SHAUD v. COMMISSIONER OF SOCIAL SECURITY
Filing
16
OPINION. Signed by Chief Judge Jerome B. Simandle on 4/26/2016. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JAMES SHAUD,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-2278 (JBS)
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
OPINION
Defendant.
APPEARANCES:
F. Michael Friedman, Esq.
340 N. Landsdowne Ave.
P.O. Box 467
Drexel Hill, PA 19026
-andKarl E. Osterhout, Esq.
OSTERHOUT DISABILITY LAW, LLC
521 Cedar Way, Suite 200
Oakmont, PA 15139
Attorney for Plaintiff
Paul J. Fishman
UNITED STATES ATTORNEY
By: Theresa A. Casey
Special Assistant U.S. Attorney
Social Security Administration
Office of the General Counsel
300 Spring Garden Street
Philadelphia, PA 19123
Attorney for Defendant
SIMANDLE, Chief Judge:
I. INTRODUCTION
In this action, Plaintiff James Shaud (hereinafter,
“Plaintiff”), a twenty-six-year-old (on the alleged onset of
disability date) with past work experience as a manual laborer
(among other jobs), seeks review of the Commissioner of the
Social Security Administration’s (hereinafter, “Defendant” or
“the Commissioner”) denial of his application for Social
Security Benefits pursuant to 42 U.S.C. § 405(g).
Plaintiff, an individual with a history of chronic back
issues dating back to a spinal fusion procedure in 1995, claims
disability from spinal fusion, migraines, and arthritis.
In an
eleven-page decision dated November 14, 2014, the Administrative
Law Judge (hereinafter, the “ALJ”) concluded that Plaintiff’s
back-related impairments, although severe, enabled him to
perform the full range of sedentary work.
(See R. at 9-19.)
As
a result, the ALJ found Plaintiff not disabled within the
meaning of the Social Security regulations, because his residual
functional capacity (hereinafter, the “RFC”) allowed him to
perform jobs that exist in significant numbers within the
national economy.
(See generally id. at 18-19.)
In the pending appeal, Plaintiff argues that the ALJ erred
in two respects.
First, Plaintiff takes the view that the ALJ
improperly evaluated the disability opinion of Plaintiff’s longtime family physician, John Pirolli, D.O., because it supports,
at least in Plaintiff’s mind, only the conclusion that Plaintiff
suffers from a qualifying disability.
Pl.’s Reply at 2.)
(See Pl.’s Br. at 5-14;
Second, Plaintiff claims that, in finding
2
Plaintiff capable of return to work, the ALJ improperly relied
upon the Medical-Vocational framework, or grids, despite the
record evidence reflecting Plaintiff’s nonexertional
limitations.
(See Pl.’s Br. at 14-18; Pl.’s Reply at 3-5.)
The Commissioner, by contrast, takes the position that
substantial evidence supports the ALJ’s decision denying
disability benefits, because he appropriately reviewed the
record evidence through the lens of the applicable statutory and
legal framework.
(See generally Def.’s Opp’n at 1, 9-14.)
More
specifically, Defendant argues that the ALJ rightly discounted
Dr. Pirolli’s “check-the-box” opinion concerning Plaintiff’s
inability to perform work, because it conflicted with the
remaining medical evidence, and similarly asserts that the ALJ
committed error in relying upon the grid, given the paucity of
evidence supporting any non-exertional limitations.
(Id.)
The record evidence amply reflects Plaintiff’s consistent
complaints of lower back pain, and indicates this pain impaired
(to some extent) his functional, physical abilities.
Nevertheless, the principal issue before the Court concerns
whether substantial evidence supports the ALJ’s conclusion that
Plaintiff retained the residual functional capacity to perform
the full range of sedentary work, despite the limitations
associated with his largely undisputed physical condition.
3
For the reasons explained below, the Court will affirm the
ALJ’s decision denying Plaintiff’s application for Social
Security benefits.
II.
BACKGROUND
A.
Plaintiff’s Medical Background, Generally
Plaintiff’s back-related issues date back to his early
childhood, during which he received ongoing treatment from an
orthopaedic clinic for progressive scoliosis, spondyloepiphyseal
dysplasia, and a seizure disorder.
320.)
(See generally R. at 294-
Indeed, on September 26, 1995, Plaintiff (at age twelve)
underwent “spinal fusion from T2-L2” and the installation of
Harrington rods in order to correct his spinal curvature. 1
at 294-95.)
(R.
Shortly after the operation, the orthopaedic
surgeons discharged Plaintiff on October 3, 1995, with
instructions “to remain on light activities” and continue
physical therapy.
(R. at 295.)
Following this early operation and physical therapy,
however, Plaintiff’s condition appears to have markedly
improved.
Indeed, from early 1999 through much of 2009,
Plaintiff completed, without issue, years of “heavy labor” as a
dietary aide, a warehouse worker, a produce
1
Although this history predates the period relevant to the
Social Security application at issue here, Plaintiff’s
historical treatment records provide the contextual backdrop for
his current condition, and so the Court recounts them here.
4
packer/shipper/receiver, and an automobile mechanic. 2
e.g., R. at 191-95, 217, 238, & 251.)
(See,
These jobs required him
to remain physically active, and on his feet, lifting, carrying,
and/or pushing heavy items for large portions of every work day,
and he appears to have experienced no physical impediment to
performing these tasks. 3
(See, e.g., R. at 218-221.)
Beginning in August 2008, however, Plaintiff began seeking
emergency medical treatment for back, neck, and shoulder pain.
(See, e.g., R. at 321-38, 415-34.)
In connection with each
visit, the emergency room physician noted Plaintiff’s chronic
back issues, and his complaints of severe back pain, but
released him on each occasion (and without any overnight
admissions) with instructions to take over-the-counter pain
medication as needed. 4
(See, e.g., R. at 322-24, 333-35.)
2
Plaintiff claimed to have little recollection of the exact
dates of his prior employment, and provided instead only
approximate dates for each period of employment. (See, e.g., R.
at 258 (“On my work history I am not sure of [the] Dates
worked.”).) Plaintiff’s certified earnings statement, however,
provides greater detail on the precise dates of Plaintiff’s
prior employment. (See R. at 188-95.)
3 During this period, Plaintiff received treatment from Dr. Paul
Peterson, III, D.O. and Dr. Pirolli, for a range of non-backrelated issues (like, for example, sinus congestion, colds, and
similar routine ailments). (See, e.g., R. at 339-47.)
4 On account of these issues, Plaintiff filed his first
application for Social Security benefits on October 15, 2008,
listing June 1, 2006 as his alleged onset of disability date.
(See R. at 60-61, 63.) Defendant, however, denied this initial
application on March 10, 2009, at the initial level of review,
and Plaintiff filed no appeal of that determination. (See R. at
63, 104-09, 206-08, & 217-32.)
5
Following these emergency room visits, on December 12,
2008, Plaintiff’s general family physician, Dr. Pirolli,
referred him to University Imaging Center for an MRI of his
spine, on account of Plaintiff’s complaints of radiating “back
pain” and associated numbness in his extremities.
(R. at 343.)
The results of the MRI, however, revealed only slight spinal
“levoscoliosis,” but “[n]o significant lumbar disc herniation,
canal or foraminal stenosis.”
(Id.)
Stated differently,
although the MRI depicted an individual with a significant
history of spinal issues (complete with Harrington rods along
portions of his spine), the testing did not reveal any advanced
spinal curvature beyond that addressed by the spinal fusion
operation.
(See id.)
In the aftermath of this treatment, on January 30, 2009,
David H. Clements, M.D., made similar findings following his
evaluation of Plaintiff at the Bone and Joint Institute of
Cooper University Hospital.
(See R. at 348-49.)
More
specifically, Dr. Clements observed that Plaintiff had “a wellhealed scar on his back,” no signs of redness, swelling, or
drainage, a “normal range of motion of his lower back for age,”
and only mild to moderate tenderness.
(Id.)
As a result, Dr.
Clements diagnosed Plaintiff with “lower back pain,” and
recommended a regime of physical therapy, but otherwise imposed
no restrictions of Plaintiff’s physical activities.
6
(Id.)
On October 11, 2009, November 27, 2009, and February 17,
2010, however, Plaintiff sought additional emergency medical
treatment, after certain physical exertion left him with
tenderness in his lower back. 5
(See R. at 383-90, 397-414.)
In
connection with each evaluation, emergency room physicians
observed various degrees of tenderness, directed Plaintiff to
follow-up with his primary care physician, Dr. Pirolli, and
prescribed medication (both prescription and over-the-counter)
in order to relieve his pain.
(R. at 388, 400-01, & 409-10.)
Following these late 2009 emergency room visits, Plaintiff
did not seek medical treatment, emergency or otherwise, relative
to back pain for over one year. 6
(See R. at 15.)
On February
27, 2011, however, Plaintiff presented himself to an emergency
medical facility, with renewed complaints of an “acute headache”
and “lower back pain.”
(R. at 372-77.)
Despite his claims, an
evaluation revealed normal neurological results, and his
physical symptoms “markedly improved after treatment.”
373.)
(R. at
As a result, the emergency room physician discharged
5
On February 17, 2010, for example, Plaintiff complained of
severe back pain following a “week” of shoveling snow. (R. at
388.)
6 Throughout this period, Plaintiff did, however, seek emergency
medical treatment for other issues, including, dental pain/a
toothache. (See R. at 391-96.) Although the emergency room
physician identified his history of back issues on these
occasions, Plaintiff presented no back-related complaints.
(See, e.g., R. at 391.)
7
Plaintiff with instructions to take Advil as needed, and to
follow up with his primary care physician, Dr. Pirolli (again,
if and as necessary).
(See R. at 373.)
The contemporaneous treatment notes of Dr. Pirolli, in
turn, indicate that Dr. Pirolli contiually filled prescriptions
for hydrocodone, and include serial notations to the fact that
Plaintiff’s pain remained “ok” or even improved while on
medication. 7
(R. at 435-46.)
Indeed, on June 27, 2012, Dr.
Pirolli noted that Plaintiff’ pain decreased significantly while
on medication (to a 2 on a 10-point pain scale).
436.)
(See R. at
On November 14, 2012, however, Plaintiff returned to the
hospital after he fell down the stairs, and sustained injuries
to his lower back, left-sided ribs, and left hib.
450-57.)
(See R. at
Despite this fall, the emergency room physician found
his symptoms “mild ... at their worst,” and an evaluation of
Plaintiff revealed normal neurological functioning, a full range
of motion, normal spinal alignment, and only slight pain in the
lower and mid-back areas.
(R. at 455-56.)
Even more
importantly, though, his mild symptoms “markedly improved after
treatment,” and so the emergency room physician discharged him
7
In fact, the treatment notes create the impression that
Plaintiff met with Dr. Pirolli solely for the purposes of
renewing or refilling his prescriptions for pain medications,
because nearly each treatment notes states, at the top, that
Plaintiff sought treatment “for [a] refill on medication.” (R.
at 436.)
8
with a prescription for Vicodin, and an instruction to continue
follow-up care with Dr. Pirolli.
(R. at 454, 457.)
In the
aftermath of this emergency room visit, a November 2012 x-ray
study and a December 2012 MRI of Plaintiff’s lumbar spine
similarly revealed no acute or abnormal findings (See R. at 449,
452).
B.
Plaintiff’s Social Security Benefits Application
Against this backdrop, on December 10, 2012, Plaintiff
filed the Social Security benefits application at issue here,
claiming an inability to work as of December 31, 2009.
at 62, 110-11.)
(See R.
In connection with the SSA’s review of
Plaintiff’s initial application, the New Jersey Division of
Disability Services conducted a face-to-face interview of
Plaintiff on January 7, 2013.
(See R. at 233-35.)
During the
interview, the examiner noted that Plaintiff “stood a couple
[of] time[s] ... and made gestures as though in pain,” but
observed no difficulty in Plaintiff’s ability to stand, walk, or
otherwise participate in the interview.
(R. at 235.)
Following this initial interview, the claims adjudicator
requested that Plaintiff complete a functional audit and work
history report, describing, in greater written detail, the
manner in which his claimed impairments limit his daily
activities.
(See R. at 243-59.)
In connection with his
functional audit, Plaintiff explained that his “physical
9
condition” prevents him from bending, standing, reaching,
kneeling, or otherwise participating in any activity other than
watching television.
(R. at 243-50.)
Indeed, Plaintiff claimed
that his daily life, at least as of January 22, 2013, entailed
little more than waking up, eating breakfast, brushing his
teeth, and watching television, because his constant state of
pain and stiffness left him barely able to “lift a gallon of
milk.”
(See, e.g., R. at 243-50.)
Despite these claims, in his work history report, Plaintiff
revealed a wide-ranging history of prior employment, consisting
almost exclusively of manual labor positions.
59.)
(See R. at 251-
Indeed, during the times of his employment, all of which
occurred years after his spinal fusion surgery, Plaintiff
professed, among other things, an ability to “lift heavy boxes
of produce,” to push “shopping carts,” to carry heavy car parts
and tools, and to lift merchandise onto shelves.
(R. at 252-
57.)
After completing these assessments, Plaintiff sat for an
orthopaedic examination with Ronald Bagner, M.D., on April 1,
2013.
(See R. at 463-67.)
As in his self-completed
assessments, Plaintiff reported great pain in his lower back
(pain he claimed only intensified in “about 2008 or 2009”), and
explained that he suffers from “10-15 migraine headaches a
month.”
(R. at 463.)
Dr. Bagner, however, observed that
10
Plaintiff walked with only a mildly “antalgic” gait (but without
a cane or crutches), climbed and descended the examination table
without difficulty, dressed and undressed without assistance,
and could heel and toe walk.
(See R. at 463-64.)
Beyond this,
Plaintiff could “make a fist and ... oppose the thumbs,” and an
examination of his cervical spine and upper and lower
extremities revealed otherwise normal results.
(Id.)
Based in large part upon Dr. Bagner’s assessment (along
with the remaining medical evidence), the SSA’s non-examining
state agency physician, Zwi Kahanowicz, M.D., reviewed the
record on April 19, 2013, and found that Plaintiff’s exertional
limitations left him able (1) to occasionally lift twenty pounds
and frequently lift ten pounds, (2) to stand and/or walk for six
hours in an eight-hour day, (3) to sit for six hours in an
eight-hour work day, (4) to occasionally stoop and climb
ladders, ropes, and scaffolds, and (5) to frequently balance,
kneel, crouch, crawl, and climb stairs.
(See R. at 66-69.)
In
other words, Dr. Kahanowicz found Plaintiff able to perform the
full range of “LIGHT” sedentary work.
(R. at 65, 69.)
On
account of this RFC, the SSA denied his initial application for
Social Security benefits on April 24, 2013.
(See R. at 69-70,
80-81, 112-23.)
Plaintiff requested reconsideration of this initial denial
on May 15, 2013.
(See R. at 124-28.)
11
In seeking
reconsideration, Plaintiff reiterated that his chronic pain and
stiffness precluded him from performing the activities that he
once could.
(See R. at 83, 142.)
Indeed, Plaintiff claimed,
for the first time, that this inability had caused him to become
depressed and unmotivated. 8
(See R. at 83.)
In addition, on May
21, 2013, Dr. Pirolli provided his opinion concerning
Plaintiff’s ability to perform work-related activities.
at 468-69.)
(See R.
In his opinion, Dr. Pirolli stated that Plaintiff
could rarely climb bend, crouch, lift heavy weights (above 25
pounds), or reach in all directions (including overhead), and
would frequently have to alternate between sitting and standing
in order to relieve pain.
(See id.)
Despite these limitations,
Dr. Pirolli reasoned that Plaintiff could sit for up to six
hours, stand for three hours, frequently carry up to ten pounds,
and could occasionally climb stairs, balance, or kneel.
id.)
(See
Armed with this additional evidence, non-examining state
agency physician, Isabella Rampello, M.D., reviewed the record
anew on June 20, 2013, and concluded that Plaintiff retained the
functional capacity to perform “LIGHT” sedentary work.
at 82-101.)
(See R.
As a result, on June 26, 2013, the SSA denied
8
Despite his claim, the non-examining state agency psychologist,
Joseph Wieliczko, Psy. D., discounted Plaintiff’s psychological
claim, because Plaintiff had not received “any medication” or
psychiatric treatment, and because the record evidence
contained, overall, no indication “of any psychiatric
condition.” (R. at 87.)
12
Plaintiff’s application at the reconsideration level. (See R. at
102-03, 129-34.)
Following these denials, on August 21, 2013, Plaintiff
requested, with counsel, a de novo hearing before an ALJ, and
expressed an intention to provide additional medical evidence. 9
(See R. at 137-41.)
More specifically, on May 30, 2014,
Plaintiff submitted the follow-up opinions of Dr. Pirolli
concerning Plaintiff’s physical capabilities to perform work.
(See R. at 505-06, 511-12.)
In these opinions, Dr. Pirolli
reiterated his earlier impression of the limitations of the
“rigid spine” associated with Plaintiff’s spinal fusion
procedure (nearly twenty years earlier).
Dr. Pirolli restated,
in particular, his view that Plaintiff could carry weight of no
more ten pounds, could sit, stand, and/or walk for nor more than
two hours, and could not walk, climb, stoop, bend, or lift for
any sustained period.
(See R. at 505-06, 511.)
As a result of
these limitations, Dr. Pirolli expressed his opinion that
Plaintiff could not maintain full-time employment.
(See R. at
511-12.)
9
In the meantime, Plaintiff returned to the emergency department
in April 2014 after he fell from his bicycle. (See R. at 493).
Despite the fall, a CT scan of his cervical spine revealed
limited degenerative changes, no “acute fracture deformity,” and
the reviewing physician only directed Plaintiff to receive
“[f]ollow-up [care] as warranted.” (R. at 497.)
13
C.
ALJ’s Decision and Affirmance by the Appeals Council
Following submission of this additional evidence, the ALJ,
Mark G. Barrett, convened a hearing on July 9, 2014, at which
time Plaintiff appeared, with counsel, and the ALJ received
brief testimony from Plaintiff concerning his functional
abilities.
(See generally R. at 24-59.)
As relevant here,
Plaintiff explained to the ALJ that he lives on the second-floor
of a two-story home with his mother and (then) 12-year-old
nephew, and that his 14-year-old daughter lives in North
Carolina with her mother.
(See R. at 31-32.)
In addition,
Plaintiff testified that he last worked in 2011 for the dietary
department of a retirement community, and no longer has a
license on account of a DUI he received in 2009.
43, 52.)
(See R. at 33-
Plaintiff then explained the effects of the
“persistent” pain from his scoliosis and migraine headaches.
(R. at 37-47.)
Despite this pain, however, Plaintiff claimed an
ability to climb stairs (indeed, his second-floor bedroom
required him to do so daily), to lift and carry weight of up to
ten pounds, and to perform routine and simple household chores
(like, for example, washing dishes).
14
(See R. at 47-58.)
Following the hearing, and a “30-day window of opportunity”
to submit additional evidence, 10 the ALJ issued a written
decision on November 14, 2014, in which he applied the five-step
sequential analysis to Plaintiff’s application for Social
Security benefits.
(See generally R. at 9-19.)
The ALJ
concluded, at step one, that Plaintiff had not engaged in
substantial gainful activity since December 31, 2009, the
alleged onset date.
(See R. at 11.)
At steps two and three,
the ALJ found that Plaintiff suffered from lumbar degenerative
disc disease, a history of lumbar fusion, and “Harrington rods
secondary to scoliosis” (R. at 12), but found that these
impairments (or combination of impairments) did not meet or
equal in severity the impairment listing for “disorders of the
spine,” Listing section 1.04.
(See R. at 12-13.)
In reaching
this conclusion, the ALJ noted that Plaintiff’s medical evidence
did not demonstrate “sensory or reflex loss,” “spinal
arachnoiditis,” nor the need for “an assistive device to
ambulate.”
(R. at 13.)
Turning then to Plaintiff’s residual functional capacity,
the ALJ discussed, at length, Plaintiff’s testimony and other
statements concerning his physical limitations, the medical
10
Despite the additional time, Plaintiff does not appear to have
capitalized upon the opportunity to submit further medical
evidence.
15
opinions rendered by the various consultative and nonconsultative examiners, as well as the treatment records of
Plaintiff’s treating physician, Dr. Pirolli, and various
emergency room physicians.
(See generally R. at 13-18.)
Despite Plaintiff’s subjective representations, however, the ALJ
found Plaintiff’s statements concerning the “intensity,
persistence, and limiting effects” of his condition incongruent
with the objective medical record.
(R. at 14.)
The ALJ noted,
in particular, that although the medical record revealed lower
back pain, the years of examination notes documented no
significant functional limitations and an otherwise normal range
of motion.
(See R. at 15-17.)
Even more critically, the ALJ
recounted the wide gaps in Plaintiff’s treatment history (he,
for example, sought no treatment from February 2010 to February
17, 2011), and the inconsistency between Dr. Pirolli’s “checkthe-box” no-work opinion and the remaining medical record
(including, most especially, Dr. Pirolli’s own treatment
records).
(R. at 15-18.)
After surveying all of this evidence, the ALJ determined
that Plaintiff possessed the residual functional capacity to
perform the full range of sedentary work.
(See R. at 13-18.)
With this RFC, the ALJ looked to the Medical-Vocational
Guidelines and SSR 85-15, and determined that Plaintiff could,
despite his limitations, perform work existing in significant
16
numbers within the national economy.
(R. at 19.)
As a result,
the ALJ found Plaintiff “not disabled” as defined in the Social
Security Act.
(R. at 19.)
Following the decision, Plaintiff filed a formal request
for review on January 6, 2015, claiming that the ALJ’s decision
rested upon “legal error,” and armed with additional briefing.
(R. at 5, 291-93.)
On February 9, 2015, however, the Appeals
Council found “no reason” to review the ALJ’s decision, thereby
rendering the ALJ’s decision the final administration decision
in this action.
(R. at 1-3.)
Plaintiff timely filed this
action, which Defendant opposes.
The Court has jurisdiction to
review the Defendant’s final decision pursuant to 42 U.S.C. §
405(g).
III. STANDARD OF REVIEW
A.
Scope of Review, Generally
When reviewing the denial of disability benefits, the Court
must determine whether substantial evidence supports the denial.
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v.
Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008).
The
requirement of substantial evidence, however, constitutes a
deferential standard of review, see Jones v. Barnhart, 364 F.3d
501, 503 (3d Cir. 2004), and does not require “a large or [even]
considerable amount of evidence.”
552, 564 (1988).
Pierce v. Underwood, 487 U.S.
Rather, substantial evidence requires “more
17
than a mere scintilla[,]” Plummer v. Apfel, 186 F.3d 422, 427
(3d Cir. 1999), but generally less than a preponderance.
See
Jones, 364 F.3d at 503; see also Rubinson v. Comm’r of Soc.
Sec., 96 F. Supp. 3d 386, 394-95 (D.N.J. 2015) (setting forth
the same general framework).
In order to facilitate the Court’s review, the ALJ must set
out a specific factual basis for each finding.
Baerga v.
Richardson, 500 F.2d 309 (3d Cir. 1974), cert. denied, 420 U.S.
931 (1975).
Additionally, the ALJ “must adequately explain in
the record [the] 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)), and
must review all pertinent medical and nonmedical evidence “and
explain his conciliations and rejections.”
Burnett v. Comm’r of
Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
However,
the ALJ need not discuss “every tidbit of evidence included in
the record.”
2004).
Hur v. Barnhart, 94 F. App’x 130, 133 (3d Cir.
Rather, the ALJ must set forth sufficient findings to
satisfy the reviewing court that the ALJ arrived at a decision
through application of the proper legal standards, and upon a
complete review of the relevant factual record.
v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983).
18
See Friedberg
B.
Statutory and Regulatory Standards for Determination
of Disability
The SSA reviews claims of disability in accordance with the
sequential five-step process set forth in 20 C.F.R. § 404.1520.
In step one, the SSA determines whether the claimant currently
engages in “substantial gainful activity.”
20 C.F.R. § 1520(b).
In step two, the claimant must demonstrate that the claimant
suffers from a “severe impairment.”
20 C.F.R. § 1520(c).
Impairments lacking sufficient severity render the claimant
ineligible for disability benefits.
F.3d 422, 428 (3d Cir. 1999).
See Plummer v. Apfel, 186
Step three requires the
Commissioner to compare medical evidence of the claimant’s
impairment to the list of impairments presumptively severe
enough to preclude any gainful activity.
20 C.F.R. § 1520(d).
If a claimant does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and five.
Plummer, 186 F.3d at 428. Step four requires the ALJ to consider
whether the claimant retains the ability to perform past
relevant work.
20 C.F.R. § 1520(e).
If the claimant’s
impairments render the claimant unable to return to the
claimant’s prior occupation, the ALJ will consider in step five
whether claimant possesses the capability to perform other work
existing in significant numbers in the national economy, given
19
the claimant’s RFC, age, education, and work experience.
20
C.F.R. § 1520(g); 20 C.F.R. 404.1560(c).
IV.
DISCUSSION
Here, Plaintiff presents two challenges to the ALJ’s
finding, and the Court will address each in turn.
A.
Whether Substantial Evidence Supports the ALJ’s RFC
Assessment
In addressing Plaintiff’s residual functional capacity, the
ALJ concluded, as explained above, that Plaintiff retained the
ability to perform the full range of sedentary work.
(See R. at
13-18.)
Plaintiff argues that the ALJ’s residual functional
capacity assessment lacks substantial evidentiary support,
because he erroneously evaluated and rejected the two “checkthe-box” work opinions of Plaintiff’s family physician, Dr.
Pirolli.
(See Pl.’s Br. at 7-14.)
More specifically, Plaintiff
points to Dr. Pirolli’s “un-contradicted” depiction of
Plaintiff, in two serial work opinions submitted for purposes of
his benefits’ application, as an individual unable “to tolerate
eight hour workdays.”
(Id. at 8-12)
Based upon these opinions,
Plaintiff takes the view that the ALJ had no choice but to find
him disabled.
(See generally id.)
Defendant, by contrast,
advances the position that the ALJ appropriately discounted slim
portions of Dr. Pirolli’s opinion given its inconsistency with
20
other record evidence, and submits in any event that substantial
evidence supports the ALJ’s overall assessment of Plaintiff’s
residual function capacity.
(See Def.’s Opp’n at 8-12.)
For
the reasons that follow, the Court finds that substantial
evidence supports the ALJ’s assessment of Plaintiff’s RFC.
An individual’s residual functional capacity, or RFC,
constitutes the most the person can do in a work setting despite
the limitations imposed by the individual’s impairments.
C.F.R. § 404.1545(a)(1).
See 20
In reviewing the record to make an RFC
assessment, the ALJ must take into account all the medical
opinion evidence along with all other relevant evidence in the
record, 20 C.F.R. § 404.1527(b), and must allocate weight to
each medical opinion upon which the ALJ relies.
See Weidman v.
Colvin, No. 14-552, 2015 WL 5829788, at *9 (M.D. Pa. Sept. 30,
2015).
In the face of conflicting evidence, however, the ALJ
retains significant discretion in deciding whom to credit.
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999); Brown v.
Astrue, 649 F.3d 193, 196 (3d Cir. 2011) (noting that “the ALJ
is entitled to weigh all evidence in making its finding” and the
ALJ is not required to accept the opinion of any medical
expert).
In applying that discretion, the opinions of treating
sources, of course, merit significant consideration, see
Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir.
21
2011) (citing 20 C.F.R. §§ 404.1527(f) and 416.927(f)), and the
ALJ cannot simply “reject evidence for no reason or for the
wrong reason.”
Plummer, 186 F.3d at 429 (citation omitted); see
also Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 203 (3d Cir.
2008) (“Although the ALJ may weigh the credibility of the
evidence, he must give some indication of the evidence which he
rejects and his reason(s) for discounting such evidence.”)
(quoting Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112,
121 (3d Cir. 2000)).
Nevertheless, the “ALJ — not treating or
examining physicians or State agency consultants — must make the
ultimate disability and RFC determinations.”
Chandler, 667 F.3d
at 361 (citations omitted); see also Cruz v. Colvin, No. 151639, 2016 WL 1091347, at *8 (D.N.J. Mar. 21, 2016) (applying
the same framework).
Applying these principles here, the Court finds that the
ALJ’s RFC determination rests upon substantial evidence, and
that the ALJ committed no reversible error in his reliance upon,
or partial rejection of, Dr. Pirolli’s finding of disability.
Indeed, in reaching his RFC decision, the ALJ (1) surveyed the
broad landscape of record evidence, including the opinions of
treating, examining, and non-examining consultants, (2)
discussed chronologically, and at great length, the various
observations of Plaintiff’s condition, as described throughout
the record evidence, and (3) provided a detailed explanation
22
concerning the evidence he credited and discredited (including,
most especially, Dr. Pirolli).
(See R. at 13-18.)
Based upon this exhaustive review and discussion, the ALJ
noted Plaintiff’s persistent complaints of lower back pain, but
found that proper medication markedly abated – and partially
resolved – the severity of Plaintiff’s symptoms, and that the
objective medical evidence consistently undermined Plaintiff’s
claim of significant functional limitations.
(See R. at 14-16.)
In support of this conclusion, the ALJ pointed to the sequential
evaluations that described Plaintiff as (1) having “no
significant disc herniation” (in 2008), (2) “no weakness or
numbness ... 5/5 strength ... normal deep tendon reflexes ...
[and] full sensation” (in 2009 and 2010), (3) “5/5 strength in
all extremities, steady gait, normal deep tendon reflexes, and
normal sensation” (in 2011), (4) a pain level of “only 2 out of
10 with his medications ... and a normal range of motion in his
back and extremities” (in 2012), and (5) “good heel and toe
walking ... normal lumbar flexion ... no motor or sensory
abnormalities in the lower extremities ... no atrophy of the
lower extremity musculature, and ... 2+ reflexes bilaterally”
(in 2013).
(R. at 14-16.)
Even more, the ALJ found the
credibility of Plaintiff’s statements regarding the severity of
his pain belied by the sporadic nature of his efforts to obtain
treatment (because he sought treatment only from his family
23
doctor), and by his participation “in rigorous physical activity
since his alleged disability onset date including carrying a
mattress down the stairs, helping his sister move, shoveling
snow, and doing ‘wheelies’ on his bicycle.”
(R. at 16.)
Turning then to the treatment records and opinion evidence
from Dr. Pirolli, the ALJ acknowledged the ordinarily
“controlling weight” of “treating source opinions,” when
otherwise consistent with the “substantial evidence of record.”
(R. at 16-17.)
The ALJ’s RFC assessment, in turn, reflects that
he took great pains to incorporate the notations contained
within Dr. Pirolli’s long history of treatment notes (see, e.g.,
R. at 15-16 (crediting the various notations of Dr. Pirolli)),
and indeed assigned “great weight” to Dr. Pirolli’s opinions
that Plaintiff could “lift and carry 10 pounds occasionally” and
less than 10 pounds “frequently,” and “could stand and walk for
2 hours, and sit for up to 6 hours.”
(R. at 17.)
The ALJ,
however, assigned “less weight” to Dr. Pirolli’s opinion that
Plaintiff’s impairments left him “unable to work on a full time
or part time basis,” because he found that conclusion
inconsistent with Dr. Pirolli’s own treatment records, the
findings of the consultative examiners and state agency
physicians, and Plaintiff’s admission that he continued to work
after his alleged disability onset date.
24
(R. at 17-18.)
Plaintiff takes issue with the ALJ’s interpretation of Dr.
Pirolli’s opinion, based upon his view that the ALJ should have,
in essence, afforded the opinion dispositive weight.
Br. at 12-14.)
(See Pl.’s
Nevertheless, even a cursory inspection of Dr.
Pirolli’s treatment notes reflect their incongruity with the
reports he submitted for purposes of Plaintiff’s benefits’
applications.
(Compare R. at 435-46, 507-10, with R. at 468-69,
505-06, 511-12.)
Indeed, the treatment records reveal mostly
benign findings, including negative sitting root test results,
good heel and toe walking, no radiculopathy, and a marked
decreased in pain with medication.
(See R. at 435-46, 507-10.)
Dr. Pirolli’s no-work opinion, by contrast, states that
Plaintiff’s impairment precludes him from work, but provides, on
its face, no medical evidence or findings to buttress this view,
much less any direct linkage to Dr. Pirolli’s own treatment
records.
(See R. at 468-69, 505-06, 511-12.)
Indeed, although
the various forms prompted Dr. Pirolli to provide the specific
medical findings underpinning his conclusions, he provided
essentially no detail concerning the basis for his
disability/no-work finding. 11
(See, e.g., id.)
11
Aside from these
In fact, in one of his work-related activities opinions, Dr.
Pirolli left unanswered the fields related to the frequency and
length of his contact with Plaintiff, the precise diagnoses and
symptoms, and Plaintiff’s overall prognosis. (See R. at 46869.) Then, in a follow-up work-related activities opinion, he
based his “medical findings” solely upon the scoliosis
25
circumstances, Dr. Pirolli’s last no-work opinion proves
somewhat internally inconsistent (particularly given the absence
of medical findings), because he described Plaintiff as
ambulatory, and able to stand, walk, climb, stoop, bend, lift,
and use his hands (albeit for shorter time frames), but still
concluded, without explanation, that Plaintiff could not
maintain employment.
(See R. at 511.)
In view of these deficiencies, these opinions provide “weak
evidence at best” on the issue of Plaintiff’s residual
functional capacity, Mason v. Shalala, 994 F.2d 1058, 1065 (3d
Cir. 1993) (describing “form,” “check a box,” or “fill in a
blank” forms as “weak evidence at best”); see also Brewster v.
Heckler, 786 F.2d 581, 585 (3d Cir. 1986) (finding the
reliability of RFC reports that lack “thorough written reports
... suspect”), and the ALJ acted within his authority in
deciding to assign Dr. Pirolli’s work-related opinions lesser
weight, on account of their inconsistency with his treatment
records (among other factors, discussed below).
See Plummer,
186 F.3d at 429 (explaining that an ALJ may reject the opinion
of a treating physician on the basis of inconsistencies and/or
contradictory medical evidence); Coleman v. Comm’r of Soc. Sec.,
“hardware” installed in Plaintiff’s back in 1995, but not any
portion of his years of personal treatment and observation of
Plaintiff. (R. at 505-06.)
26
494 F. App’x 252, 254 (3d Cir. 2010) (explaining that “if the
opinion of a “treating physician conflicts with that of a nontreating, non-examining physician, the ALJ may choose whom to
credit but cannot reject evidence for no reason or for the wrong
reason”); Brown, 649 F.3d at 197 n.2 (the “law is clear . . .
that the opinion of a treating physician does not bind the ALJ
on the issue of functional capacity”).
Aside from this inconsistency, Dr. Pirolli’s work opinions
conflicted with the functional capacity findings of essentially
every other medical source, and with Plaintiff’s own
representations concerning his physical abilities.
Indeed, the
consultative and state agency examiners both identified
Plaintiff’s ability to perform a range of activities, and the
various emergency room physicians similarly found that Plaintiff
retained a full range of motor skills, a normal range of motion,
and only mild to moderate tenderness in his lower back.
(See,
e.g., R. at 66-69 (reproducing Dr. Kahanowicz view that
Plaintiff could perform the full range of “light” sedentary
work), R. at 82-101 (same), R. at 372-77 (reproducing emergency
room records reflecting Plaintiff’s marked improvement upon
treatment), R. at 463-67 (reproducing Dr. Bagner’s opinion
concerning, among other things, Plaintiff’s ability to ambulate
without assistance).)
In addition to the results of these
examinations, Plaintiff showed himself able to perform a panoply
27
of physical activities (from shoveling snow for a week to biking
and helping to fix a car), and continued to work even after he
claimed his back pain intensified in 2008 and 2009.
(See, e.g.,
R. at 33-35, 192-95, 251-58, 378, 388, 493.)
Against that backdrop, the Court perceives no error in the
ALJ’s treatment of Dr. Pirolli’s work opinions, and finds that
his RFC determination rests upon substantial record evidence.
See Burke v. Comm’r of Soc. Sec., 317 F. App’x 240, 243 (3d Cir.
2009) (finding no error in the ALJ’s decision to give little
weight to the opinion of a treating physician, where the opinion
proved “inconsistent with the other medical evidence of record
and with his own progress notes”); Cruz, 2016 WL 1091347, at *9
(finding no error in the ALJ’s decision to assign lesser weight
to the work-related opinions of the plaintiff’s treating
psychiatrist, given its inconsistency with other record
evidence).
The Court therefore turns to Plaintiff’s second
challenge.
B.
Whether the ALJ Improperly Relied Upon the Vocational
Grids
In order to determine at step 5 whether jobs exists in the
national economy for a particular plaintiff, the Court of
Appeals generally requires that an ALJ support its determination
by citing to relevant rules, relying upon vocational testimony,
and/or by taking judicial notice of certain vocational
28
resources.
See Sykes v. Apfel, 228 F.3d 259, 273 (3d Cir.
2000); Hall v. Comm’r of Soc. Sec., 218 F. App’x. 212, 217 (3d
Cir. 2007).
When a claimant exhibits “only exertional (i.e. strength)
impairments,” the ALJ may properly rely in step five solely upon
the Medical-Vocational framework, or grids.
Nieves v. Comm’r of
Soc. Sec., No. 12-5590, 2013 WL 3811645, at *4 (D.N.J. July 22,
2013) (citing Sykes, 228 F.3d at 269); see also Torres v. Comm'r
of Soc. Sec., No. 14-6178, 2015 WL 8328346, at *6 (D.N.J. Dec.
8, 2015) (same).
Where, however, the claimant exhibits a blend
of exertional and nonexertional limitations, as Plaintiff claims
here, the ALJ cannot simply rely on the medical-vocational
guidelines to direct a finding of not disabled at step five.
See Hall, 218 F. App’x at 215.
Rather, the ALJ must ordinarily
resort to vocational testimony or a similar vocational resource
(like, for example, a learned treatise).
See Sykes, 228 F.3d at
273.
Based upon Plaintiff’s “residual capacity for the full
range of sedentary work,” the ALJ in this instance looked to
Medical-Vocational Rule 201.27, and determined that it directed
a finding of “‘not disabled.’”
(R. at 19.)
Plaintiff takes
issue with this sole reliance, based upon Dr. Pirolli’s findings
that Plaintiff (1) could rarely climb bend, crouch, lift heavy
weights (above 25 pounds), (2) could rarely reach in all
29
directions (including overhead), (3) would frequently have to
alternate between sitting and standing in order to relieve pain,
and (4) would have to avoid exposure to humidity/wetness and
hazards.
(See Pl.’s Br. at 14-17; Pl.’s Reply at 2-5; R. at
468-69.)
In other words, Plaintiff advances the view that the
ALJ failed to account for the record evidence of Plaintiff’s
postural, environmental, reaching-based, and sit-standing
limitations (i.e., his nonexertional limitations).
(See Pl.’s
Reply at 3-4.)
On this issue, the Court notes, at the outset, that
Plaintiff points to nonexertional limitations without
substantial footing in the medical record evidence, as recounted
above in Sections II.A and II.B.
Nevertheless, even if the ALJ
should have incorporated these limitations within his step 5
determination, Plaintiff concedes that various Social Security
Rulings (hereinafter, “SSRs”) make plain that nonexertional
limitations of the sort claimed here would not ordinarily impact
an individual’s ability to perform unskilled sedentary work.
Indeed, SSR 96-9P squarely states that vocational resources
(aside from the grid) would rarely be required in the face of
postural or environmental restrictions, because sedentary work
would not ordinarily involve significant abilities in these
areas.
See 1996 WL 374185, at *7-*9.
30
The SSRs similarly permit latitude to ALJs in determining
whether to seek vocational assistance based upon limitations to
an individual’s ability to reach and/or handle, see SSR 85-15,
1985 WL 56857, at *7 (explaining that “the assistance of a
[vocational expert] may be needed to determine the effects” of
significant “limitations of reaching or handling”), and an
individual’s need to oscillate between a seated and standing
position.
See SSR 96-9P, 1996 WL 374185, at *7.
Even more
critically, though, SSR 96-9P defines “sedentary work” to
include sitting, as well as occasional walking and standing.
SSR 96-9P, 1996 WL 374185, at *3.
Indeed, work remains
“sedentary” within the meaning of the SS regulations, even if
walking and/or standing subsumes “up to one-third” of a given
workday.
Id.
This level of alternation, in turn, proves
entirely consistent with sit-stand limitations identified by Dr.
Pirolli.
(See, e.g., R. at 468.)
Aside from these circumstances, the nonexertional
limitations claimed by Plaintiff conflict with the physical
pursuits and work he performed and identified subsequent to his
alleged disability onset date (see, e.g., R. at 45-47, 243-258,
493 (describing Plaintiff’s biking on or about April 15, 2014)),
as well as the various medical observations of Plaintiff’s
abilities.
(See, e.g., R. at 33-35, 66-69, 82-101, 192-95, 251-
58, 378, 388, 463-467, 493.)
31
Against that backdrop, the Court finds no error in the
ALJ’s reliance upon Medical-Vocational Rule 201.27. 12
V. CONCLUSION
For all of these reasons, the Court finds that substantial
evidence supports the ALJ’s decision to deny Plaintiff benefits,
and that it should be affirmed.
An accompanying Order will be
entered.
April 26, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
12
Although Plaintiff concedes that the SSRs direct themselves at
the effect of certain nonexertional limitations on the ability
to perform sedentary work, Plaintiff maintains that the ALJ
erred by not evaluating the cumulative impact of these
nonexertional limitations. (See Pl.’s Reply at 4.) Despite
this position, Plaintiff has not explained how the ALJ’s failure
to include these nonexertional limitations, standing alone or
together, resulted in harmful error, see Shinseki v. Sanders,
129 S. Ct. 1696, 1706 (2009) (requiring that the party seeking
remand explain how any error proved harmful), and his citation
to the requirement that the ALJ consider the combined impact of
impairments (as opposed to functional limitations) proves
inapposite here. (See Pl.’s Reply at 4 (citations omitted).)
32
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