HERMAN v. COMMISSIONER OF SOCIAL SECURITY
Filing
16
OPINION filed. Signed by Judge Joel A. Pisano on 12/31/2013. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
:
:
Plaintiff,
:
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v.
:
:
CAROLYN W. COLVIN, Acting
:
Commissioner of Social Security,
:
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Defendant.
:
____________________________________:
CARYN HERMAN,
Civil Action No. 12-6640 (JAP)
OPINION
PISANO, District Judge.
Plaintiff Caryn Herman (“Plaintiff”) appeals the denial of her disability insurance
benefits by the Acting Commissioner of Social Security, Carolyn W. Colvin (the
“Commissioner” or “Defendant”). The Court has jurisdiction to review this matter pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3). This Court decides these matters 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 April 21, 2009, Plaintiff filed an application for disability benefits with the Social
Security Administration, which denied her initial request and her request for reconsideration.
The Plaintiff then filed for a hearing before an Administrative Law Judge (the “ALJ”), which
occurred on March 8, 2011. On March 22, 2011, the ALJ issued an opinion denying Plaintiff’s
request for disability benefits. Subsequently, Plaintiff sought review of the ALJ’s decision by
the Appeals Council. On August 29, 2012, the Appeals Court concluded that there were no
grounds for such review. Thus, the ALJ’s decision became the final decision of the
Commissioner of the Social Security. Thereafter, Plaintiff then instituted the present action in
this Court on May 2, 2012, challenging the Commissioner’s final ruling denying her claim for
benefits on the grounds that the ALJ’s decision was not supported by substantial evidence.
II.
Background
Plaintiff was born on March 14, 1981 in Perth Amboy, New Jersey. R. 27. Plaintiff is a
high school graduate who began working for Menlo Worldwide Logistics in April 2008. She
originally began working through Miller Logistics, a temp agency, but then was hired directly
through the company. R. 27, 80. Plaintiff worked as an inventory clerk, and worked in the
warehouse picking orders and doing inventory. R. 28, 122-23, 163. This job involved a lot of
standing and walking, as well as driving machines such as forklifts, hi-lows, and other small
vehicles inside the warehouse. R. 28. She would lift cement bags as much as 40-75 pounds, but
would frequently lift things that weighed about 10-25 pounds. See R. 28, 92, 123. From about
2006 to 2007, she worked a similar job for another distribution company that eventually went out
of business. R. 28, 122, 163. While working there, she was almost always standing, and mainly
picked orders. R. 29. While working, she would lift and carry up to about twenty pounds, but
often carried lifted up to ten pounds. R. 29, 124.
On the morning of January 8, 2009, Plaintiff was driving to work when a truck driving
next to her stopped. Plaintiff wound up hitting the wheels of another truck, causing part of her
car to go under the truck. R. 30. Plaintiff was taken to Robert Wood Johnson University
Hospital for a concussion and scalp laceration that required staples. R. 250-64. Plaintiff then
underwent several CT scans. A CT scan of her abdomen showed ovarian cysts and bilateral
spondylolysis on the L5 vertebrae with minimal anterolisthesis of L5 on S1. R. 259. A CT scan
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of her cervical spine showed no evidence of acute fracture or subluxation, and indicated normal
cervical alignment with maintained vertebral body and disk space height. R. 257-58. A CT scan
of Plaintiff’s head revealed no evidence of acute intracranial injury or bony fracture, but did
evidence soft issue swelling of the right face and right temporal scalp. See R. 167-75, 250-64.
After the accident, Plaintiff came into the care of Dr. Joseph S. Lombardi. Dr. Lombardi
initially evaluated Plaintiff on January 21, 2009 for right-sided neck, mid-back, and low-back
pain, as well as right knee pain and rib pain on both sides of the ribs. R. 30. Plaintiff’s bilateral
rib pain and lower back pain was the worst. She told Dr. Lombardi that walking, standing,
bending, lying, and lifting made her back pain worse. Dr. Lombardi’s examination of Plaintiff
revealed moderate tenderness and stiffness, with a limited range of motion in the cervical and
lumbar spine, and pain and muscle spasms. Specifically, the range of motion of the cervical
spine included 35 degrees flexion with pain, 25 degrees extension with pain, and right and left
lateral flexion to 25 degrees with pain. Plaintiff’s range of motion of the lumbar spine included
30 degrees flexion with pain, and 10 degrees extension with pain. Plaintiff’s exam also showed
positive straight-leg raising with axial back pain at 45 degrees, and positive medial and lateral
joint line tenderness and ecchymosis in the right knee. Dr. Lombardi diagnosed Plaintiff with
lumbar sprain/strain, cervical sprain/strain and cervicalgia, closed fracture of rib fractures,
internal derangement of the right knee, knee contusion on the right, a tear or sprain of the medial
collateral ligament (MDL) on the right, and a left elbow contusion. R. 330-33.
Dr. Lombardi ordered a whole body bone scan for the Plaintiff, which occurred on
February 6, 2009 and showed that Plaintiff had nine rib fractures. R. 336, 340. Dr. Lombardy
also ordered an MRI of Plaintiff’s right knee and an EMG of the bilateral lower extremities. An
MRI of the lumbar spine on May 29, 2009 revealed L5-S1 anterolisthesis. Plaintiff underwent
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EMG and nerve conduction studies on May 20, 2009 that revealed left S1 radiculopathy. See R.
348-49. On July 20, 2009, Plaintiff underwent a CT scan of the lumbar spine which confirmed
lytic spondylolisthesis at the L5-S1 level with bilateral foraminal stenosis. R. 356-57, 409.
At a June 2, 2010 examination for mid-back and low back pain with bilateral leg pain
with numbness, Plaintiff reported that her main problem is the numbness in her left leg.
Plaintiff’s range of motion of the cervical spine was now within the normal limits. Her range of
motion of the lumbar spine remained the same as it did when Plaintiff first was examined by Dr.
Lombardi, with a 30 degrees flexion with pain, and 10 degrees extension with pain. See R. 39798. Plaintiff’s results from Dr. Lombardi’s examination of her on July 14, 2010 (the last recoded
evidence of her examinations from Dr. Lombardi) reveal the same results from June, except that
her straight leg test on the left now produced pain at 60 degrees on the left. R. 401-04.
In February 2009, Plaintiff went to Central Medical Group and met with Dr. Howard
Cohen. She was placed in a holter monitor for 24 hours, which indicated some trace mitral valve
regurgitation and some sinus arrhythmia. Eventually, Plaintiff was diagnosed with shortness of
breath, palpitations, mitral valve disorder, chest pain, and fractured ribs. R. 239-247.
On July 29, 2009, Plaintiff underwent a consultative examination conducted by Dr.
Ronald Bagner. Plaintiff complained of pain in the lower back, pain in the sternum, pain in the
mid-back, and throbbing in her head from where she had stables. R. 275. The physical
examination showed that Plaintiff “ambulates with an antalgic gait, gets on and off the
examining table with moderate difficulty, and dressed and undressed without assistance. She is
uncomfortable in the seated position during the interview, does not use a cane or crutches, and
can heel and toe with moderate difficulty.” R. 276. Dr. Bagner concluded that Plaintiff was
suffering from lumbar radiculopathy. However, other than positive legal raising and ambulating
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with an antalgic gait, the physical examination revealed no significant abnormalities. Plaintiff
showed a normal flexion/extension, lateral flexion, and lateral rotation in her cervical spine. She
had no motor or sensor abnormalities in her upper extremities, and showed a normal range of
motion. Dr. Bagner noted that Plaintiff refused to voluntarily attempt movement of her lower
back. She had no motor or sensory abnormalities in her lower extremities, and she had no
muscle atrophy in her lower extremities. R. 275-76. Plaintiff underwent x-rays of her chest and
thoracic spine at this time, which demonstrated that Plaintiff’s chest and thoracic spine were
normal. R. 279.
To treat Plaintiff’s pain, Dr. Lombardi ordered physical therapy and prescribed certain
pain medications. Eventually, he scheduled lumbar epidural steroid injections. R. 345, 357.
Due to complications with her insurance, Plaintiff eventually began going to chiropractic care
instead of physical therapy. R. 397; R. 420-439. Surgery was considered as an option, but Dr.
Lombardy wanted to wait to see if Plaintiff responded to physical therapy and other conservative
options first. See R. 404. On December 22, 2009, Plaintiff started visiting the University
Medical Center at Princeton Outpatient Clinic for gastroesophageal reflux, back pain, anxiety,
and a rash. R. 462. Plaintiff was eventually placed on Prozac for her anxiety issues. R. 444.
III.
Standard of Review
A reviewing court must uphold the Commissioner’s factual determinations if they are
supported by “substantial evidence.” 42 U.S.C. §§ 405(g); 1383(c)(3); Sykes v. Apfel, 228 F.3d
259, 262 (3d Cir. 2000). Substantial evidence is “more than a mere scintilla. . .but may be less
than a preponderance.” Woody v. Sec’y of Health & Human Servs, 859 F.2d 1156, 1159 (3d Cir.
1988). Substantial evidence “does not mean a large or considerable amount of evidence, but
rather such relevant evidence which, considering the record as a whole, a reasonable person
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might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565
(1988) (citation omitted). The inquiry is not whether the reviewing court would have made the
same determination, but rather whether the Commissioner's conclusion was reasonable. Brown
v. Bowen, 845 F. 2d 1211, 1213 (3d Cir. 1988).
On review, a court must read the evidence in its entirety, “tak[ing] into account whatever
in the record fairly detracts from its weight.” Schonewolf v. Callahan, 972 F. Supp. 277, 284
(D.N.J. 1997) (internal quotation omitted). In order for the reviewing court to determine if the
administrative decision is based on substantial evidence, the ALJ must provide “some
explanation…when s/he has rejected relevant evidence or when there is conflicting probative
evidence in the record.” Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981); Gober v. Matthews,
574 F.2d 772, 776 (3d Cir. 1978). A court is bound by the ALJ’s findings that are supported by
substantial evidence “even if [it] would have decided the factual inquiry differently.” Hartranft
v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). A court, however, cannot “weigh the evidence or
substitute its conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182
(3d Cir. 1992) (citing Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir. 1984)).
IV.
APPLICABLE LAW
1.
The Five-Step Analysis for Determining Disability
To be eligible for disability insurance benefits (“DIB”), 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 or 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 person is disabled for these purposes only if his physical and mental
impairments are “of such severity that he is not only unable to do his previous work, but cannot,
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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).
The Social Security Administration has established a five-step process for determining
whether a claimant is disabled. See 20 C.F.R. § 404.1520. For the first two steps, the claimant
must establish both (1) that she has not engaged in “substantial gainful activity” (SGA) 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(b)-(c). Because the claimant bears the
burden of establishing these two requirements, a failure to meet this burden automatically results
in the denial of benefits, ending the court’s inquiry. Bowen v. Yuckert, 482 U.S. 137, 146-47 n. 5
(1987) (delineating the burdens of proof at each step of the disability determination); Plummer v.
Apfel, 186 F.3d 422, 428 (3d Cir. 1999). These first two steps “involve threshold determinations
that the claimant is not presently working, and has an impairment which is of the required
duration and which significantly limits his ability to work.” Williams, 970 F.2d at 1180.
In the third step, the medical evidence of the claimant’s impairment compared to a list of
impairments presumed severe enough to preclude gainful work. 20 C.F.R. § 404.1520(d). If the
claimant’s impairment either matches or is equal to one of the listed impairments, he qualifies for
benefits. Conversely, “[i]f a claimant does not suffer from a listed impairment or its equivalent,
the analysis proceeds to step four and five.” Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999).
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”) before proceeding
onto the fourth stage. 20 C.F.R. § 404.1520(a)(4), (e). A claimant’s RCF is “that which an
individual is still able to do despite the limitations caused by his or her impairment(s).”
Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999) (citing 20 C.F.R. § 404.1545(a)). “In
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making a residual functional capacity determination, the ALJ must consider all evidence before
him. Although the ALJ may weigh the credibility of the evidence, he must give some indication
of the evidence which he rejects and his reason(s) for discounting such evidence.” Burnett v.
Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000).
At the fourth step of the analysis, the Commissioner must analyze whether the claimant’s
RCF sufficiently permits her to resume her past relevant work. 20 C.F.R. § 404.1520(e)-(f). The
burden remains on the claimant to show that she is unable to perform her past work. See
Plummer, 186 F.3d at 428 (citing Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994)). If the
claimant is capable of returning to her previous line of work, she is not “disabled” and the
inquiry goes no further.
If, however, the claimant is unable to return to her former occupation, the evaluation
moves to the fifth and final step. At this stage, the burden shifts to the Commissioner, who now
must demonstrate that the claimant is capable of performing other substantial, gainful work in
order to deny a claim of disability. 20 C.F.R. § 404.1520(f). The ALJ must show there are other
jobs existing in significant numbers in the national economy which the claimant can perform,
consistent with her medical impairments, age, education, past work experience, and RFC. The
ALJ must analyze the cumulative effect of all the claimant's impairments in determining whether
she is capable of performing work and is not disabled. See 20 C.F.R. § 404.1523. If the
Commissioner cannot satisfy this burden, then the plaintiff is entitled to disability benefits.
Yuckert, 428 U.S. at 146-47 n.5.
2.
The Record Must Provide Objective Medical Evidence
Under Title II of the Social Security Act, a claimant is required to provide objective
medical evidence in order to prove his disability. See 42 U.S.C. § 423(d)(5)(A). Consequently,
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a plaintiff cannot prove that she is disabled based on solely her subjective complaints of pain and
other symptoms. See Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (“Allegations of pain
and other subjective symptoms must be supported by objective medical evidence.”); Green v.
Schweiker, 749 F.2d 1066, 1069-70 (3d Cir. 1984). (“[S]ubjective complaints of pain, without
more, do not in themselves constitute disability.”). Rather, a plaintiff must provide medical
findings that show that she has a medically determinable impairment. 42 U.S.C. §§ 423(d)(1)(A);
Green, 749 F.2d at 1069-70.
Furthermore, a claimant's symptoms, “such 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). See Hartranft, 181 F.3d at 362 (rejecting claimant's
argument that the ALJ failed to consider his subjective symptoms when the ALJ had made
findings that his subjective symptoms were inconsistent with objective medical evidence and the
claimant's hearing testimony); Williams, 970 F.2d at 1186 (denying claimant benefits where
claimant failed to proffer medical findings or signs that he was unable to work). While
complaints of pain must be considered in addition to objective facts and medical opinions,
complaints that are disproportionate to the medical evidence may be deemed not credible.
Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974); Hartranft, 181 F.3d at 362.
V.
THE ALJ’S DECISION
On March 8, 2011, a hearing was held before ALJ Richard L. DeSteno, at which Plaintiff
testified. R. 13. In a written opinion dated March 22, 2011, the ALJ applied the five-step
analysis to the facts from the record and determined that Plaintiff was not entitled to disability
insurance benefits because the Plaintiff had not been under a disability from January 8, 2009
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through the date of the opinion. The ALJ found that Plaintiff satisfied the first step of the
analysis because she had not engaged in substantial gainful activity since January 8, 2009, the
alleged onset date. Moving to step two, the ALJ concluded Plaintiff had satisfactorily showed a
severe impairment involving spondylolithesis of the lumbar spine with lumbar strain and
foraminal stenosis. The ALJ noted that Plaintiff claimed to suffer from depression, irritable
bowel syndrome, and severe impairments affecting her feet and knees, but concluded that the
objective medial evidence “does not substantiate that any of these conditions resulted in greater
than slight or minimal limitations in performing basic work activities.” R. 15.
At step three, the ALJ concluded that Plaintiff’s impairment did not meet or medically
equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ
compared Plaintiff’s spondylolithesis to Section 1.04—disorders of the spine. The ALJ found
that Plaintiff’s condition did not meet the listing because “the evidence does not demonstrate
‘herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the
cauda equina) or the spinal cord’ along with the requirements in subsections A, B, or C.” R. 15.
Before reaching step four, the ALJ concluded that Plaintiff has the residual functional
capacity for lifting and carrying objects weighing up to 10 pounds, sitting for up to six hours, and
standing and walking for up to two hours in an eight-hour day. The ALJ further concluded that
the Plaintiff has the residual functional capacity to perform a full range of sedentary work. R.
15. The ALJ found that the claimant had no significant non-exceptional limitations. Specifically,
the ALJ determined, after reviewing all of the evidence in the record, that Plaintiff’s “medically
determinable impairments could reasonably be expected to cause some of the alleged symptoms;
however, the claimant’s statements concerning the intensity, persistence and limiting effects of
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these symptoms are not credible to the extent that they are inconsistent with the above residual
functional assessment.” The ALJ found that the subjective complaints of pain by Plaintiff were
not supported by the objective clinical and diagnostic test findings, which “chronicled only
slightly-diminished limitations of motion, tenderness and muscle spasm in the cervical and
lumbar spine, and mild sensory deficits with good motor strength in all extremities.” R. 18.
There was also no muscle atrophy, or motor or sensory abnormality in the lower extremities, or
any significant spinal canal stenosis, neural foraminal stenosis, and no evidence of cord
compression or impingement. Id. The ALJ stressed that that Plaintiff was treated with
conservative methods, and that clinical examinations have not shown any deterioration in her
condition. Id.
In analyzing step four, the ALJ found that Plaintiff was unable to perform her past
relevant work as a general warehouse worker and a magazine picker because she is limited to
sedentary exertional work. Id. Finally, at step five, the ALJ considered Plaintiff’s age,
education, work experience, and RFC and found that jobs existed in significant numbers in the
national economy that Plaintiff can perform. Therefore, based on the RFC for the full range of
sedentary work, and considering her age, education, and work experience, the ALJ concluded
that Plaintiff was not disabled, as defined in the Social Security Act, from January 8, 2009
through the date of his decision. Id. at 19.
VI.
DISCUSSION
Plaintiff raises several challenges to the ALJ’s decision. First, she argues that the ALJ
did not properly evaluate the medical evidence because: (1) the ALJ failed to give proper
credence to the Plaintiff’s subjective complaints of pain or mental impairments, Pl.’s Br. 13; and
(2) the ALJ improperly ignored medical evidence indicating muscle weakness and a worsening
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of Plaintiff’s condition, id. at 14. Plaintiff further argues that the ALJ’s conclusion regarding
Plaintiff’s RFC was not supported by substantial evidence because the ALJ did not evaluate all
relevant evidence and did not explain his assessment of the credibility of the medical evidence
that contradicted his residual functional capacity finding. Id. at 15-16, 18.
1.
The ALJ Properly Evaluated the Medical Evidence
A.
Substantial Evidence Supports the ALJ’s Findings as to Plaintiff’s
Subjective Complaints
After conducting a thorough review of the medical evidence of record, R. 13-20, the ALJ
concluded that although Plaintiff's medically-determinable impairments could reasonably
produce the symptoms she complained of, her statements regarding “the intensity, persistence
and limiting effects of her symptoms” were not entirely credible because they were not
consistent with the objective medical evidence. R. 18. Plaintiff contends the ALJ erred in so
finding because he did not give “proper credence” to her complaints of “chronic and severe pain,
numbness and limitation of motion and function, anxiety, headaches and chest pain and shortness
of breath.” Pl.’s Br. 13. Plaintiff also contends that the ALJ failed to take into account
Plaintiff’s medications as support for her allegations. Id. at 17.
Plaintiff argues that the ALJ failed to give proper credence to Plaintiff’s anxiety,
headaches, and chest pain/shortness of breath. Pl.’s Br. 13. However, the ALJ referenced head
and chest CT scans, which showed no abnormalities. The ALJ also referenced a whole body
scan that evidenced rib fractures. The ALJ also considered the headaches Plaintiff reported to
her doctors. The ALJ also noted that Plaintiff complained of anxiety and took Prozac. See R.
16-18. In making his conclusions, the ALJ specifically stated that he considered all the evidence
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when making his determination. R. 18. Therefore, Plaintiff did properly consider these mental
impairments.1
“Allegations of pain and other subjective symptoms must be supported by objective
medical evidence.” Hartranft, 181 F.3d 358, 362 (3d Cir. 1999) (citing 20 C.F.R. § 404.1529).
Complaints that are disproportionate with the medical evidence may be deemed not credible.
Baerga, 500 F.2d at 312; Hartranft, 181 F.3d at 362. Here, the ALJ concluded that Plaintiff had
a discernible medical condition that could reasonably cause the pain she complained of.
However, the ALJ thought that Plaintiff’s testimony about the extent of her pain was
exaggerated, and that Plaintiff could perform sedentary work despite her significant complaints
of pain. That ruling is clearly supported by substantial evidence in this record. The ALJ cited
specific instances where Plaintiff’s complaints about pain and other subjective symptoms were
inconsistent with the objective clinical and diagnostic test findings.
For example, the CT scans taken of Plaintiff’s head and cervical spine were normal
immediately after her accident, and later x-rays of her thoracic spine and chest were also normal.
See R. 279; R. 250-64. While early CT scans and later MRI studies of the lumbar spine
confirmed lytic spondylolisthesis with bilateral foraminal stenosis, there has been no evidence of
significant cord compression or impingement. R. 407-09, 417. A bone scan after the accident
did confirm nine fractured ribs, but there is no indication from the record that the fractures did
not heal. R. 168, 340.
The ALJ also referenced both Plaintiff’s treating orthopedist, Dr. Lombardi, and the
consulting examiner, Dr. Bagner. Dr. Lombardi reported that Plaintiff’s gait examination was
without abnormalities, and that Plaintiff had a full range of extremity motion, had full or near full
1
It also should be noted that the citations that Plaintiff has provided for these impairments fails to show that they
would be considered “disabling” because none of these impairments lasted continuously for twelve months. See 20
C.F.R. § 404.1509.
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strength (ranging from 4-5/5), and had mostly intact sensation. See R. 347-48, 355-56, 362-63,
366-67, 374-75, 380-81, 388-89, 393-94, 398-99, 402-03. Dr. Bagner, a consultative examiner,
recorded that Plaintiff did not use a cane or crutches to walk, could dress and undress
independently, and had a normal range of motion, reflexes, sensations, and strength. R. 276-78.
Plaintiff could also squat and walk on her heels and toes, albeit with some difficulty. R. 278. Dr.
Bagner noted positive straight leg raising in the supine position by Plaintiff, but this result was
not reproduced when Plaintiff was seated.2 Id.
The ALJ also emphasized the conservative methods by which Plaintiff was treated. The
record evidences treatment of pain medications, injections, and chiropractic treatment. R. 35860, 368-72, 382-86, 396, 420-39. The record also evidences that some of these treatments
appeared to help Plaintiff. While there is no record of Plaintiff’s physical therapy, she allegedly
went through at least some physical therapy sessions. While Dr. Lombardi considered surgery if
other conservative treatments did not work, Plaintiff never underwent surgery.
Contrary to Plaintiff's argument, the ALJ did not disregard Plaintiff's the fact that
Plaintiff took various medications in determining that her complaints of pain were not entirely
credible. See Pl.'s Br. 17. The ALJ discussed the medications Plaintiff was taking in his
decision. R. 17-18. Throughout his decision, the ALJ clearly considered and put significant
import to all of the treatment received by Plaintiff, including her injections, physical therapy,
chiropractic treatment and medications. Id.
Therefore, Plaintiff’s argument that the ALJ did not articulate an appropriate rational for
rejecting her testimony fails. The ALJ found that Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of her symptoms were not consistent with the relatively minimal
2
Plaintiff also argues that the ALJ failed to consider all of Dr. Bagner’s positive findings. See Pl.’s Br. 13.
Plaintiff, however, extracts one sentence from the ALJ’s decision and fails to note that the ALJ explicitly stated the
full extent of the positive findings from Dr. Bagner’s examination. See R. 17.
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clinical findings and her conservative treatment. While Plaintiff argues that the ALJ should have
been bound to find her credible because her treating doctors reported her symptoms to be
credible, Plaintiff has failed to show any evidence in which any doctor made a credibility
judgment regarding her allegations of pain. Furthermore, the ALJ did accept Plaintiff’s claims of
pain, but only rejected her claims regarding the degree to which this pain limited her. See R. 15,
18. An ALJ can exercise his discretion when evaluating “the credibility of a claimant and to
arrive at an independent judgment in light of medical findings and other evidence regarding the
true extent of the pain alleged by the claimant.” LaCorte v. Bowen, 678 F. Supp. 80, 83 (D.N.J.
1988). The ALJ properly did so here.
B.
The ALJ Properly Found No Evidence of Any Deterioration in
Plaintiff’s Condition
Plaintiff argues that substantial evidence does not support the ALJ’s finding that
“[d]espite her complaints of increased pain and symptomatology, physical examinations have not
shown any clinical evidence of any deterioration of [Plaintiff’s] condition.” R. 17-18.
Specifically, Plaintiff argues that Dr. Lombardi’s examinations of Plaintiff “have showed the
muscle weakness and a worsening of her condition which the Administrative Law Judge states is
missing from the record.” Pl.’s Br. 14. To prove this point, Plaintiff points to certain language
in one of Dr. Lombardi’s most recent notes. Id. Plaintiff’s argument, however, is misplaced.
Plaintiff’s argument cites to her own self-reported symptoms of pain and Dr. Lombardi’s
speculation regarding possible future treatment options. The ALJ emphasized that the physical
examinations of Plaintiff by Dr. Lombardi did not show any deterioration of her condition. The
record substantiates this finding by the ALJ, as a review of the first few and last few of Dr.
Lombardi’s findings from his examinations of Plaintiff show almost no significant changes. In
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fact, the last few examinations show improvements in Plaintiff’s range of motion of the cervical
spine, which now was within the normal limits and on her straight leg raising tests. Compare R.
397-98, 401-04 with R. 330-33. Accordingly, the ALJ’s determination that the Plaintiff’s
condition had not deteriorated is supported by substantial evidence.
C.
There is Substantial Evidence to Support the ALJ's Residual Functional
Capacity Determination
Plaintiff argues that the ALJ's decision regarding her residual functional capacity was not
supported by the medical evidence. Pl.'s Br. 16, 18. When determining an individual's residual
functioning capacity, the ALJ must consider all relevant and medical evidence. 20 C.F.R.
§404.1545(a)(3). Here, the Court finds that substantial evidence supports the ALJ's finding that
Plaintiff retained the RFC was a full range of sedentary work.
Plaintiff argues that there is “no objective medical findings to support the Administrative
Law Judge’s feeling that the plaintiff was able to perform sedentary work” and that the ALJ
substituted his opinion for that of a medical expert by relying on “isolated statements from a
doctor’s report while ignoring the remainder of the report supporting plaintiff’s disability.” Pl.’s
Br. 15. A review of the ALJ’s decision shows this to be a meritless argument. The ALJ’s
determination was not based upon a “feeling”; rather, the ALJ did a thorough review and
comprehensive analysis of the record. See R. 16-18. The ALJ cited both diagnostic and clinical
findings, stressing the findings of good motor strength with no muscle atrophy or motor or
sensory abnormality, and only slightly-diminished limitation of motion by Plaintiff. See R. 18.
Furthermore, the ALJ relied in large part, although not entirely, on an assessment done by Dr.
Isabella Rampello, M.D. R. 280-87. Dr. Rampello assessed Plaintiff’s functional abilities and
concluded Plaintiff was capable of sedentary work within the normal confines of the workplace.
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R. 287. Pursuant to the relevant regulations, state agency medical consultants are “highly
qualified physicians…who are also experts in Social Security disability evaluation.” 20 C.F.R. §
416.927(f)(2)(i). Accordingly, while not bound by findings made by reviewing physicians, the
ALJ is to consider those findings as opinion evidence, and is to evaluate them under the same
standards as all other medical opinion evidence. 20 C.F.R. § 416.927(f)(2)(ii).
During the RFC stage of these proceedings, the claimant carries the dual burdens of
production of evidence and persuasion of what the evidence shows. See Yuckert, 482 U.S. at 146
n.5. Plaintiff, however, fails to point to any legal or medical authority for her proposition that
the medical record is inconsistent with sedentary work. As discussed, the only doctor to render a
functional assessment of Plaintiff was Dr. Rampello. Plaintiff has provided no contrary findings.
Plaintiff argues that the ALJ’s finding regarding the RFC is “contrary to the opinions of the
treating and examining physicians who found restrictions in the plaintiff’s ability to walk, stand,
bend, lie down and lift without increased pain.” Pl.’s Br. 18. Plaintiff, however, only cites to her
own statements of pain from the notes of Dr. Lombardi for this assertion. See Pl.’s Br. 18 (citing
R.191). Plaintiff further asserts that the ALJ disregarded the findings of Dr. Bagner that
described Plaintiff as being uncomfortable while sitting. Id. (citing R. 274-79). The ALJ,
however, discussed the findings of Dr. Bagner in their entirety. See R. 17-18. Therefore, there is
substantial evidence to support the ALJ’s RFC finding.
Plaintiff also argues that the ALJ failed to explain his assessment of the credibility of the
medical evidence and opinions from Plaintiff’s treating doctors which contradicted the RCF.
Pl’s Br. 16. Plaintiff, however, fails to identify any conflicting medical opinions in the record.
The only doctor who assessed Plaintiff’s functionality was Dr. Rampello, and her assessment
provided for limitation consistent with sedentary work. See R. 287. In fact, in making his RFC
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determinations, the ALJ cited extensively to Dr. Lombardi’s examinations. See R. 17-18. An
ALJ “must adequately explain his 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)). However,
[h]ere, there is no conflict in the evidence that would require the administrative
law judge to explain why he was accepting certain evidence and rejecting other
evidence. To the contrary, the administrative law judge's opinion appropriately
discussed the sequential evaluation process. The administrative law judge
examined the various medical opinions and used the information and evidence
presented therein to support his conclusions. He thus considered all the relevant
medical sources in the record.
Wisniewski v. Comm'r of Soc. Sec., 210 F. App’x. 177, 179 (3d Cir. 2006). Thus, because the
record lacks any evidence that contradicts the RCF, the ALJ’s assessment of the medical
evidence was proper.
VII.
CONCLUSION
For the foregoing reasons, the Court concludes that substantial evidence supports the
ALJ’s determination that Plaintiff is not disabled. Therefore, the final decision of the
Commissioner is affirmed. An appropriate Order accompanies this Opinion.
/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge
Dated: December 31, 2013
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