KING v. COMMISSIONER OF SOCIAL SECURITY

Filing 11

OPINION. Signed by Judge Jose L. Linares on 5/1/17. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICHARD D. KING, JR.,

Civil Action No. 2:1 6-cv-29 16 (JLL)
Plaintiff,
OPINION

V.

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Defendant.

LINARES, District Judge.
Before this Court is Richard D. King, Jr. (hereinafter “Plaintiff’ or “Claimant”)’s
appeal, which seeks review of Administrative Law Judge (“AU”) Leonard Olarsch’s denial
of Plaintiff’s application for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“$51”) under the Social Security Act (the “Act”).
Plaintiffs appeal falls under 42 U.S.C.

The Court’s jurisdiction to review

§ 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 7$. For the reasons set forth below, the
Court finds that the AU’s decision is supported by substantial evidence and affirms AU
Olarsch’s determination.

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I.

BACKGROUND1
On May 3, 2012, Plaintiff filed a Title II and Title XVI application with the Social

Security Administration (the “Administration”) claiming a period of disability and seeking DIB
and SSI. R. at 26. Plaintiff alleges an onset date of September 27, 2010. Id. Both claims were
denied initially on September 11, 2012 and then upon reconsideration on March 17, 2013. Id. at
88

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151.

Plaintiff then requested a hearing on May 10, 2013. Id. at 185

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86. A hearing was

held on May 28, 2014 in Newark, New Jersey during which the Plaintiff and vocational expert
Tanya Edghill (“Ms. Edghill”) provided testimony. Id. at 40

—

87.

In light of the administrative hearing, AU Olarsch issued a decision on September 30,
2014 finding the Plaintiff not disabled under sections 216(i), 223(d), and 1614 (a)(3)(A) of the
Act. Id. at 23-29. Thereafter, Plaintiff requested that the Appeals Council review AU Olarsch’s
decision; this request was subsequently denied thereby affirming the AU’s decision as the final
decision of the Commissioner. Id. at 1-6.
Plaintiff filed the appeal currently pending before this Court on May 23, 2016. (ECF No.
1, “Compl.”). A brief was filed by the Plaintiff in support of the instant appeal (ECF No. 9,
“Pl.’s Br.”) on October 31, 2016. In response, on October 17, 2016, Defendant submitted a brief
in opposition (ECF No. 10, “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.
II.

STANDARD OF REVIEW
This court must affinTi the AU’s decision if it is supported by substantial evidence.

U.S.C.

§

42

405(g), 1383(c)(3); Sykes v. Apfel, 22$ f.3d 259, 262 (3d Cir. 2000). “Substantial

“R.” refers to the Administrative Record, which uses continuous pagination and can be found at ECF No. 5.

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evidence means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion,” and

“[ut

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).

The “substantial evidence

standard is a deferential standard of review.” Id. The AU 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 fact-finder.” 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 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.
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.

§ 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
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). 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
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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 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. §S 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 of Soc.
Sec., 474 F. 3d 88, 92 (3d

2004)).

Cir. 2007) (citing Ramirez v. Barnhart, 372 F. 3d 546, 550 (3d Cir.

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. Yttckert, 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 AU 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. After 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.

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§ 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 history does not qualify as past relevant work, the
evaluation moves to step five. Jones, 364 f.3d at 503. The final step shifis 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:
[Mjedical 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
would lead to a conclusion
be furnished under this paragraph
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).

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IV.

DISCUSSION
Afier applying the five-step evaluation process, AU Olarsch determined that the Plaintiff

had not been under a disability within the meaning of the Act from September 27, 2010 through
the date the administrative decision was issued on September 30, 2014. R. at 26, 34. At step
one, the ALl found that Plaintiff had not engaged in substantial gainful activity since September
27, 2010, the alleged date of onset. Id. at 28. At step two, ALl Olarsch found that Plaintiff
suffered from “the following severe impairments: spine disorders, affective disorders, [and]
anxiety disorders (20 C.F.R. 404.1520(c) and 416.920(c)).” Id. However, at step three, the AU
determined that these impairments or a combination of these impairments neither met nor
medically equaled the severity of one of the listed impairnients in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R.

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

416.926). Id. Before proceeding to step four, ALl Olarsch 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) except can stand

and walk four hours, perform frequent postural maneuvers, occasional bending; no climbing of
ladders, ropes or scaffold; frequent rotating of neck and raising right anti above shoulder, limited
to simple, routine, repetitive, tasks, off task 10 percent of workday.” Id. at 30.

Next, at step

four, AU Olarsch found that the Plaintiff is unable to perform any past relevant work (20 C.F.R.
§S 404.1565 and 416.965). Id. at 32.

At the final step, afler considering the Plaintiffs age,

education, work experience and residual functional capacity, AU Olarsch 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 33.

In making the final

determination, the AU also took into account the testimony of vocational expert Ms. Tanya
Edghill. Id. at.

Ms. Edghill testified that jobs exist in the national economy that an individual

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with the claimant’s age, education, work experience and Rf C would be capable to perform. Id.
These occupations include: telemarketer (DOT code 299.357-014, sedentary, semi-skilled SVP
3) without over 200,000 such jobs existing nationally, labeler (DOT code 920.687-126, light,
unskilled SVP 2) with over 170,000 positions existing nationally, officer cashier (DOT code
211.462-010, light, unskilled $VP 2) with over one million jobs existing nationally, and ampoule
filler (DOT code 559.685-018, light, unskilled SVP 2) with over 100,000 such jobs existing
nationally. Id. Pursuant to SSR OO-4p, AU Olarsch found that the vocational expert’s testimony
was consistent with 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 under the
framework. Id. at 33. Plaintiff sets forth two arguments in support of his appeal. First, Plaintiff
asserts that AU

Olarsch’s failed to properly weigh the medical evidence and to properly

determine his RFC. Pl.’s Br. 15.

Secondly, Plaintiff avers that the AU failed to properly

evaluate his credibility. Id. 21. The Court finds Plaintiffs arguments unpersuasive and for the
reasons discussed below finds that substantial evidence supports AU Olarsch’s findings.
A. AU Olarsch’s Properly Weighed the Medical Evidence in Rendering the
RFC Finding

Plaintiff challenges the RFC determination by arguing that AU Olarsch failed to give the
treating physicians’ opinions great weight and therefore the AU failed to properly determnine
Plaintiffs Rf C. Pl.’s Br. 15.

In

mm, Defendant argues that the AU did not err in evaluating

the medical evidence and gave proper weight to the medical opinions, such as Dr. Abboud’s
opinion.

Def’s Br. 7.

In support of its argument, Defendant sets forth four points:

1.)

“contrary to Dr. Abboud’s impression that Plaintiff was bedridden, the record shows that
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Plaintiff was active”; 2.) “Plaintiff presented well at the hearing and was not nearly as limited as
Dr. Abboud found”; 3.) “Dr. Abboud’s opinion was unsupported”; and 4.) “although Dr. Abboud
mentioned that Plaintiff fell possibly as a result of medication, she failed to mention that some of
Plaintiffs problems stem from alcohol abuse.”

Def.’s Br. 8

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9.

The Court agrees with

Defendant and finds that the AU’s RFC determination was supported by substantial evidence.
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

RF C 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 162-63 (quoting Jones, 364 F.3d at 505). While the AU here did not explain his RFC
finding in the manner suggested by Plaintiff, he provided detailed findings related to Plaintiffs
limitations and he referenced the state examiner opinions and other medical evidence which are
consistent with his RFC findings. See R. at 33.
Furthermore, while an AU must consider the opinions of treating physicians, “[t]he law
is clear

.

.

.

that the opinion of a treating physician does not bind the ALl on the issue of

functional capacity” where it is not well supported or there is contradictory evidence, chandler,
667 F.3d at 361 (alteration in original) (quoting
2011)); 20 C.F.R.

Brown v.

Asti-ue, 649 F.3d 193, 197 n.2 (3d Cir.

§ 404.1527(c)(2): see also Coleman v. Cornm’r. of Soc. Sec. Admin., 494 Fed

App’x 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.
Apfel, 225 F.3d 310, 317 (3d Cir. 2000)); Phtmmer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)

8

(“An AU may i-eject 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 an opinion, the more weight we will give that opinion.”).
AU Olarsch took into account Dr. Somaya Aboud’s medical opinion and further asserted
why, in rendering his decision, the AU did not place substantial weight on either of Dr.
Abboud’s medical statements. R. at 31. The AU reasons that both medical source statements
set forth by Dr. Aboud, dated July 2012 and May 2013 respectively:
[P]rovide, but especially the latter, a picture of a bed ridden individual. Such a picture is
totally at odds with the function reports provide by the claimant at Exhibit 4E and his
own hearing testimony. His activities of daily living, his ability to drive and his
presentation at the hearing are not consistent with Dr. Aboud’s opinion concerning the
claimant’s physical functioning. More importantly, supportive clinical findings are
missing from Dr. Aboud’s own treating notes at Exhibits 9f and 12F. May 2011 through
May 2012 visits show the doctor only noting the claimant’s complaints of shoulder and
back pain with little, if any, physical findings indicated.
R. at 31. In accordance with Third Circuit precedent and the regulations, AU Olarsch afforded
lesser weight to the opinions of Dr. Aboud since he found that Dr. Aboud’s “opinions appear
exaggerated in comparison with the actual treating records.” Id. at 32.

Because the AU

adequately explained why he afforded little weight to the opinion of treating physician Dr.
Aboud based on the consideration of all the symptoms and the entire records as a whole, the
Court finds that substantial evidence supports ALl Olarsch’s RFC determination.
B. Substantial Evidence Supports the AU’s Credibility Determination

In support of its appeal, Plaintiff asserts that the ALl failed to properly evaluate Plaintiffs
credibility. Pl.’s Br.

21. Plaintiff argues that his testimony “regarding [his] symptoms and
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resulting limitations, his limited activities of daily living, and his lack of response to treatment is
consistent with the underlying record” and that the “AU’s boilerplate conclusion was far from
sufficient to provide a Court a meaningful decision for review.” Id. 23

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24.

In opposition,

Defendant avers that the AU’s credibility determination should be affirmed because the “AU
evaluated the Plaintiffs statements against the record as a whole and reasonably determined that
his subjective complaints were not fully credible on account of his activity level

—

which

included personal care, care for others, looking for a job, obtaining a job, music, writing and
much more

—

and the diagnostic studies.” Def.’s Br. 10.

A subjective complaint alone cannot establish disability; objective medical evidence must be
provided. 20 C.F.R. §sS 404.1528(a), 1529(a), 416.928(a); see also Prokopick v. Comm’r of Soc.
Sec, 272 F. App’x. 196, 199 (3d Cir. 2008). Instead, the AU must consider ‘all of the available
evidence’ when evaluating the intensity and persistence of a claimant’s symptoms, including
objective medical evidence and a claimant’s statements about his symptoms. 20 C.F.R.

§

404.1529(c)(1), 416.929(c)(l); 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 Plaintiffs testimony without question.

The AU has discretion to

evaluate Plaintiffs credibility and render an independent judgment in light of the medical
findings and other evidence regarding the true extent of the alleged symptoms.

Malloy v.

Comm ‘r of Soc. Sec., 306 F. App’x. 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)).
AU Olarsch’s decision opines that “after careful consideration of the evidence, [the AU

10

finds] that the claimant’s medically determinable impairments could be reasonably 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 for the reasons
explain in [the administrative] decision.”

R. at 31.

The administrative decision takes into

account the hearing testimony of the Plaintiff and provides an overview of Plaintiffs said
testimony, during which Plaintiff provided that the he does small grocery shopping, usually in
the morning for things like the paper, bread and eggs. He said he grocery shops with his mother.
He described having hobbies that included playing instruments. He said he could not do his past
sales work due to not being physically able to get to work, due to his neck and back pain.” Id.
AU Olarsch takes into account the medical evidence in the record. Id. 2$

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34.

As set forth

above, the ALl caimot base a determination on the Plaintiffs subjective complaints, but rather
must take into account the entire record as a whole as AU Olarsch did in making his credibility
determination.

For these reasons, the Court finds that AU Olarsch properly evaluated the

credibility of the Plaintiff and affirms AU Olarsch’s credibility 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 detennination that the Plaintiff is not disabled is supported by
substantial evidence. Accordingly, AU Olarsch’s decision is affirmed. An appropriate Order
follows this Opinion.

DATED:,(

f9/2o17

STATES DISTRICT JUDGE

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