RODRIGUEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge William J. Martini on 7/31/14. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:13-04006 (WJM)

CARMEN RODRIGUEZ,
Plaintiff,

OPINION
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Carmen Rodriguez brings this action pursuant to 42 U.S.C. § 405(g) and
1383(c)(3), seeking review of a final determination by the Commissioner of Social Security
(the “Commissioner”) denying her application for a period of disability, Disability
Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) Benefits. 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 numbers in the national economy in light of the claimant’s age,
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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 May 11, 2010, Plaintiff filed applications for disability, DIB, and SSI. In these
applications, Plaintiff alleged disability beginning April 1, 2008, due to depression, high
blood pressure, and diabetes. These claims were denied initially on September 30, 2010
and upon reconsideration on March 14, 2011. Plaintiff subsequently filed a written request
for hearing. The Plaintiff appeared and testified at a hearing held on February 7, 2012
before Administrative Law Judge Norman R. Zamboni (the “ALJ”). On February 22, 2012,
the ALJ issued a decision denying Plaintiff’s application on grounds that Plaintiff does not
have a listing-level impairment and that Plaintiff’s RFC is compatible with her past work
as a clothing price tagger.
Plaintiff sought Appeals Council review, and on May 7, 2013, the Appeals Council
concluded that there were no grounds for review. Plaintiff now brings the instant appeal,
challenging the ALJ’s determination that she was not disabled beginning April 1, 2008.
III.

DISCUSSION

Plaintiff challenges the ALJ’s determination that she was “not disabled” on several
grounds. Specifically, Plaintiff argues that the ALJ erred in finding that: (1) Plaintiff’s
impairments did not constitute a listing-level impairment, (2) Plaintiff retained the RFC to
perform her past relevant work, and (3) a vocational expert was not necessary to assess
Plaintiff’s claims. Each of these challenges will be addressed in turn.
A. The ALJ correctly determined that Plaintiff’s conditions were not a
listing-level impairment.
Plaintiff first argues that the ALJ failed to properly “compare the combined effect
of all the [P]laintiff’s impairments with one or more of the Commissioner’s listings.” (Pl’s
Br. at 10-11). Plaintiff contends that her “dual psychiatric impairments, major depression
and adjustment disorder, [were] never combined for an analysis of medical equivalence.”
(Pl’s Br. at 10). Specifically, Plaintiff believes that “a person whose activities of daily
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living mandate the accompaniment of a family member merely to leave the home must
presuppose a ‘marked’ restriction.” (Pl’s Br. at 15).
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.
Plaintiff’s assertion that the ALJ did not consider her impairments in combination
is incorrect. The ALJ found that Plaintiff’s impairments, considered singly and in
combination do not meet the requirements of Listing 12.04. (Tr. at 18). “[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, No. 10-1912, 2011 WL 1560865,
at *12 (D.N.J. Apr. 25, 2011) (quoting Morrison v. Comm’r of Soc. Sec., 268 F. 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. See Burnett v. Comm’r of Soc. Sec., 220
F.3d 112, 120 (3d Cir. 2000). 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 was comprehensive enough for meaningful review. The
ALJ considered the medical evidence regarding Plaintiff’s daily living activities, social
functioning behaviors, and ability to concentrate, and determined that she suffers moderate
difficulties in each. However, the ALJ determined that none of these difficulties,
considered singly and in combination, meet or medically equal the criteria of listing 12.04.
(Tr. at 18). This determination is also consistent with the “mild” characterization of
Plaintiff’s depression by her own doctors. (Tr. at 329, 330, 336, 355). The ALJ also noted
that Plaintiff experienced no episodes of decompensation. (Tr. at 18). Therefore, given
that Plaintiff’s mental impairments do not cause at least two “marked” limitations or one
“marked” limitation and “repeated” episodes of decompensation, the ALJ properly
determined that the “Paragraph B” criteria were not satisfied.
Finally, Plaintiff challenges the ALJ’s decision on the grounds that he failed to
discuss the “A” or “C” criteria of Section 12.04. (Pl’s Br. at 12-13). In order to meet the
required level of severity, Plaintiff must satisfy both the “A” and “B” criteria. Because the
ALJ decided that Plaintiff’s impairments do not cause two marked restrictions under
Criteria “B,” Plaintiff could not meet the severity of Listing 12.04, regardless of whether
she satisfied the “A” criteria. See e.g., Nace v. Astrue, No. 10-421, 2011 WL 4055205, at
*3 (W.D. Pa. 2011). The ALJ therefore did not need to discuss the “A” criteria. And the
ALJ correctly determined, based on Dr. Joan Joynson’s psychiatric review, that the
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evidence failed to establish the presence of the “Paragraph C” criteria. (Tr. at 18).
Specifically, Dr. Joynson determined that because Plaintiff failed to demonstrate (1)
repeated episodes of decompensation, (2) residual disease process, or (3) a history of an
inability to function outside a highly supportive living arrangement.” There was thus,
insufficient evidence to establish the presence of “C” criteria. (Id.). Accordingly, Plaintiff
failed to meet her burden of presenting evidence demonstrating a listing-level impairment,
and the substantial evidence supports the ALJ’s findings at step three.
B. The ALJ correctly determined that Plaintiff retained the RFC to
perform her past work.
Plaintiff makes two primary arguments at step four. First, Plaintiff alleges that the
ALJ failed to properly adequately consider her ailments in making his RFC assessment.
Second, Plaintiff argues that the ALJ failed to properly evaluate the requirements of her
past work. The Court disagrees.
1. The substantial
determination.

evidence

supports

the

ALJ’s

RFC

At step four, an ALJ must determine whether the claimant has the RFC to perform
the requirements of her past relevant work. 20 C.F.R. § 404.1520(f). An individual’s RFC
is her ability to do physical and mental work activities on a sustained basis despite
limitations from her impairments. 20 C.F.R. § 404.1545. In making this finding, the ALJ
must consider all of the claimant’s impairments, including non-severe impairments. 20
C.F.R. §§ 404.1520(e), 404.1545.
Here, the ALJ found that there was considerable evidence demonstrating that
Plaintiff did not have any significant non-exertional limitations and retained the RFC for
simple, repetitive work tasks. In making his decision, the ALJ weighed the evidence
provided by the state consultants against the testimony provided by Plaintiff. The ALJ
based his decision on the fact that the alleged intensity of Plaintiff’s symptoms was
inconsistent with the medical evidence. (Tr. at 20). Substantial evidence supports the
ALJ’s RFC assessment. First, Dr. Joynson reviewed Plaintiff’s record with the psychiatric
consultative examiner and concluded that her behavior was inconsistent with the medical
evidence from Raritan Bay Medical Center. (Tr. at 292). Despite the “major depression”
diagnosis made at Raritan Bay, Dr. Joynson determined that the psychiatric evaluation
indicated mild depression, which is consistent with the body of evidence at Raritan Bay.
(Tr. at 206, 292). Second, Dr. Joynson opined that Plaintiff had the RFC to sustain
adequate concentration, persistence and pace for simple work, which Dr. Michael
D’Adamo affirmed. (Tr. at 292, 343). Finally, state consultant Dr. Mark Jacknin,
concluded that Plaintiff’s physical conditions, specifically hypertension and diabetes, were
not severe ailments. (Tr. at 270).
Plaintiff argues that the limitations found to be “moderate” as part of the psychiatric
review technique should have been part of the RFC finding. Plaintiff is incorrect. The
ALJ is not required to assess the psychiatric review technique findings in his RFC analysis.
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See Norwood v. Astrue, No. 07-4658, 2008 WL 4837489, at *18 (D.N.J. Nov. 3, 2008)
(discussing that the psychiatric review is not relevant to the RFC determination). Plaintiff’s
assertion that the ALJ erred by failing to consider the fact that she was also suffering from
osteoporosis, hypertension, and diabetes when making his decision is also incorrect. (Pl’s
Br. at 18). First, Plaintiff did not list osteoporosis as a reason for her inability to work and
failed to provide any medical evidence of physical limitations resulting from it. 1 (Tr. at
150); see also Capoferri v. Harris, 501 F. Supp. 32, 36 (E.D. Pa. 1989), aff’d, 649 F.2d
858 (3d Cir. 1981) (“The presence of a disease does not establish disability…the applicant
must also present evidence that his impairment rendered him unable to engage in any
substantial gainful employment.”). Second, Plaintiff does not present medical evidence
that establishes her diabetes and hypertension as being debilitating conditions. (Tr. at 297).
Additionally, Dr. Jacknin determined that Plaintiff’s alleged impairment of hypertension
and diabetes, with no evidence of organ damage, was not severe. (Tr. at 270). Finally, the
ALJ determined that Plaintiff’s allegation of medical disability is undermined by the fact
that, at the hearing, Plaintiff testified that she stopped working because she was laid off
from her job. 2 (Tr. at 21).
2. The ALJ correctly determined that Plaintiff’s RFC was
consistent with the requirements of her past work.
Plaintiff next argues that the ALJ failed to properly evaluate the requirements of her
past work. After determining Plaintiff’s RFC, the ALJ must decide whether Plaintiff
retains the RFC to perform her past work. There are three possible tests for determining
whether a claimant retains the capacity to perform his or her past relevant work: (1)
“whether the claimant retains the capacity to perform a past relevant job based on a broad
generic, occupational classification of that job,” (2) “whether the claimant retains the
capacity to perform the particular functional demands and job duties particular to an
individual job as he or she actually performs it,” and (3) “whether the claimant retains the
capacity to perform the functional demands and job duties of the job ordinarily required by
employers throughout the national economy.” Rivera v. Barnhart, 239 F. Supp. 2d 413,
419-20 (D. Del. 2002) (citing SSR 82-61).
Here, the ALJ utilized the second test in making his determination that Plaintiff
could perform her past relevant work as a clothing price tagger. (Tr. at 22). Specifically,
the ALJ relied on Plaintiff’s own testimony about the functional demands of her past work.
(Id.) Plaintiff testified that her past work required her to stand eight hours and lift boxes
weighing at most twenty pounds, but more frequently weighing less than ten pounds. (Tr.
at 152, 157-58). Plaintiff was not required to type, handle small objects, or use machines
or equipment. (Tr. at 152). Plaintiff’s description of her job is consistent with the ALJ’s
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Plaintiff lists depression, high blood pressure, and diabetes as the medical conditions that limit her
ability to work. (Tr. at 150).
2
This fact tends to indicate the claimant’s medically documented impairments are not the main reason for
her lack of work. The ALJ also noted she was extremely vague when describing her symptoms and her
activities of daily living, which also undermines the credibility of her allegation. (Tr. at 21).
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finding that Plaintiff could perform the full range of simple and unskilled work. Because
Plaintiff retained the capacity to perform her past relevant work as she actually performed
it, the ALJ correctly concluded that Plaintiff was not disabled. See SSR 82-61 (“Where the
evidence shows that a claimant retains the RFC to perform the functional demands and job
duties of a particular past relevant job as he or she actually performed it, the claimant
should be found ‘not disabled.’”).
C. The ALJ was not required to obtain vocational expert testimony.
Finally, Plaintiff argues that a vocational expert was necessary to determine whether
she could still perform her past work as a clothing price tagger at step four. This Court
disagrees. Because substantial evidence supports the ALJ’s decision that Plaintiff retained
the RFC to perform her past work, a vocational expert was not necessary. See Rivera, 239
F. Supp. 2d at 420 (holding that a vocational expert is not needed when there is sufficient
evidence supporting the ALJ’s conclusion that a claimant is able to perform past relevant
work). Furthermore, Plaintiff’s argument that a vocational expert should have been
obtained at step five is unavailing. Because the ALJ’s step four determination that Plaintiff
could return to her previous work is supported by substantial evidence, neither a step five
analysis, nor vocational expert at step five, were required. See e.g., id. at 420-21.
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: July 31, 2014

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