BROWN v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION
Filing
10
OPINION. Signed by Judge Jose L. Linares on 11/23/2015. (anr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN
BROWN, JR.,
Civil Action No. 15-3135 (JLL)
Plaintiff,
OPINION
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
LINARES, District Judge.
This matter comes before the Court upon the appeal of John F. Brown, Jr. ("Plaintiff')
from
final decision of the Commissioner upholding the final determination by Administrative
Law Judge ("ALJ") Elias Feuer denying Plaintiffs application for disability insurance benefits
("DIB") under the Social Security Act (the "Act"). The Court has jurisdiction over this matter
pursuant to 42 U.S.C. § 405(g), and resolves this matter on the parties' briefs pursuant to Local
Civil Rule 9. I (f). After reviewing the submissions of both parties, for the following reasons, the
final decision of the Commissioner is affirmed.
I.
BACKGROUND
A.
Procedural History
On August 25, 2011, Plaintiff filed a Title II application for a period of disability and
disability insurance benefits, alleging disability beginning March 23, 2011. (R. 1 169.) Plaintiffs
application was denied initially on February 29, 2012, and upon reconsideration on November 15,
1
"R." refers to the Administrative Record, which uses continuous pagination and can be found at ECF No. 5.
201
(R. 115-17.) Thereafter, Plaintiff filed a written request for hearing on December 4, 2012
pursuant to 20 CFR 404.929 et seq. (R. 118-19.) A hearing was held on October 8, 2013 in
Newark, New Jersey before the ALJ. (R. 50-90.) Plaintiff appeared and testified, as well as an
impartial vocational expert. (Id.)
Following the hearing, the ALJ denied Plaintiff's application in a written decision dated
December 26, 2013. (R. 30-43.) Plaintiff timely filed a request for review with the Appeals
Council (R. 7-29), and the Appeals Council affirmed the decision of the ALJ on April 3, 2015. (R.
1-6.) On May 4, 2015, Plaintiff commenced this action. (ECF No. 1.) Plaintiff filed a briefin
support
No. 8 ("PL Br.")) and Defendant filed a briefin opposition (ECF No. 9 ("Def. Br.")).
A review of the docket reveals that Plaintiff did not file a reply brief.
B.
Factual History
1. Plaintiffs Self-Reported Background
Plaintiff was born on June 3, 1960. (R. 169.) He was 50 years old on the alleged disability
date
March 23, 2011 and is 55 years old as of this writing. (Id.) From March 1981 to March
201 l, Plaintiff was employed as a municipal maintenance worker for the Borough of Rutherford
Recreation Commission, an "unskilled" position within the meaning of the Act. (R. 191, 198204.) Plaintiff's job duties included cutting grass, painting, and shoveling the snow and removing
the ice from borough facilities and sidewalks. (R. 192.) He reported that the heaviest weight he
lifted as part of the job was "100 lbs. or more" and that he frequently lifted "25 lbs." (Id.)
2
2. Medical Evidence
After injuring his back on March 23, 2011 while shoveling snow, Plaintiff was referred to
Dante Implicito, M.D. (R. 249-66.)2 On March 24, 2011, upon physical examination, Dr.
Implicito remarked that Plaintiff was in "obvious discomfort" and that his back was "exquisitely
tender. (R. 265.) According to Dr. Implicito's notes, Plaintiff reported that the pain radiated into
his right buttock and that it was severely painful (he graded it is an 8 on a scale of 10, with 10
being
most severe pain imaginable). (Id.) Straight leg testing and prone knee-bend testing
were negative bilaterally. (Id.)
On March 21, 2011, Dr. Implicito reviewed an MRI of Plaintiff and reported that
"everything appears to be fine" with the fusion performed previously, but noted "some
degeneration" of the adjacent disc at L4-L5 and L5-S 1. (R. 264.) Dr. Implicito scheduled an
epidural injection at L5-Sl, which he hoped would "quell [Plaintiffs] back and right-sided leg
pam.
notes dated May 12, 2011, Dr. Implicito stated that despite the injection, Plaintiff"does
not seem to be getting any better and perhaps even worse." (R. 262.) According to the notes,
Plaintiff reported that the pain was worse with standing and walking and that he received relative
relief
sitting or bending. (Id.) Upon physical examination, straight-leg testing was negative
and Plaintiff was tender to palpation. (Id.) Dr. Implicito recommended a trial of bilateral lumbar
facet injections. (Id.) On May 27, 2011, Dr. Implicito referred Plaintiff for radio frequency
ablation of the area and discussed potential surgical options with Plaintiff. (R. 261.)
2
Plaintiff had previously presented to Dr. Implicito after a November 7, 2005 work-related injury and underwent back
surgery consisting of a three-level posterior lumbar fusion at L2-L3 and L3-L4. (R. 267-74.) Thereafter, Plaintiff
returned to work, and continued to work until the date of the alleged onset of disability. (See R. 265.)
3
On June 27, 2011, Dr. Implicito reported that Plaintiff was "miserable" with work and daily
living. (R. 260.) Dr. Implicito opined that Plaintiff had "run out of non-surgical options" and
referred him for a CT disco gram of his lumbar spine. (Id.) On July 21, 2011, Dr. Implicito reported
that the disco gram revealed evidence of degenerative discs at both L4-5 and L5-S 1 subadjacent to
Plaintiff's past fusion procedure. (R. 259.) Dr. Implicito explained the surgical options to Plaintiff
and further opined that he believed that Plaintiff was "permanently disabled and unable to return
to
occupation ... [because] [h]e is unable to lift, twist or bend with sufficient frequency or
effort to tolerate his necessary job requirements." (Id.)
On September 29, 2011, Plaintiff informed Dr. Implicito that he was declining surgery and
instead was "going to try and live with the pain, use up his accumulated disability time and retire"
which Dr. Implicito viewed as a "very rational and reasonable option for [Plaintiff]." (R. 258.) At
this
Dr. Implicito discharged Plaintiff from his care. (Id.)
Plaintiff continued pain management treatment with Amit Tailor, M.D. (R. 309-75) and
Jaroslaw Pondo, M.D. (R. 383-95) beginning in October 2011. Plaintiff saw Dr. Tailor on a
monthly basis (or thereabouts) from October 2011 through March 2013, and the records indicate
that Dr. Tailor essentially renewed Plaintiffs medications, including Percocet, Endocet, Valium,
and Zyprexa, that the chronic issues were controlled on the current regimen, and that Plaintiff was
feeling "generally well." (R. 309-75.) Plaintiff saw Dr. Pondo from March 2013 through the time
of the hearing in December 2013, and Dr. Pondo similarly continued the narcotic pain medication
regimen. (R. 383-95.)
On February 15, 2012, consultative examiner Richard Mills, M.D. noted that Plaintiff
drove himself to the appointment, put his shoes on and off without difficulty, ascended and
descended the exam table without difficulty, and upon physical examination found that Plaintiff
4
possessed motor and grip and pinch strength of 5/5, and could squat, walk on heels, and walk on
toes.
277.) On February 29, 2012, state agency physicians noted that Plaintiff had a normal
gait, suggested an RFC of a full range oflight work, and opined that he could lift/carry 20 pounds
occasionally and 10 pounds frequently; stand/walk for six hours and sit for six hours in an eighthour day; occasionally climb ramps/stairs and ladders/ropes/scaffolds; and occasionally stop and
crouch. (R. 93-97.)
On April 26, 2012, Plaintiff was examined by workers compensation examiners Theodora
Maio, M.D. and Cheryl Wong, M.D. (R. 282-85.) On June 6, 2012, Dr. Maio opined that Plaintiff
had a "permanent orthopedic disability of 100%" after providing the following diagnosis: "Status
post-traumatic injury to the lumbosacral spine being sprain and strain with disc herniation L4-5,
L5-S
(pre-existing) status post epidural injection, medical branch blocks and radiofrequency
ablation with residuals oflumbosacral myositis and fibromyositis with loss ofrange of motion and
sciatic neuralgia." (Id.) On June 9, 2012, Dr. Wong opined that Plaintiff was "totally disabled as
a unit from all causes." (R. 303-05.) Dr. Wong noted that Plaintiff has a "history" of depression
and bipolar disorder, but that he was last treated by a psychiatrist more than twenty years ago, and
concluded that he suffered from "[b]ipolar disorder, current episode depressed .... " (R. 304,
306.) Additionally, Dr. Wong noted that there was "tenderness" to percussion and palpation
paraspinal muscles lumbar region with contraction and spasm on exam and concluded that Plaintiff
suffered from "[b ]ilateral L3-4 radiculitis as a result of this accident aggravating prior injury to
back.
(R. 305, 306.)
3. Relevant Hearing Testimony
Plaintiff was represented at the hearing by his attorney, Steen Gaechter. (R. 52.) Upon
questioning from the ALJ, Plaintiff testified about his medical history and his medications. (R.
5
53-63.) He testified that he has trouble putting on his shoes, that his sister does his laundry and
cooks
him, and that he accompanies her shopping, and that he could lift about eight to ten
pounds at the most. (R. 63-64.) Plaintiff testified that he can walk up to 45 minutes at a time, that
he could stand and sit for 30-45 minutes at a time, and that he needed about 20 minutes recovery
afterwards. (R. 73-74, 78.) Plaintiff further testified that the only activity he did at a two hour
increment was going shopping with his sister. (R. 78.) The ALJ noted that he had difficulty
"following the thread" of Plaintiffs testimony with respect to his physical limitations. (R. 76.)
ALJ asked the vocational expert to consider a hypothetical individual who was limited
to
work; never climbing ladders, ropes, or scaffolds; only occasionally stooping, kneeling,
crouching, crawling, and climbing ramps/stairs; and needing the option to sit and stand at will. (R.
80-83). The vocational expert testified that the individual would be unable to perform Plaintiffs
past
but could perform the unskilled light jobs of ticket seller (cashier), parking lot cashier,
and
bus monitor. (Id.) On cross-examination, the VE testified that the same hypothetical
individual would be unemployable assuming that he would be off task more than ten percent out
of an
hour work day due to symptoms from pain, and/or also assuming the individual was
absent two or more days per month due to symptoms from low back pain. (R. 83-85.)
II.
STANDARD OF REVIEW
reviewing court will uphold the Commissioner's factual decisions if they are supported
by "substantial evidence." 42 U.S.C. §§ 405(g), 1383(c)(3); Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000). Substantial evidence is "more than a mere scintilla but may be less than a
preponderance." Woody v. Sec'y ofHealth & Human Servs., 859 F.2d 1156, 1159 (3d Cir. 1988).
It "does not mean a large or considerable amount of evidence, but rather such relevant evidence as
6
a reasonable person might accept as adequate to support a conclusion." Pierce v. Underwood, 487
U.S.
565 (1988) (citation omitted). Not all evidence is considered substantial. For instance,
[a] single piece of evidence will not satisfy the substantiality test if
the [Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence - particularly certain types of
evidence (e.g. that offered by treating physicians) - or if it really
constitutes not evidence but mere conclusion.
Sec'y of Health &HumanServs., 722F.2d1150, 1153 (3dCir.1983)(quotingKentv.
Wallace
Schweiker,
support
0 F.2d 110, 114 (3d Cir. 1983)). The ALJ must make specific findings of fact to
ultimate conclusions. Stewart v. Sec '.Y ofHealth, Educ. & Welfare, 714 F .2d 287, 290
"substantial evidence standard is a deferential standard ofreview." Jones v. Barnhart,
364
501, 503 (3d Cir. 2004). It does not matter if this Court "acting de novo might have
reached a different conclusion" than the Commissioner. Monsour Med. Ctr. V. Heckler, 806 F.2d
11
190-91 (3d Cir. 1986) (citing Hunter Douglas, Inc. v. Nat 'l Labor Relations Bd., 804 F .2d
808, 8 2 (3d Cir. 1986)). "[T]he district court ... is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder." Williams v. Sullivan, 970 F.2d 1178, 1182
(3d
1992) (citing Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir. 1984)). A Court must
nevertheless "review the evidence in its totality." Schonewolf v. Callahan, 972 F. Supp. 277, 284
(D.N.J. 1997) (citing Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984)). In doing so, the Court
"must 'take into account whatever in the record fairly detracts from its weight."' Id. (citing
Willbanki;; v. Secy ofHealth & Human Servs., 847 F.2d 301, 303 (6th Cir. 1988)).
A court must further assess whether the ALJ, when confronted with conflicting evidence,
"adequately explain[ ed] in the record his reasons for rejecting or discrediting competent evidence."
Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v. Heckler, 786 F.2d 581
7
1986)). If the ALJ fails to properly indicate why evidence was discredited or rejected, the
(3d
Court cannot determine whether the evidence was discredited or simply ignored. See Burnett v.
Comm 'r of Soc. Sec, 220 F.3d 112, 121 (3d Cir. 2000) (citing Cotter v. Harris, 642 F.2d 700, 705
(3d
III.
981)).
APPLICABLE LAW
A.
The Five-Step Process for Evaluating Whether a Claimant Has a Disability
claimant's eligibility for benefits is governed by 42 U.S.C. § 1382. Pursuant to the Act,
a claimant is eligible for benefits if he meets the income and resource limitations of 42 U.S.C. §§
1382(a)(l)(A)-(B) and demonstrates that he is disabled based on an "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
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 twelvemonths." 42 U.S.C. § 423(d)(l)(A). A person is disabled
only
his physical or mental impairment(s) 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 work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
determine whether the claimant is disabled, the Commissioner performs a five-step
sequential evaluation. See generally 20 C.F.R. § 404.1520(a)(4)(i)-{v). The claimant bears the
burden
establishing the first two requirements. The claimant must establish that he (1) has not
engaged in "substantial gainful activity'' and (2) is afflicted with "a severe medically determinable
physical or mental impairment." 20 C.F.R. §§ 404.1520(b)-{c), 404.1521. If a claimant fails to
demonstrate either of these two requirements, DIBs are denied and the inquiry ends. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
If the claimant successfully proves the first two
requirements, the inquiry proceeds to step three which requires the claimant to demonstrate that
8
his impairment meets or medically equals one of the impairments listed in 20 C.F.R. Part 404
Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. If the claimant demonstrates that
his impairment meets or equals one of the listed impairments, he is presumed to be disabled and
therefore, automatically entitled to DIBs. Id. If he cannot make the required demonstration,
further examination is required.
fourth step of the analysis asks whether the claimant's residual functional capacity
permits him to resume his previous employment. Id. If a claimant is able to return to his
previous employment, he is not disabled within the meaning of the Act and is not entitled to DIBs.
claimant is unable to return to his previous employment, the analysis proceeds to step
Id.
five.
this step, the burden shifts to the Commissioner to demonstrate that the claimant can
perform a job that exists in the national economy based on the claimant's RFC, age, education,
and
work experience. 20 C.F.R. § 404.1520(g). If the Commissioner cannot satisfy this
burden,
claimant is entitled to DIBs. Yuckert, 482 U.S. at 146 n.2.
B.
The Requirement of Objective Evidence
the Act, disability must be established by objective medical evidence.
"An
individual shall not be considered to be under a disability unless he furnishes such medical and
other evidence of the existence thereof as the [Commissioner] may require." 42 U.S.C. §
423(d)(5)(A). Notably, "[a]n individual's statement as to pain or other symptoms shall not alone
be conclusive evidence of disability as defined in this section." Id. Specifically, a finding that one
is disabled requires:
[M]edical signs and findings, established by medically acceptable
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 and which, when considered with all evidence required to be
9
furnished under this paragraph ... would lead to a conclusion that
the individual is under a disability.
U.S.C. § 1382c(a)(3)(A). Credibility is a significant factor. When examining the
Id.; see
record: "The adjudicator must evaluate the intensity, persistence, and limiting effects of the
[claimant's] symptoms to determine the extent to which the symptoms limit the individual's ability
to do basic work-related activities." SSR 96-7p, 1996 WL 374186 (July 2, 1996). To do this, the
adjudicator must determine the credibility of the individual's statements based on consideration of
the entire case record. Id.
list of "acceptable medical sources to establish whether [a claimant] has a medically
determinable impairment" includes licensed physicians, but does not include nurses. 20 C.F .R. §
404. 5 3(a). Though the ALJ "may also use evidence from other sources to show the severity of
[a claimant's] impairments," this evidence is "entitled to consideration as additional evidence" and
does not need to be given the same weight as evidence from acceptable medical sources. 20 C.F .R
§ 404. 513(d)(l); Hatton v. Comm 'r o/Soc. Sec., 131 Fed. App'x 877, 878 (3d Cir. 2005). Factors
to consider in determining how to weigh evidence from medical sources include (1) the examining
relationship, (2) the treatment relationship, including the length, frequency, nature, and extent of
the treatment, (3) the supportability of the opinion, (4) its consistency with the record as a whole,
IV.
DISCUSSION
A.
ALJ Miller's Decision
December 26, 2013, the ALJ issued a decision denying Plaintiff's application, finding
that Plaintiff was not disabled during the relevant time period. (R. 30-43.) At step two, the ALJ
determined that Plaintiff had the following severe impairment: a lumbar back injury to L4-S 1. (R.
10
3 5. ) 3
step three, the ALJ determined that Plaintiff did not have an impairment (or combination
of impairments) that met or medically equaled the severity of a listed impairment. (R. 35-36.)
Before proceeding to step four, the ALJ formulated Plaintiff's RFC as follows:
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) except he can never climb
ladders, ropes or scaffolds and can only occasionally climb ramps
or stairs, stoop, kneel, crouch, or crawl. He does also require a sit
stand option.
(R.
step four, the ALJ found that Plaintiff was unable to perform any past relevant work
because it was performed at a medium exertional level. (R. 38.) At step five, based on the VE
testimony, the ALJ determined that, considering Plaintiff's age, education, work experience, and
RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can
perform, such as cashier ticket seller (DOT No. 211.467-030), parking lot cashier (DOT No.
concluded that Plaintiff did not meet the standard for disability under the Act during the relevant
period. (R. 39.)
B.
The ALJ Appropriately Afforded No Significant Weight to the Opinions of Dr.
Maio and Dr. Wong.
The ALJ afforded the opinions of Dr. Maio and Dr. Wong "no significant weight" because
their "restrictive findings are unsupported and inconsistent with the claimant's reported daily
activities and the objective findings by other physicians." (R. 37.)
Plaintiff argues that the ALJ improperly discredited the opinions of Dr. Maio and Dr. Wong
without sufficient explanation. (Pl. Br. at 14-16.) In particular, Plaintiff contends that the reports
3
The ALJ further noted that the evidence failed to establish that Plaintiff's cervical injury at C5-C6 had the requisite
duration of twelve months. (R. 35.)
11
of
Maio and Dr. Wong contain detailed physical examination findings, "which if taken as
credible, show that Plaintiffs impairment is close to listing level severity under 1.04 in that they
found reflex loss, sensory deficits, and weakness." (Id. at 14.) Additionally, Plaintiff asserts that
Dr. Wong's report "shows the presence of mental impairments which in the opinion of Dr. Wong
would interfere with occupational, social, and activities of daily living pursuits." (Id. at 15.)
In opposition, Defendant argues that the ALJ properly rejected the conclusory findings of
Dr. Maio and Dr. Wong since they examined Plaintiff solely in connection with his worker's
compensation claim. (Def. Br. at 7-10.) In addition to noting that any statement from a physician
that a claimant is "unable to work" is entitled to no weight, Defendant points out that an opinion
made
connection with a worker's compensation claim is of limited significance in a social
security matter because of the differing standards between the two programs.
(Id. at 8.)
Furthermore, Defendant argues that neither report contains any actual assessment of Plaintiffs
functional limitations and that they are inconsistent with objective findings of other physicians.
(Id. at
10.)
Court agrees with Defendant. As an initial matter, the Court notes-and Plaintiff
concedes-that the decision of whether or not a claimant is disabled is reserved for the
Commissioner, such that the Commissioner "will not give any special significance to the source
of an opinion" on the issue. 20 C.F.R. § 404.1527(d). Additionally, Defendant correctly points
out that opinions from physicians in the worker's compensation context have limited significance
in the SSA context, given the differing standards utilized in each program. See Hartranft v. Apfel,
181
358, 362 (3d Cir. 1999) (recognizing the "limited significance" of a physician's opinion
that was made in connection with the plaintiffs worker's compensation claim because it follows
a different standard for determining disability); see also Berrocal v. Astrue, No. 10-02226, 2011
12
WL 890150, at *4 (D.N.J. Mar. 14, 2011) ("Reports generated in the context of a worker's
compensation claim, therefore, are not highly probative. The ALJ had discretion not to rely on
those reports. See 20 C.F.R. § 404.1504.").
Furthermore, the ALJ adequately explained how the reports were unsupported and
inconsistent with the claimant's reported daily activities and the objective findings by other
physicians. For example, Plaintiff reported that he tends to go for walks (up to 45 minutes at a
time), does light housekeeping, and goes to the food store, which is not entirely consistent with
the reports' conclusions of total disability. (R. 63-64, 73-74, 78, 205.) More significantly, the
ALJ discussed the reports of Dr. Tailor, Dr. Mills, and the state agency physicians, which are
inconsistent with the reports of Dr. Maio and Dr. Wong. Indeed, as the ALJ specifically noted,
Dr. Tailor continually remarked that Plaintiff reported continued management of his chronic issues
and
m
was "feeling generally well," as evidenced by symmetric reflexes with full 5/5 strength
extremities. (R. 37 (citing Exs. B9F and BIOF).) The ALJ also noted that Dr. Mills
concluded that Plaintiff was capable of light work after observing that Plaintiff drove himself to
the appointment, put his shoes on and off without difficulty, ascended and descended the exam
table without difficulty, possessed motor and grip and pinch strength of 515, and could squat, walk
on heels, and walk on toes. (R. 37 (citing Ex. B4F).) Furthermore, the ALJ noted that state agency
physicians remarked that Plaintiff had a normal gait, suggested an RFC of a full range of light
work, and opined that he could lift/carry 20 pounds occasionally and 10 pounds frequently;
stand/walk for six hours and sit for six hours in an eight-hour day; occasionally climb ramps/stairs
and ladders/ropes/scaffolds; and occasionally stop and crouch. (R. 37 (citing Exs. BIA and B3A).)
Accordingly, the Court finds that the ALJ properly afforded "no significant weight" to the
reports
worker's compensation examiners Dr. Maio and Dr. Wong.
13
The Evidence Supporting Plaintiff's Alleged Mental Impairment is Not
Sufficient to Warrant Remand.
Plaintiff argues that the ALJ failed consider the report of Dr. Wong with respect to
Plaintiff's diagnosed condition of bipolar syndrome with depressive features. (PL Br. at 17.)
Plaintiff asserts that the failure to consider the mental aspects of Plaintiffs disability "could have"
impacted the decision, "could have" affected the VE's testimony, and "could have" been enough
to support a finding that his condition "perhaps" equaled a listed impairment. (Id.)
Defendant argues that remand is not warranted for two reasons. First, Defendant contends
that Plaintiff-who did not allege any mental impairment at the time of his application for DIB"has not demonstrated that his alleged mental impairment resulted in any specific functional
limitations that prevented him from performing the unskilled jobs identified by the [VE]." (Def.
Br. at
Second, Defendant argues that Plaintiff has not shown that his impairments in
combination equal a listed impairment. (Id. at 6-7.)
The Court agrees with Defendant. Plaintiff did not indicate any sort of mental impairment
in his application for DIB (R. 199), and the only evidence in the record supporting Plaintiffs
mental impairment is Dr. Wong's report, which notes that Plaintiff was diagnosed with bipolar
disorder more than twenty years ago and that he last saw a psychiatrist more than twenty years
ago.
303-06.) More to the point, the Court agrees that Plaintiff has not demonstrated how his
alleged mental impairment prevents him from performing the low skill jobs identified by the VE,
such as cashier ticket seller (DOT No. 211.467-030), parking lot cashier (DOT No. 915.743-010),
or school bus monitor (DOT No. 372.667-042). The Court also agrees that Plaintiffs assertion
that "consideration of the mental impairments due to Plaintiff's depression and level of pain could
have been enough to support a finding that his condition perhaps 'equaled' a listed impairment" is
not enough to convince the Court that remand is warranted. Plaintiffbears the burden of presenting
14
evidence that an impairment or combination of impairments equals a listed impairment, by
demonstrating that it is "equal in severity and duration to the criteria of any listed impairment."
§ 404.1526. The Court finds that Plaintiff-pointing to no evidence aside from Dr.
20
Wong's report-has not shown how he could satisfy this burden on remand on this issue, and
accordingly the Court concludes that remand is not warranted. See Rutherford v. Barnhart, 399
F.3d
553 (3d Cir. 2005) (holding that remand is not warranted where error by ALJ is harmless
and would not affect the outcome of the case).
D.
Substantial Evidence Supports the ALJ's Formulation of Plaintiff's Residual
Functional Capacity.
noted, the ALJ found that Plaintiff had the RFC "to perform light work as defined in 20
CFR
l 567(b) except he can never climb ladders, ropes or scaffolds and can only occasionally
climb ramps or stairs, stoop, kneel, crouch, or crawl. He does also require a sit stand option." (R.
36.)
Plaintiff argues that the RFC is not based on substantial evidence. (Pl. Br. at 18-19 .)
Plaintiff contends that the ALJ improperly relied on the report of Dr. Mills because that report
does not include any specific assessments, and is inconsistent with other medical evidence in the
record.
In addition, Plaintiff contends that the ALJ failed to take into account the presence
of concentration problems indicated by the medical records. (Id. at 19.)
In opposition, Defendant argues that the ALJ did not exclusively rely on Dr. Mills' report,
and also relied on the state agency physicians' opinion that Plaintiff could perform light work.
(Def. Br. at 10.) Additionally, Defendant contends that Plaintiffs argument regarding alleged
concentration problems is without merit because Plaintiff failed to specifically cite to the record
in making the argument and does not explain how such concentration problems prevent Plaintiff
from performing the unskilled, light work jobs identified by the VE. (Id.)
15
Court agrees with Defendant. The ALJ gave "significant weight" to the opinion of Dr.
Mills
formulating the RFC. (R. 37.) Dr. Mills noted that Plaintiff drove himself to the
appointment, put his shoes on and off without difficulty, ascended and descended the exam table
without difficulty, and upon physical examination found that Plaintiff possessed motor and grip
and pinch strength of 515, and could squat, walk on heels, and walk on toes. (R. 277.) This is
consistent with the RFC arrived at by the ALJ.
More to the point, the ALJ explicitly stated that he considered the record as a whole in
formulating the RFC, and substantial evidence supports his conclusion. In addition to referencing
Dr. Mills' report, the ALJ also specifically referenced Dr. Tailor's treatment notes and the state
agency physicians. (R. 37-38.) Plaintiff saw Dr. Tailor on a monthly basis (or thereabouts) from
October 2011 through March 2013, and the records indicate that Dr. Tailor essentially renewed
Plaintiffs medications, including Percocet, Endocet, Valium, and Zyprexa, that the chronic issues
were controlled on the current regimen, and that Plaintiff was feeling "generally well." (R. 30975.)
February 29, 2012, state agency physicians noted that Plaintiff had a normal gait,
suggested an RFC of a full range of light work, and opined that he could lift/carry 20 pounds
occasionally and 10 pounds frequently; stand/walk for six hours and sit for six hours in an eighthour day; occasionally climb ramps/stairs and ladders/ropes/scaffolds; and occasionally stop and
crouch. (R. 93-97.) Thus, the Court finds that the ALJ's formulation of Plaintiff's RFC is
supported by substantial evidence.4
4
Additionally, the Court agrees that Plaintiff has not sufficiently demonstrated how the presence of concentration
problems in the record would result in a different RFC or a determination that Plaintiff was unable to perform the
unskilled, light work jobs identified by the VE. See Rutherford, 399 F.3d at 553 (holding that remand is not warranted
where error by ALJ is harmless and would not affect the outcome of the case).
16
E.
There is Substantial Evidence in the Record to Uphold the ALJ's Credibility
Analysis.
Plaintiff argues that the ALJ improperly discounted Plaintiff's subjective complaints of
pain without properly explaining his rationale for doing so, and that the medical evidence supports
Plaintiff's subjective statements. (Pl. Br. at 19-23.) The Court disagrees and finds that the ALJ
properly considered the subjective complaints of pain, and that substantial evidence supports the
ALJ' s decision.
claimant's own description of his impairment and symptoms, standing alone, is not
enough to establish disability. 20 C.F.R. §§ 404.1528(a), .1529(a), 416.928(a); see also Prokopick
v.
of Soc. Sec., 272 F. App'x. 196, 199 (3d Cir. 2008). Instead, the ALJ must consider
"all
available evidence" when evaluating the intensity and persistence of a claimant's
symptoms, including objective medical evidence and a claimant's statements about his symptoms.
20
Cir.
§§ 404.1529(c)(l), 416.929(c)(l); see also Hartranft v. Apfel, 181 F.3d 358, 362 (3d
999) ("This obviously requires the ALJ to determine the extent to which a claimant is
accurately stating the degree of pain or the extent to which he or she is disabled by it."). When the
medical evidence demonstrates that a claimant persistently attempted to obtain relief from pain, it
"lends support" to the claimant's subjective allegations of pain. S.S.R. 96-7(p). 5 Inconsistencies
between a claimant's statements and the medical evidence must be explored; subjective statements
of pain must be consistent with objective medical evidence and other evidence. 20 C.F.R. §§
5
S.S. R. 96-7(p) states in relevant part:
In general, a longitudinal medical record demonstrating an individual's attempts to seek medical
treatment for pain or other symptoms and to follow that treatment once it is prescribed lends support
to an individual's allegations of intense and persistent pain or other symptoms for the purposes of
judging the credibility of the individual's statements. Persistent attempts by the individual to obtain
relief of pain or other symptoms, such as by increasing medications, trials of a variety of treatment
modalities in an attempt to find one that works or that does not have side effects, referrals to
specialists, or changing treatment sources may be a strong indication that the symptoms are a source
of distress to the individual and generally lend support to an individual's allegations of intense and
persistent symptoms.
17
404. 529(c)(4), 416.929(c)(4). Furthermore, the Court notes that credibility findings as to a
claimant's testimony regarding his pain and other symptoms fall exclusively to the ALJ, Van Horn
Here, substantial evidence supports the RFC, including the ALJ's credibility
determinations. The Court agrees with Plaintiff that there is ample medical evidence of record
demonstrating Plaintiff's persistent attempts to seek medical treatment, such that they "lend
support" to Plaintiffs subjective allegations of pain. S.S.R. 96-7(p); Mason v. Shala/a, 994 F.2d
1058, 067-68 (3d Cir. 1993) ("Where medical evidence does support a claimant's complaints of
pain, the complaints should then be given 'great weight' and may not be disregarded unless there
exists contrary medical evidence.") (citations omitted).
However, the Court disagrees with
Plaintiff's characterization that the ALJ "rejected" Plaintiff's complaints of pain.
ALJ stated that "the objective medical evidence fails to support the claimant's
allegations of complete disability." (R. 37 (emphasis added).) Although it is true that the ALJ did
not explicitly acknowledge that Plaintiff's allegations are entitled to great weight, at the same time
the
never stated that he found Plaintiff's subjective complaints to be entirely non-credible in
formulating the RFC. Indeed, the ALJ acknowledged that Plaintiff "still suffers from residual back
pam.
(R. 38.) Further, he ALJ noted that he
gave the claimant an opportunity to explain the inconsistency
between his allegation that he could not perform and eight-hour job
because of ongoing pain and Dr. Tailor's reports that the claimant's
issues were controlled. However, he was not able to explain the
discrepancy or the basis for Dr. Tailor's repeated note. Under these
circumstances, even though he testified and said in Exhibit 3E that
he was limited to lifting 10 pounds, I believe that the DDS
assessment was correct and that the claimant was not precluded from
performing all work activity.
18
(R.
The ALJ additionally noted that in formulating the RFC of light work he gave Plaintiff
periods
time without the need to shift positions." (Id.)
The ALJ stated that he viewed the record in its entirety-including Plaintiff's allegations
and
medical evidence-to formulate an RFC of light work.
The above-cited passage
demonstrates how the ALJ weighed Plaintiff's testimony with the other medical evidence in the
record. There is no indication to the Court that the ALJ improperly weighed Plaintiff's allegations
with the other evidence in the record, including the reports from Dr. Tailor, Dr. Mills, and the state
agency physicians, which, as noted previously, all directly undermine Plaintiff's allegations. See
Part IV.B, supra. In sum, the Court finds that substantial evidence supports the RFC, including
the
credibility determinations, and the ultimate determination that Plaintiff is not disabled
within the meaning of the Act.
F.
Substantial Evidence Supports the ALJ's Hypothetical Questioning of the
VE.
The ALJ asked the vocational expert to consider a hypothetical individual who was limited
to light work; never climbing ladders, ropes, or scaffolds; only occasionally stooping, kneeling,
crouching, crawling, and climbing ramps/stairs; and needing the option to sit and stand at will. (R.
80-83). The vocational expert testified that the individual would be unable to perform Plaintiff's
past work, but could perform the unskilled light jobs of ticket seller (cashier), parking lot cashier,
and school bus monitor. (Id.) On cross-examination, the VE testified that the same hypothetical
individual would be unemployable assuming that he would be off task more than ten percent out
of an eight hour work day due to symptoms from pain, and/or also assuming the individual was
absent two or more days per month due to symptoms from low back pain. (R. 83-85.)
19
Plaintiff argues that the ALJ's hypothetical question to the VE was deficient because it
failed to take into account all of Plaintiffs limitations. (Pl. Br. at 23-24.) First, Plaintiff contends
that the ALJ's decision fails to acknowledge that, upon questioning by Plaintiffs attorney, the VE
testified that the hypothetical individual presented by Plaintiff's attorney would be unemployable.
(Id. at
see also R. 80-85.) Second, Plaintiff argues that the questioning fails to take Plaintiffs
alleged mental impairments, such as psychomotor retardation, depressed mood, speech latency,
passive suicidal ideation, fatigue, insomnia, and diminished ability to think and concentrate. (Pl.
Br. at
see also R. 303-05.)
Defendant argues that the ALJ submitted a proper hypothetical question to the VE, and that
it included all of Plaintiffs credibly established limitations. (Def. Br. at 13.)
The Court finds that the hypothetical question posed to the VE was appropriate, since such
questions must reflect each of Plaintiffs impairments that are adequately supported by the
objective medical findings in the record. See Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir.
1987)
hypothetical question must reflect all of a claimant's impairments that are supported by
the record; otherwise the question is deficient and the expert's answer to it cannot be considered
substantial evidence.") (citation omitted). In short, the record does not support a finding that
Plaintiff would necessarily be off task more than ten percent out of an eight hour work day due to
symptoms from pain, or absent two or more days per month due to symptoms from low back pain.
For example, Plaintiff himself testified that he was "sure" he could put things in a box or a bag
while standing. (R. 78-79.) Thus, the record does not support a finding that Plaintiff would be off
task more than percent out of an eight hour day. Furthermore, Plaintiff points to no evidence in
the record to support the contention that Plaintiff would necessarily be absent two or more days
per month due to symptoms from low back pain. Likewise, as discussed in Part IV.C, supra,
20
Plaintiffs alleged mental impairments are not credibly established limitations, and Plaintiff does
not explain how consideration of them by the VE would result in a different outcome. Notably,
Plaintiff's attorney had the opportunity to raise this point before the VE himself, but elected not
to.
V.
CONCLUSION
the foregoing reasons, the decisions of the Commissioner and the ALJ are affirmed.
An appropriate order follows this Opinion.
21
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