MISSAGGIA v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Claire C. Cecchi on 9/20/17. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GINA ANN MISSAGGIA,
Civil Action No.: 2:16-cv-O1 166
COMMISSIONER OF SOCIAL SECURITY,
CECCHI, District Judge.
Before the Court is Plaintiff Gina Ann Missaggia’s (“Plaintiff’) appeal seeking review of
determination by the Commissioner of the
(“Commissioner”) denying her application for disability insurance benefits (“DIB”) under
§ 216(i) and 223(d) of the Social Security Act (“SSA”). The issue to be decided is whether the
Commissioner’s denial of benefits is supported by substantial evidence. For the reasons set forth
below, the decision of Administrative Law Judge Barbara Dunn (the “AU”) is affirmed.
Plaintiff applied for disability insurance benefits on March 28, 2012, alleging disability as
of April 1, 2009. (ECF No. 5-2 at 21). The application was denied initially in May 2012, and
upon reconsideration in November 2012. (Id.). On October 7, 2013, a hearing was held before
the AU. (Id. at 21, 32). The AU issued a decision on February 20, 2014 finding Plaintiff was
not disabled, as defined by the SSA. (Id. at 32 (citing 20 C.F.R.
§ 404.1520(g))). Plaintiff
requested review of the decision and the Appeals Council denied the request on December 28,
2015. (Id. at 1). On March 1, 2016, Plaintiff instituted this action. (ECF No. 1).
Plaintiff was born on August 12, 1967. (ECF No. 5-2 at 39). She has a high school
diploma. (Id.). Plaintiff testified that she lives with her mother and brother. (Id. at 45-46).
Plaintiff reported that her daily activities include making meals for herself, watching television,
and taking occasional naps. (Id. at 53).
After graduating from high school, Plaintiff held a number of administrative and secretarial
positions, where her tasks included answering phones, greeting customers, processing bills and
invoices, and other similar office work. (Id. at 39-43). Although Plaintiff’s work history report
indicated that she last worked in April 2009, Plaintiff testified before the AU that she last worked
in 200$. (Id. at 39-40). According to Plaintiff, her “position was finished” in 200$ because “[her
employer] no longer needed [hen there.” (Id. at 43).
On April 10, 2009, Plaintiff “was injured as a bystander to a bar fight.” (ECF No. 9 at 2).
Plaintiff testified that as a result, she sustained a “dislocated shoulder, neck pain, lower back pain,
[and] right knee and left foot [pain].” (ECF No. 5-2 at 43-44).
On April 11, 2009, Plaintiff sought treatment at the Mountainside Hospital emergency
room. (ECF No. 5-7 at 229). At this time, Plaintiff reported multiple pains and body aches as a
result of being pushed into a bar and hit by a chair. (Id. at 232). Plaintiff’s treating physician
prescribed her pain medication and instructed that she follow up with her primary care physician.
(Id. at 240). On May $, 2009, Plaintiff consulted with an orthopedist, who prescribed physical
therapy and pain medication to treat Plaintiff’s “[l]eft neck and left shoulder pain.” (Id. at 24243). Plaintiff also underwent an MRI, which “revealed cervical disc herniation at C6-7, cervical
and lumbar disc bulging at C4-5, Ll-2, L4-5[,] and left shoulder supraspinatus tendonitis.” (Id. at
Plaintiffs pain management doctor further prescribed chiropractic treatment, physical
therapy, gentle massage, heat, and pain medication. (Id. at 252).
In July 2009, Plaintiff met with Dr. Richard Kaul for a consultative examination,
complaining of pain in the head, neck, right arm, and lower back.
(Id. at 255).
recommended that Plaintiff continue with conservative therapy with her chiropractor. (Id. at 256).
In September 2009, Plaintiff returned to Dr. Kaul complaining of increased head, neck, and upper
extremity pain, as well as numbness and tingling extending into the left upper extremity with some
weakness in the shoulder and wrist. (Id. at 253). Dr. Kaul recommended that Plaintiff proceed
with three cervical epidurals and a series of multiple trigger point injections. (Id. at 254).
In December 2009, Plaintiff consulted with an orthopedic surgeon, Dr. Michael Russonella.
(Id. at 257). Dr. Russonella noted that Plaintiff had cervical and lumbar radiculopathy with sprain,
left shoulder symptomatic subacromial impingement with acromioclavicular joint involvement,
and rotator cuff tendinosis. (Id. at 25$). At this time, Plaintiff elected to proceed with conservative
means of treatment, including physical therapy. (Id. at 259).
After “fail[ing] to respond to a year and three months of conservative care,” (id. at 367),
Plaintiff underwent shoulder surgery in July 201Q. (Id. at 365-66). After a series of medical
consultations, Plaintiff began to show “significant improvement.”
(ECF No. 9 at 8-9).
November 2010, however, Plaintiff consulted her physician, complaining of pain in her shoulder
and lower back. (ECF No. 5-7 at 356). Her physician noted that Plaintiff may have kidney stones
and/or exacerbation of a lumbosacral injury resulting in lack of exercise. (Id.).
Shortly thereafter, Plaintiff elected to have a cervical epidural spinal injection to relieve
pain from worsening cervical myelopathy of C5-C6-C7. (Id. at 353-54). Plaintiff reported a 50%
improvement in symptoms, but still complained of headaches, back pain, and shoulder pain. (Id.
at 34$). On February 9, 2011, Plaintiff underwent a second cervical epidural spinal injection. (Id.
at 344-45). On February 23, 2011, Plaintiffs physician recommended that Plaintiff obtain a third
cervical epidural as soon as possible. (Id. at 342).
Over the course of approximately the next fourteen months, Plaintiff met with her
physician, Dr. Evangelos Megariotis, complaining of pain, stifffiess, tenderness, and weakness in
her neck, shoulder, arm, and lower back. (Id. at 332-43). Plaintiff also reported suffering from
headaches, depression, anxiety, and insomnia. (Id.). Dr. Megariotis prescribed Plaintiff a number
of medications and treatments, and ultimately opined that Plaintiff was “totally permanently
disabled.” (Id. at 332).
Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.s.c.
§ 405(g) and 1383(c)(3). The Court is not “permitted to re-weigh the evidence or impose [its]
own factual determinations,” but must give deference to the administrative findings. Chandler v.
Comm ‘r ofSoc. Sec., 667 F.3d 356, 359 (3d Cir. 201 1); see also 42 U.S.C.
§ 405(g). Nevertheless,
the Court must “scrutinize the record as a whole to determine whether the conclusions reached are
rational” and supported by substantial evidence. Gober v. Matthews, 574 F.2d 772, 776 (3d Cir.
197$) (citations omitted). Substantial evidence is more than a mere scintilla, and is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Chandler, 667
F.3d at 359 (citations omitted). If the factual record is adequately developed, substantial evidence
“may be ‘something less than the weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.” Daniels v. Astrue, No. 08-1676, 2009 WL
1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting Consolo v. fed. Mar. Comm ‘n, 383 U.s. 607,
620 (1966)). In other words, under this deferential standard of review, the Court may not set aside
the AU’s decision merely because it would have come to a different conclusion. See Cruz v.
Comm ‘r of Soc. Sec., 244 F. App’x 475, 479 (3d Cir. 2007) (citing Hartranft
Apfel, 181 F.3d
358, 360 (3d Cir. 1999)).
Pursuant to the SSA, in order to be eligible for benefits, a plaintiff must show she is
disabled by demonstrating 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 twelve
months.” 42 U.S.C.
§ 423(d)(1)(A), 13$2c(a)(3)(A). Taking into account the plaintiffs age,
education, and work experience, disability will be evaluated by the plaintiffs ability to engage in
her previous work or any other form of substantial gainful activity existing in the national
economy. 42 U.S.C.
§ 423(d)(2)(A), l382c(a)(3)(B). A person is disabled for these purposes
only if her physical or mental impairments are “of such severity that [s]he is not only unable to do
[her] previous work, but cannot, considering [her] age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.
§ 423(d)(2)(A), 1382c(a)(3)(B).
Decisions regarding disability will be made individually and will be “based on evidence
adduced at a hearing.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000) (citing Heckler v.
Campbell, 461 U.S. 458, 467 (1983)). Congress has established the type of evidence necessary to
prove the existence of a disabling impairment by defining a physical or mental impairment as “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.s.c.
§ 423(d)(3), 1382c(a)(3)(D).
Sequential Evaluation Process
The Social Security Administration follows a five-step, sequential evaluation to determine
whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R.
§ 404.1520, 416.920.
First, the ALl must determine whether the plaintiff is currently engaged in substantial gainful
activity. See Sykes, 22$ F.3d at 262. Second, if she is not, the ALl determines whether the Plaintiff
has an impairment that limits her ability to work. See id. Third, if she has such an impairment,
the AU considers the medical evidence to determine whether the impairment is listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (the “Listings”). If it is, this results in a presumption of disability.
See Id. at 262-63. If the impairment is not in the Listings, the AU must determine how much
residual functional capacity (“RFC”) the applicant retains in spite of her impairment. See id. at
263. Fourth, the AU must consider whether the plaintiffs RFC is enough to perform her past
relevant work. See Id. Fifih, if the plaintiffs RFC is not enough to perform her past relevant work,
the AU must determine whether there is other work in the national economy that the plaintiff can
perform. See Id.
The evaluation continues through each step unless it is determined at any point that the
plaintiff is or is not disabled. 20 c.F.R.
§ 404.1520(a)(4), 416.920(a)(4). The plaintiff bears the
burden of proof at steps one, two, and four, and the burden shifts to the connissioner at step five.
See Sykes, 228 F.3d at 263. Neither party bears the burden at step three. See Id. at 263 n.2.
Summary of the AU’s Findings
At step one, the AU found that Plaintiff met the insured status requirements of the SSA
and had not engaged in substantial gainful work activity since the onset date of the alleged
disability. (ECF No. 5-2 at 23). At steps two and three, the AU found that Plaintiff’s impairments
of cervical and lumbar herniations, status-post lumbar surgery, status-post dislocated left shoulder,
anxiety, depression, and migraines were “severe,” but not severe enough to meet, either
individually or in combination, any of the impairments listed in 20 C.F.R.
§ 4014, Subpart P,
Appendix 1. (Id. at 23-2 6).
The AU concluded that Plaintiff had the RFC to perform sedentary work as defined in 20
§ 404.1567(a), with the exceptions that Plaintiff:
[C]an occasionally climb ramps/stairs and crouch; never climb
ladders/ropes/scaffolds or crawl; has unlimited ability to stoop and kneel; must
avoid concentrated exposure to extreme cold and all exposure to workplace
hazards; can occasionally perform pushing/pulling with the left upper extremity;
[can] occasionally perform overhead reaching with the left arm; and is limited to
simple, routine work and occasional contact with coworkers and the general public.
(Id. at 26).
The AU found that Plaintiff’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of these symptoms were not entirely credible for several reasons.
(Id. at 27-31). At step four, the AU found that through the date last insured, Plaintiffwas incapable
of performing past relevant work. (Id. at 31).
Finally, at step five, the AU considered Plaintiff’s age, education, work experience, and
RFC, and concluded that Plaintiff has the ability to work in jobs that exist in significant numbers
in the national economy. (Id.). The AU emphasized that Plaintiff was forty-six years old, which
is defined as a younger individual, on the date the application was filed. (Id.). A vocational expert
(“yE”) testified that given all of Plaintiff’s individual factors, she would be able to perform the
requirements of representative occupations such as envelope addresser, compact assembler, and
eyeglass polisher. (Id. at 32). The AU determined that the VE’s testimony was consistent with
the information contained in the Dictionary of Occupational Titles (“DOT”), and found that
Plaintiff is “capable of making a successful adjustment to other work that exist[s] in significant
numbers in the national economy.” (Id.). Thus, the ALl concluded that Plaintiff is not disabled
under the S$A. (Id.).
Plaintiff argues, in support of her contention that the AU’ s decision should be remanded,
that the ALl’s hypothetical inadequately considered the treating physician’s opinion and, thus, the
VE’s response to that hypothetical failed to support the ALl’s finding that there is work existing
in significant numbers that Plaintiff can perform. (ECF No. 9 at 21).
“In evaluating medical reports, the AU is free to choose the medical opinion of one doctor
over that of another.” Diaz v. Comm ‘r ofSoc. Sec., 577 f.3d 500, 505 (3d Cir. 2009) (citing Cotter
v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)). “When a conflict in the evidence exists, the ALl
may choose whom to credit but ‘cannot reject evidence for no reason or for the wrong reason.’
The AU must consider all the evidence and give some reason for discounting the evidence she
rejects.” Flummer v. Apfel, 186 f.3d 422, 429 (3d Cir. 1999) (citations omitted). Further, an AU
must give a treating physician’s opinion controlling weight when the opinion is 1) “well-supported
by medically acceptable clinical and laboratory diagnostic techniques” and 2) “is not inconsistent
with the other substantial evidence in [the claimant’s] case record.” Johnson v. Comm ‘r of Soc.
Sec., 529 F.3d 198, 202 (3d Cir.2008) (alteration in original) (citations omitted); see also 20 C.F.R.
§ 405.1527(c)(2), 416.927(c)(2) (stating the same legal standard).
Here, the AU considered all of the medical evidence and provided an explanation for why
she chose to credit the Disability Determination Services physicians over Dr. Megariotis,
Plaintiffs treating physician. (ECF No. 5-2 at 30). The AU’s explanation noted:
[T]reatment records from orthopedist Evangelos Megariotis, M.D. in May 2012
noted the claimant[’s] deficiencies in lifting, walking and physical activities
(Exhibit 12F). However, the doctor failed to define such deficiencies. The treatment
record also indicated the claimant should perform physical activity, although
achieving a balance between exercise and activity (Exhibit 1 2f). The undersigned
does agree that the claimant has limitations with lifting, walking and physical
activities. However, there is nothing in the record to indicate she cannot perform at
least sedentary work. As such, only some weight is accorded to this finding.
[T]he doctor’s findings [regarding Plaintiffs limitations] are inconsistent with his
treatment notes. In January 2013, the doctor indicated that the claimant was
disabled for any type of “vigorous” physical full-time activity due to her shoulder,
neck and back pathology (Exhibit 15F). The undersigned notes the doctor only
indicated the claimant could not perform “vigorous” physical activity, which does
not preclude all activity and is not inconsistent with a sedentary residual functional
capacity. In fact, in August 2013 the doctor’s treatment records indicate the
claimant was advised to increase her exercise, which included physical activities
(Exhibit 1 5F).
Additionally, the doctor’s findings of inability to perform fine manipulations or
reaching is not consistent with the findings at the consultative examination, wherein
the claimant had full grip strength (5/5), normal sensation, and intact finger
dexterity. Additionally, her shoulder symptoms were reduced, as she was able to
raise her arm in abduction and forward flexion fully to 150 degrees. Muscles were
equally distributed between the right and left side, showing no evidence of any
disuse. She had no sensory abnormalities in the upper extremities bilaterally and
reflexes were readily demonstrated at the biceps, triceps and brachoradialis. The
doctor’s notes do not indicate any clinical findings with respect to same. Overall,
the doctor’s extreme limitations are not supported by the record.
As detailed in her opinion, the AU considered all of the evidence provided by Dr.
Megariotis. (Id.). Affording his opinions little weight, the AU explained in detail the reasons for
discounting the evidence that she rejected.
Among these reasons were that Dr.
Megariotis’s opinions were not supported by the record, were inconsistent with his treatment notes,
and were inconsistent with Plaintiffs consultative examination. (See Id.). For example, the ALl
noted that Dr. Megariotis’s treatment notes indicated that Plaintiff “reported reduced pain and
stiffness in the left shoulder” and “had significantly improved.” (Id. at 27). The AU also noted
that Dr. Megariotis opined in his treatment notes that Plaintiffs pain was “nothing serious,” that
Plaintiff had a “good response” to epidural blocks, and recommended that Plaintiff “exercise and
perform physical activity, although with a balance.” (Id.). As such, there is no indication that the
AU “reject[ed] evidence for no reason or for the wrong reason.” See Flummer, 126 F.3d at 429.
further, an ALl is not required to give a treating physician’s opinion controlling weight
when she finds that opinion is inconsistent with other substantial evidence in the record. See
Johnson, 529 F.3d at 202. Because the AU found that Dr. Megariotis’s opinions lacked support
in the case record, conflicted with his treatment notes, and contradicted the findings from
Plaintiffs consultative examination, she was not required to give his opinions controlling weight.
Accordingly, the Court finds that the AU’s consideration of the medical evidence to be supported
by substantial evidence, and Plaintiffs argument without merit.
Finally, the Court also finds that the ALl’s hypothetical adequately considered Plaintiffs
credible limitations and, thus, the VE’s response to that hypothetical supported the AU’s finding
that there is work existing in significant numbers that Plaintiff can perform. If an AU poses a
hypothetical to a VE that “fairly set[s] forth every credible limitation [of the claimant] established
by the physical evidence,” the VE’s testimony as to the jobs such a person could perform is by
itself substantial evidence to carry the government’s burden at step five. Flummer, 126 F.3d at
431. Here, as the Court explained above, the ALl found that Dr. Megariotis’s opinion was not
supported by and was inconsistent with the physical evidence.
Accordingly, the AU’s
hypothetical adequately considered Plaintiffs credible limitations. Therefore, the VE s testimony
regarding other work provided substantial evidence for the AU’s conclusion.
For the foregoing reasons, the Court will affirm the AU’s decision. An appropriate order
accompanies this Opinion.
CLAIRE C. CECCHI, U.S.D.J.
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