FLUDD v. COMMISSIONER OF SOCIAL SECURITY
Filing
11
OPINION filed. Signed by Judge Joel A. Pisano on 12/9/2013. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
_______________________________
JASON D. FLUDD,
:
:
Plaintiff,
:
:
v.
:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of Social
:
Security,
:
:
Defendant.
:
_______________________________
Civil Action No. 12-6537
OPINION
PISANO, District Judge:
Presently before the Court is the Appeal of Jason D. Fludd (“Plaintiff”) from the final
decision of the Commissioner of the Social Security Administration (“Commissioner”) denying
his request for Supplemental Security Income (“SSI”) and 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 Federal Rule of Civil Procedure 78.
For the reasons set forth below, the Court finds that the record contains substantial evidence
supporting the Administrative Law Judge’s (“ALJ”) decision and therefore, affirms the final
decision of the Commissioner.
I. PROCEDURAL HISTORY
Plaintiff filed an application for Title II DIB and Title XVI SSI on March 4, 2008,
alleging disability and an inability to work beginning on September 22, 2007, due to a fracture of
the spine. R. 32. The Social Security Administration denied his claims both initially and on
reconsideration. Upon Plaintiff’s request, a hearing was held before an ALJ. On March 11,
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2010, the ALJ issued a written decision denying the Plaintiff’s claims. On August 16, 2012, the
Appeals Council denied Plaintiff’s request for review and the ALJ’s decision became the final
decision of the Commissioner. Subsequently, Plaintiff appealed the decision to this Court.
II. BACKGROUND
Plaintiff was born on March 28, 1984. R. 59. During the eight (8) years prior to his
alleged disability, Plaintiff worked as a short-order cook in New Jersey. R. 141. Plaintiff lives
with his spouse and has two children ages eight (8) and five (5), one of whom also lives with
Plaintiff. R. 119. On September 22, 2007, Plaintiff was involved in a car accident where he
sustained a T12 fracture and required a posterior laminectomy and fusion from T9-L2, which was
performed on September, 25, 2007.
R. 199.
After his surgery, Plaintiff was ultimately
discharged home and did not have a formal therapy program. Id.
On November 7, 2007, Plaintiff was examined by Doctor Zerbo who indicated that, at that
point, Plaintiff was “doing well.” R. 197. Doctor Zerbo further noted that Plaintiff’s incision
was well healed and the neurologic and vascular status of his extremities appeared stable and
intact. Id. The overall impression of Doctor Zerbo at Plaintiff’s appointment was that it was an
“uncomplicated healing status” and the plan was to continue having Plaintiff wear a brace until
Plaintiff could be reevaluated in six weeks for new x-rays. Id.
Plaintiff’s next appointment occurred on January 3, 2008, where Doctor Zerbo indicated
that Plaintiff was “doing very well.” R. 196. Doctor Zerbo again concluded that Plaintiff’s
incision was “well healed” and the “[n]eurovascular status to the extremities [was] stable and
intact.” Id. Further, Doctor Zerbo stated that the x-rays taken at Plaintiff’s appointment revealed
a “stable position of his fracture as well as stable internal fixation.” Id. The records from
Plaintiff’s appointment demonstrate that Plaintiff was not taking any pain medication except for
over the counter Tylenol and, during the appointment, Doctor Zerbo wrote Plaintiff a prescription
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for Ultram. Id. Ultimately, Doctor Zerbo’s impression of Plaintiff was, again, that it was an
“uncomplicated healing status” and the plan was to get Plaintiff out of his back brace to start him
in a formal physical therapy program. Id.
On March 13, 2008, Plaintiff went for his third follow up appointment where Doctor
Zerbo observed that Plaintiff’s progression was somewhat slow due to his failure to start formal
physical therapy as a result of issues concerning Plaintiff’s insurance. R. 195. On examination,
however, Doctor Zerbo noted that again, Plaintiff’s incision was well healed, the neurovascular
status to his extremities was stable and intact, his gait was stable, and that Plaintiff had no
tenderness to touch in the lumbar spine.
Id.
Further, Plaintiff did not require any pain
medication. Id. Doctor Zerbo suggested that Plaintiff return in one (1) month for new x-rays. Id.
It appears as though Plaintiff went several months without a Doctor’s appointment, until
October 30, 2008, when Plaintiff saw Doctor Napolitano for a consultative exam. R. 199.
Plaintiff’s records indicated that at this time, he was still not on pain medication and was taking
Extra Strength Tylenol three (3) times per day. Id. Doctor Napolitano’s impression of Plaintiff
was that he “demonstrates an overall steady gait with the use of a cane” and that “his strength was
overall intact.” R. 200. Doctor Napolitano further noted that Plaintiff did have “sensory changes
of the left anterior thigh and decreased range of motion of the lumbosacral spine.” Id. Further,
the development summary worksheet prepared by the state agency soon after Plaintiff’s
consultative appointment indicated that in November, 2008, Plaintiff claimed that he used a cane
to protect himself because he had a fear of falling, but it was for a feeling of security and not
medical necessity. R. 210-11.
Nearly one (1) year passed before Plaintiff consulted another physician and on October
15, 2009, he visited Doctor Okonkwo at the Monmouth Family Health Center. R. 223. Doctor
Okonkwo indicated that Plaintiff was complaining of chronic back pain and told the physician
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that he could not sit or stand for a long period of time. R. 224. Doctor Okonkwo prescribed
Plaintiff Flexeril for the pain, noted that there were no lingering issues from a kidney stone
previously suffered by Plaintiff1, and advised Plaintiff on a low salt diet due to elevated blood
pressure. R. 225.
III. STANDARD OF REVIEW
A reviewing court must uphold the final decision of the Commissioner if it is supported
by “substantial evidence.” 42 U.S.C. § 405(g); 1383(c)(3); Morales v. Apfel, 225 F.3d 310, 316
(3d. Cir. 2000). In order for evidence to be “substantial,” it 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 inquiry is not whether the reviewing court would have made the same determination, but
whether the Commissioner’s decision was reasonable given the record before him. Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
The reviewing court must review the evidence in its entirety. Daring v. Heckler, 727 F.2d
64, 70 (3d. Cir. 1984). As part of this review, the court “must take into account whatever in the
record fairly detracts from its weight.” Schoenwolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J.
1997) (quoting Willibanks v. Sec’y of Health and Human Servs., 847 F.2d 301, 303 (6th Cir.
1988)). The Commissioner has an obligation to facilitate the court’s review: when the record
shows conflicting evidence, the Commissioner “must adequately explain in the record his reasons
for rejecting or discrediting competent evidence.” Brewster v. Heckler, 786 F.2d 581, 585 (3d
Cir. 1986).
Additionally, the reviewing court is not empowered to weigh the evidence or
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Plaintiff’s appeal does not involve any allegations of a disability resulting from his kidney stone. Therefore, the
Court need not go into factual detail on the medical history of Plaintiff’s kidney stone.
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substitute its conclusions for those of the fact finder. Early v. Heckler, 743 F.2d 1002, 1007 (3d
Cir. 1984).
A. Establishing Disability
In order to be eligible for DIB benefits, a claimant must demonstrate an “inability 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 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). The
statute also requires that an individual will be determined to be under a disability only if his
physical and mental impairments are “of such severity that [he] is not only unable to do [his]
previous work, but cannot, considering [his] 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).
To determine disability, the Social Security regulations set up a five-step sequential
evaluation process for the Commissioner to use. 20 C.F.R. § 404.1520. If a finding of disability
or non-disability can be made at any point in the sequential analysis, the Commissioner will not
review the claim further. 20 C.F.R. § 404.1520(b). At the first stage, the Commissioner must
determine whether the claimant has engaged in any substantial gainful activity since the onset of
the alleged disability. Id. If the claimant has not engaged in any substantial gainful activity, step
two requires the Commissioner to consider whether the claimant has a “severe impairment” or
“combination of impairments” which significantly limits his physical or mental ability to do basic
work activities. 20 C.F.R. § 404.1520(c). The claimant bears the burden of establishing the first
two requirements of the evaluation, and failure to satisfy either automatically results in a denial of
benefits. Bowen v. Yuckert, 482 U.S. 137, 146-47 n.5 (1987).
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If the claimant satisfies the first two steps, the third step requires that he provide evidence
that his impairment is equal to or exceeds one of those impairments listed in Appendix 1 of the
regulations (“Listing of Impairments”). 20 C.F.R. § 404.1520(d). Upon such a showing, he is
presumed to be disabled and is automatically entitled to disability benefits. Id. If the claimant
does not have a listed impairment, the Commissioner will evaluate and make a finding about the
claimant’s Residual Functioning Capacity (“RFC”). 20 C.F.R. § 404.1520(a)(4), (e).
The fourth step of the analysis focuses on whether the claimant’s RFC permits him to
perform past relevant work. 20 C.F.R. § 404.1520(e). A claimant’s RFC is defined as the level at
“which an individual is still able to do despite the limitations caused by his or her impairments.”
Id. If the plaintiff is found to be capable of returning to his previous line of work, then he is not
disabled and therefore not entitled to disability benefits. Id.
Conversely, if the Plaintiff is unable to perform the work of his previous job, the final step
requires the Commissioner to consider the RFC along with the plaintiff’s age, education, and past
work experience to determine if he can do other work in the national economy. 20 C.F.R. §
404.1520(g).
The burden shifts to the Commissioner to demonstrate that the Plaintiff can
perform other substantial gainful work. 20 C.F.R. § 404.1520(f). If the Commissioner cannot
satisfy this burden, the plaintiff is entitled to and will receive Social Security benefits. Yuckert,
482 U.S. at 146-47 n.5.
B. Objective Medical Evidence
Under Title II of the Social Security Act, a plaintiff is required to provide objective
medical evidence in order to prove his disability. 42 U.S.C. § 423(d)(5)(A). Moreover, a plaintiff
cannot prove that he is disabled based exclusively on his subjective symptoms. Green v.
Schweiker, 749 F.2d 1066, 1069-70 (3d. Cir. 1984). Subjective complaints of pain, without more,
do not in themselves constitute disability. Id. In order for the plaintiff to be awarded benefits, he
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must provide medical findings that show that he has a medically determinable impairment. 42.
U.S.C. § 423(d)(1)(A).
IV. THE ALJ’S DECISION
On February 4, 2010, a hearing was held before ALJ Dennis Katz in White Plains, New
York, at which Plaintiff testified. R. 44. In a written opinion dated March 11, 2010, the ALJ
denied Plaintiff’s claim for DIB and SSI, concluding that he was not disabled at any time from
September 22, 2007, the alleged onset date, through the date of the opinion. R. 37.
After looking over all of the evidence in the record, the ALJ concluded that Plaintiff met
the insured status requirements of the Social Security Act through September 30, 2013. R. 33.
The ALJ then proceeded to the five-step sequential analysis pursuant to 20 C.F.R. § 404.1520. R.
32. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from
September 22, 2007. R. 33. During step two, the ALJ determined that Plaintiff’s back disorder
constituted a severe impairment. Id.
With respect to step three, the ALJ concluded that Plaintiff did not have an impairment or
combination of impairments that met or was equivalent in severity to one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 34. Thus, the ALJ proceeded to
evaluate Plaintiff’s RFC. In order to satisfy this part of the evaluation, the ALJ engaged in a twopart inquiry: (i) whether there was an underlying medically determinable physical impairment,
that could be shown by medically acceptable clinical and laboratory diagnostic techniques, and
that could reasonably be expected to produce the claimant’s pain or symptoms; and (ii) evaluating
the intensity, persistence, and limiting effects of the claimant’s pain and symptoms to determine
the extent to which they limit his functioning, and in the event that these aspects of the claimant’s
symptoms are not substantiated by the objective medical evidence, the ALJ was to make a finding
on the credibility of the statements based on a consideration of the entire record. Id.
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In performing this analysis, the ALJ considered all of Plaintiff’s medical records,
subjective statements, good work history, and overall demeanor. The crux of the ALJ’s analysis
focused on whether Plaintiff’s pain or symptoms were credible and/or supported by the objective
medical evidence. The ALJ conducted its analysis chronologically, beginning with Plaintiff’s
initial appointments with Doctor Zerbo, who found that the claimant’s healing had no
complications, Plaintiff did not require pain medications, that there were medical improvements
post-surgery. R. 34. Next, the ALJ reviewed the records from Plaintiff’s October 30, 2008,
appointment with Doctor Napolitano. There, the ALJ found that his physical examination was
within normal limits, and although he did evidence some sensory changes in the left anterior
thigh and decreased range of motion of the lumbosacral spine, Plaintiff’s straight leg raise was
inconsistent because he claimed no pain in the sitting position. Id. Further, with or without an
assistive device for balancing, Plaintiff was observed to be able to walk on all surfaces for half of
a block while carrying something, and the x-rays showed normal alignment. R. 34-35. Thus, as
noted by the ALJ, Doctor Napolitano assessed the claimant to have minimal physical limitations
and suggested that his surgery was successful. R. 35.
The ALJ next considered the November, 2008 Physical Residual Functional Capacity
Assessment performed by a state agency reviewer, who opined that that the claimant could only
carry up to ten (10) pounds, sit for about six (6) hours, and walk with a cane for at least two (2)
hours in an eight (8) hour work day. Id. The ALJ specifically noted, however, that he gave
minimal evidentiary weight to this evaluation because it was not made a physician, was not based
on an actual examination of the claimant, and was not consistent with Doctor Napolitano’s actual,
physical examination which was performed merely weeks before the date of this assessment. Id.
Further, the ALJ noted that Doctor Napolitano’s earlier examination was consistent with the fact
that the claimant had not required significant medical attention since his surgery, which occurred
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more than a year prior to the state reviewer’s assessment. Id. The ALJ also analyzed Doctor
Okonkwo’s records from Plaintiff’s October, 2009 appointment, but gave little evidentiary weight
to this physician’s analysis because he relied only on the subjective statements made by Plaintiff
and did not perform any objective testing relevant to Plaintiff’s claims in the present case. Id.
Despite this, the ALJ pointed out that the records from Plaintiff’s appointment with Doctor
Okonkwo still showed that Plaintiff was only in “mild pain.” Further, these records revealed the
lack of need for medical attention for an entire year from Doctor Napolitano’s assessment until
Doctor Okonkwo’s appointment, which reconfirmed the analysis that claimant enjoyed
substantial medical improvement since his surgery. Id.
The ALJ further analyzed Plaintiff’s subjective symptomatology and overall credibility as
well as the location, duration, frequency and intensity of his symptoms, plus his daily activities,
medication and functional limitations/restrictions. Id. The ALJ noted minimal difficulties in
Plaintiff’s ability to sit throughout the hearing, and stated that Plaintiff’s testimony that he was
rendered homebound and required a cane as a result of his impairment appeared exaggerated and
not supported by the medical record. Id. Specifically, the ALJ noted that no physician had been
advised of such a debilitation, and there was further no evidence that any physician prescribed
Plaintiff to use a cane after calendar year 2007. Id. Rather, any post-2007 references to a cane
were subjective statements by Plaintiff to the physician(s), but there was no evidence that any
Doctor informed Plaintiff that use of the cane was medically necessary. Overall, the ALJ found
that Plaintiff’s subjective complaints were not corroborated by the objective medical evidence,
and the intensity, persistence, and functionally limiting effects of his symptoms did not preclude
Plaintiff the ability to perform basic work-related activities. Id. Thus, before reaching step four,
the ALJ concluded that the medical evidence established that Plaintiff has the RFC to perform a
full range of sedentary exertion level work. R. 36.
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In analyzing step four, the ALJ concluded that Plaintiff is unable to perform any past
relevant work because a short order cook requires a medium level of exertion. Because Plaintiff
was unable to perform his past relevant work, the ALJ moved onto step five where he considered
the Plaintiff’s RFC along with his age, education, and work experience and determined if he
could do other work in the national economy in conjunction with the Medical-Vocational
Guidelines, 20 C.F.R. Part 404 Subpart P, Appendix 2. Id. Based on all of the evidence in the
record and the claimant’s age, education, and work experience, the ALJ concluded that the
Plaintiff was not disabled and was capable of making a successful adjustment to other work that
existed in the national economy. Id.
V. DISCUSSION
The Plaintiff contends in this Appeal that the ALJ’s decision erred in two ways. First, he
alleges that the ALJ’s RFC determination was not supported by substantial evidence because the
ALJ failed to consider non-exertional limitations which would have revealed that Plaintiff is
unable to perform a full range of sedentary work. Second, Plaintiff alleges that vocational
evidence was required at step five, and that the credibility evaluation was inadequate as a basis to
reject Plaintiff’s symptoms and limitations.
Plaintiff first argues that the ALJ erred in determining his RFC because the ALJ failed to
consider non-exertional limitations. Specifically, Plaintiff argues that the ALJ failed to take into
consideration the fact that he was unable to sit for long periods of time due to his back pain and
required a cane; therefore, Plaintiff claims that he could not perform a full range of sedentary
work. As mentioned above, for evidence to be deemed “substantial,” it 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). In
this case, the ALJ’s decision and more specifically his RFC determination was supported by
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substantial evidence. The ALJ’s determination took into consideration Plaintiff’s 2007 surgery,
his follow up appointments, and his subjective statements and complaints. Further, the ALJ
analyzed the treating physicians’ opinions and physical assessments of Plaintiff that took place
over a span of two (2) years from the date of Plaintiff’s surgery. The ALJ’s analysis included
what the Doctors had to say about Plaintiff’s recovery and how the Plaintiff described his pain,
his lack of need for pain medication, and what the x-rays showed. The ALJ also specifically
pointed out that none of the medical records supported the fact that Plaintiff needed a cane after
2007.
When going through the record, the ALJ gave little weight to the state agency reviewer’s
comments and Doctor Okonkwo’s assessment of Plaintiff. If the ALJ concludes that certain
testimony is not credible he must indicate the basis for that conclusion in the decision. Cotter v.
Harris, 642. F.2d 700, 705-706 (3d. Cir. 1981). In his decision, the ALJ pointed out that he gave
little weight to the November, 2008, state agency reviewer because the reviewer was not a
physician, did not actually examine the claimant, and was inconsistent with the medical evidence
performed only a few weeks prior by Doctor Napolitano. The ALJ further explained why he gave
little weight to Doctor Okonkwo’s October, 2009, records, indicating that this physician relied
solely on Plaintiff’s subjective statements and did not perform an actual physical assessment of
Plaintiff. The Third Circuit has made it clear that the ALJ is not bound by the opinion of a
treating physician when determining the residual functional capacity. Brown v. Astrue, 649 F.3d
193, 197 n.2 (3d. Cir. 2011). Additionally, under 20 C.F.R. §404.1527(d)(2) if the medical
opinion of a treating source is inconsistent with other substantial evidence in the record, the ALJ
may weigh the evidence. Therefore, the ALJ did not err by placing little weight on Doctor
Okonkwo’s assessment.
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Plaintiff further argues that the ALJ did not give sufficient weight to Plaintiff’s own
testimony.
Plaintiff asserts that his testimony surrounding the need for a cane, that he is
homebound as a result of his injuries, and cannot sit or stand for long periods of time evidence the
fact that he cannot perform a full range of sedentary work. Importantly, however, an ALJ must
give great weight to a claimant’s testimony only “when this testimony is supported by competent
medical evidence,” and an ALJ may “reject such claims if he does not find them credible.”
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999). In the ALJ’s opinion, he
expressly states that he has considered Plaintiff’s subjective testimony but that it appeared
exaggerated and was not supported by the medical evidence. Accordingly, the ALJ did not err in
declining to give great weight to Plaintiff’s testimony.
Next, Plaintiff claims that the ALJ erred because he relied solely on the Medical
Vocational Guidelines in step five where, instead, vocational expert testimony was needed.
Specifically, Plaintiff claims that where both exertional and non-exertional limitations exist,
vocational expert testimony is required. This Court agrees with Plaintiff’s legal conclusion, see
Claussen v. Chater, 950 F. Supp. 1287, 1298 (D.N.J. 1996) (“Directly applying the Grids to a
claimant with non-exertional limitations is improper”); however, disagrees with the application of
this law here. Rather, as explained above, the ALJ’s decision surrounding Plaintiff’s limitations
was supported by substantial evidence. The ALJ concluded that Plaintiff did not have any nonexertional limitations as the medical evidence supported the fact that Plaintiff can sit for a total of
eight (8) hours, sit/stand for four (4) hours, and complete an eight (8) hour work day; accordingly,
Plaintiff would not have difficulty performing the manipulative or postural functions of sedentary
work. In finding that the ALJ’s decision was supported by substantial evidence, vocational
expert testimony was not required. See Bailey v. Comm’r of Soc. Sec., 354 Fed. App’x 613, 619
(3d Cir. 2009).
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VI. CONCLUSION
For the foregoing reasons, the Court concludes that substantial evidence supports the
ALJ’s decision denying Plaintiff DIB and SSI benefits. Therefore, the Court affirms the final
decision of the Commissioner. An appropriate Order accompanies this Opinion.
/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge
Dated: December 9, 2013
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