BENJAMIN v. COMMISSIONER OF SOCIAL SECURITY
Filing
15
OPINION. Signed by Judge Noel L. Hillman on 1/29/2019. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOANNE BENJAMIN,
1:17-cv-11719-NLH
Plaintiff,
OPINION
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
APPEARANCES:
LAUREN S. TOVINSKY
JACOBS SCHWABLE & PETRUZELLI PC
10 MELROSE AVENUE
SUITE 340
CHERRY HILL, NJ 08003
On behalf of Plaintiff
EDA GIUSTI
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET, 6TH FLOOR
PHILADELPHIA, PA 19123
On behalf of Defendant
HILLMAN, District Judge
This matter comes before the Court pursuant to Section
205(g) of the Social Security Act, as amended, 42 U.S.C. §
405(g), regarding Plaintiff’s application for Disability
Insurance Benefits (“DIB”) 1 and Supplemental Security Income
1
DIB is a program under the Social Security Act to provide
disability benefits when a claimant with a sufficient number
(“SSI”) 2 under Title II and Title XVI of the Social Security
Act. 3
42 U.S.C. § 401, et seq.
The issue before the Court is
whether the Administrative Law Judge (“ALJ”) erred in finding
that there was “substantial evidence” that Plaintiff was not
disabled at any time since her alleged onset date of
disability, January 22, 2012.
For the reasons stated below,
this Court will affirm that decision.
I.
BACKGROUND AND PROCEDURAL HISTORY
On October 22, 2013, Plaintiff, Joanne Benjamin,
of quarters of insured employment has suffered such a mental
or physical impairment that the claimant cannot perform
substantial gainful employment for at least twelve months. 42
U.S.C. § 423 et seq.
2
Supplemental Security Income is a program under the Social
Security Act that provides supplemental security income to
individuals who have attained age 65, or are blind or
disabled. 42 U.S.C. § 1381 et seq.
3
The standard for determining whether a claimant is disabled
is the same for both DIB and SSI. See Rutherford v. Barnhart,
399 F.3d 546, 551 n.1 (3d Cir. 2005) (citation omitted).
DIB regulations are found at 20 C.F.R. §§ 404.1500-404.1599,
and the parallel SSI regulations are found at 20 C.F.R. §§
416.900-416.999, which correspond to the last two digits of
the DIB cites (e.g., 20 C.F.R. § 404.1545 corresponds with 20
C.F.R. § 416.945). The Court will provide citations only to
the DIB regulations. See Carmon v. Barnhart, 81 F. App’x 410,
411 n.1 (3d Cir. 2003) (explaining that because “[t]he law and
regulations governing the determination of disability are the
same for both disability insurance benefits and [supplemental
security income],” “[w]e provide citations only to the
regulations respecting disability insurance benefits”).
2
protectively filed an application for SSI and DIB, 4 alleging
that she became disabled as of January 22, 2012. 5
Plaintiff
claims that she can no longer work at her previous job as a
gambling cashier because she suffers from knee and shoulder
impairments, as well as a mood disorder.
After Plaintiff’s initial claim was denied on March 24,
2013, and upon reconsideration on June 28, 2014, Plaintiff
requested a hearing before an ALJ, which was held on June 16,
2016.
On August 26, 2016, the ALJ issued an unfavorable
decision.
Plaintiff’s Request for Review of Hearing Decision
was denied by the Appeals Council on October 16, 2017, making
the ALJ’s August 26, 2016 decision final.
Plaintiff brings
4
A protective filing date marks the time when a disability
applicant made a written statement of his or her intent to
file for benefits. That date may be earlier than the date of
the formal application and may provide additional benefits to
the claimant. See SSA Handbook 1507; SSR 72-8.
5
Even though Plaintiff contends that her onset date of
disability is January 22, 2012, the relevant period for
Plaintiff’s SSI claim begins with her October 22, 2013
application date, through the date of the ALJ’s decision on
August 26, 2016. See 20 C.F.R. § 416.202 (claimant is not
eligible for SSI until, among other factors, the date on which
she files an application for SSI benefits); 20 C.F.R. §
416.501 (claimant may not be paid for SSI for any time period
that predates the first month she satisfies the eligibility
requirements, which cannot predate the date on which an
application was filed). This difference between eligibility
for SSI and DIB is not material to the Court’s analysis of
Plaintiff’s appeal.
3
this civil action for review of the Commissioner’s decision.
II.
DISCUSSION
A.
Standard of Review
Under 42 U.S.C. § 405(g), Congress provided for judicial
review of the Commissioner’s decision to deny a complainant’s
application for social security benefits.
55 F.3d 900, 901 (3d Cir. 1995).
Ventura v. Shalala,
A reviewing court must
uphold the Commissioner’s factual decisions where they are
supported by “substantial evidence.”
42 U.S.C. §§ 405(g),
1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.
2001); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000);
Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Substantial evidence means more than “a mere scintilla.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting
Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).
It means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Id.
The inquiry
is not whether the reviewing court would have made the same
determination, but whether the Commissioner’s conclusion was
reasonable.
See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.
1988).
A reviewing court has a duty to review the evidence in
4
its totality.
1984).
See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.
“[A] court must ‘take into account whatever in the
record fairly detracts from its weight.’” Schonewolf v.
Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting
Willbanks v. Secretary of Health & Human Servs., 847 F.2d 301,
303 (6th Cir. 1988) (quoting Universal Camera Corp. V. NLRB,
340 U.S. 474, 488 (1951)).
The Commissioner “must adequately explain in the record
his reasons for rejecting or discrediting competent evidence.”
Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing
Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)).
The Third
Circuit has held that an “ALJ must review all pertinent
medical evidence and explain his conciliations and
rejections.”
Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d
112, 122 (3d Cir. 2000).
Similarly, an ALJ must also consider
and weigh all of the non-medical evidence before him.
Id.
(citing Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir.
1983)); Cotter v. Harris, 642 F.2d 700, 707 (3d Cir. 1981).
The Third Circuit has held that access to the
Commissioner’s reasoning is indeed essential to a meaningful
court review:
Unless the [Commissioner] has analyzed all
evidence and has sufficiently explained
5
the weight he has given to obviously
probative exhibits, to say that his
decision is supported by substantial
evidence approaches an abdication of the
court’s duty to scrutinize the record as a
whole to determine whether the conclusions
reached are rational.
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978).
Although
an ALJ, as the fact finder, must consider and evaluate the
medical evidence presented, Fargnoli, 247 F.3d at 42, “[t]here
is no requirement that the ALJ discuss in its opinion every
tidbit of evidence included in the record,” Hur v. Barnhart,
94 F. App’x 130, 133 (3d Cir. 2004).
In terms of judicial
review, a district court is not “empowered to weigh the
evidence or substitute its conclusions for those of the factfinder.”
Williams, 970 F.2d at 1182.
However, apart from the
substantial evidence inquiry, a reviewing court is entitled to
satisfy itself that the Commissioner arrived at his decision
by application of the proper legal standards.
Sykes, 228 F.3d
at 262; Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir.
1983); Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
B.
Standard for DIB and SSI
The Social Security Act defines “disability” for purposes
of an entitlement to a period of disability and disability
insurance benefits as the inability to engage in any
6
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 less than 12
months.
See 42 U.S.C. § 1382c(a)(3)(A).
Under this
definition, a Plaintiff qualifies as disabled only if his
physical or mental impairments are of such severity that he is
not only unable to perform his past relevant work, but cannot,
given his age, education, and work experience, engage in any
other type 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) (emphasis
added).
The Commissioner has promulgated regulations 6 for
determining disability that require application of a five-step
sequential analysis.
See 20 C.F.R. § 404.1520.
This five-
step process is summarized as follows:
1.
If the claimant currently is engaged in substantial
6
The regulations were amended for various provisions effective
March 27, 2017. See 82 F.R. 5844. Because the ALJ issued his
decision prior to that effective date, the Court must employ
the standards in effect at the time of his decision.
7
gainful employment, he will be found “not disabled.”
2.
If the claimant does not suffer from a “severe
impairment,” he will be found “not disabled.”
3.
If the severe impairment meets or equals a listed
impairment in 20 C.F.R. Part 404, Subpart P,
Appendix 1 and has lasted or is expected to last for
a continuous period of at least twelve months, the
claimant will be found “disabled.”
4.
If the claimant can still perform work he has done
in the past (“past relevant work”) despite the
severe impairment, he will be found “not disabled.”
5.
Finally, the Commissioner will consider the
claimant’s ability to perform work (“residual
functional capacity”), age, education, and past work
experience to determine whether or not he is capable
of performing other work which exists in the
national economy. If he is incapable, he will be
found “disabled.” If he is capable, he will be
found “not disabled.”
20 C.F.R. § 404.1520(b)-(f).
Entitlement to benefits is
therefore dependent upon a finding that the claimant is
incapable of performing work in the national economy.
This five-step process involves a shifting burden of
proof.
See Wallace v. Secretary of Health & Human Servs., 722
F.2d 1150, 1153 (3d Cir. 1983).
In the first four steps of
the analysis, the burden is on the claimant to prove every
element of his claim by a preponderance of the evidence.
id.
See
In the final step, the Commissioner bears the burden of
proving that work is available for the Plaintiff: “Once a
8
claimant has proved that he is unable to perform his former
job, the burden shifts to the Commissioner to prove that there
is some other kind of substantial gainful employment he is
able to perform.”
Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir.
1987); see Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir.
1983).
C.
Analysis
At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since the alleged onset of
disability.
At step two, the ALJ found that Plaintiff’s
impairments of degenerative disc disease, bilateral knee
degenerative joint disease, obesity, hypertension, left
shoulder rotator cuff tear, and left lateral epicondylitis
were severe.
At step three, the ALJ determined that neither
Plaintiff’s severe impairments nor her severe impairments in
combination with her other impairments equaled the severity of
one of the listed impairments.
The ALJ then determined, at
step four, Plaintiff’s residual functional capacity (“RFC”),
which the ALJ found to be the following:
I find that the claimant has the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except that she can stand or
walk for up to 4 hours and sit for up to 6 hours in an 8hour workday. The claimant can occasionally climb ramps,
stairs, ladders, ropes, and scaffolds. She can
9
occasionally balance, stoop, crouch, and kneel. The
claimant can frequently perform overhead reaching with
the left upper extremity.
(R. at 52.)
The ALJ noted that Plaintiff’s past relevant work as a
gambling cashier was classified at the sedentary level under
the Dictionary of Occupational Titles, and Plaintiff performed
that job at the sedentary level. 7
Thus, because Plaintiff had
the RFC to perform light work, which is a level higher than
sedentary work, 8 Plaintiff was capable of performing her past
7
20 C.F.R. § 404.1567 (“Physical exertion requirements. To
determine the physical exertion requirements of work in the
national economy, we classify jobs as sedentary, light,
medium, heavy, and very heavy.”); 20 C.F.R. § 404.1567
(Sedentary work “involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.”).
8
20 C.F.R. § 404.1567 (“Light work. Light work involves lifting
no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling
of arm or leg controls. To be considered capable of performing
a full or wide range of light work, you must have the ability
to do substantially all of these activities. If someone can do
light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss
of fine dexterity or inability to sit for long periods of time.
. . .”).
10
relevant work and was therefore not disabled. 9
Plaintiff argues that the ALJ erred in assessing the
medical evidence, particularly with regard to her treating
physician, Dr. Brian Timms, and a state agency consultant, Dr.
Samuel Wilchfort.
Plaintiff also argues that the ALJ failed
to consider her severe impairments in combination with her
non-severe impairments, as well as her need to use a walker.
Plaintiff’s arguments are unavailing.
When considering a
claimant’s disability benefits claim, an ALJ’s duty is to
review all the pertinent medical and nonmedical evidence and
explain his conciliations and rejections.
20 C.F.R. §
404.1529; Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112,
122 (3d Cir. 2000); Cotter v. Harris, 642 F.2d 700, 707 (3d
Cir. 1981).
The ALJ here fulfilled that duty in a
meticulously thorough decision that details the record
evidence and explains how all the medical evidence along with
Plaintiff’s testimony and subjective complaints support his
ultimate conclusion that Plaintiff is not disabled.
Plaintiff’s first challenge is to the ALJ’s assessment of
9
Because the ALJ determined at step four that Plaintiff was
capable of performing her past relevant work, the ALJ did not
need to reach step five in the sequential step analysis.
Valenti v. Commissioner of Social Sec., 373 F. App’x 255, 258
n.1 (3d Cir. 2010); 20 C.F.R. § 404.1520(b)-(f).
11
the opinion of her treating physician, Dr. Brian Timms.
Plaintiff contends that Dr. Timms’ opinion should have been
given controlling weight, or at least more weight than the ALJ
afforded.
As to Dr. Timms, the ALJ found:
In November 2013, Dr. Timms opined that the claimant was
"unable to work or participate in work-like activity" (Ex.
l 7F/13). Additionally, Dr. Timms stated that, although
the claimant did not require an assistive device, she
would have limitations in the ability to climb, stoop,
bend, and lift, and these limitations would last at least
one year (Id. at 13-14). Pursuant to SSR 96-02p, a
treating source's opinion may be entitled to controlling
weight 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. Dr. Timms' opinion is not entitled to controlling
weight in this case. . . .
[A]lthough Dr. Timms is the claimant's primary care
provider, he completed this document immediately after Dr.
Abbasi's first appointment with her, giving him a limited
basis to assess her limitations, and, as noted above, Dr.
Abbasi did not document any significant abnormalities on
clinical examination. Dr. Timms also did not have an
opportunity to review any prior medical documentation
before completing his statement. It therefore appears that
Dr. Timms based his opinion entirely on the claimant's
subjective complaints and reported history, rather than
his objective and professional observations. Because Dr.
Timms' opinion is not well supported by objective and
clinical findings and is not generally consistent with the
record as a whole, I have given it little weight.
(R. at 58.)
As noted by the ALJ, a treating physician’s opinions are
typically entitled to “great weight,” but an ALJ may reduce his
reliance upon a treating physician’s opinions if those opinions
12
are inconsistent with other medical evidence, and if he
explains his reasoning.
Plummer v. Apfel, 186 F.3d 422, 439
(3d Cir. 1999) (“[A]n ALJ is permitted to accept or reject all
or part of any medical source's opinion, as long as the ALJ
supports his assessment with substantial evidence.”); Cotter v.
Harris, 642 F.2d 700, 705 (3d Cir. 1981) (“We are also
cognizant that when the medical testimony or conclusions are
conflicting, the ALJ is not only entitled but required to
choose between them. . . . [W]e need from the ALJ not only an
expression of the evidence s/he considered which supports the
result, but also some indication of the evidence which was
rejected.”); Chandler v. Commissioner of Social Sec., 667 F.3d
356, 361 (3d Cir. 2011) (citing 20 C.F.R. §§ 404.1527(e)(1),
404.1546(c); 20 C.F.R. § 404.1527(d)(1)-(2); SSR 96–6p) (other
quotations, citations, and alterations omitted) (“The ALJ - not
treating or examining physicians or State agency consultants must make the ultimate disability and RFC determinations.
Although treating and examining physician opinions often
deserve more weight than the opinions of doctors who review
records, the law is clear . . . that the opinion of a treating
physician does not bind the ALJ on the issue of functional
capacity, and state agent opinions merit significant
13
consideration as well.”).
The ALJ properly followed those
guidelines in this case. 10
Plaintiff also argues that the ALJ erred by not explaining
the specific weight he afforded to the findings of a state
agency examiner, Dr. Samuel Wilchfort.
Plaintiff contends that
this is important because Dr. Wilchfort opined that Plaintiff
demonstrated decreased ranges of motion in the bilateral upper
extremities, and the ALJ’s RFC only included a limitation on
her upper right extremity.
The Court does not find any error
by the ALJ in this regard.
Dr. Wilchfort performed his
evaluation in February 2014, and the ALJ described Dr.
Wilchfort’s findings.
(R. at 54.)
Dr. Wilchfort’s report was
then considered by two additional state agency consultants,
10
It is also relevant to note that the referenced report by Dr.
Timms is a so-called “check-the-box” form completed in support
of Plaintiff’s application for state welfare benefits. (R. at
661-62.) “Form 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),
and conclusions in a doctor’s report as to a claimant’s
disability made for a different disability program may be
disregarded by the ALJ, Hartranft v. Apfel, 181 F.3d 358, 362
(3d Cir. 1999) (citing Coria v. Heckler, 750 F.2d 245, 247 (3d
Cir. 1984) (noting that “the ALJ could reasonably disregard so
much of the physicians' reports as set forth their conclusions
as to worker compensation claims”). The nature of Dr. Timms’
report further supports the ALJ’s decision to afford it little
weight.
14
Mohammed Rizwan, M.D. and Nancy Simpkins, M.D., in March 2014
and June 2014 respectively.
(R. at 57.)
The ALJ gave the
opinions of Dr. Rizwan and Dr. Simpkins considerable weight
because they reviewed all available evidence and their opinions
were consistent with the record as a whole, including the
majority of the findings on clinical examination.
58.)
(R. at 57-
Thus, by reviewing Dr. Wilchfort’s report, which was then
specifically considered by two other state agency examiners
whose opinions the ALJ afforded considerable weight, the ALJ
fulfilled his obligation under the regulations.
See 20 C.F.R.
§ 404.1527 (“Regardless of its source, we will evaluate every
medical opinion we receive.”); Plummer, 186 F.3d at 439.
Plaintiff next argues that the ALJ did not properly
consider the impact of her headaches from her hypertension or
the effects of her mood disorder on her ability to work, and
the ALJ must consider those impairments in combination with
her severe impairments even though they were not deemed
“severe.”
Although it is true that an ALJ must consider all
of a claimant’s impairments when assessing her RFC, the nonsevere impairments must be established by credible evidence
and have demonstrable impact on a claimant’s RFC.
See 20
C.F.R. § 404.1545(a)(2) (“We will consider all of your
15
medically determinable impairments of which we are aware,
including your medically determinable impairments that are not
‘severe,’ as explained in §§ 404.1520(c), 404.1521, and
404.1523, when we assess your residual functional capacity.”);
Page v. Barnhart, 108 F. App’x 735, 738 (3d Cir. 2004) (“An
impairment is not severe if medical evidence establishes that
the condition has no more than a minimal impact on the
individual's ability to engage in basic work activities.”).
In this case, the ALJ specifically addressed Plaintiff’s
hypertension and mood disorder multiple times in the decision,
and determined how they affected Plaintiff’s RFC.
For
example, after summarizing the medical evidence and
Plaintiff’s complaints regarding her headaches, the ALJ noted
that Plaintiff’s headaches were caused by non-compliance with
hypertension medication, and that she had a history of poorly
controlled hypertension.
The ALJ considered Plaintiff’s
“history of poorly controlled blood pressure, with complaints
of headaches, occasional lightheadedness, chest pain, and
blurred vision, in assessing a residual functional capacity
for light work with four hours of standing and walking per day
and only occasional postural activities, particularly
balancing and climbing of ladders, ropes, and scaffolds,” and
16
further noted that Plaintiff “has never been hospitalized for
an acute hypertensive emergency, and there is no evidence of
ischemic brain changes on end organ damage.”
(R. at 56.)
The
ALJ concluded, based on substantial evidence in the record,
that “hypertension does not cause additional functional
limitations.”
(Id.)
As for Plaintiff’s mood disorder, the ALJ found that
Plaintiff’s mood disorder did not result in significant workrelated functional limitations, noting that Plaintiff was
“able to maintain concentration on a variety of daily
activities, including driving, household chores, and video
games.
Moreover, the claimant told Dr. Coffey, the
psychological consultative examiner, that she took Cymbalta
only when she felt depressed, and Dr. Coffey said that she
appeared to have no difficulty following the stream of
conversation (Ex. l lF/2-3).
Dr. Coffey did state that the
claimant had problems performing calculations on mental status
examination; however, he also noted that she appeared to be
‘making an effort to present herself in a negative light’ and
that ‘Her performance on the mental status examination is not
at all consistent with her personal history.’”
(R. at 53.)
Although Plaintiff disagrees with the ALJ’s assessment of
17
how her headaches and mood disorder impacted her RFC, the
ALJ’s assessment, in the two passages quoted and in other
parts of the decision (see, e.g., R. at 55, 57, 59, 60), 11
complies with his obligations under the regulations and Third
11
In his decision, the ALJ also assessed Plaintiff’s
credibility as to how her impairments affected her ability to
work and perform daily activities. The ALJ stated that the
record contained minimal counseling or psychiatric records,
she lived alone and took care of her personal needs, she did
not progress in physical therapy because of her poor
attendance, which called into question her commitment to
improving her physical functioning, she recounted her
extensive medical history without any apparent difficulty, and
as April 2015, Plaintiff reported that she was caring for her
daughter who had a stroke, which strongly suggested that
Plaintiff’s activity level was much higher than she alleged at
the hearing. These observations also show that substantial
evidence supports the ALJ’s determination of Plaintiff’s RFC.
See Metz v. Federal Mine Safety and Health Review Com'n, 532
F. App’x 309, 312 (3d Cir. 2013) (“Overturning an ALJ's
credibility determination is an ‘extraordinary step,’ as
credibility determinations are entitled to a great deal of
deference.”); Schaudeck v. Comm'r of Social Security, 181 F.3d
429, 433 (3d Cir. 1999) (explaining that allegations of pain
and other subjective symptoms must be supported by objective
medical evidence, and an ALJ may reject a claimant's
subjective testimony if he does not find it credible as long
as he explains why he is rejecting the testimony); SSR 96-7p
(“No symptom or combination of symptoms can be the basis for a
finding of disability, no matter how genuine the individual's
complaints may appear to be, unless there are medical signs
and laboratory findings demonstrating the existence of a
medically determinable physical or mental impairment(s) that
could reasonably be expected to produce the symptoms.”); 20
C.F.R. § 416.929(c)(4) (“We will consider whether there are
any inconsistencies in the evidence and the extent to which
there are any conflicts between your statements and the rest
of the evidence . . . .”).
18
Circuit law to explain the record evidence that supports his
decision. 12
Finally, Plaintiff argues that the ALJ’s RFC finding that
Plaintiff could crawl is irreconcilable with her need to use a
walker prescribed by her doctor.
In his decision, the ALJ
squarely addressed the impact of the walker on Plaintiff’s
RFC.
The ALJ acknowledged that Plaintiff’s orthopedist as of
the date of the hearing on June 16, 2016, Dr. Frankel,
prescribed a walker about one week before the hearing.
The
ALJ noted, however, that there were no clinical notes from Dr.
Frankel, Plaintiff admitted she only saw him once, and there
was no evidence establishing how often or for how long Dr.
Frankel recommended that Plaintiff use the walker.
56.)
(R. at
The ALJ further noted that in November 2014, an
examining doctor appeared to have “based his recommendation
for a cane on the claimant’s statement that she sometimes used
one, although she did not bring one to the examination with
her, and there is minimal evidence to suggest that a cane or
other device has been medically necessary on a consistent
12
It is also relevant to note that the RFC finding is a
determination expressly reserved to the Commissioner, and it
is not for a treating medical source or consultative examiner
to determine. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2),
404.1546(c), 416.946(c).
19
basis since the alleged onset date.”
(R. at 59.)
The ALJ
also afforded considerable weight to a state agency medical
consultant who found in March 2014 that Plaintiff had no
limitation on the ability to crawl.
(R. at 57.)
Based on this specific analysis, the ALJ properly
considered how Plaintiff’s prescription for a walker impacted
her RFC.
See, e.g., Rodriguez v. Commissioner of Social
Security, 2017 WL 935442, at *7 (D.N.J. 2017) (providing that
in addressing a claimant's RFC, the ALJ need only consider
“medically required” devices, and a prescription for a cane is
not enough to demonstrate that the cane is medically necessary
(citing SSR 96–9p, “To find that a hand-held assistive device
is medically required, there must be medical documentation
establishing the need for a hand-held assistive device to aid
in walking or standing, and describing the circumstances for
which it is needed.”); Howze v. Barnhart, 53 F. App’x 218, 222
(3d Cir. 2002) (demonstrating that the mention of the
plaintiff's use of a cane throughout the record and a
physician's “script” for a cane is “insufficient to support a
finding that the [Plaintiff's] cane was medically
necessary”)); Southerland v. Commissioner of Social Security,
2017 WL 1246345, at *8 (D.N.J. 2017) (finding that the ALJ did
20
not err when she did not comment on Plaintiff's use of a cane,
because it did not affect the finding that Plaintiff was
capable of a sedentary job, when considered in the context of
Plaintiff's daily living activities, his doctor's assessment
of his standing and walking abilities, and that his need to
use a cane was based on his own testimony rather than the
records of a medical treatment provider) (citing Smelly v.
Commissioner of Social Sec., 2013 WL 3223000, at *7 (D.N.J.
2013) (citing S.S.R. 96–9p) (stating that a cane does not
automatically erode a claimant's sedentary occupational base
significantly); Dye v. Commissioner of Social Sec., 2009 WL
3242078, at *6 (D.N.J. 2009) (“In making the step five
determination, the ALJ considered that Plaintiff would be
capable of only sedentary jobs, thus reflecting a view of
Plaintiff's difficulties consistent with the prescription of a
cane in April of 2004.”)).
III. CONCLUSION
This Court may not second guess the ALJ’s conclusions,
and may only determine whether substantial evidence supports
the ALJ’s determinations.
Hartzell v. Astrue, 741 F. Supp. 2d
645, 647 (D.N.J. 2010) (citing Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992)) (explaining that the pinnacle legal
21
principal is that a district court is not empowered to weigh
the evidence or substitute its conclusions for those of the
ALJ).
The Court finds in this case the ALJ’s determination
that Plaintiff was not totally disabled as of January 22, 2012
is supported by substantial evidence.
The decision of the ALJ
is therefore affirmed.
An accompanying Order will be issued.
Date: January 29, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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