CRUZ v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION. Signed by Judge William J. Martini on 2/6/14. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:13-01694 (WJM)
ANGEL CRUZ,
Plaintiff,
OPINION
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Angel Cruz brings this action pursuant to 42 U.S.C. § 405(g), seeking
review of a final determination by the Commissioner of Social Security (the
“Commissioner”) denying his application for a period of disability and Disability
Insurance Benefits (“DIB”). For the reasons that follow, the Commissioner’s decision is
AFFIRMED.
I.
LEGAL STANDARDS
A. 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. 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
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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).
B. 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. Admin., 181 F.3d 429, 431 (3d Cir. 1999).
The factual findings of the 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)).
II.
BACKGROUND
On November 9, 2009, Plaintiff filed an application for a period of disability and
DIB. The filings alleged that Plaintiff had a disability with an onset date of January 6,
2009, due to conditions including diabetes, disc disease, right-shoulder impingement,
diabetic retinopathy, and depression. Plaintiff’s claim was denied initially on April 30,
2010, and on reconsideration on September 3, 2010. On November 3, 2011, Plaintiff and
his daughter-in-law, Ms. Estelle Rivera, testified at a hearing before Administrative Law
Judge Richard L. De Steno (the “ALJ”). On December 6, 2011, the ALJ issued a
decision finding that Plaintiff was not disabled. The ALJ recognized that Plaintiff had
several severe impairments, but found that those impairments did not meet or equal the
impairments found in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part A. The ALJ also
found that Plaintiff had the residual functional capacity (“RFC”) to perform his past
relevant work.
On January 18, 2013, the Appeals Counsel denied Plaintiff’s request for review.
Plaintiff now brings the instant appeal, challenging the ALJ’s determination that he was
not disabled.
III.
DISCUSSION
Plaintiff challenges the ALJ’s determination that he was “not disabled” on several
grounds. Specifically, Plaintiff argues that the ALJ erred in finding that: (1) Plaintiff’s
depression and diabetic retinopathy were not severe; (2) Plaintiff had failed to
demonstrate a listing-level impairment; and (3) Plaintiff retained the RFC to perform his
past relevant work. Each of these challenges will be addressed in turn.
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A. The ALJ properly found that Plaintiff’s depression and diabetic
retinopathy were not severe.
Here, the ALJ found in Plaintiff’s favor at step two, concluding that his diabetes,
disc disease, and right-shoulder impingement were severe. However, Plaintiff challenges
the ALJ’s finding that his mental impairment and diabetic retinopathy were not severe.
An impairment is severe only if it significantly limits the claimant’s physical or
mental ability to do basic work activities. 20 C.F.R. § 404.1521; Social Security Ruling
(“SSR”) 85-28, 1985 WL 56856, at *3 (1985); McCrea v. Comm’r of Social Security, 370
F.3d 357, 360 (3d Cir. 2004). Basic work activities include walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling. SSR 85-28, 1985 WL 56856, at
*3. An individual must also be able to understand, carry out, and remember simple
instructions, exercise judgment, respond appropriately to work situations, and deal with
changes in a routine setting. Id. A “severe” impairment is distinguished from “a slight
abnormality,” which has such a minimal effect that it would not be expected to interfere
with the claimant's ability to work, regardless of her age, education, or work experience.
See Bowen v. Yuckert, 482 U.S. 137, 149-51 (1987). The claimant bears the burden of
showing that an impairment is severe. Id. at 146 n.5.
The ALJ properly found Plaintiff’s diabetic retinopathy and depression to be nonsevere. Regarding the diabetic retinopathy, Plaintiff failed to present any evidence that
his vision significantly limits his ability to do basic work activities, and the record
evidence points to the opposite conclusion. See 20 C.F.R. §§ 404.1520(c), 404.1521(a);
see also Ramirez v. Barnhart, 372 F.3d 546, 551 (3d Cir. 2004). Dr. Rambhai Patel, a
consultative examiner, found no evidence to diagnose diabetic retinopathy, stating only
that the “[p]ossibility of diabetic retinopathy cannot be ruled out.” (R. at 296.) On
examination, Dr. Patel found that Plaintiff’s uncorrected vision on the left side was 20/50
and on the right was 20/70. (R. at 296.) Dr. Patel also found that Plaintiff’s sclarea and
conjunctivae were normal, and his pupils were equal and constricted. (R. at 296.)
Plaintiff eyes were also declared normal during an emergency room eye examination on
March 4, 2010, and two state agency physicians opined that Plaintiff had no visual
limitations. (R. at 265, 307, 334.) . “No symptom or combination of symptoms can be
the basis for a finding of disability, no matter how genuine the individual's complaints
may appear to be, unless there are medical signs and laboratory findings demonstrating
the existence of a medically determinable physical or mental impairment.” SSR 96–4p,
1996 WL 374187, at *1.
Regarding Plaintiff’s depression, substantial evidence supports the ALJ’s
determination that it does not cause more than a slight or minimal limitation in Plaintiff’s
ability to perform basic mental work activities. First, the ALJ determined that Plaintiff
has only mild limitations on daily living, social functioning, and concentration,
persistence, and pace. (R. at 22-23.) The record supports this finding. According to Dr.
Ernesto Perdomo’s expert report, Plaintiff is able to take care of his personal needs and
take public transportation, and lives with a female friend. (R. at 246.) Dr. Pedormo also
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indicated that Plaintiff could follow four-step, moderately complex instructions and had
an organized and focused thought process. (R. at 22, 247.) And the record contains no
evidence of episodes of decompensation. Additionally, nothing in the record indicates
Plaintiff received treatment for his depression. See Bruni v. Astrue, 773 F. Supp. 2d 460,
474 (D. Del. 2011) (finding that a claimants failure to seek professional mental health
treatment provided evidence that her depression was not severe).
Plaintiff argues that the ALJ’s erred in finding that Plaintiff’s mental impairments
were non-severe, because, contrary to Dr. Perdomo, Dr. Shapiro opined that Plaintiff had
several moderate mental limitations. Specifically, Dr. Shapiro’s Mental RFC Assessment
Form included check blocks indicating that Plaintiff was “moderately limited” in several
areas. However, the ALJ was not required to give any weight to the section of the Form
containing those check blocks. See Smith v. Comm'r of Soc. Sec., 631 F.3d 632, 636 (3d
Cir. 2010) (confirming that Part III of the Mental RFC Assessment Form contains the
actual RFC assessment, and that the ALJ may assign little or no weight to the worksheet
sections of that Form). Furthermore, an ALJ is free to choose one medical opinion over
provided that she considers all of the evidence and gives some reason for discounting the
evidence she rejects. Diaz v. Commissioner of Soc. Sec., 577 F.3d 500, 505-06 (3d Cir.
2009). Here, the ALJ explained that the rest of Dr. Shapiro’s actual RFC assessment
contradicted the indications that Plaintiff was moderately limited. (R. at 23.)
Accordingly, substantial evidence supports the ALJ’s finding that Plaintiff’s depression
was not severe.
The ALJ’s determination that Plaintiff did not have a severe visual or mental
impairment thus was not in error. Furthermore, because the ALJ found in Plaintiff’s
favor at step two, even if the ALJ had erroneously concluded that Plaintiff’s diabetic
neuropathy or depression were non-severe, any error would be harmless. See Rutherford
v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).
B. The ALJ properly found that Plaintiff does not have a listing-level
impairment.
Plaintiff next argues that the ALJ failed to properly analyze whether his
impairments met or equaled one of the listings at 20 C.F.R. Part 404, Subpart P,
Appendix 1. While he appears to agree that none of his impairments independently are of
listing-level severity, Plaintiff argues that the ALJ failed to consider his impairments in
combination. (Pl’s Br. 29-30.)
At step three, an ALJ must consider each of the claimant's individual conditions
and determine whether they meet or equal any listed impairment. Where the claimant has
“a combination of impairments, no one of which meets a listing ... [the ALJ] will
compare [the claimant's] findings with those for closely analogous listed impairments.”
20 C.F.R. § 404.1526(b)(3). For a combination of impairments to be medically
equivalent to one in the listings, it must be “at least of equal medical significance.” Id.
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Plaintiff’s assertion that the ALJ did not consider his impairments in combination
is incorrect. The ALJ specifically found that Plaintiff “did not have an impairment or
combination of impairments that meets or medically equals one of the listed impairments
. . . .” (R. at 23.) “[W]here the ALJ has indicated that the impairments have been
considered in combination, there is ‘no reason not to believe’ that the ALJ did so.”
Gainey v. Astrue, Civ. No. 10-1912, 2011 WL 1560865, at *12 (D.N.J. Apr. 25, 2011)
(citing Morrison v. Comm'r of Soc. Sec., 268 Fed. App’x 186, 189 (3rd Cir. 2008)).
In addition, after reviewing the decision as a whole, the Court finds that the ALJ’s
development of the record and explanation of findings at step three is sufficient to allow
for meaningful review, as required under Burnett v. Commissioner of Social Security.
See 220 F.3d at 120. Burnett “does not require the ALJ to use particular language or
adhere to a particular format in conducting his analysis.” Jones v. Barnhart, 364 F.3d
501, 505 (3d Cir. 2004). Instead, a reviewing court should look at the decision as a
whole to determine whether the ALJ considered the appropriate factors. Id.
Here, the ALJ’s analysis of the medical evidence in light of the musculoskeletal,
visual, and mental disorder listings was comprehensive enough for meaningful review.
The ALJ gave specific consideration to the effect of Plaintiff’s diabetes on his general
health, noting that Plaintiff did not allege any kidney problems and that the medical
evidence did not support Plaintiff’s allegations of neuropathy. (R. at 23.) The ALJ
reviewed the medical evidence regarding Plaintiff’s visual impairments, finding that
Plaintiff’s uncorrected visual acuity of 20/50 in the left eye and 20/70 in the right eye did
not meet the criteria for Listing 2.02. (R. at 24.) The ALJ also considered Plaintiff’s disc
disease and right shoulder impingement, finding that those impairments did not meet
Listings 1.04 or 1.02B. (R. at 24.) Further, the ALJ discussed the limitations in
functioning created by Plaintiff’s mental impairments at length, finding those
impairments did not meet any mental disorder listing. (R. at 22-23.)
Finally, Plaintiff neither identifies nor refers to any evidence supporting his
contention that the combination of his impairments met or equaled a listing, and thus has
failed to meet his burden at step three. Moreover, the administrative record contains
numerous reports supporting the ALJ’s determination that Plaintiff did not have a listinglevel impairment. (See R. at 247, 296, 297, 326, 327, 328, 341-46.) Accordingly, the
Court affirms the ALJ’s findings at step three.
C. Substantial evidence demonstrates that Plaintiff retains the RFC to
perform his past relevant work.
At step four, the ALJ found that Plaintiff retained the RFC to perform his past
relevant work as a Hi-Lo machine operator. Plaintiff objects both to the ALJ’s finding
that Plaintiff retained the RFC to perform light work, and to the ALJ’s characterization of
Plaintiff’s past relevant work.
RFC is the claimant’s ability to work despite the limitations caused by his
impairments. The SSA defines “light” work as follows:
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Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do substantially all of these
activities.
20 C.F.R. § 404.1567(b). The SSA has further explained that “light work generally
requires the ability to stand and carry weight for approximately six hours of an eight hour
day.” Jesurum v. Sec. of Health & Human Servs., 48 F.3d 114, 119 (3d Cir. 1995) (citing
SSR 83–10, 1983 WL 31251 (1983)).
The ALJ evaluated the relevant evidence and explained the basis for his
conclusion that Plaintiff has the RFC to perform light work. (R. at 22.) Moreover,
substantial evidence supports the ALJ’s conclusion. The medical reports of Dr. Ladi
Habina, Dr. Rambhai Patel, Dr. James Paolino, and Dr. David X. Schneider all supported
the ALJ’s assessment. (R. at 196-97, 244, 296, 297, 304-11, 334. Significantly, Dr.
Paolino and Dr. Schneider opined that Plaintiff could occasionally lift fifty pounds,
frequently lift twenty pounds, stand and/or walk about six hours per workday, sit about
six hours per work day and push and/or pull subject to the limitations specified for lifting
and/or carrying. (R. at 306, 334.) And, as noted previously, the ALJ considered the
impact of any mental impairments on Plaintiff’s ability to work. (R. at 22.) Additionally,
he explained his reasons for discounting the opinion of Dr. Sasha Agarwal, Plaintiff’s
treating physician. Dr. Agarwal reported in three letters that Plaintiff was permanently
medically disabled and unable to work. (R. at 333, 340, 347.) The ALJ discredited this
opinion on the grounds that it was unsupported by Dr. Agarwal’s own objective findings
and the record as a whole. (R. at 28, 344-46.)
Finally, the ALJ specifically addressed both the Plaintiff and Rivera’s testimony
regarding Plaintiff’s limitations. The ALJ found that that Plaintiff lacked credibility due
to inconsistencies between his testimony and the record. (R. at 27.) For instance,
Plaintiff testified during the hearing that he last worked in 1996, but has a work history
through 2009. (R. at 40, 139.) The ALJ also noted that Plaintiff arrived at a consultation
with Dr. Perdomo smelling of alcohol. (R. at 246.) When Dr. Perdomo questioned
Plaintiff about it, Plaintiff admitted to having drunk two beers. (R. at 246.) However,
Dr. Perdomo reported that Plaintiff smelled as if he had consumed something stronger
than just two beers. (R. at 246.) And the ALJ found that Rivera was partially credible,
but that the objective medical evidence did not support her description of the extent of
Plaintiff’s limitations. (R. at 27.) Accordingly, the Court will not disturb the ALJ’s
determination that Plaintiff has the RFC for light work.
Plaintiff also challenges the ALJ’s characterization of his past relevant work as a
Hi-Lo machine operator. The term past relevant work means work performed either (1)
as the claimant actually performed it or (2) as it is generally performed in the national
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economy. 20 C.F.R. § 404.1560(b)(2); SSR 82-61, 1982 WL 31387, at *1 (1982). “The
claimant is the primary source for vocational documentation, and statements by the
claimant regarding past work are generally sufficient for determining the skill level;
exertional demands and nonexertional demands of such work.” SSR 82-62, 1982 WL
31386, at *3 (1982). The claimant bears the burden of demonstrating an inability to
return to her past relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994).
Here, the ALJ properly relied on Plaintiff’s description of his past relevant work as
actually performed. At the hearing, Plaintiff described his job operating a Hi-Lo machine
as requiring him to drive around a warehouse and move items with the Hi-Low machine.
Plaintiff performed this job while sitting. (R. at 44.) Plaintiff specifically stated that he
did not lift items with his hands, but rather by operating a lever within the Hi-Lo
machine. (R. at 44.) He was not required to do any writing or complete reports, or to
supervise any other employees. (R. at 44.)
Plaintiff argues that the ALJ failed to consider a work history questionnaire, in
which he had described his job as being more physically demanding. (R. at 163-69.)
However, the ALJ is only required to refer to pertinent or probative evidence in his
opinion. Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 203-04 (3d Cir. 2008). Here, the
ALJ was entitled to reject the questionnaire without explanation, because the
overwhelming evidence in the record discounted its probative value, rendering it
irrelevant. Id. First, Plaintiff’s own testimony regarding his past relevant work
contradicted the description contained in the questionnaire. Additionally, the answers in
the questionnaire itself were inconsistent. For example, in the questionnaire, Plaintiff
stated that he was a driver, yet indicated that his job required him to walk for eight hours,
and stand for one hour.
Based on his determination that Plaintiff retained the RFC for light work and that
Plaintiff’s past relevant work fell within the definition of light work, the ALJ concluded
that Plaintiff retained the RFC for his past relevant work. The Court affirms these
conclusions.
IV.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is AFFIRMED. An
appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: February 6, 2014
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