MICHAELS v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

OPINION. Signed by Judge William J. Martini on 11/24/14. (gh, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:14-cv-01473 (WJM)

GINA MICHAELS,
Plaintiff,

OPINION
v.
CAROLYN W. COLVIN
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Gina Michaels 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 her Title II application for a period of disability and disability
insurance benefits, and Title XVI application for supplemental security income. For the
reasons that follow, the Commissioner’s decision is AFFIRMED.
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.” 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
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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. Admin., 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). Substantial evidence 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, this Court must
abide by the ALJ’s determinations. See id. (citing 42 U.S.C. § 405(g)).
II.

BACKGROUND

Plaintiff – a fifty-year-old resident of Rockaway, New Jersey – seeks a finding of
disability on the basis of the following impairments: (1) chronic obstructive pulmonary
disease (“COPD”); (2) obsessive compulsive disorder (“OCD”); (3) a back disorder; (4)
asthma; (5) drug use (now in remission); and (6) other affective disorders, including
anxiety and depression. Administrative Transcript (“Tr.”) 21. Plaintiff has a 10th grade
education and has no relevant prior work experience for the purposes of the Social Security
Regulations. Tr. 25, 32.
On April 15, 2010, Plaintiff filed a Title II application for a period of disability and
disability insurance benefits (“DIB”), and a Title XVI application for supplemental security
income. Tr. 18. Plaintiff’s application alleged that she could not work because she suffered
from a variety of impairments, including asthma, Hepatitis C, hypothyroidism, drug
addiction, and other affective disorders. Tr.194. Plaintiff states that her mood disorders
stem from the fact that her father molested her when she was a child. Tr. 57, 517. The
ALJ denied Plaintiff’s claim on September 27, 2012. Tr. 33. In doing so, the ALJ
concluded that Plaintiff possessed the residual functional capacity (“RFC”) to perform
sedentary work and was therefore “capable of making a successful adjustment to other
work that exists in significant numbers in the national economy.” Tr. 33. On January 19,
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2014, the Appeals Council denied Plaintiff’s request for a review of that decision. 1 Tr. 15.
Plaintiff now appeals.
A. Summary of the Record
The record includes medical records from treating physician Dr. Arjun Dhirmalani,
M.D., reports from social worker Chananyah Silverman, LSW, opinions from two nonexamining sources, assessments from Social Security Administration physicians Dr. Henry
Rubenstein, M.D. and Dr. Alan Malter, M.D., testimony from vocational expert (“VE”)
Patricia Sasona, Plaintiff’s own testimony, and other medical records.
Dr. Dhirmalani, who is Plaintiff’s treating physician, submitted a report indicating
that Plaintiff was only capable of less than sedentary work, i.e., Plaintiff could only stand
and/or walk for no more than two hours per day and had limited ability to push or pull
objects while working. Tr. 514. The record also consists of a report from Dr. Dhirmalani
indicating that Plaintiff suffers from asthma, COPD, and lumbosacral radiculopathy. Tr.
359. With respect to the non-examining source reports, one report noted that Plaintiff
explained that she suffered from asthma attacks four to five times a month. That same
report, however, concluded that Plaintiff was capable of performing light work. Tr. 315.
The other report stated that even though Plaintiff suffered from a number of affective
disorders – including depression and PTSD – she was still capable of performing simple
work. Tr. 334.
Plaintiff also underwent a psychiatric evaluation conducted by Dr. Malter. Tr. 311.
The evaluation shows that as of August 2, 2010 Plaintiff suffered from depression and
chronic anxiety, but did not experience suicidal ideation. Id. The report noted that Plaintiff
was previously addicted to heroin but has abstained from using since 2007. Id. Dr. Malter
also performed a “mental status evaluation” of Plaintiff, which concluded that Plaintiff was
a “generally coherent and goal directed” individual whose long and short term memory is
intact. Tr. 312. The evaluation also indicated that Plaintiff’s “concentration was
subjectively poor” and that her intelligence was “normal to low-normal.” Id. While
observing that Plaintiff was capable of managing her own finances, the report noted that
Plaintiff’s functioning was “quite constricted.” Tr. 311-12.

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Plaintiff’s application to the Appeals Council for expedited review shows that her
depression may have worsened since the ALJ’s 2012 decision. Tr. 526-33. While the
Court sympathizes with Plaintiff, it can only consider the record that was before the ALJ
or “new and material” evidence that “relate[s] to the time period for which benefits were
denied, and [does] not concern evidence of…the subsequent deterioration of the previously
non-disabling condition.” Raglin v. Massanari, 39 Fed.Appx. 777, 780 (3d Cir. 2002)
(citing Szubak v. Sec’y of Health and Human Services, 745 F.2d 831, 833 (3d Cir. 1984)
(emphasis added).
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On August 18, 2010, Plaintiff underwent a physical examination from Dr.
Rubenstein. Tr. 300. Dr. Rubenstein noted that Plaintiff reported having asthma attacks
four to five times a month, but had not needed emergency care for the condition since 2008.
Additionally, Plaintiff’s medication had been effective in treating her asthma symptoms.
Id. Test results revealed that Plaintiff had “moderately advanced obstructive pulmonary
disease” that responded well to bronchodilation. Tr. 301. Dr. Rubenstein also reported
that Plaintiff had Hepatitis C, but did not require treatment for the condition. Id.
Additionally, the record includes reports from social worker Chananyah Silverman.
In a 2012 psychiatric evaluation, Ms. Silverman noted that Plaintiff attempted suicide
twice, one time in 2000 and another in 2006. Tr. 517. She also indicated that Plaintiff
reported being depressed and unable to concentrate. Id. After conducting an examination
of Plaintiff, Dr. Silverman concluded that Plaintiff was “friendly, cooperative…and
engages easily.” The report also concluded that Plaintiff was coherent and oriented with
“sufficient attention and concentration.” Id. at 518-19. Ms. Silverman opined that Plaintiff
suffered from marked deficiencies in maintaining social functioning and concentration, but
also noted that Plaintiff only experienced a slight restriction in activities of daily living.
Tr. 524.
In providing her own testimony at the administrative hearing, Plaintiff stated that
she suffered from back pain since 2005 and suffers with frequent bouts of exhaustion. Tr.
59-62, 69-70. Plaintiff also reported that she weighed 118 pounds, but that her typical
weight was 105. She attributed the weight gain to “a lot of starched foods.” Tr. 63. With
respect to her daily activities, Plaintiff testified that she would frequently organize things
in her room, write in her journal, spend time with a friend, attend church and watch her dog
play outside. Tr. 67-68, 75. Plaintiff also testified that she was “scatter-brained,”
depressed, and anxious. Tr. 74-79. Plaintiff submitted a function report indicating that she
suffered from anxiety and depression. Tr. 222-223. However, her report also explained
that she was capable of cleaning the apartment, preparing her own meals, and following
spoken directions. Tr. 223-226.
Finally, VE Patricia Sasona concluded that someone of Plaintiff’s RFC (as
concluded by the ALJ), age, education, and work experience has the ability to work as a
table worker, final assembler, and small hand packager.
B. The ALJ’s Decision
At step one, the ALJ found that Plaintiff did not engage in substantial activity during
the relevant time period. Tr. 21. At step two, the ALJ concluded that Plaintiff had the
following severe impairments: (1) a disorder of the back; (2) Hepatitis C; (3) COPD; (4)
asthma; (5) affective disorder, including PTSD, OCD, ADD, depression, anxiety, and
bipolar disorder; and (6) substance abuse (in remission). Id. 2 The ALJ found the
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The ALJ also mistakenly performed an obesity analysis at Step One. Tr. 23. Plaintiff
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impairments to be “severe” under the Regulations “because a medical record supports a
finding that they are medically determinable impairments which, when considered either
individually or in unison, significantly limit the claimant’s mental and physical abilities to
do one or more basic work activities.” Id. At step three, the ALJ concluded that Plaintiff’s
impairments did not meet nor were equivalent to one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1, Part A. Tr. 21-23.
At step four, the ALJ found that Plaintiff has the RFC to perform sedentary work as
defined under the Regulations, i.e., she is able to lift or carry 10 pounds, perform unlimited
pushing and pulling within that weight restriction, stand/walk for two hours in an eight
hour workday, and sit for six hours a day so long as she is provided adequate breaks. Tr.
24. At step five, the ALJ concluded that given Plaintiff’s RFC, age, education, and
occupational history, she is capable of performing the jobs of table worker, final assembler,
and small package handler. Tr. 33. After determining that a “significant number” of those
types of occupations exist in the economy, the ALJ concluded that Plaintiff was not
disabled within the meaning of the Act and therefore not entitled to DIB or supplemental
security income. Id.
In finding that Plaintiff was capable of sedentary work, the ALJ took into account a
wide variety of sources concerning her mental health and functioning. Tr. 25. The ALJ
pointed out that Dr. Malter’s report showed that Plaintiff was a goal-oriented individual
who possessed an adequate memory and communication skills. Tr. 26. The ALJ did note
that Dr. Malter assessed Plaintiff as having a Global Assessment of Functioning score of
50, which denotes serious symptoms and impairment, as well as a “subjectively poor”
ability to concentrate”; however, the ALJ found that the other aspects of the report
demonstrated that Plaintiff was “capable of understanding and remembering simple work.”
Id. The ALJ also noted that records from a correctional facility that formerly housed
Plaintiff concluded that Plaintiff was “oriented to all three spheres” and “calm, cooperative,
and well groomed.” Id. Of note to the ALJ was the fact that Plaintiff demonstrated no
suicidal tendencies or need for impatient care since 2006. Tr. 28. Finally, the ALJ focused
on Plaintiff’s own testimony and self-completed reports, which demonstrated that Plaintiff
was capable of, among other things, doing household chores, taking public transportation,
managing her own money, and shopping. Id.
With respect to Plaintiff’s back disorder, the ALJ focused on objective medical
records showing that Plaintiff’s back impairments were “mild.” Id. The ALJ similarly
noted that no physical examinations revealed any significant abnormalities. Tr. 29.

asserts that the ALJ instead should have evaluated her “malnourishment and extreme
weight loss.” (Plf’s Brief at 24). The Court disagrees with Plaintiff’s position because
Plaintiff has never submitted that she was malnourished; instead, she attributes recent
weight gain to a change in diet. See Tr. 63.
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The ALJ also considered evidence pertaining to Plaintiff’s respiratory problems,
including a 2011 chest x-ray showing normal results 3 and a 2012 follow-up report showing
no significant changes in Plaintiff’s medical condition. Tr. 26. While the ALJ concluded
that Plaintiff suffered from COPD, she also pointed out that a 2011 examination from her
treating physician showed that Plaintiff’s lungs were clear. Tr. 27. Similarly, Plaintiff
experienced bilateral wheezing during 2011 and 2012 examinations, but the use of a
nebulizer abated those symptoms. Id.
The ALJ declined to give controlling weight to the opinion of Plaintiff’s treating
physician, Dr. Dhirmalani. Tr. 30. Instead, the ALJ concluded that the objective medical
evidence demonstrated that Plaintiff – while suffering from impairments – did not suffer
from impairments so severe as to preclude her from all work. The ALJ specifically relied
on the fact that Plaintiff did not require recurrent hospitalizations or emergency room
treatment for COPD or asthma. Id. The ALJ similarly declined to give Ms. Silverman’s
opinion controlling weight because it was not consistent with the objective medical
evidence. Id.
III.

DISCUSSION

Plaintiff challenges the ALJ’s determination that she was not disabled under the
Social Security Act. Specifically, Plaintiff argues that the ALJ committed the following
errors: (1) failure to properly weigh the medical opinion evidence; (2) improper and
inconsistent characterization of the record; and (3) failure to properly weigh the symptom
evidence. The Court will address these arguments in turn.
A. Step Four: Failure to Properly Weigh Medical Opinion Evidence
Plaintiff argues that the ALJ failed to properly weigh the various medical opinions,
particularly those of Dr. Malter, Dr. Rubenstein, the state agency professionals, and Dr.
Dhirmalani. The Court disagrees.
When determining a claimant’s RFC, an ALJ will analyze and assign weight to
medical opinions. 20 C.F.R. § 416.927; 20 C.F.R. § 404.1527. However, because the issue
of whether a claimant is disabled is reserved solely for the Commissioner, the ALJ is not
bound by any medical opinion. See 20 CFR §§ 404.1527(d)(3), 404.1545(a),
416.927(d)(3), 416.945(d)(3); see also Kertesz v. Crescent Hills Coal Co., 778 F.2d 158,
163 (3d Cir. 1986) (“ALJ is not bound to accept the opinion or theory of any medical
expert, but may weigh the medical evidence and draw its own inferences”) Moreover, an
ALJ has the authority to credit one medical opinion over the other, so long as the decision

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Specifically, the 2011 x-ray demonstrated “no evidence of congestion, infiltrate or
effusion.” Tr. 371.
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is supported by substantial evidence. See e.g. Nichols v. Commissioner, 404 Fed.Appx.
701, 705 (3d Cir. 2010).
Plaintiff argues that the ALJ erred by failing to weigh the medical opinions of Drs.
Malter and Rubenstein. Defendant counters that those two sources provided only
“treatment records” – not medical opinions – and therefore the ALJ was not required to
attribute any weight to either physician. The Court need not reach the issue of whether
Drs. Malter and Rubenstein provided “medical opinions” because it finds that the ALJ
considered and weighed their reports when reaching her determination. For example, the
ALJ acknowledged that that Dr. Malter reported that Plaintiff suffered from “subjectively
poor” concentration and a GAF score of 50, but nonetheless concluded that other evidence
on the record demonstrated that she possessed the ability to, among other things,
communicate and follow directions. Tr. 26 - 28. The ALJ similarly weighed the findings
of Dr. Rubenstein, including medical observations that Plaintiff suffered from asthma. The
ALJ nonetheless concluded that other objective evidence – such as chest x-rays – showed
that Plaintiff’s condition was controllable. Tr. 28-29, 32.
Plaintiff also argues that the ALJ erred in favorably citing to the non-examining
medical consultant opinions on the grounds that those opinions were issued before the
record was complete. However, “because state agency reviews precedes ALJ review, there
is always some time lapse between the consultant’s report and the ALJ hearing and
decision.” Chandler v. Commissioner, 667 F.3d 356, 361 (3d Cir. 2011). Therefore, the
ALJ was permitted to partially rely on the non-examining medical consultants, so long as
she did not neglect the additional, subsequent evidence when rendering her decision. See
id.; see also Vergith v. Colvin, No. 13-286E, 2014 WL 4262174, *9 (W.D.Pa. Aug. 27,
2014) (affirming finding of no disability where “medical records subsequent to the [nonexamining consultant opinion] were considered by the ALJ.”) And contrary to Plaintiff’s
position, the non-examining medical consultants’ opinions are consistent with a finding of
no disability because they both indicate that Plaintiff is capable of performing simple work.
See Tr. 316, 334.
Finally, Plaintiff contends that the ALJ erred in overruling Dr. Dhirmalani’s opinion
that Plaintiff is only capable of less than sedentary work. The Court disagrees. A treating
source’s opinion on the issues of the nature and severity of an individual’s impairment
must be given controlling weight if the opinion is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with other substantial
evidence. 20 C.F.R. § 404.1527(d)(2); Social Security Ruling (SSR) 96-2p; Fargnoli v.
Massanari, 247 F.3d 34, 43 (3d Cir. 2001). Moreover, “[a] treating source’s medical
opinion will not be entitled to controlling weight if substantial nonmedical evidence shows
that the individual’s actual activities are greater than those provided in the treating source’s
opinion.” SSR 96-2. Here the ALJ declined to give Dr. Dhirmalani’s opinion controlling
weight for a variety of reasons. 4 She noted that despite the fact that Dr. Dhirmalani had
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While the ALJ noted that Dr. Dhirmalani may be financially motivated to submit a report
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diagnosed Plaintiff with COPD, the objective medical evidence showed that Plaintiff’s
condition responded well to medication and had not required emergency treatment or
hospitalization. Tr. 29. Additionally, the ALJ rested on medical reports, including x-rays,
showing that Plaintiff – while suffering from a back disorder – did not experience the sort
of back-related debilitation that would prevent her from working. See Tr. 27. The Court
therefore concludes that the ALJ’s weighing of medical opinions was proper.
B. Step Four: Improper and Inconsistent Characterization of the Record
Plaintiff argues that the ALJ’s finding of no disability is not supported by substantial
evidence because it was premised on a mischaracterization of the record. As a threshold
matter, this Court must evaluate the ALJ’s findings “with the deference required of the
substantial evidence standard of review.” Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir.
2002). In other words, “the question is not whether [the Court] would have arrived at the
same decision; it is whether there is substantial evidence supporting the Commissioner’s
decision.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). This Court finds that the
ALJ did not mischaracterize the record and the finding of no disability is supported by
substantial evidence. In support of her argument, Plaintiff selectively quotes from different
parts of the record that purport to demonstrate disability. For example, she relies on a 2010
Function Report in which Plaintiff described experiencing, among other things, depression,
anxiety, panic attacks, and fear. However, the ALJ did not conclude that Plaintiff did not
suffer from those ailments; instead, she found that Plaintiff did not experience them to a
degree that would support a finding of disability. Other notes from the 2010 Function
Report support the ALJ’s conclusion: they show that Plaintiff was capable of shopping for
groceries, preparing food, performing household chores, meeting a friend, and attending
church. Tr. 216-228. The Court therefore concludes that the ALJ’s decision is not
premised on an improper or inconsistent characterization of the record and is instead
supported by substantial evidence.
C. Step Four: Failure to Properly Weigh the Symptom Evidence
Plaintiff also argues that the ALJ erred by failing to properly take into account the
severity of Plaintiff’s symptoms. The Court disagrees and concludes that the ALJ’s
findings regarding Plaintiff’s symptoms are supported by substantial evidence. In support
of her position, Plaintiff contends that the ALJ disregarded Plaintiff’s own testimony
stating that she would be unable to hold a regular job due to her depression. However, if
an ALJ were required to entirely credit such testimony in every circumstance, there would
never be a need for an administrative hearing because implicit in any application for
benefits is an assertion that the claimant is unable to work. Instead, and as explained in
greater detail in the foregoing sections, the ALJ concluded that other evidence – including
Plaintiff’s 2010 Function Report and other psychiatric evaluations – demonstrated that
that supported Plaintiff’s application, she nonetheless relied primarily on other objective
medical evidence when declining to adopt his opinion.
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Plaintiff had the capacity to perform light work that did not require interaction with the
general public. Tr. 28. The Court reaches a similar conclusion with respect to the ALJ’s
evaluation of Plaintiff’s other symptoms: the ALJ surveyed the various evidentiary
sources, concluding that while Plaintiff did suffer from her impairments, her symptoms
were not sufficiently severe to preclude her from performing all work. Tr. 29-32. The
Court will therefore affirm the ALJ’s decision.
IV.

CONCLUSION

For the foregoing reasons, the Commissioner’s decision is AFFIRMED. An
appropriate order follows.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: November 24th, 2014

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