HENRY PITMAN, Magistrate Judge.
Plaintiff Carl A. Hollaway brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). The Commissioner and plaintiff have both moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
For the reasons set forth below, I respectfully recommend that the Commissioner's motion (Docket Item ("D.I.") 19) be granted and the plaintiff's cross-motion (D.I. 22) be denied.
Plaintiff filed an application for SSI and DIB on January 19, 2011, alleging that he had been disabled since August 31, 2010 (Tr.
On April 4, 2011, the Social Security Administration ("SSA") denied both of plaintiff's applications, finding that he was not disabled (Tr. 4-8, 13-25, 53-59, 62-76). Plaintiff timely requested and was granted a hearing before an Administrative Law Judge ("ALJ") (Tr. 77). ALJ Curt Marceille conducted a hearing by video conference on September 24, 2012 (Tr. 29-51). The ALJ reviewed the claim
Plaintiff was born on January 6, 1965 and was 46 years old at the time of his application (Tr. 148, 150). Plaintiff attended school through eleventh grade and subsequently earned a general education diploma (Tr. 41). Plaintiff reported that he had last worked in August 2010, parking and unloading cars (Tr. 171). During the two months that he worked in 2010, plaintiff earned $795 (Tr. 40, 171, 160). From 1983 through 1996, plaintiff had reported earnings in four separate years totaling $4,154.57 (Tr. 159-60). Plaintiff had no reported earnings from 1997 through 2009 because he was incarcerated during that time (Tr. 40, 45). Plaintiff reported that his parents are deceased, that he is single and that he has one son (Tr. 235). Plaintiff also reported that he lives with friends and that his aunt and cousin assist him at home (Tr. 39, 175)
Although plaintiff alleged that he was disabled as of August 31, 2010, the period under review runs from the date of plaintiff's application on January 19, 2011 through the issuance of the Commissioner's final decision.
1.
On January 4, 2011, plaintiff sought treatment at the emergency room of Beth Israel Medical Center ("Beth Israel") for complaints of back pain (Tr. 224). The primary diagnosis was "spinal cord disease" with an "additional" diagnosis of "cauda equina syndrome" (Tr. 224).
On January 5, plaintiff returned to Beth Israel for a magnetic resonance image ("MRI") of his lumbar spine. The MRI revealed, at the T2 level,
Plaintiff returned to the emergency room of Beth Israel on January 18, 2011. The sole diagnosis on this date was "spinal cord disease," and plaintiff received four referrals; he was referred to a Dr. Donna Finkelstein, again to Dr. Maniker, to a Pain & Palliative Care Center, and to "Family Practice — Phillips" (Tr. 223).
Between the date of his application (January 19, 2011) and the date of the initial denial of his application for SSI and DIB (April 4, 2011), plaintiff continued to visit Beth Israel and was also evaluated by two consulting physicians.
Plaintiff returned to Beth Israel on January 31, 2011, complaining of back pain that radiated to his neck, legs and arms (Tr. 217-18). Dr. M. Felsen observed that plaintiff was in no acute distress (Tr. 217). Plaintiff had no lower extremity edema
Plaintiff returned to Beth Israel almost two months later on March 23, 2011 and was seen by nurse practitioner ("NP") Kunimi Togashi-Ehresmann (Tr. 264-66). Plaintiff told Togashi-Ehresmann that he had worked in Pennsylvania until he was laid off from his job (Tr. 264). He further noted that he returned to Pennsylvania because his "disability lawyer is there" (Tr. 264). Plaintiff also reported that he had been prescribed the opiate medication oxycodone by his primary care physician with a dose of 10 mg every six hours, but that he was taking thirteen to fourteen tablets per day (Tr. 264) ("His [primary care physician] prescribed oxycodone 10mg 1 tab q6hrs, however, he is taking 13-14 tabs per day.").
On examination, NP Togashi-Ehresmann observed that plaintiff was in no acute distress and had normal muscle tone (Tr. 265). NP Togashi-Ehresmann noted that there was tenderness on palpation of the T11-L1 disc space, but there was no evidence of muscle spasm (Tr. 265). NP Togashi-Ehresmann further observed that plaintiff had full motor strength in his upper extremities; however, she was unable to test plaintiff's lower extremities fully due to plaintiff's complaints of pain (Tr. 265). NP Togashi-Ehresmann's assessment was back pain, and "thoracic/lumber [
At the request of agency adjudicator, W. Cooley, plaintiff met with an independent physical examiner prior to the issuance of the initial decision on his application (Tr. 20, 229-33). Ira Rubenfeld, M.D. examined plaintiff in March of 2011 (Tr. 228-36).
Dr. Rubenfeld reported that plaintiff's range of motion, gait and station were all normal (Tr. 236; Tr. 230-31 (range of motion test results)). Plaintiff had positive straight leg raising bilaterally,
Dr. Rubenfeld also completed an assessment of plaintiff's functioning (Tr. 232-33). Dr. Rubenfeld opined that plaintiff could lift and carry up to twenty pounds occasionally and ten pounds frequently, had no limitations in sitting, standing, walking, pushing and pulling and could occasionally bend, kneel, stoop, crouch, balance, and climb (Tr. 232-33).
On April 4, 2011, Dr. Hong S. Park, a state agency physician, reviewed the medical evidence in the record, and assessed plaintiff's functioning (Tr. 52-59). Dr. Hong did not actually examine plaintiff. Dr. Hong opined that plaintiff could lift and carry up to twenty pounds occasionally and ten pounds frequently, could stand or walk for about six hours in an eight-hour workday, could sit for about six hours in an eight-hour workday and could occasionally climb, balance, stoop, kneel, crouch, and crawl (Tr. 56-57). Dr. Hong's primary diagnosis was "Disorders of Back (Discogenic and Degenerative)" with a secondary diagnosis of "Benign Neoplasm of Brain and Other Parts of Nervous System" (Tr. 52). Dr. Hong opined that plaintiff was not disabled and that while his condition resulted in "some limitations" on his ability to work, those limitations did not prevent him from performing his past work as a parking lot attendant (Tr. 59).
Following the agency's initial denial of plaintiff's application for benefits and plaintiff's request for a hearing, plaintiff continued to visit Beth Israel for treatment.
On April 8, 2011, Plaintiff again met with NP Togashi-Ehresmann. At that time, plaintiff stated that he had gotten oxycodone 10mg tablets from Dr. Akeda but that the dose was insufficient to manage his pain; the NP and plaintiff discussed plaintiff's taking 30mg tablets of oxycodone on an "as needed" basis (Tr. 264). Plaintiff informed the NP that he rescheduled his neurosurgery appointment with Dr. Chan to a later date (Tr. 259, 264).
On May 4, 2011, plaintiff visited Beth Israel where he met with Dr. Richard Cruciani and NP Togashi-Ehresmann. Dr. Cruciani's assessment from that visit was consistent with NP Togashi-Ehresmann's March 23, 2011 examination of plaintiff (Tr. 263, 265 (in both instances assessing plaintiff for "back pain" and "thoracic/lumber [
From June 2011 through September 2011, plaintiff was seen on approximately a monthly basis at Beth Israel during which time he reported that his pain management was acceptable and his treatment produced no side effects. The summaries of those visits are recorded in a report that identifies Dr. Eli Soto, Dr. Cruciani, and NP Togashi-Ehresmann as the medical professionals that treated plaintiff (Tr. 243-47, 250-51, 255-56, 259-60).
In June 2011, plaintiff continued to report that his pain management was acceptable, and he denied having any side effects (Tr. 259). Plaintiff related that he had sought treatment while in Rhode Island for a recent episode of left arm discomfort and numbness and noted that the condition was improving (Tr. 259). As of that time, plaintiff had still not seen a neurosurgeon and did not have an appointment (Tr. 259).
At an examination in July 2011, plaintiff stated that he had had an "insurance lapse" due to having lost his identification (Tr. 259-60). Because plaintiff had exhausted his supply of pain medication four days earlier than he should have, he was counseled about "self-escalation" of medication (Tr. 259). Plaintiff reported no side effects or withdrawal symptoms from his medication (Tr. 259). At a subsequent examination in July, plaintiff stated that he had resolved the problem with his insurance coverage and that he could resume treatment at Beth Israel (Tr. 260). He was again counseled on self-escalation of medication and advised to keep a pain diary (Tr. 260).
The Beth Israel notes from August 2011 indicate that plaintiff stated he was doing "ok" on his current dosage of a maximum of five pills per day and denied having any side effects (Tr. 260).
The record also contains a document authored by Dr. Erika Blank, an internist affiliated with Beth Israel (Tr. 34, 238-241). On September 14, 2011, Dr. Blank completed a "medical source statement" about plaintiff's ability to do "work-related activities (physical)" (Tr. 239-40). Dr. Blank's statement indicates that she had first seen plaintiff nine months earlier and treated him every two to three months thereafter (Tr. 239). There were no treatment notes submitted with Dr. Blank's medical source statement.
Dr. Blank's diagnosis was scoliosis and "(concern for) intramedullary tumor at T11" (Tr. 239). She noted that plaintiff needed to have a biopsy done on the tumor for a further determination of his condition (Tr. 240). She opined that, in an eight-hour workday, plaintiff could sit for up to two hours, stand or walk for up to three hours, and would need to change positions every hour (Tr. 239). She also noted that plaintiff did not require an assistive device for walking (Tr. 239). Dr. Blank opined that plaintiff could lift and carry up to twenty pounds frequently (Tr. 239). She further opined that he could rarely climb, bend/stoop, and balance and could never kneel or crouch (Tr. 239). Dr. Blank wrote that plaintiff had no limitations on his ability to perform manipulations or to reach (Tr. 240). Dr. Blank also opined that plaintiff would likely be absent up to two times each month due to his impairment or treatment (Tr. 240).
Dr. Blank's statement includes a notation directing plaintiff to take 30 mg of oxycodone every six hours for two weeks, but due to the lack of treatment notes from Dr. Blank it is unclear whether Dr. Blank provided plaintiff with a prescription (Tr. 241). Dr. Blank listed plaintiff's medical problems as back pain, "intramedurally neoplasm," G6PD,
The summaries in the record of visits to Dr. Soto, Dr. Cruciani, and NP Togashi-Ehresmann at Beth Israel resume as of September 28, 2011 and continue through September 13, 2012 (Tr. 243-44, 246-47, 250-51, 255-56, 259-62).
Plaintiff returned to see NP Togashi-Ehresmann on September 28, 2011 and October 26, 2011 and reported to her that he had an appointment with a neurosurgeon on November 7 (Tr. 260). The record of the September 28, 2011 appointment indicates that plaintiff received a prescription for oxycodone that day and that he denied any side effects (Tr. 260).
Plaintiff missed his scheduled appointment with NP Togashi-Ehresmann in November. On December 2, 2011 he came to the clinic and reported that he had run out of medication (Tr. 260). The results of NP Togashi-Ehresmann's examination of plaintiff that day are essentially identical to those reported in March 2011 (Tr. 261, 265). Togashi-Ehresmann noted that plaintiff's muscle tone and range of motion were normal (Tr. 261). Togashi-Ehresmann's assessment remained back pain, and "thoracic/lumber [
On January 30, 2012, plaintiff reported to the Beth Israel staff that his current medication regimen was acceptable, produced no side effects and that he had no new health problems (Tr. 256).
On March 29, 2012, plaintiff returned to NP Togashi-Ehresmann (Tr. 255-57). Plaintiff again noted that he was not experiencing any problems with his medication regimen (Tr. 256). Plaintiff also indicated that his insurance no longer covered his prescription for oxycodone and that he was paying for the medication with his own funds; Togashi-Ehresmann told plaintiff to follow up with the Medicaid office (Tr. 256). Togashi-Ehresmann repeated her previously stated examination findings and diagnosis (Tr. 257). Plaintiff was seen again at Beth Israel on April 27, 2012 and again reported that his medication was effective and that he was not experiencing any side effects (Tr. 251).
Plaintiff returned to Beth Israel on June 13, 2012 to request a refill of his prescription because his medications had been stolen from his car (Tr. 251). Plaintiff was given a new prescription and was warned that it was his responsibility to safeguard his medications and that his prescription would not be replaced again (Tr. 251). Plaintiff later told the Beth Israel staff that he filed a claim with the police regarding the theft (Tr. 251).
On July 18, 2012, plaintiff was seen by Dr. Cruciani of Beth Israel (Tr. 250-53). Plaintiff complained of radiating low back pain, but denied having any numbness, loss of sensation, incontinence or constipation (Tr. 251). On examination, Dr. Cruciani reported that plaintiff's memory was intact and his mood was euthymic, although plaintiff expressed some anxiety about an upcoming neurosurgery appointment (Tr. 252). Plaintiff's sensation in his lower extremities was intact, and his motor strength for his upper and lower extremities was equal (Tr. 252). His gait was steady (Tr. 252). Dr. Cruciani performed a straight leg test on plaintiff which was positive bilaterally for pain at sixty degrees to plaintiff's lower back (Tr. 252). Dr. Cruciani observed that plaintiff's muscle tone was equal and symmetrical throughout his body, and that his range of motion was intact (Tr. 252). Plaintiff's deep tendon reflexes for his ankles and patellae (knee caps) were rated 2+ (Tr. 252). Dr. Cruciani's assessment was back pain, and "thoracic/lumber [
Plaintiff was seen at Beth Israel the following month by Dr. Eli Soto (Tr. 247-49). Dr. Soto reported that plaintiff's back pain was stable on Percocet, and that he had been "followed up by neurosurgery for glial tumor in the spinal cord but ha[d] not been able to go for surgery due to insurance issues" (Tr. 247). He further noted that plaintiff had not had any neurologic deficits (Tr. 247). Dr. Soto repeated the examination findings made by Dr. Cruciani, noting that plaintiff planned an upcoming consult with neurosurgery (Tr. 248;
On September 13, 2012, two weeks before his administrative hearing, plaintiff returned to Beth Israel and told Dr. Cruciani that he was experiencing worsening low back pain (Tr. 243-45). Plaintiff stated that he had run out of medication three days earlier (Tr. 243). He also indicated that he was scheduled to see a surgeon the following month because "he got his health insurance back" (T. 243). On examination, Dr. Cruciani found that plaintiff's motor strength was "preserved" and that his sensory exam showed no lack of focus (Tr. 243). Dr. Cruciani observed that plaintiff's gait was antalgic
Scott Dye, Esq. of the firm of Eric A. Shore, PC. represented plaintiff at the September 24, 2012 videoconference hearing before ALJ Curt Marceille (Tr. 31). Plaintiff and a vocational expert testified at the hearing. As noted above, the ALJ kept the record open for fourteen days following the hearing (Tr. 16). Plaintiff's counsel submitted additional medical records from Beth Israel on September 27 and confirmed on October 2, 2015 that the record before the ALJ allowed for full and fair consideration of plaintiff's claim (Tr. 203-04).
Plaintiff testified at the administrative hearing that he stopped working at the Auto Labor Union a few years earlier because of excruciating pain (Tr. 36). Plaintiff testified that sometime after that he went to see Dr. Maniker, a spinal surgeon at Beth Israel, who tested plaintiff and found a tumor on his spine (Tr. 36-37). Plaintiff testified that he must change positions throughout the day due to pain and that he experiences pain up and down his back and numbness in his arms and legs (Tr. 36-37). Plaintiff testified that Dr. Maniker advised him approximately two years earlier to have surgery on his tumor but that he postponed that treatment due to a change in his insurance carriers (Tr. 37-38). Plaintiff testified that he was now covered by Medicaid, but had not seen a surgeon regarding the recommended treatment in a year (Tr. 37, 40-41). He testified that his current medical care consisted of pain management through the use of oxycodone and morphine (Tr. 36-39). Plaintiff testified that oxycodone does a "fairly good job" of managing his pain but he experienced side effects such as drowsiness, diminished concentration and constipation (Tr. 38-39, 43, 46). Plaintiff testified that his pain is typically approximately a seven out of ten when he is on the medication and an eight out of ten when he is not on the medication (Tr. 43).
Plaintiff testified that he did not do any household chores and rarely cooked (Tr. 38-39, 41). Plaintiff testified that he mostly stays at home because he is unable to do anything due to pain and the medication he takes for it (Tr. 38). His aunt and cousin do "stuff" around the house to help him (Tr. 39). Plaintiff testified that he is not able to sweep or mop the floor and that his aunt and cousin do his laundry (Tr. 41-42).
Plaintiff testified that he spent his time reading or watching news and other programs on television (Tr. 44). Plaintiff obtained a driver's license in 2010 but testified that he did not drive (Tr. 42). Plaintiff testified that he did not go anywhere on a regular basis and did not exercise (Tr. 44). Plaintiff stated that he tries to lie down and stretch in different ways to alleviate his pain (Tr. 44). Plaintiff testified that he could sit or stand for up to one hour at a time, and could lift objects weighing between thirty-five and forty pounds (Tr. 46-47).
Edward Pagella testified as a vocational expert ("VE") (Tr. 47-50, 105). The ALJ posed hypothetical questions to the VE and asked him to consider possible jobs for someone of plaintiff's age, education and work background who was limited to a range of "light" work as defined in the SSA's regulations, namely, lifting twenty pounds occasionally and ten pounds frequently, sitting two hours per day, standing and/or walking six hours per day and occasionally climbing, balancing, stooping, crouching, and crawling (Tr. 48). The VE testified that such an individual could work in jobs described in the United States Department of Labor's Dictionary of Occupational Titles ("DICOT") such as hand [packager] (Tr. 49, citing DICOT § 559.687-074), assembler (Tr. 49, citing DICOT § 701.687-010) and hand sorter (Tr. 49, citing DICOT § 222.687-022).
In response to questioning from plaintiff's attorney, the VE testified that an individual who had to miss work two or more days a month due to pain or the side effects from medications would be precluded from "all competitive work" (Tr. 50).
The Court may set aside the final decision of the Commissioner only if it is not supported by substantial evidence or if it is based upon an erroneous legal standard. 42 U.S.C. § 405(g);
The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence.
"`Substantial evidence' is `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
A claimant is entitled to DIB and SSI if he can establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months."
In making the disability determination, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience."
In determining whether an individual is disabled, the Commissioner must follow the five-step process required by the regulations. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v);
If the claimant does not meet any of the listings in Appendix 1, step four requires an assessment of the claimant's residual functional capacity ("RFC") and whether the claimant can still perform his past relevant work given his RFC. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv);
RFC is defined in the applicable regulations as "the most [the claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). To determine RFC, the ALJ "identif[ies] the individual's functional limitations or restrictions and assess[es] his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b),(c), and (d) of 20 [C.F.R. §§] 404.1545 and 416.945."
The claimant bears the initial burden of proving disability with respect to the first four steps. Once the claimant has satisfied this burden, the burden shifts to the Commissioner to prove the final step — that the claimant's RFC allows the claimant to perform some work other than his past work.
In some cases, the Commissioner can rely exclusively on the medical-vocational guidelines (the "Grids") contained in C.F.R. Part 404, Subpart P, Appendix 2 when making the determination at the fifth step.
Exclusive reliance on the Grids is not appropriate where nonexertional limitations "significantly diminish [a claimant's] ability to work."
In considering the evidence in the record, the ALJ must give deference to the opinions of a claimant's treating physicians. Under the regulations' "treating physician rule," a treating physician's opinion will be given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in . . . [the] record." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
"[G]ood reasons" must be given for declining to afford a treating physician's opinion controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
As long as the ALJ provides "good reasons" for the weight accorded to the treating physician's opinion and the ALJ's reasoning is supported by substantial evidence, remand is unwarranted.
At step one, the ALJ found that plaintiff did not engage in substantial gainful activity at any time after the application date of January 19, 2011 (Tr. 18).
At step two, the ALJ found that plaintiff exhibits the signs and symptoms of degenerative disc disease, which is a "severe impairment" that "continues to significantly limit his ability to carry out basic work activities" (Tr. 18). In making this finding, the ALJ appeared to rule out the other potential sources of plaintiff's pain that were identified in plaintiff's MRI results. The ALJ noted that plaintiff's MRI revealed an "expansile intramedullary ovoid T2 hyperintensity with the claimant's distal thoracic spinal cord, at the T11 level" but that plaintiff had not complained of upper extremity issues in the last two years (Tr. 18). In addition, the ALJ addressed the statement in plaintiff's MRI report that the "expansile intramedullary ovoid" disclosed in the MRI was "concerning for an intramedullary neoplasm of glial origin" (Tr. 220). The ALJ stated that "Mr. Dye[, plaintiff's attorney at the hearing,] did not submit any treatment notes from a neurosurgeon with regard to the treatment of this possible `neoplasm of glilial [
At step three, the ALJ found that plaintiff did not meet any of the listed impairments or combination of impairments in 20 C.F.R. § Part 404, Subpart P, Appendix 1 (Tr. 19).
At step four, the ALJ determined that plaintiff had no relevant past work history (Tr. 24).
At step five, the ALJ determined, based on the testimony of a vocational expert, that plaintiff had the RFC to perform "light" work (Tr. 19).
The ALJ discussed the fact that plaintiff first visited Beth Israel for treatment for back pain two weeks prior to filing his application for Social Security Benefits (Tr. 20). The MRI taken of plaintiff's spine one day later did not disclose disc herniation and showed only a "very mild concentric disc bulge" and "`questionable' bilateral L5 spondylolys[i]s" (Tr. 20). Plaintiff's functioning did not appear to be impaired at that time; when plaintiff filed his application for SSI in January 2011, the field office employee noted that plaintiff sat "during whole interview without looking to be uncomfortable" and had no noticeable problems standing or walking (Tr. 20;
The ALJ noted that in March of 2011 Dr. Rubenfeld met with plaintiff and found that plaintiff had no limits on his ability to sit, stand or walk and that he could lift or carry "light" weights on a full-time basis (Tr. 21, 232-33).
The ALJ also found that there was nothing in the recent evidence to warrant finding a more limited RFC than that found by Dr. Rubenfeld. Two weeks after plaintiff met with Dr. Rubenfeld, the Beth Israel staff noted that plaintiff did not display any objective abnormalities but reported pain "with heel walking, extension of quadriceps muscle and hip flexion bilaterally" (Tr. 20). The ALJ noted that the sources at Beth Israel did not change their physical exam findings until June 2012 and did not "cast doubt on [plaintiff's] ability at all times in the interim to perform at least a limited range of light work" (Tr. 21). The ALJ further noted that through September 2012, plaintiff continued to report that his medication managed his pain adequately (Tr. 23).
The ALJ referred to Dr. Blank as the "presumed treating physician" and found that the record did not support many of her findings (Tr. 16, 21). The ALJ noted that even "overlooking the fact that claimant did not appear to meet with
Turning to plaintiff's subjective statements about his disability, the ALJ acknowledged that it would be impermissible to reject plaintiff's statements about his symptoms solely because the objective medical evidence did not support them (Tr. 21,
Given plaintiff's RFC, age, education and work experience, the ALJ credited the VE's opinion that there were occupations involving "light" work that plaintiff could perform that exist in significant numbers in the national economy (Tr. 24-25).
Accordingly, the ALJ found that plaintiff was not disabled (Tr. 25).
Plaintiff makes four arguments in support of his motion for judgment on the pleadings: (1) the ALJ committed legal error by not giving "controlling weight" to the opinion of plaintiff's treating physician, Dr. Blank; (2) the ALJ's credibility finding with respect to plaintiff was not supported by substantial evidence; (3) the ALJ's hypothetical questions to the VE included assumptions that were not supported by substantial evidence and (4) the ALJ committed legal error by failing to consider the combined effect of all of plaintiff's medical conditions. The Commissioner contends that the ALJ's decision should be upheld because it was made pursuant to the correct legal standards and is based on substantial evidence.
Plaintiff first argues that the ALJ improperly failed to give "controlling weight" to the opinion of his treating physician Dr. Blank and erroneously gave controlling weight to a consulting physician. Specifically, plaintiff argues that the ALJ did not consider the length of the treatment relationship with Dr. Blank, the nature and extent of the relationship, and the evidence provided to support Dr. Blank's opinion (Memorandum in Support of Plaintiff's Cross-Motion for Judgment on the Pleadings And in Opposition to Defendant's Motion (D.I. 23) ("Pl. Mem.") at 16). Plaintiff also argues that although the ALJ stated that he was giving "great weight" to the opinion of consulting physician Dr. Rubenfeld, the record indicates that he improperly gave Dr. Rubenfeld "controlling weight" in violation of Social Security Ruling ("SSR") 96-2p, 1996 WL 374188 (July 2, 1996), which states that only treating sources can be given controlling weight (Pl. Mem. at 16-17).
The ALJ set forth good reasons for not giving Dr. Blank's opinion controlling weight, and he did consider all of the factors required by the regulations.
With respect to the first two factors, the length, nature and extent of the relationship, the ALJ recognized that there was little evidence with respect to these factors. Although Dr. Blank claimed that she had been treating plaintiff for nine months, in view of the lack of treatment notes, it was unclear whether Dr. Blank actually met with plaintiff over that time period or whether she was merely referring to the period of time plaintiff had been treated at Beth Israel (Tr. 21). Nevertheless, the ALJ stated that he was overlooking the fact that there was no evidence that Dr. Blank personally met with plaintiff during the claimed period of treatment and was not discounting her opinion on this basis (Tr. 21).
As to the third factor — medical support for the treating physician's opinion — the ALJ found that there was insufficient medical support for Dr. Blank's opinion because she did not support her opinions with objective findings other than the MRI results (Tr. 21). The ALJ noted that even though plaintiff went to the emergency room at Beth Israel complaining of radiating lower back pain, the MRI of plaintiff's lumbar spine revealed only a very mild concentric disc bulge at L4-L5, with minimal foraminal narrowing of the spinal components and no disc herniation (Tr. 20, 21, 219-20). The ALJ further noted that Dr. Blank's opinion did not address the fact that the medical records reflected that plaintiff consistently reported good pain management with his prescribed dose of medication (Tr. 21, 23).
As to the fourth factor, the ALJ determined that Dr. Blank's assessment regarding the extent of plaintiff's impairments was inconsistent with the balance of the medical record. The ALJ noted that the clinical findings of the other physicians who had examined plaintiff did not support Dr. Blank's opinion that plaintiff could sit for no more than two hours each work day and could balance only "rarely" (Tr. 21; 238-41). For example, Dr. Rubenfeld reported in March 2011 that plaintiff's range of motion, motor power, and gait and station were all normal (Tr. 20-21, 230-36). Dr. Rubenfeld also opined that plaintiff could lift and carry up to twenty pounds occasionally and ten pounds frequently, had no limitations in sitting, standing, walking, or pushing and pulling, and could occasionally bend, kneel, stoop, crouch, balance, and climb (Tr. 21, 232-33). Further, the treatment notes from Beth Israel in the months following Dr. Rubenfeld's examination consistently noted that plaintiff displayed full strength and sensation in each extremity, was able to move all joints fully and to raise each leg sixty degrees without lower bank pain, and described plaintiff as "euthymic" or normal and not depressed (Tr. 21). Aside from one notation from Dr. Cruciani in September 2012 that plaintiff had a steady but antalgic gait (Tr. 243), all the examining medical professionals either reported that plaintiff had a normal gait or observed no gait abnormality or lack of steadiness (Tr. 20, 21; See, e.g., Tr. 235, 252, 265). After plaintiff received a refill of his prescription, Dr. Cruciani reported in July 2012 that plaintiff's sensation in his lower extremities was intact, his motor strength in his upper and lower extremities was equal and his gait was steady (Tr. 23, 252).
As to the fifth factor, Dr. Blank's specialization, the ALJ noted that Dr. Blank was a "nonspecialist" but did not indicate the significance he was attaching to this fact (Tr. 21).
Further, the ALJ did not improperly discount Dr. Blank's opinion entirely or give Dr. Rubenfeld's opinion "controlling weight." Because Dr. Blank's opinion was unaccompanied by treatment notes,
Further, the ALJ's decision to give greater weight to Dr. Rubenfeld's opinion than he gave to Dr. Blank's was not erroneous nor does it demonstrate that the ALJ gave Dr. Rubenfeld's opinion "controlling weight." (Tr. 21). The ALJ was entitled to give more weight to this examining source when his opinion was supported by substantial evidence.
The ALJ correctly "applied the substance of the treating physician rule" by considering the medical support for Dr. Blank's opinion and the consistency of her opinions with the other evidence in the record,
Plaintiff next argues that the ALJ's determination that plaintiff retained the RFC to do "light work" was not supported by substantial evidence because the ALJ failed to give specific reasons for discounting plaintiff's testimony and, therefore, failed to consider all of the evidence in the record as required by SSR 96-7p, 1996 WL 374186 (July 2, 1996). Specifically, plaintiff argues that the ALJ "essentially ignored the plaintiff's testimony" that would have established that he was disabled (Pl. Mem. at 19-20). The Commissioner argues that the ALJ reasonably found that plaintiff's subjective complaints of disabling symptoms were not entirely credible (Defendant's Motion for Judgment on the Pleadings (D.I. 20) ("Def. Mem.") at 5-7).
In determining a claimant's RFC, the ALJ is required to consider the claimant's reports of pain and other limitations, 20 C.F.R. § 416.929, but is not required to accept the claimant's subjective complaints without question.
The regulations provide a two-step process for evaluating a claimant's subjective assertions of disability.
The ALJ made a proper credibility determination and that determination is supported by substantial evidence. Applying the two-step framework set forth above, the ALJ did not completely reject plaintiff's complaints of pain or physical limitations, but rather found that given the overall record, plaintiff's medically determinable impairments would allow for the performance of "a limited range of light work" (Tr. 20).
As to the first step, the ALJ identified plaintiff's physical impairment as being due to a "degenerative narrowing [of his spinal components] at the L4-L5 level" (Tr. 18-19). The ALJ described and quoted from plaintiff's statements regarding his disability; the ALJ then noted that plaintiff was asserting that the limiting effects of his "spinal cord disease"
(Tr. 19,
At the second step, the ALJ found that plaintiff's asserted symptoms were not generally consistent with the objective medical evidence and other evidence in the record, including plaintiff's own statements to his physicians and the agency.
As a general observation, the ALJ noted that plaintiff's testimony was not consistent with the objective diagnostic testing, which the ALJ found did not demonstrate an impairment that would cause symptoms to the degree that plaintiff claimed (Tr. 19-22). As noted above, the ALJ explained that the MRI did not reveal a disc herniation or severely bulging discs and instead showed minor diagnostic abnormalities that were not accompanied by significant functional impairments (Tr. 20-21). Dr. Blank also expressed a "concern" regarding the "neoplasm" identified in the MRI and stated that a biopsy should be done "for further determination of prognosis" (Tr. 240). The ALJ noted, however, that one year after the MRI, there were no treatment notes regarding the treatment of the potential neoplasm (Tr. 18).
The ALJ also took note of the inconsistency between plaintiff's initial SSI application and statements to his doctors on the one hand and his hearing testimony on the other hand. The ALJ noted that in his initial application in January 2011, plaintiff stated that he engaged in various activities notwithstanding his complaints of debilitating symptoms, including showering each day, dressing himself, sweeping, mopping, doing his own laundry, preparing his own vegetarian meals, using the internet and watching television (Tr. 22, 175-77). The ALJ noted that plaintiff did not allege incontinence or report any other problems with his ability to use the toilet (Tr. 22). The ALJ also noted that plaintiff was able to walk without limitation, could lift at least 15 pounds, did not use an assistive device or orthotic brace and could shop for food on a regular basis for an hour at a time (Tr. 22). The ALJ also noted that when plaintiff met with an SSA representative to file his application, he appeared comfortable and was able to sit during the interview, concentrate and relate coherently (Tr. 20, 167).
The ALJ further noted that contrary to plaintiff's testimony (Tr. 38-39), plaintiff told his treating sources that his prescribed medication produced no significant side effects and was effective in managing his pain (Tr. 22-23, 246, 251, 256, 259, 260).
The ALJ did not credit plaintiff's statement that he experienced "'7/10' pain (even with medication) each and every day" (Tr. 24). The ALJ noted that plaintiff did not ask to change his medication regimen even though one of the Beth Israel staff asked him whether his dosage was sufficient and discussed with him the importance of letting his physicians know if the dosage was insufficient, nor did plaintiff pursue any alternative treatment such as surgery (Tr. 23, 260).
The ALJ noted that plaintiff admitted at the hearing that the oxycodone "helps" him and that he did not need to use an assistive device or orthotic brace on a regular basis (Tr. 23). He testified that he could sit or stand for at least an hour without interruption and could lift "`maybe' 35 to 40 pounds" (Tr. 24). It was reasonable for the ALJ to find that plaintiff was not disabled based on his demonstrated ability to manage his pain.
The ALJ also considered other evidence that adversely affected plaintiff's credibility, including the fact that plaintiff filed his claim shortly after having been released from prison (Tr. 21, 21 n.2, 150, 159-602). The ALJ also noted that "[o]wing to his regular use of Oxycodone the claimant continued to weigh 180 lbs, suggesting an adequate amount of daily activity" (Tr. 21). The ALJ found that there was no reason to believe plaintiff's claims that between plaintiff's application in early 2011 and the hearing on plaintiff's application in September 2011, there was a marked decrease in plaintiff's ability to take care of himself, to sweep, and to mop (Tr. 24). The ALJ found that it was "unlikely" that plaintiff had been unable to drive his car for several months and pointed out that although plaintiff testified at the hearing that he could not drive, he also claimed that his medication had been stolen from his car a few months earlier (Tr. 24).
The ALJ did not completely reject plaintiff's subjective complaints of pain and did take them into account in finding that plaintiff was only able to perform light work (Tr. 21). Although the ALJ agreed with Dr. Rubenfeld that there was no objective basis to limit plaintiff's stooping, kneeling, crouching, balancing, or climbing, the ALJ agreed, "out of an abundance of caution," to find that plaintiff was "limit[ed] to occasional postural maneuvering" (Tr. 21).
In sum, the ALJ followed the relevant agency rulings and provided numerous, specific and substantiated reasons for not fully crediting plaintiff's subjective claims. For all the foregoing reasons, the ALJ's conclusion that plaintiff's complaints about the magnitude of his symptoms were not entirely credible was supported by substantial evidence.
Plaintiff next argues that the two hypotheticals the ALJ posed to the VE did not yield relevant evidence because they assumed facts that were not supported by substantial evidence.
(Pl. Mem. at 21). In support of the argument that the VE's testimony should be disregarded, plaintiff relies solely on his argument that Dr. Blank's opinion should have been given controlling weight (Pl. Mem. at 20-21).
To meet his burden at step five, an ALJ may rely on a vocational expert's testimony in response to a hypothetical question so long as the facts assumed in the hypothetical are based on substantial evidence and accurately reflect the limitations and capabilities of the claimant involved.
As explained above, the ALJ made his RFC determination according to the correct legal standards, by applying the treating physician rule properly and appropriately assessing the plaintiff's credibility. The ALJ assessed all of the medical evidence in the record and concluded that Dr. Rubenfeld's assessment of plaintiff's limitations was the most consistent with the Beth Israel treatment notes and plaintiff's own statements to his doctors (Tr. 20-22). As discussed above, given Dr. Blank's limited treatment notes, plaintiff's testimony regarding his pain management and the opinions of Dr. Rubenfeld and the staff at Beth Israel that treated plaintiff over the course of more than one year, the ALJ did not err in giving Dr. Rubenfeld's opinion more weight than Dr. Blank's in reaching his RFC determination.
The ALJ's hypotheticals, moreover, did not rely solely on Dr. Rubenfeld or any other source. In fact, the ALJ recognized that "[e]ven though [Dr. Rubenfeld's] examination did not uncover an objective basis to limit [plaintiff's] stooping, kneeling, crouching, balancing, or climbing, [the ALJ] agree[d] — like the agency's medical consultant — to limit [plaintiff] to occasional postural maneuvering too, out of an abundance of caution" (Tr. 21). The hypotheticals posed to the VE reflected this additional limitation (Tr. 48, 49). Although the ALJ referred to Dr. Park by his title when limiting plaintiff to occasional maneuvering, it is apparent that the decision to ask the VE to assume greater limitations of plaintiff's abilities than were supported by the objective medical evidence was based on plaintiff's subjective complaints and Dr. Blank's opinion (Tr. 21).
Therefore, because the ALJ's assessment of plaintiff's RFC was based on substantial evidence, posing hypothetical questions to the VE based on that assessment was not erroneous.
Finally, plaintiff argues that the ALJ's decision was not supported by substantial evidence because the ALJ failed to consider the combined effect of plaintiff's multiple physical problems. According to plaintiff these were "bulging disk, cauda equina syndrome, 1.4cm x.9cm rounded intramedullary lesion that displays characteristics that most likely correspond with an epidermoid, bilateral L5 spondylolisthesis,
The Court of Appeals has stated that "the combined effect of a claimant's impairments must be considered in determining disability; the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe."
As an initial matter, it is not at all clear that plaintiff's multiple conditions are indeed separate conditions; rather, many of these conditions appeared to be different potential sources of plaintiff's back problems. As discussed above, the ALJ analyzed plaintiff's medical records and the objective and subjective evidence regarding his "spinal cord disease" extensively. The only conditions noted by plaintiff in his submission to this Court that the ALJ did not cite by name are the epidermoid, cauda equina syndrome and thoracic/lumbar radiculitis.
Even if these were conditions that needed to be considered as different sources of plaintiff's pain, the ALJ appeared to have considered all of them in his decision. As to the epidermoid (or cyst) claimed to be on plaintiff's spine, the ALJ implicitly discussed this condition in connection with his assessment of the MRI results. The ALJ addressed the "neoplasm of glilial [
With respect to the cauda equina syndrome, the ALJ did not discuss this issue apparently because there was no support in the medical records that plaintiff suffered from this condition. Although it was noted as an "additional diagnosis" during plaintiff's January 2011 emergency room visit (Tr. 224), the subsequent medical records indicate that plaintiff's physicians ruled that initial diagnosis out. The MRI taken of plaintiff's lumbar spine shortly after the January 2011 emergency room visit did not reveal cauda equina syndrome and after that date plaintiff's physicians only cited cauda equina syndrome when summarizing the January 2011 emergency room visit notes; it was no longer listed as a diagnosis (Tr. 219-20, 244, 246, 248, 252, 261, 263, 265). The ALJ was not required to point out specifically the lack of supporting evidence for this condition when assessing plaintiff's allegedly disabling spinal cord disease.
Finally, thoracic/lumbar radiculitis refers to inflammation of the thoracic spinal nerves,
Therefore, although they were not each stated by name, the record reflects that the ALJ considered the combined effects of all of plaintiff's alleged conditions in determining that plaintiff was not disabled. The ALJ's determination was supported with substantial evidence.
Accordingly, I conclude that the ALJ properly applied the applicable legal principles and that his determination that plaintiff was not disabled under the Act is supported by substantial evidence in the record. For all the foregoing reasons, I respectfully recommend that the Commissioner's motion be granted and plaintiff's cross-motion be denied.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections.
20 C.F.R. §§ 404.1567(b), 416.967(b).
20 C.F.R. §§ 404.1567(a), 416.967(a).
(Tr. 48). The ALJ then posed the following second hypothetical to the VE:
(Tr. 49). The ALJ then asked the VE a follow-up question to his two hypothetical questions:
(Tr. 50). As noted above, the VE identified jobs in the local and national economies that a person could perform assuming the restrictions identified in the ALJ's hypotheticals (Tr. 49-50).
