LUPOLD v. COMMISSIONER OF SOCIAL SECURITY

Filing 17

OPINION. Signed by Judge Kevin McNulty on 7/31/14. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MICHELLE M. LUPOLD,

Civ. No. 2: 13-cv-2696 (KM)

Plaintiff,
OPINION
V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

KEVIN MCNULTY. U.S.D.J.:
Michelle Marie Lupold 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”). Lupold alleges that she is entitled to disability benefits because she is
unable to engage in substantial gainful activity due to severe impairments,
including fibromyalgia, chronic and severe pain, major depressive disorder, hip
pain, and back pain. Docket No. 1 (“Compi.”) ¶ 6.
For the reasons set forth below, the Commissioner’s decision is affirmed.
I.BACKGROUND
Plaintiff, Michelle Marie Lupold, filed her Complaint in this Court on
April 26, 2013 to appeal the final ruling of the Commissioner denying her
disability benefits.
On January 6, 2010, Lupold filed a Title II application alleging a
disability onset date of June 19, 2006. Her claim was originally denied on July
7, 2010 and on reconsideration thereafter. On July 28, 2011, she appeared for
a hearing before Administrative Law Judge (“AU”) George C. Yatron. On
August 5, 211, the AU determined that Lupold was not disabled. The Appeals
Council denied review of the AU’s decision, rendering AU Yatron’s decision
the final decision of the Commissioner.

1

II. DISCUSSION
Lupold’s claims for DIB were denied by AU Yatron.
To qualify for Title II DIB benefits, a claimant must meet the insured
status requirements of 42 U.S.C. § 423(c). To be eligible for 551 benefits, a
claimant must meet the income and resource limitations of 42 U.S.C. § 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, Lupold submits that the Commissioner’s
decision is not supported by substantial evidence. Specifically, she raises four
claims of error: (1) The AU erred in not fully addressing the consultative
examination report authored by Mark Greenberg, Ph.D.; (2) The ALT erred in
determining that the Plaintiff suffered from “moderate” limitations in social
functioning, but failing to include any restrictions related to this limitation in
the formulation of RFC; (3) The ALT erred in his determination of the Plaintiff’s
credibility; and (4) The AU erred in assigning little weight to the opinion of Dr.
Anderson. Docket No. 8 (“P1. Br.”).
A. Standard of Review
As to legal issues, this Court’s review is plenary. See Schaudeck v.
Comm’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,
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. Perales, 402 U.S. 389, 401 (1971).
[I]n evaluating whether substantial evidence supports the ALT’s
findings
leniency should be shown in establishing the
claimant’s 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
.

.

.

.

.

.

2

be used in this administrative proceeding than is applicable in a
typical suit in a court of record where the adversary system
prevails.
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 Yatron’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 August 5, 2011.
B. The AU’s Decision
After performing the sequential five-step analysis, the Administrative Law
Judge Yatron denied Lupold’s claim of benefits on August 5, 2011. The AU
found that Lupold could perform light work without detailed instructions and
was not disabled. Lupold now submits that AU Yatron’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
Yatron’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), 4 16.920(b). If not, move to step two.
At Step 1 of the sequential evaluation, AU Yatron found that Plaintiff
had not engaged in substantial gainful activity since her alleged onset date of
June 19, 2006. R 31.
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.
At Step 2, AU
Yatron found the following
fibromyalgia and major depressive disorder. R 31.

severe

impairments:

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
3

automatically eligible to receive benefits; if not, move to step four.
Id. § 404.1520(d), 416.920(d).
At step 3, AU Yatron found that Lupold did not have an impairment or
combination of impairments that met or medically equaled a listened
impairment.
The AU found that Lupold did not meet the “paragraph B” criteria of
listing 12.04 of 20 CFR Part 404, Subpart P, Appendix 1 because her mental
impairments did not cause at least two “marked” limitations or one “marked”
limitation and “repeated” episodes of decompensation. He found that Lupold
had moderate restrictions in daily living and that the majority of these
limitations stemmed from her physical limitations and not from her mental
health impairment. R 31. The AU also found that she had moderate difficulties
with social functioning and in regard to concentration, persistence, or pace. R
32. He also found that her limitations did not meet “paragraph C” criteria. R
32.
STEP 4: Determine 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). 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 Yatron ruled that Lupold had a residual functional
capacity (“RFC”) to perform the full range of light work with no detailed
instructions. R 33-37.
The AU considered Lupold’s subjective allegations as to her limitations
and pain. Lupold alleged that her fibromyalgia has worsened with age. She can
only sit and stand for short periods and suffers from severe back and hip pain.
She cannot lift a gallon of milk because of the pain. It takes her an entire day
to clean one room of the house due to her “need to sit and stand constantly.”
She alleges that she does not go out, forgets things often, and has difficulty
sleeping. R 33 (citing Exhibit 2E, 4E). In her Disability Report, she stated that
she could only walk for about five minutes, stand for five to ten minutes, and
sit for fifteen minutes at a time. R 33 (citing Exhibit 7E). The AU summarized
her complaints: “she alleged her pain is the worst pain she has ever had, that it
worsens with age, is head to toe, occurs all the time and never goes away.” R
34 (citing Exhibit 4E).
4

Considering the entirety of the evidence, the AU concluded that Lupold’s
statements regarding the intensity, persistence, and limiting effects of her
symptoms are not credible to the extent they are inconsistent with the
determined RFC. R 34. The AU found her allegations inconsistent with
Lupold’s acknowledgement that she cares for pets, cleans, cooks for a
grandchild, prepares meals on a daily basis, and does light cleaning and
laundry. Despite saying she could only walk for five minutes, she reportedly
shops for groceries and despite alleging she could only sit for fifteen minutes,
she reportedly drives. R 34 (citing Exhibit 4E). Lupold’s husband reported that
she cooks, cleans, uses the computer, watches television, washes dishes, and
takes care of the house. R 34 (citing Exhibit 5E).
Next, the AU found that the record did not contain evidence of
limitations stemming from her diagnoses of fibromyalgia and depression. The
AU did a thorough review of the medical evidence and concluded that there
was little objective evidence indicating that Plaintiff is limited by her
impairments, and that it was inconsistent with her subjective complaints of
pain.
After reviewing Lupold’s medical record, including both objective and
opinion evidence, the AU concluded that Lupold was capable of performing
light work without detailed instruction. He noted that the RFC assessment was
supported by objective medical evidence and the opinions of Drs. Bonita,
Greenberg, and Barrett. The ALT also noted that he would give Lupold the
“benefit of the doubt” regarding her physical restrictions resulting from
fibromyalgia even though she had received little treatment aside from
medication (and possibly physical therapy). Because of her major depressive
disorder, he limited her to work not requiring detailed instruction.
After assessing Lupold’s RFC, the ALT found that it would not permit her
to perform her past work as a manager, which is skilled work performed at the
light exertional level. Lupold is limited to unskilled work at the light exertional
level. R 37.

AU:

Below is a summary of the objective medical evidence considered by the
• In March 2008, Lupold saw Dr. Alan Keiser, who conducted a physical
exam that revealed normal mobility and curvature of the spine and a full
range of motion in her bilateral shoulders and hands, though he did
report tenderness in her hips. R 34. At the time, she was not taking
5

medication, but Dr. Keiser prescribed Lyrica and Xanax. R 34 (citing
Exhibit 1 F).
• A September 2008 hip x-ray revealed no acute osseous abnormality; a
chest x-ray that month was also normal. R 34 (citing Exhibits 2F, 3F).
• In December 2009, Lupold went to Premier Immediate Medical Care
with complaints of pain related to fibromyalgia. She was not taking any
medication at the time. Inspection of her hips revealed no abnormalities,
but strength was decreased. She was prescribed medications, but
refused narcotic pain medication due to a fear of needles. R 34—35 (citing
Exhibit 4F).
• Soon after the December 2009 emergency care visit, she presented to
Dr. Sucharitha Shanmugam. Dr. Shanmugam noted that Lupold was
taking Naproxen at the time. A physical examination revealed a normal
spine and full range of motion of her bilateral shoulders, elbows, hands,
knees, and hips, despite her allegations of bilateral hip pain. Dr.
Shanmugam reported that her pain had no aggravating factors. The Dr.
gave her a trial of Cymbalta, prescribed physical therapy for myofascial
conditioning, and discontinued Naproxen and Trazadone prescriptions.
During the visit, Lupold asked if she could get disability benefits. R 35
(citing Exhibit 5F).
• An April 2010 consultative examination was performed by Dr. Mark
Greenberg, Ph.D., who reported that she had never been seen by a
mental health professional. She had been prescribed Xanax by her family
physician, but no longer was taking it. She also stopped taking Cymbalta
due to the cost. Dr. Greenberg noted it was difficult for her to sit during
the evaluation and that she had difficulty straightening her knees while
attempting to stand. He reported that her affect was consistent with
moderate—to-severe depression and anxiety. Her abstract reasoning skills
were good, but her concentration was poor. He diagnosed her with “major
depressive disorder, single episode, severe.” He recommended that her
primary physician consider giving Lupold a prescription for a lower-cost
generic antidepressant and that the physician consider referring her to
psychotherapy. R. 35--36 (citing Exhibits 7F, 8F).
• In October 2010, Lupold’s treating physician, Dr. John Anderson, M.D.,
noted Lupold’s fibromyalgia, but made no notes about her limitations
6

resulting from the condition. In February 2011, Dr. Anderson noted her
mood disorder. R 36 (citing 1 iF).
The AU also considered the following opinion evidence:
• In March 2010, Dr. Louis Bonita, M.D., on behalf of the state agency,
prepared an RFC assessment. Dr. Bonita noted diagnoses of fibromyalgia
and obesity, but opined that she could do a full range of work at the
medium exertional level. The AU assigned “great weight” to this opinion,
which he found to be consistent with the medical evidence. R 36 (citing
Exhibit 6F).
• In April 2010, Dr. Greenberg opined that Lupold had “marked
limitations in understanding, remembering and carrying out detailed
instructions and in social functioning.” The AU assigned partial weight
to this opinion evidence, noting that while assigning “great weight” to the
portion of the opinion noting Lupold’s difficulty with detailed
instructions, he found that Lupold’s social functioning difficulties were
not “marked.” Instead, he found that she had moderate social
functioning limitations and noted her ability to interact and care for her
grandson and her ability to go out in public, such as going to the grocery
store. R 36 (citing Exhibit 8F).
• In May 2010, Joseph Barrett, Ph.D., on behalf of the state agency,
noted a diagnosis of major depressive disorder and opined that Lupold
had moderate limitations in activities of daily living, social functioning,
concentration, and persistence or pace. He agreed with Dr. Greenberg
that Lupold would benefit from formal mental health treatment, but
opined that her physical issues were primary. He concluded that Lupold
could complete simple tasks. He found that she had a “marked
limitation” in her ability to carry out detailed instructions, but did not
find any evidence of limitations regarding her ability to: maintain
attention/concentration for extended periods; perform activities within a
schedule; maintain regular attendance; and work a normal
workday/workweek without interruptions. R 36 (citing Exhibits 9F, 1OF).
The AU assigned “great weight” to Dr. Barrett’s opinion because he had
the opportunity to examine Lupold’s medical records and because his
opinion was consistent with the objective medical evidence, specifically
noting the lack of any mental health treatment and the absence of any
indication of an ability to perform simple, unskilled work. R 36.
7

• In July 2011, Dr. Anderson, Lupold’s treating physician, completed a
Fibromyalgia RFC Questionnaire. Dr. Anderson noted bilateral spinal,
chest, shoulder, arm, hand/finger, hip, leg, and knee/ankle/feet pain.
Dr. Anderson noted that Lupold’s pain would constantly interfere with
her ability to concentrate. He limited her to standing/walking less than 2
hours in an 8-hour workday and to sitting 4 hours in the same period.
Lupold would need a sit/ stand option and would require numerous
breaks throughout the day (Exhibit 12F). The AU
assigned Dr.
Anderson’s opinion “little weight,” finding it inconsistent with the other
medical evidence, including Dr. Shanmugam’s observations. He
characterized Dr. Anderson’s findings as conclusory and found that the
treatment pursued by Dr. Anderson was not consistent with what one
would expect if Lupold were disabled.
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),
4 16.920(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 Yatron considered Lupold’s RFC, age, education, and past
work experience and concluded that
she was “not disabled” within the
framework of Medical-Vocational Guidelines, Rule 201.25.
C. Discussion of the AU’s Analysis
The AU’s Step Four analysis is the focus of Lupold’s contentions on
appeal. The overarching issue is whether the AU’s RFC assessment is
supported by substantial evidence. I consider her four contentions in order.
Contention 1: The AU Erred in Not Fully Addressing the
Consultative
Examination
Report
Authored
by
Mark
Greenberg, Ph.D.
Plaintiff submits that the AU failed to explicitly consider Dr. Greenberg’s
opinion that Plaintiff had marked limitations in her ability to function socially
(i.e. her ability to appropriately interact with the public, supervisors, and co
workers and her ability to respond appropriately to changes in a routine work

8

setting). Plaintiff submits that this evidence, if credited, would require a finding
of disability pursuant to SSR-96-9p.
SSR-96p provides that “[a} substantial loss of ability to meet any one of
several basic work-related activities on a sustained basis (i.e., 8 hours a day, 5
days a week, or an equivalent work schedule), will substantially erode the
unskilled sedentary occupational base and would justify a finding of disability.”
These work-related activities include: “Understanding, remembering, and
carrying out simple instructions”; “Making judgments that are commensurate
with the functions of unskilled work--i.e., simple work- related decisions”;
“Responding appropriately to supervision, co-workers and usual work
situations”; and “Dealing with changes in a routine work setting.” SSR-96p.
Dr. Greenberg’s consultative report noted that Plaintiff had “marked”
limitations in social functioning. Subsumed in this general finding is a more
specific conclusion that that Plaintiff had “marked” limitations in interacting
appropriately with the public, supervisors, and co-workers, in her ability to
respond appropriately to work pressures in a usual work setting, and in her
ability to respond to changes in a routine work setting. R 226. Dr. Greenberg
concluded that a medical finding that Lupold was “very depressed, socially
withdrawn” supported her social functioning assessment. Id.
Lupold’s position “is that the AU did not adequately consider Dr.
Greenberg’s limitations in the decision, and did not give good reasons for their
rejection.” Docket No. 13 (“P1. Reply”) at 4. She submits that the AU failed to
explicitly weigh this probative evidence and to provide some explanation for
rejection such evidence when formulating her RFC, as required under case law
and regulations. The Commissioner replies that the AU did consider Dr.
Greenberg’s assessments, but discounted them because he found they were
not entirely consistent with the medical record. I agree.
While an AU need not itemize every piece of evidence considered, the
AU is required to address evidence that, if considered, would lead to a
contrary result. Adomo v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (citations
omitted) (explaining that the AU must “provide some explanation for a
rejection of probative evidence which would suggest a contrary disposition” and
remanding for failure to mention and refute contradictory evidence). The AU
may “properly accept some parts of the medical evidence and reject other parts,
but she must consider all the evidence and give some reason for discounting
the evidence she rejects.” Id. (citing Stewart v. Secretary of H.E. W., 714 F.2d
287, 290 (3d Cir. 1983)); see also Burnett v. Comm’r of Soc. Sec. Admin., 220
9

F.3d 112, 122 (3d Cir. 2000) (remanding due to AU’s failure to “review all of
the pertinent medical evidence” and explain “his conciliations and rejections.”).
Here, the AU determined that Lupold suffered from moderate limitations
in social functioning. R 36. The AU specifically addressed the medical
evaluation completed by Dr. Greenberg and adopted Dr. Greenberg’s opinion
that Lupold had marked difficulty with detailed instructions. The AU
determined, however, that, contrary to Greenberg’s assessment, Lupold’s
ability to function socially was only moderately impaired. The AU noted that
Dr. Greenberg attributed her difficulties and limitations to her depression,
impaired concentration, and socially withdrawn tendencies. R 36. The AU
assigned “partial weight” to Dr. Greenberg’s opinion, but found that Lupold’s
social functioning difficulties did not rise to the stated level of severity. “To the
contrary,” the AU concluded, “the claimant has moderate limitations in social
functioning,” noting “her ability to interact and care for her grandson and
ability to go out in public, including the grocery store.” R 36.
This conclusion of the AU was also supported by Dr. Barrett’s opinion,
to which the AU assigned “great weight.” Dr. Barrett found that Lupold had
moderate limitations in activities of maintaining social functioning. R 36 (citing
Exhibits 9F, 1OF). The AU’s opinion also noted that she will sometimes sit
outside, but will not go out when she is having a bad day. She acknowledged
that she spent time with others depending on how she feels on a particular
day. R 32 (citing Exhibit 4E). Her husband reports that she cares for her
grandson 50% of the year, including making him lunch, reading to him, and
sitting with him. She communicates with others through telephone and
computer conversations. R 32 (citing Exhibit 5E). Based on this evidence, the
AU concluded that Lupold had moderate social functioning difficulties.
The AU is permitted to separately assess separate medical opinions
found in a single medical source statement, as he did here, because it “may be
necessary to decide whether to adopt or not adopt each one.” 20 CFR §
404.1527(d). Moreover, while the AU
did not separately itemize each
“limitation” listed under the general social function heading, he did cite to and
address Dr. Greenberg’s finding that Lupold suffered from “marked” limitations
in her social functioning. The specific limitations (ability to work with others
and to respond to changes in the workplace) all fall under the general category
of social functioning. This is not a case in which the AU overlooked probative
evidence or failed to explain his relative weighting of different components of
the evidence. Rather, the AU looked at all the evidence, but assigned different
10

weight to different opinions in light of other evidence of record. Absent legal
error, I must defer to that weighing process so long as the AU’s assessment is
supported by substantial evidence. Substantial evidence of a finding of
moderate social function limitations exists. I therefore will not remand this
case on the ground that the AU failed to fully consider the opinion evidence of
Dr. Greenberg.
Contention 2: The AU Erred in Determining that the Plaintiff
Suffered from “Moderate” Limitations in Social Functioning,
but Failing to Include Any Restrictions Related to This
Limitation in the Formulation of RFC

found that Lupold had moderate
As already discussed, the AU
limitations in social functioning. R 36; see Section II.C. 1, supra. The ALT
limited Lupold to light work with no detailed instruction.
Lupold submits that the ALT erred in failing to assign any restrictions
related to social functioning in his formulation of her RFC. Even a moderate
limitation, she says, must be considered in the RFC formulation; SSR 96-8p
provides that “[ijn assessing RFC, the adjudicator must consider limitations
and restrictions imposed by all of an individual’s impairments, even those that
are not ‘severe.” Lupold argues that, had the ALT included some restrictions
related to social functioning in the RFC, a disability finding would have been
likely. Moreover, she contends that the matter should be remanded so that the
ALT may hear testimony from a vocational expert regarding the impact her
social limitations had on her ability to work. P1. Br. at 13—14. In short, she
submits that social limitations were erroneously excluded from the RFC.
The Commissioner responds that Lupold’s moderate social functioning
limitations do not significantly diminish the range of work she can perform. (As
to this point, I assume the propriety of the finding of moderate social
functioning. See Section II.C. 1, supra.)
Lupold is correct that an ALT must consider any impairment-related
limitations created by an individual’s response to demands of work as part of
the RFC assessment. See SSR 85-15. But the ALT is not required to conclude
that every limitation affects the RFC of a claimant. See SSR 83-14 (“Where it is
clear that the additional limitation or restriction has very little effect on the
exertional occupational base, the conclusion directed by the appropriate rule in
Tables No. 1, 2, or 3 would not be affected.”). Here, the ALT concluded that

11

Lupold’s limitations did not mandate any further restrictions. This conclusion
was based on substantial evidence. I will not remand on this ground.
Contention 3: The AU
Plaintiff’s Credibility

Erred in his Determination of the

Plaintiff contends that the AU improperly discounted her complaints of
pain as being inconsistent with the medical evidence. She submits that the AU
mischaracterized the Function Reports completed by Lupold and the Third
Party Function Report completed by Lupold’s husband. He also failed to cite
her oral testimony made during the hearing, necessitating remand. The
considered Lupold’s subjective
Commissioner responds that the AU
complaints regarding her pain and provided a thorough discussion of why he
did not find them entirely credible.
The AU’s opinion contains a full consideration of Lupold’s subjective
allegations as to her limitations and pain. He noted that Lupold alleged that
her fibromyalgia has worsened with age. He noted her statements that she can
only sit and stand for short periods; that she suffers from severe back and hip
pain; that she cannot lift a gallon of milk; that it takes her an entire day to
clean one room of the house because of her “need to sit and stand constantly”;
that she does not go out; that she forgets things often; and that she has
difficulty sleeping. R 33 (citing Exhibit 2E, 4E). The AU notes Lupold’s
statement in her Disability Report that she could only walk for about five
minutes, stand for five to ten minutes, and sit for fifteen minutes at a time. R
33 (citing Exhibit 7E). Also noted are Lupold’s statements that she forgets
things, has difficulty sleeping because of pain, and does not go anywhere on a
regular basis. The AU summarized Lupold’s complaints thus: “she alleged her
pain is the worst pain she has ever had, that it worsens with age, is head to
toe, occurs all the time and never goes away.” R 34 (citing Exhibit 4E).
After a review of Lupold’s statements, however, the AU compared them
to the medical evidence and other objective evidence. He concluded that Lupold
was not as limited as she claimed to be. R 34.
particularly noted the
As for non-medical evidence, the AU
inconsistency with Lupold’s acknowledgement that she cares for pets, cleans,
cooks for a grandchild, prepares meals on a daily basis, and does light cleaning
and laundry. Despite saying she could only walk for five minutes, she
reportedly shops for groceries and despite alleging she could only sit for fifteen
minutes, she reportedly drives. R 34 (citing Exhibit 4E). Lupold’s husband
12

reported that Lupold cooks, cleans, uses the computer, watches television,
washes dishes, and takes care of the house. R 34 (citing Exhibit 5E). The AU
also noted more general inconsistencies in information Lupold provided, which
he noted may “suggest that the information provided by the claimant generally
may not be entirely reliable”. R 35.
As for medical evidence, I incorporate the summary at pp. 5-7, above, as
well as the discussion of Contention 1 at pp. 8-11, and do not repeat it here.
Accordingly, the AU had a basis for finding an inconsistency between
the objective evidence and Lupold’s allegations concerning the intensity,
persistence, and limiting effects of the symptoms alleged. That weighing of
Lupold’s credibility was not erroneous; it did not run afoul of the standards
governing the AU’s review or this Court’s standard of review.
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 v.
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.
Here, the AU acknowledged and followed the mandatory two-step
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 Lupold’s ability to do basic work activities. R 34.
The AU concluded that Lupold’s impairments could reasonably be
expected to cause the alleged symptoms. However, the objective medical
evidence indicated that Lupold was not as limited as he claimed to be. R 34. He
also stated a basis for his conclusion that Lupold’s subjective complaints were
13

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 AL concludes that
J
6
testimony is not credible, the AU must indicate the basis for that conclusion
in his decision); see also Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir.
1992) (citing Green v. Schweiker, 749 F.2d 1066, 1069—70 (3d Cir. 1984); 42
U.S.C. § 423(d)(3); 20 CFR § 404.1528, 404.1529) (reasoning that a claimant
did not “meet the statutory definition of disability” where he “failed to submit
objective medical tests to show that his medical condition and residual
capabilities satisfy the Social Security regulations” because “[hjis subjective
complaints must be substantiated by medical evidence”).
Plaintiff’s argument here that the AU either ignored or mischaracterized
significant portions of her testimony is not well-founded. While it is certainly
true that the AU did not repeat every word of Lupold’s allegations of pain and
limitation, his summary reveals that he was thoroughly familiar with them.
That he did not credit all of Lupold’s statements is not evidence that he
“ignored” them. It is true that the AU cited primarily, not to Lupold’s hearing
testimony, but to her Disability Report, Function Reports, and the Third Party
Function Report completed by her husband (Exhibits 2E, 4E, SE, 7E). This is a
quibble; Lupold does not cite any testimony that conflicts with or meaningfully
supplements her statements in the reports in regard to her pain.
Ultimately, the AU weighed the evidence before him, including her daily
activities, treatment, medications taken, and Plaintiff’s subjective allegations,
and determined that Plaintiff’s allegations were not credible to the extent that
they conflicted with the entirety of the objective evidence. Such balancing of
evidence is well within the AU’s discretion and competence. Disagreement with
the balance he struck is not a basis for remand.
Contention 4: The AU Did Not Give Enough Weight to the Opinion
of a Treating Physician, Dr. Anderson

In July 2011, Dr. Anderson, Lupold’s treating physician, completed a
Fibromyalgia RFC Questionnaire. Dr. Anderson noted bilateral spinal, chest,
shoulder, arm, hand/finger, hip, leg, and knee/ankle/feet pain. Dr. Anderson
also noted that Lupold’s pain would constantly interfere with her ability to
concentrate. He limited her to standing/walking for less than two hours in an
eight-hour workday and to sitting for four hours in the same period. Lupold, he
wrote, would need a sit/stand option on the job and would require numerous
breaks throughout the day. Dr. Anderson also noted aggravating factors

14

precipitating
pain,
such
as
weather
movement! overuse, and the cold. (Exhibit 1 2F).

changes,

stress,

fatigue,

The AU assigned “little weight” to Dr. Anderson’s Questionnaire because
he found it to be “inconsistent with the other evidence, including Dr.
Shanmugam’s observations, as well as other objective medical findings.” R 37.
For instance, while Dr. Shanmugam observed that Lupold had no aggravating
factors precipitating her pain, Dr. Anderson found many aggravating factors.
He found Dr. Anderson’s report conclusory and that it failed to explain “such
severe limitations” and noted that the course of treatment recommended by Dr.
Anderson to be inconsistent with what one would expect “if the claimant were
truly disabled.” R 37.
Plaintiff submits that Dr. Anderson’s report was consistent with both Dr.
Shanmugam’s report and the other evidence on record. She also contends that
the AU erroneously considered Dr. Anderson’s status as treating physician as
a factor weighing against granting weight to Dr. Anderson’s opinion. The AU,
as submitted by Lupold, rejected the opinion of Anderson based on his
speculation regarding the doctor’s motivations for offering a supportive opinion,
in contravention of the applicable regulations and case law. The Commissioner
counters that the ALT properly considered Dr. Anderson’s opinion and that it
was in the AU’s discretion to weigh any conflicting medical evidence.
A treating physician’s opinion is entitled to controlling weight when it is
“well-supported by medically acceptable clinical and laboratory diagnostic
techniques.” SSR 96-2p. Moreover, the treating physician’s opinion will not be
given controlling weight “unless it also is ‘not inconsistent’ with the other
substantial evidence in the case record.” Id.; see also Morales v. Apfel, 225 F.3d
310, 317 (3d Cir. 2000) (citations and internal quotations omitted) (reasoning
that an “ALT may not make speculative inferences from medical reports’ and
may reject a treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own credibility
judgments, speculation or lay opinion”). And of course, even if the treating
physician’s opinion is not accorded controlling weight, the ALT must weight it,
like any other medical opinion, in light of the factors set forth in 20 C.F.R.
Section 404.1527(d).
The ALT’s finding here is supported by substantial evidence. The ALT
supported his rationale for giving less weight to Dr. Anderson’s opinion, i.e.,

15

that it “departs substantially from the rest of the evidence of record.” The AU
1
did not disregard the diagnosis of fibromyalgia, which accorded with other
evidence, but did dispute Dr. Anderson’s description of the severity of the
limitations, based on medical and other objective evidence.
That other medical evidence, while confirming the fibromyalgia diagnosis
(which the AU found to be an impairment), did not support the severity
of
limitations as found by Dr. Anderson. Dr. Shanmugam’s physical examination
of Lupold revealed a normal spine and full range of motion of her bilateral
shoulders, elbows, hands, hips, and knees. Dr. Shanmugam also did not find
any aggravating factors. Exhibit 5F. Dr. Anderson found several aggravating
factors and found that Lupold’s ability to manipulate her neck, hands, fingers
,
and arms were significantly impaired. R 252. The AU also gave great weight to
Dr. Bonita’s RFC assessment. Dr. Bonita diagnosed Lupold with fibromyalgia
and obesity, but opined that she could do a full range of work at the mediu
m
exertional level and that she could sit or stand/walk for about six hours in
an
eight-hour workday. Exhibit 6F. The AU also assigned great weight to Dr.
Barrett’s assessment of Lupold. Dr. Barrett found that she was moderately
limited in activities of daily living, in social functioning, and in maintaining
The AU also made an observation about possible sources of unreliability in
physicians’ opinions:
1

The possibility always exists that a doctor may express an opinion in an
effort to assist a patient with whom he or she sympathizes for one reason
or another. Another reality that should be mentioned is that patients can
be quite insistent and demanding in seeking supportive notes or reports
from their physicians, who might provide such a note in order to satisfy
their patients’ requests and avoid unnecessary doctor/patient tension.
While it is difficult to confirm the presence of such motives, they are
more likely in situations where the opinion in question departs
substantially from the rest of the evidence of record, as in the current
case.
R 37. I do not think that this is indicative of a legal error, i.e., giving less weight
to an
opinion because it comes from a treating physician. The remark is offered
as a
generality, by way of explaining why a treating physician may give an opinio
n that
turns out to be unworthy of deference. The ALT explicitly acknowledges that he
is not
relying on specific evidence that such sympathy or importuning occurred in this
case.
The rationale that the AU does state for (to some degree) discounting the treatin
g
physician’s opinion is that it “departs substantially from the rest of the eviden
ce of
record, as in the current case.” That is a permissible basis.

16

concentration, persistence, or pace. Dr. Barrett concluded that her physical
issues seemed primary and that she was capable of simple tasks. Moreover, Dr.
Keiser’s physical exam revealed normal mobility and full range of motion
,
Exhibit iF, and a September 2008 hip x-ray showed no acute osseou
s
abnormality, Exhibits 2F, 3F.
In short, there is substantial evidence to support the AU’s conclusion
that Dr. Anderson’s opinion as to the severity of Lupold’s limitations was
an
outlier, in conflict with the other medical evidence. Absent any legal error, it
is
the AU’s responsibility to weigh all evidence and resolve any material conflicts
in the evidence. Finding that the AU’s decision was supported by substantial
evidence, I conclude that remand is unwarranted.
II.

CONCLUSION

Lupold’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
Lupold’s DIB application is therefore AFFIRMED.
An Order will be entered in accordance with this Opinion.

Hon. Kevin McNulty
United States District Judge

Dated: July 31, 2014

17