NOAH v. COMMISSIONER OF SOCIAL SECURITY, No. 2:2014cv01723 - Document 12 (D.N.J. 2014)
Court Description: OPINION. Signed by Judge Jose L. Linares on 12/4/14. (gmd, )
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NOAH v. COMMISSIONER OF SOCIAL SECURITY Doc. 12 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TINA NOAH, Plaintiff, Civil Action No. 14-1723 (JLL) v. OPINION COMMISSIONER OF SOCIAL SECURITY, Defendant. LINARES, District Judge. Before the Court is Tina Noah (“Plaintiff’ or “Claimant”)’s appeal , which seeks review of Administrative Law Judge (“AU”) Sheena Barr’s denial of Plain tiffs 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 September 27, 2010, Plaintiff, alleging disability as of Novem ber 30, 2008, applied to the Social Security Administration (the “Administration”) for a period of disability, disability insurance benefits, and supplemental security income. (R. at 2082l8).1 The Administration initially denied Plaintiffs application on February 25, 2011 and again upon reconsideration on “R.” refers to the pages of the Administrative Record. Dockets.Justia.com October 17, 2011. (Id. at 102-104, 111-116). In response, Plaintiff requested an administrative hearing, which occurred before AU Sheena Barr on June 15, 2012. (id. at 138). At the hearing, Plaintiff, who was then 43 years old, testified that she had been last employed in 2008 as a cook. (Id. at 61-62). With regard to her lifestyl e, Plaintiff testified that she lives alone. (Id. at 60). Plaintiff also testified that she stopped driving in 2006, and if she needs to go somewhere she either uses public transportation or gets a ride from a friend. (Id. at 79). On July 27, 2012, AU Barr issued a decision, finding that Plaintiff was not disabled from November 30, 2008 through the date of decision. (Id. at 3 5-44). Plainti ff sought Appeals Council review. (Id. at 27). The Appeals Council denied Plaintiffs request on January 14, 2014, rendering AU Barr’s decision the final decision of the Commissioner. (Id. at 1-3). As a result, Plaintiff appealed to this Court on March 18, 2014. (Compl., ECF No. 1). This Court has jurisdiction to review this matter pursuant to 42 U.S.C. B. § 405(g), and now recounts Plaintiffs medical history. Plaintiffs Medical History Plaintiff contends that she has been disabled since November 30, 2008. Plaintiff alleges disability due to (1) carpal tunnel syndrome, (2) bipolar disorder, (3) depression, (4) asthma, and (5) a learning disability. 1. Plaintiffs Carpal Tunnel Syndrome Plaintiff has complained of wrist pain since 2008. (R. at 58). Plainti ff testified in her hearing that she experiences numbness in both hands from her wrists to her fingertips, but the pain is worse in her right hand. (Id. at 72). She also testified that doctor a prescribed a wrist brace for her right wrist in 2009. (Id.). Plaintiff claimed that she experie nces pain every day and that especially on bad days she cannot hold a glass of water in her hand without dropping it. (Id. at 73). She also testified that she needs assistance with buttoning due to her condition, and avoids 2 wearing clothing with buttons. (Id.). Plaintiff testified that her treatin g neurologist, Dr. Komotar prescribed Naproxen for Plaintiffs wrist pain. (Id. at 74). 2. Plaintiffs Bipolar Disorder Plaintiff also suffers from bipolar disorder. Plaintiffs attorney testifie d that she has been treated for this disorder for some time. (Id. at 55). Plaintiff spent time at the Jersey City Medical Center Partial Hospitalization program. (Id.). At the time of the hearing , Plaintiff was getting outpatient treatment once per month and visiting the Self-Help Center at Jersey City Medical two to three times per week. (Id. at 82-83). She testified that going to group meetings has helped her understand her disorder. (Id. at 80). 3. Plaintiffs Depression Plaintiff also suffers from depression. Plaintiff testified that she often sees and hears things when she feels really depressed, which she claims occurs three times per month. (Id. at 84-85). Dr. Candela, who completed a consultative examination on Decem ber 9, 2010, reported that Plaintiff is, in fact, depressed and has been psychiatrically hospitalized ten times, various times as a result of a suicide attempt. (Id. at 695). Again, Plaintiff testifie d that her participation in the program at Jersey City Medical Center has had a positive effect on her mental health. (Id. at 80). 4. Plaintiffs Asthma Plaintiff also suffers from asthma. Plaintiff testified that her asthma is worse in the summer. (Id. at 75). She testified that her asthma is controlled if she uses her inhaler at least twice a day and the weather is good. (Id. at 76). Plaintiff smokes tobacc o every day. (Id. at 741). She also testified that she has smoked marijuana in the past, despite her condition. (Id. at 85). During a visit to Jersey City Medical Center for wrist and knee pain, Dr. Bansal reported that her lungs were clear. (id. at 743). 3 5. Plaintiff’s Learning Disability Plaintiff has an alleged learning disability. During a biopsychosocial assessm ent, a doctor at Jersey City Medical Center indicated that Plaintiff’s learning needs were average. (Id. at 1064). II. LEGAL STANDARD A. The Five-Step Process for Evaluating Whether a Claimant Has a Disabi lity 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 physical or mental impair ment 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)(1)(A), 1382c(a)(3)(A). A person is unable to engage in substantial gainful activity when his physical or mental impair ments 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. . . .“ 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)(l), 416.920(a)(1). At step one, the AU assesses whether the claimant is currently performing substantial C.F.R. gainful activity. 20 § 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. § 404.1 520(a)(4)(f), 41 6.920(a)(4)(i). If not, the AU proceeds to step two and determines whether the claimant has a “severe” physic al 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. 4 § 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), 416.920(a)(4)(ii). At step three, the AU evalua tes 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), § 404.1520(a)(4)(iii), 41 6.920(a)(4)(iii). Otherwise, the AU moves on to step four, which involv es 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 claima nt’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 her RFC allows her to perform his past relevan t work. 20 C.F.R. § 404. l520(a)(4)(iv), 416.920(a)(4)(iv). However, if the claimant’s RFC prevents her 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). 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. Barnha rt, 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 numbe rs in the national economy, considering the claimant’s age, education, work experience, and [RFCJ.” Id. (citing Ramirez, 372 F.3d at 551). B. The Standard of Review: “Substantial Evidence” 2 2 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. 404.1 520—t his Court will consider case law developed under § both regimes. Rutherford v. Barnhart, 399 F.3d 546, 551 n. 1 (3d Cir. 2005) (citation omitted). 5 This Court must affirm an AU’s decision if it is supported by substan tial evidence. See 42 U.S.C. § 405(g), 1383(c)(3). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequa te 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 suppor ted by substantial evidence, this Court must review the evidence in its totality. Daring v. Heckle r, 727 F.2d 64, 70 (3d Cir. 1984). However, this Court may not “weigh the evidence or substit ute 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). III. DISCUSSION At step one, AU Barr found that Plaintiff had not engaged in substan tial gainful activity since November 30, 2008, the alleged onset date. (R. at 37). At step two, AU Barr found that Plaintiff had the following severe impairments: (1) bipolar disorde r; (2) depression; (3) asthma; and (4) a learning disability. (Id.). AU Barr also found that Plaintiff had one nonsevere impairment: carpal tunnel syndrome. (Id.). At step three, AU Barr found that Plaintiff did not have an impairment or combination of impairments that met or medica lly equaled one of the listed impairments. (Id. at 38). At step four, AU Barr determined that Plaintiff had the RFC to perform the full range of work at all exertional levels, but with the follow ing nonexertional limitations: she is limited to simple, routine work; she must avoid concentrated exposu re to flumes, odors, gases, poor ventilation; she should only have occasional contact with coworkers and general public. (Id. at 39). Lastly, at step five, AU Barr found that Plaintiff is capable of performing past relevant 6 work as a laundry worker, sales agent insurance, and restaurant cook. (Id. at 41-42). Plaintiff contends that ALl Barr erred at steps two, three, and four. (Pl.’s Br. 9-37, ECF No. 9). A. Whether ALl Barr’s Step Two Findings are Based on Substantial Eviden ce Plaintiff argues that the ALl’s step two finding was inadequate. (Pl.’s Br. 9-10, ECF No. 9). In addition to finding that her bipolar disorder, depression, asthma , and learning disability were severe impairments, Plaintiff argues that the AU should have also found that her carpal tunnel syndrome was a severe impairment. The Commissioner counte rs that Plaintiff’s argument is unpersuasive. (Def.’s Br. 4-7, ECF No. 11). At step two, the AU must determine whether the claimant has a medically severe impairment or combination of impairments. Under the applicable regulations, an impairment is severe only if it significantly limits the claimant’s physical or mental ability to do “basic work activities.” C.F.R. § 404.1521(b). Diagnoses alone are insufficient to establish their severity at step two; the plaintiff is also required to prove that the impairment signIcantly limits her ability to do basic work activities. Salles v. Comm ‘r of Soc. Sec., 229 F. App’x 140, 144 (3d Cir. 2007). In the case at bar, then, even though the evidence shows that Plainti ff was diagnosed with carpal tunnel syndrome, the Plaintiff did not show that her carpal tunnel syndrome significantly limited her ability to do basic work. Instead, the ALl found that carpal tunnel syndrome caused only a minimal impact on Plaintiff’s ability to perform work-related functions. (R. at 37-3 8). This Court finds that this determination was supported by substantial eviden ce. The Third Circuit has also indicated that an ALl’s errone ous finding that some of a claimant’s impairments are not severe at step two is harmle ss if the AU finds that the claimant has other severe impairments. Salles, 229 F. App’x at 145 n. 2 (citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)). Here, as noted above, the AU found that Plaintiff’s bipolar 7 disorder, depression, asthma, and learning disability were severe impair ments at step two. (R. at 37). Therefore, even if the AU erred by not finding that Plaintiff’s carpal tunnel syndrome was severe at step two, such error was harmless. B. Whether AU Barr’s Step Three Findings Are Based on Substantial Eviden ce At step three, an AU must “fuily develop the record and explain his finding s. . . , including an analysis of whether and why [each of the claimant’s] 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 requirement 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 Barr 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 38). AU Barr then proceeded to find that: (1) Plaintiffs asthma did not meet any applicable listing (Listing 3.03); (2) Plaintiffs mental impairments, considered singly and in combination, did not meet the criteria of the listings for organic mental disorders, nor affective disorders (Listing 12.02 and 12.04). Plaintiff argues that Plaintiffs impairments did meet or medically equal a listed impair ment. (Pl.’s Br. 15-24, ECF No. 9). Plaintiffs argument is unpersuasive. As for Plaintiffs asthma, there is no evidence in the record that suggests the Plaintiffs asthma meets the listing level. In order to meet Listing 3.03, Asthma, Plaintiff had to exhibit chronic asthmatic bronchitis as measured in 3 .02A or attacks occurring at least once every 2 months or at least 6 times a year. 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 3.03. There is no evidence 8 that Plaintiff suffers from frequent attacks and multiple examinations showed that Plaintiff’s lungs were clear, with no evidence of wheezes, rhonci, or rales. (R. at 743). A claimant’s organic mental disorder or affective disorder meets or medica lly equals listing 12.04 when it either satisfies both the paragraph A and paragraph 3 B criteria, or satisfies the paragraph C criteria of that listing. 20 C.F.R. Pt. 404, Subpt. P. App’x 1, § 12.04. Here, the AU found that Plaintiffs affective disorder did not meet listing 12.04, focusing on whether said disorder satisfied the paragraph B criteria. (R. at 38). Plaintiff argues that the AU’s finding is not based on substantial evidence because she did not explain why her organic mental or affective disorder failed to meet the paragraph A criteria. (Pl.’s Br. 18-19, 4 ECF No. 9). To satisfy the Paragraph B criteria of listings 12.02 or 12.04, a claima nt must demonstrate that her organic mental disorder or affective disorder results in at least two of the following: I. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duratio n 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.04. A limitation is “marked” when it is “more than moderate but less than extreme.” Id. Here, the AU found that neither Plaintiffs organic mental disorder nor her affective disorder resulted in marked limitations in any of the first three categories, and that Plaintiff had one to two episodes of decompensation. (R. at 38). With regard to Plaintiffs activities of daily living, the AU concluded that Plaintiffs impairments resulted in only moderate restrictions thereto. (Id.). In support of her conclusion, the To satisfy the paragraph A criteria, a claimant must, in essenc e, medically document the persistence of depressive, manic, or bipolar syndrome. 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.04. Plaintiff does not argue that the AU’s finding concerning listing 12.02 nor 12.04 is deficient because she did not discuss the paragraph C criteria. Accordingly, the Court does not discuss the paragraph C criteria. 9 AU noted that Plaintiff stated that she does not have any difficu lty performing personal care activities like bathing, dressing, or feeding. (Id.). Thus, the AU offered substantial evidence in support of her conclusion that Plaintiff had only a moderate restrict ion in her activities of daily living. The AU next concluded that Plaintiff had only moderate difficulties in maintaining social functioning. (R. at 38). In support of her conclusion, the AU noted that Plaintiff reported she is able to interact with friends, shop in public, and use public transpo rtation. (Id.). Hence, the AU provided substantial evidence in support of her conclusion that Plaintiff had only a moderate restriction in maintaining social functioning. See e.g. Garcia v. Astrue, No. 11—113, 2012 WL 2018240 at *8 (W.D.Pa. June 5, 2012) (finding that substantial evidence supported the AU’s finding that the plaintiff had only moderate difficulties in social functio ning where “although there was some indication of social isolation, [the pjlaintiff was able to maintain satisfactory relationships with his brother and others, and the [p]laintiff to be friendly and cooperative ... health care professionals ... consistently revealed ....“). The AU further concluded that Plaintiff had only moderate difficu lties in maintaining concentration, persistence or pace. (R. at 38). In support of her conclusion, the AU noted that Plaintiff is able to follow written and spoken instructions and watch television. (Id.). Lastly, the AU concluded that there were only one to two episod es of decompensation, for extended duration. (Id.). As a result, the AU determined that Plaintiff did not satisfy the requirements of listing 12.02 or 12.04 since she did not meet the paragraph B criteria. (See id.). In doing so, the AU offered substantial evidence in support of her conclusion. Plaintiff also argues that the AU’s analysis of listing 12.02 and 12.04 is deficient because the AU did not consider the paragraph A criteria. However, since the AU provided substantial evidence in support of her 10 determination that Plaintiff failed to meet the paragraph B crite ria, she did not need to consider the paragraph A criteria. See Gantt v. Comm’r of Soc. Sec., 205 F. App’x 65, 66 (3d Cir.2006) (declining to address the paragraph A criteria because the plain tiff had faile d to meet the paragraph B criteria). In any event, Plaintiff, who bears the bears the burden of proo f at step three, has failed to articulate why her impairments meet listings 12.02 or 12.04. See Meyler i’. Comm’r ofSoc. Sec., 283 F, App’x 884, 889 (3d Cir.2007) (noting that the plain tiff bears the burden of proving at step three that his impairments meet or medically equal a listin g). C. Whether AU Barr’s RFC Determination is Based on Subs tantial Evidence At step four, AU Barr determined that Plaintiff has the RFC to perform the full range of work at all exertional levels with the following nonexerti onal limitations: she is limited to simple, routine work; she must avoid concentrated exposure to flum es, odors, gases, poor ventilation; she should only have occasional contact with coworkers and general public. (R. at 39-41). Plaintiff generally argues that AU Barr’s RFC determination is not based on substantial evidence. (P1. ‘s Br. 24-28). In support of his position, Plaintiff notes that “An AU must not simply recite the evidence and then announce a finding.” (Id. at 25). Plain tiff’s argument is unpersuasive. In making his or her RFC determination, an AU must cons ider 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 Barr provided a thorough discussion of the record in supp ort of her RFC finding, and, in doing so, weighed the available evidence. (R. at 39-41). In particular, the AU supported her RFC assessment by considering and weighing the following evidence: (1) the state agency medical opinions of Dr. Joseph Bencivenne, Dr. ibrahim Hou sri, and Dr. C.B. Dalton; (2) Plaintiff’s 11 treating doctors’ notes; (3) Plaintiffs hospital admissions; and (4) Plaintiff’s testimony at the June 2012 hearing. (Id.). Contrary to the Plaintiff’s argument, AU Barr 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 [RFC].” (R. at 40). Though at least one circuit has described this exact language as “meaningless boilerplate,” an AU’s use of this language “does not automatically undermine or discredit the AU’s ultimate conclusion if he otherwise points to information that justifies his credibility determ ination.” 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, duration, frequency, and intensi ty of pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effecti veness, 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 limitat ions and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3), 416.929(c)(3). As to Plaintiffs mental health, the AU pointed out that Plain tiffs therapy sessions have had a positive impact on her mental health condition. (R. at 40). AU Barr also noted that Plaintiffs CT scans are normal and the results of her many psychiatric screenings have been positive. (Id.). The AU also pointed out that Plaintiff only uses her medication sporadically. (Id.). AU Barr also pointed to information justifying her finding that Plaintiffs learning disability would not impair her ability to perform work-related functio ns. (Id.). 12 AU Barr also supported her finding that Plaintiffs asthm a was controlled. (Id.). The AU cited to examination records which reported that Plaintiffs lungs were clear with no wheezes, rhonci, or rales. (Id.). The AU also noted that Plain tiffs asthma does not prevent her from smoking tobacco on a daily basis. (Id.). Because AU Barr has provided more than a mere scintilla of evidence in support of her RFC determination and given that it is not the role of this Cou rt to reweigh the evidence and reach its own conclusions, See Williams, 970 F.2d at 1182 (noti ng that a district court is not empowered to “weigh the evidence or substitute its conclusions for thos e of the fact-finder”), the Court affirms AU Barr’s RFC determination. IV. CONCLUSION The Court has reviewed the entire record and, for the reaso ns discussed above, concludes that AU Barr’s determination that Plaintiff was not disabled was supported by substantial evidence. Accordingly, AU Barr’s decision is affirmed. An appropriate Order accompanies this Opinion. DATED: U. UINARES DISTRICT JUDGE 13
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