FREIREICH v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION. Signed by Judge Stanley R. Chesler on 11/30/15. (cm )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
ARTHUR A. FREIREICH,
:
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER OF SOCIAL
:
SECURITY,
:
:
Defendant.
:
____________________________________:
Civil Action No. 14-6062 (SRC)
OPINION
CHESLER, District Judge
This matter comes before the Court on the appeal by Plaintiff Arthur A. Freireich
(“Plaintiff”) of the final decision of the Commissioner of Social Security (“Commissioner”)
determining that he was not disabled under the Social Security Act (the “Act”). This Court
exercises jurisdiction pursuant to 42 U.S.C. § 405(g) and, having considered the submissions of
the parties without oral argument, pursuant to L. CIV. R. 9.1(b), finds that the Commissioner’s
decision will be affirmed.
In brief, this appeal arises from Plaintiff’s application for disability insurance benefits,
alleging disability beginning October 8, 2010. A hearing was held before ALJ Donna A. Krappa
(the “ALJ”) on November 14, 2013, and the ALJ issued an unfavorable decision on February 24,
2014, finding that Plaintiff had not been disabled during the period in question. After the
Appeals Council denied Plaintiff’s request for review, the ALJ’s decision became the
Commissioner’s final decision, and Plaintiff filed this appeal.
In the decision of February 24, 2014, the ALJ found that, at step three, Plaintiff did not
meet or equal any of the Listings. At step four, the ALJ found that Plaintiff retained the residual
functional capacity to perform the full range of work, as long as the jobs are simple and
repetitive, low stress, and require concentration for two-hour blocks of time at the longest. At
step four, the ALJ also found that this residual functional capacity was insufficient to allow
Plaintiff to perform his past relevant work as information technology specialist or data manager.
At step five, the ALJ consulted a vocational expert and concluded that there are other jobs
existing in significant numbers in the national economy which the claimant can perform,
consistent with his medical impairments, age, education, past work experience, and residual
functional capacity. The ALJ concluded that Plaintiff had not been disabled within the meaning
of the Act.
Plaintiff argues that the Commissioner’s decision should be reversed and the case
remanded on two grounds: 1) the ALJ failed to properly weigh the medical evidence; and 2) the
ALJ failed to properly evaluate Plaintiff’s credibility.
In largest part, Plaintiff argues that the ALJ failed to give controlling weight to the
opinions of Plaintiff’s three treating physicians, Drs. Malkin, Frederikse, and Schaller.
Plaintiff’s argument begins by appropriately citing 20 C.F.R. § 1527(c)(2), which states: “If we
find that a treating source’s opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in your case record, we
will give it controlling weight.” Plaintiff’s brief overlooks the last condition in the regulation:
the treating source evidence must be “not inconsistent with the other substantial evidence.” That
is the key here. The ALJ found that the opinions of Plaintiff’s physicians were inconsistent with
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other substantial evidence. On review, this Court must examine the other evidence to determine
whether it constitutes substantial evidence. If the other evidence is found to be substantial
evidence, this Court must defer to the ALJ’s weighting of the evidence.
The ALJ stated that her residual functional capacity determination was supported by
three types of evidence: the treatment records, the claimant’s statements about his activities of
daily living, and the opinions of state agency consultants. (Tr. 36.) This Court need not consider
the ALJ’s conclusions that the treatment records support conclusions that differ from those stated
by the treating physicians. The record contains the report of state agency consultant Dr.
Joynson, dated May 1, 2012, who reviewed the records and concluded that the claimant retained
the residual functional capacity for simple work. (Tr. 74.) The record also contains the report of
state agency consultant Dr. Gara, dated September 18, 2012, who reviewed the records and
concluded that the claimant retained the residual functional capacity for simple work. (Tr. 86.)
The record also contains the transcript of the hearing, at which Plaintiff testified.
Plaintiff testified that, on a typical day, he spends two hours doing day trading in the options
market. (Tr. 53.) Plaintiff’s testimony about his other activities of daily living did not evidence
any significant limitations. (Tr. 54-58.) The ALJ found this to be evidence relevant to
Plaintiff’s residual functional capacity, which seems reasonable.
The Court notes as well that, as the Commissioner contends, Dr. Malkin did not opine
that Plaintiff could do no work of any kind, only that he was unable to perform his previous
work, which is consistent with the ALJ’s determination. (Tr. 348.) Also, the parties agree that
Dr. Schaller is a primary care physician, not a psychiatrist. (Pl.’s Br. 20.) The only medical
evidence in the record from a treating expert in mental health, concluding that Plaintiff cannot
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work at all, is the report of Dr. Frederikse. Viewing the record as a whole, Dr. Frederikse’s
opinion appears to be not consistent with other substantial evidence of record. The ALJ’s
decision not to give controlling weight to Dr. Frederikse’s opinion does not conflict with 20
C.F.R. § 1527(c)(2).
Because this Court concludes that the ALJ’s decision is supported by substantial
evidence, it need not reach Plainiff’s second argument on appeal that the ALJ’s credibility
determination of Plaintiff was erroneous. Moreover, the Third Circuit has quoted approvingly
this Ninth Circuit holding in NLRB v. Lee Hotel Corp., 13 F.3d 1347, 1351 (9th Cir. 1994):
“The ALJ’s credibility determinations should not be reversed unless inherently incredible or
patently unreasonable.” Atlantic Limousine, Inc. v. NLRB, 243 F.3d 711, 718-719 (3d Cir.
2001). Plaintiff does not assert that this standard has been met.
This Court must affirm the Commissioner’s decision if it is “supported by substantial
evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3); Stunkard v. Sec’y of Health and Human Services,
841 F.2d 57, 59 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence “is more than a mere scintilla of
evidence but may be less than a preponderance.” McCrea v. Comm’r of Soc. Sec., 370 F.2d
357, 360 (3d Cir. 2004). The reviewing court must consider the totality of the evidence and then
determine whether there is substantial evidence to support the Commissioner’s decision. See
Taybron v. Harris, 667 F.2d 412, 413 (3d Cir. 1981).
The reviewing court is not “empowered to weigh the evidence or substitute its
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conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir.
1992), cert. denied sub nom.; Williams v. Shalala, 507 U.S. 924 (1993) (citing Early v. Heckler,
743 F.2d 1002, 1007 (3d Cir. 1984)). If the ALJ’s findings of fact are supported by substantial
evidence, this Court is bound by those findings, “even if [it] would have decided the factual
inquiry differently.” Fargnoli v. Massanari, 247 F.3d 34, 35 (3d Cir. 2001); see also Hartranft
v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
Plaintiff has failed to persuade this Court that the ALJ erred in his decision. This Court
finds that the Commissioner’s decision is supported by substantial evidence and is affirmed.
s/ Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.
Dated: November 30, 2015
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