DANIELS v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION

Filing 15

OPINION filed. Signed by Judge Joel A. Pisano on 7/15/2013. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

____________________________________________
:
QIANA E. DANIELS,
:
:
Plaintiff,
:
:
v.
:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
:
Defendant.
:
____________________________________________:

Civil Action No. 12-2646 (JAP)
OPINION

PISANO, District Judge
Plaintiff Qiana E. Daniels (“Plaintiff”) appeals the Acting Commissioner of Social
Security, Carolyn W. Colvin (“Commissioner” or “Defendant”)’s, denial of her disability
insurance benefits. The Court has jurisdiction to review this matter pursuant to 42 U.S.C. §§ 405
(g) and 1383 (c)(3) and reaches its decision without oral argument pursuant to Federal Rule of
Civil Procedure 78. For the reasons set forth below, this Court affirms the Commissioner’s final
decision.

I.

PROCEDURAL HISTORY

On February 28, 2008, Plaintiff filed an application for disability insurance benefits with
the Social Security Administration, which denied her initial request and her request for
reconsideration.

Then, Plaintiff requested a hearing before an Administrative Law Judge

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(“ALJ”), which took place on July 22, 2010. The ALJ denied Plaintiff’s request for disability
benefits.
Subsequently, on February 28, 2012, the Appeals Council denied Plaintiff’s request to
review the ALJ’s decision. Thus, the ALJ’s decision became the final decision of the
Commissioner of Social Security. Plaintiff filed this civil action on May 2, 2012 before this
Court, alleging that the ALJ’s decision was not supported by substantial evidence.

II.

BACKGROUND

Plaintiff was born on October 2, 1977. After completing the twelfth grade, Plaintiff
worked in various jobs including as a cook/cashier, pressroom operator, tiller, waitress, and
packer/shipper.
Plaintiff applied for disability benefits due to a number of medical conditions, including
post-traumatic stress disorder (“PTSD”), migraine headaches, and asthma.
Regarding Plaintiff’s PTSD, the first medical visit for this condition occurred on August
25, 2008, when Plaintiff presented to South Jersey Behavioral Health Resources with symptoms
including inability to eat or sleep. R. 639-40. Further, she reported hearing the voice of her
deceased fiancé. Id. On October 2, 2008, Plaintiff again reported to the same location and
complained of panic attacks and anxiety. R. 649. The treating physician, Ann M. Martin, APRN,
diagnosed Plaintiff with Bipolar II and PTSD. R. 649-55. After prescribing medication to control
the condition, Plaintiff finally reported again to Ms. Martin on December 2, 2008 and January
29, 2009, at which time she stated that the medication was working. R. 645, 742.
Regarding Plaintiff’s migraine headaches, Plaintiff was examined by Dr. Schutta, a
neurologist, on November 28, 2007. R. 542. During that visit, Plaintiff complained of recurring
headaches over the past two years with increased frequency and intensity. Id. Dr. Schutta placed
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the Plaintiff on the medication Keppra. R. 541. Plaintiff next reported to Dr. Bosley, also a
neurologist, on September 11, 2008. R. 602. Dr. Bosley prescribed Plaintiff Topamax and
Maxalt for her headaches. R. 603.
Regarding Plaintiff’s asthma, she visited Regional Medical Center on February 6, 2002
and complained of fever and cough and exacerbation of asthma. R. 535. Plaintiff next returned to
Regional Medical Center in 2006. R. 440-45. On March 30, 2008 at Cooper Hospital, Plaintiff
was treated for exacerbation of asthma and given medication. R. 774. On August 13, 2008,
Plaintiff reported to Project Hope for asthma exacerbation. R. 571. On December 2, 2008,
February 13, 2009, and February 23, 2009, Plaintiff again reported to Project Hope complaining
of daily asthma attacks. R. 720, 715, 714. Finally, on March 16, 2009 and April 6, 2009, Plaintiff
reported to Cooper Family Medical Center with asthma complaints. R. 748, 747.

III.

ANALYSIS
A.

Standard of Review

This Court’s review of a final determination by the Commissioner is twofold: (1) that the
correct legal standards have been applied, and (2) that the findings of fact are supported by
substantial evidence. Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983).
Substantial evidence has been defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (citations omitted). Further, substantial evidence must be more than a “mere scintilla,”
Consol. Edison Co. v. NLRB, 305 U.S. 197, 220 (1938), but may be slightly less than a
preponderance. Stunkard v. Sec’y of Health & Human Servs., 841 F.2d 57, 59 (3d Cir. 1988).
The reviewing court must review the evidence in its entirety. See Daring v. Heckler, 727
F.2d 64, 70 (3d Cir. 1984). When there are conflicts of evidence, the Commissioner must provide
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an adequate explanation of its “reasons for rejecting or discrediting competent evidence.” Ogden
v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v. Heckler, 786 F.2d 581 (3d
Cir. 1986)). Such an explanation is crucial to this court’s review:
Unless the [Commissioner] has analyzed all evidence and has sufficiently
explained the weight he has given to obviously probative exhibits, to say that 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) (quoting Arnold v. Sec’y of Health, Educ.
& Welfare, 567 F.2d 258, 259 (4th Cir. 1977)). If such a burden is met based on the evidence, the
Commissioner’s final determination will stand. 42 U.S.C. § 405(g).

B.

The ALJ applied the correct legal standards
1.

Establishing Disability

In order to be eligible for disability benefits, a claimant must demonstrate an “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairments which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A
person is disabled for these purposes only if her physical and mental impairments are “of such
severity that [s]he is not only unable to do [her] previous work, but cannot, considering [her] age,
education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). The initial burden is on the claimant
to establish entitlement to disability benefits by providing medical and other evidence to assist
the Commissioner in making a determination. 42 U.S.C. 423(d)(5)(A).
Social security regulations set forth a five-step, sequential evaluation to determine
whether an individual is disabled. 20 C.F.R. § 404.1520. During the first two steps of the
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process, the claimant must show: (1) that she has not engaged in any “substantial gainful
activity” since the onset of her alleged disability, and (2) that she suffers from a “severe
impairment” or “combination of impairments.” 20 C.F.R. § 404.1520(a)-(c). If that initial burden
is satisfied, the third step requires the claimant to provide evidence that her impairment is equal
to or exceeds one of those listed in Appendix 1 of the regulations (“Listing of Impairments”). 20
C.F.R. § 404.1520(d). A favorable determination at this step for claimant entitles her to disability
benefits. If she cannot meet this burden, the analysis continues to steps four and five. The fourth
and fifth steps focus on the claimant’s residual functional capacity (“RFC”). The RFC consists of
work and activities claimant is capable of engaging in accounting for any impairments. C.F.R. §
404.1520(e). At step four, the RFC is used to determine whether claimant is capable of returning
to her previous line of work. If so, disability benefits must be denied. Finally, at step five the
burden shifts to the Commissioner who must demonstrate that, considering the claimant’s RFC,
that the claimant is able to perform other substantial gainful work. 20 C.F.R. § 404.1520(f). If the
Commissioner cannot satisfy this burden, the claimant will receive disability benefits. Bowen v.
Yuckert, 482 U.S. 137, 146-47 n. 5 (1987).

2.

The ALJ’s decision

After considering the evidence in the record as well as conducting a video hearing with
Plaintiff, the ALJ found at step one that the Plaintiff had not engaged in substantial gainful
activity since the alleged onset of disability. R. 26. At the second step, the ALJ found Plaintiff’s
asthma, non-insulin dependent diabetes mellitus, and bipolar disorder to be severe. Id. Next, at
step three, the ALJ found that the Plaintiff did not have an impairment that met one of the
listings included in the regulations. R. 28. After determining Plaintiff’s RFC at step four, the ALJ
found that Plaintiff retained the ability to perform light work but was unable to perform the same
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work as required by her previous job. R. 31-36. As a part of that analysis, the ALJ found the
Plaintiff’s subjective complaints to be less than credible. R. 34. Finally, at step five, the ALJ
stated that Plaintiff was not disabled because jobs existed in which the Plaintiff could safely
perform. R. 37. The ALJ ultimately denied Plaintiff’s claim for disability benefits after engaging
in the required five step analysis. This Court finds that the ALJ applied the proper legal standards
in reaching its determination.
C.

The ALJ’s findings of fact are supported by substantial evidence
1.

The ALJ did not err in determining that Plaintiff’s asthma
does not meet Listing 3.03.

Plaintiff contends that her asthma meets the relevant criteria of Medical Listing 3.03 and
that the ALJ erred in finding to the contrary. Defendant, however, argues that the ALJ carefully
considered the evidence and was correct in concluding that Plaintiff’s condition did not meet
Listing 3.03. Listings are used by the Commissioner during the third step of the disability review
process. A list of impairments and the conditions an applicant must have to meet the listing are
provided for in Appendix 1 to 20 C.F.R. Part 404, Subpart P (Listing of Impairments). Asthma is
defined by 20 CFR Part 404, Subpart P, Appendix 1 as:
A. chronic asthmatic bronchitis. . . .; or B. attacks (as defined in 3.00C), in spite
of prescribed treatment and requiring physician intervention, occurring at least
once every 2 months or at least six times a year. Each in-patient hospitalization
for longer than 24 hours for control of asthma counts as two attacks, and an
evaluation period of at least 12 consecutive months must be used to determine the
frequency of attacks.
Asthmatic attacks are further defined as prolonged symptomatic episodes lasting one or more
days and requiring intensive treatment. Id.
At issue here is whether there is substantial evidence to support the ALJ’s finding that
Plaintiff’s asthmatic condition does not rise to the level of severity required by the regulation. As

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an initial matter, substantial evidence establishes that Plaintiff did not meet the frequency
required by the Listing. Although Plaintiff points to seven documented incidents between March
30, 2008 and March 30, 2009, with specific attacks on March 30, 2008, September 8, 2008,
December 2, 2008, February 13, 2009, February 23, 2009, March 11, 2009, March 16, 2009 and
April 6, 2009, the evidence only refers specifically to asthmatic attacks on the dates of
September 8, 2008, December 2, 2008, February 13, 2009, and February 23, 2009. R. 576, 720,
714, 715. The corresponding medical records for the remaining dates do not refer to asthma
attacks but rather asthma exacerbation or symptoms. Notably, the majority of Plaintiff’s visits
were not in-patient and thus did not rise to the level of “prolonged symptomatic episodes” as
required by the regulation. Plaintiff has offered various other medical visits which refer to
various respiratory issues from chest tightness to shortness of breath but not asthma. The ALJ
carefully considered all of this evidence before making its determination. The ALJ noted that
Plaintiff’s case was lacking, among other things, pulmonary function testing data and a lack of
relevant care since October 2009. R. 28. Furthermore, as the ALJ properly noted, Plaintiff’s
condition was controlled with medication and complicated by her continued tobacco use. R. 3132. Thus, the ALJ’s conclusion that Plaintiff did not meet the severity or frequency required by
the listing and as a result, Plaintiff’s asthma is not a disability is supported by substantial
evidence in the record.

2.

The ALJ did not err in finding that Plaintiff’s PTSD and
Migraine Headaches were non-severe at step two or failing to
consider them at the remaining steps in the evaluation process.

Plaintiff next asserts that the ALJ’s determination at step two of the evaluation that her
PTSD and migraine headaches were not severe impairments and thus not disabilities is incorrect.
Defendant, however, contends that Plaintiff was not found to be disabled because she did not
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suffer from a severe impairment and such a favorable decision for Plaintiff renders particular
impairment determinations harmless.
Regarding Plaintiff’s PTSD, the ALJ stated that the condition was “well managed with
appropriate care and treatment and fail[ed] to produce more than a minimal effect on the
plaintiff’s ability to perform basic work activities.” R. 27. Such a finding is warranted by
substantial evidence, which was carefully considered by the ALJ. It is clear that Plaintiff has a
history of traumatic events including physical abuse, sexual abuse, and rape. R. 640. However,
Plaintiff’s symptoms, based on the evidence, do not rise to the level of severity required here.
Plaintiff contends that her PTSD is illustrated by a myriad of symptoms including nightmares,
paranoia, difficulty sleeping, anger, and anxiety. R. 640-54. However, as the ALJ properly
concluded, these symptoms do not prohibit Plaintiff from performing basic functions in the
context of the RFC. At various medical visits, Plaintiff was observed as retaining gross normal
orientation, concentration, and cognitive function. R. 546, 601, 30, 267, 643, 804.
As well, Plaintiff maintained an overall pleasant demeanor and cooperated fully with medical
personnel. R. 29, 542, 603, 643, 654, 807. Furthermore, it is clear that although Plaintiff was
diagnosed with PTSD by a clinician, the condition was well controlled with a medicine regimen.
R. 33, 35, 740, 742. All of this taken together is consistent with the ALJ’s finding that Plaintiff’s
PTSD is not severe for purposes of RFC calculations.
Regarding Plaintiff’s migraine headaches, the ALJ stated that Plaintiff simply suffered
from “recurrent headaches” which were treated with proper medication, and this finding is also
supported by substantial evidence. As the ALJ discussed, medical records from Drs. Bosley and
Schutta show that the headaches Plaintiff suffered from were properly treated with medication.
R. 27. On appeal, all Plaintiff points to is her own testimony about suffering from headaches and

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an unwarranted conclusion that they “cause significant functional limitations . . . .” P. Brf. 17.
However, to the contrary, the medical evidence illustrates that, even given the benefit of the
doubt, Plaintiff’s headaches do not rise to the level of severity and are otherwise managed with
proper medication.
Finally, Plaintiff also argues that because the ALJ found Plaintiff’s two conditions to be
non-severe at step two, the ALJ’s subsequent RFC analysis was also flawed. However, this
argument also fails. The Third Circuit addressed this issue directly, noting that if the ALJ
ultimately decides in favor of the plaintiff at step two, determinations on individual impairments
are harmless. Salles v. Comm’r of Soc. Sec., 229 Fed. Appx. 140, 143 n.2 (3d Cir. 2007) (citing
Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)). Furthermore, this Court finds, as
discussed supra, that the ALJ did not err on the PTSD or migraine headache determinations, and
thus, this issue is irrelevant.
3.

The ALJ Did Not Err in Assessing Plaintiff’s Credibility.

Lastly, Plaintiff argues that the ALJ’s assessment of Plaintiff’s subjective complaints
contained mischaracterizations, which, if viewed correctly, may have altered the overall
credibility determination. However, Defendant contends that the ALJ’s determination was
reasonable and properly considered Plaintiff’s subjective complaints.
There is substantial evidence that the ALJ properly considered Plaintiff’s subjective
complaints and concluded that they were less than fully credible. In assessing a claimant’s
subjective complaints, the ALJ must give those complaints serious consideration even when not
confirmed by objective medical evidence. LaCorte v. Bowen, 678 F. Supp. 80, 83 (D.N.J. 1988)
(quoting Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986)). However, the ALJ has the
“discretion to evaluate the credibility of a claimant and to arrive at an independent judgment . . .

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regarding the true extent of the pain alleged by the claimant.” Marcus v. Califano, 615 F.2d 23,
27 (2d Cir. 1979).
The ALJ stated “[Plaintiff] has described daily activities, which are not limited to the
extent one would expect, given the complaints of disabling symptoms and limitations.” R. 34.
Such a conclusion is warranted by the existing evidence in the record. There are several instances
of conflicting evidence which would properly allow the ALJ to question Plaintiff’s credibility.
Plaintiff has stated that in the past she needed help caring for her pets. R. 208. However, in a
more recent questionnaire with a date much closer to the disability period, Plaintiff stated that
she receives no such help. R. 294. Additionally, Plaintiff’s mother testified that she assists
Plaintiff in dressing herself. R. 282. However, Plaintiff herself has claimed she does not require
such assistance. R. 56, 274. The same is true for daily meal preparation. Compare AR 56 with
283. Furthermore, Plaintiff has, at least on occasion, used public transportation, went grocery
shopping, and planned to go back to school. R. 55, 640. Such discrepancies provide a rational
basis for the ALJ to make his credibility determination. See Burns v. Barnhart, 312 F.3d 113,
129-30 (3d Cir. 2002).
The ALJ also properly recorded his own observations about Plaintiff and included them
in his analysis. Pursuant to SSR 96-7p, the ALJ had the ability to “consider his or her own
recorded observations of the individual as part of the overall evaluation of the credibility of the
individual’s statements.” SSR 96-7p (Cum. Ed. 1996), available at 61 Fed. Reg. 34,483-01 (July
2, 1996). Such discretion is not tempered to the extent Plaintiff claims. The case law Plaintiff
relies on was based on specific sets of circumstances, namely contradicting medical testimony
and observing the claimant for a short time via video conference. Here, the ALJ did not directly
refute medical testimony, but rather relied on his own impressions and observations of Plaintiff

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to provide this single piece in the overall analysis. Furthermore, the ALJ himself recognized the
limits of observing Plaintiff via video conference by stating that the hearing was “short lived”
and “cannot be considered a conclusive indicator….” R. 35. Thus, it is clear the ALJ did not
over- rely on his observations and the amount he did is fully consistent with SSR 96-7p.
Finally, the ALJ provided clear reasons for questioning Plaintiff’s credibility. As required
in SSR 96-7p, the ALJ properly weighed the available evidence and provided an explanation for
his credibility determination. The ALJ made proper citations to the record when necessary to
support his determination. See Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981) (requiring
findings “specific enough to permit the Court to ascertain which evidence the ALJ accepted,
which evidence he rejected, and why.”). The discrepancies in the record are precisely what
provided the basis for the ALJ to make its decision. As such, that determination was proper and
subject to deference.

IV.

CONCLUSION

For the foregoing reasons, the Commissioner’s final decision is affirmed.
Dated: July 15, 2013
/s/ Joel A. Pisano_________
JOEL A. PISANO
United States District Judge

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