Filing 20

OPINION. Signed by Judge Claire C. Cecchi on 9/22/17. (DD, )

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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MARK G. LIGUORI, Civil Action No.: 2:16-cv-1504 (CCC) Plaintiff, OPINION v. COMMISSIONER OF SOCIAL SECURITY, Defendant. CECCHI, District Judge. Before the Court is Plaintiff Mark G. Liguori’s (“Plaintiff’) appeal seeking review of a final determination by the Commissioner of the Social Security Administration (“Commissioner”) denying his 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 the Administrative Law Judge (“AU”) is affirmed in part, vacated in part, and the matter is remanded for further proceedings consistent with this Opinion. I. BACKGROUND A. Procedural Background On July 17, 2012, Plaintiff applied for DIB, alleging disability as of March 17, 2012 due to anxiety/panic disorder and pain in his lower back, lefi hand, leg, and shoulder. Tr. at 14, 17176, 192. The application was denied initially on December 18, 2012, and upon reconsideration on March 3, 2013. Id. at 109-17. On April 7, 2014, a hearing was held before AU Elias feuer. Id. at 29-80. AU Feuer issued a decision on August 5, 2014 finding Plaintiff was not disabled, as defined by the SSA. Id. at 14-24. Plaintiff requested review of the decision and the Appeals Council denied the request on January 20, 2016. Id. at 1. On March 17, 2016, Plaintiff instituted this action. ECFNo. 1. B. Factual Background Plaintiff was born on February 11, 1964 and has a high school education. Tr. at 82, 192. Plaintiff testified that he typically spends his days in his apartment alone unless he has a doctor’s appointment. Id. at 52-54. Plaintiff had a license to work in the gaming industry in New Jersey and Florida, and worked as a cashier, line cook, casino dealer, pit supervisor, and dealt craps from 1991 until March 17, 2012. Id. at 34-41, 192-93. Plaintiff testified he was terminated for excessive absenteeism due to anxiety and pain in his back, shoulder and hands. Id. at 44-46. Plaintiff testified that he does not take medication for his physical ailments, but he does take medication to treat his anxiety, specifically Seroquel, Celexa, and Xanax. Id. at 50-52. Plaintiff was in a car accident in 2008, and subsequently underwent treatment with a number of medical professionals. Id. at 329-30. Plaintiff underwent a series of lumbar epidural injections in 2009 for pain management following a neurosurgical evaluation and right rotator cuff surgery. Id. at 330, 336. From September to November in 2011, Plaintiff attended eighteen physical therapy sessions. Tr. at 54, 444-92. Dr. Richard Wilbur indicated Plaintiff had returned to work by November 11, 2011. Tr. at 336. Plaintiff testified that he sees a social worker on a monthly basis to help him cope with his anxiety and a doctor for medication management once every three months. Tr. at 66-67. II. LEGAL STANDARD A. 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] 2 own factual determinations,” but must give deference to the administrative findings. Chandler v. Comm ‘r ofSoc. Sec., 667 f.3d 356, 359 (3d Cir. 2011); 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. 1978) (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 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 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. 4:08-1676, 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. Cruz v. Comm ‘r ofSoc. Sec., 244 F. App’x 475, 479 (3d Cir. 2007) (citingHartranftv. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)). B. Determining Disability Pursuant to the SSA, in order to be eligible for benefits, a plaintiff must show he 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), 1382c(a)(3)(A). Taking into account the plaintiff’s age, education, and work experience, disability will be evaluated by the plaintiffs ability to engage in his previous work or any other form of substantial gainful activity existing in the national economy. 42 U.S.C. 3 § 423(d)(2)(A), 1382c(a)(3)(B). A person is disabled for these purposes only if his physical or mental impairments 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 substantial gainful work which exists in the national economy. . . .“ 42 U.S.C. § 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 dr. 2000) (citing Heckler v. Campbell, 461 U.S. 452, 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), 1382(a)(3)(D). C. 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 AU must determine whether the plaintiff is currently engaged in gainful activity. Sykes, 228 f.3d at 262. Second, if he is not, the AU determines whether the Plaintiff has an impairment that limits his ability to work. Id. Third, if he 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. Id. If the impairment is not in the Listings, the AU must determine how much residual functional capacity (“RFC”) the applicant retains in spite of his impairment. Id. at 263. Fourth, the AU must consider whether the plaintiffs RFC is enough to perform his past relevant work. Id. Fiflh, if his RFC is not enough, the AU must determine whether there is other work in the national economy the 4 plaintiff can perform. Id. The evaluation continues through each step unless it is determined at any point the plaintiff is or is not disabled. 20 C.F.R. § 404.1520(a)(4), 4l6.920(a)(4). The plaintiff bears the burden of proof at steps one, two, and four, upon which the burden shifts to the Commissioner at step five. Sykes, 22$ F.3d at 263. Neither party bears the burden at step three. Id. at 263 n.2. III. DISCUSSION A. Summary of the AU’s Findings At step one, the ALl found Plaintiff met the insured status requirements of the SSA and had not engaged in substantial gainful work activity since the application date. Tr. at 16. At steps two and three, the AU found Plaintiffs impairments of degenerative disc disease in the lumbar spine, status post shoulder surgery for bone spurs in 2011, obesity, anxiety, and depression were “severe,” but not severe enough to meet, either individually or in combination, any of the impairments listed in 20 C.FR. § 4014, Subpart P, Appendix I. Id. at 16. The ALl concluded Plaintiff had the residual functional capacity (“RFC”) to perform the exertional demands of a limited range of light work as defined in 20 C.F.R. § 404.1567(b), except, inter alia, Plaintiff “is limited to performing simple, routine, repetitive tasks and making simple work-related decisions.” Id. at 19. In making this finding, the AU considered all of Plaintiffs symptoms and their consistency with the evidence. Id. Specifically, the ALl took into consideration Plaintiffs and Plaintiffs sister’s statements indicating that Plaintiffs symptoms limit his physical abilities and that Plaintiff suffers from anxiety and panic attacks. Id. at 19-20. The ALl found that the statements of Plaintiff and Plaintiffs sister concerning the intensity, persistence, and limiting effects of his symptoms were not fully credible as inconsistent with medical evidence of clinical findings and diagnostic tests. Id. at 22. The AU considered Dr. A.J. 5 Candela’s clinical findings and consultative evaluation, Dr. Alexander Golin’ s assessment based upon Plaintiffs file, Dr. Monica Lintott’ s affirmation of Dr. Golin’ s findings, Dr. Wilbur’s records regarding treatment prior to the alleged onset date of disability, and the physical examination findings completed by Frank A. Rotella, D.O. Additionally, the AU concluded that “[gJiven the allegedly debilitating nature of [Plaintiff sj pain, his failure to pursue some sort of medical treatment for his symptoms tend[s] to undermine the credibility of his allegations.” Id. At step four, the AU found that Plaintiffs RFC is not enough to perform his past relevant work as a line cook, cashier, and casino dealer. Id. at 22-23. At step five, the ALl found there were jobs in significant numbers in the national economy Plaintiff could perform. Id. at 23-24. The AU identified these as: ticket taker, messenger, and advertising-material distributor. Id. B. Analysis Plaintiff makes the following arguments in support of his contention that the ALl’s decision should be remanded: (1) the AU found a “severe” impairment of obesity at step two, but failed to consider obesity at all subsequent steps; (2) the AU erred in failing to give any consideration to the observations of Plaintiffs physical therapist; and (3) the AU did not sufficiently evaluate Plaintiffs panic attacks in the RFC. See Plaintiffs Brief (“P1. Br.”) ECF No. 17. The Court will address each argument in turn. 1. The AU Failed to Consider Plaintiffs Obesity at Step Three Plaintiff argues the Court should remand due to the AU’s failure to evaluate Plaintiffs obesity in accordance with Social Security Ruling (“SSR”) 02-Olp, 2002 SSR UEXIS 1 (Sept. 12, 2002). The Third Circuit addressed this issue in Diaz v. Commissioner ofSocial Security, where the AU found obesity was a severe impairment at step two, but failed to assess the impact of obesity on the plaintiffs other impairments at step three. 577 f.3d 500, 503 (3d Cir. 2009). The 6 court determined that “an AU must meaningfully consider the effect of a claimant’s obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step.” Id. at 504. In assessing the impact of claimant’s obesity, the AU must discuss the evidence and explain his reasoning in a manner that would be “sufficient to enable meaningful judicial review.” Id. Here, the AU found Plaintiff’s obesity was a “severe” impairment at step two, but failed to mention obesity at the subsequent steps. As the Court remands on other grounds, as explained below, to the extent the Court cannot provide meaningful review of the AU’s consideration of Plaintiffs obesity, on remand, the AU should consider the effects of Plaintiffs obesity in combination with his other impairments at step three and all subsequent steps. 2. The AU Failed to Explain the Weight Given to Records of Plaintiffs Physical Therapist Plaintiff argues the AU erred in failing to give any consideration to Plaintiffs physical therapist. P1. Br. at 10. “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 AU 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 [he] rejects.” Plummer v. Apfel, 186 f.3d 422, 429 (3d Cir. 1999) (internal citation omitted). See also Logan v. Colvin, No. 14-4571, 2015 WL 5722391, at *7 (D.N.J. Sept. 29, 2015) (finding “[t]he role of the District Court in reviewing an ALl’s denial of disability benefits is not to reweigh the evidence presented, but instead to determine whether the AU made a decision supported by substantial evidence”). Plaintiff argues the AU failed to consider evidence of Plaintiffs physical therapist, Eric 7 J. Quick with whom Plaintiff had over a dozen sessions and his records which include Plaintiffs subjective pain levels and indicated progress immediately preceding the alleged onset date of disability. P1. Br. at 10. The Commissioner argues these records are not probative, as Plaintiffs physical therapy ended in November 2011 and the alleged onset date is March 17, 2012. Defendant’s Brief, ECF No. 18, at 9. However, the regulations require that an AU “develop [Plaintiffs] complete medical history for at least the 12 months preceding the month in which” Plaintiff files an application. 20 C.F.R. § 404.15 12(d). Moreover, in Giese v. Commissioner of Social Security, 251 Fed. Appx. 799, 804 (3d Cir. 2007), the Third Circuit found that exclusion of evidence prior to an alleged onset date was held to have been proper when the AU provid ed an explanation as to why at least some of the evidence predating the onset date would not be afforded substantial weight. See also O’Donnell v. Astrue, 10-1478, 2011 U.S. Dist. LEXIS 87382, at *20.. 22, 2011 WL 3444194 (W.D. Pa. Aug. 8, 2011). Whereas here, the AU did not provid e a discussion of Plaintiffs physical therapy records, the Court cannot provide meaningful judicia l review of the AU’s consideration of this evidence. Accordingly, on remand, the ALl should provide a sufficient explanation as to the evaluation of Plaintiffs physical therapy records. 3. The AU Properly Considered Plaintiffs Complaints of Panic Attacks Plaintiff argues that the AU erred in failing to indicate why Plaintiffs panic attacks would not have an adverse vocational impact and fails to account for occasional daytime attacks in evaluating Plaintiffs RFC. P1. Br. at 14. The Court finds the ALl properly considered Plaintiffs subjective complaints, and sufficiently articulated why he found Plaintiffs statements to be only partially credible. Tr. at 19-22. A plaintiffs allegations, standing alone, will not establish he is disabled. See 20 C.F.R. § 404.1529(a) (“[S]tatements about your pain or other symptoms will not alone establish that you 8 are disabled.”). When evaluating credibility, the AU must consider the extent to which the claimant’s self-reported symptoms can “reasonably be accepted as consistent with the objecti ve medical evidence and other evidence.” Id. The claimant’s treatment history and daily activit ies are relevant factors in assessing credibility. Id. § 404.1 529(c)(3). The ALl, as the factfinder, determines whether the plaintiffs subjective complaints are consistent with the objective medical evidence and, if not, the AU may discount them. Id. § 404.1529(a). Where the ALl “has articulated reasons supporting a credibility determination,” and substantial evidence suppor ts the AU’s findings, that determination will be entitled to “great deference.” See Horod enski v. Comm ‘r of Soc. Sec., 215 F. App’x 183, 188-89 (3d Cir. 2007) (quoting Ati. Limousine, Inc. v. NLRB, 243 F.3d 711, 718 (3d Cir. 2001)) (internal quotation marks omitted); Vancord v. Cotvin, No. 13-27, 2014 WL 585413, at *2 (W.D. Pa. Feb. 14, 2014) (“[U]nder a deferential substa ntial evidence standard of review, it is particularly inappropriate to second guess such credibi lity determinations.”). Here, the AU expressly considered Plaintiffs and Plaintiffs sister’s testimony as to Plaintiffs panic attacks, including Plaintiffs statement as to the worsening and increas ing frequency of the panic attacks. Tr. at 20. However, in addressing Plaintiffs testimony on these issues, the AU found that the statements concerning intensity, persistence, and limiting effects were not fully credible, as the medical evidence was not consistent with the severity of sympto ms and the degree of limitations with regard to his physical impairments. Id. Specifically, the AU indicated Dr. Candela’s report stated Plaintiffs panic attacks “would not significantly interfe re with his mental ability to perform basic work activities,” that his panic attacks occur mostly at night when he is alone, last about five minutes, and that Plaintiff “indicated that his panic attacks were alleviated almost immediately after he takes his medications[.]” Id. 9 Further, the AU sufficiently explained that he “grant{ed] significant weight to []the opinion of Dr. Cande la because his clinical findings support his assessment and because his assessment is consistent with the record as a whole.” Id. Accordingly, the ALl’ s analysis of Plaintiff’s panic attacks was suppor ted by substantial evidence. IV. CONCLUSION For the foregoing reasons, the Court will affirm in part and vacate in part the ALl’s decision and remands this case for further administrative proceedings consistent with this Opinio n. An appropriate order accompanies this Opinion. Dated: , 2017 CLAIRE C. CECCHI, U.S.D.J. 10

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