FERNICOLA v. COMMISSIONER OF SOCIAL SECURITY

Filing 10

MEMORANDUM and ORDER that the final decision of the Commissioner of Social Security is affirmed and the case is closed. Signed by Judge Peter G. Sheridan on 11/10/2015. (mmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

LAURA ANN FERNICOLA,
Civil Action No. 14-cv-04816 (P05)
Plaintiff,
v.

MEMORANDUM AND
ORDER

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

This matter is 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.
On October 4, 2013, Plaintiff, Laura Fernicola, was determined to be eligible for
Supplemental Security Income. So, the matter before the Court is an appeal of the Administrative
Law Judge’s (“AU”) decision denying disability insurance benefits for the period between the
date of her alleged disability (July 1, 2008) and the date on which she was last insured (DLI)
(March 31, 2011).
At the October 2, 2013 hearing, Plaintiff was determined to have two severe impairments
—

depression and osteoarthritis in her wrists in addition to degenerate disc disease. Plaintiff’s
,
1

counsel asserts that the AU should have related her depression back to the alleged period of
disability. However, the AU found there was a lack of evidence to find the depression was
severe during that time period. Fernicola’s trial attorney (Mr. Purrazella) asserted that Ms.
Fernicola suffered with exertional and non-exertional impairments, including (1) degenerative

1

With regard to the arthritis in the wrists, this issues was not argued as an impairment at the hearing
before AU Barrett, and it was not emphasized during the appeal. AU Barrett found: “She was diagnosed with
osteoarthritis in her wrists (Exhibit 24F). This was in February of 2014 several years after her date last insured.
There is no evidence that she was suffering limitations during the period prior to the date last insured and is,
therefore, a non-severe impairments.” R. 12

disc disease; (2) degenerative arthritis of the spine (3) herniated disc in neck and lumbar spine;
(4) cystic structures in the left knee; (5) lupus and (6) depression and anxiety (R. 30, 7-16).
;
2
I.
With regard to depression, the Plaintiff asserts that that AU erred by not considering
depression as severe during the period of alleged disability. Plaintiff argues that the AU was
obliged to combine the depression with the other severe impairments, and to include the
combination of impairments and pain to determine whether Plaintiff is disabled. The AU found
otherwise:
The claimant’s medically determinable mental impairment of
depression, considered singly and in combination, did not cause
more than minimal limitation in the claimant’s ability to perform
basic mental work activities and were, therefore, non-severe.
In making this finding, the undersigned has considered the four
broad functional areas set out in the disability regulations for
evaluating mental disorders and in section 12.O0Cofthe Listing of
Impairments (20 CFR, Part 404. Subpart P, Appendix 1). These
four broad functional areas are known as the “paragraph B” criteria.
The first functional area is activities of daily living. In this area,
the claimant had no limitation Examination notes from 2013
show the claimant lives with her husband and daughter and a
typical day is spent going to doctors, therapists. doing homework
with her daughter and attending her daughters’ activities. The
objective evidence does not support any limitations with activities
of daily living prior to the date last insured.
The next functional area is social functioning. In this area, the
claimant had no limitation. The claimant reported difficulty with
family relationships (Exhibit 9F, page 1). Treatment notes show
that on examination the claimant is oriented to person, place and
time with intact short-term memory and long-term memory as well
as cognitive functioning, judgment and insight (Exhibit9F, page 2).
The third functional area is concentration, persistence or pace. In
this area, the claimant had mild limitation. She underwent a
psychiatric examination in October of2O 12 and was diagnosed with
2

The lupus was first disclosed at the time of the hearing; it was not an issue presented at this appeal.

Generalized Anxiety Disorder and a GAF of6O (Exhibit 9F, page
3). She reported previously being prescribed Zoloft but is not
interested in medication (Exhibit SF, page 13). The evidence does
not show objective limitations prior to the date last insured. Even
in October of 2012, over one year after the date last insured she
was showing, at most, mild limitations.
The fourth functional area is episodes of decompensation. In this
area, the claimant had experienced no episodes of decompensation,
which have been of extended duration. She was hospitalized on
July 14, 2011 secondary to an overdose of medication and suicidal
ideation (Exhibit 4F, page 2). However, there is no evidence that
this episode of decompensation lasted for an extended period or
that this is one of multiple episodes. Because the claimant’s
medically deterrriinable mental impairments caused no more than
“mild” limitation in any of the first three functional areas and “no”
episodes of decompensation which have been of extended duration
in the fourth area, they were non severe (20 CFR 404.1520a(d)(l )).
From reviewing the record, there is substantial evidence to support the AU’s conclusion.
During the period of alleged disability. Fernicola was not hospitalized for mental health reasons,
had no psychiatric treatment, and no episodes of decompensation. There is also other evidence
or statements in support of the AU’s decision. They are (1) Plaintiffs attorney indicated that
the earliest psychiatric treatment was in 2012 (F. 57, 19-24); (2) Plaintiff advised Dr. Coffey that
she had stopped working in 2008 “because of the economy” rather than some medical reason
such as depression (R. 364); (3) Plaintiffs application for reconsideration of her initial denial
indicated that her condition “changed” because she had become “more depressed.

.

.

more

angry, and I sleep a lot more”; and (4) Dr. Coffey’s report provides no statement that her
condition can be related back to the time period of alleged disability.
Based on the lack of treatment during period of alleged disability, pius the lack of support
to retroactively apply Dr. Coffey’s report, and the Plaintiffs statements in her reconsideration,
the AU had substantial evidence upon which to find that Plaintiff had no severe psychiatric
injury within the period of alleged disability.

11.
Plaintiff argues that the AU did not combine and compare all of the effects of Plaintiffs
impairments at step 3 of the sequential process. That is, combining depression with disc disease
and arthritis. See, Torres v. Commissioner ofSocial Security, 279 Fed. App’x 149 (3d Cir.
2008). Torres requires the AU to consider the medical impairments and compare them to
Appendix I Listings. In addition, the AU “must set forth the reasons for his decision.

Id. at

152. In this case, the AU followed Torres. The AU set forth why the depression was not
severe during the period of the alleged disability, and as such, did

not

combine it with other

impairments. He found there was a lack of treatment. no hospitalizations and no period of
decompensation. In addition, the AU, relying on Dr. Chopra’s report, found that there was
insufficient evidence to find that Coffey’s report related back to the period of disability. (R. 11 7).
III.
The Plaintiff also argues that the matter should be remanded to include expert testimony
from a psychiatric medical advisor of the Commissioner’s choosing.” This argument lacks
merit. The Plaintiff bears the burden of proof at Steps 1 through 4. Here Plaintiff seeks to shift
the burden of proof to the Commissioner by having the AU obtain expert evidence. See Bowen
1’.

}‘uckeri, 482 U.S. 137, 146 n.5 (1987).
This is the problem with the entire case. Plaintiff failed to meet her burden to “present

medical findings equal in severity to all the criteria” of a listed impairment, Sullivan v. Zebley,
493 U.S. 521, 531 (1990). The Plaintiff is now attempting to shift the burden of proof.
The AU followed the five step sequential process for determining disability, and there is
no reason to discuss that process herein. Generally, review of the Commissioner’s final decision
is limited to determining whether the findings and decision are supported by substantial evidence
in the record. See Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000); Hartranft v. Apfel, 181

F.3d 358, 360 (3d Cir. 1999); see 42 U.S.C. §405(g). The Court is bound by the AU’s findings
of fact if they are supported by substantial evidence in the record. 42 U.S.C. 5 405(g); Doak v.
Heckler, 790 F.2d 26, 28 (3d Cir. 1986). 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
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 AU’s decision is not
supported by substantial evidence where there is “competent evidence” to support the alternative
and the AU does not “explicitly explain all the evidence” or “adequately explain his reasons for
rejecting or discrediting competent evidence.” Sykes v. Apfel, 228 F.3d 259, 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
evidence (e.g., that offered by treating physicians)

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-

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particularly certain types of

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)); Benton v. Bowen, 820 F.2d 85, 88 (3d Cir. 1987). Nevertheless, the district court’s
review is deferential to the AU’s factual determinations. Williams v. Sec y ofHealth and Human
Servs., 970 F.2d 1178, 1182 (3d Cir. 1992) (en banc) (stating that the 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

everse or remand if the [Commissioner]’s decision is not supported by substantial eviden
ce.”
Morales, 225 F.3d at 316 (quoting Smith v. Calfano, 637 F.2d 968, 970 (3d Cir. 1981))
.
In this case, the AU relied on the substantial evidence in the record in making his
determination that Plaintiff was not disabled during the relevant time period. As such,
Plaintiffs
appeal is denied.
ORDER
This matter having come before the Court on Plaintiffs appeal of the Commissione
r of the
Social Security Administration’s final decision denying an application for Disabi
lity Insurance
Benefits; and the Court having considered all submissions of the parties, and
for the reasons set
forth in the above memorandum;
IT IS on this

day of November, 2015

ORDERED that the final decision of the Commissioner of Social Security affirme
is
d. The
case is closed.

PETER G. SHERIDAN, U.S.D.J.