WALTON v. COMMISSIONER OF SOCIAL SECURITY

Filing 20

OPINION. Signed by Judge Jose L. Linares on 6/8/2015. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALEXANDER WALTON,

Plaintiff,

v.

Civil Action No. 14-1123 (JLL)

OPINION

COMMISSIONER OF SOCIAL SECURITY

Defendant.

LINARES, District Judge.

This matter comes before the Court upon the appeal of Alexander Walton (“Plaintiff’)
from the final determination by Administrative Law Judge (“AU”) William Musseman
upholding the final decision of the Commissioner denying Plaintiffs application for Disability
Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). After reviewing the
submissions of both parties, the arguments presented at the June 2, 2015 hearing, and for the
following reasons, the final decision of the Commissioner is hereby affirmed.
I.

BACKGROUND’

A.

Procedural History

Plaintiff filed an application for Social Security Disability and Social Security Insurance
benefits, alleging disability since February 16, 2012. (P1. Br. at 1). Plaintiffs claim for benefit
s
was initially denied on July 24, 2012. (R. at 11). He subsequently filed a hearing reques and
t
on
January 17, 2013 a hearing was held before the AU. Id. At the hearing, the AU determ
ined
that, based on Plaintiffs RFC and the testimony of Vocational Expert (“yE”) Dennis
Duffin,
‘The facts set-forth in this Opinion are taken from the parties’ statements in their respec
tive
moving papers and the transcript of the record.

there were a significant number of jobs in the national economy that Plaintiff could perform and
that therefore Plaintiff was not disabled. Id. The Appeals Council denied Plaintiff’s request for
review of the AU decision on December 18, 2013. (R. at I). Plaintiff then filed a Local Rule
9.2 brief in this Court contesting the AU’s decision. (P1. Br. at 2).
B.

Factual History
I.

Plaintiffs Background

Plaintiff alleges disability due to pain in his right hip, his right and left knees, a heart
murmur, anxiety and depression. (P1. Br. at 2). Plaintiff is currently thirty years old and has a
GED and vocational training in carpentry. (Def. Br. at 2). He has worked as a military supply
clerk, a janitor, and a construction laborer. Id at 3. He was enlisted in the US Army from July
2010 through October 26, 2012. Id. at 3.
1.

Medical Evidence

Plaintiff’s history of bilateral knee pain dates back to 2008. jçj. He has undergone
various treatments, including usage of cream, pulse radiofrequency, and physical therapy, none
of which have proved very successful. Id. Although MRIs in March 2012 revealed a small tear
in his right discoid meniscus and associated possible posterior parameniscal cyst, x-rays in April
2012 revealed “normal knees” with no evidence of fracture, dislocation, joint effusion,
significant arthritic change, or other abnormality. çj at 4. Furthermore, Plaintiff demonstrated
normal coordination and motor strength during physical examinations, although he did have an
abnormal gait and stance. Id. at 4. He was diagnosed with bilateral patellofemoral syndrome in
2011, which affected high-impact and weight-bearing activities, but not his daily activities. Id.
Plaintiff has also received treatment for bilateral foot and plantar fasciitis pain, and ingrown
toenails. Id. However, he denied the need for surgery or use of an assistive device, shoe inserts,

or orthotics.
finding that

i4 at 5. The U.S. Army Physical Evaluation Board issued a formal decision
Plaintiff had

a 20%

disability due

to his

chronic bilateral

patellar

tendinitis/tendinopathy but his other medical conditions, including his foot proble
ms, met
medical retention standards. Id. at 5.
Plaintiff also alleges mental health impairment. Id. at 6. However, medical examiners
differed in their opinions of Plaintiff’s mental functioning. The U.S. Physical Evalua
tion Board,
based on the findings of Army psychiatrist Brian Butler, M.D., found that Plaintiffs adjustm
ent
disorder with depressed mood met medical retention standards.

Id. at 7.

Daniel Pitzer, a

licensed clinical social worker who completed an RFC assessment on Plaintiffs behalf,
found
that Plaintiff had marked limited in several categories of mental work-related functioning. Id. at
7. Meanwhile, state agency mental health consultant James Wanstrath, Ph.D., reviewed the
record and found that Plaintiff, at most, had moderate limitations in some mental work-related
functioning. RI. at 7-8. Dr. Victor Neufeld, following a consultative psychological evalua
tion
ordered by the state agency, found that Plaintiff was moderately impaired in understandin
g and
recalling instructions, markedly impaired in social interaction, and mildly to moder
ately
impaired with respect to persistence and pace. Id. at 8. Dr. Brad Marten, in another consul
tative
psychological examination, found that, overall, Plaintiff exhibited a stable level of psycho
social
functioning, with the ability to attend to simple instructions and directions in a work setting
.
at 8.
Plaintiff himself told his counselor at Evans Army Community Hospital betwee
n June
2011 and April 2012 that he continued to walk despite his pain since he did not have
a car, that
he planned to go to the gym on his days off, that he had a close friend since he was
a kid, that he
planned to go to college, that he talked to and had the support of his mother, that
he spent the

holidays relaxing with friends, and that he had a girlfriend and that he was looking forward to a
trip to California to visit her family.
C.

ich at 6.

VE’s Testimony

The AU first asked the VE to assume a hypothetical individual with Plaintiffs age and
educational background, limited to light exertional level with a sit-stand option, occasional
squatting and kneeling, no ladders or scaffolds, no foot or leg controls, occasional dealing with
the general public on a face to face basis and no complex tasks, defined as a Specific Vocational
Preparation (SVP) level of 2 or less. (R. at 46). The VE testified that an individual with those
limitations would be able to work as a survey worker or scale attendant, both jobs with skill
levels of 2 and light occupations or a call out operator, also skill level 2, but a sedentary
occupation. (R. at 46-47). The VE also testified that the jobs were generally compatible with
their descriptions in the DOT. (R. at 47).
In the second hypothetical the AU asked the VE to assume the same restrictions as the
first hypothetical with additional modifications: a less than occasional ability to perform work
activities within a schedule, maintain regular attendance and be punctual; less than occasional
ability to sustain ordinary routine, without special supervision; less than occasional ability to
work in coordination with or proximity to others; less than occasional ability to make simple
work-related decisions; and a less than occasional ability to get along with co-workers or peers,
without distracting them or exhibiting behavioral extremes. (R. at 47). The VE testified that an
individual who possessed the limitations of the second hypothetical was not compatible with any
competitive employment. çj
Finally, in response to questioning by Plaintiff’s attorney, the VE also testified that the
sit-stand option, included as a limitation in the AU’s hypotheticals, was not defined by the DOT

and the methodology he and his associates used to determine whether the jobs had a sit-stand
option was observation, work evaluations, and site evaluations. (R. at 48).
IL

STANDARD OF REVIEW

The standard of review for this Court is whether the AU’s decision is based on
substantial evidence in the record as a whole. 42 U.S.C.

§

405(g). Although the Social Security

Act is a remedial statute that should be broadly construed, the “substantial evidence” standard is
a deferential one and the AU’s decision must be affirmed if supported by “more than a mere
scintilla.

.

.

.

but less than a preponderance.” See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir.

2004): Woody v. Sec’y of Health & Human Servs., 859 F.2d 115, 1159 (3d Cir. 1988).
Substantial evidence includes objective medical facts, diagnoses or medical opinions based on
those facts, subjective evidence obtained or disability testified to by the claimant, and the
claimant’s age, education and work experience. Curtin v. Harris, 508 F. Supp. 791 (D.N.J. 1981).
The AU must specifically indicate why particular evidence was rejected. See Burnett v. Comm’r
of Soc. Sec, 220 F.3d 112, 121 (3d Cir. 2000) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.
1981)).
LII.

APPLICABLE LAW

The Social Security Administration has developed a five-step evaluation process to
determine whether an individual is disabled. 20 C.F.R.

§ 404.1520. The AU must consider

whether the claimant is engaged in any “substantial gainful activity,” whether he suffers from a
severe impairment, and whether the impairment meets or medically equals the severity of a listed
impairment. 20 C.F.R.

§ 404.1520(a)(4)(i)

-

(iii), 404.1520 (d). If the impairment meets or

medically equals the severity of a listed impairment then the claimant automatically qualifies for
disability benefits.

20 C.F.R.

§ 404.1520 (a)(4)(iii), 404.1520 (d). If not, the AU must

determine the claimant’s RFC and evaluate whether the claimant can return to his past relevant
work or perform any other work present in significant numbers in the national economy.
IV.

DISCUSSION
Plaintiff argues that the AU improperly evaluated the medical record, undermining the

severity of Plaintiff’s impairments and credibility, therefore resulting in an improper calculation
of Plaintiffs RFC at step four. Consequently, Plaintiff further argues that at step four the AU
erred by failing to include all of Plaintiffs limitations in the hypothetical posed to the VE and
that the AU erred in his conclusion that Plaintiff can perform work in the national economy, as
per step five. 20 C.F.R.
1.

§ 404.1 520(a)(4)(iv), 404.1 520(a)(4)(v).

THE AL.J’S DETERMINATION THAT PLAINTIFF RETAINS THE
FUNCTIONAL CAPACITY TO PERFORM LIGHT WORK IS SUPPORTED BY
SUBSTANTIAL EVIDENCE.
The RFC is an administrative finding that the AU is solely responsible for determining,

based on consideration of the record as a whole. 20 C.F.R.

§

404.1527(e). In determining a

claimant’s RFC, the AU must consider all medically determinable impairments, whether severe
or non-severe. Slaughter v. Astrue, 2008 U.S. Dist. LEXIS 16954, *14 (D.N.J. Mar. 3, 2008).
Furthermore, the AU retains the discretion to make a credibility judgment, “determining the
extent to which a claimant is accurately stating the degree of pain or the extent to which he
is disabled by it.” Id., citing HartranfI v. Apfel, 181 F.3d 358, 362 (3d Cir.l999). A subjective
complaint alone cannot establish disability; objective medical evidence must be provided. 20
C.F.R.

§ 404.1529(a). In the case of conflicting evidence, the AU may reject a claim if he

provides “explanation” for the rejection. Slaughter, 2008 U.S. Dist. LEXIS 16594, at *14.
ln this case, the AU determined that Plaintiffs bilateral knee impairment would limit
him to a light range of work light with occasional squatting, kneeling, no climbing of ladders or

scaffolds, no operation of foot or leg controls, and a sit/stand option. (R. at 26). The AU also
determined that the claimant’s mental impairments would restrict the claimant to work involving
no complex tasks, a SVP level of 3 or less, with only occasional interaction with the general
public. Id. While the AU considered the record as a whole, he rejected several of the Plaintiff’s
alleged limitations because he did not find them to be credible when viewed against the backdrop
of the medical evidence. Id.
A.

The AU’s determination that Plaintiff’s claim of extensive bilateral knee pain
was not credible in light of the record is supported by substantial evidence.

The AU provided extensive reasoning as to why he did not find Plaintiff’s claim of
extensive bilateral knee pain to be credible. (R. at 20). The AU closely examined the objective
evidence and failed to find a compelling basis for Plaintiff’s pain complaints because record
failed to demonstrate that the knee pain precludes Plaintiff from all work in the national
economy. Id.

For example, although the AU conceded that MRIs showed small tears and

Plaintiff walks with a cane, he pointed to the fact that in May 2011, bilateral knee x-rays were
negative and in April 202, bilateral knee x-rays revealed “normal knees” with adequately
maintained joint space and no evidence of fracture, dislocation, joint effusion, significant
arthritic change, or other abnormality. (R. at 19-21). Furthermore, Plaintiff’s daily activities
were not consistent with the limited abilities that he alleged, noting for example, that Plaintiff
reported playing basketball for 60-90 minutes. (R. at 20). The AU also pointed to the facts that
Plaintiff was able to sit in a military vehicle for at least twelve hours per day, that he continued to
walk, and that he planned to go to the gym on his day off. içj These activities were determined
by the AU to sufficiently demonstrate that Plaintiff’s pain was not disabling. (R. at 20-24).
The AU

also explained that Plaintiff had only received routine and conservative

treatment for his knee pain. Plaintiff cited to the Third Circuit case Sykes v. Apfel, where the

Third Circuit remanded the AU decision because the

explanation for the conclusion that the

evidence did not support the claimant’s allegation was that the claimant had only received
conservative treatment. Sykes v. Apfel, 228 F.3d 259, 266 n.9 (3d Cir. 2000). However, Sykes is
distinguishable. In this case, the AU noted other medical evidence in addition to the fact that
Plaintiff received routine and conservative treatment, as discussed above.
While Plaintiff also disagrees with the AU’s finding that he is capable of jobs that
involve occasional squatting or kneeling, he presents no objective medical evidence that
specifically states that he cannot squat or kneel. In the absence of objective medical evidence,
the AU is not required to accept Plaintiffs subjective claims. The AU also found this contrary
to the fact that Plaintiff was able to undergo highly intensive training during basic training for the
U.S. Army despite knee pains. (R. at 20). Furthermore, the AU cited evidence that Plaintiff
was inconsistent between his pain complaints and presentation.

For example, physical

therapy notes showed improved of Plaintiffs symptoms although Plaintiff reported that physical
therapy was not helpful. Id. Therefore, the AU provided substantial evidence for his conclusion
that that Plaintiffs claim of extensive bilateral knee pain was not credible.
B.

The AU provided substantial evidence as to why he did not award
weight to the findings of certain medical professionals and other agencies.

The AU assigned little weight to the opinion of consultative examiner Dr. Neufeld and
no weight to the opinion of licenses clinical social worker Daniel Pitzer using the 20 C.F.R.
404.1527(c) factors. (R. at 16-18). Objective factors to consider in determining how to weigh
evidence from medical professional include (1) the examining relationship, (2) the treatment
relationship, including length, frequency, nature, and extent of the treatment, (3) the
supportability of the opinion, (4) its consistency with the record as a whole, and (5) the
specialization of the individual giving treatment. 20 C.F.R. 404.1527(c).

First, although the AU noted that Daniel Pitzer treated Plaintiff, he only treated Plaintiff
for a month and provided no treatment notes or explanation for his conclusions regarding
Plaintiffs mental functioning. (R. at 25). Furthermore, he was a licensed clinical social worker
and therefore not an “acceptable medical source” per 20 C.F.R.

§ 404.15 13(a). Id. Second, the

AU awarded little weight to the findings of Dr. Neufeid, because he treated Plaintiff only once,
failed to cite records specifically, and relied heavily on Plaintiffs subjective reports, which he
admitted were inconsistent and to the findings of the military evaluation board, because they did
not address Plaintiffs limitations as a civilian. (R. at 22, 24).
Additionally, the AU considered the findings of the VA disability determination, but
found that they were heavily based on subjective claims of Plaintiff and therefore accorded them
little to no weight. (R. at 25-26). Furthermore, ultimately the findings of other agencies are not
binding on the AU. 20 CFR

§ 404.1 527(e)(2)(i). Accordingly, the AU provided substantial

evidence as to why he did not award great weight to Plaintiffs claims of mental impairment
because he provided specific reasoning in accord with the regulations.
C.

The AU gave proper consideration to Plaintiffs foot problems in determining
his RFC.

Contrary to Plaintiffs assertion, AU properly considered Plaintiffs plantar fasciitis and
bilateral pies pianus in determining his RFC. First, the AU specifically limited Plaintiffs range
of work to not include foot or leg controls. (R. at 26). Second, the AU pointed to the fact that
Plaintiff only sought routine and conservative treatment for his foot pains, and that U.S Army
doctors found that Plaintiffs foot impairments met medical retention standards. (Def. Br. at 5).
Moreover, as discussed above, the record demonstrates that Plaintiff was still able to engage in
daily activities and his own testimony suggests that weakness in his ability to walk was due to

pain in his knees not to his foot problems. (R. at 38-44). Accordingly, the AU’s determination
of Plaintiff’s RFC is supported by substantial evidence.
II.

THE AU’S DETERMINATION THAT PLAINTIFF COULD PERFORM A LIGHT
AND SEDENTARY JOB EXISTING IN THE NATIONAL ECONOMY IS
SUPPORTED BY SUBSTANTIAL EVIDENCE.
Step five of the sequential evaluation process requires that the AU consider Plaintiff’s

RFC, age, education, and work experience in conjunction with the Medical-Vocational
guidelines, and consultation with the VE to determine whether there are a significant number of
jobs in the national economy that the claimant can perform. 20 C.F.R.

§ 404.1566(a). A VE or

other specialist may be employed in determining whether there exists a specific occupation for
the claimant’s work skills. 20 C.F.R.

§ 404.1566(e). The VE is not required to provide anything

other than his own experience and knowledge when providing his testimony.

2000 SSR

LEXIS 8, *2. However, a vocational expert’s testimony must be based upon a hypothetical that
“accurately portrays the claimant’s individual physical and mental impairments” that are
medically established. Podedworny v. Harris, 745 F.2d 201, 218 (3d Cir. 1984).
In this case, the AU properly utilized the expertise of a VE to determine whether or not
there were any jobs in the national economy that Plaintiff could occupy, due to the complexity of
his additional limitations. The AU ‘s first hypothetical to the VE included the limitations of a
light exertional level with a sit-stand option, occasional squatting and kneeling, no ladders or
scaffolds, no foot or leg controls, occasional dealing with the general public on a face to face
basis and no complex tasks (SVP of 2 or less). (R. at 46). In response, the VE testified that an
individual with those limitations would be able to work as a survey worker, scale attendant or
call-out operator. (R. at 46-47). The AU’s second hypothetical imposed additional limitations
including a less than occasional ability to perform work activities within a schedule, work with

others and make work-related decisions. (R. at 47). The VE testified that such an individual
could not perform any competitive employment.

Id..

However, only the first hypothetical

accurately portrayed Plaintiff’ impairments because, as discussed above, Plaintiff’s extensive
claims of mental impairments and markedly impaired social interaction were not found credible
in determining Plaintiff’s RFC. Consequently, Plaintiffs claims were not medically established
and therefore the AU did not need to consider the VE’ s answer to his second hypothetical in his
final determination.
Furthermore, the Social

Security Agency (“Agency”) may take into account

administrative notice ofjob data from publications such as the Dictionary of Occupational Titles
(“DOT”), published by the Department of Labor. 20 C.F.R.

§ 404.1566(d). The Commissioner

uses SVP levels to define the level of skill required by an occupation. SSR OO-4p, 2000 SSR
LEXIS 8, *2; 20 C.F.R.

§ 404.1560. Plaintiff is correct in his assertion that the job “scale

attendant” does not exist in the DOT as a specific occupation, however C.F.R. §404.1566(b) only
requires that there be a significant number of jobs in

or more occupation. The VE’s

recommendations of survey worker and call out operator, both of which are listed in the DOT,
only require a SVP level of 2 and the AU determined that the Plaintiffs SVP level was a 3 as
part of his RFC. (R. at 26). There is substantial evidence to support the AU’s determination of
Plaintiffs SVP. Specifically, the AU accorded some weight to the findings of Dr. Wanstrath, the
State agency psychological consultant, who determined that the Plaintiff was capable of work of
limited complexity but which requires accuracy and attention to detail. (R. at 24). The AU also
noted that Dr. Wanstrath found that Plaintiff could not work closely with supervisors and co
workers, but could accept supervision and relate to co-workers and the general public if contact
is not frequent or prolonged.

Ich

Finally, as there was no actual conflict with the DOT and both parties considered the VE
a qualified expert at the time of the administrative hearing, the VE’s opinion did not need to be
supported by any additional scientific methodology, contrary to Plaintiffs assertion.
Accordingly, the VE’s testimony provided substantial evidence that the AU relied upon in
making his determination that the Plaintiff could perform a significant number of jobs in the
national economy. Therefore, this Court finds that the AU’s determination that Plaintiff is not
disabled is supported by substantial evidence. As such, the final decision of the Commissioner is
affirmed.
V.

CONCLUSION

For the foregoing reasons, the decisions of the Commissioner are affirmed. An appropriate order
accompanies this Opinion.

DATED

of June, 2015

L. L1NARES
iUS. DISTRICT JUDGE