NERAHOO v. COMMISSIONER OF SOCIAL SECURITY
Filing
14
OPINION. Signed by Judge Dennis M. Cavanaugh on 11/26/13. (gmd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NOLAN NERAHOO,
:
Plaintiff.
v.
:
:
Hon. Dennis M. Cavanaugh
OPINION
Civil Action No. 2:1 2cv-O6553 (DMC)
CAROLYN W. COLVIN. ACTING
COMMISSIONER OF SOCIAL
SECURITY
Defendant.
DENNIS M. CAVANAUGH, U.S,D.J.:
This matter comes before the Court upon the Appeal of Nolan Nerahoo (“P1aintiff or
“Nerahoo”) from the tinal decision of the Commissioner of Social Security (the
“Commissioner”), denying Plaintiffs application for disability benefits under Title II and/or
Title XVI of the Social Security Act. This Court has jurisdiction over this matter pursuant to 42
U.S.C.
§ 405(g) and
1383(c)(3). No oral argument was heard pursuant to Rule 78 of the
Federal Rules of Civil Procedure.
After reviewing the submissions of both parties. for the following reasons, the finding ol
the Commissioner is affirmed.
I.
BACKGROUND’
A. Procedural History
On May 27, 2009, Plaintiff filed an application for disability insurance benefits (“DIBs”)
alleging that he was disabled as of February 23,2009. Plaintiff also filed an application for
Supplemental Security Income (“551”), which was denied and not appealed. Plaintiffs
application for DIBs was denied both initially and on Reconsideration. Plaintiff then requested a
hearing before an Administrative Law Judge (“AU”), and a hearing was held on January 11.
2011 before AU Richard L. DeSteno (“the AU”). On January 25, 2011. a decision was issued
denying Plaintiff’s application. On August 16, 2012, the Appeals Council concluded that there
were no grounds for review. Plaintiff then commenced the instant action before this Court.
B. Factual History
1) Testimony of Plaintiff
Plaintiffwas born in Trinidad and Tobago and came to the United States in June 2001.
From 2001-2009, he was employed as a dock worker, which required him to load and unload
freights from trailers with his hands. At this job, Plaintiff had to lift and carry .75 to 100 plus”
pounds.
Plaintiff has a heart condition and has five stents and a defibrillator implanted. His heart
beats faster if he is “stressed out” and he sometimes gets palpitations. Plaintiff has had diabetes
since 2005, for which he takes pills. If Plaintiff is stressed or overworked, he gets a little
palpitation and pain in the chest.” He can sit for one to two hours relaxing and watching
television, and he can stand for about the same amount of time. Plaintiff can lift and carry no
‘The facts set-forth in this Opinion are taken from the Parties’ statements in their respective moving papers and the
transcript of the record.
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more than five to ten pounds. Plaintiff lives with his mother and three children. He helps cook
and clean, but does minimal shopping and minimal laundry. Plaintiff drives his kids to school
and picks them up. If he goes grocery shopping, his children help him.
Plaintiff tries to read and watch television. Sometimes his medication knocks [him] out.”
He smoked cigarettes until about four years ago. Plaintiff will drive his children to the mall or to
the grocery store but he does not do much “excess running around.” He gets tired within one to
one and a half hours when he is on his feet too long or when he climbs stairs. He also gets
shortness of breath when he “takes little walks, and [does] little exercises.” When he is very
fatigued, he dozes off. This occurs three to four times a week.
2) Medical History
Due to coronary artery disease, Plaintiff underwent an angioplasty with stern placement
in his left anterior descending artery in 2005. In February 2009, he was admitted to the
emergency room at St. Michael’s Medical Center and was diagnosed with a subendocardial
infarction. Plaintiff then underwent a percutaneous coronary intervention with an angioplasty and
dual stent placement in his right coronary artery. Plaintiff had another cardiac catheterization
performed in April 2009, and a stent was again placed in his left anterior descending artery. On
July 15, 2009. Plaintiff was scheduled for pacemaker defibrillation placement. On July 16. 2009.
an x-ray showed that Plaintiff had a pacemaker device in his left chest wall and no signs of active
heart disease.
In March 2010, a tudy revealed that Plaintiff had a mild anterior pen-infarct ischemia,
and he subsequently underwent a successful percutaneous coronary intervention with stent
placement in the proximal left anterior descending artery, and a stent in the right coronary artery.
3
in June 2010. a carotid report found that Plaintiff had no hemodvnamicallv significant stenosis
and only minimal plaque seen bilaterally.
3) Doctors’ Reports
in a June 22. 2009 internal medical report. Dr. Bart DeGregorio wrote that Plaintiff was
limited to lifting and carrying five pounds. standing and/or walking eight hours a day. and sitting
less than six hours a day. Dr. DeGregorio indicated that he could not, based on his medical
findings, provide a medical opinion regarding Plaintiffs ability to do work related activities.
Dr. Naresh Rana wrote in September 1, 2010 and January 4. 2011 physical examination
reports that Plaintiff had normal Si and S2 sounds, had no murmurs, thrills, or rubs, denied
experiencing shortness of breath, had a chest wall within normal limits, and had a regular rate
and rhythm to his heart. Dr. Rana also noted at the September 1, 20 1 0 physical examination that
Plaintiff was doing well overall and denied chest pain, dvspnea unon exertion, or peripheral
edema. Finally, Dr. Rana wrote that Plaintiff had diabetes mellitus without mention of
complication and an essentially normal abdominal examination.
On December 23, 2010, Dr. DeGregorio and his associate, Dr. Cheema. wrote in a report
that Plaintiff is limited to occasionally lifting five pounds and is incapable of even a low level of
work stress,
II.
STANDARD OF REVIEW
A reviewing court will uphold the Commissioner’s ihctual decisions if they are supported
b ‘substantial e\ldcnce
42 U S C
405(g) l383(cX3) jJ1J 22$ I d 2) 2(2
(3d Cir. 2000). Substantial evidence is ‘more than a mere scintilla
piepondciancc
\\‘ood v 5cc
y
.
.
.
hut may he less than a
ol 1-lcalth & human Sel\s 8591 2d 11 6 1159 (3d Cii
1988). it “does not mean a large or considerable amount of evidence. but rather such relevant
evidence which, considering the record as a whole. a reasonable
4
Pe1’SOI
might accept as adequate
to support a conclusion.” Pierce v. Underwood, 487 U.S. 552. 565 (1988) (citation omitted).
iot all evidence is considered substantial.” For instance.
[a] single piece of evidence will not satisfy the suhstantialiix test if the
[Commissioneri ignores, or fails to resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it is overwhelmed by other evidence—
particularly certain types of evidence (e.g. that offered by treating phvsicians)—or if
it really constitutes not evidence but mere conclusion.
Wallace v. Sec’v of Health & Human Servs.. 722 F.2d 1150. 1153 (3d Cir. 1983) (quoting Kent
v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). The AU must make specific findings of fact to
support his ultimate conclusions. Stewart v. Secretary of HEW, 7 1 4 F.2d 287, 290 (3d Cir.
1983).
The “substantial evidence standard is a deferential standard of review.” Jones v.
Bamhart, 364 F.3d 501. 503 (3d Cir. 2004). As such. it does not matter if this Court “acting dc
iimo might have reached a different conclusion” than the Commissioner. çnsour Med. Ctr.X.
Hccklci 806 F 2d 1185 1190-91 (3d Cii 1986) (quoting Hunter Douglas Inc NI RB 804 1 2d
808, 812 (3d Cir. 1986)). “The district court.. is [not empowered to weigh the evidence or
.
substitute its conclusions for those of the fact-flnder.’ Williams v. Sullivan, 970 F.2d 1178,
11 82 (3d Cir. 1992) (citing Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir. 1 984)). A Court must
nevertheless “review the evidence in its totality.” Schonewolfv. Callahan, 972 F. Supp. 277,
284 (D.N..J. 1 997) (citing Daring v. Heckler. 727 F.2d 64, 70 (3d Cir. 1 984). in doing so. the
Court ‘must ‘take into account whatever in the record fairly detracts from its weight.”
14.
(quoting Wiflibanksv. Sec’yofHealth&HumanServs., 847 F.2d 301, 303 (6th Cir, 1988)).
fo properly review the findings of the AU, the court needs access to the AU’s
reasoning. Accordingly,
Unless the [Commissioner] has analyzed all evidence and has sufficiently explained
the weight hc h is given to obviously piobati e exhibits to sa that his clccision is
supported by substantial evidence approaches an abdication of the courts duty to
scrutinize the record as a whole to determine whether the conclusions reached are
rational.
Goier v. Matthews. 574 F.2d 772. 776 (3d Cir. 1978) (quoting i-\rnold v. Sec’v otHeahh. Educ.
& Welfare, 567 F.2d 258. 259 (4th Cir, 1977)). A court must further assess whether the AU,
when confronted with conflicting evidence, “adequately explaint cdi in the record his reasons for
rejecting or discrediting competent evidence.” Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D.
Pa 1987) (citing Bic\\stei
Hecklei, 786 F 2d 581 (3d Cir 1986)) II ih \l T faiR to piopcll\
indicate why evidence was rejected. the court is not permitted to determine whether the evidence
was discredited or simply ignored. See I3urnett v. Cornmr of Soc. See, 220 F 3d 11 2, 121 (3d
Cii’. 2000) (citinu Cotter v. Harris. 642 F.2d 700. 705 (3d Cir. 1981)).
ilL
APPLICABLE LAW
A. THE FIVE-STEP PROCESS
A claimant’s eligibility for benefits is governed by 42 U.S.C. §1382. Pursuant to the Act,
a claimant is eligible for hene1ts if he meets the income and resource limitations o142 U.S.C.
§
I 382a and I 382b, and demonstrates that he is disabled based on an “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 he expected to
last for a continuous period of not less than twelve months.” 42 U.S.C.
§ I 382c
a)( 3)(:\ ) A
person is disabled only if his physical or mental impairment(s) 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 work which exists in the national economy.” 42 U.S.C.
§13X2c(a)(3)(13).
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To determine whether the claimant is disabled, the Commissioner pertrms a fivestep
sequential evaluation. 20 C.F.R. §416.920. The claimant bears the burden of establishing the
first two requirements, namely that he (1) has not engaged in “substantial gainful activity” and
(2) is afflicted with a “severe impairment”
or
“combination of impairments” 20 C. FR.
§404.1 520(a)(c). If a claimant fails to demonstrate either of these two requirements. DIBs are
denied and the inquiry ends. Bowen v, Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant
successfully proves the first two requirements. the
inquiry proceeds to step
three which requires
the claimant to demonstrate that his impairment meets or medically equals one of the
impairments listed in 20 C.F.R. Part 404 Appendix I (the “Listings”). If the claimant
demonstrates that his impairment meets or equals one of the listed impairments. he is presumed
to be disabled and therefore, automatically entitled to DIBs. Id, If he cannot. make the required
demonstration. further examination is required.
The fourth step of the analysis asks whether the claimant’s residual functional capacity
(“RFC”) permits him
is able
to
to
resume his previous employment. 20 C. F.R. §41 6.920(e). if a claimant
return to his previous employment, he is not disabled within the meaning of the Act
and is not entitled to DIBs. Id. If the claimant is unable to return to his previous employment,
the analysis Proceeds to step five. At this step. the burden shifts to the Commissioner to
demonstrate that the claimant can perform a job that exists in the national economy based on the
cl urn mt s REC mgc educ mon and past x\ok
L\pL11CnLL
20 C I R
416 9 11 thc.
20(g)
Commissioner cannot satisfy this burden, the claimant is entitled to DIBs. Yuckert. 482 U.S. at
146 n,5.
B. THE REQUIREMENT OF OBJECTIVE EVIDENCE
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Under the Act, disability must be established by ohcctive medical evidence.
“An
individual shall not be considered to be under a disability unless he furnishes such medical and
other evidence of the existence thereof as the Secretary may require.” 42 U.S.C.
§
423(d)(5)(A).
Notably. •[a]n individual’s statement as to pain or other symptoms shall not alone he conclusive
evidence of disability as defined in this section,” Id. Specifically, a finding that one is disabled
requires:
M]edical signs and findings, established by medically acceptable clinical or
laboratory diagnostic techniques, which show the existence of’ a medical
impairment that results from anatomical, physiological, or psychological
abnormalities which could reasonably be expected to produce the pain or other
symptoms alleged and which, when considered with all evidence required to he
furnished under this paragraph
would lead to a conclusion that the individual is
under a disability.
.
see 42 U.S.C.
§
.
.
1382c(a)(3)(A). Credibility is a significant factor.
When examining the
record: “The adjudicator must evaluate the intensity, persistence and limiting effects of the
[claimant’ sj symptoms to determine the extent to which the symptoms limit the individual ‘s ability
to do basic work-related activities.” SSR 96-7p. 1996 WL 3741 86 (July 2. 1 996. To do this. the
adj udicator must determine the credibility of the individual’s statements based on consideration of
the entire case record. Id. The requirement for a finding of credibility is found in 20 C.F.R.
§
416.929(c)(4). A claimant’s symptoms. then. may be discredited “unless medical signs or
laboratory findings show that a medically determinable impairment(s) is present.” 20 C.F.R.
416.929(b). See also Har
IV.
fiv.A,f 1. 181 F.3d 358. 362 (3d Cfr. 1999).
DISCUSSION
Plaintiff claims that the AU erred in steps two through live of the fve-step analysis. Fhcsc
steps will be addressed in turn.
A. Steps Two and Three
8
§
First, Plaintiff argues that the AU did not properly do the required “combine and
compare” ina1vsis. which requires the ;\LJ
O
consider the eombined e 11c of i c IaimanL
Impallmcnts it thc claH ant has moic than one ‘gg flgpp\ ApJ 204 1 d 7i Xa u d C
(
ii
2000). However, the AU stated which Listings he considered and explained that no treating or
examining physician mentioned findings that are the same or equivalent in severity to the
criteria of any listed impairment. Additionally, Plaintiff does not specify which specific listing
section and its criteria he believes his impairments medically equal.
Second, Plaintiff argues that the AU was incorrect in not considering his application tbr
SS I I lowever. Plainti IT applied for SS1 on the same day that he applied liar ID I Bs. and his claim
for SSI was denied. Plaintiff never appealed that decision. Thus. Plaintiff did not exhaust his
administrative remedies with respect to his SSI application. Further, at the administrative
hearing, the AU stated that the case involved a claim for D1Bs. and Plaintiff’s attorney agreed.
Third, Plaintiff argues that the AU improperly gave no weight to the findings of Drs,
DeGregorio. Cheema. and Rana. This Court finds that the AU had sound reasons for this
decision. For example. as the AU pointed out. Drs. DeGregorio and Cheeina stated that Plaintiff
could not lift more than five pounds, but Plaintiff himself admitted that he could lid live to ten
pounds. Additionally, state agency medical consultant Dr. Cloidhas considered I)r. DeCiregorio’s
report and found that his limitation of Plaintiff lifting only five pounds was not consistent with
Plaintifrs own report of function. Further, with respect to the contention of Drs. DeGregorio and
Cheema that Plaintiff is incapable of even a low level of work stress, the AU noted that Plaintiff
testified that he can sit and stand for up to two hours each, which is consistent with the demands
of sedentary work with the normal breaks that exist in most ohs. [he report of I )r. Rana is
discussed below in the step four analysis.
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Fourth, Plaintiff complains that the AU consulted section 4.00H3 to evaluate his
cardiomyopathy when he should have consulted paragraph 4.08. However, 4.08 was deleted
from the Listings in 2006 because it was redundant. $. 71 Fed. Reg. 2312, 2318.
Fifth, Plaintiff complains that the AU never mentioned paragraph 4.04C, which was
improper because Plaintiff has been found to suffer severe coronary artery disease. l-Iovcver, as
Defendant points out, 4.04(C)(2) requires very serious limitations in the ability to independently
initiate, sustain, or complete activities of daily living. Plaintiff’s testimony at his hearing clearly
shows that he can complete activities of daily living.
Accordingly, the Court finds that the AU’s analysis was supported by substantial
evidence.
B. Step Four
Plaintiff argues that the AU’s finding of his RFC was “convenient, unsupported, and
wrong.” Plaintiff complains that “the AU [found him] capable of the full range of sedentary
work activity, suffering no non-exertional impairments or limitations and there isn’t a single
word offered in support of either of these propositions.” Plaintiff also again asserts that it was
improper for the AU to riot afford weight to the findings of his doctors, arguing that the AU’s
contention that the record does not support the doctors’ findings is untrue. However, as discussed
above, Drs. DeGregorio and Cheema stated that Plaintiff could not lift more than live pounds
and Plaintiff himself admitted that he could lift five to ten pounds. Plaintiff also asserts that it
was improper for the AUJ to not give weight to the limited functional capacity assessed by Dr.
Rana. For example, the AU stated that Rana “assessed hands and fingering limitations that are
not supported in the record,” and Plaintiff argues that the AU did not point to which part of the
record shows a lack of support. However, the AU did not identify a specific place in the record
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because his point was that there is nowhere in the record that shows consistenc\ with Dr. kanu’s
finding. Further, the AU pointed to the fact that Plaintiff made no mention ol his hand and
fingering limitations at his hearing and, as Defendant note, Dr. Cheema’s June 30, 2009 physical
examination revealed grossly normal neurologic findings, including no motor or sensory deficit.
no tremors or signs of muscular weakness, and an unremarkable examination of’ Plaintiff’s
abdomen and extremities.
Finalh.
hue Plainti Fl’ claims that no evidence supports the RC F lound h\ the Al i. the \ I J
pointed to several doctors’ reports and several statement made b Plaintiff that do in hict support
his finding on page six of his opinion. As such. this Court tinds no occasion to hold that the
AIJ’s RFC finding was not supported by substantial evidence.
C. Step Five
Plaintiff argues that “at step live the employment of the grid rulings is inappropriate in
the face of (unacknowledged) plaintiff’s non-exertional impairments” (P1. ‘s Brief at 9), “To
guide an ALT at step live, the SSA has promulgated the \ledical—Vocational Guidelines, also
known as the ‘grid rules.’ The rules require the Commissioner to consider the claimants physical
ability, age. education, and experience, and match those findings with delined categories in the
rules.” Frontanez-Rubiani v. Barnhart, No. 03-1514, 2004 WL 2399821. at *3 (ED. Pa. Sept. 30.
2004). When a claimant only “has only exertional limitations and her characteristics fit into a
speci tic grid rule, the AU has no discretion.” Id. at *4, Exertional impairments affect a
claimanit’s ability to “meet the strength demands ofajob (sitting, standing. walking. liling.
carrying, pushing, and pulling),” whereas non—exertional impairments “are all other impairments
that do not affect a claimant’s ability to meet the strength demands of jobs.” Caruso v. Commi’of
Soc. Sec., 99 F. App’x 376, 381 (3d Cir. 2004) (citiation omitted). The use of vocational expert
11
(“VE”) testimony is only necessary “when a claimant has severe exertional and nonexertional
impairments.” Bailey v. Commr of Soc. Sec., No. 07-2507. 2008 WL 4056306. at ) (D.\.J.
Aug. 28, 2008).
Plaintiff contends that VE testimony was required to establish that he was not disabled
under step five. However, the AU did not conclude that Planitiff suffers from a severe non
extertional impairment. As discussed above, this Court finds that the AU’s conclusions at steps
two through Four were supported by substantial evidence. Plaintiff also argues that the AU
should have considered his diabetes because diabetes itself is a non-exertional impairment.
However. Plaintiff has tiuled to establish that his diabetes resulted in any specific limitations
beyond the AU’s RFC finding for sedentary work. In fict, Dr. Rana noted a normal blood sugar
level and stated that Plaintiff had diabetes without mention of any complication. Accordingly.
the AJL was not required to use VE testimony at step live.
V.
CONCLUSION
For the foregoing reasons, the final decision of the Commissioner is affirmed. An
approprIate order Follows this Opinion.
l. Cavanaugh.
Date:
Original:
cc:
2
November 2013
Clerk’s Office
All Counsel of Record
File
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