ARROYO v. COMMISSIONER OF SOCIAL SECURITY

Filing 17

OPINION. Signed by Judge Kevin McNulty on 7/25/14. (jd, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:13-cv-1617 (KM)

ANGELA. ARROYO,
Plaintiff,

OPINION
V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
Angel A. Arroyo brings this action pursuant to 42 U.S.C. § 405(g) and 5
U.S.C. § 706 to review a final decision of the Commissioner of Social Security
that denied her applications for Title II disability insurance benefits (“DIB”) and
for Title XVI Supplemental Security Income (“SSI”) under the provisions of 42
U.S.C. § 423 and 1382. Compi. (Docket No. 1, “Compi”). These applications of
October 8, 2010 (DBI) and February 25, 2011 (SSI) alleged that Arroyo was
disabled beginning July 12, 2010, because of “[s]evere lumbar disc disease and
residuals from lumbar fusion and laminectomy and depression.” Docket No. 1
(“Compi.”)

¶ 5.

For the reasons set forth below, the Commissioner’s decision is affirmed.
I.

BACKGROUND

Plaintiff, Angel A. Arroyo, filed his Complaint in this Court on March 15,
2013. He was thirty-nine years of age at the time of filing. He has received a
limited education and has prior work experience as a warehouse laborer,
shipping and receiving clerk, and sprinkler installer. He alleges that he has
been disabled since July 12, 2010, because of medical impairments, which he
describes as “[s}evere lumbar disc disease and residuals from lumbar fusion
and laminectomy and depression.” Compi. ¶J 6, 7.
Following a workplace injury, Arroyo had minimally invasive back
surgery in August 2005. He continued to have lower back pain and, as a result,
in July 2010 he had a second, more invasive surgery that included a spinal
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fusion. A week after that surgery, he was diagnosed with a hematoma, which
was drained. He has been to the emergency room several times for back pain.
He alleges disability on account of persistent and debilitating pain as a result of
his back problems.
The DBJ claim submitted October 8, 2010 was initially denied on
February 5, 2011 and on reconsideration on April 12, 2011. Record of
Proceedings (“R _“)‘ (Docket No. 8) at 18. On October 28, 2011 Arroyo
appeared for a hearing before Administrative Law Judge (“AU”) Dennis O’Leary
and was represented by William J.L. Scherman during the hearing. R 18.
II.

DISCUSSION
Arroyo’s claims for DIB and SSI were denied by AU O’Leary.

To qualify for Title II DIB benefits, a claimant must meet the insured
status requirements of 42 U.S.C. Section 423(c). To be eligible for SSI benefits,
a claimant must meet the income and resource limitations of 42 U.S.C. Section
1382. To qualify under either statute, a claimant must show that she is unable
to engage in substantial gainful activity by reason of any medically
determinable physical or mental impairment 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 twelve months. 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A).
On appeal to this Court, Arroyo submits that the Commissioner’s
decision is not supported by substantial evidence. Docket No. 12 (“P1. Br.”) at
2. Specifically, he raises two claims of error: (1) the residual functional capacity
(“RFT”) assessment for the full range of sedentary work was not based on
substantial evidence and (2) the medical evidence justifies reversal and the
award of benefits.
A. Standard of Review
As to legal issues, this Court’s review is plenary. See SchaucZeck v.
Comrn”r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to the factual
findings of the Administrative Law Judge (“AU”), however, this Court is
directed “only to determine whether the administrative record contains
substantial evidence supporting the findings.” Sykes v. Apfel, 228 F.3d 259,
The “R_” page numbers refer to those appearing in the bottom right corner of
the administrative record, Docket No. 8.

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262 (3d Cir. 2000). Substantial evidence is “less than a preponderance of the
evidence but more than a mere scintilla.” Jones v. Bamhart, 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.; accord
Richardson v. Perczles, 402 U.S. 389, 401 (1971).
[I]n evaluating whether substantial evidence supports the AU’s
findings
leniency should be shown in establishing the
claimants disability, and
the Secretary’s responsibility to rebut
it should be strictly construed. Due regard for the beneficent
purposes of the legislation requires that a more tolerant standard
be used in this administrative proceeding than is applicable in a
typical suit in a court of record where the adversary system
prevails.
.

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Reefer v. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal citations and
quotations omitted). When there is substantial evidence to support the AU’s
factual findings, this Court must abide by them. See Jones, 364 F.3d at 503
(citing 42 U.S.C. § 405(g)).
After review of AU O’Leary’s analysis, pursuant to the five-step legal
framework, I find that the AU’s opinion is supported by substantial evidence.
Accordingly, I will affirm his opinion of November 10, 2011.

B. The AU’s Decision
After performing the sequential five-step analysis, the Administrative Law
Judge Dennis O’Leary denied Arroyo’s claim of benefits on November 11, 2011.
The AU found that Arroyo could perform the full range of sedentary work and
was not disabled. The Appeals Council affirmed the AU’s denial on January
18, 2013. Arroyo now submits that AU O’Leary’s denial was in error and that
the decision is not supported by substantial evidence. The Commissioner of
Social Security (the “Commissioner”) maintains that AU O’Leary’s denial of
benefits is supported by substantial evidence.
STEP 1: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 CFR §
404.1520(b), 416.920(b). If not, move to step two.

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At Step 1 of the sequential evaluation, AU O’Leary found that Plaintiff
had not engaged in substantial gainful activity since July 12, 2010, the alleged
onset date. R 20, There is no dispute as to Step 1.
STEP 2: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id. § 404.1520(c),
4 16.920(c). If the claimant has a severe impairment, move to step
three.
O’Leary found the following severe impairments:
At Step 2, AU
degenerative disk disease and discogenic back pain, post lumbar fusion and
laminectomy. He also noted that Arroyo alleged that he was “stressed” because
of his condition, but found that there was no evidence of any psychiatric
treatment or diagnosis on record.
To come to this conclusion, the AU thoroughly reviewed Arroyo’s
medical history. He noted that Arroyo injured his back in 2005 and that an
MRI taken after the incident indicated mild degenerative disc disease and disc
herniation and L4-L5. He underwent a lumbar discectomy in August 2005, but
continued to complain of back pain after this surgery. A post-operative MRI did
not show any further disc herniation, but did show degenerative disk disease.
R. 20 (citing Exhibits 2F and 5F). Arroyo continued to work, on and off, during
this period, though he complained of pain. He alleges that the pain worsened in
2010, causing him to stop working. A lumbar discogram taken in May 2010
that was “markedly positive for reproduction of his back pain at the L5-S 1 level
and negative at L3—4 and L4—5.
In July 2010 Arroyo underwent his second surgery, a laminectomy and
bilateral fusion at L4-L5 and L5-S 1. R 21. During a follow-up visit with his
surgeon, Arroyo reported that his pain had improved, but that he still had
intermittent lower extremity pain.
The AU also reviewed the diagnostic medical evidence. An orthopedic
consultative examiner, Dr. Justin Fernando, examined Arroyo in January
2011. After a thorough examination, Dr. Fernando diagnosed Arroyo with
bilateral subjective lumbrosacral radiculopathy and concluded that Arroyo
could not do any physically-demanding tasks. R. 21 (citing 1 iF). The AU also
summarized the findings of Arroyo’s spinal surgeon’s evaluation, in which the
surgeon opined that Arroyo could: sit, stand, and walk for four to six hours
each day; frequently lift up to twenty pounds; perform light duty. The surgeon
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noted that claimant’s limitations were primarily for physical work. R. 21 (citing
Exhibit 13F). The AU also noted that Arroyo visited the emergency room for
back pain in February, June, and September 2011. R 21 (citing Exhibits 14F
and 16F).
STEP 3: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20
CFR Part 404, Subpart P, Appendix 1, Part A. If so, the claimant is
automatically eligible to receive benefits; if not, move to step four.
Id. § 404.1520(d), 4 16.920(d).
At step 3, AU O’Leary found that Arroyo did not have an impairment or
combination of impairments that met or medically equaled one of the listened
impairments in 20 CFR Part 404, Subpart P, Appendix 1. R 28 (citing 20 CFR
§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). He
supported this conclusion by finding that the claimant did not meet listing 1.04
(relating to spine disorders) because the record does not establish any evidence
of motor, sensory, or reflex loss, spinal arachnoidities confirmed by an
operative note or pathology report, or lumbar spinal stenosis. He also found
that the claimant had not lost the ability to ambulate, citing the report of Dr.
Justin Fernando, the orthopedic consultative examiner. R 22.
STEP 4: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (CRFC) to
perform past relevant work. Id. § 404.1520(e)-(f), 416.920(e)-(f). If
not, move to step five. Up to this point (steps 1 through 4) the
claimant has borne the burden of proof.
At step 4, AU O’Leary ruled that Arroyo had a residual functional
capacity (“RFC”) to perform the full range of sedentary work. 20 CFR
404.1567(a), 416.967(a). R 22.
The AU’s opinion cites to the testimony of Arroyo about his limitations.
The AU noted that Arroyo testified that he could do nothing but lie down and
watch television all day, could stand for only seven minutes, could sit for only
ten minutes, and could walk for only 10 minutes. R 22. He testified that he
could not drive, but later, upon further questioning, admitted to owning a car
that he last drove approximately a week before the hearing before the AU. R
22. He claimed to take approximately six prescription pain pills a day, but
could not adequately explain how he acquires the medication because he did
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not have a treating physician or insurance. He said that the hospital prescribed
the pain medication and muscle relaxers. R 32. Arroyo stated he received the
medication upon visits to the emergency room, but the AL3 noted that the
record indicated that Arroyo visited the emergency room once every few
months, which would not be sufficient to acquire as much medication as he
alleged to be taking.
The AU concluded that the objective medical evidence indicated that
Arroyo was not as limited in his activities as he claimed to be. R 22. He cited to
a March 2010 MRI that showed that Arroyo’s condition had not worsened or
changed since the post-operative MRI taken in August 2005, after Arroyo’s first
surgery. He hypothesized that “the claimant worked for years after the first
surgery” and that it was unclear why he could not work now. He also noted
that Arroyo’s spinal surgeon found that he could sit, stand, and walk for four
to six hours each day and could lift up to twenty pounds, “giving him a
residual functional capacity of between light and sedentary work.” He also that
the consultative examiner’s findings were similar and that both the surgeon
and consultative examiner found that he “cannot do only physically demanding
jobs.” R 22 (citing Exhibits 1 iF and 13F).
After reviewing the evidence, the AU found that Arroyo’s statements
were not credible to the extent they were inconsistent with the evaluations of
Dr. Fernando and Dr. Giordano, to which he gave great weight.
After assessing Arroyo’s RFC, the AU found that it would not permit him
to perform his past relevant work as a warehouseman, a shipping and receiving
clerk, and a sprinkler installer, because these past jobs require an RFC for a
medium range of physical exertion. R 23.
STEP 5: The burden shifts to the SSA to demonstrate that the
claimant, considering his or her age, education, work experience,
and RFC, is capable of performing jobs that exist in significant
numbers in the national economy. 20 CFR § 404.1520(g),
416.920(g); see Poulos v. Comm’r of Soc. Sec., 474 F’.3d 88, 9 1—92
(3d Cir. 2007). If so, benefits will be denied; if not, they will be
awarded.
At step 5, AU O’Leary considered Arroyo’s RFC, age, education, and past
work experience and concluded that Arroyo could perform a full range of
sedentary work. Thus, he was “not disabled” within the framework of Medical
Vocational Guidelines, Rule 201.25. R 23.
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C.

Discussion of the AU’s Analysis

It is the AU’s analysis at Steps 4 and 5 that give rise to Arroyo’s central
contentions on appeal. Specifically, he raises two claims of error: (1) the
residual functional capacity (“RFC”) assessment for the full range of sedentary
work was not based on substantial evidence and (2) the medical evidence
justifies reversal and the award of benefits. Specifically, he argues that the
AU’s analysis of the consulting doctor and surgeon’s evaluations overlooked
certain information.
1. The RFC Assessment
a. Arroyo’s contention concerning persistent pain, based on
Dr. Fernando’s report.
Arroyo cites the report of Dr. Fernando, the Social Security orthopedic
consultant, that his pain is clinically apparent, unremitting and unresolved. P1.
Br. at 19. This, he says, conflicts with the AU’s RFC finding that he is capable
of full-time sedentary work. Arroyo contends that the AU failed to address this
contradictory evidence and explain why he discounted it. The Commissioner
responds that the AU did consider and weigh all the medical opinion evidence,
including that of Dr. Fernando. R 21—22.
Dr. Fernando’s Consultant Statement noted that Arroyo’s problems trace
back to the disc herniation at L5-S 1. The minimally invasive first procedure did
not “deal with the problem,” nor did the second surgery. He noted that the
“need for the fusion is not clear, but the claimant continues to be in a state of
pain as evidenced by the spasm in the back.” R 423. The clinical exam did not
reveal “any significant disk herniation as can be judged from physical
examination.” R 423. He noted that, to the extent that his pain is in fact
caused by disk herniation, the surgeries have not resolved the issue. The exam
did reveal some tenderness and some spasm on both sides of the midline in
and around the area of dissection, but that Arroyo did not appear to be in
“acute distress.” R 422. He had a normal gait, did not need help getting on or
off the exam table, and did not require an assistive device.
Dr. Fernando diagnosed Arroyo with: “History of disk herniation at L5Si, status post minimally invasive discectomy at first followed later by lumbar
laminectomy and fusion . . .“ and “Continued pain in the lower back with
bilateral subjective lumbosacral radiculopathy.” He concluded that “it is

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conceivable given the circumstances that he may not be able to engage in
physically-demanding activities at this point.” R 423.
The AU found that this report was supported by the whole of the
evidence and assigned it great weight. R 23. The AU did not interpret Dr.
Fernando’s evaluation in the same manner that Arroyo does, but I find that the
AU’s interpretation is well founded.
I do not agree with Arroyo that Dr. Fernando’s evaluation is in conflict
with the AU’s RFC. The AU did find that Arroyo suffered from severe
impairments of degenerative disk disease and diskogenic back pain post
lumbar fusion and laminectomy. That is not inconsistent, but consistent with
Dr. Fernando’s diagnosis. Dr. Fernando’s report does not dictate a finding of
acute, unremitting, unresolved pain. Indeed, Dr. Fernando found that Arroyo
was not in acute distress. He reached the equivocal conclusion that it was
“conceivable” that Arroyo “may not be able to engage in physically-demanding
activities at this point.”
An RFC of sedentary work is supported, not contradicted, by Dr.
Fernando’s report. Remand is not appropriate on this basis.
2. Arroyo’s contention concerning limitation to a six-hour
work day, based on the report of Dr. Giordano.
Arroyo submits that the AU’s conclusion regarding Arroyo’s RFC
conflicts with the notation of his surgeon, Dr. Giordano, that “I do not think he
will be able to work a[n] 8hr workday. Probably limited to 6 hours/day.” R
erred in failing to address this
428. He also contends that the AU
contradictory evidence and state why he discounted it.
The Commissioner urges that the notation must be considered in the
context of the report in which it appears. The Physical Capacity Form noted
that “Patient’s limitations are primarily for physical work. I do not think he will
be able to work a[n] 8hr workday. Probably limited to 6 hours/day.” R 428.
That same capacity evaluation, however, noted that Plaintiff could stand and
walk for four to six hours in an eight hour work day and could sit for four to six
hours in an eight hour work day. R 428. It also stated that Arroyo could lift up
to 20 pounds frequently and 25 pounds occasionally. R 428. The surgeon also
stated that Arroyo could use his hands for simple grasping for four to six
hours, for pushing and pulling for two to four hours and for fine manipulation

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for six to eight hours. He is able to reach frequently, bend, squat, and kneel
occasionally, and climb never.
Taken as a whole, the surgeon’s findings are not inconsistent with an
RFC for a full range of sedentary work. Especially in the context of the other
evidence, they do not undermine the AU’s conclusions.
Moreover, it is significant that Dr. Giordano’s physical capacity form is
dated February 15, 2010, before the second operation. Dr. Giordano had a
follow up appointment with Arroyo on August 13, 2010, after the second
operation. At that appointment, Arroyo reported improvement, e.g., that his
“lower extremity pain is now intermittent.” R 387.
As is appropriate, the AU did credit the surgeon’s medical opinion as a
surgeon. The ultimate conclusion of disability or fitness for sedentary work,
however, is entitled to less deference, as it is reserved for the Commissioner.
See SSR 96 In the context of all the evidence, which the AU clearly did
(p).
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consider, the AU was not required to adopt the opinion of one surgeon that the
maximum work day was six, not eight, hours.
3. Arroyo’s complaints about his pain
Plaintiff contends that the AU improperly discredited his complaints of
pain, because the complaints are supported by the medical evidence, including
Dr. Fernando and Dr. Giordando’s evaluations. The Commissioner’s position is
that the AU considered Arroyo’s subjective complaints regarding his pain and
provided a thorough discussion of why he did not find them entirely credible.
The AU’s opinion cites to the testimony of Arroyo about his limitations.
The AU noted that Arroyo testified that he could do nothing but lie down and
watch television all day, could stand for only seven minutes, could sit for only
ten minutes, and could walk for only 10 minutes. R 22. He testified that he
could not drive, but later, upon further questioning, admitted to owning a car
that he last drove approximately a week before the hearing before the AU. R
22. He claimed to take approximately six prescription pain pills a day, but
could not adequately explain how he acquires the medication because he did
not have a treating physician or insurance. He said that the hospital prescribed
the pain medication and muscle relaxers. R 32. Arroyo stated he received the
medication upon visits to the emergency room, but the AU noted that the
record indicated that Arroyo visited the emergency room once every few

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months, which would not be sufficient to acquire as much medication as he
alleged to be taking.
After a review of Arroyo’s complaints of pain, the AU concluded that the
objective medical evidence indicated that Arroyo was not as limited as he
claimed to be. R 22. He cited to a March 2010 MRI that showed that Arroyo’s
condition had not worsened or changed since the post-operative MRI taken in
August 2005, after Arroyo’s first surgery. He also noted that Arroyo’s spinal
surgeon found that he could sit, stand, and walk for four to six hours each day
and could lift up to twenty pounds, concluding that he had “a residual
functional capacity of between light and sedentary work.” The AU noted that
the consultative examiner’s findings were similar and that both the surgeon
and consultative examiner found that he “cannot do only physically demanding
jobs.” R 22 (citing Exhibits 1 iF and 13F). 2
Accordingly, the AU found an inconsistency between the medical
evidence and Arroyo’s statements concerning the intensity, persistence, and
Although he does not raise it as a claim of error, Arroyo cites the results of that
March 3, 2010 MRI of the lumbar spine. The significance is not altogether clear, but I
discuss it for the sake of completeness. The impression was: “Degenerative disc
Overall when compared to
with mild bilateral foraminal narrowing
disease
the previous study Itaken October 21, 2005}, there has been no significant interval
change.” R 401; R 22. The second surgery took place several months later, in July
2010. (Recall that the claim of disability here has a starting date of July 2010.) The
AU noted that Arroyo worked for “years after the first surgery, therefore it is not clear
why he cannot continue working now.”

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There is no dispute that Arroyo had a second, more invasive surgery. The AU
did not overlook this fact. See R 22. If the argument is that the AU should not have
considered the March 2010 MRI, the argument fails because Arroyo fails to cite to any
subsequent objective testing suggesting the worsening of his condition. In June 2010,
his surgeon noted that Arroyo was “unemployed but capable of working.” R 388 (1OF).
This was so even with the persistent pain Arroyo claimed to suffer following the
August 2005 surgery.
According to postoperative notes for the second surgery, Arroyo “did well”
postoperatively and had an “uncomplicated” postoperative course. R 314. A follow-up
MRI on July 19, 2010, showed that Arroyo had “lumbar bodies of normal height and
alignment with pedicle fixation screws and plates at the L4, L5, and Si levels which
appear to be standardly positioned” R 363. Notably, Dr. Fernando noted that the
“reason for the fusion is unclear.” R 421.
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limiting effects of the symptoms alleged. The AU concluded that such
complaints were not wholly credible to the extent they are inconsistent with the
evaluations of Dr. Fernando and Dr. Giordano, to which he accorded “great
weight.” R 23 (citing Exhibits 8F, 9F, 1OF, 1 iF, and 13F).
The AU did not err in his analysis of Arroyo’s complaints regarding his
pain. Subjective complaints must be supported by clinical evidence, including
medical signs or laboratory findings that shows the existence of a severe
impairment that could reasonably be expected to cause the symptoms alleged
by the claimant. 20 CFR § 404.1529(b), 416.929(b); SSR 96-’7p. Where a
claimant alleges symptoms that appear to be greater in severity than what the
medical evidence suggests, the Commissioner may consider other evidence,
including the claimant’s daily activities, treatment, and nature and extent of
the symptoms alleged. 20 CFR 404.1529(c)(3), 416.929(c)(3), SSR 96-’7p. The
AU must give serious consideration to complaints of pain, even when such
complaints are not fully supported by the objective medical record, but need
not accept without questioning the credibility of these complaints. LaCorte u.
Bowen., 678 F. Supp. 80, 83 (D.N.J. 1988) (citations omitted). Ultimately, the
AU has discretion to evaluate the claimant’s credibility in light of the totality of
the objective evidence. Id.
acknowledged and followed the mandatory two-step
Here, the AU
process regarding a claimant’s symptoms: (1) determining whether there was
an underlying medically determinable impairment that could reasonably be
expected to produce the claimant’s pain or other symptoms and (2) evaluating
the intensity, persistence, and limiting effects of these symptoms to determine
the extent to which they limit Arroyo’s ability to do basic work activities. R 22.
The AU concluded that the objective medical evidence indicated that
Arroyo was not as limited as he claimed to be. R 22. He also stated a basis for
his conclusion that Arroyo’s subjective complaints were not wholly credible.
See LaCorte v. Bowen, 678 F. Supp. 80, 83 (D.N.J. 1988) (citing Cotter v.
Harris, 642 F.2d 700 (3d Cir. 1981) (If the AU concludes that testimony is not
credible, the AU must indicate the basis for that conclusion in his decision.).
Such balancing of evidence is well within the AUJ’s discretion and
competence. Disagreement with the balance he struck is not a basis for
remand.

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II.

CONCLUSION

Arroyo’s claims of error based on the evidence adduced and evaluated at
the hearing before the AU fail to show that the AU erred as a matter of law or
that his decision was not supported by substantial evidence. The denial of
Arroyo’s DIB and SSI applications is therefore AFFIRMED.
An Order will be entered in accordance with this Opinion.

Hon. Kevin McNulty
United States District Judge
Dated: July 25, 2014

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