BLASUCCI v. COMMISSIONER OF SOCIAL SECURITY, No. 2:2013cv05218 - Document 18 (D.N.J. 2016)
Court Description: REDACTED OPINION. Signed by Judge William J. Martini on 8/3/16. (gh, )
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BLASUCCI v. COMMISSIONER OF SOCIAL SECURITY Doc. 18 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICKI BLASUCCI, Civ. No. 2:13-cv-0521$ (WJM) Plaintiff, REDACTED OPINION V. CAROLYN W. COLVIN ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. WILLIAM J. MARTINI, U.S.D.J.: Plaintiff Vicki Blasucci brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a final determination by the Commissioner of Social Security (the “Commissioner”) denying her application for a period of disability and Disability Benefits. For the reasons that follow, the Commissioner’s decision is AFFIRMED. I. LEGAL STANDARDS A. The Five-Step Sequential Analysis Under the authority of the Social Security Act, the Social Security Administration has established a five-step evaluation process for determining whether a claimant is entitled to benefits. 20 C.F.R. § 404.1520, 4 16.920. In the first step, the Commissioner determines whether the claimant was engaging in substantial activity during the relevant period. Id. § 404.1520(b), 4 16.920(b). If not, the Commissioner moves to step two to determine if the claimant’s alleged impairment, or combination of impairments, is “severe.” Id. § 404.1520(c), 4 16.920(c). If the claimant has a severe impairment, the Commissioner inquires in step three as to whether the impairment meets or equals the criteria of any Dockets.Justia.com impairment found in the Listing of Impairments. 20 C.F.R. Part 404, Subpart P. Appendix I, Part A. If so. the claimant is automatically eligible to receive benefits (and the analysis ends): if not, the Commissioner moves on to step four. Id. § 404.1520(d), 416.920(d). In the fourth step. the Commissioner decides whether. despite any severe impairment. the claimant retains the residual functional capacity (or “RFC”) to perfonri past relevant work. Id. § 404.1520(e)-(f. 416.920(e)-(1). The claimant bears the burden of proof at each of these first four steps. At step five, the burden shifts to the Social Security Administration to demonstrate that the claimant is capable of perfonning other jobs that exist in significant numbers in the and national economy in light of the claimant’s age. education, work PJC. 20 C.F.R. § 404.1520(g). 416.920(g); see Poiilos i’. Comm’r of Soc. Sec.. experience 474 F.3d 8$, 9 1-92 (3d Cir. 2007) (citations omitted). B. Standard of Review for the purpose of this appeal. the Court conducts a plenary review of the legal issues. See Schaitcieck Comm ‘r ofSoc. Sec. .1dm!n.. 181 F.3c1 429. 431 (3d Cir. 1999). The factual findings of the Administrative Law Judge (“AU”) are reviewed “only to determine whether the administrative record contains substantial evidence supporting the findings.” Sikes v. Apfel, 228 f.3d 259. 262 (3d Cir. 2000). Substantial evidence is “less than a preponderance of the evidence hut more than a mere scintilla.” Jones v. Barnhart. 364 f.3d 501. 503 (3d Cir. 2004) (citation omitted). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. When substantial evidence exists to support the AU’s factual findings, this Court must abide by the AU’s detenninations. See Ic?. (citing 42 U.S.C. § 405(g)). . II. BACKGROUND Plaintiff a sixty-two-year-old resident of Plainfield. New finding of disability on the basis of impainuents Administrative Transcript (“Tr.”) 18. Plaintiff has a high school diploma and was previously employed as a hair dresser. Ir. 22. Jersey. seeks a On March 21, 2007. Plaintiff filed a Title II application tor a period of disability and disability insurance, alleging disability as of December 31, 1997. Tr. 169-83 Plaintiffs application alleged that she could not work because she suffered from Tr. 22. The AU denied Plaintiffs claim on October 29. 2009. Tr. $ 1-83. On December 29. 2009, Plaintiff requested that the Appeals Council review that decision. Tr. 130-34. On April 25. 2011 the Appeals Council remanded the case hack to the AU because the AU failed to take into account additional evidence concerning Plaintiffs medical condition. includmg a report from her treating 3hysician. Tr. 90—9 1 .Mter reviewing the additional evidence and holdin2 another oral hearing. the AU issued a December 19. 2011 decision concluding that Plaintiff was not disabled within the meaning of the Social Security Act and thus not entitled to disability insurance benefits (“DIB’”). Tr. 19. The AL.I concluded that documentary medical reports. testimony from experts. and Plaintiffs own testimony demonstrated that Plaintiffs residual functional capacity (“RFC”) would allow her to perform her prior job as a hair dresser. Tr. 20-27. Therefore. Plaintiff was not entitled to disability insurance benefits (“DIB”). The Appeals Council confirmed that decision on July 2. 2013. Tr. 1-4. Plaintiff now appeals. A. Summary of the Record The record includes medical records from treating physician Dr .James Greenman, Ph.D.. medical expert testimony from Dr. Martin fecirner. M.D.. testimony from vocational expert (“VE”) Patricia Sasona. and Plaintiffs own testimony. In 200$. Plaintiffs treating physician. Dr. James Greenman. submitted a report indicating that Plaintiff was only capable of less than of sedentary work. Tr. 301-06. The report stated that Plaintiff was capable of standing and/or walking for no more than two hours per day and had limited ability to push or pull objects while working. Id. In addition to the 200$ report. the record consists of Dr. Greenman’s “progress notes” on Plaintiffs medical condition. The progress reports noted that Plaintiff did not have any obvious infections. and that by 2005. A 2005 progress report also noted that while Plaintiff had a heahhv Plaintiff did suffer from congestion. her lungs were clear. See Tr. 404. Tn 2006. Dr. Greenman noted that Plaintiffs acute pneumonia was clinically better and her remained in good control. Tr. 413. A 2007 report from a different physician indicated that Plaintiff had experienced “no chest pain and no shortness of breath along with no nausea. vomiting, diarrhea or constipation.” However, the same report did indicate that Plaintiff suffered from sinus headaches and ankle swelling. under excellent Tr .521. In 2009, Dr. Greemnan reported that Plaintiffs . control. Tr. 520. In addition to reports from Plaintiffs treating physician. the record also contains testimony from Dr. Martin fechner. Tr. 66. Dr. fecimer testified that count was normal as of August 2009. He also testified that there Plaintiffs Tr. 66-67. was no evidence of major opportunistic infection . Dr. fechner also opined that Plaintiff was capable of standing or walking six hours in an eight-hour day. Tr. 70. There was also VE testimony at the hearing. Tr. 73. The VE testified that someone of Plaintiffs age and background who had the RFC to perform light work would be able to perform Plaintiffs prior job as a hair stylist. Tr. 74. Plaintiff also testified about her medical condition and overall weliness. Plaintiff testified that when she vent to see her treating physician in 1997 she was suffering from side effects produced by her medications. Tr. 62. Specifically, she testified that in 1997 she experienced swelling in her extremities and suffered from dysmorphia. confusion, dizziness, and night sweats. Tr. 63. Plaintiff further testified that she continues to suffer from those side effects. Tr. 43. She also testified that she is able to independently shower, dress herself, take care of finances, and clean. Tr. 45-49. B. The AU’s Decision At step one, the AU found that Plaintiff did not engage in substantial activity during the relevant time period. Tr. 2 1. At step two, the AU concluded The that Plaintiff had the following severe impairments: AU found the impairments to he “severe” under the Regulations “because a medical record supports a finding that they are medically determinable impairments which, when considered either individual or in unison, significantly limit the claimant’s mental and ph’sical abilities to do one or more basic work activities.” Tr. 21. . At step three, the AU concluded that Plaintiffs impairments did not meet nor were equivalent to one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part A. Specifically, the AU found that Plaintiffs infections were not accompanied by any of the impairments specified in listings 14.08 Tr. 2 1-22. or 5.05 . At step four, the AU found that Plaintiff was capable of performing her past relevant work as a hair stylist and thus was not entitled to D13. Tr. 27. The AU supported her conclusion by finding that Plaintiff had the RFC to perform the demands of’ a full range of light work as defined in 20 C.F.R. 404. 1567(b). which meant Plaintiff was capable of lifting 20 pounds occasionally and 10 pounds frequently, standing or walking for 6 hours in an 8-hour work day, and performing unlimited pushing and pulling within the given weight restrictions. Tr. 22. The ALl also found that Plaintiff did hOt possess mental impairments that have had 1 greater than a slight or minimal effect on her ability to perform basic work activities. Tr. 22. Moreover, the AU noted that according to VE testimony, a person of Claimant’s age, background, and RFC would still retain the ability to perform her work as a hair stylist. Tr. 27. The AU did consider the opinion from Plaintiffs treating physician, Dr. Greenman, who stated that Plaintiff was only capable of less than sedentary work, i.e., she had limited pushing and pulling ability and was capable of standing or walking for less than two hours per-day. Tr. 30 1-06. However, the AU declined to give Dr. Greenman’s opinion controlling or substantial weight for three primary including Dr. reasons. See Tr. 25. First, the objective medical evidence demonstrated that Plaintiffs infections are Greenman’s own progress reports generally under control and that Plaintiff is in good health. Tr. 26. Second, in a 200$ Function Report, Plaintiff indicated that she was capable of partaking in various daily activities, including, inter alia, taking care of her cat, shopping for food, and occasionally cutting hair for neighbors and friends. Id. Finally, expert medical testimony from Dr. Fechner indicated that Claimant did not suffer from impairments that were severe enough to preclude her from doing light work. Tr. 26-27. In relying on Dr. Fechner’s testimony, the AU noted that unlike Dr. who may be sympathetic to Plaintiff and stood to gain if Plaintiff Greenman would continue to use him as her treating physician Dr. Fechner had no apparent bias. Moreover, the AU concluded that Dr. Fechner’s testimony was supported by the objective medical evidence. Tr. 27. — — — — Having determined at step four that Plaintiff was capable of performing her previous occupation as a hair stylist, the AU concluded that Plaintiff was not entitled to DIB. III. DISCUSSION Plaintiff challenges the AU’s determination that she was not disabled as of December 31, 1997. Specifically, Plaintiff argues that the AU committed the following errors: (1) the AU improperly overruled the testimony of Plaintiffs treating physician; (2) Dr. Fechner was not qualified to testify as to Plaintiffs medical condition; and (3) the ALl was biased. Each of these challenges will be addressed in turn. A. Step Four: Overruling Dr. Greenman’s Testimony Plaintiff contends that the AU erred in overruling Dr. Greenman’s opinion that Plaintiff is only capable of less than sedentary work. Specifically, Plaintiff 5 contends that the AU had no compellina reason for overruling Dr. Greenman’s opinion. Instead. Plaintiff argues. the AU rested her conclusion on the suspicion that Dr. Greenman may he bias toward Plaintiff in part because he stood to gain if Plaintiff would continue to use him as her treating physician. The Court disagrees. A treatmg source’s opinion on the issues of the nature and severity of an individual’s impairment must he given controlling weight if the opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques 20 C.F.R. § and is not inconsistent with other substantial evidence. 404.1527(d)(2): Social Security Ruling (SSR) 96-2p: fciignoli v. Massanari. 247 f.3d 34. 43 (3d Cir. 2001). Moreover. “[a] treating source’s medical opinion will not be entitled to controlling weight if substantial nonmedical evidence shows that the individual’s actual activities are greater than those provided in the treating source’s opinion.” SSR 96-2. Here the AL.J declined to give Dr. Greenman’s opinion controlling weight Most significantly, the ALl concluded that Dr. for a variety of reasons. Greenman’s opinion was inconsistent with Plaintiff’s medical records. including The record supports this Dr. Greenman’s own progress reports. Tr. 26. conclusion: Plaintiffs medical reports indicate that while she may have suffered they were not overwhelmingly from impairment debilitating. See e.g. Tr. 377: 378: 379: 521. . The ALl also declined to give Dr. Greenman’s opinion controlling weight because it was inconsistent with a 2008 function Report in which Plaintiff reported that she is able to perform a variety of daily functions, including caring for her cat. 3reparing her own meals, shopping in stores, and paying her bills. Tr. 26. Moreover, the AU noted that Dr. Greenman’s opinion was inconsistent with the expert medical testimony of Dr. Fechner, who concluded that Plaintiffs impainuents would not prevent her from performing light work. Yr. 27. The AL.T’s decision not to give Dr. Greenman’s opinion controlling weight is therefore supported by substantial evidence on the record. Plaintiff inaccuratel describes the ALl’s decision as solely resting on the observation that Dr. Greenman mai he biased toward Plaintiff because he is her treating physician. However, the ALl did not definitively conclude that Dr. Greenman was biased. and more importantly, her decision not to give Dr. Greenman’s opinion controlling weight was reasonably premised on a multitude of other factors completely unrelated to any bias issues. B. Step four: Dr. fechiier’s Qualifications 6 Plaintiff also suggests that Dr. fechner is unciualifiecl to testify regarding Plaintiffs medical condition and thus the ALl erred in adopting his opinion. Specitic ally. Plaintiff argues that Dr. Pecimer is not qualified because he allegedly patients and instead refers them has admitted under oath that he does not treat to infectious disease specialists. The Court is not persuaded by this argument. first, there is no indication from the record that Plaintiff objected to Dr. fechner’s qualifications at the hearing. Courts have previously refused to entertain arguments related to a medical expert’s qualifications if a plaintiff failed to object to those qualifications at the hearing. See Miller i’. Bamnhart. No. 01-cv-0052. 2002 WL 32348504 (E.D. Pa. Jan. 31. 2002). Moreover, nothing on the record patients to infectious disease shows Dr. Fecimer testifying that he refers specialists, and the Court declines to base its decision on extra-record assertions. Even disregarding those points, the Court finds that the ALT did not err b relying on Dr. Fechner’s testimony. Consulting physicians for the Social Security Administration are deemed to be highly qualified experts in Social Security disability evaluation. See C.F.R. § 404.1527(e)(2)(i): Milcmo v. Commissioner of Social Security, 152 Fed.Appx. 166. 170 n. 7 (3d Cir. 2005): .1ndrews v. Astrue. No. 10-04932. 2011 \VL 6756967 (D.N..T. Dec. 21. 2011). Therefore. Dr. fechner was qualified to evaluate Plaintiffs disabled status for the purpose of Social Security, which is exactly what he did. Additionally, the AU noted that Dr. F ecimer is a board-certified specialist in internal medicine, which rendered him qualified to provide an opinion on Plaintiffs overall medical condition. Tr. 26. The Court thus concludes that the ALl did not err when it adopted Dr. Fechner’s medical opinion. C. Alleged Bias of the AU Plaintiff also suggests that the ALl was biased against her. The Court disagrees. A Social Security claimant has the right to a fair hearing before an impartial ALl. Venitirci v. Shalcila, 55 F.3d 900, 902 (3d Cir. 1995). However, the Court will presume that the AU was not biased unless a plaintiff shows that there was a contlict of interest or some other specific reason for disqualification. Schweiker v. McClure, 456 U.S. 188. 195 (1982). Moreover, the burden is on the plaintiff to overcome the presumption of impartiality. Id. at 196. Plaintiff points to no specific facts that demonstrate bias on the part of the ALl. Instead, Plaintiff alleges bias because the ALl suggested that the testimony from As discussed Plaintiffs treating physician may not be entirely credible. previously, the record shows that the AU did not definitively conclude that Plaintiffs treating physician was biased; instead the AU merely indicated that such bias was possible. More importantly, the record shows that the AU’s determination was based on her review of medical records, expert testimony, and Plaintiffs own testimony it was not a result of any bias against Plaintiff. — IV. CONCLUSION For the foregoing reasons, the Commissioner’s decision is AFFIRMED. An appropriate order follows. wiyIØ J. MARTINI, U.S.D.J. Date: Augusta, 2016 8
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