GIVENS v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge William J. Martini on 8/4/14. (gh, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 13-cv-5900 (WJM)
COMMISSIONER OF SOCIAL SECURITY,
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Charles Givens, Jr. 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 his application for Supplemental Security Income (“SSI”)
Benefits. For the reasons that follow, the Commissioner’s decision is AFFIRMED.
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 impainnent 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, education, work experience and RFC. 20 C.F.R. § 404.1520(g),
416.920(g); see Poulos v. Comm ‘r ofSoc. Sec., 474 F.3d 88,91-92 (3d Cir. 2007) (citations
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 Administrative Law Judge (“AU”) 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 AU’s factual findings, this Court must abide by the AU’s
determinations. See id. (citing 42 U.S.C. § 405(g)).
Plaintiff Charles Givens, Jr. is a fifty-nine year-old male who is currently
unemployed. According to Plaintiff’s own testimony, he previously worked off and on as
a forklift operator. Tr. 13. Plaintiff’s last work stint lasted one year. In 2002, Plaintiff
worked in a warehouse for Wal-Mart in the shipping and receiving department. Id.
Plaintiff was shot by his father at age 14. Tr. 13. Plaintiff had a heroin addiction
and has used marijuana. He has gone to rehab and detox programs. Id. Plaintiff has been
incarcerated up to seven times, and the last incarceration was in 2008 for a parole violation.
Id. Plaintiffs most severe conviction was in 2007 for drug possession. Id.
Plaintiff filed an application for SST benefits on November 19, 2010. The
application alleged that Plaintiff suffered from medical impairments, including chronic
obstructive pulmonary disease (COPD), hepatitis C, asthma, bronchitis, and depression.
Plaintiff alleged that these medical impairments caused him to have symptoms such as
shortness of breath, impaired judgment, and suicidal thoughts. The suicidal thoughts led
Plaintiff to attempt suicide three times; his last attempt was in 2010. He has also lost a
significant amount of weight in the past few years.
Plaintiffs claim was denied initially and on reconsideration. Administrative Law
Judge Richard L. DeSteno affirmed the denial after a hearing on May 3, 2012. A request
for review was denied on August 2, 2013. Plaintiff now appeals to the District Court.
Summary of the Record
The record includes medical records and evaluations from treating physicians,
psychologists, psychiatrists, and state examiners. It also includes Plaintiff’s testimony
about his condition and daily activities.
According to Plaintiffs testimony, Plaintiff is able to cook four times per week,
clean twice per week, dress himself daily, attend counseling sessions three times per week,
and travel to the library via public transportation by himself. Tr. 13, 231.
Plaintiff was treated at St. John’s Episcopal Hospital, Rockaway Mental Health
Services, Rockland Psychiatric Center, and Nyack Hospital. For weekly counseling
sessions, Plaintiff met with Licensed Medical Social Worker (“LMSW”) Patricia Bowles.
Tr. 323. Plaintiff saw treating psychiatrist Dr. Gurevich monthly. Dr. Gurevich prescribed
Plaintiff anti-depression medication. Plaintiff also met with psychologist Dr. Volberg,
state psychiatrists Dr. Shliselberg and Dr. Arlene Broska, internist Dr. Maria Grohovski,
and internal medicine examiner Dr. Amaju Manyam. Tr. 220-21; 229-48.
Dr. Volberg completed a psychological assessment and stated that Plaintiff appeared
underweight, but was able to maintain an active lifestyle. Tr. 334. On that same day,
September 27, 2010, Plaintiff underwent a physical examination in which the examiner
noted that Plaintiff was experiencing no residual symptoms from COPD, asthma, or
hepatitis C. Tr. 225.
Dr. Shliselberg filled out Plaintiffs Mental Residual Functional Capacity
Assessment (“MRFC”), a test that is then used to determine whether the claimant is capable
of performing past or other work despite a mental impairment. Tr. 245. Dr. Shliselberg
also filled out Plaintiffs Psychiatric Review Technique (“PRT”), which lists the claimant’s
functional limitations based on medical dispositions. Tr. 241. In the PRT, Dr. Shliselberg
found that Plaintiff had no restriction on activities of daily living, no difficulties
maintaining social functioning, and no difficulties in maintaining concentration,
persistence, or pace. Tr. 244.
State internist Dr. Grohovski completed a Treating Physician’s Weilness Plan and
noted that Plaintiffs diagnosis included asthma, COPD, hepatitis C, and depression. Tr.
220. Dr. Grohovski concluded that Plaintiffs depression was stable and his asthma and
COPD were well-controlled on medication, but that he would be unable to work for the
following twelve months. Tr. 221.
The AU’s Decision
After careful consideration, Administrative Law Judge Richard DeSteno made the
following findings. At step one, the AU determined that Plaintiff has not engaged in
substantial gainful activity since November 19, 2010, the date of application. Tr. 12. The
AU then found that Plaintiff has had medically determinable impairments involving
hepatitis C, asthma, chronic obstructive pulmonary disease, and depression. Id.
At step two, the AU found that Plaintiff does not have an impairment or
combination of impairments that has significantly limited the ability to perform basic workrelated activities for 12 consecutive months; therefore, the AU found that Plaintiff does
not have a severe impairment and is not disabled. Id. In making this finding, AU DeSteno
noted, “The record established little more than the fact that the [Plaintiff] has been
diagnosed with [the above impainnents]. It did not establish that these conditions are
severe.” Tr. 17.
Plaintiff argues that 1) the AU erred in determining that his impairment or multiple
impairments were not “severe” under step two of the five-step sequential evaluation
process, 2) the AU applied a standard that was too harsh for a step two evaluation, 3) the
AU improperly rejected every medical opinion, and 4) some of Plaintiff’s individual
impairments on their own should have met the standard for a “severe” impairment. The
Step Two Standard: Whether Impairment or Combined Impairments
At step two, the AU determines whether the claimant has any “severe”
impairments. Any impairment or combination of impairments is severe if it significantly
affects the claimant’s ability to do basic work activities. 20 C.F.R. §4O4.l520(c),
416.920(c). The Plaintiff has the burden to prove that the impairment is “severe.” McCrea
v. Commissioner, 370 F.3d 357, 360 (3d Cir. 2004).
Plaintiff argues that the threshold to prove a “severe” impairment is low. He quotes
McCrea v. Commissioner, stating, “step two is to be rarely utilized as a basis for the denial
of benefits.” 370 F.3d at 361. Plaintiff also cites Newell v. Commissioner as precedent
that step two is a “de minimus screening device to dispose of groundless claims.” Newell
v. Commissioner, 347 F.3d 541, 546 (3d Cir. 2003).
Although the threshold in step two may be low, the standard of review remains the
same. “The Commissioner’s denial at step two, like one made at any other step in the
sequential analysis is to be upheld if supported by substantial evidence.” McCrea, 370
F.3d at 360. Although the Commissioner’s determination to deny a claimant’s request at
step two should be reviewed with close scrutiny, it still must be affirmed if supported by
substantial evidence. Id. at 361.
In addition, the factors that caused the Court to remand the case in Newell do not
exist in the present case. in Newell, the AU made an incorrect assumption that the
applicant’s failure to see a doctor meant that the applicant was not in pain and therefore
not disabled. Newell, 347 F.3d at 547. Newell stands for the proposition that the lack of
contemporaneous objective medical evidence is not necessarily determinative as to the
onset date of an impairment, and that an AU errs by requiring such evidence to prove the
onset date. Zaccaria v. Commissioner, 267 Fed.Appx. 159, 163 (3d Cir. 2008). Newell
did not absolve the claimant from the burden to establish a severe impairment at step two.
Here, there was no incorrect assumption or lack of contemporaneous medical
evidence. Plaintiff received medical attention from treating doctors and state examiners,
all of who filled out reports for the AU to review. The AU in this case did not make an
incorrect assumption, but rather made a reasoned decision based on those medical reports.
See Jakubowski v. Commissioner, 215 Fed.Appx. 104 (3d Cir. 2007) (stating that an AU’s
decision on the severity of the impairments is supported by substantial evidence when the
AU cites to specific medical records in his decision).
No one contends that Plaintiff is not suffering from several different impairments.
But, at step two, the Plaintiff has the burden to prove that these impairments have or will
limit his ability to perform basic work activities. McCrea, 370 F.3d at 360. Substantial
evidence in the medical record supports AU DeSteno’s finding that Plaintiff did not meet
the burden of proving that his impainnent was “severe.” The AU cited ample medical
support in his conclusion that Plaintiff’s impairments did not “significantly affect
[Plaintiffj’s ability to do basic work activities.”
Rejection of Medical Opinions
Plaintiff contends that the AU improperly rejected every medical opinion. P1. Br.
9. The relevant factors considered in determining what weight to afford a medical opinion
include the length, nature and extent of the treatment relationship (if any), relevant
evidence which supports the opinion, the consistency of the opinion with the record as a
whole, and the specialization, if any, of the opinion’s source. 20 C.F.R. § 416.927(c);
Social Security Rulings (SSRs) O6-O3p, 2006 WL 2329939, 96-2p, 1996 WL 374188. A
treating physician’s opinion is due controlling weight only if that opinion is well supported
by medically acceptable clinical and laboratory techniques and not inconsistent with
substantial evidence of record. 20 C.F.R. § 416.927(c)(2); SSR 96-2p, 1996 WL 374188.
When a treating source’s opinion is not afforded controlling weight, the same factors
discussed above are considered in determining what weight to afford that opinion. 20
C.F.R. §416.927(c)(2)-(6); SSR 96-2p, 1996 WL 374188.
With respect to Dr. Grohovski’s opinion that Plaintiff was unable to work, the AU
found that the doctor’s own treatment records did not support the opinion nor was it
consistent with other substantial evidence of record. P1. Br. 9-10; Tr. 19. See 20 C.F.R.
416.927(c)(3)-(4); see also Fluminer V. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (stating
that AU may reject a treating physician’s opinion if there is contradictory medical
evidence). Indeed, in the very same August 18, 2010 report where Dr. Grohovski made
this conclusion, she noted that Plaintiff’s breathing issues were well-controlled with
medication, and his depression was stable. Tr. 19, 220-21.
Furthermore, Dr. Grohovski’s opinion that Plaintiff was unable to work is not
entitled to any weight, as the determination or decision that a claimant is disabled rests
solely with the Commissioner. See SSR 96-5p, 1996 WL 374183 (“Treating source
opinions on issues that are reserved to the Commissioner are never entitled to controlling
weight or special significance. Giving controlling weight to such opinions would, in effect,
confer upon the treating source the authority to make the determination or decision about
whether an individual is under a disability, and thus would be an abdication of the
Commissioner’s statutory responsibility to determine whether an individual is disabled”);
20 C.F.R. §4l6.927(d)(1).
The AU assigned significant weight to the opinion of consultative examiner, Dr.
Manyam, finding it consistent with the substantial evidence of record and supported by the
doctor’s own findings following a personal examination of Plaintiff. See P1. Br. 10; Tr. 19,
229-33. Dr. Manyam found that Plaintiff had no physical limitations, other than a need to
avoid smoke, dust, pollen, and other respiratory irritants due to a history of asthma. Tr. 15,
233. However, as the AU noted, Plaintiff testified that he continued to smoke cigarettes
until two weeks before the May 3, 2012 hearing. Tr. 32. This is despite the fact that
Plaintiff had informed Dr. Manyam that he had quit smoking in September 2011. Tr. 229.
As such, the AU found that Plaintiff’s continued ability and willingness to smoke
cigarettes belied Dr. Manyam’s recommendation that the Plaintiff avoid respiratory
irritants. Tr. 18.
The AU also assigned significant weight to the opinion of the psychiatric
consultative examiner, Dr. Broska, finding it consistent with the substantial evidence of
record and supported by the doctor’s own findings upon a personal examination of
Plaintiff. See P1. Br. 10; Tr. 19. 234-3 8. As the AU noted, Dr. Broska’s findings did not
indicate a severe impairment. Plaintiff could follow and understand simple directions and
instructions, perform simple tasks independently, maintain concentration and attention,
maintain a therapeutic schedule, perform complex tasks independently, and his memory
was within normal limits. Tr. 16, 237. Indeed, the only functional limitation that Dr.
Broska noted was that Plaintiff “may not make appropriate decisions [andj may have
difficulty at times relating adequately to others and appropriately dealing with stress.” Tr.
237 (emphasis added). Such a qualified statement noting the possibility of certain
occasional limitations does not support a finding that Plaintiff has a significant limitation
in his ability to do basic work activities.
The AU assigned no weight to the “moderate limitations” found by the State agency
consultant, Dr. Shliselberg, in the MRFC assessment. See P1. Br. 10; Tr. 19, 246. This
determination is in accordance with agency rules and regulations. As the AU noted, a
State agency MRFC assessment contains information relevant to the RFC determination,
which the AU undertakes after step three, but before step four of the sequential analysis.
See Smith v. Astrue, 631 F.3d 632, 636-37 (3d Cir. 2011) (holding that the RFC assessment
is set forth in narrative section of mental RFC assessment); see also 20 C.F.R. §416.920(e),
416.945(a). As the AU decided this matter at step two, there was no need to reference this
Additionally, the findings contained in the State agency’s MRFC assessment related
no severe impairments. Plaintiff’s depression was stable; he had no thought disorder; his
mood was neutral; his attention, concentration, and memory were intact; his activities of
daily living and social skills were intact; and he was able to remember, understand, and
carry out tasks. Tr. 19, 247. Moreover, in the PRT, the document which specifically relates
to step two and step three findings, Dr. Shliselberg found that Plaintiff has no functional
limitations in the broad categories of activities of daily living, social functioning, and
concentration, persistence, or pace. Tr. 244.
Plaintiff argues that his weight (130 pounds and 6’2”, as measured by Dr. Manyam)
constitutes a severe impairment. P1. Br. 16; Tr. 231. However, Plaintiff fails to point out,
nor does the evidence of record show, how this fact significantly limits his physical or
mental ability to do basic work activities. As noted by the AU, Dr. Manyam specifically
found that Plaintiff was not cachectic. Tr. 17. Furthermore, on September 27, 2010,
LMSW Volberg noted that Plaintiff “appeared underweight,” but was “able to maintain an
active lifestyle.” Tr. 17, 334. In his brief, Plaintiff asserts that his hepatitis C caused the
weight loss. P1. Br. 16. However, Plaintiff cites to no evidentiary support for this claim,
and in his testimony, attributed any weight loss to a diminished appetite stemming from
his depression. Tr. 39. Plaintiff also informed Dr. Manyam that his appetite was returning
and that he was no longer losing weight. Tr. 230.
Plaintiff further asserts that his hepatitis C is a severe impairment. P1. Br. 16-17.
However, Plaintiff fails to provide evidence that the virus has resulted in any symptoms
that limit his ability to perform basic work activities. The hepatitis C virus, without
evidence of limitations, is not dispositive. See Taliaferro v. Commissioner, 2013 WL
5354242, at *5 (D.N.J. September 24, 2013) (affirming AU’s decision that hepatitis C,
even with slightly increased liver enzyme levels, was not a severe impairment).
Plaintiff also claims that his right atrial abnormality is a severe impairment and cites
to EKG results on July 11, 2010 and February 2, 2011 as evidence of the impairment’s
severity. P1. Br. 17; Tr. 219, 292. However, he again fails to explain how such evidence
translates to a finding that Plaintiff is significantly limited in his physical or mental ability
to do basic work activities.
Regarding any allegation that Plaintiffs depression constitutes a severe impairment,
see P1. Br. 17, mental health treatment notes from Catholic Charities starting in October
2010 consistently show mental stability. Tr. 17. Plaintiff routinely presented with a
euthymic mood and appropriate affect. Tr. 17, 357, 360-68, 370, 373, 374, 379, 382.
Furthermore, following his March 4, 2011 appointment with LMSW Bowles, Plaintiff
stopped seeking mental health treatment at Catholic Charities. Tr. 17, 3 54-56.
With respect to Plaintiff’s respiratory difficulties, the record establishes that
Plaintiff experienced no significant asthma-related complications or hospitalizations
fllowing his SSI application, even in spite of the fact that he continued to smoke cigarettes.
The only relevant piece of evidence is the progress note from a March 1, 2011 follow-up
visit to St. John’s Episcopal Hospital where Plaintiff complained of coughing and shortness
of breath, but denied chest pains. Tr. 17, 277. This report also noted that Plaintiff has
never been intubated or used oxygen at home. Id. Again, despite leaving the record open
for additional documents, Plaintiff submitted no documents evidencing any significant
complications or symptoms related to his respiratory difficulties occurring since his SSI
Plaintiff also told Dr. Manyam that his asthma only acted up “now and then.” Tr.
17. An August 3, 2010 treatment note from St. John’s Episcopal Hospital stated that
Plaintiff’s COPD was controlled. Tr. 14, 269. A physical examination on September 27,
2010 merely showed that Plaintiff was experiencing symptoms associated with hay fever,
and exhibited no residual symptoms from COPD, asthma, or hepatitis C. Tr. 15, 225.
According to his own statements, Plaintiff is able to cook four times per week, clean
twice per week, dress himself daily, attend counseling sessions three times per week, and
travel to the library via public transportation by himself. Tr. 231. These statements
undermine Plaintiff’s contentions by demonstrating that he is able to sustain daily life on
Since the main function of this Court is to ensure that the AU’s decision was
supported by substantial evidence, the analysis can stop here. AU DeSteno made a
decision based on the evidence that Plaintiff’s impairments were not “severe.” This Court
is not to apply a more stringent standard than that of “substantial evidence,” nor is it to
become the fact-finder. McCrea, 370 F.3d at 360-36 1. Both the Plaintiff’s own statements
and the statements from many of the doctors provide this Court with “more than a mere
scintilla” of evidence to support the AU’s decision. Jones, 364 F.3d at 503.
For the foregoing reasons, the Commissioner’s decision is AFFIR11ED.
appropriate order follows.
J. MARTINI, U.S.D.J.
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