HERNANDEZ v. COMMISSIONER OF SOCIAL SECURITY
Filing
16
MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 3/16/2016. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
JULIO HERNANDEZ,
:
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER OF SOCIAL SECURITY, :
:
Defendant.
:
:
CIVIL ACTION NO. 15-2145 (MLC)
MEMORANDUM OPINION
COOPER, District Judge
Julio Hernandez requests that the Court review a final decision (“Decision”) of an
administrative law judge (“ALJ”) issued on behalf of the Commissioner of the Social
Security Administration (“Commissioner”), dated November 25, 2013, denying his claim
for disability insurance benefits premised upon an alleged physical disability and an
alleged mental disability. (See dkt. 1 at 1–3; dkt. 5-2 at 17–27.) See 42 U.S.C. § 405(g).1
The Court has reviewed Hernandez’s opening brief, the Commissioner’s brief, and
Hernandez’s reply letter. (See dkt. 11; dkt. 14; dkt. 15.) The Court has also reviewed the
entire administrative record (see dkt. 5 through dkt. 5-7), including: the Decision (dkt. 5-2
at 17–27); the transcript of the underlying hearing conducted by the ALJ (dkt. 5-2 at
33–68); a report of a “comprehensive” medical exam performed on Hernandez in June
1
The Appeals Council subsequently denied a request by Hernandez for review of the
Decision. (See dkt. 5-2 at 2–4.)
2010 by Overlook Family Practice Associates (dkt. 5-7 at 2–4); a consultative
neuropsychological evaluation submitted by neuropsychologists Jasdeep Hundal and
Keith Cicerone (id. at 11–18); and a consultative psychological evaluation submitted by
psychologist David Gelber (id. at 21–24). For the reasons that follow, the Court will
affirm the Decision.
ALJ DECISION
The Decision, wherein the ALJ provides a sufficient factual history and an
accurate summary of the required five-step process to determine whether a claimant is
disabled, states the following:
On January 16, 2012, the claimant filed a Title II application for a period of
disability and disability insurance benefits, alleging disability beginning June
2, 2009. The claim was denied initially . . . and upon reconsideration . . . .
Thereafter, the claimant filed a written request for hearing . . . (20 CFR
404.929 et seq.). The claimant appeared and testified at a hearing held on
August 21, 2013 . . . . Jackie L. Wilson, an impartial vocational expert, also
appeared at the hearing. The claimant is represented by . . . an attorney.
At the hearing, counsel requested that the claimant’s sister testify. Because the
claimant had provided a thorough account of his allegations, I did not approve
the witness whose testimony was merely corroborative. However, I suggested
that the claimant’s sister prepare a letter setting forth her position, which I
would consider before rendering a decision. The record was held open for two
weeks for submission of the letter (as well as updated ENT records).
However, to date, nothing has been received. I find that the record is fully
developed to allow me to issue a decision in this matter.
ISSUES
The issue is whether the claimant is disabled under sections 216(i) and 223(d)
of the Social Security Act. Disability is defined as the inability to engage in
any substantial gainful activity by reason of any medically determinable
2
physical or mental impairment or combination of impairments that can be
expected to result in death or that has lasted or can be expected to last for a
continuous period of not less than 12 months.
....
After careful consideration of all the evidence, the undersigned concludes the
claimant has not been under a disability within the meaning of the Social
Security Act from June 2, 2009, through the date of this decision.
APPLICABLE LAW
[There is] a five-step sequential evaluation process for determining whether an
individual is disabled (20 CFR 404.1520(a)). The steps are followed in order.
If it is determined that the claimant is or is not disabled at a step of the
evaluation process, the evaluation will not go on to the next step.
At step one, the undersigned must determine whether the claimant is engaging
in substantial gainful activity (20 CFR 404.1520(b)). Substantial gainful
activity (SGA) is defined as work activity that is both substantial and gainful.
“Substantial work activity” is work activity that involves doing significant
physical or mental activities (20 CFR 404.1572(a)). “Gainful work activity” is
work that is usually done for pay or profit, whether or not a profit is realized
(20 CFR 404.1572(b)). Generally, if an individual has earnings from
employment or self-employment above a specific level set out in the
regulations, it is presumed that he has demonstrated the ability to engage in
SGA (20 CFR 404.1574 and 404.1575). If an individual engages in SGA, he
is not disabled regardless of how severe his physical or mental impairments
are and regardless of his age, education, and work experience. If the
individual is not engaging in SGA, the analysis proceeds to the second step.
At step two, the undersigned must determine whether the claimant has a
medically determinable impairment that is “severe” or a combination of
impairments that is “severe” (20 CFR 404.1520(c)). An impairment or
combination of impairments is “severe” within the meaning of the regulations
if it significantly limits an individual’s ability to perform basic work activities.
An impairment or combination of impairments is “not severe” when medical
and other evidence establish only a slight abnormality or a combination of
slight abnormalities that would have no more than a minimal effect on an
3
individual’s ability to work (20 CFR 404.1521; Social Security Rulings (SSRs)
85-28, 96-3p, and 96-4p). If the claimant does not have a severe medically
determinable impairment or combination of impairments, he is not disabled. If
the claimant has a severe impairment or combination of impairments, the
analysis proceeds to the third step.
At step three, the undersigned must determine whether the claimant’s
impairment or combination of impairments is of a severity to meet or
medically equal the criteria of an impairment listed in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526). If the
claimant’s impairment or combination of impairments is of a severity to meet
or medically equal the criteria of a listing and meets the duration requirement
(20 CFR 404.1509), the claimant is disabled. If it does not, the analysis
proceeds to the next step.
Before considering step four of the sequential evaluation process, the
undersigned must first determine the claimant’s residual functional capacity
(20 CFR 404.1520(e)). An individual’s residual functional capacity is his
ability to do physical and mental work activities on a sustained basis despite
limitations from his impairments. In making this finding, the undersigned
must consider all of the claimant’s impairments, including impairments that
are not severe (20 CFR 404.1520(e) and 404.1545; SSR 96-8p).
Next, the undersigned must determine at step four whether the claimant has
the residual functional capacity to perform the requirements of his past
relevant work (20 CFR 404. l520(f)). The term [“]past relevant work [”]
means work performed (either as the claimant actually performed it or as it is
generally performed in the national economy) within the last 15 years or 15
years prior to the date that disability must be established. In addition, the work
must have lasted long enough for the claimant to learn to do the job and have
been SGA (20 CFR 404.1560(b) and 404.1565). If the claimant has the
residual functional capacity to do his past relevant work, the claimant is not
disabled. If the claimant is unable to do any past relevant work or does not
have any past relevant work, the analysis proceeds to the fifth and last step.
At the last step of the sequential evaluation process (20 CFR 404.1520(g)), the
undersigned must determine whether the claimant is able to do any other work
considering his residual functional capacity, age, education, and work
4
experience. If the claimant is able to do other work, he is not disabled. If the
claimant is not able to do other work and meets the duration requirement, he is
disabled. Although the claimant generally continues to have the burden of
proving disability at this step, a limited burden of going forward with the
evidence shifts to the Social Security Administration. In order to support a
finding that an individual is not disabled at this step, the Social Security
Administration is responsible for providing evidence that demonstrates that
other work exists in significant numbers in the national economy that the
claimant can do, given the residual functional capacity, age, education, and
work experience (20 CFR 404.l512(g) and 404.1560(c)).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
After careful consideration of the entire record, the undersigned makes the
following findings:
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2013.
2. The claimant has not engaged in substantial gainful activity since June
2, 2009, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairment as of June 11, 2011:
degenerative disc disease of the spine (20 CFR 404.1520(c)). Prior to that
date, there is no evidence of a severe impairment.
As of June 11, 2011 but not prior thereto, the claimant’s back impairment is
considered “severe” under the Regulations because the medical record
supports a finding that it is a medically determinable impairment which
significantly limits the claimant’s physical abilities to do one or more basic
work activities. In addition, the record also supports a finding that the
claimant’s impairment has lasted at a “severe” level for a continuous period of
more than 12 months.
The claimant’s medically determinable mental impairment of depression does
not cause more than minimal limitation in the claimant’s ability to perform
basic mental work activities and is therefore nonsevere.
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 12.00C of the Listing of Impairments (20 CFR, Part
5
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
has mild limitation. He lives with his elder parents and is completely
independent in activities of daily living. The next functional area is social
functioning. In this area, the claimant has mild limitation. He related that he
has several close friends whom he sees weekly. He’s had some difficulty with
employers, but said he is not confrontational. He was cooperative at
examinations. The third functional area is concentration, persistence or pace.
In this area, the claimant has mild limitation. He was found to have some
minor concentration/memory deficits upon examination with the consultative
psychologist, but no neuro cognitive problems at the examination with a
neuro-psychologist. The fourth functional area is episodes of decompensation.
In this area, the claimant has experienced no episodes of decompensation
which have been of extended duration.
Because the claimant’s medically determinable mental impairment causes 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, it is nonsevere (20 CFR 404.1520a(d)(l)).
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The mental
residual functional capacity assessment used at steps 4 and 5 of the sequential
evaluation process requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraph B of the adult
mental disorders listings in 12.00 of the Listing of Impairments (SSR 96-8p).
Therefore, the following residual functional capacity assessment reflects the
degree of limitation the undersigned has found in the “paragraph B” mental
function analysis.
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
6
No treating or examining physician has mentioned findings equivalent in
severity to the criteria of any listed impairment, nor does the evidence show
signs or findings that are the same or equivalent to those of any listed
impairment. Particular scrutiny was given to the claimant’s condition in light
of Listing Section 1.00. Specifically considered was listing 1.04 for back
disorders; however, the medical evidence does not establish the requisite
evidence of nerve root compression, spinal arachnoiditis or lumbar spinal
stenosis as required by the listing. Section 1.02 for joint dysfunction was also
considered, but is not met as the evidence does not demonstrate that the
claimant has the degree of difficulty in ambulating as defined in 1.00B2b, nor
does the evidence establish gross anatomical deformity or findings of joint
space narrowing, bony destruction or ankylosis of a weight bearing joint.
5. After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform the full
range of light work as defined in 20 CFR 404.1567(b). He is able to lift
and carry up to 20 pounds occasionally and 10 pounds frequently; able to
stand and or walk up to six hours and to sit at least six hours out of an
eight-hour workday.
In making this finding, the undersigned has considered all symptoms and the
extent to which these symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence, based on the requirements
of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. The undersigned has also
considered opinion evidence in accordance with the requirements of 20 CFR
404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant’s symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is an
underlying medically determinable physical or mental impairment(s)--i.e., an
impairment(s) that can be shown by medically acceptable clinical and
laboratory diagnostic techniques--that could reasonably be expected to produce
the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms has
been shown, the undersigned must evaluate the intensity, persistence, and
limiting effects of the claimant’s symptoms to determine the extent to which
7
they limit the claimant’s functioning. For this purpose, whenever statements
about the intensity, persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence, the
undersigned must make a finding on the credibility of the statements based on
a consideration of the entire case record.
At the hearing, the claimant testified that he was laid off from his job in 2009.
He explained that the car wash he was managing was bought out by another
company and laid him off. He alleged that he would have had to stop working
anyway because he was finding it hard to bend down throughout the day to
clean car tires (explaining that he also had to fill-in and perform car wash
duties almost half of the day).
However, I note that there are no treatment records for any back or other
problems in 2009. Indeed, at a comprehensive physical examination dated
June 1, 2010 (Exhibit IF), the claimant reported no physical problems. He said
he was attacked twenty years ago and hit in the head with a baseball bat. He
received extensive injuries to his jaw and face and had to have his jaw
reconstructed. That was twenty years ago and he reported that he now plays
baseball, football, soccer and tennis for exercise; and that he had no muscle
pain, fatigue or weakness. He reportedly was undergoing the examination in
part because he was to apply for permanent disability due to
neuropsychological issues (related to an old head injury). No further treatment
for any physical problems was sought until a year later when, on June 10,
2011, the claimant returned complaining of a one-year history of low back
pain (which I find less than fully credible given he reported no back
complaints at the 2010 examination). However, even at that time, the claimant
stated that the pain only lasts 10 seconds and only occurs when standing or
overextending his back. He denied numbness or weakness at that time and
denied any radiculopathy or tingling sensation. He also said that Percocet
completely relieved his symptoms. Findings included negative straight leg
raise, tenderness at L5-S1 and full strength in all extremities. He was
prescribed Flexeril and Naproxyn (Exhibit IF). An x-ray showed degenerative
changes of the spine with loss of height at T2 and degenerative spurs
throughout. No spondylolysis was evidenced (Exhibit l0F).
8
It does not appear that the claimant pursued any ongoing treatment for his
back, but the x-ray done on 9/27/12 shows degenerative changes and
establishes the impairment. Giving the claimant the benefit of the doubt, I find
that this report coupled with the claimant’s reported complaints of back pain
supports a finding of severe impairment as of his first complaints made in June
2011.
....
As for the claimant’s alleged psychological problems, the record shows that
the claimant underwent the neuropsychological evaluation on July 13, 2011
(Exhibit 2F). His mental status examination was normal and he was found to
have a full scale IQ of 84. He denied any history of learning problems and
said he was able to drive, but had lost his license due to fines. The doctor
found his neuro-cognition intact with some decreased attention which was felt
due to depressed mood secondary to a recent break up with his long time
girlfriend.
The claimant was examined by consultative psychologist Dr. Gelber on April
28, 2012 (Exhibit 4F). The exam was fairly normal. The claimant said he had
difficulty taking orders from his boss but was not confrontational, he just
thought he had better ideas on how to run the business. He said he got into
arguments but didn’t lose his temper. He was asked to return to several of the
jobs he was laid off from but was too proud to return. He said he was
sometimes depressed but then said his mood was okay. He had good sleep and
appetite. He reported lower back pain and memory problems. He also related
that he was attempting to develop a business and looking into obtaining
funding. The doctor found him fully oriented and noted “marked attention and
concentration deficits” but I find this inconsistent with the claimant’s ability to
remember a detailed history of his condition and his ability to perform most
exercises, and inconsistent with the doctor’s assessment of global functioning.
The claimant related that he had close friends whom he saw weekly. He did
yard work, housework and laundry. The examiner diagnosed only [“]rule out
adjustment disorder[”] and [“rule out] impulse control disorders[”] and
assessed a global assessment score of 75–80 indicating transient symptoms in
reaction to stressors.
9
I have considered the claimant’s allegations of memory loss, but do not find
them to be supported by any medical findings or treatment. However, even
assuming there is a severe impairment causing occasional memory loss, such
an impairment would not prevent the performance of unskilled work activities
(as identified by the vocational expert).
Based on the aggregate record, I find that the claimant’s back condition did not
prevent the performance of at least light work activities. I’ve given some
weight to the Disability Determination medical reviewer opinions in Exhibits
1A through 4A finding no severe impairments, but find that based on the x-ray
in September 2012 that the claimant had a severe back impairment. He does
not receive treatment and is able to carry out activities of daily living,
housework, shopping and socializing.
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected
to cause some degree of the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.
6. The claimant is capable of performing past relevant work as a car
wash manager. This work does not require the performance of
work-related activities precluded by the claimant’s residual functional
capacity (20 CFR 404.1565).
The claimant can return to his past relevant work as a car wash manager as the
vocational expert described that job as light and skilled. However, even
assuming that he could not do this job (for example, if he was limited to
unskilled work), he would not be disabled as the vocational [expert] identified
the other light jobs indicated below.
In comparing the claimant’s residual functional capacity with the physical and
mental demands of this work, the undersigned finds that the claimant is able to
perform it as actually performed.
Although the claimant is capable of performing past relevant work, there are
other jobs existing in the national economy that he is also able to perform.
Therefore, the Administrative Law Judge makes the following alternative
findings for step five of the sequential evaluation process.
10
The claimant was born on July 19, 1960 and was 48 years old, which is
defined as a younger individual age 18–49, on the alleged disability onset date.
The claimant subsequently changed age category to closely approaching
advanced age (20 CFR 404.1563). The claimant has at least a high school
education and is able to communicate in English (20 CFR 404.1564).
Transferability of job skills is not material to the determination of disability
because applying the Medical-Vocational Rules directly supports a finding of
“not disabled,” whether or not the claimant has transferable job skills (See
SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
In the alternative, considering the claimant’s age, education, work experience,
and residual functional capacity, there are other jobs that exist in significant
numbers in the national economy that the claimant also can perform. The
vocational expert found the following available light jobs: mail clerk (DOT
209.687-026 with 70,976 existing in the national economy); inserting machine
operator (DOT 208.685-018 with 15,010 existing in the national economy);
and small parts assembler (DOT 706.684-022 with 35,910 existing in the
national economy).
In determining whether a successful adjustment to other work can be made,
the undersigned must consider the claimant’s residual functional capacity, age,
education, and work experience in conjunction with the Medical-Vocational
Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If the claimant can
perform all or substantially all of the exceptional demands at a given level of
exertion, the medical-vocational rules direct a conclusion of either “disabled”
or “not disabled” depending upon the claimant’s specific vocational profile
(SSR 83-11). When the claimant cannot perform substantially all of the
exceptional demands of work at a given level of exertion and/or has
nonexertional limitations, the medical-vocational rules are used as a
framework for decisionmaking unless there is a rule that directs a conclusion
of “disabled” without considering the additional exceptional and/or
nonexertional limitations (SSRs 83-12 and 83-14). If the claimant has solely
nonexertional limitations, section 204.00 in the Medical-Vocational
Guidelines provides a framework for decisionmaking (SSR 85-15).
Based on a residual functional capacity for the full range of light work,
considering the claimant’s age, education, and work experience, a finding of
11
“not disabled” is directed by Medical-Vocational Rule 202.21 and Rule
202.14.
7. The claimant has not been under a disability, as defined in the Social
Security Act, from June 2, 2009, through the date of this decision (20 CFR
404.1520(f)).
DECISION
Based on the application for a period of disability and disability insurance
benefits filed on January 16, 2012, the claimant is not disabled under sections
216(i) and 223(d) of the Social Security Act.
(Dkt. 5-2 at 20–27.)
ARGUMENTS AND DISCUSSION
The Court must affirm the Decision if the ALJ’s findings of fact are supported by
substantial evidence, i.e., evidence that a reasonable mind might accept as adequate to
support a conclusion. See 42 U.S.C. § 405(g); Reefer v. Barnhart, 326 F.3d 376, 379 (3d
Cir. 2003); Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999).
The Court must be deferential to the inferences drawn by the ALJ from the facts if those
inferences, in turn, are supported by substantial evidence. See Smith v. Califano, 637
F.2d 968, 970 (3d Cir. 1981); see also Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.
1999) (stating court “will not set the Commissioner’s decision aside if it is supported by
substantial evidence, even if we would have decided the factual inquiry differently”); see
also Hoyman v. Colvin, 606 Fed.Appx. 678, 681 (3d Cir. 2015) (stating ALJ’s credibility
assessment is virtually unreviewable on appeal).
12
The Court will address each argument raised by Hernandez concerning the alleged
errors in the Decision in turn. Even though Hernandez suggests that he is presenting three
arguments here, the Court construes his brief as presenting six grounds to be addressed.
(Compare dkt. 11 at 2 (table of contents listing three argument points), with dkt. 11 at
14–25 (presenting six separate arguments).)
I.
Mental impairment
Hernandez argues that his “mental impairment has more than a minimal effect on
his ability to work”, and thus the ALJ “failed to give proper credence to [his] complaints .
. . concerning the severity of his diagnoses of traumatic brain injury, cognitive deficits,
memory deficits, personality changes and depression, finding them non-severe”. (Dkt. 11
at 15–16 (citations omitted).) He argues that he has held a variety of jobs for only short
periods of time because of clashes with superiors stemming from his poor judgment in
telling them how to run their businesses, and that he is forgetful and has difficulty in
organizing his thoughts. He also argues that ever since he suffered the head injury 20
years ago, he has been reckless, has been impulsive, and has had problems with authority.
He argues that his intellectual functioning is in the low average range, and that he has
attention and concentration deficits. (Id. at 16.)
This argument is without merit. Giving the ALJ the required due deference, the
Court finds that there was substantial evidence to support the ALJ’s assessment of the
medical records, Hernandez’s testimony, the consultative neuropsychological evaluation,
and the consultative psychological evaluation, as well as the ALJ’s conclusion that
13
Hernandez is not disabled due to a mental impairment. (See dkt. 5-2 at 23 (addressing
alleged mental impairment); id. at 25–26 (addressing neuropsychological and
psychological evaluations).) See Kerdman v. Comm’r of Soc. Sec., 607 Fed.Appx. 141,
143–45 (3d Cir. 2015) (stating substantial evidence supported ALJ’s findings concerning
lack of mental impairment).
II.
Evidence of severe impairment before June 11, 2011
Hernandez argues that the ALJ erred in finding that he did not suffer from a severe
impairment relating to his back before June 11, 2011. (See dkt. 11 at 16.) He argues that
he “is on charity care/Medicaid and cannot avail himself of medical treating, including
objective testing because it is not covered and [he] would most likely have to pay out of
pocket”, and that “[a]ny further testing, treatment, [or] specialists were unobtainable in
[his] circumstances”. (Id.)
The argument is without merit. As the ALJ pointed out, Hernandez did not
complain of any back pain when he had a comprehensive physical exam one year earlier
in June 2010. (See dkt. 5-7 at 2.) Cf. Alarid v. Colvin, 590 Fed.Appx. 789, 793 (10th
Cir. 2014) (stating inferences should not be drawn about claimant’s symptoms due to
claimant’s failure to receive regular medical treatment, without considering whether
claimant was unable to afford treatment or had no access to free or low-cost medical
services); Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (stating inability to afford
treatment is a “good reason” for failing to seek medical care). Thus, the ALJ’s
conclusion here was supported by substantial evidence.
14
III.
Testimony of sister
Hernandez argues that the ALJ should have permitted his sister to testify at the
hearing, and that his “attorney insisted the sister’s testimony be taken”. (Dkt. 11 at 17.)
The argument is without merit. The ALJ properly gave Hernandez’s sister an
opportunity to submit a written statement instead of hearing her live testimony, and she
failed to avail herself of that opportunity. See Zirnsak v. Colvin, 777 F.3d 607, 613 (3d
Cir. 2014) (concerning propriety of letters submitted by claimant’s relatives to ALJ
concerning a claimant’s alleged difficulties). The reason proffered by Hernandez for his
sister’s failure to do so — “they felt it would be of no use” (dkt. 11 at 17) — is meritless,
particularly when the ALJ specifically advised Hernandez that the record would be held
open in order to accept a letter. Furthermore, Hernandez’s attorney did not “insist” that
his sister be permitted to testify, as demonstrated by the transcript of the hearing:
ATTORNEY:
ALJ:
ATTORNEY:
ALJ:
I think I’d like to have her.
She can submit a statement after the hearing.
Okay.
It’s usually duplicative. She doesn’t live with the claimant. On
this record, I don’t see any strong basis. What is her purported
testimony going to be concerning? I find that claimant to be
fairly credible in his own estimation of his abilities.
ATTORNEY: That’s precisely what I wanted to discuss with her to get her
testimony about.
ALJ:
But I’ve had the claimant’s testimony about what he’s able to
do. I don’t –
ATTORNEY: All right. We’ll submit a statement.
15
ALJ:
Okay.
ATTORNEY: But I would much prefer her testimony.
(Dkt. 5-2 at 66–67.)
IV.
Assertions of pain
Hernandez argues that the ALJ improperly found that his assertions of back pain
were not credible. (See dkt. 11 at 19–21.)
A review of the Decision reveals that this is not correct. (See dkt. 5-2 at 22
(“claimant has the following severe impairment as of June 11, 2011: degenerative disc
disease of the spine”); id. (stating Hernandez’s back impairment is severe because it is a
medically-determinable impairment that significantly limits his physical abilities to do
one or more basic work activities, and it has existed for more than 12 months); id. at 25
(finding x-ray report detailing degenerative changes and Hernandez’s reported pain
complaints support a finding of severe impairment).) What the ALJ did find, however, is
that Hernandez was capable of performing certain jobs in the national economy despite
that severe pain.
V.
Assessment of residual functional capacity
Hernandez argues that the ALJ “failed to justify [the] finding that the plaintiff
could perform work at the light exertional level”. (Dkt. 11 at 22.) But as the
Commissioner correctly argues, this is not true. The ALJ’s assessment of Hernandez’s
residual functional capacity included all of the credibly-established limitations set forth in
the record. (See dkt. 14 at 26; see also dkt. 5-2 at 24–27.) Furthermore, Hernandez was
16
independent in activities of daily living; maintained close friendships; and performed yard
work, housework, and laundry. (See dkt. 5-7 at 23–24.) See Cerrato v. Comm’r of Soc.
Sec., 386 Fed.Appx. 283, 286 (3d Cir. 2010) (rejecting claimant’s allegation that she was
unable to perform low stress work, because claimant testified that she performed
household chores and helped out at relative’s business).
VI.
Testimony of vocational expert
Hernandez argues that in presenting a hypothetical to the vocational expert at the
hearing, the ALJ “failed to include all of plaintiff’s mental impairments but only limited
the hypothetical individual to simple and routine, with only occasional changes in
essential work tasks involving simple decision making, occasional contact with
coworkers and supervisors would such a person be able to perform any of plaintiff past
relevant work”. (Dkt. 11 at 23.) The argument is without merit, because this Court has
already found that there was substantial evidence supporting the ALJ’s conclusion that
Hernandez had no mental impairment, and thus it was unnecessary for the ALJ to include
that in the hypothetical. See supra pp. 13–14. The ALJ accurately conveyed Hernandez’s
credibly-established limitations to the vocational expert during the underlying hearing.
(See dkt. 5-2 at 57–65.) See Hughes v. Comm’r of Soc. Sec., No. 15-2253, 2016 WL
231676, at *3 (3d Cir. Jan. 20, 2016). In any event, an administrative law judge is not
required to suggest every impairment alleged by a claimant to the vocational expert. See
Zirnsak, 777 F.3d at 615.
17
Concerning his physical limitations, Hernandez argues that the ALJ incorrectly
found that he could perform his past relevant work as a car wash manager. (See dkt. 11 at
19.) But Hernandez’s assertion here is not completely accurate, as the ALJ found in full
that:
The claimant can return to his past relevant work as a car wash manager as the
vocational expert described that job as light and skilled. However, even
assuming that he could not do this job (for example, if he was limited to
unskilled work), he would not be disabled as the vocational [expert] identified
the other light jobs . . . .
(Dkt. 5-2 at 26.) The ALJ then went on to state those other light jobs existing in the
national economy, as suggested by the vocational expert during the hearing. (Id.)
Hernandez suggests no theory on how adding his preferred components would have
changed the vocational expert’s answers and the ALJ’s conclusions. See Holloman v.
Comm’r of Soc. Sec., No. 15-2293, 2016 WL 475976, at *4 (3d Cir. Feb. 8, 2016). As a
result, there was substantial evidence here to support the ALJ’s conclusion that
Hernandez was not disabled. See 20 C.F.R. § 404.1520(a)(4)(v) (stating that if a claimant
can adjust to other work, then the claimant is not disabled).
CONCLUSION
The Court will affirm the Decision. The Court will issue an appropriate order.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: March 16, 2016
18
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