HARRELL v. COMMISSIONER OF SOCIAL SECURITY

Filing 21

OPINION. Signed by Chief Judge Jose L. Linares on 6/12/2017. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KELLI I. HARRELL,

Civil Action No. 16-1433 (JLL)
Plaintiff,
OPINION

V.

NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
LINARES, District Judge.
This matter comes before the Court upon the appeal of Kelli J. Harrell (“Plaintiff’) from
the final decision of the Commissioner upholding the final determination by Administrative Law
Judge (“AU”) Donna A. Krappa denying Plaintiffs application for disability insurance benefits
(“DIBs”) and for Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”).
The Court resolves this matter on the parties’ briefs pursuant to Local Civil Rule 9.1(0. The Court
has reviewed the parties’ submissions. For the following reasons, the Court affirms the AU’s
decision.
I.

BACKGROUND’

The Court writes for the parties who are familiar with the facts and procedural history of
the case. The Court therefore specifically addresses in the discussion below only those facts
relevant to the issues raised on appeal.

‘“R.” refers to the Administrative Record, which uses continuous pagination and can be found at
ECF No. 11.

II.

STANDARD Of REVIEW
A reviewing court will uphold the Commissioner’s factual decisions if they are supported

by “substantial evidence.” 42 U.S.C.

§ 405(g), 1 3$3(c)(3); Sykes v. Apfet, 228 f.3d 259, 262 (3d

Cir. 2000). “Substantial evidence means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion,” and “[i]t is less than a preponderance of the evidence but
more than a mere scintilla.” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Additionally,
under the Act, disability must be established by objective medical evidence. To this end, “[a]n
individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of
disability as defined in this section.” 42 U.S.C.

§ 423(d)(5)(A). Instead, a finding that one is

disabled requires:
{MJedicat 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 furnished under this paragraph. would lead to a conclusion
that the individual is under a disability.
.

Id.; see 42 U.S.C.

.

§ 1382c(a)(3)(A). 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; and (5) the specialization of the individual
giving the opinion. 20 C.F.R.

§ 404.1527(c).

The “substantial evidence standard is a deferential standard of review.” Jones, 364 f.3d at
503.

The AU is required to “set forth the reasons for his decision” and not merely make

conclusory unexplained findings. Burnett v. Comm ‘r ofSoc. Sec. 220 f.3d 112, 119 (3d Cir. 2000).
But, if the AU’s decision is adequately explained and supported, the Court is not “empowered to
weigh the evidence or substitute its conclusions for those of the fact-finder.” Williams v. Sullivan,

2

970 F.2d 1178, 1182 (3d Cir. 1992). It does not matter if this Court “acting de novo might have
reached a different conclusion” than the Commissioner. Monsour Med. Ctr. V Heckler, $06 f.2d
1185, 1190-91 (3d Cir. 1986)). finally, the Third Circuit has made clear that “Burnett does not
require the AU to use particular language or adhere to a particular format in conducting his [or
her] analysis. Rather, the function of Burnett is to ensure that there is sufficient development of
the record and explanation of findings to permit meaningful review.” Jones, 364 f.3d at 505.
IlL

THE FIVE STEP PROCESS AND THE AU’S DECISION

A 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)(1)(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 twelve months.” 42 U.S.C.

§ 423(d)(l)(A). A person is disabled

only if his physical or mental impainnent(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).

The Third Circuit has summarized “the five step sequential evaluation for determining
whether a claimant is under a disability, as set forth in 20 C.f.R.

§ 404.1520” as follows:

In step one, the Commissioner must determine whether the claimant is currently
engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a). If a claimant is
found to be engaged in substantial activity, the disability claim will be denied.
Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
In step two, the Commissioner must determine whether the claimant is suffering
from a severe impairment. 20 C.F.R. § 404.1520(c). If the claimant fails to show
that her impairments are “severe,” she is ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence of the claimant’s
impairment to a list of impairments presumed severe enough to preclude any
3

gainful work. 20 C.F.R. § 404.1520(d). If a claimant does not suffer from a listed
impairment or its equivalent, the analysis proceeds to steps four and five.
Step four requires the AU to consider whether the claimant retains the residual
functional capacity [(“RfC”)] to perform her past relevant work. 20 C.F.R. §
404.1520(d). The claimant bears the burden of demonstrating an inability to return
to her past relevant work. Adorno v. Shalala, 40 f.3d 43, 46 (3d Cir. 1994).
If the claimant is unable to resume her former occupation, the evaluation moves to
the final step. At this stage, the burden of production shifis to the Commissioner,
who must demonstrate the claimant is capable of performing other available work
in order to deny a claim of disability. 20 C.F.R. § 404.1520(f). The AU must show
there are other jobs existing in significant numbers in the national economy which
the claimant can perform, consistent with her medical impairments, age, education,
past work experience, and residual functional capacity. The AU must analyze the
cumulative effect of all the claimant’s impairments in determining whether she is
capable of performing work and is not disabled.
Jones, 364 f.3d at 11 8-19 (formatting and emphasis added). “The claimant bears the burden of

proof for steps one, two, and four of this test. The Commissioner bears the burden of proof for the
last step.” Sykes, 228 f.3d at 263 (citing Bowen

i

Yuckert, 482 U.S. 137, 146 n. 5 (1987)). Neither

party bears the burden of proof at step three. Id. at 263 n. 2.
The AU engaged in the above five-step sequential evaluation and found: (Step 1) that
Plaintiff was no engaged in substantial gainful activity (RI 4); (Step 2) that Plaintiff suffers from
the following severe impairments: a disorder of the back; a disorder of the right shoulder; a disorder
of the right hip; and affective disorder (generalized anxiety / panic attacks) (Rl 5); (Step 3) that
Plaintiff did not suffer from a listed impairment or combination of impairments that met or
medically equaled a listed impairment (Id.); (RFC) that Plaintiff “is capable of the exertionat

demands of sedentary work as defined under the Regulations” and has additional limitations with
respect to mental demands (R16); (Step 4) that Plaintiff “has no past employment that qualifies as
‘prior relevant work’ under the Regulations” and that “Accordingly, there is no need to determine
whether {Plaintiff] is able to return to any of her prior relevant work” (R24). At step five, the

4

AU heard the testimony of a vocational expert. (Id. at 24-25) Ultimately, the AU “conclude[d]
that, through the date last insured, considering [Plaintiffs] age, education, work experience, and
[RFC, Plaintiff] was capable of making a successful adjustment to other work that existed in
(Id. at 25) For these reasons, the AU found

significant numbers in the national economy.”
Plaintiff not to be disabled. (Id.)
IV.

DISCUSSION
A. AU’s Consideration of Dr. Rubinfeld’s Records

Plaintiff argues that “[tJhe AU erred in failing to give controlling weight to the treating
source opinions of Phillip J. Rubinfeld, M.D., in particular, his opinions as expressed in his
‘Medical Source Statement of Ability to Do Work-Related Activities (Physical)’ dated December
17, 2013.” (Pl.’s Br. at 10).
In his Medical Source Statement, Dr. Rubinfeld opined that Plaintiff could lift and carry
up to 10 pounds “occasionally” (R1242); she could sit for five hours in an eight hour work day
(R1243); she experienced limitations to both her right and left shoulders (R1242, 1244); and she
could “occasionally” push and pull (R1244). Plaintiff points out that Dr. Rubinfeld indicated that
these limitations were present since his initial consultation with Plaintiff on October 7, 200$. (R
1245). In contrast to Dr. Rubinfeld’s opinions in the Medical Source Statement, the AL] concluded
that Plaintiff could lift up to 10 pounds “frequently;” that she could sit for six hours in an eighthour workday (if given the opportunity at the 45-minute to 1-hour mark to stretch for 3-5 minutes);
that she was limited in terms of reaching only with regard to her left shoulder; and that she could
perform unlimited pushing and pulling within the bounds of sedentary exertion. (Rl6).
While an ALl must consider the opinions of treating physicians, “[t]he law is clear.
that the opinion of a treating physician does not bind the AU on the issue of functional capacity”
where it is not well supported or there is contradictory evidence. Chandler v. Comm ‘r ofSoc. Sec.,
5

667 F.3d 356, 361 (3d. 2011) (alteration in original) (quoting Brown v. Asfrue, 649 F.3d 193, 197
n.2 (3d Cir. 2011)); 20 C.F.R.

§ 404.1527(c)(2); see also C’oleman v.

C’omm ‘r, ofSoc. Sec. Admin.,

494 Fed Appx 252, 254 (3d Cir. Sept. 5, 2012) (“Where, as here, the opinion of a treating
physician conflicts with that of a non-treating, non-examining physician, the AU may choose
whom to credit but cannot reject evidence for no reason or for the wrong reason.”) (quoting
Morales v. Apfet, 225 F.3d 310, 317 (3d Cir. 2000)); Pitimmer v. Apfet, 186 F.3d 422,429 (3d Cir.
1999) (“An AU

may reject a treating physician’s opinion outright only on the basis of

contradictory medical evidence, but may afford a treating physician’s opinion more or less weight
depending upon the extent to which supporting explanations are provided.”);

20 C.F.R.

§

404.1527(c)(3) (“The more a medical source presents relevant evidence to support an opinion,
particularly medical signs and laboratory findings, the more weight we will give that opinion. The
better an explanation a source provides for a medical opinion, the more weight we will give that
medical opinion.”). That is, “[a] treating physician’s opinion on the nature and severity of an
impairment will be given controlling weight only where it is well-supported by the medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other
substantial evidence in the record.” Salles v. C’omm ‘r ofSoc. Sec., 229 F. Appx 140, 148 (3d Cir.
2007).
In her Opinion, the AU stated that “[o]rdinarily, I would give great weight to a treating
physician’s opinion20 CfR404.1567(d)(2) and Social SecurityRuling96-2p; however, in case[s]
such as this, where the conclusory opinion is unsupported and contradicted by substantial evidence,
it will not be given great weight.” (R23). The AU then concluded that “[am examination of Dr.
Rubinfeld’s progress notes reveals that they do not support his opinions.” (Id.). Specifically, the

6

ALl identified inconsistencies between Dr. Rubinfeld’s opinions in the December 2013 Medical
Source Statement and prior progress notes authored by Dr. Rubinfeld. (Id.).
for example, the AU noted that Dr. Rubinfeld’s progress notes dating back to 2011
recorded that Plaintiff was reporting that her pain was controlled with pain medications and that
her function was improved. (Id.). Specifically, the ALl noted that “[i]n March 2011, the [Plaintiff]
advised that she had lower back pain but her pain medications (Vicodin and flexeril) were very
effective (Exhibit 28F, page 5).” (R 23). In that record, Dr. Rubinfeld stated: “Pain controlled,
function improved without significant side effects on current medication regimen.” (Exh. 28f,
page 6). The AU also noted that Dr. Rubinfeld’s records from the next month indicated that
Plaintiff reported having right shoulder surgery and that “she is healing well.” (R23; Exh.28f,
page 8). Further, the AU summarized Dr. Rubinfeld’s notes from an October 2011 visit, in which
the Doctor reported that Plaintiff had “full and symmetrical muscle strength, tone and size
throughout upper and lower extremities” and “normal and symmetrical” deep tendon reflexes.
(Exh.34f, page 8). Dr. Rubinfeld also noted that Plaintiff experienced severe tenderness on the
right side of her sacral spine, SI joint, that the flexion of her spine was moderately limited, and
that her extension was mildly limited bilaterally. (R23; Exh. 34F at page 8). Once again, however,
Dr. Rubinfeld reported that “Pain controlled, function improved without significant side effects on
current medication regime.” (Id.; Exh. 34F, page 8).
The AU also considered Dr. Rubinfeld’s notes from Plaintiffs visits in 2013, summarizing
these notes as follows:
[D]espite Dr. Rubinfeld’s opinion that the claimant was able to sit for less than 6
hours (Exhibit 14f, page 2), during a April 2013 office visit, the doctor advised the
claimant to continue with a home exercise program and to increase her activities
(Exhibit 34F, page 41). It is noted that in August 2013, the doctor reported that she
was experiencing increased pain in the past month, which he attributed to her
tolerance to her current prescribed opioids. The doctor recommended increasing
7

the claimant’s medication to better contro] her pain and improve function. She was
given a prescription for Vicodin HP 10/660mg (Exhibit 34F, page 52). By October
20 13, the doctor reported that the claimant rated her pain as mild-to-moderate only
interfering with some of her daily activities (Exhibit 34F, pages 5 5-56).
(R23).
The AU summarized Dr. Rubinfeld’s notes as follows: “[T]hese progress notes indicate
that although the claimant continued to have some episodic back and neck pain, the claimant’s
pain was well controlled on her medications and her function was improved without significant
side effects.” (R23).
Thus, rather than attributing great weight to Dr. Rubinfeld’s “conclusory” opinions in the
December 17, 2013 Medical Source Statement, the ALl attributed great weight to the opinions of
Dr. Gary s. Friedman, the State Agency medical consultant who reviewed Plaintiffs records. (R2324; R741-747). Dr. Friedman’s report, upon which the AU accorded great weight, is dated
January 16, 2010. (R747). According to the AU, “{n]othing added to the record since those
assessments were made calls the validity of those assessments into question.” (R24).
Plaintiff argues that the AU erred in according great weight to the report of Dr. Friedman.
(Pl.’s Reply Br. at 5-6). Specifically, Plaintiff contends that Dr. Friedman did not review all of
Plaintiffs records, did not examine Plaintiff and did not consider the results of objective tests
(such as Plaintiff’s right shoulder surgery in January 2011 and March 2011 and Plaintiff’s lefi
shoulder MRI in October 2013). (Id.). However, and as Defendant observes, the AU specifically
discussed each of these tests, but ultimately determined that “[n]othing added to the record since
[Dr. Friedman’sJ assessments were made calls the validity of those assessments into question.”
(Def.’s Br. at 7-8, citing R20-24).
The Court finds that the AU did not err in crediting the opinions of Dr. Friedman over
those of Dr. Rubinfeld. first, the AU clearly explained her reasons for not according the Medical

8

Source Statement of Dr. Rubinfeld “great weight.” (R23). Pursuant to 20 C.F.R.

§ 404.1 527(c)(2),

a medical opinion is only entitled to to controlling weight if the opinion “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the Plaintiffs) case record.” The AU was within her discretion in
determining that the medical records that post-dated Dr. Friedman’s opinions would not have
changed those opinions. See Chandler, 667 F.3d at 361 (“[BJecause state agency review precedes
AU review, there is always some time lapse between the consultant’s report and the AU hearing
and decision. The Social Security regulations impose no limit on how much time may pass
between a report and the AU’s decision in reliance on it. Only where ‘additional medical evidence
is received that in the opinion of the [ALl]

.

.

.

may change the State agency medical

consultant’s finding that the impairment(s) is not equivalent in severity to any impairment in the
Listing,’ is an update to the report required.”) (quoting SSR96-6p (July 2, 1996)); see also 5SR966p (“Because State agency medical and psychological consultants
Security disability programs,

.

.

.

20 C.F.R.

.

.

.

are experts in the Social

§ 404.1527(f) and 416.927(f) require [ALJs]

.

consider their findings of fact about the nature and severity of an individual’s impairment(s).

.

.

to

.

finally, it is “[t]he AU—not treating of examining physicians or State agency consultants—[who]
must make the ultimate disability and RFC determinations.”

Id.

(citing 20 C.F.R.

§

404.1 527(e)( 1), 404.1546(c)).
B. Whether the AU Properly Considered the Relevant Evidence
Next, Plaintiff argues that “the AU did not consider the entire record evidence in arriving
at her decision denying the Plaintiff disability benefits.” (Pl.’s Mov. Br. at 15). Specifically,
Plaintiff maintains that the ALl did not consider the relevant evidence pertaining to Plaintiffs: left
shoulder injuries and limitations; right shoulder injuries and limitations; diagnosis of lumbar

9

stenosis; side effects from medications; mental and psychological impairments; impaired social
ftinctioning. and; impaired daily activities.

(Ia. at 15).

The Court will review the AU’s

consideration of each of these topics, in turn.
i.

Plaintiffs Left Shoulder Injuries and Limitations

At step two of the sequential evaluation process, the AU found that Plaintiff had the
following severe impairments: a disorder of the back; a disorder of the right shoulder; a disorder
of the right hip; and affective disorder (generalized anxiety/panic attacks). (R15). According to
Plaintiff, the ALl committed reversible error in failing to find that Plaintiffs left shoulder injuries
constituted a severe impairment at step two and by failing to explain her rationale in this regard.
(Pl.’s Mov. Br. at 15-17).
Defendant does not dispute that Plaintiff suffers from impairments to her left shoulder.
(See Def.’s Br. at 9). According to Defendant, “[a]lthough the AU did not find that Plaintiffs left
shoulder impairment was ‘severe’ at step two of the sequential evaluation process, this constitutes
harmless error because the AU considered Plaintiffs left shoulder impairment throughout the
remainder of the sequential evaluation process and assessed appropriate limitations of Plaintiffs
left shoulder in her residual functional capacity.” (Id.). The Court agrees.
“The step-two inquiry is a de minimis screening device to dispose of groundless claims.”

Newell v. Comm ‘r ofSoc. Sec., 347 f.3d 541, 546 (3d Cir. 2003). Therefore, even if the AU erred
with respect to one of the impairments that she found to be non-severe, such error would be
harmless as she found other impairments to be severe, engaged in the full five-step evaluation, and
accounted for related possible limitations in her RFC finding. See Saltes v. Comm ‘r qfSoc. Sec.,
229 F. Appx 140, 145 n.2 (3d Cir. 2007) (“Because the AU found in Salles’s favor at Step Two,

10

even if he had erroneously concluded that some of her other impairments were non-severe, any
error was harmless.” (citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)).
In this case, the AU did not find other impairments to be severe and therefore engaged in
the full five-step analysis. Additionally, the AU considered Plaintiffs left shoulder limitations as
follows:
Due to complaints of left shoulder pain, the claimant was referred for MRI studies.
A report dated October 28, 2013, of an MRI of the claimant’s left shoulder revealed
the following: marked injury and partial tear of the Subsoapularis Tendon; marked
extensive injury and partial tear of the Deltoid Muscle; no evidence of a complete
and pull thickness tear or complete retraction of fibers; supraspinatus tendinopathy,
with a probable element of calcific tendinitis; no evidence of full thickness tear of
the Rotator Cuff; subacromial bursitis; tenosynovitis of the long head of the Biceps
Tendon; and moderate size Glenohumeral Joint Effusion (Exhibit 34f, page 1-2).
During a follow-up office visit on October 18, 2011, Dr. Rubinfeld reported
that the claimant continued to complain of lower back pain and left shoulder pain.
However, upon examination, the claimant’s motor examination was noted to be full
and symmetrical; the claimant had normal muscle strength, tone and size
throughout her upper and lower extremities.

(R21). Moreover, the AU accounted for Plaintiffs left shoulder limitations in her RFC findings.
That is, the AU determined that Plaintiff can “perform no lifting of the left arm/shoulder to greater
than 90 degrees and only occasionally to 90 degrees.” (R16). Thus, although the AU did not
make a specific finding that Plaintiff had a severe impairment with respect to her left shoulder, the
Court finds this error to be harmless as the AU nevertheless considered Plaintiffs left shoulder
limitations thoughout her analysis. See Sattes, 229 F.App’x at 145, n.2.
II.

Plaintiff’s Right Shoulder Injuries and Limitations

Next, Plaintiff contends that the AU erred in “fail{ing] to attribute any disability or
limitations to the Plaintiffs right shoulder” despited finding, at step two, that Plaintiff suffered a
severe impairment to her right shoulder. (Pl.’s Mov. Br. at 17-18).

11

Specifically, Plaintiff notes that in the AU’s first unfavorable decision, which was
remanded by the Appeals Counsel, the AU determined that Plaintiff cannot perform a job “that
require[s] lifting of the right arm to no grater than 90 degrees and to 90 degrees only occasionally
(no restriction on the use of the left arm).” (Id. at 1$; R131). However, the AU’s second Opinion,
which Plaintiff now appeals, does not include this limitation to Plaintiffs right shoulder. (Id.).
In response, Defendant states that the AU appropriately accounted for Plaintiff’s right
shoulder limitations in her RFC by limiting her to “lift/carry 20 lbs. occasionally and 10 lbs.
frequently.” (Def.’s Br. at 10: R16). According to Defendant, “[t]he evidence did not justify any
additional right shoulder limitations.” (Id.).
Given the AU’s review of the record with respect to Plaintiffs right shoulder, the Court
finds that the AU’s RFC is supported by substantial evidence. Specifically, the AU detailed the
history of Plaintiffs right shoulder pain as follows:
The claimant also complained of right shoulder pain. MRI testing of the
claimant’s right shoulder revealed substantial tendinopathy of the supraspinatus
tendon with impingement and possible rotator cuff tear (Exhibit 22F). On March
25, 2011, the claimant underwent a right shoulder arthroscopic subacromal
decompression performed by Dr. Robert T. Goldman *Exhibit 25f), followed by a
course of physical therapy (Exhibits 26f and 27f).
On March 23, 2010, Dr. Phillip Rubinfeld, the claimant’s pain management
physician, completed a [RFCJ in which he opined that the claimant was able to: lift
and carry 20 pounds: stand and/or walk for up to 2 hours in an 8-hour workday and
sit for less than 6 hours in an 8-hour workday. Dr. Rubinfeld found that the claimant
had no limitations for pushing, pulling, handling objects, or traveling (Exhibit 1 4F).
The doctor reported that post-operative follow up visits indicated that she had
almost full range of motion of the right shoulder and improving strength; however,
in Dr. Rubinfeld’s opinion the claimant should avoid strenuous activity with the
right shoulder (Exhibit 26F).
In compliance with the Appeals Council Remand Order, updated medical
evidence was submitted in connection with the claimant’s supplemental hearing
held on November 6, 2013. This evidence included outpatient progress notes from
Dr. Rubinfeld indicating that the claimant had an excelLent outcome from the 2nd
series of nerve blocks and moderate relief from physical therapy (Exhibit 28F, page
4).
In April 2011, the claimant presented to Dr. Rubinfeld’s office. A[t] that
time, she reported that she had right shoulder arthroscopic surgery and that she was
.

..

12

doing well post-op. Her pain was noted to be controlled; her function was improved
(Exhibit 28F, page 8).
(R20-2 1).
Plaintiff has not offered evidence in the record (with the exception of the AU’s first
opinion) which would support her argument that the AU’s RFC was not supported by substantial
evidence. Instead, Plaintiff cites to her diagnosis of impingement syndrome of the right shoulder
with a partial rotator cuff and the March 2011 right shoulder arthroscopy. (Pl.’s Mov. Br. at 18).
As noted above, however, the AU considered Plaintiffs diagnosis and the corrective surgery.
However, the existence of a diagnosis and corrective procedure alone do not necessitate a
corresponding RFC finding, particularly where the record shows that the corrective procedure was
successful. See Saltes, 229 F. App’x at 145 (“In addition to the diagnoses, Salles was required to
present evidence that these limitations signijicanily limited her ability to do basic work activities
or impaired her capacity to cope with the mental demands of working.”) (emphasis in original)
(citing 20 C.F.R.

§ 404.1520(c), 404.1521(a); Ramirez v. Barnhart, 372 F.3d 546, 551 (3d Cir.

2004)).
iii.

Plaintiffs Diagnosis of Lumber Stenosis

Plaintiff further argues that the ALl erred in step three of the sequential evaluation. (Pl.’s
Mov. Br. at 19). At step three, the AU found that Plaintiff did not have an impairment or
combination of impairments that either met or medically equaled a listed impairment—
specifically, Sections 1.02 and 1.04 (Musculoskeletal Impairments). (Rl 5). The ALl found that
“[t]hese sections are not satisfied because, despite the clinical symptom of chronic pain and finding
of decreased lumbosacral range of motion, there has not been objective clinical or laboratory
evidence of nerve root compression, spinal arachnoiditis, lumbar spinal stenosis, or problems with

grip strength.” (Id.).
13

Plaintiff takes issue with the AU’s finding that “there has not been objective clinical or
laboratory evidence of.

.

.

lumbar spinal stenosis.” (Pl.’s Mov. Br. at 19; R15). Specifically,

Plaintiff references medical records of Dr. GeorgeS. Naseef, who examined Plaintiff on November
19, 2008, and wrote: “with regards to her lumbar sacral spine, she clearly has degenerative changes
most pronounced at L3-L4 and L4-L5 with central stenosis. She may be a candidate for epidural
steroid injections versus decompression of her L4-L5 stenosis

.

I do believe that her Si joint

pain and right-sided sciatic type symptoms are also an exacerbation of pre-existing disease.” (Pl.’s
Mov. Br. at 19; R498, 502).
In opposition, Defendant argues that “Plaintiff does not, and indeed cannot, argue that the
AU’s failure to note Dr. Naseefs 2008 diagnosis of lumbar spinal stenosis affected the AU’s
finding that Plaintiff did not meet or equal the criteria of listing 1.04.” (Def.’s Br. at 1 1). The
Court agrees.
“F or a claimant to show his impairment matches a listing, it must meet alt of the specified
medical criteria. An impairment that manifests only some of those criteria, no matter how severely,
does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see also Jones v. Barnhart, 364
F.3d 501, 504 (3d Cir. 2004). Flere, Plaintiff has not argued, either in her moving brief or in reply
to Defendant’s opposition, that any medical records relating to Dr. Naseefs 2008 diagnosis
support that she meets the criteria of listing 1.04. Instead, Plaintiffs argument rests solely upon
the existence of the diagnosis.
Additionally, Defendant argues, and Plaintiff does not dispute, that Plaintiff has not shown
how the ALl’s failure to find that Plaintiff was diagnosed with lumbar spinal stenosis altered the
ALl’s ultimately finding as to RF C. (Def.’s Br. at 12). “Plaintiff cannot make such an argument,”
Defendant contends, “because the AU’s decision fully accounted for all of Plaintiffs credibly-

14

established limitations.” (Id.). For example, at step two of the sequential evaluation, the AU
found that Plaintiffhad a severe “disorder of the back.” (Id.; Rl 5). Additionally, the AU’s finding
that Plaintiff suffered from a back disorder manifested in the AU’s finding as to R.FC. (Def.’s Br.
at 12). for example, the ALl limited Plaintiff to jobs to work that does not require “the use of
ladders, ropes or scaffolds; that require only occasional use of ramps or stairs; and that require
occasional balancing, stooping, frequent kneeling, occasional crouching, but no crawling.” (R16).
In summary, while Plaintiff states that the ALl did not reference Dr. Naseer’s diagnosis,
the Court finds that Plaintiff has failed to explain how this failure in any way altered the AU’s
ultimate finding that Plaintiff was not disabled.
iv.

Plaintiff’s Side Effects from her Medications

Next, Plaintiff argues that “[i]n assessing the Plaintiffs concentration, persistence or pace,
the AU failed to mention the Plaintiffs testimony regarding the negative and adverse impact that
her medications have upon her, including loss of focus and loss of attention.” (Pl.’s Mov. Br. at
20). Specifically, Plaintiff cites to her testimony with respect to the medications:
They make me stupid. Sometimes I watch television, I don’t know what I’m
watching. I’ve gained 40 pounds since the accident. I have tremendous problems
going to the bathroom. I’m incontinent in one way yet I’m always constipated from
the medicine the other way. They had me on Skelaxin for awhile but that made me
really nasty so they took me off of that. It’s just I never took pills before.
(Id.; R20). According to Plaintiff, “[t]he AU failed to attribute any diminution in the Plaintiffs
functioning to the adverse side-effects of the Plaintiffs medications.” (Pl.’s Mov. Br. at 20).
As with Plaintiffs argument as to her back diagnosis, Plaintiff has not explained how the
ALl’s failure to specifically mention her medication side effects in finding that Plaintiff had
“moderate” limitations with respect to concentration, persistence, or pace caused the AU to

15

erroneously find that Plaintiff was not disabled.2 Notably, Plaintiffs RFC accounts for her
difficulties in concentration, persistence, or pace by limiting Plaintiff to jobs that are
simple and repetitive; that permit concentration in two hour blocks and then a break;
that are low stress (that is, these jobs require only an occasional change in the work
setting during the work day, only an occasional change in decision making required
during the work day, and, if production based, production is monitored at the end
of the day rather than consistently throughout it); and that require only occasional
contact with supervisors, and co-workers, but no contact with the general public.
(R16). Thus, the Court finds that the AU did not err in specifically mentioning each of Plaintiffs
subjective complaints relating to side-effects from her medication. This is particularly the case
where the AU acknowledged Plaintiff’s testimony that she was experiencing side effects from her
medication and found Plaintiffs subjective complaints to be not entirely credible. (R17-18).
v.

Plaintiffs Mental and Psychological Impairments

Plaintiff argues that the AU erred at step three of the sequential evaluation process in her
evaluation that “[t]he severity of [Plaintiffs] mental impairment does not meet or medically equal
the criteria of listing 12.06.” (Rl5; Pl.’s Mov. Br. at 20-26). Specifically, Plaintiff maintains that
“[t]he AU failed to consider all relevant evidence about the Plaintiffs mental impairment.” (P1’s
Mov. Br. at 21).
The AU explained her finding that Plaintiffs mental impairment does not medically
equally listed impairment 12.06 as follows:
In making this finding, I have considered whether the “paragraph 3” criteria are
satisfied. To satisfy the “paragraph 3” criteria, the mental impairment must result
in at least two of the following: marked restriction of activities of daily living;
marked difficulties in maintaining social fianctioning; marked difficulties in
maintaining concentration, persistence or pace; or repeated episodes of
decompensation, each of extended duration. A marked limitation means more than
In her reply brief, Plaintiff argues that if the AU had specifically mentioned these side-effects in her opinion, then
she “would have been compelled by the medicaland credible evidence to increase her (the AU’s) assessment from
‘moderate’ to ‘marked restriction,’ thus rendering the Plaintiff fully disabled and entitled to total disability benefits.”
(P1’s Reply Br. at 9). However, as discussed in detail below, because the AU determined that Plaintiffs subjective
complaints were not credible, she was not required to accept these subjective complaints.

2

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moderate but less than extreme. Repeated episodes of decompensation, each of
extended duration, means three episodes within 1 year, or an average of once every
4 months, each lasting for at least 2 weeks.
(R15).
With respect to the first category—activities of daily living—the AU determined that
Plaintiff had a “mild restriction.” (Ri 6). Specifically, the AL) considered evidence in the record
supporting that Plaintiff “is independent in personal hygiene; she has no problems dressing herself.
She is able to make herself a light lunch; she is able to start supper. She is able to do laundry and
light shopping.” (Id.). The AU further noted Plaintiffs testimony that she is able to make the
bed, dust, wash dishes by hand (but unable to use the dishwasher), and is able to drive short
distances. (Id.). Finally, the ALl noted that Plaintiff “tries to walk for exercise.” (Id.).
Plaintiff argues that the ALl improperly “picked and cho[]se” evidence from the record to
support her finding that Plaintiff only had mild, as opposed to marked restriction in her activities
of daily living. (Pl.’s Mov. Br. at 24-26). That is, Plaintiff states that the ALl failed to consider
that Plaintiff has “bad days” and instead focused only on Plaintiffs capabilities on a good day.
(Id, at 24-25). Moreover, Plaintiff contends that even on a good day, her activities of daily living

are limited. (Id. at 25). For example, she is limited in her ability to lift and carry, she cannot carry
groceries from the trunk of her car to the house, she cannot put sheets on the bed, she cannot empty
the dishwasher, and she must avoid activities that cause her to bend lest her back get “stuck.” (Id.).
finally, Plaintiff argues that the ALl disregarded the testimony of Plaintiffs daughter relating to
Plaintiffs limited activities. (Id. at 24-25).
As Defendant notes, the ALl’s opinion specifically mentions the fact that Plaintiff has both
good and bad days. (Def’s Br. at 15; R18). The AL) stated that Plaintiff “reported that her
condition varied from day to day” (R17) and that “on ‘bad days,’ she stays in bed and cries.”

17

(R18). Additionally, it is apparent form the AU’s opinion that the ALl considered the testimony
of Plaintiffs daughter. (R18). Although the AU did not expressly recognize the limitations that
Plaintiff’s daughter testified to, the ALl did note that Plaintiff’s “daughter testified that she feels
that her mother is in pain; she stated that she tries to help her with the puppies and with lifting
things.” (R18).
As to the second category—the Plaintiffs limitations as to social functioning—the AU
found that Plaintiff had “moderate difficulties.”

(Rl6).

Specifically, the AU

stated that

“[ajithough [Plaintiffs] social circle is small, [Plaintiff] did not report any significant difficulties
in maintaining her social relationships.” (Ri 6).
Plaintiff argues that the AU overlooked relevant evidence in the record when she found
Plaintiff to suffer only moderately in the area of social functioning. (Pl.’s Mov. Br. at 23-24). for
example, Plaintiff cites to her testimony that she is short-tempered and has no interest in people,
and stays in bed some days. (Id.). Plaintiff also states that the AU overlooked evidence that
Plaintiffs relationships with her daughter and her boyfriend deteriorated after the accident. (Id. at
24).
In a later part of her opinion, the AU did note Plaintiffs testimony that her boyfriend does
not understand her pain, that she has had difficulties with her relationship with her boyfriend, and
that he has moved in and out of her house a number of times. (R17). The AU also noted Plaintiffs
testimony from the latest hearing that she now lives alone. (Ri 8). The Court is, however, slightly
troubled by the ALl’s failure to mention Plaintiffs daughter’s testimony as to the nature of her
and her mother’s relationship as that testimony does bear upon Plaintiff’s social functioning.
However, the Court finds that the AU’s determination that Plaintiff had only moderate difficulties
in social functioning is nevertheless supported by the record.

18

As Defendant notes, Plaintiff

reported that she has no trouble with authority figures (Def.’s Br. at 15; R335). Further, when
completing the Social Security Administration’s “Function Report-Adult” in March of 20W,
Plaintiff answered “no” to the question of whether she has “any problems getting along with
family, friends, neighbors, or others.” (R333).
Finally, the AU determined that Plaintiff has moderate difficulties with concentration,
persistence or pace. (Ri 6). The AU explained this determination:
As a result of her multiple orthopedic problems, [Plaintiff] stopped working; she
describes her finances as dire. She reported that she developed anxiety and panic
attacks, which contributed to her concentration difficulties (Exhibit 4E). However,
[Plaintiff] retains the concentration to perform the activities of daily living reported
above. Moreover, at the hearing, [Plaintiff] was able to answer all questions asked
of her in an appropriate and timely manner, thereby demonstrating a level of
concentration in the arguably stressful setting of a disability hearing.
(R16).
In addition to raising the above arguments with respect to the AU’s specific findings as to
areas of activities of daily living and social functioning, Plaintiff generally argues that the AU
overlooked evidence of her mental impairment which would have resulted in a finding of a marked
limitation in each of the above areas of mental functioning. (Pl.’s Mov. Br. at 20-23). Specifically,
Plaintiff states that the AU failed to consider the Plaintiffs testimony that she has had suicidal
ideation, her voluntary hospitalization that resulted in a diagnosis of Costochondritis and Anxiety,
the fact that Plaintiff takes Xanax for her panic attacks and used to take Cymbalta for depression,
and the testimony of Plaintiffs daughter relating to her relationship with her mothers. (Id.).
However, as Defendant points outs, “Plaintiffs medical records reveal no mental health
treatment apart from prescriptions for Xanax and Cyrnbalta from her primary care physician
([R141, 100). Plaintiffs recent medical records do not reflect prescriptions for any psychotropic
medications, including Xanax ([R]. 1186-89, 1193, 1197-1200, 1202-03, 1208-12). Although

19

Plaintiff alleges that the reason that she did not see a psychiatrist was that she did not want to
become like her schizophrenic sister (R82; Pl.’s Mov. Br. at 22) there is no evidence that Plaintiff
was ever referred for or required any additional mental health treatment.” (Def.’s Br. at 16).
Moreover, notwithstanding the AU’s findings that Plaintiff did not meet a listed
impairment at step three of her evaluation, the AU nevertheless accounted for Plaintiffs mental
limitations in issuing an RFC. That is, the ALl limited Plaintiff to jobs “that are simple and
repetitive; that permit concentration in two hour blocks and then a break; that are low stress (that
is, these jobs require only an occasional change in the work setting during the work day, and, if
production based, production is monitored at the end of the day rather than consistently throughout
it; and that require only occasional contact with supervisors, and co-workers, but no contact with
the general public.” (R16). Accordingly, the Court upholds the AU’s findings as to Plaintiffs
mental impairment as supported by substantial evidence.
C. Whether the AU Properly Assessed Plaintiffs Credibility

With respect to Plaintiffs credibility, the AU found, “[a]fter careful consideration of the
evidence,” that Plaintiffs “medically determinable impairment could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements concerning the intensity,
persistence, and limiting effects of these symptoms are not entirely credible..

.

.“

(Rl$). Plaintiff

argues that the AU failed to properly assess Plaintiffs credibility. (Pl.’s Mov. Br. at 26-27).
A subjective complaint alone cannot establish disability; objective medical evidence must
be provided. 20 C.F.R.

§

404.1528(a), 1529(a), 416.928(a); see also Frokopick v. Comrnr of

Soc. Sec., 272 F. Appx. 196, 199 (3d Cir. 2008) (“An ALl is permitted to reject a claimant’s
subjective testimony as long as he or she provides sufficient reasons for doing so.”). Instead, the
AU must consider “all of the available evidence” when evaluating the intensity and persistence of

20

a claimant’s symptoms, including objective medical evidence and a claimant’s statements about
her symptoms. 20 C.F.R.

§ 404.1529(c)(l), 416.929(c)(1); see also Hartranft v. Apfel, 181 F.3d

358, 362 (3d Cir. 1999) (“This obviously requires the AU 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.”). However, an AU is not required to accept Plaintiff’s testimony without question. The AU
has discretion to evaluate Plaintiff’s credibility and render an independent judgment in light of the
medical findings and other evidence regarding the true extent of the alleged symptoms. Ma Itoy
v. Comm ‘r ofSoc. Sec., 306 F. Appx. 761, 765 (3d Cir. 2009) (“Credibility determinations as to a
claimant’s testimony regarding pain and other subjective complaints are for the AU to make.”)
(citing Van Horn

v.

Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)).

Here, afier an extensive review of the medical evidence, the AU explained her credibility
determination as follows:
Careful consideration has been given to [Plaintiff’s] subjective complaints (S$R
96-7p). The [Plaintiff’s] allegations are not supported by the objective evidence in
the record to the degree claimed. Although [Plaintiff] claims that she cannot work,
in my opinion she reports rather significant activities of daily living. She is
independent in personal hygiene: she reports no problems in dressing herself. The
[Plaintiff] reported that she is able to make herself a light lunch: she is able to start
supper; she is able to do laundry and light shopping; she is able to make the bed by
straightening the comforter; she is able to drive short distances; she tries to walk
for exercise. Based upon the entire record, including the testimony of [Plaintiff], I
conclude that the evidence fails to support [her] assertions of disability.
(R22).
Plaintiff argues that the AU “failed to provide sufficient reasons to support her adverse
credibility finding.” (Pl.’s Mov. Br. at 26). In arguing that the AU erred in issuing her credibility
determination, Plaintiff relies upon her arguments, addressed above, that the AL] improperly
selectively chose evidence to rely on and improperly rejected the opinions of Dr. Rubinfeld.
However, because this Court has already addressed and rejected these arguments, the Court does
21

______,2017

not find these arguments as applied to the AU’s credibility determination to be persuasive. (Id.).
The Court is satisfied that the AU provided sufficient explanation as to her findings with respect
to the credibility of Plaintiffs subjective complaints.
D. Whether the AU
Vocational Expert

Appropriately Conveyed Plaintiff’s Limitations to the

Next, Plaintiff argues that the AU “failed to adequately convey the Plaintiffs credibly
established limitations in the hypotheticals to the vocational expert.” (Pl.’s Mov. Br. at 27-29).
According to Plaintiff, “[t]his error was a direct result of the AU’s previous errors, in which the
AL] impermissibly ‘picked and cho{]se’ evidence from the record to support her Unfavorable
Decision, while disregarding relevant evidence that corroborated Plaintiffs disability status.”
(Id.). However, the Court has already discussed and rejected these arguments, above, and therefore
is unpersuaded by Plaintiffs argument as the hypothetical questions posed to the Vocational
Expert.
V.

CONCLUSION

For the reasons stated herein, the Opinion of AU Donna Krappa dated May 5, 2014,
finding that Plaintiff “was not disabled under Sections 2 16(1) and 223(d) of the Social Security
Act” is affirmed. Plaintiffs appeal is denied. An appropriate Order accompanies this Opinion.
IT IS SO ORDERED.
DATED:

June

CHIEF JUDGE, U.S. DISTRICT COURT

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