GRECO v. COMMISSIONER OF SOCIAL SECURITY
Filing
26
OPINION. Signed by Judge Claire C. Cecchi on 12/20/2018. (JB, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 16-7829 (CCC)
LOIS E. GRECO,
Plaintiff,
OPINION
V.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
CECCHI, District Judge.
I.
INTRODUCTION
Before the Court is Plaintiff Lois E. Greco’s appeal seeking review of a final determination
by the Commissioner of the Social Security Administration (“Commissioner”) denying her
application for disability insurance benefits under Title II of 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 the Administrative Law Judge (“AU”)
is vacated and remanded for further proceedings.
A.
Procedural Background
Plaintiff applied for disability insurance benefits on August 1, 2012, alleging disability as
of May 30, 2010. (Tr) at 21). The application was denied initially on February 12, 2013 and upon
reconsideration in September 2013. (Id.). On March 27, 2015, a hearing was held before AU
John Giannopoulos. (Id.). AU Giannopoulos issued a decision on May 11,2015 finding Plaintiff
was still capable of performing past relevant work despite her severe impairments and was
“Tr.” refers to the certified record of the administrative proceedings. (ECF No. 13).
therefore not disabled, as defined by the $$A. (Id. at 23-30). Plaintiff requested review of the
decision and the Appeals Council denied the request on August 31, 2016. (Id. at 1-3). This appeal
followed. (ECF No. 1).
B.
Factual Background
Plaintiff is currently 67 years old and has a high school education. (Tr. at 190, 206).
Plaintiff is certified as a medical assistant and worked as a medical assistant from 1970 until 2010.
(Id. at 96, 206). After the alleged disability onset date, Plaintiff stopped working full time but
began working part time in July 2014. (Id. at 23).
Plaintiff alleges that herniated discs in her cervical and lumbar spine, prior surgeries,
depression, anxiety and panic disorder limit her ability to work. (Id.). In February 2006, Plaintiff
was diagnosed with a disc hemiation at the L3-4 level and subsequently underwent a lumbar
discectomy at L3-4, performed by Dr. Partick Roth. (Id. at 359-60, 387-88). According to her
treating physician Dr. Keshishian, Plaintiff continued to suffer from severe back pain after the
surgery. (Id. at 340-4 1). Plaintiff underwent a left discectomy at the L4-5 level on June 25, 2009,
again performed by Dr. Roth. (Id. at 389-92). In November 2010, Plaintiff was complaining of
right knee pain and underwent an MRI of her cervical spine. (Id. at 284-85). The MRI showed
solid fusions from previous surgery, small focus areas of myelomalacia, disc herniation, mild
impingement, and moderate to severe foraminal stenosis.
(Id. at 290, 293).
A state health
examiner, Justin Fernando, M.D., conducted a consultative evaluation of Plaintiff in July 2011.
Dr. Fernando found that Plaintiff had full range of motion of the upper extremity joints, hips,
knees, and ankles, full extension of the lumbar spine, but some restricted range of motion of the
cervical spine. (Id. at 273). Dr. Fernando also noted that Plaintiffs subjective claims of weakness
were unsupported by his examination results. (Id.).
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In January 2013, Plaintiff underwent an updated consultative examination with Dr.
Fernando after Plaintiff complained that she had severe pain in her back and neck. (Id. at 434-35).
Dr. Fernando diagnosed Plaintiff with chronic cervical pain, noted Plaintiffs history of disc
herniation in the cervical spine, and also stated that there was no present indication of any residual
impingement of the nerve roots in the lumbar spine. (Id. at 436). On June 15, 2013, Plaintiff
underwent an additional MRI of her lumbar spine that showed multi-level degenerative disc
disease but that the vertebral body heights were well maintained. (Id, at 509-10). Dr. Keshishian,
Plaintiffs treating physician from 2001 to 2015, evaluated Plaintiffs impairments and concluded
that Plaintiff has “a poor prognosis for full time employment.” (Id. at 52$).
In addition to Plaintiffs cervical and lumbar spine issues, Plaintiff began experiencing
abdominal pain in March 2013. Plaintiff had a stent graft repair of an abdominal aortic aneurysm
found in Plaintiffs abdomen and pelvis in June 2013. (Id. at 441-42, 489-99). A CT angiogram
in September 2014 showed that there was no leakage and that the aneurysm sac had significantly
decreased in size. (Id. at 517). Plaintiff also had knee surgery after suffering a torn meniscus
around the same time. (Id. at 52$).
At the hearing, Plaintiff testified as to her daily activities as well as her pain and symptoms.
Plaintiff stated that she has weakness in her hands from her degenerative disc disease of the
cervical spine and pain in her legs.
(Id. at 50, 54). Regarding her ability to function, Plaintiff
alleged that she has difficultly sitting in a regular chair, standing still, and walking. (Id. at 55-56,
62-62). She cannot lift her eight-month old grandson. (Id. at 66). She further testified that she
can walk about a block to a block and a half without pain or weakness, can grocery shop for small
items on her own, and can surface clean but is unable to vacuum. (Id. at 64, 66, 68).
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C.
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. 201 1); 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 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 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. 4:08-1676, 2009 WL 1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting
Consolo v. 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. Cruz v. Comm’r of Soc. Sec., 244 F. App’x 475, 479 (3d Cir.
2007).
U.
Determining Disability
Pursuant to the SSA, in order to be eligible for benefits, a plaintiff must show he 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.”
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42 U.S.C.
§
423(d)(1)(A), 13$2c(a)(3)(A). Taking into account the plaintiffs age, education,
and work experience, disability will be evaluated by the plaintiffs ability to engage in his previous
work or any other form of substantial gainful activity existing in the national economy. 42 U.S.C.
§ 423(d)(2)(A),
13$2c(a)(3)(B). A person is disabled for these purposes only if his physical or
mental impairments are “of such severity that he is not only unable to do his previous work, but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.
.
.
.“
42 U.S.C.
§
1382c(a)(3)(B).
Decisions regarding disability will be made individually and will be “based on evidence adduced
at a hearing.” Sykes v. Apfel, 228 f.3d 259, 262 (3d Cir. 2000) (citing Heckler v. Campbell, 461
U.S. 45$, 467 (1983)).
The SSA 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, 416.920. first, the AU must
determine whether the plaintiff is currently engaged in gainful activity. Sykes, 22$ f.3d at 262.
Second, if he is not, the AU determines whether the Plaintiff has an impairment that limits his
ability to work. Id. Third, if he 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 1 (the
“Listings”). If it is, this results in a presumption of disability. Id. If the impairment is not in the
Listings, the AU must determine how much residual functional capacity (“RfC”) the applicant
retains in spite of his impairment. Id. at 263. fourth, the AU must consider whether the plaintiffs
RfC is enough to perform his past relevant work. Id. fifth, if his RfC is not enough, the AU
must determine whether there is other work in the national economy the plaintiff can perform. Id.
The evaluation continues through each step unless it is determined at any point the plaintiff
is or is not disabled. 20 C.F.R.
§ 404.1520(a)(4), 416.920(a)(4).
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The plaintiff bears the burden
of proof at steps one, two, and four, upon which the burden shifts to the Commissioner at step five.
Sykes, 228 f.3d at 263. Neither party bears the burden at step three. Id. at 263 n.2.
II.
DISCUSSION
A.
Summary of the AU’s Findings
At step one, the AU found Plaintiff 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 23).
At steps two and three, the AU found that Plaintiff has the following severe
impairments: degenerative disc disease of the cervical spine and lumbar spine with a history of
surgical intervention; status post torn meniscus repair of the right knee; and a history of an aortic
aneurysm. (Id.). The AU also concluded that Plaintiffs diverticulitis and depression were not
severe impairments. (Id. at 24). Based on these findings, the AU determined that Plaintiff does
not have an impairment or combination of impairments that meets, either individually or in
combination, any of the impairments listed in 20 C.F.R.
§ 404,
Subpart P, Appendix 1. (Id. at 25-
26). Next, the AU decided that Plaintiff had the residual functional capacity (“RFC”) to perform
light work as defined in 20 C.F.R.
§
404.1567(b), with the exception that Plaintiff can
occasionally use her feet for foot controls, frequently reach overhead and in all directions but can
never climb ladders, ropes, or scaffolds, can never crawl or squat, and cannot have exposure to
unprotected heights, dust, odors, fumes, or pulmonary irritants. (Id. at 26).
To reach this conclusion, the AU considered Plaintiffs history of degenerative disc
disease of the cervical and lumbar spine, for which she had prior surgeries and multiple MRI scans.
(Id. at 27). The AU discussed the opinions of multiple doctors from 2009 through 2015, including
Plaintiffs treating physicians, Dr. Jay Kaiser, Dr. Justin Fernando, Dr. David Panush, and Dr. Paul
Keshishian and state agency consultative examiners, Dr. Joseph Udomasaph, Dr. Howard Goldbas,
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and Dr. Abraham Kuperberg. (Id. at 27-29). Regarding Plaintiffs other severe impairments, the
AU considered Plaintiffs history of aortic aneurysm, for which she underwent an aortic aneurysm
repair in 2013. (Id. at 27). Moreover, the AU discussed Plaintiffs right knee torn meniscus, for
which she had a prior surgery. (Id.). The AU also heard additional testimony about Plaintiffs
impairments from Plaintiffs friend of over twenty years, Joe Baniene.
The AU concluded that, overall, the medical records concerning Plaintiffs physical
impairments do not show evidence of a disabling condition and that Plaintiff retains some function
consistent with at least light work. (Id.). The AU found that Plaintiffs statements regarding the
intensity, persistence, and limiting effects of these symptoms are not entirely credible because
Plaintiff “described daily activities which are not limited to the extent one would expect” under
the circumstances. (Id. at 29). The AU gave great weight to the opinions of Dr. Udomasaph and
Dr. Kuperberg because both opinions “are generally consistent with the record as a whole.” (Id.
at 2$). However, the AU accorded limited weight to Dr. Goldbas’s opinion that Plaintiff is limited
to performing sedentary work, finding that this opinion was “generally inconsistent with the record
as a whole.” (Id.). The AU also gave no weight to the opinion of Plaintiffs treating physician,
Dr. Keshishian, because of vagueness and potential bias due to the fact that Dr. Keshishian was
Plaintiffs employer at one time. (Id.).
At step four, the AU found Plaintiff capable of performing past relevant work as a Medical
Assistant, which is considered light, skilled work. (Id. at 30). The AU considered testimony from
a vocational expert (“yE”) who compared the requirements of a Medical Assistant to the Plaintiffs
capabilities. (Id.). The VE opined that an individual with Plaintiffs RFC could perform this job
as actually and generally performed. (Id.). After reviewing the evidence and comparing Plaintiffs
RFC and the requirements of a Medical Assistant, the AU found that Plaintiff could perform her
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past relevant work. (Id.). Therefore, the AU concluded that Plaintiff is not disabled as defined in
the $SA. (Id.).
B.
Ana]ysis
Plaintiff argues that the AU’s decision is not supported by substantial evidence because
(1) the AU’s reasons for not crediting the opinion of Dr. Goldbas are not supported by the record,
(2) Plaintiff is entitled to benefits even if she could perform sedentary or light work, and (3) the
AU improperly evaluated Plaintiffs complaints. (ECF No. 21 at 16-21).
first, the Court addresses whether the AU’s decision to not fully credit the opinion of Dr.
Goldbas, a state medical examiner, is supported by the record. “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.” Plummer v. Apfel, 126 f.3d 422, 429 (3d Cir. 1999). In this case, the AU
concluded that Dr. Goldbas’s finding that Plaintiff is restricted to sedentary work was “generally
not consistent with the record as a whole” and, consequently, accorded Dr. Goldbas’s opinion
limited weight. (Tr. at 29). The AU found that Plaintiffs ability “to walk her dog in the park,
shop, cook, and clean are activities that extend beyond the sedentary exertional level.” (Id.).
The Court finds that the AU’s decision to discount Dr. Goldbas’s opinion was not
supported by substantial evidence because the AU failed to conduct a full examination of the
record, including Plaintiffs extensive testimony about her limitations and related record evidence.
At the hearing, Plaintiff gave detailed descriptions of how she performs daily activities and chores.
In response to the AU’s questioning, Plaintiff testified that she could not walk for more than a
block and a half without pain and weakness. (Tr. at 64). When asked about shopping, Plaintiff
testified that she usually “stop[s] daily to get small amounts” of groceries that she can handle on
her own and she has to lean on a cart as she shops. (Id. at 66, 69). She testified that she relies on
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her daughter to do any bulk food shopping or any other chores that require heavy lifting. (Id. at
70-71). Plaintiffs daughter’s statements corroborated this testimony. (Id. at 213-220). Regarding
other household chores, Plaintiff stated that her cooking consists mostly of microwaving and that
she cannot make dinner from scratch due to her impairments. (Id. at 72). Plaintiff also testified
that she can only surface clean her one-bedroom apartment and cannot vacuum. (Id. at 6$).
The AU failed to consider Plaintiffs limitations when performing these tasks before
concluding that these activities were inconsistent with sedentary work. The AU’s reason for
discrediting Dr. Goldbas’s opinion was that the opinion was contradicted by Plaintiffs ability to
perform certain tasks.
(Id. at 29). However, the AU did not mention Plaintiffs testimony
regarding how she performs these activities in his finding. Instead, the AU only cited to the report
of Dr. Kuperburg, a state agency psychological examiner, as evidence of Plaintiffs abilities. (Id.).
Dr. Kuperburg’s report focused on Plaintiffs mental health and has no information regarding how
far Plaintiff can walk without pain or how Plaintiff shops, cooks, and cleans. (Id. at 500-04).
Plaintiffs testimony at the hearing contained this information. Yet, the AU did not take Plaintiffs
testimony into consideration in reaching his decision about Dr. Goldbas’s testimony. Therefore,
the Court finds that the AU’s decision to give Dr. Goldbas’s testimony limited weight was not
supported by substantial evidence.
The Commissioner contends that Plaintiff attempts to bolster her argument by relying on
subjective allegations and that these subjective allegations alone cannot establish disability. (ECF
No. 23 at 13). However, Dr. Goldbas reviewed pertinent, objective medical evidence before
concluding that Plaintiff is limited to sedentary work. (Id. at 122-23). According to the report,
Dr. Goldbas had the opportunity to analyze medical records of Plaintiff s history of disc hemiation
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and aortic aneurysm, CT scans, exercise stress tests, and physical therapy records, in addition to
Plaintiffs account of her symptoms. (Id.).
The Court declines to guess how the AU would have decided this matter if the AU
accorded different weight to Dr. Goldbas’s finding that Plaintiff is limited to sedentary work. In
his report, Dr. Goldbas stated that Plaintiff was capable of performing her past relevant work as
she actually performed it. (Id. at 12$). Nonetheless, Dr. Goldbas also opined in the same report
that Plaintiff “demonstrates the maximum sustained work capability” for sedentary work based on
his analysis of the seven strength factors. (Id.). As discussed above, the Court finds that the AU’s
decision to discount Dr. Goldbas’s conclusion that Plaintiff was limited to sedentary work was not
supported by substantial evidence. Hence, this matter must be remanded for further proceedings
based on the Court’s finding. Because this matter is being remanded, the Court need not address
Plaintiffs arguments regarding additional purported errors.
III.
CONCLUSION
for the foregoing reasons, the Court vacates the AUJ’s decision and remands this case for
further administrative proceedings consistent with this Opinion.
An appropriate order
accompanies this Opinion.
DATED:
Dc
-2..C
,
2018
CLAIRE C. CECCHI, U.S.D.J.
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