FOSTER v. COMMISSIONER OF SOCIAL SECURITY

Filing 10

OPINION FILED. Signed by Judge Robert B. Kugler on 6/30/17. (js)

NOT FOR PUBLICATION

(Doc. No. 1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
ARFIENIA M. FOSTER,
:
:
Civil No. 16-5299 (RBK)
Plaintiff,
:
:
OPINION
v.
:
:
NANCY A. BERRYHILL,
:
ACTING COMMISSIONER OF SOCIAL :
SECURITY
:
:
Defendant.
:
___________________________________ :
KUGLER, United States District Judge:
This matter comes before the Court upon the appeal of Arfienia M. Foster (“Plaintiff”)
for review of the final determination of the Commissioner of Social Security (“Commissioner”).
The Commissioner denied Plaintiff’s application for Social Security Disability (“SSD”) and
Supplemental Security Income (“SSI”) benefits. For the reasons set forth below, the decision of
the Commissioner is AFFIRMED.
I. BACKGROUND
On December 4, 2012, Plaintiff applied for SSD and SSI because she suffered from
multiple sclerosis and obesity. Administrative Record (“Rec.”), Ex. 1D at 203; Ex. 2D at 205
(Doc. No. 5-5). Plaintiff alleged disability as of November 19, 2012 and she is insured for SSDI
through December 31, 2018. Rec., Ex. 1D at 203; Plaintiff’s Brief (“Pl.'s Br.”) at 1 n.1 (Doc. No.
8). Plaintiff’s initial application was denied on May 31, 2013 and denied on reconsideration on
August 23, 2013. Rec., Ex. 3B at 140-45; Ex. 5B at 148-52 (Doc. No. 5-4). Plaintiff filed
requests for hearings before an Administrative Law Judge (“ALJ”) on October 21, 2013 and

1

October 29, 2013. Rec., Ex. 6B at 153; Rec., Ex. 7B at 154-55. A hearing was held before an
ALJ on June 4, 2015, and the ALJ denied Plaintiff’s claims on September 2, 2015. Rec. at 10, 31
(Doc. No. 5-2). Plaintiff submitted a request for review to the Appeals Council on September 18,
2015. Id. at 8-9. The Appeals Council denied Plaintiff’s request for review on July 1, 2016,
which made the ALJ’s determination the final decision of the Commissioner. Id. at 1-5. Plaintiff
filed the instant complaint on February 1, 2016. (Doc. No. 1).
The Social Security Act defines disability as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment . . .
which has lasted or can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 423(d)(1)(A). The ALJ used the established five-step process to determine whether
Plaintiff was disabled. See 20 C.F.R. § 404.1520; ALJ Op. at 14-15. For the first four steps of the
evaluation process the claimant has the burden of establishing her disability by a preponderance
of the evidence. Zirnsak v. Colvin, 777 F.3d 607, 611-12 (3d Cir. 2014). First, the claimant must
show that she was not engaged in “substantial gainful activity” for the relevant time period. See
C.F.R. § 404.1572 (defining “substantial gainful activity”). Second, the claimant must
demonstrate that she has a “severe medically determinable physical and mental impairment” that
lasted for a continuous period of at least 12 months. See C.F.R. § 404.1520(a)(4)(ii) (explaining
second step); 20 C.F.R. §404.1509 (setting forth the duration requirement). Third, either the
claimant shows that their condition is one of the Commissioner’s listed impairments,
demonstrating that she is disabled and entitled to benefits, or the analysis proceeds to step four.
20 C.F.R. § 404.1420(a)(4)(iii) (explaining the third step); see also 20 C.F.R. Pt. 404, Subpt. P.,
App’x 1. Fourth, if the condition is not equivalent to a listed impairment, the claimant must show
that she cannot perform her past work, and the ALJ must assess the claimant’s residual

2

functional capacity (“RFC”). 20 C.F.R. § 404.1520(a)(4)(iv) (explaining the fourth step); 20
C.F.R. § 404.1520(e) (same). If the claimant meets her burden, the burden shifts to the
Commissioner for the last step. Zirnsak, 777 F.3d at 612. At the fifth and final step, the
Commissioner must establish that other available work exists that the claimant is capable of
performing based on her RFC, age, education, and work experience. Id.; 20 C.F.R. § 404.1520
(a)(4)(v) (explaining the fifth step). If the claimant can make “an adjustment to other work,” she
is not disabled. See 20 C.F.R. § 404.1520(a)(4)(v).
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since the alleged onset date of November 19, 2012. ALJ Op. at 15. The ALJ then found that
Plaintiff was severely impaired by her multiple sclerosis and obesity. Id. at 16. At the third step,
the ALJ held that Ms. Foster’s impairments did not meet or medically equal the severity of the
Act’s listed impairments. Id. The ALJ found that Plaintiff did not have disorganization of motor
function, visual or mental impairment, and lacked significant, reproducible fatigue of motor
function with substantial muscle weakness on repetitive activity. Id. At the fourth and fifth steps,
the ALJ found that Plaintiff had the RFC to perform sedentary work with certain restrictions as
defined in 20 C.F.R. 404.1567(a) and 416.967(a). Id. The ALJ noted that Plaintiff was unable to
perform any past relevant work, but there were other jobs Plaintiff could perform in light of her
age, education, work experience, and RFC. Id. at 25. Based on these findings, the ALJ held that
Plaintiff was not disabled under sections 216(i) and 223(d) of the Social Security Act from
November 19, 2012, the alleged onset date, through September 2, 2015, the date of decision. Id.
II. STANDARD OF REVIEW
When reviewing the Commissioner’s final decision, this Court is limited to determining
whether the decision was supported by substantial evidence, after reviewing the administrative

3

record as a whole. Zirnsak, 777 F.3d at 610 (citing 42 U.S.C. §405(g)). Substantial evidence is
defined as “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000). The oft-used description for
this standard is that substantial evidence is “more than a mere scintilla but may be somewhat less
than a preponderance of the evidence.” See, e.g., Rutherford v. Barnhart, 399 F.3d 546, 552 (3d
Cir. 2005). Courts may not set aside the Commissioner’s decision if it is supported by substantial
evidence, even if this court “would have decided the factual inquiry differently.” Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (citing Hartanft v. Apfel, 181 F.3d 358, 360 (3d Cir.
1999)).
Upon review, this Court must be wary of treating the determination of substantial
evidence as a “self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114
(3d Cir. 1983). This Court must set aside the Commissioner’s decision if they did not take into
account the entire record or failed to resolve an evidentiary conflict. Schonewolf v. Callahan, 972
F. Supp. 277, 284-85 (D.N.J. 1997) (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir.
1978)). Evidence is not substantial if “it really constitutes not evidence but mere conclusions,” or
if the ALJ “ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v.
Sec’y of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at
114). A district court’s review of a final determination is a “qualitative exercise without which
our review of social security disability cases ceases to be merely deferential and becomes instead
a sham.” Kent, 710 F.2d at 114.
III. DISCUSSION
The ALJ determined that Plaintiff was not disabled within the meaning of the Social
Security Act at any point during the relevant time period, and was therefore not entitled to SSD

4

or SSI benefits. ALJ Op. at 26. Plaintiff claims (1) that the ALJ failed to properly weigh the
medical evidence of record, specifically the opinions of Plaintiff’s treating neurologist and her
treating physician, and (2) that the ALJ failed to properly evaluate Plaintiff’s credibility. Pl.’s Br.
at 1.
This Court finds for the reasons expressed below that the Commissioner’s denial of
Plaintiff’s SSD and SSI benefits is supported by substantial evidence. Accordingly, the
Commissioner’s decision is affirmed.
A. The ALJ’s Weighing of Medical Opinions
Plaintiff contends that the ALJ erred by only giving “some weight” to the opinion of her
treating neurologist, Dr. Thavapalan, and by giving “little weight” to the opinions of her treating
physician, Dr. Renza. Id. at 14. The relevant regulations state that an ALJ will give controlling
weight to a treating source’s opinion if “it is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the
case record.” 20 C.F.R §§ 404.1527(c)(2), 416.927(c)(2). The Third Circuit has clearly stated
that an ALJ can only reject a treating physician’s opinion outright “on the basis of contradictory
medical evidence, but may afford a treating physicians opinion more or less weight depending
upon the extent to which supporting explanations are provided.” Plummer v. Apfel, 186 F.3d 422,
429 (3d Cir. 1999) (citing Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir. 1985)).
Plaintiff argues that Dr. Thavapalan's medical opinion was not given appropriate weight.
Pl.’s Br. at 13-14. Dr. Thavapalan began treating Ms. Foster on November 26, 2016. Id. at 3.
After an MRI and multiple examinations, Dr. Thavapalan opined that Plaintiff was able to sit
four hours total and was able to stand or walk two hours total in an eight-hour workday. Id. at 45 (citing Rec. at 335). Dr. Thavapalan further noted that Plaintiff would need to get up and move

5

every twenty to thirty minutes and would frequently be able to lift five and occasionally ten
pounds. Id. (citing Rec. at 335-36). In assigning “some weight” to Dr. Thavapalan's medical
opinion, the ALJ assigned great weight to Plaintiff’s ability to occasionally lift and carry ten
pounds and her sedentary work ability. ALJ Op. at 24. However, the ALJ found that Dr.
Thavapalan’s standing and sitting restrictions were not consistent with Plaintiff’s treatment
history, the “mild findings in her MRI”, and Plaintiff’s description of her daily activities. Id. at
24. The ALJ also noted that Dr. Thavapalan performed little treatment for Plaintiff and “his
conclusions are not proportionate to the mild findings in her MRI.” Id.
The Court notes that the ALJ considered the Plaintiff’s activities, such as caring for her
young daughter, performing chores, shopping in stores, and attending church, and found that
these activities contradicted Dr. Thavapalan’s conclusions. Accordingly, the Court finds that the
ALJ’s decision to give “some weight” to Dr. Thavapalan’s opinions was supported by substantial
evidence.
Plaintiff also argues that the ALJ did not give Dr. Richard Renza’s medical opinion
adequate weight. Pl.’s Br. at 14. Dr. Renza opined that Plaintiff requires a very restrictive
lifestyle, stating that she could sit for four hours and stand for less than one hour in an eight-hour
workday. ALJ Op. at 24. The ALJ found Dr. Renza’s opinion to be contrary to the totality of the
medical evidence. Id. The ALJ noted that Dr. Renza is not an expert in vocational training and
occupational health, and he relied heavily on Plaintiff’s subjective complaints regarding her
impairments. Id. at 24-25.
As stated above, this Court does not review the evidence de novo; the Court simply looks to
see if the ALJ’s decision is supported by substantial evidence. Zirnsak, 777 F.3d at 610 (citing
42 U.S.C. §405(g)). The ALJ cites Plaintiff’s activities in her home life and treatment options

6

that Plaintiff decided to pursue as evidence Plaintiff was not as impaired as Dr. Renza concluded.
ALJ Op. at 22-24. The ALJ also gave Dr. Renza’s opinion little weight based on the
contradictory opinions of state medical examiners and consultants. Id. The state examiner
opinions support the ALJ’s determination that Plaintiff could stand and walk for three hours and
sit for six hours in an eight-hour workday performing sedentary work. Id. at 16.
Plaintiff argues that the ALJ erred by giving government’s medical consultants’ opinions
significant weight. Pl.’s Br. at 15 (citing Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 357
(3d Cir. 2008)). She contends that the ALJ improperly gave more weight to these consultants
(who did not personally examine the claimant) than to Plaintiff’s treating physicians. Id.
Plaintiff’s reliance on Brownawell is misplaced. This Court has held that “[a] report submitted by
a non-examining physician ordinarily does not constitute ‘substantial evidence’ of a claimant’s
work-related capabilities when it is contradicted by a well-supported report submitted by a
treating physician.” Fry v. Astrue, 09-747, 2010 WL 2891493, at *7 (D.N.J. July 21, 2010)
(citing Brownawell, 554 F.3d at 357). In the instant case, the ALJ noted substantial evidence that
the opinions of Dr. Thavaplan and Dr. Renza were not well supported because they were
inconsistent with the medical record as a whole. ALJ Op. at 22-24. Accordingly, the ALJ did not
err by giving great weight to the state agency opinions over the opinions of Drs. Thavapalan and
Renza.
To the extent that Plaintiff contends the ALJ erred by not requesting an updated report
from Dr. Jack DiMarco, the Court is aware of no rule or precedent requiring the ALJ to do so.
The Third Circuit has stated that an “ALJ’s duty to develop the record does not require a
consultative examination unless the claimant establishes that such an examination is necessary to
enable the ALJ to make the disability decision.” Thompson v. Halter, 45 F. App’x 146, 149 (3d

7

Cir. 2002). There is nothing to suggest that the ALJ did not have adequate information to make
her decision regarding Plaintiff’s disability. Therefore, the ALJ did not err when she did not
request an updated report from Dr. DiMarco.
B. The ALJ’s Evaluation of Plaintiff’s Credibility
Plaintiff contends that the ALJ’s determination of her credibility was not supported by
substantial evidence. Pl.’s Br. at 21. The ALJ found that Plaintiff did not experience pain and
discomfort to the extent she claimed. ALJ Op. at 21. An ALJ must consider whether the claimant
has an impairment that could produce their alleged pain and other symptoms, and then determine
if and how the intensity, persistence, and limiting effects of the symptoms impact on the
claimant’s ability to work. SSR 96-7p, 1996 WL 374186 (July 2, 1996). The ALJ first found that
Plaintiff did have the severe impairments of multiple sclerosis and obesity. ALJ Op. at 16. She
then found that these impairments did not meet or medically equal the severity of one of the
listed impairments in 20 C.F.R Part 404, Subpart P, Appendix 1 because Plaintiff lacked
disorganization of motor function or the visual or mental impairment described under sections
related to sense or mental impairment. Id. After examining the medical evidence, the ALJ found
that Plaintiff’s pain and symptoms were not as severe as Plaintiff claimed, and that she would be
able to work at a sedentary level. ALJ Op. at 21.
Plaintiff claims that the ALJ’s credibility determination was not supported by substantial
evidence. Pl.’s Br. at 21. In her decision the ALJ examined evaluations by Drs. DiMarco &
Thavapalan regarding Plaintiff’s symptoms, the effectiveness of Rebif injections for controlling
Plaintiff’s symptoms, Plaintiff’s household activities, and Plaintiff’s self-employment income as
evidence that Plaintiff’s pain and symptoms were not as severe as described. ALJ Op. at 20-22.
Plaintiff argues that the ALJ should not have based her decision of disability on testimony

8

regarding Plaintiff’s daily activities. Pl.’s Br. at 22 (citing Frankenfield v. Bowen, 861 F.2d 405,
408 (3d Cir. 1988)). Plaintiff’s reliance on Frankenfield is misplaced. The ALJ in Frankenfield
disregarded medical opinions supported by the medical evidence in favor of testimony regarding
the Plaintiff’s daily activities in making their disability determination. See Frankenfield, 861
F.2d at 408. Furthermore, this Court has previously stated that discussion of a claimant’s daily
activities does not offend Frankenfield where the ALJ “discusse[s] Claimant’s daily tasks not to
definitively determine Claimant’s disability but because they speak to the issue of credibility in
that Claimant’s pain is not as incapacitating as he has at times alleged.” Serbouti v. Comm’r of
Soc. Sec., 11-4217, 2012 WL 3229157, at *11 (D.N.J. Aug. 6, 2012). As discussed above, the
ALJ in the instant case analyzed medical opinions from treating physicians that are inconsistent
with the medical record. The ALJ also discussed Plaintiff’s daily activities as they relate to the
credibility of Plaintiff’s claimed pain and suffering. The ALJ did not rely on Plaintiff’s daily
activities as a definitive factor in her disability determination. Therefore, the Court concludes
that the ALJ did not err by considering Plaintiff’s daily activities.
Beyond the daily activities argument, Plaintiff simply recites evidence, claims, and
opinions that she believes the ALJ gave too much or too little weight. Pl’s Br. at 21-22. It is not
this Court’s place to reweigh the evidence presented to the ALJ; the Court need only consider
whether the ALJ’s decision is supported by substantial evidence. Fargnoli, 247 F.3d at 38 (citing
Hartanft, 181 F.3d at 360). In light of the above analysis, the Court finds that the ALJ’s
determination regarding Plaintiff’s credibility was supported by substantial evidence.

9

IV.

CONCLUSION
For the reasons discussed above, the decision of the Commissioner is AFFIRMED.

Dated: 6/30/2017__

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Court Judge

10