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Scudder v. Commissioner of Social Security

United States District Court, D. New Jersey

April 10, 2014



KEVIN McNULTY, District Judge.

Verlie Scudder brings this action pursuant to 42 U.S.C. ยง 405(g) to review a final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Social Security Disability Insurance benefits ("SSDI"). Ms. Scudder asserts that the decision was not based on substantial evidence and that the Commissioner erred as a matter of law. For the reasons set forth below, the Commissioner's final decision is AFFIRMED.


Plaintiff, Verlie Scudder, filed an application for SSDI on April 29, 2008. P1. Br. (Docket No. 10) at 3; Record of Proceedings ("R __") (Docket No. 9) at 11. Scudder's claim was denied initially on October 9, 2008, and again on reconsideration on November 19, 2008. R 11. Scudder and her attorney appeared before Administrative Law Judge ("ALJ") Joel H. Friedman on March 4, 2010, in Newark, New Jersey. Id. The AU denied Scudder's application in a decision dated February 23, 2011. R 8. Scudder appealed the decision to the Appeals Council on March 31, 2011. R 6. The Appeals Council denied her request for review on September 29, 2011, thus making the AU's decision the "final decision" of the Commissioner. Id at 1-3.

A. Plaintiff's Testimony and Non-Medical Evidence

Scudder filed an application for SSDI on April 29, 2009, claiming that she had been disabled since January 27, 2007. R 23, 146. She was 46 Years old at the alleged onset date. R 14, 25, 146. The basis for Scudder's claim was a combination of osteoporosis of the back, back problems, and a torn rotator cuff.[1] R 23, 25-26.

1. Testimony from Plaintiff

At her March 4, 2010 hearing, Scudder testified that she lived in an apartment in Paterson, New Jersey. R 27. She did not drive because she had lost her license as a result of failing to pay tickets. Id. [2] Scudder's apartment was on the second floor of her building, which did not have an elevator. R 28. She had difficulty using the stairs and would sometimes have to stop midway to rest. Id. She reported in a SSA Function Report that she prepared her own meals a few times a week, but that someone else had to prepare them when she was not able to do so. R 160. She also reported she did a "little" cleaning and ironing, but did not receive any assistance with those tasks. Id. At the hearing, however, she stated that she was not able to do any housework. R 37.

Scudder attended high school through the tenth grade. R 28, 144. She did not receive a GED. Id. She attended Passaic County Community college to obtain a Certified Nursing Assistant license and was certified in 1994.[3] R 28-29. At the time of her application, she received general assistance through welfare and Medicaid. R 30.

Scudder last worked on January 27, 2007. R 30. Her most recent job was as a full-time cashier at a Pathmark supermarket from 2001-2007. R 33, 140. Before that, she worked at a White Castle restaurant as a cashier/cook (2000-2001); as a factory packer (1998); as a cafeteria monitor (1995); and as a certified nurse's aide ("CNA") (1992-1994). R 33, 140. At both White Castle and Pathmark, Scudder was required to lift bags weighing about 20 pounds. R 33, 35, 141, 152. She stopped working after she hurt her back lifting a bag of charcoal at Pathmark. R 33.

Scudder testified that she could not work because her "left side" was "completely numb." R 29. She had been in physical therapy for two years and attested that her physical therapist told her that her left side was "dead." Id. She stated that she could not stand or sit for long because her back bothered her and she had to sit down. Id. She described her back pain as severe, and said that on some days she could not get out of bed because of the pain. Id. She testified that her doctors said the pain was from osteoporosis and lower lumbar sprain. Id. Her last physical therapy appointment was at St. Joseph's Hospital in June 2009 (about ten months before the hearing).

Scudder testified that she had no feeling in her left hand, and that her right hand did not operate at its "full capacity." R 37. After walking about a block, she testified, she would get a shooting pain in her spine and would have to stop for about twenty minutes. R 38. After standing or sitting for more than thirty minutes her back would also get stiff and she would need to stretch. R 39. She stated that she could probably lift about ten pounds. Id. She did not use a cane, crutches, walker, or other walking aid. R 164.

At the hearing, she stated that she took several medications: Ultrams (a brand name for tramadol, a pain medication) twice a day, and Ibuprofen every six hours. R 30. She also stated that she took Percocet when the other medication was not working, about every other day. In addition, she said she took Norvasc for blood pressure and Zantac for gallstones and ulcers, as well as a multivitamin. Id. R 31. In her disability report, Scudder stated that she was taking two prescription medications: Fosamax D for osteoporosis and Tramadol for pain. R 143.

Scudder stated that on a typical day, she would "sit around and watch TV" because she needed assistance from her daughter to get dressed, do her hair, and cook. R 36. In addition to watching TV, she liked to do puzzle books and latch hook (a knitting-like activity). R 36, 161. She stated that she could only do latch hook for about a half-hour at a time because her back would get stiff and her fingers would cramp up. Id. In the past, she enjoyed biking and walking, but testified that she was no longer able to do those activities. R 38.

2. Testimony from Vocational Rehabilitation Counselor

The AI., J heard expert testimony from Pat Green, a vocational rehabilitation counselor. R 43. Scudder's counsel did not object to Green's testimony. R 44-45. See also Green Resume (Exh. 8B) R 116.

Green classified the work Scudder had performed over the last fifteen years. Her work as a fast food worker was classified as SVP 2, skilled at a light level. R 47. Her work as a cashier was classified as SVP 2, unskilled at a light level. Her work as a CNA was outside the scope of Green's review, but Green stated that it would have been classified as medium level. Id.

Green also testified about available jobs in the region-defined as New Jersey, New York, and Connecticut.[4] Id. Green testified that someone with Scudder's impairment-described by the ALO as mild reduction in range of motion and sensation but normal grip and pinch in her non-dominant hand- could continue to do her past work. R 48-49.

The ALJ posed several hypothetical questions to Green. He asked whether the past relevant work could still be done if the claimant also had problems reaching overhead with her left arm and had some left shoulder problems so that she could only lift or reach overhead occasionally with that arm. Green responded that the claimant could still do the past relevant work with that impairment. R 50. Green also stated that someone with that impairment could perform sedentary jobs, such as an addresser, ticket checker, or sorter. Id. In the regional economy, Green stated, there were available approximately 1, 600 jobs as an addresser, 5, 500 as a ticket checker, and 1, 600 as a sorter. R 50-51.

The ALJ then asked Green whether someone could still do those jobs if her pain or medication side effects caused difficulty maintaining concentration, persistence, and pace on a simple, routine job. R 51. Green stated that neither the past relevant work nor the sedentary jobs could be done with those impairments. Id. The claimant would also not be able to do her past relevant work if she could only sit or stand for thirty minutes at a time. She could, however, do sedentary work if she were permitted to get up and stretch. R 51-52. She could also do other light level jobs such as hand packager (3, 000 jobs in region); ticket seller (4, 000 jobs in region); or garment sorter (3, 000 jobs in region). R 51-53. If the claimant had to frequently get up from her work station and walk away, however, she would be unable to perform such sedentary work. R 52. She also could not perform any of those jobs if she had to lie down or stop working after thirty minutes. R 54.

In response to questions from Scudder's attorney, Green testified that if Scudder's impairment caused her to miss more than four days per month, she would not be able to do any of the jobs listed previously. R 55. She would not be able to do any of those jobs if she needed to break for twenty to thirty minutes every one to two hours, or if she could sit for only four hours in an eight hour day. R 55-56. The AI., J interjected to ask whether any of the jobs could be performed if the claimant could sit for four hours and stand for the other four hours. R 57. Green testified that she would be able to do "light" jobs under those circumstances. Id.

B. Medical Evidence

1. Records from St. Joseph's Regional Medical Center (Emergency and Outpatient)

On January 16, 2007, Scudder had a Dual-Energy X-Ray Absorptiometry ("DEXA") bone density test at St. Joseph's Regional Medical Center. R 222 (reviewed by Patrick Conte, M.D.). The test showed that Scudder had a total Tscore of -3.6 for her lumbar spine, which is consistent with "marked osteoporosis and high risk of fracture." R 223. Her T-score for the left hip was 1.7, consistent with "moderate osteopenia and increased risk of fracture." Id.

Scudder returned to St. Joseph's for a CT of her lumbar spine on November 9, 2007. R 215, 238 (reviewed by Madelyn Danoff, M.D.). The CT showed that her vertebral body heights were intact. There were "mild broadbased" disc bulges at L4-5 and L5-S1. There was no evidence of disc herniation. Id. Scudder had two MRIs of her cervical spine. The first, on March 24, 2008, showed no gross evidence of acute fracture or dislocation. R 212 (reviewed by Pilar M. Prabhu, M.D.) Scudder's vertebral heights were grossly maintained. There were "mild" degenerative changes at C6-C7. Id. She then received another MRI of her back on May 2, 2008. R 230 (reviewed by Bhanu Aluri, M.D.). That MRI showed hemangioma within her T1 vertabral body; additional focus of abnormal signal intensity within the C6 vertebral body suggestive of an atypical hemangioma; mild anterior subluxation of C4 on C5; no focal disc herniation, central canal, later recess or neural foraminal stenosis; and abnormal signal intensity within both thyroid lobes needing further evaluation with a thyroid ultrasound. R 230.

On March 20, 2008, Scudder went to the emergency room of St. Joseph's for shoulder pain. R 183. She was seen by Dr. Nader Boulos, M.S., and diagnosed with tendinitis of the biceps in her rotator cuff. Id. Her exam revealed no fracture, dislocation or subluxation. R 187. An MRI of Scudder's left shoulder showed no fracture, dislocation or subluxation. R 213, 236 (reviewed by Matthew P. Forte, M.D.). She was given a prescription of Percocet and instructed to take it every 4-6 hours as needed for pain. Scudder was instructed to follow up with her physician within three to four days. R 186. Scudder received a second shoulder MRI on April 8, 2008. R 235 (reviewed by Edward Milman, M.D.). That MRI showed tendinopathy of the supraspinatus with a "small bursal surface tear" measuring 2 mm in thickness and about 3 mm in depth. Id. There was no evidence of a full thickness tear and no muscle denervation. Id.

The record also contains a report for the period April 9, 2009, to May 4, 2009, of physical therapy for her lower back pain and right shoulder pain. R 282-287. That report indicated that Scudder's progress was "good." Id. Treatment interventions included modalities, manual therapy, ROM joint therapy, Progressive Resistive Exercises ("PRE's"), home exercise program, and posture/body mechanics. R 282. The report rated her functional status for a variety of daily tasks on a scale from zero (unable) to four (normal). Those tasks included dressing, bathing, grooming, overhead reaching, pushing and pulling, lifting, ambulation, stairs, and sleeping for more than ...

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