LAMERIO v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION. Signed by Judge William J. Martini on 12/16/14. (gh, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Docket No.: 13-cv-6928-WJMMF
JUAN LAMEIRO,
Plaintiff,
v.
OPINION
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Juan Lameiro 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 applications for Disability and Insurance Benefits
(“DIB”) and for Supplemental Security Income (“SSI”). Due to an error in the
formulation of Plaintiff’s residual functioning capacity, the Commissioner’s
determination is VACATED IN PART and REMANDED for further proceedings
consistent with this opinion.
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.”
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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, 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., 181 F.3d 429, 431 (3d Cir. 1999).
The factual findings of the Administrative Law Judge (“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, the court must abide by the ALJ’s determinations. See
id. (citing 42 U.S.C. § 405(g)).
II.
BACKGROUND
Plaintiff Juan Lameiro is a forty-five year-old male with a twelfth grade
education. Plaintiff previously worked as a school bus safety inspector and a driver’s
license inspector/exam technician. (Administrative Transcript (“Tr.”) 16, 37-38).
Plaintiff quit his position in 2007 and moved to Florida in search of a new job. (Tr.
27). After a year and a half of seeking employment, he returned to New Jersey,
where he continued looking for work without success. (Tr. 27). In September 2011,
he suffered a heart attack. (Tr. 27). He survived, but he was left with symptoms of
cardiovascular disease, namely, shortness of breath, leg soreness and cramping,
disrupted sleep, and fatigue.
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Plaintiff filed an application for DIB on December 7, 2011 and for SSI on
December 12, 2011. In both applications, Plaintiff alleged disability beginning on
the day of his heart attack, September 7, 2011. The Commissioner denied the claims
initially on March 13, 2012, and upon reconsideration on October 16, 2012. Plaintiff
appeared before an Administrative Law Judge (“ALJ”) at a hearing on November 9,
2012. On May 7, 2013, the ALJ affirmed denial of benefits. The Appeals Council
denied a request for review on October 25, 2013. Plaintiff now appeals to the District
Court.
A.
Summary of the Record
The record includes medical records and evaluations from treating physicians
and non-treating state examiners. It also includes Plaintiff’s written statements and
Plaintiff’s testimony.
Mr. Lameiro went to the emergency room for treatment of cardiac arrest in
September 2011. (Tr. 270). Mr. Lameiro was diagnosed with the following relevant
conditions: (1) inferior wall ST segment elevation myocardial infarction status post
drug-eluting stents to 90 percent right coronary artery, mid left anterior descending
and D1; (2) ischemic cardiomyopathy with left ventricular ejection fraction of 35%
consistent with chronic systolic heart failure; (3) cardiac arrest; (4) acute respiratory
failure. (Tr. 270). Mr. Lameiro was discharged from Englewood Hospital and
Medical Center on September 26, 2011. (Tr. 270).
Mr. Lameiro presented to physicians at Englewood Hospital and Medical
Center for follow-up visits several times between October 2011 and April 2014. (Tr.
304-21). During these visits, Mr. Lameiro complained consistently of waking up
multiple times during the night and of needing to rest after walking between one and
a half blocks and three blocks or after climbing two flights of stairs.
On December 20, 2011, one of Mr. Lameiro’s treating physicians, Dr.
Vitievsky, reported to the New Jersey Department of Labor that Plaintiff could not
lift and carry more than five pounds, could not stand or walk more than two hours
per day, was limited in his ability to push or pull, and could not travel due to high
blood pressure. (Tr. 330).
On January 24, 2012, Plaintiff’s cardiologist, Dr. Husain, reported a diagnosis
of “Class 4” coronary artery disease. (Tr. 340). A Class 4 cardiac patient
experiences symptoms even while resting and cannot perform any of the activities
of daily living beyond personal toilet or its equivalent without increased discomfort.
(Tr. 340). On April 25, 2012, Dr. Husain sent a report to the New Jersey Department
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of Labor diagnosing Plaintiff again with coronary artery disease and peripheral
vascular disease, including severe dyspnea, which is shortness of breath. (Tr. 359).
Plaintiff presented to Dr. Gottdiener on July 13, 2012 for a checkup. He
complained of bilateral calf pain. A vascular study found that mild peripheral
vascular disease was the cause. (Tr. 364). Dr. Gottdiener noted that Plaintiff could
not walk more than 3 blocks without becoming short of breath. (Tr. 364). At this
time, Dr. Gottdeiner noted that Plaintiff did not need a defibrillator implanted
because his ejection fraction was more than 35%. (Tr. 365).
On his initial application for DIB, a state examiner, Dr. Bousvaros,
determined that Plaintiff was not disabled and had the RFC for sedentary work. (Tr.
53-54). Dr. Bousvaros stated that Plaintiff’s medically determinable impairments
could reasonably be expected to produce his symptoms. (Tr. 52). He also stated
that Plaintiff’s statements about the intensity, persistence, and functionally limiting
effects of the symptoms were substantiated by objective medical evidence. (Tr. 52).
Nevertheless, he determined that Plaintiff could frequently lift or carry ten pounds,
could walk or stand up to two hours a day, and could sit up to six hours a day. (Tr.
52-53). In his analysis, Dr. Bousvaros stated that Plaintiff’s RFC prevented Plaintiff
from performing any of his previous relevant work. (Tr. 51). On reconsideration,
another state examiner, Dr. Briski, affirmed Dr. Bousvaros’s conclusion that
Plaintiff had the RFC for sedentary work. (Tr. 80).
On January 29, 2013, Dr. Husain filled out an evaluation for Plaintiff’s
attorney. In the evaluation, Dr. Husain stated that Plaintiff had coronary artery
disease with a stable prognosis. (Tr. 403). Dr. Hussain stated that the primary
symptom was dyspnea. (Tr. 403). He stated that he was able to completely eliminate
Plaintiff’s pain with medication without unacceptable side effects. (Tr. 405). He
stated that Plaintiff could only sit for three hours a day and could only stand or walk
two hours a day. (Tr. 405). He stated that Plaintiff could only occasionally lift
objects up to five pounds and could never carry any weight. (Tr. 406). He noted
that Plaintiff would need to frequently take unscheduled breaks of twenty minutes
and would be out sick more than three days per month. (Tr. 408). He stated that
Plaintiff’s symptoms would periodically interfere with his ability to concentrate.
(Tr. 407). He stated that Plaintiff was capable of handling low work stress but that
his symptoms would increase in a competitive environment. (Tr. 407-08).
Plaintiff reported that he could lift only five to fifteen pounds, had to walk
slowly, and had to frequently stop to catch his breath. (Tr. 188). He complained
that other activities caused him dizziness. (Tr. 188). He stated that during the day,
he did some very limited walking exercises but spent much of the day watching
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television. He stated that he could prepare very simple meals, clean once a week,
and do his laundry once a week. (Tr. 185).
At the hearing, the Plaintiff testified that during the day he exercises by
walking a block and a half, the most he can walk before experiencing shortness of
breath and leg cramps. (Tr. 31, 34). He testified that he wakes up two or three times
a night with palpitations, resulting in tiredness during the day. (Tr. 34). He testified
that he lays down two or three times a day for half an hour. (Tr. 35). He testified
that he could not carry groceries. (Tr. 33).
Plaintiff gave conflicting testimony regarding his search for work in 2012 and
2013. The ALJ and Plaintiff had the following colloquy:
ALJ:
What prevents you from being able to find a job today in 2013?
Plaintiff: I have tried to apply for different places, but I have trouble
walking, trouble breathing. I walk a block and a half and I
got to stop to rest. . . . I can’t even walk up a flight of stairs.
...
ALJ:
When was the last time you applied [for a job] . . . I’m asking
about jobs you applied for in 2012 and 2013. . . .
Plaintiff: It was a security job working with public service.
ALJ:
In 2013?
Plaintiff: This year? No.
ALJ:
2012?
Plaintiff: Yes.
ALJ:
In 2013, have you tried to get any jobs?
Plaintiff: No.
ALJ:
I’m asking if you have done anything in 2013?
Plaintiff: Yes, I tried with friends to try to get some sort of money.
ALJ:
If one of those places had hired you, would you have taken
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the job?
Plaintiff: I would have, yes.
(Tr. 29-30).
Plaintiff also had the following colloquy with his lawyer immediately upon
the end of the ALJ’s line of questioning about Plaintiff’s employment-seeking
activities:
Lawyer: Mr. Lameiro, if you had obtained a position as a security
guard, would you have been capable of performing that work
for five days a week for 7-8 hours a day?
Plaintiff: Not according to my doctor because of fatigue. I can’t stand
as long as I was able to. I can’t sit for as long as I was able
to. I can’t walk a block and a half. I have to rest every so
often.
Lawyer: You were looking for something part-time? In the years of
2012 and 2013, you testified that you were looking for some
sort of security with friends. Was that part-time that you were
looking for?
Plaintiff: It could be part-time or whatever they would have offered. I
would have tried to do anything.
Lawyer: Do you believe that during the period of 2012 and 2013, you
had the capacity to perform some sort of work or activity?
Plaintiff: Not the way I’m feeling with the problem with the breathing
and walking, legs getting cramped.
(Tr. 31).
B.
The ALJ’s Decision
Administrative Law Judge Hilton Miller made the following findings. At step
one, the ALJ determined that Plaintiff has not engaged in substantial gainful activity
since December 17, 2010, the alleged onset date. (Tr. 13). At step two, the ALJ
found that Plaintiff has had the following severe, medically determinable
impairments: coronary artery disease, high blood pressure, and peripheral artery
disease. (Tr. 13).
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At step three, the ALJ found that Plaintiff does not have an impairment or
combination of impairments that meets or equals the criteria of any impairment
found in the Listing of Impairments. (Tr. 13-14). At step four, the ALJ found that
the Plaintiff had the RFC to perform light work as defined in 20 C.F.R. 404.1567(b)1,
with the following qualifications:
[H]e can walk with normal breaks for a total of about 6
hours in an 8-hour workday; sit with normal breaks for a
total of about 6 hours in an 8-hour workday. He can
frequently climb ramps and stairs. He can never climb
ladders, ropes, or scaffolds. Work must not involve
hazardous or dangerous machinery or unprotected heights
and also takes into account non-exertional limitations
allowing the performance of routine tasks with some
moderately complex tasks that can be explained. Work
can incorporate only occasional changes in routine.
At step four, the ALJ found that Plaintiff could perform the past relevant
work of a vehicle safety inspector. At step five, the ALJ concluded that the Plaintiff
could also successfully adjust to other work available in sufficient numbers in the
national economy.
In reaching this opinion, the ALJ stated that he gave significant weight to the
opinions of the non-treating state examiners but little weight to the opinions of the
treating physicians. The ALJ found that Dr. Husain’s opinions about the extent of
Plaintiff’s limitations were inconsistent with Dr. Husain’s own statements that
Plaintiff’s pain has been completely relieved with medication and that Plaintiff was
capable of handling low work stress. The ALJ also thought that Plaintiff’s
statements regarding his willingness to work and his ability to do laundry once a
week undermined the treating physicians’ opinions about Plaintiff’s limitations.
III.
DISCUSSION
On appeal, Plaintiff substantively attacks the ALJ’s 1) finding that Mr.
Lameiro’s congestive heart failure does not medically equal listing 4.02 on the
“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).
1
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Listing of Impairments; 2) giving more credit to the state’s non-treating medical
examiners than to the treating physicians; 3) RFC.
A.
Listing 4.02
Plaintiff argues that his medical impairment equals listing 4.02 on the Listing
of Impairments for chronic heart failure. The objective medical evidence simply
does not meet the criteria of listing 4.02. Listing 4.02 states:
4.02 Chronic heart failure while on a regimen of prescribed
treatment, with symptoms and signs described in 4.00D2. The required
level of severity for this impairment is met when the requirements in
both A and B are satisfied.
A. Medically documented presence of one of the following:
1. Systolic failure (see 4.00D1a(i)), with left ventricular . . .
ejection fraction of 30 percent or less during a period of stability
(not during an episode of acute heart failure) . . .
AND
B. Resulting in one of the following:
1. Persistent symptoms of heart failure which very seriously
limit the ability to independently initiate, sustain, or complete
activities of daily living in an individual for whom an MD,
preferably one experienced in the care of patients with
cardiovascular disease, has concluded that the performance of an
exercise test would present a significant risk to the individual . . .
.
20 C.F.R. Part 404, Subpart P, Appendix 1 to Subpart P, Listing 4.02.
In the best case scenario for Plaintiff’s disability claim, he had an ejection
fraction of 30-35% during a period of stability. (Pl. Br. 19 (referring to Tr. 304)).
In his most recent examination, he had an ejection fraction of over 35%. (Tr. 364).
It is well-established that a claimant bears the burden of establishing that his
impairment meets or equals all of the specified medical criteria. “An impairment
that manifests only some of those criteria, no matter how severely, does not qualify.”
Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original); accord Poulos
v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007). A claimant does not establish
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medical equivalency by showing that he had a medical finding close to what the
listing requires. See Byrd v. Apfel, 168 F.3d 481, 1998 WL 911718, at *5 (4th Cir.
1998); Grant v. Comm’r of Soc. Sec., 91 F.3d 143, 1996 WL 403111, at *3 (6th Cir.
1996).
Given that Plaintiff never had an ejection fraction of 30% or less during a
period of stability, but moreover, showed an ejection fraction of over 35% in his
most recent examination, the ALJ had substantial evidence from which to conclude
that Plaintiff did not meet the criteria of listing 4.02 on the Listing of Impairments.
B.
Credibility of Physicians
Plaintiff argues that the ALJ erred in not giving enough weight to the opinions
of the treating physicians and giving too much weight to the non-treating state
examiners. The ALJ made no error here.
The opinion of a treating physician is usually entitled to great weight,
especially when such an opinion is based on treatment and observation of a patient
over a prolonged period of time. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999) (citing Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987)). However, the
determination by a treating physician that a claimant is disabled is not dispositive on
whether a disability truly exists. 20 C.F.R. 40.1527(d)(1); Adorno v. Shalala, 40
F.3d 43 (3d Cir. 1994) (citing Wright v. Sullivan, 900 F.2d 675, 683 (3d Cir. 1990)).
Furthermore, controlling weight is required only if the treating physician’s opinion
is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [a] case
record.” 20 C.F.R. 404.1527(c)(2). “To be “not inconsistent,” the medical opinion
“need not be supported directly by all of the other evidence (i.e., it does not have to
be consistent with all the other evidence) as long as there is no other substantial
evidence in the case record that contradicts or conflicts with the opinion.” SSR 962p.
An ALJ must consider the following factors when finding that a medical
source opinion is not due controlling weight: the examining relationship, the
treatment relationship (its length, frequency of examination, and its nature and
extent), supportability by clinical and laboratory signs, consistency, specialization
and other miscellaneous factors. 20 C.F.R. § 404.1527(c)(1-6). Where the opinion
of a treating physician conflicts with that of a non-treating, non-examining
physician, the ALJ may choose whom to credit but ‘cannot reject evidence for no
reason or for the wrong reason.’” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.
2000) (quoting Plummer v. Apfel, 186 F.3d at 429(3d Cir. 1999)).
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The only real conflicts between the treating physicians and the non-treating
physicians was the upper limit of Plaintiff’s carrying capacity and manipulative
limitations. Both sets of doctors agreed that Plaintiff was limited to two hours of
standing or walking per day. The non-examining doctors stated that Plaintiff could
occasionally lift or carry up to ten pounds and could frequently lift or carry less than
ten pounds. The treating physicians estimated that no lifting or carrying above five
pounds should ever occur. Also, Dr. Husain stated that Plaintiff had limitations in
“reaching, handling, or fingering” while the non-treating physicians noted that
Plaintiff had no “postural” or “manipulative” limitations.
The ALJ gave little weight to the treating physicians’ opinion based upon
internal inconsistencies in Dr. Husain’s opinion and Plaintiff’s statements.
Specifically, Dr. Husain noted that he was able to completely eliminate Plaintiff’s
pain with medication without unacceptable side effects, (Tr. 405), and that Plaintiff
was capable of handling low work stress, (Tr. 408). Moreover, Plaintiff’s statement
that he did cleaning and laundry once a week contradicted the treating physicians’
opinion that Plaintiff could not lift or carry more than five pounds at the most. In
sum, this constitutes substantial evidence from which the ALJ could properly credit
the non-examining physicians over the treating physicians. However, as we discuss
in the next section, the ALJ erred in finding an RFC that went well beyond the
opinion of the non-treating physicians. 2
C.
The RFC
The ALJ’s RFC was not supported by substantial evidence. The ALJ found
Plaintiff has an RFC to perform “light work,” as defined in 20 C.F.R. 404.1567(b),
with some modifications. The ALJ’s modified “light work” RFC assumed that
Plaintiff could frequently lift twenty pounds at a time and could walk, stand, or sit
with normal breaks for about six hours out of an eight hour work day. No medical
opinion supported these exertional limits. All the physicians agreed that Plaintiff
could only stand or walk for two hours out of an eight hour day. No physician found
that the Plaintiff could lift or carry more than ten pounds. Even if the ALJ decided
to select the upper limit of what Plaintiff self-reported as his lifting capacity, fifteen
pounds, this still would not support the ALJ’s determination that Plaintiff could lift
Plaintiff’s statements regarding a willingness to work heavily influenced the ALJ’s decision to give little weight to
Dr. Husain’s opinion. Plaintiff’s statements about a willingness to work do not constitute substantial evidence to
reject Dr. Husain’s opinion about Plaintiff’s exertional limitations. A willingness to work out of financial desperation
should not be confused with an ability to work. See Schmidt v. Barnhart, 395 F.3d 737, 746 (7th Cir. 2005). It would
be even greater error to determine that a Plaintiff’s RFC was greater than that found by any physician based upon
some of Plaintiff’s ambiguous testimony about a willingness to try a job in order to get some money. Nevertheless,
the other evidence cited constitutes substantial evidence to support the ALJ’s decision to give little weight to Dr.
Husain’s opinion about the Plaintiff’s limitations on lifting and carrying.
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twenty pounds.
The ALJ stated that he was crediting the non-treating physicians, who made
the determination that Plaintiff could perform sedentary work. “Sedentary work”
involves lifting no more than ten pounds at a time and only occasional walking or
standing. 20 C.F.R. § 404.1567(a). The ALJ’s RFC permitting light work with
walking and standing for up to six hours a day was therefore not supported by
substantial evidence.
IV.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is VACATED IN
PART and REMANDED for analysis of Plaintiff’s RFC in accordance with this
opinion, and for new analysis of Steps 4 and 5 of 20 C.F.R. §§ 404.1520 in
accordance with the revised RFC. An appropriate order follows.
/s/ William J. Martini
________________________________
WILLIAM J. MARTINI, U.S.D.J.
Date: December 16, 2014
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