JEROME B. SIMANDLE, Chief District Judge.
This matter comes before the Court pursuant to 42 U.S.C. § 405(g)
Plaintiff argues that the Administrative Law Judge's ("ALJ") finding regarding her residual functional capacity is not supported by substantial evidence, and she seeks remand to the ALJ for further consideration. Plaintiff also argues that the ALJ erred at step five of the sequential analysis because the ALJ's hypothetical question to the vocational expert did not include all of Plaintiff's impairments and the vocational expert's testimony conflicted with the Dictionary of Occupational Titles ("DOT").
As more fully discussed below, the Court will affirm the ALJ's decision because it is supported by substantial evidence.
Plaintiff filed an application for disability insurance benefits on October 27, 2009, alleging an onset of disability on December 1, 2007. (Pl. Br. at 1.) The claim was denied, as was a request for reconsideration. (
The following are facts relevant to the present motion. Plaintiff, who was 39 years-old when she applied for benefits, suffers from reflex sympathetic dystrophy ("RSD")
Dr. Shailen Jalali has treated Plaintiff for over ten years through regular office visits. (Pl. Br. at 2.) Upon referral by Plaintiff's primary care physician, Plaintiff began seeing Dr. Jalali, a pain management specialist, in June 2001. (R. at 282.) In 2001, Dr. Jalali administered a series of four lumbar sympathetic blocks and inserted a temporary lumbar epidural catheter for continuous infusions. (R. at 278-84.) In November 2002, Dr. Baralot implanted a spinal cord stimulator to reduce Plaintiff's pain. In addition to these procedures, Plaintiff has been prescribed a series of medications to manage her symptoms including Avinza, Neurontin, and Percocet. (R. at 285.)
According to Plaintiff's own reports, her pain has fluctuated over time. In May 2004, Plaintiff reported that the combination of the stimulator and pain medication reduced her pain 60 percent. (R. at 285.) She stated that her pain decreased from 7 out of 10 to 5 out of 10, 10 being the worst. (
Plaintiff experienced a similar increase in pain during her second pregnancy when Dr. Jalali again reduced her pain medications. In January 2008, when Plaintiff was 20 weeks pregnant, she reported a 40 percent overall reduction in pain with her Avinza reduced from 90mg to 60mg and rated her pain as 8 out of 10. (R. at 291.) After giving birth, Dr. Jalali increased her Avinza and Plaintiff reported 40 percent pain relief and stated that the increase helped. (R. at 295.)
On May 27, 2009, Dr. Jalali implanted a percutaneous dual spinal cord stimulator. (R. at 267.) In July 2009, Plaintiff reported that her pain was much improved since her last visit with a 50 percent overall reduction in pain and an average rating between 5 and 7 out of 10. (R. at 308.) In November 2009, Plaintiff reported using the spinal cord stimulator 18-19 hours per day. (R. at 310.) In July 2010, Plaintiff reported that she was using the stimulator four to six hours per day resulting in a 40 percent reduction in pain. (R. at 328.) At that time, Plaintiff reported "locking" in her right knee, but x-rays showed no evidence of fracture or dislocation or other abnormality. (R. at 338.)
In March 2011, Plaintiff reported a progressive increase in her pain, particularly where the spinal cord stimulator was implanted, and rated her pain at 8 or 9 out of 10. (R. at 335-36.) Dr. Jalali also noted significant spasms in the right paravertebral area. (
On April 29, 2011, Dr. Jalali completed a medical assessment form indicating that Plaintiff was unable to lift or carry any amount, but she could sit for a total of 15 minutes in an eight-hour workday and stand and/or walk for a total of 15 minutes in an eight-hour workday. (R. at 345-47.) Dr. Jalali noted that Plaintiff could never climb, balance, stoop, crouch, kneel, or crawl, she was unable to reach, handle, or perform fine manipulation for an extended period of time, and she was entirely unable to bend, push or pull. (
In treatment notes, Dr. Jalali consistently states that Plaintiff did not appear to be in acute distress and displayed no obvious cognitive deficits. Further, X-rays performed on June 18, 2008 of Plaintiff's pelvis, thoracic spine and lumbar spine were unremarkable. (R. at 314-16.)
On January 7, 2010, Nithyashuba Khona, M.D., conducted a consultative examination at the request of the Social Security Administration. (R. at 261-62.) Plaintiff reported right leg pain, back pain, burning, spasms and discoloration of the skin and stated that she could not sit, walk or do housework. (R. at 261.) Plaintiff also reported that the stimulator did not help relieve her pain. (
On February 16, 2010, Dr. Cirillo, a medical consultant for the New Jersey Division of Disability Determination, conducted a physical residual functional capacity assessment and observed that Plaintiff had difficulty walking heel to toe, experienced pain in her lower right leg upon touch, and had a limited range of motion in the lumbar spine. (R. at 271.) Otherwise Plaintiff's examination was within normal limits. (
On April 14, 2011, Lisa Bitton, a registered occupational therapist, conducted a 60-minute physical capacity test with Plaintiff. (R. at 343-44.) Bitton observed that Plaintiff was unable to lift or carry any amount of weight and she could sit for only five minutes in an eight-hour workday, stand for fifteen minutes in an eight-hour workday, and walk for five minutes in an eight-hour workday. (
In a written decision dated June 9, 2011, the ALJ determined that Plaintiff was not disabled from December 1, 2007 through the date of decision. (R. at 23.) He found Plaintiff had not engaged in substantial gainful activity since December 1, 2007, the alleged onset date, and concluded that she suffered from severe impairments, including "reflex sympathetic dystrophy (RSD) and chronic pain of the lumbar spine (20 CFR 404.1520(c))." (R. at 25.) The ALJ found that Plaintiff's combination of impairments did not meet or medically equal the severity of an impairment listed in the regulations, but he described her residual functional capacity ("RFC") as follows:
(R. at 29.) Importantly, the ALJ determined that "the claimant's statements concerning the intensity, persistence and limiting effects of [the alleged symptoms] are not credible to the extent they are inconsistent with the above residual functional capacity assessment." (R. at 29.) The ALJ then discussed conflicts between Plaintiff's testimony, the Function Report completed by Plaintiff, and medical evidence in the record including Dr. Jalali's treatment notes and Dr. Khona's consultative exam. (R. at 29-30.) The ALJ also noted that he gave little weight to Bitton's assessment because it was not from an "acceptable medical source." (R. at 30.)
After finding Plaintiff unable to perform any past relevant work and hearing testimony from Louis Szollosy, a vocational expert ("VE"), the ALJ found that jobs existed in significant numbers in the national economy that Plaintiff could perform. (R. at 30-31.) The VE stated that an individual of Plaintiff's age, education, and past relevant work, with the RFC determined by the ALJ and with the additional limitation that the individual have the option to sit or stand at will, could perform jobs as "table worker," "assembler," and "call out operative." (R. at 31.) Accordingly, the ALJ ruled that Plaintiff was not disabled from December 1, 2007 through the date of decision. (R. at 32.)
This Court reviews the Commissioner's decision pursuant to 42 U.S.C. § 405(g);
The ALJ must set out a specific factual basis for each finding.
Plaintiff's primary argument is that the ALJ's findings as to Plaintiff's RFC are not supported by substantial evidence. Plaintiff also contends that the hypothetical question posed to the VE failed to include all of Plaintiff's impairments and improperly included an option to sit/stand at will. Finally, Plaintiff argues that the VE's testimony conflicted with the DOT and the ALJ failed to obtain a reasonable explanation for the conflict. The Court will address each argument in turn.
Plaintiff's argument that the ALJ's findings as to Plaintiff's RFC are not supported by substantial evidence consists of three parts. First, Plaintiff argues that the ALJ failed to give proper weight to the findings and opinion of Lisa Bitton and failed to provide adequate reasons for rejecting Bitton's opinion as to Plaintiff's RFC. Second, Plaintiff argues that the ALJ failed to give proper weight to the findings and opinion of Dr. Jalali. Third, Plaintiff argues that the ALJ failed to properly consider Plaintiff's subjective complaints of pain and other symptoms under SSR 96-7p.
Plaintiff argues that the ALJ failed to give proper weight to Bitton's assessment of Plaintiff's RFC and failed to adequately explain his reason for rejecting her opinion.
The RFC assessment considers how limitations regarding claimant's physical abilities, mental abilities, and any other abilities affected by her impairments may affect the claimant's ability to do work on a regular and continuing basis. 20 C.F.R. § 404.1545(b)-(d). The ALJ must consider all relevant medical and other evidence when determining an individual's RFC and must consider limitations imposed by all of an individual's impairments, even those that are not "severe." § 404.1545(a)(2)-(3). Such evidence includes medical records, lay evidence, effects of symptoms, including pain that are reasonably attributed to a medically determinable impairment, descriptions and observations of limitations by the claimant and others. § 404.1545(a)(3).
Certain medical sources are considered "other sources," not "acceptable medical sources," including nurse practitioners, physician assistants, licensed clinical social workers, naturopaths, chiropractors, audiologists, and therapists. SSR 06-03p, 2006 WL 2329939, at *2 (S.S.A. Aug. 9, 2006). "[I]nformation from such `other sources' . . . may provide insight into the severity of the impairment(s) and how it affects the individual's ability to function," although it may not be used to establish the existence of a medically determinable impairment.
When considering evidence from medical sources who are not "acceptable medical sources," the ALJ is to apply the factors for weighing opinion evidence under 20 C.F.R. § 404.1527(d).
Here, the ALJ stated, "I give little weight to Ms. Bitton's assessment that the claimant does not have the residual functional capacity for even sedentary work (see Exhibit 14F), as it is not from an `an acceptable medical source.'" (R. at 30.) The ALJ specifically relied on SSR 06-3p and 20 C.F.R. 416.913(a).
At the outset, the Court notes that it may not weigh the evidence or substitute its own conclusions for those of the ALJ.
The ALJ thoroughly discussed the evidence in the record, including Bitton's report, and made clear that her assessment conflicted with the reports of state consultative physicians, Dr. Cirillo and Dr. Khona, as well as the treatment notes of Dr. Jalali, which he assigned greater weight. As such, the ALJ's discussion of the evidence sufficiently "allows a claimant or subsequent reviewer to follow the adjudicator's reasoning."
Next, Plaintiff argues that the ALJ failed to give proper weight to the findings and opinion of Dr. Jalali, Plaintiff's treating physician for pain management. Specifically, Plaintiff objects to the ALJ's statement that he gave "little weight" to Dr. Jalali's physical capacity assessment.
Plaintiff construes the ALJ's decision as rejecting Dr. Jalali's opinion in its entirety. This is not the case. Instead, the ALJ's statement regarding the weight given to Dr. Jalali's opinion pertains only to his April 29, 2011 assessment finding that Plaintiff was unable to lift or carry any amount, sit for a total of 15 minutes in an eight-hour workday, stand/walk for a total of 15 minutes in an eight-hour workday, and that she could never climb, balance, stoop, crouch, kneel or crawl. After noting that Dr. Jalali based his assessment on the occupational therapy exam conducted by Bitton on April 14, 2011, the ALJ stated, "I give little weight to Dr. Jalali's assessment as he just `parroted' the opinion of Ms. Bitton and made his assessment without sufficient additional objective findings, i.e., the x-ray reports." (R. at 28.)
The regulations provide that the ALJ may reject the opinion of a treating physician when it is not supported by medically acceptable clinical or diagnostic techniques or inconsistent with other substantial evidence regardless of the treatment relationship.
Additionally, Plaintiff argues that the ALJ erred in stating that Dr. Jalali's assessment was not supported by sufficient objective findings. Plaintiff relies on SSR 03-2P and
Indeed, the ALJ did not question the diagnosis of RSD and the ALJ accepted Plaintiff's RSD and chronic pain of the lumbar spine as severe impairments at the step two analysis. (R. at 25.) Likewise, the ALJ found at step four that due to these impairments, Plaintiff could not perform her past relevant work as a cook. (R. at 30.) The ALJ found, however, that Plaintiff's RSD and chronic back pain were not of a severity rising to the level of a disabling condition in light of Plaintiff's residual functional capacity. To the extent Plaintiff argues that RSD is per se a disabling condition, that argument was sufficiently addressed by the ALJ.
Although diagnostic testing such as MRIs and x-rays are not definitive for diagnosing RSD and no specific test is listed in the diagnostic criteria for RSD, it was not error for the ALJ to note the absence of objective findings. SSR 03-2P refers to SSR 96-2P without qualification.
Plaintiff argues that the ALJ did not properly consider Plaintiff's subjective complaints of pain and other symptoms under SSR 96-7P. Plaintiff contends that the ALJ failed to properly analyze the factors set forth in SSR 96-7P, including Plaintiff's longitudinal record of treatment and work history, and that the ALJ mischaracterized Plaintiff's treatment records and statements made in her Function Report.
SSR 96-7p requires the ALJ to make credibility determinations grounded in the evidence and in light of the entire case record. SSR 96-7p, 1996 WL 374186, at *1 (S.S.A. July 2, 1996). The ALJ cannot simply state that the "allegations have been considered" or that they categorically are not credible.
Here, the ALJ's written decision is sufficiently specific to make clear what weight he gave Plaintiff's statements and the corresponding reasons. The ALJ discussed in three detailed paragraphs Plaintiff's testimony in light of other evidence in the record, including Dr. Jalali's treatment notes and Dr. Khona's assessment.
Moreover, the Court finds that the ALJ considered Plaintiff's longitudinal record of treatment and history of pain because he acknowledged Plaintiff's treatment for severe RSD since 2001 and relief from pain in treatment notes from Dr. Jalali as far back as 2004. Further, the ALJ did not mischaracterize Plaintiff's daily living activities, as recorded in the Function Report. While Plaintiff reported needing assistance with childcare, she stated in the Function Report that she fed, changed, and played with her children, as noted by the ALJ. The ALJ acknowledged Plaintiff's limitations by stating that Plaintiff could prepare "simple easy meals" and "basic cleaning." (R. at 29.)
Unlike
Plaintiff's argument that the ALJ failed to consider her work history is also without merit. First, the ALJ did consider Plaintiff's work history by acknowledging her past relevant work as a cook.
Finally, the Court is unpersuaded by Plaintiff's recounting of evidence not discussed by the ALJ. It is settled that the ALJ need not "make reference to every relevant treatment note in a case."
Plaintiff argues that the ALJ also erred at step five of sequential analysis. However, Plaintiff only identifies these arguments in the "issues presented" and "summary of argument" sections of her brief and fails to provide additional analysis.
Plaintiff contends that the ALJ's hypothetical question failed to include all of Plaintiff's impairments supported by the record. The "ALJ's hypothetical must include all of a claimant's impairments."
Plaintiff also argues that the ALJ improperly relied on the VE's professional opinion in discussing the impact of the sit/stand option on the availability of jobs in the national economy. In reaching his conclusions, the VE reduced the number of available jobs by one half to account for the sit/stand option. (R. at 60-63.) To the extent there was a conflict between the VE's testimony and the DOT, it was resolved to the ALJ's satisfaction because the VE's testimony for each job acknowledged, based on his experience, the need to erode the number of positions available based on the sit/stand option.
Finally, Plaintiff argues that the VE's definition of "reaching" conflicts with the DOT. In response to the ALJ's question regarding additional postural limitations, the VE explained that Plaintiff's limitations in reaching would not affect the jobs identified. The VE explained that "[r]eaching is actually extending versus these positions are basically where you are actually doing reaching from your chest level to desk level." (R. at 65.) Because Plaintiff has not identified any support for her argument that the VE's definition of reaching conflicts with the DOT, the Court finds no error. Even if there were error in failing to address a conflict, the failure of the ALJ to explain a conflict does not require reversal because the ALJ's step five analysis is otherwise supported by substantial evidence.
For the foregoing reasons, the Court finds that substantial evidence in the record supports the ALJ's determination regarding Plaintiff's RFC and that there are jobs that exist in significant numbers in the national economy that Plaintiff could perform. The Court also finds that the ALJ provided an adequate explanation for his decision and his treatment of the evidence in the record. Therefore, the Court will affirm the Commissioner's final decision that Plaintiff was not disabled as of December 1, 2007. An accompanying Order will be entered.