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Ford v. Commissioner of Social Security

United States District Court, D. New Jersey

March 31, 2014

NEVA FORD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION

KEVIN McNULTY, District Judge.

Neva Ford brings this action pursuant to 42 U.S.C. § 405(g) and 5 U.S.C. § 706 to review a final decision of the Commissioner of Social Security that denied her applications for Title II disability insurance benefits ("DIB") and for Title XVI Supplemental Security Income ("SSI") under the provisions of 42 U.S.C. § 423 and 1382. Compl. (Docket No. 1). These applications, which sought benefits starting in September 2005, alleged that Ford was disabled because of congestive heart failure (cardiomyopathy), diabetes, and morbid obesity. For the reasons set forth below, the Commissioner's decision is affirmed.

I. BACKGROUND

On February 9, 2007, [1] the Plaintiff, Neva Ford, first applied for disability insurance benefits and supplemental security income benefits. Record of Proceedings ("R __")[2] (Docket No. 11) at 142-46. She alleged that, because of her disabling conditions - congestive heart failure, diabetes, and high blood pressure - she became unable to work as of September 15, 2005.[3] R 144. These applications were originally denied on July 24, 2008. Ford then filed a request for reconsideration, which was denied on October 1, 2008. Compl. ¶ 5; R 90-95, 82-84. She filed a request for a hearing, which was held before Administrative Law Judge Leonard Olarsch (the "ALJ") on February 18, 2010. Compl. ¶ 6; R 97-139. On February 25, 2010, the ALJ rendered a decision finding that Ford was not disabled. R 23-36. After the ALJ's unfavorable decision, Ford requested review by the Appeals Council. On March 9, 2012, the Appeals Council denied Ford's request for review. This rendered the ALJ's February 25, 2010 decision a final decision of the Commissioner of Social Security, reviewable in this Court. R 4-9.

Ford now appeals the denial of her February 2007 DIB and SSI applications. The government submits that the ALJ's denial of benefits is supported by substantial evidence.

A. Ford's Testimony and Non-Medical Evidence

Ford was born October 20, 1970, and was 34 years old on the alleged disability onset date. She completed the twelfth grade. R 101. She has two school-aged children who live with her. Her last job was as a human services technician on the mental ward of Greystone Psychiatric Hospital. R 100. Her duties included keeping track of and assisting patients with various daily tasks and activities. R 101-02. Ford testified that her weight made her job more difficult, as she was required to do constant walking and frequent lifting. She testified that she was often short of breath when walking with patients and that her knees would give out from "time-to-time." R 102-03. Ford left this job after being hurt on the job when a patient came up behind her and took her down to the ground. R 103. In the fall, she injured her knees, back, and shoulders. R 104. A doctor excused her from work for a couple of months and she filed a Worker's Compensation claim. Id.

Ford never returned to work after this incident. After she stopped receiving Worker's Compensation benefits, she began receiving welfare benefits, such as food stamps and rental assistance. R 109-10. She testified that her diabetes "kicked in" after the incident and that she suffers from chest pain, dizziness, headaches, shortness of breath, numbness in her fingers, hands, legs, and feet, and swelling in her legs. R 106-08. She also complains of being thirsty all of the time and having blurry vision even with glasses. R 108.

Ford testified that she does little on a daily basis and that all her household chores are done by her children and by her mother. When the children are at school, her mother, who lives four blocks away, drives over to clean and cook for Ford. Her mother also does the grocery shopping, from "time-to-time" accompanied by Ford. R 113-15. Ford says she attends church on Sundays, but must get up several times during the three-hour service and generally leaves early. She testified that she has no hobbies and does not participate in any activities other than watching the news on TV. R 116-17, 125. She testified that she cannot complete personal grooming without the help of her daughter, R 122, and that her legs would give out if she were to walk half a block. R 118. She says that she is constantly drained and sleepy. R 115, 122.

B. Ford's Medical Record and Objective Evidence

Ford submitted evidence that she has been on various medications, including Digoxin, Diovan, Bidil, Amlodipine, Carvedilol, Zetia, Furosemide, Levemir Flexpen, Humalog, and Pramipexole. R 200. These medications are used to treat her cardiac condition, high blood pressure, high cholesterol, swelling, diabetes, and sleep apnea. Id. Before the ALJ, Ford submitted that she is disabled as a result of cardiomyopathy, diabetes mellitus, and obesity. The objective evidence, as found in Ford's medical records and as summarized by the medical expert appearing at the hearing, is summarized below.

1. Evidence Regarding Cardiomyopathy

While Ford was hospitalized due to a failed pregnancy in August of 2005, an echocardiogram ("EKG") showed that she had a "normal sinus rhythm" and "nonspecific wave abnormality." R 207. The report noted that the test revealed an "abnormal EKG." Id. A discharge summary following a November 2006 hospital stay noted that Ford was hospitalized for folliculitis and that she also complained of shortness of breath. R 239. The same report noted an "impression" of cardiomyopathy and that Ford was a "high risk patient" for cardiovascular mortality and morbidity. Id. Ford was only diagnosed, however, with right auxiliary folliculitis and uncontrolled diabetes mellitus. R 240. A consultative report completed by Dr. Kyu C. Chae during this hospital stay noted that Ford had "[n]o history of congestive heart failure or heart disease." R 243. An EKG taken on November 22, 2006, was "borderline." R 239.

A June 24, 2008 EKG report showed that Ford had a normal sinus rhythm, but that the EKG was "abnormal." R 269. A June 24, 2008 physical consultative evaluation conducted by Dr. Rhambai Patel (as requested by the Social Security Administration) found that Ford had normal breathing sounds, a regular sinus rhythm without murmur or gallop, and a normal-sized heart. R 267. According to a July 16, 2008 physical examination report completed by Dr. Robert Roland, while Ford had a 2/6 systolic murmur, she had a regular heart beat rate and rhythm without extra systoles or gallops R 325. The same report noted that Ford had a history of congestive heart failure. R 324.

A July 15, 2008 diagnostic imaging report noted that a chest x-ray showed Ford's heart to be normal and did not show any congestion or effusion. R 356. Similarly, a November 6, 2009 chest x-ray report noted that Ford's heart size was within normal limits. R 440. A November 2009 EKG resulted in a "borderline" result. R 442-43. Finally, a July 14, 2010 exercise stress test report stated that Ford had an exercise capacity of 7 METs[4] and produced normal EKG findings. Ford's results from this test showed an ejection fraction of 57%. R 444-57.

A July 8, 2008 handwritten note by Ford's primary care physician, Dr. Darshi Sunderam, stated that Ford had severe cardiomyopathy and severe neuropathy and noted that Ford should be on permanent disability. R 271, 327. EKG results that appear to be attached to this note show a "normal" EKG and normal sinus rhythm. R 332.

2. Evidence Regarding Diabetes Mellitus

A May 22, 2006 hospital discharge summary report completed by Dr. Sunderam noted that, despite Ford's diabetes, she had a soft abdomen, no organomegaly (abnormal enlargement of the organs), and no neurological deficits. R 280-81. She was hospitalized again in November 2006 for uncontrolled diabetes mellitus and cellulitis. R 299. A November 2006 hospital report also noted that she did not have organomegaly and did not have focal neurological deficits. R 241. Ford was also admitted to the hospital on July 15, 2008, for poorly controlled diabetes and various skin infections. R 312, 316. During this July 2008 hospital visit, it was similarly found that Ford had no organomegaly, no mass effect, and no evidence of diminished sensations. R 319.

There is evidence that Ford has a history of being noncompliant with her diabetes medication regimen. The May 22, 2006 discharge summary report noted that Ford was admitted to the hospital for uncontrolled diabetes and that Ford was "notoriously noncompliant" with respect to her diabetes medication. R 280. A November 23, 2006 admission report also noted that Ford was consistently noncompliant with her diabetes maintenance medication regime. R 241, 302 ("notoriously noncompliant... with her medications, her diet, office visits"). Similarly, a July 2008 History and Physical report noted that Ford was "notoriously noncompliant" and "does not take her medications." R 322; see also R 431 (again noting that Ford was "notoriously non-compliant").

3. Evidence of Morbid Obesity

Ford also has a history of morbid obesity. According to a February 18, 2010 letter from Ford's then-counsel, Ford's weight fluctuated between 223 and 307 pounds during the period from March 2005 through December 2009. R 201 (Exhibit 8E). Ford stands 5 feet, 1 inch tall. Id. Despite the stress on her body, a June 24, 2008 physical consultative evaluation conducted by Dr. Rhambai Patel found that Ford was slightly obese but not in acute distress. Patel noted normal vision, a normal gait, normal breathing sounds, a normal heart, normal grip strength, and slightly diminished sensations in both of her lower extremities. R 267. A study provided to the ALJ after the hearing (but included on his List of Exhibits, R 36) found that Ford suffers from obstructive sleep apnea syndrome. It recommended weight loss. R 469.[5]

4. Hearing Testimony Summarizing Medical Record

Dr. Gerald Gaist, board-certified in general internal medicine and cardiology, testified at the February 2010 hearing. Before the hearing, he reviewed all of the medical evidence. Dr. Gaist testified that Ford had diabetes and suffered from morbid obesity, which were well-documented by the medical records. R 130. Noting that Ford's primary care physician, Dr. Sunderam, had referred to Ford's severe cardiomyopathy, Dr. Glast found no evidence of cardiomyopathy other than the fact that Ford had been prescribed medication normally used to treat it. Id. Dr. Gaist specifically cited to an EKG taken the month before the hearing that showed normal left ventricular function with normal ejection fraction, and did not show evidence of heart failure. Id. (citing Exhibit 16-F).

Dr. Galst also testified that multiple chest x-rays consistently showed a normal-sized heart with no evidence of lung congestion. He opined that Ford's shortness of breath might have been caused by her obesity, but found no evidence that it was caused by either systolic or diastolic heart failure. He noted that there were no neurological studies done to determine whether Ford suffered from diabetic neuropathy. He testified that her overall renal function was normal and that she is not in any heart failure. R 132-33, 137. He also stated that her condition of morbid obesity was not disabling and that he did not see any reason why Ford could not do sedentary work. R 138.

II. DISCUSSION

Ford's claims for DIB and SSI were denied by ALJ Olarsch after application of the five-step analysis described below. To qualify for Title II DIB benefits, a claimant must meet the insured status requirements of 42 U.S.C. Section 423(c). To be eligible for SSI benefits, a claimant must meet the income and resource limitations of 42 U.S.C. Section 1382. To qualify under either statute, a claimant must show that she is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted (or can be expected to last) for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A).

On appeal to this Court, Ford raises two claims of error with respect to the substance of ALJ Olarsch's decision. First, she argues that the ALJ improperly evaluated the medical evidence. Ford contends that the ALJ failed to give "proper credence" to Ford's complaints concerning her chronic and severe pain, numbness to her extremities, pitting edema, and overall weakness and physical limitations. Pl. Br. at 10. Second, Ford submits that the ALJ erred in failing to properly assess her Residual Function Capacity ("RFT"). Id. at 14. Each will be fully addressed below. I find that the ALJ's opinion is supported by substantial evidence. Accordingly, I will affirm his opinion of February 25, 2010.

A. Legal Framework

1. The Five-Step Sequential Analysis

Under the authority of the Social Security Act, the Social Security Administration ("SSA") has established a five-step evaluation process for determining whether a claimant is entitled to benefits. 20 CFR § 404.1520, 416.920; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999).

Step 1: Determine whether the claimant has engaged in substantial gainful activity since the onset date of the alleged disability. 20 CFR § 404.1520(b), 416.920(b). If not, move to step two.
Step 2: Determine if the claimant's alleged impairment, or combination of impairments, is "severe." Id. § 404.1520(c), 416.920(c). If the claimant has a severe impairment, move to step three.
Step 3: Determine whether the impairment meets or equals the criteria of any impairment found in the Listing of Impairments. 20 CFR Part 404, Subpart P, Appendix 1, Part A. If so, the claimant is automatically eligible to receive benefits; if not, move to step four. Id. § 404.1520(d), 416.920(d).
Step 4: Determine whether, despite any severe impairment, the claimant retains the Residual Functional Capacity ("RFC") to perform past relevant work. Id. § 404. 1520(e)-(f), 416.920(e)-(f). If not, move to step five. Up to this point (steps 1 through 4) the claimant has borne the burden of proof.
Step 5: The burden shifts to the SSA to demonstrate that the claimant, considering his or her age, education, work experience, and RFC, is capable of performing jobs that exist in significant numbers in the national economy. 20 CFR § 404.1520(g), 416.920(g); see Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007). If so, benefits will be denied; if not, they will be awarded.

2. Standard of Review

As to legal issues, this Court's review is plenary. See Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to the factual findings of the Administrative Law Judge ("ALJ"), however, this Court is directed "only to determine whether the administrative record contains substantial evidence supporting the findings." Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). Substantial evidence is "less than a preponderance of the evidence but more than a mere scintilla." Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation omitted). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. ; accord Richardson v. Perales, 402 U.S. 389, 401 (1971).

[I]n evaluating whether substantial evidence supports the ALJ's findings... leniency should be shown in establishing the claimant's disability, and... the Secretary's responsibility to rebut it should be strictly construed. Due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary system prevails.

Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal citations and quotations omitted). When there is substantial evidence to support the ALJ's factual findings, this Court must abide by them. See Jones, 364 F.3d at 503 (citing 42 U.S.C. § 405(g)).

B. The Commissioner's Decision

At Step 1 of the sequential evaluation, ALJ Olarsch found that Plaintiff had not engaged in substantial gainful activity since September 15, 2005, the alleged onset date. R 28. Substantial gainful activity ("SGA") is defined as work activity that is both substantial and gainful. "Substantial work activity" is work activity that involves significant physical or mental activities. 20 CFR 404.1572(a). "Gainful work activity" is work that is usually done for pay or profit, whether or not the profit is realized. 20 CFR 404.1572(b).

At step 2, ALJ Olarsch found that Ford's cardiomyopathy, diabetes mellitus, and obesity were "severe" impairments. R 28.[6] These impairments, he found, resulted in "vocationally significant limitations and have lasted at a severe' level for a continuous period of more than 12 months, " within the meaning of 20 CFR 404.1509 and 416.909.

At step 3, ALJ Olarsch found that Ford did not have an impairment or combination of impairments that met or medically equaled one of the listened impairments in 20 CFR Part 404, Subpart P, Appendix 1. R 28 (citing 20 CFR § 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). The ALJ noted that "no treating or examining physician had mentioned findings equivalent in severity to the criteria of any listed impairment, " nor did any evidence "show signs or findings that are the same or equivalent to those of any listed impairment." Id. In regard to the cardiomyopathy impairment, Olarsch emphasized that Dr. Gaist, the medical expert at the hearing, testified that Ford's record exhibited no objective evidence of cardiomyopathy. Specifically, he found that Ford's cardiomyopathy did not meet the required level of severity for Listing Section 4.02 (Chronic Heart Failure) because the record did not show evidence of the following:

(A)(1) Systolic Failure or (2) Diastolic failure; resulting in (B)(1) persistent symptoms of heart failure which very seriously limit activities of daily living; or (2) Three or more separate episodes of acute congestive heart failure within a consecutive 12-month period; or (3) an inability to perform on an exercise tolerance test at a workload equivalent to 5 METs or less due to: (a) Dyspnea, fatigue, palpitations, or chest discomfort; or (b) Three or more consecutive premature ventricular contractions or increasing frequency of ventricular ectopy; or (c) Decrease of 10 mm HG or more in systolic pressure below the baseline systolic blood pressure or the preceding systolic pressure measured during exercise due to left ventricular dysfunction, despite an increase in workload; or (d) Signs attributable to inadequate cerebral perfusion, such as ataxic gait or mental confusion.

R 29.

He also found that Ford's diabetes mellitus did not meet the required severity for Listing Section 9.08. The ALJ noted that Dr. Gaist found that Ford's record held no evidence of diabetic neuropathy and no evidence of musculoskeletal impairments. Gaist also testified that Ford's physical examination revealed that she had a normal gait. He noted that Ford had a diagnosis of insulin-dependent diabetes, but he did not find evidence of the following:

(A) neuropathy demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements, or gait and station; or (B) acidosis occurring at least on the average of once every 2 months documented by appropriate blood chemical tests; or (C) retinitis proliferans.

R29.

Finally, although Appendix 1 does not include Listing criteria for the evaluation of obesity impairments, the ALJ properly considered Ford's obesity in determining whether her impairments meet or equaled any listing. "Obesity in combination with [other] impairments may or may not increase the severity of functional limitations of other impairments, " pursuant to SSR 02-1(p). R. 29.

At step 4, ALJ Olarsch ruled as to Ford's residual functional capacity ("RFC"). He concluded that she retained the ability to perform the full range of sedentary work, as defined in 20 CFR § 404.1567(a) and § 416.967(a).[7] R 29. In making this determination, the ALJ assessed all of Ford's symptoms and the extent to which these symptoms could reasonably be accepted as consistent with the objective medical and other evidence of her impairments, pursuant to 20 CFR § 404.1529, 416.929 and SSRs 96-4p, 96-7p. The ALJ also evaluated and considered all opinion evidence.

In evaluating the record, the ALJ followed a mandatory two-step process: (1) determining whether there was an underlying medically determinable impairment that could reasonably be expected to produce the claimant's pain or other symptoms and (2) evaluating the intensity, persistence, and limiting effects of these symptoms to determine the extent to which they limit Ford's ability to do basic work activities. The ALJ noted that, to the extent Ford's statements about the intensity, persistence, or functionally limiting effects of the symptoms were unsubstantiated by the objective medical evidence, he was required to make a finding as to the credibility of such statements in the light of the entire record. R. 29-30.

The ALJ found that Ford's medically determinable impairments could reasonably be expected to cause the alleged symptoms to some degree. He concluded, however, that her statements regarding the intensity, persistence, and limiting effects of her symptoms were not credible insofar as they conflicted with his RFC assessment. R 31. Specifically, he found that the RFC determination for sedentary work was supported by the medical expert's testimony that the objective medical evidence did not contain evidence of cardiomyopathy or diabetic neuropathy. Id. Her shortness of breath was most likely due to her obesity. Id. He also based his conclusion on "consistently unremarkable chest x-rays, " "echocardiogram reports and exercise stress tests showing a normal heart size and ejection function, " "physical examination reports showing normal abdominal and neurological testing[, ]" and "the consultative examiner's findings that the claimant had normal eye and heart examinations." Id. He also cited a documented history of "extremely poor medication compliance." Id.

ALJ Olarsch gave little weight to Dr. Darshui Sundram's July 8, 2008 handwritten note which stated that Ford had "severe cardiomyopathy, severe neuropathy" and advised that Ford be placed on permanent disability. R 32 (citing R 327 (Exhibit 7F)). The ALJ found that Dr. Sunderam's opinion as to the severity of the cardiomyopathy and neuropathy was not supported by that doctor's treating notes. Dr. Sunderam's attached EKG results, for example, show that Ford had "a normal sinus rhythm." Dr. Sunderam failed "to delineate specific exertional limitations as a result of cardiomyopathy and neuropathy." R 32 (citing R 327-32 (Exhibit 7F)). The ALJ also explained that Dr. Sunderam's conclusion as to Ford's disability status would not be given significant weight, pursuant to SSR 96-5(p), [8] because disabled status is not a medical issue as such, but a determination reserved to the Commissioner of Social Security. On the other hand, ALJ Olarsch "accorded controlling weight" to Dr. Gerald Galst's testimony during the February 2010 hearing because it was consistent with and well-supported by the record. R-32.

After assessing Ford's RFC, the ALJ found that it would not permit her to perform her past relevant work. Her past work as a human services technician, he found, exceeded her RFC assessment for sedentary work because the past work entailed the use of "heavy strength." R 32. (citing the Dictionary of Occupational Titles, Code 355.674-018).

At step 5, ALJ Olarsch concluded that Ford was "not disabled" within the framework of Medical-Vocational Rule 201.28. R 33. Although Ford could not perform her past work, R 32, there were jobs existing in significant numbers in the national economy that Ford could perform, taking into account her age, education, work experience, and residual functional capacity to perform sedentary work. Id. (citing 20 CFR § 404.1569, 416.969, 416.969). The ALJ considered Ford's age, education, and work experience in accordance with the Medical-Vocational Guidelines. Id. ALJ Olarsch found that a finding of "not disabled" was directed by Medical-Vocational Rule 201.28. Further, based on Ford's age, education, work experience, and RFC, he found that there were jobs that existed in significant numbers in the national economy that Ford could perform. R 32. Accordingly, he found that Ford was not disabled from September 15, 2005 through the date of his decision, February 25, 2010. R 33.

Substantial evidence in the Administrative Record supports ALJ Olarsch's conclusion that Ford was not disabled for the period alleged. The Commissioner's final ruling is therefore affirmed on that basis, and for the reasons set forth below.

C. Ford's Contentions

1. ALJ Olarsch Improperly Evaluated the Medical Evidence

Ford essentially submits that ALJ Olarsch did not apply the correct standards in evaluating the entirety of her record and that the ALJ did not give due credence to her subjective allegations. In particular, she asserts that the ALJ failed to give proper weight to Ford's testimony as to her symptoms. These included chronic and severe pain, numbness to her extremities, pitting edema, weakness and limitation of motion and function, shortness of breath, chronic pulmonary obstructive disorder, fatigue and sleep disorder, and obesity. Pl. Br. at 10. She argues that such testimony as to her inability to work is entitled to significant weight because it is supported by and consistent with the medical evidence.

ALJ Olarsch's findings as to Ford's pain are invalid, according to Ford, because his findings as to Ford's credibility are based on speculation and personal opinion. Such findings, she argues, violate the ALJ's duty to make specific findings if he determines that a claimant's assertions are incredible and do not support a finding of disability. Id. She contends that the ALJ failed to give her assertions of pain serious consideration. Pl. Br. at 12.

Ford cites Smith v. Calfano, in which the Third Circuit found an ALJ's rejection of a claimant's assertions of disabling pain to be unsound. 637 F.2d 968, 972 (3d Cir. 1981). The Third Circuit reasoned that a claimant's assertions regarding pain must be given "serious consideration" even where those assertions are not fully confirmed by objective evidence. Id. (citations omitted). Upon the ALJ's finding that an impairment exists "that could reasonably cause the alleged symptoms exists, he or she must evaluate the intensity and persistence of the pain or symptom, and the extent to which it affects the individual's ability to work." Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). Such an analysis "obviously requires the ALJ to determine the extent to which a claimant is accurately stating the degree of pain or the extent to which he or she is disabled by it." Id. (citing 20 C.F.R. § 404.1529(c)).

I agree with Ford that an ALJ has the authority and responsibility to "analyze all of the evidence in the record and provide adequate explanations for disregarding or rejecting evidence." LaCorte v. Bowen, 678 F.Supp. 80, 83 (D.N.J. 1988) (citing Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981)). An ALJ cannot just bypass evidence contrary to his or her decision. Where the "ALJ concludes that testimony is not credible, the ALJ must indicate the basis for that conclusion in his decision." Id. (citing Cotter, 642 F.2d at 705-06). Subjective complaints merit serious consideration, even when not "fully confirmed by objective medical evidence." Id. (citing Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986)). The ALJ is not required, however, to accept "without question" the subjective complaints of a claimant. Id. (citing Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)). "Allegations of pain and other subjective symptoms must be supported by objective medical evidence." Hartranft, 181 F.3d at 362 (citing 20 C.F.R. § 404.1529). In short, the ALJ cannot simply discount subjective complaints but must evaluate the credibility of a claimant in light of all medical findings and other evidence regarding the extent of the pain alleged and arrive at an independent judgment. See LaCorte, supra .

The ALJ's analysis here conformed to those principles, and was not in error. ALJ Olarsch noted that whenever Ford's statements about the intensity, persistence, or functionally limiting effects of the symptoms are unsubstantiated by the objective medical evidence, he was required to make a finding on the record as to the credibility of the unsubstantiated statements in the light of the entirety of Ford's record. R. 29-30. And he did so. Acknowledging that Ford may experience some of the symptoms she alleged, he found it not credible that such symptoms were disabling. In doing so, he properly (1) considered whether there was an underlying medically determinable impairment that could reasonably be expected to produce the claimant's pain or other symptoms and (2) evaluated the intensity, persistence, and limiting effects of these symptoms to determine the extent to which they limit Ford's ability to do basic work activities.

Ford's subjective claims, summarized by the ALJ as part of his opinion, were as follows. R 30. At the hearing, she testified that her uncontrolled diabetes triggers chest pains in her heart, numbness in her extremities, swelling in her legs, shortness of breath, headaches, blurred vision, and dizziness. R 106-108, 117, 119. She said she could not lift her arm to comb her hair, R 109, that she performs no household chores, and that she engages in no activities whatsoever except for attending church and occasionally accompanying her mother to the grocery store. R 113-15. Moreover, when the ALJ queried her about doctors' reports that she did not take her medication, she did not explain, but simply denied that it was true. R 131.

The ALJ found that the dearth of objective findings corroborating Ford's alleged severity of symptoms undermined her credibility. He found that her statements about the intensity, persistence, and limiting effects of the symptoms were not fully credible "to the extent that they are inconsistent with" his RFC assessment (R 31), which was well-supported by the record. The ALJ clearly stated his reasons for questioning the credibility of Ford's testimony. There is also support in the medical records for the conclusion that Ford's symptoms were not so limiting as to demand a finding of disability. See LaCorte, 678 F.Supp. at 83.

Specifically, in evaluating her symptoms in light of the objective evidence, the ALJ noted the May 2006 hospital discharge report stating that Ford had a soft abdomen, no organomegaly, and no neurological deficits. R 31 (citing R 280-81). He also noted that, during a July 2008 hospital visit, Dr. Roland similarly found that Ford had no organomegaly, no mass effect, and no evidence of diminished sensations. Id. (citing R 319). He further noted that, during the hearing, Dr. Gaist testified that there was no evidence indicating neurological deficits, serious motor weakness, or sensory impairments. Id. (citing R 133). Gaist also testified that her overall renal function was normal and that there was no documentation of significant orthopedic problems. R 133. The ALJ also considered Dr. Patel's consultative exam, which found only slightly diminished sensations in Ford's legs, with normal vision, a normal gait, normal breathing, a normal heart, and normal grip strength. R 31 (citing R 266-67).

In sum, ALJ Olarsch's conclusion is supported by substantial evidence. It is not true that he completely disregarded Ford's subjective complaints. To the contrary, he considered them and thoroughly explained his reasoning for finding her allegations incredible to the extent that they were inconsistent with his overall analysis of the record. He did accept her complaints to the extent that he concluded she was unable to do more than unskilled, sedentary work; he did not simply bypass or disregard her testimony.

Finally, Ford argues that the ALJ failed to determine a reason for Ford's non-compliance with her medications. Non-compliance, of course, may have many explanations, including insufficient funds or lack of insurance. Ford submits that the ALJ's failure to determine why Ford did not take her medications requires a remand. The ALJ, she contends, "may not assail plaintiff's credibility by finding that plaintiff did not take her medication without learning the reason for such failure. No doctor has noted in the record that if plaintiff took her medication as prescribed, it could restore plaintiff's ability to work." Reply Br. at 2.

The regulation that Ford cites, 20 CFR § 930, provides that a claimant must follow prescribed treatments if the treatment can restore a claimant's ability to work. If a claimant fails to follow a prescribed regimen without a good reason, a claimant will not be found to be disabled. The regulation also provides a non-exhaustive list of examples of "good" reasons not to follow treatment: for example, the treatment is contrary to one's religious beliefs; it involves cataract surgery for one eye when the other eye is already impaired; a surgery was previously done for the same impairment without success; the treatment is particularly risky; or the treatment involves amputation. Id.

It is true that ALJ Olarsch noted a history of non-compliance. It does not appear, however, that he disqualified her from a finding of disability on the basis that her problems stemmed from an unexcused non-compliance with a treatment regimen. To that extent, I find that Ford's argument based on 20 CFR § 930, however valid, does not apply in the context of the facts of her case.

Ford, however, makes a more limited argument based on the use of non compliance to assess her credibility. It has been held that, in making credibility determinations, an ALJ must comply with the directive of SSR 96-7p:

[A claimant's] statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints, or if the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure. However, the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment.

SSR 96-7p; see also Fahy v. Astrue, CIV.A.06-CV-366, 2008 WL 2550594, at *7 (E.D. Pa. June 26, 2008).

I find that the ALJ substantially complied with this regulatory directive. To begin with, he was indisputably aware of it: the ALJ cited to SSR 96-7p in his opinion and stated that he was following it. R 29. Just as clearly, the ALJ took note of Ford's "documented history noting the claimant's extremely poor medication compliance, " and did not explicitly address any reason or excuse Ford may have had for Ford's non-compliance. R 31. The explanation for the ALJ's treatment of the issue, however, is readily apparent. The ALJ twice asked Ford during the hearing about her doctor's statements that she did not comply with her medication regimen. She did not offer an explanation; she simply denied that she had failed to comply. R 131. Thus, though given the opportunity, Ford did not proffer any explanation for the ALJ to consider. In light of his client's testimony, counsel's argument boils down to an incoherent one: that Ford (a) faithfully took her medication, and (b) had a very good excuse for failing to take her medication.[9]

Accordingly, I will not remand for failure to comply with SSR 96-7p.

2. ALJ Olarsch Failed to Properly Assess Ford's Residual Functional Capacity

a. Consideration of the Medical Opinions of Record

Ford argues that the ALJ's assessment of Ford's RFC was erroneous because he neglected to consider all of the medical evidence and opinions in the Ford record. According to Ford, the ALJ relied solely on the opinion of Dr. Galst, the non-examining medical expert who testified at the February hearing, an opinion that was not supported by substantial evidence. Pl. Br. at 14. Moreover, she contends that the ALJ erred in rejecting Dr. Sunderam's opinion because the rest of the medical records fully support it.

Dr. Gaist testified that he reviewed Ford's entire medical record. R 129-30. Medical opinions are properly considered together with the rest of the relevant evidence in the record. 20 CFR 404.1520b. Social Security regulations permit an ALJ to ask for and consider opinions from medical experts on the nature and the severity of alleged impairments and whether an impairment equals the requirements listed in 20 CFR Part 404, Subpart P, Appendix 1, Part A (Listing of Impairments). See 20 CFR § 404. 1527(f)(iii), 416.927(f)(iii) (explaining the review and consideration of nonexamining sources).[10]

Of course it is black-letter law that opinions from treating sources are generally given more weight, and indeed are given controlling weight. That principle applies, however, only if the ALJ finds that a treating source's opinion on the nature and severity of the claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record. 20 CFR 404. 1527(c)(2). When that is not the case, an ALJ may give a nonexamining source's expert medical opinion greater weight than the opinion of a treating source. Alexander v. Shalala, 927 F.Supp. 785, 795 (D.N.J. 1995) (citation omitted) (explaining that, pursuant to 20 CFR Section 404.1527(1) and 416.927(1), "the opinions of non-examining physicians may override a treating source's opinions provided that the former are supported by evidence in the record"), aff'd, Alexander v. Comm'r of Soc. Sec., 85 F.3d 611 (3d Cir. 1996). Where a treating physician's opinion conflicts with that of a non-treating, nonexamining physician, as the ALJ found to be the case here, the "ALJ may choose whom to credit but cannot reject evidence for no reason or for the wrong reason.'" Schwartz v. Halter, 134 F.Supp.2d 640, 651 (E.D. Pa. 2001) (quoting Plummer, 186 F.3d at 429). I do not find that the ALJ violated any of these principles as to the weight he accorded the medical opinion evidence.

Ford argues that ALJ Olarsch completely rejected the opinion of Dr. Sunderam, the treating physician, Pl. Br. at 14, but that does not appear to be the case. The ALJ assessed all of the evidence presented, including that of Ford's treating physician. Most to the point, he carefully considered Dr. Sunderam's July 8, 2008 note, which stated that Ford suffered from severe cardiomyopathy and severe neuropathy and advised that Ford be placed on permanent disability. R 271, 327. The ALJ explicitly cited and considered this note as part of his overall analysis. R 32. Based on the totality of the evidence of record, however, he found that Dr. Sunderam's statements that Ford's cardiomyopathy and neuropathy were not substantiated by the record and were, therefore, not accorded significant weight. Id. Most pertinently, the ALJ found that this disability note did not match the doctor's treatment notes.

A severe impairment must be established by medical evidence consisting of more than a claimant's alleged symptoms. See 20 CFR § 404.1508 ("A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms"); 404.158 (defining symptoms, signs, and laboratory findings). In reviewing the record, the ALJ did not find objective findings of cardiomyopathy. When asked at the hearing, Ford's then-attorney acknowledged that there was "no real objective evidence" of cardiomyopathy and that the case "really rest[ed] on the uncontrollable diabetes...." R 127.

Upon review of the entire record, Dr. Gaist found no objective evidence of heart failure, although he did note that Ford had some elevated blood pressure readings. R 133. He noted that there were no neurological studies or EKG studies to confirm a diagnosis of diabetic neuropathy. Id. The ALJ's reliance of Dr. Galst's opinion is consistent with substantial evidence in the record. A month before the hearing, an EKG showed normal left ventricular function, a normal ejection fraction, and no sign of heart failure. R. 455 (Exhibit 16-F). Several chest x-rays showed that Ford had a normal-sized heart. R 267, 340. Attached to Dr. Sunderam's handwritten July 2008 note were EKG results showing a "normal" EKG and normal sinus rhythm. R 332. A June 24, 2008 physical consultative evaluation conducted by Dr. Rhambai Patel found that Ford had normal breathing sounds, a regular sinus rhythm without murmur or gallop, and a normal-sized heart. R 267. Dr. Roland's July 16, 2008 physical examination report stated that, while Ford has a 2/6 systolic murmur, she had a regular heart beat rate and rhythm without extra systoles or gallops R 325. A July 15, 2008 diagnostic imaging report noted that chest x-ray showed Ford's heart to be normal and did not show any congestion or effusion. R 356. Similarly, a November 6, 2009 chest x-ray report noted that Ford's heart size was within normal limits. R 440. Finally, a July 14, 2010 exercise stress test report stated that Ford had an exercise capacity of 7 METs and produced normal EKG findings. Ford's results from this test showed an ejection fraction of 57%. R 444-57.

The case should not be overstated. The record is not without indications of a heart condition. Ford points to several results indicating a diagnosis of a heart condition and uncontrolled diabetes. The record evidences EKG abnormalities, see, R 207, 269, 442-43, and a documented medical history of cardiomyopathy in Ford's various hospital records, see R 329, 324. Her uncontrolled diabetes has also been documented. She has also been prescribed medications often used to treat heart conditions and to control her diabetes. Ford also points to evidence of diabetic neuritis. Dr. Patel did note that the possibility of diabetic neuritis could not be ruled out, R. 267, but there is no evidence of any diagnostic testing documenting this neurological condition. See R. 132-33. Without more, it would be merely speculative for the ALJ to conclude that Ford suffers from diabetic neuropathy. It must also be noted that, while hospitalized several times, Ford was never admitted due to any heart-related condition.

Under the "substantial evidence" standard of review, I cannot reverse merely because there is some evidence that is in apparent conflict with the evidence that supports the ALJ's conclusion. The weighing of evidence is primarily a function for the ALJ. "In determining whether a claimant is entitled to benefits under the Act, the Secretary has an obligation to weigh the medical evidence and make choices between conflicting medical evidence." Williams v. Sullivan, 970 F.2d 1178, 1187 (3d Cir. 1992). I therefore must affirm if the ALJ's ruling is supported by substantial evidence, which is "less than a preponderance of the evidence but more than a mere scintilla." Jones, 364 F.3d at 503 (citation omitted).

Having given due weight to Dr. Sunderam's observations, the ALJ was entitled to, and did, find that this evidence was outweighed by the other evidence on record. The ALJ stated a valid basis for not giving controlling weight to the opinion of Dr. Sunderam. R 32. The ALJ found that Dr. Sunderam's opinion as to the severity of Ford's impairments was not supported by the doctor's own treating notes, the attached EKG results showing normal sinus rhythms, and the entire case record. It cannot fairly be said that the ALJ simply disregarded Dr. Sunderam's opinion; rather, the ALJ reasonably placed this opinion in the context of the other evidence on record. His conclusion was supported by the medical expert's testimony that Ford's record did not hold evidence of severe cardiomyopathy or diabetic neuropathy. He also based his conclusion on evidence of "consistently unremarkable chest x-rays, " "echocardiogram reports and exercise stress tests showing a normal heart size and ejection function, " "physical examination reports showing normal abdominal and neurological testing[, ]" and "the consultative examiner's findings that the claimant had normal eye and heart examinations." R 31.

The ALJ also correctly noted that the determination of whether a claimant meets the statutory definition of "disabled" is an issue reserved for the ALJ, not a physician, pursuant to SSR 96-5(p). The ALJ therefore acted correctly in not giving significant weight to Dr. Sunderam's opinion that Ford should be placed on permanent disability. R 32; see 20 CFR § 404.1527(e), 416.927; Schwartz, 134 F.Supp.2d at 650 ("Opinions on issues reserved to the Commissioner, such as an opinion that the claimant is disabled, are not medical opinions, however, and thus are not entitled to controlling weight.").

In sum, ALJ Olarsch carefully reviewed the entirety of Ford's records before weighing the various medical opinions in this case. His findings are supported by substantial evidence.

b. Ford's RFC for Sedentary Work

Ford submits that the ALJ, in determining that she was capable of sedentary work, failed to consider 20 CFR § 404.1567, which defines sedentary work. ( See n.4, supra. )[11] That definition is amplified by SSR 96-9p, which provides:

An individual may need to alternate the required sitting of sedentary work by standing (and, possibly, walking) periodically. Where this need cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be eroded. The extent of the erosion will depend on the facts in the case record, such as the frequency of the need to alternate sitting and standing and the length of time needed to stand. The RFC assessment must be specific as to the frequency of the individual's need to alternate sitting and standing. It may be especially useful in these situations to consult a vocational resource in order to determine whether the individual is able to make an adjustment to other work.

SSR 96-9p. Ford essentially argues that she is not capable of sedentary work because she cannot sit for the required amount of time, and cannot stand for any prolonged period of time.

An RFC determination is an assessment of what a claimant can do despite her limitations, based on all relevant evidence on record. 20 CFR § 404.1545(a), 416.945(a). This assessment must consider a claimant's subjective statements as well as medical opinion statements. Id. All medical evidence and medical source opinions must be considered, but the final responsibility for determining a claimant's RFC rests with the ALJ. See 20 CFR § 404.1546. As discussed above, see Part II.C.2.a, the ALJ had the authority and obligation to consider and weigh the opinion evidence in the record. He was required to consider the entirety of the case file and determine Ford's RFC. He did so, and his rulings are based on substantial evidence.

Ford also objects to the ALJ's RFC analysis in light of her morbid obesity. She concedes that the ALJ made mention of her obesity and of SSR 02-1p (dictating the treatment of obesity in the overall sequential analysis). She argues that he nevertheless failed to assess her obesity's effect on her other impairments and on her RFC. This alleged oversight, Ford argues, requires a remand. See 20 CFR § 404.1546, 404.1527, 416.946.

Ford's argument does not square with the record. In his decision, ALJ Olarsch found Ford's obesity to be a severe impairment and specifically noted Ford's history of morbid obesity. R 31. He noted a letter from Ford's counsel explaining that between March 2005 and December 2009, Ford's weight fluctuated between 233 and 307 pounds (she is 5'1"). R 31. He also attributed her shortness of breath due to her obesity. The ALJ, however, relied on the opinion of Dr. Galst, who opined that Ford could nevertheless do sedentary work. R. 30. Therefore, I do not find that the ALJ ran afoul of SSR 02-1p, which requires that an ALJ consider obesity at various points in the five-step analysis.

It is not for me to determine whether I would have weighed the evidence differently. On appeal, my role is to determine whether the ALJ's conclusions are based on substantial evidence, constituting "less than a preponderance of the evidence but more than a mere scintilla." Jones, 364 F.3d at 503 (citation omitted). There exists in this record "such relevant evidence as a reasonable mind might accept as adequate to support" the ALJ's conclusion. Id. Where, as is the case here, there is substantial evidence to support the ALJ's factual findings, this Court must abide by them. See Id. (citing 42 U.S.C. § 405(g)). Accordingly, the ALJ's ruling is affirmed.

III. CONCLUSION

Ford's claims of error based on the evidence adduced and evaluated at the hearing before the ALJ fail to show that the ALJ erred as a matter of law or that his decision was not supported by substantial evidence. The denial of Newman's DIB and SSI application of February 2007 is therefore AFFIRMED.

An Order will be entered in accordance with this Opinion.


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