CIROTTI v. ASTRUE
Filing
16
OPINION filed. Signed by Judge Joel A. Pisano on 8/4/2011. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
:
RALPH J. CIROTTI,
:
:
Plaintiff,
:
:
Civil Action No. 10-05468 (JAP)
v.
:
:
MICHAEL J. ASTRUE,
:
OPINION
COMMISSIONER OF SOCIAL SECURITY.
:
:
Defendant.
:
:
_________________________________________
PISANO, District Judge.
Before the court is an appeal by Ralph J. Cirotti (“Plaintiff”) from the final decision of
the Commissioner of the Social Security Administration (“Commissioner”) denying his request
for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits.
The Court has jurisdiction to review this matter under 42 U.S.C. § 405(g) and 1383(c)(3) and
decides this matter without oral argument. See Fed. R. Civ. P. 78. The issue presented is
whether the Commissioner’s decision to deny Plaintiff’s application for DIB and SSI is
supported by substantial evidence. The Court finds that the record provides substantial support
for the Commissioner’s denial and affirms his decision.
I.
PROCEDURAL HISTORY
On August 27, 2007, Plaintiff filed an application for DIB benefits under Title II and Part
A of Title XVIII of the Social Security Act (the “Act”), and on September 14, 2007, he requested
SSI under Title XVI of the Act claiming various affective mood disorders including depression,
high anxiety, bipolar disorder, obsessive compulsive disorder and panic attacks. (R. 125-133).
1
These claims were initially denied on April 16, 2008, and upon reconsideration. (R. 77-86, 8893). On May 14, 2008, Plaintiff requested a hearing, which was held on October 1, 2009, before
Administrative Law Judge Paula Garrety (the “ALJ”). (R. 94). Plaintiff appeared and testified at
the hearing. (R. 42-69). The ALJ issued her decision on October 21, 2009, finding that Plaintiff
was not disabled under the Act. (R. 8-18). On October 23, 2009, Plaintiff requested review of
the ALJ’s decision by the Appeals Council. (R. 7). His request was denied on August 25, 2010.
(R. 1-6).
II.
BACKGROUND
A.
Plaintiff’s Personal Background and Work History
Plaintiff was born on June 3, 1953, and at the time of his hearing before the ALJ he was
56 years old. (R. 125). He is divorced and has shared custody of his two children who live with
him on a part time basis. (R. 47). Plaintiff completed a high school education. (R. 148). He
worked primarily as a service technician and traveled around the country to repair equipment that
made semiconductors. (R. 65). He also worked as a machine operator/tender making boxes and
as a packer/capper. (R. 66).
B.
Plaintiff’s Medical History
1.
Dr. Sanjeevani Jain, Treating Psychiatrist
Dr. Jain began to treat Plaintiff in November 2001 and was his main treating psychiatrist.
Plaintiff submitted his treatment records with Dr. Jain from April 2007 until February 2010. (R.
214-246, 266-293, 298, 299-306). She diagnosed Plaintiff with mixed type bipolar disorder
based on her positive clinical findings that Plaintiff experienced mood swings, anxiety, severe
depression, sleep problems and suicidal ideation. She found these symptoms prevented Plaintiff
from working. (R. 226, 239, 244). She also determined that Plaintiff’s Global Assessment of
2
Functioning (“GAF”) score was 60-65, which is indicative of mild difficulty in social and
occupational functioning.
Dr. Jain noted that Plaintiff lacked motivation, was in social withdrawal, felt hopeless,
and worthless, had tremendous low self-esteem and had repeated episodes of decompensation on
and off throughout treatment. (R. 298 and 243). She prescribed Pristiq, Ambien, Xanax, Abilify
and Eskalith to calm Plaintiff down and to prevent him from having suicidal thoughts. (R. 51).
Dr. Jain concluded from her mental residual functional capacity (“RFC”) assessment of Plaintiff
that he was markedly limited 1 with regard to the category of understanding and memory. 2
Within this category, she found that Plaintiff was markedly limited in his ability to understand
and remember detailed instructions. However, she found that Plaintiff was mildly limited in his
ability to remember locations and work-like procedures, and he was moderately limited in his
ability to understand and remember very short and simple instructions. (R. 218).
Dr. Jain also found that Plaintiff was markedly limited in his ability to maintain sustained
concentration and persistence in the following areas: 1) his ability to carry out detailed
instructions; 2) his ability to perform activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances; 3) his ability to sustain an ordinary routine without
supervision; 4) his ability to work in coordination with or proximity to others without being
distracted by them; and 5) his ability to complete a normal workday and workweek without
interruption from psychologically based symptoms and to perform at a consistent pace without
1
According to the regulations, a “marked” limitation means: “more than moderate, but less than extreme. A
marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as
long as the degree of limitation is such as to interfere seriously with your ability to function independently,
appropriately, effectively, and on a sustained basis." Listing § 12.00C. "In addition, ‘marked’ is not defined by a
specific number of different behaviors or activities in which social functioning is impaired, but by the nature and
overall degree of interference.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 (“Listing of Impairments” or “the Listing”).
2
An RFC assessment analyzes twenty mental function items which are grouped under four main categories:
understanding and memory, sustained concentration and persistence, social interaction and adaptation. POMS DI
24510.060(B)(2)(b).
3
an unreasonable number and length of rest periods. (R. 218-219). She found that Plaintiff was
mildly limited only in his ability to carry out very simple one or two-step instructions and
moderately limited in his ability to maintain attention and concentration for extended periods and
to make simple work related decisions. (Id.)
Dr. Jain further determined that, in the category of social interactions, Plaintiff was
markedly limited in his ability to interact appropriately with the public, and in his ability to
accept instructions and respond appropriately to criticism from supervisors. (R. 218). He was
also markedly limited in his ability to get along with coworkers or peers without distracting them
or exhibiting behavioral extremes and in his ability to maintain socially appropriate behavior or
to adhere to basic standards of neatness and cleanliness. However, she found that he was only
moderately limited in his ability to ask simple questions or request assistance. (R. 219).
Finally, Dr. Jain found that Plaintiff was also markedly limited in his ability to respond
appropriately to changes in the work setting, to set realistic goals or make independent plans, to
be aware of normal hazards and to take appropriate precautions and in his ability to travel to
unfamiliar places or use public transportation. (R. 219-220).
2.
Dr. Marc Friedman, Psychologist
Dr. Friedman examined Plaintiff on April 15, 2008. (R. 193-195). Plaintiff was alert and
able to provide a coherent history. He told Dr. Friedman about his diagnosis of anxiety and
bipolar disorder. (Id.) Plaintiff recalled that his depression began around the time his wife
suddenly left him. During that period, his father passed away and he found his brother dead in
his apartment. (R. 194). Plaintiff made self disparaging comments and remarked that he lost
confidence in himself. (R. 193-194). He also reported panic attacks which occurred about once
a week. During those episodes he felt that “people are watching him, he perspires a lot, has rapid
4
heartbeat and needs to escape.” (R.193). In addition, Plaintiff expressed a lack of joy and
motivation when performing routine chores, such as washing the dishes or doing the laundry.
(R. 195). He stated he lost interest in taking care of his yard and garden, activities he used to
enjoy. Instead, he spends considerable time watching TV. (Id.)
With regard to Plaintiff’s cognitive abilities, Dr. Friedman determined that his long-term
memory was slightly impaired, and his short-term memory and concentration were mildly
impaired. (R. 194). Plaintiff was able to compute serial sevens until seventy-two and was able
to repeat five digits forward, but could only compute four digits backward. (Id.) Dr. Friedman
diagnosed Plaintiff with bipolar disorder, current episode depressed panic disorder and assigned
him a GAF score of 45. (R. 195). He found his intelligence to be average. (R. 194).
3.
Dr. Clara Castillo-Velez, State Agency Psychological Consultant
On April 16, 2008, Dr. Castillo-Velez administered a psychiatric review and an RFC
assessment of Plaintiff. (R. 196-213). In her psychiatric review, she determined that Plaintiff
suffered from a mood disturbance, accompanied by bipolar disorder and symptoms of depressive
syndrome, under the “A” criteria of the Listing § 12.04-affective disorders. 3 (R. 199). She
3
Satisfaction of the "A" criteria of Listing § 12.04 requires "[m]edically documented persistence, either
continuous or intermittent, of one of the following:
(1) Depressive syndrome characterized by at least four of the following: (a) Anhedonia or pervasive loss of
interest in almost all activities; or (b) Appetite disturbance with change in weight; or (c) Sleep disturbance;
or (d) Psychomotor agitation or retardation; or (e) Decreased energy; or (f) Feelings of guilt or
worthlessness; or (g) Difficulty concentrating or thinking; or (h) Thoughts of suicide; or (i) Hallucinations,
delusions, or paranoid thinking; or
(2) Manic syndrome characterized by at least three of the following: (a) Hyperactivity; or (b) Pressure of
speech; or (c) Flight of ideas; or (d) Inflated self-esteem; or (e) Decreased need for sleep; or (f) Easy
distractibility; or (g) Involvement in activities that have a high probability of painful consequences which
are not recognized; or (h) Hallucinations, delusions or paranoid thinking; or
(3) Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both
manic and depressive syndromes (and currently characterized by either or both syndromes)."
5
found that Plaintiff suffered from decreased energy and feelings of guilt or worthlessness, two of
the four symptoms necessary to definitively diagnose a patient with depressive syndrome.
Dr. Castillo-Velez concluded that under the “B” criteria of Listing § 12.04, Plaintiff was
moderately limited in his functional capacities, such as in his ability to perform activities of daily
living and in his ability to maintain concentration, persistence or pace. 4 (R. 206). She also
found that Plaintiff did not suffer any extended episodes of decompensation. (Id.)
Dr. Castillo-Velez also performed a mental RFC assessment. In Section I of the RFC
assessment, she determined that Plaintiff was moderately limited in his understanding and
memory. (R. 210). Within this category, she found that although Plaintiff was moderately
limited in his ability to understand and remember detailed instructions, he was not significantly
limited in his ability to remember locations and work-like procedures, or in his ability to
understand and remember very short and simple instructions. (Id.)
Dr. Castillo-Velez further found that Plaintiff was moderately limited in his ability to
maintain sustained concentration and persistence. (Id.) Within the category of concentration and
persistence, she found that Plaintiff was moderately limited in the following: 1) his ability to
carry out detailed instructions; 2) his ability to maintain attention and concentration for extended
periods; 3) his ability to perform activities within a schedule, maintain regular attendance and be
punctual within customary tolerances; 4) his ability to sustain an ordinary routine without special
supervision; 5) his ability to work in coordination with or proximity to others without being
distracted by them; 6) his ability to make simple work-related decisions; and 7) his ability to
complete a normal workday and workweek without interruptions from psychologically based
4
Satisfaction of the "B" criteria of Listing § 12.04 requires at least two of the following: "(1) Marked
restriction of activities of daily living; or (2) Marked difficulties in maintaining social functioning; or (3) Marked
difficulties in maintaining concentration, persistence, or pace; or (4) Repeated episodes of decompensation, each of
extended duration."
6
symptoms and to perform at a consistent pace without an unreasonable number and length of rest
periods. (R. 210-211). However, Dr. Castillo-Velez found that Plaintiff was not significantly
limited in his ability to carry out very short and simple instructions. (R. 210).
In addition, Dr. Castillo-Velez determined that Plaintiff was moderately limited in his
social interactions. (R. 211). Specifically, she found that Plaintiff was moderately limited in his
ability to accept instructions and respond appropriately to criticism from supervisors and in his
ability to get along with coworkers or peers without distracting them or exhibiting behavioral
extremes. However, she found Plaintiff was not significantly limited in his ability to interact
appropriately with the general public, in his ability to ask simple questions or request assistance,
or in his ability to maintain socially appropriate behavior or to adhere to basic standards of
neatness and cleanliness. (Id.)
Finally, Dr. Castillo-Velez found that, within the adaptation category, Plaintiff was
moderately limited in his ability to respond appropriately to changes in the work setting and in
his ability to set realistic goals or make independent plans, but was not significantly limited in
his ability to be aware of normal hazards and to take appropriate precautions or in his ability to
travel in unfamiliar places or use public transportation. (Id.)
Based on the above conclusions, Dr. Castillo-Velez found that Plaintiff’s long-term
memory was slightly impaired, his concentration was mildly impaired and his short-term
memory was fair. (R. 212). The doctor subsequently concluded that Plaintiff maintains the
requisite concentration, persistence and pace necessary to complete simple job tasks. (Id.)
4.
Dr. Sandy V. Segaram, Primary Care Physician
On April 30, 2009, Dr. Segaram completed a multiple impairment questionnaire. (R.
247-254). She was Plaintiff’s primary care physician since 1996, and diagnosed Plaintiff with
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“bipolar depression” with a poor prognosis, based on her clinical findings of his anxiety, lack of
interest, short-term memory loss and his feelings of uselessness and worthlessness. (R. 247,
252). In addition, Dr. Segaram observed that Plaintiff was precluded from using his hands and
fingers for fine manipulations and from using his arms for reaching. (R. 251). She also found
that Plaintiff’s symptoms were severe enough to interfere with his attention and concentration.
(R. 252).
She therefore concluded that Plaintiff’s physical and psychological limitations
prevented him from performing either a full time competitive job that requires activity on a
sustained basis or even to tolerate a low stress work environment. (R. 252-253).
5.
Dr. Eric S. Englestein, Neurologist
After referral from Dr. Segaram, Dr. Englestein examined Plaintiff on three occasions
between May and August of 2009. (R. 255-259). On May 8, 2009, Plaintiff complained of some
short-term memory difficulty that he had been experiencing.
Dr. Englestein observed that
Plaintiff was alert, fully oriented, and able to follow a three-step command. He was also able to
remember three out of three objects within a few minutes of testing. (R. 258). Dr. Englestein,
found that Plaintiff’s neurological exam did not show any major abnormality.
On June 19, 2009, Dr. Englestein performed a series of tests on Plaintiff and ordered him
to undergo formal neurocognitive testing to definitively assess his problems. (R. 256). After
reviewing the tests results, Dr. Englestein concluded on August 14, 2009 that Plaintiff’s brain
was working normally, but that his emotional disorder was interfering with his memory. (R.
255). Dr. Englestein suggested that Plaintiff was suffering from pseudodementia, rather than an
organic brain syndrome.
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6.
Dr. Kenneth Freundlich, Psychologist
At the request of Dr. Englestein, Dr. Freundlich evaluated Plaintiff’s cognitive
functioning on July 6, 2009. (R. 261-265). He determined that Plaintiff’s results on tests
designed to measure his attention, concentration, learning, memory and general intelligence were
within normal ranges. (R. 262-264).
Plaintiff’s attention and concentration score was well within the normal range on the
Wechsler Memory Scale-III, a working memory index. Plaintiff also performed well on other
tests of concentration span and vigilance, as both his auditory digit span and his nonverbal spatial
span were at the fiftieth percentile. However, on the Conners’ Continuous Performance Test-II,
a computerized measure of attention and concentration, Plaintiff made numerous omission and
commission errors, and his reaction time was uneven which is consistent with fluctuating
attention. Plaintiff was able to complete tests of perseverance without difficulty, as supported by
his ability to complete serial recitation tasks well within the average range. Dr. Freundlich found
that despite some evidence of fluctuating attention and concentration, Plaintiff did not exhibit
blatant lapses of attention. (R. 262).
On the learning and memory section of the Wechsler Memory Scale III test, Plaintiff’s
overall performance was within the average range, but his scores were uneven. Dr. Freundlich
observed that other measures of learning and memory demonstrated that Plaintiff’s overall
knowledge base is adequate, and he can tap into and retrieve information from that base. (R.
262-263). In addition, Plaintiff’s overall intellectual abilities were shown to be well within the
average range on the Wechsler Abbreviated Scale of Intelligence. (R. 263).
Based upon the clinical scales, Dr. Freundlich found Plaintiff to suffer from high levels of
anxiety and depression, coupled with multiple cognitive and somatic complaints. The overall
9
results from the evaluation indicated that Plaintiff’s cognitive functioning was somewhat uneven,
but the majority of his scores were within normal range. His overall intelligence and memory
were average and there was no evidence of pervasive cognitive impairment. Dr. Freundlich
suggested that psychological interference is causing a compromise in Plaintiff’s functional
ability. He concluded that Plaintiff should be sent back to a psychiatrist for ongoing treatment,
based on his finding that emotional factors were most likely the cause of his perceived cognitive
difficulties. (R. 265).
C.
Plaintiff’s Testimony
According to Plaintiff’s testimony at the hearing, he does not do much during the day
except to walk across the street to the local convenience store. He watches TV and takes daily
naps that last about two hours. (R. 51). It is difficult for him to do basic household chores,
except that he is obsessive about cleaning the kitchen floor which occupies him for about two
hours a day. He takes showers a few times a week. Plaintiff experiences daily episodes of
anxiety. He is afraid to talk with or to be around people. He claims he is forgetful, does not
know where he places things and makes a lot of mistakes. Plaintiff believes he was fired from
his last job in March 2009 because he was late to work, had many absences and fell asleep at the
job. (R. 48-49).
III.
LEGAL STANDARD FOR DISABILITY BENEFITS
A.
Disability Defined
To be eligible for SSI and DIB benefits, 5 a claimant must demonstrate 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
5
The standards for obtaining DIB, 42 U.S.C. § 401 et. seq., and SSI, 42 U.S.C. § 1381 et. seq., are the same
in all relevant aspects. See Sullivan v. Zebley, 493 U.S. 521, 526 n.3 (1990).
10
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
A person is disabled for these purposes only if his physical and medical 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.” Id.
B.
The Five-Step Analysis for Determining Disability.
Social Security regulations set forth a five-step, sequential evaluation procedure to
determine whether a claimant is disabled. 20 C.F.R. § 416.920. For the first two steps, the
claimant must establish 1) that he has not engaged in substantial gainful activity since the onset
of his alleged disability, and 2) that he suffers from a “severe impairment” or “combination of
impairments.” 20 C.F.R. § 416.920 (b)-(c).
Given that the claimant bears the burden of
establishing these first two requirements, his failure to meet this burden automatically results in a
denial of benefits, and the court’s inquiry necessarily ends there. Bowen v. Yuckert, 482 U.S.
137, 146-147 n. 5. (1987) (delineating the burdens of proof at each step of the disability
determination).
If the claimant satisfies his initial burden, he must provide evidence that his impairment
is equal to or exceeds one of the impairments listed in Appendix 1 of the regulations. 20 C.F.R.
§ 416.920(d). Upon such a showing, he is presumed to be disabled and is automatically entitled
to disability benefits. Id. If he cannot so demonstrate, the benefit eligibility analysis requires
further scrutiny.
The fourth step of the analysis focuses on whether the claimant’s RFC sufficiently
permits him to resume his past relevant work. 20 C.F.R. § 416.920 (e)-(f). A claimant’s RFC is
defined as “that which an individual is still able to do despite limitations caused by his or her
11
impairments.” 20 C.F.R. § 404.1520(e). Again, the burden lies with the claimant to show that
he is unable to perform his past work. Fargnoli v. Massanari, 247 F.3d 34, 39 (3d Cir. 2001). If
the claimant is found to be capable to return to his previous line of work, then he is not
“disabled” and is not entitled to disability benefits. Id. Should the claimant be unable to return
to his previous work, the analysis proceeds to step five.
At step five, the burden shifts to the Commissioner to demonstrate that the claimant can
perform other substantial, gainful work. 20 C.F.R. § 416.920(g); Kangas v. Bowen, 823 F.2d
775, 777 (3d Cir. 1987).
If the Commissioner cannot satisfy this burden, the claimant is
“disabled” and will receive social security benefits. Yuckert, 482 U.S. at 146-147 n 5.
C.
The Record Must Provide Objective Medical Evidence.
Under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. and 42 U.S.C. § 1381 et
seq., a claimant is required to provide objective medical evidence in order to prove his disability.
42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless
he furnishes such medical and other evidence of the existence thereof as the Commissioner of
Social Security may require.”); 42 U.S.C. § 1382c(H)(I) (“In making determinations with respect
to disability under this subchapter, the provisions of the section … 423(d)(5) of this title shall
apply in the same manner as they apply to determinations of disability under subchapter II of this
chapter.”) Accordingly, a claimant cannot prove that he is disabled solely on his subjective
complaints of pain and other symptoms. See Green v. Schweiker, 749 F.2d 1066, 1069-70 (3d
Cir. 1984) (“[S]ubjective complaints of pain, without more, do not in themselves constitute
disability.”) The claimant must provide medical findings that show that he has a medically
determinable impairment. See id., see also 42 U.S.C. § 423(d)(1)(A) (defining “disability” as an
“inability to engage in any substantial gainful activity by reason of any medically determinable
12
physical or mental impairment;” 42 U.S.C. § 1382c(a)(3)(A) (defining a disabled person as one
who is “unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment”).
Furthermore, a claimant’s symptoms “such as pain, fatigue, shortness of breath, weakness
or nervousness, will not be found to affect [one’s] ability to do basic work activities unless
medical signs or laboratory findings show that a medically determinable impairment(s) is
present.” 20 C.F.R. § 416.929(b); see Hartranft v Apfel, 181 F.3d 358, 362 (3d Cir. 1999)
(rejecting claimant’s argument that the ALJ failed to consider his subjective symptoms when the
ALJ had made findings that his subjective symptoms were inconsistent with objective medical
evidence and the claimant’s hearing testimony); Williams v. Sullivan, 970 F.2d 1178, 1186 (3d
Cir. 1992) (denying claimant benefits where claimant failed to proffer medical findings or signs
that he was unable to work).
IV.
STANDARD OF REVIEW
The standard under which the District Court reviews an ALJ decision is whether there is
substantial evidence in the record to support the ALJ’s decision. 42 U.S.C. § 405(g); Plummer v.
Apfel, 186 F.3d 422, 427 (3d Cir. 1999). “[M]ore than a mere scintilla,” substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. of New York
v. NLRB, 305 U.S. 197, 229 (1938) (internal quotation marks omitted)). The inquiry is not
whether the reviewing court would have made the same determination, but, rather, whether the
Commissioner’s conclusion was reasonable. See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.
1988). Substantial evidence, therefore may be slightly less than a preponderance. Hanusiewicz
v. Bowen, 678 F. Supp. 474, 476 (D.N.J. 1988).
13
The reviewing court, however, does have a duty to review the evidence in its totality.
Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). As such, “a court must take into account
whatever in the record fairly detracts from its weight.” Schonewolf v. Callahan, 972 F. Supp.
277, 284 (D.N.J. 1997) (internal quotations omitted). The Commissioner has a corresponding
duty to facilitate the court’s review: “[w]here the [Commissioner] is faced with conflicting
evidence, he must adequately explain in the record his reasons for rejecting or discrediting
competent evidence.” Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D.Pa. 1987). As the Third
Circuit has instructed, a full explanation of the Commissioner’s reasoning is essential to
meaningful court review: “Unless the [Commissioner] has analyzed all evidence and has
sufficiently explained the weight he has given to obviously probative exhibits, to say his decision
is supported by substantial evidence approaches an abdication of the court’s duty to scrutinize
the record as a whole to determine whether the conclusions reached are rational.” Gober v.
Matthews, 574 F.2d 772, 776 (3d Cir. 1978) (internal quotations omitted). Nonetheless, the
district court is not “empowered to weigh the evidence or substitute its conclusions for those of
the fact-finder.” Williams, 970 F.2d at 1182.
V.
THE ALJ'S DECISION
In her decision, the ALJ applied the requisite sequential evaluation and considered all
relevant evidence before her, including Plaintiff’s testimony. (R. 8-18). She concluded that
Plaintiff was not disabled. At step one of the sequential evaluation, the ALJ determined that
Plaintiff did not engage in any substantial gainful activity after May 22, 2007, the alleged onset
date of disability. (R. 13). The ALJ noted that although Plaintiff continued to work after the
onset date of disability through March 2009, he was unable to maintain any sustained period of
employment because of his condition.
She determined that such work did not constitute
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substantial gainful activity and found in Plaintiff's favor at step one. (R. 14). At step two, the
ALJ concluded that the evidence established the existence of a severe impairment, specifically,
bipolar disorder. Accordingly, she continued her analysis of Plaintiff’s claims.
Although the ALJ found Plaintiff’s impairment to be severe, the ALJ determined at step
three that Plaintiff did not have an “impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 CFR 404, Subpart P, Appendix 1,
Regulations No. 4.” (R. 14). The ALJ relied upon the opinion of Dr. Castillo-Velez, the state
agency psychological consultant, who found that Plaintiff’s mood disorder did not meet either
the “B” or “C” medical criteria of the impairments listed in the Regulations. Specifically, the
ALJ determined that, with regard to the applicable paragraph B criteria of such listings,
Plaintiff’s functional limitations at most moderately interfered with his activities of daily living,
his ability to maintain concentration, persistence or pace and did not produce extended episodes
of decompensation.
Based upon Plaintiff’s mental RFC assessment, the ALJ determined at step four that
Plaintiff is able to perform self-paced work not involving detailed instructions, with one to two
step job tasks in occupations involving relatively few changes in the work routine and no more
than limited interaction with coworkers and the general public. (Id.) To reach this conclusion,
the ALJ relied upon Dr. Friedman's medical reports, which found Plaintiff’s long-term memory,
short-term memory and concentration to be only mildly impaired. Dr. Friedman also noted that
Plaintiff spends a lot of time watching TV and “in fact looks forward to it,” which does not
suggest significant deficits in attention and concentration. (R.16, see 195). In addition, results
from neurocognitive tests administered by Dr. Freundlich show that Plaintiff’s memory, attention
and concentration were mostly within normal limits.
15
(R. 15).
Dr. Englestein similarly
determined that Plaintiff was oriented to person, place and time and was able to follow three-step
commands.
Based on her mental RFC assessment, Dr. Castillo-Velez also concluded that
Plaintiff was not precluded from performing simple job tasks on a sustained and competitive
basis. The ALJ further found that although Plaintiff tends to isolate, he is able to use public
transportation, shop for household groceries and shop for other household needs on a regular
basis. The ALJ noted that Plaintiff testified that a court awarded him shared custody of his
children and that the children stay with him more than fifty percent of the time. (R. 16). The
ALJ disregarded the assessment of Plaintiff’s marked limitations of functional capacity provided
by Dr. Jain and Dr. Segaram because she found that their findings “were not supported by
Plaintiff’s treatment records, and are also inconsistent with Plaintiff’s activities of daily living,
which he found were not suggestive of wholly disabling functional limitations.” (R. 160.) Based
upon the ALJ’s RFC assessment at step four, she determined that Plaintiff is precluded from
returning to any work performed over the previous fifteen years.
At step five, the ALJ found that, considering Plaintiff’s age, education, work experience
and residual functional capacity, there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform. In making this determination, the ALJ relied upon the
testimony of the vocational expert (“VE”) who found that given all of these factors the individual
would be able to work at jobs in the following occupations: cleaning, security guard, and stock
worker.
Based on the VE’s testimony, the ALJ concluded that Plaintiff was capable of
performing such work and therefore was not disabled under the Act.
Plaintiff now challenges the ALJ’s decision primarily on four grounds:
1. The ALJ failed to properly analyze Plaintiff’s impairment under the third step of the
evaluation.
2. The ALJ failed to follow the treating physician rule.
3. The ALJ failed to properly evaluate Plaintiff’s testimony.
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4. The ALJ relied upon flawed vocational expert testimony.
The Commissioner contends that the ALJ’s decision is supported by substantial evidence and
should therefore be affirmed.
VI.
LEGAL DISCUSSION
A.
The ALJ’s Finding that Plaintiff was not Disabled is Supported by the Record.
Plaintiff argues that the ALJ erred in failing to find that he was per se disabled under
Listing § 12.04. First, Plaintiff contends that the ALJ incorrectly rejected Dr. Jain’s opinion. He
alleges that the ALJ ignored Dr. Jain’s clinical findings and her December 2008 assessment that
he had the requisite symptoms to support a depressive syndrome. Plaintiff maintains that Dr.
Jain’s December 2008 clinical findings indicated that he suffered from all the characterizations
of a depressive syndrome except for hallucinations, delusions or paranoid thinking, and that he
was markedly limited in his ability to maintain sustained concentration and persistence, and in
his social interactions, and that he experienced episodes of decompensation in work or work-like
settings. (R. 216 and 218- 220).
The Court finds that the ALJ's conclusion that Dr. Jain’s opinion was inconsistent with
Plaintiff's treatment record is supported by substantial evidence. A medical report is acceptable
evidence to establish an impairment if it contains medical history and clinical findings, such as
the results of a mental status exam, laboratory findings and a diagnosis.
20 C.F.R. §
404.1513(b). The impairment must also be proven by symptoms and signs, which consist of
anatomical, physiological or psychological abnormalities which must be shown by medically
acceptable clinical diagnostic techniques. 20 C.F.R. 404.1528(a)-(b). Dr. Jain’s opinion consists
only of conclusory statements that lack support from any cognitive evaluation or any other
medical finding.
For example, Dr. Jain’s April 2007 medical report and her July 2007
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certification concluded that Plaintiff was unable to perform any work, but did not rely on any
evidence from Plaintiff’s treatment records. (R. 244).
Similarly, Dr. Jain’s January 2008
medical report concluded that Plaintiff was prevented from working at that time. She determined
that Plaintiff’s bipolar disorder, mood swings, severe depression and suicidal thoughts limit his
ability to do work related activities, but failed to cite any findings from Plaintiff’s medical
records that would support her conclusions. (R. 239). Furthermore, in Dr. Jain’s responses to an
April 2008 multiple impairment questionnaire, she indicated that Plaintiff is totally disabled (R.
231), a conclusion that goes beyond the scope of a medical opinion.
See 20 C.F.R. §
404.1527(e) (determinations of disability are considered “administrative findings that are
dispositive of the case” and reserved exclusively for the ALJ).
The ALJ’s assessment that Dr. Jain’s opinion was inconsistent with Plaintiff’s daily
activities is also supported by the record. Plaintiff stated he is able to perform routine daily
activities, which include his ability to use public transportation, to shop in the convenience store
daily, to drive, to clean the kitchen floor, to prepare his own meals and to take care of his
personal needs. (R. 48, 55, 57, 160, 164-166).
Although Plaintiff maintains the ALJ
mischaracterized Plaintiff’s daily activities by stating that he would only “occasionally go to the
convenience store” and his children did his grocery shopping for him, (Pl’s Br. 16), this
argument is contradicted by his own testimony. Plaintiff admits he goes daily to the convenience
store and shops for food and household items one or two times a month. (R. 57, 166). These
daily activities contradict a finding of “wholly disabling functional limitations.” (R. 16).
Plaintiff also argues that the ALJ erred in accepting the opinion of the state agency
psychological consultant, Dr. Castillo-Velez, who found that he did not meet the criteria of
Listing § 12.04. State agency psychological consultants are highly qualified experts in Social
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Security disability evaluation, and their opinions regarding the nature and severity of an
individual’s impairment must be treated as opinion evidence. 20 C.F.R. § 404.1527(f)(2); SSR
96-6p. In arguing that it is improper for an ALJ to rely upon the testimony of a consulting
physician who has not examined the plaintiff, Plaintiff relies on Brownawell v. Commissioner of
Social Security, 554 F.3d 352, 358 (3d Cir. 2008). However, in Brownawell, the court held the
consulting physician’s assessment suffered from “logical errors.” Id. In contrast, in this case,
the medical records support Dr. Castillo-Velez’s RFC assessment that Plaintiff’s mental
symptomatology does not preclude him from performing simple job tasks. Her finding that
Plaintiff can maintain concentration, persistence or pace for simple tasks is supported by the
opinion of the other physicians in the record, including the opinion of Dr. Friedman who
performed a mental status exam and Dr. Freundlich who performed a cognitive evaluation of
Plaintiff. (R. 195, 261-265). The findings of Dr. Castillo-Velez that Plaintiff is mildly limited in
his understanding and memory is supported by the test results from Dr. Freundlich’s cognitive
evaluation and from Dr. Friedman’s opinion. (R. 193-195, 261-265). In addition, under the “B”
criteria of Listing § 12.04, Dr. Castillo-Velez’s findings of Plaintiff’s moderate restriction of
activities of daily living and her findings that there was no evidence that Plaintiff suffered from
episodes of decompensation is supported by the record. (R. 48, 55, 57, 160, 164-166, 206).
Although Dr. Castillo-Velez's RFC assessment clearly contradicts the opinion of Dr. Jain,
Plaintiff’s treating psychiatrist, the Third Circuit has held that 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.” Morales v.
Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (internal quotation marks omitted). Furthermore, “it is
beyond dispute that a well-supported residual functional capacity assessment provided by a
19
consultative medical examiner can constitute ‘substantial evidence’ of a claimant’s ability to
work, even where that assessment is contradicted by a report supplied by the claimant’s treating
physician.” Demczyk v. Astrue, 2010 U.S. Dist. LEXIS 112063 (W.D.P.A. October 21, 2010)
(citing Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993)). As discussed in detail above, Dr.
Castillo-Velez’s RFC assessment was well supported by the record; therefore the ALJ was
entitled to rely upon her opinion.
B.
The ALJ Correctly Adopted the RFC Determination of the State Agency Psychologist.
Plaintiff argues that the ALJ’s decision to reject the opinion of Dr. Jain, his treating
psychologist, was not supported by substantial evidence.
An ALJ may reject “a treating
physician’s opinion outright only on the basis of contradictory medical evidence and not due to
his or her own credibility judgments, speculation or lay opinion” Morales, 225 F.3d at 318
(internal quotation marks and citations omitted). Furthermore, as stated in the regulations, a
treating physician’s opinion is only entitled to controlling weight when it is “well supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence.” 20 C.F.R. § 404.1527(d)(2). The ALJ is required to provide
“good reasons” for the weight she gives to the treating source’s opinion. Halloran v. Barnhart,
362 F.3d 28, 32-33 (2d Cir. 2004) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)).
Therefore, when the treating physician’s opinion conflicts with that of a non-treating physician,
“the ALJ must make clear on the record his reasons for rejecting the opinion of the treating
physician.” Brewster v. Heckler, 786 F.2d 581, 585 (3d Cir. 1986). The ALJ must explain his
reasoning based on the factors which govern weight (e.g. length and frequency of treatment,
objective evidence supporting the opinion, consistency with the record and physician’s
20
specialty). 20 C.F.R. § 404.1527(d). Plaintiff claims that the ALJ failed to follow the 20 C.F.R.
§ 404.1527(d) factors in determining the weight of the opinions of Dr. Jain and Dr. Segaram.
The ALJ explained the shortcomings of Dr. Jain and Dr. Segaram's opinions when she
decided not to award them significant weight: “Their findings of marked functional limitations,
which would preclude the claimant from sustaining any type of competitive employment are not
supported by claimant’s treatment records, and are also inconsistent with claimant’s activities of
daily living, which are not suggestive of wholly disabling functional limitations.” (R. 16).
A review of the record makes it clear that Dr. Jain and Dr. Segaram’s opinions were
inconsistent with the record and lack supporting objective evidence. There is no indication in
Dr. Jain’s reports that objective tests or a formal RFC assessment was performed throughout the
period of her treatment of Plaintiff. Dr. Jain’s written narrative of Plaintiff’s condition issued on
April 20, 2007, did not follow the formal RFC assessment criteria, and she provided no objective
medical evidence to support her findings. (R. 241-243). Her determination that Plaintiff was at
least moderately limited in eighteen categories of mental function consists solely of checked
boxes. (R. 215-222). According to the Social Security Administration’s internal operating
guidelines (the Program Operations Manual System (POMS)), the section of the exam form
completed by Dr. Jain “is merely a worksheet to aid… and does not constitute the RFC
assessment.” POMS DI 24510.060. Similarly, the opinion of Dr. Segaram, Plaintiff’s primary
care physician, does not cite any objective findings to support her conclusions. (R. 247-254).
With respect to Dr. Segaram, the Court notes that an ALJ should “give more weight to the
opinion of a specialist about medical issues related to his or her area of specialty than to the
opinion of a source who is not a specialist.” 20 C.F.R. § 404.1527(d)(5); 416.927(d)(5). Dr.
21
Segaram’s specialty is in the field of internal medicine, not in mental health; therefore, the ALJ
was correct to give her opinion less weight.
The ALJ accepted the RFC assessment of Dr. Castillo-Velez on the basis that it was
consistent with other objective evidence in the record. The ALJ's finding is supported by Dr.
Freundlich’s cognitive evaluation on July 6, 2009, which demonstrated that Plaintiff’s attention,
concentration, learning, memory and general intelligence were within normal ranges. (R. 261265).
Dr. Freundlich conducted various objective tests prior to issuing his opinion.
He
performed memory tests using the Wechsler Memory Scale-III, which is highly dependent on
attention and concentration, and found that Plaintiff’s score was within the average range.
Plaintiff also performed well on other tests of concentration span and vigilance, as both his
auditory digit span and his nonverbal spatial span were at the fiftieth percentile. (R. 262).
Plaintiff was able to complete tests of perseverance without difficulty, and his ability to complete
serial recitation tasks were well within the average range. Dr. Freundlich therefore found that
despite some evidence of fluctuating attention and concentration, Plaintiff did not exhibit blatant
lapses of attention. (Id.) Dr. Freundlich concluded from other measures of Plaintiff’s learning
and memory skills that his overall knowledge base was adequate and that he can tap into and
retrieve information from that base. (R. 262-263). In addition, he found Plaintiff’s overall
intellectual abilities were shown to be well within the average range on the Wechsler
Abbreviated Scale of Intelligence. (R.263).
Dr. Friedman’s opinion, based on his April 15, 2008 mental examination of Plaintiff,
corroborates the ALJ's finding that Plaintiff can perform simple, self-paced jobs. (R. 16, see R.
193-195). During that exam, Plaintiff was alert and able to provide a coherent history. Plaintiff
was able to compute serial sevens until seventy-two. He was also able to repeat five digits
22
forward, but could only recall four digits backward. Dr. Friedman found that Plaintiff’s overall
intelligence appeared to be average. (R. 194). He also found Plaintiff’s long-term memory to be
slightly impaired, and his short-term memory and concentration to be mildly impaired. (Id.)
Dr. Englestein’s neurological report dated May 8, 2009, also supports the ALJ's RFC
assessment. (R. 16. See R. 257-259). Dr. Englestein observed that Plaintiff was alert and fully
oriented and was able to follow a three-step command and remember three out of three objects
after a few minutes. (R. 258). Dr. Englestein found that Plaintiff’s neurological exam did not
show any major abnormality.
C.
The ALJ Properly Evaluated Plaintiff’s Testimony.
Plaintiff argues that the ALJ did not properly consider his subjective complaints.
However, the Third Circuit grants the ALJ discretion in evaluating the credibility of a Plaintiff’s
subjective complaints. Edwards v. Comm'r of Soc. Sec., 989 F. Supp. 657, 660 (D.N.J. 1998). In
addition, the regulations do not consider subjective symptoms alone to be conclusive evidence of
disability. Rather, disability is established when there is objective medical evidence that a
medical condition “could reasonably be expected to produce the pain or other symptoms
alleged.” 20 C.F.R. § 404.1529(a); SSR 96-7p. When the ALJ finds a medical impairment that
could logically account for a claimant’s subjective complaints, “he or she must evaluate the
intensity and persistence of the pain or symptom, and the extent to which it affects the
individual’s ability to work.” Hartfanft, 181 F.3d at 362 (citing 20 C.F.R. § 404.1529(c)).
The Court finds that the ALJ’s rejection of Plaintiff’s testimony concerning his inability
to work was supported by the evidence she considered. The ALJ determined that Plaintiff’s
impairment was not consistent with a disabling condition, and only restricted him to self-paced,
simple work. (R. 14). She found that, although Plaintiff alleged “an inability to work,” such
23
statements were inconsistent with his daily activities and the objective medical evidence. (Id.)
The ALJ concluded that Plaintiff’s daily activities are not suggestive of a wholly disabling
impairment. (R. 16).
Plaintiff testified that he made coffee in the morning, drove a car, cleaned the kitchen
floor for two hours a day, and prepared his own meals. (R. 48, 51, 55-56, 165). In addition,
Plaintiff reported he used public transportation, walked across the street to the convenience store
once a day and shopped for food and other household items one or two times a month. (R. 57,
166). Plaintiff also stated he can take care of his personal needs and can watch TV. (R. 164,
166). Therefore, the ALJ’s conclusion that Plaintiff’s daily activities were not suggestive of a
wholly disabling impairment is supported by Plaintiff’s testimony.
The ALJ relied upon the opinions of Dr. Friedman, Dr. Freundlich and Dr. Castillo-Velez
to support her findings that Plaintiff’s testimony and symptoms were not consistent with a
finding of a medically determined impairment. Plaintiff's score on the Wechsler Memory ScaleIII, a test which is highly dependent on attention and concentration, performed by Dr.
Freundlich, was well within the average range. Plaintiff also performed well on other tests of
concentration span and vigilance, as both his auditory digit span and his nonverbal spatial span
were at the fiftieth percentile. (R. 15, see 262). Dr. Friedman found Plaintiff’s long-term
memory to be only slightly impaired and his short-term memory and concentration to be only
mildly impaired. (R. 16, see R. 194). In addition, Dr. Castillo-Velez determined Plaintiff was at
most moderately limited in his activities of daily living, his social functioning and his ability to
maintain concentration, persistence or pace. (R. 15, See 206, 210-212). She concluded that
Plaintiff ‘s limitations did not preclude him “from performing simple job tasks on a sustained
and competitive basis.” (R. 15).
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If a claimant’s symptoms suggest a greater limitation than can be shown by objective
medical evidence alone, the Commissioner will consider other evidence, such as the Plaintiff’s
statements, the frequency and intensity of his symptoms, his daily activities, his medication and
his treatment. 20 C.F.R. § 404.1529, 416.929; SSR 96-7p. Plaintiff argues that the ALJ failed to
take into account the factors listed above. However, the ALJ acknowledged that Plaintiff was
taking medications prescribed by his doctors (R. 15), but noted that there is no record of any
psychiatric hospitalization at any time relevant to her decision, and that Plaintiff worked during a
substantial period after his onset date of disability. (R 14-15).
D.
The ALJ Presented an Accurate Hypothetical Question to the VE.
Plaintiff argues that the ALJ incorrectly relied upon the VE’s testimony at the fifth step
of the sequential evaluation. However, Plaintiff does not claim that the VE’s testimony was
procedurally incorrect or that he did not follow the regulations. Instead, Plaintiff maintains that
the ALJ erred by presenting a hypothetical question to the VE which was based on an RFC
determination that discounted certain medical evidence. Plaintiff’s claim is essentially just
another attempt to challenge the ALJ’s RFC assessment.
The ALJ is not required to convey to the VE “every impairment alleged by the
Claimant.” Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). The ALJ is only
obligated to convey to the VE all of a claimant’s limitations that are credibly established by
objective medical evidence. Id. In addition, the ALJ's RFC finding must “be accompanied by a
clear and satisfactory explanation of the basis on which it rests.” Fargnoli, 247 F.3d at 41 (citing
Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)).
As stated above, the ALJ’s RFC determination was supported by substantial evidence. In
his hypothetical to the VE, the ALJ conveyed that Plaintiff is restricted to jobs that are self-
25
paced, confined to routine one to two-step tasks and do not involve detailed instructions. (R. 66).
The ALJ further advised the VE that the job must involve “few work changes and no more than
limited contact with the public and coworkers.” (Id.) Based on the ALJ’s hypothetical, the VE
found that an individual with those limitations would be able to work in the cleaning profession,
or perform jobs such as a self-paced office cleaner and a housekeeper. The VE also determined
that this individual could work as a security guard or an evening stock worker. Therefore, the
ALJ properly determined that there are jobs in the national economy that Plaintiff can perform.
VII.
CONCLUSION
For the reasons stated above, the Court finds that the Commissioner’s decision is
supported by substantial evidence and thus affirms the Commissioner's final decision denying
benefits for Plaintiff. An appropriate Order follows.
/s/ JOEL A. PISANO
United States District Judge
Dated: August 4, 2011
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