TRINKAUS v. ASTRUE et al
OPINION filed. Signed by Judge Peter G. Sheridan on 2/19/2014. (kas, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
COMMISSIONER OF SOCIAL SECURITY, :
Civil Action No. 12-5325 (PGS)
This matter is before the Court on the appeal of Plaintiff, Kenneth Trinkaus from the
decision of the Commissioner of Social Security denying him a period of disability insurance
benefits. The issue is whether substantial evidence supports the Commissioner’s decision that
Plaintiff was not disabled from his alleged onset date of disability (August 24, 2006) through the
date of the Administrative Law Judge’s decision (September 13, 2010).
Plaintiff appeared and testified on his own behalf at a hearing before the Hon. Brian H.
Ferrie on August 12, 2010. At the time of the hearing, Kenneth Trinkaus was a 51 year old man,
which classified him as an individual closely approaching advanced age. Plaintiff is college
educated and has a Bachelor’s Degree in Civil Engineering.
His primary occupation was
performing computer drafting assignments for a consulting firm. As part of his job, he sat for
long periods of time developing drawings on a computer, and as needed, he would lift and load
20 pound rolls of paper into the printer. He would also bend over frequently to collate sets of
Since the eighties, Plaintiff has suffered from severe degenerative disease of the back,
congenital lumbar stenosis, depression, anxiety and a personality disorder. In addition, he has
been diagnosed with syringomylia (syrinx) at T5 through T8 of the thoracic spine.
On May 31, 2006, Plaintiff was involved in a car accident in which his car was rear
ended. Some of his prior back injuries were exacerbated as a result of that accident.
In July 2006, Plaintiff was terminated from his job. Plaintiff initially received
unemployment benefits before applying for disability benefits in 2008, and he continued to
receive unemployment benefits through March 2010. During this two year period, Plaintiff
testified that he had a variety of other health issues that prevented him from working, including
arthroscopic right shoulder surgery, shooting pains in his legs, frequent urination (approximately
30 times a day), a burning sensation on the bottom of his feet, a burning sensation in his
forehead, constant pressure in his head, intermittent dizziness and headaches.
On February 7, 2009, Plaintiff completed an Adult Function Report in conjunction with
his application for Social Security Disability Benefits. In that report, Plaintiff noted that his
daily activities include (a) reading paperwork, news and emails, (b) driving short distances to the
doctor or to the grocery store, (c) walking around the neighborhood, (d) exercising and
stretching, (e) watching television, (f) sleeping, and (g) shopping at the grocery store or
pharmacy. He pays bills and handles a checking and savings account. He does not socialize in
hot weather because the weather causes unpredictable sudden bowel and urinary movements. He
walks up to half a mile before having pain in his back and feet. His attention span is about a half
hour. He can follow verbal instructions, but headaches and poor concentration require rechecking
instructions. Plaintiff reports being able to handle stress and to function in a cooperative manner
with authority figures. Due to pain in his back he dresses slowly. Leaning over the sink or
bending over to tie his shoes causes back pain. Plaintiff reports that he prepares three meals per
day, does light yard work 4 times a year, washes one load of laundry per week, and vacuums,
sweeps and mops occasionally. (R. 294).
Medical Treatment and Reports
Plaintiff’s administrative record contains treatment notes and reports from various
treating and non-treating physicians and professionals.
A summary is presented below in
chronological order, and any test results are shown in single-spaced format.
Plaintiff first presented to Shore Urology, for evaluation of urinary frequency on June 3,
1986. At that time, Jules M. Geltzeiler, M.D. conducted urodynamic studies where simultaneous
recording of urethral sphincter electromyography and detrusor contraction was monitored. Dr.
Gultzeiler noted that sensation to cold was not perceived. (R 546).
In 1987, Plaintiff was examined by Dr. Bunch, a rheumatologist at the Mayo Clinic in
order to determine if Plaintiff suffered from Reiter’s Syndrome which is now referred to as
reactive arthritis). Dr. Bunch opined that Plaintiff’s symptoms “seemed to be related to anxiety,”
and concluded that the amount of Plaintiff’s symptomology was out of proportion with what was
found on the physical examination.
November 29, 2006. An abdominal ultrasound was no normal with no evidence of cholelithiasis,
biliary ductal dilatation or cholecystitis; but two cysts in right kidney were found. (R. 420)
December 11, 2006. A surgical pathology report revealed no evidence of chronic or active colitis
of the bowel tissue; grade 2 esophagitis in the gastroesophageal junction; small hiatal hernia; and
diaphragmatic hernia without obstruction or gangrene. (R. 412)
October 2007. An MRI of the brain was unremarkable. (R. 478)
On February 12, 2008, Plaintiff was treated by Monte Pellmar, MD of the Headache and
Neurological Care Center of New Jersey. On examination, Plaintiff complained of having a
sunburn feeling on his forehead. Dr. Pellmar’s impression was dysesthesias of the forehead, but
he could not provide a neurological explanation. He was seen again on September 4, 2008, at
which time the neurological examination was unremarkable.
Dr. Pellmar recommended a
neurosurgical evaluation with regard to a possible syrinx. (R. 517).
Between February 20, 2008 and March 5, 2008, Plaintiff presented to Marcia Rachlin, a
licensed clinical social worker (“LCSW”) for psychiatric treatment three times. Ms. Rachlin
noted that Plaintiff’s credibility was questionable because he failed to follow up for ongoing
treatment. Her report indicated that the Plaintiff had a depressed mood, somewhat flat effect,
impaired judgment and that he complained of problems with concentration. (R 435). Ms. Rachlin
noted that Plaintiff’s social interaction was limited, noting social isolation, that Plaintiff was
highly critical of others, and that he had problems getting along with others. Plaintiff’s prognosis
was noted as guarded. There were no limitations in his understanding, memory, concentration
and persistence, but he had limited social interaction. He was unable to adapt to changes in a
work setting. Ms. Rachlin noted Plaintiff never engaged in ongoing treatment. (R. 434-438).
On April 22, 2008, Plaintiff presented to a podiatrist, James P. Sullivan, DPM, with
complaints of burning in both plantar feet, which had reportedly been getting worse over the past
few years. Dr. Sullivan noted an existing diagnosis of ankylosing spondylitis. On examination,
Dr. Sullivan assessed the Plaintiff with paresthesia bilaterally in the lower extremities; possibly
secondary to radiculopathy related to ankylosing spondylitis. There does not appear to have
been any treatment. (R. 556).
On May 13, 2008, Plaintiff was seen by Haralambos Demetriades, MD with complaints
of low back pain exacerbated by twisting, and pain in his calves and feet. On examination,
Plaintiff’s motor strength was 5/5, deep tendon reflexes were symmetric and normal, and
sensation was intact. Dr. Demetriades’ impression was displaced lumbar intervertebral disc
without myelopathy, lumbar strain, and degenerative disc disease of the spine. He prescribed
home exercise and physical therapy. He also recommended an epidural injection. (R. 451).
May 16, 2008 MRI of the lumbar spine. The impression was mild degenerative changes through
the lumbar spine superimposed on a congenitally narrowed canal, as well as shallow disc
herniation at the L5-S1 level with no clear evidence of nerve root impingement. (R. 455, R.
On May 22, 2008, Plaintiff presented to rheumatologist Deborah Alpert, MD, PhD, at
Meridian Health with similar complaints.
Dr. Alpert noted Plaintiff was diagnosed with
seronegative spondyloarthropathy in 1988. On examination, Dr. Alpert observed thoracolumbar
spine tenderness to palpitation. Plaintiff’s back pain was exacerbated with flexion and extension.
The doctor further noted bilateral glenohumeral joint tenderness to palpation and mild
subacromial tenderness to palpation. Dr. Alpert suspected that most of Plaintiff’s low back pain
is caused by congenital lumbar spinal stenosis, in addition to superimposed mild degenerative
disc disease. Dr. Alpert initiated a trial of Celebrex (or Aleve as an alternative) and a plan of
pain management including a steroid injection for the lumbar stenosis and Plaintiff’s
superimposed mild degenerative changes. (R. 443-446). It is unknown whether such treatment
June 24, 2008 ACT scan of the abdomen and pelvis showed no evidence of a mass, obstruction
or abnormal calcifications in the abdomen, pelvis, kidneys, ureters or urinary bladder. A small
renal cyst was noted in both kidneys.
August 8, 2008 MRI/CT scan of the cervical spine showed mild hypertrophy at the C4-5 level
resulting in mild bilateral neural foraminal stenosis, and a moderate sized disc osteophyte
complex at the C6-C7 level resulting in moderate bilateral neural foraminal stenosis (R. 477).
In September 2008, Plaintiff was treated by Dr. Bruce Rosenblum, a neurologist. Dr.
Rosenblum noted Plaintiff’s syrinx at T5 through T8 and opined that it may be post-traumatic in
nature. Dr. Rosenblum ordered an MRI of the thoracic spine for completeness.
September 11, 2008 MRI/CT scan thoracic spine with contrast showed small disc protrusions at
the T6-7, T7-8, T9-10, and T10-11 without evidence of cord flattening and from T5 to T8 a nonexpansile syrinx. (R. 282, 285).
On October 10, 2008, Plaintiff underwent a consultative psychological examination by
Jack Baharlias, Ed.D. (R. 497). According to Dr. Baharlias, at the initial interview, there was no
indication that Plaintiff was psychotic or had a thought disorder. His thinking was logical. He
had good eye contact and was well oriented, but was obsessed about his illnesses. Despite same,
his emotional range was adequate, and his behavior was appropriate. He was neither intense, nor
vegetative. He acknowledged some sleeping problems, and was upset that his injuries prevented
him from country western dancing. Dr. Baharlias diagnosed Plaintiff with depressive disorder
associated with a general medical condition, pain disorder associated with physical and
psychological factors, anxiety disorder, and a personality disorder with some schizoid
characteristics. (R 499).
On November 10, 2008, a Psychiatric Review Technique (review of the record by nontreating physician) by Ina Weitzman was conducted. Dr. Weitzman’s impression was non-severe
affective disorder and non-severe personality disorder. According to Dr. Weitzman, the record
did not show any psychiatric treatment, other than the consultative examination, and three visits
with a mental health professional (Ms. Rachlin). Dr. Weitzman found that Plaintiff had a
medically determinable mental impairment that did not rise to the level necessary to satisfy the
diagnostic criteria for affective disorder (listing 12.04); but rather was deemed to be depression
secondary to pain disorder. Similarly, it was found that Plaintiff’s personality disorder with
schizoid characteristics did not satisfy the diagnostic criteria of a personality disorder (listing
12.08). (R. 507) The psychiatric review found that Plaintiff’s restrictions of activities of daily
living were not limited; his difficulties in maintaining social function and maintaining
concentration, persistence and pace were mild; and that he had not experienced any episodes of
decompensation. (R. 510).
On January 29, 2009, Plaintiff was treated by Tariq S. Siddiqi, MD, a neurologist, on one
occasion. Mr. Trinkaus restated his medical issues and emphasized that his back pain and urinary
frequency started in 1986. Dr. Siddiqi reviewed the MRIs of the thoracic spine and lumbar spine
that had shown a non-expensile T5 to T8 syrinx and degenerative disc disease with sub-articular
disc protrusion at the L5-S1 level that does not affect the descending left S1 nerve root; and
showed cervical spondylosis at the C4-C5 and C6-C7 levels.
After Dr. Siddiqi examined
Plaintiff, he found (a) the cranial nerve examination was within normal limits; (b) there was no
limitation of movement in the cervical spine; (c) only mild tenderness in the thoracic region; (d)
straight leg raising maneuvers were negative; (e) reflexes were symmetrical; and (f) the sensory
examination was unremarkable. Dr. Siddiqi's impressions were cervical spondylosis at the C4-C5
and C6-C7 level, and a non-expansile syrinx from T5 through T8 with small disc protrusions at
the thoracic area. Dr. Siddiqi stated that Mr. Trinkaus' symptomatology was out of proportion to
On February 9, 2009, Plaintiff saw Michael G. Nosko, M.D., PhD, for a surgical consult.
Dr. Nosko noted Plaintiff’s history of back pain with radiation down to the sole of the feet,
stiffness in the neck, burning sensation on the forehead and constant, frequent urination of small
amounts. He also noted that the Plaintiff was “very anxious.” Dr. Nosko reviewed the MRI’s of
Plaintiff’s thoracic and lumbar spine. He noted that there was nothing surgical that could be
done, and referred Plaintiff for a urologic evaluation. (R. 542).
On February 18, 2009, Plaintiff presented to the New Jersey Urologic Institute, and was
seen by Ilan Waldman, MD. A urodynamic study was conducted and revealed decreased bladder
compliance. (R 560).
On July 17, 2009, Plaintiff presented to Don M. Long, MD, PhD at Johns Hopkins in
Baltimore. Dr. Long reviewed the diagnostic studies and concurred with prior radiology reports
finding degenerative disc disease of the lumbar spine, syrinx T5-T8 without associated chord
signal changes; hemangioma and forminal stenosis. Dr. Long also noted a decrease in the range
of motion of Plaintiff’s neck and observed the lumbar musculature to be tight bilaterally. Dr.
Long assessed a probable upper cervical facet injury leading to headaches, and he opined that
Plaintiff’s headaches could be from a cervical spine change at C6-C7. He recommended root
blocks and facet blocks at C2-C4, but noted that these would only address Plaintiff’s upper
extremity symptoms. (R. 563)
Dr. Long also assessed a syrinx at T5-T8, commenting that it was small, and that it could
not be treated directly. Dr. Long suggested that the syrinx may be the cause of local pain and
urinary frequency; and that a study be repeated in one to two years to assess any growth of the
Dr. Long further commented that this would be a diagnosis of exclusion unless
cystometrogram studies demonstrate a clear-cut neurogenic bladder. Finally, Dr. Long found
that the lumbar studies showed significant disc disease and recommended facet blocks at various
areas of Plaintiff’s lumbar spine.
On July 28, 2009, Plaintiff was seen by Peter Staats, MD of Premier Pain Centers. Dr.
Staats recommended nerve root blocks at C2-C3 segment, C2 and C3 nerve root blocks
bilaterally, facet block at upper cervical spine, as recommended by Dr. Long. Dr. Staats also
noted that the syrinx may cause urinary dysfunction and discussed medication options with
Plaintiff. (R. 568-569).
At a follow up visit to Dr. Long on December 1, 2009, Dr. Long noted that the root
blocks at C2-C4 didn’t work, and in fact, made Plaintiff’s neck dramatically stiff and the burning
worse. He recommended another block at C6-C7 and advised against surgery at that time. He
noted that the cause of the syringomyelia (syrinx) was unknown. Dr. Long noted that no action
should be undertaken on the syrinx, but recommended a repeat MRI every two to three years to
watch for changes. (R. 565).
June 8, 2010 MRI of the lumbar spine without contrast. The alignment was normal. There is a
small right paracentral disc protrusion present at the L1-L2 level, resulting in moderate right
neural foraminal narrowing and mild right paracentral spinal narrowing. Slight broad based disc
bulge is seen at the L3-L4 level with mild bilateral neural foraminal stenosis and mild central
spinal stenosis along with hypertrophy of the ligament flavum. There is mild broad based disc
bulge present at L4-5 level along with hypertrophy of the ligamentum flavum and facet joints,
resulting in mild central spinal stenosis and mild bilateral neural foraminal stenosis. Slight broad
based disc bulge is seen at L5-S1 without neural foraminal stenosis or spinal stenosis. A 3.8 cm
cyst was seen in the midpole of the right kidney with additional smaller T2-hyperintense lesion
measuring 8 mm on image #2. These likely represent simple cysts; however, these are
incompletely characterized given lack of IV contrast. There is a suggestion of additional cyst in
the left kidney, somewhat difficult to evaluate. (R. 576).
June 10, 2010 MRI of cervical spine without contrast (with comparison made to the MRI of
August 8, 2008. The impressions were of stable disc osteophyte complex at C6-7 level, resulting
in mild central spinal stenosis and moderate bilateral neural foraminal stenosis. Stable mild
bilateral neural foraminal narrowing at C4-5 level secondary to uncovertebral joint enlargement.
June 16, 2010 MRI of thoracic spine with and without contrast (with comparison made to MRI
of August 6, 2008). The findings were that the syrinx extending on the spinal cord extending
from T5 to T8 had not significant changed in size or appearance from the prior MRI. At T10-11
there is left foraminal disc herniation, which results in left neural foraminal narrowing with
probable impingement of the left T10 nerve root. These findings have worsened since the prior
MRI. Small central disc herniation’s are seen at T5-6 and T6-7 which were stable. A small
central to left paracentral disc herniation is seen at T8-0, which is slightly more prominent when
compared with prior study without evidence of significant central canal or neural foraminal
narrowing. Hemangioma was seen in the T7 vertebral body. Multilevel degenerative changes
are seen with Schmorl’s nodes. (R. 574).
On June 21, 2010, Plaintiff was treated by Jonathan Lustgarten, MD of Neurological
Associates of New Jersey. Dr. Lustgarten recommended a full evaluation at a major tertiary
facility where spinal angiography would be available on a multi-disciplinary basis. (R. 570-571).
Residual Functional Capacity Assessment
The Physical Residual Functional Capacity Assessment dated October 10, 2008 found
that Plaintiff’s 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 about 6 hours
per 8 hour work day; sit (with normal breaks) for a total of 6 hours per 8 hour work day; and
unlimited pushing and/or pulling (including operation of hand and/or foot controls). Postural
limitations were that Plaintiff could occasionally climb, balance, stoop, kneel, crouch and crawl,
but never balance. There were no manipulative, visual, communicative or environmental
limitations found. (R. 489-493).
A claimant is considered disabled under the Social Security Act (the “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). 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. The Social Security
Administration has developed a five-step sequential process for evaluating the legitimacy of a
plaintiff=s disability. 20 C.F.R. ' 404.1520. First, the plaintiff must establish that he is not
currently engaging in substantial gainful activity. 20 C.F.R. ' 404.1520(a). If the plaintiff is
engaged in substantial gainful activity, the claim for disability benefits will be denied. See
Plummer, 186 F.3d at 428 (citing Bowen v. Yuckert, 482 U.S. 137, 140 (1987)). In step two, he
must establish that he suffers from a severe impairment. 20 C.F.R. ' 404.1520(c). If plaintiff
fails to demonstrate a severe impairment, disability must be denied.
If the plaintiff suffers a severe impairment, step three requires the ALJ to determine,
based on the medical evidence, whether the impairment matches or is equivalent to a listed
impairment found in AListing of Impairments@ located in 20 C.F.R. ' 404, Subpart P, Appendix
1. Id.; Burnett, 220 F.3d at 118-20. If it does, the plaintiff is automatically disabled. 20 C.F.R.
'404.1520(d). But, the plaintiff will not be found disabled simply because he is unable to
perform his previous work. In determining whether the plaintiff=s impairments meet or equal any
of the listed impairments, an ALJ must identify relevant listed impairments, discuss the evidence,
and explain his reasoning. Burnett, 220 F.3d at 119-20. If the plaintiff does not suffer from a
listed severe impairment or an equivalent, the ALJ proceeds to steps four and five. Plummer,
186 F.3d at 428. In step four, the ALJ must consider whether the plaintiff Aretains the residual
functional capacity to perform [his or] her past relevant work.@ Id.; see also Sykes, 228 F.3d at
263; 20 C.F.R. ' 404.1520(d). This step requires the ALJ to do three things: 1) assert specific
findings of fact with regard to the plaintiff=s residual functional capacity (RFC); 2) make findings
with regard to the physical and mental demands of the plaintiff=s past relevant work; and 3)
compare the RFC to the past relevant work, and based on that comparison, determine whether
the claimant is capable of performing the past relevant work. Burnett, 220 F.3d at 120. If the
plaintiff cannot perform the past work, the analysis proceeds to step five. In this final step, the
burden of production shifts to the Commissioner to determine whether there is any other work in
the national economy that the plaintiff can perform. See 20 C.F.R. ' 404.1520(g). If the
Commissioner cannot satisfy this burden, the claimant shall receive social security benefits. See
Yuckert, 482 U.S. at 146 n.5; Burnett, 220 F.3d at 118-19; Plummer, 186 F.3d at 429; Doak v.
Heckler, 790 F.2d 26, 28 (3d Cir. 1986). In demonstrating there is existing employment in the
national economy that the Plaintiff can perform, the ALJ can utilize the medical-vocational
guidelines (the Agrids@) from Appendix 2 of the regulations, which consider age, physical ability,
education, and work experience. 20 C.F.R. ' 404, subpt. P, app. 2. However, when determining
the availability of jobs for Plaintiffs with exertional and non-exertional impairments, Athe
government cannot satisfy its burden under the Act by reference to the grids alone,@ because the
grids only identify Aunskilled jobs in the national economy for claimants with exertional
impairments who fit the criteria of the rule at the various functional levels.@ Sykes, 228 F.3d at
269-70. Instead, the Commissioner must utilize testimony of a Avocational expert or other
similar evidence, such as a learned treatise,@ to establish whether the Plaintiff=s non-exertional
limitations diminish his residual functional capacity and ability to perform any job in the nation.
Id. at 270-71, 273-74; see also Burnett, 220 F.3d at 126 (AA step five analysis can be quite fact
specific, involving more than simply applying the Grids, includingY testimony of a vocational
expert.@) If this evidence establishes that there is work that the Plaintiff can perform, then he is
not disabled. 20 C.F.R. ' 404.1520(g).
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 Asuch 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 was 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.
On September 13, 2010, the ALJ found that Plaintiff had severe degenerative disease of
the back and congential lumbar stenosis, and that Plaintiff suffers from depression, anxiety and a
personality disorder. Despite same, the ALJ found that these impairments did not impose any
limitations on Plaintiff’s ability to perform basic work related activities, and that Plaintiff was
capable of performing his past relevant work in computer drafting. (20 C.F.R. § 404.1536, 20
C.F.R. § 404.1565).
Plaintiff argues that the ALJ “selectively discussed the medical evidence with respect to
Plaintiff’s mental impairments, Plaintiff’s back and neck impairments, including his syrinx,
cervical spondylosis, seronegative spondyloarthropathy, and urinary frequency” without looking
at the overall condition of Plaintiff. With regard to mental impairments, in order to be found
severe, the claimant’s impairment(s) must “significantly limit [his] ability to perform basic workrelated activities.” Social Security Ruling (SSR) 85-28. The Commissioner’s regulations and
rulings define the basic work-related mental activities to include: understanding, carrying out,
and remembering simple instructions; using judgment; responding appropriately to supervision,
coworkers, and usual work situations; and dealing with changes in a routine work setting. See 20
C.F.R. § 404.1521(b). Plaintiff’s own statements to Dr. Baharlias at the October 16, 2008
consultative examination found otherwise.
Plaintiff stated that he spent his days using a
computer, reading the newspaper, looking for work, emailing his friends, and researching his
medical problems (R.
498). Therefore, the ALJ found that these self-reported abilities
demonstrate that Plaintiff had no limitations in performing basic mental work activities. See 20
C.F.R. § 404.1521(b); SSR 85-28.
Plaintiff also argues that the ALJ erred by relying on the findings of Marcia Rachlin,
LCSW 1 that Plaintiff should return to work, but failed to consider Plaintiff’s symptoms including
a depressed mood, impaired judgment and problems with concentration. Plaintiff furthered that
Ms. Rachlin’s impressions and findings should be considered in conjunction with the findings of
Dr. Baharlias. Dr. Baharlias found that Plaintiff was not psychotic and did not have a thought
Ms. Rachin is a licensed clinical social worker and is not an expert in psychology.
disorder. He further found that Plaintiff’s thinking was logical, that he had good eye contact and
was well orientated, but he was verbally driven about his illnesses. Dr. Baharlias found that
Plaintiff’s emotional range was adequate, his behavior appropriate, and he was not delusional.
No other phobias were noted, and his insight and judgment were satisfactory. Dr. Baharlias
provided an Axis I diagnosis of depressive disorder associated with a general medical condition,
pain disorder associated with physical and psychological factors, anxiety disorder not otherwise
specified and personality disorder not otherwise specified with some schizoid characteristics. (R
499). Plaintiff treated with Ms. Rachlin on only three occasions, and although Plaintiff’s
prognosis was noted as “guarded,” she noted that Plaintiff never engaged in treatment, and he did
not follow through on any suggestions or return for treatment. (R. 438). Therefore, even if the
reports of Ms. Rachlin and Dr. Baharlias are considered together, there is no evidence that the
ALJ “ignored or implicitly rejected” any mental impairment of Plaintiff. Rather, the Plaintiff
simply never undertook any treatment for his alleged mental disorder.
Plaintiff also argues that Dr. Bunch of the Mayo Clinic recommended psychiatric therapy
in 1987, but that the ALJ did not consider Dr. Bunch’s recommendation. Plaintiff is correct that
the ALJ did not mention Dr. Bunch’s review; however, Dr. Bunch is a rheumatologist who
examined Plaintiff to determine if Mr. Trinkaus suffered from Reiter’s Syndrome (reactive
It was Dr. Bunch’s opinion that Plaintiff’s symptoms “seemed to be related to
anxiety.” As such, in 1987, Dr. Bunch concluded:
If he cannot handle things in the future he should consider a
psychiatrist rather than a rheumatologist. Although I cannot tell
him whether he ever had Reiter’s I certainly don’t think he has it
now and even if he did, the amount of symptomology he has is out
of proportion with what we find on a physical examination.
One cannot conclude from Dr. Bunch’s comment that he had diagnosed any mental disorder,
and it would be speculative and remote to combine a comment from twenty years ago with
Plaintiff’s current issues.
The ALJ’s conclusion that Plaintiff’s mental impairments were non-severe under the
regulations is also supported by the November 10, 2008 Psychiatric Review Technique by Dr.
Weitzman wherein Plaintiff was found to have a medically determinable mental impairment,
but that it did not precisely satisfy the diagnostic criteria for affective disorder (20 C.F.R. §
404, Subpart P, Appendix 1, listing 12.04); but rather was deemed to be depression secondary
to pain disorder. Similarly, it was found that Plaintiff’s personality disorder with schizoid
characteristics did not satisfy the diagnostic criteria for finding a personality disorder (20
C.F.R. § 404, Subpart P, Appendix 1, listing 12.08). (R. 507). The psychiatric review further
found that Plaintiff’s restrictions on activities of daily living did not limit his ability to work;
and his difficulties in maintaining social function, concentration, persistence and pace were
mild. (R. 510). Based on the foregoing, the ALJ reasonably concluded that Plaintiff’s mental
impairments caused no more than minimal limitations in his abilities to understand, carry out,
and remember simple instructions; use judgment; respond appropriately to supervision,
coworkers, and usual work situations; and deal with changes in a routine work setting .
With regard to Plaintiff’s urinary frequency, Plaintiff argues that the ALJ overlooked
evidence in the record that directly relates to this symptomology. That is, paraphrasing from
Plaintiff’s brief; he notes: 1) Dr. Long, opined that the Plaintiff’s urinary frequency could be
caused by his syrinx; 2) Peter M. Staats, M.D. also opined that the Plaintiff’s syrinx could be
the cause of some of the Plaintiff’s urinary dysfunction; and 3) a urodynamic study conducted
on February 18, 2009 showed decreased bladder compliance.
Plaintiff’s counsel avers
Plaintiff’s urinary frequency and syrinx provide objective support for the existence and
potential pathology of the Plaintiff’s urinary dysfunction. In that regard, the ALJ does
acknowledge Plaintiff’s syrinx in several areas of the opinion, but relies on the reports of
various doctors that seem to indicate that Plaintiff’s syrinx is not disabling 2. For example, the
ALJ cites to the July 13, 2009 report of Dr. Long where it was found that Plaintiff had a clearcut syrinx at the T5 through T8 levels for which he referred him to a neurologist rather than
suggesting surgery. Plaintiff followed up with Peter Staats, M.D. two weeks later, and it was
Dr. Staat’s opinion that the syrinx could cause some urinary dysfunction, but only
recommended medication (Lyrica).
In conclusion, the ALJ relied substantially on the above opinions of Plaintiff’s treating
physicians to find that Plaintiff’s urinary frequency did not result in disability. Interestingly,
Plaintiff presented the same symptoms to Dr. Bunch in 1987, and he continued to work for the
next twenty years with the urinary frequency issues.
With regard to Plaintiff’s back and neck impairments and other spinal pathology,
Plaintiff argues that they are far more extensive than the ALJ’s step two finding, wherein the
ALJ found that Plaintiff had a severe impairment of degenerative disease of the back, and
congenital lumbar stenosis, but failed to find any cervical spondylosis or seronegative
The criteria for establishing disability due to Syringomyelia appears at Listing 11.19 of
the “Listing of Impairments” located in 20 C.F.R. § 404, Subpart P, Appendix 1. No party
argued that the listing applied. According to listing 11.19, a claimant is found to be disabled if
the syringomyelia is accompanied by a) significant bulbar signs; or b) if there is disorganization
of motor function as described in listing 11.04(B). Paragraph B of Listing 11.04 (central nervous
system vascular accident) reads: significant and persistent disorganization of motor function in
two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and
station (see 11.00C). Although neither party argues same, there is no evidence in the record of
Plaintiff’s impairments rising to the level to meet the criteria for disability due to syringomyelia.
spondyloarthropathy. To the contrary, the ALJ relied on the May 22, 2008 report of Deborah
Alpert, M.D., Ph.D. wherein she concluded “although there may be a historical inflammatory
component of his low back pain, on examination and imaging, there was no evidence of
ankylosing spondylitis or other spondyloarthopathy and if there was indeed a component of
seronegative spondyloarthropathy, it was mild.” This conclusion is in line with the results of
the diagnostic testing.
Lastly, Plaintiff argues that the ALJ erred in his credibility determination wherein the
ALJ found that Plaintiff’s alleged limitations appeared exaggerated compared to the objective
medical evidence of record. As noted above, Plaintiff’s responses to the Adult Function
Report at the onset of his case indicate that his daily activities included reading paperwork,
news and emails, driving to the doctor or to the store to shop, walking around neighborhood,
and exercising and stretching. (R. 287). He prepares three meals per day, does light yard
work four times a year; and one load of laundry per week and some vacuuming, sweeping and
moping despite his back pain. He can walk, drive and ride in a car. In addition he can pay
bills and manage a checking and saving account. He can pay attention for about an hour; he
can following instructions; and he gets along well with authority figures. He is able to handle
stress, albeit it, not as well as he used to. (R. 294). 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). And, 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).
The court’s sole inquiry is whether the record, read as a whole, yields such evidence as
would allow a reasonable person to accept the conclusions reached by the Commissioner.
Even where evidence is susceptible of more than one rational interpretation, it is the
Commissioner’s conclusions which must be upheld. Sample v. Schweiker, 694 F. 2d 639, 642.
The court also reviews the record and the ALJ’s decision to make certain that the ALJ did not
ignore or fail to resolve a conflict created by countervailing evidence. Daring v. Heckler, 727
F. 2d 64, 70 (3d Cir. 1984). Plaintiff asserts that the ALJ selectively reviewed the evidence.
To the contrary, the ALJ’s opinion made reference to the opinions of more than a dozen
doctors, none of whom opined that Plaintiff was disabled. One report which was not
mentioned by the ALJ was the report of Dr. Bunch, a rheumatologist, who examined Plaintiff
in 1987. Dr. Bunch’s opinion is of little help to Plaintiff’s case because he opined that “the
amount of symptomology is out of proportion with what we find on physical examination.”
Moreover, the ALJ analyzed many of the diagnostic reports and more than adequately
explained his rationale for his findings. When looking at the record as a whole, there is no
evidence of any selective finding of fact or conclusions of law. The ALJ’s decision is based
on substantial evidence. 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); Sykes v. Apfel, 228 F. 3d 259.
266 n. 9 (3d Cir. 2000). The decision of the Commissioner is affirmed, and the complaint is
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.
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