JEROME B. SIMANDLE, Chief District Judge.
This matter comes before the Court pursuant to 42 U.S.C. § 405(g)for review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff Ruth K. Smith's application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401,
In the pending appeal, Plaintiff argues that the ALJ's decision must be reversed and remanded on four grounds. Plaintiff contends that the ALJ erred in (1) finding that compensation Plaintiff received in the third quarter of 2011 was substantial gainful activity; (2) failing to acknowledge or assess the weight of a nurse practitioner's opinion in his determination; (3) omitting Plaintiff's mild mental impairments in determining Plaintiff's residual functioning capacity ("RFC"); and (4) omitting Plaintiff's manipulative non-exertional limitations from his formulation of her RFC. For the reasons discussed below, the Court will affirm the ALJ's decision denying Plaintiff disability benefits.
Plaintiff Ruth Smith filed an application for disability insurance benefits on February 20, 2012, alleging an onset of disability on August 1, 2011. (R. at 19.)
The following are facts relevant to present motion. Plaintiff was 62 years old as of the date of the ALJ Decision and held a high school diploma. Plaintiff had work experience as a secretary and accounts payable clerk.
In December of 2007, nearly four years prior to the alleged disability onset date, Plaintiff sought medical treatment for injury, pain, and swelling in her left hand. Dr. Carty at Bordentown Family Medical Center diagnosed her with advanced osteoarthritis in her first carpal-metacarpal joint. (R. at 390.) Dr. Carty treated Plaintiff again in 2009 and indicated that Plaintiff had arthritis with brief attacks of joint swelling. (R. at 377.)
In May 2012, Dr. Dawoud performed an independent examination on Plaintiff authorized by the SSA. (R. at 452-454.) Plaintiff complained of hand pains, especially in her right hand which made it difficult to grip anything including a pen to write, or a shovel, or perform other chores. (R. at 452.) Dr. Dawoud found Plaintiff's strength was 5/5 in all muscle groups. (R. at 453.) He also noted she had a full range of motion in all joints with no redness, swelling, tenderness, or instability. (
In April of 2009, Plaintiff underwent surgery after experiencing severe bilateral lower extremity claudication symptoms. (R. at 413.) Specifically, Dr. Lee, a vascular surgeon, cut down Plaintiff's right common femoral artery and placed a stent of her right external iliac artery and in her abdominal aorta. (R. at 415.) In a follow-up appointment with Dr. Lee in May 2009, Plaintiff stated she was up and ambulating and no longer had symptoms of claudication. (R. at 414.) Plaintiff did not report to additional scheduled follow-up appointments with Dr. Lee or contact him for two years. (
In May 2011, Plaintiff again sought treatment for her lower extremities from Dr. Lee. (R. at 413.) Plaintiff reported that her right leg "locked up" and that she was only able to walk approximately one-half block without rest. (
During a follow-up visit in July of 2011, Dr. Lee indicated that Plaintiff's groin incision had healed well and that she should progressively increase her activities. (R. at 411.) Dr. Lee next examined Plaintiff in January of 2012 for reassessment of her lower extremities. (R. at 409.) Plaintiff reported that she had progressively increased her activity, abstained from smoking, and denied any disabling claudication symptoms. (
During her examination with Dr. Dawoud, authorized by the SSA in May of 2012, Plaintiff complained of chronic leg pain after twenty minutes of standing or walking a hundred yards (R. at 452-53.) Plaintiff reported pain mainly in the back of her thighs and that her legs sometimes lock up on her. (
In March of 2008, Plaintiff first sought treatment at Robert Wood Johnson Hamilton Emergency for sudden vertigo accompanied by nausea and vomiting. (R. at 240.) Plaintiff was given CT scan of the head which showed nothing out of the ordinary. (
In April of 2010, Plaintiff underwent additional diagnostic testing after she complained of persisting dizziness and unsteadiness. (R. at 257.) While Dr. Kaiser found Plaintiff's strength and gait were normal, he recommended she get an MRI of her brain. (R. at 258.) The MRI interpreter noted that Plaintiff had more neurological abnormalities than expected of a patient her age but did not opine on the cause of her symptoms. (R. at 277.)
In her independent examination with Dr. Dawoud in May 2012, Plaintiff alleged that she "intermittently" suffered from vertigo and had to move slowly. (R. at 452.) She also stated she had trouble with her balance and experienced dizziness. (
In May 2012, Dr. Rampello also examined Plaintiff on behalf of the SSA. (R. at 66-68.) After reviewing both Plaintiff's medical history and her complaints of dizziness, difficulty balancing, and history of falls, Dr. Rampello opined that Plaintiff could occasionally lift or carry twenty pounds and frequently lift or carry ten pounds. (R. at 66-67.) Dr. Rampello also found that she could likely stand or walk for four hours and sit for six hours with normal breaks in an eight hour workday. (
In October of 2012, Dr. Golish conducted an additional assessment for the SSA as part of Plaintiff's reconsideration of the denial of her disability benefits. (R. at 78-80.) Dr. Golish affirmed Dr. Rampello's assessment of Plaintiff's residual functional capacity in its entirety and similarly concluded Plaintiff could perform her past relevant sedentary work as it was actually performed. (R. at 81.)
In April of 2013, Plaintiff checked into the emergency room at Robert Wood Johnson Hamilton alleging multiple falls caused by dizziness within the last three to six days. (R. at 456-481.) A CT scan found no evidence of an acute intracranial hemorrhage, but moderate diffuse cortical atrophy with chronic small vessel changes of the deep white matter. (R. at 457.) The neurology exam also found that Plaintiff was oriented to person, place, and time, that she had normal speech, gait, and memory, that she had no focal sensory or cerebellar deficits, and that her cranial nerves were intact. (R. at 472.) Due to the negative diagnostic exam results, Plaintiff was diagnosed with vertigo, discharged, and given a prescription for meclizine to help alleviate symptoms. (R. at 475-76.)
In May of 2013, Plaintiff sought additional treatment for vertigo at Bordentown Family Medical Center with Nurse Practitioner Nawrock. (R. at 496-501.) Treatment notes from that visit indicate that Plaintiff reported sudden episodes of dizziness that increased in frequency and moderately limited her activities. (R. at 496.) Plaintiff alleged to have lost 40% of hearing in her left ear. (
In December of 2013, Plaintiff again sought treatment at Bordentown Family Medical Center. (R. at 501-507.) At that visit, Plaintiff denied dizziness, headache, or hearing trouble. (R. at 502.) Dr. Lugo's treatment notes indicate that Plaintiff reported having an unsteady gait and a history of falls within the past twelve months. (R. at 507.)
Plaintiff first sought treatment for depression and anxiety in September of 2010. (R. at 288.) Plaintiff claimed she was anxious, sad, had low energy, and suffered from bad concentration for the previous six months. (
Plaintiff continued to seek treatment for depression through April of 2013. (R. at 280-288, 500.) Plaintiff's treatment notes from October 2010 indicate that she was content with her diagnosis. (R. at 286.) After beginning medication, Plaintiff reported that her concentration improved and that she no longer had trouble getting up and going to work. (
In May of 2012, Dr. Brown performed a consultative psychological examination on Plaintiff for the SSA. (R. at 447-450.) Dr. Brown's report stated that Plaintiff's insight and judgement were intact and she was oriented to person, place, and time. (R. at 449.) Further, Dr. Brown reported that her speech was fluent and clear. (
Psychological consultants engaged by the SSA, Dr. Bortner and Dr. Wieliczko, also examined Plaintiff. (R. 64-65.) Dr. Bortner found that Plaintiff had no work-related limitation despite mild restrictions on her daily life, no limitation on her social functioning, and no limitation in her concentration, persistence, and pace. (R. at 65.) Dr. Bortner opined that Plaintiff could understand and execute both simple and complex instructions, make work related decisions, interact with others, and adapt to workplace change. (
In a written decision dated April 14, 2014, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act at any time through the date of the decision because she was capable of performing past relevant work as an accounts payable clerk and a secretary. (R. at 19.)
At the first stage of the five-step sequential evaluation process, the ALJ determined that Plaintiff engaged in substantial gainful activity in the third quarter of 2011, after the alleged onset date of disability, July 1, 2011. (R. at 21.) However, the ALJ found that Plaintiff did not engage in substantial gainful activity in the fourth quarter of 2011, or at any later time through the date of the Decision. (
At step two, the ALJ determined that Plaintiff suffered from the following "severe impairments: coronary artery disease, peripheral artery disease, vertigo, and arthritis in her bilateral hands." (R. at 22.) The ALJ found that Plaintiff's mental impairments were non-severe because they did not cause more than a minimal limitation in Plaintiff's ability to perform basic mental work activities. (R. at 23-24.) The ALJ noted that, despite claimant's depressive symptoms, she lived alone and had no problem taking care of her personal needs. (R. at 22.) Plaintiff took care of her cat, cooked, cleaned, did laundry, washed dishes, and took out garbage. (
ALJ Shellhamer further determined that Plaintiff's concentration, persistence, and pace were only mildly limited based on Plaintiff's own statements and the medical opinion of Dr. Brown. (R. at 23.) Plaintiff reported no problems paying attention and that she was able to follow written and spoken directions. (
Despite recognizing Plaintiff's physical impairments as severe, at step three, the ALJ concluded that Plaintiff's impairments did not meet, or equal in severity, any impairment found in the Listing of Impairments set forth in 20 C.F.R. Part 404. (R. at 24.)
At step four, the ALJ determined that Plaintiff possessed the residual functioning capacity to perform a full range of light work, except that:
(R. at 25.) Although the ALJ found that Plaintiff's physical impairments caused her alleged symptoms, he found her statements concerning the intensity, persistence, and limiting effects of those symptoms not credible. (R. at 29.) Ultimately, the ALJ determined that Plaintiff's RFC allowed her to complete sedentary exertional work; therefore, the ALJ determined Plaintiff could perform her past relevant work as an accounts payable clerk and secretary, and found Plaintiff not disabled. (R. at 29-30.)
In support of this conclusion, the ALJ evaluated Plaintiff's testimony and the testimony of her representatives regarding her ability to engage in daily activities; the observations of treating physicians; her use of medications; and the intensity, persistence, and limiting effects of symptoms associated with her medical conditions. (R. at 25-30.) Specifically, with respect to Plaintiff's arthritis, the ALJ concluded from x-rays from 2007 and 2009 that the severity of her condition had stayed the same from the date of her diagnosis to the alleged onset date of disability because her medical records contained "no updated x-rays or treatment records from the period at issue regarding the claimant's hand arthritis." (R. at 27.) Similarly, the ALJ noted that while Plaintiff reported vertigo as her main problem, she continued to work after her diagnosis. (R. at 28.)
In assessing Plaintiff's exertional limitations, the ALJ gave great weight to the SSA medical consultants, Dr. Rampello and Dr. Golish, who both opined that Plaintiff could stand or walk for four hours and sit for six hours during an eight hour workday. (
The ALJ noted several inconsistencies that adversely affected Plaintiff's credibility. Namely, Plaintiff's testimony as to her daily activities, like performing household chores and gardening, appeared inconsistent with her allegations of total disabling symptoms and limitations. (R. at 26.) Further, despite Plaintiff's allegations of totally disabling symptoms, no restrictions were recommended by a treating doctor. (R. at 29.)
This Court reviews the Commissioner's decision pursuant to 42 U.S.C. § 405(g). The Court's review is deferential to the Commissioner's decision, and the Court must uphold the Commissioner's factual findings where they are supported by "substantial evidence." 42 U.S.C. § 405(g);
In order to establish a disability for the purpose of disability insurance benefits, a claimant must demonstrate a "medically determinable basis for an impairment that prevents him from engaging in any `substantial gainful activity' for a statutory twelve-month period."
The Commissioner reviews claims of disability in accordance with the sequential five-step process set forth in 20 C.F.R. § 404.1520. In step one, the Commissioner determines whether the claimant currently engages in "substantial gainful activity." 20 C.F.R. § 1520(b). Present engagement in substantial activity precludes an award of disability benefits.
Plaintiff argues first that the ALJ erred in finding that Plaintiff was ineligible for disability benefits during the third quarter of 2011 in step one of the sequential analysis because she had engaged in substantial gainful activity. (Pl. Br. at 20.) Although the record indicates that Plaintiff was paid $3,744 during the third quarter of 2011, Plaintiff claims that this was compensation for work done prior to her termination on July 1, 2011, and that this income should not preclude a finding that she was disabled during that time period.
Substantial gainful activity is defined as "significant mental or physical duties" done for "pay or profit." 20 C.F.R. § 404.1572. A plaintiff bears the burden of demonstrating the absence of any substantially gainful activity in her application for disability benefits.
There is substantial evidence in the record to support the ALJ's finding that Plaintiff engaged in substantial gainful activity in the third quarter of 2011. First, Plaintiff provided conflicting information regarding when she was laid off; while she claimed at the hearing that she stopped working July 1, 2011, she indicated twice on her disability benefits application that she was laid off on July 29, 2011. (R. at 151, 166). Further, earnings statements in the record before the ALJ demonstrate that Plaintiff was paid $3,750 from Thompson Management, LLC for the third quarter of 2011. (R. at 136.) These earnings exceed the $3,000 threshold established in the regulations to show that Plaintiff engaged in substantial gainful activity during the quarter. Additionally, the ALJ noted that Plaintiff collected unemployment insurance benefits after she was laid off on July 1, 2011. (R. at 26, 136, 151.) The ALJ pointed out the inconsistency between Plaintiff's representation in this matter that she was disabled as of July 1, and Plaintiff's representation to the Department of Labor that she was entitled to receive unemployment compensation benefits because she was "ready, willing, able to work, and out looking for work." (R. at 26.)
Although Plaintiff asserts these earnings stem from work done prior to July 2011, she has failed to provide any evidence to support this claim. The Court finds that the ALJ did not err by concluding that Plaintiff was ineligible for disability benefits from July 2011 through September 2011.
Next, Plaintiff claims the ALJ erred by failing to evaluate or discuss Nurse Practitioner Nawrock's recommendation that Plaintiff "use supportive measures to avoid falls" in his RFC assessment. Plaintiff admits that Ms. Nawrock was not an "acceptable medical source" as defined by 20 C.F.R § 404.1513(a), but nonetheless, argues that the ALJ erred because he was required to evaluate Ms. Nawrock's opinion as a nurse practitioner as part of his RFC assessment.
Evidence from an "acceptable medical source" must be used to establish an impairment, but once established, evidence from "other sources" may be used to show the severity of the impairment and how it affects a Plaintiff's ability to function. 20 C.F.R. §§ 416.913(a) and (d); SSR 06-03p. "Other sources" may include medical sources such as nurse practitioners, physician's assistants, and therapists. 20 C.F.R. § 416.913(d)(1). The weight due to an opinion from an "other source" depends on factors including "how consistent the opinion is with other evidence," "the degree to which the source presents relevant evidence to support the opinion," and "how well the source explains the opinion." SSR 06-03p;
In this case, the ALJ acknowledged that Plaintiff's severe impairments included vertigo, based on evidence from "acceptable medical sources." (R. at 22.) Ms. Nawrock's opinion that Plaintiff should use supportive measures to avoid falls, however, was inconsistent with the findings of other physicians who conducted comprehensive examinations of Plaintiff; no other acceptable medical source who treated Plaintiff for vertigo included a similar finding in his or her treatment notes. (R. at 67, 81, 453, 476.) The ALJ gave great weight to both Dr. Rampello's and Dr. Golish's findings, who opined that Plaintiff could stand or walk for four hours a day in their RFC analyses. (R. at 28.) Dr. Betancourt's evaluation of Plaintiff in April 2013 also contradicted Plaintiff's claim that her vertigo worsened over time. (R. at 472.) Despite Plaintiff's claims of repeated falls, Dr. Betancourt found that her speech, gait, and memory were normal. (
Additionally, Ms. Nawrock offered no support or explanation for her opinion in her treatment notes. (R. at 498.) Ms. Nawrock provided no work-related assessment or supporting documentation regarding the severity of Plaintiff's vertigo in her Patient Medication Summary. (
The ALJ's failure to discuss Ms. Nawrock's opinion that Plaintiff should use supportive measures was therefore only a harmless error because the ALJ would have been entitled to accord it little weight under SSR 06-09p. "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination."
Next, Plaintiff argues that the ALJ erred by not accounting for her mental limitations at step four of the sequential analysis. (Pl. Br. at 15-18.) Specifically, Plaintiff contends the ALJ did not include her non-severe mild mental limitations in his formulation of her RFC.
An individual's residual functional capacity, or RFC, is an assessment of the most that person can still do in a work setting, despite the limitations caused by his impairments. 20 C.F.R. § 404.1545(a). In reviewing the record to make an RFC assessment, the ALJ must consider all relevant medical opinion evidence and all other relevant evidence in the record. 20 C.F.R. § 404.1527(b);
The Court disagrees with Plaintiff's assertion that the ALJ failed to account for Plaintiff's non-severe mental limitations in formulating her RFC. The ALJ clearly considered Plaintiff's depression at step four, but concluded that Plaintiff's symptoms did not significantly limit her basic work activities. (R. at 23.) He noted that, at the time of her hearing, Plaintiff was not seeking treatment or counseling and did not take medication for her depression. (R. at 24.) The ALJ also noted that when Plaintiff did seek treatment, her depression was chronic, stable, and alleviated by medication, and that when she took her medication as prescribed, her symptoms did not significantly limit her activities. (
In addition, the ALJ discussed the basis for his formulation of Plaintiff's RFC, including the weight assigned to each of the relevant medical opinions on which he relied. The ALJ assigned great weight to the psychological consultants, Dr. Bortner and Dr. Wieliczko, who both opined that Plaintiff had no work-related mental impairment despite mild limitations in daily living, social functioning, and concentration, persistence, and pace. (
It is not this Court's role to re-weigh the evidence in the record.
Finally, Plaintiff argues that the ALJ erred by failing to properly account for her bilateral arthritis in his formulation of her RFC. (Pl. Br. at 18-20.) Additionally, Plaintiff contends the ALJ's wrongly assumed that the severity of her arthritis remained unchanged since the time of her original diagnosis.
The Court finds that the ALJ appropriately considered Plaintiff's arthritis when formulating her RFC. Plaintiff's allegation that her arthritis was omitted in the ALJ's RFC assessment is inaccurate; the ALJ discussed both Plaintiff's x-rays demonstrating advanced osteoarthritis in the first carpal-metacarpal joint in 2007 and treatment notes from 2009 which indicate that her arthritis caused attacks of joint swelling. (R. at 27.) He also pointed out, however, that Plaintiff's arthritis did not keep her from working at the time of diagnosis and for several years thereafter, strongly suggesting it would not currently prevent her from future work. (
The ALJ also discussed his reasons for not crediting Plaintiff's complaints that her arthritis would impact her functioning in the workplace. Plaintiff testified at the hearing before the ALJ that she took care of her cat, cooked, cleaned, did laundry, washed dishes, and took out garbage. (R. at 26.) In addition, she drove, shopped, handled money, payed bills, counted change, and handled a savings account. (
Plaintiff further claims that the ALJ failed to consider that arthritis is a degenerative disease which worsens with time. Plaintiff failed to provide, however, any objective medical evidence to support her claim. The Court finds Plaintiff's argument for remand on this basis unpersuasive because she has the initial burden of proof under step four of the sequential analysis.
Given that the ALJ discussed the objective medical evidence in Plaintiff's record, and that Plaintiff failed to produce any evidence to demonstrate her arthritis worsened, the Court finds the ALJ's RFC formulation is supported by substantial evidence.
For the foregoing reasons, the Court finds that the ALJ committed no reversible errors in determining that Plaintiff is not disabled. As a result, the ALJ's decision will be affirmed. An accompanying Order will be entered.