BULLARA-FARLEY v. COMMISSIONER OF SOCIAL SECURITY
OPINION filed. Signed by Judge Joel A. Pisano on 10/31/2014. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAROLYN W. COLVIN,
Acting Commissioner of Social
Civil Action No. 12-7081
PISANO, District Judge:
Presently before the Court is an appeal by Linda Bullara-Farley (“Plaintiff”) from the
final decision of the Commissioner of the Social Security Administration (“Commissioner”)
denying her request for a Disability Insurance Benefits (“DIB”). The Court has jurisdiction to
review this matter pursuant to 42 U.S.C. §§ 405(g), 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 submitted an application for DIB on March 26, 2008, alleging disability from
October 15, 2005, through her date last insured of December 31, 2010, due to severe
neurological, orthopedic conditions, and obesity. Complaint (“Compl.”) at ¶¶ 4, 5, 6; Tr. 18.
The Commissioner denied her claims both initially and on reconsideration. Compl. at ¶ 8. Upon
Plaintiff’s request, a hearing was held before an Administrative Law Judge (“ALJ”). Compl. at ¶
8. On April 14, 2011, the ALJ issued a written decision denying Plaintiff’s claim. Tr. 18.
Plaintiff requested that the Appeals Council review of the ALJ’s decision; on September 19,
2012, the Appeals Council affirmed the ALJ’s denial and the ALJ’s decision became the final
decision of the Commissioner. Compl. at ¶ 8. Subsequently, Plaintiff appealed the decision to
Plaintiff was born on July 20, 1971, and has completed two years of community college.
Tr. 98. She lives with her husband, her mother, and her two children, who were born in 2005
and 2007. Tr. 33, 227. Plaintiff worked as a licensed insurance broker for sixteen years, and
managed a staff of one to two. Tr. 31, 98, 117. According to Plaintiff, her brokerage license has
expired and she is consequently currently unable to work an insurance broker. Tr. 32. Plaintiff
indicated that in this position she prepared insurance quotes for clients, which required her to
spend most of her time at her desk meeting in-person or talking on the phone with clients. Tr.
207. She further specified that the job required her to: walk for 1.5 hours a day; stand for 1 hour
a day; sit for 5.5 hours a day; handle, grab or grasp big objects for 4 hours a day, reach for 4
hours a day; and write, type or handle small objects for 4 hours a day. Tr. 208. She did not have
to climb, stoop, kneel, crouch, or crawl in this position. Tr. 18. According to Plaintiff, she
frequently lifted weight less than ten pounds, and never lifted weight heavier than twenty
pounds. Tr. 208.
Plaintiff indicated that she has experienced back pain since she was nine years old, and
had her first surgery when she was fourteen years old, in 1985. Tr. 31. In 2008, shortly after
Plaintiff gave birth to her second child, Plaintiff’s back pain flared up and she started visiting
doctors to address her symptoms, prior to having a second surgery in March 2008. Tr. 103. On
January 28, 2008, Plaintiff had three x-rays; the x-ray of the lumbosacral spine showed
narrowing of the disc space at the level of L5-S1 and L3-L4, status-post laminectomy at the level
of L5 and congenital malformation at the lateral aspect of L5 and the sacrum consistent with
bilateral sacralization. Tr. 293. Examination of the sacroiliac joints shows bilateral sacroiliac
sclerosis and suggests chronic diastasis. Tr. 293. An x-ray of the thoracic spine showed normal
results. Tr. 294. Last, an x-ray of the cervical spine showed a normal cervical spine. Tr. 295.
Soon after, on February 4, 2008, Plaintiff had an MRI of her lumbosacral spine, which showed:
grade II anterior spondyloisthesis at L5-S1; slight to mild compression in the ventral aspect of
the thecal sac by the postero-superior aspect of the body of S1; a diffuse annular bulge and
related osteophytic ridge transversing the interspinous space at the L4-L5 disc space level;
degenerative disc disease at the L2-L3 disc space level, together with facet and ligamentum
flavum hypertrophy, producing a moderate to severe lumber stenosis at the L2-L3 disc space
In 2008, Plaintiff began seeing Dr. Sean McCance at Lenox Hill Hospital for her
condition. Tr. 349. There, on February 12, 2008, she was examined for scoliosis and was
diagnosed with mild dextroscoliosis at T6 and anterolisthesis at L5-S1. Tr. 349. On February
21, 2008, Plaintiff had a CT scan of the lumbar spine, which indicated lumbar stenosis. The scan
showed: exuberant posterior bony fusion mass at L3-S1; calcified central disc protrusion with
posterior hypertrophic change, causing severe canal stenosis at L2-L3; L5 vertebral body
displacement anteriorly and inferiorly in comparison to S1; heterogeneous 1.6 cm lesion within
the right kidney. Tr. 352.
On March 10, 2008, Plaintiff went into surgery again and had a lumbar fusion to address
back pain, leg pain, and spinal imbalance. Tr. 311, 370. There were no complications during the
procedure, which included posterior lumbar interbody fusion (PLIF), transforaminal lumbar
interbody fusion (TLIF), laminectomy, and fusion with iliac crest bone graft (ICBG) and
instrumentation above L4-S1. Tr. 309. Following the surgery, Plaintiff went to see Dr.
McCance on March 25, 2008, for a follow-up appointment. Tr. 370. Dr. McCance indicated that
“[o]verall, [Plaintiff] is recovering well from her lumbar surgery.” Tr. 370. Furthermore, while
Plaintiff continued to complain of some numbness and paresthesias in the lateral thighs and
bilateral buttocks, “[s]he states her standing posture is better, and she feels straighter . . . . She
denies any lower extremity weakness and states she is able to ambulate inside for about 20
minutes and sit and stand for 20 minutes.” Tr. 370. Upon examination, Dr. McCance stated that
she showed a normal gait pattern and that her “lumbar active range of motion is within functional
limits;” furthermore, her bilateral extremity motor and neurologic exam were normal. Tr. 370.
A March 14, 2008, CT pulmonary angiogram did not show any central filling defects
from the main pulmonary outflow tract to the proximal lobar branches. Tr. 322. A March 14,
2008, test of the anteroposterior and lateral spine showed accentuated lumbar lordosis and
osteitis condensans ilii. Tr. 322. In a General Medical Report from May 1, 2008, Dr. McCance
wrote that Plaintiff was “[d]oing well but totally disabled at this time.” Tr. 367. When asked
about Plaintiff’s ability to do work related activities, Dr. McCance stated that Plaintiff could: lift
and carry 10 pounds or less, stand and/or walk less than 1 hour, sit for 1 hour, and push and/or
pull 10 pounds or less, with no other limitations. Tr. 368.
Progress Notes from Upper East Side Medicine, P.C. from April 17, 2008, through April
29, 2009, indicate that Plaintiff was being prescribed pain medication despite feeling better since
the fusion surgery, due to mild back pain, burning pain in the thighs, and numbness, among other
symptoms. Tr. 384-89. On May 5, 2008, Dr. McCance stated in an Office Notes that Plaintiff
was overall “coming along nicely,” with improved posture, strengthening legs, minimal preoperative spine pain, and no pre-operative left leg numbness and pain, despite some left thigh
symptoms when walking long distances such as numbing and burning. Tr. 362. He further
described Plaintiff’s ability to sit comfortably, sleep comfortably, stand in good balance, walk
with a normal gait, and use good posture. Tr. 362. Dr. McCance’s opinions were supported by
testing done the same day. While an x-ray to evaluate scoliosis showed a mild dextrocurvature
to the thoracic spine with the apex at T6 and exaggeration of the normal lumbar lordosis
indicating scoliosis, it also showed postoperative changes of the lower spine, no compression
fracture and no spondylolisthesis. Tr. 347. Similarly, an x-ray of the lumbosacral spine showed
that hardware and alignment were in adequate position and no spondylolisthesis fracture,
although there were laminectomy defects and sclerosis at the SI joints bilaterally. Tr. 348.
Subsequently, Dr. McCance referred Plaintiff to Dr. Carasca for a neurological examination,
which was performed on May 20, 2008, and revealed mild decreased sensation over the S1
dermatomes with slightly depressed ankle DTR’s, but otherwise unremarkable results. Tr. 324.
Examinations from June 6, 2008, showed similar results. A scoliosis x-ray indicated
laminectomy defects and what seemed to be anterior placement of L5 on S1. Tr. 346. A spinal
x-ray showed no changes in the exaggeration of the lumbar lordosis, and no acute fracture,
dislocation or subluxation. Tr. 345. Dr. McCance wrote again on Plaintiff’s conditions on
August 5, 2008, explaining again that Plaintiff was overall recovering well from surgery. Tr.
360. Dr. McCance wrote that Plaintiff herself stated that: she felt stronger, straighter, and more
stable in her back; her thoracic pain was a 3/10 during the day but could reach 9/10 at night and
in the mornings; she was taking Percocet and Ultram for pain control; she still had some
numbness in her left thigh, but it was 10% better than before; she did not have paresthesias or
weakness in bilateral lower extremities; she was able to ambulate for thirty minutes to one hour
with some thigh burning symptoms, stand for thirty minutes, and sit for thirty minutes. Tr. 360.
Dr. McCance’s physical examination showed that Plaintiff had a normal gait pattern, normal
bilateral lower extremity motor and neurologic exam, and normal limit of all planes in lumbar
active range of motion. Tr. 360.
On October 16, 2008, Dr. McCance filled out a Passive Range of Motion Chart regarding
Plaintiff for the New Jersey Division of Disability Determination Service. Tr. 357-59. He
indicated that Plaintiff was walking at a reasonable pace, that she was not using a handheld
assistive device, and that her muscle weakness was normal in both legs, but that she had some
sensory loss in her left thigh, had difficulty with bending, lifting, twisting activities. Tr. 358-59.
Soon after, on October 28, 2008, Dr. McCance reported in an Office Note that Plaintiff was able
to walk about a block, stand for about a half-hour, sit for up to an hour, stand straight and
independently, and walk with a normal gait pattern. Tr. 356. However, he also noted that
Plaintiff was having more difficulty walking at that time and had residual numbness in her left
thigh. Tr. 356. Overall, Dr. McCance stated, “Linda had been doing quite well, but appears to
be having a setback.” Tr. 356.
On October 30, 2008, Dr. Robert Walsh, a State Agency medical consultant, reviewed the
record to determine Plaintiff’s Residual Functional Capacity (sometimes referred to herein as
“RFC”). Tr. 328-35. He found that Plaintiff could: occasionally lift ten pounds; frequently lift
less than ten pounds; stand and/or walk for a total of at least two hours in an eight-hour workday;
sit (with normal breaks) for a total of about six hours in an eight-hour workday; push and/or pull
with all extremities. Tr. 329. Dr. Walsh indicated that RFC is sedentary, and supported these
conclusions with the following facts: strength was 5/5 in legs, reflexes were normal, sensation
was diminished left thigh, heel and toe and gait was normal. Tr. 329. He further stated that
Plaintiff could: climb ramps and stairs occasionally; climb ladders, ropes, and scaffolds never;
balance occasionally, stoop occasionally; kneeling occasionally; crouch never; crawl never. Tr.
330. Moreover, Plaintiff had no manipulative, visual, communicative, or environmental
limitations. Tr. 330. As a result, Dr. Walsh concluded that the severity of Plaintiff’s reported
symptoms was not proportionate to the medical evidence of record, and the ultimate effect of the
symptoms on function was not consistent with the medical evidence of record. Tr. 333. A DDS
Disability Worksheet note from October 30, 2008, explained that after the orthopedic review,
Plaintiff’s claim was denied, given that the strength in her legs was 5/5 and her reflexes,
heel/toe/gait were normal. Tr. 327. Although she had diminished sensation in her left thigh, she
was able to return to her past sedentary work as an office manager. Tr. 327.
Plaintiff was again seen at Lenox Hill hospital for testing on November 3, 2008. Tr.
336-42. A scoliosis x-ray showed preservation of thoracic and lumbar vertebral body heights, no
vertebral segmentation anomalies, slight pelvic tilt, and bilateral sacroilitis. Tr. 336. A
lumbosacral spine x-ray showed decreased bony mineralization, no scoliosis, no lumbar vertebral
compression fractures, intact hardware, disc space narrowing at L4-L5, grade 2 anterior
spondylolisthesis of L5 and S1, no instability, and bilateral sacroilitis. Tr. 336. A thoracic spine
CT showed intact and well-positioned hardware, bilateral sacroilitis, and a heterogeneous lesion
in the right kidney containing few course calcifications. Tr. 338. A lumbar spine CT showed
similar results to the thoracic spine CT, with the addition of a small fluid collection posterior to
the posterior elements of the lumbar spine. Tr. 339. An MRI of the thoracic spine showed
multiple small disk protrusions and minimal indentation of the ventral spinal cord at T4-5, T5-6,
T6-7. Tr. 341. An MRI of the lumbar spine showed fluid collection posterior to the posterior
elements from T12 inferiorly to the L3 level, no evidence of abnormal epidural enhancement or
collection, and no evidence of thecal sac compression or foraminal stenosis. Tr. 342.
On January 26, 2009, Plaintiff returned to Dr. McCance complaining of worsening back
pain. Tr. 375. On February 13, 2009, Dr. McCance filled out another Passive Range of Motion
Chart regarding Plaintiff for the New Jersey Division of Disability Determination Service. Tr.
354-55. His impressions did not change from those he stated on October 16, 2008. Tr. 357-59.
Plaintiff was walking at a reasonable pace and not using a handheld assistive device, her muscle
weakness was normal in both legs, but she had some sensory loss in her left thigh, and she was
advised to avoid excessive bending, lifting, twisting activities. Tr. 354-55. A DDS Disability
Worksheet detailed Plaintiff’s 2009 medical narrative, and concluded on June 23, 2009, that
Plaintiff had an orthopedic impairment in a case rated by a DDS doctor, and the prior RFS of
“03S” was thus affirmed. Tr. 375. It further states that Plaintiff is able to return to her prior
relevant work (“PRW”) as an insurance company Office Manager, which is considered sedentary
work with a specific vocational preparation (“SVP”) of 8, and thus the claim was denied. Tr.
In 2009, Plaintiff received several injections to address her symptoms. On April 29,
2009, Plaintiff received the first flouro-guided bilateral sacro-iliac joint injection for bilateral
buttock pain in a three-part series of injections. Tr. 383. On May 28, 2009, and June 26, 2009,
she received the second injection and third injections, accordingly. Tr. 381-82. On October 29,
2009, Plaintiff received a trigger point injection with local anesthetic and steroid for neck pain,
and a flouro-guided bilateral sacro-iliac joint injection for bilateral buttock pain. Tr. 378-79.
This was followed by an additional flouro-guided bilateral sacro-iliac joint injection for bilateral
buttock pain on December 3, 2009. Tr. 377. No complications were noted with any of these
injections. Tr. 377-79, 81-83.
In a September 24, 2010, Residual Functional Capacity Form, Dr. McCance detailed
Plaintiff’s chronic back pain and decreased lumbar range of motion, as well as her ability to: lift
and carry a ten to fifteen-pound maximum, walk only two blocks, stand and walk without
interruption for less than one hour, sit without interruption for thirty minutes, climb stairs
frequently, balance occasionally, stoop occasionally, crouch never, kneel never, crawl never, and
push or pull only ten pounds. Tr. 390-93.
Dr. McCance gives an overall perspective of Plaintiff’s medical history in a final Office
Note dated September 24, 2010. Tr. 394. She was seen for an initial evaluation on February 12,
2008, with complaints of “increased low back pain that radiated down into both legs with
numbness and tingling.” Tr. 394. She underwent extensive testing and ultimately underwent
surgery on March 10, 2008, from which she recovered well, with decreased pain and better
overall posture. Tr. 394. On October 28, 2008, Plaintiff returned to Dr. McCance with a “flareup of symptoms after doing increased activities and picking up her ten-month-old child.” Tr.
395. Studies showed no acute lesions, well-healed fusion, intact alignment of instrumentation,
and no infection. On April 3, 2009, Plaintiff returned to the office again “with persistent
complaints of bilateral buttock and SI pain that was 10/10 with flare-ups,” but x-rays showed
excellent alignment and healed fusion. Tr. 395. In response to these flare-ups, Plaintiff received
SI joint injections, and on August 13, 2009, she was seen for a three-phase bone scan with
SPECT CT “which demonstrated very inflamed and abnormal SI joints which seemed to be the
majority of her problem.” Tr. 395. Plaintiff indicated that her pain was persisting in a follow-up
visit, and she was advised that she could consider sacroiliac joint fusion, which she rejected at
the time. Tr. 395. Finally, Dr. McCance summarized that she was initially doing well after her
2008 surgery, but “over the years has developed persistent and chronic back pain and SI joint
inflammation. Up to this day, her symptoms are persistent and she is limited by her pain
syndrome. . . . She has tried multiple conservative measures such as physical therapy, injections,
and medications. She has difficulty ambulating, standing, or sitting for length of time. She is
only able to ambulate a few blocks, stand for 15 minutes, and sit for 30 minutes. [Plaintiff] is
limited by her symptoms and should avoid any excessive bending, twisting, or heavy lifting
greater than 10-15 pounds. At this point, she needs to continue with conservative measures for
chronic pain control.” Tr. 395.
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 explain clearly his or her 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 substitute
its conclusions for those of the fact finder. See Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir.
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 twelve 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 or
her physical and mental impairments are “of such severity that he [or she] is not only unable to
do his [or her] previous work, but cannot, considering his [or her] age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy.” 42 U.S.C. § 423 (d)(2)(A).
Social Security regulations detail a five (5)-step sequential evaluation process for
determining disability. 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(a)(4). First, the Commissioner must determine whether the claimant has
engaged in any substantial gainful activity since the onset of the alleged disability. 20 C.F.R. §
404.1520(a)(4)(i). Second, if the claimant has not engaged in any substantial gainful activity,
then the Commissioner must consider whether the claimant has a “severe impairment” or
“combination of impairments” which significantly limits his or her physical or mental ability to
do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii), (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).
Third, if the claimant satisfies the first two steps, then he or she must provide evidence
that his or her 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 or she 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).
Fourth, the Commissioner must determine whether the claimant’s RFC permits him or
her to perform past relevant work. 20 C.F.R. § 404.1520(e). A claimant’s RFC is defined as
“the most [an individual] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545. If
the claimant is found to be capable of returning to his or her previous line of work, then he or she
is not disabled and therefore not entitled to disability benefits. 20 C.F.R. § 404.1520(e)-(f).
Fifth, if the claimant is unable to perform the work of his or her previous job, the
Commissioner must consider the RFC along with the claimant’s age, education, and past work
experience to determine if he or she 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 claimant can
perform other substantial gainful work. 20 C.F.R. § 404.1520(f). If the Commissioner cannot
satisfy this burden, the claimant 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 claimant is required to provide objective
medical evidence in order to prove his or her disability. 42 U.S.C. § 423(d)(5)(A). Moreover, a
claimant cannot prove that he or she is disabled based exclusively on 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. at 1069-79. In order for the
claimant to be awarded benefits, he or she must provide medical findings to prove that he or she
has a medically determinable impairment. 42 U.S.C. § 423(d)(1)(A).
IV. THE ALJ’S DECISION
On April 8, 2011, a hearing was held before an ALJ in Newark, New Jersey. Plaintiff
testified at the hearing. Tr. 26. In a written opinion dated April 14, 2011, the ALJ denied
Plaintiff’s claim for DIB, concluding that Plaintiff was not disabled (as defined under the
relevant provisions) at any time from October 14, 2005, the alleged onset date, through
December 31, 2010, the date last insured. Tr. 22.
After analyzing the evidence in the record, the ALJ concluded that Plaintiff met the
insured status requirements of the Social Security Act through December 31, 2010. Tr. 18. The
ALJ then proceeded to the five-step sequential analysis pursuant to 20 C.F.R. § 404.1520. Tr.
18-22. At step one, the ALJ found that the Plaintiff had not engaged in substantial gainful
activity during the period from her alleged onset date of October 15, 2005, through her date last
insured of December 31, 2010. Tr. 18. At step two, the ALJ determined that through December
31, 2010, Plaintiff did have an impairment or combination of impairments that significantly
limited her ability to perform basic work-related activities for twelve consecutive months, and
thus had a severe impairment or combination of impairments. Tr. 18. Her severe impairments
included: status post spinal fusion surgery, chronic back pain, chronic bilateral sacroilitis, and
obesity. Tr. 18.
At step three, the ALJ determined that through December 31, 2010, Plaintiff did not have
an impairment or combination of impairments that met or medically equaled one of the
impairments listed in 20 CFR Part 404, Subpart P, Appendix 1. Tr. 18. The ALJ noted that
although Plaintiff had severe impairments, they were not supported by specific clinical signs and
diagnostic findings that are required to meet or equal the requirements identified in the listing of
impairments. Tr. 18. In his analysis, the ALJ noted that he evaluated obesity pursuant to SSR
02-01p guidelines, which state: “However, we will not make assumptions about the severity or
functional effects of obesity combined with other impairments. Obesity in combination with
another impairment may or may not increase the severity or functional limitations of the other
impairment. We will evaluate each case based on the information in the case record.” SSR 0201p; Tr. 19.
The ALJ next determined that through December 31, 2010, Plaintiff had the residual
functioning capacity to perform the full range of sedentary work as defined in 20 CFR
404.1567(a), although Plaintiff “cannot climb any ladders, ropes or scaffolds, crouch, kneel or
crawling, and can perform other postural functions only occasionally,” and cannot “sit for more
than 30 minutes consecutively or stand for more than 15 minutes consecutively without having to
change postures,” and “must avoid hazards and vibrations.” Tr. 19. Therefore, the ALJ
concluded, through December 31, 2010, Plaintiff was capable of performing past relevant work
as an office manager, and was thus not under a disability as defined by the Social Security Act.
Tr. 48. 20 C.F.R. 404.1520(c). Tr. 22.
In performing this analysis, the ALJ stated that he considered all symptoms and all
opinion evidence. Tr. 19. In considering the Plaintiff’s symptoms, the ALJ followed the
required two-step process. Tr. 19. First, the ALJ evaluated whether there were medically
determinable physical or mental impairments that could reasonably be expected to cause the
Plaintiff’s pain or other symptoms. Tr. 19. Here, the ALJ found that the Plaintiff’s medically
determinable impairments of status post spinal fusion surgery, chronic back pain, chronic
bilateral sacroilitis, and obesity could reasonably be expected to cause the Plaintiff’s pain or
other symptoms. Tr. 20.
Second, the ALJ evaluated the intensity, persistence, and limiting effects of Plaintiff’s
symptoms. Tr. 19. Here, the ALJ found that Plaintiff’s statements regarding the intensity,
persistence, and limiting effects of her symptoms were not credible to the extent that they were
inconsistent with the determined residual functional capacity assessment. Tr. 20. In reaching
this conclusion, the ALJ considered at length Plaintiff’s medical record, and concluded that
objective evidence does not support Plaintiff’s testimony of inability to work and deficiencies in
concentration. Tr. 20-22. Moreover, the ALJ notes that no doctor has reported that Plaintiff is
disabled or unable to work, and although she suffers some limitations from her impairments and
her capacity to perform work is affected, she retains the residual functional capacity to perform
sedentary work with some limitations. Tr. 21-22.
On appeal, Plaintiff contends that the ALJ erred in two ways. First, Plaintiff argues that
the ALJ erred in step three by finding that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the impairments listed in 20 CFR Part 404,
Subpart P, Appendix 1. In particular, Plaintiff argues that the ALJ failed to combine all of
Plaintiff’s severe impairments in comparing Plaintiff’s impairments against the listed
impairments set forth in 20 CFR Part 404, Subpart P, Appendix 1. However, the ALJ explicitly
stated that he did just that, finding, “the claimant did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.” Tr. 18 (emphasis added). The ALJ thus stated that he considered the
impairments in combination, and Plaintiff points to no reason to believe he did not do so.
Moreover, substantial evidence of record supports the ALJ’s determination at step three.
As the Commissioner notes, to satisfy the relevant listing 1.04C, Plaintiff was required to
demonstrate lumbar spinal stenosis, resulting in pseudoclaudication, manifested by chronic
nonradicular pain and weakness, and resulting in an inability to ambulate effectively. See
Plaintiff’s Brief at 21 (pointing to Listing 1.04C as the relevant listing). For Plaintiff to show
that her impairment meets this listing, the impairment must meet all of the specified medical
criteria of the listing. Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990). An impairment that
manifests only some of those criteria, no matter how severely, does not qualify. Id.
While, as Plaintiff points out, certain of the medical criteria of Listing 1.04C may have
been met, Plaintiff did not show that all of the required elements the listing were consistently
present throughout the relevant time period. As noted below, for example, medical records show
that Plaintiff often had no signs of neurological weakness and was able to ambulate normally.
In considering the relevant listing criteria, the ALJ discussed the findings of Dr. Andrei
Carasca, a neurologist, who examined Plaintiff on May 20, 2008, following her March 2008
spinal fusion surgery. Tr. 20, 324. As the ALJ explained, electromyography revealed only mild
lumbosacral stenosis. Id. A neurological examination on that date revealed only slightly
depressed ankle reflexes, and was otherwise unremarkable, without evidence of weakness. Id.
The ALJ also considered the treatment notes of Plaintiff’s orthopedist, Dr. Sean
McCance. Tr. 20-21. When Plaintiff saw Dr. McCance on February 12, 2008, before her lumbar
fusion surgery, a neurological examination was normal for all motor, sensory, and reflex
findings. Tr. 372. Plaintiff was able to rotate her hips without pain and although her posture was
stooped forward and she experienced pain with lumbar extension, her gait pattern was normal,
and heel and toe-walking remained intact. Id.
When Plaintiff again visited Dr. McCance on March 25, 2008, just after posterior lumbar
fusion surgery, she ambulated normally. Tr. 370. Plaintiff demonstrated a normal gait pattern,
as well as lumbar active range of motion within functional limits. Id. Motor and neurologic
examinations of Plaintiff’s legs were normal, and a straight leg raising test was negative. Id.
Likewise, on May 6, 2008, it was noted that Plaintiff stood with good balance and once
again walked with a normal gait. Tr. 362. Plaintiff’s posture was “quite good,” and she was able
to do heel and toe-walking. Id. A neurological examination revealed normal knee and ankle
reflexes. Id. Plaintiff’s sensation was generally intact, but she did have decreased sensation to
light touch in the left thigh. Id. Her SLR was negative. Id. She exhibited no weakness, as power
testing was normal (5/5) throughout Plaintiff’s legs. Id.
Dr. McCance’s records dated August 5, 2008 and October 28, 2008 similarly indicate that
plaintiff walked with a normal gait, SLR was negative, and motor and neurologic examinations
of Plaintiff’s legs were normal. Tr. 360.
Further, to the extent that Plaintiff argues that the ALJ did not appropriately account for
Plaintiff’s obesity, the Court finds such an argument to be without merit. The ALJ
acknowledged that increase the severity or functional limitations of another impairment, Tr. 19,
and expressly stated that he specifically considered Plaintiff’s obesity with respect to the listings.
Plaintiff points to nothing in the medical evidence that suggests actual limitations associated with
Plaintiff’s weight. Consequently, and in light of the evidence outlined above, the Court finds
that the substantial evidence supports the ALJ’s finding at step three.
Plaintiff next argues that substantial evidence does not support the ALJ’s RFC
determination and that the ALJ did not properly consider Plaintiff’s subjective complaints of
pain. Turning first to the ALJ’s consideration of Plaintiff’s complaints of pain, the Court finds
that the substantial evidence supports the ALJ’s conclusion that Plaintiff’s allegations with
respect to the intensity, persistence, and limiting effects of her symptoms were not entirely
credible to extent alleged.
Standing alone, a claimant’s subjective statement as to pain or other symptoms are not
conclusive evidence of disability; there must be evidence of the existence of a medical condition
that reasonably could be expected to produce the symptoms alleged that, considered with all the
evidence, demonstrates that Plaintiff is disabled. 20 C.F.R. § 404.1529(b); SSR 96-7p. Here,
because the symptoms alleged suggested greater functional restriction than was demonstrated by
objective medical evidence alone, the ALJ considered other evidence, such as Plaintiff’s daily
activities, the duration, frequency, and intensity of pain, precipitating and aggravating factors,
medication, and treatment. 20 C.F.R. § 404.1529(c)(3); SSR 96-7p. In considering Plaintiff’s
activities of daily living, the ALJ noted that Plaintiff was performing sedentary activities of daily
living. 20 C.F.R. § 404.1529(c)(3)(i); Tr. 21. For example, Plaintiff prepared meals, showered
and dressed independently, helped to dress her children, and she sat with her children for much
of the day, to read, watch television and movies, and do other indoor activities. Tr. 227, 230.
Further, the ALJ noted that Plaintiff stated that did not always take her pain medication,
which, notwithstanding Plaintiff’s assertion that she have developed a high tolerance for pain,
supports that ALJ’s finding that that Plaintiff’s statements regarding the intensity, persistence,
and limiting effects of her symptoms were not fully credible.
Similarly, substantial evidence supports that ALJ’s RFC determination that Plaintiff had
the RFC to perform the full range of sedentary work as defined in 20 C.F.R. 404.1567(a) with
the exception that she cannot climb ladders, ropes, or scaffolds, she cannot crouch, kneel or
crawl, can perform other postural functions only occasionally, must avoid hazards and vibrations
and, further, that Plaintiff cannot sit for more than 30 minutes consecutively or stand for more
than 15 minutes consecutively without having to change postures. In particular, there are the
records of Plaintiff’s treating physician, Dr. McCance. In addition to the medical findings
discussed above, the ALJ also noted that September 24, 2010, Dr. McCance completed a
Residual Functional Capacity Form in which he stated that Plaintiff could lift and carry 10-to-15
pounds, that she could stand and walk, without interruption, for less than an hour, and that she
could stand for 15 minutes at a time. Tr. 21, 391. Dr. McCance indicated no limitation as to the
total number of hours that Plaintiff could stand and walk during an 8-hour workday. Id. Dr.
McCance similarly stated that Plaintiff could sit without interruption for 30 minutes at a time,
and again indicated no limitation as to the total number of hours that she could sit throughout the
workday. Id. He stated that Plaintiff could frequently climb stairs, could occasionally balance
and stoop, could never crouch, kneel, or crawl, and should avoid moving machinery. Id. The
ALJ incorporated many of these limitations into his RFC determination.
The ALJ also considered the October 30, 2008 the opinion of the state agency’s medical
consultant Dr. Robert Walsh, who, based upon his review of the record found that Plaintiff
retained the ability to perform the demands consistent with sedentary work. Tr. 21, 329-32. Dr.
Walsh opined that Plaintiff could lift and carry 10 pounds occasionally and less than 10 pounds
frequently, sit for about 6 hours in an 8-hour workday, and stand and walk for about 2 hours in
an 8-hour workday. Tr. 329. He found that Plaintiff had an unlimited ability to push and pull, and
could occasionally climb ramps and stairs, balance, stoop, and kneel. Tr. 330. The ALJ
incorporated certain of these conclusions into his RFC findings.
Overall, based on a careful review of the record, the Court finds that substantial evidence
supports the ALJ’s decision in this case. The decision of the Commissioner, therefore, is
For the foregoing reasons, the Court concludes that substantial evidence supports the
ALJ’s decision denying Plaintiff disability insurance benefits. The Court affirms the final
decision of the Commissioner. An appropriate Order accompanies this Opinion.
Dated: October 31, 2014
/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge
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