioner bears the burden of proving
that work is available for the Plaintiff: “Once a claimant has
proved that he is unable to perform his former job, the burden
shifts to the Commissioner to prove that there is some other
kind of substantial gainful employment he is able to perform.”
Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); see Olsen v.
Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).
C.

Analysis

In this case, the ALJ found that Plaintiff has not engaged
in substantial gainful activity since the alleged onset of
disability (Step One).

The ALJ next found that Plaintiff’s

7

fibromyalgia, obesity, depression, and anxiety were severe (Step
Two).

The ALJ then found that Plaintiff’s impairments did not

meet the medical equivalence criteria (Step Three).

At Step

Four, the ALJ found that Plaintiff was capable of performing her
previous job as an assembler, but the ALJ also found that
Plaintiff had the residual functional capacity (RFC) to perform
other jobs at the light work level, such as surveillance system
monitor and telephone information clerk, which jobs are in
significant numbers in the national economy (Step Five).
Plaintiff presents four arguments as to why the ALJ
decision should be reversed:

(1) the ALJ did not afford proper

controlling weight to her treating physician, Dr. Tran Le; (2)
the ALJ erred in affording little weight to the state agency’s
consulting psychologist, Robert Water, Ph.D.; and (3) the ALJ
improperly discounted Plaintiff’s credibility; and (4) the ALJ
did not properly consider the side effects of Plaintiff’s pain
medication.
Addressing first Plaintiff’s arguments regarding the weight
afforded to her treating doctor and the state consultative
psychologist, the Court does not find that the ALJ erred in
these assessments.

Plaintiff argues that the ALJ is required to

afford controlling weight to a treating physician, and if the

8

ALJ does not, the ALJ must explain her reasons.

Plaintiff also

argues that an ALJ cannot substitute her judgment for that of
the medical professionals.

The Court agrees with Plaintiff’s

articulation of the standards for assessing the reports of
treating physicians.

Fargnoli v. Massanari, 247 F.3d 34, 43 (3d

Cir. 2001) (citing 20 C.F.R. § 404.1527(d)(2)) (“Opinions of a
claimant's treating physician are entitled to substantial and at
times even controlling weight.”); Ferguson v. Schweiker, 765
F.2d 31, 37 (3d Cir. 1985) (“An ALJ is not free to set his own
expertise against that of a physician who presents competent
evidence.”); Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)
(quotation marks omitted) (“Where, as here, the opinion of a
treating physician conflicts with that of a non-treating, nonexamining physician, the ALJ may choose whom to credit but
cannot reject evidence for no reason or for the wrong reason.”).
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (citations
omitted) (“The ALJ must consider all the evidence and give some
reason for discounting the evidence she rejects.”).

Contrary to

Plaintiff’s arguments, however, the Court finds that the ALJ
complied with these standards.
With regard to Dr. Le, Plaintiff argues that the ALJ did
not credit Dr. Le’s reports from October 2011 when assessing

9

Plaintiff’s RFC, as those reports showed poor hand grip,
difficulty separating papers and closing buttons, inability to
lift more than 10 pounds, and severe pain.

Plaintiff argues

that medical records from other physicians around that same time
confirm Dr. Le’s assessment.
Even though the October 2011 records describe Plaintiff’s
condition at that time, the ALJ detailed all of Dr. Le’s
treatment notes from August 8, 2011 through July 30, 2013,
during which period Plaintiff saw Dr. Le sixteen times.

Over

the course of two years, adjustments to Plaintiff’s medications
for depression and fibromyalga pain resulted in Plaintiff having
good management of her pain and mental health.

(R. at 29-30.)

By January 2013 and the seven months that followed, Plaintiff
reported to Dr. Le that her pain was controlled, she was
attending mental health therapy, her mental health medications
had been adjusted, she was less depressed and more stable,
sleeping better, and her mood improved.

The ALJ properly

considered all of this evidence, instead of relying solely on an
October 2011 report by Plaintiff’s treating physician as
advocated by Plaintiff.
Similarly, Plaintiff argues that the ALJ should have
afforded state consultative psychologist Dr. Waters’ report more

10

than “little” weight.

Dr. Waters performed a one-time

examination of Plaintiff on December 19, 2011.

At that time,

Dr. Waters recorded Plaintiff’s complaints of pain, inability to
walk, sleep disturbances, childhood trauma, anxiety and
depression.

Dr. Waters diagnosed Plaintiff with dysthymic

disorder and generalized anxiety disorder.
The ALJ specifically addressed Dr. Waters’ report. (R. at
31, 38.)

Even though in December 2011 Dr. Waters concluded that

Plaintiff was moderately to severely limited due to her mental
and physical status, the ALJ noted that Dr. Waters had no
specialty in rheumatology to offer an opinion about Plaintiff’s
physical impairments.

The ALJ also noted that prior to Dr.

Waters’ evaluation of Plaintiff, she had not undergone
professionally managed health treatment. 1

When considering Dr.

Waters’ December 2011 report in the context of the mental and
physical treatment Plaintiff received over the next two years,
the Court cannot find any error in the ALJ’s assessment of Dr.

1

Plaintiff takes issue with the ALJ’s statement that as of
December 2011, Plaintiff was an “under-treated” patient, and
points to a counseling session in 2008 and a July 2011
hospitalization for depression and attempted suicide. The ALJ
observed that at the time of Dr. Waters’ examination of
Plaintiff, Plaintiff had not undergone “professionally managed
health treatment.” That statement is not inconsistent with
Plaintiff’s two prior treatment sessions, one in 2008 and one in
2011.
11

Waters’ report.
Next, Plaintiff argues that the ALJ improperly discounted
her credibility.

Plaintiff takes issue with the ALJ’s

recitation of the function reports prepared by Plaintiff and her
husband, and the ALJ’s identification of inconsistencies in the
reports when compared to the medical evidence.

Plaintiff argues

that it is her disabilities that caused the inconsistencies –
i.e., problems with memory and concentration and the inability
to complete tasks – and the ALJ should not hold these
inconsistencies against her.
Even though the ALJ found inconsistencies in Plaintiff’s
reports regarding her daily functions, which lessened the
credibility of Plaintiff’s testimony, the ALJ still credited
Plaintiff’s subjective complaints about pain and other
impairments to the extent that they were corroborated by the
medical evidence.

The ALJ did not completely disregard

Plaintiff’s reports about her functions, and she only reduced
her reliance upon Plaintiff’s statements to the level supported
by the evidence in the record.

Indeed, the ALJ’s determination

of Plaintiff’s RFC took into account many of Plaintiff’s selfdescribed limitations (limited stating and sitting, no overhead
lifting, no climbing, only simple tasks and low stress, and

12

several breaks).

The ALJ did not err in assessing Plaintiff’s

credibility in this way.

See Schaudeck v. Comm'r of Social

Security, 181 F.3d 429, 433 (3d Cir. 1999) (explaining that
allegations of pain and other subjective symptoms must be
supported by objective medical evidence, and an ALJ may reject a
claimant's subjective testimony if he does not find it credible
as long as he explains why he is rejecting the testimony); SSR
96–7p (“No symptom or combination of symptoms can be the basis
for a finding of disability, no matter how genuine the
individual’s complaints may appear to be, unless there are
medical signs and laboratory findings demonstrating the
existence of a medically determinable physical or mental
impairment(s) that could reasonably be expected to produce the
symptoms.”); 20 C.F.R. § 416.929(c)(4) (“We will consider
whether there are any inconsistencies in the evidence and the
extent to which there are any conflicts between your statements
and the rest of the evidence. . . .”).
Finally, Plaintiff argues that the ALJ did not assess the
side-effects of her pain medication when determining that she
retained the RFC to perform light work.

Plaintiff makes this

conclusory argument, without explaining how the ALJ failed to
consider the medication side-effects, other than arguing that

13

the ALJ did not perform that analysis.

Plaintiff does not

articulate what side-effects from which medication the ALJ
should have considered.

Accordingly, the ALJ’s decision cannot

be reversed on this basis.

See Grandillo v. Barnhart, 105 F.

App'x 415, 419 (3d Cir. 2004) (Grandillo contends that the ALJ
failed to take into account the adverse side-effects of
Grandillo's medication. But, as the government observes, the
record is devoid of any evidence that Grandillo reported these
adverse side-effects to her treating physicians or that those
physicians adjusted the dosage or nature of her medication to
control for poor toleration. The mere fact that Grandillo was
taking medication known to induce adverse side-effects in some
small percentage of patients did not require the ALJ to assume
Grandillo actually experienced those side effects.”).
III. Conclusion
For the reasons expressed above, the ALJ’s determination
that Plaintiff is not totally disabled as of April 1, 2009, is
supported by substantial evidence.
the ALJ is affirmed.

Accordingly, the decision of

An accompanying Order will be issued.

Date: March 14, 2016
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

14