GIVENS v. COMMISSIONER OF SOCIAL SECURITY
Filing
14
OPINION AND ORDER affirming the decision of the Commissioner and indicating case is closed.. Signed by Judge Faith S. Hochberg on 4/5/12. (sr, )
NOT FOR PUBLICATION
CLOSED
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________________
:
DEKIDA Q. MANSFIELD
:
on behalf of Theartis Givens (Deceased),
:
:
Hon. Faith S. Hochberg
Plaintiff,
:
:
Civil Action No. 11-2191
:
v.
:
OPINION & ORDER
:
MICHAEL J. ASTRUE,
:
Dated: April 5, 2012
COMMISIONER OF SOCIAL SECURITY, :
:
Defendant.
:
_____________________________________ :
HOCHBERG, District Judge:
This matter comes before the Court upon Plaintiff Theartis Givens’s 1 motion to review a
final determination of the Commissioner of the Social Security Administration (the
“Commissioner”) pursuant to the Social Security Act, as amended, 42 U.S.C. § 405(g). The
motion has been decided upon the written submissions of the parties pursuant to Federal Rule of
Civil Procedure 78.
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Theartis Givens filed her complaint on April 18, 2011, however, she passed away on May 6,
2011 from a very brief and unrelated medical illness. On July 14, 2011, an Order was entered,
permitting Dekida Q. Mansfield, Ms. Givens’s daughter, to substitute herself as Plaintiff in this
suit. For ease, Ms. Givens will be referred to as “Plaintiff” throughout this opinion.
I. BACKGROUND
A.
Plaintiff’s Medical and Vocational History
1. Vocational Background
Plaintiff was a 58-year-old female with a college education. (Tr. 20-21). She was an
elementary school teacher at The North School system for twenty years. (Tr. 22). Plaintiff
retired 2 with a pension. (Id.)
2.
Medical History
Since July 2002, Plaintiff saw several doctors and, as a result, had an extensive
medical history. (See Pl. Br. at 2-10) (listing the several doctors Plaintiff had seen).
In July 2002, Dr. Ramesh Kania, Plaintiff’s primary care physician, diagnosed
Plaintiff with “osteopenia of the spine at L2-L4 and of both femurs, with moderate risk of
fracture.” (Tr. 169). On January 1, 2003, Plaintiff’s alleged disability commenced, although
from October 2002 to November 2003, Dr. Kania’s examinations did not report Plaintiff had
suffered from any discomfort. (Tr. 160-63). On September 5, 2003, Plaintiff requested a
psychiatric referral from Dr. Kania. (Tr. 161). Dr. Kania additionally diagnosed Plaintiff with
“controlled hypertension, history of granulomatous lung disease on x-ray, and osteopenia on
bone density scan.” 3 (Tr. 161). In March 2007, Plaintiff filed for Disability Insurance Benefits
(“DIB”).
On May 29, 2007, the Social Security Administration referred Plaintiff to Dr.
Alexander Hoffman. (Tr. 16; see Ex. 2F). In June 2007, Plaintiff saw three professionals, Drs.
Yvonne Li, Alec Roy and Clara Castillo-Velez. (Tr. 184-209). Dr. Li opined that Plaintiff could
2
It is unclear from the record exactly when she retired.
3
A gap in the medical records exists from September 2003 to March 2007.
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perform light work. (Tr. 189). Both Drs. Roy and Castillo-Velez noted that Plaintiff had no
history of psychiatric treatment. (Tr. 185, 196-209). On June 26, 2007, Dr. Adekunkle Adeoti
began treating Plaintiff and subsequently, Plaintiff had regular visits with Dr. Adeoti. (Tr. 30410).
On October 14, 2007, it appears that Plaintiff went to the emergency room for pneumonia
and left against the medical advice of the doctors. (Tr. 16; see Ex. 7F). After the Plaintiff’s trip
to the emergency room, she continued her regular visits with Dr. Adeoti. (Tr. 304-10). In
addition to many of the doctors Plaintiff had seen, Plaintiff also saw Drs. Mark Dilger and
Howard Horsley. (Tr. 258-74). Dr. Dilger opined that Plaintiff’s major depression was not a
severe impairment. (Tr. 258, 261, 266). Dr. Horsley additionally determined that Plaintiff’s
condition would unlikely change so drastically from June 2007 to February 2008. Id. (citing Tr.
272).
On March 9, 2008, Dr. Adeoti diagnosed Plaintiff with rheumatoid arthritis, however, Dr.
Paolino saw Plaintiff in April 2009 and did not mention possible arthritis. (Id. at 15.).
B. The Disability Standard and the ALJ’s Decision
1. The Statutory Standard for a Finding of Disability.
A person is technically disabled under the Social Security Act (“SSA”) if he or she is
unable 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.” 42 U.S.C. §
423(d)(1)(A).
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The SSA defines a physical or mental impairment as “an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
A person will be considered disabled “only if his physical or mental impairments are of
such severity that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy . . . .” 42 U.S.C. § 423(d)(2)(A).
Finally, the SSA defines work that exists in the national economy as “work which exists
in significant numbers either in the region where such individual lives or in several regions of the
country.” 42 U.S.C. § 423(d)(2)(A).
In determining disability claims, the commissioner applies a five-step procedure
according to 20 C.F.R. §§ 404.1520, 416.920 and Plummer v. Apfel, 186 F.3d 422 (3d Cir.
1999). The steps are explained as follows:
Step One: Substantial Gainful Activity. The Commissioner first looks to a claimant’s
current employment situation and considers whether such employment constitutes substantial
gainful activity. Substantial here means the employment requires “significant physical [or]
mental activities.” 20 C.F.R. § 416.972. Further, even part-time or inconsistent work can still be
considered substantial. Id. Gainful work is “work activity that you do for pay or profit.” Id. If
the claimant is currently engaged in substantial gainful activity, he or she will not be found
disabled and consideration of any medical condition is unnecessary. 20 C.F.R. § 416.920(b).
Step Two: Severe Impairment. If the claimant is not engaged in substantial gainful
activity, he or she must then demonstrate the existence of a severe impairment. A “severe
impairment” is an impairment “which significantly limits [the claimant’s] physical or mental
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capacity to perform basic work activities.” 20 C.F.R. § 416.920(c). If the claimant is unable to
present a severe impairment, or combination of impairments considered severe, he or she will not
be found disabled. Id.
Step Three: Listed Impairment. If the claimant is able to demonstrate a severe
impairment, the Commissioner next determines if the impairment meets or equals an impairment
listed on the Listing of Impairments in 20 C.F.R. § 404, subpt. P, app. 1. If the claimant has such
an impairment, he or she is found disabled. If not, the Commissioner proceeds to the fourth step.
20 C.F.R. § 416.920(d).
Step Four: Residual Functioning Capacity (RFC). In the fourth step, the Commissioner
decides whether, despite his or her impairment, the claimant still possesses the Residual
Functioning Capacity4 (“RFC”) to perform his or her past relevant work. If so, the claimant is
found not disabled and the inquiry is at an end. If not, the Commissioner then proceeds to the
fifth step. 20 C.F.R. § 416.920(e)-(f).
Step Five: Other Work. If the claimant is unable to perform his or her past work, the
Commissioner considers the individual’s RFC, age, education, and past work experience to
determine if he or she is able to make an adjustment to other work. If he or she cannot perform
other work, the claimant is found disabled. 20 C.F.R. § 416.920(g).
This five-step analysis has a shifting burden of proof. Wallace v. Sec’y of Health &
Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). For the first four steps, the claimant bears
the burden of persuasion. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the analysis
reaches the fifth step, however, the Commissioner then bears the burden of proving that the
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Residual Functioning Capacity is the claimant’s ability to work on a sustained basis despite his
physical or mental limitations. The RFC determination is not a decision as to whether a claimant
is disabled, but it is used as the basis for determining the particular types of work a claimant may
be able to perform despite his or her impairment(s). See 20 C.F.R. § 416.945.
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claimant is able to perform other work that is available in the national economy. Id. at 142.
“The claimant is entitled to disability benefits only if he is not able to perform other work.” Id.
(citing 20 C.F.R. §§ 404.1520(f), 416.920(f)).
2. The ALJ’s Decision
Upon review of the entire record, the Administrative Law Judge, Leonard Olarsch,
(“ALJ”) proceeded through the five-step analysis as necessary. First, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since January 1, 2003. (Tr. 13). At step
two, the ALJ determined that Plaintiff suffered from osteopenia/osteoarthritis, a severe
impairment. (Id.). On the other hand, Plaintiff’s mood disorder was found to be a non-severe
impairment due to its minimal effect on Plaintiff’s ability to perform basic activities. (Id.). At
step three, the ALJ determined that the record does not support an assertion of an inability to
ambulate effectively, as defined in section 1.00B2b and as a result, Plaintiff’s impairment or
combination of impairments did not meet or equal any of the listed impairments in 20 C.F.R.
§ 404, subpt. P, app. 1. (Id. at 14.).
At step four, the ALJ concluded that Plaintiff had the RFC to perform a full range of light
work. (Id.). Subsequently, the ALJ found the Plaintiff was “not disabled” as she had the RFC to
“perform her past relevant work as a teacher.” (Id. at 17.).
C. Standard of Review
This Court must review the ALJ’s factual findings to determine whether the
administrative record contains substantial evidence for such findings. 42 U.S.C.A. § 405(g);
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Substantial evidence is “more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate.”
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quoting Richardson v. Perales, 402 U.S.
6
389, 401 (1971)). If there is substantial evidence supporting the Commissioner’s finding, this
Court must uphold the decision even if it might have reasonably made a different finding based
on the record. Simmons v. Hecker, 807 F.2d 54, 58 (3d Cir. 1986). “The ALJ’s responsibility is
to analyze all the evidence and to provide adequate explanations when disregarding portions of
it.” Snee v. Sec. of Health and Human Srvcs., 660 F. Supp. 736, 739 (D.N.J. 1987) (citing Cotter
v. Harris, 642 F.2d 700, 705 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d
Cir. 1979); Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
II. DISCUSSION
A. Review of Commissioner’s Decision
Plaintiff alleges that the ALJ’s conclusion is not supported by substantial evidence and he
did not sufficiently articulate his reasoning or give adequate weight to the evidence.
Specifically, Plaintiff argues that: (1) the ALJ erred in finding Plaintiff’s rheumatological
impairments non-severe; (2) the ALJ did not follow the “Treating Physician Rule”; (3) the ALJ
did not properly consider Plaintiff’s credibility; (4) the ALJ did not develop a full and fair
record. The Court will address each argument in turn.
1. Whether the ALJ erred in finding Plaintiff’s rheumatological impairments non-severe
Plaintiff asserts that the ALJ did not “indicate if he [the ALJ] considered [her] . . .
rheumatological conditions of rheumatoid arthritis and Lupus, which are well-documented in the
record and were properly diagnosed by the treating physicians, Drs. Adeoti and Paolino . . . .
Plaintiff was diagnosed with rheumatoid arthritis . . . as early as March 2008 (prior to her date
last insured).” (Pl. Br. at 12-13) (citing Tr. 276). Although Plaintiff alleges that rheumatoid
arthritis and Lupus were “well-documented” and “properly diagnosed,” the Social Security Act
provides with particularity what a claimant must establish to show an impairment. 20 C.F.R
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§ 404.1508. A “physical or mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only by your [the claimant’s]
statement of symptoms.” Id.; see also 20 C.F.R. § 404.1508. The ALJ found that Plaintiff’s
rheumatoid arthritis was non-severe for two reasons: (1) the record lacked medical evidence;
and (2) Dr. Adeoti’s credibility was entitled tolesser weight. First, Plaintiff did not meet or equal
Listings 1.02A or 1.04. The record lacked medical evidence to show “an inability to ambulate
effectively, as defined in section 1.00B2b or a significant disorder of the spine with evidence of
nerve root compression, spinal arachnoiditis, or spinal stenosis.” (Tr. 14). Without such
documentation, Plaintiff did not meet her burden to establish the necessary medical evidence to
prove she had a physical impairment. Next, the ALJ particularly discussed how Dr. Adeoti’s
diagnosis of rheumatoid arthritis was inconsistent with the record as a whole 5 and; therefore, his
diagnosis warranted lesser weight. (See Tr. 16). Dr. Adeoti’s credibility will be discussed in the
next section.
In conclusion, the ALJ had substantial evidence to support his findings that Plaintiff’s
rheumatological impairments were non-severe. 6 (See Tr. 13-16).
2. Whether the ALJ failed to properly follow the “Treating Physician Rule”
Plaintiff contends that the ALJ did not follow the “Treating Physician Rule.” (Pl. Br. at
14) (citing Tr. 276). The established rule is set forth as follows: “If . . . a treating source’s
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The ALJ stated: “His [Dr. Adeoti’s] opinion is at odds with the May 29, 2007 consultative
examination findings, the claimant’s statement of June 11, 2007 that she was not being treated
for any major medical problem, and the fact that the claimant chose to leave the ER on October
14, 2007 against medical advice because she needed to go home.” (Tr. 16) (citing Ex. 7F).
6
Although Plaintiff alleges that the ALJ erred in not finding rheumatological impairments nonsevere, the ALJ continued his analysis through the five-step process and thoroughly explained
his reasoning for not finding rheumatological impairments non-severe. (Tr. 16; see also supra,
n.5 (discussing the inconsistencies with Dr. Adeoti’s findings and Plaintiff’s testimony)).
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opinion on the issue(s) of the nature and severity of [the] . . . impairment is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the . . . record,” then the opinion will have controlling weight. 7 20 C.F.R. § 404.1527(d)(2).
Here, the ALJ did not give Dr. Adeoti’s opinion controlling weight. Instead, the ALJ
determined that Dr. Adeoti’s opinion “deserves lesser weight . . . based on the record as a
whole.” (Tr. 16). Specifically, the ALJ pointed to inconsistencies between Dr. Adeoti’s opinion
and the record. 8 (Id.). Plaintiff cites Plummer v. Apfel to assert that an ALJ must have
contradictory evidence to reject a treating physician’s opinion. (Pl. Br. at 15) (citing Plummer v.
Apfel, 186 F.3d 422, 429 (3d Cir. 1999)). Plummer, however, continues that an ALJ “may afford
a treating physician’s opinion more or less weight depending upon the extent to which
supporting explanations are provided.” Id. (citing Newhouse v. Heckler, 753 F.2d 283, 286 (3d
Cir. 1985)). The ALJ in Plummer afforded the claimant’s treating physician’s interrogatory
responses lesser weight because the responses were inconsistent with the record as a whole. Id.
at 430-31. The instant case is similar to Plummer because the ALJ did not reject Dr. Adeoti’s
opinion, but simply afforded it “lesser weight” and, therefore, the ALJ did not need
contradictory evidence. (Tr. 16).
The Court therefore finds that the ALJ adequately explained why Dr. Adeoti’s opinion
was not afforded controlling weight and there is substantial evidence in the record to support this
finding.
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When a treating source’s opinion is not controlling, several factors including length and
frequency of examination, nature and extent of relationship, supportability, consistency,
specialization and other factors are analyzed to determine the weight of the opinion. 20 C.F.R. §
404.1527(d)(2)(i); 20 C.F.R. § 404.1527(d)(3) – (6).
8
See supra, n.5.
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3. Whether the ALJ failed to properly evaluate Plaintiff’s credibility
Plaintiff argues that the ALJ did not properly consider Plaintiff’s subjective account of
her condition. In evaluating medically determinable impairments and the extent to which they
limit one’s capacity to work, the Commissioner is required to consider “all reasonable
evidence . . . including statements from [the claimant].” 20 C.F.R. §§ 416.927(c), 404.1529(c).
In addition, the Commissioner must consider the claimant’s history, laboratory findings,
statements from treating and non-treating sources, and treating and non-treating medical
opinions. Id. Subjective complaints of symptoms and disability must be substantiated by
medical evidence. 42 U.S.C.
§ 423(d); Williams v. Sullivan, 380 F. Supp. 2d 496, 508 (D.N.J.
2005).
Here, the record supports the ALJ’s conclusion that Plaintiff’s allegations “cannot be
considered entirely credible.” (Tr. 15). First, Plaintiff’s allegations were not supported by
medical evidence. 9 (Tr. 15). Second, Plaintiff was in the emergency room on October 14, 2007
and left contrary to medical advice, “which suggests that if she were as frail as she alleges, she
would have elected to remain in the hospital.” (Id. at 16.). Third, although not related
specifically to her diagnosis, Plaintiff testified that she had alcohol and/or drug problems about
ten years ago but during her 2007 visit to the emergency room, she tested positive for cocaine
and opioids. (Id. at 15.). Finally, the ALJ found that Plaintiff’s reason for retiring was
statedinconsistently by her. “Dr. Dilger, a nonexamining state agency medical consultation,
noted that the claimant told the consultative examiner that she retired from her job as a teacher,
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For example, Plaintiff “testified that she cannot work because both of her legs and ankles swell
up, she has pain and stiffness in her hand, she is unable to walk, and she is unable to bend over
for any length of time.” (Tr. 15). Plaintiff also “stated that she can lift a gallon of milk, walk for
about 15 minutes before she has to stop due to shortness of breath, and sit for about 15 to 20
minutes. . . .[however] the medical evidence in the record does not support the claimant’s alleged
limitations.” (Id.).
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which is inconsistent with her statement that she could not function as the job required.” (Id. at
16; see also Ex. 14F.). Overall, the ALJ did take into consideration Plaintiff’s subjective
evidence; however, the record demonstrated inconsistencies, which resulted in the ALJ
determining that Plaintiff’s testimony was not entirely credible.
4. Whether the ALJ developed a full and fair record
Plaintiff contends in her reply brief that the ALJ did not properly develop a “full and
fair” record. (Pl. Reply Br. at 2.). The Third Circuit, in Fargnoli v. Halter, explained:
“Although we do not expect the ALJ to make reference to every relevant treatment note in a case
where the claimant, . . . has voluminous medical records, we do expect the ALJ, as the factfinder,
to consider and evaluate the medical evidence in the record consistent with his responsibilities
under the regulations and case law.” Fargnoli v. Halter, 247 F.3d 34, 42 (3d Cir. 2001).
Burnett v. Commissioner of Social Security requires the ALJ “to set forth the reasons for
his decision.” Burnett v. Comm’r of Social Sec., 220 F.3d 112, 119-20 (3d Cir. 2000). As the
Third Circuit explained, “Burnett does not require the ALJ to use particular language or adhere
to a particular format in conducting his analysis. Rather, the function of Burnett is to ensure that
there is sufficient development of the record and explanation of findings to permit meaningful
review. In the instant case, the ALJ, as the fact finder, examined Plaintiff’s voluminous medical
records. Throughout the ALJ’s opinion, the ALJ addressed, with particularity, the rationale for
his ruling with specific references to the record. (See generally Tr. 11-17).
Additionally, the “ALJ owes a duty to a pro se claimant to help him or her develop the
administrative record.” Reefer v. Comm’r of Social Sec., 326 F.3d 376, 380 (3d Cir. 2003). In
Reefer v. Comm’r of Social Sec., the Third Circuit held that the ALJ did not develop a full and
fair record. Id. The Third Circuit found that the ALJ’s procedures were inadequate when the
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ALJ did not request medical records that could support the claimant’s testimony regarding a
stroke. Id. It was crucial for the ALJ to help fully develop the record in Reefer because the
claimant was unrepresented. Id.
Unlike Reefer where the claimant was pro se, Plaintiff, in the present case, was
represented by an attorney. Moreover, the ALJ did request specific medical records from
Plaintiff’s doctor. 10 (See Ex. 8E.). The ALJ does not owe a special duty to Plaintiff that goes
beyond requesting documents, which he did, because Plaintiff was represented by counsel. In
conclusion, the ALJ developed a full and fair record that allowed him to meaningfully review
Plaintiff’s claim and there is substantial evidence in the record to support his findings.
III. CONCLUSION & ORDER
For the reasons set forth above, and after careful review of the record in its entirety, the
Court finds that the ALJ’s conclusion that Plaintiff is not disabled is based on substantial
evidence in the record. Accordingly, this Court AFFIRMS the Commissioner’s decision to deny
Plaintiff Social Security Benefits.
Therefore, IT IS on this 5th day of April, 2012, hereby
ORDERED that the Commissioner’s decision is AFFIRMED; and it is further
ORDERED that this case is CLOSED.
s/ Faith S. Hochberg__________
Hon. Faith S. Hochberg, U.S.D.J.
10
Exhibit 8E reflects contact with Dr. Adeoti’s office. It appears that Dr. Adeoti’s office,
however, ignored the request for treatment notes since they do not appear in the record. (Ex.
8E.). Further, even if the ALJ had these notes, they would not be dispositive, as Dr. Adeoti’s
opinion is not controlling or fully supported in the record.
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