MCLAUGHLIN v. COMMISSIONER OF SOCIAL SECURITY

Filing 20

MEMORANDUM OPINION. Signed by Judge Michael A. Shipp on 3/31/2019. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MICHAEL MCLAUGHLIN,
Plaintiff,
Civil Action No. 17-11811 (MAS)

v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY,

MEMORANDUM OPINION

Defendant.

SHIPP, District Judge
This matter comes before the Court upon Michael McLaughlin’s (“Plaintiff’) appeal from
the final decision of Nancy A. Berryhill, Acting Commissioner of the Social Security
Administration (“Defendant” or “Commissioner”), denying Plaintiffs application for a period of
disability and disability insurance benefits (“DIB”). The Court has jurisdiction to review this
matter pursuant to 42 U.S.C.

§ 405(g)

and reaches its decision without oral argument pursuant to

Local Civil Rule 78.1. For the reasons set forth below, the Court affirms the Administrative Law
Judge’s (“ALl”) decision.
I.

BACKGROUND
A.

Procedural History1

Plaintiff filed an application for disability on June 10, 2013, alleging an onset date
beginning on October 17, 2012. (AR 70-71.) Plaintiffs claim was denied initially on September

1

The Administrative Record is located at ECF Nos. 10-1 through 10-7. The Court will reference
the relevant pages of the Administrative Record (“AR”) and will not reference the corresponding
ECF citations within those files.

25, 2013, and again upon reconsideration on January 30, 2014. (Id. at 70-77, 80-88.) The AU
conducted an administrative hearing on May 24, 2016, following which the AU issued a decision
finding that Plaintiff was not disabled. (Id. at 9-19, 24-68.) The Appeals Council denied Plaintiffs
request for review on September 15, 2017. (Id. at 1-4.) On November 19, 2017, Plaintiff filed an
appeal to the District Court of New Jersey. (ECF No. 1.) The Clerk issued a summons on
November 20, 2017 (ECF No. 4), which Plaintiff returned executed on March 14, 2018 (ECF No.
6). Defendant filed the administrative record on April 10, 2018. (ECF No. 10.) This case was
reassigned to Chief Judge Jose L. Linares on April 13, 2018. (ECF No. 11.) Plaintiff filed his
moving brief on November 26, 2018, pursuant to Local Civil Rule 9.1. (ECF No. 17.) The
Commissioner filed opposition on December 7, 2018 (ECF No. 18), and Plaintiff did not reply.
On March 4, 2019, this case was reassigned to the Undersigned for all further proceedings. (ECF
No. 19.)
B.

Factual History

Plaintiff is a fifty-one year-old male born on July 20, 1967. (AR 145.) He holds a high
school diploma, and served twenty-three years on the New York City police force in Staten Island,
primarily as a patrol officer. (Id. at 35-36.) Plaintiff filed his initial disability claim based on:
“cervical fusion and discectomy,” “cervical herniated disc, radiculopathy,” “left shoulder
impingement, status post surgery,” and “lumbar bulging disc.” (Id. at 70, 80.)
Plaintiffs medical problems began after he suffered a head-on collision while driving a
patrol car on duty as a police officer in 2005, causing him to sustain an injury to his spine. (Id. at
352.) He underwent surgery in August of 2005 with Dr. Benjamin, and after extensive
rehabilitative therapy, returned to the police force on light duty. (Id. at 315, 352, 367.) In 2010,
Plaintiff “f[ell] down the stairs while on duty and reinjured his cervical and lumbar spine” and left

2

shoulder. (Id.) He then underwent left shoulder surgery in 2010 with Dr. Reilly. (Id. at 315.) In
2015, Plaintiff had additional cervical spinal surgery at New York University Hospital. (Id. at 354.)
At the hearing, Plaintiff testified that he resides in New Jersey with his girlfriend and two
teenage daughters. (Id. at 33.) He testified that he has a driver’s license, but cannot drive more than
twenty-five miles at a time. (Id. at 34.) Plaintiff testified that he served as a police officer in Staten
Island, and that after his injury, he was put on “restricted duty” and tasked with light desk work
around the station house. (Id. at 35-36.) He testified that while he desired to return to full duty, he
was not permitted to do so. (Id. at 37.) Plaintiff testified that he has not looked for any other work
since being put on disability retirement “because of all the medical issues [he has] had” and
because of his “chronic pain.” (Id. at 4 1-42.)
Plaintiff testified that for pain, he takes Trarnadol, Zanaflex, Mobic, and Flexeril. (Id. at
42.) He further testified that he cannot walk longer than twenty minutes at a time without falling,
and that he can only sit for thirty minutes at a time because “[his] legs go numb.” (Id. at 43-44.)
Plaintiff stated that he has pain in his arms, neck, lower back, and shoulder. (Id. at 44.) Plaintiff
has been treated with epidural and steroid injections, which have provided some relief. (Id. at 46.)
According to Plaintiff, he is able to do light housework such as sweeping the floor or
cooking for himself. (Id. at 48.) Plaintiff testified that he is able to lift a gallon of milk, but tries
not to lift anything heavier. (Id. at 52.) Plaintiff also testified that he suffers pounding headaches
that he believes are triggered by neck pain from poor sleep quality. (Id. at 5 3-54.) Plaintiff stated
that his medications make him very tired, and that “[he] is not able to stay up during an eight hour
period.” (Id. at 55.)
C.

The AU’s Decision

On June 13, 2016, the AU rendered a decision. (Id. at 9-19.) The AU set forth the Social
Security Administration’s five-step sequential process for determining whether an individual is
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disabled. (Id. at 9-11.) At step one of the analysis, the AU found that Plaintiff had not engaged in
substantial gainful activity (“S GA”) since October 17, 2012, the alleged disability onset date. (Id.
at 11.) At step two of the analysis, the AU found that Plaintiff had the severe impairments of
chronic cervical/lumbosacral radiculopathy; chronic traumatic cervical rnyeloradiculopathy; and
multilevel cervical disc hemiations. (Id.)
At step three, the AU determined that none of Plaintiffs impairments, or combination of
impairments, met or medically equaled the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (Id. at 11-12.) The AU next found that Plaintiff possessed the
residual functional capacity (“RFC”) to perform sedentary work, except that Plaintiff can
“lift/carry up to [ten] pounds”; “stand/walk [two] hours in an [eight] hour workday but needs the
opportunity to sit for [five] minutes after [thirty] minutes of standing/walking”; “sit tsix] hours in
an [eight] -hour workday but needs the opportunity to stand for [five] minutes after [thirty] minutes
of sitting, or is limited to a job that is posturally immaterial.” (Id. at 12.) The AU found that
Plaintiff can “occasionally climb ramps/stairs, but never climb ladders/ropes/scaffolds,” “can
frequently balance, kneel, crouch and crawl,” and “can occasionally stoop, but never reach
overhead,” and that Plaintiff can “frequently handle and finger.” (Id.) At step four, the AU found
that Plaintiff is unable to perform any past relevant work. (Id. at 18.) At step five, considering
Plaintiffs age, education, and work experience, and relying on the testimony of the vocational
expert (“yE”), the AU found that Plaintiff is able to perform the requirements of representative
occupations available in significant numbers in the national economy, such as “video surveillance
monitor,” “telemarketer,” and “information aide.” (Id. at 18-19.) The AU, accordingly, found that
Plaintiff has not been under a disability from October 17, 2012, through the date of the decision.
(Id. at 19.)

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II.

LEGAL STANDARD
A.

Standard of Review

On appeal from the final decision of the Commissioner of the Social Security
Administration, the district court “shall have power to enter, upon the pleadings and transcript of
the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C.

§ 405(g);

Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001). To survive judicial review, the
Commissioner’s decision must be supported by substantial evidence. Richardson v. Perales, 402
U.S. 389, 401 (1971); Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000); Plummer v. Apfel, 186
F.3d 422, 427 (3d Cir. 1999); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999); Jones v.
Stttlivan, 954 F.2d 125, 127-28 (3d Cir. 1991); Daring v. Heckler, 727 F.2d 64, 6$ (3d Cir. 1984).
Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401 (citing
Consol. Edison Co.

V.

NLRB, 305 U.S. 197, 229 (193$)). Substantial evidence is “more than a mere

scintilla of evidence but may be somewhat less than a preponderance of the evidence.” Ginsburg
v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971).
In reviewing the record for substantial evidence, the court “may not weigh the evidence or
substitute [its own] conclusions for those of the fact-finder.” Rutherford v. Barnhart, 399 F.3d 546,
552 (3d Cir. 2005) (internal quotation omitted). Even if the Court would have decided differently,
it is bound by the AU’s decision if it is supported by substantial evidence. fargnoli v. Massanari,
247 F.3d 34, 38 (3d Cir. 2001). The Court must “review the record as a whole to determine whether
substantial evidence supports a factual finding.” Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir.
2014) (citing Schaudeck v. Comm ‘r ofSoc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999)). “Since
it is apparent that the AU cannot reject evidence for no reason or for the wrong reason, an
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explanation from the ALl of the reason why probative evidence has been rejected is required so
that a reviewing court can determine whether the reasons for rejection were improper.” Cotter v.
Harris, 642 F.2d 700, 706-07 (3d Cir. 1981) (internal citation omitted).
B.

Establishing Disability

In order to be eligible for entitlements under the Social Security Act, a claimant must be
unable “to engage in any [SGA] 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 [twelve] months

.

.

.

.“

42 U.S.C.

§ 423(d)(1)(A).

For

purposes of the statute, the claimant is disabled only if his physical or mental impairments are “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).

A physical or mental impairment is one

“that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.

§ 423(d)(3).
Social Security regulations provide a five-step evaluation procedure to determine whether
an individual is disabled. See 20 C.F.R.
activity, if any. 20 C.F.R.

§ 416.920(a)(4). The first step considers a claimant’s work

§ 416.920(a)(4)(i).

To satisfy the first step, the claimant must establish

that he has not engaged in any SGA since the onset of his alleged disability. Id. At the second step,
the claimant must establish that he suffers from a severe impairment or “combination of
impairments.” 20 C.F.R.

§ 416.920(a)(4)(ii). The claimant bears the burden of establishing the first

two requirements, and failure to satisfy either automatically results in denial of benefits. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant satisfies his burden, he proceeds to the third
step. The third step of the evaluation procedure requires the claimant to provide evidence that his
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impairment is equal to one of those impairments listed in Appendix I of the regulations. 20 C.F.R.

§

41 6.920(a)(4)(iii). If the claimant demonstrates that he suffers from a listed impairment or that

his severe impairment is equal to a listed impairment, he is presumed disabled and is automatically
entitled to benefits. Id. If his claim falls short, the eligibility analysis proceeds to step four.
The fourth step of the analysis requires the AU to determine whether the claimant’s RFC
permits him to resume his past relevant work. 20 C.F.R.

§

404.1520(a)(4)(iv). “A claimant’s RFC

measures the most [he] can do despite [his] limitations.” Zirnsak, 777 F.3d at 611 (internal
quotation omitted) (citing 20 C.F.R.

§

404.1545(a)(1)). If the Commissioner determines that the

claimant cannot resume his past relevant work, the burden presumptively shifts to the
Commissioner to show “the existence of other available work that the claimant is capable of
performing.” Id. at 612 (citations omitted). The Commissioner must show at step five that “given
[the] claimant’s age, education, and work experience, he

.

.

.

can still perform specific jobs that

exist in the national economy.” Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984) (citing
Rossi v. Cahfano, 602 F.2d 55, 57 (3d Cir. 1979)); see also 20 C.F.R.

§

404.1560. At this step,

whether a claimant will receive benefits depends on the Commissioner’s finding that the claimant
is unable to perform work available in sufficient numbers in the national economy. Zirnsak, 777
F.3d at 612.
III.

DISCUSSION
Based on the Court’s review of the AU’s decision and the extensive record in the present

case, the Court finds good cause to affirm the findings of the AU. In reaching a decision, an AU
must evaluate the evidence and explain the reasons for accepting or rejecting evidence. Cotter, 642
F.2d at 706-07. The AU in this matter provided sufficient analysis for the Court to review her
findings and determine that substantial evidence supports her decision.

7

Plaintiff contends that the ALl’s decision is not supported by substantial evidence because:
(1) the ALl improperly rendered a decision at step five of the sequential evaluation because she
did not meet her burden of showing alternative work available in sufficient numbers in the national
economy; (2) the ALl did not afford proper weight to the opinions of Plaintiffs treating physicians,
Dr. Chapman and Dr. Stiler; and (3) the AU improperly rejected Plaintiffs subjective complaints
of “pain, numbness, and weakness.” (Pl.’s Moving Br. 27, 29, 35, ECF No. 17.) The Court will
analyze these arguments in turn.
A.

The AU’s Findings at Step 5

Plaintiff argues that the ALl did not meet her burden at step five of the sequential
evaluation by showing that work exists in significant numbers in the national economy that
Plaintiff could perform based on his RFC, age, education, and work experience. (Id. at 27-28.)
The Third Circuit has repeatedly held that an AU is entitled to rely on the testimony of a
VE in rendering a finding at step five of the sequential evaluation. “The ALl must show there are
other jobs existing in significant numbers in the national economy which the claimant can perform,
consistent with [his] medical impairments, age, education, past work experience, and [RFC]

.

The AU will often seek the assistance of a [VE] at this fifth step.” fargnoli, 247 F.3d at 39 (citing
Podedworny, 745 F.2d at 218); see Sykes v. Apfel, 228 F.3d 259, 266-72 (3d Cir. 2000) (holding
that additional testimony from the VE was required to sustain a finding that non-exertional
impairments have not significantly eroded a claimant’s RFC); see also Plummer v. Apfel, 186 F.3d
422, 431 (3d Cir. 1999) (holding that the AU’s reliance on hypotheticals by the AU in rendering
the finding at step five was not erroneous); Rutherford v. Barnhart, 399 F.3d 546, 554-55 (3d Cir.
2005) (affirming the ALl’s reliance on hypotheticals in making a step five determination).
Here, the AU posed extensive hypotheticals to the VE at the hearing, which incorporated
Plaintiffs RFC limitations, and which she relied upon in making her findings. (AR 19, 57-67.)
8

Specifically, the ALl relied on the VE’s answers to the hypotheticals in finding that there existed
jobs in the national economy that comported with Plaintiffs RFC. (Id.) Plaintiffs argument,
therefore, is unpersuasive and unavailing.
B.

The AU’s findings Regarding Plaintiff’s Physicians

Plaintiff takes issue with the ALl’s failure to afford more weight to the reports of Plaintiffs
treating neurologist, Dr. Igor $tiler, and Plaintiffs treating pain management specialist, Dr.
Kenneth Chapman. (Pl.’s Moving Br. 29-34.) Plaintiff argues that the opinions of his treating
physicians are entitled to great weight, stating that they are “uncontradicted” within the record.
(Id. at 31.)
Pursuant to regulation, a treating doctor’s opinion is afforded controlling weight if the
“treating source’s medical opinion on the issue(s) of the nature and severity of [the claimant’s]
impairments(s) is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case record.
C.F.R.

§

.

.

.“

20

404.1527(c)(2); see also Russo v. Astrite, 421 F. App’x 184, 190 (3d Cir. 2011). “State

agent opinions merit significant consideration as well.” Chandler v. Comm ‘r ofSoc. Sec., 667 F.3d
356, 361 (3d Cir. 2011); see also Brown v. Astrtte, 649 F.3d 193, 197 (3d Cir. 2011) (“As the AU
clearly explained why [he] gave greater weight to the opinion of [the state agency physician], [his]
decision was supported by substantial evidence and was not contrary to law.”) (citation omitted).
In accordance with Third Circuit precedent, the ALl relied on two separate state agency
physicians in rendering her decision, affording partial weight to the opinions of state doctors Dr.
Zwi Kahanowicz and Dr. Nancy Simpkins. (AR 16.) The ALl supported her findings with the state
doctors’ evaluations because Plaintiffs “sitting, balancing, kneeling, crouching and crawling
limitations [were] consistent with the overall evidence” and because “the record reveal[ed] no
significant impairments that would interfere with the above activities.” (Id.) Notably, the AU did
9

not afford great weight to all of the state agency experts’ conclusions, finding that their opinions
regarding some of Plaintiffs limitations were not consistent with the overall record.2 (Id.) The
AU’s decision demonstrates that, in making her findings, the AU evaluated and weighed whether
the opinions were consistent with record evidence. The AU was under no obligation to accept the
opinion of a treating physician in relation to the physician’s status but was instead required to make
factual findings and weigh medical evidence in accordance with the relevant standards. See Cotter,
642 F.2d at 705-06. The AU did so here.
Additionally, although Plaintiff argues that the AU should have afforded more weight to
Plaintiffs treating physicians’ determinations that Plaintiff is permanently disabled, the AU is not
obligated to accept opinions of any outside source on the ultimate issue. (Pl.’s Moving Br. 31);
Chandler, 667 F.3d at 361 (“The AU—not treating or examining physicians or State agency
consultants—must make the ultimate disability and RFC determinations.”).
Here, the ALl’s discretion to rely on two separate state agency physicians as a factual basis
for a finding of non-disability is supported by Third Circuit precedent. Brown, 649 F.3d at 196-97

2

The ALl further explained the relative weight she afforded to the state agency experts’ opinions,
which are reflected in her RFC findings:
I find these consultants overestimated [Plaintiffs] standing,
walking, lifting, carrying, climbing and manipulative abilities, as
they failed to give appropriate consideration to the claimant’s
with prolonged
increased pain
and other symptoms
walking/standing, lifting/carrying of heavy objects, climbing and
manipulative functions; accordingly, these portions of these
opinions are assigned little weight. Finally, I find it appropriate to
adopt a sit/stand option or limit the claimant to work that is
posturally immaterial, as more fully set forth in the residual
functional capacity above; these consultants’ failure to recognize
such a restriction renders their opinions less consistent with the
record as a whole and thus less weight is assigned to these portions
of their opinions.
(AR 16.)
10

(holding that the AU’s decision not to credit the plaintiffs subjective limitations was supported
by the substantial evidence of the state agency expert’s opinion and observational medical
evidence contained within the treating physician’s reports); see also Chandler, 667 F.3d at 361;
Jones, 954 F.2d at 129; Newhouse, 753 F.2d at 285-86. The Court, therefore, finds that the ALl’s
RFC findings were based on substantial evidence.
C.

Plaintiff’s Subjective Complaints of Pain

Plaintiff argues that the ALl did not afford proper weight to Plaintiffs subjective
complaints of chronic neck and back pain, supported by the opinions of his treating physicians.
(Pl.’s Moving Br. 37-38.)
Plaintiff is correct that both treating physicians’ opinions and his subjective complaints of
pain are to be afforded due weight. See Morales, 225 F.3d at 318; Podedworny, 745 F.2d at 217.
An ALl, however, “is not bound to accept the opinion or theory of any medical expert, but may
weigh the medical evidence and draw [her] own inferences.” Kertesz v. Crescent Hills Coal Co.,
788 F.2d 158, 163 (3d Cir. 1986) (citation omitted).
While a plaintiff will not be able to establish disability by subjective complaints of pain
alone, “[a]n ALl must give great weight to a claimant’s subjective testimony of the inability to
perform even light or sedentary work [if the] testimony is supported by competent medical
evidence.” Schaitdeck, 181 F.3d at 433. The AU “can reject such claims if [she] does not find
them credible” as long as the decision contains a thorough discussion of the reasons behind the
findings contained within it. Id. (citing Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974)).
“[A] statement by a plaintiffs treating physician supporting an assertion that [heJ is ‘disabled’ or
‘unable to work’ is not dispositive of the issue.” Adorno v. Shalala, 40 F.3d 43, 47-48 (3d Cir.
1994) (citing Wright v. Sjtllivan, 900 F.2d 675, 683 (3d Cir. 1990)); see also Jones, 954 F.2d at
129 (“[T]he opinions offered by [the claimant’s] treating physicians were conclusory and
11

unsupported by the medical evidence.

.

.

.

Further, these opinions were not uncontradicted.”).

Finally, the Third Circuit has held that “test results alone are insufficient to support a claim of
disability,” and that an AU is entitled to afford greater weight to physicians’ notes reflecting a
plaintiffs presentation as normal, than to subjective complaints alone. Jones v. Barnhart, 364 F.3d
501, 504 (3d Cir. 2004).
Here, the ALl thoroughly discussed each doctor’s treatment history and the relative weight
she afforded to each opinion. (AR 12-18.) The AU specifically credited Plaintiffs subjective
complaints of pain in rendering the RFC, and withheld weight from the state agency experts’
conclusions where appropriate. (Id. at 16.) The AU also found that Plaintiffs “self-reported
activities of daily living [were] inconsistent with an individual experiencing totally debilitating
symptomatology[,J” because

Plaintiff admittedly “prepare[d]

simple

meals,

showered

independently, read the newspaper, folded laundry, socialized with others, had no trouble getting
along with others, followed instructions [okay], got along [okay] with authority figures, and
handled stress/routine changes [okay].” (Id. at 13-14.) The ALl recalled that at the hearing,
Plaintiff did not demonstrate “antalgic gait or any observable physical issues,” and that physical
examination by Dr. Stiler in 2016 had “revealed a normal gait, intact sensation, full motor strength
and normal reflexes, albeit with limited cervical range of motion.” (Id. at 14, 16.) Finally, the ALl
explained that the opinions of Plaintiffs treating physicians were inconsistent with the objective
medical evidence and “[were] inconsistent with both treatment records and [Plaintiffs] own
admissions regarding his abilities.” (Id. at 17.)
Ultimately, it is not the Court’s role to re-weigh the evidence, either against or in favor of
Plaintiff, or to “impose [its] own factual determinations.” Chandler, 667 F.3d at 359 (citing
Richardson, 402 U.S. at 401). The Court, accordingly, finds that the ALl’s decision was supported
by substantial evidence, and finds good cause to affirm her decision.
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IV.

CONCLUSION
For the foregoing reasons, the decision of the AU is affirmed. An Order consistent with

this Memorandum Opinion will be entered.

s/Michael A. Shipp
MICHAEL A. SrnPP
UNITED STATES DI5T1UcT JUDGE

Dated: March 31, 2019

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