HOLLY B. FITZSIMMONS, Magistrate Judge.
Plaintiff Lesley Margaret Del Grippo brings this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. §405(g), seeking review of a final decision of the Acting Commissioner of Social Security who denied her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §401
For the reasons that follow, the Commissioner's decision is affirmed.
On September 11, 2012, Ms. Del Grippo filed a Title XVI application for SSI with an alleged onset date of January 6, 2012, alleging disability due to "seizure disorder, anxiety disorder and possible hepatitis C."
On March 12, 2015, Administrative Law Judge ("ALJ") Sheila Walters held a hearing, at which plaintiff appeared with an attorney and testified. [Tr. 39-78]. Vocational Expert ("VE") Amy Peiser Leopold also testified at the hearing. [Tr. 65-77, 215]. On May 18, 2015, ALJ Walters found that plaintiff was not disabled, and denied her claim. [Tr. 12-29]. Plaintiff filed a timely request for review of the hearing decision on July 23, 2015. [Tr. 7-11]. On September 19, 2016, the Appeals Council denied review, thereby rendering ALJ West's decision the final decision of the Commissioner. [Tr. 1-6]. The case is now ripe for review under 42 U.S.C. §405(g).
Plaintiff, represented by counsel, timely filed this action for review and moves to reverse and/or remand the Commissioner's decision.
The standard of review for this Court is whether the ALJ's decision is based on substantial evidence in the record as a whole. 42 U.S.C. §405(g). Substantial evidence is evidence that a reasonable mind would accept as adequate to support a conclusion; it is more than a "mere scintilla."
A reviewing court "must consider the (1) objective medical facts; (2) diagnoses and medical opinions of examining physicians; (3) subjective evidence of pain and disability as described by plaintiff and corroborated by others who have observed him; and (4) plaintiff's age, educational background and work history."
It is important to note that in reviewing the ALJ's decision, this Court's role is not to start from scratch. The scope of review is limited to determining whether the Commissioner applied the correct legal standards and whether the record, as a whole, contains substantial evidence to support the Commissioner's findings of fact.
Under the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits.
To be considered disabled under the Act and therefore entitled to benefits, Ms. Del Grippo must demonstrate that she is unable to work after a date specified "by reason of any medically determinable physical 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 12 months." 42 U.S.C. §423(d)(1)(A). Such impairment or impairments must be "of such severity that [s]he is not only unable to do h[er] previous work but cannot, considering h[er] 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);
There is a familiar five-step analysis used to determine if a person is disabled.
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as "that which an individual is still able to do despite the limitations caused by his or her impairment(s)."
The disability determination involves shifting burdens of proof. "The claimant bears the burden of proof for steps one, two, and four of this test."
Following the above-described five step evaluation process, ALJ Walters concluded that plaintiff was not disabled under the Social Security Act. [Tr. 12-29]. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity during the period from the application date of September 11, 2012 through the date of decision. [Tr. 17].
At step two, the ALJ found that plaintiff had a seizure disorder, degenerative disk disease of the lumbar spine, degenerative joint disease of the left shoulder, dysthymic disorder, cyclothymic disorder, depressive disorder, anxiety disorder, and history of panic attacks that were severe impairments under the Act and regulations.
At step three, the ALJ found that plaintiff's impairments, either alone or in combination, did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Pt. 404, Subpart P, Appendix 1. [Tr. 18]. The ALJ specifically considered Listings 1.04 (disorders of the spine), 12.04 (affective disorders) and 12.06 (anxiety disorders).
Before moving on to step four, the ALJ found plaintiff had the RFC
[Tr. 19].
At step four, the ALJ found plaintiff was unable to perform any past relevant work. [Tr. 23]. At step five, after considering plaintiff's age, education, work experience and RFC, the ALJ found that jobs existed in significant numbers in the national economy that plaintiff could perform. [Tr. 23-25].
On appeal, the plaintiff contends that the ALJ erred in in two respects, arguing that:
The Court will address each of plaintiff's arguments in turn.
Plaintiff contends that the ALJ erred in her application of the treating physician rule, resulting in a residual functional capacity that was not based on substantial evidence. She argues that the ALJ erroneously rejected a October 12, 2012, opinion from her treating physician, Dr. Mazhar El Amir, stating that she cannot work.
Pursuant to 20 C.F.R. §§404.1527(c)(2) and 416.927(c)(2), a treating source's opinion will usually be given more weight than a non-treating source. If it is determined that a treating source's opinion on the nature and severity of a plaintiff's impairment is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record," the opinion is given controlling weight. 20 C.F.R. §§404.1527(c)(2), 416.927(c)(2). If the opinion, however, is not "well-supported" by "medically acceptable" clinical and laboratory diagnostic techniques, then the opinion cannot be entitled to controlling weight.
Defendant correctly points out that "Dr. El Amir did not offer a medical opinion under the regulations." [Doc. #14 at 10]. Rather, Dr. El Amir completed a State of New Jersey Division of Family Development Welfare Examination Report, checking a box that plaintiff could not perform full-time work. [Tr. 295-97]. The first page of this document is a form cover letter from the County of Hudson, Department of Family Services, Division of Welfare, explaining that the "above named individual" is requesting a "medical deferral from the work participation requirement of the Work First New Jersey (WFNJ) program due to a disability/illness" with instructions on the completion of the form. [Tr. 295]. Page two, entitled "Examination Report," requests the name of the physician and diagnoses. Under primary diagnosis, Dr. El Amir wrote in "seizure disorder" and, under psychiatric/psychological disability, the doctor checked off "anxiety disorder." [Tr. 296]. Page 3, section D, entitled "Employment Evaluation", consists of three questions followed by check-off boxes of "yes" and "no." The questions are: 1. "Can the person work? Is the person ambulatory? (If there are work limitations, check below, and specify degree of limitation)"; 2. "Is this individual recommended to participate in a substance abuse program?"; and "Do you think this person is a likely candidate for Supplemental Security Income?" Dr. El Amir checked "no" that plaintiff could not work, checked "yes" that she was ambulatory, and he indicated she had "work limitations" by checking the boxes for standing, walking and climbing but did not indicate the degree of limitation. [Tr. 297]. He did not recommend participation in a substance abuse program. Finally, he checked "yes" that plaintiff was a "likely candidate for Supplemental Security Income." [Tr. 297].
The doctor's conclusion that plaintiff is unable to work is not a medical opinion under the regulations but, instead is an issue reserved to the Commissioner, and therefore is not entitled to any special significance.
Importantly, Dr. El Amir completed this form for the State of New Jersey after seeing plaintiff on only
Defendant correctly points out that in utilizing checkoff boxes, Dr. El Amir "did not specify the degree of limitation making it of no practical value in assessing Plaintiff's functional capacity because it said nothing about the extent or degree of Plaintiff's capabilities or limitation." [Doc. #14 at 10-11 (citing Tr. 297)]. "[C]hecklist forms such as [Dr. El Amir's examination] report, which require only that the completing physician `check a box or fill in a blank,' rather than provide a substantive basis for the conclusions stated, are considered `weak evidence at best' in the context of a disability analysis."
Defendant argues, and the Court agrees, that the ALJ appropriately considered the nature of the Medical Source Statement form requiring the doctor to check-off or circle a claimant's limitations.
Substantial evidence supports the ALJ's finding that plaintiff's subjective complaints are disproportionate to the objective medical evidence. [Tr. 20]. In evaluating the medical evidence, and specifically Dr. El Amir's treatment records, the ALJ found that,
[Tr. 23].
Indeed, the ALJ demonstrated that he carefully considered Dr. El Amir's treatment records. [Tr. 20-23 (noting treatment records beginning in September 2012 through 2015)(citing Exhibits 2F, 4F, 8F, 9F and 10F)]. Plaintiff continued to treat with Dr. El Amir for refills of medications, but Dr. El Amir found no neurological defects; plaintiff's musculoskeletal examination was without abnormalities and unremarkable; plaintiff was oriented to person, place and time; mood and affect were normal and appropriate, and overall treatment was routine. [Tr. 298-300 (11/6/12); 301-03 (10/10/12), 304-06 (9/19/12); 320-22 (5/15/13); 323-25 (5/1/13); 326-28 (4/20/13); 329-31 (4/5/13); 332-34 (3/22/13); 335-37 (2/19/13); 338-40 (1/18/13); 378-81 (3/4/15); 383-85 (2/3/15); 386-89 (1/2/15); 390-93 (12/1/14); 394-96 (11/1/14); 397-400 (10/1/14); 401-04 (9/9/14); 405-07 (7/29/14); 408-12 (7/3/14); 413-16 (6/28/14); 417-20 (5/29/14); 421-24 (4/28/14); 425-28 (3/3/14); 430-34 (2/25/14); 435-39 (2/12/14); 440-43 (1/28/14); 444-45 (12/12/13); 446-47 (11/21/13); 449-50 (1/18/14); 451-52 (1/7/14); 453-54 (12/26/13); 456-58 (11/9/13); 459-61 (10/4/13); 463-65 (9/10/13); 466-68 (8/26/13); 469-71 (8/6/13); 472-75 (7/16/13); 476-78 (7/2/13); 479-81 (6/24/13); 482-84 (6/18/13); 485-87 (6/10/13); 488-90 (6/4/13); 491-93 (491-93); 494-96 (5/1/13); 497-99 (4/20/13); 500-02 (4/5/13). Diagnostic testing was reviewed and noted by the ALJ. [Tr. 20, 319 (October 2012 brain MRI was negative); Tr. 21, 317 (March 2013 MRI of the lumbar spine showing shallow scoliosis of lumbar spine; L5-S1 small central disc herniation; L4-L5 mild disc bulging); Tr. 21, 318 (MRI of her left shoulder showing no evidence of rotator cuff tear, AC joint showed mild hypertrophy and arthritic change)]. There were no referrals to specialists.
To the extent that plaintiff contends that ALJ erred for failing to assign weight to the opinion contained in Dr. El Amir's October 2012 Examination Report, the Court finds no error. As set forth above, the State of New Jersey form is not a treating physician opinion, but rather a state agency check-off form that does not assign specific limitations or abilities. Moreover, it was completed by Dr. El Amir after only two appointments. The form was clearly considered by the ALJ. [Tr. 20]. Further, the ALJ conducted a comprehensive review of the medical evidence, Dr. El Amir's treatment records, diagnostic imaging, psychiatric consultative evaluations and the findings by the DDS physicians. [Tr. 20-23];
Accordingly, the Court finds that the ALJ's findings were not error and were supported by substantial evidence.
Plaintiff next argues that "the exertional and nonexertional RFCs are unexplained in the decision and are based solely on the ALJ's lay speculations. [Doc. #13 at 20-30]. The Court construes this as an argument that the ALJ's RFC is not supported by substantial evidence.
"Residual functional capacity is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s)."
[Tr. 19].
Despite plaintiff's arguments to the contrary, the ALJ's RFC determination is supported by substantial evidence of record.
The ALJ conducted a detailed review of the relevant evidence of record, including plaintiff's testimony, diagnostic testing, psychiatric consultative examiner's reports, treatment notes from plaintiff's medical providers, and the findings by the State Agency physicians. [Tr. 20-23]. With regard to activities of daily living, plaintiff testified that she lived alone, walked a half hour to the hearing, prepares meals, was capable of taking public transportation, does laundry and housework, can lift 20-30 pounds. [Tr. 38-65]. In a Function Report and Third Party Function Report, completed by plaintiff and her boyfriend respectively, they reported that plaintiff spends a lot of time with her boyfriend, took care of personal needs and grooming, needed no help or reminders to take medication, prepared simple meals, cleaned and did laundry a couple of hours a week, goes out daily, walks, rides in a car, or uses public transportation, food shops, is able to handle money, hobbies and interests include reading and watching television, and can walk about 20 to 30 minutes before resting for about 5 to 10 minutes, can pay attention most of the time and follow written and spoken instructions, gets along with authority figures. [Tr. 226-33; 265-72]. As set forth above, the ALJ specifically considered the treatment records of Dr. El Amir concluding that although plaintiff was diligent in seeking medical care, her treatment was very routine. [Tr. 20-23]. Dr. El Amir did not refer plaintiff to any specialists. Diagnostic testing was reviewed and properly considered by the ALJ. [Tr. 20, 319 (October 2012 brain MRI was negative); Tr. 21, 317 (March 2013 MRI of the lumbar spine showing shallow scoliosis of lumbar spine; L5-S1 small central disc herniation; L4-L5 mild disc bulging); Tr. 21, 318 (MRI of her left shoulder showing no evidence of rotator cuff tear, AC joint showed mild hypertrophy and arthritic change)].
The ALJ also accounted for mental limitations in her RFC assessment. [Tr. 19-23]. The ALJ specifically considered the consultative evaluations by Dr. Perdomo and Arrington in detail. [Tr. 21, 313-15 (setting forth findings contained in Dr. Perdomo's consultative report); 22, 355-57 (assigning "considerable weight" to Dr. Arrington's consultative report and medical source statement and reciting findings contained in the report). The ALJ also considered the DDS psychological consultant opinions, the brief outpatient treatment in October 2014, plaintiff's "wide range" of activities of daily living and the "lack of regular psychiatric treatment." [Tr. 23]. Plaintiff points to no objective medical evidence that she contends was overlooked by the ALJ in making the RFC determination.
Further, the ALJ properly noted that both State Agency physicians Drs. Simpkins and Shaninian found that plaintiff had no exertional or postural limitations; however, giving plaintiff the benefit of the doubt for her back and left shoulder degenerative changes, the ALJ limited plaintiff to light work with "occasional overhead reaching" and gave plaintiff "standard seizure precautions and some mental limitations consistent with their findings." [Tr. 19, 23, 94-95, 108-10].
Thus, for the reasons stated, the Court finds no error in the ALJ's RFC assessment, which is supported by substantial evidence of record.
Finally, plaintiff contends that the ALJ's hypothetical questions based on the RFC to the Vocational Expert was error. [Doc. #13 at 25-30]. Plaintiff's argument is essentially a rehashing of the earlier allegations that the ALJ did not properly determine plaintiff's RFC.
Substantial evidence supports the ALJ's determination that the plaintiff is able to perform a significant number of jobs in the national economy. As discussed, the ALJ properly weighed the medical evidence at issue, and her RFC and credibility findings are supported by substantial evidence of record. As to whether there are jobs that the plaintiff can perform, the VE testified that given the RFC determined by the ALJ, the plaintiff would be able to perform occupations such as mail clerk, office helper and photo copier. [Tr. 24, 68]. The VE testified that these jobs existed in significant numbers in the local and national economy. [Tr. 68]. As the testimony of the VE is consistent with the findings of the ALJ and the evidence in the record, there is substantial evidence supporting the ALJ's determination that the plaintiff can perform a significant number of jobs that exist in the national economy. Accordingly, this argument is without merit.
As noted earlier, the Court's role in reviewing a disability determination is not to make its own assessment of the plaintiff's capabilities; it is to review the ALJ's decision for any reversible error. Whether there is substantial evidence supporting the plaintiff's view is not the question here.
Accordingly, the Court finds no error in the ALJ's reliance on the vocational expert's testimony in support of her determination at step five.
For the reasons stated, the decision of the Commissioner is therefore
An accompanying Order will issue.
This is not a Recommended Ruling. The parties consented to proceed before a United States Magistrate Judge [doc. #16] on April 25, 2018, with appeal to the Court of Appeals. Fed. R. Civ. P. 73(b)-(c).
SO ORDERED.