PENA v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION. Signed by Judge William J. Martini on 1/28/16. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
FEDELICIA F. PENA,
Civ. No. 2:14-cv-07813 (WJM)
Plaintiff,
OPINION
v.
CAROLYN W. COLVIN
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Fedelicia F. Pena brings this action pursuant to 42 U.S.C. §§ 405(g) seeking
review of a final determination by the Commissioner of Social Security (the
“Commissioner”) denying her Title II application for a period of disability and disability
insurance benefits, and Title XVI application for supplemental security income. For the
reasons that follow, the Commissioner’s decision is AFFIRMED.
I.
LEGAL STANDARDS
A. The Five-Step Sequential Analysis
Under the authority of the Social Security Act, the Social Security Administration
has established a five-step evaluation process for determining whether a claimant is entitled
to benefits. 20 C.F.R. §§ 404.1520, 416.920. In the first step, the Commissioner
determines whether the claimant has engaged in substantial gainful activity since the onset
date of the alleged disability. Id. §§ 404.1520(b), 416.920(b). If not, the Commissioner
moves to step two to 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, the Commissioner inquires in step three as to 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 (and the analysis ends); if not, the Commissioner moves on to step four.
Id. §§ 404.1520(d), 416.920(d). In the fourth step, the Commissioner decides whether,
despite any severe impairment, the claimant retains the Residual Functional Capacity
(“RFC”) to perform past relevant work. Id. §§ 404.1520(e)-(f), 416.920(e)-(f). The
claimant bears the burden of proof at each of these first four steps. At step five, the burden
shifts to the Social Security Administration to demonstrate that the claimant is capable of
performing other jobs that exist in significant numbers in the national economy in light of
the claimant’s age, education, work experience and RFC. 20 C.F.R. §§ 404.1520(g),
416.920(g); see Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007) (citations
omitted).
B. Standard of Review
For the purpose of this appeal, the Court conducts a plenary review of the legal
issues. See Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999).
The factual findings of the Administrative Law Judge (“ALJ”) are reviewed “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). Substantial evidence means “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Id. When substantial evidence exists to support the ALJ’s factual findings, this Court must
abide by the ALJ’s determinations. See id. (citing 42 U.S.C. § 405(g)).
II.
BACKGROUND
Plaintiff – a thirty-nine-year-old resident of Perth Amboy, New Jersey – seeks a
finding of disability on the basis of the following impairments: (1) Arnold Chiari
malformation; (2) cervical cord syrinx; (3) status-post cervical laminectomy; (4) left upper
extremity weakness; (5) lumbar spine stenosis; (6) depression; (7) obesity; and (8) a heel
spur. Administrative Transcript (“Tr.”) 20. Plaintiff has an eighth grade education and has
held various jobs, including a factory worker, housekeeper, and homemaker aid. Tr. 3839, 203. She alleges disability as of March 22, 2011. Tr. 49.
In August 2014, Plaintiff filed a Title II application for a period of disability and
disability insurance benefits (“DIB”), and a Title XVI application for supplemental security
income. Tr. 17. Plaintiff’s applications alleged that she could not work because she
suffered from a variety of impairments, including various back disorders, depression, and
obesity. Tr. 174. Plaintiff’s applications were denied initially and on reconsideration. Tr.
48-63. After holding a hearing on March 7, 2013, the Administrative Law Judge (“ALJ”)
similarly denied the applications. Tr. 11-32. The Appeals Council then denied her request
for review, Tr. 1-8, and this appeal followed.
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A. Summary of the Record
The record includes medical records from physician Dr. Rajnik Raab, M.D., notes
from Donald Frank, M.D., treatment records from the Jewish Renaissance Medical Center,
and other emergency room records. The record also includes interrogatory responses from
vocational expert (“VE”) Patricia Sasona, as well as Plaintiff’s own testimony.
Dr. Raab of North Jersey Spine Group evaluated Plaintiff on several occasions. In
November 2010, Dr. Raab noted that Plaintiff underwent surgery for a Chiari malformation
on December 10, 2008. Tr. 261. He further explained that despite occasionally suffering
from headaches and gait difficulty, Plaintiff had progressed well since her surgery.
Specifically, Plaintiff’s extrocular movements and motor strength were intact. Id. Dr.
Raab’s 2010 notes show a marked improvement in Plaintiff’s condition since Dr. Raab last
saw her in 2009. Tr. 263. Even in 2009, however, Dr. Raab noted that there was no
tenderness or palpation in the surgical area. Id.
Dr. Frank also evaluated Plaintiff following her surgery. In November 2011, Dr. Frank
noted that Plaintiff complained of pain, but also determined that her motor and reflex
examinations were completely normal. Dr. Frank further concluded that there were no
abnormalities in the cervical spine. Tr. 287. Moreover, diagnostic imaging evaluations
sent to Dr. Frank also show no evidence of significant disc protrusion, no significant
crowding at the foramen magnum, no showing of a herniated nucleus polposus, and nothing
indicating a compression fracture or spondylolisthesis. Tr. 288. And while those
evaluations showed no significant cervical spine instability, they did show a mild bulging
annulus and a narrowing of a nerve root canal. Tr. 289-90.
Records from the Jewish Renaissance Medical Center in Perth Amboy, NJ also provide
insight to Plaintiff’s medical condition. They note, for example, that Plaintiff complained
of back pain; however, they also conclude that there were no abnormalities in Plaintiff’s
lumbar spine. Tr. 310-15. Notes from the Jewish Renaissance Medical Center indicate
that Plaintiff was mostly “doing well” and did not suffer from any neurological problems.
Tr. 330-31. Other notes leading up to January 2013 show similarly normal results. Tr.
331-40, 355-57. Moreover, while the records indicate that Plaintiff had left heel pain, the
pain did not cause her to lose balance or become numb. Tr. 348.
Plaintiff also filled out a function report in which she stated that she was capable of
eating, reading, and “do[ing] things around the house.” Tr. 208. Plaintiff reported
difficulty sleeping, but also explained that she was able to prepare food and shop in stores.
Tr. 211. Additionally, Plaintiff reported the ability to visit family and talk on the phone.
Tr. 212. Plaintiff also testified at the hearing, and represented that she suffers from frequent
headaches, back pain, and blurred vision. Specifically, Plaintiff testified that she suffered
from headaches nearly every day. Tr. 40-41. Plaintiff also reported difficulty sleeping due
to pain. Tr. 44.
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Finally, VE Patricia Sasona responded to interrogatories regarding Plaintiff’s ability to
work. Ms. Sasona concluded that someone of Plaintiff’s age, education, RFC, and
experience level would be capable of performing the jobs of a table worker and a final
assembler. Tr. 27.
B. The ALJ’s Decision
At step one, the ALJ found that Plaintiff did not engage in substantial activity during
the relevant time period. Tr. 19. At step two, the ALJ concluded that Plaintiff had the
following severe impairments: (1) Arnold Chiari malformation; (2) cervical cord syrinx
with neck pain; (3) left upper extremity weakness; (4) lumbar spine stenosis; (5)
depression; (6) obesity; and (7) a heel spur. Tr. 20. At step three, the ALJ concluded that
Plaintiff’s impairments did not meet nor were equivalent to one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part A. Tr. 20. In doing so, the ALJ found
that Plaintiff’s spinal impairments failed to demonstrate the existence of herniated nucleus
pulposis, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, or vertebral fracture. The ALJ further found that Plaintiff’s heel spur did
not meet the relevant listing requirements of Section 1.02, and that Plaintiff’s other physical
impairments did not meet the listed impairments even after considering her obesity. Id.
With respect to Plaintiff’s depression, the ALJ determined that Plaintiff suffered only mild
restriction in activities of daily living and social functioning. Therefore, the ALJ explained,
Plaintiff did not meet the listing requirement of 12.04. Tr. 21.
At step four, the ALJ found that Plaintiff has the RFC to perform sedentary work as
defined under the Regulations, i.e., she is able to lift or carry 10 pounds, perform unlimited
pushing and pulling within that weight restriction, stand/walk for two hours in an eight
hour workday, and sit for six hours a day so long as she is provided adequate breaks. Tr.
22. However, the ALJ found that Plaintiff’s RFC was limited in that she can bend only
occasionally, never crawl, and never climb scaffolds. Tr. 22. The ALJ further explained
that Plaintiff would be limited to work that involves simple instructions and a steady
routine. See id.
In finding that Plaintiff was capable of sedentary work, the ALJ took into account
wide variety of sources. Notably, the ALJ relied on medical records showing that Plaintiff
had progressed well since her 2008 surgery. Tr. 23. The records specifically show that
Plaintiff had completely healed from her surgery and that she enjoyed an excellent range
of motion and a normal gait. Moreover, the ALJ emphasized that an “x-ray of the cervical
spine…revealed an excellent decompression [and] no abnormalities.”
Tr. 23.
Additionally, and despite Plaintiff’s subjective complaints of back pain, records from the
Jewish Renaissance Medical Center showed a “normal range of motion in all joints with
no neurological, sensory or strength deficits. Id. While the ALJ noted Plaintiff’s other
testimony regarding her impairments, he found that the “statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible for
the reasons explained in the decision.” Tr. 24. The ALJ based that determination on the
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fact that Dr. Raab’s notes revealed good progression following Plaintiff’s surgery.
Similarly, the ALJ noted that Plaintiff reported being able to walk 30 minutes a day for six
days a week in April 2012, and that her heel spur received only conservative treatment. Tr.
24-25.
The ALJ further concluded that Plaintiff’s testimony was inconsistent with MRI
records and other forms of objective medical evidence. The ALJ’s decision also pointed
to a function report filled out by Plaintiff, which indicated that Plaintiff could drive a car,
perform chores, shop in a store, and attend church. Tr. 25.
At step five the ALJ concluded that Plaintiff was unable to perform any past relevant
work. However, after reviewing interrogatory responses from Ms. Sasona, the ALJ found
that there exist a number of jobs in the economy that Plaintiff is capable performing,
including the job of table worker and final assembler. Consequently, the ALJ found that
Plaintiff was not disabled within the meaning of the Social Security Act. Tr. 27.
III.
DISCUSSION
Plaintiff challenges the ALJ’s determination that she was not disabled under the
Social Security Act. Specifically, Plaintiff argues that the ALJ erred at step 3 by failing to
adequately consider Plaintiff’s back impairments, obesity, and depression issues. Plaintiff
further argues that the ALJ failed at step four by failing to account for Plaintiff’s spinal
problems or her subjective complaints of pain. Finally, Plaintiff argues that the
determination at step five is flawed because the hypothetical posed to the VE did not
include Plaintiff’s finger restrictions. The Court will address these arguments in turn.
A. Step Three
Plaintiff first argues that the ALJ failed to adequately consider Plaintiff’s back
problems at step three. Plaintiff notes that the medical evidence reveals “spinal cord
damage” and that she underwent significant procedures aimed at relieving her spinal
ailments. Therefore, Plaintiff argues, her spinal ailments meet Listing 1.04. The Court
rejects Plaintiff’s position. In order to meet Listing 1.04(A), Plaintiff’s back impairment
must involve nerve root compression characterized by certain specific factors, including
neuro-anatomic distribution of pain.1 Here, not only does Plaintiff fail to show evidence
of nerve root compression, one of her physicians expressly ruled out nerve root
compression after examining Plaintiff’s spine. See, e.g., Tr. 261. Similarly, Plaintiff has
failed to meet any of the other subparts of Listing 1.04 because she has failed, among other
things, to demonstrate confirmed spinal arachnoiditis or lumbar spinal stenosis resulting in
pseudoclaudication. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04(B)-(C).
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The other factors include, limitation of motion of the spine, motor loss accompanied by sensory or reflex loss, and
in some cases, positive straight-leg raising test. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(A).
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Plaintiff also contends that the step three analysis is flawed because the ALJ failed
to adequately assess her depression. Affective disorders will meet Listing 12.04 where
they involve medically documented persistence of certain syndromes resulting in at least
two of the following: (1) marked restriction of activities of daily living; (2) marked
difficulties in maintaining social functioning; (3) marked difficulties in maintaining
concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of
extended duration. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(A)-(B). Here, the ALJ’s
step three analysis emphasized that Plaintiff’s own function report reflected minimal
restrictions in daily living, social functioning, and the ability to concentrate. Tr. 21,25.
The ALJ noted that Plaintiff could shop, read, prepare light meals, drive a car, and visit
with family. Id. The ALJ’s determination that Plaintiff did not meet the “paragraph C”
criteria is also supported by substantial evidence. Specifically, there is nothing in the
record indicating that Plaintiff has a “[m]edically documented history of chronic affective
disorder of at least two years duration that has caused more than a minimal limitation of
ability to do basic work activities, with symptoms or signs currently attenuated by medical
or psychosocial support….” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(C).
The ALJ also adequately considered Plaintiff’s obesity when rendering his
determination at step three. Under SSR 02-1p an ALJ must “consider the effects of obesity
not only under the listings but also when assessing a claim at other steps of the sequential
evaluation process.” Moreover, the ALJ is to consider “the combined effects of obesity
with other impairments.” SSR 02-1p, 2000 WL 628049, at *1, *5 (“We will also find that
a listing is met if there is an impairment that, in combination with obesity, meets the
requirements of a listing”). See also Diaz v. Commissioner of Social Security, 577 F.3d
500, 504 (3d Cir. 2009) (“[A]n ALJ must meaningfully consider the effect of a claimant’s
obesity, individually and in combination with her impairments, on her workplace function
at step three and every subsequent step.”) Here, the ALJ’s decision complied with the
Social Security Rulings and Third Circuit precedent. In addition to discussing Plaintiff’s
obesity throughout the decision, the ALJ specifically noted that he evaluated Plaintiff’s
obesity “in the context of the overall record evidence in making this decision.” Tr. 20.
Moreover, Plaintiff does not point to anything in the record concerning her obesity that
undermines the ALJ’s step three determination. Rutherford v. Barnhart, 399 F.3d 546, 552
(3d Cir. 2005).
After carefully considering the record, the ALJ concluded that Plaintiff did not have
an impairment or combination of impairments that meets or medically equals any of the
listed impairments. For the reasons stated above, the Court concludes that the ALJ’s
determination is supported by substantial evidence.
B. Step Four
Plaintiff also contends that the ALJ’s RFC finding is not supported by substantial
evidence. Specifically, Plaintiff contends that the ALJ nonsensically concluded that
Plaintiff was capable of sedentary work even though her lumbar stenosis prevents her from
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being seated for extended periods of time. Plaintiff similarly faults the ALJ for not
addressing other severe impairments, including left upper extremity weakness. However,
the mere “diagnosis of an impairment, by itself, does not establish entitlement to benefits
under the Act….” Phillips v. Barnhart, 91 F. App’x 775, 780 (3d Cir. 2004). As discussed
previously, the record shows that Plaintiff “progressed well since her surgery” and enjoyed
an “excellent” range of motion in her spine. Tr. 261, 287. Reports from the Jewish
Renaissance Medical Center showed that her lumbar spine did not suffer from any
significant abnormalities. Tr. 300-01. Moreover, Plaintiff reported that she took walks
almost every day of the week. Tr. 370. In a similar vein, Plaintiff’s function report
demonstrated that Plaintiff was capable of a variety of activities, including going to church,
preparing meals, and driving. Tr. 195, 197-98, 200, 224.
Moreover, the ALJ’s step four determination is supported by substantial evidence
even after one considers Plaintiff’s subjective complaints of pain. While “[t]estimony of
subjective pain and inability to perform even light work is entitled to great weight,”
Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979), an ALJ may reject such
testimony where he “consider[s] the subjective pain and specif[ies] his reasons for rejecting
[the testimony] and support[s] his conclusion with medical evidence on the record.”
Matullo v. Bowen, 926 F.2d 240, 254 (3d Cir. 1990). Here, the ALJ found that “the
claimant’s medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible for the reasons
explained in this decision.” Tr. 24. As already explained, the ALJ thoroughly analyzed
the record and pointed to specific objective medical evidence that contradicted Plaintiff’s
subjective testimony. Consequently, the ALJ’s step four determination is supported by
substantial evidence.
C. Step Five
The Court also finds that the ALJ’s determination at step five is supported by substantial
evidence. Plaintiff criticizes the ALJ for failing to describe “manipulative restrictions”2
when posing his hypothetical to the VE. Noting that she suffered from upper extremity
weakness, Plaintiff contends that she was not capable of reaching, gripping, grasping,
fingering, and feeling. It is true that “the ALJ must accurately convey to the vocational
expert all of a claimant’s credibly established limitations.” See Rurtherford v. Barnhart,
399 F.3d 546, 554 (3d Cir. 2005). Here, however, the evidence belies Plaintiff’s assertions
regarding manipulative restrictions. The record is rife with evidence showing that Plaintiff
retained the types of motor strength, muscle strength, and range of motion that are
uncharacteristic of manipulative restrictions. See, e.g., Tr. 261, 314-15, 357. Moreover,
the ALJ’s decision pointed to evidence indicating that Plaintiff did not suffer from any
2
Plaintiff appears to also argue that the ALJ failed to adequately account for manipulative restrictions at step four.
However, the Court finds that the ALJ did adequately account for those issues throughout the entirety of his
analysis.
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motor or reflex deficits. Tr. 24. Accordingly, the Court finds that the ALJ’s determination
at step five is supported by substantial evidence.
IV.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is AFFIRMED. An
appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: January 28, 2016
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