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Berner v. Astrue

July 29, 2009


The opinion of the court was delivered by: Honorable Jerome B. Simandle


This matter comes before the Court pursuant to Section 205(g) of the Social Security Act ("the Act"), as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration ("Defendant") denying the application of Claimant Donna Berner ("Claimant") for Disability Insurance Benefits ("DIB") under Title II of the Act. See 42 U.S.C. §§ 401-34. This Court must determine whether the Administrative Law Judge's ("the ALJ") calculation of Claimant's Residual Functional Capacity ("RFC"), and decision that Claimant had the necessary RFC to perform her previous relevant work, is supported by substantial evidence.

Claimant brings five challenges, arguing that the ALJ: (1) used the incorrect onset date; (2) improperly discounted Claimant's testimony of disabling pain and limitations; (3) erred in evaluating Claimant's severe impairments at step two of the sequential evaluation; (4) failed to properly evaluate and weigh the medical evidence of record; and (5) failed to properly determine Claimant's Residual Functional Capacity and ability to perform prior work. For the reasons set forth below, this Court will affirm the decision of the Commissioner denying Claimant's application for Disability Insurance Benefits.


Mrs. Berner was born on June 27, 1958, (R. at 281), and currently lives in Cherry Hill, New Jersey. (R. at 30.) She graduated from high school, is 5'8' tall, 160 pounds, and lives with her husband and 15-year-old son. (R. at 281-83.)

A. Procedural History

Claimant filed an initial application for DIB under the Act, which was denied on February 10, 2005. This initial application, which alleged an onset date of June 20, 2002, was appealed to the United States District Court for the District of New Jersey, which affirmed the Commissioner's decision on December 1, 2006. See Berner v. Commissioner, 05-CV-4762 (RBK). Claimant did not appeal this decision further.

Claimant protectively filed her current application for Disability Insurance on April 21, 2005, alleging disability since June 25, 2003. (R. at 61.) The application was denied initially and upon reconsideration. (Id.) A hearing was held on July 2, 2007, before ALJ Daniel W. Shoemaker, Jr. (R. at 279-302.) The ALJ issued a decision on September 10, 2007, denying Claimant entitlement to DIB benefits. (R. at 11-12.)

Claimant filed a Request for Review by the Appeals Council, and the Appeals Council denied that request on June 19, 2008.

(R. at 5-7.) Therefore, the ALJ's denial became the final decision of the Commissioner, Defendant. (R. at 199, 245-47.) On July 22, 2008, Claimant timely filed this action in this Court, seeking review of the Commissioner's determination.

B. Administrative Law Judge Opinion

The ALJ made the following findings after the hearing. First, the ALJ found that Claimant had not engaged in substantial gainful activity since February 11, 2005, the alleged onset date determined by the ALJ. (R. at 16.) Next, the ALJ found that Claimant suffered from the severe impairments of "fibromyalgia, chronic lower back pain syndrome, and arthritis of the knees." (Id.) However, the ALJ did not find Claimant's mental impairments to be severe. (Id.)

Next, the ALJ determined that none of these impairments or combination of these impairments met or exceeded the criteria of any of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (R. at 17.) The ALJ proceeded to the following step of the evaluation, and determined that while Claimant's capacity to work was limited, she retained the capacity for "the full range of light work."*fn1 (Id.) The ALJ also determined that Claimant was capable of performing past relevant work as a cashier, which is light in exertional demands and semi-skilled in nature, (DOT § 211.462-014), and as a teachers' aide, which is light in exertional demands and skilled in nature, (DOT § 099.327-010), according to the Dictionary of Occupational Titles.

(R. at 21.) The ALJ determined that Claimant's past work as a teachers' aide and a cashier did not require the performance of work-related activities precluded by her residual functional capacity. Thus, Claimant, according to ALJ Shoemaker, was not disabled during the relevant period of time, from February 11, 2005 until July 2, 2007, and not entitled to Disability Insurance Benefits.

In reviewing the decision of the Administrative Law Judge, this Court must determine: (1) which date serves as the proper onset date; (2) whether the ALJ improperly disregarded Claimant's complaints of disabling pain and limitations as not entirely credible, in violation of SSR 96-7p; (3) whether Claimant's non-exertional psychiatric impairments and chronic pain are conditions that qualify as "severe" pursuant to SSR 96-3p; (4) whether the ALJ properly determined Claimant's Residual Functional Capacity and ability to perform prior relevant work; and (5) whether the treating physician's opinions were afforded the proper weight.

C. Evidence in the Record

1. Medical Records

a. Dr. Dwyer - Orthopedic Surgeon

Dr. Thomas A. Dwyer was Claimant's treating orthopedic surgeon. Dr. Dwyer performed two surgeries on Claimant's right knee; the first on July 27, 2003 and the second on November 29, 2004. (R. at 134, 178.) Dr. Dwyer met with Claimant after the second surgery on March 7, 2005 to perform an orthopaedic evaluation. (R. at 202.) After a physical examination, Dr. Dwyer assessed Claimant with symptomatic distal patellofemoral arthropathy*fn2 and right knee pain. (Id.) He recommended a conservative course of action, and injected the right knee with Xylocaine and Depo-Medrol. (Id.) Dr. Dwyer provided her with Glucosamine/Chondroitin Sulfate for her to take on a daily basis to help with her osteoarthritis ("OA"). (Id.)

Dr. Dwyer conducted a follow-up with Claimant regarding her second knee surgery on August 8, 2005, where his assessment was that Claimant had chondromalacia of the patella*fn3 on the right knee. (R. at 201.) Dr. Dwyer stated that the only possible treatment would be a Fulkerson Osteotomy,*fn4 which he believed her symptoms did not justify. (Id.)

b. Dr. Soloway - Treating Rheumatologist

The record indicates that Dr. Stephen Soloway, Claimant's treating rheumatologist, consistently saw and treated Claimant from October 14, 2002 until February 14, 2007. (R. at 242-73.)

On June 26, 2005, Claimant came to Dr. Soloway "complaining of total body pain" which felt like a spasm, especially on the left side of her neck. (R. at 253.) Claimant alleged difficulty sleeping. (Id.) She stated her pain was worse in the evening and worse with use of her muscles. (Id.) Dr. Soloway's notes indicate that Claimant had lumbar disc disease, but she denied further treatment other than therapy. (Id.) Dr. Soloway's examination revealed multiple trigger points present throughout and no synovitis*fn5 present in any of her joints. (Id.)

Claimant's neurovascular*fn6 status was intact. (Id.) Dr. Soloway confirmed her fibromyalgia. (Id.) Dr. Soloway indicated that Claimant declined any trigger point injections. (R. at 254.) He restarted her on Elavil and started her on a trial of low dose Lexapro*fn7 ; he also prescribed Flexeril*fn8 and Percocet*fn9 as needed. (Id.) Dr. Soloway considered a second opinion regarding Claimant's fibromyalgia, or a trial dose of steroids if the flare did not resolve. (Id.)

On August 15, 2005, Claimant came to Dr. Soloway complaining of neck pain that radiated down to her shoulders, hands and wrist. (R. at 249.) Dr. Soloway found pain with the flexion extension of the cervical spine with paracervical spasm, and some tenderness over the facet joints and other superficial surfaces. (Id.) He also found her neurovascular status intact. (Id.) Dr. Dwyer prescribed OxyContin. (Id.) When Claimant came in on September 7, 2005, the CT scan revealed that Claimant had right side bone spurs, and the C-spine and x-ray was normal. (R. at 247.) Dr. Soloway recommended an EMG and nerve conduction study of Claimant's upper extremities, and prescribed MS Contin and Percocet. (Id.)

After a follow-up on October 10, 2005, Dr. Soloway's impression was that Claimant had chronic pain. (Id.)

Dr. Soloway indicated that Claimant walked with an antalgic gait,*fn10 (R. at 246), and some discomfort with range of motion, predominantly with right-side low back pain. (Id.) Otherwise, the gross neurovascular status was intact. (Id.) Claimant had not done well with OxyContin in the past, therefore Dr. Soloway prescribed Fentanyl and Duragesic patch*fn11 in addition to Percocet to manage the pain. (Id.) These new medications were in addition to the Neurontin,*fn12 Mobic,*fn13 Sonata,*fn14 Xanax,*fn15 Imitrex,*fn16 Lexapro and Flexeril that Claimant was also taking. (Id.)

On November 1, 2005, Claimant came to Dr. Soloway for a follow-up appointment. (R. at 245.) Claimant said that she had improved, but was not one hundred percent recovered. (Id.) Dr. Soloway stated that she declined treatment for her lumbar disc disease, and was there for her fibromyalgia. (Id.) The physical exam revealed trigger points present throughout, mostly in upper extremities. (Id.) The lumbar spine range of motion had decreased, likely due to paravertebral spasm. (Id.) The EMG of the upper extremities was normal. (Id.) Claimant continued using Neurontin, Mobic, Sonata, Xanax, Percocet, Imitrex, Lexapro, Flexeril and Duragesic patch. (Id.)

Claimant had another follow-up on November 29, 2005, and Dr. Soloway reported that she was doing well with her current regime.

(R. at 244.) Claimant had a follow-up on January 3, 2006 where Dr. Soloway reported no current change, and that Claimant was doing well on her regimen. (R. at 243.)

Claimant's last documented visit with Dr. Soloway took place on February 14, 2007. (R. at 273.) At that point, she was known to have fibromyalgia, osteoarthritis of the knees, and lumbar disc disease controlled through a pain management program. (Id.) Claimant came in for a follow-up visit and her lab results. (Id.) Claimant stated that she continued to have pain radiating down her right leg, which was worse from her lower back. (Id.) Upon examination, Dr. Soloway stated that there was pain with range of motion of the lumbar spine, radiating down to her mid thigh level, and her neurovascular status was intact. (Id.) Dr. Soloway advised Claimant to continue with pain management, psychiatric and neurological treatment, therapy and assistive devices. (R. at 274.)

c. Dr. Hugh D. Moore - Psychiatrist

Claimant visited Dr. Hugh D. Moore, a psychiatrist, on August 18, 2005. (R. at 215.) Claimant alleged that she had difficulty sleeping and woke up several times nightly. (Id.)

Claimant stated her appetite was normal, but that she had a decrease in sexual functioning. (Id.) Claimant again said that she experienced the above-mentioned symptoms of depression and panic attacks, which she believed were triggered by bouts of pain. (R. at 215-16.) Claimant reported that within the limits of her pain and difficulty staying in one position too long, she was able to cook and perform other household chores. (Id.) She was able to drive, and Claimant reported that she was able to manage money. (Id.) Dr. Moore reported that Claimant: appeared to be capable of understanding and following simple instructions and directions, performing simple and complex tasks both with supervision and independently, maintaining attention and concentration for tasks, attending to a routine and maintaining a schedule, learning new tasks, making appropriate decisions and relating to and interacting appropriately with others. (Id.) Dr. Moore believed that the vocational difficulties were caused primarily by medical problems. (Id.)

Dr. Moore expressed that the results of the examination appeared to be consistent with psychiatric problems, but the psychiatric problems themselves did not appear significant enough to interfere with Claimant's ability to function on a daily basis. (Id.) Dr. Moore concluded that Claimant's prognosis was fair if she followed through with her formal treatment to deal with psychiatric symptoms and if she continued with intervention and support. (R. at 218.)

d. Dr. Nithyashuba Khona - Orthopedic Examination

Claimant met with Consultative Physician Nithyashuba Khona on July 14, 2005. (R. at 195.) Claimant expressed that she had pain in her back, lumbar disk disease with herniation and hyper mobility, could not bend and could not generally do things, which caused her depression. (Id.) She said she tended to stay home in her room, cry, and feel useless and helpless. (Id.) Claimant stated that she was seeing a psychiatrist. (Id.) She complained of having fibromyalgia for three years. (Id.) She had generalized aches and pains all over the body, and her body felt as if she had the flu. (Id.) She also had right knee pain, and had been wearing a brace for the past year. (Id.) Claimant rated the pain in her knee in the range of seven out of ten. (Id.) Claimant stated ...

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