TALBO v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION. Signed by Judge Jose L. Linares on 4/5/17. (sr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PATRICIA TALBO,
Civil Action No. 2:16-cv-01491 (JLL)
Plaintiff,
OPINION

V.

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

LINARES, District Judge.
Before this Court is Patricia Talbo (hereinafter “Plaintiff’ or “Claiinant”)’s appeal,
which seeks review of Administrative Law Judge (“AU”) Richard West’s denial of Plaintiffs
application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”) under the Social Security Act (the “Act”). The Court’s jurisdiction to review Plaintiffs
appeal falls under 42 U.S.C.

§ 405 (g) and pursuant to Local Civil Rule 9.1 (f) the Court resolves

this matter on the parties’ briefs. The Court has considered the submissions made in support
of and in opposition to the instant appeal and decides this matter without oral argument
pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the Court finds
that the AU’s decision is supported by substantial evidence and affirnis AU West’s determination.
I.

BACKGROUND’

“R.” refers to the Administrative Record, which uses continuous pagination and can be found at ECF No. 6.

Plaintiff applied to the Social Security Administration (the “Administration”) for a period
of disability and DIB as well as $51 on September, 26 2012, alleging disability beginning June 14,
2010. R. at 10; 190 -193. The Administration denied Plaintiffs claims on February 27, 2013 and
then upon reconsideration on June 13, 2013. Id. at 120

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29; 137

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141. In response, Plaintiff

requested an administrative hearing on June 2$, 2013; Plaintiffs request was granted and a hearing
was held before AU West on August 2$, 2014. Id. at 143; 26.
After the administrative hearing, AU West issued a decision on December 8, 2014,
rendering the Plaintiff not disabled under Sections 216 (i), 223(d) and 1614 (a)(3)(A) of the Social
Security Act (the “Act”). Id. at 20. Thereafter, Plaintiffrequested that the Appeals Council review
the administrative decision; this request was subsequently denied thereby affirming the AU’s
decision as the final decision of the Commissioner. Id. at 132, 134.

Requesting to proceed in

formapauperis, Plaintiff filed the instant appeal on March 15, 2016. ECF No. 1. The Court granted

Plaintiffs request to proceed as indigent on March 29, 2016. ECF No 2. On August 30, 2016,
Plaintiff filed a brief in support of the instant appeal (ECF No. 10, “P1.’s Br.”). In response, on
October 17, 2016, Defendant submitted a brief in opposition (ECF No. 13, “Opp’n Br.”).
In regards to the facts involved in this action, since the Court writes for the parties who are
familiar with the factual history of the case, the Court discusses below only the facts relevant to
the issues raised on appeal.
STANDARD OF REVIEW

II.

This court must affirm the AU’s decision if it is supported by substantial evidence.
U.S.C.

§

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405(g), 1383(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 “[iJt is less than a preponderance of the evidence but more than a mere scintilla.”

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Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). The “substantial evidence standard is a

deferential standard of review.” Id. The ALl is required to “set forth the reasons for his decision”
and not merely make conclusory unexplained findings. Burnett v. Comm ‘r of Soc. 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 factfinder.” Williams v. Sullivan, 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, 806 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
foniiat 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.
III.

THE FIVE STEP EVALUATION PROCESS TO DETERMINE DISABILITY
UNDER THE ACT

The Social Security Act authorizes the Administration to pay a period of disability,
disability insurance benefits and supplemental security income to disabled individuals. 42 U.S.C.
§sS 423 (a); 1382. Pursuant to the Act, disability is defined as the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental impainnent
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). A person is unable

to engage in substantial gainful activity when his physical or mental impairment(s) are “of such
severity that he is not only unable to do his previous work, but cannot, considering his age,
education, and work experience, engage in any other kind of work which exists in the national
economy.” 42 U.S.C.

§ 423 (d)(2)(A).
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The Regulation promulgated under the Act sets forth a five-step process to be used by the
AU to determine whether or not the claimant is disabled within the meaning of the Act. 20 C.F.R.

§ 404.1520(a)(1), 416.920(a)(1). The claimant bears the burden of proof at steps one through
four whereas the Administration bears the burden at step five. Poulos v. Comm ‘r ofSoc. Sec., 474
F. 3d 88, 92 (3d Cir. 2007) (citing Ramirez v. Barnhart, 372 F. 3d 546, 550 (3d Cir. 2004)). The
first step in the sequential evaluation process requires that the AU determine whether the claimant
is currently engaged in substantial gainful activity. 20 C.F.R.

§ 404.1520 (a). If it is found that

the claimant is engaged in substantial activity, the disability claim will be denied. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). Alternatively, if it is found that the claimant is not engaged in
substantial gainful activity the evaluation proceeds to step two. Id. At step two, the AU must
determine whether the claimant suffers 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.
However, if the ALl finds that the showing indicates claimant’s disability is severe, the analysis
proceeds to step three.

At step three, the AU then evaluates whether the claimant’s severe

impairment is listed or is equivalent to an impairment set forth by the Code. 20 C.F.R.

§ 404.1520

(d). If a claimant does not suffer from a listed impairment or its equivalent, the analysis proceeds
to step four. Step four requires that the AU make specific findings of fact as to the claimant’s
residual functional capacity and also as to the mental and physical demands of the claimants past
relevant work. Afler both of these findings are made, the AU must compare the RFC to the past
relevant work to determine whether Claimant retains the RFC to perform the 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 at step four, the
evaluation indicates that the claimant is unable to resume past relevant work or any employment

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history does not qualify as past relevant work, the evaluation moves to step five. Jones, 364 F.3d
at 503. The final step shifts the burden of proof to the “Administration to show that the claimant
is capable of performing other jobs existing in significant numbers in the national economy,
considering the claimant’s age, education, work experience and [RFC].” Ramirez, 372 F.3d at
551; 20 C.F.R.

§ 404.1520(f). 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 503.
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:
[M]edical signs and findings, established by medically acceptable
clinical or laboratory diagnostic techniques, which show the
existence of a medical impairment that results from anatomical,
physiological, or psychological abnormalities which could
reasonably be expected to produce the pain or other symptoms
alleged and which, when considered with all evidence required to be
would lead to a conclusion that
furnished under this paragraph.
the individual is under a disability.
.

Jo.; see 42 U.S.C.

.

§ 13$2c(a)(3)(A). Factors to consider in deteniuining 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.

Iv.

§ 404.1527(c).

DISCUSSION

After administering the five-step evaluation process, ALl West concluded that the Plaintiff

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was not disabled as defined by the Act. At step one, the AU found that Plaintiff had not engaged
in substantial gainful activity since June 14, 2010 the alleged date of onset. R. at 12. At step two,
AU West found that Plaintiff suffered from “the following severe impairments: degenerative disc
disease, anxiety and depression (20 C.F.R.

§ 404.1520 (c) and 416.920 (c)).” However, at step

three, the AU determined that these impairments or a combination of these impairnents neither
met nor medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
SubpartP, Appendix 1(20 C.F.R.

§ 404.1520 (d), 404.1525,404.1526,416.920(d), 416.925 and

416.926). Id. at 13. Before proceeding to step four, AU West asserted that the Plaintiff had the
RFC to perform light work as defined in 20 C.F.R.

§ 404.1567 (b) and 416.967 (b) with the

exception of driving as part of her employment responsibilities.

Id. at 14.

The AU also

detern-iined that the Plaintiff is able to understand, remember and carry out simple instructions in
a sustained basis, is able to have occasional interaction with the general public, coworkers and
supervisors, and can sustain only occasional changes to her essential job functions. Id. at 14. Next,
at step four, AU West found that the Plaintiff is unable to perform any past relevant work (20
C.F.R.

§ 404.1565 and 4 16.965). At this final step, afier consideration of the entire record, AU

West determined that there are jobs that exist in significant numbers in the national economy that
Plaintiff can perform (20 C.F.R.

§ 404.1569, 404.1569(a), 416.969 and 416.969(a)). Id. at 19.

In making the final determination, the AU also heard testimony of vocational expert, Ms. Tanya
Edgehill. Id. at 62

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66. Ms. Edgehill opined, taking into account all the factors, that the Plaintiff

would be able to perform the requirements of the following occupations: ticket printer (DOT #
652.685-094)(120,000 jobs nationally), inspector hand packager (DOT # 559.687-074)(20,000
jobs nationally), and gannent folder (DOT # 789.687-066)(150,000 jobs nationally). Id. at 19.
Pursuant to SSR OO-4p, AU West found that the vocational expert’s testimony was consistent with

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the information in the Dictionary of Occupational Titles and that based on said testimony, and in
consideration of the Plaintiffs age, education, work experience and RFC, the Plaintiff is capable
of making a successful adjustment to other work that exists in significant numbers in the national
economy and therefore a finding of not disabled is appropriate ttnder the frame-work. Id. at 20.
Plaintiff argues that AU West’s determination at Step Three and findings regarding Plaintiff’s
RFC are not supported by substantial evidence. For the reasons discussed below, the Court finds
that substantial evidence support AU West’s findings.
A. The AU’s Findings at Step Three Are Supported by Substantial Evidence

Plaintiff argues that the AU’s Step Three findings are not supported by substantial
evidence because the AU’s decision failed to include analysis which “combine[d] all severe
impairments and cornpare[d] the joint effect of all impairments against one of the commissioner’s
listings to detennine medical equivalence.” Pl.’s Br. 1$. Plaintiff asserts that she is the psychiatric
equivalent of Paragraph 12.04 and 12.06 of the commissioner’s listings and further proceeds to
support this argument with the following reasons:
[The] psychiatric progress notes finds [sic] Plaintiff ‘depressed, overwhelmed, anxious,
The
panic attack, poor concentration and focus, agitation, poor sleep, irritability.’
second and final reason is that: ‘at the consultative examination, the claimant testified she
was generally capable of conducting her own life.’ Omitted from this ‘testimony’ to the
Commissioner’s orthopedic examiner was that plaintiff ‘lives with parents’ couldn’t attend
this appointment alone and that ‘she is generally capable of conducting her own life, but
sometimes need help.’
...

Id. 10

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11.

Plaintiff argues that “[t]he decision pretty much concedes the A criteria of both

listings (12.04 and 12.06) by ignoring them completely.” Id. 20. The Court finds this contention
to be without merit.
In Jones, the Third Circuit made clear that Burnett “does not require the AU to use
particular language or adhere to a particular format in conducting his analysis,” so long as the AU

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provides sufficient analysis “to permit meaningful review.” Jones, 364 F.3d at 505; see also
Scuderi v. Comm’r of Soc. Sec., 302 F. App’x 88, 90 (3d Cir. 200$) (“[Am

AU need not

specifically mention any of the listed irnpairnents in order to make a judicially reviewable finding,
provided that the AU’s decision clearly analyzes and evaluates the relevant medical evidence as
it relates to the Listing requirements.”); Klangwald v. Comm ‘r ofSoc. Sec., 269 F. App’x 202, 204
(3d Cir. 2008) (“After broadly concluding that [the claimant] ‘has no impairment, which meets the
criteria of any of the listed impainhients,’ the AU followed this conclusion with a searching review
of the medical evidence. Under our precedents, this is sufficient.”) Notwithstanding, here, AU
West’s decision not only mentioned the listed impairments but also assessed the Plaintiffs relevant
medical evidence as it relates to the criteria of the listings. For example, AU West sets forth that:
[T]he evidence fails to establish any of the requirements under listing 1.04 for disorders of
the spine. Specifically, the evidence fails to establish a disorder of the spine which has
resulted in compromise of a nerve root (including the cauda equine) or the spinal cord with
evidence of nerve root compression or spinal arachnoiditis or lumbar spinal stenosis
resulting in pseudoclaudication, established by findings or appropriate medically
acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting
in an inability to ambulate effectively, as defined in 1 .OOB2b.
R. at 13. Furthermore, the AU’s decision later includes a robust analysis of the medical evidence
and opinion evidence as deemed sufficient by the Third Circuit. See Id. at 14

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1$. The AU’s

Opinion sets forth that:
The severity of claimant’s mental impairments, considered singly and in combination, do
not meet or medically equal the criteria of listings 12.04 and 12.06. In making this finding,
the undersigned has considered whether the ‘paragraph B’ criteria are satisfied. To satisfy
the ‘paragraph B’ criteria, the mental impairments must result in at least two of the
following: marked restriction of activities of daily living; marked difficulties maintaining
social functioning; marked difficulties in maintaining concentration, persistence or pace;
or repeated episodes of decompensation, each of extended duration. A marked limitation
means more than 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.
Id. at 13. In light of the foregoing, AU West continues by taking into account and assessing the
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Plaintiffs activities of daily living, social functioning, “concentration, persistence or pace” and
any episodes of decompensation. Id. For example, the AU’s deterniination that Plaintiffs daily
living is moderately restricted was based on Plaintiffs testimony during which Plaintiff asserted
that “she sometimes does not get out of her bed clothes,” the record which described the Plaintiff
as appropriately dressed and groomed, and the records from the consultative examination during
which the Plaintiff testified that she was generally capable of conducting her own life. Id.

For

the reasons discussed above, the Court finds that AU West’s determination at Step Three is
supported by substantial evidence.
B. Substantial Evidence Supports the AU’s RFC Determination

Plaintiff argues that the AU’s RFC finding is not based on substantial evidence and that
the AU fails to explain the basis for the limitations assigned. See Pl.’s Br. 21.

The Court finds

this general attack on the adequacy of the AU’s RFC explanation to be without merit. The RFC
is an administrative finding that the AU

is solely responsible for determining, based on

consideration of the record as a whole. See 20 C.F.R.

§ 404.1527(e). In making the RFC

determination, the Third Circuit has made clear that an AU is not required “to adhere to any set
format for explaining his [or her] analysis so long as there is ‘sufficient development of the record
and explanation of findings to permit meaningful judicial review.” Garrett, 274 F. App’x at 16263 (quoting Jones, 364 F.3d at 505). While the AU here did not explain his RFC finding in the
manner suggested by Plaintiff, AU

West provided detailed findings related to Plaintiffs

limitations and referenced the state examiner opinions and other medical evidence which are
consistent with his RFC findings. See R. at 14

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1$.

AU West provided sufficient analysis in

regards to both Plaintiffs mental and physical impairments. For example, the AU’s analysis
considers, among other evidence, the Plaintiffs physical therapy history beginning in September

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2012, MRI results performed in October 2012, a consultative examination with Dr. Justin
Fernando, M.D. from January 2013, records from Mountainside hospital during which Plaintiff
sought treatment for anxiety and depression in August 2012, and evaluations from February
through April of 2013 assessing Plaintiffs mental health. See Id.
Additionally, Plaintiff argues “that the AU’s construction of hypothetical questioning to
the [vocational expert], on the basis of a conclusory, non-evidentiary RFC did not include all of
plaintiffs credibly established mental limitations, even those found earlier in [the] decision. Here,
because the AU failed to construct a hypothetical which reasonably conveyed the extent of
plaintiffs limitations, the [vocational expert]’s answer to those hypotheticals cannot constitute
substantial evidence to support the AU’s step five denial of benefits.” Pl.’s Br. 31. Plaintiff
further asserts that “[h]ypothetical questions based on that RFC cannot satisfy the Commissioner’s
step 5 burden.” Id. The Court does not agree and determines that AU West took into account
Plaintiffs medically established impainnents while posing the hypothetical questions to the
vocational expert. See Id. at 62

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64. Moreover, an AU’s hypothetical question need not include

“every impairment alleged by a claimant,” but only those that are “medically established.”
Rutherford v. Barn/tart, 399 F.3d 546, 554 (3d. Cir. 2005) (emphasis in original). To the extent

that Plaintiffs attack on the hypothetical is that all his alleged impairments were not addressed, he
in essence is making another attack on the RFC finding itself (see Id. at 554 n.8), which the Court
has already rejected. Therefore, the Court finds that the AU’s hypothetical adequately captured
all of Plaintiffs medically established impairments. For the reasons discussed herein, substantial
evidence supports the AU’s Rf C determination.

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V.

CONCLUSION
Afier reviewing the administrative record in its entirety and in light of the foregoing, the

Court finds that the AU’s detenTlination that the Plaintiff is not disabled is supported by substantial
evidence. Accordingly, AU West’s decision is affirmed. An appropriate Order follows this
Opinion.

DATED: April

J$2Ol7

JOWL. LINARE$
TED STATES DISTRICT JUDGE

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