SANCHEZ v. COMMISSIONER OF SOCIAL SECURITY
Filing
11
OPINION fld. Signed by Judge Kevin McNulty on 9/16/16. (sr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ANDRES SANCHEZ,
Civ. No. 15-5539 (KM)
Plaintiff,
OPINION
V.
CAROL W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
Andres Sanchez brings this action pursuant to 42 U.S.C.
§ 405(g) to
review a final decision of the Commissioner of Social Security (“Commissioner”)
denying his claims for Title II Disability Insurance Benefits (“DIB”). For the
reasons set forth below, the decision of the Administrative Law Judge (“AU”) is
AFFIRMED.
I.
BACKGROUND
Sanchez seeks to reverse an AU’s finding that he was not disabled from
December 15, 2011, the alleged onset date, through February 6, 2014, the date
of the AU’s decision (R 29—37).
Sanchez applied for DIB benefits pursuant to Sections 2 16(i) and 223(d)
of the Social Security Act (“SSA”) on August 9, 2012, alleging in his application
a December 15, 2011 onset of disability (R 168_169).1 His claim was denied
initially on January 7, 2013 (R 91—95), and again on reconsideration on April
29, 2013 (R 96—98). Sanchez subsequently requested and received a hearing
Pages of the administrative record (ECF No. 6) are cited as “R
Plaintiffs Brief (ECF No. 9) are cited as “P1 Br .“
1
1
.“
Pages of the
before an AU on November 26, 2013, at which Sanchez testified. (See R 38—63,
99—107, 111—129.)
AU Jack Russak issued a decision dated February 6, 2014, finding
Sanchez “not disabled” (see R 29—37). On February 26, 2014, Sanchez filed a
request for review of the AU’s decision; the Appeals Council denied this
request on June 11, 2015, thereby rendering the AU’s decision the final
decision of the Commissioner (see R 1—7). Sanchez now appeals that decision.
II.
DISCUSSION
A. Five-Step Process and this Court’s Standard of Review
To qualify for Title II DIB benefits, a claimant must meet the insured
status requirements of 42 U.S.C.
§ 423. To qualify, a claimant must show that
he is unable to engage in substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or that has lasted (or can be expected to last) for a continuous period of
not less than twelve months. 42 U.S.C.
§ 423(c), 1382(a).
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 CFR
§ 404.1520, 4 16.920.
Review necessarily incorporates a determination of whether the AU
properly
followed the five-step process prescribed by regulation. The steps may be briefly
summarized as follows:
Step 1: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 CFR
404.1520(b), 4 16.920(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),
4 16.920(c). If the claimant has a severe impairment, move to step
three.
2
§
Step 3: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20
CFR Pt. 404, Subpt. P, App. 1, Pt. A. If so, the claimant is
automatically eligible to receive benefits (and the analysis ends); if
not, move to step four. Id.
§ 404.1520(d), 4 16.920(d).
Step 4: Determine 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). If not, move to step five.
Step 5: At this point, the burden shifts to the Social Security
Administration to demonstrate that the claimant, considering her
age, education, work experience, and RFC, is capable of performing
jobs that exist in significant numbers in the national economy. 20
CFR
§ 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, benefits will be denied; if
not, they will be awarded.
This Court conducts a plenary review of legal issues, including the AU’s
adherence to the five-step protocol outlined above. See Schaudeck v. Comm’r of
Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). The factual findings of the AU 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. Bamhart, 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. When
substantial evidence exists to support the AU’s factual findings, this Court
must abide by the AU’s determinations. See id. (citing 42 U.S.C.
This Court may, under 42 U.S.C.
§ 405(g)).
§ 405(g), affirm, modify, or reverse the
Commissioner’s decision, or it may remand the matter to the Commissioner for
a rehearing. Podedwomy v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v.
Comm’r of Soc. Sec., 235 F. App’x 853, 865—66 (3d Cir. 2007) (not precedential).
3
Outright reversal with an award of benefits is appropriate only when a fully
developed administrative record contains substantial evidence that the
claimant is disabled and entitled to benefits. Podedworny, 745 F.2d at 221—
222; Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000).
Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five step inquiry. See Podedwomy, 745 F.2d at 221—22. Remand is also proper
if the AU’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett v. Comm’r of Soc.
Sec., 220 F.3d 112, 119—20 (3d Cir. 2000); Leech v. Bamhart, 111 F. App’x 652,
658 (3d Cir. 2004) (“We will not accept the AU’s conclusion that Leech was not
disabled during the relevant period, where his decision contains significant
contradictions and is therefore unreliable.”) (not precedential). It is also proper
to remand where the AU’s findings are not the product of a complete review
which “explicitly weigh[s] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation
marks omitted).
B. The AU’s Decision
AU Russak properly followed the five-step process. His conclusions are
summarized as follows:
Step 1
At step one, AU
Russak found that Sanchez met the insured
requirements of the SSA through December 31, 2016, and had not engaged in
substantial gainful activity from the alleged onset date of December 15, 2011
(R 31).
Step 2
At step two, the ALT found that Sanchez had the following severe
impairments: “lumbar spine spondylosis and left neural foraminal disc
4
herniation at the L4-5 level; and cervical spine spondylosis and osteophyte
ridge complexes at the C5-6 and C6-7 levels” (R 31).
At this step, the AU rejected Sanchez’s claim that he suffered from a
severe mental impairment, finding that Sanchez’s diagnosed adjustment
disorder with depressed mood posed no more than a minimal limitation on
Sanchez’s ability to perform basic mental work activities (R 31). Substantial
evidence in the record, which the AU thoroughly evaluated, supported this
conclusion.
Specifically, AU
Russak remarked on Sanchez’s self-reported ability to
manage money, go outside and travel independently, shop for and prepare
food, do laundry, spend time with family, get along with authority, and follow
instructions (R 32). The AU
also discussed objective medical evidence from a
psychiatric consultative examination showing that Sanchez could pay attention
and concentrate with only mild memory impairment (Id.). Further the AU
noted that Sanchez related well during his consultative examinations and
hearing (Id.). Based on this evidence, the AU found “no more than ‘mild”’
limitation in the first three “paragraph B” functional area criteria for assessing
mental impairment—daily living; social functioning; and concentration,
persistence, or pace (R 31—32). See 20 C.F.R.
the record, the AU
§ 404.1520a(c)(3). Consistent with
also found no evidence that Sanchez had experienced
2
episodes of decompensation—the fourth functional criterion (R 32)
AU Russak explained that, with respect to Sanchez’s mental impairment, his
ensuing RFC assessment reflected the degree of limitation he found in the course of
analyzing the “paragraph B” criteria (R 32). Although this statement alone might not
satisfy the requirement that the AU “consider the combined effect of all.
impairments without regard to whether any such impairment, if considered
separately, would be of sufficient severity,” 20 C.F.R. § 404.1523, the AU did
undertake a more comprehensive analysis of Sanchez’s mental impairment in the
course of determining Sanchez’s RF’C (see R 34 (discussing and assigning great weight
to the opinion of Dr. Kim Arrington, Psy.D)). Therefore, I find that the AU discharged
his responsibility with respect to considering Sanchez’s non-severe mental
impairment.
2
5
Step 3
At step three, AU
Russak determined that Mr. Sanchez’s impairment or
combination of impairments neither met nor medically equaled the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R
32). He specifically and appropriately declined to find that Mr. Sanchez’s
impairments met the criteria for medical listing 1.04—Disorders of the Spine—
because Mr. Sanchez had not put forth requisite evidence of “nerve root
compression with limitation of motion of the spine, motor loss, and sensory of
reflect loss; spinal arachnoiditis; or lumbar spinal stenosis resulting in
pseudoclaudication and the inability to ambulate effectively.” (R 32).
Step 4- RFC and Ability to Perform Past Work
Next, AU
Russak defined Sanchez’s RFC as follows:
5. After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform medium
work as defined in 20 CFR 404.1567(c) except that
he can only occasionally climb ramps and stairs;
never climb ladders, ropes, or scaffolds; occasionally
stoop, crouch, and kneel; and never crawl.
(R 33).3
Because Sanchez’s arguments in this appeal focus primarily on the RF’C,
it is helpful to summarize the AU’s evaluation of the record evidence that led
to this finding.
The Social Security Administration defines “Medium work” as follows:
Medium work involves lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighing up
to 25 pounds. If someone can do medium work, we determine
that he or she can also do sedentary and light work.
20 C.F.R. § 404.1567(c) and 4 16.967(c).
6
First, AU
Russak recited Sanchez’s allegations that he suffers from a
4
disability due to a 2011 accident at work and the following medical conditions:
spinal disc bulges, numbness in hands and feet, and depression (R 33). The
AU acknowledged Sanchez’s testimony that he could lift only 15 to 20 pounds
and had difficulty going up and down stairs, dressing himself, and getting in
and out of the bathtub (R 33). The ALT also noted Mr. Sanchez’s testimony that
he uses a cane he purchased himself; relies on his sister to complete
household tasks and to tie his shoes; and can only walk one and a half blocks,
stand for half an hour, and sit for two hours at a time (R 33).
AU Russak then discussed, and gave reasons for discounting as “not
entirely credible,” Sanchez’s allegations regarding the “intensity, persistence
and limiting effects” of his pain and limitations (R 33—35). This exercise
involved a thorough comparison of Sanchez’s medical records to the
aforementioned subjective complaints. Id.
The ALT first discussed evidence from a June 14, 2011 MRI and a June
17, 2011 physical examination revealing “multilevel spondylosis and left neural
foraminal disc herniation at the L4-5 level, impinging on the L-4 exiting nerve
root”; “spondylosis and osteophyte ridge complexes at the C5-6 and C6-7
levels”; “tenderness with palpation midline and in the left paraspinals, and
decreased sensation over the plantar surface of both feet and medial aspects of
ankles bilaterally.” (R 33; see R. 30 1—304). The ALT noted that these
examinations also showed that Mr. Sanchez exhibited a normal gait, an ability
to walk on his heels and toes, and no difficulty getting on and off the medical
examining table. Sanchez had a full active range of motion but with some back
pain, a negative straight leg raise test bilaterally, and equal motor strength
bilaterally (R 34; see R. 30 1—304).
According to the record, Sanchez was injured at work on April 4, 2011 when he
was hit by a “hilo” forklift (see R 328, 332).
7
Second, AU
Russak considered the November 19, 2012 report of Dr.
Alexander Hoffman on his physical examination of Sanchez. At the
examination, Sanchez had some reduction in leg raising and reported some
pain, but also reported that he only occasionally took over-the-counter
ibuprofen for pain. According to the report, Sanchez had not recently
undergone therapy for his conditions and was not using a cane or walker. Mr.
Sanchez also reported living alone, showed a normal gait and intact deep
tendon reflexes, demonstrated “excellent upper body grip strength,” and an
ability to bear weight on either leg, completed deep knee bending and a halfway
squat, and showed 4/5 and 5 / 5 strength on the right and left sides of his body,
respectively (R 34; seeR 33 1—335).
Third, AU
Russak considered the March 12, 2013 report of Dr. Morris
Horwitz on an examination he performed to reopen Sanchez’s Worker’s
Compensation claim (R 34; see R 340). The March 12, 2013 report, in which
Dr. Horwitz concluded that Sanchez’s disability had increased 12.5% since a
5
November 22, 2011 exam, reported a reduced range of motion, flexion,
bending, twisting, and straight leg raising, but made no recommendations as to
work or functional restrictions (R 34, 340—342).
Fourth, AU Russak considered the opinion of Dr. Kim Arrington, Psy.D.
Following a December 12, 2012 psychiatric examination, Dr. Arrington opined
that Mr. Sanchez could perform everyday functions independently, maintain a
regular schedule as well as attention and concentration, and learn and
complete new and complex tasks with only mild difficulty (R 34). The AU
assigned “great weight” to Dr. Arrington’s opinion by virtue of her specialization
in her field and the lack of contradictory evidence in the record (Id.).
Fifth, the AUJ again gave “great weight” to the opinions of four nonexamining state agency consultants—two medical (Drs. Shahinian and
Dr. Horwtiz’s report indicated that Sanchez’s Worker’s Compensation
settlement awarded “20% of partial total for the back, left chest/ribs and left lower
leg/calf” on July 10, 2012 (R 340).
8
Galakos) and two psychiatric (Drs. Tiliman and Bortner)—all of which found
that Mr. Sanchez’s impairments were not severe (R 34—35; see R 65—80). AU
Russak explained that he afforded these opinions “great weight” because they
were consistent with objective findings in the record and because they were
provided by doctors who had examined the medical record (R 34—35).
The AU then discussed the incongruity between, on the one hand, Mr.
Sanchez’s self-reported limitations, and, on the other, the following evidence:
Sanchez’s discontinuation of physical therapy after 2011; his history of using
only over-the-counter medication for pain with no history of injections or
surgery; his failure to ever seek treatment for depression; a medical report
showing no evidence of neurological or reflex deficits and little functional
impairment; his failure to use a cane at his consultative examination and
hearing, despite his claim that he needed it to walk; his self-reported ability to
cook, clean, and walk independently, contradicting his testimony that he relies
on his sister to perform all daily tasks; and his Worker’s Compensation
settlement for only twenty percent partial total loss (R 35). From this record,
AU Russak found that, although Sanchez’s impairments were real, his
allegations of pain and limitation of his activities were “not fully credible” (R
35). Balancing the evidence, the AU determined that Sanchez’s back pain
limited him to the RFC stated above (R 35).
Russak then determined that Sanchez was “not disabled” on the
ground that he could still perform his past relevant work (see R 35—37). To
support this determination, the AU adopted the opinion of a vocational expert
AU
(“yE”) who testified at the November 26, 2013 hearing on the nature of
Sanchez’s past relevant work as a cashier, warehouse worker, and recycling
worker—all semi-skilled or unskilled positions—and on Sanchez’s capacity to
perform these positions in light of his RFC (R 35—36, 56—58). Adopting the VE’s
testimony, the AUJ specifically found that Sanchez was capable of holding
employment as a warehouse worker (DOT code 922.687-058, requiring medium
exertion), recycling worker (DOT code 928.687-022, requiring medium
9
exertion), and cashier (DOT code 211.462-014, requiring light exertion) (R 35,
56—57)
6
Step 5
AU
Russak then proceeded to step five as an alternative ground for
finding Sanchez not disabled. At this step, the AU again relied on the VE’s
testimony (R 36—37). Taking into account the AU’s hypothetical question that
incorporated Sanchez’s RFC, the VE testified that Sanchez was “capable of
making a successful adjustment to other work that exists in significant
numbers in the national economy,” including representative occupations from
7
light work and medium work classifications (R 36—37). Specifically, the VE
testified that Sanchez could work as a factory worker (DOT Code 706.684-022,
“light work”), a laundry worker (DOT Code 361.684-0 14, “medium work”), and
The VE testified that Sanchez’s limitations with the English language would
prevent him from working as a cashier as the job is generally performed in the
national economy (R 35, 57—58). The AU acknowledged this exclusion but still found
Sanchez capable of working as a cashier as he had actually performed it in the past (R
35). This finding was appropriate; a claimant retains the capacity to perform his past
relevant work if he can perform the demands of the job as he actually performed it or
as ordinarily required by employers in the national economy. See Titles H & XVI: Past
Relevant Work-the Particular Job or the Occupation as Generally Performed, SSR 82-61
(S.S.A. 1982).
6
The Social Security Administration defines “Light work” as follows:
Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine
that he or she can also do sedentary work, unless there are
additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.
20 C.F.R. § 404.1567(b) and 4 16.967(b).
10
a cleaner (DOT Code 301.474-010, “light work”), and that all of these jobs exist
in large numbers nationally and regionally (see R. 36, 59_60).8
C. Mr. Sanchez’s Appeal and Analysis
Sanchez challenges the AU’s determination that, albeit with the
exceptions articulated in the RFC, Sanchez is capable of performing medium
work (P1 Br 19—23). Sanchez also argues that the VE’s testimony was not valid
because it relied on hypotheticals that assumed Sanchez was capable of
performing medium work (P1 Br 23—25). Because the RFC directly informed the
hypothetical, the crux of both arguments is that the AU
should not have
incorporated “medium work” into Sanchez’s RF’C. I disagree.
1.
Ability to Perform Light Work
Sanchez’s arguments fail at the outset because they dispute only the
“medium work” component of the RFC—specifically, Sanchez’s ability to carry
up to fifty pounds. AU
Russak denied Sanchez disability benefits not only
because he is capable of performing past relevant or other unskilled medium
work, but also because he is capable of performing past relevant or other
unskilled light work. The AU specifically found that Sanchez could perform the
duties of cashier as he actually performed them in the past, as well as the
duties of factory worker or cleaner as generally performed in the national
economy (see R 36—37)
.
Accordingly, even assuming arguendo that substantial
evidence did not support the AU’s RFC finding as to medium work, this error
would be a harmless one; substantial evidence plainly supports Sanchez’s
The VE also took into account Sanchez’s advanced age, education, work
experience, and RFC, as required (R 36, 59—61). See 20 C.F.R. Part 404, Subpart P,
Appendix 2.
9
In a pre-hearing memorandum submitted to the ALT, counsel for Sanchez
argued that Sanchez “cannot perform more than light work,” a seeming concession
that he could perform light work. (R 295 (emphasis added)). The pre-hearing
memorandum later concludes, inconsistently, that “Mr. Sanchez cannot perform a full
range of light work.” (R 295). But the evidence offered to support this conclusion is the
same subjective evidence AU Russak evaluated and properly discredited in his RFC
determination. (Id.)
8
11
capacity for light work and thus his ability to perform the three light work jobs
identified.
2.
The “Medium Work” RFC
Nevertheless, for the reasons explained below, I find that substantial
evidence does support the contested “medium work” RFC. Therefore, I also find
that the hypothetical question posed to the VE accurately portrayed Sanchez’s
impairments and that it was proper for the ALT to adopt the VE’s testimony.
Because, as stated above, any error as to medium work is harmless, I discuss
it only briefly.
Sanchez first argues that ALT Russak erred by not accounting for
contradictory doctor’s reports from two examinations at Concentra Medical
Center (“Concentra”). Those reports, from June 3, 2011 and June 10, 2011, list
symptoms and range of motion findings that are nearly identical, if not less
severe, to those appearing in later reports from Concentra that the ALT did
expressly cite in his decision (see P1 Br 20—2 1; R 33—34, 30 1—330).
Sanchez directs my attention to a notation in the June 3, 2011 report
advising Sanchez not to lift over forty pounds at work “until [the] next
physician visit,” scheduled for June 10, 2011 (R 305; see P1 Br 23). This
temporary limitation until the next visit signifies little. A record from a June
17, 2011 Concentra visit (which the ALT discusses, see R 33—34) reports that
Sanchez was “tolerating his work restrictions” (R 302), and no mention of a
forty-pound lifting limit ever again appears in any of Sanchez’s follow-up
records with Concentra, or anywhere else. As discussed above, subsequent
examinations indicated Sanchez’s intact strength, normal daily functioning,
and general improvement in condition.’°
Counsel for Sanchez also implies—although not in the argument section of
Plaintiff’s Brief—that the ALT’s RFC determination was incomplete because he failed to
specify what weight he assigned to each of the opinions of Drs. Hoffman, Horwitz,
Shahinian and Galakos (P1 Br 17). But a reviewing ALT is not required to adhere to a
particular format or to use particular language in evaluating the evidence. Rather,
what is required is “sufficient development of the record and explanation of findings to
10
12
Second, Sanchez argues that the RFC finding is not supported by
substantial evidence because no objective medical evidence affirmatively states
that Sanchez is capable of lifting up to fifty pounds (P1 Br 23). Nevertheless, the
objective medical evidence summarized above, on whole, constitutes
substantial evidence supporting Sanchez’s capacity for medium work
regardless. The temporary forty-pound limitation (apparently abandoned)
would actually tend to support Sanchez’s capacity in February 2014 to lift “no
more than 50 pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds.” Titles II & XVL Determining Capability to Do Other
Work-the Med.-Vocational Rules of Appendix 2, SSR 83—10 (S.S.A. 1983)
(emphasis added).”
Sanchez ascribes a third error to the AU with respect to the “medium
work” RFC: he claims the AU failed to indicate or explain what weight he
afforded Sanchez’s own allegations that he cannot carry more than fifteen to
twenty pounds (P1 Br 22_23).12 Specifically, Sanchez maintains that the AU’s
permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). And
here, AU Russak did expressly assign “great weight” to the opinions of Drs. Shahinian
and Galakos—medical consultants for the State—and explained that he assigned this
weight because the doctors’ opinions were “consistent with the objective findings in
the record” (R 34—35). While brief, the AU’s explanation is sufficient to permit
meaningful review when considered in the context of the opinion as a whole; it
sufficiently enables me to determine that the ALT viewed Sanchez’s medical record as
consistent across physicians and over time and that he credited the opinions
accordingly.
The Social Security Administration has also advised that “[b]eing able to do
frequent lifting or carrying of objects weighing up to 25 pounds is often more critical
than being able to lift up to 50 pounds at a time.” SSR 83—10.
12
It bears repeating that the ALT found that Sanchez is capable of actually
performing or in the alternative, making a successful adjustment to light work
occupations (R 36—37). Light work only requires lifting up to twenty pounds at a time.
See n.7, supra. Therefore, Sanchez’s self-reported inability to lift more than twenty
pounds is not at odds with his performance of light work, and any error in the ALT’s
fmdings as to Sanchez’s capacity to lift up to fifty pounds would have no impact on the
ultimate conclusion that Sanchez is not disabled.
13
partial discrediting of his allegations was improperly conclusory and vague (P1
Br 23).
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. § 416.929). Rather, the AU
is required to assess whether and to what degree such complaints are
3
credible.’ 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. § 404.1529(c)(2). As to
that issue, “[objective medical evidence
AU
.
.
.
is a useful indicator.” Id. But, the
may also examine factors that precipitate or aggravate the symptoms,
medications and treatments, and daily living activities. 20 C.F.R.
§ 1529(c)(3).
The AU’s determination “must contain specific reasons for the weight
given to the individual’s symptoms, be consistent with and supported by the
evidence, and be clearly articulated so the individual and any subsequent
reviewer can assess how the adjudicator evaluated the individual’s symptoms.”
Soc. Sec. Ruling 16-.3p; Titles II & XVI: Evaluation of Symptoms in Disability
Claims, SSR 16-3P (S.S.A. Mar. 16, 2016). What is required overall is that the
The Social Security Administration announced earlier this year that it would no
longer assess the “credibility” of an applicant’s statements, but would instead focus on
determining the “intensity and persistence of [the applicant’s] symptoms.” Soc. Sec.
Ruling l6-3p; Titles H & XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P
(S.S.A. Mar. 16, 2016). As Judge Posner of the Court of Appeals for the Seventh
Circuit recently explained, “the change in wording is meant to clarify that
administrative law judges aren’t in the business of impeaching claimants’ character;
obviously administrative law judges will continue to assess the credibility of pain
assertions by applicants, especially as such assertions often cannot be either credited
or rejected on the basis of medical evidence.” Cole v. Colvin, No. 15-3883, 2016 WL
3997246, at *1(7th Cir. July 26, 2016).
13
14
AU
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 and substantial evidence
supports the AU’s “credibility” determination, a reviewing court will not
disturb it. See, e.g., Kanakis v. Comm’r of Soc. Sec., No. 15-3684, 2016 WL
2957225, at *3 (3d Cir. May 23, 2016) (not precedential).
AU Russak’s decision clearly acknowledges Sanchez’s claims that he
could lift only fifteen to twenty pounds (R 33; see R 44). As summarized above,
however, the decision also discusses repeated instances in the objective
medical record in which examining physicians noted Sanchez’s evidence of
spinal injury, reduced sensation, and some range of motion limitations, but
also remarked on Sanchez’s independence, ability to walk normally and bear
weight without assistance, his strength, minimal functional impairment, and
ability to bend, flex, and mount and dismount the examining table without
difficulty (R 34). The AU
also noted inconsistencies in Sanchez’s own
descriptions of his pain and limitations.
Particularly because Sanchez’s reported limitations suggested greater
restriction than the objective medical evidence showed, it was appropriate for
the AU.J to consider evidence of Sanchez’s daily activities, duration of pain,
medication, and treatment. See 20 C.F.R.
§ 404.1529(c)(3); Dunson v. Comm’r
Soc. Sec.,615 F. App’x 65, 69 (3d Cir. 2015); Ochs v. Comm’r Soc. Sec., 187 F.
App’x 186,190—91 (3d Cir. 2006). AU
Russak did just that; he considered the
record evidence showing that Sanchez submitted to only minimal treatment in
the form of physical therapy right after his injury and did not continue this
treatment beyond 2011; that Sanchez had not undergone surgery or received
injections and takes only over-the-counter pain medications; and that
Sanchez’s testimony claiming inability to walk at length and perform normal
daily activities were contradicted by statements in his functional reports that
he can stand for one hour and sit for two hours and that he cooks, launders,
and walks independently (R 35; see R 43—45, 52—53, 267-273).
15
Moreover, AU
Russak’s presence at the hearing put him in the best
position to observe Sanchez’s demeanor and assess his assertions. For
properly took into account that Sanchez contradicted his own
example, the AU
testimony that he uses a cane when he failed to bring it to his hearing. “The
opportunity to observe the demeanor of a witness, evaluating what is said in
the light of how it is said, and considering how it fits with the rest of the
is invaluable, and should not be discarded lightly.” Gonzalez v.
Astrue, No. l0-CV-2371 DMC, 2011 WL 4550148, at *11 (D.N.J. Sept. 29,
evidence.
.
.
2011) (quoting Arnold v. Schweiker, 571 F. Supp. 526, 529 (E.D.Pa. 1983)).
In sum, I find that AU
Russak found Sanchez’s allegations concerning
the severity and limiting effects of his symptoms “not entirely credible” (R.33)
and “not fully credible” (R. 35) after a thoughtful and comprehensive review of
the record.
3.
The AU’s Hypothetical and VE’s Testimony
Sanchez argues that because objective medical evidence controverts
Sanchez’s capacity to lift fifty pounds, the RFC determination was inaccurate
insofar as it assigned Sanchez to medium work and therefore, the hypothetical
question (which incorporated the RFC) did not accurately portray Sanchez’s
individual impairments. Sanchez argues this rendered the VE’s testimony
invalid (R 23—24).
While it is true that an AU
only properly adopts a VE’s testimony where
it is based on hypothetical questions that accurately reflect the claimant’s
impairments, it is also true that the hypothetical questions need not
incorporate every impairment a claimant alleges. See Rutherford v. Barnhart,
399 F.3d 546, 553—54 (3d Cir. 2005). “Instead..
.
the hypotheticals posed
must accurately portray the claimant’s impairments and
.
.
.
the expert must
be given an opportunity to evaluate those impairments as contained in the
record.” Id. at 554 (internal quotation marks omitted).
16
As I have already explained, substantial evidence supported the AU’s
4
RFC determination.’ Therefore, the AU
did not err in presenting a
hypothetical question to the VE that incorporated the RFC. See Plummer v.
Apfel, 186 F.3d 422, 43 1—32 (3d Cir. 1999). In any event, the VE identified light
work that Sanchez could perform. I find that the AU’s conclusion of nondisability was well supported by the testimony of the VE and other substantial
evidence.
III.
CONCLUSION
For the foregoing reasons, the AU’s decision is AFFIRMED. An
appropriate order accompanies this Opinion.
Dated: September 16, 2016
Hon. Kevin McNulty
United States District Judge
For this reason, the undeveloped argument that the AU’s hypothetical also
should have included Sanchez’s decreased sensation in his feet and decreased muscle
strength also fails (see P1 Br 24).
14
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?