BERGANTINO v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Claire C. Cecchi on 09/26/2017. (ek)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 2:16-cv-4$27 (CCC)
COMMISIONER Of SOCIAL SECURITY,
CECCHI, District Judge.
Before the Court is the appeal of Plaintiff Dominque Bergantino, for Linda M. Bergantino
(“Claimant”)’, seeking review of a final detennination by the Commissioner of the Social Security
Administration (“Commissioner”) denying Claimant’s application for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”) under
§ 216(i), 223(d), and
the Social Security Act (“SSA”). The issue to be decided is whether the Commissioner’s denial
of benefits is supported by substantial evidence, for the reasons set forth below, the decision of
Administrative Law Judge Dennis O’Leary (“AU”) is affirmed in part, vacated in part, and this
matter is remanded for further proceedings consistent with this Opinion.
Linda M. Bergantino died on November 8, 2016, and her daughter, Dominique Bergantino, was
substituted as the Plaintiff pursuant to an order signed on May 1, 2017. (ECF No. 12). This
Opinion uses the term “Claimant” to refer to Linda M. Bergantino.
Claimant applied for disability insurance benefits and supplemental security income on
October 11, 2012, alleging disability as of August 1, 2012. (ECF No. 5 (“Tr.”2) at 29). The
application was denied initially in February 2013, and upon reconsideration in July 2013. (Id.)
On September 25, 2014, a hearing was held before the AL
(Id.). The AU issued a decision on
December 2, 2014 finding Claimant was not disabled, as defined by the SSA. (Id. at 38 (citing 20
§ 404.1520(g) and 416.920(g))). Claimant requested review of the decision and the
Appeals Council denied the request on June 9, 2016. (Id. at 1-4). On August 8, 2016, Claimant
instituted this action. (ECF No. 1).
Claimant was born on August 23, 1960. (Tr. at 37). She has a high school education and
has completed two years of college. (Id. at 37, 229). Claimant testified that she lived with her
teenage daughter. (Id. at 60). Claimant reported that she used to read and cook, but ceased to be
able to do so due to her ailments. (Id. at 58, 60). Claimant reported that her daily activities
included watching television. (Id. at 64).
Claimant worked in a number of positions, including work as a customer service
representative, a cashier, and a receptionist. (Id. at 242). Claimant indicated in her disability report
that she last worked in 2010. (Id. at 230).
In 2006, Claimant underwent gastric bypass surgery.
(Id. at 33, 356-60).
underwent at least twenty-six subsequent surgeries, most of which were hernia repairs. (Id. at 33,
“Tr.” refers to the certified record of the administrative proceedings.
359-60). Claimant had additional diagnoses from various doctors, including degenerative disc
disease, diabetes mellitus, disc hemiation, and arthritis. (Id. at 33, 309-8 1, 426-82, 498-502, 163346). Claimant also had a history of polysubstance dependence and multiple emergency room visits
for abdominal pain. (Id.).
After Claimant received a driving under the influence charge, she was admitted to the
Bergen Regional Medical Center for a psychiatric evaluation with Dr. Joel S. Federbush on
January 11, 20]3, and subsequently Claimant was scheduled to begin a Mentally Ill Chemical
Abusers (“MICA”) partial hospitalization program. (Id. at 34, 494-97). Claimant was initially
discharged from the MICA program for non-compliance on February 26, 2013, and restarted the
program on March 27, 2013. (Id. at 34-35). As part of the program, she received a mental status
examination, which revealed coherent and intact thought processes and associations, no suicidal
or homicidal ideations, no delusions or hallucinations, fair judgment, moderate insight, intact
memory and cognitive functions, alertness, appropriateness, and a depressed mood. (Id. at 35,
937). Claimant was again discharged from the MICA program on April 22, 2013, and again
restarted the program on June 14, 2013. (Id. at 35). Claimant was discharged on June 12, 2013
with diagnoses of bipolar disorder I, alcohol abuse, and cocaine abuse. (Id. at 35, 951). During
Claimant’s mental examination on discharge, she was calm, cooperative, happy, and had a bright
During the time she was in and out of the MICA program, on February 6, 2013, Claimant
underwent a consultative examination with Dr. Richard Mills, the state agency medical consultant.
(Id. at 34-35, 498-500). The examination contrasted many of Claimant’s complaints of disabling
symptoms and limitations. (Id. at 34-35).
Following this, on December 26, 2013, Dr. Asad Hussein, a treating psychiatrist since July
1, 2013, completed a psychiatric impairment questionnaire.
(Id. at 35-36, 1617-24).
questionnaire reported diagnoses of major depressive disorder and panic disorder without
agoraphobia. (Id.). Dr. Hussein opined that Claimant had problems with understanding, memory,
concentration, social interaction, adaptation, and low-level stress. (Id.). It was further opined that
Claimant would be frequently absent from work. (Id.). Dr. Hussein also completed a multiple
impairment questionnaire. (Id. at 36, 1625-32). Dr. Hussein opined that in an eight-hour work
day, Claimant could sit for four to five hours, stand and walk for up to one hour, and lift and carry
no significant weight. (Id.).
On July 21, 2014, Dr. Krystyna Szewczyk-Szczech, a treating medical doctor since 2012,
completed an impairment questionnaire.
(Id. at 35, 1647-51).
The questionnaire reported
diagnoses of neck, back, knee, wrist, and abdominal pain, headaches, memory loss, right sided
mouth twitching, right foot movement, COPD, diabetes mellitus, and insomnia.
$zewczyk-Szczech opined that in an eight-hour work day, Claimant could sit, stand, and walk less
than one hour each, and that Claimant could occasionally lift and carry up to five pounds. (Id.).
It was further opined that Claimant had occasional use of her upper extremities, and that Claimant
had interference with her attention and concentration. (Id.).
Dr. Michael Olla, a treating psychiatrist since January 16, 2013, completed an additional
mental impairment questionnaire on September 15, 2014. (Id. at 36, 1733-3 7). The questionnaire
reported diagnoses of mood disorder, anxiety disorder, and psychotic disorder. (Id.). Dr. Olla
opined that Claimant had problems with understanding, memory, adaptation, concentration,
persistence, and social interaction. (Id.).
Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.s.c.
§ 405(g) and 1383(c)(3). The Court is not “permitted to re-weigh the evidence or impose [its]
own factual determinations,” but must give deference to the administrative findings. Chandler v.
Comm ‘r ofSoc. Sec.. 667 f.3d 356, 359 (3d Cir. 2011); see also 42 U.S.C.
§ 405(g). Nevertheless,
the Court must “scrutinize the record as a whole to determine whether the conclusions reached are
rational” and supported by substantial evidence. Gober v. Matthews, 574 F.2d 772, 776 (3d Cir.
197$) (citations omitted). Substantial evidence is more than a mere scintilla, and is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Chandler, 667
F.3d at 359 (citations omitted). If the factual record is adequately developed, substantial evidence
“may be ‘something less than the weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.” Daniels v. Astrue, No. 08-1676, 2009 WL
1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting Consolo
fed. Mar. Comm’n, 383 U.S. 607,
620 (1966)). In other words, under this deferential standard of review, the Court may not set aside
the AU’s decision merely because it would have come to a different conclusion. See Cruz v.
Comm ‘r of Soc. Sec., 244 F. App’x 475, 479 (3d Cir. 2007) (citing Hartranft v. Apfel, 181 f.3d
358, 360 (3d Cir. 1999)).
Pursuant to the SSA, in order to be eligible for benefits, a plaintiff must show she is
disabled by demonstrating an inability to “engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C.
423(d)(l)(A), 1382c(a)(3)(A). Taking into account the plaintiff’s age,
education, and work experience, disability will be evaluated by the plaintiff’s ability to engage in
her previous work or any other form of substantial gainful activity existing in the national
economy. 42 u.s.c. §S 423(d)(2)(A), 1382c(a)(3)(B). A person is disabled for these purposes
only if her physical or mental impairments are “of such severity that [s]he is not only unable to do
[her] previous work, but cannot, considering [her] age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.
§ § 423 (d)(2)(A),
Decisions regarding disability will be made individually and will be “based on evidence
adduced at a hearing.” Sykes v. Apfel, 22$ F.3d 259, 262 (3d Cir. 2000) (citing Heckler v.
Campbell, 461 U.S. 458, 467 (1983)). Congress has established the type of evidence necessary to
prove the existence of a disabling impairment by defining a physical or mental impairment as “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
Sequential Evaluation Process
The Social Security Administration follows a five-step, sequential evaluation to determine
whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R.
§ 404.1520, 4 16.920.
first, the AU must determine whether the plaintiff is currently engaged in substantial gainful
activity. See Sykes, 22$ F.3d at 262. Second, if she is not, the AU determines whether the plaintiff
has an impairment that limits her ability to work. See Id. Third, if she has such an impairment,
the AU considers the medical evidence to determine whether the impairment is listed in 20 C.F.R.
Part 404, Subpart P, Appendix I (the “Listings”). If it is, this results in a presumption of disability.
See Id. at 262-63. If the impairment is not in the Listings, the AU must determine how much
residual functional capacity (“RF C”) the applicant retains in spite of her impairment. See Id. at
263. Fourth, the AU must consider whether the plaintiffs RFC is enough to perform her past
relevant work. See Id. Fifth, if the plaintiffs RFC is not enough to perform her past relevant work,
the AU must determine whether there is other work in the national economy that the plaintiff can
perform. See Id.
The evaluation continues through each step unless it is determined at any point that the
plaintiff is or is not disabled. 20 C.F.R. §S 404.1520(a)(4), 416.920(a)(4). The plaintiff bears the
burden of proof at steps one, two, and four, and the burden shifts to the Commissioner at step five.
See Sykes, 228 F.3d at 263. Neither party bears the burden at step three. See Id. at 263 n.2.
Summary of the AU’s Findings
At step one, the AU found that Claimant met the insured status requirements of the SSA
and had not engaged in substantial gainful work activity since the onset date of the alleged
disability. (Tr. at 31).
At steps two and three, the AU found that Claimant’s impairments of status post gastric
bypass surgery and multiple hernia repairs, degenerative disk disease, diabetes mellitus, disc
herniation, arthritis, depression, bipolar disorder, anxiety, and panic disorder without agoraphobia
were “severe,” but not severe enough to meet, either individually or in combination, any of the
impairments listed in 20 C.F.R.
Subpart P, Appendix 1. (Id. at 3 1-32).
The AU concluded that Claimant had the residual functional capacity (“RFC”) to perform
light work as defined in 20 C.F.R.
§ 404.1567(b) and 416.967(b), involving “jobs of a simple and
repetitive nature involving one to two step processes; and involving occasional but not frequent
fine fingering and manipulation.” (Id. at 33).
To reach this conclusion, the AU considered all of Claimant’s symptoms and their
consistency with the evidence.
found that Claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, Claimant’s
statements concerning the intensity, persistence, and limiting effects of these symptoms were not
entirely credible for several reasons. (Id. at 33-36).
At step four, the AU found Claimant incapable of performing past relevant work as either
a customer service representative or a receptionist, both of which require work at the sedentary
exertional level, or as a cashier, which requires work at the light exertional level. (Id. at 37).
finally, at step five, the AU considered Claimant’s age, education, work experience, and
RFC, and concluded that Claimant has the ability to work in jobs that exist in significant numbers
in the national economy. (Id.). The AU emphasized that Claimant was fifty-one years old, which
is defined as an individual closely approaching advanced age. on the date the application was filed.
(Id.). A vocational expert (“yE”) testified that given all of Claimant’s individual factors, she
would be able to perform the requirements of representative occupations such as produce weigher,
a labeler, or a preparer. (Id. at 37-38). The AU determined that the VE’s testimony was consistent
with the information contained in the Dictionary of Occupational Titles (“DOT”), and found that
Claimant is “capable of making a successful adjustment to other work that exists in significant
numbers in the national economy.” (Id. at 38). Thus, the AU concluded that Claimant is not
disabled under the SSA. (Id.).
Claimant makes the following arguments in support of her contention that the AUJ’s
decision should be reversed or remanded: (1) the AU failed to properly weigh the medical
evidence and properly determine Claimant’s RFC; (2) the AU
failed to properly evaluate
Claimant’s credibility; and (3) the AU relied on flawed VE testimony. The Court will address
each argument in turn.
Claimant challenges the AU’s RFC assessment.
Claimant argues that the AU
inadequately weighed her treating psychiatrists’ and physician’s opinions. (ECF No. 9 at 24-31).
“When a conflict in the evidence exists, the AU may choose whom to credit but ‘cannot
reject evidence for no reason or for the wrong reason.’ The AU must consider all the evidence
and give some reason for discounting the evidence she rejects.” Flummer v. Apfel, 186 f.3d 422,
429 (3d Cir. 1999) (citations omitted). further, an AU must give a treating physician’s opinion
controlling weight when the opinion is 1) “well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and 2) “is not inconsistent with the other substantial evidence in
[the claimant’s] case record.” Johnson v. Comm’r ofSoc. Sec., 529 f.3d 198, 202 (3d Cir.2008)
(alteration in original) (citations omitted); see also 20 C.F.R.
(stating the same legal standard).
Here, the AU considered all of the medical evidence and provided an explanation for why
he chose to discredit Drs. Hussein and Olla, Claimant’s treating psychiatrists, and Dr. Szewczyk
Szezech, Claimant’s treating physician. (Tr. at 35-36). As detailed in his opinion, the AU
considered all of the evidence provided by the doctors. (Id.). Affording Drs. Hussein and Olla’s
opinions limited weight, the AU explained in detail the reasons for discounting the evidence that
he rejected. (Id.). Among these reasons were that Drs. Hussein and Olla’s opinions were not
supported by the record, were inconsistent with their clinical notes, and were inconsistent with
Claimant’s mental status examinations. (Id.). The AU noted that:
[C]linical notes dated August 16, 2013 through April 24, 2014, indicated that the
[C]laimant was compliant with medications and she had been overall stable
included outpatient psychotherapy clinical notes from Dr. Hussein and Dr. Qua. In
addition, mental status examinations during the MICA programs in 2013, indicated that the
[C]laimant did not have depressive symptoms and was psychiatrically stable.
(Id. at 36).
The AU similarly explained the reasons for affording Dr. Szewczyk-Szezech’s opinions
little weight. (Id. at 35). The AU noted that Dr. Szewczyk-Szezech’s opinions were not supported
by any treating or clinical notes. (Id. at 35, 1647-51). It is undisputed that Claimant bears the
burden of providing evidence that she did not have the RFC to perform any substantial gainful
activity as of her alleged onset date.
See 20 C.F.R.
§ 404.1 545(a)(3) (“In general, you are
responsible for providing the evidence we will use to make a finding about your residual functional
capacity.”); Poulos v. Comm ‘r ofSoc. Sec., 474 f.3d 88, 92 (3d Cir. 2007) (“The claimant bears
the ultimate burden of establishing steps one through four.”) (citing Ramirez v. Barnhart, 372 F.3d
546, 550 (3d Cir. 2004)). With the evidence provided, the AU must determine whether Claimant
suffers from an underlying “medically determinable impairment that could reasonably be expected
to produce [Claimant’s] symptoms.” 20 C.F.R.
§ 404.1529(b), 416.929(b). Here, Claimant had
the burden to produce all medical records.
As such, there is no indication that the AU “reject[ed] evidence for no reason or for the
wrong reason.” See Plummer, 186 f,3d at 429. further, an AU is not required to give a treating
doctor’s opinion controlling weight when he finds that opinion is inconsistent with other
substantial evidence in the record. See Johnson, 529 f.3d at 202.
Claimant additionally argues that the AU failed to comply with Social Security Ruling
(“SSR”) 96-8 because the AU “failed to cite to any specific medical facts or even persuasive non
medical evidence to support the physical or mental RFC found for [Claimant.]” (ECF No. 9 at
Here, the AU fully considered all of the medical evidence and sufficiently articulated his
conclusions. The AU based his decision upon the Claimant’s mental status examinations, Dr.
Mills’ consultative examination, and Claimant’s subjective complaints. (Tr. at 33-36, 498-500,
1666-70, 1675-81). See Neal v. Cornm’r of Soc. Sec., 57 F. App’x 976, 979-980 (3d Cir. 2003)
(“The findings of fact made by state agency medical consultants must be treated as expert opinion
). Moreover, as explained above, the AU sufficiently explained why he afforded
Drs. Hussein and Olla’s opinions limited weight, and Dr. $zewczyk-Szezech’s little weight when
determining the RFC. (Tr. at 3 5-36). This is “the narrative discussion [under the SSR] describing
how the evidence supports each conclusion” that the AU is required to conduct. SSR 96-$p.
Accordingly, the Court finds that the AU’s consideration of the medical evidence and RFC
assessment is supported by substantial evidence, and Claimant’s argument is without merit.
Claimant argues that the AU improperly discounted Claimant’s testimony. Claimant
argues that “an AU must give great weight to a plaintiffs subjective testimony of an inability to
perform work when his testimony is supported by competent medical evidence, as it is in this
case.” (ECF No. 9 at 33).
A plaintiffs allegations, standing alone, will not establish that she is disabled. See 20
§ 404.1529(a) (“[S]tatements about your pain or other symptoms will not alone establish
that you are disabled.”). When evaluating credibility, the AU must consider the extent to which
the plaintiffs self-reported symptoms can “reasonably be accepted as consistent with the objective
medical evidence and other evidence.” Id. The plaintiffs treatment history and daily activities
are relevant factors in assessing credibility. Id.
The AU, as the factfinder, determines whether the plaintiffs subjective complaints are
consistent with the objective medical evidence and, if not, the AU may discount them. Id.
§ 404.1 529(c)(4). Where the AU “has articulated reasons supporting a credibility determination,”
and substantial evidence supports the AU’s findings, that determination will be entitled to “great
deference.” See Horodenski v. Comm’r of Soc. Sec., 215 F. App’x 183, 188-89 (3d Cir. 2007)
(quoting Atl. Limousine, Inc. v. NLRB, 243 f.3d 711, 71$ (3d Cir. 2001)); Vancordv. Co/yin, No.
13-27, 2014 WL 585413, at *2 (W.D. Pa. Feb. 14, 2014) (“[U]nder a deferential substantial
evidence standard of review, it is particularly inappropriate to second guess such credibility
Here, the AU determined that Claimant’s “statements concerning the intensity, persistence
and limiting effects of [her] symptoms are not entirely credible.” (Tr. at 33). The AU did not
“fail to give a single specific reason for finding [Claimant] not credible.” (ECF No. 9 at 36).
Rather, the AU’s explanation took Claimant’s testimony into account and noted that:
[C]laimant’s primary complaints were back and neck pain. She also had a noticeable
“twitching” on one side of her mouth. This apparently started two months prior to the
hearing and was of unknown etiology. During the hearing, the [C]laimant indicated that
she had bipolar disorder and became angry and threw things. She described having mood
swings and said she heard voices. However, there is no mention of this in her clinical
notes. The [C]laimant related that she had trouble with concentration but when pressed for
examples, she gave normal forgetfulness such as forgetting conversations sometimes.
The [C]laimant indicated that she had carpal tunnel syndrome, which was noted by her
primary care physician. However, there are no records of any electrodiagnostic testing and
no indication of any treatment for this.
Overall, the [C]laimant has received infrequent treatment for her back issues, no surgery
and no epidurals.
(Tr. at 36).
The AU further noted that Claimant’s complaints were inconsistent with the results that
Dr. Mills reported during Claimant’s February 6, 2013 physical consultative examination. See
Garrett v. Comm ‘r of soc. Sec., 274 F. App’x 1 59, 164 (3d Cir. 2008) (stating that unremarkable
physical examinations are relevant in determining that plaintiff was not fully credible). In contrast
to Claimant’s complaints of disabling symptoms and limitations, Dr. Mills reported that:
[Claimant] transferred papers appropriately, put her shoes on and off without difficulty,
and ascended and descended the exam table unassisted. [her] sensation was intact..
[r]ange of motion was intact except [for reduced shoulder
[m]otor strength was 5/5
forward flexion and shoulder abduction]... [s]he could fully extend her hands, make
fists, and oppose all digits, [h]er grip and pinch strength [were] 5/5
observed to turn her neck at least 70 degrees in both directions when she was not being
formally tested. [s]he walk[ed] on her heels and toes, [s]he walked at a reasonable pace
without a handheld assistive device. [and] she was not utilizing a cane.
(Tr. at 34-35, 498-500).
Additionally, the AU compared Claimant’s complaints of extreme limitations due to her
mental impairments with the objective medical evidence.
explained that despite
Claimant’s complaints, clinical notes and mental status examinations “indicated that the
did not have depressive symptoms and was psychiatrically
stable.” (Id. at 36).
sufficiently explained his analysis of the medical evidence and identified
evidentiary support for his conclusion that Claimant’s subjective complaints were not entirely
credible. Accordingly the Court finds the AU’s determination of Claimant’s credibility was
supported by substantial evidence, and Claimant’s argument is without merit.
Finally, Claimant asserts that the AU’s step five finding was not supported by substantial
evidence because the hypothetical question asked to the vocational expert (“yE”) did not reflect
all of Claimant’s credibly established impairments and limitations. ECF No. 9 at 36-39. See
Rutherford v. Barnhart, 399 f.3d 546, 553 (3d. Cir. 2005) (finding that the AU must convey to
the VE all of the credibly established limitations); see also Ramirez v. Barnhart, 372 F.3d, 546
(3d. Cir. 2004) (stating that when an AU incorporates a claimant’s limitations into a hypothetical,
Specifically, Claimant asserts that the AU’s
“great specificity” and accuracy is required).
hypothetical to the yE, contemplating the ability to perform ‘jobs of a simple and repetitive nature
involving one and two-step processes,” did not properly account for Claimant’s moderate
difficulties in maintaining concentration, persistence, or pace. ECF No. 9 at 36-39.
An AU may ask a VE to “offer expert opinion testimony in response to a hypothetical
question about whether a person with the physical and mental limitations imposed by the
claimant’s medical impairment(s) can meet the demands of the claimant’s previous work, either
as the claimant actually performed it or as generally performed in the national economy.” 20
The AU’s hypothetical question to the VE must accurately convey all credibly established
limitations. See Green v. Colvin, No. 14-1942, 2016 WL 1696797 at *3 (E.D. Pa. Apr. 27, 2016)
(finding that an AU’s RFC evaluation and hypothetical question were deficient because they failed
to incorporate the AU’s own findings that the claimant has mild limitations with concentration,
persistence, or pace). Here, at step three, the AU determined Claimant had moderate difficulties
with regard to concentration, persistence, or pace. Tr. at 32. The AU’s hypothetical question to
the VE noted that Claimant could perform only ‘jobs of a simple and repetitive nature involving
one and two-step processes.” Yr. at 6$. The Court finds it is unclear whether the AU sufficiently
included his step three findings in the hypothetical question to the yE. This limitation to simple
and repetitive work does not appear to account for Claimant’s difficulties in concentration,
persistence, and pace as established by the RFC analysis.
See Ramirez, 372 f.3d at 546
(hypothetical question to VE limiting claimant to “simple one or two step tasks” failed to account
for the “deficiencies in pace” noted by the AU at step three). On remand, the AU should include
all of Claimant’s credibly established impairments and limitations in his hypothetical questions to
For the foregoing reasons, AU’s decision is affirmed in part, vacated in part, and the matter
is remanded for further administrative proceedings consistent with this Opinion. An appropriate
Order accompanies this Opinion.
CLAIRE C. CECCHI, U.S.D.J.
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