SMITH v. COMMISSIONER OF SOCIAL SECURITY
Filing
11
OPINION. Signed by Judge Jose L. Linares on 11/7/2014. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LAWRENCE SMITH,
Plaintiff,
v.
Civil Action No. 14-658 (JLL)
OPINION
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
LINARES, District Judge.
Before the Court is Lawrence Smith (“Plaintiff’ or “Claimant”)’s appeal, which seeks
review of Administrative Law Judge (“AU”) Marissa Ann Pizzuto’s denial of Plaintiff’s
application for a period of disability, disability insurance benefits, and supplemental securit
y
income. The Court decides this matter without oral argument. For the reasons set forth below,
the Court affirms the final decision of the Commissioner of Social Security (the
“Commissioner”).
I.
BACKGROUND
A.
Procedural History
On July 15, 2010, Plaintiff, alleging disability as of November 13, 2009, applied to the
Social Security Administration (the “Administration”) for a period of disability, disabil
ity
insurance benefits, and supplemental security income. (R. at 108-113).’ The Administratio
n
initially denied Plaintiffs application on November 10, 2010 and again upon recons
ideration on
“R” refers to the pages of the Administrative Record.
October 5, 2011. (Id. at 59-61, 65-67). In response, Plaintiff requested an administrative
hearing, which occurred before AU Marissa Ann Pizzuto on August 1, 2012. (Id. at 79).
At the hearing, Plaintiff, who was then 48 years old, testified that he had been employed
as a heavy equipment operator at various construction sites until 2005 when he got hurt on the
job. (R. at 29). With regard to his lifestyle, Plaintiff testified that he lives alone, and that his
daughter helps him when he has to leave the house. (Id. at 39-40). He also noted that a friend
comes over once a week and cooks meals for him. (Id. at 40). Plaintiff testified that his landlo
rd
installed a balancing bar in his shower for him. (Id. at 47).
On September 24, 2012, AU Pizzuto issued a decision, finding that Plaintiff was not
disabled from November 13, 2009 through the date of decision. (Id. at 12-20). Plaintiff sought
Appeals Council review. (Id. at 7-8). The Appeals Council denied Plaintiff’s request on
November 26, 2013, rendering AU Pizzuto’s decision the final decision of the Comm
issioner.
(Id. at 1-3). As a result, Plaintiff appealed to this Court on January 30, 2014. (Comp
l., ECF No.
1). This Court has jurisdiction to review this matter pursuant to 42 U.S.C.
§ 405(g), and now
recounts Plaintiffs medical history.
B.
Plaintiffs Medical History
Plaintiff contends that he has been disabled since November 13, 2009. Plaintiff
is
alleging disability due to (1) diabetes, (2) hypertension, (3) degenerative disk disease
, (4) a stent
in his heart, (5) asthma, and (6) sleep apnea. (R. at 129).
2
I. Plaintiffs Diabetes Mellitus
Plaintiff has insulin dependent diabetes mellitus. (R. at 254). Plaintiff was diagno
sed
with diabetes when he was 26 years old. (Id.). He now takes insulin twice
a day. (Id.). At the
2
Plaintiff also alleged disability due to arthritis in both ankles, restless leg syndrome,
and degenerative eye disease
before the AU. Those impairments are not at issue before this Court.
2
hearing before AU Pizzuto, he testified that his diabetes had been largely controlled
for the
preceding six months. (Id. at 30-31). Plaintiff also testified that, as a result of the
diabetes, he
experiences occasional swelling and numbness in his right leg, which affects
his ability to wear
regular shoes, which, in turn, affects his ability to walk. (Id. at 31-33). Plainti
ff testified that his
physician, Dr. Elamir, gave him a cane which he uses to walk, stand up, and
balance when
standing. (Id. at 33-34). Dr. HoffiTlan, who conducted a consultative examin
ation on October
15, 2010, reported that Plaintiff’s diabetes appeared relatively well controlled
with insulin. (Id.
at 256). Dr. Hoffman also reported that Plaintiffs occasional numbness in the
lower extremities
is an early symptom of neuropathy, but he had not yet been treated for it. (Id.
at 254). Dr.
Hoffman observed that Plaintiff walked with a cane and determined that Plainti
ff had a slightly
antalgic gait. (Id. at 255).
2. Plaintiffs Hypertension
Plaintiff has increased blood pressure, which has been treated with medication
for the last
five years. (Id. at 254). Plaintiffs elevated cholesterol is also managed with
medication. (Id.)
3. Plaintiffs Degenerative Disk Disease
Plaintiff has a history of lower back pain, which he attributes to his history
as a
construction worker. (Id. at 254). An April 2010 MRI of the lumbar spine
showed multilevel
degenerative changes. (Id. at 351). This condition has been treated with
OxyCodone, which
Plaintiff testified makes him feel drowsy during the day. (Id. at 44).
Plaintiffs treating
physicians felt that conservative therapy was adequate to treat his
symptoms.
4. Plaintiffs Stent Placement
Plaintiff has a history of coronary artery disease. In 2009, Plaintiff
had an arterial stent
placed after he experienced tightness in his chest and doctors found
a blockage. (Id. at 254).
3
Since then, the condition has been managed with medication and Plaintiff has had no major
problems with chest pain. (Id.).
5. Plaintiffs Asthma
Plaintiff maintains that his asthma prevents him from walking more than one block
at a
time with his cane. (Id. at 35). Plaintiff also testified that his asthma is aggrav
ated by hot
weather and drinking cold drinks. (Id. at 36). Plaintiff has an inhaler and a nebuli
zer which he
uses at least twice a day. (Id. at 35). Dr. Hoffman reported that Plaintiff has been
treated for
COPD-like symptoms for five years and that he manages these symptoms with
the nebulizer and
other medication. (Id. at 254).
6. Plaintiffs Sleep Apnea
Plaintiff also suffers from sleep apnea. Dr. Hoffman reported that this condit
ion has been
treated with a CPAP machine for several years. (Id.).
II.
LEGAL STANDARD
A.
The Five-Step Process for Evaluating Whether a Claimant Has a Disability
Under the Social Security Act, the Administration is authorized to pay a period
of
disability, disability insurance benefits, and supplemental security income
to “disabled” persons.
42 U.S.C.
§ 423(a), 1382(a). A person is “disabled” if”he is unable to engage in any
substantial gainful activity by reason of any medically determinable physic
al or mental
impairment which can be expected to result in death or which has lasted
or can be expected to
last for a continuous period of not less than twelve months.” 42 U.S.C.
§ 423(d)(l)(A),
13 82c(a)(3)(A). A person is unable to engage in substantial gainful activity
when his physical or
mental impairments are “of such severity that he is not only unable to
do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of
4
substantial gainful work which exists in the national economy.
.
.
.“
42 U.S.C.
§ 423(d)(2)(A),
1382c(a)(3)(B).
Regulations promulgated under the Social Security Act establish a five-step process for
determining whether a claimant is disabled. 20 C.F.R.
§ 404.1520(a)(1), 416.920(a)(1). At step
one, the AU assesses whether the claimant is currently performing substantial gainfu activit
l
y.
20 C.F.R.
§ 404.1520(a)(4)(f), 416.920(a)(4)(i). If so, the claimant is not disabled and, thus, the
process ends. 20 C.F.R.
§ 404.1520(a)(4)(f), 416.920(a)(4)(i). If not, the AU proceeds to step
two and determines whether the claimant has a “severe” physical or mental impairment
or
combination of impairments. 20 C.F .R.
§ § 404.1 520(a)(4)(ii), 41 6.920(a)(4)(ii). Absent such
impairment, the claimant is not disabled. 20 C.F.R.
§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
Conversely, if the claimant has such impairment, the AU proceeds to step three.
20 C.F.R.
§
404.1 520(a)(4)(ii), 41 6.920(a)(4)(ii). At step three, the AU evaluates whether the
claimant’s
severe impairment either meets or equals a listed impairment. 20 C.F.R.
416.920(a)(4)(iii). If so, the claimant is disabled. 20 C.F.R.
§ 404.1520(a)(4)(iii),
§ 404.l520(a)(4)(iii),
41 6.920(a)(4)(iii). Otherwise, the AU moves on to step four, which involves three
sub-steps:
(1) the AU must make specific findings of fact as to the claimant’s [RFCJ; (2) the
AU must make findings of the physical and mental demands of the claimant’s
past relevant work; and (3) the AU must compare the [RFC] to the past relevan
t
work to determine whether claimant has the level of capability needed to perform
the past relevant work.
Burnett v. Comm ‘r ofSoc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000)
(citations omitted).
The claimant is not disabled if his RFC allows him to perform his past relevant
work. 20 C.F.R.
§ § 404.1 520(a)(4)(iv), 41 6.920(a)(4)(iv). However, if the claimant’s RFC prevents him from
doing so, the AU proceeds to the fifth and final step of the process. 20 C.F.R.
404.1 520(a)(4)(iv), 41 6.920(a)(4)(iv).
5
§
The claimant bears the burden of proof for steps one through four. Poulos v. Comm ‘r of
Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007) (citing Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir.
2004). “At step five, the burden of proof shifts to the.
.
.
Administration to show that the
claimant is capable of performing other jobs existing in significant numbers in the national
economy, considering the claimant’s age, education, work experience, and [RFC].” Id. (citing
Ramirez, 372 F.3d at 551).
B.
The Standard of Review: “Substantial Evidence”
3
This Court must affirm an AU ‘s decision if it is supported by substantial evidence. See
42 U.S.C.
§ 405(g), l383(c)(3). Substantial evidence is “more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
305 U.S.
197, 229 (1938)). To determine whether an AU’s decision is supported by substantial evidence,
this Court must review the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d
Cir.
1984). However, this Court may not “weigh the evidence or substitute its conclusions for
those
of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (citation omitted).
Consequently, this Court may not set an AU’s decision aside, “even if [it] would have decided
the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citations
omitted).
IlL
DISCUSSION
At step one, AU Pizzuto found that Plaintiff had not engaged in substantial gainful
activity since November 13, 2009, the alleged onset date. (R. at 14). At step two,
AU Pizzuto
Because the regulations governing supplemental security income—20 C.F.R. 41
§ 6.920—are identical to those
covering disability insurance benefits—20 C.F.R. 404.1520—this Court will consider
§
case law developed under
both regimes. Rutherford v. Barn hart, 399 F.3d 546, 551 n. 1 (3d Cir. 2005) (citation
omitted).
6
found that Plaintiff has had the following severe impairments: (1) insulin dependent diabetes
mellitus; (2) asthma; (3) sleep apnea; (4) degenerative disk disease; (5) coronary artery disease
with a history of stent placement; and (6) hypertension. (Id.). At step three, AU Pizzuto found
that Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments. (Id. at 15). At step four, AU Pizzuto determined that
prior to November 13, 2009 Plaintiff had the RFC to perform the full range of sedentary work.
(Id.). Lastly, at step five, AU Pizzuto found that given Plaintiff’s age, education, work
experience, and RFC, there were jobs existing in significant numbers in the national econom
y
that Plaintiff could perform. (Id. at 19). Plaintiff contends that AU De Steno erred at steps
three, four, and five. (Pl.’s Br. 9-27, ECF No. 8).
A.
Whether AU Pizzuto’s Step Three Findings are Based on Substantial Evidence
At step three, an AU must “fully develop the record and explain his findings.
including an analysis of whether and why [each of the claimant’sJ impairments, or those
impairments combined, are or are not equivalent in severity to one of the listed impairments.
”
Burnett, 220 F.3d at 120. In conducting such an analysis, there is no formal require
ment that an
AU “use particular language or adhere to a particular format.
..
.“
Jones v. Barnhart, 364 F.3d
501, 505 (3d Cir. 2004). Rather, an AU’s decision, “read as a whole,” must permit meaningful
judicial review. Id.; see also Cosby v. Comm ‘r ofSoc. Sec., 231 F. App’x 140, 146
(3d Cir.
2007).
Here, AU Pizzuto began her step three analysis with her determination that “[Plaintiff]
does not have an impairment or combination of impairments that meets or medica
lly equals the
severity of one of the listed impairments.
.
.
.“
(R. at 15). AU Pizzuto then proceeded to find
that: (1) Plaintiffs diabetes mellitus did not meet the listing for endocrine
disorders (Listing
7
9.00); (2) Plaintiffs asthma did not meet the listings that pertain to chronic pulmonary
insufficiency (Listing 3.02); (3) Plaintiffs sleep apnea did not meet the listing for sleep-r
elated
breathing disorders (Listing 3.10); (4) Plaintiffs degenerative disk disease did not meet
the
listing for spinal impairments that result in the compromise of a nerve root or the spinal
cord
(Listing 1.04); (5) Plaintiffs coronary artery disease did not meet the listing for coronary
artery
disease (Listing 4.04C); (6) Plaintiffs hypertension did not meet any of the cardiac listing
s in
Section 4,00. (Id. at 15). Plaintiff argues that AU Pizzuto erred at step three because she
did
not properly consider whether his impairments, in combination, met or medically equale
d a listed
impairment. (Pl.’s Br. 12-14, ECF No. 8).
Plaintiff generally argues that AU Pizzuto failed to properly consider Plaintiffs
impairments in combination with each other at step three. (Id.). Plaintiffs argum
ent is
unpersuasive. With regard to an AU’s duty to consider a claimant’s impairments in
combination with one another, the Third Circuit has suggested that an AU fulfills that
duty if he
indicates that he has done so and there is “no reason not to believe him.” Morrison
ex. ret.
Morrison v. Comm ‘r ofSoc. Sec., 268 F. App’x 186, 189 (3d Cir. 2008). Moreo
ver, a number of
district courts in this Circuit have concluded that an AU fulfills his obligation to
consider a
claimant’s impairments in combination with one another when he states that he has
done so and
offers a thorough review of the evidence in the record. See, e.g., Mason v. Astrue
, No. 09-5553,
2010 WL 3024849, *6 (D.N.J. Aug. 2, 2010).
Here, AU Pizzuto explicitly indicated at the beginning of her step three discuss
ion that
Plaintiff “does not have an impairment or combination of impairments that
meets or medically
equals the severity of one of the listed impairments.
.
.
.“
(R. at 15). In light of AU Pizzuto’s
thorough discussion of the record throughout her opinion and detailed explan
ation as to why
8
each of Plaintiff’s impairments did not meet a listing, the Court has no reason to disbelieve AU
Pizzuto’s indication that she considered the combined effect of Plaintiffs impairments. See
Jones, 364 F.3d at 505 (finding AU’s step three determination adequate because AU’s decision,
“read as a whole,” illustrated that AU considered the appropriate factors); see also Gainey v.
Astrue, No. 10—1912, 2011 WU 1560865, *12 (D.N.J. Apr. 25, 2011) (citation omitted) (holding
that “AU’s detailed analysis of the individual impairments and conclusion that Plaintiff did not
have ‘an impairment or combination of impairments’ that met or equaled a listing is sufficient.”).
B.
Whether AU Pizzuto’s RFC Determination is Based on Substantial Evidence
At step four, AU Pizzuto determined that Plaintiff has the RFC to perform the full range
of “sedentary work.” (R. at 15-19). Plaintiff generally argues that AU Pizzuto failed to
4
sufficiently articulate the rationale for her RFC assessment. (Pl.’s Br. 14-20). In support of his
position, Plaintiff notes that “An AU must not simply recite the evidence and then announce
a
finding.” (Id, at 16). Plaintiff’s argument is unavailing.
In making his or her RFC determination, an AU must consider all pertinent and
probative evidence. Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 203—04 (3d Cir. 2008)
(citing Burnett, 220 F.3d at 121 and Cotter v. Harris, 642 F.2d 700, 705—07 (3d Cir. 1981)).
Here, AU Pizzuto provided a thorough three-page discussion of the record in support of her
RFC finding, and, in doing so, weighed the available evidence. (R. at 15-19). In particular,
the
The social security regulations provide that:
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.
20 C.F.R.
§ 4 16.967
9
AU supported her RFC assessment by considering and weighing the following eviden
ce: (1) Dr.
Burk’ s November 2010 Physical Residual Functional Capacity Assessment; (2) treatm
ent
records of Dr. Elamir from December 2009 through July 2012; (3) the April 15,
2010 MRI of
Plaintiff’s lumbar spine; (4) the March 28, 2011 x-ray of Plaintiffs right ankle;
(5) the October
20, 2010 arterial Doppler study of Plaintiffs lower extremities; (6) Dr. Hoffman’s
October 2010
consultative examination; (7) Dr. Kapoor’s December 9, 2010 medical source statem
ent; and (8)
Plaintiffs testimony at the August 2012 hearing. (See R. at 16-17).
Contrary to the Plaintiffs argument, AU Pizzuto did not simply recite the above
evidence and come to a conclusion. Instead, the AU explained that while the
Plaintiffs
“medically determinable impairments could reasonably be expected to cause the
alleged
symptoms. .the claimant’s statements concerning the intensity, persistence and
limiting effects
.
of these symptoms are not credible to the extent they are inconsistent with the above
[RFCJ.”
(R. at 17). Though at least one circuit has described this exact language as “mean
ingless
boilerplate,” an AU’s use of this language “does not automatically underm
ine or discredit the
AU’ s ultimate conclusion if he otherwise points to information that justifies
his credibility
determination.” Pepper v. Colvin, 712 F.3d 351, 367-68 (7th Cir. 2013).
Such information may
include: (1) the extent of a claimant’s daily activities; (2) the location, duratio
n, frequency, and
intensity of pain or other symptoms; (3) precipitating and aggravating factors
; (4) the type,
dosage, effectiveness, and side effects of any medication; (5) treatment other
than medication;
(6) any measures used to relieve pain or other symptoms; and (7) other factors
concerning
functional limitations and restrictions due to pain or other symptoms.
20 C.F.R.
404.1 529(c)(3), 41 6.929(c)(3).
10
§
Here, the AU pointed out that Plaintiffs diabetes, asthma, and hypertension are
controlled with medication and the evidence does not suggest that the Plaintiff required recurre
nt
emergency room visits for these conditions. (R. at 17). AU Pizzuto also noted that the
evidence
indicates that the Plaintiffs sleep apnea is adequately treated with a CPAP machin (Id.).
e.
AU Pizzuto also pointed to information justifying her finding that Plaintiffs allegations
of disabling neuropathy are not supported by the evidence. (Id.). The AU cited to
Dr.
Hoffman’s October 2010 consultative examination which revealed that Plaintiffs periph
eral
pulses were decreased, but not absent, and that the Plaintiff had no more than a slight
antalgic
gait. (Id.). AU Pizzuto also referenced the treatment records of Dr. Elamir to suppor
t her
finding. The AU noted that the records indicated that Plaintiffs touch, pin, vibrato
ry and
proprioception sensations were normal and that there is no evidence that the Plainti
ff is
precluded from sedentary work. (Id. at 18).
The AU also pointed out that there is no evidence that Plaintiffs back pain is
disabling
based on the results of the April 2010 MRI and the October 2010 consultative examin
ation.
(Id.). Plaintiffs treating physicians felt that conservative therapy was adequate to
treat his
conditions.
AU Pizzuto acknowledged that Dr. Burk opined in his November 2010 RFC
form that
Plaintiff was capable of sedentary work. (Id. at 18). Because AU Pizzuto
has provided more
than a mere scintilla of evidence in support of her RFC determination and
given thatit is not the
role of this Court to reweigh the evidence and reach its own conclusions,
See Williams, 970 F.2d
at 1182 (noting that a district court is not empowered to “weigh the eviden
ce or substitute its
conclusions for those of the fact-finder”), the Court affirms AU Pizzuto’s
RFC determination.
C.
Whether AU De Steno Erred at Step Five by Relying on the Medical-Voc
ational
Guidelines
11
At step five, AU Pizzuto concluded that prior to November 13, 2009, a finding of “not
disabled” was directed by Medical-Vocational Guideline 201.21. (R. at 19). Plaintiff
argues that
AU Pizzuto should have invoked the testimony of a vocational expert to determine the
availability ofjobs in the national market. (P1.’s Br. 20-27). In making such a determ
ination, the
AU must consider the Plaintiffs age, education, work experience, and residual functional
capacity. 20 C.F.R. 404.1569; Heckler v. Campbell, 461 U.S. 458, 461-63, 103 S.Ct. 1952,7
6
L.Ed.2d. 66 (1983). When a Plaintiff has both exertional and non-exertional disabilities,
the AU
may not rely solely on the grids to determine employment availability in the national econom
y.
Sykes v. Apfrl, 228 F.3d 259, 273 (3d Cir. 2000) (emphasis added). Instead, the AU must
utilize
a “vocational expert or other similar evidence” in order to make such a determination.
Id.
Without utilizing vocational evidence, an AU cannot properly establish whether jobs
exist in the
national economy for a plaintiff with a combination of exertional and non-exertiona
l
impairments. Id.
Plaintiff asserts that his neuropathy causes non-exertional postural, manipulative, and
environmental limitations. However, based on the record in its entirety, the AU
did not find that
Plaintiff suffered from any severe non-exertional impairments, including neuropathy.
AU
Pizzuto properly explained the weight she gave to the different medical evidence
and to
Plaintiffs subjective complaints, and determined that the “claimant’s allegations
of disabling
neuropathy are not supported by the evidence to the degree alleged.” (R. at 17).
The Court finds
that the AU engaged in a comprehensive analysis of the Plaintiffs limitations,
and therefore,
that this determination was based on substantial evidence from the record.
When a plaintiff suffers solely from exertional limitations, an AU may direct
a
conclusion of “disabled” or “not disabled” by consulting the grids, considering
the plaintiffs
12
age, residual functional capacity, education and work experience. Allen v. Barnhart,
417 F.3d
396, 402-03 (3d Cir. 2005) (citing Heckler, 461 U.S. at 467-68). In this case, the AU
found that
Plaintiff has an RFC to perform a full range of sedentary work, is a younger individ
ual, has a
high school education, and is able to communicate in English. (R. at 19). The AU
then properly
applied Rule 201.21 of the grids to make a determination that Plaintiff is “not disable
d.” (Id.)
Thus, as Plaintiff does not have any non-exertional impairments, the AU was not
required to
consult a vocational expert.
IV.
CONCLUSION
The Court has reviewed the entire record and, for the reasons discussed above,
concludes
that AU Pizzuto s determination that Plaintiff was not disabled was supported by substa
ntial
‘
evidence. Accordingly, AU Pizzuto’ s decision is affirmed. An appropriate Order
accompanies
this Opinion.
DATED: November 6, 2014
Jose L. Linares
JOSE U. LINARES
U.S. DISTRICT JUDGE
/5/
13
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