ARNOLD v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge William J. Martini on 8/4/15. (gh, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 12-cv-07087 (WJM)
CAROLYN W. COLVIN,
Commissioner of Social Security,
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Eric Arnold brings this action pursuant to 42 U.S.C. § 405(g), seeking
review of the Commissioner’s final determination denying his application for Social
Security Disability Benefits. For the reasons that follow, the Commissioner’s
decision is VACATED and REMANDED.
The Five-Step Sequential Analysis
Under the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process for determining
whether a claimant is entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920. In the
first step, the Commissioner determines whether the claimant has engaged in
substantial gainful activity since the onset date of the alleged disability. Id. §§
404.1520(b), 416.920(b). If not, the Commissioner moves to step two to determine
if the claimant’s alleged impairment, or combination of impairments, is “severe.”
Id. §§ 404.1520(c), 416.920(c). If the claimant has a severe impairment, the
Commissioner inquires in step three as to whether the impairment meets or equals
the criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Part
404, Subpart P, Appendix 1, Part A. If so, the claimant is automatically eligible to
receive benefits (and the analysis ends); if not, the Commissioner moves on to step
four. Id. §§ 404.1520(d), 416.920(d). In the fourth step, the Commissioner decides
whether, despite any severe impairment, the claimant retains the residual functional
capacity (“RFC”) to perform past relevant work (“PRW”). Id. §§ 404.1520(e)-(f),
416.920(e)-(f). The claimant bears the burden of proof at each of these first four
steps. At step five, the burden shifts to the Social Security Administration to
demonstrate that the claimant is capable of performing other jobs that exist in
significant numbers in the national economy in light of the claimant’s age, education,
work experience and RFC. 20 C.F.R. §§ 404.1520(g), 416.920(g); see Poulos v.
Comm’r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007) (citations omitted).
Standard of Review
For the purpose of this appeal, the Court conducts a plenary review of the
legal issues. See Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir.
1999). The factual findings of the Administrative Law Judge (“ALJ”) are reviewed
“only to determine whether the administrative record contains substantial evidence
supporting the findings.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
Substantial evidence is “less than a preponderance of the evidence but more than a
mere scintilla.” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation
omitted). “It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. When substantial evidence exists to support
the ALJ’s factual findings, this Court must abide by the ALJ’s determinations. See
id. (citing 42 U.S.C. § 405(g)).
Eric Arnold (“Plaintiff”) is a forty-eight-year-old male who is currently
unemployed. He studied carpentry at a technical high school and has prior work
history in carpentry and construction. Tr. 29-30, 40-41. Plaintiff last worked for
Lowe’s. His job there began in 2006. He was initially employed as a commercial
sales representative, designing decks and buildings for customers and helping them
pick out materials. Tr. 31.
On January 7, 2007, Plaintiff was loading a customer’s S.U.V. in his capacity
as a Lowe’s employee. Tr. 33. While Plaintiff was leaving the vehicle, the customer
closed the hatchback on top of Plaintiff’s head. Id. Plaintiff testified that he became
unstable, sat down, and could not stand up afterwards. Id. Two days later, Plaintiff
sought treatment at Doctor’s Care Center. Tr. 333. X-Ray’s, a CAT scan, and an
MRI, all taken between January 10 and February 24, 2007, revealed disc herniation
at C3-4 and C4-5, with disc ridge complexes at C3-4 and C4-5, thecal sac
indentation, and disc bulging and angulation at C2-3. Tr. 11-12, 328-329. On May
31, 2007, Plaintiff underwent a C3-4 and C4-5 discectomy with anterior cervical
fusion and iliac graft. Tr. 207. Plaintiff’s recovery from surgery kept him out of work
at Lowe’s for about nine months. Tr. 14.
Lowe’s attempted to accommodate Plaintiff’s post-injury limitations. Tr. 36.
Initially, Lowe’s placed him in a desk job at the front office, where he answered
phones, worked on a computer, and did filing. Tr. 37. But he reported that after
sitting at a desk for an hour, his shoulders, neck, and arms became too stiff to move,
and the stiffness made it too hard to look at the computer screen. Tr. 37. He only
worked in this position for a week or two. Id. Lowe’s then moved Plaintiff to a parttime “light duty” position on the sales floor because he thought he would feel better
if he could “walk and do other things.” Tr. 39. The job required assisting customers.
Plaintiff performed this job for about a year. Tr. 39. When doing this job, the pressure
on his body caused by climbing, reaching, bending, or picking up merchandise made
him dizzy, lightheaded, stiff, and fatigued. Tr. 38-39. Feeling he would hurt himself
if he continued, Plaintiff left Lowe’s in 2009 and has not worked since. Tr. 38-39.
Plaintiff filed an application for disability benefits on October 14, 2009. Tr.
193. In the application, Plaintiff alleged a disability stemming from the January 7,
2007 neck injury and a disability onset date of July 2, 2009. Id; Tr. 102. Plaintiff’s
date last insured (“DLI”) was December 31, 2009.
Plaintiff’s application was initially denied on December 9, 2009, and it was
again denied on reconsideration on March 1, 2010. Id; Tr. 108. On April 16, 2010,
Plaintiff requested a hearing before an administrative law judge (“ALJ”). Tr. 112.
An initial hearing was held on April 28, 2011, and a supplemental hearing was held
on July 21, 2011. The ALJ affirmed the denial on July 27, 2011, and the Appeals
Council denied a request for review on September 29, 2012. Tr. 1, 6. Plaintiff timely
appeals to the District Court.
A. Summary of the Record
The record includes medical records from Plaintiff’s treating physicians, as
well as reports from examining physicians. It also includes testimony from Plaintiff,
the state’s medical examiner Dr. Martin Fechner, and vocational expert Rocco
Meola. Moreover, the record includes documentation from Plaintiff’s Worker’s
Plaintiff’s primary complaints are severe pain and stiffness of the neck.
Additionally, when he wakes up in the morning, Plaintiff experiences headaches that
last for about two hours. Tr. 42.
On May 31, 2007, Doctors Phair and Rosenblum, Plaintiff’s surgeons,
performed C3-4 and C4-5 discectomy with anterior cervical fusion and iliac graft.
Tr. 262. Plaintiff did well with the surgery, and he continued to follow up with the
treating physicians until about November 2007. See Tr. 266. The treating physicians
opined that, although the Plaintiff had pain and stiffness, no neurological problems
were apparent, and the Plaintiff was recovering. Tr. 17, 266, 312. Moreover, Dr.
Phair indicated on September 18, 2007 that Plaintiff would be able to return to light
duty. Tr. 314-315.
The record also contains reports from independent medical examiners Dr.
Dennis and Dr. Potashnik. Dr. Dennis examined Plaintiff on June 23, 2008. Tr. 393.
Dr. Dennis reviewed the treating physicians’ reports and concluded that the surgery
was necessary and successful. Tr. 404-07. He noted that Plaintiff was “one of the
most honest, credible, straightforward and simplest evaluations” he had the
“pleasure of doing for some time.” Tr. 394. He concluded that Plaintiff was stable
but that his prognosis was poor. Tr. 408.
Dr. Potashnik examined Plaintiff about 18 months after Dr. Dennis. Plaintiff
told Dr. Potashnik that he was “doing better” after the surgery, but that the pain
“recurred several months later.” Tr. 409. Plaintiff told Dr. Potashnik that the pain
was “severe” and prevented him from working. Tr. 409. On examination, Dr.
Potashnik noted shooting pain during some of the tests he performed. Tr. 410. Dr.
Potashnik concluded that Plaintiff “may be limited in activities of heavy lifting.” Tr.
The record also contains the opinion of Morris Horwitz, M.D. – a forensic
examiner whom Plaintiff hired. Dr. Horwitz examined Plaintiff on or about April
15, 2011. Tr. 485. He provided Plaintiff with a number of orthopedic diagnoses,
including post-traumatic headaches. Tr. 488. He opined that Plaintiff does not have
the requisite RFC for PRW. Tr. 488.
The Social Security Administration paid for the expert testimony of Dr.
Fechner, an internist. Tr. 73. Dr. Fechner testified that he had reviewed the entirety
of Plaintiff’s record. Tr. 73. Based on this review, he believed that Plaintiff was
capable of doing light work. Tr. 76-77. He testified that Plaintiff is capable of up to
forty-five degrees of neck rotation to each side (eighty to ninety degrees is normal),
and forty degrees of flexion 1 (sixty degrees is normal). Tr. 77. Moreover, Dr.
Fechner opined that Plaintiff’s alleged headaches did not present a serious condition.
The ALJ asked vocational expert (“VE”) Rocco Meola about the vocational
limitations of three hypothetical claimants. Tr. 92. The first hypothetical claimant
had Plaintiff’s background and experience but could turn his head only fifteen
degrees, with zero degrees flexion. Id. The VE testified that this claimant could not
perform any jobs in the national economy. Tr. 93. The second hypothetical claimant
had Plaintiff’s background and experience, but with forty degrees rotation to the
right, forty-five degrees rotation to the left, and forty degrees flexion. Tr. 93. The
VE stated that such a person could perform several jobs available in the national
economy. Tr. 93-94. The third hypothetical claimant was the same as the second,
except that the third hypothetical claimant could only turn his head occasionally. 2
Tr. 95-96. The VE testified that there were no jobs that this person could perform.
B. The ALJ’s Decision
Administrative Law Judge Michal L. Lissek made the following findings. At
step one, the ALJ determined that between July 2, 2009, and December 31, 2009,
Plaintiff did not engage in substantial gainful activity. Tr. 15. At step two, the ALJ
determined that Plaintiff’s cervical spine impairments were a severe impairment, but
his headaches were not a severe impairment. Id. The ALJ found at step three that
Plaintiff did not have an impairment or combination of impairments that met or
equaled one of the listed impairments. Id.
Based upon a review of the record as a whole, the ALJ found at step four that
the Plaintiff had the RFC to perform light work as defined in 20 C.F.R. §
404.1567(b). Tr. 16. Further, Plaintiff can rotate his head forty degrees to the right
and forty-five degrees to the left, with forty degrees flexion. Id. Additionally, the
ALJ found at step four that Plaintiff did not have the RFC to perform PRW. Tr. 1819. Finally, at step five, the ALJ found that, given Plaintiff’s RFC, background,
education, and experience, there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform. Tr. 19. Therefore, the ALJ determined
that Plaintiff is not under a disability. Tr. 20.
“Flexion” means bending. Taber’s Cyclopedic Medical Dictionary 808 (20th ed).
“Occasionally” was defined as one-third of the workday.
Plaintiff’s appeal raises three germane issues: 1.) whether the ALJ erred in
determining that Plaintiff’s headaches are not a severe impairment; 2.) whether the
ALJ gave appropriate weight to the opinion of Dr. Horwitz; 3.) whether the ALJ
properly formulated the RFC. The ALJ did err in the formulation of the RFC, which
requires remand of the case. The Court also writes with respect to the first two issues
in order to clarify certain problems likely to re-emerge on remand.
A. Plaintiff’s Headaches
Concerning step two, the ALJ wrote, “Through the date last insured, the
claimant has the following severe impairments: sequelae of work accident including
neck injury, status post-discectomy and anterior fusion with screws. . . . The
claimant’s headaches are a ‘non severe’ impairment.” Tr. 15. This finding is
internally inconsistent because the headaches were one of the “sequelae” of the neck
Dr. Rosenblum, Plaintiff’s surgeon, noted that Plaintiff had “cervicogenic
headaches.” Tr. 270. Dr. Horwitz described them as “post-traumatic headaches.” Tr.
487. Plaintiff’s own testimony and statements to his doctors make it clear that the
headaches result from tension that builds up in his neck. Tr. 42. (“I wake up with
severe tension headaches.”). These complaints of neck-related headaches began
even before the surgery. See, e.g., Tr. 372. Thus, the ALJ’s classification of the
headaches as a non-severe impairment, separate from the “sequelae” of the neck
injury, creates an internal inconsistency in the ALJ’s decision. This inconsistency
should be resolved on remand.
B. Weight Given to Dr. Horwitz’s Opinion
Dr. Horwitz opined that Plaintiff did not have the ability to perform any
substantial gainful employment. Tr. 488. Plaintiff argues that the ALJ did not give
this opinion the appropriate weight.
Because the opinion that Plaintiff could not perform any substantial gainful
employment is not a “medical opinion,” it is not entitled to any weight. The ability
to perform substantial gainful employment is an administrative determination
reserved for the Commissioner. SSR 96-5p.
Medical opinions are critical for establishing the clinical symptoms and
functional limitations of an individual. The regulations define “medical opinion” as
“statements from a physician that reflect judgments about the nature and severity of
the claimant’s impairments, including symptoms, diagnosis and prognosis, what the
claimant can still do despite the impairments, as well as physical or mental
restrictions.” 20 C.F.R. § 404.1527(a); 20 C.F.R. § 416.927(a); SSR 96-5p. Under
20 C.F.R. § 404.1527(e) and § 416.927(e), some issues are not medical issues
regarding the nature and severity of an individual’s impairment(s) but are
administrative findings that are dispositive of a case; i.e., that would direct the
determination or decision of disability. 3
The Social Security Administration has further stated:
Medical sources often offer opinions about whether an individual who
has applied for . . . disability benefits is “disabled” or “unable to work,”
or make similar statements of opinions. In addition, they sometimes
offer opinions in other work-related terms; for example, about an
individual’s ability to do past relevant work or any other type of work.
Because these are administrative findings that may determine whether
an individual is disabled, they are reserved to the Commissioner. Such
opinions on these issues must not be disregarded. However, even when
offered by a treating source, they can never be entitled to controlling
weight or given special significance.
The ALJ did acknowledge that Dr. Horwitz made his non-medical opinion,
however he did not give it controlling weight, and there was no legal requirement
that he do so. Tr. 17.
Plaintiff also complains that the ALJ gave Dr. Fechner’s medical opinion
more weight than Dr. Horwitz’s medical opinion. To the extent this is true, it is an
error. Factors to consider in determining how to weigh evidence from medical
sources include (1) the examining relationship, (2) the treatment relationship,
including the length, frequency, nature, and extent of the treatment, (3) the
Administrative findings reserved for the Commissioner include: 1.) whether an individual’s impairment(s) meets or
is equivalent in severity to the requirements of any impairment(s) in the listings; 2.) what an individual’s RFC is; 3.)
whether an individual’s RFC prevents him or her from doing past relevant work; 4.) how the vocational factors of age,
education, and work experience apply; 5.) whether an individual is “disabled” under the Act. SSR 96-5p.
supportability of the opinion, (4) its consistency with the record as a whole, and (5)
the specialization of the individual giving the opinion. 20 C.F.R. § 404.1527(c). In
this case, Dr. Fechner’s medical opinion is entitled to less weight than Dr. Horwitz’s
medical opinion because Dr. Fechner never examined the Plaintiff whereas Dr.
C. The RFC Formulation
Plaintiff argues that the ALJ erred in the RFC formulation by not limiting
Plaintiff’s head movements to one third of the day. The issue, ultimately, is a
question of whether the ALJ properly discredited Plaintiff’s testimony about
durational limits on his neck movement.
This argument arises out of the ALJ’s colloquy with the VE regarding the
second and third hypotheticals. The second hypothetical claimant had plaintiff’s age,
education, and experience but could only turn his head forty degrees to the right,
forty-five degrees to the left, and with forty degrees of flexion. Id. The VE testified
that this person could perform jobs available in the national economy such as decal
applier, inspector, ticketer, and sorter. Tr. 93-94. Plaintiff’s counsel then proposed
adding an additional limitation to the second hypothetical; that the individual could
only move his head occasionally, or one-third of the workday. Tr. 95. The ALJ
adopted this variation as the third hypothetical. Tr. 96. The VE testified that the third
hypothetical person would not have the RFC to perform any jobs in the national
economy. Id. Ultimately, the ALJ found that claimant was not disabled because he
had the same RFC as the second hypothetical claimant.
Plaintiff argues that the ALJ ignored Plaintiff’s own testimony about limits
on the amount of time that the Plaintiff could keep his head bent or turned, as one
does when reading or using a computer. When asked if he could move his head sideto-side, Plaintiff replied, “[y]es, I could move, but not, not much at all.” Tr. 43. On
clarifying, Plaintiff stated:
I can move down and up, but I can’t hold it up and lower it down. Like
I can’t read nothing, I got to put it in front of me. If I’m reading an
article or something I can’t look down there, my neck just, it’s too tight.
It feel like 40, 50 pounds on me, so I got to look straight up if I got to
Tr. 45. Similarly, Plaintiff had testified that he could not perform his desk job at
Lowe’s because he became too stiff to move after an hour of desk work. Tr. 37.
Plaintiff told at least one doctor in the emergency room that moving his head
exacerbated his symptoms. Tr. 446-447.
The ALJ did not explicitly explain why he discredited Plaintiff’s testimony or
the medical records noting that Plaintiff’s symptoms were aggravated by head
movement. The ALJ simply concluded the Plaintiff’s “statements concerning the
intensity, persistence, and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the [RFC].” Tr. 16.
An ALJ must determine the extent to which Plaintiff’s subjective complaints
of pain interfered with his ability to work. 20 C.F.R. § 404.1529(c); SSR 96-8p. An
ALJ must give serious consideration to the claimant’s subjective complaints of pain,
even though those assertions are not fully confirmed by the objective medical
evidence, Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986). However, the ALJ is
not bound to accept unquestioningly the credibility of such subjective evidence.
Valdora v. Comm’r of Soc. Sec., No. CIV.08-5519 (JBS), 2009 WL 4126194, at *13
(D.N.J. Nov. 23, 2009) (citing Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)).
The ALJ may “evaluate the credibility of a claimant and arrive at an independent
judgment in light of medical findings and other evidence regarding the true extent
of the pain alleged by the claimant.” Brown v. Schweiker, 562 F. Supp. 284, 287
(E.D. Pa. 1983) (quoting Bolton v. Secretary of HHS, 504 F. Supp. 288 (E.D.N.Y.
1980)). In the end, the ALJ must indicate the basis for conclusions that the claimant’s
testimony is not credible. SSR 96-7p.
Here, the ALJ does not articulate a satisfactory basis for excluding the
durational limitations on Plaintiff’s neck movement. The ALJ relies upon Dr.
Fechner’s review of positive post-operative reports from 2007. Tr. 17. But this
reliance on post-operative reports ignores Dr. Dennis’s 2008 prognosis that the
stability Plaintiff experienced after surgery was “more likely than not” temporary.
Tr. 408. Dr. Dennis, who examined the Plaintiff, believed Plaintiff had a “permanent
pathology” from which he would “never escape.” Tr. 408. And indeed, Plaintiff quit
working about a year after that prognosis. Plaintiff complained to Dr. Potashnik in
Novmeber 2009 that his condition was getting worse. Beginning in June 2010,
Plaintiff began to experience what the ALJ characterized as “acute flare-ups of
chronic cervical strain.” Tr. 17. Between June 2010 and February 2011, Plaintiff had
to go to the emergency room four times for neck pain. Here, the Plaintiff explained
that the pain was exacerbated by movement of the neck. Tr. 446-447.
One of Plaintiff’s 2010 emergency room records states that Plaintiff had “full
motion of the neck without pain in all planes.” The ALJ cites this as evidence
discrediting Plaintiff. This statement is not substantial evidence undermining
Plaintiff’s credibility. Given that the ALJ concluded Plaintiff did not have full range
of motion of the neck, it is contradictory for him to then use this emergency room
document stating that he had a full range of motion to discredit him. More
importantly, the emergency room statement that Plaintiff’s neck was “without pain”
contradicts the very purpose of that emergency room visit. The only rational
conclusion is that this medical statement is a mistake or needs more explanation.
Also, the ALJ ignored Plaintiff’s emergency room complaint that moving his
head made his condition worse. Tr. 446-447.
Thus, substantial evidence did not support the ALJ’s discrediting Plaintiff’s
statements about the intensity and limiting effect of his symptoms. The ALJ’s choice
to credit Plaintiff’s post-operative condition in 2007 over his obviously deteriorating
condition in 2009, 2010, and 2011 is unexplained. The ALJ cited no reason for
overlooking Dr. Dennis’s prognosis or the way in which that prognosis apparently
manifested itself to be true. He cites no basis for overlooking Dr. Potashnik’s
observation that Plaintiff’s pain returned a few months after the surgery. In short,
substantial evidence does not support the ALJ’s decision to discredit Plaintiff’s
complaints that moving his head exacerbated his symptoms.
With the RFC inadequately formulated at step four, the Court cannot affirm
the Commissioner’s decision that Plaintiff is not disabled.
For the foregoing reasons, the Commissioner’s decision is VACATED and
REMANDED for further proceedings in accordance with this Opinion. An
appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: August 4, 2015
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?