RODRIGUEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Stanley R. Chesler on 8/10/17. (cm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
CARLOS RODRIGUEZ,
:
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER OF SOCIAL
:
SECURITY,
:
:
Defendant.
:
____________________________________:

Civil Action No. 16-4268 (SRC)
OPINION

CHESLER, District Judge
This matter comes before the Court on the appeal by Plaintiff Carlos Rodriguez
(“Plaintiff”) of the final decision of the Commissioner of Social Security (“Commissioner”)
determining that he was not disabled under the Social Security Act (the “Act”). This Court
exercises jurisdiction pursuant to 42 U.S.C. § 405(g) and, having considered the submissions of
the parties without oral argument, pursuant to L. CIV. R. 9.1(b), finds that the Commissioner’s
decision will be affirmed.
In brief, this appeal arises from Plaintiff’s application for disability insurance benefits,
alleging disability beginning December 31, 2012. A hearing was held before ALJ Sheila Walters
(the “ALJ”) on January 15, 2015, and the ALJ issued an unfavorable decision on March 7, 2015.
After the Appeals Council denied Plaintiff’s request for review of the determination of the date
of onset, the ALJ’s decision became the Commissioner’s final decision, and Plaintiff filed this
appeal.
In the decision of March 7, 2015, the ALJ found that, at step three, Plaintiff did not meet

or equal any of the Listings. At step four, the ALJ found that Plaintiff retained the residual
functional capacity to perform light work, with certain limitations. At step four, the ALJ also
found that this residual functional capacity was not sufficient to allow Plaintiff to perform his
past relevant work as a doorkeeper, driver, or street sweeper. At step five, the ALJ consulted a
vocational expert and concluded that there are other jobs existing in significant numbers in the
national economy which the claimant can perform, consistent with his medical impairments, age,
education, past work experience, and residual functional capacity. The ALJ concluded that
Plaintiff was not disabled within the meaning of the Act.
On appeal, Plaintiff argues that the Commissioner’s decision should be reversed and the
case remanded on three grounds: 1) at step three, Plaintiff meets the requirements of Listing
3.03; 2) at step four, the ALJ gave disproportionate weight to the opinions of the state agency
experts; and 3) at step four, the residual functional capacity determination is not supported by
substantial evidence.
As to the first point, Plaintiff contends that the evidence shows that Plaintiff meets the
requirements of Listing 3.03, which states:
3.03 Asthma. With:
A. Chronic asthmatic bronchitis. Evaluate under the criteria for chronic
obstructive pulmonary disease in 3.02A;
Or
B. Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring
physician intervention, occurring at least once every 2 months or at least six times
a year. Each in-patient hospitalization for longer than 24 hours for control of
asthma counts as two attacks, and an evaluation period of at least 12 consecutive
months must be used to determine the frequency of attacks.
The parties agree that this version of Listing 3.03 was effective on the date of the ALJ’s
decision. Plaintiff points to record evidence that, he contends, shows six asthma attacks within
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one year and thus meets Listing 3.03B. The Commissioner responds that Plaintiff has
overlooked the phrase, “in spite of prescribed treatment,” and argues that the record shows that
Plaintiff was not using his prescribed treatment at the time of the attacks Plaintiff has cited. In
support, the Commissioner points to the Hokoken University Medical Center records of
Plaintiff’s ER visit on January 27, 2013, which state: “This is a 37 YO male patient with PMH:
asthma, not taking anything for it. He was prescribed ‘pumps every color’ but he never used
them.” (Tr. 386-87.) The same statements appear on the discharge summary for Plaintiff’s
hospitalization which followed the ER visit. (Tr. 525.)
The Commissioner contends that this evidence shows that Plaintiff had been prescribed
treatment for asthma but had never used the treatment; therefore, he did not meet the Listing
requirement that the attack was “in spite of prescribed treatment.” Plaintiff did not submit any
reply to the Commissioner’s opposition brief and thus has not contested the Commissioner’s
argument. This Court concludes that the ALJ’s decision at step three is supported by substantial
evidence.
Plaintiff’s next two points are both variants of the argument that the ALJ erred in the
weight he gave to the opinions of treating physicians versus state agency medical consultants.
The ALJ’s decision contains a long (almost nine pages) and very detailed explanation of the
residual functional capacity determination. (Tr. 26-35.) In relevant part, the ALJ considered the
reports by Plaintiff’s primary care physician, Dr. Haddad, and by Plaintiff’s pain management
physician, Dr. Lee, both of whom found more severe limitations to Plaintiff’s ability to work.
(Tr. 30-31.) The ALJ explained that she gave little weight to Dr. Haddad’s opinion because it
was inconsistent with the opinions of other treating physicians and with the opinion of the state

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agency medical consultant. (Tr. 34.) Furthermore, she stated that Dr. Haddad’s conclusion
about Plaintiff’s residual functional capacity was internally inconsistent with Dr. Haddad’s
statement that Plaintiff had said that “with rehabilitation and physical therapy he may be able to
return to work.” (Tr. 955.) The ALJ explained that she gave no weight to Dr. Lee’s opinion that
Plaintiff was unable to work because that was a determination reserved to the Commissioner.
(Tr. 34.) The ALJ stated that she agreed with the opinion of Dr. Udomsaph, a state agency nonreviewing physician, because it was supported by the evidence of record. (Tr. 34.)
Plaintiff contends that the ALJ “should have given greater weight to the treating
physicians.” (Pl.’s Br. 30.) As the Third Circuit stated in a recent decision:
A federal court’s substantial-evidence review is “quite limited.” Rutherford v.
Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). A court may not weigh the evidence
or substitute its own findings for the Commissioner’s. Monsour Med. Ctr. v.
Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986). [Plaintiff's] arguments amount to
a request to reweigh the evidence and review the Commissioner's findings and
decision de novo.
Davern v. Comm’r of Soc. Sec., 660 Fed. Appx. 169, 173-74 (3d Cir. 2016). This Court cannot
re-weigh the evidence. It can only review the Commissioner’s determinations under the
substantial evidence standard. In the instant case, this Court’s review of the residual functional
capacity determination is limited to assessing whether the determination is supported by
substantial evidence. It appears that the ALJ gave Dr. Udomsaph’s opinion the greatest weight.
Plaintiff has given this Court no basis to conclude that Dr. Udomsaph’s opinion does not
constitute substantial evidence.1

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This Court recognizes that the ALJ appeared to overlook Dr. Lee’s statement that
Plaintiff is unable to sit for more than four hours out of an eight-hour day. This cannot be more
than harmless error, because the instant issue turns on the question of whether Dr. Udomsaph’s
opinion constitutes substantial evidence. That the ALJ may have overlooked one piece of
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As the Third Circuit explained when it was presented with a similar argument on appeal
in another case and affirmed this Court’s decision:
[T]he ALJs did not violate any rule concerning the evidentiary weight due to
treating physicians’ opinions. Treating physicians’ opinions as to the nature and
severity of a claimant’s impairment (but not as to the ultimate legal issue of
disability, see 20 C.F.R. § 416.927(d)(1)) are entitled to “controlling weight” if
the Commissioner finds that those opinions are “well-supported by medically
acceptable clinical and laboratory diagnostic techniques” and are “not
inconsistent with the other substantial evidence” in the record. 20 C.F.R. §
416.927(c)(2). The District Courts properly considered and rejected [Plaintiff’s]
argument in this regard, finding that the ALJs adequately explained their reasons
for accepting or rejecting each of the treating physicians’ opinions.
Chaluisan v. Comm’r Soc. Sec., 481 Fed. Appx. 788, 791-92 (3d Cir. 2012). As just discussed,
even though it appears that the ALJ overlooked one element of Dr. Lee’s opinion, this does not
materially impact the determination that Dr. Udomsaph’s opinion constitutes substantial
evidence.
Lastly, Plaintiff argues that the record does not contain substantial evidence that Plaintiff
retains the residual functional capacity for light work. As just discussed, the ALJ relied on the
report submitted by Dr. Udomsaph, dated June 6, 2013, which states that Plaintiff can
occasionally lift twenty pounds and frequently lift ten pounds. (Tr. 93.) This fits the definition
of light work in the Regulations, 20 C.F.R. § 404.1567(b). Dr. Udomsaph’s report constitutes
substantial evidence that Plaintiff retains the residual functional capacity for light work.

conflicting medical evidence has no material impact on the assessment that the overall
determination is supported by substantial evidence.
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For the foregoing reasons, this Court finds that the Commissioner’s decision is supported
by substantial evidence, and the Commissioner’s decision is affirmed.
s/ Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.
Dated: August 10, 2017

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