CURRIE v. COMMISSIONER OF SOCIAL SECURITY et al

Filing 20

OPINION. Signed by Judge Claire C. Cecchi on 6/18/12. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICHARD CURRIE,
Plaintiff,
*

v.

Civil Action No. 10-5757

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,

OPINION

Defendant.

CECCHI, District Judge.
Richard Currie (“Plaintiff’) appeals the final determination of the Commissione
r of the
Social Security Administration (the “Commissioner”) denying Plaintiff disabil
ity benefits under
the Social Security Act (“Act”). This Court has jurisdiction to hear this matter
pursuant to 42
U.S.C.

§

405(g). This motion has been decided upon the written submissions of the
parties

pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below,
the decision of
Administrative Law Judge Kenneth Chu (“AU”) is affirmed.
I.

PROCEDURAL HISTORY

Plaintiff applied for Supplemental Security Income (SSI1) with the Social
Security
Administration (“SSA”) on July 2, 2007, alleging disability beginning on April
6, 2006, (R. 101104.) The claim was initially denied on January 9, 2008. (R. 49-53.) Thereafter,
Plaintiff filed
for reconsideration on March 10, 2008, and was again denied benefits on Augus
t 8, 2008. (R.
56-5 7, 5 8-60.) Plaintiff then filed a written request for a hearing on August 22,
2008. (R. 61.)
On November 20, 2009, Plaintiff appeared and testified at a hearing before the
AU. (R. 20-46,

77-99.)

Based on Plaintiffs residual functional capacity and past relevant work, the
AU

concluded on January 12, 2010 that Plaintiff is not disabled under §1614(a)(3)(
A) of the Act and
that Plaintiff is therefore not entitled to disability benefits.

(R. 9-16.) Following the AU’s

decision, Plaintiff filed for reconsideration by the Appeals Council on Februa
ry 19, 2010. (R. 45.) Plaintiff’s request for reconsideration was denied on September 22, 2010.
(R. 1-3.) The
Appeals Council’s denial to rehear the matter made the AU’s disposition of
the matter the final
decision of the Commissioner. (Id.)
Plaintiff initiated the current action against the Social Security Administratio
n in this
Court on November 4, 2010 seeking a determination that he is disabled and therefo
re entitled to
SSI benefits. (See Complaint.)
II.

FACTUAL BACKGROUND

A.

Personal and Employment History

At the time of the hearing, Plaintiff was fifty-nine years old and lived with his mothe
r and
sister in a house that his sister owns. (R. 24; 2 8-29.) Plaintiff was born in Argent
ina, where he
attended twelve years of schooling and graduated from high school. (R. 24.) Plainti
ff moved to
the United States in approximately 1981 and is now a citizen of this country.
(Id.) Plaintiff
testified that he held jobs as a painter, handy man, truck driver, and loading dock
worker through
1991. (R. 117-20.) Plaintiffs most recent work was for a vending machine compa
ny from 1991
until 1999. (R. 117.) At this job, Plaintiff loaded trucks, drove a truck, made
deliveries, and
supervised up to three people. (R. 120.) Plaintiff regularly lifted fifty pounds
or more and, at
times, lifted 100 pounds or more. (id,)

2

B.

Daily Activities

Plaintiff testified, and also supplied information in his “Function Report,” as to what he
does on a typical day. (R, 25-26, 117-131.) He testified that he wakes up at 8:00 a,m. and eats a
breakfast prepared for him by his mother.

(R. 39-40.) Plaintiff testified that he no longer

interacts with friends or spends more than a few minutes outdoors. (R. 41.) Plaintiff’s family
has a dog that he sometimes feeds and takes outside for short periods of time. (R. 42.) Plaintiff
does not do any chores around his house because he claims he just does not want to do them
anymore. (R. 44.) Plaintiff claimed that there are days that he cannot even get out of bed. (R.
125.)

Plaintiff claims difficulties in taking care of his personal hygiene on a daily basis,

including grooming, bathing, taking his prescribed medications, and using the bathroom. (R.
126.) He claims his mother and sister aid him in these tasks. (R. 126-27.)
Plaintiff further testified that he has tried to work since his last job in 1999, but claims
that he would be hired provisionally and then not be asked to work after a week. (R. 42.)
Plaintiff testified that he does not drive anymore because he gets lost, scared, and dizzy. (R. 43,
128.) He also feels that he is a danger to others when he is driving. (R. 43.) Plaintiff does not
handle his own finances because he claims he cannot concentrate anymore. (R. 128.)
C.

Medical History

Plaintiff’s medical history provided to the AU dates back to February 6, 1992. (R. 411.)
It appears the Plaintiff’s physician at that time was Dr. Jose Gomez, (R. 411-413.) At an office
visit on February 6, 1992, Plaintiff complained of bleeding and generalized weakness. (R. 411.)
Dr. Gomez prescribed a number of medications for Plaintiff. (Id.) Dr. Gomez also ordered a
radiographic (x-ray) examination of Plaintiff’s chest, to take place the following day, which

3

revealed Plaintiff’s chest to be “normal.” (R. 413.
) Plaintiff’s blood test demonstrated he had
high cholesterol. (R. 412-415.)
Plaintiff had many tests run between March and
July of 1992, and continued to complain
of abdominal pain. (R. 401-12.) The imaging
tests revealed multiple calcifications in various
locations in the abdomen, a complex legion on Plain
tiff’s liver, and a potential hemangioma on
the liver. (R. 405-12.) Plaintiff had no definite
evidence of an ulcer niche, but mild gastro
esophageal reflux disease (GERD) was found. (R.
401.) After these tests, on July 27, 1999, Dr.
Gomez reported that Plaintiff had peptic ulcer disea
se and severe anemia due to chronic blood
loss. (R. 416.) Dr. Gomez stated in his disability
report to the State that Plaintiff would be
unable to work from July 19, 1999 until September
20, 1999. (Id.)
A gastrointestinal series was performed on Plain
tiff on September 13, 1999, which
revealed a normal esophagus, a normal gastric fund
us, body and antrum, and no hiatus hernia.
(R. 394.) The exam revealed moderate inflamma
tory changes of the duodenal bulb with edema
of the mucosal folds, but no evidence of an actua
l ulcer niche. (Id.) Dr. Gomez continued to
treat Plaintiff and, in a note dated March 13, 2001
, stated that Plaintiff was being followed due to
hypertension, hypercholesterolemia, and peptic
ulcer disease. (R. 417.) At that time, Plaintiff
was taking Accuretic, Plendil, Prevacid, and Zoco
r. (Id.)
Plaintiff continued to undergo medical testing spor
adically from 2002 to 2006. (R. 206208, 312-316, 358-60, 366.) Dr. Gomez filed “Con
fidential Medical Examining Physician’s
Reports” on Plaintiff’s behalf with the State ofew
Jersey every year from 2002 to 2007, which
stated that plaintiff suffered from several ailments
and that, though he was ambulatory, he was
unable to work. (R. 262-64, 293-95, 297-98, 332-34,
329-31, 340-41, 418-21.)

4

An ultrasound from February 27, 2006 indicated that patient was suffering from renal
neoplasm, a cancer of the kidney. (R. 204, 303.) This test correlated with the finding
of the CR
scan performed on January 30, 3006, that primary renal neoplasm was the leading differe
ntial for
Plaintiff’s renal mass. (Id.) On April 4, 2006, Dr. Gomez examined Plaintiff in anticip
ation of
surgery. (R. 260, 291.) Dr. Gomez’s impression of Plaintiff was that he had a left renal
mass,
hypertension, hypercholesterolemia, peptic ulcer disease, and diverticulitis. (Id.) Based
on this
examination, Dr. Gomez cleared Plaintiff for surgery. (Id.) On April 6, 2006, Dr. Sean
Eagan
performed a left laparoscopic nephrectomy on Plaintiff to remove a cancerous mass. (R.
279-86,
304-1 1.)
Post-operative tests revealed hepatic lesions, which Dr. Egan planned to investi
gate
through further testing. (R. 277.) Plaintiff underwent a hepatic ultrasound and a tagged
red
blood cell study in an attempt to ascertain the character of the lesions.

(R. 189-91, 236.)

Ultimately, in order to rule out liver cancer, Dr. Egan ordered a biopsy, which was perform
ed by
Dr. Kaplan in an outpatient procedure on January 16, 2007. (R. 216-30, 234-35.)
The biopsy
showed no significant pathological changes and no malignancy was identified in
the tissue
samples, (R. 227, 235.)
In a report dated July 11, 2007, Dr. Egan stated that Plaintiff was without any evidence
of

recurrence. (R. 231.) Dr. Egan also stated that Plaintiff was able to work and had no limitat
ions
relative to standing, walking, sitting, pushing, pulling, and that he was otherwise not limited
in
any way. (R. 232.) Specifically, he noted that Plaintiff had no other conditions that limited
his
ability to do work related activities. (Id.)
On October 25, 2007, Dr. Egan reported that Plaintiff was doing well at a follow-up visit.
(R. 271.) Dr. Egan stated that Plaintiff claimed disability, but could not see that being
warranted

from a urological standpoint. (Id.) Plaintiff had no weight loss, no bone pain, and no pulmonary
type symptoms. (Id.) Further, the hepatic lesions that were present on previous pre- and post
operative exams had been fully evaluated. (Id.) Dr. Egan did note mild COPD present on a
chest x-ray but no mass lesions or infiltrates were noted in the lungs. (Id.) Finally, a blood test

revealed mild renal insufficiency, but these levels were unchanged from previous evaluations,
(Id.) Dr. Egan’s recommendations were to have a nephrology evaluation, chest x-ray and blood
tests in six months, a CT scan in one year, and otherwise to engage in “conservative
management.” (Id.)
The State of New Jersey referred Plaintiff to Dr. John M. Augustin for a physical
examination when Plaintiff continued to seek disability services. (R. 242-47.) Dr. Augustin’s
December 15, 2007 physical examination of Plaintiff disclosed a middle-aged male in no
apparent acute distress weighing 203 pounds and standing 5 feet 9 inches tall.
Plaintiff’s blood pressure was 130/80 and his respiration was 20. LId.)

(R. 243.)

Plaintiffs uncorrected

and corrected vision was 20/30 in the left eye and 20/40 in the right eye. (Id.) Plaintiffs tests
revealed no physical abnormalities, however Plaintiff’s comprehensive metabolic panel disclosed
a blood glucose of 431 and a serum creatinine of 1.7, both of which were above the normal
range. (R. 243, 245.) Plaintiff also had a mean corpuscular volume (MCV) of 74 and a mean
corpuscular hemoglobin (MCH) of 23.6, both of which were lower than the normal range. (R.

243, 246.) In summary, Dr. Augustin noted that Plaintiff had a history of left nephrectomy for
carcinoma of the kidney and a mass in the liver. (R. 243-44.) Finally, the doctor noted that
Plaintiff suffered from hypertension and gastritis. (R. 244.)
Dr. Gomez, in a letter dated January 25, 2008, stated that he was following Plaintiff for
hypertension, hypercholesterolemia, peptic ulcer disease, and observing Plaintiffs status post

6

left nephrectomy secondary to malignancy. (R. 265.) Dr. Gornez also
stated that Plaintiff had
elevated prostate-specific antigen (PSA) levels during his last evaluation
and was referred to a
urologist for further investigation. (Id.)
Plaintiff was evaluated on November 12, 2009 by Dr. Eduardo Saman
iego. (R. 43 1-33.)
Dr. Samaniego noted that Plaintiff’s physical examination was require
d in order to qualify for
disability insurance. (R. 431.) Plaintiff told Dr. Samaniego that since 2002
he had suffered from
back pain, neck pain, bilateral joint pain, hypertension, anxiety, and
depression.

(Id.)

Dr.

Samaniego noted that Plaintiff said he was seeing a psychiatrist and
taking Depakote and
amitriptyline to relieve the anxiety and depression symptoms. (Id.)
Plaintiff complained of
fatigue, headaches, knee pain that prevented sitting and standing for more
than fifteen minutes at
a time, and occasional muscle pain and weakness. (Id.)

Finally, Plaintiff told Dr. Samaniego

that he sometimes uses a walker for stability and complained of
having some inability to
concentrate. (Id.)
Dr. Samaniego conducted a physical examination on November 12, 2009
and assessed
that Plaintiff had hypertension, GERD, and hypercholesterolemia. (R.
432.) Dr. Samaniego
noted that Plaintiff was a well-developed, well-nourished patient in no
acute distress,
Plaintiff had no seizures or paralysis.

(Id.)

(Id.) Dr. Samaniego noted that Plaintiff complained of

back pain when his back was palpitated and flexed, (Id.) Plaintiff perform
ed straight leg raises
to twenty degrees with both legs and some crepitation was present in
both knees. (Id.) Dr.
Samaniego noted that Plaintiff looked generally anxious. (Id.)
Plaintiff had another examination by Dr. Samaniego the following
day. (R. 429-30.) Dr.
Samaniego reported similar findings. (R. 429-30, 43 1-33.) Dr. Saman
iego noted a new rash and
reported that Plaintiff was only able to recall one object out of three
mentioned. (R. 430.) Dr.
7

Samaniego noted that Plaintiff’s range of motion and muscle power were grossiy intact. (Id.)
Finally, Dr. Samaniego stated that Plaintiff was very nervous and confused about his
medications. (Id.)
Plaintiff stated at his oral hearing on November 20, 2009, that he had seen a psychiatrist
“one or two times” but there is no record of these visits in the record despite the AU affording
Plaintiff twenty-one days after the hearing in which to submit any documents regarding medical
history. (R. 27-28; 38.) Plaintiff’s counsel did submit additional documents within this time
frame, but these consisted only of reports by Dr. Samaniego. (R. 427.)
III.

LEGAL STANDARD

A.

Standard of Review

This Court has jurisdiction to review the Commissioner’s final decision under 42 U.S.C.

§

405(g). It is not “empowered to weigh the evidence or substitute its conclusions for those of

the fact-finder” and must give deference to the administrative findings. Williams v. Sullivan, 970
F.2d 1178, 1182 (3d Cir. 1992); see also 42 U.S.C.

§

405(g). Nevertheless, the Court must

“scrutinize the record as a whole to determine whether the conclusions reached are rational” and
supported by substantial evidence. See Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)
(footnote and internal quotes omitted). Substantial evidence is “more than a mere scintilla. It is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v, Ferales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v, NLRB,
305 U.S. 197, 229 (1938)). If the factual record is adequately developed, substantial evidence
“may be ‘something less than the weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.” Daniels v. Astrue, No. 4:08-cv-1676, 2009 U.S.

8

Dist. LEXIS 32110, at *7 (M.D. Pa. Apr. 15, 2009) (quoting C’onso
lo v. Fed. Mar. Comm ‘n, 383
U.S. 607, 620, 131 (1966)).
This Court may not set aside the AU’s decision merely because
it would have come to a
different conclusion. C’ruz v. C’omm ‘r ofSoc. Sec., 244 F. App’x
. 475, 479 (3d Cir. 2007) (citing
Hartranft v. Apfei, 181 F.3d 358, 360 (3d Cir. 1999)). Howev
er, “where there is conflicting
evidence, the AU must explain which evidence he accepts and
which he rejects, and the reasons
for that determination,” Cruz, 244 Fed. App’x. at 479 (citing Hargen
rader v. Califano, 575 F.2d
434, 437 (3d Cir. 1978)). Furthermore, where the opinion from
a treating physician is rejected in
favor of the opinion of a non-treating physician, the AU must adequa
tely explain his reasons and
provide the rationale behind his decision. See Brewster v. Heckle
r, 786 F.2d 581, 585 (3d Cir.
1986). Given the totality of the evidence, including objective medica
l facts, diagnoses, medical
opinions, and subjective evidence of pain, the reviewing court
must determine whether the
Commissioner’s decision is adequately supported. See Curtain v.
Harris, 508 F. Supp. 791, 793
(D.N.J. 1981).

Generally, medical opinions consistent with other evidence
are given more

weight whereas opinions inconsistent with the evidence or with
themselves are subject to
additional scrutiny against the entire record.

20 C.F.R.

§

4 16.927.

Overall, the substantial

evidence standard is a deferential standard of review that requires
deference to inferences drawn
by the AU from the facts if they are supported by substantial eviden
ce. Schaudeck v. Comm ‘r of
Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999).
B.

Determining Disability

Pursuant to the Social Security Act, to receive Supplemental Securi
ty Income Benefits, a
plaintiff must show that he is disabled by demonstrating that he
is unable to “engage in any

substantial gainful activity by reason of any medically determ
inable physical or mental
9

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 twelve months.” 42 U.S.C. §sS 423(d)(1)(A),
1382c(a)(3)(A),

Taking into account the plaintiff’s age, education, and work experience,

disability will be evaluated by the plaintiff’s ability to engage in his previous work or any other
form of substantial gainful activity existing in the national economy. 42 U.S.C.

§ 423(d)(2)(A),

1382c(a)(3)(B). Thus, the plaintiff’s physical or mental impairments must be “of such a 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.” Id.

Impairments that affect the plaintiff’s “ability to meet the strength

demands of jobs” with respect to “sitting, standing, walking, lifting, carrying, pushing, and
pulling” are considered exertional limitations. 20 C.F.R.

§ 404.1 569a;

Sykes v. Apfel, 228 F.3d

259, 263 (3d Cir. 2000). All other impairments are considered nonexertional. See Sykes, 228

F.3d at 263. Decisions regarding disability will be made individually and will be based on
evidence adduced at a hearing. Sykes, 228 F.3d at 262 (citing Heckler v. Campbell, 461 U.S.
458, 467 (1983)). Congress has established the type of evidence necessary to prove the existence

of a disabling impairment by defining a physical or mental impairment as “an impairment that
results from anatomical, or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.”

42 U.S.C.

§ 423(d)(3),

13 82c(a)(3)(C).
The SSA follows a five-step sequential evaluation to determine whether a plaintiff is
disabled. 20 C.F.R.

§ 416.920. The evaluation will continue through each step unless it can be

determined at any point that the plaintiff is, or is not, disabled. 20 C.F.R.

§ 416.920(a)(4). The

plaintiff bears the burden of proof at steps one, two, and four, upon which the burden shifts to the
10

Commissioner at step five. Sykes, 228 F.3d at 263. Neither
party bears the burden at step three.
Id, at 263, n.2.
At step one, the plaintiff’s work activity is assessed, and the
plaintiff must demonstrate
that he is not engaging in substantial gainfial activity.
20 C.F.R.

§

416.920(a)(4)(i).

An

individual is engaging in substantial gainful activity if he is
doing significant physical or mental
activities for pay or profit. 20 C.F.R. §416.927. If the plain
tiff is engaged in substantial gainful
activity, he will be found not disabled and the analysis will
stop, regardless of plaintiff’s medical
condition, age, education, or work experience. 20 C.F.R.

§

416.920(b). If the individual is not

engaging in substantial gainful activity, the analysis proceeds
to the second step. At step two,
the plaintiff must show he has a medically determinable “sever
e” impairment or a combination
of impairments that is “severe.” 20 C.F.R.

§

4 16.920(a)(4)(ii). An impairment is severe when it

significantly limits an individual’s physical or mental ability
to perform basic work activities. 20
C.F.R.

§

416.920(c). It is not severe when medical evidence shows
only a slight abnormality or

minimal effect on an individual’s ability to work. See Leonar
do v. Comm ‘r ofSoc. Sec., No. 101498, 2010 WL 4747173, at *4 (D.N.J. 2010).
If the plaintiff does not have a medically determinable
severe impairment, he is not
disabled. 20 C.F.R.

§ 416.920(a)(4)(ii), (c).

If the plaintiff has a severe impairment, the analysis

proceeds to the third step.
At step three, the AU must determine, based on the medica
l evidence, whether the
plaintiff’s impairment matches or is equivalent to a listed
impairment found in the Social
Security Regulations’ “Listings of Impairments” found in 20
C.F.R.
1. 20 C.F.R.

§

§

404, Subpart P. Appendix

4l6.920(a)(4)(iii). If the impairments are the same or equiva
lent to those listed,

the plaintiff is per se disabled. 20 C.F.R.

§

416.920(d); Burnett v. Comm ‘r of Soc. Sec., 220 F.3d
11

112, 1 19 (3d Cir. 2000). At this point, the AU must set forth the reasons for his findings.
Burnett, 220 F.3d at 119. The Third Circuit requires the AU to identify the relevant listings and

explain his reasoning using the evidence. Id, Simple conclusory remarks will not be sufficient
and will leave the AU’s decision “beyond meaningful judicial review.” Id,
When the plaintiff does not suffer from a listed impairment or an equivalent, the analysis
proceeds to step four. At step four, the AU must determine whether the plaintiff’s residual
functional capacity enables him to perform his past relevant work. 20 C.F.R. 416.920(a)(4)(iv).
This step involves three sub-steps: (1) the AU must make specific findings of fact as to the
plaintiff’s residual functional capacity (RFC); (2) the AU must make findings of the physical
and mental demands of the plaintiffs past relevant work; and (3) the AU must compare the
residual functional capacity to the past relevant work to determine whether the plaintiff has the
capability to perform the past relevant work. Burnett, 220 F.3d at 120. The SSA classifies
residual functional capacity and past work by physical exertion requirements from “sedentary” to

“very heavy work,” See id.; 20 C.F.R. § 404.1567. If the plaintiff can perform his past work,
the AU will find that he is not disabled.

20 C.F.R.

§

416.920(f).

If the plaintiff lacks the

residual functional capacity to perform any work he has done in the past, the analysis proceeds to
the fifth and last step.

At step five, the Commissioner must show that, based on the plaintiff’s residual
functional capacity and other vocational factors, there is a significant amount of other work in
the national economy that the plaintiff can perform. 20 C.F.R.

§

4l6.920(a)(4)(v). During this

final step, the burden lies with the government to show that the plaintiff is not disabled by
demonstrating that there is other substantial, gainful work that the plaintiff could perform. given
his age, education, work experience and residual functional capacity.

12

See Rutherford v.

Barnhart, 399 F.3d 546, 551 (3d Cir. 2005); Sykes, 228 F.3d
at 263, If the Commissioner cannot

show there are other jobs for the plaintiff in the national economy,
then the plaintiff is disabled.
20 C.F.R.

§ 416.920(a)(4)(iv).

IV.

DISCUSSION

A.

Summary of the AU’s Findings

After reviewing all of the evidence in the record, the AU determ
ined that Plaintiff was
not disabled and denied his claim for SSI benefits. (R. 9-16.) The
AU arrived at his decision by
following the required five-step sequential analysis. See 20 C.F.R.

§ 4 16.920.

At step one, the AU found that Plaintiff was not engaged
in substantial gainful activity
since June 13, 2007, the date of Plaintiff’s original application
for SSI benefits. (R. 11.) At step

two, the AU concluded that Plaintiff had the following severe impair
ments based on a review of
the medical evidence in the record: arterial hypertension, depres
sion, migraines, hyperlipidemia,
chronic renal failure, and kidney and liver problems. (Id.)
Accordingly, the AU proceeded to step three, where he evalua
ted the listings in section
12.04, paragraphs “B” and “C.” (Id.) The AU found that plain
tiffs mental impairments did not
meet or medically equal the criteria of the above stated listings.
(Id.) To satisfy paragraph “B,”
the mental impairment must result in at least two of the follow
ing: marked restriction of
activities in daily living; marked difficulties in maintaining
social functioning; marked
difficulties in maintaining concentration, persistence, or pace;
or repeated episodes of
decompensation, each of extended duration. (Id.) Based on
this standard, the AU found that
Plaintiff had mild restrictions of activities of daily living
and mild difficulties in maintaining
social functioning. (Id.) In regard to concentration, persist
ence, or pace, the AU found that

Plaintiff had moderate difficulties. (Id.) Further, the AU found
that Plaintiff “has experienced
13

no episodes of decompensation, which have been of extended duration.”

(Id.)

Although

Plaintiff claims no independent activities of daily living and socialization, the AU
found these
claims to be inconsistent with the medical evidence provided,

(R. 11-12.) Based on these

factors, the AU found that neither the requisite “marked” limitations or repeated
episodes of
decompensation of extended duration were present.

(R. 12.)

Therefore, the criteria under

paragraph “B” were not satisfied. (Id.)

The AU also considered if, under paragraph “C,” Plaintiff satisfied the necessary criteria
to be classified as having a “listed impairment.” Jd.) The AU found that the evidence
failed to
establish the presence of the paragraph “C” criteria. (Id.) In conclusion, the AU
determined
that since the alleged onset date of disability, Plaintiff did not have an impair
ment or
combination of impairments that met or medically equaled one of the listed impair
ments in 20
C.F.R. Part 404. (Id.)
The AU then proceeded to step four, where he found that Plaintiff had the residua
l
functional capacity to perform the full range of medium work, the type of work
his prior
occupation was defined as, according to 20 C.F.R.

§ 4 16.967(c).

(Id.) The AU found, after

careful consideration of all medical and opinion evidence submitted, that Plaintiffs
medically
determinable impairments could reasonably be expected to cause the alleged
symptoms, but
Plaintiffs statements concerning the intensity, persistence, and limiting effects
of these
symptoms were not credible to the extent that they were inconsistent with the residua
l functional
capacity assessment. (R. 15.)
Finally, the AU found, based on Plaintiffs residual functional capacity, that Plainti
ff is
capable of performing past relevant work as a commercial driver because this work
does not
require the performance of activities precluded by his medical conditions. (R. 16.)
Therefore,
14

based on the required five-step sequential analysis, the AU found that Plaintiff is not disable
d
under section 1614(a)(3)(A) of the Social Security Act and is not eligible for SSI benefit
s. (Id.)
B.

Analysis

Plaintiff raises three primary arguments on appeal. Plaintiff first alleges that the AU
improperly overlooked both the opinion of Dr. Gomez and his own statements regard
ing his
condition. Second, he contends that the AU improperly found that he was not disabled.
Finally,
Plaintiff argues that the AU improperly found that he could perform his past work. The
Court
will address each of these arguments in turn.
1.

The AU Properly Assessed the Submifted Medical Evidence and the
Plaintiffs Symptoms.

Plaintiff’s first claim is that the AU “overlooked” his symptoms, particularly his mental
health issues, his disorientation, and his seizures. (Pls. Br. 3.) Further, Plaintiff claims
that the
AU did not correctly review his medical records and “never paid attention at [sic] the
medical
reports of Dr. Gomez.” (Id. at 2-3.) Contrary to this claim, the AU completed a thorou
gh
review of Plaintiff’s medical history and concluded that Plaintiff is not disabled under
section
1614(a)(3)(A) of the Social Security Act. The Court finds that the AU’s determination
was
supported by the medical evidence, including the diagnostic and clinical findings of Plainti
ffs
treating physicians.
In determining the Plaintiff’s residual functional capacity, an AU

must review the

plaintiff’s medical and opinion evidence in an effort to determine if the plaintiffs conditi
on will
allow him to perform his past relevant work.

20 C.F.R.

§

416.920 (e)-(f).

In making this

finding, the AU must consider all symptoms and the extent to which these sympto
ms can
reasonably be accepted as consistent with the objective medical evidence based
on the
requirements of 20 C.F.R.

§

416.929 and Social Security Rulings (“SSRs”) 96-4p and 96-7p.
15

Further, the AU must also consider opinion evidence in accord
ance with the requirements of 20
C.F.R.

§ 416.927 and SSRs 96-2p. 96 96-6p,
p,
5
Pursuant to 20 C.F.R.

§

and

06-3p.

416.929, the AU

(R 12.)

must follow a two-step process when

considering a claimant’s symptoms. First, the AU must
find whether there is an underlying
medically determinable physical or mental impairment,
that can be shown by medically
acceptable clinical and laboratory diagnostic techniques, and that
could reasonably be shown to
cause claimant’s symptoms.

If the AU finds that such impairment is present, he
must next

evaluate the intensity, persistence, and limiting effects of the
symptoms and determine to what
extent the symptoms limit the claimant’s ability to work. 20
C.F.R.

§

7p, 1996 WL 374186 (July 2, 1996). In this second analysis, the
AU

will

416.929(b)-(c); SSR 96consider the objective

medical evidence as well as other evidence, and will give serious
consideration to the claimant’s
statements about his symptoms. Welch v. Heckler, 808 F.2d
264, 270 (3d Cir. 1986); 20 C.F.R.

§

4l6.929(c)(4). Since “allegations of pain and other subjective
symptoms must be supported by
medical evidence,” Hartranft, 181 F.3d at 372, the AU should
weigh a claimant’s symptoms
against the objective evidence.
In this matter, the AU complied with these requirements
by conducting a thorough
analysis of all submitted evidence. (R. 9-16.) The AU provid
ed a detailed accounting of all the
submitted examinations, reports, and statements by Plaintiff.
(Id.) The AU formed his opinion
based on Plaintiff’s medical conditions and his ability to work
based on the opinions of Doctors
Gomez, Egan, Samaniego, and Hoursri, (R. 12- 16.) Based
on his review, the AU determined
that “claimant’s medically determinable impairments could reason
ably be expected to cause the
alleged symptoms, however, the claimant’s statements concer
ning the intensity, persistence and
limiting effects of these symptoms are not credible.” (R. 15.)

16

To support his conclusion, the AU cited specifically to the July 2007 exam by Plaintiff’s
treating physician, Dr. Egan, stating that Plaintiff has “no limitations in lifting, standin
g,
walking, sitting, pushing or pulling.” (R. 15.) The AU also cited to Dr. Samaniego’s Novem
ber
2009 examination, stating that Plaintiff looked nervous, but the examination was norma
l. (Id.)
The AU’s conclusion was also supported by Dr. Housri, who examined Plaintiff in
January
2008. (Id.) Dr. Housri reported that Plaintiff could “lift and/or carry fifty pounds occasio
nally
and twenty-five pounds frequently.” (Id.)

Dr. Housri also found that Plaintiff could “stand

and/or walk about six hours and sit about six hours in an eight-hour day.” (Id.) Additionally
, Dr.
Housri stated that Plaintiff’s ability to “push and/or pull was unlimited

.

.

.

[andj he could

occasionally climb ladders, ropes, and scaffolds.” LId.)
In addition to the physical impairments, Plaintiff also claimed that it is difficult for him
to
concentrate and he is anxious around people. (R. 14.) Additionally, he stated that he was
treated
by Dr. Gomez once or twice for his psychiatric condition, but could not continue treatm
ent due
to lack of funds. (Id.) Plaintiff was granted twenty-one days after his hearing to submit
medical
documentation of his psychiatric condition,

(Id.)

Plaintiff failed to submit any additional

evidence on these claims. (Id.)
Plaintiff further claims in his brief that he suffers from seizures. (Pls. Br. 3.) However,
a
review of the record does not indicate any findings that Plaintiff suffered from seizure
s or used
medication to control seizures. In addition, Dr. Augustin’s neurological examination
produced
normal results. (R. 243.) Plaintiff’s cranial nerves and deep tendon reflexes were
found to be
normal. (Id.) While Plaintiff complained that he has musculoskeletal pain, Dr. Samaniego
found
that Plaintiff’s cranial nerves were intact and he did not note any gross focal motor or
sensory
deficits. (R. 432.)

17

Plaintiff also points to Dr. Gomez’s and Dr. Samanieg
o’s conclusions that the claimant
cannot work as evidence that the AU iored his med
ical records. (Pis. Br. 2.> The AU is
tasked with reviewing all the medical evidence submitted
, but medical opinions consistent with
other evidence are given more weight whereas opinions
inconsistent with the evidence or with
themselves are subject to additional scrutiny against the
entire record. 20 C.F.R.

§ 416.927.

Although Dr. Gomez did report in May 2007 that Plain
tiff had limitations in climbing, stooping,
bending and lifling, and that he could not work full time
, this opinion is inconsistent with the
majority of the other evidence in the record showing that
Plaintiff’s symptoms and conditions
were not severe enough to cause him to be unable to perfo
rm his past relevant work. (R. 15.)
Furthermore, the AU is not required to give special considera
tion to statements that Plaintiff is
unable to work, as this is a conclusion reserved solel
y for the Commissioner. 20 C.F.R.
416.927(e)(3). Thus, the AU properly afforded these conc
lusions “little weight” because they
are not supported by objective clinical findings and
are inconsistent with other substantial
evidence. (R. 16.) Accordingly, the Court finds that
the AU properly analyzed Plaintiff’s
subjective complaints and medical records and conclude
s that the AU’s findings are supported
by substantial evidence in the record.
2.

Plaintiff is Not Permanently Disabled as Defmed
by The Act,

Disability under the Act is determined by Section 1614
(a)(3)(a). It is defined as “the
inability to engage in any substantial gainful activity
by reason of any medically determinable
physical or mental impairment or combination of impa
irments that can be expected to result in
death or that has lasted or can be expected to last for a
continuous period of not less than 12
months,” 42 U.S.C.A. § 1382c(3) (LexisNexis 2012).
The SSA has established the five-step
sequential process for an AU to utilize in determining
whether an individual is disabled. 20
18

C.F.R

§ 416.920(a). Plaintiff argues that the AU improperly found that he was not disabled.

Plaintiff erroneously relies on New Jersey Administrative Code

§ 10:90-2.4(a)(3), which governs

“pennanent disability” under the Work First New Jersey Program, which is a state provision that
“require[s] all able-bodied families with dependent children, single adults and couples without
dependent children to WORK rather than receive welfare.” N.J.A.C.

§ 10:90-1.1(a). However,

that statute is inapplicable to this proceeding.
Contrary to Plaintiff’s argument, the standard defined in the Code of Federal Regulations
is the appropriate means for determining permanent disability under the Act. If the plaintiff can
perform his past work, the AU must find that he is not disabled. 20 C.F.R.

§ 416.920(f). As

discussed sipra IV.B. 1, the AU, as evidenced by his opinion thoroughly reviewed the evidence
before him. The AU followed the proper procedural formalities and applied the appropriate
legal standards, determining that Plaintiff is not disabled as he is capable of performing his past
relevant work as a commercial driver. A review of the evidence in this matter demonstrates that
there is substantial evidence for the findings of the AU, that these findings were properly
explained and supported in his opinion, and that the denial of SSI benefits was therefore proper.
3. The AU Properly Found that Plaintiff Can Perform His Past Relevant Work.

Plaintiff asserts that the AU wrongly found that Plaintiff could perform his past work as
a driver for a vending machine company. (Pis. Br. 3.) In making his determination, the AU
compared Plaintiff’s residual functional capacity with the requirements of his past work. (R. 16.)
Plaintiff testified that his past job involved driving a truck, making deliveries, and repairing
vending machines.

(R. 25.)

Pursuant to the U.S. Department of Labor, Dictionary of

Occupational Titles (4th Ed. Revised 1991)

§ 639.281-014, this job is defined as “medium

work,” See §292.483-010 (vending machine coin collector is medium work);

19

§ 319.464-014

(vending machine attendant is light work);

§

292,353-010 (sales route driver is medium work).

Because Plaintiff’s residual functional capacity allows Plain
tiff to perform at a level for medium
work, the AU properly concluded that Plaintiff could perfo
rm his past relevant work, as it is
generally performed in the national economy. (R. 16.)
Plaintiff has indicated that his former job required that he
lift 50 to 100 pounds, which is
beyond the level required for medium work. However,
the Act states that an individual can
perform past relevant work if he can perform the demands
and duties of the job as he actually
performed it previously or if he can perform the job
as “ordinarily required by employers
throughout the national economy.” SSR 82-61. Plaintiff’s
past job, as it is generally performed
in the national economy, does not require the amount of
lifting that Plaintiff actually performed.
Therefore, based on Plaintiff’s residual functional capacity,
the AU properly found that Plaintiff
could perform his past work.
V.

CONCLUSION

For the foregoing reasons, the AU’s decision that Plain
tiff is not disabled within the
meaning of the Social Security Act is hereby affirmed. An
appropriate Order accompanies this
Opinion.

Dated: June 18, 2012
HON. CLAIRE C. CECCHI
United States District Judge

20