COWLEY v. COMMISSIONER OF SOCIAL SECURITY
Filing
17
OPINION. Signed by Judge Jerome B. Simandle on 10/12/2017. (rtm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
THEODORE COWLEY, SR., o/b/o
NANCY COWLEY, DECEASED,1
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 16-4800 (JBS)
v.
COMMISSIONER OF SOCIAL
SECURITY,
OPINION
Defendant.
APPEARANCES:
Michael J. Brown, Esq.
Wolf & Brown, LLC
228 Kings Highway East
Haddonfield, NJ 08033
Attorney for Plaintiff
Antonia M. Pfeffer
Special Assistant U.S. Attorney
Social Security Administration
Office of the General Counsel
P.O. Box 41777
Philadelphia, PA 19101
Attorney for Defendant Commissioner of Social Security
SIMANDLE, District 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
1
Theodore Cowley, Sr., the widower of the claimant, Nancy
Cowley, has been substituted as Plaintiff upon the death of Mrs.
Cowley in March of 2017, while this case was pending.
the Social Security Administration (“SSA”) denying Plaintiff
Nancy Cowley’s (“Plaintiff”) application for disability benefits
under Title II of the Social Security Act, 42 U.S.C. § 401, et
seq. The late Nancy Cowley, who suffered from lung cancer, a
history of back surgery, hypertension, obesity, and chronic
pulmonary insufficiency, was denied benefits for the period
beginning May 15, 2013, the alleged date of disability, to
February 12, 2016, the date on which the Administrative Law
Judge (“ALJ”) issued a written decision. Unfortunately, Mrs.
Cowley died on March 6, 2017.
In the pending appeal, Plaintiff argues that the ALJ’s
decision must be reversed and remanded on four grounds.
Plaintiff contends the ALJ erred by: (1) not finding that
Plaintiff’s impairments met the requirements of Listing 3.02,
chronic pulmonary insufficiency; (2) failing to properly
acknowledge and evaluate Plaintiff’s degenerative disc disease
and radiculopathy; (3) failing to properly account for the
effects of Plaintiff’s obesity; and (4) improperly discrediting
Plaintiff’s testimony. This inquiry is limited to the period
from the claimed onset of disability in May of 2013 until the
date of the ALJ’s decision in February of 2016, and it does not
examine Mrs. Cowley’s status during the post-decision up until
her death in March of 2017. For the reasons stated below, the
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Court will affirm the ALJ’s decision denying Plaintiff
disability benefits.
II. BACKGROUND
A.
Procedural History
Plaintiff filed an application for disability insurance
benefits on January 14, 2014, alleging an onset of disability
beginning May 15, 2013. (R. at 16.) On April 15, 2014, the SSA
denied the claim, and upon reconsideration on July 27, 2014. (R.
at 16.) Hearings were held on December 2, 2015 before ALJ
Jennifer Spector, at which Plaintiff appeared with counsel and
testified, and at which a vocational expert also testified. (R.
at 16.) On February 12, 2016, ALJ Spector denied Plaintiff’s
appeal at step four of the sequential analysis, finding that
Plaintiff was capable of performing past relevant work as a loan
processor or mortgage accounting clerk. (R. at 24.) The Appeals
Council denied Plaintiff’s request for a review and Plaintiff
timely filed the instant action. (R. at 1-12.)
On March 6, 2017, Plaintiff passed away from respiratory
failure. [Docket Item 16.] Her widower, Theodore Cowley Sr.,
subsequently filed a Notice Regarding Substitution of Party upon
Death of Claimant and entered the case as a substituted party on
Plaintiff’s behalf. [Id.] “Plaintiff,” as used in this Opinion,
will refer to the decedent, Nancy Cowley.
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B.
Medical History
The following are facts relevant to the present motion.
Plaintiff was 47 years old as of the date of the ALJ Decision.
(R. at 33.) Plaintiff completed high school and one year of
college. (R. at 170.) She had previous work experience as a loan
processor at a mortgage company. (R. at 53-54, 161.)
1.
Treatments Prior to Alleged Disability
In 2007, six years before the period of alleged disability
began, Plaintiff was reportedly diagnosed with sciatica and a
herniated disk at L5-S1. (R. at 315.) After physical therapy and
epidurals proved unsuccessful, Plaintiff underwent a
microdiscectomy at the L5-S1 level in early 2009. (R. at 315.)
On May 11, 2010, Plaintiff discussed the possibility of
another back surgery with Dr. Lawrence Deutsch. (R. at 316.) Dr.
Deutsch explained to Plaintiff the nature of the surgery,
including the risks and benefits. (R. at 316.) Dr. Deutsch also
“gave [Plaintiff] a long talk about the negative effects of
cigarette smoking on the musculoskeletal system and in general.”
(R. at 317.) On June 16, 2010, Plaintiff underwent a revision
microdiscectomy at the L5-S1 level. (R. at 304-14.)
Two months after the revision surgery, Plaintiff reported
she was “100% better than she was” and had “minimal back pain.”
(R. at 283.) According to Dr. Deutsch, “[Plaintiff] continues to
get some left leg pain that comes and goes several times a day,”
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but “[s]he finds that she can walk it off.” (R. at 283.) Dr.
Deutsch prescribed Plaintiff with Percocet and Neurontin, “in
case she has discomfort.” (R. at 283.) Plaintiff was then given
a doctor’s note to return to work. (R. at 283.)
On November 15, 2012, Plaintiff was admitted to Kennedy
Hospital with complaints of a herniated disk. (R. at 424.) A
biopsy revealed that Plaintiff had adenocarcinoma (i.e., lung
cancer). (R. at 424.) Shortly thereafter, Plaintiff underwent a
successful thoracotomy for the right lobe lobectomy. (R. at
424.) Upon discharge, Plaintiff reported “having no symptoms
[and] feeling much better.” (R. at 424.)
On March 1, 2013, Plaintiff was again admitted to Kennedy
Hospital due to complaints of shortness of breath and dyspnea on
exertion. (R. at 436-51.) Plaintiff reported that “her symptoms
have come on suddenly in the last 24 to 36 hours” and that she
has “significant nasal congestion and rhinorrhea.” (R. at 449.)
Dr. Thomas Morley determined that Plaintiff had acute
exacerbation of chronic obstructive pulmonary disease (“COPD”),
acute bronchitis, leukocytosis secondary to bronchitis,
continual tobacco dependence, obesity, hypertension, and dietcontrolled diabetes. (R. at 449-50.) Dr. Morley noted that
Plaintiff “currently is still smoking 1 pack of cigarettes a day
[and] has been doing so for 25+ years” (R. at 449), and “once
again, [] counseled the importance of continual [sic] of smoking
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cessation.” (R. at 451.) Plaintiff was released the following
day and prescribed with antibiotics, steroids, and other
medication. (R. at 451.)
2.
Impairments During Period of Alleged Disability
On January 14, 2014, Plaintiff filed a claim for disability
insurance benefits, alleging that, starting in May 2013, she
suffered from lung cancer, a history of back surgery, COPD,
diabetes, obesity, and depression. (R. at 169.)
On June 11, 2013, Plaintiff was evaluated by Dr. James
Giudice as a follow-up to her lung cancer surgery. (R. at 27477.) At this meeting, Plaintiff denied any shortness of breath
and stated that her symptoms had improved. (R. at 274.) While
she reportedly smoked one and a half packs of cigarettes a day
for the past 30 years (R. at 275), Plaintiff claimed that,
following the surgery, she had not returned to her smoking
habit. (R. 278.) Dr. Giudice noted that Plaintiff “appeared
healthy, showed no signs of respiratory distress, did not cough
or throat clear, could walk without tachypnea,” and that her
lungs were “clear bilaterally to auscultation and percussion.”
(R. at 276.) Dr. Giudice also ordered a sleep study to determine
whether Plaintiff had significant obstructive sleep apnea. (R.
at 278.)
On June 24, 2013, Plaintiff met with Dr. Elyse Kernis to
obtain refills on her medications. (R. at 218-21.) During this
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appointment, Plaintiff explained she recently quit her job “due
to feeling of exhaustion” and reported that she was “not
sleeping well” and planned to undergo a sleep study in the next
few days. (R. at 218.) Plaintiff also reported smoking five or
less cigarettes “some days, but not every day.” (R. at 218.) Dr.
Kernis observed that Plaintiff was “pleasant, alert and
oriented, well developed and well-nourished.” (R. at 219.) Dr.
Kernis further noted that Plaintiff’s lungs were “clear to
auscultation bilaterally” and that Plaintiff had “no wheezes/
rhochi/rales,” but that Plaintiff had “decreased breath sounds
throughout.” (R. at 219.) Dr. Kernis prescribed Plaintiff
Percocet for her back pain, Albuterol Sulfate for shortness of
breath, and VESIcare tablets for an overactive bladder. (R. at
220.) Dr. Kernis also recommended occupational or physical
therapy for Plaintiff’s obesity, which Plaintiff refused. (R. at
220.)
In March 2014, returned to Dr. Giudice and reported she was
experiencing shortness of breath. (R. at 248-52.) At this time,
Plaintiff told Dr. Giudice she was considering applying for
disability, to which he he responded that she was “borderline.”
(R. at 252.) Dr. Giudice diagnosed Plaintiff with “mild
restrictive physiology due to surgery” and tobacco abuse
“questionably terminated 10/18/12,” but found “no evidence of
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COPD on pulmonary function” and “no evidence of sleep apnea on
06/23/13 study.” (R. at 252.)
On September 2, 2014, an MRI revealed “[p]rogressive
degenerative changes and left paracentral inferior disc
extrusion at L5-S1 producing mild canal stenosis and probable
impingement upon the traversing left S1 nerve root.” (R. at
413.) Based on the MRI, Dr. Kernis found “[t]here is normal
alignment and curvature of the lumbar spine[,] . . . [t]here are
mild Modic type II degenerative endplate signal changes[,] . . .
[and t]here is new fluid within the L5-S1 disc space which is
likely degenerative in etiology.” (R. at 412.) Ultimately, Dr.
Kernis concluded that these findings “produce mild canal
stenosis” and that there was “mild right and moderate to severe
left neuroforaminal narrowing which is unchanged” and “stable
postsurgical changes status post left hemilaminectomy.” (R. at
413.)
Plaintiff returned to see Dr. Kernis several times between
June 2013 and September 2015, complaining of both shortness of
breath and back pain. (R. at 219-43, 237-407.) Plaintiff’s
examinations typically showed normal gait, normal reflexes, full
strength, normal sensation, and that her lungs were clear to
auscultation without wheezes, rhonci, and rales, but that she
had decreased breath sounds. (R. at 219, 225, 228, 232, 235,
239, 242, 332, 336, 341, 345, 350, 354, 358, 362, 365, 367, 370,
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375, 378, 386, 391, 394-95, 398, 401, 405.) Dr. Kernis continued
to prescribe Plaintiff with Percocet and Lyrica and encouraged
Plaintiff to quit smoking and lose weight. (R. 358, 376, 379.)
Of note, Dr. Kernis reported several instances where
Plaintiff failed to follow her medical advice during this
period. For example, in November 2013, Dr. Kernis noted that
Plaintiff had not started her recommended diabetes education.
(R. at 234.) In February 2014, Dr. Kernis observed that
Plaintiff failed to follow-up on a previously-ordered CT scan to
check for kidney stones and did not follow her diet and make
prescribed lifestyle changes. (R. at 403.) In February 2015, Dr.
Kernis also noted that Plaintiff refused to see a pain
management specialist. (R. at 365.) And, despite repeated
recommendations to stop smoking, Plaintiff continued to smoke at
least a pack of cigarettes per day. (R. at 329, 341, 346, 349,
363, 371, 373, 376, 380, 384, 386, 390, 393, 397, 399-400.) For
these reasons, among others, Dr. Kernis ultimately concluded
that Plaintiff “lacks motivation and refuses to follow advice.”
(R. at 337.)
On April 2, 2015, Plaintiff began seeing Dr. Edmund Moon.
(459-64.) Dr. Moon initially noted that Plaintiff had a
“significant tobacco use disorder” and observed that, while
Plaintiff reported issues sleeping at night, a sleep study “just
demonstrated no sleep apnea.” (R. at 459.) Dr. Moon assessed
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that Plaintiff’s dyspnea was likely caused by a combination of
COPD and obesity, with the “biggest issue” being “tobacco use
that is ongoing.” (R. at 460.) Dr. Moon discussed the need for
weight loss and discussed the importance of cutting out
unnecessary carbohydrates and fatty meals. (R. at 460.) Dr. Moon
further recommended that Plaintiff start a combined regimen of
nicotine transdermals and bupropion to help her quit smoking.
(R. at 461.)
Plaintiff returned to Dr. Moon on May 5, 2015. (R. at 45458.) At this follow-up meeting, Plaintiff reported that she
continued to have fragmented sleep and had scheduled another
sleep study for the following week. (R. at 454.) Dr. Moon
observed that Plaintiff “has not made headway in losing weight”
and “tried bupropion but not nicotine patches and continues to
smoke.” (R. at 454.) Dr. Moon again counseled Plaintiff about
the importance of weight loss and increasing daily activity. (R.
at 456.) Dr. Moon also recommended that Plaintiff consult with a
doctor at a smoking cessation center about her tobacco use
disorder. (R. at 456.)
On December 12, 2015, Plaintiff testified to the ALJ that
she was still smoking “[a] little bit,” but had been taking
Chantix to try to quit. (R. at 56.)
3.
Plaintiff’s Activities
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Plaintiff reported to the SSA that, during the relevant
period, she cared for her personal needs, performed light
chores, prepared small meals, drove a car, went out alone,
shopped in stores for groceries, went outside once a day, played
cards twice a week at her sister’s house, could lift ten pounds,
could walk one block, and watched television. (R. at 177-81,
185-88.) At the hearing, Plaintiff testified to the ALJ that she
folded the laundry (R. at 49) and cooked simple meals (R. at
50), but could not tie her shoes (R. 49) and otherwise spent the
rest of her day in a recliner chair, sitting with her feet
elevated. (R. at 42, 60.) Plaintiff further testified that
breathing was her “biggest issue” and that “I can’t breathe and
I can’t walk. Other than that I’m fine.” (R. at 40, 51.)
In May 2013, five months after her surgery for lung cancer,
Plaintiff quit her job as a loan processor because she “was
having a lot of problems breathing.” (R. at 55.) Plaintiff
briefly returned to work, but was fired for falling asleep on
the job. (R. at 46.) Plaintiff has not held a job since being
terminated as a loan processor.
4.
State Agency Consultants
Dr. Martin Sheehy, a state agency physician, reviewed
Plaintiff’s treatment records in April of 2014. (R. at 72-75.)
Dr. Sheehy noted that Plaintiff was a “severely obese” 45-yearold woman “with chronic back pain.” (R. at 74.) Dr. Sheehy
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further observed that Plaintiff had “[l]ung restriction on basis
of lung removl [sic] and obesity.” (R. at 74.) Based on his
review of Plaintiff’s medical records, Dr. Sheehy assessed that
Plaintiff could perform a range of light work involving lifting
and carrying up to twenty pounds occasionally and up to ten
pounds frequently; standing for four hours per workday; sitting
for about six hours per workday; never climbing ladders, ropes,
and scaffolds, but occasionally climbing ramps and stairs;
occasionally balancing and stooping; and frequently kneeling,
crouching and crawling; no concentrated exposure to humidity;
and not even moderate exposure to pulmonary irritants and
hazards. (R. at 73-75.) Dr. Isabella Rampello, another state
agency physician, conducted a review of Plaintiff’s medical
records on June 16, 2014, and affirmed Dr. Sheehy’s assessment.
(R. at 82-85.)
On April 14, 2014, Dr. Joseph Wieliczko, a state agency
medical consultant, completed a Case Analysis with respect to
Plaintiff’s alleged depression. (R. at 72.) Dr. Wielickzo
observed that Plaintiff “is not receiving any medication or
participating in any form of treatment for a [psychiatric]
condition at this time.” (R. at 72.) Dr. Wielickzo also found
that “[a] review of the medical evidence in file does not
indicate the presence of a significant psychiatric condition.”
(R. at 72.) Accordingly, Dr. Wieliczko found that Plaintiff did
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not suffer from any psychological impairments, including
depression. (R. at 72.)
C.
ALJ Decision
In a written decision dated February 12, 2016, 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, consistent with her age, education, work experience,
and residual functional capacity (“RFC”), she was capable of
performing past relevant work as a loan processor or mortgage
accounting clerk. (R. at 24.)
At the first stage of the five-step sequential evaluation
process, the ALJ confirmed that Plaintiff had not engaged in
substantial gainful activity since May 15, 2013, the alleged
onset date of disability. (R. at 18.)
At step two, the ALJ determined that Plaintiff suffered
from the following “severe impairments: lung cancer,
hypertension, obesity and chronic pulmonary insufficiency.” (R.
at 18.) The ALJ found that Plaintiff’s diabetes mellitus and
kidney stones were not severe because they were “stable and/or
well-controlled with medication (when she is compliant with
prescribed treatment).” (R. at 19) (internal quotation marks
omitted). The ALJ did not address Plaintiff’s history of back
surgery at step two. (Pl. Br. at 21.)
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Despite recognizing Plaintiff’s 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
19.) With respect to Plaintiff’s claim that her impairments may
meet the requirements of listing 3.02, chronic pulmonary
insufficiency, the ALJ found that “[t]he evidence, including
Exhibit 8F, fails to document any of the medical results
necessary to satisfy the requirements of listing 3.02 with
respect to the FEV, FVC, or a chronic impairment of gas exchange
as required by the listing.” (R. at 19.)
Between step three and step four, the ALJ determined that
Plaintiff possessed the RFC to perform “sedentary work,” with
the limitation that:
[Plaintiff] can only stand or walk for 1 hour a day in
total, can sit up to 8 hours, occasionally climb ramps and
stairs, never climb ladders, ropes or scaffolds, can only
occasionally balance, stoop, kneel, crouch or crawl, can
occasionally tolerate exposure to humidity with no exposure
to fumes, odors, dusts, gases, extreme cold or heat,
hazards, such as unprotected heights and hazardous
machinery, and no outdoor work.
(R. at 19.) Although the ALJ found that Plaintiff’s medically
determinable impairments “could reasonably be expected to cause
the alleged symptoms,” she found Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of
these symptoms “are not entirely credible.” (R. at 22.) Among
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the reasons the ALJ did not find Plaintiff’s testimony to be
credible was Plaintiff’s “extensive history of noncompliance
with treatment and medication,” as well as her continued use of
tobacco after undergoing surgery for lung cancer. (R. at 23.)
Based on testimony by a vocational expert, the ALJ
ultimately determined at step four that Plaintiff was capable of
performing past relevant work as a loan processor or mortgage
accounting clerk. (R. at 24.)
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
15
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).
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
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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). 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.
Substantial evidence supports the ALJ’s step three
determination that Plaintiff’s impairments do not meet
the requirements of Listing 3.02.
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At step three, the ALJ evaluated whether Plaintiff’s
impairments, singly or in combination, met or medically equaled
the criteria of Listing 3.02, chronic pulmonary insufficiency.
(R. at 19.) As relevant here, the ALJ concluded that the
“evidence, including Exhibit 8F, fails to document any of the
medical results necessary to satisfy the requirements of listing
3.02 with respect to the FEV, FVC, or chronic impairment of gas
exchanged as required by the listing.” (R. at 19.) Nevertheless,
the ALJ still identified Plaintiff’s chronic pulmonary
insufficiency as a “severe” impairment at step two of the fivestep analysis (R. at 18), which was then factored into
Plaintiff’s RFC. (R. at 19-24.)
Plaintiff argues that the ALJ erred by finding she did not
meet the requirements for Listing 3.02(A) or (B). (Pl. Br. at
18-20.) Specifically, Plaintiff argues that the ALJ improperly
ignored test results from May 7, 2015, indicating FEV1 and FVC
values below the requirements for Listing 3.02. (Pl. Br. at 19;
R. at 455.) Plaintiff further argues that, to the extent “the
ALJ wanted to see results that complied with the specific
technical requirements, then the ALJ still had results which
should have required her to investigate this issue by seeking a
consultative examination or requesting [Plaintiff] to seek
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further testing from her own pulmonary specialist.” (Pl. Br. at
20.) The Court is not persuaded by either argument.
Listing 3.02(A) provides: “Chronic obstructive pulmonary
disease, due to any cause, with the FEV1 equal to or less than
the values specified in table I corresponding to the person's
height without shoes.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 3.02(A). Listing 3.02(B) provides: “Chronic restrictive
ventilatory disease, due to any cause, with the FVC equal to or
less than the values specified in table I corresponding to the
person's height without shoes.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 3.02(B). Plaintiff’s height of 167.8 centimeters (R.
at 455) corresponds to an FEV1 value of 1.35 or less and an
FVC value of 1.55 or less. 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 3.02(A)-(B). “For a claimant to show his impairment matches a
listing, it must meet all of the specified medical criteria. An
impairment that manifests only some of those criteria, no matter
how severely, does not qualify.” Sullivan v. Zebley, 493 U.S.
521, 530 (1990) (emphasis in original).
Here, substantial evidence supports the ALJ’s determination
that Plaintiff did not meet all of the requirements of Listing
3.02. First, various physician treatment notes from after
Plaintiff’s lung cancer surgery indicate that Plaintiff’s lungs
were “clear to auscultation bilaterally” and that she had a
regular breathing rate and effort with no wheezing, rhonchi, or
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rales. (R. at 350, 354, 358, 362, 365, 367, 370, 378, 381, 386,
389, 394, 398.) Second, multiple tests performed during the
period of Plaintiff’s alleged disability showed FEV1 and FVC
levels well above the required listing range. For example, test
results from October 20, 2014 indicate FEV1 values of 1.42 and
FVC values of 1.84 (R. at 455), test results from March 12, 2013
show FEV1 values of 1.53 and FVC values of 2.12 (R. at 259), and
test results from June 11, 2013 found FEV1 values of 1.45 and FVC
values of 1.80. (R. at 266.) Indeed, the May 2015 test results
upon which Plaintiff relies, which showed FEV1 values of 1.13 and
FVC values of 1.47, are the only ones that show Plaintiff having
FEV1 or FVC levels below the requirements for Listing 3.02. (R.
at 455.)
Moreover, in light of the well-documented medical evidence
in the record, the ALJ properly exercised her discretion in
declining to order an additional consultative examination. See
Veite v. Astrue, 2011 WL 6780655, at *10 (W.D. Pa. Dec. 27,
2011) (“The decision whether to seek further examinations and
consultations regarding a claimant’s impairments is
discretionary.”); Bomentre v. Barnhart, 2008 WL 1815330, at *4
(E.D. Pa. Apr. 18, 2008) (“Even where medical testimony is
ambiguous, the Court must defer to the ALJ’s decision not to
purchase a consultative exam when she finds that the record
contains sufficient evidence to make such a decision.”).
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For these reasons, substantial evidence supports the ALJ’s
step three determination that Plaintiff’s impairments do not
meet the requirements of Listing 3.02.
C.
The ALJ properly acknowledged and evaluated
Plaintiff’s degenerative disc disease and
radiculopathy in the RFC.
Plaintiff next argues that the ALJ erred by failing to
mention Plaintiff’s back problems “with any specificity” at any
step in her decision. (Pl. Br. at 23.) Instead, Plaintiff
argues, the ALJ ignored “clear evidence that [Plaintiff] has
severe back problems, supported by objective evidence of both
MRIs and nerve conduction studies.” (Pl. Br. at 23.)
As Plaintiff correctly points out, the ALJ did not identify
any impairment to plaintiff’s spine at step two. (R. at 18-19.)
The ALJ did, however, extensively describe Plaintiff’s backrelated medical history before formulating Plaintiff’s RFC. (R.
at 19-24.) For example, the ALJ noted that Plaintiff was able to
increase her activity with Lyrica (R. at 22), and indicated that
Plaintiff refused to see a pain management specialist despite
her reported back pain. (R. at 23.) After considering the
medical evidence and Plaintiff’s testimony, the ALJ ultimately
determined that Plaintiff had an RFC to perform sedentary work,
with the limitation that Plaintiff “can only stand or walk for 1
hour a day in total, can sit up to 8 hours, occasionally climb
ramps and stairs, never climb ladders, ropes or scaffolds, [and]
21
can only occasionally balance, stoop, kneel, crouch or crawl.”
(R. at 19.)
An individual's RFC constitutes the most the person can do
in a work setting despite the limitations imposed by the
individual's impairments. See 20 C.F.R. § 404.1545(a)(1). 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).
Social Security Ruling (“SSR”) 96-8p dictates that the RFC
assessment be a “function-by-function assessment based upon all
of the relevant evidence of an individual's ability to do workrelated activities.” In order to meet the requirements of SSR
96-8p, the ALJ “must specify the evidence that he relied upon to
support his conclusion.” Sullivan v. Comm'r of Soc. Sec., No.
12-7668, 2013 WL 5973799, at *8 (D.N.J. Nov. 8, 2013). Moreover,
the ALJ's finding of RFC must be “accompanied by a clear and
satisfactory explanation of the basis on which it
rests.” Fargnoli, 247 F.3d at 41 (quoting Cotter v. Harris, 642
F.2d 700, 704 (3d Cir. 2011)).
It is well established that “the ALJ - not treating or
examining physicians or State agency consultants - must make the
22
ultimate disability and RFC determinations.” Chandler v. Comm'r
of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (citing 20 C.F.R.
§§ 404.1527(e)(1), 404.1546(c)). Furthermore, while an ALJ must
consider the opinions of treating physicians, “[t]he law is
clear . . . that the opinion of a treating physician does not
bind the ALJ on the issue of functional capacity” where it is
not well supported or there is contradictory evidence. Chandler,
667 F.3d at 361 (alteration in original) (quoting Brown v.
Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011)).
When a conflict in the evidence exists, the ALJ retains
significant discretion in deciding whom to credit. Plummer, 186
F.3d at 429. The ALJ is entitled to weigh all evidence in making
its finding, and is not required to accept the opinion of any
medical expert. Astrue, 649 F.3d at 196. In discounting
evidence, the ALJ must give a clear explanation for why it is
doing so. Plummer, 186 F.3d at 429; Cotter, 642 F.2d at 704-05.
Here, the ALJ relied on Plaintiff’s medical records, the
opinions of two state agency physicians, and Plaintiff’s own
testimony to determine that her back-related problems did not
limit her ability to sit for eight hours per day. The ALJ’s
determination is well-supported for several reasons. First,
while Plaintiff had surgery on her back in 2009 and 2010,
Plaintiff reported two months after the second surgery that she
was “100% better than she was” and had “minimal back pain.” (R.
23
at 283.) Second, the medical records show that Plaintiff
reported pain and limitations in walking, but no limitations in
sitting. (R. at 227, 230, 237, 332, 339, 369, 380, 384, 388.)
Third, Plaintiff was instructed to see a pain management
specialist, which she refused to do. (R. at 365) Fourth,
Plaintiff testified to the ALJ that she quit her job because she
was “having a lot of problems breathing,” not because she had
significant back pain or any issues sitting for long periods of
time. (R. at 55.) Indeed, Plaintiff admitted that she spent most
of her day sitting in a recliner chair (R. at 60.)
Ultimately, the ALJ determined that Plaintiff’s backrelated issues did not affect her ability to sit for long
periods of time. For the reasons discussed above, substantial
evidence supports the ALJ’s consideration of Plaintiff’s backrelated issues.
D.
The ALJ properly accounted for the effects of
Plaintiff’s obesity in the RFC.
Plaintiff also argues that the ALJ “failed to provide a
reviewable analysis of the effects of Plaintiff’s morbid obesity
on the RFC.” (Pl. Br. at 24.) The record indicates otherwise. Up
front, the ALJ explained that SSR 02-01p “requires
Administrative Law Judges to consider obesity in determining
whether claimants have medically determinable impairments that
are severe, whether these impairments meet or equal any listing,
24
and finally in determining the residual functional capacity.”
(R. at 18.) The ALJ then observed that Plaintiff was five feet
five inches tall and weighed 280 pounds, which corresponded to a
BMI 46.6. (R. at 18-19.) As she was required to do, the ALJ
considered “any additional and cumulative effects of
[Plaintiff’s] obesity . . . in assessing [Plaintiff’s]
impairments under each step of the sequential evaluation
process.” (R. at 19.) Indeed, the ALJ ultimately determined that
Plaintiff’s obesity was a “severe” impairment (R. at 18), which
was factored into the ALJ’s finding that Plaintiff only had the
RFC to perform sedentary work, subject to additional
limitations. (R. at 19.) Substantial evidence supports the ALJ’s
treatment of Plaintiff’s obesity.
E.
Substantial evidence supports the ALJ’s decision to
discount Plaintiff’s testimony.
In assessing Plaintiff’s RFC, the ALJ found Plaintiff’s
statements concerning the intensity, persistence, and limiting
effects of her symptoms “are not entirely credible.” (R. at 22.)
Among the reasons the ALJ did not find Plaintiff’s testimony to
be credible was Plaintiff’s “extensive history of noncompliance
with treatment and medication.” (R. at 23.) Of note, the ALJ
explained Plaintiff “failed to stop smoking despite having lung
cancer and chronic obstructive pulmonary disease and has not
lost weight despite multiple directions to quit smoking and lose
25
weight.” (R. at 23.) The ALJ also observed that, “[w]hile
[Plaintiff] attempted to explain away her extensive history of
noncompliance with treatment and medication due to cost, she
receives some prescriptions and treatment.” (R. at 23.)
Furthermore, the ALJ explained, “the expense of prescriptions
[does not] explain away a refusal to continue taking a
medication for more than a few days, as [Plaintiff] noted she
has done with respect to Breo and metformin, when presumably it
has already been purchased.” (R. at 23.)
Plaintiff argues that the ALJ erred in discounting
Plaintiff’s testimony by: (a) overstating Plaintiff’s daily
activities; (b) incorrectly finding that Plaintiff was not
credible due to her failure to follow medical advice; (c)
discounting Plaintiff’s complaints that were not supported by
medical evidence; and (d) failing to consider Plaintiff’s dire
financial position and long work history. The Court does not
find Plaintiff's arguments to be persuasive because there is
substantial evidence in the record supporting the ALJ’s
determinations of the inconsistencies and implausibilities of
Plaintiff’s explanations.
“The credibility determinations of an administrative judge
are virtually unreviewable on appeal.” Hoyman v. Colvin, 606
Fed.Appx. 678, 681 (3d Cir. 2015) (quoting Bieber v. Dep't of
the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002)). Therefore, an
26
ALJ's credibility determination is accorded great deference and
will not be disturbed unless it is “inherently incredible or
patently unreasonable.” See St. George Warehouse, Inc. v. NLRB,
420 F.3d 294, 298 (3d Cir. 2005); see also Blue Ridge Erectors
v. Occupational Safety & Heath Review Comm'n, 261 Fed. App’x
408, 410 (3d Cir. 2008). Pursuant to SSR 96–7p, the ALJ “must
consider the entire case record and give specific reasons for
the weight given to the individual's statements.” SSR 96–7p also
“mandates that the [credibility] 'determination . . . must
contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be
sufficiently specific to make clear to ... any subsequent
reviewers the weight the adjudicator gave to the individual's
statements and the reasons for that weight.” Williams v.
Barnhart, 211 Fed. App’x 101, 105 (3d Cir. 2006) (quoting SSR
96–7p). However, inconsistencies in a claimant's testimony or
daily activities permit an ALJ to conclude that some or all of
the claimant's testimony about her limitations or symptoms is
less than fully credible. See Burns v. Barnhart, 312 F.3d 113,
129–30 (3d Cir. 2002).
The Court finds that the ALJ's credibility determinations
were based on substantial evidence. The record shows that
Plaintiff did, in fact, have an “extensive history of
noncompliance,” which the ALJ reasonably determined undermined
27
her credibility regarding the severity of her conditions. (R. at
23.) For example, after being discharged from the hospital
against medical advice in November 2015, Plaintiff refused a
cardiac-follow up that was recommended by Dr. Viswanath. (R. at
466, 474.) Plaintiff also declined to start her diabetes
education, despite a doctor’s recommendation to do so. (R. at
234.) Most telling, as detailed above, Plaintiff refused to quit
smoking after surviving lung cancer, despite multiple doctors
strongly counseling her to do so.
Further, the Court finds that, in making credibility
findings, the ALJ properly indicated which evidence she rejected
and which she relied upon as the basis for her findings. See
Schaudeck, 181 F.3d at 433. A careful review of the ALJ's
detailed analysis indicates that the ALJ provided due
consideration to Plaintiff's assertions, testimony, and medical
record in order to determine Plaintiff's limitations and ability
to work. (R. at R. 19-24.) The ALJ, for example, noted that
Plaintiff made statements regarding her “debilitating pain” (R.
at 23), while the medical records show that Plaintiff refused to
see a pain management specialist. (R. at 365.) Furthermore,
contrary to Plaintiff’s testimony to the ALJ that she “can’t
make it through the whole grocery store . . . by myself anymore”
(R. at 47-48), she reported in her Function Report that she goes
28
outside once a day, is able to drive a car and go out alone, and
that she shops in stores and groceries. (R. at 179-80.)
For these reasons, the Court finds that substantial
evidence supports the ALJ's credibility findings.
V. CONCLUSION
For all of these reasons, the Court finds that the ALJ
followed procedures that comport with the law and that
substantial evidence supports the ALJ’s decision to deny
Plaintiff benefits, and that it should be affirmed. An
accompanying Order will be entered.
October 12, 2017
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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