Ragusa v. Astrue
Filing
11
MEMORANDUM (Order to follow as separate docket entry) Plaintiffs appeal of the Commissioners decision (Doc. 1) is denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 1/15/14. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH ROCCO RAGUSA,
:
:CIVIL ACTION NO. 3:12-CV-1659
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
CAROLYN W. COLVIN,1
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Plaintiff’s appeal from the Commissioner’s
denial of Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act (“Act”).
(Doc. 1.)
The Administrative Law
Judge (“ALJ”) who evaluated the claim found that Plaintiff had the
residual functional capacity (“RFC”) to perform medium exertional
work with certain limitations, that jobs existed which he could
perform, and, therefore, Plaintiff was not under a disability as
defined in the Social Security Act from the alleged onset date of
April 7, 2009, through the date of the decision, January 10, 2011.
(R. 12, 16-17.)
With this action, Plaintiff argues that the
determination of the Social Security Administration is error for
three reasons: 1) the ALJ gave “little weight” to the opinion of
Plaintiff’s treating rheumatologist; 2) the ALJ found that
Plaintiff could perform medium exertional work; and 3) the ALJ’s
1
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the defendant in this suit.
No further action need be taken to continue this suit by reason of
the last sentence of § 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).
credibility determination is not supported by substantial evidence.
(Doc. 6 at 9.)
For the reasons discussed below, we conclude Plaintiff’s
appeal is properly denied.
I. Background
On June 4, 2009, Plaintiff protectively filed an application
for Title II Disability Insurance benefits.
(See R. 9.)
claimed disability beginning on April 7, 2009.
(Id.)
Plaintiff
Plaintiff
listed the illnesses, injuries, or conditions that limited his
ability to work as “Churg strauss[,] stroke[,] colitis[,] partial
complex seizures.”
(R. 108.)
affected by my stroke.
(R. 108.)
flagger.
He added that his “speech has been
It was told not to drive for a living.”
Plaintiff had past work as a truck driver and traffic
(R. 40-41, 109.)
The Social Security Administration denied Plaintiff’s
application by a decision issued on October 13, 2009.
(R. 70-74.)
On October 27, 2009, Plaintiff filed a timely Request for Hearing
before an Administrative Law Judge.
(R. 85-86.)
On November 30,
2010, ALJ Michele Stolls held a hearing at which Plaintiff and a
vocational expert (“VE”) testified.
(R. 21-44.)
represented by counsel at the hearing.
Plaintiff was
(R. 21.)
At the time of the hearing, Plaintiff was 46 years old and
lived with his wife and two daughters, ages four and five.
27.)
He was not working.
(Id.)
2009, the day he had a stroke.
through December 31, 2013.
(R.
Plaintiff last worked on April 7,
(R. 31-32.)
(R. 9.)
He remained insured
In response to the ALJ’s
questions about why he was unable to work, Plaintiff responded that
2
he gets fatigued if he stands for two to three hours, he has a
muscle issue in his back, his walking and sitting are limited, and
he has weakness in his hands.
(R. 34-35.)
Plaintiff also reported
that one of his medications, Trileptal, makes him “a little drowsy
from time to time.”
(R. 37.)
Upon questioning by his attorney
about symptoms related to colitis, Plaintiff responded that the
condition causes him to make frequent trips to the bathroom and
also can cause extreme pain and urgency.
(R. 37.)
Following Plaintiff’s testimony, the ALJ asked the VE whether
there were jobs for a hypothetical claimant with the same age,
education and work experience as Plaintiff with the residual
functional capacity to perform work that is no more than medium
exertional level but he must avoid occupations that require
climbing on ladders, ropes or scaffolds.
(R. 42.)
The ALJ added
that the hypothetical claimant must also avoid concentrated
prolonged exposure to fumes, odors, dusts, gases, chemical
irritants, environments with poor ventilation, temperature
extremes, extreme dampness and humidity.
(Id.)
The ALJ also
limited the hypothetical claimant to occupations that do not
require exposure to hazards such as dangerous machinery and
unprotected heights.
(Id.)
After confirming that such a claimant
could not perform Plaintiff’s past work, the VE identified several
other positions.
(R. 42.)
The ALJ then added the following
limitations: “Limited to occupations requiring no more than simple,
routine tasks not performed in a fast-paced production environment,
involving only simple work-related decisions, and in general,
relatively few workplace changes and also can be performed wearing
3
an incontinence protection pad.”
same jobs would be available.
(R. 43.)
(Id.)
The VE responded the
When the limitation was added
that the individual “would have to be off task more than 30 percent
of the workday due to chronic fatigue, difficulty concentrating and
unpredictable need to use the bathroom,” the VE responded there
would be no jobs for such a person.
(R. 43.)
By decision of January 10, 2011, ALJ Stolls found that
Plaintiff was not disabled within the meaning of the Social
Security Act.
(R. 17.)
After finding Plaintiff had the severe
impairments of “Churg Strauss vasculitis status post cerebral
vascular accident, asthma and chronic obstructive pulmonary
disease” (R. 11) and that none of these impairments alone or in
combination met or equaled a listed impairment (R. 12), she found
Plaintiff
has the residual functional capacity to
perform medium work as defined in 20 CFR
404.1567(c). The claimant must avoid
occupations that require climbing ladders,
ropes and scaffolds. The claimant must
avoid concentrated prolonged exposure to
fumes, odors, dusts, gases, chemical
irritants, environments with poor
ventilation, temperature extremes[,] extreme
dampness and humidity. The claimant is
limited to occupations that do not require
exposure to hazards such as dangerous
machinery and unprotected heights.
(R. 12.)
Because the ALJ determined that jobs exist in the national
economy that Plaintiff can perform (R. 16-17), she concluded that
Plaintiff had not been under a disability as defined in the Social
Security Act from April 7, 2009, through the date of her decision,
January 10, 2011.
(R. 17.)
4
Plaintiff requested review of the ALJ’s decision, and on June
22, 2012, the Appeals Council issued a notice denying Plaintiff’s
request.
(R. 1.)
Therefore, the ALJ’s decision became the
decision of the Commissioner.
Plaintiff filed this action on August 21, 2012.
(Doc. 1.)
He
filed his brief in support of the appeal on December 4, 2012.
(Doc. 86.)
Commissioner Astrue filed his opposition brief on
February 3, 2013.
(Doc. 7.)
Plaintiff filed a reply brief on
January 11, 2013.
(Doc. 8.)
Therefore, this matter is fully
briefed and ripe for disposition.
II. Discussion
A. Relevant Authority
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.2
It is necessary for the
Commissioner to ascertain: 1) whether the applicant is engaged in a
2
“Disability” is defined as the “inability 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 that 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
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, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
5
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.
20 C.F.R. §§
404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of
proof.
The initial burden rests with the claimant to demonstrate
that he or she is unable to engage in his or her past relevant
work.
If the claimant satisfies this burden, then the Commissioner
must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
can perform.
Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.
42 U.S.C. § 405(g); Hartranft
v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
A reviewing court is
“bound by the ALJ’s findings of fact if they are supported by
substantial evidence in the record.”
422, 427 (3d Cir. 1999).
mere scintilla.
Plummer v. Apfel, 186 F.3d
Substantial evidence means “more than a
It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Richardson
v. Perales, 402 U.S. 389, 401 (1971); Plummer, 186 F.3d at 427
6
(quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)); see
also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir.
2011).
Therefore, we will not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if we
would have reached different factual conclusions.
Hartranft, 181
F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).
“However,
even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”
Friedberg v. Schweiker, 721 F.2d 445, 447 (3d
Cir. 1983) (internal quotation omitted).
An ALJ’s decision can
only be reviewed by a court based on the evidence that was before
the ALJ at the time he or she made his or her decision.
Matthews
v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
Califano, 606 F.2d 403, 406 (3d Cir. 1979).
See Dobrowolsky v.
These proceedings are
not strictly adversarial, but rather the Social Security
Administration provides an applicant with assistance to prove his
claim.
Id.
“These proceedings are extremely important to the
claimants, who are in real need in most instances and who claim not
7
charity but that which is rightfully due as provided for in Chapter
7, Subchapter II, of the Social Security Act.”
Hess v. Secretary
of Health, Education and Welfare, 497 F.2d 837, 840 (3d Cir. 1974).
As such, the agency must take extra care in developing an
administrative record and in explicitly weighing all evidence.
Dobrowolsky, 606 F.2d at 406.
Further, the court in Dobrowolsky
noted “the cases demonstrate that, consistent with the legislative
purpose, courts have mandated that leniency be shown in
establishing the claimant’s disability, and that the Secretary’s
responsibility to rebut it be strictly construed.”
Id.
Finally, the Third Circuit has recognized that it is necessary
for the Secretary to analyze all evidence.
If he has not done so
and has not sufficiently explained the weight he has given to all
probative exhibits, “to say that his decision is supported by
substantial evidence approaches an abdication of the court’s duty
to scrutinize the record as a whole to determine whether the
conclusions reached are rational.”
Dobrowolsky, 606 F.2d at 407.
In Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981), the Circuit
Court clarified that the ALJ must not only state the evidence
considered which supports the result but also indicate what
evidence was rejected.
“Since it is apparent that the ALJ cannot
reject evidence for no reason or the wrong reason, an explanation
from the ALJ 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.”
Id. at 706-07.
However, the
ALJ need not undertake an exhaustive discussion of all the
8
evidence.
2000).
See, e.g., Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.
“There is no requirement that the ALJ discuss in its
opinion every tidbit of evidence included in the record.”
Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004).
Hur v.
Only where the ALJ
rejects conflicting probative evidence must he fully explain his
reasons for doing so.
See, e.g., Walker v. Comm’r of Soc. Sec., 61
F. App’x 787, 788-89 (3d Cir. 2003) (citing Kent v. Schweiker, 710
F.2d 110, 114 (3d Cir. 1983)).
Further, the ALJ does not need to
use particular language or adhere to a particular format in
conducting his analysis.
Cir. 2004).
Jones v. Barnhart, 364 F.3d 501, 505 (3d
“[W]here [a reviewing court] can determine that there
is substantial evidence supporting the Commissioner’s decision, . .
.
the Cotter doctrine is not implicated.”
Hernandez v.
Commissioner of Social Security, 89 Fed. App’x 771, 774 (3d Cir.
2004) (not precedential).
B.
Plaintiff’s Alleged Errors
As set out above, Plaintiff asserts the ALJ erred on three
bases: 1) the ALJ gave “little weight” to the opinion of
Plaintiff’s treating rheumatologist, Miroslawa Nowak, M.D.; 2) the
ALJ found that Plaintiff could perform medium exertional work; and
3) the ALJ’s credibility determination is not supported by
substantial evidence.
1.
(Doc. 6 at 9.)
Treating Physician’s Opinion
Plaintiff first contends the ALJ erred in giving “little
weight” to Dr. Nowak’s opinion.
(Doc. 8 at 6-10.)
We disagree
that the ALJ’s analysis of Dr. Nowak’s opinion is flawed.
9
Under applicable regulations and the law of the Third Circuit,
a treating doctor’s opinions are generally entitled to controlling
weight, or at least substantial weight.
See, e.g., Fargnoli v.
Halter, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20 C.F.R. §
404.1527(c)(2); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.
1981)).
The “treating physician rule,” is codified at 20 C.F.R.
404.1527(c)(2), and is widely accepted in the Third Circuit.
Mason
v. Shalala, 994 F.2d 1058 (3d Cir. 1993); see also Dorf v. Brown,
794 F.2d 896 (3d Cir. 1986).
The regulation addresses the weight
to be given a treating physician’s opinion: “If we find that a
treating source’s opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case, we
will give it controlling weight.”
3
20 C.F.R. § 416.927(c)(2).3
20 C.F.R. § 404.1527(c)(2) states in relevant part:
Generally, we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most
able to provide a detailed, longitudinal
picture of your medical impairment(s) and may
bring a unique perspective to the medical
evidence that cannot be obtained from the
objective medical findings alone or from
reports of individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature
and severity of your impairment(s) is wellsupported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial
evidence in your case record, we will give it
controlling weight. When we do not give the
treating source's opinion controlling weight,
10
“A
cardinal principle guiding disability eligibility determinations is
that the ALJ accord treating physicians’ reports great weight,
especially when their opinions reflect expert judgment based on
continuing observation of the patient’s condition over a prolonged
period of time.”
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.
2000) (citations omitted); see also Brownawell v. Commissioner of
Social Security, 554 F.3d 352, 355 (3d Cir. 2008).
In choosing to
reject the treating physician’s assessment, an ALJ may not make
“speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.”
Morales, 225
F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).
The opinion at issue here is that of Miroslawa Nowak, M.D.,
who treated Plaintiff from January 2009 through November 2009 for
the Churg Strauss Syndrome (R. 14) which Plaintiff described as “a
we apply the factors listed in paragraphs
(c)(2)(i) and (c)(2)(ii) of this section, as
well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining
the weight to give the opinion. We will always
give good reasons in our notice of
determination or decision for the weight we
give your treating source's opinion.
11
rare blood disorder” which causes “all sorts of stuff” (R. 39).4
Plaintiff points to a letter from Dr. Nowak dated November 28,
2009, in which she stated the following:
I have been following Mr. Ragusa for
Churg-Strauss vasculitis. Patient has
sustained a right temporoparietal stroke
with resultant aphasia that has improved,
but has not resolved. Patient has been on
Imunosupressive treatment but still stroke
has occurred despite of that. Although his
medications were adjusted I am not sure if
this will control his disease fully as he
has very unusual presentation of unusual
disease. He was seen for second opinion in
Cleveland Clinic. At this time I think that
he is not able to work full time in any
position and I feel that he is disabled.
(R. 340-41.)
4
According to the Cleveland Clinic website,
Churg Strauss syndrome (CSS) is an
extremely rare disease – there are only 2 to
5 new cases per year per 1 million people.
CSS results from inflammation that occurs in
certain types of cells in blood or in
tissues. This inflammation causes injury to
organ systems – the most commonly involved
are the lungs, nose, sinuses, skin, joints,
nerves, intestinal tract, heart, and
kidneys. . . .
. . . Some of the most serious
manifestations of CSS are related to the
presence of vasculitis.
. . . Vasculitis is a general medical
term that refers to inflammation of the
blood vessels. When blood vessels become
inflamed, they can stretch, become thinwalled, or narrow in size. When they weaken
and stretch in size, aneurysms can develop.
. . . When they thin, the walls can rupture
and blood leaks into tissue. Vasculitis can
also cause blood vessels to narrow to the
point of closing. Organs can be damaged
from the loss of oxygen and nutrients that
were being supplied by the blood.
http://my.clevelandclinic.org/orthopaedics-rheumatology/diseasesconditions/hic-churg-strauss-syndrome.
12
The ALJ stated that Dr. Nowak’s November 2009 opinion that
Plaintiff was unable to work and disabled “is given little weight.”
(R. 15.)
The ALJ provided the following analysis:
Dr. Nowak’s own records and other medical
evidence of record do not support this
opinion. Immediately after the claimant had
his stroke in April of 2009 he was ordered
off work for three months as per Dr. Martha
Boulos. However, the claimant’s condition
rapidly improved, his speech through therapy
became basically back to normal and he has no
additional physical objective criteria
reported on physical examination or abnormal
diagnostic testing post CVA. Dr. Nowak is
basing her opinion on the fact that she
adjusted his medications and she is not sure
how well he will respond to this change.
However, to date - twenty months post CVA, he
appears to have responded well, in that all
testing and examinations have been
unremarkable. Additionally, disability for
individuals who have attained age 18 is
defined as the inability to do any
substantial gainful activity by reason of any
determinable physical or mental impairment,
which can be expected to result in death or
has lasted or is expected to last for a
continuous period of not less than 12 months
(20 CFR 404.1505 and 416.905). Clearly, the
effects from the CVA have not lasted for or
were not expected to last for a period of
over twelve months; as such, the claimant is
not entitled to benefits under Title II.
Moreover, as with all opinions rendered as to
a claimant’s status as “disabled”, this issue
is clearly reserved to the Commissioner
(Social Security Ruling 96-5p).
(R. 15.)
Plaintiff first asserts that the ALJ’s analysis is in error
because her conclusion “to date - 20 months post CVA, he appears to
have responded well, in that all the testing and examinations have
13
been quite unremarkable” (R. 15) is unfounded in that the record is
void of any testing or examinations which occurred after Dr.
Nowak’s November 28, 2009, opinion.
(Doc. 6 at 14-15.)
We agree that the ALJ’s statement can be construed as an
incorrect assessment of the record if the statement is taken to
infer that post November 2009 testing and examination results exist
in the record.
Though this is not the only possible interpretation
of the ALJ’s statement, even if we accept Plaintiff’s claimed
error, the error would be harmless because the ALJ provides other
reasons to discount Dr. Nowak’s opinion–-reasons that provide
substantial evidence for her decision to afford little weight to
Dr. Nowak’s opinion.
Other evidence which supports the limited weight assigned to
Dr. Nowak’s opinion includes her assessment that
Dr. Nowak’s own records and other medical
evidence of record do not support this
opinion. Immediately after the claimant had
his stroke in April of 2009 he was ordered
off work for three months as per Dr. Martha
Boulos. However, the claimant’s condition
rapidly improved, his speech through therapy
became basically back to normal and he has no
additional physical objective criteria
reported on physical examination or abnormal
diagnostic testing post CVA.
(R. 15.)
While we would prefer specific citations to the record in the
ALJ’s analysis, our review of the medical evidence confirms the
ALJ’s assessment of record evidence for the time period preceding
14
Dr. Nowak’s opinion.
As pointed out by Defendant, Dr. Nowak
documented benign findings at Plaintiff’s office visits in May,
June and November of 2009.
(Doc. 7 at 13 (citing R. 257-62, 334-
36).)
Plaintiff saw Dr. Nowak on May 4, 2009, for follow-up
evaluation of his Churg-Strauss vasculitis.
(R. 260.)
He reported
that he had a stroke on April 7, 2009, that he was seeing
neurologist Dr. Martha Boulos, and that he would be off work for
three months.
(R. 260.)
In the review of systems, Dr. Nowak noted
Plaintiff had joint pain and some difficulty talking though his
speech was improving (he was working with a speech therapist once a
week).
(R. 260-61.)
All other systems were normal.
(R. 260.)
Dr. Nowak’s assessment included the notation that Plaintiff
“[c]linically does not have active disease.”
(R. 262.)
directed to call if he had any new symptoms.
(R. 262.)
Plaintiff again saw Dr. Nowak on June 15, 2009.
He was
(R. 257.)
In
her Outpatient Clinic Note, Dr. Nowak stated that she first saw
Plaintiff in January of 2009 and his medical history included a
diagnosis of Churg-Strauss vasculitis, initially diagnosed with
bowel involvement based on a biopsy from surgery performed several
years earlier.
(R. 257.)
Dr. Nowak further reported that in
January 2009 Plaintiff was stable “just on methotrexate at 20 mg
once a week” and “[h]e was doing well then without any symptoms of
active disease.”
(R. 257.)
Dr. Nowak then reviewed Plaintiff’s
15
May 2009 office visit, noting that “he had symptoms of aphasia that
has significantly improved, and he was getting better as he was
having speech therapy.”
(R. 257.)
Dr. Nowak further noted that
Plaintiff’s “care was discussed with his neurologist, Dr. Martha
Boulos, and as no other etiology of stroke was revealed, one needs
to assume that this is related to vasculitis, as there is increased
possibility of stroke with patient with Churg-Strauss vasculitis.
This usually happens when disease activity is increased.”
258.)
(R.
Drs. Nowak and Boulos decided the best way to prevent
recurrence of stroke was to treat the underlying disease and to
change Plaintiff from methotrexate to Imuran.
(R. 258.)
Plaintiff
reported no complaints at the time–-no abdominal discomfort, no
shortness of breath or nasal discharge and Dr. Nowak found him
“generally well.”
(R. 259.)
Dr. Nowak’s impression was “Churg-
Srauss vasculitis, right temporal stroke with aphasia.
has improved.”
The patient
(R. 260.)
The last record from Dr. Nowak is from Plaintiff’s November
24, 2009, office visit for further evaluation of his Churg-Strauss
vasculitis.
(R. 334.)
Since the previous visit, Plaintiff had
been seen at the Cleveland Clinic.
(R. 334.)
He had also been
seen by neurologist Dr. Ralf Van Der Sluis, and GI specialist Dr.
Chen.
Imuran.
(R. 334.)
(R. 334.)
He had decreased his prednisone and was taking
Dr. Nowak noted Plaintiff’s job status as “sick
leave; he is disabled since he had stroke.”
16
(R. 334.)
Plaintiff
had joint pain and still had some difficulty talking but was
improving.
(R. 334.)
(R. 334.)
All other review of systems were normal.
In her Assessment, Dr. Nowak notes that Plaintiff has
unusual manifestations of Churg-Strass including GI disease and
stroke, although the latter is not completely certain.
(R. 335.)
She further states: “With severe manifestations of Churg-Strauss
and a stroke I think he is not able to work.”
(R. 335.)
Having
reviewed the labs, Dr. Nowak reported that Plaintiff had anemia and
stool for occult blood was positive.
(R. 335.)
Dr. Nowak wanted
Plaintiff to follow up with a GI specialist as further evaluation
was needed.
(R. 335.)
In a letter dated November 28, 2009,
addressed “To Whom It May Concern regarding Mr. Ragusa,” Dr. Nowak
offered the opinion at issue here: “At this time I think that he is
not able to work full time in any position and I feel that he is
disabled.”
(R. 341.)
This review of Dr. Nowak’s treating notes does not reveal
evidence of the basis for her opinion that Plaintiff was unable to
work full-time in any position.
Plaintiff had showed steady
improvement with the speech difficulty he experienced after his
stroke.
Although GI difficulties were noted, in May and June he
had no active disease and no reported difficulties, and in November
there was no report of GI problems other than what was revealed in
lab results.
This is not a case where the treating physician’s
opinion “is well-supported by medically acceptable clinical and
17
laboratory diagnostic techniques” and, therefore, it is not
entitled to controlling weight pursuant to 20 C.F.R. §
416.927(c)(2).
Furthermore, as noted by the ALJ, other medical evidence does
not support Dr. Nowak’s assessment.
(R. 15.)
On April 8, 2009 (the day after Plaintiff’s stroke) GI
consultant Yen S. Chen, M.D., noted that he had been asked to see
Plaintiff because of a history of chronic diarrhea–-reportedly “for
the past ten years, he has been suffering with chronic diarrhea.
He has approximately two loose bowel movements a day and this has
again been blamed on the Churg-Strauss syndrome.”
(R. 162.)
In
his review of systems, Dr. Chen noted Plaintiff admitted to
diarrhea but denied abdominal pain, bloating, gas, dysphagia,
odynophagia, nausea, vomiting, constipation, rectal bleeding,
hematemesis, melena, burping or hiccups.
(R. 163.)
His assessment
included chronic diarrhea and the plan was to obtain old records
for review, to check stools before using anticoagulation if
concerned over GI bleed (Dr. Chen doubted there was a bleed because
“H&H is normal”), and to follow the patient with Dr. Martha Boulos.
(R. 165-66.)
On May 1, 2009, Plaintiff’s neurologist, Dr. Martha Boulos,
noted that “she put him off work since he worked as a flagger on
the road” (R. 249), and he would continue to be off work until July
2009.
(R. 251).
She noted his aphasia was present but improving
18
and he denied any other systemic problems, including denial of the
GI problems of nausea, vomiting, abdominal pain, diarrhea,
constipation, or blood in the stool.
(R. 250.)
Her impression was
“1. Churg Strauss disease[;] 2. Acute left temporal infarct at the
beginning of April, possibly vasculitic in nature[;] 3. Seizure
disorder, controlled on Trileptal; 4. Inflammatory colitis status
post colon resection.”
(R. 250-51.)
On May 11, 2009, Dr. Chen reported that Plaintiff was feeling
better compared to his last visit.
Plaintiff reported abdominal
aching and pressure and associated anorexia, bloating, change in
bowel habits, constipation, malaise and nausea, but denies
associated diarrhea, back pain, flank pain, rectal pain, rectal
bleeding and weight loss.
(R. 239.)
Comments under Dr. Chen’s
Plan stated that Plaintiff “had GI manifestation of vasculitis
Churg straus[;] he is to stay on medicine[;] he does not have bleed
or diarrhea or major pain[;] . . . followup [] in 4 months.”
(R.
240.)
On June 3, 2009, Dr. Boulos reported in her office visit notes
that “patient is having difficulty with disability and unemployment
currently and he is under stress for that.”
continued to have expressive speech problems.
(R. 246.)
(R. 246.)
Plaintiff
Included
in her Impression was the following notation: “I did give him a
note since the patient would like to work any kind of job that he
is allowed to go back to some form of employment that does not
19
require eloquent expressive speech or driving until further
notice.”
(R. 247.)
In the office notes from Plaintiff’s August 3, 2009, visit,
Dr. Boulos reported that Plaintiff was doing well overall and that
he had stopped speech therapy, saying that he did not need further
treatment although he had some difficulty expressing himself if he
talked quickly.
(R. 245.)
At the time Plaintiff had started the
Imuran, prednisone had been tapered down, and he was also taking
Plavix and Trileptal.
(R. 245.)
The plan was for Plaintiff to
continue on his medications, continue to follow up with Dr. Nowak,
and return to see Dr. Boulos again in three months.
(R. 245.)
On August 11, 2009, Plaintiff saw Angela M. DeAntonio, M.D. at
the request of Dr. Nowak and his primary care physician, Dr.
Timothy Brown.
(R. 318.)
In her “Pulmonary Outpatient Note,” Dr.
DeAntonio noted that “[t]he patient currently is feeling well.
has . . . no difficulty with activities.
his activities of daily living.
his expressive aphasia.”
He
He is able to do all of
He has improved significantly with
(R. 318.)
On August 17, 2009, Plaintiff saw Dr. Brown.
(R. 253.)
At
the visit Plaintiff reported that he was fully recovered from the
stroke although he had difficulty with words occasionally.
253.)
(R.
Dr. Brown noted that Plaintiff had “asthma and dyspnea on
exertion,” hypertension and colitis; other “review of systems” were
negative.
(R. 254-55.)
He also noted that Plaintiff’s Churg-
20
Strauss syndrome was stable.
(R. 255.)
This review of medical evidence does not reveal any support
for Dr. Nowak’s opinion that Plaintiff was not able to work in
November of 2009.
On the contrary, Dr. Boulos, who reviewed
medication changes with Dr. Nowak (R. 258), originally estimated
that Plaintiff would be off work until July 2009 (for three months
post stroke) (R. 241) but cleared Plaintiff to work in June of 2009
with the restrictions that the work “not require eloquent
expressive speech or driving until further notice” (R. 247).
Other
physicians found Plaintiff improving and doing well despite the
underlying Churg-Strauss syndrome.
Although Plaintiff points to
his medication changes and the lack of evidence post November 2009
that he adjusted well to the ongoing adjustments (Doc. 8 at 3-4),
there is no indication from any physician that Plaintiff was having
difficulty adjusting to medication changes made before November 28,
2009, or that any difficulty was likely.
Furthermore, as the
record review shows, there is no indication that the effects of
Plaintiff’s stroke were expected to last for the twelve-month
duration required to establish disability under the Social Security
Act.
Therefore, Dr. Nowak’s opinion that Plaintiff was unable to
work in any position and was disabled in November 2009 is not
entitled to controlling weight because it is inconsistent with the
other substantial evidence.
See 20 C.F.R. § 416.927(c)(2).
Finally, we address Plaintiff’s argument that the ALJ here had
21
a duty to develop the record and her failure to do so renders her
decision to discredit Dr. Nowak’s opinion without the support of
substantial evidence.
(Doc. 6 at 16-19.)
First we reiterate that
the claimant bears the burden of establishing disability.
C.F.R. § 404.1512.
20
As discussed above, our review of the record
validates the ALJ’s reasons for discounting Dr. Nowak’s opinion
with the exception of her possible reference to post November 2009
records.
Plaintiff provides no evidence that the ALJ’s error
regarding post November 2009 records was not harmless.
As noted
previously, we find no evidence to suggest that problems were
anticipated with ongoing medication adjustments.
We concur that the duty to assist the claimant and develop the
record is well-established.
However, the duty is not unlimited.
The requirement does not necessarily come into play where “there
was sufficient evidence in the medical records for the ALJ to make
her decision.”
Moody v. Barnhart, 114 F. App’x 495, 501 (3d Cir.
2004) (not precedential); see also Griffin v. Commissioner of
Social Security, 303 F. App’x 886, 890 n.5 (3d Cir. 2009) (not
precedential).
Our review of the records in this case shows this
to be a situation where ample medical records from the relevant
time period provided substantial evidence to support the ALJ’s
decision.
Therefore, we conclude Plaintiff’s claimed error is
without merit.
2.
Residual Functional Capacity and Past Relevant Work
Plaintiff next argues that the ALJ erred because she concluded
22
Plaintiff could not return to his past relevant work, including his
job as a traffic flagger which is at the light exertional level,
yet he could perform medium exertional work.
(Doc. 6 at 19.)
We
conclude the ALJ did not err on this basis.
Plaintiff points to 20 C.F.R. § 416.967(c) which provides that
if a person can do medium work, they are also capable of doing
light and sedentary work.
(Doc. 6 at 19.)
that the reverse is not true.
(Id.)
Plaintiff then argues
Rather, if a claimant cannot
perform light work, then he cannot perform more intense medium
work.
(Id.)
We find this argument without merit in that, as argued by
Defendant, the ALJ found Plaintiff could not perform his job as a
traffic flagger because of environmental limitations rather than
physical limitations–-it was Plaintiff’s limitations to temperature
extremes and dampness/humidity that prevented him from performing
his past work as a flagger, not the physical demands of the work.
(See Doc. 7 at 18-20.)
Because Plaintiff does not reply to
Defendant’s well-reasoned analysis, we need not discuss this issue
further.
In this section of his supporting brief, Plaintiff also argues
that Claimant’s testimony shows he cannot perform medium exertional
work which requires lifting/carrying fifty pounds occasionally and
twenty-five pounds frequently, as well as the ability to sit or
walk for six hours a day.
(Doc. 6 at 20 (citing Khon v. Barnhart,
23
No. Civ. A. 03-5122, 2004 WL 2203740, at *7 (citing 20 C.F.R. §
404.1567(c))).)
Plaintiff points to his testimony that he could
not stand for more than two to three hours a day (R. 34), cannot
walk for more than twenty minutes to half-hour (R. 35), and cannot
sit for more than a half-hour (R. 35).
(Doc. 6 at 20.)
Plaintiff
does not develop this argument and we will not discuss it further
here.
However, to the extent the assertion entails an analysis of
the ALJ’s credibility findings, we will discuss it in the context
of Plaintiff’s third claimed basis for error.
3.
Step Five Determination
Plaintiff’s final claimed basis for error is that the ALJ’s
determination that Plaintiff can perform the jobs suggested by the
VE is not supported by substantial evidence because the ALJ did not
credit the hypothetical question posed to the VE which included
limitations supported by the record.
(Doc. 6 at 21.)
Plaintiff
earlier posed this error in terms of credibility: the ALJ’s
credibility assessment was not based on substantial evidence.
(Doc. 6 at 9.)
We conclude the claimed error is without merit.
Rutherford v. Barnhart, 399 F.3d 546 (3d Cir. 2005), discusses
objections related to an ALJ’s conclusion at step five-–objections
to the determination that the plaintiff retained the functional
capacity to perform jobs existing in the workforce.
553.
399 F.3d at
Rutherford notes this determination is normally based in
large measure on testimony provided by a vocational expert and
24
objected to on the basis that the credited testimony cannot form
the basis of a substantial evidence determination because it was
based on responses to hypothetical questions that did not
adequately consider the plaintiff’s physical limitations.
Id.
Rutherford extensively reviews Third Circuit guidance concerning
the issue, observing that
objections to the adequacy of hypothetical
questions posed to a vocational expert often
boil down to attacks on the RFC assessment
itself. That is, a claimant can frame a
challenge to an ALJ’s reliance on vocational
expert testimony at step 5 in one of two
ways: (1) that the testimony cannot be relied
upon because the ALJ failed to convey
limitations to the vocational expert that
were properly identified in the RFC
assessment, or (2) that the testimony cannot
be relied upon because the ALJ failed to
recognize credibly established limitations
during the RFC assessment and so did not
convey those limitations to the vocational
expert. Challenges of the latter variety . .
. are really best understood as challenges to
the RFC assessment itself.
Rutherford, 399 F.3d at 554 n.8.
In Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984), the
Circuit Court discussed the proper use of expert testimony.
Testimony of vocational experts in disability
determination proceedings typically includes,
and often centers upon, one or more
hypothetical questions posed by the ALJ to
the vocational expert. The ALJ will normally
ask the expert whether, given certain
assumptions about the claimant’s physical
capability, the claimant can perform certain
types of jobs, and the extent to which such
job exist in the national economy. While the
ALJ may proffer a variety of assumptions to
25
the expert, the vocational expert’s testimony
concerning a claimant’s ability to perform
alternative employment may only be considered
for purposes of determining disability if the
question accurately portrays the claimant’s
individual physical and mental impairments.
Thus the expert must have evaluated
claimant’s particular impairments as
contained in the record.
745 F.2d at 218.
Rutherford clarifies that an ALJ is not required
to submit to the vocational expert “every impairment alleged by a
claimant.”
399 F.3d at 554.
Rather, the hypothetical posed must
“accurately convey to the vocational expert all of a claimant’s
credibly established limitations.”5
Id. (citing Plummer, 186 F.3d
at 431.)
Case law and regulations6 address when a limitation is
credibly established. 399 F.3d at 554.
Limitations that are medically supported and
otherwise uncontroverted in the record, but
that are not included in the hypothetical
question posed to the expert, preclude
reliance on the expert’s response (Burns, 312
F.3d at 123). Relatedly, the ALJ may not
substitute his or her own expertise to refute
such record evidence (Plummer, 186 F.3d at
429). Limitations that are medically
supported but are also contradicted by other
evidence in the record may or may not be
5
Rutherford notes that “[a]lthough the impairment must be
medically determinable, it need not be a ‘severe’ impairment to be
considered in the RFC assessment.” 399 F.3d at 554 n.7 (citing 290
C.F.R. § 945(a)(2)).
6
Rutherford specifically identifies 20 C.F.R. §§ 416.945,
929(c) and 927) as relevant to the inquiry. 399 F.3d at 554.
26
found credible–-the ALJ can choose to credit
portions of the existing evidence but “cannot
reject evidence for no reason or for the
wrong reason” (a principle repeated in Mason
v. Shalala, 994 F.2d 1058, 1066 (3d Cir.
1993)[)]; [20 C.F.R. § 416.]c)(4)). Finally,
limitations that are asserted by the claimant
but lack objective medical support may
possibly be considered nonetheless credible.
In that respect the ALJ can reject such
limitation if there is conflicting evidence
in the record, but should not reject a
claimed symptom that is related to an
impairment and is consistent with the medical
record simply because there is no objective
medical evidence to support it. ([20 C.F.R. §
416.]929((c)(3)).
399 F.3d at 554.
Here Plaintiff maintains that in the last hypothetical posed
to the VE, the ALJ asked the VE “whether Claimant could perform any
of the suggested jobs if he was ‘off-task 30% of the day due to
chronic fatigue, difficulty concentrating, and unpredictable need
to need [sic] to use the bathroom[,]’ [and] [t]he VE responded that
Claimant could not perform the suggested jobs.” (Doc. 6 at 21
(citing R. 44).)
Plaintiff further contends that all of the
limitations identified in this hypothetical were credibly
established (Doc. 6 at 21), concluding that “[t]he ALJ improperly
discounted Claimant’s complaints relating to his fatigue, and
totally ignored Claimant’s GI problems” (id. at 23.)
Given Plaintiff’s argument and the framework set out above, we
must determine whether the limitations posed in the hypothetical
which the ALJ did not credit were credibly established.
27
Plaintiff
does not specifically address his alleged concentration
difficulties.
(See Doc. 6 at 21-24.)
Therefore, we will not
discuss this alleged limitation further.
Regarding Plaintiff’s fatigue, he points to the following
testimony he provided at the ALJ hearing: he becomes fatigued if he
stands longer than two to three hours; his medication, Trileptal,
makes him drowsy; and he cannot walk for more than twenty minutes
to half-hour.
(Doc. 6 at 22 (citing R. 34-35).)
Plaintiff does
not point to objective medical support for his claimed limitations
due to fatigue.
Therefore, the ALJ could reject such limitation if
there is conflicting evidence in the record.
Rutherford, 399 F.3d
at 554.
In finding Plaintiff’s subjective allegations less than
completely credible, the ALJ points to objective signs and findings
since Plaintiff’s stroke, including Dr. Brown’s notation in August
of 2009 that Plaintiff had “basically fully recovered from the
stroke,” Dr. Boulos’ observations that Plaintiff was doing well and
had a basically normal examination in June, Dr. Nowak’s June 2009
office visit where Plaintiff had no complaints and a normal
examination.7
(R. at 13-14.)
7
We note that we do not find the ALJ’s statement that “the
intensity, persistence and limiting effects of these symptoms are
not credible to the extent they are inconsistent with the above
residual functional capacity assessment” (R. 13) to be a valid
reason to discredit Plaintiff’s testimony as the ALJ’s credibility
finding is to precede the RFC determination. See Filus v. Astrue,
694 F.3d 863, 868 (7th Cir. 2012). However, this flaw is not cause
28
Further examples of conflict in the record include Defendant’s
observations that Plaintiff routinely denied experiencing any
subjective complaints to his treating physicians (Doc. 7 at 22
(citing record)) and on at least two occasions specifically denied
fatigue (id. (citing R. 163-64, 250)).
Furthermore, in Pulmonary
Outpatient Notes of August 11, 2009, Dr. DeAntonio noted the
following:
The patient currently is feeling well.
He is not short of breath. [H]e is not
dyspneic with exertion. He has no morning
stiffness, no difficulty with activities. He
is able to do all of his activities of daily
living. He has improved significantly with
his expressive aphasia. He has not had any
upper respiratory tract infections. He does
not hear himself wheeze.
(R. 319.)
Based on this evidence we conclude Plaintiff’s claimed fatigue
limitation conflicts with the evidence of record and, thus, the ALJ
was entitled to discredit Plaintiff’s subjective accounts of
fatigue.
Because the ALJ was entitled to discount Plaintiff’s
complaints of fatigue, he was not required to credit the VE’s
response to a hypothetical which included such a limitation.
Regarding Plaintiff’s asserted GI limitations, we conclude the
lack of complaints on regular visits to Drs. Brown, Boulos, and
for remand where, as here, the ALJ has otherwise explained his
conclusion adequately–-in this situation, the inclusion of this
kind of language can be harmless. Id.
29
Nowak regarding GI issues undermines his assertions that his GI
related limitations are disabling and should have been credited as
such.
The evidence of record from GI consultant Yen S. Chen, M.D.
dated April 8, 2009, shows that Plaintiff was being seen for his
history of chronic diarrhea where he noted “[p]atient states that
for approximately the past 10 years, he has been suffering with
chronic diarrhea.
He has approximately two loose bowel movements a
day and this has again been blamed on the Churg-Strauss syndrome.”
(R. 162.)
In May 2009, Dr. Chen reported that Plaintiff was feeling
better compared to his last visit.
Plaintiff reported abdominal
aching and pressure and associated anorexia, bloating, change in
bowel habits, constipation, malaise and nausea, but denied
associated diarrhea, back pain, flank pain, rectal pain, rectal
bleeding and weight loss.
(R. 239.)
Comments under Dr. Chen’s
Plan stated that Plaintiff “had GI manifestation of vasculitis
Churg straus[;] he is to stay on medicine[;] he does not have bleed
or diarrhea or major pain[;] . . . followup [] in 4 months.”
(R.
240.)
This evidence shows that, although GI problems related to
Plaintiff’s Churg-Strauss syndrome are documented in the record,
the evidence does not support the degree of limitation suggested by
Plaintiff.
Dr. Chen’s report can also be seen as evidence
conflicting with a claim of disabling GI problems in that Plaintiff
30
did not have major bleeding or pain.
(R. 240.)
Other conflicting
evidence supports this conclusion, including the following: the
August 2009 report that Plaintiff had no difficulty with daily
living activities (R. 318); at the ALJ hearing Plaintiff’s initial
response to the question of why he was unable to work did not
include GI problems (R. 34-35)–-it was when Plaintiff’s attorney
directed Plaintiff to address his colitis symptoms that Plaintiff
elaborated on the associated diarrhea problems (R. 37); Plaintiff
successfully worked with this condition for many years (see, e.g.,
R. 37, 162) and only stopped working because of the stroke he
suffered in April 2009; and Plaintiff’s GI problem was not
mentioned by either Dr. Boulos or Dr. Nowak (the two doctors who
opined about his inability to work) as a factor which weighed into
their decisions.
(See R. 249, 251, 341.)
Because evidence conflicting with Plaintiff’s subjective GI
complaints exists in the record, the ALJ did not err in discounting
the related claimed limitations.
Furthermore, to the extent the
ALJ asked whether the jobs identified by the VE could be performed
wearing an incontinence pad (R. 43), the ALJ took into account
Plaintiff’s claims of urgency.
Thus, the ALJ was not required to
credit the VE’s response to a hypothetical which included
Plaintiff’s claimed GI related limitations.
Finally, Plaintiff reiterates his assertion that the ALJ erred
in basing her decisions on an incomplete record.
(Doc. 6 at 23.)
As discussed previously, we find this argument without merit.
31
III. Conclusion
Plaintiff’s appeal of the Commissioner’s decision (Doc. 1) is
denied.
An appropriate Order is filed simultaneously with this
Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: January 15, 2014
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?