MELVIN v. COMMISSIONER OF SOCIAL SECURITY
Filing
8
OPINION filed. Signed by Judge Freda L. Wolfson on 7/8/2011. (eaj)
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
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MARVIN MELVIN,
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Plaintiff,
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v.
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MICHAEL ASTRUE,
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COMMISSIONER OF SOCIAL
)
SECURITY
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Defendant.
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____________________________________)
Civil Action No.: 10-2848
OPINION
WOLFSON, United States District Judge:
Marvin Melvin (“Plaintiff”) appeals from the final decision of the Commissioner of
Social Security (“Commissioner”), denying Plaintiff Disability Insurance Benefits and
Supplemental Security Insurance Benefits under the Social Security Act (“Act”). The Court has
jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). On appeal,
Plaintiff contends that the substantial evidence in the Administrative Record (“AR”) establishes
eligibility for and entitlement to the benefits for which Plaintiff applied. Specifically, Plaintiff
argues that the Administrative Law Judge (“ALJ”), at Step Four of the sequential process,
erroneously found that Plaintiff could resume his employment as a security guard. After
reviewing the administrative record, this Court finds that the ALJ's decision is based on the
substantial evidentiary support required by 42 U.S.C. § 405(g). Therefore, the ALJ's decision is
affirmed, and Plaintiff's appeal is dismissed in its entirety.
1
I. Overview
A.
Procedural History
Plaintiff filed a Title II application for Disability Insurance Benefits and a Title XVI
application for Supplemental Security Income on May 16, 2006. In both applications, Plaintiff
alleged his disability began on September 6, 2005. The applications were initially denied on
October 13, 2006 and again after reconsideration on April 23, 2007. After the denials, a timely
request for hearing was filed. The hearing took place before ALJ Joseph Hilegas on August 11,
2008. The ALJ denied Plaintiff’s application on September 22, 2008. Plaintiff next filed a
Request for Review with the Appeals Council, but the council denied the request. Plaintiff
subsequently filed the instant matter with the District Court.
B.
Background and Medical History
Plaintiff claims he has been unable to work since June 10, 2007 due to hearing loss in his
left ear, vertigo and headaches. Administrative Record (“AR”), 16, 25. Prior to the onset of his
symptoms, Plaintiff worked briefly as a forklift driver for a furniture warehouse in 1991 and then
as an apartment complex security guard from 1993 until he was fired in 2002. Id. at 102, 124.
After Plaintiff’s termination, he worked as an auto parts driver for Hamilton Mazda from April
2003 to April 2004. 1 Id. at 23, 102. Plaintiff was unemployed from April 2004 until his
symptoms began in 2005. Id. at 101.
On September 30, 2005, Plaintiff was seen by Dr. Sgarlato-Inducci at Robert Wood
Johnson University Hospital. Id. at 152. Plaintiff complained of a gradual decline in hearing
sensitivity in his left ear. Id. Pure tone test results revealed normal hearing in the right ear, but
1
In Plaintiff’s disability form, he reported that he worked from “04/03 – 04/04.” Id. at 102.
However, Plaintiff subsequently testified at the Administrative Hearing that he had not worked
since 2002. Id. at 22. In either case, Plaintiff has not been employed since the alleged onset date
of his symptoms.
2
mild to moderate conductive hearing loss in the left. Id. Dr. Sgarlato-Inducci concluded that
Plaintiff would need amplification for his left ear. Id.
On October 4, 2006, Plaintiff was examined by Dr. Raja who confirmed via audiogram
the prior diagnosis of mild conductive hearing loss in Plaintiff’s left ear. Id. at 152-53. Dr. Raja
recommended additional evaluation for the left ear. Id. at 153. Four days later, Plaintiff was
evaluated by a state agency medical consultant, Dr. Acuna, who reaffirmed Dr. Raja’s and Dr.
Sgarlato-Inducci’s diagnoses. Id. at 165. However, Dr. Acuna noted that Plaintiff’s “allegation of
an inability to hear instructions is not corroborated by the objective evidence regarding the
degree of hearing loss.” Id. at 166. Indeed, Dr. Acuna concluded that Plaintiff would only have
problems hearing softer sounds from his left side and as such, should not work around
concentrated noise. Id. at 165.
From January 5, 2007 onward, Plaintiff was seen by his family physician, Dr. Obuz, for
hearing-related treatment.
2
See id. at 173-99. Though Dr. Obuz’s handwritten notes are, at
times, difficult to decipher, the notes indicate that Dr. Obuz referred Plaintiff for a hearing test in
early 2007. A hearing test was completed that June, which test results stated that hearing in his
right ear was normal but his left ear displayed “profound mixed hearing loss.” Id. at 189.
Following the June 2007 test, Dr. Obuz conducted follow-up examinations in October and
November of that year.
On May 12, 2008, Dr. Obuz completed an examination report form submitted to him by
the State of New Jersey for work-related disability determination purposes. See id. at 181. In
that report, Dr. Obuz indicated that Plaintiff’s primary diagnosis was vertigo and that his other
2
The Administrative Record includes medical records from Dr. Obuz’s office dating back
to February 3, 2006. These pre-February 3, 2007 records, however, do not reference Plaintiff’s
hearing condition.
3
diagnoses were (vesticular) labyrinth and migraines. See id. at 182. The report thereafter states
that Plaintiff’s conditions rendered him unable to perform full-time employment. Id.
Shortly thereafter, on July 15, 2008, Dr. Obuz completed a residual functional capacity
questionnaire. In that questionnaire, Dr. Obuz observed that Plaintiff would occasionally need to
take breaks during the workday and would miss four or more days of work per month due to his
vertigo. Id. Specifically, Dr. Obuz responded to question 15(l), which queries:
“Are your patient’s impairments likely to produce “good days” and
“bad days”?
If yes, please estimate, on the average, how often your patient is
likely to be absent from work as a result of the impairments or
treatment:
Id. at 177. After responding “Yes” to the first half of the question, Dr. Obuz circles the “More
than four times a month” option. Directly next to the “More than four times a month” choice,
however, Dr. Obuz handwrites the word “daily.” Elsewhere in the report, Dr. Obuz concluded
that Plaintiff was able to walk without limitation but that he required a job that would permit him
to shift positions (from sitting, standing, or walking) at will throughout the day and take
unscheduled 12-15 minute breaks. Id. at 175-76.
Plaintiff appeared before the ALJ on August 11, 2008. Id. at 17. At the time of the
administrative hearing, Plaintiff had been prescribed Meclizine for his dizziness and vertigo, as
well as Metoprolol for depression. Id. at 26-27. Plaintiff was also taking Ibuprofen due to his
headaches. Id. Plaintiff described his condition as a loss of hearing that caused intermittent
episodes of vertigo and frequent headaches. Id. at 25, 27-28. Plaintiff testified that he loses
balance for thirty to forty seconds at a time, several times a day, at which point he must either
steady himself or sit. Id. at 25. In regards to his headaches, Plaintiff testified that they occur
4
roughly three times a day, but typically subside within half an hour of the ingestion of ibuprofen.
Plaintiff also testified that he takes medication for depression. Id. at 27.
When asked about his day-to-day life, Plaintiff testified that each morning he takes his
son to camp, walking a distance of a few blocks, before returning home to read or watch
television. Id. at 24. Plaintiff also testified that he had just received a hearing aid a few days
earlier that had improved his hearing and, according to his physician, should help with his
vertigo and headaches. 3 Id. at 26. When Plaintiff was asked if he could perform a security job as
he had done in the past Plaintiff conceded “that it could be done.” Id.
The independent vocational expert (“VE”), Mitchell Schmidt, testified that “security
officer is a light duty, semi-skilled” occupation with an exertional level of light and medium. Id.
at 30. While the VE conceded that an individual’s absence four days a month “would not be
compatible work in the national economy,” he also testified that, despite Plaintiff’s condition, he
could still perform “the full range of sedentary, unskilled work.” Id. at 33.
C.
The ALJ's Decision
As an initial matter, the ALJ found that Plaintiff met the insured status requirements of
the Social Security Act through December 31, 2009. Id. at 12. The ALJ then proceeded to apply
the five-step process used to determine Plaintiff’s disability status. Id. At Step One, the ALJ
determined that Plaintiff had not engaged in substantial gainful activity since June 10, 2007, the
amended alleged onset date. Id. At Step Two, the ALJ determined that Plaintiff had the following
severe impairments: hearing loss in the left ear, with associated headaches and vertigo. Id. at 12.
However, at Step Three the ALJ determined that, as Plaintiff’s right ear was unaffected, Plaintiff
3
Plaintiff testified at the administrative hearing that the hearing aid had not yet had an
impact on his condition. Id. at 26.
5
did not have an impairment or combination of impairments that met or medically equaled one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. Id. at 12-13.
Thereafter, the ALJ proceeded to Step Four, where he determined that, despite Plaintiff’s
condition, Plaintiff still had the residual functional capacity (“RFC”) to perform sedentary work
so long as it does not require exposure to hazards. Id. at 16. The ALJ based his decision on the
medical evidence in the record, which he determined did not support the conclusion that Plaintiff
had any medical condition beyond loss of hearing in his left ear, vertigo and headaches. Id. at 1213. The ALJ’s decision was also based on the testimony of the VE, who stated that Plaintiff
would be able to perform the “full range of sedentary, unskilled work.” Id. at 33.
In addition to objective medical evidence and the VE’s testimony, the ALJ considered a
number of other factors, pursuant to 20 CFR 416.929(c). Id. at 14. The factors included: (1)
Plaintiff’s daily activities; (2) the location, duration, frequency and intensity of Plaintiff’s pain or
other symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type, dosage,
effectiveness and side effects of any medication the Plaintiff had taken to alleviate pain or other
symptoms; (5) treatment, other than medication, Plaintiff had received for relief of pain or other
symptoms; (6) any measures other than treatment Plaintiff had used to relieve pain or other
symptoms; and (7) any other factors concerning Plaintiff’s functional limitations and restrictions
due to pain or other symptoms. 250 C.F.R. § 404.1529(c); see Haftranft v. Apfel, 181 F.3d 358,
362 (3d Cir. 1999).
The ALJ concluded that an examination of these factors supported his initial
determination that Plaintiff possessed the necessary RFC to perform sedentary work. Id. at 14.
Plaintiff testified at the hearing that he walked his son a few blocks each morning before
returning home to read or watch television. Id. Also, documentary evidence revealed that “just
6
prior to the amended alleged onset date, [Plaintiff] admitted that he prepared meals, shops and
socializes, and that he has no difficulty paying attention or following instructions.” Id.
Furthermore, Plaintiff “was unable to identify factors that cause him to [lose] his balance or to
indicate that it is positional in nature.” Id. In addition, Plaintiff “admitted that his hearing had
improved with the hearing aid, and that his doctors expect his other symptoms to subside as
well.” Id. In regards to the headaches, Plaintiff testified that ibuprofen was effective, typically
causing his symptoms to subside within thirty minutes. Id. at 15. Although the ALJ
acknowledged the credibility of “the intensity, persistence and limiting effects of [Plaintiff’s]
symptoms,” the ALJ concluded that they did “not support a finding of disability.” Id.
As to the medical opinion evidence, the ALJ found Dr. Acuna’s assessment of Plaintiff
particularly persuasive. Id. Dr. Acuna determined that Plaintiff had “no exertional limitations but
will have problems hearing softer sounds from this left side, and should not work around
concentrated noise.” Id. Dr. Acuna’s conclusions were supported by Dr. Obuz, who determined
that Plaintiff could walk without limitation and, similarly, could sit without limitation. Id.
However, the ALJ noted that Dr. Obuz’s conclusion that Plaintiff would need to miss work was
inconsistent with both Plaintiff’s own testimony and the concessions made in the documentary
evidence. Id. By all accounts, Plaintiff’s hearing in the left ear was “corrected with a hearing aid”
and his hearing in the right ear was unimpaired. Id. In light of this evidence, the ALJ concluded
that Plaintiff has “no significant limitation in his ability to hear.” Id. In addition, the impartial VE
testified that Plaintiff “can perform virtually the full range of sedentary work.” Id. at 16. Thus,
the ALJ found that Plaintiff possessed the RFC to perform “sedentary work that does not require
exposure to hazards, but would need up to two unscheduled breaks per day, lasting for a few
minutes each.” Id.
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As Plaintiff could perform sedentary work, the ALJ determined that Plaintiff was capable
of performing past relevant work as a security officer. Id. Plaintiff’s prior job only required him
to “answer the phone, write incident reports, write a summary of what happened during his shift,
and walk around the building.” Id. The ALJ noted that Plaintiff would be sitting for seven to
eight hours and would only walk for thirty minutes a day, well within his RFC. Id. Furthermore,
Plaintiff’s hearing, at least in the right ear, was sufficient to allow him to answer the phone. Id. at
15. Thus, the ALJ concluded that Plaintiff does not have a disability, as defined in the Social
Security Act, from June 10, 2007 through the date of the ALJ’s decision. Id. at 16.
II.
Discussion
A.
Standard of Review
On a review of a final decision of the Commissioner of the Social Security
Administration, a district court “shall have power to enter, upon the pleadings and transcript of
the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see
Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001). The Commissioner's decisions regarding
questions of fact are deemed conclusive on a reviewing court if supported by “substantial
evidence in the record.” 42 U.S.C. § 405(g); see Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
While the court must examine the record in its entirety for purposes of determining whether the
Commissioner's findings have support by such evidence, Gober v. Matthews, 574 F.2d 772, 776
(3d Cir. 1978), the standard is highly deferential. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir.
2004). Indeed, “substantial evidence” is defined as “more than a mere scintilla,” but less than a
preponderance. McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). “It means
such relevant evidence as a reasonable mind might accept as adequate.” Plummer v. Apfel, 186
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F.3d 422, 427 (3d Cir. 1999). A reviewing 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). Accordingly, even if there is contrary evidence in the record that would justify
the opposite conclusion, the Commissioner's decision will be upheld if it is supported by the
evidence. See Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986).
B.
Standard for Entitlement of Benefits
Disability insurance benefits may not be paid under the Act unless Plaintiff first meets the
statutory insured status requirements. See 42 U.S.C. § 423(c). Plaintiff must also demonstrate 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 period of not less than twelve months.” 42 U.S.C. §
423(d)(1)(A); see Plummer, 186 F.3d at 427. An individual is not disabled unless “his physical
or mental impairment or 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. §
423(d)(2)(A). Eligibility for supplemental security income requires the same showing of
disability. 42 U.S.C. § 1382c(a)(3)(A); 42 U.S.C. § 1382c(a)(3)(B).
The Act establishes a five-step sequential process for evaluation by the ALJ to determine
whether an individual is disabled. See 20 C.F.R. § 404.1520. First, the ALJ determines whether
the claimant has shown that he is not currently engaged in substantial gainful activity. 20 C.F.R.
§ 404.1520(a); see Bowen v. Yuckert, 482 U.S. 137, 146-47 n. 5, 107 S. Ct. 2287, 96 L. Ed. 2d
119 (1987). If a claimant is presently engaged in any form of substantial gainful activity, he is
automatically denied disability benefits. See 20 C.F.R. § 404.1520(b); see also Bowen, 482 U.S.
9
at 140. Second, the ALJ determines whether the claimant has demonstrated a “severe
impairment” or “combination of impairments” that significantly limits his physical or mental
ability to do basic work activities. 20 C.F.R. § 404.1520(c); see Bowen, 482 U.S. at 146-7 n.5.
Basic work activities are defined as “the abilities and aptitudes necessary to do most jobs.” 20
C.F.R. § 404.1521(b). These activities include physical functions such as “walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying or handling.” Id. A claimant who does not
have a severe impairment is not considered disabled. 20 C.F.R. § 404.1520(c); see Plummer, 186
F.3d at 428. Third, if the impairment is found to be severe, the ALJ then determines whether the
impairment meets or is equal to any listed impairment. 20 C.F.R. § 404.1520(a)(4) (iii). If the
claimant demonstrates that his impairments are equal in severity to, or meet any listed
impairment, the claimant has satisfied his burden of proof and is automatically entitled to
benefits. See 20 C.F.R. § 404.1520(d); see also Bowen, 482 U.S. at 146-47 n.5. If the specific
impairment is not listed, the ALJ will consider in his decision the impairment that most closely
satisfies those listed for purposes of deciding whether the impairment is medically equivalent.
See 20 C.F.R. § 404.1526(a). If there is more than one impairment, the ALJ then must consider
whether the combination of impairments is equal to any listed impairment. Id. An impairment or
combination of impairments is basically equivalent to a listed impairment if there are medical
findings equal in severity to all the criteria for the one most similar. Williams, 970 F.2d at 1186.
If the claimant is not conclusively disabled under the criteria set forth in the Impairment
List, step three is not satisfied, and the claimant must prove at Step Four whether he retains the
RFC to perform his past relevant work. 20 C.F.R. § 404.1520(e); Bowen, 482 U.S. at 141. If the
claimant is able to perform his previous work, the claimant is determined to not be under a
disability. 20 C.F.R. § § 404.1520(e), 416.920(e); Bowen, 482 U.S. at 141-42. The claimant
10
bears the burden of demonstrating an inability to return to the past relevant work. Plummer, 186
F.3d at 428. Finally, if it is determined that the claimant is no longer able to perform his previous
work, the burden of production then shifts to the Commissioner to show, at step five, that the
“claimant is able to perform work available in the national economy.” Bowen, 482 U.S. at 14647 n.5; Plummer, 186 F.3d at 428. This step requires the ALJ to consider the claimant's residual
functional capacity, age, education, and past work experience. 20 C.F.R. § 404.1520(f). The ALJ
must analyze the cumulative effect of all the claimant's impairments in determining whether the
claimant is capable of performing work and not disabled. Id.
C.
Plaintiff's Arguments on Appeal
At the outset, the Court notes that Plaintiff does not dispute the ALJ’s findings at Step
Three of the disability evaluation. It is well established that Plaintiff bears the burden of
presenting medical findings showing that his impairments meet or equal a listed impairment. See
Bowen v. Yuckert, 482 U.S. at 146 n.5; Burnett v. Apfel, 220 F.3d 112, 120 n.2 (3d Cir. 2000).
Here, the ALJ determined that Plaintiff’s “hearing in the right ear is unaffected and… there is no
evidence of disturbed function of the vestibular labyrinth, demonstrated by caloric or other
vestibular tests.” AR, 13. Thus, the ALJ concluded that Plaintiff failed to present medical
findings showing that his impairments meet or equal a listed impairment. Id. at 12. As Plaintiff
was not “conclusively presumed to be disable[ed], the evaluation proceed[ed] to the fourth step,
which determines whether the impairment prevents the claimant from performing work he has
performed in the past.” Bowen, 482 U.S. at 141. Under Step Four, if Plaintiff can perform past
relevant work, he is not disabled. Id.
In seeking review, Plaintiff argues that the AJL’s determination at Step Four is not based
on substantial evidence. Specifically, Plaintiff asserts that: (1) the ALJ ignored Dr. Obuz’s
11
conclusion that Plaintiff would need to miss at least four days of work a month; (2) the ALJ
disregarded the VE’s testimony that a condition requiring four or more absences a month from
work would not be “compatible with the national economy; and (3) the ALJ failed to support his
conclusion that Plaintiff had sufficient RFC to perform past relevant work that required him to
answer the telephone. Pl.’s Br. at 12-13. The Court disagrees with each of these arguments.
First, Plaintiff’s argument that the ALJ does not explain his rejection of Dr. Obuz’s
findings is meritless. In the context of disability eligibility determinations, the ALJ must “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.”
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citation and internal quotations omitted); see
also Brownawell v. Comm'r of Soc. Sec., 554 F.3d 352, 355 (3d Cir. 2008). “If the ALJ rejects
probative evidence from a treating physician he is required to explain why.” Correa v. Comm’r
of Soc. Sec., 381 F. Supp. 2d 386, 395 (D.N.J. 2004) (citing Cotter v. Harris, 642 F.2d 700 (3d
Cir. 1981)).
Here, the ALJ explained his basis for rejecting Dr. Obuz’s opinion that Plaintiff would be
absent four or more days per month. In his decision, the ALJ discussed Plaintiff’s visits to Dr.
Sgarlato-Inducci and Dr. Raja, who both diagnosed Plaintiff with mild conductive hearing loss in
the left ear. AR, 152-53. The ALJ also discussed Plaintiff’s visits to Dr. Obuz, who concluded
that Plaintiff would miss four or more days of work per month, but would still be able to walk
without limitation. Id. at 15. In addition, the ALJ noted that Dr. Acuna, the state agency medical
consultant, had reported that Plaintiff only had problems hearing softer sounds from his left side.
Id. at 165. Furthermore, the ALJ’s function-by-function analysis included a discussion of
Plaintiff’s daily activities and additional medical treatment not contained in the medical record.
12
After providing an overview of all of Plaintiff’s medical evidence, the ALJ specifically
recounted Dr. Obuz’s July 15, 2008 questionnaire statements:
Dr. Obuz indicated that the claimant[-Plaintiff] is capable of a lowstress job; has no restriction in his ability to walk or his ability to
lift and/or carry; can sit for 2 hours continuously and stand for 1
hour continuously; requires a job that permits shifting positions at
will; will sometimes need to take unscheduled breaks during an 8hour workday, which will last 10 to 15 minutes; and will miss 4 or
more days of work per month. 4
AR at 15. Contrasting Dr. Obuz’s opinion with the other evidence in the record, the ALJ
reasoned: “Dr. Obuz’s opinion in partially inconsistent with the claimant’s testimony and the
concessions he made in the documentary evidence, indicating that he reads, watches television
and has no difficulty concentrating and his vertigo lasts approximately 30 seconds twice per
day.”
Id. (emphasis added).
Moreover, the ALJ continued, “[g]iven that the claimant
experiences 2 vertigo attacks per day, lasting 30 seconds each, the undersigned finds that he
would require approximately 2 unscheduled breaks in an 8-hour workday, lasting only a few
minutes each.” Id.
As this reiteration of the ALJ’s reasoning reveals, Plaintiff has no basis for arguing that
the ALJ failed to explain his basis for rejecting Dr. Obuz’s opinion that Plaintiff would be absent
four-or-more times per month. Because Dr. Obuz’s opinion was deemed inconsistent with the
record, the ALJ did not err in rejecting it. Indeed, the Social Security regulations provide that,
for all physician opinions, “the more consistent an opinion is with the record as a whole, the
more weight [an ALJ should] give to that opinion.” 20 C.F.R. § 404.1527(d)(4). Moreover, the
regulations provide with respect to a treating physician’s opinion, that such an opinion should be
given controlling weight “[i]f . . . a treating source’s opinion on the issue(s) of the nature and
4
As noted supra, Dr. Obuz handwrote the word “daily” next to the “More than four times
a month” choice on the questionnaire. Neither party, nor the ALJ, addressed how to interpret
this handwritten note.
13
severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in your case
record ….” Id. at § 404.1527(d)(2) (emphasis added). Because Plaintiff’s own testimony does
contradict Dr. Obuz’s opinion that Plaintiff would require four or more days off per month, the
ALJ’s rejection of Dr. Obuz’s opinion was proper under these regulations.
The Court finds further support for its determination in the recent Third Circuit decision
in Brown v. Astrue, where the Court of Appeals affirmed an ALJ’s decision to reject a treating
physician’s opinion. --- F.3d ---, No. 10-3435, 2011 U.S. App. LEXIS 13661 (3d Cir. Jul. 6,
2011). There, the ALJ found that a treating psychiatrist’s opinion was outweighed by conflicting
testimony provided by an impartial medical expert, as well as the record evidence of the state
agency disability consultant. Id. at 7. The Brown Court found that “as the ALJ clearly explained
why she gave greater weight to the opinion of the [medical expert], her decision was supported
by substantial evidence and was not contrary to law.” Id. Furthermore, the Court reiterated from
its decision in Morales, supra, when “the opinion of a treating physician conflicts with that of a
non-treating, non-examining physician, the ALJ may choose whom to credit but cannot reject
evidence for no reason or for the wrong reason.” Brown, 2011 U.S. App. LEXIS 13661 at *8.
Just as an ALJ may reject a treating physician’s opinion based on conflicting non-treating
physician testimony, so too may an ALJ reject a treating physician’s opinion that conflicts with
the Plaintiff’s own testimony. Moreover, as noted by the Brown Court, “[t]he law is clear . . .
that the opinion of a treating physician does not bind the ALJ on the issue of functional
capacity.” Id. at *9 n.2.
Plaintiff’s second argument is that the ALJ improperly rejected the vocational expert’s
testimony that missing four days a month is incompatible with the national economy. Since the
14
ALJ properly rejected Dr. Obuz’s conclusion that Plaintiff needed to miss four or more days of
work a month, the VE’s testimony regarding such a restriction is irrelevant. By rejecting Dr.
Obuz’s medical opinion, the ALJ thereby determined that Plaintiff did not have such a limitation.
Id. at 15. Thus, the ALJ did not err in determining Plaintiff’s condition was compatible with the
national economy.
As to Plaintiff’s third and final argument, that “the ALJ does not explain how Plaintiff
could perform his telephone duties” given that Plaintiff “is deaf,” the Court finds this argument
even less persuasive than the previous two. Pl.’s Br. at 13, 16. The Third Circuit has consistently
held that an ALJ must consider medical factors in relation to specific vocational factors when
making a disability determination. Baeder v. Heckler, 768 F.2d 547, 553 n.5 (3d Cir. 1985)
vacated on other grounds by Baeder v. Heckler, 826 F.2d 1345 (3d Cir. 1987). An ALJ’s residual
functional capacity assessment must “be accompanied by a clear and satisfactory explication of
the basis on which it rests.” Fargnoli v. Halter, 247 F.3d 34, 41 (3d Cir. 2001) (quoting Cotter v.
Harris, 642 F.2d 700, 704 (3d Cir. 1981)). However, the ALJ “does not have to undertake an
exhaustive review of all the evidence,” but need only “indicate the evidence that supports his
decision and the evidence that was rejected.” Boulden v. Astrue, No. 07-4343, 2008 U.S. Dist.
Lexis 56526 (D.N.J. Jul. 18, 2008) (citing Cotter, 624 F.2d at 705).
Here, the ALJ noted that Dr. Sgarlato-Inducci diagnosed Plaintiff with normal hearing in
the right ear, but mild to moderate conductive hearing loss in the left. AR, 152. Dr. Obuz
confirmed this diagnosis, as did Dr. Raja, who recommended additional evaluation. Id. at 158,
169. Dr. Acuna subsequently reaffirmed the previous three diagnoses. Id. at 165. Dr. Acuna also
observed that Plaintiff’s “allegation of an inability to hear instructions is not corroborated by the
objective evidence regarding the degree of hearing loss.” Id. at 166. In addition, Dr. Acuna
15
determined that Plaintiff’s “word recognition was excellent for the right ear and good for the left
ear.” Id. at 13. Plaintiff is not deaf in both ears and counsel’s argument before this Court that
Plaintiff is “deaf” is an inappropriate mischaracterization of the evidence before the ALJ. All the
medical evidence indicates that Plaintiff can hear well out of his right ear and as such, can
answer a telephone. Id. at 166. Therefore, the ALJ’s determination that Plaintiff still has the
ability to perform past relevant work as a security guard is supported by the substantial evidence
and the Court must reject Plaintiff’s argument that the ALJ failed to explain how the Plaintiff
could answer the telephone, as part of his duties as a security guard.
III.
Conclusion
For the reasons set forth above, the Court concludes that there is substantial evidence in
the record to support the ALJ's determination that Plaintiff has not been under a disability from
June 10, 2007 through September 22, 2008. Therefore, the ALJ's decision is affirmed.
Dated:
July 8, 2011
/s/ Freda L. Wolfson
Honorable Freda L. Wolfson
United States District Judge
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