PATTERSON v. ASTRUE et al

Filing 24

MEMORANDUM OPINION filed. Signed by Judge Peter G. Sheridan on 9/25/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANGELA PATTERSON,
Plaintiff,
Civil Action No. 12-4191 (MAS)
v.
CAROLYNW. COLVIN,
Acting Commissioner of Social Security

MEMORANDUM OPINION

Defendant.

SHIPP, District .Judge

This matter comes before the Court on Angela Patterson's ("Plaintiff') appeal from the
final decision of Michael Astrue, now Carolyn Colvin, Commissioner of the Social Security
Administration (the "Commissioner"), denying Plaintiff's request for Disability Insurance
Benefits ("DIB"). 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 Local Civil

Rule 78.1. For the reasons set forth below, the Court REMANDS this matter for further
administrative proceedings.
I.

OVERVIEW
A.

Procedural History

Plaintiff filed for an application for SSDI benefits on September 6, 2007, alleging
disability beginning on August 24, 2007. (Administrative Transcript ("Tr.") at 9, ECF No. 6.)
Plaintiff's claim was denied. (/d.) Plaintiff requested a hearing, which was held before
Administrative Law Judge ("AU") James Andres on August 13, 2009, and July 21, 2010. (ld.

15-52.) On August 20, 2010, the AU found that Plaintiff was not disabled stating that she retains
the residual functional capacity ("RFC") to perform the "full range of sedentary work as defined
in 20 C.P.R. 404.1567(a)." (!d. at 11-12.) Plaintiff sought review of the AU's decision on
September 8, 2010, which the Appeals Council summarily denied. (/d. at 1-4, 151-54.) Plaintiff
asserts that the AU, and subsequently the Commissioner, erred in determining that Plaintiff was
not disabled by: (1) failing to provide a sufficient RFC assessment, and (2) failing to properly
consider Plaintiff's subjective complaints and credibility. (Pl.'s Moving Br. 14-24, ECF No. 15.)
Furthermore, Plaintiff asserts that she has submitted new and material evidence that would
allegedly warrant remand. (/d.)

B.

Background

Plaintiff was born on May 2, 1965. (Tr. at 156.) She has an Bachelor of Science in
Nursing and is certified as a Registered Nurse. (/d. at 19.) Plaintiff alleges she fits into the
definition of "disabled" and is entitled to SSDI benefits because she experiences chronic pain,
diarrhea, a herniated disc in the lumber spine, adhesion-related disorder, neuropathy, abdominal
pain, and medication side effects. (/d. at 156-57, 175.) Furthermore, Plaintiff alleges severe
impairments including nausea and vomiting, malabsorption syndrome and multiple onset partial
intestinal obstructions, sleeplessness, constipation due to medication, hypertension, fatigue, and
radiculopathy from a herniated disk. (Pl.'s Moving Br. 1-9.)

1.

Plaintiff's Medical History

On March 11, 2005, Dr. Denehy performed abdominal surgery on Plaintiff due to
"chronic salpingitis with endometriosis." (Tr. at 275.) Due to dense "fibrotic adhesions," Dr.
Denehy stated that it took nearly an hour and a half to enter the abdomen. (!d.) Plaintiff
experienced additional hospitalization and required additional abdominal surgery throughout

2

most of October 2005. (/d. at 429-31.) Throughout November 2005 to February 2006, Plaintiff
continued to be diagnosed with nonspecific abdominal stress and continued to have severe pain
and diarrhea. (/d. at 818, 855.) In February 2006, Dr. Morgan stated that Plaintiff continued to
experience lasting pain and diarrhea. (/d. at 818.) Although Plaintiff showed improvement, she
was again hospitalized due to abdomen pain in May 2007. (/d. at 1013-14.) Dr. Cuppari also
reported in October 2007 that plaintiff was limited to lifting a maximum of 15 pounds and
sitting/walking/standing for 6 hours. (/d. at 286-87.)
On August 28, 2007, Dr. Wroblewski examined Plaintiff and increased her pain patch
dosage due to chronic low back pain. (/d. at 997.) Dr. Orenberg examined Plaintiff, reporting in
October and November 2007 that "there was a small area of colitis but otherwise normal study"
regarding Plaintiffs lower intestine and later reported in November 2007 that Plaintiff seemed to
be "feeling well." (ld. 296, 302.) In October 2007, Dr. Morgan performed a colonoscopy on
Plaintiff. (/d. at 953.) Dr. Morgan stated that "[t]here was evidence of colitis of the ascending
colon. The mucosa appeared erythematous. The colonoscopy was otherwise normal." (/d.) On
October 22, 2008, Dr. Wroblewski again examined the patient and reported that she was limited
to carrying 25 pounds, sitting/standing for up to 6 hours a day. (ld. at 384.)
In Apri12008, Dr. Gordan examined the patient and reported:
In summary, the only clear impairment appears to be related to the claimant's
intra-abdominal adhesions. They have caused, and are surely still to cause,
recurrent and irregular bouts of abdominal pain and changes in bowel function.
Between such bouts, which her primary physician told me occurred at least for
one week out of each month, and which the records indicate did abate at times,
she would appear to have essentially normal function.
(/d. at 985-86.)
On November 12, 2009, Dr. Fechner, a non-examining physician, concluded that there
was no organ damage to Plaintiff and her motor straight leg reflexes were all normal. (/d. at 911.)
3

Dr. Fechner also found that Plaintiff could occasionally lift 20 pounds, sit or walk in an 8 hour
workday while not requiring the use of a cane to ambulate. (/d. at 913-14.)

2.

Administrative Hearing

On September 6, 2007, Plaintiff filed a Title II application for a period of disability
insurance, alleging a disability beginning August 24, 2007. (/d. at 9.) Upon two attempts, both
applications were denied. (/d.) On August 13, 2009, and July 21, 2010, the AU conducted
hearings regarding Plaintiff's denial of SSDI benefits. (/d. at 15-52.) The AU elicited testimony
from Plaintiff during the hearings, which included: (1) Plaintiff was born on May 2, 1965; (2)
Plaintiff has a nursing degree and has worked as a case manager and floor nurse; (3) Plaintiff
was insured for benefits through December 31, 2012; (4) prior to September 6, 2007, Plaintiff
began reporting abdominal pain and began to receive treatment for chronic abdominal pain
resulting from adhesions, back pain, and other impairments; and (5) medical evidence from
interrogatories given by Dr. Fechner. (/d. at 7-14.)

II.

THE AL.J's DECISION
The AU began by finding that Plaintiff met the requirements of insured status through

December 31, 2012, and that Plaintiff had not engaged in substantial gainful activity as required
in 20 C.F.R. 404.1571 et seq. (/d. at 11.) The AU found that Plaintiff did have severe
impairments which included: abdominal adhesions, chronic pain syndrome, hypertension and
back pain. (/d.) Next, the AU found that Plaintiff did not have an "impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1." (/d.) After consideration of all the evidence, Plaintiff was found to have
the RFC to perform a full range of sedentary work. (/d. at 12.) The AU substantially relied upon

4

the findings of Dr. Fechner, which the AU characterized as best summarizing the medical
evidence. (/d. at 13.)
The AU followed a two-step process when considering Plaintiff's symptoms:
[F]irst [it must] be determined whether there is an underlying medically
determinable physical or mental impairment . . . that could reasonably be
expected to produce the Plaintiff's pain or other symptoms. Second, . . . the
undersigned must evaluate the intensity, persistence, and limiting effects of the
claimant's symptoms to determine the extent to which they limit the claimant's
functioning.
(/d. at 12.) The AU considered Plaintiff's symptoms of inability to work due to "chronic pain,

diarrhea, herniated lumbar discs, adhesion related disorder, neuropathy" and "limited social life."
(/d. at 12.) In considering these symptoms, the AU found that Plaintiff's past relevant work as a

case manager and nurse were performed above the sedentary exertional capacity, which Plaintiff
was unable to perform. (ld. at 13.)
The AU stated that the listed impairments could be expected to cause the alleged
symptoms, however, Plaintiff's statements concerning intensity, persistence and the limiting
effects of these symptoms were not credible and were inconsistent with the functional capacity
assessment. (/d. at 12-13.) After considering the entire record, the AU concluded that Plaintiff's
RFC is categorized as full range of sedentary work and that Plaintiff did not have any significant
non-external limitations. (/d. at 13) As such, she was not considered disabled. (/d. at 14.)

III.

LEGAL STANDARD AND ANALYSIS

A.

Standard of Review

A district court "shall have [the] power to enter upon the pleadings and transcript of the
record, a judgment affirming, modifying or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for rehearing, when reviewing the final decision
of the Commissioner of the Social Security Administration." 42 U.S.C. § 405(g); see Matthews

5

v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001). The decision is reviewed and upheld if it is supported
by substantial evidence. 42 U.S.C. § 405(g). "Substantial" evidence is more than a "mere
scintilla." Stunkard v. Sec'y of Health & Human Serv., 841 F.2d 57, 59 (3d Cir. 1988).
"Substantial" evidence is "such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consol.

Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197,229 (1938)).
The reviewing court may not set aside or substitute the AU's decision with its own
merely because it comes to a different conclusion when presented with conflicting evidence.

Hartranft v. Apfel, 181 F.3d 360 (3d Cir. 1999). Where this occurs, the AU must explain why
he choose to accept some evidence over others. In addition, the reviewing court must look at the
evidence in its entirety. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). A
Commissioner's reasoning will be reviewed to see whether he has analyzed all the relevant
evidence, given weight to probative exhibits and whether his reasons are rational. Gober v.

Matthews, 574 F.2d 772 (3d Cir. 1978).

B.

Establishing Disability

A claimant must be unable to "engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for continuous period of not less than 12 months."
42 U.S.C. § 423(d)(1)(A). A claimant is considered disabled if the impairments or disability is of
such "severity" that the claimant cannot work in the "national economy" considering his "age,
education, and work experience." 42 U.S.C. § 423(d)(2)(A).
Social Security regulations provide a five-step evaluation procedure to determine whether
an individual is disabled. See 20 C.F.R. § 404.1520(a)(4). For the first step, the claimant must

6

establish that he has not engaged in any "substantial gainful activity" since the onset of his
alleged disability. 20 C.F.R. § 404.1520(a)(4)(i). For the second step, the claimant must establish
that he suffers from a "severe impairment" or "combination of impairments." 20 C.F.R.
§ 404.1520(a)(4)(ii). The claimant bears the burden of establishing the first two requirements,

and failure to satisfy either automatically results in a denial of benefits. Bowen v. Yuckert, 482

u.s. 137, 146-47 (1987).
If the first two steps are satisfied, the third step requires that the claimant provide

evidence that his impairment is equal to one of those impairments listed in Appendix 1 of the
regulations ("Listing of Impairments"). 20 C.F.R. § 404.1520(d). Furthermore, if the claimant
demonstrates that he suffers from a listed impairment or that his severe impairment is equal to a
listed impairment, he is presumed to be disabled and is automatically entitled to disability
benefits. (Id.) If he cannot so demonstrate, the eligibility analysis proceeds to step four.
The fourth step of the analysis requires the AU to determine whether the claimant's RFC
permits him to resume his previous employment. 20 C.F.R. § 404.1520(e). If the claimant can
perform his previous line of work, then he is not "disabled" and not entitled to disability benefits.
20 C.F.R. § 404.1520(f). If the claimant is 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 work that is consistent with his medical impairments, age, education, past work
experience and RFC. 20 C.F.R. § 404.1520(g); see Palmer v. Comm'r of Soc. Sec., 410 F. App'x
490, 492 (3d Cir. 2011). If the Commissioner cannot satisfy this burden, the claimant will
receive Social Security benefits.

7

C.

Discussion
1.

New Evidence Warrants Remand

Plaintiff asserts that an operation conducted on September 30 2010, indicated that her
"abdomen was completely frozen" and should be considered "new evidence." (Pl.'s Moving Br.
22.)

Plaintiff further argues that if the new evidence had been considered it would have

"create[d] a reasonable possibility of a different decision by the commissioner." (/d.) Plaintiff
also contends that this "new evidence strongly reinforces" her credibility and subjective
complaints of pain. (/d. at 23.) As such, Plaintiff requests that this Court remand under sentence
six of 42 U.S.C. § 405(g). (ld. at 1, 21.)
Under 42 U.S.C. § 405(g), new evidence must satisfy a three-prong test before remand is
appropriate. See Szubak v. Sec'y of HHS, 745 F.2d 831, 833 (3d Cir. 1984). First, § 405(g)
requires that the evidence must be "new" and not merely cumulative of what is already in the
record. Id.; e.g., Bomes v. Schweiker, 544 F. Supp. 72, 75-76 (D. Mass. 1982). Second, the
evidence must be material, relevant and probative. Szubak, 745 F.2d at 833; see Chaney v.

Schweiker, 659 F.2d 676, 679 (5th Cir. 1981). Additionally, the materiality standard requires that
there be a reasonable possibility that the new evidence would have changed the outcome of the
Secretary's determination. Szubak, 745 F.2d at 833; see also Bomes, 544 F. Supp. at 76. Third,
the claimant must demonstrate good cause for not having incorporated the new evidence into the
administrative record. Szubak, 745 F.2d at 833; e.g., Brown v. Schweiker, 557 F. Supp. 190, 192
(M.D. Fla. 1983).

The Court has determined that Plaintiff's new evidence meets the requirements of
§ 405(g). Plaintiff's evidence of a "frozen abdomen" is clearly new and not cumulative of what

was originally presented to the AU. The Court also finds this new evidence to be material. In

8

order to be material, new evidence must relate to the time period for which benefits were denied
and not concern evidence of a later-acquired disability or of the subsequent deterioration of the
previously non-disabling condition. Szubak, 745 F.2d at 833; see Ward v. Schweiker, 686 F.2d
762, 765 (9th Cir. 1982). Plaintiffs later discovered frozen abdomen may very well not concern
evidence of "a later-acquired disability" but may be the actual disability she was suffering from
when she was described as "not disabled" by Dr. Fechner.
The Court's analysis is guided by Szubak, in which the Third Circuit agreed to introduce
new evidence of a claimant's medical records. Similar to this case, the Szubak court stated:
all the physicians who originally examined Szubak agreed that she suffered from
an anxiety condition. Her treating physicians found the condition to be severe and
chronic, but the AU relied heavily on the original report of Dr. Nelson, the
government psychiatrist, to label the problem not disabling.

Szubak, 745 F.2d at 833. The Szubak Court stated that "the new medical report ... may well
supply the AU with a better understanding of Dr. Nelson's critical, but ambiguous,
observation." /d. at 834. Here, Plaintiff's "new evidence" may give Dr. Fechner or the AU
additional material information upon which to base their respective opinion and decision.
Moreover, Plaintiff's new evidence is entitled great weight because it "appears to corroborate"
her subjective complaints of pain. /d. at 833 (Any evidence which may corroborate Plaintiff's
credibility is important because a claimant's subjective complaints carry "great weight."); see

Taybron v. Harris, 667 F.2d 412 (3d Cir. 1981). Finally, the Court concludes that Plaintiff had
good cause for not presenting the evidence of her "frozen abdomen" to the AU. Simply stated,
Plaintiff did not receive this information until after the AU had rendered his decision and there
is no indication from the record that Plaintiff is utilizing § 405(g) to make an "end-run" around
the administrative process or otherwise be afforded andunjust additional "bite of the apple." /d.
at 834.
9

The Court finds that Defendant's reliance on Hardee v. Commissioner of Social Security
is misplaced and distinguishable from this case. In Hardee, the Third Circuit rejected a
claimant's attempt to introduce new evidence because "the reports of ... hospitalizations [were
likely] indicative of ... subsequent deterioration of the previously non-disabling condition." 188

F. App'x. 127, 130 (3d Cir. 2006). The Hardee Court further explained that the new evidence did
not "suggest that [the] condition had reached this stage on or before the date of the hearing
before the ALJ." /d. In contrast, Plaintiffs evidence in this case of a "frozen abdomen" could
reasonably suggest that her condition may have reached that stage "on or before the date of the
hearing before the ALJ." 1 /d. Plaintiffs new evidence may very well show a more severe and
contemporaneous injury rather than a "subsequent deterioration of the previously non-disabling
condition," as seen in Hardee. /d. As such, Hardee is distinguishable from the present case.

IV.

CONCLUSION
For reasons set forth above, and based on the substantial evidence in the record,

Plaintiff's appeal is granted and the decision of the Administrative Law Judge is vacated. This
matter is remanded for consideration of the Plaintiffs evidence regarding her diagnosis of
having a "frozen abdomen. " 2

UNITED STATES DISTRICT JUDGE

Dated: September

"·-11-OlS, 2013

1

The Court takes no position as to the ultimate impact this evidence will have upon remand to
the ALJ.
2

After consideration of Plaintiff's new evidence, the ALJ shall make a ruling on whether
Plaintiff has successfully established a "disability" under 20 C.F.R. §404.1520(a)(4)(i).
10