CAPANNA v. COMMISSIONER OF SOCIAL SECURITY
Filing
13
OPINION. Signed by Judge Renee Marie Bumb on 1/23/2019. (rtm, )
IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW
JERSEY CAMDEN VICINAGE
DEBRA CAPANNA,
Civil No. 17-6926 (RMB)
Plaintiff,
OPINION
v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
BUMB, United States District Judge:
This matter comes before the Court upon an appeal by
Plaintiff Debra Capanna from a denial of social security
disability benefits on November 15, 2013. The denial of benefits
was upheld by the Administrative Law Judge (“ALJ”) on September
21, 2016. [Record of Proceedings, “R.P.”, p. 15]. Because the
Appeals Council denied Plaintiff’s request for review, the ALJ’s
decision is the final decision of the Commissioner. [Id.].
Plaintiff commenced this civil action seeking review of the
Commissioner’s final decision pursuant to 42 U.S.C. § 405(g).
For the reasons set forth below, the Court affirms the
decision of the ALJ.
1
I.
STANDARD OF REVIEW
When reviewing a final decision of an ALJ with regard to
disability benefits, a court must uphold the ALJ’s factual
decisions if they are supported by “substantial evidence.” Knepp
v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000); 42 U.S.C. §§ 405(g),
1383(c)(3).
scintilla.
“Substantial evidence” means “‘more than a mere
It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Cons. Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)); Plummer v. Apfel, 186 F.3d
422, 427 (3d Cir. 1999).
In addition to the “substantial evidence” inquiry, the
court must also determine whether the ALJ applied the correct
legal standards. See Friedberg v. Schweiker, 721 F.2d 445, 447
(3d Cir. 1983); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir.
2000).
The Court’s review of legal issues is plenary. Sykes, 228
F.3d at 262 (citing Schaudeck v. Comm’r of Soc. Sec., 181 F.3d
429, 431 (3d Cir. 1999)).
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 can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
2
less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A).
The Act
further states,
[A]n individual shall be determined to be under a
disability
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,
regardless of whether such work exists in the
immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he
would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step, sequential
analysis for evaluating a claimant’s disability, as outlined in
20 C.F.R. § 404.1520(a)(4)(i-v).
In Plummer, 186 F.3d at 428,
the Third Circuit described the Commissioner’s inquiry at each
step of this analysis:
In step one, the Commissioner must determine whether
the claimant is currently engaging in substantial
gainful activity. 20 C.F.R. § 1520(a).
If a
claimant is found to be engaged in substantial
activity, the disability claim will be denied. Bowen
v. Yuckert, 482 U.S. 137, 140 (1987).
In step two, the Commissioner must determine whether
the claimant
is
suffering
from
a
severe
impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show
that [his] impairments are “severe,” she is
ineligible for disability benefits.
In step three, the Commissioner compares the medical
evidence of the claimant’s impairment to a list of
impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d).
If a
claimant does not suffer from a listed impairment
3
or its equivalent, the analysis proceeds to steps
four and five.
Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity
to perform her past relevant work. 20 C.F.R. §
404.1520(d). The claimant bears the burden of
demonstrating an inability to return to her past
relevant work. Adorno v. Shalala, 40 F.3d 43, 46
(3d Cir. 1994). If the claimant is unable to resume
her former occupation, the evaluation moves to the
final step.
At this [fifth] stage, the burden of production
shifts to the Commissioner, who must demonstrate the
claimant is capable of performing other available
work in order to deny a claim of disability. 20
C.F.R. § 404.1520(f). The ALJ must show there are
other jobs existing in significant numbers in the
national economy which the claimant can perform,
consistent with her medical impairments, age,
education, past work experience, and residual
functional capacity.
The ALJ must analyze the
cumulative effect of all the claimant’s impairments
in determining whether she is capable of performing
work and is not disabled. See 20 C.F.R. § 404.1523.
The ALJ will often seek the assistance of a vocational
expert at this fifth step. See Podedworny v. Harris,
745 F.2d 210, 218 (3d Cir. 1984).
II.
FACTUAL BACKGROUND
The Court recites only the facts that are necessary to its
determination on appeal, which is narrow.
Plaintiff was born on December 21, 1965, and was 39 years
old at the alleged onset date. [R.P., p. 30].
She applied for
Social Security Disability Benefits on July 27, 2013, alleging
an onset of disability of beginning November 1, 2005. [R.P., p.
15]. Plaintiff last met the insured status requirements of the
4
Social Security Act on December 31, 2009. [Id.]. Plaintiff
alleged disability due to physical impairments including
rheumatoid arthritis and degenerative disc disease, and mental
conditions including schizoaffective disorder, generalized
anxiety disorder, and depression. [Plaintiff’s Brief, “Pl.’s
Br.”, p. 2].
A disability hearing was held on August 16, 2016.
The ALJ
heard testimony from the Plaintiff. A Vocational Expert was also
present, but did not testify. The ALJ found Plaintiff was not
disabled under sections 216(i) and 223(d) of the Social Security
Act through the last date insured: December 31, 2009. [R.P., p.
21].
A.
Plaintiff’s Relevant Medical History
In August 2006, Plaintiff was treated at Kennedy Hospital
for depression/anxiety and suicidal thoughts. At that time,
Plaintiff did not seek voluntary hospitalization and was
released from the hospital the same day. [Defendant’s Opposition
Brief “Def.’s Opp’n Br.”, p. 3]. Plaintiff began treatment with
Dr. Deerfield during that month and treatment consisted of
medication and monthly office visits. Dr. Deerfield’s notes
indicated lapses in treatment spanning three to four months, to
more than a year and a half. [Id.].
Plaintiff was diagnosed
with Bipolar I and psychosis. It was not until October 2013
5
where Dr. Deerfield categorized in a letter Plaintiff’s
psychiatric disorder as severe and disabling. [Pl.’s Br., p. 6].
In February 2014, Dr. Deerfield submitted a Mental
Impairment Medical Source Statement (MIMSS). The form is a
check-box and fill in the blank type form. Dr. Deerfield
indicated on the MIMSS that Plaintiff had extreme limitations in
all mental work-related areas, and that these restrictions
existed since at least December 31, 2009. [Def.’s Opp’n Br., p.
3].
Plaintiff also complains of physical impairments. In May
2007 Plaintiff underwent an EMG/Nerve Conduction Study for
alleged pain in her upper back, neck, and arm. The test results
were “normal” and Plaintiff was recommended by Dr. Kovacs to
seek evaluation by a rheumatologist in light of her history of
fibromyalgia. [R.P., p. 12 and 41]. Further scans indicated mild
cervical arthritis, and degenerative changes in the shoulders
and knee. [Id].
B.
Plaintiff’s testimony
At the disability hearing, Plaintiff testified that she had
a psychotic episode in 2006 and is “still in that mindset.”
[R.P., p. 31]. During the 2006 episode, Plaintiff sought
treatment from Kennedy Hospital. [Id.]. There, she admitted to
abusing Valium and Percocet. [Id.]. During the hearing,
Plaintiff testified that she had an addiction but stopped taking
6
the drugs after the episode in 2006. Plaintiff began seeing Dr.
Deerfield after this time. Dr. Deerfield’s notes indicated that
the Plaintiff would take extra Risperdal to help with her
psychosis. [R.P., p. 32].
Plaintiff testified that she cannot control her thoughts
and believes her mind is being controlled by someone else. For
example, Plaintiff stated that the TV will read her mind and
that she has conversations with the TV three to four times a
month. [R.P., p. 31]. However, the ALJ stated that he did not
find evidence of this in Dr. Deerfield’s treatment notes. [R.P.,
p. 18]. Plaintiff further testified that she suffers from
tiredness, drowsiness, memory loss, and feels as if she is in a
“fog.” [R.P., p. 19].
Additionally, Plaintiff testified that she can’t think or
answer questions quickly. [Id.] When asked to describe her
typical day, Plaintiff responded she would wake up, make
breakfast for her daughter and bring her to school, drive to the
supermarket on some occasions, and then come home, take
medicine, and sit on the couch. [R.P., p. 33]. On good days,
Plaintiff stated that she could do light housework, prepare
lunch, and pick her daughter up from school. [Id.]
7
During the hearing, Plaintiff’s attorney was interrupted by
the ALJ and warned for asking leading questions. 1 Questions asked
during Plaintiff’s testimony included:
Q:
The medication you take – or you were taking
to help you go to sleep, did that make you groggy
in the morning?
A:
A little bit, yeah . . .
Q:
Now, with respect to the side effects from
the medications, do you have to sleep during the
day?
A:
Yes, I do . . .
Q: Along with not being able to think properly
or clearly, are there any problems – or did you
have any problems with your memory?
A: My memory is very bad.
[R.P., p. 35-36]. As a result, in his decision the ALJ stated,
“[m]uch of the claimant’s testimony at the hearing was elicited
through very leading questions from the attorney. The
undersigned accords little weight to this testimony.” [R.P., p.
18].
III.
ALJ’S DETERMINATION
The ALJ concluded that “[t]he claimant was not under a
disability, as defined in the Social Security Act, at any time
1 The ALJ asked Plaintiff’s attorney
leading questions?” . . . “Yes-or-no
conclusion that there was grogginess
volunteered as opposed to were there
have gotten there.” [R.P., p. 35].
if he was “going to continue to ask
question, asking and supplying the
in the morning when that was not even
any side effects. Then maybe you could
8
from November 1, 2005, the alleged onset date, through December
31, 2009, the date last insured.” [R.P., p. 21].
Relevant to
the issues presented on appeal, the ALJ found that “through the
date last insured, the claimant did not have an impairment or
combination of impairments that significantly limited the
ability to perform basic work-related activities for 12
consecutive months; therefore, the claimant did not have a
severe impairment or combination of impairments.” [R.P., p. 17].
Furthermore, the ALJ found that “the claimant’s statements
concerning the intensity, persistence and limiting effects of
her impairments were not well supported in the medical
evidence.” [R.P., p. 18]
IV.
ANALYSIS
A. ALJ’s Assessment of Plaintiff’s Testimony
Plaintiff argues the ALJ erred in discounting Plaintiff’s
testimony because it was elicited through leading questions.
Plaintiff construes the ALJ’s opinion too narrowly. The ALJ did
not discredit Plaintiff’s testimony outright simply because her
attorney asked leading questions. Rather, the ALJ’s
determination of credibility was influenced by the fact that
leading questions were asked. Indeed, as the ALJ noted, he
accorded “little weight to this testimony.” [R.P., p. 18]. This
is certainly permissible, and the ALJ was free to consider
9
whether or not the Plaintiff’s testimony was elicited through
leading questions and give whatever weight he deemed
appropriate. The record demonstrates that Plaintiff’s attorney
did, indeed, ask leading questions during the hearing which
suggested the answers. For example, Plaintiff was asked, with
respect to the side effects from the medications, “do you have
to sleep during the day?” Plaintiff responded “Yes, I do.”
[R.P., p. 32]. Similarly, the Plaintiff was asked about her
medication, “did that make you groggy in the morning?” Plaintiff
responded, “a little bit, yeah.” [R.P., p. 34]. It was after
this statement that the ALJ warned Plaintiff’s attorney about
asking leading questions.
Plaintiff asserts that besides the instance where the ALJ
interrupted, “the questions asked were not leading, nor were the
anticipated responses to those questions ‘yes or no’ answers”
and that the ALJ “failed to appropriately alert counsel that
leading questions were unacceptable.” [Pl.’s Br., p. 13-14]. As
demonstrated above, this statement is inconsistent with the
hearing transcript. There are many instances in the record where
Plaintiff’s attorney asked leading questions and Plaintiff gave
the expected answers of “yes or no.”.
Plaintiff cites to the Federal Rules of Evidence and
Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir.
2000), arguing that the ALJ made a ruling on the admissibility
10
of evidence and “failed to provide appropriate evidence or
reason for dismissing the plaintiff’s credible testimony.”
[Pl.’s Br., p. 14-15]. However, the ALJ did not exclude the
evidence and made no evidentiary ruling. Rather, as the
factfinder, the ALJ articulated why he afforded less weight to
portions of Plaintiff’s testimony. In essence, the ALJ explained
that he gave less weight to the “testimony” that was really the
testimony of Plaintiff’s lawyer in the form of leading
questions.
Moreover, even if the ALJ did dismiss, “most of Plaintiff’s
testimony” because counsel “had to use some ‘leading’ questions
to help elicit Plaintiff’s testimony,” as Plaintiff argues,
[Pl.’s Br. p. 12] - which the Court does not find to be the case
- the ALJ gave an adequate reason for doing so. The Third
Circuit has held, “an ALJ may reject a claimant’s subjective
testimony if she does not find it credible so long as she
explains why she is rejecting the testimony.” Hall v. Comm’r of
Soc. Sec., 218 F. App’x. 212, 215 (3d Cir. 2007) (citing
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433 (3d Cir.
1999)) 2 In his decision, the ALJ further explained reasons why he
did not give Plaintiff’s testimony controlling weight, stating:
2
In Hall v. Comm’r of Soc. Sec., 218 F. App’x. 212, 215 (3d Cir. 2007), the
Third Circuit found that the ALJ considered Plaintiff’s complaints and
considered them in light of other evidence in the record. “In doing so, the
ALJ concluded that [Plaintiff’s] subjective complaints of totally disabling
11
[T]here is no indication that Dr. Deerfield
consistently
observed
decreased
concentration,
muddled thought, impaired memory, inability to
process information quickly, or inability to learn
new things quickly, or many of the other very
serious limitations presented at the hearing. . .
The claimant’s allegations might carry more weight
were they not largely contradicted by the findings
in the claimant’s own treatment record of few of
the very serious symptoms alleged at the hearing.
[R.P., 19].
The ALJ properly weighed the evidence in the record and
made the decision to afford Plaintiff’s testimony “little
credence and little weight.” [R.P., 18]. Therefore, the ALJ
acted within his discretion and did not err in affording less
weight to Plaintiff’s testimony.
B. ALJ’s Step Two Severity Analysis
Plaintiff next argues that the ALJ erred in resolving the
claim at Step Two and that the ALJ should have found Plaintiff’s
impairments “severe” under 20 C.F.R. § 404.1520(c)(2012).
Under the de minimis standard, the severity prong is
satisfied where the applicant shows that he or she suffers more
than “a slight abnormality or combination of slight
abnormalities
which would have no more than a minimal effect on
an individual’s ability to do work.” McCrea v. Comm’r of Soc.
Sec., 370 F.3d 357, 362 (3d Cir. 2004). See also Newell v.
pain and limitations are inconsistent with the totality of the medical
evidence.” Id.
12
Comm’r of Soc. Sec., 347 F.3d 541, 549 (3d Cir. 2003)(“if the
evidence presented by the claimant presents more than a slight
abnormality, the step-two requirement of ‘severe’ is met.”).
“Slight abnormality” means having a minimal effect on, and not
interfering with, the claimant’s ability to work. Afandador v.
Comm’r of Soc. Sec., 2016 U.S. Dist. LEXIS 69558, at *13 (D.N.J.
May 27, 2016). A demonstration of more than a slight abnormality
“should focus upon the evidence adduced by the applicant, and if
the evidence does not demonstrate that the applicant has more
than a slight abnormality, the Step Two requirement of ‘severe’
is not met.” Id. at *14.
With these legal principles in mind, the issue is whether
the ALJ’S determination that Plaintiff failed to pass Step
Two's severity threshold is supported by substantial evidence.
The Court concludes that the ALJ’s decision is supported by
substantial evidence.
Although using Step Two as grounds for the denial of
benefits should be employed with caution and in rare
circumstances, this is the type of case Step Two was intended to
exclude. Plaintiff cites to McCrea v. Comm’r of Soc. Sec., 370
F.3d 357 (3d Cir. 2004), where the Third Circuit found that
substantial evidence did not support the ALJ’s failure to find a
severe impairment under Step Two. Id. In McCrea, however,
claimant’s allegations were supported by sufficient record
13
evidence of impairment. Here, by contrast, the record lacks
meaningful support of the severity of Plaintiff’s impairment.
Kirk v. Comm’r of Soc. Sec., 65 F. App’x 842 (3d Cir. 2003).
Indeed, the ALJ carefully considered and explained in more than
two pages of his written decision that Plaintiff’s impairments
did not amount to severe.
First, as to Plaintiff’s physical ailments, the ALJ
considered an MRI showing mild degenerative changes in
Plaintiff’s spine, treatment records for physical complaints,
and EMG/nerve conduction studies done for Plaintiff’s shoulder
pain. [R.P., p. 19]. The ALJ noted limited evidence of follow-up
treatment and that “[no] source has opined that the claimant had
any functional limitations.” [R.P., p. 20].
Furthermore, the ALJ thoroughly reviewed medical records of
Plaintiff’s mental impairments. The ALJ found that the
plaintiff’s description of symptoms were “largely contradicted
by the findings in the claimant’s own treatment record of few of
the very serious symptoms alleged at the hearing.” [R.P., p.
19]. The ALJ also considered a partial cause of the Plaintiff’s
“fog” was from opiate and valium usage, and therefore not fully
attributable to Plaintiff’s medications and psychiatric
impairments. [Id.].
In cases such as this one before this Court, the Third
Circuit has upheld an ALJ’s denial of benefits when the ALJ
14
cited specific instances where the claimant’s symptoms were
inconsistent with: the objective medical evidence of the record,
claimant’s testimony to rehabilitation and medication regiment;
and claimant’s description of daily activities. Hartranft v.
Apfel, 181 F.3d 358, 362 (3d Cir. 1999). Similarly in this case,
the ALJ considered: the contradictions between Plaintiff’s
testimony and Dr. Deerfield’s treatment notes, the lack of
documented limitation by a treating physician, and Plaintiff’s
testimony regarding her daily routine.
Accordingly, the Court concludes that the ALJ properly
applied the Step Two standard, which defines “basic work
activities” as “the abilities and aptitudes necessary to do most
jobs,” including “physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying or
handling.” 20 C.F.R. § 404.1521(b) (2012). Ultimately, while the
ALJ stated that the record contained evidence of isolated
instances of a medical or physical abnormality, “many of the
specific diagnostic imaging and studies have been negative. Thus
the claimant does not have a severe impairment or combination of
impairments.” [R.P., p. 20].
Based on the foregoing analysis by the ALJ in his decision,
the Court finds that the ALJ’s decision was supported by
substantial evidence and the ALJ did not err in resolving
Plaintiff’s claim at Step Two.
15
C. ALJ’s Consideration of Medical Evidence
Plaintiff next asserts that the ALJ “impermissibly
substituted his opinion” for those of Dr. Deerfield and the
State Agency Psychological Consultant. [A.R., 453]. Plaintiff
argues that the ALJ’s decision was not supported by substantial
evidence because the ALJ improperly gave no weight to the checkbox Medical Impairment Medical Source Statement (MIMSS)
completed by Dr. Deerfield on February 28, 2014 (Ex. 7f), and
instead afforded more weight to the “findings recorded in Dr.
Deerfield’s treatment notes.” [Pl. Br., p. 22].
An ALJ may “reject a treating physician’s opinion so long
as the ALJ bases his decision on contradictory medical evidence
in the record and ‘not speculative inferences’ or his own
‘credibility judgements, speculation or lay opinion.’” Serbouti
v. Comm’r of Soc. Sec., 2012 U.S. Dist. LEXIS 109584, at *20
(D.N.J. Aug. 6, 2012). See also Morales v. Apfel, 225 F.3d 310,
317-18 (3d Cir. 2000); Plummer v. Apfel 186 F.3d 422, 427 (3d
Cir. 1999).
The ALJ did not err in disregarding the MIMSS completed by
Dr. Deerfield. The Third Circuit has held “[f]orm reports in
which a physician’s obligation is only to check a box or fill in
a blank are weak evidence at best.” Mason v. Shalala, 994 F.2d
1058, 1065 (3d Cir. 1993). See Brewster v. Heckler, 786 F.2d
581, 585 (3d Cir. 1986); Green v. Schweiker, 749 F.2d 1066, 1071
16
n.3 (3d Cir. 1984) (citing O’Leary v. Schweiker, 710 F.2d 1334,
1341 (8th Cir. 1982)).
Medical evidence in the record contradicts Dr. Deerfield’s
severe impairment determination on the MIMSS. As the ALJ
explained:
The check-box medical source . . . was completed
many years after the expiration of the claimant’s
date last insured . . . contains very little in the
way of explanatory narrative or reference to any
objective
evidence
or
even
other
subjective
evidence. More weight is accorded to the findings
recorded in Dr. Deerfield’s treatment notes than
her opinions expressed on the check-box form. The
treatment notes cover a longer period and are more
detailed than the check-box opinions. They are
recorded at the time of the examination, and not
many years after in the context of an application
for disability.
[R.P., p. 20-21].
The ALJ clearly explained his decision to discount the
MIMSS report and the State Agency Psychological Consultant.
Because the medical opinions at issue were contradicted by the
evidence in the record, the ALJ properly “weigh[ed] all of the
evidence” in making his determination. 20 C.F.R. §
416.927(c)(2). The ALJ considered “(1) objective medical facts;
(2) diagnoses and medical opinions of examining physicians; (3)
subjective evidence of pain and disability as described by
plaintiff and corroborated by others who have observed [her];
and (4) plaintiff’s age, educational background and work
history.” Curtin v. Harris, 508, F. Supp. 791, 793 (D.N.J.
17
1981); Serbouti v. Comm’r of Soc. Sec., 2012 U.S. Dist. LEXIS
109584, at *16 (D.N.J. Aug. 6, 2012). The Court therefore
upholds the ALJ’s decision to reject the medical findings from
the MIMSS report and the State Agency Psychological Consultant
as there was substantial contradictory medical evidence in the
record and the ALJ provided sufficient explanation of his
conclusion.
V.
CONCLUSION
For the reasons expressed above, the ALJ’s determination
that Plaintiff is not disabled under the Social Security Act
will be affirmed. An appropriate Order accompanies this Opinion.
January 23, 2019
___s/ Renée Marie Bumb___
RENÉE MARIE BUMB, U.S.D.J.
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?