NOVELLINO v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Claire C. Cecchi on 3/16/2015. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LISA NOVELLINO.

Civil Action
(CCC)

No.:

2:14-cv-01503

Plaintiff,
v.

OPINION

MICHAEL J. ASTRUE
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

CECCHI, District Judge.
I.

INTRODUCTION

Lisa Novellino (“Plaintiff’) appeals the final determination of the Commissioner of the
Social Security Administration (“Commissioner” or “Defendant”) denying Plaintiff disability
benefits under the Social Security Act. The Court has jurisdiction under 42 U.S.C.

§ 405(g) and

1383(c)(3). This motion has been decided on the written submissions of the parties pursuant to
Federal Rule of Civil Procedure 78.1

For the reasons set forth below, the decision of the

Administrative Law Judge (the “AU”) is Affirmed.
II.

BACKGROUND
A,

Procedural History

Plaintiff filed a Title TI application for disability insurance benefits (“DIB”) on June 17.

‘The Court considers any arguments not presented by the parties to be waived. See Brenner
927 F.2d 1283, 1298 (3d Cir. 1991) (“It is well
established that failure to raise an issue in the district court constitutes a waiver of the argument.”).

2010. alleging disability beginning July 31, 2000 (the “Onset Date”). (Administrative Record
(“R.”) 15. ECF No. 5). Plaintiff claimed that she was unable to work due to multiple sclerosis,
bipolar disorder; depression; anxiety; and memory loss. (R. 65). The application was denied on
October 3. 2010, and again upon reconsideration on May 24, 2011. (R. 65; 73). Thereafter,
Plaintiff filed a written request for a hearing before an AU on July 18, 2011. (R. 76).
AU Norman R. Zamboni held a hearing in this matter on July 16, 2012. (R. 15). On
August 14, 2012, AU Zamboni determined that Plaintiff was not disabled prior to June 30, 2006
(the “Date Last Insured”) and denied Plaintiff’s application. (R. 15-22; 141). On August 28, 2012,
Plaintiff formally requested that the Appeals Council review the AU’s decision. (R. 11). The
Appeals Council denied Plaintiffs request on January 9, 2014. (R. 1). On March 8, 2014, Plaintiff
timely filed the instant complaint (the “Complaint”). (Complaint of Lisa Novellino, filed March
8, 2014, ECF No. 1).
B.

Personal and Employment Background

Plaintiff is forty-four years old. (R. 137). On the Onset Date in 2000, Plaintiff was twenty
nine. (R. 137). In 1993, Plaintiff received a bachelor’s degree from William Paterson University.
(R. 36). Plaintiff is married and has no dependents. (R. 137-138).
During the ten years immediately preceding the Onset Date, Plaintiff had an average yearly
income of S20,2i220. (R. 143). Plaintiffs last vocation prior to the Onset Date was “program
coordinator: a job she held between 1998 and 1999. (R. 144-145: 149). Her average yearly
income dunng those years was S3l,95927. (R. 144-145).
Plaintiff s employment as a program coordinator ended in 1999 when she voluntarily
terminated her position to move to Colorado and become a veterinary technician. (R. 32-33). In
2000, Plaintiff stopped pursuing a veterinary technician license because she “realized that helping
2

children would be more meaningful than helping animals.” (R. 33). Thereafter, Plaintiff moved
to New Jersey to pursue her teaching license, (R. 32-33; 35).
From 2000 to 2003, Plaintiff had no reported income. (R. 143). From 2004 to 2006,
Plaintiff worked as a substitute teacher once or twice a week. (R. 53). Plaintiffs incomes in 2004.
2005 and 2006 were $720.00, $5,260.00 and $2,707.50. respectively. (R. 143-145). During that
period, Plaintiff testified that she attended graduate school once or twice a week for two summer
semesters. (R. 55-56). In addition, medical progress notes dated July 2005, March 2006 and
September 2006 indicate that Plaintiff was a graduate student at those times. (R. 420, 424, 426).
C.

Medical Background

Plaintiff was diagnosed with multiple sclerosis on July 3, 2000. (R. 220). Thereafter,
Plaintiff began treatment with Dr. James T. Shammas, a neurologist, and at the Multiple Sclerosis
Center at Holy Name Hospital (“Holy Name”). (R. 36). During the period between the Onset
Date of July 31, 2000 and the Date Last Insured of June 30, 2006 (the “Relevant Period”), Plaintiff
also sought treatment for depression with Dr. Jeanette DeVaris, a psychologist. (R. 36).
1.

Treatment at Hoiy Name 2002-Present

Plaintiff began treatment at Holy Name in 2002. (R. 396). Medical progress notes indicate
that treatment occurred biannually. (R. 396-424). The following information is taken from
Plaintiffs progress notes: In Plaintiffs first session at Holy Name, in December 2002. Plaintiffs
sole multiple sclerosis symptom was fatigue. (R. 399). She reported no difficulty with sitting,

standing, walking, lifting, driving, housework, yardwork or dressing. (R. 400). She reported
difficulty of 1 out of 4 (4 being most difficult’) with jogging, stairs, memory and concentration.
(R. 400). In June 2003, notes indicate that Plaintiffs condition improved. (R. 407). In a section
titled “Incapacity Status” the examiner reported Plaintiff had fatigue of 1-2 and difficulty with stair
3

climbing, ambulation and transfers of 0-1. (R. 407>. There is a margin notation of”?bipolar.” (R.
407). The examiner also noted that Plaintiff voluntarily stopped taking her medication, (R. 407).
In December 2003, Plaintiff reported numbness on her left side, weakness in her left leg,
arm pain while exercising, poor balance and blurred peripheral vision in her right eye. (R. 409).
She reported that she had been taking two-mile walks and swimming three times per week, but
was forced to stop due to her symptoms. (R. 409). The examiner also noted that Plaintiff
consented to restart her medication. (R. 409).
In June 2004, Plaintiff’s difficulty with stairs increased to a 2; however, she was no longer
fatigued. (R. 416). In December 2004, Plaintiffs depression was “resolved,” stairclimbing was
rated 1-2 and fatigue was 0-1. (R. 418). Plaintiff reported that she was taking two-mile walks
during the week and Tai Chi classes on Tuesdays. (R. 418).
In July 2005, Plaintiffs chief complaints were “allergies, numbness, [and] tightness [in
the] lower back and l[eft] leg. (R. 420). The examiner noted no pain, difficulty with stairs of a 2,
one episode of incontinence and left leg weakness after walking long distances.

(R. 420).

Plaintiff’s fatigue and difficulty with mentation increased to 1-2. (R. 420). The examiner also
noted that Plaintiff again stopped taking her medication. (R. 420).
In March 2006, Plaintiffs chief complaint was a cold. (R. 424). The examiner noted leg
weakness but no pain. (R. 424). Plaintiffs difficulty with stairs remained a 2, while ambulation
was 12.

(R. 424).

Difficulty with bladder function was rated 1-2.

(R, 424).

Plaintiffs

psychological state was “fair” and her di.fficulty with vision was 0-i. (R. 424). Notes indicate that
Plaintiff continued to “refus[eJ medication.” (R. 425). This was Plaintiff’s last session at Holy
Name prior to the Date Last Insured. (R. 424).
In September 2006, the first session after the Date Last Insured, Plaintiff s chief
4

complaints were reduced balance and stress. (R. 426). The examiner notes left leg weakness and
cramping calves upon exertion. (R. 426). Plaintiffs difficulty with stairs and walking remained
static, while her difficulty with bladder function increased to a 2. (R. 426). Plaintiff reported that
she was continuing to attend Tai Chi classes. (R. 426). In addition, Plaintiff was “still” refusing
medication, but “denie[dJ depression.” (R. 426-427).
2.

Treatment with Dr. Shammas 2092-2004

Plaintiff began treatment with Dr. Shammas in August 2002.

(R. 238).

The initial

consultation notes state that Plaintiff had no active complaints except depression. (R. 238). They
indicate that Plaintiff experienced symptoms of multiple sclerosis for three months following her
diagnosis in 2000, but symptoms thereafter “resolved completely” other than occasional tingling
in the hands. (R. 238). In January 2003, Plaintiff denied any new symptoms of multiple sclerosis
other than occasional cramping of the right calf. (R. 230). In April 2003, Plaintiff stopped taking
her medication because “she simply did not want to take it anymore” and while her left leg felt
like a “rubber band” for a few days after cessation, the feeling resolved and she denied any new
symptoms. (R. 229). In October 2003, Plaintiff complained of blurred vision and weakness in the
left leg. (R. 227). Dr. Shammas noted difficulty with tandem gait. (R. 227). In January 2004,
Plaintiff reported that her symptoms had improved and no new symptoms had developed. (R.
226), The January 2004 session was Plaintiffs last consultation with Dr. Shammas.

3,

Treatment with Dr. DeVaris j 2002-Present

Plaintiff began treatment with Dr. Jeanette DeVaris, a psychologist, in February 2002. (R.

299). Longitudinal treatment records do not exist or were not included in the administrative record.
Evidence of Plaintiffs treatment with Dr. DeVaris consists of a single “Medical Disorder
Questionnaire Form” filled out by Dr. DeVaris in July 2010. (R. 295-299).
5

Dr. DeVaris observed the following: Plaintiff is groomed with good posture and

unremarkable speech and mannerisms. (R. 295). Plaintiff has a slow and unsteady gait. with
difficulty with daily living. (R. 295). In addition, Plaintiff “is too impaired to work in her chosen
profession as a teacher.” (R. 295). Plaintiff’s ability to concentrate on household tasks, and her
short and long-term memory are impaired. while her perceptions and thinking are within the
normal range. (R. 296).

Plaintiff has a history of depression and manic episodes with mood

swings and emotional instability. (R. 297). Plaintiff “has excellent communication skills,” “no
difficulty understanding and following simple oral or written instructions” and “a strong
motivation to be employed fully.” (R. 297).

However, the challenges of full-time employment

are beyond Plaintiff’s capability “due to a lack of energy.” (R. 298). Dr. DeVaris concluded that
Plaintiff has bipolar disorder, “her condition is not expected to improve” and “[h]er level of
functioning is in steady decline.” (R. 299).
The questionnaire does not contain any reference dates. Thus, because this inquiry only
concerns Plaintiff’s ability to work from 2000-2006, Dr. DeVaris’s observations regarding the
progression of Plaintiff’s symptoms is limited.
4.

Plaintiffs Administrative Hearing

Plaintiff personally reports various symptoms stemming from her multiple sclerosis and
depression, including trouble sleeping (R. 39), weight gain (R. 40), fatigue (R. 46), poor memory
(R. 41), weakness in extremities (R. 44), drop foot in her left leg (R, 44) and lower-body numbness
(R. 47). in addition. Plaintiff states that she is unable to lift anything and has trouble pushing

shopping carts and vacuum cleaners. (R. 51-52).
Plaintiff reports being able to sit for twenty to thirty minutes before her leg falls asleep.
(R. 50). Once the leg falls asleep, Plaintiff worries that it will remain that way permanently and

6

thus feels the need to stand. (R. 50). Plaintiff also testified that she is able to drive a vehicle and
attend graduate school classes less than 20 minutes” from her home. (R. 56).
III.

LEGAL STANDARDS
A.

Standard Of Review

This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C.

§

405(g) and 1383(c)(3). The Court is not “permitted to re-weigh the evidence or impose fits] own
factual determinations,” but must give deference to the administrative findings. Chandler v.
Comm’r Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011); see also 42 U.S.C.

§

405(g). Nevertheless,

the Court must “scrutinize the record as a whole to determine whether the conclusions reached are
rational” and supported by substantial evidence. Gober v. Matthews, 574 F.2d 772, 776 (3d Cir.
1978) (citations omitted). Substantial evidence is more than a mere scintilla, and is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Chandler, 667
F.3d at 359 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the factual record is
adequately developed, substantial evidence “may be ‘something less than the weight of the
evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial evidence.”
Daniels v, Astnie, No. 4:08-1676, 2009 WL 1011587, at *2 (M.D. Pa, Apr. 15, 2009) (quoting
Consolo v, Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)). In other words, under this deferential
standard of review, the Court may not set aside the AU’s decision merely because it would have
come to a different conclusion. Cruz v. Comm’r of Soc. Sec., 244 F. App’x 475. 479 (3d Cir.
2007) (citing Hartranft v.Apfel, 181 F.3d 358. 360 (3d Cir. 1999)).
B.

Determining Disability

Pursuant to the Social Security Act, to receive DIB, a claimant must satisi’ the insured

status requirements of 42 U.S.C. § 423(c). In order to be eligible for benefits, a claimant must
show that she is disabled by demonstrating an inability to “engage in any substantial gainful
activity by reason of any medically determinable physical 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), 1382c(a)(3)(A), Taking into account

the claimant’s age, education, and work experience, disability will be evaluated by the claimant’s
ability to engage in her previous work or any other form of substantial gainful activity existing in
S
5
the national economy. 42 U.S.C. § 423(d)(2)(A), l382c(a)(3)(B). Thus, the claimant’s physical

or mental impairments must be “of such severity that [s]he is not only unable to do [her] previous
work but cannot, considering [her] age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy

.

.

.

.“

Id.

§ 423(d)(2)(A),

1382c(a)(3)(B). Decisions regarding disability will be made individually and will be “based on
evidence adduced at a hearing.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000) (citing Heckler
v. Campbell, 461 U.S. 458, 467 (1983)). Congress has established the type of evidence necessary
to prove the existence of a disabling impairment by defining a physical or mental impairment as
“an impairment that results from anatomical, physiological, or psychological abnormalities which
are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42
U.S.C.

§* 423(d)(3), 1382(a)(3)(D),
The SSA follows a fivestep sequential evaluation to determine whether a claimant is

disabled within the meaning of the statute. 20 C.F.R.

§ 404.1520, 416.920. First, the A.LJ must

determine whether the claimant is currently engaged in gainful activity.

228 F.3d at 262,

Second, if she is not, the AU determines whether the claimant has an impairment that limits her
ability to work. j Third, if she has such an impairment, the ALT considers the medical evidence
8

to determine whether the impairment is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the
“Listings”). If it is, this results in a presumption of disability. j If the impairment is not in the
Listings, the AU must determine how much residual functional capacity (“RFC”) the applicant
retains in spite of her impairment.

Id. at 263.

Fourth, the AU must consider whether the

claimant’s RFC is enough to perform her past relevant work. Id. Fifth, if her RFC is not enough,
the AU must determine whether there is other work in the national economy that the claimant can
perform. Id.
The evaluation will continue through each step unless it can be determined at any point
that the claimant is or is not disabled. 20 C.F.R. §s 404.1520(a)(4), 416.920(a)(4). The claimant
5
bears the burden of proof at steps one, two, and four, upon which the burden shifts to the
Commissioner at step five. Sykes, 228 F.3d at 263. Neither party bears the burden at step three.
Id. at263 n. 2.
IV.

DISCUSSION
A.

The AU’s Decision Is Supported By Substantial Evidence

After reviewing all of the evidence in the record, the AU denied Plaintiff’s claim for
benefits. (R. 417). The AU arrived at this determination by following the required five-step
analysis. I now review the AU’s decision for whether it is supported by substantial evidence at
each step.
1,

Step One

At step one, the AU found that PIai.ntiff did .not engage in substantial gainful activity
during the Relevant Period, (R. 17). The Record indicates that Plaintiff was unemployed from
the Onset Date in 2000 to 2003. (R. 143). From 2004 to the Date Last Insured in 2006, Plaintiff
worked as a substitute teacher with an average yearly income $3,015.83. (R. I 43-145). Such work
9

does not rise to the level of substantial gainful activity. 20 C.F.R.

§ 404.1571 et seq.; see Sykes,

228 F.3d at 262. Thus, the AU’s step one finding is supported by substantial evidence.
2.

Step Two

At step two, the AU must determine whether Plaintiffs impairment is “severe.” An
impairment or combination of impairments is “not severe if it does not significantly limit
[claimant’s) physical or mental ability to do basic work activities.” 20 C.F.R.

§ 404.1521,

416.921. However, where a claimant presents evidence that an impairment imposes “more than a
slight abnormality” on the claimant’s ability to perform work for twelve consecutive months, “the
step-two requirement of severe is met, and the sequential evaluation process should continue.”
Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003) (internal citation omitted). The
AU found that Plaintiff had the following severe impairment: multiple sclerosis. (R. 17). The
Record documents medically diagnosed multiple sclerosis, symptoms in accordance with that
diagnosis and treatment for the entirety of the period of alleged disability. (R. 220; 23 8-226; 396427). Thus, the AU’ s determination that Plaintiffs multiple sclerosis was severe during the
Relevant Period is supported by substantial evidence.
The AU

found that Plaintiffs deep-vein thrombosis (“DVT”) was not a severe

impairment. (R. 17), The Record demonstrates that Plaintiff was diagnosed with DVT in January
2004. (R. 434). Following several months of treatment, a Doppler Study performed in August
2004 revealed “[n]o evidence of deep vein thrombosis.” (R. 342). In addition, according to a letter
from the doctor treating Plaintiffs DVT to Dr. Shammas, dated A.ugust 26, 2004, “[Plaintiffs]
deep venous thrombosis ha[d] completely resolved on the latest ultrasound screen.” (R. 256). The
period between January 2004 and August 2004 is less than one year and thus cannot meet the
Commissioner’s requirement that a severe impairment last for twelve months. See 20 C.F.R.
10

§

404.1 520(a)(4)(ii) and 404.1509. Therefore, the AU’s determination that Plaintiffs DVT was not
severe is supported by substantial evidence.
Finally, the AU found that Plaintiffs mental impairments were not severe impairments.
(R. 17). Plaintiff challenges the conclusion of the AU. (Brief on Behalf of Lisa iSovellino 9, filed
September 15, 2014, ECF No. 11). Plaintiff argues that there was “a substantial longitudinal
record” of mental health treatment developed during the hearing before the AU and that Dr.
2
DeVaris’s questionnaire answers provided substantial evidence of severe mental impairments.
(Brief on Behalf of Lisa Novellino 9, ECF No. 11).
According to Plaintiffs testimony at the administrative hearing, Plaintiff received mental
health treatment from 2002 through the Date Last Insured. (R. 37). During that period, she met
with her psychologist (Dr. DeVaris) once a week.

(R. 38).

Plaintiff testified that she was

depressed, did not want to do anything and suffered crying episodes. (R. 38). She further testified
that her depression was offset by manic behavior, an emotional cycle symptomatic of bipolar
disorder.

(R. 59).

Plaintiff also noted that she had trouble remembering appointments and

“following through with things.” (R. 41; 43).
The sole record of Plaintiffs treatment with Dr. DeVaris is the “Medical Disorder
Questionnaire Form” dated July 24, 2010. (R. 295-299). The contents of the form are laid out in

The Court notes that a questionnaire and hearing testimony devoid of dates is not a
longitudinal treatment record. While the length of Plaintiffs treatment with Dr. DeVaris is
evidence of a longstanding condition, the absence of records detailing the Plaintiffs symptoms
and treatment makes it impossible to assess the degree of Plaintiffs impairments throughout the
Relevant Period, as would not be the case with “a substantial longitudinal record.” This finding
is further confirmed by the opinion of two state agency psychological consultants who
independently opined that there is insufficient evidence in the Record to establish a severe
mental impairment. (R. 358; 503-515).
11

Plaintiff’s medical background, supra ILC.3.
In addition to the hearing testimony and Dr. DeVaris’s Questionnaire, the Court finds brief

references to Plaintiff’s mental health in the Holy Name treatment records. Progress notes from
2002 indicate that Plaintiff was depressed and had slight difficulty with memory and concentration.
(R. 400-401). In 2003, Plaintiff was 0-i out of 4 with regard to “Mood & Thought” and the
notation “?bipolar” was handwritten. (R. 407). In June 2004, progress notes indicate that Plaintiff
was a 0 on the “Mood & Thought” scale. (R. 416). In December 2004, the notation “depression
resolved” was handwritten by the examiner. (R. 418). In 2005, Plaintiff was 0-1 for “Mood &
Thought” and 1-2 for “Mentation.” (R, 420). There is also a handwritten note that Plaintiff was
taking antidepressants, but they “didn’t help.” (R. 420). In March 2006, progress notes indicate
that Plaintiffs “Mood & Thought” was “fair” but “Mentation” was a 2. (R. 424). The first notes
following the Date Last Insured state that “Mood & Thought” and “Mentation” were a 1 and a
handwritten notation states that Plaintiff “denies depression.” (R. 426).
The evidence of Plaintiffs mental impairments is insufficient to overrule the decision of
the AU. The hearing testimony is “vague as to time periods and fail[sj to establish requisite
severity.” Martin v. Shalala, 927 F. Supp. 536, 541 (D.N.H. 1995). In addition, the medical record
contains no evidence of significant mental impairments rising to the level of disabling. Treatment
records indicate that while Plaintiff suffered depression. bipolar disorder and memory loss during
the Relevant Period, the symptoms were rarely greater than I and never exceeded 2 on a scale of
1-4.

The moderate impairment caused by Plaintiff’s mental afflictions is supported by Dr.

DeVaris’s observation that while the Plaintiff “has a history of depression and manic episodes.
she is not delusional.. does not have hallucinations or paranoid ideation or mental confusion.
.

does not withdraw emotionally [and]

.

.

.

does not exhibit catatonic disorganized behavior or
12

loosening of associations.” (R. 297). Further, the Court notes Dr. DeVaris’s response to question
6 (“Current Level of Functioning”) that Plaintiff has the intellectual and emotional capacity to
(R. 298).

perform a job.

Thus, the opinion of Plaintiff’s psychologist supports the AU’s

3
conclusion that Plaintiff’s mental impairments did not prevent Plaintiff from engaging in work.
A paucity of medical evidence” of a disabling mental impairment constitutes substantial
evidence supporting an AU’s decision. Martin, 927 F.Supp. at 541; see Barlow v. Comm’r of Soc.
Sec., No. CIV.A, 13-538 JBS, 2014 WL 1225560, at *9 (D.N.J. Mar. 24, 2014) (“The AU ‘is
entitled to rely not only on what the record says, but also on what it does not say.’) (quoting Lane
v. Comm’r of Soc. Sec., 100 F. App’x 90, 95 (3d Cir. 2004)). Here, there is a lack of evidence
establishing severe psychiatric conditions coupled with the opinion of Plaintiff’s psychologist that
Plaintiff has the mental capacity to work. Therefore, the AU’s determination that Plaintiff’s
mental impairments were not severe within the meaning of the Act is supported by substantial
evidence.
3.

Step Three

At step three, the AU determined that Plaintiff’s multiple sclerosis did not meet or
medically equal the requirements of any disability contained in the medical listing. (R. 411).
Plaintiff does not challenge the AU’s determination.
For a claimant to show his impairment matches a listing, it must meet all of the specified
medical criteria. An impairment that manifests only some of those criteria, no matter how severely.

does not qualify” Jones vamhart, 364 R3d 501, 504 (3d Cir, 2004) (quotingyfivZeble,

The Court considers medical evidence sourced from a psychologist “for purposes of
establishing intellectual disability, learning disabilities, and borderline intellectual functioning
only[.]” as required by the Commissioner’s Regulations. 0 C.F.R. 404.1513.
13

493 U.S. 521. 530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990).
In coming to a step three determination, the AU properly determined that the claimant’s

multiple sclerosis during the Relevant Period did not meet the requirements of medical listing
1 1.09 (Multiple Sclerosis) and its subsections. (R. 18). The Record does not demonstrate that
Plaintiff suffered “[sjignificant and persistent disorganization of motor function in two
extremities[,]” marked “[v]isual or mental impairment” or “[s]ignificant, reproducible fatigue of
motor function with substantial muscle weakness” within the meaning of the Commissioner’s
4
Regulations. 20 C.F.R.

§ Pt. 404, Subpt. P, App. 1, Subsection 11.02(C). There is no indication

that Plaintiff’s symptoms progressed beyond a 2 out of 4 in terms of incapacity at any time during
the Relevant Period. In addition, treatment records from Holy Name and Dr. Shammas indicate
that Plaintiffs symptoms, when she suffered any, consisted predominantly of occasional
numbness, difficulty with stairs, slight blurred vision and trouble with balance. Therefore, the
AU’s determination the Plaintiffs condition did not meet the relevant listing in step three is
supported by substantial evidence
4.

The AU’s RFC Determination

Before step four, the AU determined that during the Relevant Period, Plaintiff had the
RFC “for lifting and carrying up to ten pounds occasionally and five pounds frequently, standing

and walking for up to two hours and sitting up six hours during the course of an eight hour day.

Although an analysis of the aforementioned factors is not contained within the AU
Decision’s step three section, the AUJ plainly considers all of the records and symptoms relevant
to this determination throughout the decision. Jones, 364 R3d at 505 (an AUJ need not “adhere
to a particular format. [provided thej decision, read as a whole, illustrates that the AUJ
considered the appropriate factors in reaching the conclusion that Jones did not meet the
requirements for any listing).
14

and the full range of sedentary’ work as defined in 20 C.F.R. 404.1567(a).” (R. 18). The AU
explicitly relied upon the Plaintiff’s treatment history at Holy Name, the records of Dr. Shammus.
the Plaintiff’s testimony (of which he spent considerable space recounting in his decision) and
Plaintiff’s activities of daily living. (R. 21). Plaintiff challenges the AU’s determination as not
supported by substantial evidence.

(Brief on Behalf of Lisa Noveflino 15, ECF No. 11).

Specifically, Plaintiff argues that the AU failed to account for all of Plaintiff’s symptoms,
especially after 2003.’ (Brief on Behalf of Lisa Novellino 16-17, ECF No. 11).
Plaintiff identifies a “marked progression” in the symptoms of her multiple sclerosis
beginning in December 2003. (Brief on Behalf of Lisa Novellino 16, ECF No. 11). However, the
medical evidence in the Record does not support Plaintiff’s characterization of her disease’s
progression. 20 C.F.R.

§ 404.1529(a) (“In determining whether you are disabled, we consider all

your symptoms, including pain, and the extent to which your symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence.”).
Plaintiff’s treatment records from Holy Name in June 2003 indicate that her condition was
improving, but that she had voluntarily stopped taking her medication against the advice of her
physician. (R. 407-408). Six months later, in December 2003, records from Holy Name and Dr.

Plaintiff also argues that the AU erroneously considered that Plaintiff was a full-time
graduate student during the Relevant Period. Plaintiff’s argument is unavailing. Holy Name
progress notes indicate that Plaintiff identitied herself as a full-time graduate student in July
2005 and March 2006 (R 420 424) In addition dunng the LJ heanng Plaintitf could not
remember when she was a graduate student, except that she definitely attended classes in two
summers once or twice a week. (R. 55-56). She also testified that she took classes at night while
working as a substitute teacher, thus suggesting that she took classes during the school months of
September through June as well. (R. 56). Regardless, as discussed in this section, Plaintiff’s
symptoms and activities of daily living support the AU’s conclusion that the Plaintiff was able
to engage in sedentary activity even if the Plaintiff’s school attendance is discounted.
15

Shammas indicate that Plaintiff reported pain in arms during exercise, left-side numbness, left-leg
weakness, poor balance and reduced vision. (R. 227, 409). The Holy Name examiner observed
that her level of difficulty with stair climbing and ambulation was a 1 out of 4, vision was 1-2 and
fatigue was 1-2. (R. 409). The progress notes also indicate that Plaintiff was not taking her
medication, but that she consented to restart. (R. 409).
One month later, in December 2003, Dr. Shammas observed that Plaintiff “reported no new
problems, and felt that she was getting better with physical therapy,” although she did have “vague
difficulty with vision.” (R. 226). One year later, in December 2004, Holy Name progress notes
indicate that Plaintiff reported she was “better” and had begun working. (R.41 8). Plaintiff did not
report any pain, numbness or weakness, although she continued to have some difficulty with vision
in her right eye. (R. 418). The examiner observed that her level of difficulty with ambulation was
a 0, fatigue was 0-1 and stair climbing was 1-2. (R. 418). In addition, Plaintiff reported that she
had begun taking 2 mile walks and attending Tai Chi classes on Tuesdays. (R. 418). Thus, the
objective medical evidence does not support Plaintiffs contention that her symptoms markedly
progressed after 2003. In addition, the Court notes that any perceived “progression” in Plaintiff’s
symptoms in 2003 coincided with Plaintiffs refusal to take her medication. (R. 418).
The Commissioner’s Regulations define sedentary work as
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.FR.

404.1567. As thoroughly discussed in Plaintiffs medical background, supra lI.C..

Plaintiffs smptoms were stable throughout the Relevant Period, with only slight ebb and flow,
Difficulty in all functions never exceeded 2 out of 4 in terms of incapacity, and medical progress
16

notes indicate that she was often almost asymptomatic. In fact, the final progress notes from the
Relevant Period indicate that Plaintiffs chief complaint was a cold. (R. 424). At that time, she
did not require personal assistance, appeared well-groomed and was diagnosed with “stable”
multiple sclerosis.

(R. 424-425). Her “progression” of symptoms in 2003 occurred briefly.

resolved quickly and corresponded with Plaintiffs voluntary cessation of her medication, which
her physician specifically counseled her against. (R. 226-227).

In addition. at various times

throughout the Relevant Period, Plaintiff was able to teach twice a week, attend graduate school
twice a week, take two-mile walks, swim three times a week and take Tai Chi classes.
Therefore, having reviewed Plaintiffs medical background, the hearing testimony and the
AU’s decision, there was substantial evidence to support the AU’s determination that the Plaintiff
had the RFC to perform sedentary work.
5.

Steps Four and Five

At steps four and five, the AU found that Plaintiff had the RFC during the Relevant Period
to perform her past relevant work as a receptionist. (R. 21). Plaintiff does not challenge the AU’s
determination.
Past relevant work is substantial gainful activity performed within 15 years prior to the
onset date and lasting Tong enough for Plaintiff to learn to how to perform the job. 20 C.F.R. §
416.960. Plaintiffs employment as a receptionist was within five years of the Onset Date in 2000
and lasted for three years. during which time she earned sufficient income to meet the
Commissioner’s standards for substantial gainful activity. 20 C’F.R.

§ 404,1574; (R, 144). Thus,

Plaintiffs work as a receptionist qualifies as past relevant work.
The Dictionary of Occupational Titles, upon which we are directed to rely, identifies
“Receptionisf’ as a sedentary job. 20 C.F.R. § 404.1 569a; see Dictionary of Occupational Titles.
17

Receptionist (clerical), found at http://www.occupationalinfo.org’23/23 736703 8.html. Therefore,
because the AU properly found that Plaintiff had the RFC to perform sedentary work. the
determination that Plaintiff could have worked at her past relevant work as a receptionist during
the Relevant Period is supported by substantial evidence
V.

CONCLUSION

For the foregoing reasons, the ALYs decision that Plaintiff was not disabled within the
meaning of the Social Security Act between the Onset Date in 2000 and the Date Last Insured in
2006 is hereby AFFIRMED. An appropriate order accompanies this Opinion.

DATED: March 1k’, 2015
CLAIRE C. CECCHI, U.S.D.J.