MUNIZ v. ASTRUE

Filing 16

MEMORANDUM AND OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 12/19/12. 12/19/12 ENTERED & E-MAILED.[fdc]

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ADELAIDA MUNIZ,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Defendant.

CIVIL ACTION
NO. 11-7920

M E M O R A N D U M
EDUARDO C. ROBRENO, J.
I.

DECEMBER 19, 2012

INTRODUCTION
Plaintiff Adelaida Muniz filed this action pursuant to

42 U.S.C. § 405(g) seeking judicial review of the final decision
of the Commissioner of the Social Security Administration
(“Commissioner”) denying her application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”) under Titles II and XVI of the Social Security Act. Upon
consideration of the administrative record, submitted pleadings,
Magistrate Judge Linda K. Caracappa’s Report and Recommendation,
ECF No. 13, and objections thereto, ECF No. 14, the Court adopts
Judge Caracappa’s Report and Recommendation (“R&R”).
Plaintiff’s request for review is denied and judgment is entered
in favor of the Commissioner.

II.

BACKGROUND
Plaintiff was born on September 23, 1962. R&R 1. She

has a sixth-grade education and lives alone. Id. Plaintiff
worked in the past as a machine feeder. Id.
Plaintiff was forty-five years old at the time of her
alleged onset date and forty-seven at the time of her
administrative hearing. Pl.’s Br. 1, ECF No. 9. Plaintiff filed
applications for disability and Social Security Income benefits
on November 5, 2008, alleging disability beginning on October
26, 2007. R&R 1-2. Plaintiff claimed she was disabled due to
pinched nerves in her back, back problems, asthma, and
depression. Id. 2. After her application was denied at the state
level on March 20, 2009, Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). Id.
On April 22, 2010, a hearing was held before ALJ
Alexander Nunez. Id. Plaintiff was represented by counsel and
testified. Id. A vocational expert also testified. Id. On June
22, 2010, ALJ Nunez denied Plaintiff’s application for DIB and
SSI benefits. R. App. 2 at 23.1 After finding that Plaintiff
suffered from degenerative disc disease, asthma, obesity, and a
major depressive disorder, ALJ Nunez determined that Plaintiff
had residual functional capacity to perform light work, limited

1

Citation to the Administrative Record. See ECF No. 8.
2

to simple, repetitive, unskilled tasks. Id. at 21, 23.
Plaintiff requested review of the ALJ’s decision by
the Appeals Council, but his request was denied. On April 20,
2012, Plaintiff filed a complaint seeking review in this Court.
Pl.’s Br. Plaintiff alleged two principal errors in ALJ Nunez’s
decision: (1) that the ALJ erred in failing to properly assess
the effects of Plaintiff’s obesity in combination with
Plaintiff’s other impairments at step five of the sequential
evaluation; and (2) that the ALJ erred in failing to rule that
bilateral peroneal neuropathy was a severe medical impairment
and by failing to consider its impact on Plaintiff’s residual
functional capacity. Pl.’s Br. 4, 6. The Court, pursuant to Rule
72.1 of the Local Rules of Civil Procedure, and 28 U.S.C. §
636(b)(1)(B), referred the matter to Magistrate Judge Linda K.
Caracappa for a Report and Recommendation. See Order, May 17,
2012, ECF No. 11.
On July 25, 2012, Judge Caracappa issued her report,
recommending that the Court deny Plaintiff’s request for review.
R&R, ECF No. 13.

Briefly, Judge Caracappa held that ALJ Nunez

adequately considered the cumulative effect of Plaintiff’s
obesity on her other impairments. Further, she found that
Plaintiff had not asserted bilateral peroneal neuropathy as one
of the conditions affecting her ability to work and that “the
ALJ did not commit a nonharmless error. . .
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by failing to find

neuropathy to be a severe impairment.” R&R 20.
Plaintiff filed objections to Judge Caracappa’s R&R.
ECF No. 14. The Commissioner responded to Plaintiff’s
objections. Def.’s Resp., ECF No. 15. The matter is now ripe for
disposition.
III. STANDARD OF REVIEW
The Court undertakes a de novo review of the portions
of the Report and Recommendation to which Plaintiff has
objected.

See 28 U.S.C. § 636(b)(1) (2006); Cont’l Cas. Co. v.

Dominick D’Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998).

The

Court “may accept, reject or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

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U.S.C. § 636(b)(1).
In reviewing the Commissioner’s final determination
that a person is not disabled2 and, therefore, not entitled to

2

A claimant is “disabled” if he or she is unable to
engage in “any substantial gainful activity 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.” Basic Definition of Disability for Adults, 20 C.F.R.
§ 416.905 (2012); Basic Definition of Disability, 20 C.F.R.
§ 404.1505 (2012).
Once the claimant satisfies her burden by showing an
inability to return to her past relevant work, the burden shifts
to the Commissioner to show the claimant (given her age,
education, and work experience) has the ability to perform
specific jobs existing in the economy. 20 C.F.R. §§ 416.920,
4

SSI benefits, the Court may not independently weigh the evidence
or substitute its own conclusions for those reached by the ALJ.
See Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002).
Instead, the Court must review the factual findings presented in
order to determine whether they are supported by substantial
evidence.

See 42 U.S.C. § 405(g) (2006); Rutherford v.

Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
Substantial evidence constitutes that which a
“reasonable mind might accept as adequate to support a
conclusion.”

Rutherford, 399 F.3d at 552 (internal quotation

marks omitted).

“It is ‘more than a mere scintilla but may be

somewhat less than a preponderance of the evidence.’”

Id.

(quoting Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir.
1971)).

If the ALJ’s decision is supported by substantial

evidence, the Court may not set it aside even if the Court would
have decided the factual inquiry differently.

See Hartranft v.

Apfel, 181 F.3d 358, 360 (3d Cir. 1999); see also Rutherford,
399 F.3d at 552 (“In the process of reviewing the record for
substantial evidence, we may not ‘weigh the evidence or
substitute [our own] conclusions for those of the fact-finder.’”
(quoting Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir.
1992))).
404.1520; see Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir.
2005).
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Because Judge Caracappa properly outlined the
standards for establishing a disability under the Social
Security Act and summarized the five-step sequential process for
evaluating disability claims, the Court will not duplicate these
efforts here.

See Santiago v. Barnhart, 367 F. Supp. 2d 728,

732 (E.D. Pa. 2005) (Robreno, J.) (outlining standards and fivestep sequential process for evaluating disability claims).
IV.

DISCUSSION
Magistrate Judge Caracappa recommends that Plaintiff’s

motion for request for review be denied and that judgment be
entered in this matter in favor of Defendant.
The thrust of Plaintiff’s objections to Magistrate
Judge Caracappa’s Report and Recommendation is a reiteration of
the arguments proffered in Plaintiff’s original memorandum and
reply. First, she argues that the ALJ committed a reversible and
harmful error of law by failing to consider the impact of
Plaintiff’s morbid obesity in combination with her other
impairments at step five of the sequential evaluation. Second,
Plaintiff argues that the ALJ’s failure (1) to find that
bilateral peroneal neuropathy represented a severe medical
impairment and (2) to discuss and evaluate its impact on her
ability to work represents a reversible and harmful error. The
Court will address each in turn.

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A.

Consideration of Plaintiff’s Obesity in the ALJ’s
Sequential Evaluation
Plaintiff avers that ALJ Nunez did not properly take

into account Plaintiff’s obesity in combination with her other
impairments at steps four and five of the sequential evaluation.
Specifically, Plaintiff states that the ALJ failed in her
obligation to consider and explain, as part of her step five
evaluation, the interplay of Plaintiff’s morbid obesity,
degenerative disc disease, asthma, and depression. Pl.’s
Objections 3.
Plaintiff relies heavily on Diaz v. Commissioner of
Social Security, where the Third Circuit held that the ALJ erred
in failing to discuss the impact of claimant’s obesity in
combination with her other impairments. 577 F.3d 500, 504 (3d
Cir. 2009). Writing for the court, Judge Rendell explained, “an
ALJ must meaningfully consider the effects of a claimant’s
obesity, individually and in combination with her impairments,
on her workplace function at step three and every subsequent
step.” Id. To “meaningfully consider the effects,” an ALJ must
discuss the evidence and explain his reasoning in such a manner
that would be “sufficient to enable meaningful judicial review.”
Id. (citing Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112,
120 (3d Cir. 2000)). “An obesity analysis is especially
important when the other impairments are musculoskeletal,
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respiratory, and cardiovascular impairments.” Ellis v. Astrue,
No. 09-1212, 2010 WL 1817246, at *5 (E.D. Pa. Apr. 30, 2010).
ALJ Nunez listed obesity as a severe impairment in
step two of the evaluation process and then proceeded to discuss
its effects on other impairments at step three. R. App. 2 at 17.
Pursuant to Social Security Ruling 02-1p, the ALJ considered
Plaintiff’s obesity in conjunction with related impairments
including her degenerative disc disease and her asthma. Id.
Magistrate Judge Caracappa found that the ALJ “indeed considered
the cumulative effect of obesity on [P]laintiff’s other
impairments.” R&R 17.
Plaintiff avers that Judge Caracappa has drawn a
meaningless distinction between this case and Diaz, by stating
that the ALJ’s consideration of Plaintiff’s obesity at step
three was sufficient to meet the required analysis set out in
that case. Pl.’s Objections 3. Plaintiff misstates Judge
Caracappa’s analysis, however, as the Judge noted the ALJ’s
consideration of Plaintiff’s obesity in subsequent steps as
well: “[W]e find that the ALJ’s mention of obesity was
sufficient at step four such that we are reassured that the ALJ
considered obesity.” R&R 18. Judge Caracappa noted that the ALJ
mentioned Plaintiff’s weight issues several times in her
Residual Functional Capacity (“RFC”) analysis. Id. Specifically,
the ALJ referenced consultative examiner Dr. Fischetto’s notes
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stating “that claimant was obese.” Id.
Plaintiff notes that Dr. Fischetto performed a mental
examination, and draws the conclusion that the ALJ thus did not
consider the full impact of Plaintiff’s obesity on her physical
ability to function. Pl.’s Objections 4. As the Commissioner
notes, however, the ALJ’s reference to Dr. Fischetto’s findings
confirms that she did indeed fully consider the impact of
Plaintiff’s obesity on her overall functional capacity. Def.’s
Resp. to Pl.’s Objections 2 n.1. SSR 02-1p provides that obesity
may effect mental impairments. Id. If anything, the ALJ’s
consideration of Dr. Fischetto’s mental examination only
demonstrates that the ALJ did not ignore Plaintiff’s obesity.
In Diaz, the court made clear, “[w]ere there any
discussion of the combined effect of Diaz’s impairments, we
might agree with the District Court” that the ALJ’s
consideration of obesity was sufficient. 577 F.3d at 504. “The
ALJ, of course, need not employ particular ‘magic’ words.” Id.
Plaintiff claims that the ALJ’s “cursory references to obesity
[did] not satisfy [her] obligation to conduct a meaningful
analysis of the impact of obesity on Plaintiff’s ability to
perform other jobs at step five.” Pl.’s Objections 4. Defendant
responds that the ALJ’s decision must not be read in a vacuum;
rather the ALJ’s discussion at each step should be read in
conjunction with her discussion at every other step.
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Step five of the sequential evaluation process
requires the ALJ to determine whether the claimant is able to do
any other work considering her residual functional capacity,
age, education, and work experience. R. App. 2 at 16. To the
extent that residual functional capacity is a determination
based on cumulative analysis of Plaintiff’s impairments, it
seems that the proper analysis could occur at step five without
explicit use of the word “obesity” so long as its effects were
taken into consideration.
Plaintiff states that in her initial brief, she argued
that her obesity exacerbated problems experienced with walking
and standing due to pain in her legs such that she might be
limited to sedentary work or less. Pl.’s Objections 4. Judge
Caracappa found that the ALJ had indeed noted “[P]laintiff’s
assertion that due to back pain, she cannot lift, squat, bend,
stand, reach walk, sit, or kneel.” R&R 18. The ALJ found that
there was not sufficient evidence from Plaintiff’s treating
physicians or others to support this assertion. Id. The Court
therefore agrees with Judge Caracappa in her finding that the
ALJ adequately considered Plaintiff’s obesity in making her
residual functional capacity determination, and thus adequately
considered Plaintiff’s obesity in her step five analysis.3

3

Plaintiff cites a number of cases which may be
distinguished from the case at hand. In Watson v. Astrue,
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Requiring more would result in the need for ALJs to employ the
“magic” words that Diaz expressly rejected. 577 F.3d at 504.
B.

Consideration of Plaintiff’s Bilateral Peroneal
Neuropathy
Plaintiff argues that the ALJ committed a reversible

error of law in failing to find Plaintiff’s bilateral peroneal
neuropathy to be a severe impairment and in failing to properly
evaluate its impact on her ability to work. Pl.’s Objections, 6.
As to the first aspect of Plaintiff’s claim, the ALJ
was only required to classify one severe impairment and complied
with that obligation. R&R 20. As Judge Caracappa explained:
[T]he evaluation at step two as to whether plaintiff
is suffering from a severe impairment is a threshold
analysis… To that end, as long as a claim is not
denied at step two, it is not generally necessary for
the ALJ to have found any additional alleged
impairment to be severe as long as the ALJ proceeded
with the evaluation based on all of the claimant’s
Magistrate Judge Perkin found that the plaintiff’s motion for
remand should be granted because the effects of the plaintiff’s
obesity was not actually considered in conjunction with her
other impairments in making her residual functional capacity
determination. No. 10-4720, 2009 WL 678717 (E.D. Pa. Feb. 8,
2012) (order approving and adopting magistrate judge’s report
and recommendation); see also Eads v. Astrue, No. 11-1968 (E.D.
Pa. Jan. 20, 2012) (order adopting and approving magistrate
judge’s report and recommendation which stated that ALJ failed
to consider obesity properly in RFC analysis). In Medica v.
Astrue, the ALJ did not explicitly state how the plaintiff’s
obesity had been taken into consideration in combination with
her other impairments. No. 10-4744 (E.D. Pa. July 26, 2011). In
the instant case, the ALJ considered the effect of Plaintiff’s
obesity in combination with her other impairments and there is
substantial evidence to support her conclusion that Plaintiff’s
obesity had no prohibitive effect on her ability to work.
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impairments—both severe and non-severe.
R&R 20 (citing 20 C.F.R. § 404.1520(c); Salles v Comm’r of Soc.
Sec., 229 Fed. App’x 140, 145 n.2 (3d Cir. 2007); Lee v. Astrue,
No. 06-5167, 2007 WL 1101281, at *3 n.5 (E.D. Pa. Apr. 12,
2007); Esposito v. Apfel, No. 99-771, 2000 WL 218119, at *7
(E.D. Pa. Feb. 24, 2000)).
Because the ALJ considered the pain which would be
associated with the neuropathy that Plaintiff describes, she did
not commit a harmful error. Judge Caracappa stated that the
diagnosis of bilateral peroneal neuropathy appears nowhere in
the record except in a May 2007 diagnosis by one doctor. R&R 20.
Plaintiff argues that treatment notes from September 25, 2008,
November 17, 2008, and November 24, 2009 also suggest diagnoses
of neuropathy. Pl.’s Objections 10. In each of those treatment
notes, however, the electromyogram test is listed under “Past
Medical History.” R. at 387, 600, 655. As the Commissioner
points out, no mention of neuropathy is made in the “Impressions
& Recommendations” section of those treatment notes. Def.’s
Resp. 4 (citing R. at 601-02, 657-58, 689-90).
Plaintiff further argues that the ALJ should not have
rejected medical evidence pertaining to Plaintiff’s alleged
neuropathy without providing a reason for discounting such
evidence. Pl.’s Objections 11. Plaintiff cites Cotter v. Harris
to support the proposition that an ALJ must explicitly explain
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why she has rejected specific pieces of evidence. 642 F.2d 700
(3d Cir. 1981). However, in Cotter, the court held specifically
that, “there is a particularly acute need for some explanation
by the ALJ when s/he has rejected relevant evidence or when
there is conflicting probative evidence in the record.” Id. at
706 (emphasis added). That is, the ALJ must explain why
probative evidence has been rejected in order for the district
court to be able to effectively perform its reviewing function.
Where evidence is not probative, this obligation would not
apply. In fact, the court gave an illustration of where an ALJ
would need to explicitly denote reasons for rejecting a piece of
evidence:
To state the issue simplistically but clearly, if the
record contained the evidence of six medical experts,
one of whom supported the claimant and five of whom
did not, it would be of little assistance to our
review function were the ALJ merely to state that s/he
credited the one supporting expert because that
evidence adequately demonstrated disability, but
failed to either mention or explain why the evidence
of the other five experts was rejected.
Id. In this instance, the ALJ was faced with several treatment
notes, only one of which, R. at 369, mentioned neuropathy. See,
e.g., R. at 224-25, 356-60, 363-390, 395-420, 426-32, 535-69. It
would be reasonable for the ALJ to dismiss the single diagnosis,
where the bulk of the evidence weighed against it. The single
diagnosis in this instance was not probative.

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Moreover, the ALJ considered Plaintiff’s complaints
regarding the pain associated with the alleged neuropathy and
found that there were no work preclusive functional limitations.
At the administrative hearing, the ALJ questioned Plaintiff
specifically regarding her leg pain. R. at 38-39. Plaintiff
explained that she took medication for the pain and that when
medicated, her pain was a four on a scale of ten. Id. Plaintiff
further described her difficulty in walking. Id. at 41-42. The
ALJ noted that Plaintiff’s back pain radiated into her left leg
and foot and acknowledged the treatment notes of pain management
specialist, Dr. Ko, and treating physician, Dr. Ambarian. Id. at
19. Dr. Ko diagnosed Plaintiff with radiculopathy and prescribed
steroid injections and nerve root block injections, noting
Plaintiff’s slow but stable gait and tenderness in the left
knee. Id. at 19-20. Dr. Ko further noted that Plaintiff’s pain
control when using Percocet was adequate. Id. at 20. Dr.
Ambarian’s notes confirmed that Plaintiff’s ability to stand and
walk were not prohibitive. Id. at 224-225. As Judge Caracappa
found, the ALJ acknowledged that the symptoms Plaintiff asserts
are from peroneal neuropathy, but found that Plaintiff’s pain
was under control. The Court agrees with Judge Caracappa that
the ALJ’s decision was supported by substantial evidence. R&R
21.

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V.

CONCLUSION
For the foregoing reasons, the Court approves and

adopts Magistrate Judge Caracappa’s Report and Recommendation.
Plaintiff’s request for review is denied. An appropriate order
will follow.

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