MOAWAD v. ASTRUE et al

Filing 21

OPINION and ORDER that the final decision of the Commissioner of Social Security is affirmed. Signed by Judge Peter G. Sheridan on 6/27/2013. (mmh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
AMIN MOAWAD,
Civil Action No. 12-cv-1025 (PGS)
Plaintiff,
v.
OPINION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

SHERIDAN, U.S.D.J.
This matter is before the Court on the appeal of Plaintiff, Amin Moawad (“Plaintiff” or
“Moawad”) of the final decision of the Commissioner of Social Security Administration
(“Commissioner”) denying his request for disability insurance benefits for the period beginning August
27, 2003 through December 31, 2005, the date last insured (DLI) (hereinafter the “Time Period”).
ALJ Donna A. Krappa held two hearings on the matter. At the first hearing (September 30, 2009)
Plaintiff testified; and at the second hearing (April 7, 2010) Martin Fechner, M.D., a medical expert, and
Rocco Meola, a vocational expert, testified.
On June 14, 2010, the ALJ issued a decision finding that Plaintiff was not disabled on or before
December 31, 2005. ALJ Donna Krappa found that during the relevant period, Plaintiff had severe
impairments due to a disorder of the back and exogenous obesity; however Plaintiff was “capable of the
exertional demands of sedentary work” and therefore not disabled.
Background
At the time of the ALJ’s final decision, Plaintiff was 45 years old and was classified as a younger
individual (20 C.F.R. § 404.1563). Plaintiff is a college graduate with past work experience as a
controller/accountant. This experience included his job in sales management where he would “deal with

[a] number of reports to give to higher management.” According to the vocational expert (Mr. Meola),
Plaintiff’s past work was classified as “sedentary” and due to his knowledge of accounting, it was
considered “skilled” work. Long before the Time Period (1997) Moawad was involved in a motor
vehicle accident. Moawad described the accident, and his injury as follows:
I got rear ended into another truck in the front of me and I was under
treatment for three years for, for a few months at least, until I tried to fight it
but, apparently, it was not going any further. It got worse from sitting down
and – all day in front of computers.

Evidently, Moawad’s back pain arose from the 1997 accident. After the accident, Moawad had undertaken
physical therapy and injections for the pain, but had rejected recommended surgery on several occasions
because of his “obesity and . . . heart problems. ” He did not want to “take the risk.”

According to

Moawad, he takes 12 medications per day including Naproxen and Skelaxin for his back pain. In
addition, Moawad’s cardiologist has diagnosed him with heart disease and diabetes which are controlled
by medication. At the hearing, Moawad indicated that during the Time Period, he was unable to perform
any kind of work activity because his medications make him drowsy. Also, his back pain was so intense
that from time to time, the pain required him “to lay down on my back flat until I find a comfortable spot”
after which he could “get back to work.”
Medical Reports and Records
A.

Treating Physician Morin A. Dawoud, M.D
Morin A. Dawoud, M.D. of Summit Medical Center has treated Plaintiff for neck and back pain.

Moawad first saw Dr. Dawoud in June, 2001, and began regular monthly examinations by Dr. Dawoud in
January, 2003.

According to the progress notes, complaints at each monthly follow-up visit were nearly identical.
That is, Plaintiff complained of neck pain shooting to both arms, and back pain shooting to both of his legs
with marked weakness, numbness, and tingling. He further complained of severe stiffness in the cervical
and lumbar spine and an inability to sit or stand for more than thirty minutes, with tenderness of the
cervical and paraspinal muscles bilaterally. Moawad also complained of limited range of motion in the
spine. Dr. Dawoud found decreased sensation at the C3, C7, L4 and S2 nerve root distributions (more on
the left side), and limitations when performing the straight leg raise test. In addition, Dr. Dawoud
diagnosed bilateral cervical disc radiculopathy at C4-C5, lumbosacral disc herniation at L4, L5and S1,
with bilateral radiculopathy.

Dr. Dawoud’s notes from 22 monthly visits each identify identical

symptoms. (See R. 224, 225, 226, 227, 228, 229, 230, 231, 232, 302, 305, 306, 307, 308, 309, 310, 314,
315, 316, 317, 318, 319). When reviewing the 22 treatment records of Dr. Dawoud, the language in each
varies only slightly, and there is no mention of any the objective diagnostic testing (MRIs) or other tests to
support the findings. Since all 22 reports are virtually the same, they are more repetitive than
comprehensive.
For illustration purposes, the text of three progress notes are set forth below to illustrate their
similarity. These progress notes are from February 18, 2003, February 11, 2004, and December 9, 2005.
1.

Summit Medical Center Progress Notes

Date: 2/18/03

PATIENTS NAME: Moawad, Amin
CHIEF COMPLAINT: More neck pain shooting to both arms and increasing low back pain shooting to
both legs with marked weakness, numbness and tingling sensation. Severe stiffness of C-spine and L-S
spines. Unable to sit or stand for more than 15 minutes
VITAL SIGNS: B.P. 140/85
T. 98.6
P: 80/min.
R. 19/min
NECK:
Increasing tenderness of the C/S and paraspinal muscles bilaterally, Marked stiffness &
decreased ROM of the spine.
CHEST:
Normal examination
HEART: Normal examination

ABDOMEN: Normal examination.
L/S SPINE: Markedly severe limitation of the spine. Tenderness of the lumbo-sacral spine and para
spinal muscles bilaterally.
EXTREMETIES: Decreased sensation and motor power at the level of C3-C7 nerve roots distribution.
Straight leg lifting elicits severe pain of the lumbosacral region at 55 degrees bilaterally, more so on the
left side. Decreased sensation and motor power at the level of L4-S2 nerve roots distribution.
IMPRESSION: Bilateral Cervical disc radiculopathy at C4-C5. Lumbo-sacral discs herniation at L4-L5
and L5-S1 with bilateral radiculopathy.
TREATMENT: Continue same RX
PLAN: Continue RX

2.

Summit Medical Center Progress Notes

Date: 2/11/04

PATIENTS NAME: Moawad, Amin
CHIEF COMPLAINT: Neck pain shooting to both arms and increasing low back pain shooting to
both legs with marked weakness, numbness and tingling sensation. Severe stiffness of C-spine and L-S
spines. Unable to sit or stand for more than 15 minutes. Spending most time on his back in a firm mattress.
VITAL SIGNS: B.P. 135/80
T. 98.6
P: 75/min.
R. 19/min
NECK:
Increasing tenderness of the C/S and paraspinal muscles bilaterally, Marked stiffness &
decreased ROM of the spine.
CHEST:
Normal examination
HEART: Normal examination
ABDOMEN: Normal examination.
L/S SPINE: Markedly severe limitation of the spine. Tenderness of the lumbo-sacral spine and para
spinal muscles bilaterally.
EXTREMETIES: Decreased sensation and motor power at the level of C3-C7 nerve roots distribution.
Straight leg lifting elicits severe pain of the lumbo-sacral region. Decreased sensation and motor power at
the level of L4-S2 nerve roots distribution.
IMPRESSION: Bilateral Cervical disc radiculopathy at C4-C5. Lumbo-sacral discs herniation at L4-L5
and L5-S1 with bilateral radiculopathy.
TREATMENT: Continue same RX
PLAN: Continue RX

3.

Summit Medical Center Progress Notes

Date: 12/9/05

PATIENTS NAME: Moawad, Amin
CHIEF COMPLAINT: Neck pain shooting to both arms with tingling and numbness all the way down
to the fingers. Lower back pain shooting to both legs with bilateral tingling and numbness.
VITAL SIGNS: B.P. 130/70
T. 98.6
P: 76/min.
R. 20/min
NECK:
Tenderness of the C/S and paraspinal muscles bilaterally, especially in the trapezius
muscle region. .

CHEST:
Normal examination
HEART: Normal examination
ABDOMEN: Normal examination.
L/S SPINE: . Tenderness of the lumbo-sacral spine and para spinal muscles bilaterally. Severe limitation
of the spine.
EXTREMETIES: Decreased sensation and motor power at the level of C3-C7 nerve roots distribution.
Straight leg lifting elicits severe pain of the lumbo-sacral region. Decreased sensation and motor power at
the level of L4-S2 nerve roots distribution.
IMPRESSION: Bilateral Cervical disc radiculopathy at C4-C5. Lumbo-sacral discs herniation at L4-L5
and L5-S1 with bilateral radiculopathy.
TREATMENT: Continue same RX
PLAN: Continue RX
Comparing each report above (sections chief complaint, neck, L/S spine, extremities and impression),
they are all the exactly the same. The progress notes do not discuss any course of action or treatment to be
undertaken, e.g, any heat treatments, or physical therapy, nor the results of diagnostic tests. In addition to
the progress notes, Dr. Dawoud also completed a number of Physician’s Statement of Disability for
Plaintiff’s Long Term Disability Carrier (Physician Statement). In one such statement, Dr. Dawoud stated
that Plaintiff would “never” be released back to work, because his condition was a Class 5 in severity
(indicating severe limitations in functional capacity, and incapable of even minimal (sedentary) work
activity. Dr. Dawoud rated Plaintiff to be 75-100% disabled within each of his Physician Statements.
However, in the section captioned “medical evidence that substantiates or contributed to Plaintiffs
inability to work” Dr. Dawoud responded generally “limited range of motion of the spine; straight leg
raise positive at 25 degrees on the right; and 45 degrees on the left” rather than referring to the results of
any objective diagnostic tests.
In addition to the Physician Statements, on August 13, 2002 Dr. Dawoud submitted a letter to letter
to Guardian Group Claims regarding Plaintiff’s long term disability. He opined that it was impossible for
Plaintiff to stand or sit down for more than a period of fifteen to thirty minutes, after which Moawad must

lay flat on his back for more than one hour on firm orthopedic mattress; and walking causes him severe
intolerable back pains that oblige him to stop in less than one block’s distance. Dr. Dawoud opined that
surgery is not “totally suitable at his present condition” because Plaintiff was obese weighing above 255
pounds, and dieting had failed. Moreover, Plaintiff “has been urged to go for neuro-surgical intervention
of his disc problems, but [refused] and was afraid to go for surgery.” Dr. Dawoud writes that his opinion
was “based on MRIs of the lumbar and cervical spine, positive straight leg raising on both the right and left
and repeated observations of severe limitation of motion . . .” It is uncertain when the MRI tests
occurred, but they do not appear to have occurred within the Time Period.
Diagnostic Testing
Plaintiff has the burden of proof of showing he was disabled during the Time Period in question.
At the April 7, 2010 hearing the medical expert, Dr. Fechner, testified that the best way to determine
Moawad’s impairments at that time is to evaluate the diagnostic testing that occurred as near in time to the
Time Period. Dr. Fechner found that two records were most relevant. They were the records of
September 19, 2005 and February 20, 2007.
The September 19, 2005 MRI of the cervical spine revealed an “interval appearance of posterior
subligamentous disc herniation’s, C4-C5 and C5-C6 without cord contact or foraminal impingement.” (R.
329). On this same date, an “MRI of the lumbar revealed a [p]osterior central disc herniation L5-S 1 with
ventral thecal sac compression without central canal or foraminal stenosis.”
On February 20, 2007, an x-ray of cervical spine revealed no evidence of a fracture or
misalignment, disc spaces were maintained, and atlantoaxial relationship was undisturbed. According to
Dr. Fechner, the impression was of a normal cervical spine. (R. 234).

Consultative Examinations and Residual Functional Capacity Assessment
Plaintiff was examined by Francky Merlin, M.D. on February 23, 2007 for a consultative medical
examination. At the time of the examination, Plaintiff was a well-developed, obese male who was alert,
conscious, oriented and in no acute distress. He was casually dressed and his affect and behavior were
appropriate. The musculoskeletal examination revealed that Plaintiff walked with an antalgic gait, had
difficulty rising up from a chair and from an examining table. He had full use of both hands and arms in
dressing and undressing. Grasping strength and manipulative functions were not impaired. He was able to
flex the spine forward 0-60 degrees and partially squat, but was unable to walk on his heels and toes. There
was tenderness in the neck. Rotation of the neck right was 0-75 degrees, left was 0-60 degrees, flexion
0-50 and extension 0-30 degrees. Tenderness was elicited in the lumbar spine, but there was no
paravertebral hypertonicity. Neurologically, he was alert, conscious and oriented. Straight leg raise was
0-45 degrees bilaterally. The diagnosis was polyarthralgia and he was advised to follow up with an
orthopedist. Dr. Merlin found that Plaintiff could sit, stand, walk, handle objects, hear, speak and travel,
but he should not lift or carry heavy objects or be exposed to dust, fumes or extremes in temperature.
On the Residual Functional Capacity dated April 20, 2007, Plaintiffs limitations were as follows:
Occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk (with
normal breaks) for a total of at least 2 hours in an 8 hour work day; sit (with normal breaks) for a total of
about 6 hours in a 8 hour work day; push and/or pull (including operation of hand and/or foot controls)
were unlimited; with no postural, handing or fingering limitations, and no manipulative limitations. There
were no visual, communicative, or environmental limitations.

The Administrative Law Judge’s Decision
On June 14, 2010, the ALJ found that during the Time Period, Plaintiff had severe impairments
including disorder of the back, and exogenous obesity, but he was nevertheless “capable of the exertional
demands of sedentary work” and therefore not disabled. The ALJ gave several reasons for her decision.
First, Moawad did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 C.F.R. Part 404, Appendix 1 during the Time Period. More
specifically, the ALJ found that no medical source has suggested that the severity of Plaintiff’s
impairments either met or equaled the listings, either singly or in combination. The ALJ relied on Dr.
Fechner testimony that there was no “objective clinical or laboratory evidence of nerve root compression,
spinal arachnoiditis or lumbar spinal stenosis” as required for a finding of disability under listings 1.02,
1.03 or 1.04 (Musculoskelatal Impairments). Dr. Fechner further testified that the results of the February
23, 2007 examination by Dr. Merlin found that Plaintiff’s sensory examination and deep tendon reflexes
were normal, and that Plaintiff’s grasping and manipulative functions were not impaired. With regard to
Plaintiff’s obesity, Dr. Fechner found that at 5’9” and 275 pounds, Plaintiff suffered from “exogenous
obesity” or “moderate” obesity. As such, Moawad has some restrictions. Dr. Fechner found:
He would have been restricted but could have done a full range of sedentary
activity. He could certainly lift 10 pounds occasional, and walk and stand an
aggregate of two hours in an eight hour day. Sit six hours in an eight hour
day. Every hour he could, perhaps would need to, get up and stretch for a
minute or two. The only other thing that would be contradicted is the use of
ladders or crawling in low places.

The ALJ also based her decision on Dr. Merlin’s report from February, 2007.
The ALJ summarized the report:

Notably, in a report dated February, 2007, the consultative examiner, Dr.
Merlin reported that the claimant had full use of both hands and arms in
dressing and undressing. Dr. Merlin noted that the claimant’s grasping
strength and manipulative functions were not impaired and, he had no
motor or sensory deficits. It was further reported that the claimant had full
strength in the lower extremities, and that there was no evidence of muscle
atrophy; and that the claimant had no sensory or reflex abnormalities.

The ALJ concluded that during the Time Period, Plaintiff had been capable of the exertional demands of
sedentary work.

In addition, the ALJ adopted the findings of the residual functioning capacity

assessment which showed that Plaintiff could undertake sedentary work activity.
Second, the ALJ found Moawad’s subjective complaints were not consistent with the objective
medical findings. For example, although Plaintiff’s MRIs showed some herniation, the diagnostic tests did
not reveal impairments that would result in a finding of disability based on the musculoskeletal system
impairment listings (20 CFR part 404, Subpart P, Appendix 1).
The ALJ wrote:
Having carefully considered the claimant’s statements, along with the
record evidence as a whole, pursuant to Social Security (SSR) 96-7p, I find
the claimant’s statements concerning his impairments and their impact on
his ability to work are not entirely credible in light of the discrepancies
between the claimant’s assertions and information contained in the
documentary reports, the reports of treating and examining practitioners,
the claimant’s medical history as reported by Dr. Fechner, and the findings
made during the claimant’s physical examinations.
In my judgment the claimant’s complaints are essentially subjective and
without substantial medical foundation; the limitations he alleges are far in
excess of those which would reasonably be consistent with objective
medical evidence. Furthermore, the claimant’s complaints are not
consistent with other evidence. Having carefully considered these factors, I
conclude that the claimants’ complaints of disability symptoms are not
reasonably accepted.

Moreover, the ALJ discredited the reports of Dr. Dawoud as lacking credibility.

The ALJ stated:

No significant weight is accorded to the assessment of inability to work by
Dr. Dawoud as it is primarily based upon the claimant’s subjective
complaints of pain and not on objective medical evidence. Furthermore, I
find that the doctor’s assessment is not supported by the record as a whole.
Legal Standard
A claimant is considered disabled under the Social Security Act if he is Aunable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment 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). A plaintiff will not be considered disabled unless he cannot perform his previous
work and is unable, in light of his age, education, and work experience, to engage in any other form of
substantial gainful activity existing in the national economy. 42 U.S.C. ' 423(d)(2)(A). See Sykes v.
Apfel, 228 F.3d. 259, 262 (3d Cir. 2000); Burnett v. Comm=r of Soc. Sec. Admin., 220 F.3d 112, 118 (3d
Cir. 2000); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). The Act requires an individualized
determination of each plaintiff=s disability based on evidence adduced at a hearing. Sykes, 228 F.3d at
262 (citing Heckler v. Campbell, 461 U.S. 458, 467 (1983)); see 42 U.S.C. ' 405(b).
Review of the Commissioner=s final decision is limited to determining whether the findings and
decision are supported by substantial evidence in the record. 42 U.S.C. ' 405(g). See Morales v. Apfel,
225 F.3d 310, 316 (3d Cir. 2000); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Doak, 790 F.2d 26
at 28. Substantial evidence has been defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Hartranft, 181 F.3d at 360 (quoting Pierce v. Underwood,
487 U.S. 552, 565 (1988) (citation omitted)); see also Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence is less than a preponderance of the evidence, but more than a mere scintilla.

Richardson, 402 U.S. at 401; Morales, 225 F.3d at 316; Plummer, 186 F.3d at 422. Likewise, the ALJ=s
decision is not supported by substantial evidence where there is Acompetent evidence@ to support the
alternative and the ALJ does not Aexplicitly explain all the evidence@ or Aadequately explain his reasons for
rejecting or discrediting competent evidence.@ Sykes, 228 F.3d at 266 n.9.
The reviewing court must view the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d
Cir. 1984).
A single piece of evidence will not satisfy the substantiality test if the
[Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is overwhelmed
by other evidence B particularly certain types of evidence (e.g., that offered
by treating physicians) - - or if it really constitutes not evidence but mere
conclusion.
Morales, 225 F.3d at 316 (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.1983)); see also Benton v.
Bowen, 820 F.2d 85, 88 (3d Cir. 1987). Nevertheless, the district court=s review is deferential to the
ALJ=s factual determinations. Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (en banc) (stating
district court is not Aempowered to weigh the evidence or substitute its conclusions for those of the
factfinder@). A reviewing court will not set a Commissioner=s decision aside even if it Awould have
decided the factual inquiry differently.@ Hartranft, 181 F.3d at 360. But despite the deference due the
Commissioner, Aappellate courts retain a responsibility to scrutinize the entire record and to reverse or
remand if the [Commissioner]=s decision is not supported by substantial evidence.@ Morales, 225 F.3d at
316 (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)).
Title II of the Social Security Act, 42 U.S.C. ' 401, et seq. requires that the claimant provide
objective medical evidence to substantiate and prove his or her claim of disability. See 20 CFR '
404.1529.

Therefore, claimant must prove that his or her impairment is medically determinable and

cannot be deemed disabled merely by subjective complaints such as pain. A claimant=s symptoms Asuch
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. '404.1529(b); Hartranft, 181 F.3d at 362. In
Hartranft, claimant=s argument that the ALJ failed to consider his subjective findings were rejected where
the ALJ made findings that claimant=s claims of pain and other subjective symptoms were not consistent
with the objective medical records found in the record or the claimant=s own hearing testimony.
Discussion
Plaintiff’s primary argument is that the ALJ relied upon the testimony of Dr. Fechner who utilized
the results of the September 2005 MRI and the February 2007 report of Dr. Merlin, while giving little
weight to the reports and opinions of Dr. Dawoud.
As a general rule, “[t]reating physician’s reports should be accorded 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.‟” Plummer, 186 F.3d at 429 . However, a treating physician’s opinion may be
rejected on the basis of contradictory medical evidence, or may be accorded less weight depending upon
the extent to which a supporting explanation is provided for the opinion. Dr. Dawoud opines that
Plaintiff is unable to do any type of work, but this finding is reserved for the Commissioner who weighs
different factors. The law is clear that the opinion of a treating physician does not bind the ALJ on the
issue of functional capacity. Brown v. Astrue, 649 F.3d 193, 196 n.2 (3d Cir. 2011). Despite Dr.
Dawoud’s opinion, the ALJ found that Moawad was capable of the exertional demands of sedentary work.
See, 20 C.F.R. § 404.1527(d)(3).

Here, the ALJ gave greater weight to the objective diagnostic evidence than to the subjective
complaints and evidence on which Dr. Dawoud relied. Such authority is vested with the trier of fact as
the ALJ weighs contradictory evidence.

Moreover, the reliability of Dr. Dawoud’s report were

discredited based on discrepancies between the objective findings and Plaintiff’s subjective complaints, as
well as the repetitiveness of his monthly progress reports. Most importantly, the ALJ did not totally
ignore Dr. Dawoud’s reports, the ALJ simply found the objective testing to be more reasonable to rely on.
In addition, the ALJ found Moawad to be incredulous due to his characterization of his pain when
compared to the objective evidence. The ALJ has discretion to evaluate the credibility of Plaintiff=s
complaints and draw a conclusion based upon medical findings and other available information. Jenkins v.
Commissioner, 2006 U.S. App. Lexis 21295 (3d Cir. 2006). Credibility determinations are the unique
province of a fact finder. See generally Dardovitch v. Haltzman, 190 F.3d 125 (3d Cir. 1999) (internal
quotation omitted). Inasmuch as the ALJ had the opportunity to observe the demeanor and determine the
credibility of Plaintiff, the ALJ’s observations on these matters must be given great weight. See Wier v.
Heckler, 734 F. 2d 955, 962 (3d Cir. 1984).

See also, Social Security Ruling 96-7, 20 C.F.R. 404.1529

and 20 C.F.R. 416.969.
In conclusion, substantial evidence supports the ALJ’s decision that Plaintiff was not disabled
during the Time Period.

ORDER
This matter having come before the Court upon the appeal of Plaintiff Amin Moawad from the
Commissioner of Social Security Administration’s final decision denying his application for Disability
Insurance Benefits; and the Court having considered all submissions of the parties; and in light of the
reasons stated above;
It is on this 27th day of June, 2013,
ORDERED that the final decision of the Commissioner of Social Security is affirmed.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.