KRAENBRING v. SOCIAL SECURITY ADMINISTRATION
Filing
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OPINION. Signed by Judge Jerome B. Simandle on 10/31/2018. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ALYCEA J. KRAENBRING,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.
Civil Action
No. 17-2683 (JBS)
COMMISSIONER OF SOCIAL
SECURITY,
OPINION
Defendant.
APPEARANCES:
Alan H. Polonsky, Esq.
POLONSKY AND POLONSKY
512 S. White Horse Pike
Audubon, NJ 08106
Attorney for Plaintiff
Evelyn Rose Marie Protano
Special Assistant U.S. Attorney
Social Security Administration
Office of the General Counsel
300 Spring Garden Street, 6th Floor
Philadelphia, PA 19101
Attorney for Defendant Commissioner of Social Security
SIMANDLE, District Judge:
INTRODUCTION
This matter comes before this Court pursuant to 42 U.S.C.
§ 405(g) for review of the final decision of the Commissioner of
the Social Security Administration (hereinafter “the
Commissioner”) denying Plaintiff Alycea J. Kraenbring’s
(hereinafter “Plaintiff”) application for disability benefits
under Title XVI of the Social Security Act, 42 U.S.C. § 401, et
seq. Plaintiff, who allegedly suffers from Sjögren’s syndrome,
tendonitis of the right ankle, osteoarthritis of the right hip
and knees bilaterally, degenerative disc disease of the lumbar
spine, obesity, affective disorder, and anxiety disorder, was
denied benefits for the period beginning on September 10, 2013,
the alleged onset date of disability, to February 9, 2017, the
date on which Administrative Law Judge Karen Shelton
(hereinafter “ALJ Shelton” or “the ALJ”) issued a thorough
written decision.
In the pending appeal, Plaintiff argues that the ALJ’s
decision must be reversed and remanded on numerous grounds,
including that the ALJ erred by: finding that Plaintiff did not
have any non-exertional impairments; improperly determining
Plaintiff’s residual functional capacity; and finding that
Plaintiff could return to prior work. Plaintiff also asserts
that this case should be remanded due to information regarding a
surgery that Plaintiff underwent subsequent to the ALJ’s
decision, which Plaintiff contends constitutes new and material
evidence regarding Plaintiff’s claims. For the reasons stated
below, the Court will vacate the decision of the ALJ and remand
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for further proceedings to consider new and material medical
evidence consistent with this Opinion.1
BACKGROUND
A.
Procedural History
Plaintiff filed her application for Social Security
disability benefits on August 21, 2014, alleging an onset date
of September 10, 2013. (Administrative Record (hereinafter
“Admin. Rec.”) [Docket Item 4], 14.) Plaintiff’s claim was
denied by the Social Security Administration on January 25,
2015. (Id.) Her claim was again denied upon reconsideration on
April 2, 2015. (Id.) Plaintiff next testified in person before
ALJ Karen Shelton on November 29, 2016. (Id.) ALJ Shelton issued
an opinion on February 9, 2017, denying Plaintiff benefits. (Id.
at 25.) On April 6, 2017, the Appeals Council denied Plaintiff’s
request for review. (Id. at 1-3.) This appeal timely follows.
B.
Medical History & ALJ Decision
The Court shall only recite those facts relevant to the
disposition of the present motion.
Plaintiff was diagnosed with severe osteoarthritis of the
right hip joint in November 2016. (Id. at 21-22.) Subsequently,
Plaintiff received certain injections into her hip, which
1
As the Court will remand this case for the consideration of new
and material evidence regarding Plaintiff’s claims, which was not
available to the ALJ at the time of her prior decision, the Court
shall not address—and offers no opinion of—Plaintiff’s assertions
regarding the sufficiency of the ALJ’s decision in this case.
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temporarily reduced her pain and allowed her to walk more
easily. (Id. at 22.) Hip surgery was recommended in the event
that the hip injections proved to be insufficient to manage
Plaintiff’s condition. (Id.)
In a written decision dated February 9, 2017, ALJ Shelton
determined that Plaintiff was not disabled within the meaning of
the Social Security Act from September 10, 2013, the alleged
disability onset date, through February 9, 2017, the date of the
ALJ’s decision. (Id. at 25.)
Using the five-step sequential evaluation process, the ALJ
determined at step one that Plaintiff had not engaged in any
substantial gainful activity since September 10, 2013, the
alleged onset date of disability. (Id. at 16.)
At step two, the ALJ found that Plaintiff had severe
impairments due to Sjögren’s syndrome, tendonitis of the right
ankle, osteoarthritis of the right hip and knees bilaterally,
degenerative disc disease of the lumbar spine, and obesity. (Id.
at 16-18.) Notably, the ALJ determined that Plaintiff’s mental
impairments, including affective disorder and anxiety disorder,
were not severe. (Id.)
Next, at step three, the ALJ found that none of Plaintiff’s
impairments, alone or in combination, meet the severity of one
of the impairments listed in 20 CFR Part 404, Subpart P,
Appendix 1. (Id. at 18-19.) Specifically, in considering whether
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Plaintiff’s osteoarthritis of her right hip reached the severity
level of a listed Major Joint Dysfunction, 1.02, the ALJ noted
that Plaintiff was undergoing hip injections, which the ALJ
described as “conservative treatment” that was “actually helpful
and improved [Plaintiff’s] ambulation.” (Id. at 18, 20, 22, 24.)
The ALJ further stated that, while “surgery was recommended, the
record indicates that it was mentioned as the next step if
injections failed.” (Id. at 22.) The ALJ appears to have relied,
at least in part, on these findings to support the conclusion
that Plaintiff’s osteoarthritis did “not meet or medically equal
the criteria of section 1.02.” (Id. at 18.)
Between steps three and four, the ALJ needed to determine
Plaintiff’s Residual Functional Capacity (“RFC”). The ALJ found
that Plaintiff had the RFC to perform “sedentary work” except
that:
she can stand/walk for 2 hours and sit for 6
hours in an 8-hour workday, but must have the
option to sit for 5 minutes after 30 minutes
of standing/walking and stand for 5 minutes
after 30 minutes of sitting; can only
occasionally climb ramps and stairs, but never
climb ladders, ropes or scaffolds; can
occasionally stoop, kneel, crouch or crawl;
and can only frequently handle and finger.
(Id. at 19-24.) In determining Plaintiff’s RFC, the ALJ
“considered all symptoms and the extent to which these symptoms
can reasonably be accepted as consistent with the objective
medical evidence and other evidence.” (Id. at 19.) The ALJ
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largely discounted the medical opinions of Plaintiff’s treating
physicians, Dr. Joann Eufemia, Dr. Cynthia Genovese, Dr.
Frederick Vivino, and Dr. Erik Thorell, as the ALJ considered
these opinions to be inconsistent with the record and
inconsistent with the doctors’ “limited” or “conservative”
non-surgical treatment of Plaintiff’s conditions. (Id. at 2223.) Finally, the ALJ gave “great weight” to the opinions of the
state agency medical consultants who had reviewed the record in
January and April of 2015 at the request of the Administration
and stated that Plaintiff was “capable of light duty work.” (Id.
at 24, 77-87, 89-98.) However, the ALJ ultimately found
Plaintiff to be “slightly more limited” due to the evidence of
osteoarthritis, which was diagnosed subsequent to the medical
consultants’ review of Plaintiff’s records. (Id. at 24.)
Based on Plaintiff’s RFC and testimony from a vocational
expert, the ALJ found, at step four, that Plaintiff was “capable
of performing past relevant work as a purchasing clerk and
production coordinator,” and that “[t]his work does not require
the performance of work-related activities precluded by
[Plaintiff’s] residual function capacity.” (Id. at 24-25.)
Accordingly, the ALJ found that Plaintiff was not disabled. (Id.
at 25.)
On May 2, 2017, subsequent to both the ALJ’s decision and
the Appeals Council’s decision, the treatment with injections
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having been unsatisfactory, Plaintiff received a total hip
replacement and underwent a month of rehabilitation. (See
Plaintiff’s Brief (hereinafter “Pl.’s Br.”) [Docket Item 7], 2526; see generally Inpatient Discharge Summary [Docket Item 71].) It is this post-hearing medical information that the
Plaintiff argues is new and material and supportive of her
disability claim.
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
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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).
However, the District Court “may at any time order
additional evidence to be taken before the Commissioner of
Social Security, but only upon a showing that there is new
evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior
proceeding.” 42 U.S.C. § 405(g); Szubak v. Sec’y of Health &
Human Servs., 745 F.2d 831, 833 (3d Cir. 1984); Cunningham, 507
F. App’x at 120. Evidence is considered “new” if it is “not
merely cumulative of what is already in the record.” Szubak, 745
F.2d at 833 (citing Bomes v. Schweiker, 544 F.Supp. 72, 75–76
(D. Mass. 1982)). In order to be “material,” evidence must be
“relevant and probative” and must “relate to the time period for
which benefits were denied.” Id. (citing Chaney v. Schweiker,
659 F.2d 676, 679 (5th Cir. 1981); Ward v. Schweiker, 686 F.2d
762, 765 (9th Cir. 1982)).
Remand is not required where the new evidence would not
affect the outcome of the case. Rutherford v. Barnhart, 399 F.3d
546, 553 (3d Cir. 2005).
DISCUSSION
Plaintiff asserts that information regarding her hip
replacement surgery of May 2, 2017, as described, supra, should
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be taken into consideration with respect to Plaintiff’s
disability claim for the period of September 10, 2013 to
February 9, 2017. (See Pl.’s Br. [Docket Item 7], 25-26.)
Plaintiff has also submitted medical records related to that
surgery and subsequent medical treatment. (See Inpatient
Discharge Summary [Docket Item 7-1].) The Court interprets this
request as seeking remand of this case to the Commissioner for
the consideration of new and material evidence, pursuant to 42
U.S.C. § 405(g). The Commissioner asserts that information
regarding Plaintiff’s subsequent surgery cannot be used to
perform a “substantial evidence” review of the ALJ’s opinion.2
(See Brief in Opposition (hereinafter “Comm’r Br.”) [Docket Item
10], 27 n.10.) However, the Commissioner does not deny that this
Court has the authority to remand this case for the
consideration of new and material evidence under 42 U.S.C.
§ 405(g). (See id.) Remanding this case for the consideration of
new and material evidence under 42 U.S.C. § 405(g) does not
necessitate any review of the propriety of the ALJ’s opinion.
The Court must instead analyze the nature of the additional
2
The Commissioner also asserts that Plaintiff has not submitted
medical evidence of her hip replacement surgery. (See Comm’r Br.
[Docket Item 10], 27 n.10.) However, Plaintiff indeed submitted
documentation of her hip replacement surgery as an attachment to
her initial brief in this appeal. (See Inpatient Discharge Summary
[Docket Item 7-1]; see also Plaintiff’s Reply [Docket Item 11], 3
on the docket.)
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evidence submitted by Plaintiff as compared with the evidence on
the record available to the ALJ. 42 U.S.C. § 405(g); Szubak, 745
F.2d at 833; Cunningham, 507 F. App’x at 120.
The Commissioner does not dispute that the information
regarding Plaintiff’s hip surgery is “new” under the meaning of
42 U.S.C. § 405(g). (See Comm’r Br. [Docket Item 10], 27 n.10.)
In order for information to be deemed “new” under 42 U.S.C.
§ 405(g), it must not be “merely cumulative of what is already
in the record.” Szubak, 745 F.2d at 833 (citing Bomes, 544
F.Supp. at 75–76). Information regarding Plaintiff’s hip
replacement surgery is not “cumulative” of other information
contained within the administrative record that was before the
ALJ in this case. As the ALJ stated in her thorough and reasoned
opinion, the record before her reflected that the treatment of
Plaintiff’s hip condition had thus far been limited to certain
injections aimed at relieving Plaintiff’s pain and increasing
her mobility. (Admin. Rec. [Docket Item 4] at 22-23.) Hip
surgery is mentioned in the record as one of Plaintiff’s
potential future options, but was not characterized as likely,
much less imminent. (Id.) Therefore, the Court finds that the
evidence of Plaintiff’s hip surgery, which took place
approximately three months after the ALJ published her opinion,
is “new” under the meaning of 42 U.S.C. § 405(g).
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The Commissioner does not argue that the information
regarding Plaintiff’s hip surgery is not “material” under the
meaning of 42 U.S.C. § 405(g). (See Comm’r Br. [Docket Item 10],
27 n.10.) In order to be “material,” evidence must be “relevant
and probative” and must “relate to the time period for which
benefits were denied.” Szubak, 745 F.2d at 833 (citing Chaney,
659 F.2d at 679; Ward, 686 F.2d at 765). The Court finds that
the documents provided by Plaintiff relating to her hip
replacement surgery are relevant to her disability claims, as
osteoarthritis of her hip was a significant basis for seeking a
disability determination. Therefore, these documents evidence
treatment of a condition underlying Plaintiff’s claims. The
Court finds this information to be probative, because
information relating to the chosen treatment for a given
condition can be evidence of the severity of that condition.
Finally, the Court finds that the information regarding
Plaintiff’s hip surgery “relate[s] to the time period for which
benefits were denied,” because evidence that a total hip
replacement surgery would be undertaken within only a few months
of the ALJ’s decision could cast light upon the severity of
Plaintiff’s hip condition during the alleged disability period a
few months earlier. The inference that the seemingly
“conservative” treatment to which the ALJ alluded was in fact
insufficient and unavailing is a conclusion the ALJ may draw.
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This is especially true where the ALJ’s interpretation of the
other medical evidence on the record discounts numerous medical
opinions in part because of the doctors’ “limited” or
“conservative” treatment of Plaintiff’s conditions. (Admin. Rec.
[Docket Item 4], 22-23.) Evidence that the treatment of
Plaintiff’s degenerative hip condition would escalate within
only a few months to include a total hip replacement, could
provide context for the other medical evidence on the
administrative record and may lead to a determination that
Plaintiff was indeed disabled within the meaning of the Social
Security Act at some point between September 10, 2013, the
alleged disability onset date, and February 9, 2017, the date of
the ALJ’s opinion. Therefore, the Court finds that the evidence
of Plaintiff’s hip surgery is “material” under the meaning of 42
U.S.C. § 405(g).
The Commissioner does not argue that Plaintiff lacks good
cause for failing to incorporate information regarding
Plaintiff’s hip surgery into the record in a prior proceeding.
(See Comm’r Br. [Docket Item 10], 27 n.10.) As Plaintiff had not
undergone the surgery at the time of the ALJ’s decision, none of
the documentation relating to that surgery existed at the time
of the ALJ’s decision. Therefore, the Court finds that there is
good cause for Plaintiff not having presented this information
to the ALJ prior to the publication of her decision.
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Therefore, the Court finds that the documentation offered
by Plaintiff with regard to her total hip replacement surgery
“is new evidence which is material and that there is good cause
for the failure to incorporate such evidence into the record in
a prior proceeding,” and therefore the Court shall “order
additional evidence to be taken before the Commissioner of
Social Security” regarding this case. 42 U.S.C. § 405(g);
Szubak, 745 F.2d at 833; Cunningham, 507 F. App’x at 120.
Ultimately, the task of weighing evidence and attaching due
weight in determining its probative value upon remand is for the
Commissioner, and this Court expresses no opinion other than
that the Plaintiff has demonstrated that the record should be
reopened upon remand so that due consideration may be given to
this new and material evidence.
CONCLUSION
For these reasons, the Court finds that this case should be
remanded for the Commissioner to consider the new and material
evidence regarding Plaintiff’s hip condition and hip replacement
surgery, as described, supra. An accompanying order will be
entered.
October 31, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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