NOAH v. COMMISSIONER OF SOCIAL SECURITY
Filing
12
OPINION. Signed by Judge Jose L. Linares on 12/4/14. (gmd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TINA NOAH,
Plaintiff,
Civil Action No. 14-1723 (JLL)
v.
OPINION
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
LINARES, District Judge.
Before the Court is Tina Noah (“Plaintiff’ or “Claimant”)’s appeal
, which seeks review of
Administrative Law Judge (“AU”) Sheena Barr’s denial of Plain
tiffs 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 September 27, 2010, Plaintiff, alleging disability as of Novem
ber 30, 2008, applied to
the Social Security Administration (the “Administration”) for
a period of disability, disability
insurance benefits, and supplemental security income. (R.
at 2082l8).1 The Administration
initially denied Plaintiffs application on February 25,
2011 and again upon reconsideration on
“R.” refers to the pages of the Administrative Record.
October 17, 2011. (Id. at 102-104, 111-116). In response, Plaintiff
requested an administrative
hearing, which occurred before AU Sheena Barr on June 15, 2012. (id.
at 138).
At the hearing, Plaintiff, who was then 43 years old, testified
that she had been last
employed in 2008 as a cook. (Id. at 61-62). With regard to her lifesty
le, Plaintiff testified that she
lives alone. (Id. at 60). Plaintiff also testified that she stopped driving
in 2006, and if she needs
to go somewhere she either uses public transportation or gets a ride from
a friend. (Id. at 79).
On July 27, 2012, AU Barr issued a decision, finding that Plaintiff
was not disabled from
November 30, 2008 through the date of decision. (Id. at 3 5-44). Plainti
ff sought Appeals Council
review. (Id. at 27). The Appeals Council denied Plaintiffs request on
January 14, 2014, rendering
AU Barr’s decision the final decision of the Commissioner. (Id.
at 1-3). As a result, Plaintiff
appealed to this Court on March 18, 2014. (Compl., ECF No. 1). This
Court has jurisdiction to
review this matter pursuant to 42 U.S.C.
B.
§ 405(g), and now recounts Plaintiffs medical history.
Plaintiffs Medical History
Plaintiff contends that she has been disabled since November 30,
2008. Plaintiff alleges
disability due to (1) carpal tunnel syndrome, (2) bipolar disorder,
(3) depression, (4) asthma, and
(5) a learning disability.
1. Plaintiffs Carpal Tunnel Syndrome
Plaintiff has complained of wrist pain since 2008. (R. at 58). Plainti
ff testified in her
hearing that she experiences numbness in both hands from her wrists
to her fingertips, but the pain
is worse in her right hand. (Id. at 72). She also testified that doctor
a
prescribed a wrist brace for
her right wrist in 2009. (Id.). Plaintiff claimed that she experie
nces pain every day and that
especially on bad days she cannot hold a glass of water in her
hand without dropping it. (Id. at
73). She also testified that she needs assistance with buttoning
due to her condition, and avoids
2
wearing clothing with buttons. (Id.). Plaintiff testified that her treatin
g neurologist, Dr. Komotar
prescribed Naproxen for Plaintiffs wrist pain. (Id. at 74).
2. Plaintiffs Bipolar Disorder
Plaintiff also suffers from bipolar disorder. Plaintiffs attorney testifie
d that she has been
treated for this disorder for some time. (Id. at 55). Plaintiff spent
time at the Jersey City Medical
Center Partial Hospitalization program. (Id.). At the time of the hearing
, Plaintiff was getting
outpatient treatment once per month and visiting the Self-Help Center
at Jersey City Medical two
to three times per week. (Id. at 82-83). She testified that going to
group meetings has helped her
understand her disorder. (Id. at 80).
3. Plaintiffs Depression
Plaintiff also suffers from depression. Plaintiff testified that she often
sees and hears things
when she feels really depressed, which she claims occurs three times
per month. (Id. at 84-85).
Dr. Candela, who completed a consultative examination on Decem
ber 9, 2010, reported that
Plaintiff is, in fact, depressed and has been psychiatrically hospitalized
ten times, various times as
a result of a suicide attempt. (Id. at 695). Again, Plaintiff testifie
d that her participation in the
program at Jersey City Medical Center has had a positive effect on
her mental health. (Id. at 80).
4. Plaintiffs Asthma
Plaintiff also suffers from asthma. Plaintiff testified that her
asthma is worse in the
summer. (Id. at 75). She testified that her asthma is controlled if
she uses her inhaler at
least twice
a day and the weather is good. (Id. at 76). Plaintiff smokes tobacc
o every day. (Id. at 741). She
also testified that she has smoked marijuana in the past, despite
her condition. (Id. at 85). During
a visit to Jersey City Medical Center for wrist and knee pain,
Dr. Bansal reported that her lungs
were clear. (id. at 743).
3
5. Plaintiff’s Learning Disability
Plaintiff has an alleged learning disability. During a biopsychosocial assessm
ent, a doctor
at Jersey City Medical Center indicated that Plaintiff’s learning needs were
average. (Id. at 1064).
II.
LEGAL STANDARD
A.
The Five-Step Process for Evaluating Whether a Claimant Has a Disabi
lity
Under the Social Security Act, the Administration is authorized
to pay a period of
disability, disability insurance benefits, and supplemental security incom
e 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 physical or mental
impair
ment 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)(1)(A), 1382c(a)(3)(A). A person is unable
to engage in substantial gainful activity when his physical or mental impair
ments 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 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)(l), 416.920(a)(1). At step
one, the AU assesses whether the claimant is currently performing
substantial
C.F.R.
gainful activity. 20
§ 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.
§ 404.1 520(a)(4)(f), 41 6.920(a)(4)(i). If not, the AU proceeds to step
two and determines whether the claimant has a “severe” physic
al 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.
4
§ 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), 416.920(a)(4)(ii). At step three, the AU evalua
tes 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),
§ 404.1520(a)(4)(iii),
41 6.920(a)(4)(iii). Otherwise, the AU moves on to step four, which involv
es 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 claima
nt’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 her RFC allows her to perform his past relevan
t work. 20 C.F.R.
§
404. l520(a)(4)(iv), 416.920(a)(4)(iv). However, if the claimant’s RFC
prevents her 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).
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. Barnha
rt, 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 numbe
rs in the national economy,
considering the claimant’s age, education, work experience, and
[RFCJ.” Id. (citing Ramirez, 372
F.3d at 551).
B.
The Standard of Review: “Substantial Evidence”
2
2
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. 404.1 520—t
his Court will consider case law developed under
§
both regimes. Rutherford v. Barnhart, 399 F.3d 546, 551 n. 1 (3d
Cir. 2005) (citation omitted).
5
This Court must affirm an AU’s decision if it is supported by substa
ntial evidence. See
42 U.S.C.
§ 405(g), 1383(c)(3). Substantial evidence is “more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequa
te 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 suppor
ted by substantial evidence,
this Court must review the evidence in its totality. Daring v. Heckle
r, 727 F.2d 64, 70 (3d Cir.
1984). However, this Court may not “weigh the evidence or substit
ute 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).
III.
DISCUSSION
At step one, AU Barr found that Plaintiff had not engaged in substa
ntial gainful activity
since November 30, 2008, the alleged onset date. (R. at 37). At
step two, AU Barr found that
Plaintiff had the following severe impairments: (1) bipolar disorder;
(2) depression; (3) asthma;
and (4) a learning disability.
(Id.).
AU Barr also found that Plaintiff had one nonsevere
impairment: carpal tunnel syndrome. (Id.). At step three, AU
Barr found that Plaintiff did not
have an impairment or combination of impairments that met or medica
lly equaled one of the listed
impairments. (Id. at 38). At step four, AU Barr determined that
Plaintiff had the RFC to perform
the full range of work at all exertional levels, but with the follow
ing nonexertional limitations:
she
is limited to simple, routine work; she must avoid concentrated exposu
re to flumes, odors, gases,
poor ventilation; she should only have occasional contact with
coworkers and general public. (Id.
at 39). Lastly, at step five, AU Barr found that Plaintiff is
capable of performing past relevant
6
work as a laundry worker, sales agent insurance, and restaurant cook.
(Id. at 41-42). Plaintiff
contends that ALl Barr erred at steps two, three, and four. (Pl.’s Br.
9-37, ECF No. 9).
A.
Whether ALl Barr’s Step Two Findings are Based on Substantial Eviden
ce
Plaintiff argues that the ALl’s step two finding was inadequate. (Pl.’s
Br. 9-10, ECF No.
9). In addition to finding that her bipolar disorder, depression, asthma
, and learning disability were
severe impairments, Plaintiff argues that the AU should have
also found that her carpal tunnel
syndrome was a severe impairment. The Commissioner counte
rs that Plaintiff’s argument is
unpersuasive. (Def.’s Br. 4-7, ECF No. 11).
At step two, the AU must determine whether the claimant
has a medically severe
impairment or combination of impairments. Under the applicable
regulations, an impairment is
severe only if it significantly limits the claimant’s physical or mental
ability to do “basic work
activities.” C.F.R.
§ 404.1521(b). Diagnoses alone are insufficient to establish their severity at
step two; the plaintiff is also required to prove that the impairment
signIcantly limits her ability
to do basic work activities. Salles v. Comm ‘r of Soc. Sec., 229 F.
App’x 140, 144 (3d Cir. 2007).
In the case at bar, then, even though the evidence shows that Plainti
ff was diagnosed with carpal
tunnel syndrome, the Plaintiff did not show that her carpal tunnel
syndrome significantly limited
her ability to do basic work. Instead, the ALl found that carpal
tunnel syndrome caused only a
minimal impact on Plaintiff’s ability to perform work-related
functions. (R. at 37-3 8). This Court
finds that this determination was supported by substantial eviden
ce.
The Third Circuit has also indicated that an ALl’s errone
ous finding that some of a
claimant’s impairments are not severe at step two is harmle
ss if the AU finds that the claimant
has other severe impairments. Salles, 229 F. App’x at 145 n.
2 (citing Rutherford v. Barnhart, 399
F.3d 546, 553 (3d Cir. 2005)). Here, as noted above,
the AU found that Plaintiff’s bipolar
7
disorder, depression, asthma, and learning disability were severe impair
ments at step two. (R. at
37). Therefore, even if the AU erred by not finding that Plaintiff’s carpal
tunnel syndrome was
severe at step two, such error was harmless.
B.
Whether AU Barr’s Step Three Findings Are Based on Substantial Eviden
ce
At step three, an AU must “fuily develop the record and explain his finding
s.
. . ,
including
an analysis of whether and why [each of the claimant’s] 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
requirement 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 Barr 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 38). AU Barr then proceeded to find that: (1)
Plaintiffs asthma did not meet any applicable listing (Listing
3.03); (2) Plaintiffs mental
impairments, considered singly and in combination, did not meet
the criteria of the listings for
organic mental disorders, nor affective disorders (Listing 12.02 and
12.04). Plaintiff argues that
Plaintiffs impairments did meet or medically equal a listed impair
ment. (Pl.’s Br. 15-24, ECF No.
9). Plaintiffs argument is unpersuasive.
As for Plaintiffs asthma, there is no evidence in the record that
suggests the Plaintiffs
asthma meets the listing level. In order to meet Listing 3.03,
Asthma, Plaintiff had to exhibit
chronic asthmatic bronchitis as measured in 3 .02A or attacks
occurring at least once every 2
months or at least 6 times a year. 20 C.F.R. Pt. 404, Subpt. P, App’x
1, § 3.03. There is no evidence
8
that Plaintiff suffers from frequent attacks and multiple examinations
showed that Plaintiff’s
lungs
were clear, with no evidence of wheezes, rhonci, or rales. (R. at 743).
A claimant’s organic mental disorder or affective disorder meets or medica
lly equals listing
12.04 when it either satisfies both the paragraph A and paragraph
3
B criteria, or satisfies the
paragraph C criteria of that listing. 20 C.F.R. Pt. 404, Subpt. P.
App’x 1,
§ 12.04. Here, the AU
found that Plaintiffs affective disorder did not meet listing 12.04,
focusing on whether said
disorder satisfied the paragraph B criteria. (R. at 38). Plaintiff argues
that the AU’s finding is not
based on substantial evidence because she did not explain why
her organic mental or affective
disorder failed to meet the paragraph A criteria. (Pl.’s Br. 18-19,
4
ECF No. 9).
To satisfy the Paragraph B criteria of listings 12.02 or 12.04, a claima
nt must demonstrate
that her organic mental disorder or affective disorder results in at
least two of the following:
I. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence,
or pace; or
4. Repeated episodes of decompensation, each of extended duratio
n
20 C.F.R. Pt. 404, Subpt. P, App’x 1,
§ 12.04. A limitation is “marked” when it is “more than
moderate but less than extreme.” Id. Here, the AU found that
neither Plaintiffs organic mental
disorder nor her affective disorder resulted in marked limitations
in any of the first three categories,
and that Plaintiff had one to two episodes of decompensation.
(R. at 38).
With regard to Plaintiffs activities of daily living, the
AU concluded that Plaintiffs
impairments resulted in only moderate restrictions thereto.
(Id.). In support of her conclusion, the
To satisfy the paragraph A criteria, a claimant must, in essenc
e, medically document the persistence of depressive,
manic, or bipolar syndrome. 20 C.F.R. Pt. 404, Subpt. P,
App’x 1, § 12.04.
Plaintiff does not argue that the AU’s finding concerning
listing 12.02 nor 12.04 is deficient because she did not
discuss the paragraph C criteria. Accordingly, the Court does
not discuss the paragraph C criteria.
9
AU noted that Plaintiff stated that she does not have any difficu
lty performing personal care
activities like bathing, dressing, or feeding. (Id.). Thus, the AU
offered substantial evidence in
support of her conclusion that Plaintiff had only a moderate restrict
ion in her activities of daily
living.
The AU next concluded that Plaintiff had only moderate difficulties
in maintaining social
functioning. (R. at 38). In support of her conclusion, the AU noted
that Plaintiff reported she is
able to interact with friends, shop in public, and use public transpo
rtation. (Id.). Hence, the AU
provided substantial evidence in support of her conclusion that
Plaintiff had only a moderate
restriction in maintaining social functioning. See e.g. Garcia v.
Astrue, No. 11—113, 2012 WL
2018240 at *8 (W.D.Pa. June 5, 2012) (finding that substantial
evidence supported the AU’s
finding that the plaintiff had only moderate difficulties in social functio
ning where “although there
was some indication of social isolation, [the pjlaintiff was
able to maintain satisfactory
relationships with his brother and others, and
the [p]laintiff to be friendly and cooperative
...
health care professionals
...
consistently revealed
....“).
The AU further concluded that Plaintiff had only moderate difficu
lties in maintaining
concentration, persistence or pace. (R. at 38). In support of her
conclusion, the AU noted that
Plaintiff is able to follow written and spoken instructions and
watch television. (Id.).
Lastly, the AU concluded that there were only one to two episod
es of decompensation, for
extended duration.
(Id.). As a result, the AU determined that Plaintiff did
not satisfy the
requirements of listing 12.02 or 12.04 since she did not meet
the paragraph B criteria. (See id.).
In doing so, the AU offered substantial evidence in support of
her conclusion. Plaintiff also argues
that the AU’s analysis of listing 12.02 and 12.04 is deficient
because the AU did not consider the
paragraph A criteria. However, since the AU provided
substantial evidence in support of her
10
determination that Plaintiff failed to meet the paragraph B crite
ria, she did not need to consider the
paragraph A criteria. See Gantt v. Comm’r of Soc. Sec.,
205 F. App’x 65, 66 (3d Cir.2006)
(declining to address the paragraph A criteria because the plain
tiff had faile
d to meet the paragraph
B criteria).
In any event, Plaintiff, who bears the bears the burden of proo
f at step three, has failed to
articulate why her impairments meet listings 12.02 or 12.04.
See Meyler
i’.
Comm’r ofSoc. Sec.,
283 F, App’x 884, 889 (3d Cir.2007) (noting that the plain
tiff bears the burden of proving at step
three that his impairments meet or medically equal a listin
g).
C.
Whether AU Barr’s RFC Determination is Based on Subs
tantial Evidence
At step four, AU Barr determined that Plaintiff has the RFC
to perform the full range of
work at all exertional levels with the following nonexerti
onal limitations: she is limited to simple,
routine work; she must avoid concentrated exposure to flum
es, odors, gases, poor ventilation; she
should only have occasional contact with coworkers and
general public. (R. at 39-41). Plaintiff
generally argues that AU Barr’s RFC determination is not
based on substantial evidence. (P1. ‘s
Br. 24-28). In support of his position, Plaintiff notes
that “An AU must not simply recite the
evidence and then announce a finding.” (Id. at 25). Plain
tiff’s argument is unpersuasive.
In making his or her RFC determination, an AU must cons
ider 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—0
7 (3d Cir. 1981)). Here, AU Barr
provided a thorough discussion of the record in supp
ort of her RFC finding, and, in doing so,
weighed the available evidence. (R. at 39-41). In
particular, the AU supported her RFC
assessment by considering and weighing the following
evidence: (1) the state agency medical
opinions of Dr. Joseph Bencivenne, Dr. ibrahim Hou
sri, and Dr. C.B. Dalton; (2) Plaintiff’s
11
treating doctors’ notes; (3) Plaintiffs hospital admissions; and (4)
Plaintiff’s testimony at the June
2012 hearing. (Id.).
Contrary to the Plaintiff’s argument, AU Barr 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
[RFC].” (R. at 40). Though at
least one circuit has described this exact language as “meaningless
boilerplate,” an AU’s use of
this language “does not automatically undermine or discredit
the AU’s ultimate conclusion if he
otherwise points to information that justifies his credibility determ
ination.” Pepper v. Colvin, 712
F.3d 351, 367-68 (7th Cir. 2013). Such information may includ
e: (1) the extent of a claimant’s
daily activities; (2) the location, duration, frequency, and intensi
ty of pain or other symptoms; (3)
precipitating and aggravating factors; (4) the type, dosage, effecti
veness, 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 limitat
ions and restrictions due to pain or
other symptoms. 20 C.F.R.
§ 404.1529(c)(3), 416.929(c)(3).
As to Plaintiffs mental health, the AU pointed out that Plain
tiffs therapy sessions have
had a positive impact on her mental health condition.
(R. at 40). AU Barr also noted that
Plaintiffs CT scans are normal and the results of her
many psychiatric screenings have been
positive. (Id.). The AU also pointed out that Plaintiff only
uses her medication sporadically.
(Id.). AU Barr also pointed to information justifying her finding
that
Plaintiffs learning disability
would not impair her ability to perform work-related functio
ns. (Id.).
12
AU Barr also supported her finding that Plaintiffs asthm
a was
controlled. (Id.). The AU
cited to examination records which reported that Plaintiffs
lungs were clear with no wheezes,
rhonci, or rales. (Id.). The AU also noted that Plain
tiffs asthma does not prevent her from
smoking tobacco on a daily basis. (Id.).
Because AU Barr has provided more than a mere scintilla
of evidence in support of her
RFC determination and given that it is not the role of this Cou
rt to reweigh the evidence and reach
its own conclusions, See Williams, 970 F.2d at 1182 (noti
ng that a district court is not empowered
to “weigh the evidence or substitute its conclusions for thos
e
of the fact-finder”), the Court affirms
AU Barr’s RFC determination.
IV.
CONCLUSION
The Court has reviewed the entire record and, for the reaso
ns discussed above, concludes
that AU Barr’s determination that Plaintiff was not
disabled was supported by substantial
evidence. Accordingly, AU Barr’s decision is affirmed.
An appropriate Order accompanies this
Opinion.
DATED:
U. UINARES
DISTRICT JUDGE
13
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