UNGEMACH v. COMMISSIONER OF SOCIAL SECURITY
Filing
28
OPINION. Signed by Judge Noel L. Hillman on 7/11/2019. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHERYL UNGEMACH,
1:18-cv-04987-NLH
Plaintiff,
OPINION
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
APPEARANCES:
RICHARD LOWELL FRANKEL
KELLY OHLERT
BROSS & FRANKEL, PA
725 KENILWORTH AVE
CHERRY HILL, NJ 08002
On behalf of Plaintiff
ROBERT S. DRUM
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, June 1, 2013.
For the reasons stated below, this
Court will affirm that decision.
I.
BACKGROUND AND PROCEDURAL HISTORY
On June 21, 2013, Plaintiff, Cheryl Ungemach,
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 June 1, 2013. 5
Plaintiff claims
that she can no longer work at her previous job as a lunchroom
aide because she suffers from numerous impairments, including
fibromyalgia, degenerative disc disease, migraines, and
irritable bowel syndrome (“IBS”). 6
After Plaintiff’s initial claim was denied on September
3, 2013, and upon reconsideration on January 16, 2014,
Plaintiff requested a hearing before an ALJ, which was held on
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 June 1, 2013, the relevant period for
Plaintiff’s SSI claim begins with her June 21, 2013
application date, through the date of the ALJ’s decision on
July 27, 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.
6
Plaintiff was 47 years old at the time of the alleged
disability onset date, which is defined as a younger
individual (age 18-49). During the claim process, Plaintiff
changed age category to closely approaching advanced age (age
50-54). 20 C.F.R. §§ 404.1563, 416.963.
3
March 4, 2016.
On July 27, 2016, the ALJ issued an
unfavorable decision.
Plaintiff’s Request for Review of
Hearing Decision was denied by the Appeals Council on January
14, 2018, making the ALJ’s July 27, 2016 decision final.
Plaintiff brings 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.”
4
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
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.
5
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
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.
6
1983); Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
B.
Standard for DIB and SSI 7
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
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
7
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.
Parallel SSI regulations are found at 20 C.F.R. §§ 416.900416.999, 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) (because the law and regulations governing the
determination of disability are the same for both DIB and SSI
the Court provided citations to only one set of regulations).
7
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 8 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
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
8
The regulations were amended various provisions effective
March 27, 2017. See 82 F.R. 5844. Because the ALJ issued her
decision prior to that effective date, the Court must employ
the standards in effect at the time of her decision.
8
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
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
9
impairments of fibromyalgia and back disorders 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 that even though
Plaintiff did not have any past relevant work experience, 9
Plaintiff’s residual functional capacity (“RFC”) enabled her
to perform light work with certain restrictions. 10
The ALJ
consulted a vocational expert (“VE”), who testified that a
person with Plaintiff’s RFC could perform jobs which exist in
significant numbers in the national economy such as a
9
The ALJ did not consider Plaintiff’s part-time, two-hour-aday job as a lunch room aide to be past relevant work. (R. at
36.)
10
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 (“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
teacher’s aide, office clerk, mail clerk/sorter, and
electrical assembler (steps four and five).
Plaintiff argues that the ALJ erred in several ways.
Plaintiff argues the ALJ: (1) did not properly consider the
medical evidence; (2) did not consider Plaintiff’s IBS or
migraines in combination with her severe disorders in
formulating Plaintiff’s RFC; (3) failed to perform a functionby-function analysis; (4) failed to follow HALLEX § I–2–7–
30(H), Proffer Procedures; 11 and (5) erroneously applied SSR
96-7p even though that rule was superseded by SSR 16-3p.
The Court quickly rejects Plaintiff’s third, fourth, and
fifth bases for appeal because they are not independent
grounds for reversal, and the Court does not find that these
issues impact, even tangentially, Plaintiff’s other two bases
for appeal.
See Salles v. Commissioner of Social Sec., 229 F.
App’x 140, 149, 2007 WL 1827129, at *7 (3d Cir. 2007) (citing
Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004); SSR 96–
11
HALLEX stands for the SSA's “Hearings, Appeals and
Litigation Law Manual.” It is intended to convey “guiding
principles, procedural guidance and information to the Office
of Hearings and Appeals (“OHA”) staff.... It also defines
procedures for carrying out policy and provides guidance for
processing and adjudicating claims at the Hearing, Appeals
Council, and Civil Action levels.” HALLEX § I–1–0–1, Purpose,
https://www.ssa.gov/OP_Home/hallex/I-01/I-1-0-1.html.
11
8p) (explaining that the SSA has stated that the RFC is a
function-by-function assessment based on all of the relevant
evidence of an individual's ability to do work-related
activities, but an ALJ does not need to use particular
language or adhere to a particular format in conducting his
RFC analysis, and therefore any alleged error in an ALJ’s
omission to perform a “function by function” analysis is
actually a challenge to his RFC assessment as a whole); Bordes
v. Commissioner of Social Sec., 235 F. App’x 853, 859, 2007 WL
1454289, at *4 (3d Cir. 2007) (citing Schweiker v. Hansen, 450
U.S. 785, 789 (1981)) (“HALLEX provisions . . . lack the force
of law and create no judicially-enforceable rights.”); Sasse
v. Commissioner of Social Security, 2019 WL 1233553, at *7
(D.N.J. 2019) (explaining that effective March 26, 2016, the
SSA issued Social Security Ruling 16-3p, which superseded SSR
96-7p, to eliminate the use of the term “credibility,” but
even though SSR 16–3p clarifies that adjudicators should not
make statements about an individual’s truthfulness, the
overarching task of assessing whether an individual’s
statements are consistent with other record evidence remains
the same).
Although requiring slightly more analysis, the Court also
12
finds Plaintiff’s other two bases for appeal to be 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).
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 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, 642 F.2d at 705 (“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),
13
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 consideration as well.”).
Plaintiff argues that the ALJ improperly discounted
certain medical evidence without properly explaining her
reasoning.
To the contrary, the Court finds that the ALJ
satisfied her obligation in this regard.
The ALJ observed:
(1) The opinion of Plaintiff’s treating rheumatologist,
Dr. Moynihan, was based mainly on Plaintiff’s allegations, and
Dr. Moynihan’s progress notes concern the need for further
testing and treatment, which Plaintiff has refused (R. at 34);
(2) Plaintiff’s primary care physician, Dr. Wu, provided
limited treatment for Plaintiff’s back pain and fibromyalgia,
with most of his treatment consisting of routine issues, such
14
a fever and irritable bowel (R. at 34);
(3) Two consultative examiners’ opinions that found
Plaintiff to be capable of sedentary work, but that was not
supported by the record (R. at 34), which included:
•
Plaintiff lives alone on the top floor of a duplex
requiring her to use stairs (R. at 32);
•
Plaintiff drives 10-15 minutes without experiencing
pain (R. at 33);
•
Even though her mother helps Plaintiff with laundry
and her parents do most of her shopping, Plaintiff
does her own cleaning, she can attend to her
personal care, she makes simple meals, and cares for
her cat (R. at 33);
•
Plaintiff attends church services that last about an
hour (R. at 33);
•
In November 2013, Plaintiff saw Susan Lotkowski,
D.O., who noted that the claimant’s gait was widebased and she drags both of her feet when walking
poor[ly].
However, Dr. Lotkowski also noted poor
effort throughout the examination.
She found that
the claimant's degenerative disc disease does not
appear to be causing significant nerve root
15
compression and does not result in focal
neurological deficits localizing to the lumbar
spine.
Further, there was no evidence of
significant neuropathy or polyneuropathy on
examination.
Dr. Lotkowski recommended neck and
back exercises and further testing (R. at 33);
•
In April 2016, consultative examiner Dr. Cornejo
found: Upon examination, she was able to get on and
off the examination table; go from lying down to
sitting up; dress herself and was comfortable in the
seated position during the interview.
There was no
swelling or evidence of joint deformity of the upper
extremities.
Although Dr. Cornejo noted decreased
range of motion of the shoulders, he questioned the
claimant's effort.
Further, he noted tenderness in
the elbows, ulna and fingers with minimally
decreased muscle strength of the biceps and triceps.
Additionally, an examination of the lower
extremities failed to reveal evidence of joint
deformity, instability or swelling.
Her knees and
ankles showed normal range of motion and no sensory
deficit to light touch or pinprick.
16
An examination
of the cervical and lumbar spines revealed decreased
range of motion with tenderness.
Despite this, she
was able to walk with a normal physiologic gait
without a limp and did not require the use of an
ambulation aid. (R. at 35);
(4) Plaintiff does not take any medication other than
aspirin and natural supplements (R. at 32);
(5) Plaintiff has rejected her doctors’ prescribed
treatments, refusing to take medication, and she claims she
cannot swim due to a chlorine allergy, and she has no money
for physical therapy (R. at 33);
(6) Plaintiff as “bad days” once a month (R. at 32);
(7) The record shows that the treatment the claimant has
received has been routine and conservative, consisting mainly
of routine follow-ups with her rheumatologist and unremarkable
testing.
She has undergone limited treatment due to her fear
of potential side effects.
In order to [qualify for]
benefits, the claimant must follow treatment prescribed by her
physicians if this treatment can restore her ability to work.
If the claimant does not follow the prescribed treatment
without a good reason, the undersigned will find them not
disabled (20 CPR 404.1530 and 416.930) (R. at 35).
17
Plaintiff disagrees with the ALJ’s assessment of the
above outlined evidence, but it cannot be found that the ALJ
failed to comply with Plummer and Cotter and provide a
sufficient expression of the evidence she considered, and how
she viewed it in formulating Plaintiff’s RFC.
The ALJ also did not err in her consideration of
Plaintiff’s migraines.
It is true that an ALJ must consider
all of a claimant’s impairments when assessing her RFC, but
the non-severe 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
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.”).
The ALJ noted that one of Plaintiff’s claimed impairments
was migraine headaches, and that she experienced migraine
headaches triggered by noise at work.
18
(R. 32.)
Plaintiff
argues that the ALJ’s failure to mention her migraines in the
remainder of the decision was erroneous and requires remand.
To support her argument, Plaintiff provides a string cite to
the record without providing any detail as to the contents of
those citations.
The Court has viewed the record citations,
and finds that none of them supports her argument.
R. at 214: Disability Report – Adult – Form SSA-336,
which is a form Plaintiff completed herself as part of
the application process, on which she lists migraines as
one of her conditions.
R. at 280: Letter from Plaintiff’s counsel to the ALJ
after the hearing before the ALJ regarding the proffer of
Dr. Cornejo, in which counsel argues that Dr. Cornejo did
not address Plaintiff’s migraines.
R. at 317: Initial visit summary with Dr. Moynihan on
October 25, 2012, where Plaintiff reported her history,
including that she experiences migraines.
R. at 352: Medical source form completed by Dr. Moynihan
on October 24, 2013 where it lists Plaintiff’s
impairments based on what Plaintiff reported during the
October 25, 2012 office visit.
R. at 361: Treatment record from Plaintiff’s November 15,
2013 office visit with Dr. Lotkowski, where Plaintiff
reported that she experienced migraines.
R. at 368: Office visit note with Dr. Wu on February 27,
2015 for pain in lower abdomen, which lists migraines as
one of her conditions, but this treatment note is
unrelated to migraines.
R. at 385: Office visit with Dr. Wu on December 29, 2015
for fever and sore throat, which lists migraines as one
of her conditions, but this treatment note is unrelated
to migraines.
19
R. at 390: Duplicate of R. at 385.
Other than Plaintiff’s self-reporting that she
experiences migraines, which her physicians have recorded in
their records, Plaintiff does not cite to one medical record
that reveals any office visit specific to her migraines, or
documents how her migraine headaches impact her functioning.
The ALJ cannot be faulted for not considering Plaintiff’s
migraine headaches in the RFC assessment because the only
record of Plaintiff’s migraines is Plaintiff’s conclusory
statement that she experiences them.
See Hatton v.
Commissioner of Social Security Admin., 131 F. App’x 877, 879
(3d Cir. 2005) (citing 20 C.F.R. § 404.1527(d)(2)) (“[A]
medical source's recitation of subjective complaints is not
entitled to any weight.”); Craig v. Chater, 76 F.3d 585, 590
n.2 (4th Cir. 1996) (holding that a medical source does not
transform the claimant's subjective complaints into objective
findings simply by recording them in his narrative report)). 12
12
Plaintiff makes the same argument regarding Plaintiff’s
IBS/gastritis and severe fatigue. For Plaintiff’s
IBS/gastritis, Plaintiff does not cite to any record evidence
not considered by the ALJ. For Plaintiff’s severe fatigue,
Plaintiff cites to four medical records which are the same
type as those documenting her migraine headaches – i.e.,
Plaintiff’s self-reporting that she feels fatigued. (R. at
371-80, 385, 390, 401.) For the same reasons the Court
20
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
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 June 1, 2013 is
supported by substantial evidence.
The decision of the ALJ is
therefore affirmed.
An accompanying Order will be issued.
Date: July 11, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
rejects Plaintiff’s argument regarding the ALJ’s failure to
consider her migraines, the Court rejects Plaintiff’s argument
regarding her IBS/gastritis and severe fatigue.
21
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