SMITH v. COMMISSIONER OF SOCIAL SECURITY, No. 2:2014cv00658 - Document 11 (D.N.J. 2014)
Court Description: OPINION. Signed by Judge Jose L. Linares on 11/7/2014. (nr, )
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SMITH v. COMMISSIONER OF SOCIAL SECURITY Doc. 11 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY LAWRENCE SMITH, Plaintiff, v. Civil Action No. 14-658 (JLL) OPINION COMMISSIONER OF SOCIAL SECURITY, Defendant. LINARES, District Judge. Before the Court is Lawrence Smith (“Plaintiff’ or “Claimant”)’s appeal, which seeks review of Administrative Law Judge (“AU”) Marissa Ann Pizzuto’s denial of Plaintiff’s application for a period of disability, disability insurance benefits, and supplemental securit y income. The Court decides this matter without oral argument. For the reasons set forth below, the Court affirms the final decision of the Commissioner of Social Security (the “Commissioner”). I. BACKGROUND A. Procedural History On July 15, 2010, Plaintiff, alleging disability as of November 13, 2009, applied to the Social Security Administration (the “Administration”) for a period of disability, disabil ity insurance benefits, and supplemental security income. (R. at 108-113).’ The Administratio n initially denied Plaintiffs application on November 10, 2010 and again upon recons ideration on “R” refers to the pages of the Administrative Record. Dockets.Justia.com October 5, 2011. (Id. at 59-61, 65-67). In response, Plaintiff requested an administrative hearing, which occurred before AU Marissa Ann Pizzuto on August 1, 2012. (Id. at 79). At the hearing, Plaintiff, who was then 48 years old, testified that he had been employed as a heavy equipment operator at various construction sites until 2005 when he got hurt on the job. (R. at 29). With regard to his lifestyle, Plaintiff testified that he lives alone, and that his daughter helps him when he has to leave the house. (Id. at 39-40). He also noted that a friend comes over once a week and cooks meals for him. (Id. at 40). Plaintiff testified that his landlor d installed a balancing bar in his shower for him. (Id. at 47). On September 24, 2012, AU Pizzuto issued a decision, finding that Plaintiff was not disabled from November 13, 2009 through the date of decision. (Id. at 12-20). Plaintiff sought Appeals Council review. (Id. at 7-8). The Appeals Council denied Plaintiff’s request on November 26, 2013, rendering AU Pizzuto’s decision the final decision of the Comm issioner. (Id. at 1-3). As a result, Plaintiff appealed to this Court on January 30, 2014. (Comp l., ECF No. 1). This Court has jurisdiction to review this matter pursuant to 42 U.S.C. § 405(g), and now recounts Plaintiffs medical history. B. Plaintiffs Medical History Plaintiff contends that he has been disabled since November 13, 2009. Plaintiff is alleging disability due to (1) diabetes, (2) hypertension, (3) degenerative disk disease , (4) a stent in his heart, (5) asthma, and (6) sleep apnea. (R. at 129). 2 I. Plaintiffs Diabetes Mellitus Plaintiff has insulin dependent diabetes mellitus. (R. at 254). Plaintiff was diagno sed with diabetes when he was 26 years old. (Id.). He now takes insulin twice a day. (Id.). At the 2 Plaintiff also alleged disability due to arthritis in both ankles, restless leg syndrome, and degenerative eye disease before the AU. Those impairments are not at issue before this Court. 2 hearing before AU Pizzuto, he testified that his diabetes had been largely controlled for the preceding six months. (Id. at 30-31). Plaintiff also testified that, as a result of the diabetes, he experiences occasional swelling and numbness in his right leg, which affects his ability to wear regular shoes, which, in turn, affects his ability to walk. (Id. at 31-33). Plainti ff testified that his physician, Dr. Elamir, gave him a cane which he uses to walk, stand up, and balance when standing. (Id. at 33-34). Dr. HoffiTlan, who conducted a consultative examin ation on October 15, 2010, reported that Plaintiff’s diabetes appeared relatively well controlled with insulin. (Id. at 256). Dr. Hoffman also reported that Plaintiffs occasional numbness in the lower extremities is an early symptom of neuropathy, but he had not yet been treated for it. (Id. at 254). Dr. Hoffman observed that Plaintiff walked with a cane and determined that Plainti ff had a slightly antalgic gait. (Id. at 255). 2. Plaintiffs Hypertension Plaintiff has increased blood pressure, which has been treated with medication for the last five years. (Id. at 254). Plaintiffs elevated cholesterol is also managed with medication. (Id.) 3. Plaintiffs Degenerative Disk Disease Plaintiff has a history of lower back pain, which he attributes to his history as a construction worker. (Id. at 254). An April 2010 MRI of the lumbar spine showed multilevel degenerative changes. (Id. at 351). This condition has been treated with OxyCodone, which Plaintiff testified makes him feel drowsy during the day. (Id. at 44). Plaintiffs treating physicians felt that conservative therapy was adequate to treat his symptoms. 4. Plaintiffs Stent Placement Plaintiff has a history of coronary artery disease. In 2009, Plaintiff had an arterial stent placed after he experienced tightness in his chest and doctors found a blockage. (Id. at 254). 3 Since then, the condition has been managed with medication and Plaintiff has had no major problems with chest pain. (Id.). 5. Plaintiffs Asthma Plaintiff maintains that his asthma prevents him from walking more than one block at a time with his cane. (Id. at 35). Plaintiff also testified that his asthma is aggrav ated by hot weather and drinking cold drinks. (Id. at 36). Plaintiff has an inhaler and a nebuliz er which he uses at least twice a day. (Id. at 35). Dr. Hoffman reported that Plaintiff has been treated for COPD-like symptoms for five years and that he manages these symptoms with the nebulizer and other medication. (Id. at 254). 6. Plaintiffs Sleep Apnea Plaintiff also suffers from sleep apnea. Dr. Hoffman reported that this conditi on has been treated with a CPAP machine for several years. (Id.). II. LEGAL STANDARD A. The Five-Step Process for Evaluating Whether a Claimant Has a Disability Under the Social Security Act, the Administration is authorized to pay a period of disability, disability insurance benefits, and supplemental security income to “disabled” persons. 42 U.S.C. § 423(a), 1382(a). A person is “disabled” if”he is unable to engage in any substantial gainful activity by reason of any medically determinable physic al or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(l)(A), 13 82c(a)(3)(A). A person is unable to engage in substantial gainful activity when his physical or mental impairments are “of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of 4 substantial gainful work which exists in the national economy. . . .“ 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B). Regulations promulgated under the Social Security Act establish a five-step process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(1), 416.920(a)(1). At step one, the AU assesses whether the claimant is currently performing substantial gainfu activity l . 20 C.F.R. § 404.1520(a)(4)(f), 416.920(a)(4)(i). If so, the claimant is not disabled and, thus, the process ends. 20 C.F.R. § 404.1520(a)(4)(f), 416.920(a)(4)(i). If not, the AU proceeds to step two and determines whether the claimant has a “severe” physical or mental impairment or combination of impairments. 20 C.F .R. § § 404.1 520(a)(4)(ii), 41 6.920(a)(4)(ii). Absent such impairment, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Conversely, if the claimant has such impairment, the AU proceeds to step three. 20 C.F.R. § 404.1 520(a)(4)(ii), 41 6.920(a)(4)(ii). At step three, the AU evaluates whether the claimant’s severe impairment either meets or equals a listed impairment. 20 C.F.R. 416.920(a)(4)(iii). If so, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii), § 404.l520(a)(4)(iii), 41 6.920(a)(4)(iii). Otherwise, the AU moves on to step four, which involves three sub-steps: (1) the AU must make specific findings of fact as to the claimant’s [RFCJ; (2) the AU must make findings of the physical and mental demands of the claimant’s past relevant work; and (3) the AU must compare the [RFC] to the past relevan t work to determine whether claimant has the level of capability needed to perform the past relevant work. Burnett v. Comm ‘r ofSoc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000) (citations omitted). The claimant is not disabled if his RFC allows him to perform his past relevant work. 20 C.F.R. § § 404.1 520(a)(4)(iv), 41 6.920(a)(4)(iv). However, if the claimant’s RFC prevents him from doing so, the AU proceeds to the fifth and final step of the process. 20 C.F.R. 404.1 520(a)(4)(iv), 41 6.920(a)(4)(iv). 5 § The claimant bears the burden of proof for steps one through four. Poulos v. Comm ‘r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007) (citing Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004). “At step five, the burden of proof shifts to the. . . Administration to show that the claimant is capable of performing other jobs existing in significant numbers in the national economy, considering the claimant’s age, education, work experience, and [RFC].” Id. (citing Ramirez, 372 F.3d at 551). B. The Standard of Review: “Substantial Evidence” 3 This Court must affirm an AU ‘s decision if it is supported by substantial evidence. See 42 U.S.C. § 405(g), l383(c)(3). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). To determine whether an AU’s decision is supported by substantial evidence, this Court must review the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). However, this Court may not “weigh the evidence or substitute its conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (citation omitted). Consequently, this Court may not set an AU’s decision aside, “even if [it] would have decided the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citations omitted). IlL DISCUSSION At step one, AU Pizzuto found that Plaintiff had not engaged in substantial gainful activity since November 13, 2009, the alleged onset date. (R. at 14). At step two, AU Pizzuto Because the regulations governing supplemental security income—20 C.F.R. 41 § 6.920—are identical to those covering disability insurance benefits—20 C.F.R. 404.1520—this Court will consider § case law developed under both regimes. Rutherford v. Barn hart, 399 F.3d 546, 551 n. 1 (3d Cir. 2005) (citation omitted). 6 found that Plaintiff has had the following severe impairments: (1) insulin dependent diabetes mellitus; (2) asthma; (3) sleep apnea; (4) degenerative disk disease; (5) coronary artery disease with a history of stent placement; and (6) hypertension. (Id.). At step three, AU Pizzuto found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments. (Id. at 15). At step four, AU Pizzuto determined that prior to November 13, 2009 Plaintiff had the RFC to perform the full range of sedentary work. (Id.). Lastly, at step five, AU Pizzuto found that given Plaintiff’s age, education, work experience, and RFC, there were jobs existing in significant numbers in the national econom y that Plaintiff could perform. (Id. at 19). Plaintiff contends that AU De Steno erred at steps three, four, and five. (Pl.’s Br. 9-27, ECF No. 8). A. Whether AU Pizzuto’s Step Three Findings are Based on Substantial Evidence At step three, an AU must “fully develop the record and explain his findings. including an analysis of whether and why [each of the claimant’sJ impairments, or those impairments combined, are or are not equivalent in severity to one of the listed impairments. ” Burnett, 220 F.3d at 120. In conducting such an analysis, there is no formal require ment that an AU “use particular language or adhere to a particular format. .. .“ Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). Rather, an AU’s decision, “read as a whole,” must permit meaningful judicial review. Id.; see also Cosby v. Comm ‘r ofSoc. Sec., 231 F. App’x 140, 146 (3d Cir. 2007). Here, AU Pizzuto began her step three analysis with her determination that “[Plaintiff] does not have an impairment or combination of impairments that meets or medica lly equals the severity of one of the listed impairments. . . .“ (R. at 15). AU Pizzuto then proceeded to find that: (1) Plaintiffs diabetes mellitus did not meet the listing for endocrine disorders (Listing 7 9.00); (2) Plaintiffs asthma did not meet the listings that pertain to chronic pulmonary insufficiency (Listing 3.02); (3) Plaintiffs sleep apnea did not meet the listing for sleep-r elated breathing disorders (Listing 3.10); (4) Plaintiffs degenerative disk disease did not meet the listing for spinal impairments that result in the compromise of a nerve root or the spinal cord (Listing 1.04); (5) Plaintiffs coronary artery disease did not meet the listing for coronary artery disease (Listing 4.04C); (6) Plaintiffs hypertension did not meet any of the cardiac listing s in Section 4,00. (Id. at 15). Plaintiff argues that AU Pizzuto erred at step three because she did not properly consider whether his impairments, in combination, met or medically equale d a listed impairment. (Pl.’s Br. 12-14, ECF No. 8). Plaintiff generally argues that AU Pizzuto failed to properly consider Plaintiffs impairments in combination with each other at step three. (Id.). Plaintiffs argum ent is unpersuasive. With regard to an AU’s duty to consider a claimant’s impairments in combination with one another, the Third Circuit has suggested that an AU fulfills that duty if he indicates that he has done so and there is “no reason not to believe him.” Morrison ex. ret. Morrison v. Comm ‘r ofSoc. Sec., 268 F. App’x 186, 189 (3d Cir. 2008). Moreo ver, a number of district courts in this Circuit have concluded that an AU fulfills his obligation to consider a claimant’s impairments in combination with one another when he states that he has done so and offers a thorough review of the evidence in the record. See, e.g., Mason v. Astrue , No. 09-5553, 2010 WL 3024849, *6 (D.N.J. Aug. 2, 2010). Here, AU Pizzuto explicitly indicated at the beginning of her step three discuss ion that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. . . .“ (R. at 15). In light of AU Pizzuto’s thorough discussion of the record throughout her opinion and detailed explan ation as to why 8 each of Plaintiff’s impairments did not meet a listing, the Court has no reason to disbelieve AU Pizzuto’s indication that she considered the combined effect of Plaintiffs impairments. See Jones, 364 F.3d at 505 (finding AU’s step three determination adequate because AU’s decision, “read as a whole,” illustrated that AU considered the appropriate factors); see also Gainey v. Astrue, No. 10—1912, 2011 WU 1560865, *12 (D.N.J. Apr. 25, 2011) (citation omitted) (holding that “AU’s detailed analysis of the individual impairments and conclusion that Plaintiff did not have ‘an impairment or combination of impairments’ that met or equaled a listing is sufficient.”). B. Whether AU Pizzuto’s RFC Determination is Based on Substantial Evidence At step four, AU Pizzuto determined that Plaintiff has the RFC to perform the full range of “sedentary work.” (R. at 15-19). Plaintiff generally argues that AU Pizzuto failed to 4 sufficiently articulate the rationale for her RFC assessment. (Pl.’s Br. 14-20). In support of his position, Plaintiff notes that “An AU must not simply recite the evidence and then announce a finding.” (Id, at 16). Plaintiff’s argument is unavailing. In making his or her RFC determination, an AU must consider all pertinent and probative evidence. Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 203—04 (3d Cir. 2008) (citing Burnett, 220 F.3d at 121 and Cotter v. Harris, 642 F.2d 700, 705—07 (3d Cir. 1981)). Here, AU Pizzuto provided a thorough three-page discussion of the record in support of her RFC finding, and, in doing so, weighed the available evidence. (R. at 15-19). In particular, the The social security regulations provide that: 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. 20 C.F.R. § 4 16.967 9 AU supported her RFC assessment by considering and weighing the following eviden ce: (1) Dr. Burk’ s November 2010 Physical Residual Functional Capacity Assessment; (2) treatm ent records of Dr. Elamir from December 2009 through July 2012; (3) the April 15, 2010 MRI of Plaintiff’s lumbar spine; (4) the March 28, 2011 x-ray of Plaintiffs right ankle; (5) the October 20, 2010 arterial Doppler study of Plaintiffs lower extremities; (6) Dr. Hoffman’s October 2010 consultative examination; (7) Dr. Kapoor’s December 9, 2010 medical source statem ent; and (8) Plaintiffs testimony at the August 2012 hearing. (See R. at 16-17). Contrary to the Plaintiffs argument, AU Pizzuto did not simply recite the above evidence and come to a conclusion. Instead, the AU explained that while the Plaintiffs “medically determinable impairments could reasonably be expected to cause the alleged symptoms. .the claimant’s statements concerning the intensity, persistence and limiting effects . of these symptoms are not credible to the extent they are inconsistent with the above [RFCJ.” (R. at 17). Though at least one circuit has described this exact language as “mean ingless boilerplate,” an AU’s use of this language “does not automatically underm ine or discredit the AU’ s ultimate conclusion if he otherwise points to information that justifies his credibility determination.” Pepper v. Colvin, 712 F.3d 351, 367-68 (7th Cir. 2013). Such information may include: (1) the extent of a claimant’s daily activities; (2) the location, duratio n, frequency, and intensity of pain or other symptoms; (3) precipitating and aggravating factors ; (4) the type, dosage, effectiveness, and side effects of any medication; (5) treatment other than medication; (6) any measures used to relieve pain or other symptoms; and (7) other factors concerning functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. 404.1 529(c)(3), 41 6.929(c)(3). 10 § Here, the AU pointed out that Plaintiffs diabetes, asthma, and hypertension are controlled with medication and the evidence does not suggest that the Plaintiff required recurre nt emergency room visits for these conditions. (R. at 17). AU Pizzuto also noted that the evidence indicates that the Plaintiffs sleep apnea is adequately treated with a CPAP machin (Id.). e. AU Pizzuto also pointed to information justifying her finding that Plaintiffs allegations of disabling neuropathy are not supported by the evidence. (Id.). The AU cited to Dr. Hoffman’s October 2010 consultative examination which revealed that Plaintiffs periph eral pulses were decreased, but not absent, and that the Plaintiff had no more than a slight antalgic gait. (Id.). AU Pizzuto also referenced the treatment records of Dr. Elamir to suppor t her finding. The AU noted that the records indicated that Plaintiffs touch, pin, vibrato ry and proprioception sensations were normal and that there is no evidence that the Plainti ff is precluded from sedentary work. (Id. at 18). The AU also pointed out that there is no evidence that Plaintiffs back pain is disabling based on the results of the April 2010 MRI and the October 2010 consultative examin ation. (Id.). Plaintiffs treating physicians felt that conservative therapy was adequate to treat his conditions. AU Pizzuto acknowledged that Dr. Burk opined in his November 2010 RFC form that Plaintiff was capable of sedentary work. (Id. at 18). Because AU Pizzuto has provided more than a mere scintilla of evidence in support of her RFC determination and given thatit is not the role of this Court to reweigh the evidence and reach its own conclusions, See Williams, 970 F.2d at 1182 (noting that a district court is not empowered to “weigh the eviden ce or substitute its conclusions for those of the fact-finder”), the Court affirms AU Pizzuto’s RFC determination. C. Whether AU De Steno Erred at Step Five by Relying on the Medical-Voc ational Guidelines 11 At step five, AU Pizzuto concluded that prior to November 13, 2009, a finding of “not disabled” was directed by Medical-Vocational Guideline 201.21. (R. at 19). Plaintiff argues that AU Pizzuto should have invoked the testimony of a vocational expert to determine the availability ofjobs in the national market. (P1.’s Br. 20-27). In making such a determ ination, the AU must consider the Plaintiffs age, education, work experience, and residual functional capacity. 20 C.F.R. 404.1569; Heckler v. Campbell, 461 U.S. 458, 461-63, 103 S.Ct. 1952,7 6 L.Ed.2d. 66 (1983). When a Plaintiff has both exertional and non-exertional disabilities, the AU may not rely solely on the grids to determine employment availability in the national econom y. Sykes v. Apfrl, 228 F.3d 259, 273 (3d Cir. 2000) (emphasis added). Instead, the AU must utilize a “vocational expert or other similar evidence” in order to make such a determination. Id. Without utilizing vocational evidence, an AU cannot properly establish whether jobs exist in the national economy for a plaintiff with a combination of exertional and non-exertiona l impairments. Id. Plaintiff asserts that his neuropathy causes non-exertional postural, manipulative, and environmental limitations. However, based on the record in its entirety, the AU did not find that Plaintiff suffered from any severe non-exertional impairments, including neuropathy. AU Pizzuto properly explained the weight she gave to the different medical evidence and to Plaintiffs subjective complaints, and determined that the “claimant’s allegations of disabling neuropathy are not supported by the evidence to the degree alleged.” (R. at 17). The Court finds that the AU engaged in a comprehensive analysis of the Plaintiffs limitations, and therefore, that this determination was based on substantial evidence from the record. When a plaintiff suffers solely from exertional limitations, an AU may direct a conclusion of “disabled” or “not disabled” by consulting the grids, considering the plaintiffs 12 age, residual functional capacity, education and work experience. Allen v. Barnhart, 417 F.3d 396, 402-03 (3d Cir. 2005) (citing Heckler, 461 U.S. at 467-68). In this case, the AU found that Plaintiff has an RFC to perform a full range of sedentary work, is a younger individ ual, has a high school education, and is able to communicate in English. (R. at 19). The AU then properly applied Rule 201.21 of the grids to make a determination that Plaintiff is “not disable d.” (Id.) Thus, as Plaintiff does not have any non-exertional impairments, the AU was not required to consult a vocational expert. IV. CONCLUSION The Court has reviewed the entire record and, for the reasons discussed above, concludes that AU Pizzuto s determination that Plaintiff was not disabled was supported by substan tial ‘ evidence. Accordingly, AU Pizzuto’ s decision is affirmed. An appropriate Order accompanies this Opinion. DATED: November 6, 2014 Jose L. Linares JOSE U. LINARES U.S. DISTRICT JUDGE /5/ 13
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