TORRES v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

MEMORANDUM AND ORDER that the final decision of the Commissioner of social Security is affirmed and the Complaint is dismissed. Signed by Judge Peter G. Sheridan on 7/21/2014. (jjc)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DEBRA A. TORRES,
Civil Action No.: 13-cv-2000 (PGS)

Plaintiffs,

MEMORANDUM AND ORDER

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

SHERIDAN, U.S.D.J.
This matter is before the Court on the appeal of Plaintiff, Debra Torres from the decision
of the Commissioner of Social Security denying her a period of disability insurance benefits.
Disability is defined as the inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment or combination of impairments that can be
expected to result in death or that has listed or can be expected to last for a continuous period of
not less than 12 months. The issue is whether substantial evidence supports the Commissioner’s
decision that Plaintiff was not disabled from her alleged onset date of disability (May 29, 1999)
through the date last insured (March 31, 2000) (Time Period).
One aspect of the substantial evidence standard that arises here is whether Plaintiff has met
her burden of proof since the administrative record contains very little medical evidence of
Plaintiff’s alleged disabling impairments during the Time Period. There are x-rays and MRI
reports from 1994, and another set from 2009, neither of which are within the Time Period. During
oral argument, Plaintiff’s counsel conceded that the evidence was “thin”.

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I.
During the Time Period, Plaintiff was a 40 year old female (d/o/b 12/6/58), with a ninth
grade education. During the Time Period she worked as a delicatessen counter clerk at a Shop Rite
Supermarket, and prior to that, she worked as a home health aide, and as a lunch packer at a
grammar school. While working at Shop Rite, Plaintiff had back pain due to scoliosis. As a result,
her hours were cut from full time (38 hours), to 16 hours, then to 8 hours per week. Finally her
employment was terminated.
At the administrative hearing, Plaintiff testified about her health issues during the late
1990s. She testified that while at Shop Rite she “couldn’t stand on [her] feet for eight hours,” and
her lower back, arm and neck were “bothering” her when she was slicing lunch meat. Plaintiff
emphasized that her pain occurred “in the lower part of [her] back, middle and then the top of [her]
neck down;” and the pain was so intense she could not concentrate on what she was doing.
Plaintiff could lift about a half-gallon of milk; but had issues lifting loaves of lunch meat which
weighed approximately 17 pounds. She testified that she could only sit for about twenty minutes
before experiencing pain. Moreover, “using [her] arms and holding [her] arms up causes pain into
[her] neck.” Plaintiff testified that her back pain also affected her at home and that she “could not
stand . . . to do dishes . . . fold clothes . . . vacuum, [or] take the garbage downstairs.
Dr. German E. Malaret, a medical expert, testified at the administrative hearing. His review
of the medical records of Englewood Hospital from 1994 confirmed that Plaintiff suffered from
“thoracic vector scoliosis with a lumbar . . . scoliosis, in other words she has scoliosis in her back.
It has been there for many, many, many years . . .” Dr. Malaret described scoliosis as “curvature
of the back.” It “bends to the right in the thoracic area and then the lumbar area is going to be bent

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to the left, that’s – you’ve got an S shaped curve.” Dr. Malaret opined that based on the severity
of the scoliosis, Plaintiff could have performed light work during the Time Period. That is,
Plaintiff could have lifted 20 pounds for 2.5 hours per day and 10 pounds for about 5.0 hours per
day. In concluding same, his testimony was not crystal clear. For example, he testified as follows:
Q
So you're saying that . . . the marked scoliosis this patient has
and the problems she's complained of and apparently that doctors
were treating her for, that she could have lifted 20 pounds
throughout a -- basically three, two and a half to three hours a day,
and ten pounds the other six or five and a half to six?
A
Well, you know, it's -- 20 pounds occasionally, I don't know
how [INAUDIBLE) that would be.
Q

That's about two and a half hours a day, I believe.

A

And ten pounds, frequently carry ten pounds .

Q

For five hours a day?

A
Well, she's not going to be carrying five hours repeatedly,
that doesn't occur.
Q
Well, I didn't ask you if it occurred, sir, I asked you could
she do it, in your opinion.
A

Not persistently, not five hours consistently, no.

Q

Could she carry up to ten pounds up to three hours a day?

A
I have no idea, it all depends on her pain. I can't tell you. I
don't have any evidence to say yes or no. [INAUDIBLE] I can't tell
you. (T. 54-55).

Q.
Well, not to be argumentative, but you just told me she
could do light work or she could lift 20 pounds two and a half
hours a day and she could lift ten pounds the other five hours in
an eight hour day. That was your testimony, was it not?
A.

Yes it was.

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As Dr. Malaret notes, there is a lack of evidence about the extent of Plaintiff’s impairment upon
which to make a substantive determination of Ms. Torres’ alleged disability and her ability to
work.
Dr. Hector Puig, a vocational expert (VE), testified at the administrative hearing. Although
the VE asserts that Plaintiff could perform her past relevant work, he appears to have considered
other types of jobs as comparable light work. For example, Plaintiff was a deli counter clerk, a
home health aide and a lunch packer; but the VE compared Plaintiff’s prior work to short order
cook, a cashier, and a catering line assembly worker. The VE further opined that Plaintiff had “no
transferrable skills, and her work history moved from light to heavy.”

The VE concluded that

Plaintiff could have performed light work such as a short order cook, a cashier, or an assembly
line catering worker, but that Plaintiff could not perform the duties of a housekeeper or home
health aide. In addition, Dr. Puig found Plaintiff could perform those jobs requiring repetitive arm
movement (such as a meat slicer in a deli), but Plaintiff could only climb, stoop, crouch and kneel
occasionally.
II.

On July 8, 2011 the ALJ issued his decision finding that Plaintiff last met the insured
status requirements of the Social Security Act on March 31, 2000, and that she had not engaged
in substantial gainful activity during the period from her alleged onset date of May 29, 1999
through her date last insured of March 31, 2000. (20 CFR 404.1571 et seq.). He further found
that through the date last insured, Plaintiff had severe scoliosis, but the x-ray results only found
mild disco genic disease at L1-L2, and mild disc bulging at C5-C6 (20 CFR 404.1520(c)). The

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ALJ found that those impairments impose no more than a minimal limitation on the claimant's
abilities to perform any work related activity. (20 CFR 404.1521). As such, Plaintiff’s
impairment or combination of impairments did not meet or medically equaled one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and
404.1526).
More specifically, Listing 1.04 (musculoskeletal impairments) refers to disorders of the
spine resulting in compromise of a nerve root or the spinal cord. The listing requires that the
disorder be accompanied by one of three listed complications: evidence of nerve root
compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in pseudo claudication.
In this case, Dr. Malaret did not find such evidence in the 1994 x-ray and MRI.
The ALJ analyzed the case through the five-step sequential process for evaluating the
legitimacy of Plaintiff’s alleged disability. 20 C.F.R. § 404.1520. Most notably, relying on the
testimony of Dr. Malaret’s testimony, the ALJ found at step two, that Plaintiff had severe
impairments including scoliosis of the back. 20 C.F.R. § 404.1520(c). However, as noted above,
the ALJ determined that Plaintiff’s severe impairments did not match or equal a listed impairment
found in the listing of impairments. Burnett, 220 F.3d at 118-20. At step four, the ALJ determined
that Plaintiff retained the residual functional capacity to perform a “full range of light work”.” As
such, Plaintiff could carry 20 pounds occasionally, and 10 pounds frequently; sit for 6 hours in an
8 hour day, and stand and walk for 6 hours in an 8 hour day. In making this determination, the
ALJ determined that a medically determinable physical impairment existed (scoliosis) during the
Time Period. He then considered Plaintiff’s allegations regarding the intensity and persistence of

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her symptoms (i.e. there was no other medical treatment from 1994 through 1999). This evidence
led the ALJ to conclude Plaintiff could perform light work during the time period.
Finally, the ALJ found through the date last insured, Plaintiff was capable of performing
past relevant work as cashier, short order cook, and assembly line (catering service worker); but
not as a home health aide. These jobs required the performance of light work as Dr. Malaret opined
were within claimant's residual functional capacity (20 CFR 404.1565).
The ALJ stated several reasons for making his determination. First, the ALJ found that
there was a lack of objective medical evidence to support Plaintiff’s claims of total disability
during the Time Period 1. That is, the ALJ noted that Plaintiff was treated at Englewood Hospital
in 1994, but Plaintiff returned to work thereafter, and there is no other evidence of ongoing
treatment before or during the Time Period. In fact, the record was limited to diagnostic tests in
1994 and 2009. One test was five years before the end of the Time Period, and the other was about
a decade after the Time Period. The first record (November 9, 1994 x-ray) found vertebral bodies
in good alignment, no narrowing of the intervertebral disc spaces, and a mild straightening of the
lateral view probably due to muscle spasm. An MRI of the cervical spine also performed on
November 22, 1994, revealed a mild scoliosis with segmental visualization of the cervical spinal
canal and spinal cord, mild bulging disc at C5-6, C6-7, with no focal herniation and no cord
compression.
The second record (2009) was discounted by the ALJ due to its remoteness from the Time
Period. Furthermore, the ALJ discredited Plaintiff’s allegations about her symptoms because there
were no medical records of treatment during the Time Period, nor any statements from any

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As noted above, during oral argument before this Court, Plaintiff’s attorney called the evidence “thin”.

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physicians that Plaintiff had any limitations due to her scoliosis. In short, the ALJ gave greater
weight to the testimony of Dr. Malaret over the testimony of Plaintiff. Therefore, the ALJ found
Plaintiff could have performed light work, and she could have physically and mentally performed
the jobs of cashier, short order cook and assembly line catering service worker.
III.
A claimant is considered disabled under the Social Security Act if he is unable to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. § 423(d)(1)(A). A plaintiff will not be considered disabled unless he
cannot perform his previous work and is unable, in light of his age, education, and work
experience, to engage in any other form of substantial gainful activity existing in the national
economy. 42 U.S.C. § 423(d)(2)(A); see Sykes v. Apfel, 228 F.3d. 259, 262 (3d Cir. 2000); Burnett
v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 118 (3d Cir. 2000); Plummer v. Apfel, 186 F.3d 422,
427 (3d Cir. 1999). The Act requires an individualized determination of each plaintiff’s disability
based on evidence adduced at a hearing. Sykes, 228 F.3d at 262 (citing Heckler v. Campbell, 461
U.S. 458, 467 (1983)); see 42 U.S.C. § 405(b). The Act also grants authority to the Social Security
Administration to enact regulations implementing these provisions. See Heckler, 461 U.S. at 466;
Sykes, 228 F. 3d at 262. Such regulations include the five-step sequential process for evaluating
the legitimacy of a plaintiff’s disability. 20 C.F.R. § 404.1520 (this will be referred to later).
Review of the Commissioner’s final decision is limited to determining whether the findings
and decision are supported by substantial evidence in the record. 42 U.S.C. § 405(g). See Morales
v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

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Doak, 790 F.2d 26 at 28. Substantial evidence has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Hartranft, 181 F.3d at 360
(quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citation omitted)); see also Richardson
v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is less than a preponderance of the
evidence, but more than a mere scintilla. Richardson, 402 U.S. at 401; Morales, 225 F.3d at 316;
Plummer, 186 F.3d at 422. Likewise, the ALJ’s decision is not supported by substantial evidence
where there is “competent evidence” to support the alternative and the ALJ does not explicitly
explain all the evidence or adequately explain his reasons for rejecting or discrediting competent
evidence. Sykes, 228 F.3d at 266 n.9. The reviewing court must view the evidence in its totality.
Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). A single piece of evidence will not satisfy the
substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence
particularly certain types of evidence (e.g., that offered by treating physicians) - - or if it really
constitutes not evidence but mere conclusion. Morales, 225 F.3d at 316 (citing Kent v. Schweiker,
710 F.2d 110, 114 (3d Cir.1983)); see also Benton v. Bowen, 820 F.2d 85, 88 (3d Cir. 1987).
Nevertheless, the district court’s review is deferential to the ALJ’s factual determinations.
Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (en banc) (stating district court is not
“empowered to weigh the evidence or substitute its conclusions for those of the factfinder”). A
reviewing court will not set a Commissioner’s decision aside even if it would have decided the
factual inquiry differently. Hartranft, 181 F.3d at 360. But despite the deference due the
Commissioner, appellate courts retain a responsibility to scrutinize the entire record and to reverse

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or remand if the [Commissioner]’ s decision is not supported by substantial evidence. Morales,
225 F.3d at 316 (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)).
Title II of the Social Security Act, 42 U.S.C. § 401, et seq. requires that the claimant
provide objective medical evidence to substantiate and prove his or her claim of disability. See
20 CFR § 404.1529. Therefore, claimant must prove that his or her impairment is medically
determinable and cannot be deemed disabled merely by subjective complaints such as pain. A
claimant’s symptoms 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); Hartranft , 181 F.3d at 362. In Hartranft, claimant’s argument that the ALJ
failed to consider his subjective findings were rejected where the ALJ made findings that
claimant’s claims of pain and other subjective symptoms were not consistent with the objective
medical records found in the record or the claimant’s own hearing testimony.
Generally, Plaintiff has the burden to demonstrate that she is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment. Bagnato v. Commissioner of Social Security, 240 Fed. Appx 978, 979 (3d Cir. 2007).
Within the five step sequential process to determine whether a claimant is disabled, the claimant
bears the burden of proof in the first four steps, and the burden shifts to the Commissioner at step
five. Id. As the ALJ found, there was a lack of objective medical evidence to support Plaintiff’s
claims of total disability during the Time Period, especially since Plaintiff worked for several years
after the 1994 diagnosis of scoliosis. As such, Plaintiff failed to meet her burden of proof on steps
1 through 4 of the sequential process.

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An individual's statement as to pain or other symptoms shall not alone be conclusive
evidence of disability as defined in this section. There must be medical signs and findings,
established by medically acceptable clinical and laboratory diagnostic techniques, which show
the existence of a medical impairment that results from anatomical, physiological, or
psychological abnormalities, which could reasonably be expected to produce the pain or other
symptoms alleged and which, when considered with all evidence required to be finished under
this paragraph (including statements of the individual or his physician as to the intensity and
persistence of such pain or other symptoms which may reasonably be accepted as consistent
with the medical signs and findings), would lead to a conclusion that the individual is under
disability. Objective medical evidence of pain or other symptoms established by medically
acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue)
must be considered in reaching a conclusion as whether the individual is under a disability. 20
C.F.R. §§ 404.1529(a), SSR 96-7p.
The diagnostic tests put for as evidence in the case were as follows: A November 9,
1994 x-ray found vertebral bodies in good alignment, no narrowing of the intervertebral disc
spaces, and a mild straightening of the lateral view probably due to muscle spasm. It also revealed
scoliosis of the thoracolumbar spine with a maximum convexity on the right around T9, TlO level,
and mild degenerative changes at Ll-2. An MRI of the cervical spine performed on November 22,
1994, revealed a mild scoliosis with segmental visualization of the cervical spinal canal and spinal
cord, mild bulging disc at C5-6, C6-7, with no focal herniation and no cord compression. Based
upon that evidence, Dr. Malaret found Plaintiff could perform light work.

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Here, Plaintiff is attempting circumvent Plaintiff’s burden of proof problems by raising the
four relatively minor issues. Each issue is addressed below.
1)

Plaintiff argues that the ALJ’s finding that she can perform light work is contrary

to the opinion of Dr. Malaret. The Court disagrees. Dr. Malaret’s testimony is clear (R. 55):
Q.
Well, not to be argumentative, but you just told me she
could do light work or she could lift 20 pounds two and a half
hours a day and she could lift ten pounds the other five hours in
an eight hour day. That was your testimony, was it not?
A.

Yes it was.

Dr. Malaret may have waffled a bit on this response; but that was due to a lack of evidence
presented by Plaintiff. As Dr. Malaret, frustratingly concluded “I have no idea . . . I don’t have
any evidence . . . . “ (see page 3) . There is clearly a lack of medical evidence corroborating
the extent of the scoliosis and resulting pain.
2)

Plaintiff argues that the ALJ found that the VE determined Plaintiff could perform

five jobs when the record indicates that the VE found she could only perform three.
Plaintiff’s second argument is correct, but it is of unsubstantial consequence. That is, the
ALJ incorrectly found that Plaintiff could perform five jobs when the VE only discussed three
(short order cook, cashier and assembly line catering worker); but in his opinion, the ALJ only
found that Plaintiff could only perform the same three jobs as the VE determined, all of which are
categorized as light work. The mentioning of five rather than three jobs is a minor detail and as
such, there is no plain error.
3)

Plaintiff argues that the three jobs Plaintiff could perform were not past relevant

work, and therefore the ALJ should have undertaken step five of the sequential process.

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The Court disagrees. The ALJ considered her past relevant work as light work based on
Dr. Malaret’s testimony and compared it to cashier (semi-skilled light), short order cook (semiskilled, light) and an assembly line catering service worker (unskilled, light). The ALJ found
Plaintiff could have performed all three during the Time Period. Each of these jobs are listed
within the Dictionary of Occupational Titles.
4)

Plaintiff’s final argument is that the ALJ failed to consider that Plaintiff was

awarded Social Security Disability Insurance benefits in 2009, and that should be evaluated within
the proof.
During oral argument, Plaintiff’s attorney conceded that such an award has no evidential
impact on Plaintiff’s claim herein. Moreover, the ALJ did not consider the medical evidence from
2009 because it was remote – ten years after the Time Period. There is no reasonable argument
overcoming the ALJ’s ruling.

Conclusion
The Court’s sole inquiry is whether the record, read as a whole, yields such evidence as
would allow a reasonable person to accept the conclusions reached by the Commissioner. Even
where evidence is susceptible of more than one rational interpretation, it is the Commissioner’s
conclusions which must be upheld. Sample v. Schweiker, 694 F. 2d 639, 642. The Court also
reviews the record and the ALJ’s decision to make certain that the ALJ did not ignore or fail to
resolve a conflict created by countervailing evidence. Daring v. Heckler, 727 F. 2d 64, 70 (3d
Cir. 1984).

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As noted above, the case record only contains evidence dated prior to May 29, 1999, as
well as some evidence dated in 2009, long after Plaintiff’s last day of insured. The record
reflects no actual treatment for the alleged impairments during the Time Period.
The claimant's work history is also incompatible with the claimant's allegations of disabling
symptoms and limitations. There is evidence of scoliosis from 1994-1995, however, Plaintiff
continued working until l999, which indicates her condition did not prevent her from working, nor
does it appear that she sought any treatment or took any medications for her pain. Despite her
testimony that the cause for lack of treatment was due to economic hardship, the ALJ found the
facts make her testimony less than credible. The ALJ has discretion to evaluate the credibility of
Plaintiff’s complaints and draw a conclusion based upon medical findings and other available
information. Jenkins v. Commissioner, 2006 U.S. App. Lexis 21295 (3d Cir. 2006). And, inasmuch
as the ALJ had the opportunity to observe the demeanor and determine the credibility of Plaintiff,
the ALJ’s observations on these matters must be given great weight. See Wier v. Heckler, 734 F.
2d 955, 962 (3d Cir. 1984).
The ALJ’s decision is based on substantial evidence. 42 U.S.C. § 405(g). See Morales
v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999);
Sykes v. Apfel, 228 F. 3d 259. 266 n. 9 (3d Cir. 2000). The decision of the Commissioner is
affirmed, and the complaint is dismissed.

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ORDER
This matter having come before the Court on Plaintiff’s appeal of the Commissioner of
the Social Security Administration’s final decision denying an application for Disability
Insurance Benefits; and the Court having considered all submissions of the parties, and for the
reasons stated above;
IT IS on this 21st day of July, 2014
ORDERED that the final decision of the Commissioner of Social Security is affirmed,
and the complaint is dismissed.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

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