SMITH v. COMMISSIONER OF SOCIAL SECURITY
Filing
17
OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 7/19/16. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
RUTH SMITH,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil No. 15-7525 (JBS)
v.
COMMISSIONER OF SOCIAL
SECURITY,
OPINION
Defendant.
APPEARANCES:
Adrienne Freya Jarvis, Esq.
800 North Kings Highway
Suite 304
Cherry Hill, NJ 08003
Attorney for Plaintiff Ruth Smith
Paul J. Fishman
UNITED STATES ATTORNEY
By: James A. McTigue
Special Assistant U.S. Attorney
Social Security Administration
Office of the General Counsel
300 Spring Garden Street
6th Floor
Philadelphia, PA 19123
Attorneys for Defendant Commissioner of Social Security
SIMANDLE, Chief Judge:
I.
INTRODUCTION
This matter comes before the Court pursuant to 42 U.S.C. §
405(g)for review of the final decision of the Commissioner of
the Social Security Administration denying Plaintiff Ruth K.
Smith’s application for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. § 401, et seq.
Plaintiff, who suffers from coronary artery disease, peripheral
artery disease, vertigo, and arthritis in her bilateral hands,
was denied benefits for the period beginning July 1, 2011, the
alleged onset date of disability, to April 14, 2014, the date on
which Administrative Law Judge Daniel L. Shellhamer (“ALJ”)
issued a written decision.
In the pending appeal, Plaintiff argues that the ALJ’s
decision must be reversed and remanded on four grounds.
Plaintiff contends that the ALJ erred in (1) finding that
compensation Plaintiff received in the third quarter of 2011 was
substantial gainful activity; (2) failing to acknowledge or
assess the weight of a nurse practitioner’s opinion in his
determination; (3) omitting Plaintiff’s mild mental impairments
in determining Plaintiff’s residual functioning capacity
(“RFC”); and (4) omitting Plaintiff’s manipulative nonexertional limitations from his formulation of her RFC. For the
reasons discussed below, the Court will affirm the ALJ’s
decision denying Plaintiff disability benefits.
II.
BACKGROUND
A. Procedural History
Plaintiff Ruth Smith filed an application for disability
insurance benefits on February 20, 2012, alleging an onset of
2
disability on August 1, 2011. (R. at 19.)1 On June 7, 2012, the
Social Security Administration (“SSA”) denied the claim, and a
request for reconsideration on December 20, 2012. (Id.) A
hearing was held on February 19, 2014 before the ALJ, Daniel N.
Shellhamer, at which Plaintiff appeared and testified with
counsel. (Id.) On April 14, 2014, the ALJ denied Plaintiff’s
appeal at step four of the sequential analysis, finding that
Plaintiff was capable of performing her past relevant work as an
accounts payable clerk and a secretary. (R. at 29.) The Appeals
Council denied Plaintiff’s request for a review. (R. at 1-3.)
Plaintiff then timely filed the instant action.
B. Medical History
The following are facts relevant to present motion.
Plaintiff was 62 years old as of the date of the ALJ Decision
and held a high school diploma. Plaintiff had work experience as
a secretary and accounts payable clerk.
1. Arthritis
In December of 2007, nearly four years prior to the alleged
disability onset date, Plaintiff sought medical treatment for
injury, pain, and swelling in her left hand. Dr. Carty at
Bordentown Family Medical Center diagnosed her with advanced
1
Through her attorney, Plaintiff amended the onset date to July
1, 2011 at her adjudication hearing, and claimed that that was
the date on which she actually stopped working. (R. at 39.)
3
osteoarthritis in her first carpal-metacarpal joint. (R. at
390.) Dr. Carty treated Plaintiff again in 2009 and indicated
that Plaintiff had arthritis with brief attacks of joint
swelling. (R. at 377.)
In May 2012, Dr. Dawoud performed an independent
examination on Plaintiff authorized by the SSA. (R. at 452-454.)
Plaintiff complained of hand pains, especially in her right hand
which made it difficult to grip anything including a pen to
write, or a shovel, or perform other chores. (R. at 452.) Dr.
Dawoud found Plaintiff’s strength was 5/5 in all muscle groups.
(R. at 453.) He also noted she had a full range of motion in all
joints with no redness, swelling, tenderness, or instability.
(Id.) In December 2013, while seeking treatment for unrelated
conditions, Plaintiff denied experiencing any arthritis or joint
pain. (R. at 502.)
2. Peripheral Artery Disease and Coronary Artery
Disease
In April of 2009, Plaintiff underwent surgery after
experiencing severe bilateral lower extremity claudication
symptoms. (R. at 413.) Specifically, Dr. Lee, a vascular
surgeon, cut down Plaintiff’s right common femoral artery and
placed a stent of her right external iliac artery and in her
abdominal aorta. (R. at 415.) In a follow-up appointment with
Dr. Lee in May 2009, Plaintiff stated she was up and ambulating
4
and no longer had symptoms of claudication. (R. at 414.)
Plaintiff did not report to additional scheduled follow-up
appointments with Dr. Lee or contact him for two years. (Id.)
In May 2011, Plaintiff again sought treatment for her lower
extremities from Dr. Lee. (R. at 413.) Plaintiff reported that
her right leg “locked up” and that she was only able to walk
approximately one-half block without rest. (Id.) On June 27,
2011, three days prior to the alleged onset date of disability,
Dr. Lee performed surgery on Plaintiff to treat bilateral lower
extremity claudication due to high-grade stenosis within the
proximal common iliac arteries. (R. at 432.) Three days later,
on June 30, 2011, Plaintiff was deemed stable on her feet and
discharged from the hospital. (R. at 432.)
During a follow-up visit in July of 2011, Dr. Lee indicated
that Plaintiff’s groin incision had healed well and that she
should progressively increase her activities. (R. at 411.) Dr.
Lee next examined Plaintiff in January of 2012 for reassessment
of her lower extremities. (R. at 409.) Plaintiff reported that
she had progressively increased her activity, abstained from
smoking, and denied any disabling claudication symptoms. (Id.)
Dr. Lee noted that “[n]oninvasive arterial studies from November
show[ed] a mild degree of vascular occlusive disease on the
right at rest and with activity and minimal examination of
disease on the left.” (Id.) Dr. Lee found she “continued to do
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well” and again recommended conservative measures of exercise.
(Id.)
During her examination with Dr. Dawoud, authorized by the
SSA in May of 2012, Plaintiff complained of chronic leg pain
after twenty minutes of standing or walking a hundred yards (R.
at 452-53.) Plaintiff reported pain mainly in the back of her
thighs and that her legs sometimes lock up on her. (Id.) Dr.
Dawoud found no evidence of cyanosis, clubbing, or edema in
Plaintiff’s extremities and found that Plaintiff’s pulses were
also equal and full in all four extremities. (Id.) Dr. Dawoud
noted that Plaintiff walked without a limp and found it unclear
why Plaintiff still had such severe pain when walking despite
positive results of her physical examination. (R. at 453.)
3. Vertigo
In March of 2008, Plaintiff first sought treatment at
Robert Wood Johnson Hamilton Emergency for sudden vertigo
accompanied by nausea and vomiting. (R. at 240.) Plaintiff was
given CT scan of the head which showed nothing out of the
ordinary. (Id.) In August of that year, Plaintiff sought
additional treatment for dizziness accompanied by hearing loss
and consulted with Dr. Burstein, an ear, nose, and throat
specialist. (R. at 242-43.) Upon examination, Plaintiff reported
that she was able to function in her daily life, but was
bothered by vertigo after sudden head movements. (R. at 242.)
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Dr. Burstein diagnosed Plaintiff with viral labyrinthitis and
proscribed no additional medication, noting that it would take
six to twelve months before Plaintiff’s body learned to
compensate for her weakened vestibular nerve. (R. at 243.)
In April of 2010, Plaintiff underwent additional diagnostic
testing after she complained of persisting dizziness and
unsteadiness. (R. at 257.) While Dr. Kaiser found Plaintiff’s
strength and gait were normal, he recommended she get an MRI of
her brain. (R. at 258.) The MRI interpreter noted that Plaintiff
had more neurological abnormalities than expected of a patient
her age but did not opine on the cause of her symptoms. (R. at
277.)
In her independent examination with Dr. Dawoud in May 2012,
Plaintiff alleged that she “intermittently” suffered from
vertigo and had to move slowly. (R. at 452.) She also stated she
had trouble with her balance and experienced dizziness. (Id.)
Upon examination, Dr. Dawoud found Plaintiff’s cranial nerves II
through XII intact, her upper and lower extremities equal, and
her Romberg test negative. (R. at 453.) Dr. Dawoud noted that
Plaintiff had difficulty balancing on either leg and remarked
she may benefit from seeing a specialist for vertigo. (Id.)
In May 2012, Dr. Rampello also examined Plaintiff on behalf
of the SSA. (R. at 66-68.) After reviewing both Plaintiff’s
medical history and her complaints of dizziness, difficulty
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balancing, and history of falls, Dr. Rampello opined that
Plaintiff could occasionally lift or carry twenty pounds and
frequently lift or carry ten pounds. (R. at 66-67.) Dr. Rampello
also found that she could likely stand or walk for four hours
and sit for six hours with normal breaks in an eight hour
workday. (Id.) Dr. Rampello also noted that Plaintiff had no
restrictions on her ability to push or pull. (Id.) Further, Dr.
Rampello concluded that Plaintiff had some postural limitations,
but no manipulative, visual, or communicative limitations. (R.
at 67.) Specifically, Plaintiff could occasionally climb
ramps/stairs, balance, stoop, kneel, crouch, and crawl, but
never climb ladders, ropes, or scaffolds. (Id.) Dr. Rampello
also found that Plaintiff should avoid concentrated exposure to
hazards like heights and machinery, but had no other
environmental limitations. (R. at 67-68.)
Dr. Rampello
concluded that Plaintiff’s limitations would not prevent her
from performing her past relevant work as a secretary. (R. at
69.)
In October of 2012, Dr. Golish conducted an additional
assessment for the SSA as part of Plaintiff’s reconsideration of
the denial of her disability benefits. (R. at 78-80.) Dr. Golish
affirmed Dr. Rampello’s assessment of Plaintiff’s residual
functional capacity in its entirety and similarly concluded
8
Plaintiff could perform her past relevant sedentary work as it
was actually performed. (R. at 81.)
In April of 2013, Plaintiff checked into the emergency room
at Robert Wood Johnson Hamilton alleging multiple falls caused
by dizziness within the last three to six days. (R. at 456-481.)
A CT scan found no evidence of an acute intracranial hemorrhage,
but moderate diffuse cortical atrophy with chronic small vessel
changes of the deep white matter. (R. at 457.) The neurology
exam also found that Plaintiff was oriented to person, place,
and time, that she had normal speech, gait, and memory, that she
had no focal sensory or cerebellar deficits, and that her
cranial nerves were intact. (R. at 472.) Due to the negative
diagnostic exam results, Plaintiff was diagnosed with vertigo,
discharged, and given a prescription for meclizine to help
alleviate symptoms. (R. at 475-76.)
In May of 2013, Plaintiff sought additional treatment for
vertigo at Bordentown Family Medical Center with Nurse
Practitioner Nawrock. (R. at 496-501.) Treatment notes from that
visit indicate that Plaintiff reported sudden episodes of
dizziness that increased in frequency and moderately limited her
activities. (R. at 496.) Plaintiff alleged to have lost 40% of
hearing in her left ear. (Id.) Nurse Practitioner Nawrock’s
treatment notes also included the following instructions for
Plaintiff: “Vertigo – Medrol dosepak one tab po as directed.
9
Rest. Plenty of fluids. Use supportive measures to avoid falls.
RTO if S&S worsen or persist more than 10 days. Consider
referral to ENT, F/U with PCP. Patient verbalizes understanding
of instructions.” (R. at 498.)
In December of 2013, Plaintiff again sought treatment at
Bordentown Family Medical Center. (R. at 501-507.) At that
visit, Plaintiff denied dizziness, headache, or hearing trouble.
(R. at 502.) Dr. Lugo’s treatment notes indicate that Plaintiff
reported having an unsteady gait and a history of falls within
the past twelve months. (R. at 507.)
4. Mental Impairments
Plaintiff first sought treatment for depression and anxiety
in September of 2010. (R. at 288.) Plaintiff claimed she was
anxious, sad, had low energy, and suffered from bad
concentration for the previous six months. (Id.) Plaintiff
attributed her mental status to a lot of changes in her job;
specifically, Plaintiff mentioned that several coworkers were
laid off and that her responsibilities at work had been
restricted. (Id.) Dr. VanHise diagnosed Plaintiff with
depression, proscribed her Lexapro, and recommended that
Plaintiff seek counseling. (R. at 289.) Plaintiff did not follow
Dr. VanHise’s recommendation to seek counseling. (Id.)
Plaintiff continued to seek treatment for depression
through April of 2013. (R. at 280-288, 500.) Plaintiff’s
10
treatment notes from October 2010 indicate that she was content
with her diagnosis. (R. at 286.) After beginning medication,
Plaintiff reported that her concentration improved and that she
no longer had trouble getting up and going to work. (Id.)
Treatment notes from January 2011 indicate that Plaintiff’s
depression was “stable.” (R. at 279, 284.) In August 2011,
Plaintiff switched her medication from Lexapro to Zoloft, but
noted that her condition remained stable. (R. at 280.) Prior to
receiving bloodwork for an unrelated issue in March of 2012,
Plaintiff suggested that symptoms from her depression were
alleviated by medication, including any difficulty
concentrating. (R. at 417.) Additionally, her orientation, mood
and affect, speech, thought processes, and judgement were all
found to be normal. (R. at 418-419.)
As of December 2013,
Plaintiff’s medical history chart classified her depression as
“active.” (R. at 500.)
In May of 2012, Dr. Brown performed a consultative
psychological examination on Plaintiff for the SSA. (R. at 447450.) Dr. Brown’s report stated that Plaintiff’s insight and
judgement were intact and she was oriented to person, place, and
time. (R. at 449.) Further, Dr. Brown reported that her speech
was fluent and clear. (Id.) She was able to express her thoughts
and feelings without hesitation or delay. (Id.) Moreover, Dr.
Brown found that Plaintiff’s thought processes were coherent and
11
goal directed, and that her thought content revealed no evidence
of illusions, delusions, hallucinations, or paranoia. (Id.) Dr.
Brown assigned Plaintiff a GAF score of 55 to 60. (R. at 450.)
Psychological consultants engaged by the SSA, Dr. Bortner
and Dr. Wieliczko, also examined Plaintiff. (R. 64-65.) Dr.
Bortner found that Plaintiff had no work-related limitation
despite mild restrictions on her daily life, no limitation on
her social functioning, and no limitation in her concentration,
persistence, and pace. (R. at 65.) Dr. Bortner opined that
Plaintiff could understand and execute both simple and complex
instructions, make work related decisions, interact with others,
and adapt to workplace change. (Id.) Dr. Wieliczko agreed with
Dr. Bortner’s opinion. (R. at 76-77.) After a complete review of
Plaintiff’s mental health records, Dr. Wieliczko concluded that
Plaintiff had no mental impairments that would impact her
ability to function in the workplace. (R. at 77.) Dr. Wieliczko
also determined that Plaintiff’s condition had not worsened
since Dr. Bortner’s initial examination. (Id.)
C. ALJ Decision
In a written decision dated April 14, 2014, the ALJ found
that Plaintiff was not disabled within the meaning of the Social
Security Act at any time through the date of the decision
because she was capable of performing past relevant work as an
accounts payable clerk and a secretary. (R. at 19.)
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At the first stage of the five-step sequential evaluation
process, the ALJ determined that Plaintiff engaged in
substantial gainful activity in the third quarter of 2011, after
the alleged onset date of disability, July 1, 2011. (R. at 21.)
However, the ALJ found that Plaintiff did not engage in
substantial gainful activity in the fourth quarter of 2011, or
at any later time through the date of the Decision. (Id.) The
ALJ continued the five-step evaluation process but only with
respect to the time in which Plaintiff did not engage in
substantial gainful activity.
At step two, the ALJ determined that Plaintiff suffered
from the following “severe impairments: coronary artery disease,
peripheral artery disease, vertigo, and arthritis in her
bilateral hands.” (R. at 22.) The ALJ found that Plaintiff’s
mental impairments were non-severe because they did not cause
more than a minimal limitation in Plaintiff’s ability to perform
basic mental work activities. (R. at 23-24.) The ALJ noted that,
despite claimant’s depressive symptoms, she lived alone and had
no problem taking care of her personal needs. (R. at 22.)
Plaintiff took care of her cat, cooked, cleaned, did laundry,
washed dishes, and took out garbage. (Id.)
In addition, she
drove, shopped, handled money, paid bills, counted change, and
handled a savings account. (Id.) The ALJ also determined that
Plaintiff only had a mild limitation in social functioning
13
because Plaintiff had a normal mood, maintained good eye
contact, and had no problem getting along with others. (Id.)
ALJ Shellhamer further determined that Plaintiff’s
concentration, persistence, and pace were only mildly limited
based on Plaintiff’s own statements and the medical opinion of
Dr. Brown. (R. at 23.) Plaintiff reported no problems paying
attention and that she was able to follow written and spoken
directions. (Id.) Dr. Brown found that she was oriented to
person, place, and time; her speech was fluent and clear; and
her thought processes were coherent and goal directed. (R. at
23-24.) Additionally, the ALJ noted that although Plaintiff
alleged that her depression was severe, she never sought
counseling and had stopped taking medication. (R. at 24.)
Moreover, when Plaintiff sought treatment for depression, her
symptoms were alleviated by medication. (Id.) The ALJ relied on
Plaintiff’s past treatment notes which indicated her depression
was chronic and stable. (Id.) Plaintiff also had not experienced
any episodes of decompensation. (Id.)
Despite recognizing Plaintiff’s physical impairments as
severe, at step three, the ALJ concluded that Plaintiff’s
impairments did not meet, or equal in severity, any impairment
found in the Listing of Impairments set forth in 20 C.F.R. Part
404. (R. at 24.)
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At step four, the ALJ determined that Plaintiff possessed
the residual functioning capacity to perform a full range of
light work, except that:
The claimant can lift and carry twenty pounds
occasionally and ten pounds frequently. Further, the
claimant can stand and/or walk for four hours and sit
for six hours in an eight-hour workday. The claimant can
occasionally balance, stoop, kneel, crouch, crawl, and
climb ramps and stairs, but can never climb ladders,
ropes or scaffolds. Finally, the claimant must avoid
concentrated exposure to hazards, such as machinery and
heights.
(R. at 25.) Although the ALJ found that Plaintiff’s physical
impairments caused her alleged symptoms, he found her statements
concerning the intensity, persistence, and limiting effects of
those symptoms not credible. (R. at 29.) Ultimately, the ALJ
determined that Plaintiff’s RFC allowed her to complete
sedentary exertional work; therefore, the ALJ determined
Plaintiff could perform her past relevant work as an accounts
payable clerk and secretary, and found Plaintiff not disabled.
(R. at 29-30.)
In support of this conclusion, the ALJ evaluated
Plaintiff’s testimony and the testimony of her representatives
regarding her ability to engage in daily activities; the
observations of treating physicians; her use of medications; and
the intensity, persistence, and limiting effects of symptoms
associated with her medical conditions. (R. at 25-30.)
Specifically, with respect to Plaintiff’s arthritis, the ALJ
15
concluded from x-rays from 2007 and 2009 that the severity of
her condition had stayed the same from the date of her diagnosis
to the alleged onset date of disability because her medical
records contained “no updated x-rays or treatment records from
the period at issue regarding the claimant’s hand arthritis.”
(R. at 27.) Similarly, the ALJ noted that while Plaintiff
reported vertigo as her main problem, she continued to work
after her diagnosis. (R. at 28.)
In assessing Plaintiff’s exertional limitations, the ALJ
gave great weight to the SSA medical consultants, Dr. Rampello
and Dr. Golish, who both opined that Plaintiff could stand or
walk for four hours and sit for six hours during an eight hour
workday. (Id.) They also found that Plaintiff could
“occasionally balance, stoop, kneel, crouch, crawl, and climb
ramps and stairs, but could never climb ladders, ropes, or
scaffolds.” (R. at 29.) After considering of the totality of the
objective medical evidence, the ALJ concluded that Plaintiff
possessed the functional capacity to adequately perform many
basic activities associated with work. (R. at 29.)
The ALJ noted several inconsistencies that adversely
affected Plaintiff’s credibility. Namely, Plaintiff’s testimony
as to her daily activities, like performing household chores and
gardening, appeared inconsistent with her allegations of total
disabling symptoms and limitations. (R. at 26.) Further, despite
16
Plaintiff’s allegations of totally disabling symptoms, no
restrictions were recommended by a treating doctor. (R. at 29.)
III.
STANDARD OF REVIEW
This Court reviews the Commissioner's decision pursuant to
42 U.S.C. § 405(g). The Court’s review is deferential to the
Commissioner’s decision, and the Court must uphold the
Commissioner’s factual findings where they are supported by
“substantial evidence.” 42 U.S.C. § 405(g); Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Cunningham v. Comm’r
of Soc. Sec., 507 F. App’x 111, 114 (3d Cir. 2012). Substantial
evidence is defined as “more than a mere scintilla,” meaning
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 400 (1971); Hagans v. Comm’r of Soc. Sec., 694 F.3d
287, 292 (3d Cir. 2012) (using the same language as Richardson).
Therefore, if the ALJ’s findings of fact are supported by
substantial evidence, the reviewing court is bound by those
findings, whether or not it would have made the same
determination. Fargnoli, 247 F.3d at 38. The Court may not weigh
the evidence or substitute its own conclusions for those of the
ALJ. Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir.
2011). Remand is not required where it would not affect the
outcome of the case. Rutherford v. Barnhart, 399 F.3d 546, 553
(3d Cir. 2005).
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IV.
DISCUSSION
A. Legal standard for determination of disability
In order to establish a disability for the purpose of
disability insurance benefits, a claimant must demonstrate a
“medically determinable basis for an impairment that prevents
him from engaging in any ‘substantial gainful activity’ for a
statutory twelve-month period.” Plummer v. Apfel, 186 F.3d 422,
426 (3d Cir. 1999); 42 U.S.C. § 423(d)(1). A claimant lacks the
ability to engage in any substantial activity “only if his
physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.” Plummer, 186 F.3d at 427–428;
42 U.S.C. § 423(d(2)(A).
The Commissioner 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 Commissioner determines whether the
claimant currently engages in “substantial gainful activity.” 20
C.F.R. § 1520(b). Present engagement in substantial activity
precludes an award of disability benefits. See Bowen v. Yuckert,
482 U.S. 137, 140 (1987).
In step two, the claimant must
demonstrate that the claimant suffers from a “severe
impairment.”
20 C.F.R. § 1520(c).
18
Impairments lacking
sufficient severity render the claimant ineligible for
disability benefits.
See Plummer, 186 F.3d at 428.
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 whether the
claimant possesses the capability to perform other work existing
in significant numbers in the national economy, given the
claimant’s residual functional capacity, age, education, and
work experience. 20 C.F.R. § 1520(g); 20 C.F.R. 404.1560(c).
B. The ALJ did not err in finding that Plaintiff engaged in
substantial gainful activity during the third quarter of
2011.
Plaintiff argues first that the ALJ erred in finding that
Plaintiff was ineligible for disability benefits during the
third quarter of 2011 in step one of the sequential analysis
because she had engaged in substantial gainful activity. (Pl.
Br. at 20.) Although the record indicates that Plaintiff was
paid $3,744 during the third quarter of 2011, Plaintiff claims
19
that this was compensation for work done prior to her
termination on July 1, 2011, and that this income should not
preclude a finding that she was disabled during that time
period.
Substantial gainful activity is defined as “significant
mental or physical duties” done for “pay or profit.” 20 C.F.R. §
404.1572. A plaintiff bears the burden of demonstrating the
absence of any substantially gainful activity in her application
for disability benefits.
Plummer v. Apfel, 186 F.3d 422, 428
(3d Cir. 1999). Earnings derived from work activity are
generally the primary consideration in evaluating whether work
qualifies as substantial gainful activity. 20 C.F.R. §
404.1574(a)(1); Beeks v. Comm'r of Soc. Sec., 363 F. App'x 895,
896-97 (3d Cir. 2010). If an individual’s earnings average more
than $1,000 per month in a calendar year, or $3,000 on a
quarterly basis, such earnings generally show that the
individual has engaged in substantial gainful activity. 20
C.F.R. § 404.1574(b)(2)(vii).
There is substantial evidence in the record to support the
ALJ’s finding that Plaintiff engaged in substantial gainful
activity in the third quarter of 2011. First, Plaintiff provided
conflicting information regarding when she was laid off; while
she claimed at the hearing that she stopped working July 1,
2011, she indicated twice on her disability benefits application
20
that she was laid off on July 29, 2011. (R. at 151, 166).
Further, earnings statements in the record before the ALJ
demonstrate that Plaintiff was paid $3,750 from Thompson
Management, LLC for the third quarter of 2011. (R. at 136.)
These earnings exceed the $3,000 threshold established in the
regulations to show that Plaintiff engaged in substantial
gainful activity during the quarter. Additionally, the ALJ noted
that Plaintiff collected unemployment insurance benefits after
she was laid off on July 1, 2011. (R. at 26, 136, 151.) The ALJ
pointed out the inconsistency between Plaintiff’s representation
in this matter that she was disabled as of July 1, and
Plaintiff’s representation to the Department of Labor that she
was entitled to receive unemployment compensation benefits
because she was “ready, willing, able to work, and out looking
for work.” (R. at 26.)
Although Plaintiff asserts these earnings stem from work
done prior to July 2011, she has failed to provide any evidence
to support this claim. The Court finds that the ALJ did not err
by concluding that Plaintiff was ineligible for disability
benefits from July 2011 through September 2011.
C. The ALJ’s evaluation of Nurse Practitioner Nawrock’s May
2013 treatment notes is supported by substantial evidence.
Next, Plaintiff claims the ALJ erred by failing to evaluate
or discuss Nurse Practitioner Nawrock’s recommendation that
21
Plaintiff “use supportive measures to avoid falls” in his RFC
assessment. Plaintiff admits that Ms. Nawrock was not an
“acceptable medical source” as defined by 20 C.F.R §
404.1513(a), but nonetheless, argues that the ALJ erred because
he was required to evaluate Ms. Nawrock’s opinion as a nurse
practitioner as part of his RFC assessment. Id.
Evidence from an “acceptable medical source” must be used
to establish an impairment, but once established, evidence from
“other sources” may be used to show the severity of the
impairment and how it affects a Plaintiff’s ability to function.
20 C.F.R. §§ 416.913(a) and (d); SSR 06-03p. “Other sources” may
include medical sources such as nurse practitioners, physician's
assistants, and therapists. 20 C.F.R. § 416.913(d)(1). The
weight due to an opinion from an “other source” depends on
factors including “how consistent the opinion is with other
evidence,” “the degree to which the source presents relevant
evidence to support the opinion,” and “how well the source
explains the opinion.” SSR 06-03p; see also 20 C.F.R. §§
404.1527(d) and 416.927(d) (discussing factors applicable to
weighing medical opinion evidence).
In this case, the ALJ acknowledged that Plaintiff’s severe
impairments included vertigo, based on evidence from “acceptable
medical sources.” (R. at 22.) Ms. Nawrock’s opinion that
Plaintiff should use supportive measures to avoid falls,
22
however, was inconsistent with the findings of other physicians
who conducted comprehensive examinations of Plaintiff; no other
acceptable medical source who treated Plaintiff for vertigo
included a similar finding in his or her treatment notes. (R. at
67, 81, 453, 476.) The ALJ gave great weight to both Dr.
Rampello’s and Dr. Golish’s findings, who opined that Plaintiff
could stand or walk for four hours a day in their RFC analyses.
(R. at 28.) Dr. Betancourt’s evaluation of Plaintiff in April
2013 also contradicted Plaintiff’s claim that her vertigo
worsened over time. (R. at 472.) Despite Plaintiff’s claims of
repeated falls, Dr. Betancourt found that her speech, gait, and
memory were normal. (Id.) Dr. Betancourt also found no
neurological explanation for Plaintiff’s complaints and noted
that her symptoms were alleviated by medication. (Id.)
Accordingly, Ms. Narock’s opinion that Plaintiff should use
supportive measures to avoid falls was inconsistent with the
other objective medical evidence on record.
Additionally, Ms. Nawrock offered no support or explanation
for her opinion in her treatment notes. (R. at 498.) Ms. Nawrock
provided no work-related assessment or supporting documentation
regarding the severity of Plaintiff’s vertigo in her Patient
Medication Summary. (Id.) Instead, the instruction was on a
general medication summary alongside directions to “rest” and
“take plenty of fluids.” (Id.) The context in which Ms.
23
Nawrock’s opinion was issued suggests that it was a generic
instruction based on Plaintiff’s complaints, rather than a workrelated assessment.
The ALJ’s failure to discuss Ms. Nawrock’s opinion that
Plaintiff should use supportive measures was therefore only a
harmless error because the ALJ would have been entitled to
accord it little weight under SSR 06-09p. “[T]he burden of
showing that an error is harmful normally falls upon the party
attacking the agency’s determination.” Shinseki v. Sanders, 556
U.S. 396, 409 (2009); see also McLeod v. Astrue, 640 F.3d 881,
887 (9th Cir. 2011) (applying Sanders to social security
proceedings); Lippincott v. Comm’r of Social Sec., 982 F. Supp.
2d 358, 380-81 (D.N.J. 2013) (same). The presumption that a
particular error is per se harmful is at odds with the rule that
it is the claimant’s burden to show prejudice from an agency
decision. See Sanders, 556 U.S. at 407 (“We have previously
warned against courts’ determining whether an error is harmless
through the use of mandatory presumptions and rigid rules rather
than case-specific application of judgment, based upon
examination of the record.”) Because Plaintiff cannot show that
discussing Ms. Nawrock’s instruction further would have changed
the outcome of her case, remand is not required. Rutherford v.
Barnhart, 399 F.3d 546, 553 (3d Cir. 2005). The Court finds that
the ALJ did not err by failing to discuss Nurse Practitioner
24
Nawrock’s May 2013 recommendation that Plaintiff use supporting
measures in his opinion.
D. The ALJ did not err in his evaluation of Plaintiff’s mental
impairments in his formulation of her RFC.
Next, Plaintiff argues that the ALJ erred by not accounting
for her mental limitations at step four of the sequential
analysis. (Pl. Br. at 15-18.) Specifically, Plaintiff contends
the ALJ did not include her non-severe mild mental limitations
in his formulation of her RFC.
An individual's residual functional capacity, or RFC, is an
assessment of the most that person can still do in a work
setting, despite the limitations caused by his impairments. 20
C.F.R. § 404.1545(a). In reviewing the record to make an RFC
assessment, the ALJ must consider all relevant medical opinion
evidence and all other relevant evidence in the record. 20
C.F.R. § 404.1527(b); Chandler v. Comm'r of Soc. Sec., 667 F.3d
356, 361 (3d Cir. 2011). The ALJ must consider limitations
imposed by all of an individual's impairments, even those that
are not “severe.” 20 C.F.R. § 404.1545(a)(2)-(3). The ALJ must
allocate weight to each medical opinion upon which he relies.
Shaud v. Colvin, Case No. 15-2278, 2016 WL 1643405, at *7
(D.N.J. Apr. 26, 2016). Additionally, the ALJ's RFC formulation
must “be accompanied by a clear and satisfactory explanation of
the basis on which it rests.” Fargnoli v. Massanari, 247 F.3d
25
34, 41 (3d Cir. 2001) (quoting Cotter v. Harris, 642 F.2d 700,
704 (3d Cir. 1981)).
The Court disagrees with Plaintiff’s assertion that the ALJ
failed to account for Plaintiff’s non-severe mental limitations
in formulating her RFC. The ALJ clearly considered Plaintiff’s
depression at step four, but concluded that Plaintiff’s symptoms
did not significantly limit her basic work activities. (R. at
23.) He noted that, at the time of her hearing, Plaintiff was
not seeking treatment or counseling and did not take medication
for her depression. (R. at 24.) The ALJ also noted that when
Plaintiff did seek treatment, her depression was chronic,
stable, and alleviated by medication, and that when she took her
medication as prescribed, her symptoms did not significantly
limit her activities. (Id.)
In addition, the ALJ discussed the basis for his
formulation of Plaintiff’s RFC, including the weight assigned to
each of the relevant medical opinions on which he relied. The
ALJ assigned great weight to the psychological consultants, Dr.
Bortner and Dr. Wieliczko, who both opined that Plaintiff had no
work-related mental impairment despite mild limitations in daily
living, social functioning, and concentration, persistence, and
pace. (Id.) The ALJ found that these opinions were consistent
objective medical evidence. (Id.) Conversely, the ALJ determined
that Dr. Brown’s assigned GAF score carried little weight
26
because it was inconsistent with Dr. Brown’s own treatment notes
which indicated that Plaintiff was pleasant and cooperative,
that her overall presentation was adequate, and that her eye
contact was appropriate. (Id.)
It is not this Court's role to re-weigh the evidence in the
record. See Gantt v. Comm'r Soc. Sec., 205 F. App'x 65, 67 (3d
Cir. 2006) (“[O]ur role is not to weigh the evidence; our role
on review is limited to determining whether substantial evidence
supports the ALJ's denial of disability benefits.”).
Accordingly, because the ALJ considered all of Plaintiff’s
diagnosed mental limitations and provided a thorough basis for
excluding that impairment in his RFC formulation, the Court
finds that the ALJ’s RFC assessment is supported by substantial
evidence.
E. The ALJ did not err in evaluating Plaintiff’s arthritis in
formulation of her RFC.
Finally, Plaintiff argues that the ALJ erred by failing to
properly account for her bilateral arthritis in his formulation
of her RFC. (Pl. Br. at 18-20.) Additionally, Plaintiff contends
the ALJ’s wrongly assumed that the severity of her arthritis
remained unchanged since the time of her original diagnosis.
The Court finds that the ALJ appropriately considered
Plaintiff’s arthritis when formulating her RFC. Plaintiff’s
allegation that her arthritis was omitted in the ALJ’s RFC
27
assessment is inaccurate; the ALJ discussed both Plaintiff’s xrays demonstrating advanced osteoarthritis in the first carpalmetacarpal joint in 2007 and treatment notes from 2009 which
indicate that her arthritis caused attacks of joint swelling.
(R. at 27.)
He also pointed out, however, that Plaintiff’s
arthritis did not keep her from working at the time of diagnosis
and for several years thereafter, strongly suggesting it would
not currently prevent her from future work. (Id.)
The ALJ also discussed his reasons for not crediting
Plaintiff’s complaints that her arthritis would impact her
functioning in the workplace. Plaintiff testified at the hearing
before the ALJ that she took care of her cat, cooked, cleaned,
did laundry, washed dishes, and took out garbage. (R. at 26.) In
addition, she drove, shopped, handled money, payed bills,
counted change, and handled a savings account. (Id.) The ALJ
also noted that Plaintiff described her termination as being
“laid off” and filed for unemployment, suggesting she was ready,
able, and willing to work. (R. at 26.) Finally, the only
examination of Plaintiff’s arthritis during the relevant period
was Dr. Dawoud’s independent examination in May 2012. (R. at
452-454.) Dr. Dawoud’s notes stated that Plaintiff had a full
range of motion in all joints with no redness, swelling,
tenderness, or instability. (R. at 453.)
28
Plaintiff further claims that the ALJ failed to consider
that arthritis is a degenerative disease which worsens with
time. Plaintiff failed to provide, however, any objective
medical evidence to support her claim. The Court finds
Plaintiff’s argument for remand on this basis unpersuasive
because she has the initial burden of proof under step four of
the sequential analysis. Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994). Allegations of pain and other subjective symptoms
advanced by a claimant must be supported by objective medical
evidence. Id. The ALJ “is entitled to rely not only on what the
record says, but also on what it does not say.” Lane v. Comm'r
of Soc. Sec., 100 F. App'x 90, 95 (3d Cir. 2004). Without
objective medical evidence on the record to substantiate
Plaintiff’s claim that her condition worsened, the ALJ correctly
relied on what the evidence did not demonstrate – Plaintiff’s
inability to pursue her former occupation because her arthritis
worsened.
Given that the ALJ discussed the objective medical evidence
in Plaintiff’s record, and that Plaintiff failed to produce any
evidence to demonstrate her arthritis worsened, the Court finds
the ALJ’s RFC formulation is supported by substantial evidence.
V. Conclusion
For the foregoing reasons, the Court finds that the ALJ
committed no reversible errors in determining that Plaintiff is
29
not disabled. As a result, the ALJ’s decision will be affirmed.
An accompanying Order will be entered.
July 19, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
30
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