POPOVICH v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Kevin McNulty on 6/27/17. (cm, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 16—3042 (KM)
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
KEVIN MCNULTY, U.S.D.J.:
Deborah Popovich brings this action pursuant to 42 U.S.C.
§ 405(g) and
1383(c)(3) to review a final decision of the Commissioner of Social Security
(“Commissioner”) denying her claims for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social
Security Act, 42 U.S.C.
§ 40 1—434 and 138 1—1385. For the reasons set forth
below, the decision of the Administrative Law Judge (“AU”) is AFFIRMED.
Ms. Popovich seeks to reverse an AU’s finding that she was not disabled
from October 1, 2010, the alleged onset date, through January 13, 2015, the
date of the AU’s decision. (R. 11—19)’
Pages of the administrative record (ECF no. 6) are cited as “R. .“ The Brief in
Support of Plaintiff (ECF no. 11) is cited as “P1. Br.” Defendant’s Brief Pursuant to
Local Civil Rule 9.1 (ECF no. 16) is cited as “Def. Br.”
Ms. Popovich completed her applications for DIB and SSI on February
21, 2103, claiming that she was disabled since October 1, 2010, as a result of
atrial fibrillation, chronic heart failure, dizziness, light-headedness, numbness
in her limbs, and cold sweat breakouts after long walks. (R. 11, 94, 26 1—68)
Her application was denied initially on March 23, 2013 (R. 126, 136), and upon
reconsideration on June 24, 2013 (R. 146, 156). On September 2, 2014,
Popovich appeared and testified at a hearing before AU Michal L. Lissek. (R.
11, 58—82) Subsequently, at a supplemental hearing held on December 10,
2014, before AU Beth Shillin, at which Popovich was represented by Walter J.
Curtis, Esq., medical expert Dr. Martin Fechner and vocational expert Jackie L.
Wilson testified. (R. 24—53) Following the supplemental hearing, AU Shillin
found that Popovich was not under a “disability,” as defined in the Social
Security Act. (R. 11—19) On April 8, 2016, the Appeals Council denied
Popovich’s request for review (R. 1—5), rendering the AU’s decision the final
decision of the Commissioner. Popovich then appealed to this Court,
challenging the AU’s determination that she was not disabled from October 1,
2010, through January 13, 2015. Popovich now appeals that decision.
To qualify for Title II DIB benefits, a claimant must meet the insured
status requirements of 42 U.S.C.
§ 423(c). To be eligible for Title XVI SSI
benefits, a claimant must meet the income and resource limitations of 42
§ 1382. To qualify under either statute, a claimant must show that she
is unable to engage in substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
AU Lissek was unable to preside at the supplemental hearing. (R. 26)
death or that 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); see, e.g.,
Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 503 (3d cir. 2009).
Five-Step Process and this Court’s Standard of Review
Under the authority of the Social Security Act, the Social Security
Administration (the “Commissioner”) has established a five-step evaluation
process for determining whether a claimant is entitled to benefits. 20 C.F.R.
404.1520, 4 16.920. This Court’s review necessarily incorporates a
determination of whether the AU
properly followed the five-step process
prescribed by regulation. The steps may be briefly summarized as follows:
Step 1: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 C.F.R. §
404.1520(b), 416.920(b). If not, move to step two.
Step 2: Determine if the claimant’s alleged impairment, or combination
of impairments, is “severe.” Id.
§ 404.1520(c), 416.920(c). If the claimant has a
severe impairment, move to step three.
Step 3: Determine whether the impairment meets or equals the criteria
of any impairment found in the Listing of Impairments. 20 C.F.R. Pt. 404,
Subpt. P, App. 1, Pt. A. (Those Part A criteria are purposely set at a high level,
to identify clear cases of disability without further analysis.) If so, the claimant
is automatically eligible to receive benefits; if not, move to step four. Id.
Step 4: Determine whether, despite any severe impairment, the claimant
retains the Residual Functional Capacity (“RFC”) to perform past relevant work.
§ 404.1520(e)—(fj, 416.920(e)—(f). If not, move to step five.
Step 5: At this point, the burden shifts to the Commissioner to
demonstrate that the claimant, considering his age, education, work
experience, and RFC, is capable of performing jobs that exist in significant
numbers in the national economy. 20 C.F.R.
§ 404.1520(g), 4 16.920(g); see
Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 9 1—92 (3d Cir. 2007). If so, benefits
will be denied; if not, they will be awarded.
As to all legal issues, this Court conducts a plenary review. See
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the AU’s findings, as long as they are
supported by substantial evidence. Jones v. Bamhart, 364 F.3d 501, 503 (3d
Cir. 2004) (citing 42 U.S.C.
§ 405(g)). Where facts are disputed, this Court will
“determine whether the administrative record contains substantial evidence
supporting the findings.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Zimsak v. Colvin, 777 F.3d 607,
610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial
evidence “is more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” Id. (internal quotation marks and citation
[I]n evaluating whether substantial evidence supports the ALl’s
leniency should be shown in establishing the
claimant’s disability, and
the Secretary’s responsibility to rebut
it should be strictly construed. Due regard for the beneficent
purposes of the legislation requires that a more tolerant standard
be used in this administrative proceeding than is applicable in a
typical suit in a court of record where the adversary system
Reefer v. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal citations and
quotations omitted). When there is substantial evidence to support the AU’s
factual findings, however, this Court must abide by them. See Jones, 364 F.3d
at 503 (citing 42 U.S.C.
§ 405(g)); Zirnsak, 777 F.3d at 610—11 (“[W]e are
mindful that we must not substitute our own judgment for that of the fact
This Court may, under 42 U.S.C.
405(g) and 1383(c)(3), affirm, modify,
or reverse the Commissioner’s decision, or it may remand the matter to the
Commissioner for a rehearing. Podedwomy v. Harris, 745 F.2d 210, 221 (3d
Cir. 1984); Bordes v. Comm’r of Soc. Sec., 235 F. App’x 853, 865—66 (3d Cir.
2007) (not precedential).
Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five step inquiry. See Podedwomy, 745 F.2d at 22 1—22. Remand is also proper
if the AU’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett v. Comm’r of Soc.
Sec., 220 F.3d 112, 119—20 (3d Cir. 2000). It is also proper to remand where
the AU’s findings are not the product of a complete review which “explicitly
weigh[s] all relevant, probative and available evidence” in the record. Aclorno v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).
The AU’s Decision
ALT Shillin (the “ALT”) properly followed the five-step process in
determining that Popovich was not disabled for the period from October 1,
2010, through January 13, 2015. Her findings may be summarized as follows.
At step one, the ALT determined that Popovich had not engaged in
substantial gainful activity in the relevant period. (R. 13
At step two, the ALT found that Popovich had the following severe
impairments: “heart failure, arrhythmias, pulmonary vascular congestion,
atrial fibrillation, obesity, hypertension, cardiomyopathy, and tingling in hands
and fingers.” (R. 13
At step three, the AU
determined that, through January 13, 2015,
Popovich’s impairment or combinations of impairments did not meet or
medically equal the severity of one of the listed impairments, 20 C.F.R. Pt. 404,
Subpt. P, App. 1. (R. 14
Step 4- RFC /Ability to Perform Past Work
At step four, “[ajfter careful consideration of the entire record,” the AU
found that, through the date last insured, Popovich had “the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant: is precluded from climbing ladders and
scaffolds, is precluded from exposure to moving machinery, and must have
reasonable access to restroom breaks.” (R. 14
5) The AU found that the
specific demands of Popovich’s past relevant work as an executive assistant at
a painting company exceed her RFC. However, Popovich retained the ability to
meet the demands of past relevant work as an administrative assistant as
generally performed in the national economy. (R. 17
At step five, the AU
considered Popovich’s age, education, work
experience, and residual functional capacity, as well as the Medical-Vocational
Guidelines, and determined that Popovich is able to perform other jobs existing
in significant numbers in the national economy. (R. 17—18
6) Relying on the
testimony of a vocational expert (“yE”), Jackie L. Wilson, the AU
several representative unskilled, light jobs that Popovich could perform despite
her limitations: (1) inspector and hand packager (Dictionary of Occupational
Titles (“DOT”) # 559.687-074); (2) photocopy machine operator (DOT #
207.685-0 14); and (3) sealing and canceling machine operator (DOT # 208.685026). According to the VE, collectively, more than 200,000 such jobs exist
nationally. (R. 18
6) The AU noted that there would be other work in the
national economy that Popovich could perform even if a limitation for only
occasional fingering and handling were added to Popovich’s RFC. (Id.)
Shillin concluded that Popovich was not under a
disability, as defined in the Social Security Act, from October 1, 2010, through
January 13, 2015. (R. 19
Analysis of Popovich’s Appeal
Ms. Popovich challenges ALT Shillin’s determination that she was not
disabled during the relevant period, arguing that the AU committed errors at
steps three and four. In addition, Popovich alleges several procedural
irregularities. At step three AU
Shillin purportedly did not herself consider, or
ask the medical expert, whether Popovich’s eight severe impairments in
combination were the medical equivalent of a listed impairment. (P1. Br. 15—16)
At step four, Popovich contends that the ALT did not properly support her RFC
determination. Popovich argues that the RFC determination is contradicted by
Popovich’s testimony, her excellent work record, and the opinion of her treating
cardiologist. (P1. Br. 13) Also at step four, Popovich contends, the AU
improperly accepted the allegedly incomplete and conclusory RFC opinion of
medical expert Dr. Fechner. (P1. Br. 15)
Popovich also argues that her case was subjected to several procedural
irregularities. ALT Shillin issued the decision in Popovich’s case even though it
was ALT Lissek who heard Popovich testify about her subjective complaints.
Popovich calls this a “decision by committee” and argues that the substitution
did not conform to the guidelines in HALLEX 1-2-840. Similarly, the medical
expert never heard Popovich testify, and “was not given any synopsis or
particulars of that testimony. This was in contradiction to HALLEX 1-2-539,
which instructs the ALT to summarize the opening statement or relevant
testimony on the record for the medical expert not present during the opening
statement or relevant testimony. (P1. Br. 10—11)
Popovich requests that this Court reverse the ALT’s decision or remand
the decision to the Commissioner for a new hearing and decision. Addressing
each of Popovich’s arguments in turn, I find that the AU’s findings do not
contain any errors of law or procedure, and that they are supported by
The AU’s Step Three Evaluation
Ms. Popovich argues that AU
Shillin’s step three analysis “represents a
combination of omissions, misstatements, vague assertions and boilerplated
agency-speak rendering the step 3 analysis beyond this Court’s Judicial
Review,” and necessitates remand for analysis by a cardiologist “to opine on
medical equivalence.” (P1. Br. 24) I disagree. The claimant bears the burden of
proving that her impairments, whether individually or collectively, equal or
meet those listed in Appendix 1. Popovich has not met this burden.
First, Popovich contends that the AU
mistakenly found that Popovich
does not suffer from chronic heart failure, ischemic heart disease, or coronary
artery disease despite record evidence of these conditions. (P1. Br. 21—22) This
mischaracterizes the AU’s findings. In fact, the AU
conditions but found that they did not rise to the level of severity required to
meet any listed criteria. (R. 12
4) That Popovich suffers from those conditions
is not disputed, but it also is not sufficient. See Foley v. Comm’r of Soc. Sec.,
349 F. App’x 805, 808 (3d Cir. 2009) (“A diagnosis alone, however, does not
demonstrate disability.”) (citing Petition of Sullivan, 904 F.2d 826, 845 (3d Cir.
1990)). Popovich does not point to any evidence that her conditions rise to the
severity required by the listings.
Second, Popovich points out that she has “[c]ardiomyopathy with an
ejection fraction established between 35% and 43—48%,” and objects to the
omission of this condition at step three. (P1. Br. 22) That objection is meritless.
As she herself acknowledges, only an ejection fraction of 30% or less meets the
listing for 4.02 chronic heart failure. (See P1. Br. 22) Further, the 35% ejection
fraction rate that Popovich cites was recorded during a temporary worsening of
her cardiac condition. During the entire relevant period, Popovich’s other
ejection fraction estimates were 40% (R. 421), 43% (R. 455), 48% (R. 590, 598),
50% (R. 429), and 55% (R. 493). The medical records classify these ejection
fraction levels as a mild or moderate reduction in ventricular function. (R. 421,
455, 598, 429) Dr. Fechner testified that an ejection fraction of 43% is “a bit
low but not a problem.” (R. 29) Thus, there is no evidence that the severity of
Popovich’s cardiomyopathy rises to listing levels.
Third, Popovich criticizes the AU’s omission of her cardiac arrhythmias
at step three and the failure to compare that condition to listing 4.05. However,
for recurrent arrhythmias to meet that listing, they must result in
“uncontrolled, recurrent episodes of cardiac syncope or near syncope despite
prescribed treatment.” 20 C.F.R. Pt. 40 subpt. P, app. 1,
§ 4.05. Here, the
medial record reveals that Popovich experienced no episodes of syncope or near
syncope (R. 425, 432, 443, 564, 577, 593), and Popovich does not point to any
contrary evidence. Thus, Popovich has not met her burden to prove that her
impairments individually equal or meet those listed in Appendix 1.
Popovich refers to “the cardiac listings at paragraph 4.04B,” but appears to
have intended listing 4.02, as there is no mention of ejection fraction levels at listing
4.04. See 20 C.F.R. pt. 40 subpt. P, app. 1, § 4.02; id. § 4.05.
Additionally, it hardly need be said that a claimant cannot carry her burden by
rhetorically asking questions such as, “If ‘pulmonary vascular congestion’ is a severe
impairment at step 2, why isn’t it mentioned at all at step 3 or compared to any
listing? And if plaintiff suffers a severe impairment recognized as ‘tingling in hands
and fingers’ why isn’t it mentioned at step 3 and what restrictions make it a severe
impairment?” (P1. Br. 23) (citations omitted) It is her burden at step three to prove that
a condition meets or equals the listings in Appendix 1. Wondering aloud why a
particular condition was not considered is not evidence that the condition meets the
criteria for a listing.
However, “if a claimant’s impairment does not match one listed in
Appendix 1, the AU is required to perform a comparison between the
claimant’s impairment(s) and those listed in Appendix 1.” Torres v. Comm’r of
Soc. Sec., 279 F. App’x 149, 151—52 (3d Cir. 2008); see also 20 C.F.R.
404.1526(b). The Third Circuit has stated that step three requires the AU
perform “an analysis of whether and why [the claimant’s individual
impairmentsl, or those impairments combined, are or are not equivalent in
severity to one of the listed impairments.” Burnett, 220 F.3d at 119. The AU
to use particular language or adhere to a particular format
in conducting [her] analysis”; rather, there must be “a sufficient development of
the record and explanation of findings to permit meaningful review.” Jones, 364
F.3d at 505.
Ms. Popovich argues that the AU failed to consider Popovich’s obesity in
combination with other impairments and generally failed to consider the
combined effect of all her impairments. (P1. Br. 23—24) However, the AU
explicitly stated that she “fully considered [Popovich’s] obesity in the context of
the overall record in making this decision.” (R. 14) Further, the record contains
no evidence that Popovich’s obesity, alone or in combination with any other
impairment, resulted in severe impairment that is the medical equivalent of a
listed impairment, and Popovich does not point to any. Nor does Popovich cite
medical evidence to demonstrate that any combination of her impairments is
the medical equivalent of a listed impairment.
Thus, assessing the record as a whole, I am satisfied that substantial
evidence supports the AU’s conclusion that Popovich’s impairments alone and
in combination, including the combination of Popovich’s obesity and her other
impairments, do not match the severity of a listed impairment.
The AU’s RFC Evaluation
Residual functional capacity is an assessment of the most a claimant can
do despite her impairments. See 20 C.F.R.
§ 404.1545. To determine a
claimant’s RFC, an ALT must engage in a two-step process: first, consider all of
a claimant’s symptoms that can reasonably be accepted as consistent with the
objective medical evidence, and second, determine how those symptoms affect
the claimant’s ability to work. 20 C.F.R.
§ 404.1529. Here, AU Shillin
determined that Ms. Popovich had the residual functional capacity to “perform
light work” with additional limitations. (R. 14) Popovich argues that the AU
erred by setting her own expertise against that of Popovich’s treating physician,
a cardiologist. (See P1. Br. 27—30) Alternatively and in addition, Popovich argues
that the AU
improperly rejected the treating cardiologist’s opinion in favor of
that of Dr. Fechner, the medical expert. Separately, Popovich argues that the
AU improperly dismissed Popovich’s subjective complaints. (P1. Br. 30—35)
It is true that the ALT must consider all relevant evidence, including
subjective complaints, in determining the RFC. Fargrioli u. Massanari, 247 F.3d
34, 41 (3d Cir. 2001) (citing 20 C.F.R.
§ 404.1545(a)). However, the plaintiff
retains the burden of supporting her alleged RFC limitations. Bowen v. Yuckert,
482 U.S. 137, 146, 107 S. Ct. 2287 (1987); see also 20 C.F.R.
(“In general, you [the plaintiff] are responsible for providing the evidence we will
use to make a finding about your residual functional capacity.”). Therefore, it is
Popovich’s burden—not the Commissioner’s—to support her allegation that she
is unable to perform light work. For the following reasons, I find that
substantial evidence supports the ALT’s decision to credit Dr. Fechner’s
opinion and to discount both Dr. Glasofer’s opinion and Popovich’s subjective
The AL.J’s Crediting Dr. Fechner’s Opinion Over
that of Dr. Glasofer
Ms. Popovich contends that AU Shillin, in reaching her RFC
determination, erred by “adopt[ing Dr. Fechner’s opinion entirely without any
explanation as to why the opinion of a [non-examining, non-treating doctor.
is supported by substantial evidence (and what evidence) while the opinion of
plaintiff’s treating cardiologist [Dr. Glasofer] is nothing b[ut] conclusory.” (P1.
Br. 29) I disagree. Popovich’s contention—that the AU did not provide a
reasoned explanation supported by substantial evidence—lacks merit.
In general, the opinion of a medical professional who has treated the
claimant is entitled to deference. 20 CFR § 404. 1527(c)(2) (“Generally, we give
more weight to opinions from your treating sources, since these sources are
likely to be the medical professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s)
see also Flu mmer v.
Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (“Treating physicians’ reports should be
accorded great weight, especially when their opinions reflect expert judgment
based on a continuing observation of the patient’s condition over a prolonged
period of time.” (internal quotation marks omitted)).
However, the opinion of a treating source must be given “controlling
weight” only when that opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the claimant’s] case record.” 20 CFR §
404. 1527(c)(2). Further, “[t]he law is clear.
that the opinion of a treating
physician does not bind the AU on the issue of functional capacity.” Brown v.
Astrue, 649 F.3d 193, 197 (3d Cir. 2011). Rather, “[s]tate agent opinions merit
significant consideration as well.” Chandler v. Comm’r of Soc. Sec, 667 F.3d
356, 361 (3d Cir. 2011).
If the treating physician’s opinion is not to be accorded controlling
weight, the AU must weigh it, like any other medical opinion, in light of the
factors set forth in 20 CFR
§ 404.1527. See 20 CFR § 404.1527(c)(1-6) (AU
must consider: (i) the examining relationship between the claimant and the
doctor; (ii) the treatment relationship between the claimant and the doctor; (iii)
the extent to which the opinion is supported by relevant evidence; (iv) the
extent to which the opinion is consistent with the record as a whole; and (v)
whether the doctor providing the opinion is a specialist.) Although
“contradictory medical evidence is required for an AU
to reject a treating
physician’s opinion outright, such an opinion may be afforded more or less
weight depending on the extent to which supporting explanations are
provided.” Plummer, 186 F.3d at 429 (citation omitted).
“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.”’ Morales v.
Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citing Plummer, 186 F.3d at 429). In
The AU must consider the medical findings that support a treating
physician’s opinion that the claimant is disabled. In choosing to
reject the treating physician’s assessment, an AU may not make
speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.
Id. at 3 17—18 (internal citations and quotations omitted).
Here, however, the AU
based her refusal to credit Dr. Glasofer’s opinion
on objective medical evidence that contradicted Dr. Glasofer’s opinion and
supported that of Dr. Fechner. The decision rests on substantial evidence, not
the AUJ’s credibility judgments, speculation, or lay opinion.
AU Shillin did find Dr. Fechner’s opinion credible, but she based her credibility
judgments on his opinion’s consistency with the objective medical evidence in the
record, rather than on a subjective impression based on Dr. Fechner’s demeanor,
affect, etc. during his testimony.
In her written discussion of the RFC evaluation, the AU
summarized Popovich’s testimony and then reviewed her cardiac and
pulmonary problems as documented in the record and as evaluated by Drs.
Fechner and Glasofer. (R. 15) AU
Shillin, assessing the record as a whole,
Treatment records from 2011 indicate that the claimant’s
medications have helped and that the claimant’s atrial fibrillation
and heart problems were essentially under control through the
present. Diagnostic findings document a low but essentially
unremarkable ejection fraction of 43, unremarkable EKG findings,
normal pulse and heart rate, and normal oxygenation level
findings. In addition, the claimant denied negative side effects with
the anticoagulation medicine. As credibly opined by the impartial
medical expert at the hearing, the claimant’s atrial fibrillation was
fairly well-controlled (Exhibits 2F, 5F, 8F).
(R. 16) The AU
did not ignore evidence of the occasional lower ejection
fraction, noting that:
January 2013 diagnostic findings indicated a moderately dilated
left ventricle with some reduction in functioning, and an estimated
ejection fraction of 35% (Exhibit iF). However, the balance of the
diagnostic evidence shows a mild reduction in functioning.
The ALT went on to cite treatment notes from February 2013. April 2014, and
June 2014, demonstrating that Popovich’s conditions resulted in only mild or
moderate reduction in functioning:
February 2013 treatment notes indicate no symptoms of congestive heart
failure, and follow-up visits every three weeks or so generally
demonstrate no negative changes or problems, with the claimant
reporting that she was feeling well. August 2013 treatment notes indicate
that the claimant’s overall ventricular function was mildly reduced, with
an ejection fraction of 43%. Diagnostic findings further indicated mildly
dilated diastolic, systolic, and left atrium functioning, moderately dilated
right atrium functioning, mild to moderate mitral regurgitation and mild
tricuspid regurgitation. An April 2014 EMG was negative for myocardial
ischemia. SPECT findings were mildly abnormal indicating myocardial
perfusion, however with normal left ventricular functioning. June 2014
ejection fraction findings were 48%, indicating mildly reduced left
ventricular functioning (with normal right fit regular functioning as
Popovich incorrectly states that Dr. Fechner was under the
“misapprehension that plaintiff didn’t suffer any other heart impairment other
than atrial fib.” (P1. Br. 13
14, 29) In fact, Dr. Fechner reviewed Popovich’s
medical records in the record and stated that Popovich “has a few problems,”
but “her main problem is atrial fibrillation.” (R. 28)
Further, the AU
afforded moderate weight to the opinion of state agency
physician, Dr. Przybyla, who concluded that Popovich was able to perform light
work (R. 17, 450). See 20 C.F.R.
§ 404.1527(e), 4 16.927(e) (establishing that
state agency physicians are “highly qualified physicians and psychologists who
are also experts in Social Security disability evaluation”); Chandler v. Comm’r of
Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“State agent opinions merit
significant consideration”). Dr. Przybyla’s opinion was consistent with that of
noted), and trace pulmonary regurgitation. The Doppler findings were
consistent with normal ventricular functioning (Exhibit 6F).
In challenging the AU’s reliance on Dr. Fechner’s opinion, Popovich
mischaracterizes her ejection fraction over the relevant period by implying that it
remained at 35% for much or most of the period. She says: “When asked about the
35% ejection fraction (slightly above listing-level) the doctor replied that it ultimately
went up to 43%.” (P1. Br. 29) This is misleading, however, as the great majority of
ejection fraction reports reflect fractions of 43% or higher; Popovich’s other ejection
fractions were 40% (R. 421), 43% (R. 455), 48% (R. 590, 598), 50% (R. 429), and 55%
Popovich also questions Dr. Fechner’s credibility by noting that he was not
familiar with the blood thinner “Xarelto.” (P1. Br. 29—30) However, Popovich does not
make any argument as to how Popovich’s use of Xarelto requires a different RFC
finding, and it is her burden to do so. Further, once Popovich’s attorney clarified that
Xarelto is a blood thinner, Dr. Fechner was able to explain the possible risks of
consistent use of blood thinners, and he adjusted the RFC to account for the risk of
spontaneous bleeding. (R. 36—37)
acknowledged Dr. Glasofer’s opinion, noting that “the claimant’s
treating physician, Dr. Glasofer indicated in a conclusory March 2014 opinion
(Exhibit 7F) that the claimant would be unable to work an eight hour day
because she suffers from fatigue due to atrial fibrillation and cardiomyopathy.”
(R. 16) However, the AU
“afforded little weight” to Dr. Glasofer’s opinion
because “no persuasive supporting medical rationale was proffered,” and “there
is no indication as to when Dr. Glasofer last saw the claimant and as to the
frequency of treatment.” (Id.) The AU’s decision to afford Dr. Glasofer’s opinion
little weight is supported by substantial evidence. Dr. Glasofer offered his
opinion on March 26, 2014, and his only explanation for his assessment that
Popovich cannot work from that date until “1 y[ea]r from now” is that “fatigue
due to AF & cardiomyopathy can limit ability to work.” (R. 610) Dr. Glasofer’s
conclusory opinion provides no detail about the extent of Popovich’s atrial
fibrillation and cardiomyopathy at the time, nor does it identifr the extent of
the fatigue or the degree and nature of work-related limitations that “can”
AU Shillin was entitled to credit the opinion of Dr. Fechner, who
explained his opinion in light of the entire medical record, in opposition to Dr.
Glasofer’s conclusory opinion. Further, as the Commissioner has noted, Dr.
Glasofer offered his opinion during a period when Popovich’s heart rate was
high, even with medication. (Def. Br. 25) (citing R. 583, 610) Dr. Glasofer
changed Popovich’s medication on that same day, and, in treatment records
from office visits in June and December 2014, he reported that Popovich “is
doing much better” and that her “rates are better controlled.” (R. 592, 611) On
both occasions Dr. Glasofer still notes that Popovich “gets fatigued,” but he
does not describe the degree of fatigue.
Included in the administrative record are a cardiac impairment questionnaire
completed by Dr. Glasofer (R. 627—29) and treatment records from office visits (R. 6 15—
I find that the AU
sufficiently analyzed Dr. Glasofer’s opinion and
explained her reasons for affording it little weight and for rejecting it in favor of
medical consultant Dr. Fechner’s opinion that Popovich could perform light
work with few limitations.
The AU’s Rejection of Popovich’s Subjective
Ms. Popoviôh also argues that the AU
erred in rejecting Popovich’s
subjective report of her functional limitations as being unsupported by the
record. (R. 16) The AU found that Popovich’s “statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision.” (R. 17) Popovich objects,
asserting that she “can’t find any.
reasons articulated anywhere before or
after [the AU’s] promise” to explain her reasons for finding Popovich’s
subjective complaints “not entirely credible.” (P1 Br. 34—35) Relatedly, according
to Popovich, the AU did not comply with the “pain protocol” outlined in SSR
96-’7p. (P1. Br. 33—34) I disagree.
SSR 96—7p provides that “[i]n determining the credibility of the
individual’s statements, the adjudicator must consider the entire case record.”
Id. The regulation then prescribes a two-step process for evaluating a
claimant’s statements about her own physical or mental impairments. Such
statements, by themselves, are insufficient to establish the existence of an
impairment or disability. Titles II & XVI: Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual’s Statements, SSR 96—7P
23) that occurred after the AU issued her decision. Although these documents may
indicate a worsening of Popovich’s fatigue, Popovich does not mention the documents
in her brief and I do not consider them here.
As of March 28, 2016, SSR 16-3p has superseded SSR 96-’7p. However, SSR
96-7p was in effect on January 13, 2015 when the AU issued her decision in this
case. Popovich does not argue the SSR l6-3p should now apply.
(S.S.A. July 2, 1996). Instead, the AU must first “consider whether there is an
underlying medically determinable physical or mental impairment(s)-i.e., an
impairment(s) that can be shown by medically acceptable clinical and
laboratory diagnostic techniques-that could reasonably be expected to produce
the individual’s pain or other symptoms.” Id. Second, “once an underlying
physical or mental impairment(s) that could reasonably be expected to produce
the individual’s pain or other symptoms has been shown, the adjudicator must
evaluate the intensity, persistence, and limiting effects of the individual’s
symptoms to determine the extent to which the symptoms limit the individual’s
ability to do basic work activities.” Id.
At this second step, if the AU finds that the claimant’s symptoms
suggest a greater restriction of function than can be demonstrated by objective
evidence alone, she must also consider such factors as:
(1) The individual’s daily activities; (2) The location, duration,
frequency, and intensity of the individual’s pain or other
symptoms; (3) Factors that precipitate and aggravate the
symptoms; (4) The type, dosage, effectiveness, and side effects of
any medication the individual takes or has taken to alleviate pain
or other symptoms; (5) Treatment, other than medication, the
individual receives or has received for relief of pain or other
symptoms; (6) Any measures other than treatment the individual
uses or has used to relieve pain or other symptoms (e.g., lying flat
on his or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and (7) Any other factors concerning the
individual’s functional limitations and restrictions due to pain or
SSR 96—7p (citing 20 CFR § 404.1529(c), 416.929(c)).
The AU’s credibility determination “must contain specific reasons for the
finding of credibility, supported by the evidence in the case record.” SSR 96—7p;
see also 20 C.F.R.
§ 404.1529(b), 416.929(b). In this case, AU Shillin did
what was required of her, articulating specific reasons for her credibility
findings that were supported by the evidence in the record.
In conducting the two-step analysis prescribed by SSR 96—’7p, AU
Shillin first summarized Popovich’s testimony from the hearing before AU
Lissek as follows:
She went to Overlook Hospital because she was light-headed, dizzy
and experienced shortness of breath. She states her condition is
better but she had a hard time dealing with the medication and its
side effects, including dizziness, tingling, and being able to only
drive 15 minutes away. She also testified that she only goes out
with people and not by herself, that her hands are very achy, and
that she does not carry a pocketbook anymore as it is too heavy.
She takes 5 medications a day and her feet swell if she does not
take a water pill. Significantly, her medication controls her cardiac
issue, but the side effects are what her main problem is.
She stated she needs frequent access to the bathroom due to her
medication, which makes her retain water.
She stated that she can lift up to 10 to 15 ibs, that she can walk
for only about 1 to 2 blocks at a time before needing to rest, and
that she cannot drive far due to lightheadedness (her sister drove
her to the hearing).
The claimant was crying at the hearing and stated that she does
not have her independence as before and further noted a narrow
range of activities of daily living as her mother and sister clean and
cook for her, and her bedroom was moved down to the 1St floor
(and her mom is on the 3rd floor now).
Later in the decision, AU
Shillin articulated findings that conflict with
Popovich’s subjective complaints. For example, Popovich “state[d] her [cardiac]
condition is better but she had a hard time dealing with the medication and its
side effects, including dizziness, tingling, and being able to only drive 15
minutes away.” (R. 15) However, the AU found that Dr. Fechner “credibly
opined that none of the claimant’s medication would be expected to have side
effects and the medication would not be expected to interfere with the residual
functional capacity.” (R. 16) Further, although Popovich testified that “she
needs frequent access to the bathroom due to her medication, which makes her
retain water,” AU Shillin found that:
the extreme number of bathroom breaks asserted by claimant’s
counsel is unsubstantiated by the record. In response to
complaints of Cardizem’s potential water retentive side effects (that
would require the claimant to take more bathroom breaks), the
impartial medical expert credibly noted that the claimant could be
switched to another medication that would not cause water
retention thereby reducing the number of bathroom breaks.
Consequently, great weight shall be afforded this opinion
indicating that appropriate alternative medication could reduce the
number of bathroom breaks.
(R. 17) Additionally, the AU noted at step five that “there is no persuasive
medical evidence to support the claimant’s complaints of numbness and
tingling in the hands.”° (R. 18) Popovich does not point to any. It is possible to
weigh the evidence differently, but the AU
discharged her duty here, and her
determinations are supported by substantial evidence.
Finally, Popovich objects to the AU’s omission of Popovich’s work history
as a factor in evaluating her credibility, citing an work history of 25 straight
years of earning “all 100 possible quarters of coverage,” ending with the onset
of her cardiovascular impairments (P1. Br. 34) However, “[tjhe fact alone that a
claimant has a long work history does not require a remand, particularly when
medical evidence does not support a claimant’s testimony of the extent of her
limitations.” Salazar v. Colvin, No. CIV.A. 12-6170, 2014 WL 6633217, at *7
(E.D. Pa. Nov. 24, 2014) (citing Corley v. Bamhart, 102 F. App’x 752, 755 (3d
Cir. 2004) (concluding that the AU did not err in not affording plaintiff
heightened credibility based solely on plaintiffs work history)). Here, no
At the first hearing, after Popovich described her hand pain, AU Lissek asked
whether there were any EMO tests that had ever been conducted to test her hand
symptoms: none had been conducted. (R. 72—73)
remand is required, because AU Shillin found that the medical evidence did
not support Popovich’s testimony of the extent of her limitations.
As a result, I find that the ALT’s credibility determination is supported by
substantial evidence. Popovich’s objections to the assessment of her credibility
Allegations of Procedural Irregularities
Popovich also argues that the administrative hearings and decision in
her case did not conform to the procedural guidance set forth in the Social
Security Administration’s Hearings, Appeals, and Litigation Law Manual
(“HALLEX”). First, Popovich argues that the substitution of AU
Shillin for AU
Lissek did not conform to the guidelines in HALLEX 1-2-840, because AU
Shillin issued the decision but did not directly observe Popovich’s testimony of
her subjective complaints. Similarly, the medical expert never heard Popovich
testify, and “was not given any synopsis or particulars of that testimony. This
was in contradiction to HALLEX 1-2-539, which instructs the ALT to summarize
the opening statement or relevant testimony on the record for the medical
expert not present during the opening statement or relevant testimony.” (P1. Br.
10—11) In short, Popovich alleges that “AU
Shillin improperly opted to take the
experts’ testimony without having plaintiff begin the hearing anew, testify,
allow the expert to hear her testimony, allow herself to hear that testimony, or
allow her attorney an opening statement.” (P1. Br. 12)
However, Popovich’s objections are unavailing. Without more,
nonconformity to HALLEX provisions is not a basis for remand. See Lippincott
v. Comm’r of Soc. Sec., 982 F. Supp. 2d 358, 380 (D.N.J. 2013) (“HALLEX
lack the force of law and create no judicially-enforceable rights.”)
(quoting Bordes v. Comm’r of Soc. Sec., 235 Fed. Appx. 853, 859 (3d Cir. 2007));
see also Schweiker v. Hansen, 450 U.S. 785, 789, 101 S. Ct. 1468) (“[TJhe
Claims Manual is not a regulation. It has no legal force, and it does not bind
the SSA. Rather, it is a 13—volume handbook for internal use by thousands of
SSA employees.”); Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000) (“HALLEX
is strictly an internal guidance tool, providing policy and other procedural
guidelines to ALJs and other staff members. As such, it does not.
force and effect of law.”). “Since the manual is not binding, allegations of
noncompliance should not be reviewed.” Cartagena v. Comm’r of Soc. Sec., No.
2:10-CV--05712-WJM, 2012 WL 1161554, at *5 (D.N.J. Apr. 9, 2012) (citing
Moore v. Apfel, 216 F’.3d at 869).
HALLEX provisions aside, Popovich has not demonstrated that she
suffered any prejudice resulting from AU
supplementary hearing in AU
Shillin conducting the
Lissek’s place or from Popovich not testifying at
the supplementary hearing. In fact, Popovich was represented at that hearing
by her attorney, Walter Curtis. Mr. Curtis raised no objection to AU
presiding, nor did he request that he be allowed an opening statement or that
Popovich be allowed to testiir again prior to the medical expert’s testimony.
(See R. 26—53) Because Popovich has not demonstrated any prejudice resulting
from the procedures employed, no remand is necessary.
In sum, then, AU
Shillin’s decision adequately indicates the basis for
her determination, and the record as a whole supports her conclusion as to
Popovich’s RFC through January 13, 2015. The RFC is thus supported by
substantial evidence. When there is substantial evidence to support the AU’s
factual findings, this Court must abide by them. See Jones, 364 F.3d at 503
(citing 42 U.S.C.
§ 405(g)); Zimsak, 777 F.3d at 610—11 (“[W]e are mindful that
we must not substitute our own judgment for that of the fact finder.”). I
therefore affirm the AUJ’s RFC determination.
For the reasons expressed above, Ms. Popovich’s claims of error fail to
show that the AU’s decision was not supported by substantial evidence. Under
the applicable standard of review, that is sufficient to require that I uphold the
AU’s denial of Popovich’s claims for DIB and SSI, which is therefore
AFFIRMED. An appropriate order accompanies this Opinion.
Dated: June 27, 2017
United States District Judge
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