MAHONEY v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Kevin McNulty on 6/26/15. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Michael R. MAHONEY,
Civ. No. 2:13-7685 (KM)
COMMISSIONER OF SOCIAL SECURITY,
KEVIN MCNULTY, U.S.D.J.:
Michael R. Mahoney, who is currently receiving DIB and SSI
benefits, brings this action pursuant to 5 U.S.C.
§ 1383(c)(3) to review a
final decision of the Commissioner of Social Security (“Commissioner”)
denying his claim for Title XVI Supplemental Security Income (“SSI”) for
the period November 22, 2002, through November 30, 2009. Mahoney
alleges that he was unable to engage in substantial gainful activity
because he suffered from uncontrolled diabetes, complications from his
diabetes, cervical and lumbar disc disease, and post-concussion
syndrome. (P1. Br.’ 3—4, ECF No. 15) For the reasons set forth below, the
Commissioner’s decision is AFFIRMED.
On this appeal, Mahoney seeks to reverse an AU’s finding that he
was not disabled from November 22, 2002 through November 30, 2009.
(R. 340, ECF No. 7) The road to that finding was a long one.
This brief and the Commissioner’s opposition were submitted pursuant
to U. Civ. R. 9.1.
“R.” refers to the pages of the administrative record filed by the
Commissioner as part of her answer. (ECF No. 7).
Mahoney initially applied for SSI benefits on November 22, 2002.
(Id.) Administrative Law Judge (“AU”) Muehlig denied benefits. The
Appeals Council affirmed that decision. The Honorable Dennis M.
Cavanaugh of this district remanded the case for further administrative
proceedings. (See Mahoney v. Commissioner of Social Security, Civ. No.
06-4861 (DMC), ECF No. 7 (Consent Order to Remand))
Pursuant to Judge Cavanaugh’s remand, on April 11, 2008, an
AU issued a further decision. The Appeals Council remanded the case to
on January 14, 2010. The AU
issued yet another decision on
August 17, 2010.
On April 25, 2012, the Appeals Council took jurisdiction of
Mahoney’s case. On July 5, 2012, The Appeals Council determined that
Mahoney was disabled as of December 1, 2009, based on the MedicalVocational Rule 201.14 of Table No. 1, Appendix 2, Subpart P, 20 C.F.R.
§ 404. The Appeals Council also remanded the case to Administrative
Law Judge Hilton R. Miller for a determination of whether Mahoney was
disabled, and therefore entitled to benefits, for the period prior to
December 1, 2009.
On August 21, 2012, AU
Miller held a hearing pursuant to the
Appeals Council’s remand order. Mahoney was represented by counsel
and testified at that hearing. AU
Miller then determined in an October 4,
The significance of December 1, 2009, is that it was Mahoney’s 50th
birthday. To simplify a bit, the threshold for entitlement to benefits is somewhat
lower for an applicant who has attained the age of 50. As of that date, as the
Appeals Council noted, Mahoney had “attained age closely approaching
advanced age” within the meaning of Medical-Vocational Rule 201.14 of Table
No., Appendix 2, Subpart P, 20 CFR Part 404. That Rule, the Appeals Council
held, compels a finding that “a person with [Mahoney’s] high school education
and semi-skilled work experience who is limited to unskilled sedentary work is
disabled as of attainment of age closely approaching advanced age.” (Id.) See
also 20 C.F.R. § 4 16.963(b) (“Younger person” defined as one under age 50); 20
C.F.R. § 4 16.963(d) (“Person closely approaching advanced age” defined as one
aged 50 to 54); 20 C.F.R. § 4 16.963(e) (“Person of advanced age” defined as one
55 or older).
2012 opinion that Mahoney was not disabled from November 22, 2002
through November 30, 2009. On November 8, 2013, the Appeals Council
denied Mahoney’s appeal from AU Miller’s October 4, 2012 decision,
rendering it the “final decision” of the Commissioner. Mahoney now
appeals that decision to this Court.
To clarify, Mahoney is currently receiving SSI benefits as a result of
the Appeals Council’s determination that he has been disabled since
December 1, 2009. The issue now before the Court is whether Mahoney
was also disabled from November 22, 2002 through November 30, 2009
(the “relevant period”).
To be eligible for SSI benefits, a claimant must meet the income
and resource limitations of 42 U.S.C.
§ 1382. To qualify, 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.
a. Five-Step Process and this Court’s Standard of Review
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, 4 16.920. Review necessarily incorporates a determination of
whether the AU properly followed the five-step process prescribed by
regulation. The steps may be briefly summarized as follows:
Step 1: Determine whether the claimant has engaged in
substantial gainful activity since the onset date of the alleged
disability. 20 C.F.R.
§ 404.1520(b), 4 16.920(b). If not, move to
Step 2: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id.
416.920(c). If the claimant has a severe impairment, move to
Step 3: Determine whether the impairment meets or equals
the criteria of any impairment found in the Listing of
Impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A. If so,
the claimant is automatically eligible to receive benefits; if
not, move to step four. Id.
§ 404.1520(d), 4 16.920(d).
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.
Step 5: At this point, the burden shifts to the SSA to
demonstrate that the claimant, considering his age,
education, work experience, and RFC, is capable of
performing jobs that exist in significant numbers in the
national economy. 20 C.F.R.
§ 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
As to all legal issues, this Court conducts a plenary review.
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the AU’s findings, as long as they
are supported by substantial evidence. Jones v. Bamhart, 364 F.3d 501,
503 (3d Cir. 2004) (citing 42 U.S.C.
§ 405(g)). Where facts are disputed,
this Court will “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 such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”
Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014) (internal quotation
and citation omitted). Substantial evidence “is more than a mere scintilla
but may be somewhat less than a preponderance of the evidence.” Id.
(internal quotation and citation omitted).
[un evaluating whether substantial evidence supports the
AU’s findings.. leniency should be shown in establishing
the claimant’s disability, and
responsibility to rebut it should be strictly construed. Due
regard for the beneficent purposes of the legislation requires
that a more tolerant standard 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)); Zimsak, 777 F.3d at 610—11
(“[W]e are mindful that we must not substitute our own judgment for
that of the fact finder.”).
This Court may, under 42 U.S.C. § 405(g), affirm, modify, or
reverse the Secretary’s decision, or it may remand the matter to the
Secretary for a rehearing. Podedwomy v. Harris, 745 F.2d 210, 221 (3d
Cir. 1984); Bordes v. Commissioner, 235 F. App’x 853, 865—66 (3d Cir.
b. The Appeals Council’s Order
The Appeals Council remand that led to the decision now on
appeal directed the AU
to do the following:
If necessary, obtain supplemental evidence from a medical
expert to clarify the nature, course and severity of the
claimant’s impairments and the functional limitations
arising from them (20 C.F.R. § 416.927(f) and Social Security
Give further consideration to the claimant’s maximum
residual functional capacity during the period at issue and
provide appropriate rationale with specific references to
evidence of record in support of the assessed limitations (20
C.F.R. § 4 16.945 and Social Security Ruling 96-8p).
Give further consideration to the treating source opinions,
pursuant to the provisions of 20 C.F.R. § 4 16.927 and Social
Security Rulings 96-2p and 96-5p, and explain the weight
given to such opinion evidence. As appropriate, the
Administrative Law Judge may request the treating sources
to provide additional evidence and/or clarification of the
opinions and may obtain additional medical source
statement[sj about what the claimant could still do despite
the impairments through November 30, 2009 (20 C.F.R. §
416.9 12). The Administrative Law Judge may enlist the aid
and cooperation of the claimant’s representative in
developing evidence from the claimant’s treating sources.
Further evaluate the claimant’s subjective complaints and
provide rationale in accordance with the disability
regulations pertaining to evaluation of symptoms (20 C.F.R.
§ 4 16.929 and Social Security Ruling 96-7p).
Obtain supplemental evidence from a vocational expert to
clarify the effect of the assessed limitations on the claimant’s
occupational base (Social Security Rulings 83-14 and 96-9p).
The hypothetical questions should reflect the specific
capacity and limitations established by the record as a
whole. The Administrative Law Judge will ask the vocational
expert to identify examples of appropriate jobs and to state
the incidence of such jobs in the national economy (20
C.F.R. § 4 16.966). Further, before relying on the vocational
expert evidence, the Administrative Law Judge will identify
and resolve any conflicts between the occupational evidence
provided by the vocational expert and information in the
Dictionary of Occupational Titles (DOT) and it companion
publication, the Selected Characteristics of Occupations
(Social Security Ruling OO-4p).
c. The AU’s decision
On remand, the AU concluded that from November 22, 2002,
through November 30, 2009, Mahoney was not disabled. His
determinations may be summarized as follows.
At step one, the AU determined that Mahoney had not engaged in
substantial gainful activity since November 22, 2002, his alleged
disability onset date. (R. 342)
At step two, the AU found that Mahoney had suffered from the
following severe impairments since November 22, 2002: “insulin
dependent diabetes mellitus; mild sensory peripheral neuropathy;
diabetic retinopathy; cervical spine disc bulge and protrusion with
At step three, the AU determined that none of Mahoney’s
impairments or combinations of impairments met or medically equaled
the severity of one of the listed impairments in 20 C.F.R. Pt. 404 Subpt.
P, App. 1 (the “Listings”). (Id. 343)
At step four, the AU
found that since November 22, 2002,
Mahoney “has had the residual functional capacity to perform sedentary
work as defined in 20 C.F.R.
§ 4 16.967(a) except that he is also limited to
unskilled and entry level work that is simple and routine; only occasional
overhead reaching; frequent fine and gross manipulation; no operation of
foot controls or foot pedals; must avoid concentration exposure to fumes,
dusts, odors, gases, poor ventilation, temperature extremes, and other
respiratory irritants; and is limited to ambulation and walking with a
cane.” (R. 343) Based on this residual functional capacity (“RFC”), the
AU found that Mahoney was not able to perform any past relevant work
since November 22, 2002. (Id. 347) The AU found that Mahoney “has at
least a high school education and is able to communicate in English.”
(Id.) Finally, the AU
found that the “[t]ransferability of job skills is not an
issue in this case because [Mahoney’s] past relevant work is unskilled.”
The AU noted that Mahoney was born on December 1, 1959, and
was 42 years old at the time of his first application. That put him in the
18-44 age range, and defined him (at the time) as a “younger person”
under 20 C.F.R.
§ 4 16.963(c). (Id.; see also n.3, supra.)
At step five, the AU
determined that, “[p]rior to December 1, 2009,
the date [Mahoney’s] age category changed, considering [Mahoney’s age],
education, work experience, and residual functional capacity, there were
jobs that existed in significant numbers in the national economy that the
claimant could have performed.” (Id.) As noted above, such a finding at
step five requires that benefits be denied.
d. Mahoney’s appeal
Mahoney argues that the Commissioner’s decision is not supported
by substantial evidence. Specifically, Mahoney argues that the AU (1)
improperly rejected treating physician opinions; (2) failed to consider
Mahoney’s subjective complaints of pain and other symptoms; and (3)
posed an improper hypothetical question to the vocational expert. (P1. Br.
16—26 (Plaintiff’s Points B, D, and C, respectively))
1. The AU properly considered the opinions of
Mahoney’s treating physicians (Plaintiffs Point B)
Mahoney argues that the AU rejected all of his treating physicians’
opinions even though their opinions were uncontroverted. (P1. Br. 16—21)
Specifically, Mahoney argues that the AUJ gave insufficient weight to the
opinions of Dr. Fogari, Mahoney’s treating endocrinologist; Dr. Hamada,
Mahoney’s treating orthopedist; and Dr. Hoffman, a consultative
examiner. Mahoney also argues that the AUJ relied too heavily on the
opinion of Dr. Drice, a state agency physician. I find that the AU
properly considered the medical opinions in this case, and that his
findings are supported by substantial evidence.
An AU is free to credit one medical opinion over another, provided
that the AU considers all of the evidence and gives reasons for
discounting the evidence he or she rejects. See Diaz v. Commissioner of
Soc. Sec., 577 F.3d 500, 505-06 (3d Cir. 2009); Plummer v. Apfel, 186
F.3d 422, 429 (3d Cir. 1999) (“An AU
may afford a treating
physician’s opinion more or less weight depending upon the extent to
which supporting explanations are provided.”); Aciorno v. Shalala, 40
F.3d 43, 48 (3d Cir. 1994) (citations omitted) (An 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.”).
In this case, the AU considered all of the available medical
evidence in determining Mahoney’s residual functional capacity. The AU
gave sufficient reasons for discounting certain portions of medical
opinions. As evidenced by the RFC assessment, the AU did not wholly
disregard any of the opinions. Specifically, he found that Mahoney was
limited to performing only “sedentary work as defined in 20 C.F.R. §
416.967(a),” and that any such work is further “limited to unskilled and
entry level work that is simple and routine” and involves “only occasional
overhead reaching; frequent fine and gross manipulation; no operation of
foot controls or foot pedals.” (R. 343) The AL also found that Mahoney
“must avoid concentration exposure to fumes, dusts, odors, gases, poor
ventilation, temperature extremes, and other respiratory irritants; and is
limited to ambulation and walking with a cane.” (Id.) Those limitations,
though ultimately found not disabling, are very significant. The AUJ’s
findings of such severe limitations show that he took the relevant
medical opinions into account in making the RFC findings.
The AU’s decision to assign limited weight to certain medical
opinions was based on cogent, stated reasons, and it was supported by
1. Drs. Fogari and Hamada
The AU gave some weight, as opposed to great weight, to the
opinions of Drs. Fogari and Ramada because their opinions were not
supported by objective medical evidence. (R. 346)
As to Dr. Fogari’s assessment, the AU noted that “Dr. Fogari’s
treatment notes are not specific, and do not mention any clinical findings
or even subjective reports indicating physical limitations.” (Id.; see R.
127—46, 255—58) Dr. Fogari found that Mahoney “would only be able to
sit for 20 minutes, and stand for 10 minutes at a time”; would only be
able to “sit and stand for less than two hours total in an eight-hour day”;
“must walk around every 30 minutes for 10 minutes each time”; “would
need to take unscheduled breaks”; “would need his legs elevated at 20
degrees 50 percent of the workday”; “could rarely lift 10 pounds”; could
“rarely twist”; could “never stoop, crouch, or climb ladders or stairs”;
“could only do fine manipulations 20 percent of the workday”; “should
avoid even moderate exposure to environmental conditions like extreme
temperatures, fumes, odors, dusts, gases, and other respiratory
irritants”; and “would miss more than four days of work per month on
average.” (Id. 346 (citing R. 127—46, 255—58) As the ALT noted, these
findings were not medically specific and were not tied to clinical or
subjective reports. Moreover, as discussed below, they are contradicted
by Mahoney’s own statements.
As to Dr. Ramada’s findings, the ALT determined that some of his
conclusions were supported by MRI and EMG records, but that Dr.
Hamada’s records “do not warrant such extreme limitations.” (Id.) Dr.
Ramada stated that Mahoney “would only be able to walk for three
blocks at a time”; “would only be able to sit and stand or walk for less
than two hours in an eight-hour day; needed to walk around during the
workday; needed to shift positions at will and take unscheduled breaks
every hour for ten minutes; does not need to elevate his legs; does not
need to use a cane; could rarely lift less than ten pounds; could
occasionally or rarely perform postural activities; was able to use his
rights hand, fingers, and arm half of the time; was able to use his left
hand, fingers, and arm ninety percent of the time; and would miss more
than four days of work per month on average. (Id. (citing R. 217—54, 284—
87)) The AU
noted that certain records supported slight limitations,
such as Dr. Ramada’s finding that Mahoney had seventy percent of the
full range of motion in his neck and that he had decreased sensation.
(Id.) However, as the AU
also explained, Dr. Hamada’s stated
conclusions are undercut by his prescription of only conservative
treatments such as rest, analgesics, electric massage, and diathermy. (Id.
The AU also properly gave little weight to Dr. Hamada’s
conclusory opinion in 2004 that Mahoney was “disabled” after the bus
accident. (Id. 244—45) In so doing, the AU correctly noted that the
Commissioner of Social Security reserves the right to make a finding of
disability, and that Dr. Hamada’s definition of disabled may differ from
the definition in the Social Security regulations. (Id.) As Social Security
Ruling 96-5p states,
[T]reating 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.
The AU found, with reason, that the opinions of Drs. Fogari and
Hamada were contradicted by certain of Mahoney’s own statements. For
instance, Mahoney stated in a July 16, 2004 disability appeal report that
he had slower reflexes and experienced a “change in [his] eyesight,” but
was still “able to take care of [his] personal needs.” (R. 346, 108—14) At
the August 21, 2012 hearing, Mahoney testified that, during the relevant
time period, he read, watched television, sometimes walked to the store
and back, and was able to walk with a cane. (Id. 346, 1000, 1006, 1008)
The AU noted that these activities required the use of Mahoney’s eyes,
and that Mahoney’s ability to engage in these activities indicated that he
was able to get around to some extent. (Id. 344, 346) The record thus
indicated that Mahoney’s limitations were not as severe as Drs. Fogari
and Hamada found.
Again, I note that the AU largely accepted the medical opinions of
Drs. Fogari and Hamada, as he found Mahoney was only capable of
sedentary work with many limitations.
2. Dr. Hoffman
Dr. Hoffman examined Mahoney twice, on February 25, 2003 and
December 24, 2007. (R. 370—7 1) Mahoney argues that the AU erred by
(1) failing to completely analyze Dr. Hoffman’s first report; and (2) not
considering Dr. Hoffman’s second report at all. (P1. Br. 14) Mahoney
attaches this second report as Exhibit A to his brief; it is not in the
Dr. Hoffman’s first, 2003 report:
Mahoney’s claim that the AU did not properly analyze Dr.
Hoffman’s first report from 2003 cannot be sustained in light of the
record. (P1. Br. 19) The record shows that the AU took Dr. Hoffman’s
report into account in determining Mahoney’s RFC. Specifically, the AU
described Dr. Hoffman’s findings that Mahoney “walked with a normal
gait”; “had decreased pinprick and vibratory sensitivity of both lower
extremities”; was able to straighten his legs normally; had “good dorsal
flexion and plantar flexion and intact muscle strength”; experienced “no
deficit with walking on heels or toes”; “had a good sense of balance, with
intact deep tendon reflexes; and “had the classic pattern of background
peripheral retinopathy related to diabetes, but.
still had 20/20 vision
acuity in each eye.” (R. 344) Mahoney points out that Dr. Hoffman also
found Mahoney to be suffering from “complications of diabetes related to
peripheral neuropathy including burning, numbness and pain in both
legs,” fluctuating vision, retinopathy within both eyes, and decreased
sensitivity of lower extremities. (P1. Br. 5—6) However, the AU largely
accepted these findings, as he found diabetes, peripheral neuropathy,
and retinopathy to be severe impairments at step two of his analysis, and
he found that Mahoney only had the RFC to perform severely limited
sedentary work at step four. (R. 342—43) Mahoney does not point to any
specific errors in the AU’s analysis of Dr. Hoffman’s 2003 report, and I
do not find any.
Dr. Hoffman’s second, 2007 report:
Mahoney’s second claim—that the AU failed to review Dr.
Hoffman’s second, 2007 report—is complicated by the fact that, as
Mahoney concedes, that report is not part of the administrative record.
(P1. Br. 6, n. 3) For that omission, the SSA bears the initial responsibility,
but Mahoney, too, is to blame for failing to resubmit the report when
invited to do so. I conclude, in any event, that a remand, especially at
this late date, is not appropriate, because the 2007 report is cumulative
and would not have altered the result.
The Appeals Council’s January 14, 2010 remand order notes that
the record underlying the AU’s decision (issued April 11, 2008) could
not be located. (R. 386) However, it gave Mahoney ample opportunity to
ensure that the record was properly reconstructed. The Appeals Council
instructed the AU on remand to “[p]rovide the claimant the opportunity
to submit updated medical evidence in connection with reconstructing
the missing claim file.” (Id. 379)
The Appeals Council’s July 5, 2012 remand order likewise
explained that the original claim file was lost, and that certain evidence
had been recovered. That 2012 remand order specifically noted that
there was still “no medical evidence in the record between January 14,
2005 and May 5, 2008.” (Id. 395) The July 5, 2012 order instructed the
AU to “request resubmission of the evidence pertaining to the period
between January 14, 2005 and May 5, 2008.” (Id. 396)
Pursuant to the Appeals Council’s July 5, 2012 order, Mahoney
was invited to resubmit the missing medical evidence from the period
January 14, 2005 through May 5, 2008. In the SSA’s notice for the
August 21, 2012 hearing, Mahoney was instructed that he could submit
more evidence, either prior to or on the day of the hearing. (Id. 776) At
the August 21, 2012 hearing, AU
Miller clarified: He identified the
exhibits that were to be part of the record and asked counsel whether he
had identified them correctly. (Id. 994) Mahoney’s counsel voiced no
objections to AU
Miller’s description of the exhibits in the record.
Finally, when Mahoney appealed AU Miller’s October 4, 2012 decision,
he was again given the opportunity to present “new and material
evidence.” (Id. 332)
At no time did Mahoney respond to any of these invitations by
submitting Dr. Hoffman’s 2007 report to the AU or the Appeals Council.
Now, however, he attaches the report to his brief to this Court, and faults
the AU for failing to review it. He does not deny that he had access to
this report at all relevant times in the administrative proceedings. He
does not state any justification for failing to have submitted it before.
“[E]vidence that was not before the AUJ cannot be used to argue
that the AUJ’s decision was not supported by substantial evidence.”
Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001). “[Wlhen the
claimant seeks to rely on evidence that was not before the AU, the
district court may remand to the Commissioner but only if the evidence
is new and material and if there was good cause why it was not
previously presented to the ALi.” Id. at 593. Mahoney had ample
opportunity to present AU
Miller or the Appeals Council with any
additional evidence. He did not do so, and does not offer any good cause
explanation for this failure.
Because this often-remanded matter has been beset by difficulties,
in an abundance of caution I have reviewed Dr. Hoffman’s 2007 report. I
find that it is largely consistent with Dr. Hoffman’s 2003 report, which
the AU did review, and with the AU’s opinion.
In his 2007 report, Dr. Hoffman reiterates Mahoney’s diagnoses of
diabetes mellitus, diabetic retinopathy, and peripheral neuropathy. (P1.
Br. Ex. A at 1) Dr. Hoffman also notes that although Mahoney has had
occasional blurred vision, Mahoney did not have a recent eye
examination (as of 2007) and only used reading glasses, as opposed to
prescription eyeglasses. (Id.) Mahoney did not at that time take any
medication to treat his peripheral neuropathy. (Id.) At Dr. Hoffman’s
2007 physical examination, Mahoney presented as “a thin individual who
[was] alert and oriented as to time, place and person and cooperative.”
(Id.) Mahoney “walk[ed] with a relatively normal gait not using an
assistive device,” was “able to get on and off the examining table without
help,” and could “arise from a supine position.” (Id. 1—2). He was “lucid,
relatively well versed in the details of his medical history and his ability
to respond to questions in a logical manner appear[ed] to be intact.” (Id.
2) Mahoney lived with his girlfriend at the time. (Id. 1)
Mahoney highlights Dr. Hoffman’s findings that he (1) could not
operate foot controls; (2) could only stand or walk for an hour at a time;
and (3) could only sit for two hours at a time; (4) could occasionally
reach, feel, finger, push or pull; (5) could not climb stairs, ramps,
ladders, or scaffolds, (6) could not balance; (6) could not read very small
print; (7) could not be exposed to extreme cold or heat; (8) could not
operate a motor vehicle; and (9) could not walk a block at a reasonable
pace on rough or uneven surfaces.” (P1. Br. 7 (citing Ex. A 4—6))
These findings, however, are largely consistent with the AU’s
determination of Mahoney’s residual functional capacity, in which the
AU found the following limitations: sedentary work, “limited to unskilled
and entry level work that is simple and routine; only occasional overhead
reaching; frequent fine and gross manipulation; no operation of foot
controls or foot pedals”; that Mahoney had to “avoid concentration
exposure to fumes, dusts, odors, gases, poor ventilation, temperature
extremes, and other respiratory irritants”; and that he was “limited to
ambulation and walking with a cane.” (R. 343) The AU’s findings of
limitations even exceeded those identified by Dr. Hoffman in at least one
respect: the AU found that Mahoney could only walk with a cane, while
Dr. Hoffman found that he could operate without one.
In short, there is no indication that Dr. Hoffman’s 2007 report,
even if it had been properly placed in the record, would have altered the
AU’s determination in any way.
3. Dr. Drice
Finally, Mahoney objects to the AU’s reliance on the report of Dr.
Drice, a state agency physician. (P1. Br. 19—20) This argument is without
merit, as the AU
gave Dr. Drice’s opinion reduced weight for the very
reasons Mahoney objects to it. As the AU explained, he assigned only
“some” weight to Dr. Drice’s opinion because it was “quite old” (that is,
from 2003) and did not “address any recent complaints or medical
records.” (R. 345) Mahoney objects that “Dr. Drice “clearly did not have
complete medical records which were submitted after that date [i.e., the
date of Drice’s report].” (P1. Br. 20) It appears, however, that the AU
agreed, and gave the report limited weight as a result.
The AU did not err in his consideration of Dr. Drice’s opinion.
ii. The AU properly evaluated Mahoney’s subjective
complaints of pain and other symptoms
(Plaintiffs Point D)
Next, Mahoney argues that the AU
improperly rejected Mahoney’s
allegations regarding the nature, frequency, and duration of his pain in
the relevant 2002-09 period. (P1. Br. 22—26) Specifically, Mahoney cites
objective medical evidence that he says supports his claims regarding his
pain, such as “physical examination findings, EMG studies, and MRI
findings” which showed cervical radiculopathy and severe
polyneuropathy, and retinopathy. (Id. 25) I find that the ALT gave specific
reasons for his credibility findings, and that those reasons were
supported by substantial evidence in the record.
Social Security Regulation 96-7P provides:
In determining the credibility of the individual’s statements,
the adjudicator must consider the entire case record,
including the objective medical evidence, the individual’s
own statements about symptoms, statements and other
information provided by treating or examining physicians or
psychologists and other persons about the symptoms and
how they affect the individual, and any other relevant
evidence in the case record. An individual’s statements about
the intensity and persistence of pain or other symptoms or
about the effect the symptoms have on his or her ability to
work may not be disregarded solely because they are not
substantiated by objective medical evidence.
The ALT’s credibility determination “must contain specific reasons
for the finding on credibility, supported by the evidence in the case
record.” SSR 96-7P; see also 20 C.F.R. § 404.1529(b), 4 16.929(b).
At the August 21, 2012 hearing, Mahoney testified that, during the
relevant period, he had numbness and pain in his feet, back problems,
swelling in his ankles at times, pain and nerve damage in his hands,
neck problems, and blurry vision. He also testified that he could not
stand for more than fifteen minutes without experiencing pain or sit for
more than twenty-five minutes without difficulty. Finally, he testified that
he lived with his mother, who did all of the chores. He said he spent his
time reading and watching television. (R. 343—43, 995—1013)
Mahoney argues that the objective medical evidence supports his
diagnoses of cervical radiculopathy, severe polyneuropathy, and
retinopathy of both eyes. (P1. Br. 25) Of course, the AU largely accepted
these diagnoses; he found insulin dependent diabetes mellitus, mild
sensory peripheral neuropathy, diabetic retinopathy, cervical spine disc
bulge and protrusion with radiculopathy to be severe impairments at
step two of his analysis. (R. 342) Mahoney’s argument, to the extent it
focuses on those diagnoses, rather than his functional capacity and the
nature, frequency, and duration of his pain, is therefore somewhat
beside the point.
Mahoney does argue that the AU improperly discredited his
subjective reports of pain. At the August 21, 2012 hearing, Mahoney
made the backward-looking statement that, during the relevant 2002-09
period, he could not stand for more than fifteen minutes at a time.
However, as the AU noted, Mahoney’s complaints were contradicted by
other, more contemporaneous statements. For instance, Mahoney stated
in his 2002 disability report that “he could not stand for more than one
hour at a time, could not lift more than 20 pounds, and had difficulty
bending.” (R. 345 (citing R. 64—73) (emphasis added)) In 2004, Mahoney
stated generally that his physical state had worsened, that he had slower
reflexes, that he was more tired, and that his eyesight had deteriorated.
(fri. (citing (R. 108—14)) Still, he confirmed in that statement that he was
able “to take care of his personal needs.” (Id. (citing R. 108—14)) In 2008,
Mahoney stated that he was able to walk approximately two blocks and
climb two flights of stairs. (Id. 512) The AU noted that Mahoney
complained of limited vision, but reported that his daily activities
included reading and watching television. (Id. 346) Taking all of these
statements together, the AU
found Mahoney’s statements concerning
the intensity, persistence and limiting effects of his symptoms not
credible to the extent they differed from the RFC assessment. (Id. 344—
The AU’s assessment of Mahoney’s subjective complaints of pain
and other symptoms is supported by substantial evidence.
lii. The AU’s hypothetical question to the vocational
expert was proper (Plaintiffs Point C)
Mahoney argues that the AU’s hypothetical question to the
vocational expert failed to reflect all of Mahoney’s alleged restrictions. (P1.
Br. 21—22) I find that the AU’s hypothetical was proper, as it included all
the limitations that the AU
found to be supported by the record.
The Third Circuit has repeatedly emphasized that an AU is not
required “to submit to the vocational expert every impairment alleged by
a claimant.” Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005)
(emphasis in original); Zimsak v. Colvin, 777 F.3d 607, 615 (3d Cir.
2014) (quoting Rutherford). Rather, an AU need only include limitations
“that are medically established,” or “credibly established limitations.”
Rutherford, 399 F.3d at 554 (emphasis in original); Zimsak, 777 F.3d at
614. An AU
may properly exclude a limitation from his hypothetical even
though it “is supported by medical evidence,” if it “is opposed by other
evidence in the record.” Zimsak, 555 F.3d at 615.
The AUJ’s hypothetical to the vocational expert contemplated an
individual who was “capable of sedentary work, that is unskilled and
entry level, simple and routine, with only occasional overhead reaching,
frequent fine and gross manipulation[, d]oes not require operational foot
controls or foot pedals[, ajnd avoids concentrated exposure to fumes,
dusts, odors, gases, poor ventilation, temperature extremes and other
respiratory irritants.” (R. 1015) This hypothetical individual could walk
only with the use of a cane. (Id. 1020—21) The vocational expert found
that such an individual would be capable of at least three jobs that exist
in the national economy in significant numbers: a sorter, an order clerk,
and an addresser. (Id. 10 15—16, 1020—2 1)
Mahoney argues that the AU’s hypothetical did not include the
various restrictions found by Drs. Fogari and Hamada, as well as those
found by Dr. Hoffman in his 2007 examination.
As I have already noted, Mahoney had numerous opportunities to
submit Dr. Hoffman’s 2007 examination report to the AU
so. “[E}vidence that was not before the AU
and did not do
cannot be used to argue that
the AU’s decision was not supported by substantial evidence.” Matthews
v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001).
As explained in section II(e)(i)(1), supra, the AU’s decision to
assign only some weight to the medical opinions of Drs. Fogari and
Hamada is supported by substantial evidence. The limitations in the
AU’s hypothetical mirror the limitations he found when assessing
Mahoney’s RFC—that is, all of the limitations that the AU
found to be
credible. (CompareR. 343 with R. 1015, 1020—2 1) Mahoney does not
suggest otherwise. The AU is not required to include in his hypothetical
any alleged limitations that he did not find credible. Therefore, I find no
error in the hypothetical the AU
posed to the vocational expert.
For the foregoing reasons, the AUJ’s decision is AFFIRMED.
Dated: June 26, 2015
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?