TORRES v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge Susan D. Wigenton on 4/16/2015. (drw)

NOT FOR PUBLICATION

MARLIN TORRES,

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 2:14-cv-1935 (SDW)
Plaintiff,

v.

OPINION

CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,

April 16, 2015

Defendant.
WIGENTON, District Judge.
Before this Court is Plaintiff Marlin Torres’ (“Plaintiff”) appeal of the final administrative
decision of the Commissioner of Social Security (“Commissioner”), with respect to Administrative
Law Judge Donna A. Krappa’s (“ALJ” or “ALJ Krappa”) denial of Plaintiff’s application for
Social Security Disability Insurance Benefits under Title II of the Social Security Act (the “Act”).
Plaintiff, pursuant to 42 U.S.C. § 405(g), seeks review of the decision of the Commissioner
denying Plaintiff’s application for Social Security Disability Insurance Benefits.
This Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Venue is proper under 28 U.S.C. § 1391(b). This appeal is decided without oral argument pursuant
to Federal Rule of Civil Procedure 78.
For the reasons set forth in this Opinion, this Court finds that the Commissioner’s decision
is supported by substantial evidence and therefore must be AFFIRMED.

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I. PROCEDURAL AND FACTUAL HISTORY
A. Procedural History
On August 6, 2010, Plaintiff filed an application for Social Security Benefits. (Tr. 15258.) On March 17, 2011, Plaintiff’s claim for Social Security Benefits was denied. (Tr. 84-88.)
Plaintiff filed a Request for Reconsideration, which was denied on August 16, 2011. (Tr. 89; 9092.)
On August 19, 2011, Plaintiff requested a hearing by an ALJ, which was subsequently held
on June 30, 2012. (Tr. 35-79; 93.) On October 24, 2012, ALJ Krappa denied Plaintiff’s application
for Social Security Benefits. (Tr. 15-34.) On December 19, 2012, Plaintiff requested a review of
the ALJ’s decision, which the Appeals Council denied on January 24, 2014. (Tr. 1-14.)
Plaintiff appealed the Appeals Council’s denial to this Court on March 27, 2014. (Compl.)
B. Personal and Employment History
Plaintiff is a fifty-three-year-old female. (Tr. 80.) She was born in Newark, New Jersey,
moved to Puerto Rico at the age of six, and returned to the mainland after she finished the eleventh
grade. (Tr. 42-43.) Plaintiff lives with her husband, son, and daughter-in-law. (Tr. 44.) Plaintiff’s
husband works in the Department of Public Works for the City of Summit. (Tr. 42.)
Plaintiff utilizes her driver’s license to drive locally. (Tr. 43-44.) Plaintiff’s daily activities
include performing light work at home, while Plaintiff’s husband vacuums, sweeps, and mops.
(Tr. 209). Plaintiff does not report any difficulties in maintaining social relationships. (Tr. 211.)
Plaintiff has a work history that includes work as cashier and childcare assistant. (Tr. 215.)
From approximately 1996 to 2001 Plaintiff worked as a Teacher’s Aide for the Trinity Christian
Academy, where she assisted teachers and students. (Tr. 215-16.) Between the years of 1995 to
1996, 2001 to 2002, and 2003 to 2005, Plaintiff worked as a cashier at various stores. (Tr. 178,

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215.) From 2005 to 2007, Plaintiff assisted in childcare for Community Coordinated Child Care.
(Tr. 215, 220.) From 2007 to 2009, Plaintiff worked as a kitchen helper for a private Day Care
Center. (Tr. 215, 221.) Plaintiff reports that she has never been fired or laid off from any job, and
easily gets along with authority figures. (Tr. 213.) Plaintiff stopped working on July 1, 2009
because of her medical conditions. (Tr. 177.)
C. Medical History
In a medical report by Manuela Pedra-Nobre, M.D., (“Dr. Pedra-Nobre”) dated November
22, 2010, Plaintiff was diagnosed as having fibromyalgia, osteoarthritis of the knees, and low back
pain syndrome. (Tr. 404). Dr. Pedra-Nobre also indicated that Plaintiff was able to walk at a
reasonable pace and without any handheld assistive device. (Tr. 408.) Dr. Manuela Pedra-Nobre
also noted that she administered injections in Plaintiff’s right knee to relieve discomfort. (Tr. 183.)
When asked whether she would opine on Plaintiff’s ability to do work related activities, Dr. PedraNobre declined to give a response. (Tr. 405, 499.)
Dr. Pedra-Nobre referred Plaintiff to physical therapy. (Tr. 291-94.) Plaintiff was first
seen for physical therapy on June 25, 2010 and was seen for a total of six visits. (Tr. 294.) Because
Plaintiff suddenly discontinued treatment, she was discharged from physical therapy on September
3, 2010. (Tr. 294.)
Dr. Eric Freeman first examined Plaintiff on June 24, 2010. (Tr. 281.) Dr. Freeman is a
pain management specialist who treated Plaintiff for her wrist, back, and neck pain. (Tr. 414-27.)
Dr. Freeman also noted that Plaintiff was able to walk without the use of an assistive device. (Tr.
284). Dr. Freeman also did not provide an opinion regarding Plaintiff’s ability to perform workrelated activities. (Tr. 282, 416.) Dr. Freeman diagnosed Plaintiff with lumbar radiculitis, lumbar
stenosis with associated disc degeneration, and fibromyalgia. (Tr. 415.)

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Plaintiff was also examined by Dr. Yitzhak Berger. (Tr. 374-99). On March 3, 2010, Dr.
Berger diagnosed Plaintiff with Stress Urinary Incontinence (“SUI”). (Tr. 386.) Dr. Berger
prescribed medications and recommended that Plaintiff do Kegel exercises. (Tr. 386-87).
Plaintiff also claims that she suffers from migraine headaches. (Tr. 53.) On June 8, 2010,
Plaintiff underwent a brain MRI.

(Tr. 301.)

The MRI showed that there were scattered

nonspecific, non-enhancing T2 flair white matter hyperintensities, which may be observed with
the occurrence of migraine headaches. (Tr. 301.)
Plaintiff also claims to have problems with anxiety and that she is unable to manage her
stress levels. (Tr. 213.) Plaintiff reports taking Klonopin for her anxiety. (Tr. 276.)
II. DISCUSSION
A. Standard of Review
This Court has Jurisdiction to review the Commissioner’s decision under 42 U.S.C. §
405(g). This Court must affirm the Commissioner’s decision if there exists substantial evidence
to support the decision. 42 U.S.C. § 405(g); Markle v. Barnhart, 324 F.3d 182, 187 (3d Cir. 2003).
Substantial evidence “means such relevant evidence as a reasonable mind might accept as
adequate.” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995). Stated differently, substantial
evidence consists of “more than a mere scintilla of evidence but may be less than a preponderance.”
McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004).
“[T]he substantial evidence standard is a deferential standard of review.”

Jones v.

Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Accordingly, the standard places a significant limit
on the district courts’ scope of review: it prohibits the reviewing court from “weigh[ing] the
evidence or substitute[ing] its conclusions for those of the fact-finder.” Williams v. Sullivan, 970
F.2d 1178, 1182 (3d Cir. 1992). Therefore, even if this Court would have decided the matter

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differently, it is bound by the ALJ’s finding of fact so long as they are supported by substantial
evidence. Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012) (quoting Fargonli v.
Halter, 247 F.3d 34, 35 (3d Cir. 2001)).
B. The Five-Step Disability Test
The Social Security Act gives the Social Security Agency authority to promulgate
regulations that provide for the payment of a disabled child’s insurance benefits if the claimant is
18 years old or older and has a disability that began before attaining the age of 22. 20 C.F.R. §
404.350. A claimant’s eligibility for social security benefits is governed by 42 U.S.C. § 1382.
An individual will be considered disabled under the Social Security Act (“Act”) if he is
unable to “engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment” lasting continuously for at least twelve months. 42 U.S.C.
§ 432(d)(1)(A). The impairment must be severe enough to render the individual “not only unable
to do his previous work but [unable], considering his age, education, and work experience, [to]
engage in any kind of substantial gainful work which exists in the national economy . . . .” 42
U.S.C. § 423(d)(2)(A). A claimant must show that the “medical signs and findings” related to his
ailment have been “established by medically accepted clinical or laboratory diagnostic techniques,
which show the existence of a medical impairment that results from anatomical, physiological, or
psychological abnormalities which could reasonably be expected to produce the pain or other
symptoms alleged.” 42 U.S.C. § 423(d)(5)(A).
To make a disability determination, the ALJ follows a five-step sequential analysis to
determine disability under the Act. See 20 C.F.R. § 404.1520; see also Cruz v. Comm’r of Soc.
Sec., 244 F. App’x 475, 479-80 (3d. Cir. 2007). Step one requires the ALJ to determine whether
the claimant is engaging in substantial gainful activity (“SGA”), which is defined as work that

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involves doing significant and productive physical or mental duties for pay or profit. See 20 C.F.R.
§§ 404.1520(b). If the claimant engages in SGA, she is not disabled, for purposes of receiving
social security benefits, regardless of the severity of his impairment(s).

20 C.F.R.

§ 416.920(a)(4)(i). If the individual is not engaging in SGA, the ALJ proceeds to step two. Id. §
416.920.
If the claimant establishes that she is not currently engaged in SGA, the ALJ then
determines whether, under step two, the claimant suffers from a severe impairment or combination
of impairments. Id. § 404.1520(a)(4)(ii). An impairment or combination of impairments is “not
severe” when medical and other evidence establishes only a slight abnormality or combination of
abnormalities that would have a minimal effect on an individual’s ability to work. Id. § 416.921.
If a severe impairment or severe combination of impairments is not found, the claimant is not
disabled. If the ALJ finds a severe impairment or combination of impairments, she then proceeds
to step three, where she must determine whether the claimant’s impairment(s) is equal to or
exceeds one of those included in the Listing of Impairments in 20 C.F.R. Part 404 Subpart P, App.
1. 20 C.F.R. §§ 416.920(d), 416.925, 416.926.
Under step three, if an impairment or combination of impairments meets the statutory
criteria of a listed impairment, as well as the duration requirement, the claimant is disabled, and
entitled to benefits. Id. § 416.920(d). However, if the claimant’s impairment(s) do not meet the
severity of the listed impairment, or if the duration is not sufficient, the ALJ proceeds to the next
step. Id. § 416.920(e).
Before undergoing the step four analysis, the ALJ must determine the claimant’s residual
functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). An individual’s RFC is his
ability to do physical and mental work activities on a sustained basis despite limitations from his

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impairments. Id. § 416.920(e). The ALJ considers all impairments in this analysis, not just those
deemed severe. Id. §§ 404.1520, 416.920(e), 416.945; SSR 96-8p. After determining a claimant’s
RFC, the ALJ must determine, under the step four analysis, whether the claimant has the RFC to
perform the requirements of his past relevant work. Id. §§ 404.1520(e)-(f), 416.920(f). If the
claimant is able to perform his past relevant work (or alternatively does not have past relevant
work), she will not be found disabled under the Act.
If the claimant is unable to resume his past work, the disability evaluation proceeds to the
fifth and final step. At step five, the ALJ must determine whether the claimant is able to do any
other work considering his RFC, age education, and work experience. Id. § 416.920(g). Unlike
the first four steps of the analysis, where the claimant bears the burden of persuasion, if the
claimant establishes that his impairment prevents him from performing any of his past work, the
burden shifts to the ALJ at step five to determine whether the claimant is capable of performing
an alternative SGA present in the national economy. See 20 C.F.R. §§ 404.1520(g), 416.920(g);
Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987).
C. Analysis
The ALJ found that a significant number of jobs exist in the national economy to
accommodate Plaintiff’s exertional demands of light work and, therefore, that Plaintiff is not
disabled. (Tr. 25.) This Court finds that ALJ Krappa’s disability determination is supported by
substantial evidence in the administrative record.
At step one, ALJ Krappa found that Plaintiff has engaged in SGA since December 1, 2009.
(Tr. 23.)

At step two, the ALJ determined that Plaintiff suffers from a severe impairment or

combination of impairments. (Tr. 23.) According to ALJ Krappa, the following medically
determinable impairments, either individually or in combination, significantly limit Plaintiff’s

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ability to do one or more basic work activities: “obesity; a disorder of the back; fibromyalgia;
sinusitis; headaches; anxiety; benign positional vertigo; and osteoarthritis of the knee.” (Tr. 23.)
At step three, ALJ Krappa found that Plaintiff’s impairments or combination of
impairments do not equal to or exceed those in the Listing of Impairments in 20 C.F.R. Part 404
Subpart P, App. 1. 20 C.F.R. §§ 416.920(d), 416.925, 416.926. At this step, the ALJ is not
required “to use particular language or adhere to a particular format in conducting [her] analysis.”
Jones, 364 F.3d at 505. Overall, ALJ Krappa’s decision sufficiently considers the appropriate
factors in reaching the conclusion that Plaintiff does not meet the requirements listed in 20 C.F.R.
Part 404 Subpart P, App. 1. Id.
Plaintiff did not carry her burden of proving that her impairments or combination of
impairments equal or exceed the listed impairments because the record does not contain sufficient
clinical signs or laboratory findings listing the level of severity of Plaintiff’s impairments. (Tr.
24.). See 20 C.F.R. §§ 404.1520(g), 416.920(g); Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir.
1987). Specifically, the ALJ found that medical listing 1.02A, which pertains to major dysfunction
of a weight-bearing joint, is inapplicable because there is no evidence that Plaintiff needs a
handheld assistive device to ambulate effectively. (Tr. 24.) The evidence in the record supports
this finding, as Dr. Pedra-Nobre noted that Plaintiff can walk a reasonable pace and without the
use of a hand-held assistive device. (Tr. 408.) Likewise, Dr. Freeman indicated that Plaintiff is
able to walk without the use of an assistive device. (Tr. 284).
Plaintiff’s additional impairments also fail to meet the requisite level of severity. As to
Plaintiff’s back disorder, the ALJ correctly found that there is no evidence indicating a nerve root
compromise required to meet the criteria under the medical listing 1.04. (Tr. 24.) The ALJ also
appropriately discounted the severity of Plaintiff’s migraine headaches because the evidence in the

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record does not support the alleged severity. (Tr. 24.) The ALJ also adequately considered the
effects of Plaintiff’s anxiety. (Tr. 24-25.) Plaintiff was found to have only a moderate restriction
in daily living because she acknowledged that she is able to take care of her personal needs. (Tr.
24-25). Plaintiff also has a moderate limitation in social functioning because Plaintiff did not
report any significant difficulties in maintaining social relationships. (Tr. 25.) Finally, Plaintiff
has moderate deficiencies in concentration, persistence, or pace because Plaintiff has the
concentration to take care of her personal needs, watch television, and respond to questions at the
hearing in an “appropriate and timely manner.” (Tr. 25.)
Contrary to Plaintiff’s argument, the ALJ sufficiently considered Plaintiff’s obesity.
Notwithstanding that “no treating or examining medical source has attributed additional or
cumulative limitations to [Plaintiff’s] obesity,” at this step and later steps the ALJ explicitly stated
that she considered the effect of Plaintiff’s obesity in reaching her conclusions. (Tr. 24.) See Diaz
v. Comm’r of Soc. Sec., 577 F.3d 500, 504 (2009) (noting that the ALJ is not required to use
“magic words” in her analysis). The ALJ considered the effect Plaintiff’s obesity would have in
causing or contributing to co-existing impairments such as “affecting a weight-bearing joint
[which] may have more pain and limitation than might be expected from arthritis alone.” (Tr. 24.)
The ALJ also noted that obesity “may limit [an] individual’s ability to sustain activity on a regular
and continuing basis during an eight-hour day, five-day week.” (Tr. 24.)
Before undergoing the analysis under step four, 20 C.F.R. §§ 404.1520(e), 416.920(e), ALJ
Krappa determined that Plaintiff’s RFC demonstrated that Plaintiff “was capable of the exertional
demands of light work as defined under the regulations.” (Tr. 25.) Specifically, the ALJ found
that Plaintiff was occasionally able to lift and carry 20 pounds and frequently able to lift and carry
10 pounds. (Tr. 25.) Plaintiff was able to sit or stand for six hours in an eight-hour workday. (Tr.

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25.) Plaintiff was also able to perform unlimited pushing and pulling within the weight restriction
given in an environment that required no use of ladders, ropes, or scaffolds. (Tr. 25.) Plaintiff was
able to perform jobs that are unskilled and repetitive. (Tr. 25.)
ALJ Krappa’s RFC finding is supported by substantial evidence. When determining the
intensity and persistence of the Plaintiff’s symptoms, the ALJ must consider whether “objective
medical evidence and other evidence” support Plaintiff’s claims regarding the intensity and
persistence of her symptoms. 20 C.F.R. § 404.1529(a). It is important to note that none of
Plaintiff’s doctors provided an opinion regarding Plaintiff’s ability to work. Moreover, the ALJ’s
decision is largely consistent with the Agency’s medical consultant’s opinion on Plaintiff’s RFC.
(Tr. 252-59.) In a disability worksheet submitted to the Agency, a medical consultant noted that
“additional evidence is needed to fully assess the severity of the claimant’s condition.” (Tr. 263.)
Plaintiff’s claim that she is completely unable to work due to her limitations is simply not
supported by the record as a whole.
At the fourth step of the analysis, the ALJ analyzed whether Plaintiff has the RFC to
perform the requirements of her past relevant work. 20 C.F.R. §§ 404.1520(e)-(f), 416.920(f).
The ALJ found that Plaintiff does not have past employment that qualifies as “prior relevant work”
pursuant to the Regulations. (Tr. 29); see 20 C.F.R. §§ 404.1520(e)-(f), 404.1568, 416.920(f). 1

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20 C.F.R. § 404.1565 provides, in relevant part:
Work experience means skills and abilities you have acquired through work
you have done which show the type of work you may be expected to do . .
. We consider that your work experience applies when it was done within
the last 15 years, lasted long enough for you to learn to do it, and was
substantial gainful activity . . . If you have no work experience or worked
only “off-and-on” or for brief periods of time during the 15–year period, we
generally consider that these do not apply.
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At the fifth step, the ALJ must determine whether the claimant is able to do any other work
considering her RFC, age, education, and work experience. 20 C.F.R. § 416.920(g). The ALJ
must conclude that Plaintiff is capable of performing alternative SGA in the national economy.
See 20 C.F.R. §§ 404.1520(g), 416.920(g). Here, the ALJ’s finding that Plaintiff is capable of
performing other SGA present in the national economy is supported by substantial evidence. (Tr.
21); see also 20 C.F.R. §§ 404.1520(g), 416.920(g); Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir.
1987).
In reaching her decision, ALJ Krappa considered the following facts: First, Plaintiff was
forty-eight years old on the date of the alleged onset of the disability, placing her in the “individual
closely approaching advanced age” category according to federal regulations. (Tr. 29). See
§§ 404.1563(c), 416.963(c) (stating that if claimant is under 50, age is not considered to seriously
affect ability to adjust to other work). Second, Plaintiff has a limited education and is able to
communicate in English. (Tr. 29.) Fourth, Plaintiff has the RFC for light work. (Id.) Finally,
the vocational expert considered Plaintiff’s RFC, age, education, and work experience and found
that a significant amount of jobs exist for someone such as Plaintiff, including the jobs of mail
clerk, counter attendant, and ticket seller. (Tr. 30, 66-67.)
Although Plaintiff argues that the ALJ failed to consider all of Plaintiff’s “credibly
established mental limitations” at the fifth step, ALJ Krappa’s application of Plaintiff’s RFC at the
fifth step is an implicit consideration of Plaintiff’s credible mental limitations. (Tr. 26-28.) In the
analysis before reaching the fourth step, ALJ Krappa considered Plaintiff’s mental limitations in
determining Plaintiff’s RFC. (Tr. 26-28.) As discussed above, ALJ Krappa’s RFC finding at the
fourth step, its application in the fifth step analysis, and the conclusion that Plaintiff was “not
disabled” was supported by substantial evidence.

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III. CONCLUSION
Because this Court finds that the ALJ’s decision is supported by substantial evidence in the
record, the Commissioner’s disability determination is AFFIRMED. An appropriate order will
follow.

s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
Orig: Clerk
cc:
Magistrate Judge Steven C. Mannion
Parties

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