MASCARINAS v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION. Signed by Judge William J. Martini on 5/7/20. (gh, )

Case 2:18-cv-10543-WJM Document 14 Filed 05/07/20 Page 1 of 6 PageID: 668

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MARICEL D. MASCARINAS,
Claimant,

Civ. No. 2:18-cv-10543 (WJM)

V.

OPINION
NANCY A. BERRYHILL ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

WILLIAM J. MARTINI, U.S.D.J.:
Claimant Maricel D. Mascarinas (“Claimant”) brings this action pursuant to 42
U.S.C. § 405(g) and 13$3(c)(3), seeking review of a final determination by the
Commissioner of Social Security (the “Commissioner”) denying her application for
Social Security Disability Insurance Benefits (“DIB”). For the reasons that follow, the
Commissioner’s decision is AFFIRMED.
I.

BACKGROUND AND PROCEDURAL HISTORY
Claimant is a forty-four-year-old female who was employed as a U.S. Postal clerk
until September 2013. R. at 42.’ Claimant stopped working because she began
experiencing pain. Id. Claimant submitted an initial claim for disability on January 20,
2014 alleging disability due to herniated disc in lumbar spine, a neck condition, and
lower back condition beginning September 12, 2013. R. at 62. Claimant experienced
and continues to experience pain in her neck and shoulder pain that radiates down to her
hands, numbness in her fingers, and frequent headaches. R. at 45-47.
An MRI of Claimant’s lumbar spine taken on July 29, 2013 showed L5-S1 disc
herniation and L4-L5 disc bulge. R. at 274. An MRT of her cervical spine taken on
August 19, 2013, showed focal central disc heniiation at C3-C4 and C4-C5, broad-based
left paracentral disc herniation at C6-C7. and disc bulging at C5-C6. R. at 256, 70-7 1.
An MRT of Claimant’s thoracic spine from September 24, 2013 was unremarkable. R. at
469. An MRI of Claimant’s cervical spine from June 2015 revealed disc herniations at
C3-C4 to C6-C7 and cerebellar tonsil ectopic: straightening of the normal lordotic curve:
and suggestive of a nmscle spasm. R. at 447. By December 2016, an MRI of Claimant’s
left shoulder revealed a tear of the anterior margin of the supraspinatus tendon,
I

Citations to “R.” refer to the Administrative Record, ECF No. 5.

Case 2:18-cv-10543-WJM Document 14 Filed 05/07/20 Page 2 of 6 PageID: 669

glenohurneral joint effusion, small fluid collection in the subdeltoid bursa, and
impingement of the rotator cuff. R. at 526.
Claimant presented to Rosa Matos Neno, D.O., throughout the relevant period
with complaints of neck pain and headaches. R. at 23$, 241, 244. Dr. Neno completed a
Disabaility Impairment Questionnaire on May 5, 2016 reporting that she diagnosed
severe back and neck, shoulder pain, numbness of hands and legs, herniated discs in the
cervical spine, bugling disc in the cervical spine, right hip pain, herniated lumbar/sacral
discs, and bulging lumbar disc. R. at 47$. Dr. Neno found that she could sit for one hour
and stand/walk for one hour in an eight-hour work day and found, inter a/ia, that
Claimant’s pain would increase in a competitive work environment and would frequently
interfere with her attention and concentration. R. at 480-81. Dr. Mark Filippone treated
Dr. Filippone
Claimant monthly between September 2013 and December 2016.
compLeted a Disability Impairment Questionnaire on April 14, 2016 and concluded that
Claimant was totally disabled. R. at 475. Claimant continuously underwent physical
therapy at Kessler Physical Therapy. R. at 243, 298, 309, 315, 320, 329-3 1, 333, 338-39,
344, 329, 331, 333, 338, 341, 368, 377, 381, 448-49, 471. 489, 516, 523. On August 8,
2014, and December 2, 2014, state agency physicians Arthur Pirone, M.D., and Zwi
Kahanowicz, M.D., respectively, reviewed Claimant’s medical records and concluded
that Claimant could perform work at the light exertional level. R. at 66-67, 75-76.
Ms. Mascarinas’ claims were denied initially and upon reconsideration. R. at 70,
79-83. Claimant appeared at a hearing before AU Kenneth Ayers on January 9, 2017 in
Newark, New Jersey. R. at 36-60, 92-93. In a hearing decision dated May 1. 2017, AU
Ayers found Ms. Mascarinas not disabled and denied her application. R. at 8-26. On
April 1$, 2018, the Appeals Council denied Ms. Mascarinas’ request for review. R. at 17.
The Social Security Administration uses a five-step sequential evaluation to
determine if a claimant is entitled to benefits: (1) whether the claimant is currently
engaged in substantial gainful activity; (2) whether claimant has a severe impairment; (3)
whether this impairment meets or equals a listed impairment; (4) whether the impairment
prevents claimant from performing her past—relevant work: and (5) whether the claimant
can perform any other work which exists in the national economy, in light of her age,
education, work experience, and RFC. 20 C.F.R. § 404.1520. 416.920(e)-(t), Part 404
Subpart P, Appendix 1. Claimant bears the burden of proof for the first four steps, and
the burden shifts to the Commissioner as to step five. 20 C.F.R. §
404.1520(g), 416.920(g); see Foulos V. Cornin’r of Soc. Sec., 474 F.3d 88, 91—92 (3d Cir.
2007) (citations omitted).
At step one, the AU found that Claimant had not engaged in substantial gainful
activity since September 12, 2013, her alleged disability onset date. R. at 13. At step
two, the AU found that Claimant had ‘severe” impairments of degenerative disc disease,
cervical radiculitis, lumbosacral radiculitis. and internal derangement of both shoulders.
R. at 13. At step three, the AU concluded that Claimant’s impairments did not meet or

Case 2:18-cv-10543-WJM Document 14 Filed 05/07/20 Page 3 of 6 PageID: 670

medically equal the criteria of any of the Listings. R. at 14. The AU subsequently
determined, inter alia, that Claimant retained the RFC to perform sedentary work except
she could occasionally lift and/or carry ten pounds; sit for six hours, stand for two hours,
walk for two hours; and push and pull as much as she could lift/carry. R. at 14.
Claimant’s time off task can be accommodated by normal breaks. Id. The ALl
considered Claimant’s subjective complaints in assessing Claimant’s RFC, but found her
alleged symptoms not entirely credible. R. at 14-19. At the fourth step, the AU
concluded that Claimant was unable to perform her past relevant work as a clerk and
parcel post worker. R. at 19. The AU proceeded through step five, finding that
Claimant could perform other work that existed in substantial numbers in the national
economy such as the representative jobs of table worker, document preparer, and
preparer. R. at 19-20.
II.

STANDARD OF REVIEW

On a social security appeal from an AU’s final decision, the district court
conducts plenary review of the legal issues. See Schaudeck v. Comm ‘r of Soc. Sec.
Admin., 181 F.3d 429, 431 (3d Cir. 1999). The factual findings of the AU are reviewed
“only to 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 “less than a preponderance of the evidence but more than a mere
scintilla.” Jones v. Barnl?art, 364 f.3d 501, 503 (3d Cir. 2004) (citation omitted). Thus,
so long as there is substantial evidence to support the Commissioner’s findings, district
courts must affirm the decision, even if this Court “would have decided the factual
inquiry differently.” Hartranft v. Apfel, 1 81 F.3d 358, 360 (3d Cir. 1999).
III.

DISCUSSION

Claimant argues that the AU: (1) failed to properly apply the de minimis standard
at step two to Claimant’s headaches; (2) failed to properly accord weight to the treating
physicians’ opinions of record; (3) failed to properly evaluate Claimant’s residual
functional capacity; and (4) improperly evaluated Claimant’s disabling symptoms.
A. Evaluation of Claimant’s Headaches at Step Two of the Sequential
Evaluation
Claimant argues that the AU erred by not including headaches as a severe
impairment at step two of the sequential evaluation. P1’s Br. at 16-17. The burden
placed on an applicant at step two is not an exacting one. “Although the regulatory
language speaks in terms of ‘severity,’ the Commissioner has clarified that an applicant
need only demonstrate something beyond a slight abnormality or a combination of slight
abnormalities which would have no more than a minimal effect on an individual’s ability
to work.” McCrea v. McCrea v. Comm’r of Soc. Sec., 370 f.3d 357, 360 (3d. Cir. 2003)
(internal quotation omitted).
Defendant argues that because the inquiry at step two is whether Claimant has at
least one severe impairment that justifies proceeding to the next step of the sequential

Case 2:18-cv-10543-WJM Document 14 Filed 05/07/20 Page 4 of 6 PageID: 671

evaluation, the step two determination was not dispositive. The Court agrees. Popp v.
Astrite, 2009 WL 959966, at *4 n.1 (W.D. Pa. Apr. 7, 2009); see also Council v.
Barnhart, 127 F. App’x. 473 (11th Cir. Dec. 28, 2004) (“[T]he AU could not have
committed any error at step two because he found that [Claimant] had a severe
impairment
and moved on to the next step in the evaluation, which is all that is
required at step two.”). Here, the AU found that Claimant had the severe impairments of
degenerative disc disease, cervical radiculitis, lumbosacral radiculitis, and internal
derangement of both shoulders, and continued her analysis through the subsequent steps
of the sequential evaluation process. R. 13-14. After proceeding through steps two and
three, the AU then assessed Claimant’s RFC and restricted her to only sedentary work.
R. at 14. In doing so, the AU explained that he considered the functional limitations
resulting from all of Claimant’s medically determinable impairments, including those that
are nonsevere. R. at 11-16. Consequently, substantial evidence supports the AU’s step
two assessment.
.

.

.

B. Evaluation of Medical Opinions in Assessing Claimant’s Residual
functional Capacity
Claimant argues that in evaluating her RFC, the AU gave improper weight to the
medical opinions of Drs. Neno and Filippone, Claimant’s treating physicians. The AU
here gave little weigh to Dr. Filippone’s opinion that the Claimant was totally disabled
and unable to work, and partial weight to Dr. Neno’s opinion that the Claimant could sit,
stand, and/orwalk for less than one hour in an eight-hour workday. The AU should
accord the treating physician’s opinion great weight if it is well-supported clinical and
laboratory diagnostic techniques and is not inconsistent with other evidence of record.
See Brownawell v. Cornm’r of Soc. Sec., 554 F.3d 352, 355 (3d Cir.2008); 20 C.F.R. §
404.1527(c)(2); Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.2000) (“A cardinal principle
guiding disability eligibility determinations is that the AU accord treating physicians
reports 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.’”)
(quoting Plummer v. Ap/1, 186 F.3d 422, 429 (3d Cir.1999)). However, the AU is not
required to accept a treating physician’s opinion uncritically, particularly when the
opinion is not supported by clinical evidence, is internally inconsistent, or is not
consistent with other record evidence. 20 C.F.R. § 404.1527(c)(2); See Morales, 225
F.3d at 317.
In concluding that Dr. Filippone’s opinion merited little weight, the AU
determined that it was inconsistent with Claimant’s record showing that “she required
treatment on only a monthly basis for her symptoms and generally felt some relief with
pain medication,” “an x-ray of her shoulder from December 2013 show[ingj a high riding
humeral head, but no evidence of fracture, dislocation, or rotator cuff calcification,” and
that Claimant did “light household chores, and she could drive for 45 minutes.” R. at 1 8.
in giving Dr. Neno’s opinion partial weight, the AU observed that “the Claimant could
walk on her toes and heels and flex forward at the waist with her fingertips to two inches
below the patellar pole,” that although “the claimant has chronic pain, she reported that
4

Case 2:18-cv-10543-WJM Document 14 Filed 05/07/20 Page 5 of 6 PageID: 672

she was doing ‘okay’ with her present medications,” and that “the Claimant never
required surgery oi- hospitalization for her SymptomS.” These observed inconsistencies
are sufficient to discount Claimant’s treating physicians’ opinions. The Court finds that
the AU’s weighting of Claimant’s physicians’ opinions is supported by substantial
evidence.
C. Evaluation of Claimant’s Residual Functional Capacity
Separately’, Claimant argues that the record supports more restrictive limitations
thaii the AU assessed in the RFC finding.’ and cites Dr. Neno’s treatment notes showing
a i-educed range of motion, MRI findings indicating serious abnormalities in Claimant’s
shoulder, and other medical evidence. PL’s Br. at 22-25. Among other things, the AU
found that Claimant would be capable of performing a modified range of sedentary work
except she could occasionally lift and/or carry ten pounds; sit for six hours, stand for two
hours, walk for two hours. Defendant states that Dr. F ilippone’s own treatment notes
described no difficulty ambulating, normal gait, normal stance, no tenderness in spine,
negative straight leg raising, full muscle strength in her spine, ability to walk on both toes
and heels, and ability to flex forwai-d at her waist. R. at 277, 3 19-20, 323, 332, 344, 36$,
376, 385, 449, 465, 471, 487, 490, 516. Defendant argues that Dr. filippone’s opinion
that Claimant was unable to pei-foi-m any postui-al or exei-tional activities, as well as
inability to sit oi- stand during the workday, was also inconsistent with Di-. Nenos
observation that Claimant had no edema, no clubbing, and no cyanosis in her extremities.
R. 238-40. In light of this evidence, the Court finds that the AUJs assessment of
Claimant’s Residual Functional Capacity is supported by substantial evidence.
U. Evaluation of Claimant’s Sublective Complaints
Claimant argues that the AU erred when he considered Claimant’s subjective
complaints of pain. P1. ‘s Br. at 25-28. The i-egulations set out a two-step process for
AUJs to evaluate a claimant’s symptoms. Lewis v. Berryhill, 85$ f.3d 858, 865—66 (4th
Cii-. 2017); 20 C.F.R. § 404A529; see also SSR l6-3p, 2016 WL 1119029 (Mar. 2, 2016).
“first, the AU looks foi- objective medical evidence showing a condition that could
i-easonably pioduce the alleged symptoms.” Lewis, 858 F.3d at $66 (citing 20 C.F.R. §
404.1529(c)); see a/so Craig v. Cliate,-, 76 f.3d 585, 594 (4th Cii-. 1996). Second,
assuming the claimant clears the first step, “the AU must evaluate the intensity,
persistence, and limiting effects of the claimant’s symptoms to determine the extent to
which they limit the claimant’s ability,” Lewis, 858 F.3d at 866, to work on a regular and
continuing basis, see Mascio v. Co/yin, 780 F.3d 632, 636—37, 639 (4th Cii-. 2015). “The
second detei-mination requiies the AU to assess the ci-edibility of the claimant’s
statements about symptoms and their functional effects.” Lewis. $58 F.3d at 866 (citing
20 C.F.R. § 404.1529(c)(4)).
The AU found that Claimant’s medical impairments could reasonably be expected
to cause hei- alleged symptoms, but that her statement concerning the intensity,
persistence, and limiting effects of her symptoms were not entii-ely consistent with the
medical evidence and other evidence in the record. R. at 15. Substantial evidence

Case 2:18-cv-10543-WJM Document 14 Filed 05/07/20 Page 6 of 6 PageID: 673

supports the AU’s conclusion. Claimant’s examinations were relatively normal and her
pain appeared to have waxed and waned. R. at 277, 319-20, 323, 332, 344, 368, 376,
385, 447, 449, 465, 471, 4$7, 490-91, 516. In making this determination, the AU did not
improperly consider Claimant’s daily activities. Claimant’s testimony that while she
could fold clothes, her chiLdren carried the basket and washed and dried the clothing, that
she would need to sit after an hour of standing is not meaningfully inconsistent with the
AU’s conclusion that Claimant performed light household chores such as preparing
meals. sweeping, and doing laundry.
IV.

CONCLUSION

For the foregoing reasons, the Commissioner’s decision is AFFIRMED. An
appropriate order follows.

LWf1Lf%71AR1t1NI, U.S.D.J.

6