Napoli v. Colvin

Filing 15

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARYANN NAPOLI,
Plaintiff
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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CIVIL No. 3:13-CV-01815
Hon. John E. Jones III

MEMORANDUM
June 20, 2014
BACKGROUND
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Maryann Napoli’s claim for social security
disability insurance benefits.
Disability insurance benefits are paid to an individual if
that individual is disabled and “insured,” that is, the individual
has worked long enough and paid social security taxes. The last
date that a claimant meets the requirements of being insured is
commonly referred to as the “date last insured.”

It is undisputed

that Napoli met the insured status requirements of the Social
Security Act through December 31, 2011. Tr. 10, 12 and 122.1 In
order to establish entitlement to disability insurance benefits
1

References to “Tr. ” are to pages of the administrative
record filed by the Defendant as part of the Answer on September
24, 2013.

Napoli

was

required

to

establish

that

she

suffered

from

a

disability on or before that date. 42 U.S.C. § 423(a)(1)(A),
(c)(1)(B); 20 C.F.R. §404.131(a)(2008); see Matullo v. Bowen, 926
F.2d 240, 244 (3d Cir. 1990).
Napoli protectively filed2 her application for disability
insurance benefits on August 24, 2010. Tr. 102-103, 108-109 and
122.

The

application

was

initially

denied

by

the

Bureau

of

Disability Determination3 on December 17, 2010. Tr. 48-51.

On

December

an

22,

2010,

Napoli

requested

administrative law judge. Tr. 52-54.

a

hearing

before

After 10 months had passed,

a hearing was held on October 24, 2011. Tr. 20-46.

Prior to that

hearing Napoli was sent at least three written notices outlining
in detail her right to be represented by an attorney at the
hearing. Tr. 55-77.

Specifically on January 19, 2011, Napoli was

advised, inter alia, as follows: “You may choose to be represented
by a lawyer or other person. A representative can help you get
evidence, prepare for the hearing, and present your case at the
hearing.” Tr. 55. Along with this notice Napoli was given a list

2

Protective filing is a term for the first time an individual
contacts the Social Security Administration to file a claim for
benefits. A protective filing date allows an individual to have an
earlier application date than the date the application is actually
signed.
3

The Bureau of Disability Determination is an agency of the
state which initially evaluates applications for disability
insurance benefits on behalf of the Social Security Administration.
Tr. 48.
2

of groups that could help her find an attorney or representative.
Tr. 59. Similar notices were mailed to Napoli on July 14 and
September 6, 2011. Tr. 61 and 71. Napoli was not represented by an
attorney or a representative at the hearing. Id.
Prior

to

taking

evidence

at

the

hearing,

the

administrative law judge again advised Napoli of her right to be
represented by counsel and also specifically asked her if she
received the notices advising her of that right. Tr. 24. Napoli
acknowledged receiving the notices and stated that she would
proceed

with the hearing without counsel or a representative. Id.

During the hearing the administrative law judge noted the lack of
medical records supporting Napoli’s claim and after the hearing
took steps to obtain additional records.4 Tr. 169-234.
On December 5, 2011, the administrative law judge issued
a decision denying Napoli’s application. Tr. 10-16.

As will be

explained in more detail infra the administrative law judge found
that Napoli failed to prove that she met the requirements of a
listed impairment or suffered from

work-preclusive functional

limitations through the date of the decision. Id.
On February 3, 2012, Napoli filed a request for review
with the Appeals Council and after 11 months had elapsed the

4

At the hearing there were only two exhibits in the medical
portion of the Social Security file, Ehibits 1F and 2F. Tr. 27.
After the hearing the administrative law judge obtained Exhibits 3F
through 12F. Tr. 169-234.
3

Appeals Council on July 2, 2013, concluded that there was no basis
upon which to grant Napoli’s request for review.5 Tr. 1-5.
Napoli then filed a complaint in this court on July 2,
2013.

Supporting and opposing briefs were submitted and the

appeal6 became ripe for disposition on January 21, 2014, when
Napoli filed a reply brief.
Napoli, who was born in the United States on January 24,
1963,7 graduated from high school in 1981 and can read, write,

5

After the ALJ issued her decision, Napoli submitted to the
Appeals Council additional records which related to treatment
Napoli received well-after her date last insured. Tr. 235-251.
Evidence submitted after the administrative law judge’s decision
cannot be used to argue that the administrative law judge’s
decision is not supported by substantial evidence. Matthews v.
Apfel, 239 F.3d 589, 594-595 (3d Cir. 2001). The only purpose for
which such evidence can be considered is to determine whether it
provides a basis for remand under sentence 6 of section 405(g), 42
U.S.C. Szubak v. Secretary of Health and Human Servs., 745 F.2d
831, 833 (3d Cir. 1984). Under sentence 6 of section 405(g) the
evidence must be “new” and “material” and a claimant must show
“good cause” for not having incorporated the evidence into the
administrative record. Id. The Court of Appeals for the Third
Circuit explained that to be material “the new evidence [must]
relate to the time period for which benefits were denied, and that
it not concern evidence of a later-acquired disability or of the
subsequent deterioration of the previously non-disabling
condition.” Id. The items submitted to the Appeals Council related
to a time after the ALJ issued her decision and well-after the date
last insured and, consequently, are not material.
6

Under the Local Rules of Court “[a] civil action brought to
review a decision of the Social Security Administration denying a
claim for social security disability benefits” is “adjudicated as
an appeal.” M.D.Pa. Local Rule 83.40.1.
7

At the time of the administrative hearing held in this case
Napoli was 48 years of age and considered a “younger individual”
whose age would not seriously impact her ability to adjust to other
work. 20 C.F.R. § 404.1563(c). The Social Security regulations
4

speak

and

understand

the

English

language

and

perform

basic

mathematical functions, including counting change, handling a
savings account and using a checkbook and money orders.

Tr. 124-

125 and 144. During her elementary and secondary schooling, Napoli
attended regular education classes. Tr. 126. After graduating from
high school, Napoli successfully completed training at a beautician
school. Id.
Napoli’s work history covers 24 years and at least 20
different employers. Tr. 109-121.

The records of the Social

Security Administration reveal that Napoli had earnings in the
years 1980 through 1986, 1989 through 1992, 1995 through 2003 and
2005 through 2008. Tr. 109.

Napoli’s annual earnings range from

a low of $81.48 in 1990 to a high of $42,340.70 in 2007. Id.
Napoli’s total earnings during those 24 years were $258,251.79. Id.
A vocational expert described Napoli’s past relevant
employment history8 as follows: (1) a newspaper district manager,
skilled, medium work; (2) an automobile salesperson, skilled, light
work; (3) a real estate agent, skilled, light work; and (4) a

state that “[t]he term younger individual is used to denote an
individual 18 through 49.” 20 C.F.R., Part 404, Subpart P,
Appendix 2, § 201(h)(1).
8

Past relevant employment in the present case means work
performed by Napoli during the 15 years prior to the date her claim
for disability was adjudicated by the Commissioner. 20 C.F.R. §§
404.1560 and 404.1565. To be considered past relevant work, the
work must also amount to substantial gainful activity. Pursuant to
Federal Regulations a person’s earnings have to rise to a certain
level to be considered substantial gainful activity.
5

mental health aide, skilled, medium work.9

Tr. 39.

9

The terms sedentary, light, medium, heavy and very work are
defined in the regulations of the Social Security Administration as
follows:
(a) Sedentary work. Sedentary work involves lifting no
more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which
involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.
(b) Light work. Light work involves lifting no more
than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is
in this category when it requires a good deal of
walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a
full or wide range of light work, you must have the
ability to do substantially all of these activities.
If someone can do light work, we determine that he or
she can also do sedentary work, unless there are
additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
(c) Medium work. Medium work involves lifting no more
than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she
can do sedentary and light work.
(d) Heavy work. Heavy work involves lifting no more
than 100 pounds at a time with frequent lifting or
carrying of objects weighing up to 50 pounds. If
someone can do heavy work, we determine that he or she
can also do medium, light, and sedentary work.
(e) Very heavy work. Very heavy work involves lifting
objects weighing more than 100 pounds at a time with
frequent lifting or carrying of objects weighing 50
pounds or more. If someone can do very heavy work, we
determine that he or she can also do heavy, medium,
6

Napoli claims that she is disabled because of “bulging
disks,”

“nerve

damage

down

[her]

leg,”

and

constant

“severe

headaches.” Tr. 30; Doc. 10, Plaintiff’s Brief, p. 3. Napoli
contends that she “no longer has any strength in her back and
suffers from constant pain” and that “she cannot sit or stand for
a long period of time without experiencing severe pain.” Id.
Napoli did not claim that she was disabled because of a mental
impairment. Id.
There are conflicting statements in the record from Napoli
as to when she became disabled. Tr. 30, 102 and 125. In one
document Napoli claims that she stopped working on May 31, 2009,
“because of [her] conditions.” Tr. 125.

In her application for

disability benefits and at the administrative hearing she claimed
that she became disabled in November, 2008. Tr. 30 and 102.
Furthermore, the statements regarding the impetus for the disabling
impairments conflict. Tr. 192, 197, 200, 211 and 218. Some medical
records refer to Napoli being injured while working at a nursing
home10 when she was lifting a wheelchair up a flight of stairs
while other records state that she was injured while lifting a

light and sedentary work.
20 C.F.R. § 404.1567.
10

As stated previously this work - as a mental health aide was described by a vocational expert as skilled, medium work.
7

patient

into

a

wheelchair.11

Id.

Napoli

testified

at

the

administrative hearing that the work-related incident occurred in
November, 2008. Tr. 30. Medical records, however, repeatedly
indicate that it occurred on October 4, 2008. Tr. 197, 200 and 211.
A claim by Napoli under the New Jersey Workers’ Compensation Act
was settled on June 4, 2010, in favor of Napoli for 135 weeks at
$218.69 per week for a total of $29,523.00. Tr. 213-214.
In a “Function Report - Adult” Napoli described her daily
routine as follows: driving her daughter to work, doing housework,
sometimes shopping, preparing dinner, picking up her daughter from
work, eating dinner, cleaning up, relaxing and then going to bed.
Tr. 141.

Napoli indicated that she had no problem with personal

care, except dressing when she is “in a lot of pain.” Tr. 142. She
also stated that she sometimes walks with a cane. Id.

Napoli

reported that she needs no special reminders to take care of
personal needs and grooming. Tr. 143. Napoli needs no reminders to
take her medications. Id.

Napoli is able to prepare “complete

meals, chicken, salad, veggies, macaroni, etc.” which she prepares
“everyday.” Id.

Napoli goes out everyday and is able to drive and

ride in a car. Tr. 144. Napoli can drive for up to 1 hour at a
time. Id.
145.

Napoli watches TV, reads and engages in knitting. Tr.

Napoli engages in social activities, including watching her

11

One document seems to indicate that Napoli was injured when
she was lifting a wheelchair, in which a patient was sitting, up a
flight of stairs. Tr. 184.
8

friends play softball. Id.

When asked to check items which are

affected by her illnesses or conditions Napoli did not check the
following: talking, hearing, seeing, memory, completing tasks,
concentration, understanding, following instructions, using hands,
and getting along with others. Tr. 146. Although she stated in the
Function Report that she could not lift more than 5 pounds, at the
administrative hearing Napoli testified that she could lift up to
10 pounds. Tr. 34 and 146. Napoli further testified that she could
do sedentary work so long as she was allowed to get up and walk
occasionally and that her doctor advised her to walk. Tr. 34 and
37. Napoli stated that she used a cane but that it was not
prescribed by a doctor. Tr. 147. At the administrative hearing she
testified that she had not used a cane “for awhile.” Tr. 36.
For the reasons set forth below we will affirm the
decision of the Commissioner denying Napoli’s application for
disability insurance benefits.
STANDARD OF REVIEW
When considering a social security appeal, we have plenary
review of all legal issues decided by the Commissioner. See Poulos
v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007);
Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431
(3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir.
1995).

However, our review of the Commissioner’s findings of fact

pursuant to 42 U.S.C. § 405(g) is to determine whether those

9

findings are supported by "substantial evidence."

Id.; Brown v.

Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994
F.2d 1058, 1064 (3d Cir. 1993).

Factual findings which are

supported

must

§405(g);

by

substantial

Fargnoli

2001)(“Where

the

v.

evidence

Massanari,

ALJ’s

findings

be

upheld.

42

U.S.C.

247

F.3d

34,

38

(3d

of

fact

are

supported

Cir.
by

substantial evidence, we are bound by those findings, even if we
would have decided the factual inquiry differently.”); Cotter v.
Harris, 642 F.2d 700, 704 (3d Cir. 1981)(“Findings of fact by the
Secretary must be accepted as conclusive by a reviewing court if
supported by substantial evidence.”);

Keefe v. Shalala, 71 F.3d

1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001);

Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11

(11th Cir. 1990).
Substantial

evidence

“does

not

mean

a

large

or

considerable amount of evidence, but ‘rather such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.’” Pierce v. Underwood, 487 U.S. 552, 565 (1988)(quoting
Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938));
Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d
Cir. 2008);

Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

Substantial evidence has been described as more than a mere
scintilla of evidence but less than a preponderance.
F.2d

at

1213.

In

an

adequately

10

developed

Brown, 845

factual

record

substantial evidence may be "something less than the weight of the
evidence,

and

the

possibility

of

drawing

two

inconsistent

conclusions from the evidence does not prevent an administrative
agency's finding from being supported by substantial evidence."
Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).
Substantial evidence exists only "in relationship to all
the other evidence in the record," Cotter, 642 F.2d at 706, and
"must take into account whatever in the record fairly detracts from
its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488
(1971).

A single piece of evidence is not substantial evidence if

the Commissioner ignores countervailing evidence or fails to
resolve a conflict created by the evidence.

Mason, 994 F.2d at

1064. The Commissioner must indicate which evidence was accepted,
which evidence was rejected, and the reasons for rejecting certain
evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707.
Therefore, a court reviewing the decision of the Commissioner must
scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968,
970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d
Cir. 1979).
SEQUENTIAL EVALUATION PROCESS
To

receive

disability

benefits,

the

plaintiff

must

demonstrate an “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

11

lasted or can be expected to last for a continuous period of not
less than 12 months.”

42 U.S.C. § 432(d)(1)(A).

Furthermore,

[a]n individual shall be determined to be under a
disability 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.
For purposes of the
preceding sentence (with respect to any individual), “work
which exists in the national economy” means work which
exists in significant numbers either in the region where
such individual lives or in several regions of the
country.
42 U.S.C. § 423(d)(2)(A).
The

Commissioner

utilizes

a

five-step

process

in

evaluating disability insurance and supplemental security income
claims.

See 20 C.F.R. §404.1520; Poulos, 474 F.3d at 91-92.

This

process requires the Commissioner to consider, in sequence, whether
a claimant (1) is engaging in substantial gainful activity,12 (2)
has an impairment that is severe or a combination of impairments
that

is

severe,13

(3)

has

an

impairment

or

combination

of

12

If the claimant is engaging in substantial gainful activity,
the claimant is not disabled and the sequential evaluation proceeds
no further. Substantial gainful activity is work that “involves
doing significant and productive physical or mental duties” and “is
done (or intended) for pay or profit.” 20 C.F.R. § 404.1510.
13

The determination of whether a claimant has any severe
impairments, at step two of the sequential evaluation process, is a
threshold test. 20 C.F.R. § 404.1520(c). If a claimant has no
impairment or combination of impairments which significantly limits
the claimant’s physical or mental abilities to perform basic work
12

impairments that meets or equals the requirements of a listed
impairment,14 (4) has the residual functional capacity to return to
his or her past work and (5) if not, whether he or she can perform
other work in the national economy. Id.

As part of step four the

administrative law judge must determine the claimant’s residual
functional capacity. Id.15
Residual functional capacity is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis.

See Social

Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996).

A

activities, the claimant is “not disabled” and the evaluation
process ends at step two. Id. If a claimant has any severe
impairments, the evaluation process continues. 20 C.F.R. §
404.1520(d)-(g). Furthermore, all medically determinable
impairments, severe and non-severe, are considered in the
subsequent steps of the sequential evaluation process. 20 C.F.R. §§
404.1523 and 404.1545(a)(2). An impairment significantly limits a
claimant’s physical or mental abilities when its effect on the
claimant to perform basic work activities is more than slight or
minimal. Basic work activities include the ability to walk, stand,
sit, lift, carry, push, pull, reach, climb, crawl, and handle. 20
C.F.R. § 404.1545(b). An individual’s basic mental or nonexertional abilities include the ability to understand, carry out
and remember simple instructions, and respond appropriately to
supervision, coworkers and work pressures. 20 C.F.R. § 1545(c).
14

If the claimant has an impairment or combination of
impairments that meets or equals a listed impairment, the claimant
is disabled. If the claimant does not have an impairment or
combination of impairments that meets or equals a listed
impairment, the sequential evaluation process proceeds to the next
step.
15

If the claimant has the residual functional capacity to do
his or her past relevant work, the claimant is not disabled.
13

regular and continuing basis contemplates full-time employment and
is defined as eight hours a day, five days per week or other
similar schedule. The residual functional capacity assessment must
include a discussion of the individual’s abilities. Id; 20 C.F.R.
§ 404.1545; Hartranft, 181 F.3d at 359 n.1 (“‘Residual functional
capacity’ is defined as that which an individual is still able to
do despite the limitations caused by his or her impairment(s).”).
Medical Records
Before we address the administrative law judge’s decision
and the arguments of counsel, we will review in detail Napoli’s
medical records.
On October 7, 2008, Napoli commenced treatment for back
pain with Ronald J. Luszcz, D.O. at Sparta Medical Associates,
located in Branchville, New Jersey. Tr. 183-184, 190 and 234.

Dr.

Luszcz’s treatment notes are mostly illegible but the court can
discern that Napoli was treated by him from October 7 through
December 30, 2008, and after examining Napoli on multiple occasions
he repeatedly released her to engage in light duty work. Tr. 173186.
Dr.

Luszcz

ordered

x-rays(six

views)

Napoli’s lumbar spine. Tr. 175, 178, 191 and

and
234.

an

MRI

of

The x-rays

which were performed on October 22, 2008, revealed “[h]ypertrophic
degenerative joint disease changes involving the L3-4 vertebral
bodies with equivocal narrowing of the disks at these levels” but

14

no evidence of “compression fracture, dislocation or subluxation.”
Tr. 234.

Also, the facets were intact and there was no indication

of destruction of bone.”16 Id. The MRI was performed on November

16

The spine (vertebral column) from the head to the tailbone is
divided into five regions: the cervical (consisting of 7 vertebrae,
C1-C7 in descending order), the thoracic (12 vertebrae, T1-T12 in
descending order), the lumbar (5 vertebrae, L1-L5 in descending
order), the sacrum (5 fused vertebrae, S1-S5 in descending order)
and the coccyx (4 fused vertebrae).
A vertebra consists of several elements, including the
vertebral body (which is the anterior portion of the vertebra),
pedicles, laminae and the transverse processes. The vertebral body
is the largest part of the vertebra and is somewhat oval shaped.
The pedicles are two short processes made of bone that protrude
from the back of the vertebral body. The laminae are two broad
plates extending dorsally and medially from the pedicles and fusing
to complete the vertebral arch (which is the posterior portion of
the vertebra) and encloses the spinal cord. On an axial view of
the vertebra, the transverse processes are two somewhat wing-like
structures that extend on both sides of the vertebral body from the
point where the laminae join the pedicles. The transverse processes
serve for the attachment of ligaments and muscles. The endplates
are the top and bottom portions of a vertebral body that come in
direct contact with the intervertebral discs.
The intervertebral discs (made of cartilage) are the cushions
(shock absorbers) between the bony vertebral bodies that make up
the spinal column. Each disc is made of a tough outer layer
(annulus fibrosus) and an inner core composed of a gelatin-like
substance (nucleus pulposus).
Degenerative disc disease is the wear and tear and breakdown
of the intervertebral discs as a person grows older. It is a
process that can result from the dehydration of the discs as well
as an injury to the spine. The breakdown of the intervertebral
discs can result in discs bulging, protruding or herniating as well
as the inner gelatin-like core of the disc extruding outside the
outer layer. These conditions sometimes obstruct the openings
(foramen) along the spine through which nerve roots exit. This
condition is known as neural foraminal narrowing or stenosis. They
can also result in a narrowing of the spinal canal or spinal
stenosis. Such bulges, protrusions and herniations if they contact
nerve tissue can cause pain. Dehydration of the disc can result in
a decrease in the height of the discs.
Degenerative joint disease (or osteoarthritis) is a breakdown
of the cartilage between joints. In the spine there are facet
15

19, 2008, and revealed “[d]egenerative disc disease with mild
bulging discs” and “[m]ild spinal canal stenosis at L3-L4, L4-L5,
and L5-S1.” Tr. 191.
Dr. Luszcz prescribed the muscle relaxant Flexeril and the
narcotic pain medication Vicodin and referred Napoli to physical
therapy three time a week for six weeks at Sussex County Physical
Therapy and Rehabilitation. Tr. 173-185 and 187-190. However, the
medical

records

from

Sussex

County

Physical

Therapy

and

Rehabilitation show that Napoli only attended physical therapy on
October 20, November 5 and November 10, 2008. Tr. 188. On December
4, 2008, Dr. Luszcz noted that Napoli had not responded to physical
therapy and referred her to a spine surgeon for an evaluation. Tr.
174.

On December 30, 2008, Dr. Luszcz recommended either referral

to a back specialist, additional physical therapy or chiropractic
treatment. Tr. 172.
diagnostic

Throughout this period of time Dr. Luszcz’s

assessment

was

that

Napoli

suffered

from

spinal

stenosis, bulging discs at L3-L4 and L4-L5 and degenerative joint

joints which are in the back of the spine and act like hinges.
There are two superior (top) and two inferior (bottom) portions to
each facet joint called the superior and inferior articular
processes. These joints are covered with cartilage and the wear and
tear of these joint is known as facet arthropathy (arthritis). This
wear and tear of the facet joints result in loss of cartilage and
can cause pain. Hypertrophy is the enlargement or overgrowth of an
organ or part. Subluxation is an incomplete or partial
dislocations. See, generally, Spine Anatomy, spineunverse,
http://www.spineuniverse.com/anatomy/bone-basics-your-spine (Last
accessed June 18, 2014); Dorland’s Illustrated Medical Dictionary,
898, 1749 & 1791 (32nd Ed. 2012).
16

disease (osteoarthritis of the lumbar spine) but even in light of
that diagnosis as noted Dr. Luszcz repeatedly released Napoli to
perform light duty work. Tr. 177-179, 182, 184 and 186.
On December 15, 2008, Napoli based on the referral from
Dr. Luszcz had an appointment with Richard Nachwalter, M.D., at
Atlantic Spine Specialists, located in Morristown, New Jersey. Tr.
192-196. At that appointment Napoli complained of back pain but
denied any lower extremity complaints. Tr. 192.
physical

examination

were

essentially

normal.

The results of a
Tr.

193.

Dr.

Nachwalter observed that Napoli’s back was nontender and she was
able to stand erect and stand on her heels and toes.17 Id.

While

Napoli claimed that the physical therapy made her worse, Napoli had
5/5 (normal) muscle strength in the lower extremities; her reflexes
were normal; she had a negative Babinski sign; she had no clonus;18
she had pain free range of motion of the hips; and she had negative

17

The heel walk test requires the patient to walk on his heels.
The inability to do so suggests L4-5 nerve root irritation. The toe
walk test requires the patient to walk on his toes. The inability
to do so suggests L5-S1 nerve root irritation. Clinical Examination
Terminology, MLS Group of Companies, Inc., https://www.mls-ime.com/
articles/GeneralTopics/Clinical%20Examination%20Terminology.html
(Last accessed June 19, 2014).
18

An abnormal response “called the Babinski’s sign, is
characterized by an upgoing big toe and fanning outward of the
other toes.” Plantar Response, Neuroexam.com, http://www.neuroexam.
com/neuroexam/content.php?p=32 (Last accessed June 19, 2014). The
presence of the Babinski’s sign suggests brain or spinal cord
injury. Clonus is defined as an abnormal “alternate muscular
contraction and relaxation in rapid succession” and “a continuous
rhythmic reflex tremor initiated by the spinal cord below an area
of spinal cord injury, set in motion by reflex testing.” Dorland’s
Illustrated Medical Dictionary, 373 (32nd Ed. 2012).
17

straight leg raising tests.17 Id. Dr. Nachwalter stated the recent
MRI showed “age appropriate” degenerative changes at L3-L4, L4-L5
and L5-S1 but no significant herniations or stenosis. Id. Dr.
Nachwalter’s diagnostic assessment was that Napoli merely suffered
from a lumbar strain. Id.

Dr. Nachwalter recommended that Napoli

continue her home exercise program and use over-the-counter antiinflammatory medication. Id. With respect to the “[e]stimated
length of disability and work capability,” Dr. Nachwalter opined
that “Napoli has no objective findings by MRI or physical exam” and
there was “no reason she [would] require[] any short term or long
term restrictions.” Tr. 194.

He released Napoli to work without

restrictions. Id.
From January 21 through April 8, 2009, Napoli was examined
and treated by Kenneth J. Rieger, M.D., at the New Jersey Spine
Center.

Tr. 197 and 200-201.

prescribed

Vicodin,

the

During that period, Dr. Rieger

nonsteroidal

anti-inflammatory

drug

Celebrex and physical therapy three times per week for four weeks
for

Napoli.

Id.

At

an

appointment

on

January

21st

Napoli

complained of low back and right buttock pain and that she could

17

The straight leg raise test is done to determine whether a
patient with low back pain has an underlying herniated disc. The
patient, either lying or sitting with the knee straight, has his or
her leg lifted. The test is positive if pain is produced between
30 and 70 degrees. Niccola V. Hawkinson, DNP, RN, Testing for
Herniated Discs: Straight Leg Raise, SpineUniverse,
http://www.spineuniverse.com/experts/testing-herniated
-discs-straight-leg-raise (Last accessed June 19, 2014).
18

not sit or stand for any length of time. Tr. 200. Napoli, however,
denied any leg pain, numbness or weakness, or significant gait
changes.

Id.

The

results

essentially normal. Id.

of

a

physical

examination

were

Napoli was neurologically intact with 5/5

muscle strength in her lower extremities; she had normal sensation
and reflexes in the lower extremities; she had a negative Babinski
sign, a negative Faber’s test bilaterally,18 and negative straight
leg raising tests bilaterally; and she had minimal tenderness to
palpation

in

her

thoracic

spine.

Id.

However,

her

lumbar

paraspinal muscles were extremely tender to palpation. Id.

Dr.

Rieger’s assessment was that Napoli suffered from “some early
degenerative changes through her lumbar spine with an exacerbation,
which appear[ed] muscular in nature[.]” Tr. 201.

Dr. Rieger had

her remain off work and prescribed Celebrex. Id.
The results of a physical examination performed by Dr.
Rieger on April 8th remained the same. Tr. 197.

Napoli’s muscle

strength was intact and she had normal sensation and reflexes in
the lower extremities. Id.

Dr. Rieger prescribed Vicodin and

recommended physical therapy. Tr. 197 and 199.

Dr. Rieger did not

provide an assessment of Napoli’s ability to engage in her previous

18

The Patrick’s (Faber) test is “[a] test to determine the
presence or absence of sacroiliac disease; with patient supine, the
hip and knee are flexed and the external malleolus is placed above
the patella of the opposite leg; this can ordinarily be done
without pain, but, on depressing the knee pain is promptly elicited
in sacroiliac disease.” Medical Definition of Patrick’s Test,
Lexic.us, http://www.lexic.us/definition-of/Patrick's_test (Last
accessed June 19, 2014).
19

skilled, medium work. Id.
On two occasions Napoli was evaluated in connection with
her Worker’s Compensation claim by Arthur H. Tiger, M.D., at the
request of Napoli’s attorney. Tr. 209-212.

The first evaluation

occurred on June 12, 2009, and the second evaluation on November
13, 2009.

Dr. Tiger’s examination findings and assessments were

similar on both occasions. Id.

Dr. Tiger found that Napoli had

profound loss of the usual lumbar lordotic curvature; she had spasm
in the paraspinal muscles of the lower lumbar region; she had
multiple areas of hard fibrotic muscles on both sides of the lower
lumbar spine, more so on the right than the left;19 she had
tenderness to palpation over the L2, L3, L4 and L5 vertebral
spinous processes; she had radiation of pain into the right buttock
and right lower extremity when pressure was applied over the right
sacroiliac joint; she had limited lumbar range of motion; she had
a positive straight leg raising test on the right; and she had
weakness of the right Achilles reflex as compared to the left. Tr.
209.

Dr. Tiger indicated that with respect to Napoli’s New Jersey

Worker’s Compensation claim that Napoli was unable to work since

19

Fibrosis, a noun, is the formation of excessive fibrous
tissue, as in a reparative or reactive process. Fibrotic is the
adjective. It is not clear what is being described here. It could
be that Dr. Tiger is indicating muscular fibrosis, a condition
where there is excessive formation of fibrous bands of scar tissue
formed between muscle fibers or merely that Napoli had stiff lower
back muscles on each side of the spine without concluding that
Napoli actually suffered from fibrosis.
20

October 4, 2008, because of “evidence of spinal stenosis, multiple
bulging discs causing a clinical right-sided lumbar radiculopathy,
as well as a chronic lumbosacral strain syndrome with chronic
myofascitis [muscle inflammation].” Tr. 212. Dr. Tiger noted that
Napoli had a “partial total” disability of 80% under the New Jersey
Worker’s Compensation law and that both of his reports were only
to be used in connection with determining Napoli’s “worker’s
compensation disability.” Id.

Dr. Tiger did not opine that Napoli

was totally disabled for purposes of Social Security disability
insurance benefits. Id.
Napoli was also examined on two occasions by Arthur
Canario, M.D., an orthopaedic surgeon, in connection with her
Worker’s Compensation claim. Tr 215-219.
On July 29, 2009 Dr. Canario found that, while Napoli did
complain of back pain at maximum flexion, she had full range of
motion of her lumbosacral spine with flexing to 70 degrees and
extension to 30 degrees; she had full lateral bending and rotation
at 35 degrees; her straight-leg raising test produced pain at 90
degrees; double thigh flexion improved her symptoms at 120 degrees;
and

she

had

paravertebral

tenderness

without

sciatic

notch

tenderness. Tr. 219. Dr. Canario stated that Napoli’s MRI revealed
no acute or significant findings and that the degenerative changes
were not caused by her work accident in October, 2008. Id.

Dr.

Canario further stated that Napoli’s symptoms actually increase

21

with inactivity, but improved with activity. Tr. 218.

Napoli was

observed to walk with a normal gait and she did not need a back
support or cane. Tr. 219. Dr. Canario agreed with Dr. Nachwalter’s
opinion that Napoli only had a back strain, and he also found that
she

was

“certainly

employable.”

Id.

Similar

findings

and

assessment were made by Dr. Canario at an examination of Napoli on
August 31, 2010. Tr. 215-217. Dr. Canario stated that Napoli “is
capable of employment in her current state.” Tr. 217.
Napoli was treated by Michael Rudman, M.D., at Morristown
Memorial Hospital, Pain Management Center, from October 8, 2010,
through May 20, 2011. Tr. 221-233.

On October 8, 2010, Dr. Rudman

noted that Napoli’s gait was upright and antalgic, but she did not
require a cane or crutch. Tr. 232.

Napoli could easily rise from

a seated position to a standing position, and she had no gross
motor or sensory deficits in her lower extremities.

Dr. Rudman

recommended a series of three epidural steroid injections, which
were administered on October 8, November 1 and December 3, 2010.
Tr. 227-229 and 233.

Napoli tolerated all of the injections

“extremely well.” Tr. 223, 228 and 230.

On January 21, 2011, Dr.

Rudman examined Napoli and reported that Napoli was able to get up
relatively easy from a seated to a standing position; she had no
significant spinous process or paravertebral tenderness; she had
no gross motor or sensory deficits in the lower extremities; and
straight leg raising tests caused some mild right posterior thigh

22

pain. Tr. 226.

Similar findings were recorded by Dr. Rudman at an

appointment on March 21, 2011. Tr. 224.

Finally, on May 20, 2011,

Dr. Rudman noted that Napoli was able to get up easily from a
seated to a standing position; Napoli’s lumbar range of motion was
60 degrees flexion and 20 degrees extension; her straight leg
raising test caused right low back pain at 70 to 80 degrees; and
she

had

no

gross

motor

or

sensory

deficits

in

the

lower

extremities. Tr. 222. Napoli was prescribed Advil and Percocet and
Dr. Rudman recommended physical therapy. Id.
On

November

23,

2010,

Napoli

was

examined

by

Barry

Kurtzer, M.D., on behalf of the Bureau of Disability Determination.
Tr. 159-161.

After performing a clinical interview and physical

examination, Dr. Kurtzer concluded that Napoli had “a history of
bulging disc, status post epidural and physical therapy still with
pain in her right leg and mildly decreased motor strength.” Tr.
161.

The results of the physical examination were essentially

normal, including it was observed that Napoli had full range of
motion in her upper and lower extremities, a stable gait and that
she ambulated without difficulty. Tr. 160-161.
DISCUSSION
The administrative law judge at step one of the sequential
evaluation process found that Napoli had not engaged in substantial
gainful work activity since November 21, 2008, the alleged onset
date set forth by Napoli in her application. Tr. 12.

23

At step two of the sequential evaluation process, the
administrative law judge found that Napoli had the following severe
impairments: “Disorder of the lumbar spine.”

Id.

Napoli has not

challenged the administrative law judge’s step 2 analysis.
At step three of the sequential evaluation process the
administrative law judge found that Napoli’s impairments did not
individually or in combination meet or equal a listed impairment.
Id.

Napoli has not challenged the administrative law judge’s step

three analysis.
At step four of the sequential evaluation process the
administrative

law

judge

found

that

Napoli

had

the

residual

functional capacity to perform a limited range of sedentary work.
Tr. 13.

Specifically, the administrative law judge found that

Napoli had the
capacity to lift or carry no more than 10 pounds
occasionally and less than 10 pounds frequently, stand or
walk for 4 hours out of an 8 hour work day, and sit for 46 hours out of an 8 hour work day with the opportunity to
sit/stand or change positions hourly. The claimant’s
ability to push and pull is unlimited at the
aforementioned weights. The claimant can occasionally
climb ramps and stairs but never ladders, ropes or
scaffolds, and she can occasionally balance, stoop,
kneel, crouch or crawl. The claimant must avoid moderate
exposure to vibration. The claimant must avoid work
around hazards, such as work around dangerous machinery,
or work at heights.
Id.

In

setting

administrative

law

the
judge

residual
reviewed

functional
the

capacity,

medical

records

the
and

considered several other items including the treating physicians’

24

medical notes and the report from the consultative examiner, Dr.
Kurtzer. Tr.

13-15.

The administrative law judge found that

Napoli’s statements about her functional limitations were not
credible to the extent they were inconsistent with the above
residual functional capacity. Tr. 15. The administrative law judge
relied on the notes and opinions of treating physicians who either
indicated that Napoli could engage in light duty work or was
unrestricted in her work capabilities, including Dr. Nachwalter,
who opined that Napoli had no need for short or long-term work
restrictions, but the ALJ gave Napoli the benefit of the doubt and
reduced her capacity to the sedentary work level. Tr. 13-15. The
treating physicians’ medical notes and opinions and the opinion of
the consultative examiner, Dr. Kurtzer, were supportive of the
residual functional capacity set by the administrative law judge.
The administrative law judge did not have to accept the findings
or opinions of the non-treating physicians who examined Napoli only
in connection with her Worker’s Compensation claim.
Based on the above residual functional capacity and the
testimony of a vocational expert the administrative law judge found
at step four that Napoli could not perform her prior relevant work
as an automobile salesperson, real estate agent and mental health
aide but that she could perform her prior skilled, sedentary work
as

a

newspaper

district

manager.

Tr.

15.

Consequently,

the

administrative law judge found that Napoli was not disabled and she

25

did not proceed to step five of the sequential evaluation process.
Tr. 15-16.
The administrative record in this case is 251 pages in
length, primarily consisting of medical and vocational records.
The administrative law judge did an adequate job of reviewing
Napoli’s medical history and vocational background in her decision.
Tr. 10-16. Furthermore, the brief submitted by the Commissioner
sufficiently reviews the medical and vocational evidence in this
case. Doc. 13, Brief of Defendant.
Napoli argues that the administrative law judge erred by
(1) failing to develop a full and complete administrative record
and to assure that Napoli appropriately waived her right to
counsel; (2) failing to provide a proper hypothetical to the
vocational expert;(3) making statements in her decision which were
misleading and contrary to the evidence; and (4) inappropriately
assessing Napoli’s credibility.
Napoli’s
whatsoever.

initial

Napoli

was

argument

sent

at

is

least

devoid
three

of

any

written

merit
notices

outlining in detail her right to be represented by counsel at the
administrative hearing and the ALJ at the hearing adequately
questioned Napoli regarding whether or not she wanted to obtain
counsel or proceed with the hearing without counsel.

Napoli

advised that she received the written notices and that she wanted
to proceed without counsel.

It is correct that an administrative

26

law judge has an affirmative obligation to develop the record.
Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005); Fraction
v. Bowen, 787 F.2d 451, 454 (8th Cir. 1986); Reed v. Massanari, 270
F.3d 838, 841 (9th Cir. 2001); Smith v. Apfel, 231 F.3d 433. 437
(7th Cir. 2000);

see also Sims v. Apfel, 530 U.S. 103, 120 S.Ct.

2080, 2085 (2000)(“It is the ALJ’s duty to investigate the facts
and

develop

benefits[.]”).

the

arguments

both

for

and

against

granting

If the record is not adequately developed, remand

for further proceedings is appropriate. Id. In this case, however,
we are satisfied that the administrative law judge complied with
her affirmative obligation to develop the record. The ALJ took
appropriate steps after the hearing to fully develop the record and
Napoli has not proffered any additional medical evidence which
relates to the relevant time period, i.e. from the her alleged
disability onset date to the date last insured.
Second, the ALJ appropriately questioned the vocational
expert.

While it is true that many of Napoli’s medical records

were missing when the ALJ posed the hypothetical questions to the
vocational

expert,

the

ALJ

still

had

the

report

from

the

consultative examiner, Dr. Kurtzer, as well as Napoli’s testimony.
The ALJ’s hypothetical asked the vocational expert to consider
someone who could lift no more than 10 pounds, which was consistent
with Napoli’s own assessment of her abilities and the consultative
examiner’s opinion. The ALJ also asked the vocational expert to

27

consider an individual who needed to alternate between sitting and
standing, which also was consistent with Napoli’s own assessment
of her abilities. Most importantly, the ALJ under the social
security regulations is only required to include in a hypothetical
question credibly established limitations. Rutherford v. Barnhart,
399 F.3d 546, 554 (3d Cir. 2005); Plummer v. Apfel, 186 F.3d 422,
431 (3d Cir. 1999). The record contains an opinion from a treating
physician indicating that Napoli was capable of performing light
duty work as well as an opinion from a treating physician stating
that Napoli had no work restrictions.
hypothetical

questions

all

of

The ALJ set forth in the

Napoli’s

credibly

established

limitations and in fact gave Napoli the benefit of the doubt.
Third, the court discerns no misleading statements in the
ALJ’s decision relating to opinions regarding whether or not Napoli
was disabled.

The Social Security regulations require that an

applicant for disability insurance benefits come forward with
medical evidence “showing that [the applicant] has an impairment(s)
and how severe it is during the time [the applicant] say[s] [he or
she is] disabled” and “showing how [the] impairment(s) affects [the
applicant’s] functioning during the time [the applicant] say[s] [he
or she is] disabled.”

20 C.F.R. § 404.1512(c).

No treating or examining physician has indicated that
Napoli suffered from physical functional limitations that would
preclude her from engaging in the limited range of work set by the

28

administrative

law

judge

in

statutory 12 month period.20

her

decision

for

the

requisite

No physician indicated that Napoli

was incapable of engaging in the limited range of work set by the
administrative law judge on a full-time basis.
The

record

does

not

reveal

any

reason

why

the

administrative law judge could not rely on the opinion of the
treating physician who opined that Napoli could engage in light
duty work. A treating physician has not provided a statement
indicating that Napoli had physical limitations that would preclude
her from engaging in work as a newspaper district manager, and the
bare medical records do not provide support for such a conclusion.
The ALJ did not have to except the opinion of Dr. Tiger, a nontreating physician, who rendered his opinion solely in connection
with the Worker’s Compensation proceeding and who did not provide
a detailed work-related functional capacity assessment indicating
that

Napoli

was

incapable

of

performing

the

exertional

and

nonexertional requirements of sedentary work for the requisite
continuous 12-month period.21

20

To receive disability benefits, the plaintiff must
demonstrate an “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 than 12 months.” 42 U.S.C. § 432(d)(1)(A).
21

To the extent that the ALJ did not comment in her decision on
Dr. Tiger’s examination notes we consider that omission harmless
error under the totality of the evidence. See Weary v. Astrue,
Civil No. 10-896, slip op. at 40-41 (M.D.Pa. Dec. 15, 2010)(Muir,
29

Finally,

with

respect

to

Napoli’s

argument

that

the

administrative law judge did not properly consider her credibility,
the administrative law judge was not required to accept Napoli’s
claims

regarding

Schweiker,

717

her

F.2d

physical
871,

limitations.

873

(3d

Cir.

See

Van

Horn

1983)(providing

v.

that

credibility determinations as to a claimant’s testimony regarding
the claimant’s limitations are for the administrative law judge to
make).

It

is

well-established

that

“an

[administrative

law

judge’s] findings based on the credibility of the applicant are to
be accorded great weight and deference, particularly since [the
administrative law judge] is charged with the duty of observing a
witness’s demeanor . . . .”

Walters v. Commissioner of Social

Sec., 127 f.3d 525, 531 (6th Cir. 1997); see also Casias v.
Secretary of Health & Human Servs., 933 F.2d 799, 801 (10th Cir.
1991)(“We defer to the ALJ as trier of fact, the individual
optimally

positioned

to

observe

and

assess

the

witness

credibility.”). Because the administrative law judge observed and
heard Napoli testify, the administrative law judge is the one best
suited to assess her credibility.
We

are

satisfied

that

the

administrative

law

judge

appropriately took into account all of Napoli’s limitations in the
residual

functional

capacity

assessment.

Our

review

of

the

J.)(applying harmless error analysis); Boyd v. Astrue, Civil No.
11-600, slip op. at 25-26 & 28 (M.D. Pa. May 10, 2012)(Munley, J.).
30

administrative record reveals that the decision of the Commissioner
is supported by substantial evidence. We will, therefore, pursuant
to 42 U.S.C. § 405(g) affirm the decision of the Commissioner.
An appropriate order will be entered.

31