ESTEVEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Kevin McNulty on 6/8/2016. (seb)

NOT FOR PUBLICATION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

Civ. No. 14-6337 (KM)

EDUARDO RODRIGUEZ ESTEVEZ,
Plaintiff,

OPINION
V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

On October 14, 2014, Eduardo Rodriguez Estevez, pro Se, flied a
complaint seeking review pursuant to 42 U.S.C.

§ 405(g) and 5 U.S.C. § 706 of

the Social Security Agency’s denial of his application for disability insurance
benefits under Title II of the Act, 42 U.S.C.

§ 40 1-434, for the period February

28, 2011 (the alleged onset date) through December 24, 2013 (the date of the
AU’s decision). The Appeals Council denied the plaintiff’s request for review,
rendering it a final decision of the Commissioner. (R. 4—9)’
Under Local Rule 9.1 the plaintiff’s Statement was due on December 23,
2014, and his Brief was due on February 22, 2015. Neither was filed. By Order
to Show Cause the Court afforded Plaintiff the opportunity to comply. Plaintiff
did not respond to the Order to Show Cause. He instead filed a notice of appeal
from my order. (ECF no. 12) On April 12, 2016, the Court of Appeals dismissed
the appeal for lack of jurisdiction (ECF no. 13), returning jurisdiction to this
Court.
The same day, April 12, 2016, I entered an order giving the plaintiff until
May 1, 2016, to file a brief stating in what manner he believes the
Pages in the administrative record, filed at ECF no. 8, are cited as “R.

“.

Commissioner’s decision was incorrect. (ECF no. 14) The plaintiff filed nothing.
My order directed that, if plaintiff did not respond, the Commissioner should
file a short statement with citations to the record supporting affirmance. (Id.)
The Commissioner has filed such a response in the form of a letter dated June
7, 2015. (ECF no. 15)
I have elected not to treat the matter as abandoned or to dismiss the
complaint as a sanction for this pro se plaintiff’s failure to comply with briefing
requirements. Rather I will, on the basis of the materials before me, review the
decision of the Commissioner.
I.

LEGAL STANDARDS
A. Standard of Review

As to legal issues, this Court’s review is plenary. See Schaudeck v. Comm’r of
Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to the factual findings of the
Administrative Law Judge (“AU”), however, this Court is directed “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). “It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id.; accord Richardson v. Perales,
402 U.S. 389, 401 (1971).

{I]n evaluating whether substantial evidence supports the AU’s
findings
leniency should be shown in establishing the
claimants disability, and
the Secretary’s responsibility to rebut
it should be strictly construed. Due regard for the beneficent
purposes of the legislation requires that a more tolerant standard
be used in this administrative proceeding than is applicable in a
typical suit in a court of record where the adversary system
prevails.
.

.

.

.

.

.

Reefer v. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal citations and
quotations omitted). When there is substantial evidence to support the AU’s

factual findings, this Court must abide by them. See Jones, 364 F.3d at 503
(citing 42 U.S.C.
B.

§ 405(g)).
The Five-Step Sequential Analysis

Under the authority of the Social Security Act, the Social Security
Administration (“SSA”) has established a five-step evaluation process for
determining whether a claimant is entitled to benefits. 20 C.F.R.

§ 404.1520,

4 16.920; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999).
Step 1: Determine whether the claimant has engaged in
substantial gainful activity since the onset date of the alleged
disability. 20 C.F.R. § 404.1520(b), 416.920(b). If not, move to
step two.
Step 2: 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, move to step
three.
Step 3: Determine 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 receive benefits; if not, move to
step four. Id. § 404.1520(d), 4 16.920(d).
Step 4:
the claimant
perform past
not, move to
claimant has

Determine whether, despite any severe impairment,
retains the Residual Functional Capacity (“RFC”) to
relevant work. Id. § 404.1520(e)-(f), 416.920(e)-(f). If
step five. Up to this point (steps 1 through 4) the
borne the burden of proof.

Step 5: The burden shifts to the SSA to demonstrate that the
claimant, considering his or her age, education, work experience,
and RFC, is capable of performing other jobs that exist in
significant numbers in the national economy. 20 C.F.R. §
404.1520(g), 416.920(g); see Poulos v. Comm’r of Soc. Sec., 474
F.3d 88, 9 1—92 (3d Cir. 2007). If so, DIB will be denied; if not, they
will be awarded.

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III.

ANALYSIS OF THE COMMISSIONER’S DECISION
A. Steps 1 through 3
Mr. Estevez, assisted by counsel, Manuel Garcia, Esq., had a hearing

before AU Jack Russak on December 17, 2013. The AU

reviewed the record

and heard testimony from Mr. Estevez and from Gerald D. Beichick, a
vocational expert.
At step 1, AU Russak found that Plaintiff had not engaged in substantial
gainful activity since February 8, 2011, the alleged onset date. (R 96)
Substantial gainful activity (“SGA”) is defined as work activity that is both
substantial and gainful.
At step 2, the AU

found that Plaintiff had the following severe

impairments: degenerative disc disease, obesity, left shoulder tendinopathy and
impingement, bilateral lateral epicondylitis, and mood and affective disorder. R.
96.
The AU

rejected claims of hypertension, sleep apnea, and a

hernia/prostate issue. This rejection was supported by substantial evidence.
As to hypertension, the record showed no significant treatment, and at any rate
the condition was stable and there was no evidence that it caused any
limitation of function. As to sleep apnea, the record showed a recent diagnosis
and recommendation of a CPAP mask, which plaintiff had not yet obtained. No
functional limitation was noted in the record. As to the hernia, the record
showed a surgically repaired hernia some eight years previously, for which
there was no current treatment. There was evidence of a small left inguinal
hernia, but the treating doctor, Patrick McGovern, M.D., did not recommend
anything beyond monitoring, and stated that it was not a major issue. Urinary
frequency has been controlled with medication. Prostate issues were not
serious or severe. (R. 96—97) The AU

noted that, although these three

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impairments were not severe, the limitations of the RFC would as a practical
matter tend to avoid resulting problems.
At step 3, the ALl found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listened
impairments in 20 CFR Part 404, Subpart P, Appendix 1. R 21 (citing 20 CFR
404.1520(d), 404.1525, 404.1526). He properly considered the impairments,
including obesity, alone and in combination. This component of the AU’s
decision properly applied the required standards to the substantial evidence of
record.
As to degenerative disc disease, the AU

considered listing 1 .04, but

found that there was no evidence that Plaintiff had the requisite motor and
sensory deficits, or that he suffers from spinal arachnoiditis or lumbar spinal
stenosis resulting in pseudoclaudication. (R. 97)
As to the shoulder and elbow impairments, the AU

considered listing

1 .02B but found it inapplicable because Plaintiff is also to perform fine and
gross movements. (R. 98)
As to the mental impairments, the AU

considered listing 12.04 and

12.06. Appendix 1 contains three lists of criteria, known as Paragraphs A, B,
and C. See 20 C.F.R. Pt. 404, Subpt. P., App. 1,

§ 12.04, 12.06. The claimant

must either (1) satisfy paragraphs A and B; or (2) satisfy paragraph C.
Under paragraph B, the ALl properly analyzed the evidence in relation to
the relevant criteria:
—As to activities of daily living, the AUJ found mild, not marked
restriction. Plaintiff testified that he reads the Bible; watches television;
uses a cellphone and computer; goes shopping with his girlfriend; helps
with chores, including taking out the garbage; and goes for walks in the
park. (R. 98) This evidence of record supports the finding.

5

found no particular evidence of

—As to social function, the AU

any difficulty. Plaintiff has never been laid off from a job because he
could not get along with others; lives with his girlfriend and adult
daughter; has good relations with his five siblings; and goes to church.
(R. 98) This evidence of record supports the finding.
—As to concentration, persistence and pace, the AU found
moderate difficulties. Plaintiff reported that he can pay bills and count
change. He watches and follows programs on television. He uses a
computer and reads occasionally. (R. 98) Testing showed intact memory.
This evidence of record supports the finding.
These findings, the AU

properly found, did not add up to either two

marked limitations or one marked limitation plus repeated and extended
episodes of decompensation. (R. 98)
Under paragraph C, the AU

properly analyzed the evidence in relation to

the relevant criteria. He properly found that the medical evidence contained no
evidence of episodes of decompensation (or a residual disease process predicted
to cause such); no evidence of stays for a year or more in a highly supportive
living arrangement; and no evidence that Plaintiff is unable to function
independently outside the home. (R. 99)
B. Residual Functional Capacity (RFC)
The residual functional capacity (RFC) represents the most the plaintiff
can do, given his limitations. See 20 C.F.R.

§ 404.1545(a). AU Russak found

that Mr. FDstevez retained the following RFC:
[T]he claimant has the residual functional capacity to perform
medium work as defined in 20 CFR 404.1567(c) except the
claimant can only occasionally climb ramps and stairs, stoop,
kneel, and crouch. He can never climb ladders, ropes or scaffolds
or crawl. His left non-dominant arm is limited to only occasional
reaching and overhead reaching. The claimant is limited to a low
stress job defined as having only occasional decision making and
only occasional changes in the work setting and only occasional
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judgment required on the job and he is limited to simple routine
tasks.
(R. 99)
1.

Standard for weighing evidence

The RFC was based on the AU’s analysis of the evidence of Mr. Estevez’s
impairments. The AU properly considered first, whether a medical impairment
exists that could reasonably be expected to produce the symptoms complained
of, and second, whether the evidence supported the plaintiff’s claims as to the
extent to which those symptoms limit his functioning. The evidence considered
included the medical evidence, as well as the plaintiff’s own testimony.
A claimant’s subjective complaints merit careful consideration, but the
AU

is not required to accept them uncritically. Chandler v. Comm’r of Soc. Sec.,

667 F.3d 356, 363 (3d Cir. 2011) (citing 20 C.F.R.

§ 4 16.929). Rather, the AU

is required to assess whether and to what degree such complaints are credible.
See SSR 96-7p, 1996 WL 374186, at *4
[W]hile an AU must consider a claimant’s subjective complaints,
an AU has discretion to evaluate the credibility of a claimant and
arrive at an independent judgment in light of medical findings and
other evidence regarding the true extent of the pain alleged by the
claimant. Subjective complaints cannot alone establish disability.
Gantt v. Comm’r Soc. Sec., 205 F. App’x 65, 67 (3d Cir. 2006) (internal
quotations and citations omitted). See also 20 C.F.R.

§ 404.1529(c); Malloy v.

Comm’rof Soc. Sec., 306 Fed. App’x 761, 765 (3d Cir. 2009) (citing
Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)); Davis v. Com’r of
Soc. Sec., 240 F. App’x 957, 960 (3d Cir. 2007).
The AU

may reject subjective complaints, for example, if they are not

credible in light of the other evidence of record. Schaudeck v. Comm’r of Soc.
Sec., 181 F.3d 429, 433 (3d Cir. 1999). The AU is called upon to evaluate the
intensity, persistence, and limiting effects of a claimant’s symptoms to
determine the extent to which they limit his ability to perform basic work
activities. See 20 C.F.R.
evidence

...

§ 404.1529(c)(2). As to that issue, “[o]bjective medical

is a useful indicator.” Id. The AU may also examine factors that
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precipitate or aggravate the symptoms, medications and treatments, and daily
living activities. 20 C.F.R.

§ 1529(c)(3).

The AU’s credibility determination “must contain specific reasons for the
finding on credibility, supported by the evidence in the case record.” SSR 967P; see also 20 C.F.R.
that the AU

§ 404.1529(b), 416.929(b). What is required overall is

give the claimant’s testimony “serious consideration,” state his

reasons for discounting it, and make “specific findings.” Rowan v. Bamhart, 67
F. App’x 725, 729 (3d Cir. 2003). Where that has been done, a reviewing court
will defer to the AU’s credibility determinations.
2.

Mental health

Plaintiff did not originally claim any mental health disability in his
applications. The AU

found that he had recently started conservative

treatment of what amounted to a mild and stable condition. There was
substantial evidence for that conclusion. (R. 100)
Ghulam Bajwa, M.D., stated that the plaintiff reported depression and
anxiety, and other treatment notes showed a history of drinking five to six
beers on weekends. Dr. Bajwa noted good grooming, normal mental status,
appropriate affect, fair insight and judgment, intact memory, and no
psychomotor activity. There were no delusions or hallucinations. Dr. Bajwa
started plaintiff on Lexapro and Trazodone, drugs used to treat anxiety and
depression. (R. 100)
The AU

noted that plaintiff was having only 20 minute monthly

medication checkups. Functioning appeared normal in that the plaintiff
socialized, took public transportation, attended church, watched television,
helped with chores and shopped. (R. 104)
The limitations in the RFC take into account limitations caused by the
mental health impairments. The RFC limits plaintiff to low stress work:
occasional decision making, occasional changes to the work setting, occasional
exercises of judgment and simple routine tasks. These limitations are well
supported by the evidence of record.

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3.

Arm and back impairments

Much of the case focused on the effect of the impairments to plaintiff’s
back and arm. The AU accepted that these impairments are real, but did not
credit plaintiff’s contentions that they are wholly disabling. Substantial
evidence supported that conclusion.
AU

Russak heard the testimony of Mr. Estevez. Estevez was 58 years

old, 5’5” and 217 pounds. Plaintiff acknowledged that he had traveled the
hearing on his own by bus. He complained of knee and ankle pain when he
climbed the stairs to his second floor apartment. He reported receiving
medication for his “nerves” and to help him sleep from a psychiatrist, Dr.
Bajwa. He was seeing a therapist named Mildred every two weeks. He reported
disability as a result of back pain, knee pain, ankle pain, prostate trouble, and
a hernia. He acknowledged that the hernia surgeries had been successful. He
was unsure of the source of ankle swelling, and stated it might be due to his
heart, but he had not been examined for that. Plaintiff reported being able to
either sit or stand for up to 1 ‘/2 hours. (R. 99—100, summarizing R. 114—37)
The AU

then considered the other evidence in the case in order to

evaluate the credibility of plaintiff’s statement that he was totally unable to
work.
Plaintiff injured his back in 2010 in a forklift driving accident. Dr. Lavian
Pejman diagnosed him with lumbar strain, bilateral elbow strain, and
abdominal wall strain. X-rays revealed no lumbar fractures. He was prescribed
Metaxalone and Naproxen and released. He received physical therapy.
On January 17, 2011, plaintiff saw Dr. Murli Raghavan, who noted some
improvement of symptoms. Plaintiff had been working with restricted duty and
tolerating it well. (R. 101) A followup MRI on January 20, 2011 showed
minimal degenerative change of the lumbar spine. (R. 101) Plaintiff stopped
working on January 28, 2011, but that was because the company went out of
business. (Id.)

9

Plaintiff’s job at the time of the accident was at the medium to heavy
exertional level. Immediately following the accident, plaintiff was restricted to
lifting no more than ten pounds.
In late January and February, however, three separate physicians—Drs.
Raghavan, Oglesby, and Chen—stated that plaintiff could return to regular
duty. (R. 702, 705, 709) The AU assigned weight to those conclusions of
treating physicians. (R. 102)
Physical examination findings in the relevant period were unremarkable.
(R. 823) Straight leg raising and walking on toes and heels were normal. (R.
663, 666, 682, 777, 823) In September 2012, begot on and off the examination
table and in and out of a chair unassisted. His gait was intact and he could
squat unaided without discomfort. (R. 777)
On September 25, 2012, Dr. Kern performed a consultative examination
at the request of the SSA. He found that plaintiff could sit for unlimited
periods, stand for up to 30 minutes, and walk without assistance. Dr. Kern
concluded that the plaintiff should limit overhead motion on the left side, could
lift up to 30 pounds occasionally, and 20 pounds frequently. He found no
limitation to the right arm. All in all, Dr. Kern found plaintiff fit to perform
work at a medium exertional level. The AU

credited this opinion, which was

consistent with the conservative treatment regime, the lack of any surgery or
hospitalizations, and plaintiff’s rapid return to work after the accident.
On October 1, 2012, a lumbar spine MRI was normal and a cervical
spine MRI showed mild degenerative changes. (R. 101)
On October 25, 2012, Dr. Joseph Udomsaph, a State agency evaluator,
reviewed the medical evidence. He concluded that plaintiff could perform work
at a medium exertional level, with frequent stair climbing, crouching, stopping
and balancing, and occasional climbing of ladders, ropes and scaffolds. He
noted limitations to reaching with the left arm. (R. 103)
On April 15, 2013, Dr. Harvey Yeager affirmed and elaborated on those
opinions. Because of complaints of pain, Harvey downgraded the general
climbing capabilities to occasional, and the climbing of ladders and such to
10

never. Musculoskeletal pain complaints, however, were stable and responsive
to conservative treatment. Objective physical tests were unremarkable, and
recent records continued to show no atrophy, weakness, impairment of gait, or
abdominal tenderness. Tenderness to the right lower back was improved. (R.
103—04)
All of these evaluations by doctors constituted substantial evidence to
support the RFC as found by AU

Russak. The AU

also considered, discussed,

and gave reasons for assigning less weight to contrary medical evidence.
On August 19, 2011, Dr. Horwitz examined plaintiff in connection with a
worker’s compensation claim. Dr. Horwitz found a permanent impairment of
47.5% of the right arm and 42.5% of the left arm, an orthopedic disability of
55% for the abdominal injuries and an orthopedic disability of 35% for the
lumbosacral spine. On September 12, 2011, Dr. Komotar found permanent
neurological disability of 20% of the right arm and left arm, permanent
neurological disability of 20% for lumbosacral radiculopathy and a permanent
neuropsychiatric disability of 20% for adjustment disorder. These opinions the
AU

gave less weight, because (a) worker’s compensation standards are distinct

from those governing SSA disability, and (b) these reports were prepared in
anticipation of litigation, and plaintiff did not submit records from the
employer’s insurance doctor.
Having weighed the evidence, the AU

concluded that “the claimant’s

statement concerning the intensity, persistence and limiting effect of these
symptoms are not entirely credible....” (R. 100) He discharged his duty to weigh
and discuss the evidence, pro and con, and to make findings. See pp. 7—8,
supra. It was based on that weighing of the evidence that the AU

reached his

determination of Mr. Estevez’s RFC. The RFC is therefore supported by
substantial evidence. I will defer to and sustain the AU’s findings.
C.

Steps 4 and 5

The AU accepted that plaintiff could not perform his past relevant work
as a hi-b

(forklift) operator, which requires medium to heavy exertion. Further

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limiting available work would be the plaintiff’s age (over 55), limited education,
and limited ability to communicate in English. (R. 104)
The AU found that in light of those factors, however, and plaintiff’s
RFC, there existed jobs that exist in significant number in the national
economy that plaintiff could perform. That finding rested on the testimony of a
vocational expert. (R. 138—52)
That VE testimony took into account that plaintiff had additional
limitations that would not permit the full range of medium exertional work. (R.
105) Examples of jobs at the medium exertional level that plaintiff could
perform, however, included (1) customer service bagger (DOT code 920.687014) SVP-2, 500,000 jobs nationally; (2) laundry worker (DOT code 309.677014) SVP-2, 210,000 jobs nationally; (3) deliverer merchandise (DOT code
299.477-010) SVP-2, 83,000 jobs nationally. (R. 105)
A vocational expert may rely on the DOT, and the AU

may rely on the

VE’s testimony to the extent it is consistent with the DOT. See 20 C.F.R.

§

404.1566 (d)(1) (“we will take notice of—(1) Dictionary of Occupational
Titles, published by the Department of Labor....”); Sargent v. Comm’r of Soc.
Sec., 476 F. App’x 977, 980 n.1 (3d Cir. 2012) (“Both the AU

and the

[vocational expert] relied on the classifications in the DOT, as the applicable
regulations permit.”). Indeed, the AU

may himself rely on the DOT in lieu of

calling a vocational expert. See Benson v. Comm’r of Soc. Sec., No. 3:1 1-CV4629, 2012 WL 3133937, at *10 (D.N.J. July 31, 2012); see also Coates v.
Colvin, No. CIV. 14-0265, 2014 WL 4792199, at *4 (W.D. Pa. Sept. 24, 2014)
Devault v. Astnie, No. 2:13-CV-0155, 2014 WL 3565972, at *6 (W.D. Pa. July
18, 2014).
The AU was entitled to rely on this testimony, which satisfies the
substantial evidence standard.
D.

Additional Evidence

One issue remains. After the AU hearing, while the case was on appeal
to the Appeals Council, plaintiff submitted some 76 pages of additional medical

12

records. (R. 11—87) The Appeals Council examined this material and
determined that it all dated from after the AU’s decision, which is dated
December 24, 2013. The bulk of this additional material dates from April—June,
2014.
The Appeals Council was empowered to consider after-acquired evidence,
but only to the extent it was relevant to the pre-December 24, 2013 period of
disability. That is, any evidence submitted to the Appeals Council must be
“new and material’ evidence that relates to the period on or before the date of
the AU’s hearing decision. See 20 C.F.R.

§ 404.970(b)” Matthews v. Apfel, 239

F.3d 589, 59 1—92 (3d Cir. 2001).
The Appeals Council considered this new evidence but found it was not
relevant to the period of disability. Rather, this new information was
about a later time. Therefore, it does not affect the decision about
whether you were disabled beginning on or before December 24,
2013. If you want us to consider whether you were disabled after
December 24, 2013, you need to apply again. The new information
you submitted is available in your electronic file for you to use in
your new claim.
(R. 5) The Appeals Council further advised Mr. Estevez that if he filed a new
claim within 6 months, then the agency could use February 10, 2014, the date
of his request for review, as the date of the new claim. (Id.)
Assuming I have jurisdiction to review that determination, I would
uphold it. The new evidence does not have any straightforward application to
Mr. Estevez’s disability status in the relevant period. The record does not reveal
whether he reapplied as he was invited to do.
CONCLUSION
For the foregoing reasons, the decision of the Secretary is AFFIRMED.
Dated: June 8, 2016

KEVIN MCNULTY
United States District J
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