TOWNSEND v. SECRETARY OF DEPARTMENT OF HEALTH AND HUMAN SERVICES OF THE UNITED STATES et al
Filing
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MEMORANDUM AND ORDER, The final decision of the Commissioner of Social Security is affirmed. Signed by Judge Peter G. Sheridan on 4/19/2013. (dmr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CLAUDE B. TOWNSEND,
Civil Action No. 12-cv-2158 (PGS)
Plaintiff,
MEMORANDUM AND ORDER
v.
COMMISSIONER OF SOCIAL SECURITY
Defendant.
SHERIDAN, U.S.D.J.
This matter is before the Court on the appeal of Plaintiff, Claude B. Townsend
(“Townsend” or APlaintiff@) of the final decision of the Commissioner of the Social Security
Administration (ACommissioner@) denying his request for a period of disability and disability
insurance benefits. Plaintiff filed his application for disability insurance benefits on April 7,
2009 alleging disability beginning on August 28, 2008 due to bilateral carpel tunnel syndrome
and a right shoulder condition. The claim was denied initially and on reconsideration, and
then on November 22, 2010, a hearing was held before Brian H. Ferrie, ALJ. Plaintiff
appeared and testified on his own behalf without the assistance of an attorney or other
representative1.
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In his opinion, the ALJ indicates that Mr. Townsend was informed of his right
to representation, and that Plaintiff chose to appear and testify on his own.
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As Plaintiff is representing himself in this matter, the Court is proceeding in a less
stringent manner than with an ordinary litigant, and Plaintiff is entitled to liberal construction
of the Court=s rules. See, Bryen v. Becker, 785 F. Supp. 484, 485 (D.N.J. 1991).
The issue before the Court is whether substantial evidence supports the Administrative
Law Judge=s (ALJ) determination that the medical and psychiatric evidence, as well as Plaintiff=s
statements, demonstrated that he retained the residual functional capacity (“RFC”) to perform
work which existed in significant numbers in the national economy from August 28, 2008, his
alleged onset of disability date, through December 16, 2010, the date of the ALJ=s decision.
Plaintiff is a high school graduate who was 35 years old on his alleged onset of disability.
His past relevant work experience is as a bus driver. (R. 96, 118-19). As part of Plaintiff=s
disability application, he completed activities of daily living questionnaires. (R. 102-09, 134-41).
In those questionnaires, Plaintiff stated that he took care of his own personal grooming and
hygiene needs; prepared simple meals; vacuumed the floor; ironed his clothes; walked outside;
drove a car; used public transportation; grocery shopped; visited the library; read; watched
television; went to the post office; and socialized. (R. 104-06, 134-38). Plaintiff stated that he
had no problems paying attention; no difficulty finishing chores he started; no difficulty
following written and/or spoken instructions; no problems socializing with friends and relatives;
and got along well with authority figures. (R. 107-08, 139-40).
A hearing in this matter was held on November 22, 2010. Plaintiff testified that he was
working as a bus driver for New Jersey Transit when he was injured in an accident at work in
January of 2008. (R. 26, 28). He was on disability leave from the date of the accident until he
was fired by New Jersey Transit in August 2008. (R. 25-26). After more than a year, Plaintiff
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began looking for work in December 2009. He returned to work in September 2010 as a driver
for a wheelchair lift ambulance company, and he worked part-time as a security guard. (R. 22,
30).
Medical Records and Reports
Dr. Chirag Shukla, a neurologist, treated Plaintiff for complaints of pain and numbness in
his hands from April 2008 through August 2008. (R. 193-99). Dr. Shukla reported that Plaintiff=s
gait was normal and that he exhibited full muscle strength throughout his arms and legs.
(R. 194, 195, 196). An April 24, 2008 electromyograph/nerve conduction study (EMG/NCS)
revealed bilateral carpel tunnel syndrome, more severe on the right and moderate on the left. (R.
198-99). Dr. Shukla diagnosed bilateral carpel tunnel syndrome and referred Plaintiff to a hand
specialist. (R. 195). Plaintiff treated at Mercer-Bucks Orthopaedics for complaints of bilateral
hand and right shoulder pain from July 2008 through December 2009. In July 2008, Dr. Edward
Ford reviewed Plaintiff=s April 2008 EMG/NCS and assessed moderately severe right median
neuropathy and moderate left median neuropathy. (R. 210). Dr. Ford recommended a right carpal
tunnel release. In September 2008, x-rays of Plaintiff=s right ribs, right shoulder, and chest were
normal. (R. 245-47). On November 18, 2008, a magnetic resonance imaging (MRI) of the right
shoulder revealed impingement syndrome. (R. 244). In December 2008, Plaintiff complained of
right shoulder pain. (R. 208). Dr. Thomas Bills reviewed an MRI of plaintiff=s right shoulder and
assessed right shoulder impingement. (R. 208-09). On March 30, 2009, Dr. Bills performed a
Neer decompression surgery on Plaintiff=s right shoulder. (R. 211-12). In June 2009, Dr. Bills
observed that Plaintiff=s right shoulder exhibited full functional motion, but lacked full functional
strength. (R. 253). In July 2009, Dr. Ford performed a right carpal tunnel release. (R. 307-08). In
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October 2009, Daniel Kawash, a physician=s assistant, noted that Plaintiff was doing well since
his right carpal tunnel release and that Plaintiff requested a left carpal tunnel release. (R. 292). In
November 2009, Dr. Ford performed a left carpal tunnel release. (R. 305-06). In December
2009, plaintiff told Mr. Kawash that he was generally pleased with his left carpal tunnel release.
(R. 290). He reported that the paresthesias in his left hand had completely resolved. Plaintiff
stated that he had mild incisional discomfort of the left hand, but none on the right. Upon
examination, Mr. Kawash observed that Plaintiff=s left hand wound was well-healed. Plaintiff
could fully flex and extend all digits. He exhibited full wrist motion. His sensory examination
was intact. Mr. Kawash assessed that Plaintiff was doing well post-operatively and discharged
him from further care. Plaintiff continued to treat with Mercer-Bucks Orthopaedics in June,
2009 postoperatively. At that time he continued to have some tingling in his hands, but had full
range of motion and full functional motion in his shoulder.
On August 8, 2009, Plaintiff was seen for an intake evaluation at the Association for
Advancement of Mental Health. Delores Ostrow, a social worker, observed that Plaintiff=s mood
was dysphoric. (R. 274). Plaintiff=s affect was appropriate. His speech was normal. Plaintiff=s
thought process was goal directed. He had no perceptual problems nor delusions. Plaintiff was
fully oriented. His energy level was decreased, but his enjoyment and interest was adequate.
Plaintiff=s anxiety/agitation was severe. He exhibited a good ability to concentrate, his intellect
was average and his recent and remote memory skills were intact. Plaintiff’s impulse control was
good, he was aware of his problems, and his judgment was good. Dr. Ostrow=s assessment was
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as follows: Axis 1: adjustment disorder with mixed anxiety and depression GAF 652. He was
well groomed, had a cooperative attitude, calm motor activity, appropriate affect, normal speech
and in-tact thought process. He denied hallucinations or delusions, was oriented to time place
and person, and had fair judgment and insight. (R. 260).
Consultative Examinations
On August 12, 2009, Plaintiff was seen by Ronald Bagner for a consultative examination
at the request of the Social Security Administration. Dr. Bagner=s impression of Plaintiff=s
condition was post operative right shoulder impingement; post operative right carpel tunnel
release. Dr. Bagner noted that an x-ray of the right shoulder showed post-operative changes, and
x-rays of the wrists were unremarkable. Dr. Bagner noted that Plaintiff ambulated without
difficulty, was able to get on and off the examining table without difficulty, and dressed and
undressed without assistance. He was not uncomfortable in the seated position during the
interview, did not use a cane or crutches, and could heel and toe walk. Plaintiff=s right shoulder
showed a normal range of movement. There was a bandage and splint on the right wrist that
could not be evaluated at that time, but his left grip was rated as 5/5. (R. 259).
On February 4, 2010, Plaintiff was seen by Dr. Perry Shaw for mental consultative
examination. On examination, Plaintiff stated that he suffers from stress and anxiety resulting
from the surgery on his hands, as well as the surgery on his shoulder. He was using sertraline 50
mg (Zoloft) once in the morning for his anxiety. (R. 311). Dr. Shaw noted that Plaintiff was
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A GAF score of sixty-five signifies some mild symptoms or some difficulty in
social, occupational, or school functioning but generally functioning pretty well, with some
meaningful interpersonal relationships. Diagnostic and Statistical Manual of Mental
Disorders- IV-TR, Front Matter, Multiaxial Assessment (2000 ed.).
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never hospitalized in a mental hospital or psychiatric ward; nor has he ever attempted or planned
suicide, been homicidal or treated for alcohol or substance abuse.
Dr. Shaw=s diagnostic
impression was a GAF of 70. With regard to daily activities, Mr. Townsend was found to be
able to be able to drive and take public transportation, shop, cook, clean his room, and do his
laundry (with his children carrying for him). He was able to self-groom and enjoys reading. He
stated that he will be going back to school and hopes to study law and become a lawyer. (R.
313).
Physical Residual Functional Capacity Assessment
Dr. S. Park, a state agency medical consultant, reviewed the evidence of record on
September 5, 2009.
Dr. Park found Plaintiff=s limitations to be as follows. Plaintiff can
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 about six hours in a 8 hour work day); sit (with normal
breaks) for a total of about six hours in a 8 hour work day; push and/or pull (including operation
of hand and/or foot controls) limited in upper extremities. Postural limitations were climbing
ladder/rope and scaffolds, and manipulative limitations were fingering (fine manipulation) and
handling (gross manipulation). There were no visual limitations, communicative limitations or
environmental limitations. (R. 341).
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
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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). The Act also grants
authority to the Social Security Administration to enact regulations implementing these
provisions. See Heckler, 461 U.S. at 466; Sykes, 228 F. 3d at 262.
An Administrative Law Judge employs a five-step process in determining whether a
person is disabled. In the first step, the ALJ determines whether the claimant is currently
engaged in Asubstantial gainful activity.@ 20 C.F.R. ' 404.1520(a)(4)(I). If the claimant is so
engaged, the ALJ will find that the claimant is not disabled and deny the application for
disability benefits. Id. ' 404.1520(b). If the claimant is not employed, the ALJ will consider the
medical severity and duration of the claimant=s impairment or combination of impairments in the
second step. Id. ' 404.1520(a)(4)(ii). A Asevere impairment@ is one that significantly limits the
claimant=s physical or mental ability to do basic work activities, including, inter alia, (1) sitting,
lifting, and speaking, (2) responding appropriately to supervision and co-workers, and (3)
understanding, carrying out, and remembering instructions. Id. ' 404.1521(a)-(b). A claimant not
meeting this requirement is not disabled. Id. ' 404.1520(c). Thus, the second step requires a
threshold-level demonstration of severe impairment without consideration of the claimant=s age,
education, and work experience. Bowen v. Yuckert, 482 U.S. 137, 153 (1987).
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If the claimant shows a severe impairment, the ALJ then moves to the third step to
determine whether the impairment is listed in section 20, part 404, subpart P, appendix 1 of the
C.F.R. 20 C.F.R. ' 404.1520(a)(4)(iii). If the impairment meets or equals a listed impairment,
then the claimant is presumed to be disabled, and the evaluation ends at this stage. Id. '
404.1520(d). If the impairment does not meet or equal a listed impairment, then the ALJ
proceeds to step four. Id. ' 404.1520(a)(4).
The ALJ must determine at step four whether the impairment prevents the claimant from
returning to the work that the claimant performed in the past. Id. ' 404.1520(a)(4)(iv). The
claimant, if able to resume the previous work, will not be considered disabled. Id. If the claimant
cannot resume previous work, the ALJ then moves to step five and considers the claimant=s
ability to perform other work that is available in the national economy. Id. ' 404.1520(a)(4)(v),
404.1520(e). This inquiry requires the ALJ to consider the claimant=s residual functional capacity
(ARFC@), age, education, and past work experience. Id. A claimant will be found disabled if the
claimant is unable to adjust to any other work in the national economy. Id. ' 404.1520(g).
The claimant has the initial burden of production for the first four steps of the evaluation
process. Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). Once a claimant meets this burden,
the burden shifts to the Commissioner in step five to show that the claimant has the transferable
skills that would allow him or her to engage in alternative substantial gainful employment. Id.
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
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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
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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.
The ALJ=s Opinion
The ALJ carefully applied the five step process outlined above.
At step one of the five step process, the ALJ found that Plaintiff had engaged in
substantial gainful activity in his past relevant work as a bus driver since his alleged onset date of
April 28, 2008. More specifically, Plaintiff had began employment as a bus driver for disabled
and handicapped people commencing on September 14, 2010. Therefore, at Step 1, the ALJ
found that Plaintiff was unable to perform his past relevant work from August 28, 2008 until
September 14, 2010.
At step two, the ALJ found that Plaintiff had a severe impairment of carpel tunnel
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syndrome. This impairment was found to be severe due to the fact that the effects of the carpel
tunnel did have some limitations in Plaintiff=s ability to perform basic work activities. However,
the ALJ found that Plaintiff=s impairment did not medically equal one of the listed impairments
in 20 CFR part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404/1526). The
ALJ further found that Plaintiff had the residual foundational capacity to perform light work,
except that he had limited right-hand manipulation due to his carpel tunnel syndrome. Despite
the limited right hand manipulation, Plaintiff was able to perform some gainful work activities.
In addition, the ALJ noted that although Plaintiff=s carpel tunnel syndrome could reasonably be
expected to cause the alleged symptoms, his statement concerning the persistence and limiting
effects of those symptoms are not credible to the extent that they are inconsistent with the
residual functional capacity assessment.
At the time of the Plaintiff=s alleged onset date of disability, Plaintiff was 35 years old
which is defined as a younger individual (20 CFR 404.1563). Using the medical-vocational rules
as a framework for his decision, the ALJ found that taking into consideration Plaintiff=s age,
education, functional residual capacity and work experience, Plaintiff is capable of performing
light work and therefore not disabled.
Conclusion
Based on the record as a whole Plaintiff=s alleged restrictions are not consistent with the
preponderance of the medical evidence as well as the testimony at the hearing.
Plaintiff had an accident on January 29, 2008, but continued to work until August 28,
2008. During the time period that Plaintiff was treating with doctors for pain, he was terminated
from his job due to reasons not related to his injuries or medical conditions. At the hearing on
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November 22, 2010, Plaintiff testified that he was looking for work since he was feeling better.
A review of the record confirms that Plaintiff=s impairment did not medically equal one
of the listed impairments in 20 CFR part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404/1526).
Plaintiff does not assert that his condition met or equaled any listed
impairment and does not cite to any medical evidence which demonstrates that he had an
impairment which met or equaled a listing. It is also noted that no treating or examining
physician mentioned findings equivalent in severity to the criteria of any listed impairment.
Plaintiff has the burden to present medical findings that show his or her impairment matches a
listing or is equal in severity to a listed impairment. See Burnett v. Commissioner of Social
Security, 220 F.3d 112, 120, n.2 (3d Cir. 2000).
Furthermore, the ALJ found that claimant=s subjective complaints of pain and discomfort
and resulting limitations are not credible to the extent alleged. The Commissioner has discretion
to evaluate the credibility of the Plaintiff=s complaints. Jenkins v. Commissioner, 2006 U.S. App.
Lexis 21295 (3d Cir. 2006). The credibility of witnesses is quintessentially the province of the
trier of fact. See, generally, Scully v. U.S. Wats, Inc., 238 F. 3d 497 (3d Cir. 2001). 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 findings are conclusive. 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
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addition, in assessing Plaintiff=s RFC, the ALJ carefully considered Plaintiff=s testimony and
alleged functional limitations as well as the extent to which such allegations could be reasonably
accepted as consistent with the objective evidence of the record. 20 C.F.R. Sec. 404.1529; SSR
96-7.
Regulations permit the Commissioner to consider claimant=s daily activities in evaluating
his credibility 20 C.F.R. 404.1529(c)(3)(1). As noted previously, Plaintiff stated that he took
care of his own personal grooming and hygiene needs; prepared simple meals; vacuumed the
floor; ironed his clothes; went out for walks; drove a car; used public transportation; grocery
shopped; went to the library; read; watched television; went to the post office; and socialized. (R.
104-06, 134-38). Based on the substantial evidence in the record as a whole, the Plaintiff is not
disabled.
ORDER
This matter having come before the Court upon the appeal of Plaintiff Claude Townsend
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 19th day of April, 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.
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