SUAREZ v. COMMISSIONER OF SOCIAL SECURITY
Filing
18
OPINION. Signed by Magistrate Judge Holly B. Fitzsimmons on 5/2/2018. (eh, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MICHAEL FRANCIS SUAREZ,
3:16-cv-02732-HBF
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
APPEARANCES:
JOANNE GARDNER
JOANNE GARDNER, ESQUIRE
14 LENAPE ROAD
FLEMINGTON, NJ 08822
On behalf of Plaintiff
TIMOTHY PATRICK REILEY
SOCIAL SECURITY ADMINISTRATION
REGION III
OFFICE OF THE GENERAL COUNSEL
P.O. BOX 41777
PHILADELPHIA, PA 19101
On behalf of Defendant
FITZSIMMONS, Magistrate Judge
OPINION
Plaintiff Michael Francis Suarez brings this action
pursuant to Section 205(g) of the Social Security Act, as
amended, 42 U.S.C. §405(g), seeking review of a final decision
of the Acting Commissioner of Social Security who denied his
application for Disability Insurance Benefits (“DIB”) under
Title II of the Social Security Act, 42 U.S.C. §401 et seq.
(“the Act”). Plaintiff has moved for an award of disability
benefits or, in the alternative, to reverse the case and
remand for a rehearing. The Commissioner has moved to affirm.
For the reasons that follow, the Commissioner’s decision
is affirmed.
I. ADMINISTRATIVE PROCEEDINGS
On December 10, 2012, plaintiff, Michael Francis Suarez,
protectively filed an application for DIB, with an alleged
onset date of disability of March 1, 2012. [Certified
Transcript of the Record, Compiled on July 21, 2016, Doc. #9
(hereinafter “Tr.”) 83]. Plaintiff alleged disability due to
“spinal injury-cracked vertebraes-2 herniated discs;
depression; nerve damage-extends through legs to feet; and
feet feel like [they are] on fire.” [Tr. 136, 146]. His DIB
claim was denied initially on April 30, 2013, and upon
reconsideration on July 15, 2013. [Tr. 136-44, 146-55].
Plaintiff timely requested a hearing before an Administrative
Law Judge (“ALJ”) on July 24, 2013. [Tr. 83].
On February 27, 2015, Administrative Law Judge (“ALJ”)
Marguerite Toland held a hearing, at which plaintiff appeared
with an attorney and testified. [Tr. 103-35]. Vocational
Expert (“VE”) Mary Ann R. Maraca testified at the hearing.
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[Tr. 130-34]. On May 29, 2015, the ALJ found that plaintiff
was not disabled, and denied his claim. [Tr. 83-99]. Plaintiff
filed a timely request for review of the hearing decision on
June 29, 2015. [Tr. 78]. On May 17, 2016, the Appeals Council
denied review, thereby rendering ALJ Toland’s decision the
final decision of the Commissioner. [Tr. 1-4]. The case is now
ripe for review under 42 U.S.C. §405(g).
Plaintiff, represented by counsel, timely filed this
action for review and moves to reverse and/or remand the
Commissioner’s decision.
II.
STANDARD OF REVIEW
The standard of review for this Court is whether the
ALJ's decision is based on substantial evidence in the record
as a whole. 42 U.S.C. §405(g). Substantial evidence is
evidence that a reasonable mind would accept as adequate to
support a conclusion; it is more than a “mere scintilla.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
“Overall, the substantial evidence standard is a deferential
standard of review.” Jones v. Barnhart, 364 F.3d 501, 503 (3d
Cir. 2004); see Woody v. Sec'y of Health & Human Servs., 859
F.2d 1156, 1159 (3d Cir. 1988).
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A reviewing court “must consider the (1) objective
medical facts; (2) diagnoses and medical opinions of examining
physicians; (3) subjective evidence of pain and disability as
described by plaintiff and corroborated by others who have
observed him; and (4) plaintiff's age, educational background
and work history.” Curtin v. Harris, 508 F. Supp. 791, 793
(D.N.J. 1981). It “need[s] from the ALJ not only an expression
of the evidence s/he considered which supports the result, but
also some indication of the evidence which was rejected.”
Cotter v. Harris, 642 F. 2d 700, 705-06 (3d Cir. 1981); see
Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d
Cir. 2000)(“Although the ALJ may weigh the credibility of the
evidence, he must give some indication of the evidence which
he rejects and his reason(s) for discounting such
evidence.”)(citing Plummer v. Apfel, 186 F.3d 422, 429 (3d.
Cir. 1999)). “In the absence of such an indication the
reviewing court cannot tell if significant probative evidence
was not credited or simply ignored.” Id.
It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. The
scope of review is limited to determining whether the
4
Commissioner applied the correct legal standards and whether
the record, as a whole, contains substantial evidence to
support the Commissioner's findings of fact. See Schaudeck v.
Comm'r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999)
(noting that the circuit court has plenary review of all legal
issues, and reviews the administrative law judge's findings of
fact to determine whether they are supported by substantial
evidence); Plummer, 186 F.3d at 427. “[W]hether there is
substantial evidence supporting the appellant’s view is not
the question here; rather, we must decide whether substantial
evidence supports the ALJ’s decision.” Bonet ex rel. T.B. v.
Colvin, 523 F. App’x 58, 59 (2d Cir. 2013)(citations omitted);
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)(“We 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.”).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance
benefits.
To be considered disabled under the Act and therefore
entitled to benefits, Mr. Suarez must demonstrate that he is
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unable to work after a date specified “by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §423(d)(1)(A). Such impairment or
impairments must be “of such severity that he is not only
unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national
economy.” 42 U.S.C. §423(d)(2)(A); see also 20 C.F.R.
§404.1520(c) (requiring that the impairment “significantly
limits your physical or mental ability to do basic work
activities” to be considered “severe”).
There is a familiar five-step analysis used to determine
if person is disabled. See 20 C.F.R. §404.1520(a)(4); 20
C.F.R. § 416.920(a)(4). Under this process, the ALJ must
sequentially determine: (1) whether the claimant is engaged in
substantial gainful activity; (2) whether the claimant has a
severe impairment; (3) whether the claimant's impairment meets
or equals a listed impairment; (4) whether the claimant is
able to do his or her past relevant work; and (5) whether the
claimant is able to do any other work, considering his or her
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age, education, work experience and residual functional
capacity (“RFC”). 20 C.F.R. §404.1520(a)(4)(i-v) ;20 C.F.R.
§416.920(a)(4)(i-v).
Between steps three and four, the ALJ must also assess a
claimant's RFC. RFC is defined as “that which an individual is
still able to do despite the limitations caused by his or her
impairment(s).” Burnett v. Comm'r of Soc. Sec., 220 F.3d 112,
121 (3d Cir. 2000) (citations omitted); 20 C.F.R. §404.1545
(a)(1) (“Your residual functional capacity is the most you can
still do despite your limitations. We will assess your
residual functional capacity based on all the relevant
evidence in your case record.”); see also 20 C.F.R. §416.945
(a)(1). In making this assessment, the ALJ considers all of
the claimant's medically determinable impairments, including
any non-severe impairments identified by the ALJ at step two
of his or her analysis. 20 C.F.R. §§404.1545(a)(2),
416.945(a)(2).
The disability determination involves shifting burdens of
proof. The claimant bears the burden of proof at steps one
through four. If the claimant satisfies this burden, then the
Commissioner must show at step five that jobs exist in the
national economy that the claimant can perform. Mason v.
7
Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate
burden of proving disability under the Act lies with the
claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. §
416.912(a).
IV.
THE ALJ’S DECISION
Following the above-described five step evaluation
process, ALJ Toland concluded that plaintiff was not disabled
under the Social Security Act. [Tr. 83-95]. At step one, the
ALJ found that plaintiff had not engaged in substantial
gainful activity from his alleged onset date of March 1, 2012.
[Tr. 85].
At step two, the ALJ found that plaintiff had
lumbrosacral spondylosis without myelopathy, degenerative disc
disease of the lumbar spine, mild left peroneal neuropathy of
the fibular head, lumbar radiculopathy, and mild diffuse
coronary disease affecting the right coronary artery with mild
to moderate ventricular hypertrophy, all severe impairments
under the Act and regulations. Id.
At step three, the ALJ found that plaintiff’s
impairments, either alone or in combination, did not meet or
medically equal the severity of one of the listed impairments
in 20 C.F.R. Pt. 404, Subpart P, Appendix 1. [Tr. 87]. The ALJ
8
specifically considered Listings 1.04 (disorders of the
spine), 4.04C (coronary artery disease), and 11.14 (peripheral
neuropathy )[Tr. 87-88].
Before moving on to step four, the ALJ found plaintiff
had the RFC
to perform light work as defined in 20 CFR
404.1567(b), except he can stand/walk up to six
hours per day but no more than one hour at a time
and then would need to sit/shift positions for five
minutes per hour while remaining on task. He can
occasionally stoop, and he can occasionally climb
ramps and stairs. He cannot climb ropes, ladders or
scaffolds. He must avoid concentrated exposure to
dust, fumes, temperature extremes and pulmonary
irritants. He would be off task 5% of the workday in
addition to normal breaks.
[Tr. 88].
At step four, the ALJ found plaintiff was unable to
perform any past relevant work. [Tr. 93]. At step five,
after considering plaintiff’s age, education, work
experience and RFC, the ALJ found that jobs existed in
significant numbers in the national economy that
plaintiff could perform. [Tr. 94-95].
V.
DISCUSSION
On appeal, the plaintiff contends that the ALJ erred in
in her application of the treating physician rule and the step
five evaluation.
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The Court will address each of plaintiff’s arguments in
turn.
A.
The ALJ Correctly Applied the Treating Physician Rule
Plaintiff contends that because the ALJ erred in her
application of the treating physician rule, the residual
functional capacity assessed was not based on substantial
evidence. He argues that the ALJ erroneously relied on the
opinions of the state reviewing non-examining physicians over
his treating physicians, Dr. Barry Grabelle and Dr. Bruce
Rosenblum.
Pursuant to 20 C.F.R. §§404.1527(c)(2) and 416.927(c)(2),
a treating source’s opinion will usually be given more weight
than a non-treating source. If it is determined that a
treating source’s opinion on the nature and severity of a
plaintiff’s impairment is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in
[the] case record,” the opinion is given controlling weight.
20 C.F.R. §§404.1527(c)(2), 416.927(c)(2). If the opinion,
however, is not “well-supported” by “medically acceptable”
clinical and laboratory diagnostic techniques, then the
opinion cannot be entitled to controlling weight. Id. If the
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treating source’s opinion is not given controlling weight, the
ALJ considers the following factors in weighing the opinion:
length of treatment relationship, frequency of examination,
nature and extent of the treatment relationship, relevant
evidence used to support the opinion, consistency of the
opinion with the entire record, and the expertise and
specialized knowledge of the source. See 20 C.F.R.
§§404.1527(c)(2)-(6), 416.927(c)(2)-(6); Social Security
Ruling (“SSR”) 96-2P, 1996 WL 374188, at *2 (S.S.A. July 2,
1996). If the treating physician’s opinion is not supported by
objective medical evidence or is inconsistent with other
substantial evidence in the record, the ALJ need not give the
opinion significant weight. See Plummer v. Apfel, 186 F.3d
422, 429 (3d Cir. 1999)(“An ALJ may reject a treating
physician's opinion outright only on the basis of
contradictory medical evidence, but may afford a treating
physician's opinion more or less weight depending upon the
extent to which supporting explanations are provided.”);
Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)(“We are
also cognizant that when the medical testimony or conclusions
are conflicting, the ALJ is not only entitled but required to
choose between them.... [W]e need from the ALJ not only an
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expression of the evidence s/he considered which supports the
result, but also some indication of the evidence which was
rejected.”); Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994)
(holding that an ALJ “may properly accept some parts of the
medical evidence and reject other parts, but she must consider
all the evidence and give some reason for discounting the
evidence she rejects.”).
Plaintiff first argues that the ALJ erred in assessing
“little weight” to the opinions of his treating physicians,
Dr. Barry Grabelle and Dr. Bruce Rosenblum. [Doc. #13 at 1215].
Dr. Barry Grabelle
The ALJ stated that she gave “little weight to Dr.
Grabelle’s assessments because they are check off forms, and
he provided very little supporting explanation, and his
opinion is inconsistent with the overall record, including the
claimant’s reported activities of daily living.” [Tr. 91].
Dr. Grabelle completed two medical statements, in January
2013 and February 2015. [Tr. 312, 384]. In January 2013, Dr.
Grabelle opined that plaintiff had the following restrictions:
he could stand/walk two hours of an eight hour workday; no
sitting limitation was noted; he could occasionally and
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frequently lift twenty pounds; occasionally bend and stoop;
never balance or climb stairs; and constantly climb ladders.
[Tr. 312]. The doctor estimated that plaintiff would be absent
from work due to his condition more than four days a month and
found that plaintiff could work no hours per day. Id.
On February 24, 2015, Dr. Grabelle’s opinion included
further functional restrictions: plaintiff could stand/walk
and sit for two hours of an eight hour work day; occasionally
and frequently lift five pounds; no restrictions using his
hands and arms for repetitive actions were noted; occasionally
bend, stoop, balance and climb stairs; and never climb
ladders. [Tr. 384]. The doctor estimated that plaintiff would
not be absent each month from work due to his condition and
found that plaintiff could work “no[]” hours per day. Id.
(emphasis added).
Defendant correctly points out that these opinions are
not consistent with one another. Compare Tr. 312, with Tr.
384; see 20 C.F.R. §404.1527(c)(4) (“Consistency. Generally
the more consistent a medical opinion is with the record as a
whole, the more weight we will give to that medical
opinion.”). Indeed, plaintiff’s lifting capacity dropped from
twenty pounds to five pounds, while other abilities improved,
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such as balancing or climb stairs to occasionally from never;
and plaintiff’s projected number of monthly work absences
sharply declined from more than four to zero. [Tr. 312, 384].
The ALJ’s finding that Dr. Grabelle’s treatment notes do
not support his January 2013 and February 2015 opinions is
supported by substantial evidence. See 20 C.F.R.
§404.1527(c)(3)(“Supportability. The more a medical source
presents relevant evidence to support an opinion...the more
weight we will give that opinion.”). Here, plaintiff’s
treating relationship dates to December 2007 and his file
contains handwritten treatment notes through January 2014,1
along with copies of blood work and other diagnostic testing.
See Tr. 343-44. The treatment notes, handwritten on lined
paper, are brief entries of weight, blood pressure readings,
lab and/or test orders, prescription medication
orders/renewals and referrals to specialists. [Tr. 344-45].
Dr. Grabelle’s treatment notes do not contain assessments of
functional limitations. Id. After the alleged onset date of
disability, March 1, 2012, Dr. Grabelle treated plaintiff
Mark Cattrel, R.P.A.-C, from Premier Pain Center (“PPC”)
began treating plaintiff in January 2015. P.A. Cattrell noted
on intake that plaintiff’s “PCP is retiring and pt requires
PCP to take over prescribing his tramadol.” [Tr. 395].
1
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approximately eight to ten times.2 [Tr. 343]. These records
offer no insight into plaintiff’s exertional limitations to
support Dr. Grabelle’s opinions. [Tr. 91 (ALJ finding that Dr.
Grabelle’s opinion is inconsistent with the overall
record....”). As set forth below, other objective medical
evidence and plaintiff’s reported activities of daily living
support the ALJ’s assessment of “little weight” to Dr.
Grabelle’s opinions.
Dr. Bruce Rosenblum, Neurologist
Similarly, the ALJ gave “little weight to Dr. Rosenblum’s
assessment because it is just a check off form, and his
treatment notes do not indicate the claimant having such
significant exertional limitation, as well as, the claimant’s
reported activities of daily living, which are fairly normal.”
[Tr. 92].
On February 24, 2015, Dr. Bruce R. Rosenblum, plaintiff’s
neurologist, opined that plaintiff had the following
restrictions: he could stand/walk and sit less than two hours
There are treatment entries from December 2007 through
December 20, 2010. The two entries after December 20, 2010,
are not clearly legible, “9/27” followed by “11/_.” The Court
assumes these visits to have taken place in 2012 although they
could have occurred in 2011, prior to the alleged onset of
disability date of March 1, 2012. [Tr. 343].
2
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of an eight hour work day; occasionally lift fifteen pounds;
frequently lift five to ten pounds; frequently use his hands
and arms for repetitive action; occasionally bend, stoop,
balance and climb stairs and never climb ladders. [Tr. 385].
The doctor estimated that plaintiff would be absent more than
four days a month from work due to his condition and found
that plaintiff could work no hours per day. Id.
The ALJ’s finding that Dr. Rosenblum’s treatment notes do
not support his February 2015 opinion is supported by
substantial evidence. The record contains treatment notes for
only three visits: November 12, 2013; December 9, 2013; and
February 19, 2015. [Tr. 339, 338, 479]. At the initial
appointment in November 2013, plaintiff’s prior MRI was
unavailable. Dr. Rosenblum’s impression was lumbar
radiculopathy. He recommended an updated MRI “prior to
revaluation in determination of further course of action.”
[Tr. 339]. At a follow up appointment on December 9, 2013, Dr.
Rosenblum noted that the “MRI of the lumbar spine shows a
central and left paracentral L5-S1 disc herniation with
anterior distortion by the disc of the left S1 nerve
root.”[Tr. 338].3 Dr. Rosenblum “extensively discussed...the
3
A November 25, 2013, MRI of plaintiff’s lumbar spine showed a
16
risks, benefits, options and possible outcomes with regards to
micro lumbar discectomy.” [Tr. 338]. Plaintiff indicated he
would consider his options and get in touch if would like to
proceed with this option. [Tr. 338]. Plaintiff’s third and
last office visit with Dr. Rosenblum was on February 19, 2015.
[Tr. 479]. The doctor’s review of a recent EMG study showed
“only left peroneal neuropathy. [Plaintiff] has low back pain
which supersedes pain radiation into the legs from the back.”
[Tr. 479]. “CT of the lumbar spine and x-rays of the
lumbosacral spine were also reviewed. MRI of the thoracic
spine revealed no major occlusion of the spinal canal or
neural foramen. On examination he has no new objective focal
neurologic findings.” [Tr. 479]. The doctor indicated that
plaintiff was going for a discogram with Dr. Li and that
plaintiff would follow-up thereafter with Dr. Rinkus
“regarding the possible utility of an arthrodesis [fusion] for
the further treatment of his disorder....” [Tr. 479]. Indeed,
“moderate sized central and left paracentral disc protrusion
at L5-S1 level which abuts and posteriorly displaces the left
S1 nerve root centrally.” Without significant spinal canal
stenosis, no mass effect, or significant foaminal
encroachment, related to the exiting left L5 nerve root. The
MRI also revealed a disc bulge and a small central annular tea
at L4-L5, and a very small disc bulge at T12-L1 level, both
without significant spinal canal stenosis or foraminal
encroachment. [Tr. 341].
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from the February 17, 2015, CT scan referenced in Dr.
Rosenblum’s treatment note, the radiologist found “[m]ild
degenerative disc changes of the lumbar spine without
compression fracture or subluxation. No gross central stenosis
or neural foraminal narrowing. Minimal posterior disc
protrusions of the lower lumbar spine....” [Tr. 481]. These
records offer no insight into plaintiff’s exertional
limitations to support Dr. Rosenblum’s opinion. [Tr. 92 (ALJ
finding that Dr. Rosenblum’s “treatment notes do not indicate
the claimant having such significant exertional
limitations.”)(emphasis added)]. As set forth below, other
objective medical evidence and plaintiff’s reported activities
of daily living support the ALJ’s assessment of “little
weight” to Dr. Rosenblum’s opinions.
Defendant correctly points out that the ALJ appropriately
weighed the nature of the Medical Source Statement forms
requiring the doctors to check-off or circle a claimant’s
limitations. “[C]hecklist forms such as [Drs. Grabelle and
Rosenblum’s] report, which require only that the completing
physician ‘check a box or fill in a blank,’ rather than
provide a substantive basis for the conclusions stated, are
considered ‘weak evidence at best’ in the context of a
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disability analysis.” Smith v. Astrue, 359 F. App'x 313, 316
(3d Cir. 2009) (quoting Mason v. Shalala, 994 F.2d 1058, 1065
(3d Cir. 1993); Prokopick v. Comm’r of Social Security, 272 F.
App’x 196, 199 (3d Cir. 2008) (“the ALJ was entitled to accord
lesser weight to [the doctor’s] opinion because it was
provided in a check-box form and he did not provide any
reasons in support of his various conclusions.”); Drejka v.
Comm’r of Social Security, 61 F. App’x 778, 782 (3d Cir.
2003)(“The ALJ was entitled to review the record in totality
and to discount the treating physician's
opinion...[claimant’s] treating physician made the
determination that she was disabled only in a form report. We
have characterized such a form report, in which the
physician's only obligation was to fill in blanks, as “‘weak
evidence at best.’”)(quoting Mason, 994 at 1065).
The ALJ’s finding that the objective medical evidence
does not support the opinions of Dr. Grabelle and Dr.
Rosenblum is supported by substantial evidence. “[A] treating
physician's opinion is accorded controlling weight only if the
ALJ finds that the opinion is ‘well-supported by medically
acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence [in
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the] case record.’ 20 C.F.R. §404.1527(d)(2).” Smith, 359 F.
App'x at 316. “The law is clear... that the opinion of a
treating physician does not bind the ALJ on the issue of
functional capacity.” Brown v. Astrue, 649 F.3d 193, 197 n.2
(3d Cir. 2011).
Here, the ALJ properly evaluated all the medical findings
and evidence in discounting the treating physicians’ opinions.
See 20 C.F.R. §§404.1527(d)(1)(2), 416.927(d)(1)(2). A review
of the record demonstrates that these doctors’ opinions are
inconsistent with treatment records showing normal strength in
the upper and lower extremities, and full range of motion
upper and lower extremities. See e.g. Tr. 318-21 (Dr.
Napolitano’s Consultative Medical Examination); Tr. 286 (Dr.
Glasser’s treatment record); Tr. 324 (Dr. Wm. Dennis Coffey
Consultative Mental Status Examination); Tr. 336, 359, 363
(Dr. Francisco Del Valle treatment note); Tr. 396, 463-64
(Mark Cattell, R.P.A.-C treatment records); Tr. 401, 438
(Peter P. Barcas, D.O. treatment records); Tr. 407-08 (2011
EMG Nerve Conduction Study unremarkable).
Objective medical testing conducted in 2015 before the
ALJ’s ruling also support her findings. A MRI from January 6,
2015 found,
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1. Disc bulge and a small central and left
paracentral disc protrusion, L5-S1 level. This is
improved compared to the previous study, at which
time there was a moderate-sized disc protrusion,
which displaced and abutted the left SI nerve root.
There is no visible contact nor displacement of the
left S1 nerve root currently. There is no spinal
canal stenosis or significant foraminal encroachment
at this level.
2. Annular tear and disc bulge at the L4-L5 level,
not significantly changed, without significant
spinal canal stenosis or nerve root compression.
3. No significant interval change in tiny disc bulge
at T12-L1 level.
No acute abnormality noted.
[Tr. 475-76 (emphasis added)]. An electrodiagnostic study
dated January 29, 2015, showed “evidence of chronic lumbar
spasm without definite radiculopathy in the lower
extremities,” with conduction evidence for mild left peroneal
neuropathy at the level of the fibular head without
denervation in peroneal muscles. [Tr. 376 (emphasis added)]. A
CT scan on February 17, 2015, showed “[m]ild degenerative disc
changes of the lumbar spine without compression fracture or
subluxation. No gross central stenosis or neural foraminal
narrowing. Minimal posterior disc protrusions of the lower
lumbar spine...better characterized on prior MRI.” [Tr. 481
(emphasis added); see Tr. 91-92 (ALJ discussing MRI showing
“no significant spinal stenosis or foraminal encroachment and
EMG studies showing “no evidence of radiculopathy in the lower
21
extremities.”)].
The ALJ also determined that plaintiff’s reported
activities of daily living did not support the limitations
found in Drs. Grabelle and Rosenblum’s medical statements and
undermined plaintiff’s reported functional limitations due to
pain. [Tr. 91, 92]. In January 2013, plaintiff reported that
in a typical day he showered, fed animals (cat, dog and
horses), food shopped or ran errands, did yard work or
housework, and made dinner. [Tr. 242-43]. He indicated he had
no problem with personal care, made all his meals, and did
some house cleaning and light yard work, including mowing.
[Tr. 243-44]. He reported going out daily, driving a car and
shopping for food and clothing approximately once a week for
an hour. [Tr. 244-45]. Hobbies included watching T.V., car
repairs, basketball, football and yard work. “T.V. daily,
sports-2 or 3 times a month-good at playing sports, enjoy
keeping yard nice.” [Tr. 246]. He stated his condition
precluded doing sports anymore, certain yard work, cleaning up
after horses (shoveling), work on cars and he socialized less
often. [Tr. 246, 249]. Plaintiff estimated he could lift “no
more than 20 pounds.” [Tr. 247].
In April 2013, plaintiff reported he did his own
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cleaning, cooking and shopping, “I’m not an invalid. I just
can’t do tower work and confined space and all that.” [Tr.
324]. He reported he has a lot of friends, rides a motorcycle
3 to 4 times a year, has a driver’s license and is able to
drive. [Tr. 324].
At the ALJ’s hearing in February 2015, plaintiff
testified that he lived in a two story house and had no
limitations taking the stairs; he also stated he had no
limitations driving. [Tr. 111]. He testified that he can sit
comfortably for fifteen minutes, stand for about a half hour,
walk comfortably for two to three blocks. [Tr. 120]. He was
able to kneel and bend over, but not crawl. [Tr. 121]. He
described a typical day starting with a shower and coffee,
watching his wife feed the horses, riding to the store,
cooking all the meals and watching television shows. [Tr.
122]. He testified that he can do dishes, take out the trash,
concentrate on T.V., use a computer, participate in some
social activities at the Moose Lodge and/or Amvets, and use a
riding mower, but is unable to vacuum, garden, ride horses or
motorcycles, or play volleyball. [Tr. 122-25].
There is substantial evidence to support the ALJ’s
finding that “claimants subjective complain[t]s are
23
disproportionate to the medical evidence.” [Tr. 92]. For
example, the ALJ correctly found that “examinations failed to
show any residuals of lumbar radiculopathy in the form of
muscle weakness, atrophy, reflex depression or sensory loss.”
[Tr. 92, (citing 15F, 1F, 6F, 9F); see, Tr. 286 (“He is very
muscular...neurologically and neurovascularly intact for
strength, sensation, and reflexes.”); Tr. 319 (strength 5/5 to
upper and lower extremities, full grip and pinch strength, no
focal neurological deficits noted, full range of motion of the
upper and lower extremities); Tr. 324 (plaintiff reporting he
does all his cleaning, cooking and shopping; “I’m not an
invalid;” he has a lot of friends, rides a motorcycle 3-4
times a year, drives a car, travels independently, works
independently); Tr. 336 (noting symmetrical deep tendon
reflexes, no pathologic reflexes found, sensory testing intact
for lower extremities, motor strength testing is 5/5 for both
legs); Tr. 339 (negative neuromuscular); Tr. 359 (strength and
tone: +5/5 both lower extremities proximal and distal, normal
negative straight leg raise test both legs); Tr. 395-96
(tramadol takes the “edge off of his pain;” Neuro-Motor: 5/5
bilateral L.E.; Neuro-Sensory: pinprick sensation intact in
bilateral L.E.).
24
Dr. Elena Napolitano’s report also supports the ALJ’s RFC
finding. In April 2013, when he was examined by Dr.
Napolitano, plaintiff was not on any pain medication, denied
bowel or bladder incontinence and did not use a cane or
walker. [Tr. 318]. Plaintiff reported that he opted not to do
epidural treatments or any invasive treatment. [Tr. 318]. Dr.
Napolitano observed that plaintiff ambulates at a reasonable
pace, gait without the use of a handheld assisted device;
walks on heels and toes; squats; strength was 5/5 to the upper
and lower extremities; full grip strength and pull strength;
full range of motion to his upper and lower extremities;
independent to transfer off examination table. [Tr. 319]. The
doctor’s diagnostic impression confirmed chronic low back pain
with
reproducible radicular pain in the S1 distribution.
However, there was no focal neurological deficits at
the time. He was independent with ambulation and
transfers. Despite...limitations, I anticipated this
patient could carry and lift at least 20-25 pounds.
There was no need for any orthotics or handheld
assisting device. The patient does drive and is
independent with activities of daily living.
[Tr. 319].
In January 2015, plaintiff reported that medication
“takes the edge off his pain” and in May 2015, he reported
that medication offered “tolerable pain relief and allows him
25
to function to a greater degree without any noted adverse
affects.” [Tr. 395, 464; see Tr. 370 (in September 2013,
plaintiff reported mild improvement from epidural
injections)].
Substantial evidence supports the ALJ’s finding that
plaintiff’s subjective complaints are disproportionate to the
objective medical evidence.
State Agency Physicians
Plaintiff also takes issue with the ALJ’s assessment of
“great weight” to the 2013 opinions of the state agency
physicians, Drs. Przybyla and Kahanowicz, which he contends
was “complete error.” [Tr. 93, 141-42, 152-53, Pl. Brief at 911]. He argues that the non-examining doctors based their
opinions “on only a minimal portion of the evidence, mostly of
which was an old MRI and a one-time consultative examination.”
[Pl. Brief at 11].
The Third Circuit Court of Appeals has held that “because
state agency review precedes ALJ review, there is always some
time lapse between the consultant's report and the ALJ hearing
and decision. The Social Security regulations impose no limit
on how much time may pass between a report and the ALJ's
decision in reliance on it.” Chandler v. Comm'r of Soc. Sec.,
26
667 F.3d 356, 361 (3d Cir. 2011). Thus, “it is not unexpected
that the ALJ may have more evidence to review than the state
agency did.” Golzak v. Colvin, No. 3:12CV2247, 2014 WL 980752,
at *10 (M.D. Pa. Mar. 13, 2014).
“State agency medical and psychological consultants are
highly qualified physicians and psychologists who are experts
in the evaluation of the medical issues in disability claims
under the Act” and, as the Third Circuit has held, the
opinions of non-examining sources can override the treating
sources’ opinions provided they are supported by substantial
evidence in the record. SSR 96–6p, 1996 WL 374180, at *1
(S.S.A. July 2, 1996); Chandler, 667 F.3d at 361-62 (noting
that in making a disability determination the ALJ made
detailed findings of the claimant’s medical history and
properly explained the weight given to the state agency
opinions, the doctor’s opinions and the credibility of the
claimant). “[A]dministrative law judges must consider findings
of State agency medical and psychological consultants, and
other medical specialists as opinion evidence, except for the
ultimate determination about whether [a claimant is]
disabled.” Golzak, 2014 WL 980752, at *10 (citing 20 C.F.R.
§404.1527(e)(2)(I)). Plaintiff fails to articulate how the
27
opinions of the state reviewing non-examining physicians are
unsupported by the record, except to state that these
physicians did not examine him and only reviewed portions of
the medical records. The Court finds this argument without
merit
The Court notes that the ALJ assessed additional
functional limitations than those assessed by the state agency
physicians, impacting plaintiff’s ability to perform light
work. [Tr. 88]. The ALJ’s RFC determination is supported by
substantial evidence of record. The ALJ conducted a detailed
review of the relevant evidence of record, including
plaintiff’s testimony, medical test results, treatment notes
from plaintiff’s medical providers, consultative examiners’
reports and the medical opinions of record. [Tr. 88-93].
Accordingly, the Court finds that the ALJ’s findings were
not error and were supported by substantial evidence.
B.
There is Substantial Evidence Supporting the ALJ’s Step
Five Determination
Plaintiff argues that the ALJ erred at step five, where
the burden shifts to the Commissioner to prove that there is
some other kind of substantial gainful employment the claimant
is able to perform. Asked whether there are jobs that the
plaintiff can perform, the VE testified that given the RFC
28
determined by the ALJ, the plaintiff would be able to perform
occupations such as supervisor, structural metal products;
template marker for tracks; and inspector and tester. [Tr.
132-33].
Plaintiff first contends that the ALJ erred at step five
because the “vocational expert’s testimony conflicted with the
ALJ’s residual functional capacity.” [Pl. Brief at 15-17]. He
argues that “[a]ll of the jobs the vocational expert
cited,...require the claimant to be in a work environment of
dust, fumes, pulmonary irritants, and temperature extremes.”
[Pl. Brief at 16]. The ALJ squarely addressed whether these
jobs could be performed with “concentrated exposure to dust,
fumes, and pulmonary irritants, and temperature extremes.”
[Tr. 132 (emphasis added)]. In response the VE stated that all
three jobs would be available with those limitations. [Tr.
132-33]. Plaintiff offers no authority for his argument that
these jobs “require the claimant to be in a work environment
of dust, fumes, pulmonary irritants, and temperature
extremes.” [Tr. Pl. Brief at 16 (emphasis added)]. Defendant
correctly argues that these jobs identified by the ALJ do not
require concentrated exposure to temperature extremes or
atmospheric conditions. [Def. Brief at 18 (emphasis added)
29
(citing Dictionary of Occupational Titles, Supervisor,
Assembly Department, DICOT 809.130-010, 1991 WL 681532 (Jan.
1, 2016) (“Exposure to Weather,” “Extreme Cold,” “Extreme
Heat,” “Wet and/or Humid,” “Atmospheric Cond.,” and “Toxic
Caustic Chem.,” were “Not Present - Activity or condition does
not exist.”); Template Maker, Track, DICOT 809.484-014, 1991
WL 681550 (Jan. 1, 2016)(same); and Inspector and Tester,
DICOT 809.687-018 1991 WL 681565 (Jan. 1, 2016)(same).
Finally, plaintiff argues that an independent VE,
retained by plaintiff after the ALJ’s decision, found his
skills non-transferable and that the testifying VE erred in
testifying otherwise. [Tr. 94, 132]. Plaintiff appended a
letter dated July 18, 2015, from an independent VE to his
brief to the Appeals Council to support his argument that the
“vocational expert’s testimony at the hearing was inaccurate
as to whether Mr. Suarez’s employment had transferrable
skills” to other jobs. [Tr. 280-82, 283]. This independent
evidence post-dates the ALJ’s May 29, 2015 ruling and is not
properly before the Court. Moreover, the Court notes that
plaintiff did not object or challenge the VE’s testimony on
transferability of skills at the ALJ’s hearing.
Evidence not submitted to the ALJ is only reviewable by
30
the district court as a basis for remand to the Commissioner
for further proceedings pursuant to sentence six of 42 U.S.C.
§405(g). The Third Circuit has “recognized that evidence first
presented to the district court must not only be new and
material but also be supported by a demonstration by claimant
of ‘good cause for not having incorporated the new evidence
into the administrative record.’” Matthews v. Apfel, 239 F.3d
589, 592–93 (3d Cir. 2001)(quoting Szubak v. Sec'y of HHS, 745
F.2d 831, 833 (3d Cir. 1984)); see 20 C.F.R. §416.1470(a)(5)
(“The Appeals Council will review a case if”...“the Appeals
Council receives additional evidence that is new, material,
and relates to the period on or before the date of the hearing
decision, and there is a reasonable probability that the
additional evidence would change the outcome of the
decision.”); Younge v. Berryhill, No. CV 16-5271, 2017 WL
2978758, at *15 (E.D. Pa. May 31, 2017)( “A district court may
only order remand if the evidence satisfies three prongs: (i)
the evidence is new and not merely cumulative of what is
already in the record; (ii) the evidence is material: it must
be relevant and probative, and there must be a reasonable
possibility that the new evidence would have changed the
outcome of the ALJ's determination; and (iii) there was good
31
cause why it was not previously presented to the ALJ.”).
Plaintiff has made no showing of good cause for failure to
produce the evidence to the ALJ, and it will not be considered
here.
Accordingly, the Court finds no error in the ALJ’s
reliance on the vocational expert’s testimony in support of
his determination at step five.
VI.
CONCLUSION
For the reasons stated, the decision of the Commissioner
is therefore AFFIRMED and the Court is directed to enter
judgment in favor of the defendant and instructed to close
this case.
An accompanying Order will issue.
This is not a Recommended Ruling. The parties consented
to proceed before a United States Magistrate Judge [doc. #16]
on April 6, 2018, with appeal to the Court of Appeals. Fed. R.
Civ. P. 73(b)-(c).
SO ORDERED this 2nd day of May 2018.
___/s/______________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
32
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