JACQUES v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION. Signed by Chief Judge Jose L. Linares on 6/14/2017. (ld, )

NOT FOR PUBLICATION

UNiTED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ROBERT J. JACQUES, JR.,

Civil Action No. 2:16-cv-4455 (JLL)

Plaintiff,
OPINION

V.

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

Defendant.

LINARES, Chief Judge.

Before this Court is Robert J. Jacques, Jr. (hereinafter “Plaintiff’ or “Claimant”)’s appeal,
which seeks review of Administrative Law Judge (“AU”) Donna A. Krappa’s denial of
Plaintiffs application for disability insurance benefits and supplemental security income under
the Social Security Act (the “Act”).

falls under 42 U.S.C.

§

405 (g).

The Court’s jurisdiction to review Plaintiffs appeal

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 Local Civil Rule 9.1(f).

F or the reasons set forth below, the Court finds that the

AU’s decision is supported by substantial evidence and affirms AU Krappa’s determination.

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I.

BACKGROUND1

On May 8, 2012, Plaintiff filed a Title II and Title XVI application with the Social Security
Administration (the “Administration”) claiming a period of disability, seeking disability
insurance benefits and supplemental security income. R. at 14.

Plaintiff alleges an onset date of

October 10, 2010. Id. at 14, 77. Both claims were denied initially on October 4, 2012 and then
upon reconsideration on April 15, 2013. Id at 76, 88. Plaintiff then requested a hearing on May
9, 2013. Id. at 107. A hearing was held on May 28, 2014 in Newark, New Jersey during which
the Plaintiff and vocational expert Patricia Sasona (“Ms. Sasona”) provided testimony. Id. at 49
—54.
Based upon Plaintiffs applications, AU Krappa issued a decision on September 26, 2014
finding the Plaintiff not disabled under sections 216(i), 223(d) and 1614(a)(3)(A) of the Act. Id.
at 23. Thereafter, Plaintiff requested that the Appeals Council review AU Krappa’s decision;
this request was subsequently denied thereby affirming the AU’s decision as the final decision
of the Commissioner. Id. at 1 —4.
Plaintiff filed the appeal currently pending before this Court on July 22, 2016. (ECF No. 1,
“Compl.”). A brief was filed by the Plaintiff in support of the instant appeal (ECF No. 12, “Pl.’s
Br.”) on february 2, 2017. On March 17, 2017, Defendant submitted a brief in opposition (ECF
No. 13, “Opp’n Br.”).
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.

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

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II.

STANDARD OF REVIEW

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

42

U.S.C. §S 405(g), 1383(c)(3); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). “Substantial
evidence means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion,” and “[i]t 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 adeqtiately 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 penuit 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
instirance benefits and supplemental security income to disabled individuals. 42 U.S.C.

§S 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
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period of not less than twelve months.” 42 U.S.C.

§ 423 (d)(1)(A). A person is unable to engage

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

§ 423 (d)(2)(A).

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

§ 404.1520(a)(1), 416.920(a)(1). The claimant bears the burden of proof at steps one

through four whereas the Administration bears the burden at step five. Foulos v. Comm ‘r ofSoc.
Sec., 474 F. 3d 88, 92 (3d Cir. 2007) (citing Ramire: v. Barnhart, 372 F. 3d 546, 550 (3d Cir.
2004)).

The first step in the sequential evaluation process requires that the AU determine

whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R.

§ 404.1520

(a). If it is found that the claimant is engaged in substantial activity, the disability claim will be
denied. Bowen v. Yuckert, 482 U.S. 137, 140 (1987).

Alternatively, if it is found that the

claimant is not engaged in substantial gainful activity the evaluation proceeds to step two. Id. At
step two, the ALl 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 (“RFC”) and also as to the

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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.

§ 404.1520 (d). The

claimant bears the burden of demonstrating an inability to return to her past relevant work.
Adorno v. Shatala, 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
shifts the burden of proof to the “Administration to show that the claimant is capable of
performing other jobs existing in significant numbers in the national economy, considering the
claimant’s age, education, work experience and [RFC].” Ramirez, 372 F.3d at 551; 20 C.F.R.

§

404.1520(0. The AL] must analyze the cumulative effect of all the claimant’s impairments in
determining whether she is capable of performing work and is not disabled. Jones, 364 f.3d at
503.
Additionally, under the Act, disability must be established by objective medical evidence.
To this end, “[a]n individual’s statement as to pain or other symptoms shall not alone be
conclusive evidence of disability as defined in this section.” 42 U.S.C.

§ 423(d)(5)(A). Instead,

a finding that one is disabled requires:
[M]edical signs and findings, established by medically acceptable
clinical or laboratory diagnostic techniques, which show the
existence of a medical impairment that results from anatomical,
physiological, or psychological abnormalities which could
reasonably be expected to produce the pain or other symptoms
alleged and which, when considered with all evidence required to
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). F actors to consider in determining how to weigh evidence

from medical sources include: (1) the examining relationship; (2) the treatment relationship,
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including the length, frequency, nature, and extent of the treatment; (3) the supportability of the
opinion; (4) its consistency with the record as a whole; and (5) the specialization of the
individual giving the opinion. 20 C.F.R.
IV.

§ 404.1527(c).

DISCUSSION

After applying the five-step evaluation process, AU Krappa determined that Plaintiff had not
been under a disability within the meaning of the Act from October 10, 2010 through September
26, 2014, the date of the administrative decision. R. at 22. At step one, the AU found that
Plaintiff had not engaged in substantial gainful activity since October 10, 2010, the alleged date
of onset. Id. at 16.

At step two, AU Krappa determined that Plaintiff suffered from the

following severe impairments: disorder of the bilateral knees and disorder of the back (20 C.F.R.
§ss 404.1520(c) and 416.920(c)). Id. Thereafter, at step three, the AU opined that Plaintiffs

impairments or a combination of impairments neither met nor medically equaled the severity of
one of the listed impairments 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. at 18.

§

Before

proceeding to step four, AU Krappa set forth that Plaintiff had the RFC to “lift/carry 20 lbs.
occasionally and 10 lbs. frequently; stand/walk for 6 hours in an eight hour work day; sit for 6
hours in an eight hour work day; and perform unlimited pushing and pulling within the weight
restriction given.” Id. The AU further asserted that regarding the postural and environmental
demands of work, Plaintiff is able to perform jobs that require no use of ladders, ropes or
scaffolds that require only occasional use of ramps or stairs and that require occasional
balancing, stooping, kneeling, crouching andlor crawling. Id.

Next, at step four, AU Krappa

found that Plaintiff is unable to perform any past relevant work (20 C.F.R.
416.965). Id. at 21.

§ 404.1565 and

At the final step, after considering the Plaintiffs age, education, work

6

experience and RFC, AU Krappa detenuined that there are jobs that exist in significant numbers
in the national economy that Plaintiff can perform (20 C.F.R.
and 416.969(a)). Id. at 21.

§

404.1569, 404.1569(a), 416.969

In making the final determination, the AU also took into account

the testimony of vocational expert Ms. Sasona. Id. at 22.

Ms. Sasona testified that jobs exist in

the national economy that an individual with the claimant’s age, education, work experience and
RFC would be capable of performing. Id. These occupations include: assembler of electrical
accessories (DOT # 929.687-0 10) of which 12,000 positions are available nationally, garment
sorter (DOT #222.687-014) of which 16,000 positions are available nationally, and ticket taker
(DOT # 344.667-0 10) of which 20,000 positions are available nationally. Id. Pursuant to SSR
OO-4p, AU Krappa determined that the vocational expert’s testimony was consistent with the
information contained in the Dictionary of Occupational Titles. Id. at 22.

AU

Krappa

concluded that, based on Ms. Sasona’s testimony, and in consideration of Plaintiffs age,
education, work experience and RFC, 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.

Plaintiff sets forth two arguments in

support of the instant appeal. first, Plaintiff purports that the RFC is not based on substantial
evidence and secondly that the failure to combine Plaintiff’s severe impairments or discuss
medical equivalence renders AU Krappa’s Step Three finding beyond judicial review. Pl.’s Br.
14, 24. The Court finds Plaintiffs arguments unpersuasive and for the reasons discussed below
determines that substantial evidence supports AU Krappa’s decision.
A. Substantial Evidence Supports AU Krappa’s RFC Determination
Plaintiff argues that the AUJ’s RFC determination is not based on substantial evidence
because the AU failed to account for Dr. Rashel Potashnik, M.D. (“Dr. Potashnik”)’s medical

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opinion and to also consider Plaintiffs use of a cane in the RFC evaluation. P1.’s Br. 25.

In

mm, Defendant refutes Plaintiffs allegations by citing to excerpts in the administrative decision
that refer to specific instances where AU

Krappa refers to both Dr. Potashnik’s medical

assessment and Plaintiff use of a cane while ambulating. Def’s Br. 12, 13. The Court finds
stibstantial evidence supports AU Krappa’s RFC assessment.
Plaintiff bases his challenge to the RFC finding on the contention that “the AU rejects
{P]laintiff s pain as not entirely credible for the reasons explained in [the administrative]
decision” and that “those reasons never materialize and Dr. Potashnik’s persistent pain diagnosis
is nowhere to be found.” Pl.’s Br. 25-26.
The Court finds this argument without merit as the RFC is an administrative finding that the
AU is solely responsible for determining, based on consideration of the record as a whole. See
20 C.F.R.

§

404.1527(e). In making the RFC determination, the Third Circuit has made clear

that an AU is not required “to adhere to any set fonriat 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).
ALl Krappa complies with this standard and in accordance with Third Circuit precedent, AU
Krappa incorporates Dr. Potashnik’s findings regarding Plaintiffs range of motion at 150
degrees and the associated pain on end ranges and mild crepitus into her evaluation. R. at 20.
Further included in the administrative decision, AU Krappa states that the remainder of Dr.
Potashnik’s examination did not reveal any tenderness with normal range of motion, strength,
and sensory. Id.

AU Krappa then highlights that Dr. Potashnik “noted the examination was

limited due to the claimant’s refusal to cooperate.” R. at 20. AU Krappa asserts, after assessing
and describing the medical evaluations of Dr. Potashnik, Dr. Gregory Lane, M.D. (“Dr. Lane”),

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Dr. George Long, M.D. (“Dr. Long”) and the State agency physicians, that “restrictions have
been considered and incorporated into the residual functional capacity fashioned in [the]
decision. No other examining or treating physician has opined that the claimant is disabled and
unable to work.” Id.
Plaintiff asserts that Dr. Potashnik’s physical examination and conclusion directly contradicts
the AU’s RFC determination and the administrative decision ignores the fact that Plaintiff
ambulates with a cane. Pl.’s Br. 25. This argument does not hold weight because 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 AU 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 Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011)); 20 C.F.R.

§

404.1527(c)(2); see

also Coleman v. Comm ‘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, nonexamining physician, the AU may choose whom to credit but cannot reject evidence for no
reason or for the wrong reason.”) (qtloting Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000));
Flzimmer v. Apfel, 186 f.3d 422, 429 (3d Cir. 1999) (“An AU may reject 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.”),

furthermore, this argument also fails

because, as discussed below, AU Krappa does in fact take into account Ptaintifrs use of a cane

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and Dr. Potashnik’s record of this fact in his medical assessment.
The allegation that AU Krappa ignored Plaintiffs need for a cane is without merit because
the administrative decision addresses Plaintiffs use of a cane. AU Krappa notes Plaintiff “uses
a cane all the time” and that Dr. Potashnik, who performed an independent orthopedic evaluation
of the Plaintiff, reported that Plaintiff ambulated with a cane. R. at 19-20.

The administrative

decision proceeds to assess Plaintiffs ability to perform physical activities and sets forth that the
Plaintiff in his function report indicated “he is able to take care of his personal needs, although it
takes him longer. He prepares light meals, cleans shops in stores and does his own laundry.
Plaintiff goes fishing, goes to the park, plays poker and goes paintballing once a week.” Id. at 20.
In her analysis, AU Krappa then states that despite Plaintiffs current claims of functional
decline, the medical evidence shows no significant objective change in his medical condition to
warrant such a change in functioning and that in “[the AU’s] judgment the daily activities the
[C]lairnant has reported, when considered in conjunction with the medical evidence are not
consistent with a finding of disability.”

Id.

As highlighted above, AU Krappa’s analysis

includes Plaintiffs use of a cane in the overall assessment and therefore Plaintiffs argument
fails as to this contention.
Plaintiff additionally argues that the “Cotter Doctrine stands for the dual principles that the
administrative decision must recite all probative evidence and explain which entries were
19. further, Plaintiff asserts that “the second

persuasive, which weren’t and why.” Pl.’s Br.

principle of the Cotter Doctrine insists that an administrative decision issue findings and
conclusions that are both comprehensive.” Id. Here, the AU did not ignore or fail to credit
probative evidence as alleged by Plaintiff.

Plaintiffs two contentions in support of this

argument fail as the AU address both Plaintiffs use of a cane and Dr. Potashnik’s medical

10

evaluation in the administrative decision. Under Cotter, “the AU [is required to] indicate that
s/he has considered all the evidence, both for and against the claim, and provide some
explanation of why s/he has rejected probative evidence which would have suggested a contrary
disposition.

.

.

.

[T]he AU

is not required to supply a comprehensive explanation for the

rejection of evidence; in most cases, a sentence or short paragraph would probably suffice.” See
Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981). Furthermore, the Third Circuit stated in
Cotter “probative evidence [was] not credited or simply ignored.” Kelley v. Barnhart, 138 Fed.
App’x 505, 509 (3d Cir. 2005)(citing Cotter, 642 F. 3d at 706-07).

In light of the reasons

discussed above, the Court affirms AU Krappa’s RFC finding.
B. AU Krappa’s findings at Step Three are Supported by Substantial
Evidence

Plaintiff argues that AU Krappa’s purported failure to combine Plaintiffs severe
impairments or discuss medical equivalence renders the Step Three finding beyond judicial
review. Pl.’s Br. 26.
the AU

In turn, Defendant asserts that Plaintiffs argument lacks merit because

specifically considered Plaintiffs impairments under Listings 1.02 and 1.04 and

correctly found that Plaintiff did not meet all of the required criteria.

Def’s Br. 19.

After

carefully reviewing the record, the Court finds AU Krappa’s Step Three analysis sufficient and
affirms the Step Three determination.
In Jones, the Third Circuit made clear that Burnett “does not require the AU to use particular
language or adhere to a particular format in conducting his analysis,” so long as the AU
provides sufficient analysis “to permit meaningful review.” 364 F.3d at 505; see also Scitderi v.
Comm ‘r of Soc. Sec., 302 F. App’x $8, 90 (3d Cir. 200$) (“[A]n AU need not specifically
mention any of the listed impairments in order to make a judicially reviewable finding, provided
that the AU’s decision clearly analyzes and evaluates the relevant medical evidence as it relates
11

to the Listing requirements.”); Klangwald v. Comm ‘r of Soc. Sec., 269 F. App’x 202, 204 (3d

Cir. 2008)(”After broadly concluding that [the claimant] ‘has no impairment, which meets the
criteria of any of the listed ilupairnients,’ the AU followed this conclusion with a searching
review of the medical evidence. Under our precedents, this is sufficient.”).
PLaintiff challenges the AU’s decision at Step Three alleging that the administrative decision
does not “claim to have combined the pathology in [P]laintiff s right knee, left knee and lower
back in combination or to have compared all of [P]laintiffs pathologies to a listed impairment.”
Pl.’s Br. 29.

The Court finds Plaintiffs argument unconvincing since ALl Krappa fulfills her

burden by sufficiently assessing the medical evidence and analyzing the maimer in which the
medical evidence relates to the listing requirements throughout the administrative decision. See
R. at 18-21. For example, the AU sets forth the requirements under Listing 1.02 needed to meet
a finding of disability in the instant case. AU Krappa asserts that dysfunction of a major-weight
bearing joint due to any cause requires a condition characterized by gross anatomical deformity,
chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of
the affected joints and findings of joint space narrowing, bony destruction, or ankyloses of the
affected joints coupled with either the involvement of one major peripheral weight-bearing joint
resulting in the inability to ambulate effectively as defined in 1 .OOB2b or the involvement of one
major peripheral joint in each upper extremity resulting in the inability to perform fine and gross
movement effectively as defined in l.OOB2c. Id. at 18. AU Krappa then proceeds to assess
Plaintiffs disorder of the lumbar spine asserting that:
The [C]laimant’s disorder of the lumbar spine does not meet Listing 1.04 because
the record does not demonstrate compromise of nerve root (including the cauda
equina) or the spinal cord with additional findings of: A) evidence of never root
compression characterized by nuero-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with associated muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of the lower
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back, positive straight-leg raising; or B) spinal arachnoiditis; or C) lumbar spinal
stenosis resuLting in pseudoclaudication.
Id. Moreover, the administrative decision recounts Plaintiffs symptoms due to his disorder
of the bilateral knee and lumbar spine disorder diagnoses resulting from a motor vehicle
accident that occurred in 2010, subsequent medical examinations by Dr. Lane, Dr.
Potashnik, and Dr. Long, and Plaintiffs alleged level of pain and level of daily functioning.
Id. at 19-20. Because Third Circuit precedent requires that the AU engage in an analysis
of the medical evidence but does not require that the evaluation occur at a specific point
within the administrative decision, the Court is satisfied that the AU fulfilled her burden
by providing a thorough evaluation of the relevant medical evidence.

In light of the

foregoing and in conjunction with AU Krappa’s assessment of the medical evidence of
record, the Court finds that AU

Krappa’s determination provides analysis to permit

meaningful judicial review as required by Third Circuit precedent.
findings are supported by substantial evidence.

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Moreover, these

V.

CONCLUSION

After reviewing the administrative record in its entirety and for the reasons discussed above,
the Court finds that the AU’s determination that the Plaintiff is not disabled is supported by
substantial evidence. Accordingly, AU Krappa’s decision is affirmed. An appropriate Order
follows this Opinion.

1

DATED: June 2O17

CHIEF JUDGE, U.S. DISTRICT COURT

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