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Craig v. Comm'r of Soc. Sec.

United States District Court, D. New Jersey

November 21, 2014

DONALD G. CRAIG, III, Plaintiff,

For Donald G. Craig, III, Plaintiff: Philip Wolf, Esq., WOLF & BROWN, LLC, Haddonfield, NJ.

For Commissioner of Social Security, Defendant: Sixtina Fernandez, Esq., Special Assistant U.S. Attorney, Paul J. Fishman, UNITED STATES ATTORNEY, Social Security Administration, Office of the General Counsel, New York, NY.


HONORABLE JEROME B. SIMANDLE, Chief United States District Judge.


This matter comes before the Court pursuant to 42 U.S.C. § § 405(g) and 1383(c) for review of the final decision of the Commissioner of the Social Security Administration, denying Plaintiff Donald G. Craig, III's application for Disability Insurance Benefits under Title II of the Social Security Act (the " Act") and Supplemental Security Income under Title XVI of the Act.

In a written decision, Administrative Law Judge Frederick Timm (" ALJ") determined that Plaintiff, who suffers from chronic back pain and depression, was not disabled under the Act. Plaintiff challenges the ALJ's decisions at steps two and four of the required five-step analysis. The principal issues to be determined are (1) whether substantial evidence supports the ALJ's determination of Plaintiff's residual functional capacity, and (2) whether the ALJ erred at step two of the sequential process by failing to include a more comprehensive list of impairments that qualify as " severe." Plaintiff primarily argues that the ALJ failed to properly weigh the evidence and discuss certain probative medical records when determining Plaintiff's residual functional capacity.

For the reasons discussed below, the Court will affirm the ALJ's ruling.


A. Procedural history

Plaintiff filed an application for Disability Insurance Benefits (" DIB") and Supplemental Security Income (" SSI") on December 29, 2009. The Commissioner denied both claims initially on March 23, 2010, and upon reconsideration on November 3, 2010. (R. at 124, 140.) On December 30, 2010, Plaintiff filed a written request for a hearing. (R. at 145.) Accordingly, the ALJ held a hearing on July 15, 2011, during which Plaintiff testified and was represented by counsel. (R. at 26, 34-78, 131.) In addition, Louis P. Szollosy, a certified rehabilitation counselor, testified in his capacity as an impartial vocational expert. (R. at 78-104.) In a written opinion issued September 9, 2011, the ALJ held that Plaintiff was not disabled within the meaning of the Act and denied his application for Social Security benefits. (R. at 7, 10-20.) On May 28, 2013, the Appeals Council denied Plaintiff's request for review. (R. at 1.) Plaintiff timely filed this action, which the Commissioner opposes.

B. Facts

Plaintiff is a veteran who served as a post office clerk in the Marine Corps. (R. at 317.) He alleges disability since February 25, 2009, due to physical limitations caused by chronic back pain, as well as psychological limitations caused by depression and anxiety. The record in this case is voluminous and contains medical evidence from various sources as well as testimony from Plaintiff. The Court notes the relevance of the following medical and observational evidence.

1. Medical evidence

a. Physical limitations

Plaintiff suffers from persistent hip, neck, and lower back pain. To treat this pain, in 2006, his family physician referred him to Dr. Bruce Hairston, a board certified physiatrist. (R. at 437.) After performing several tests of basic movement, Dr. Hairston noted that Plaintiff experienced pain upon motion of his right hip, as well as tenderness in several muscles of his hip region. (R. at 436.) Dr. Hairston ordered a MRI, which revealed a disk protrusion and spondylolisthesis in Plaintiff's lower back. (R. at 434.) Despite these conditions, Plaintiff had normal strength and coordination through his lower limbs. (Id.) Dr. Hairston treated Plaintiff's conditions with trigger point injections, and noted that Plaintiff reported " 80% to 90% relief" from the injections. (R. at 398). Dr. Hairston prescribed Plaintiff medications, including Percocet and Oxycontin, and continued to treat Plaintiff through May 11, 2010. (R. 394-437.) Plaintiff also received treatment for his back pain at the VA Medical Center (" VAMC") in Wilmington, Delaware. The Department of Veterans Affairs deemed Plaintiff to have a 40% aggregate disability caused by several ailments, including tinnitus and various knee problems. (R. at 544, 547.) Further, the VAMC's pain management coordinator diagnosed Plaintiff with degenerative disc disease with stenosis. (R. at 765.) Progress notes from the VAMC show a record of ongoing evaluation and treatment as Plaintiff's pain would intermittently exacerbate and recede.

In 2008, Dr. Andrew Glass, a neurosurgeon, performed a physical examination on Plaintiff. (R. at 346-47.) Dr. Glass recommended that Plaintiff have another MRI and follow-up with his office. (R. at 347.) There is no indication in the record, however, that Plaintiff followed up with Dr. Glass. Further, there is no indication in the record that Dr. Glass provided any medical opinion as to Plaintiff's residual functional capacity or ability to work.

In 2009, Dr. Riva Ponnappan, an orthopedic surgeon, examined Plaintiff and diagnosed him with degenerative disc disease, stenosis, and isthmic spondylothesis. (R. at 392.) In addition to diagnosing Plaintiff, Dr. Ponnappan offered to perform corrective surgery to alleviate Plaintiff's back problems. (R. at 390-92.) Dr. Ponnappan's records show that during a July 30, 2009 follow-up visit, Plaintiff indicated that he felt surgery might be the best option for treating his back pain. (R. at 390.)

On March 9, 2010, state agency medical consultant Dr. Zwi Kahanowicz evaluated Plaintiff's residual functional capacity regarding his physical limitations. Dr. Kahanowicz determined that, in an eight-hour workday, Plaintiff could sit about six hours, stand/walk about six hours, and lift/carry twenty pounds occasionally and ten pounds frequently. (R. at 598.) Dr. Kahanowicz also concluded that Plaintiff could frequently climb ramps and stairs, balance, stoop and kneel, and could occasionally climb ladders, ropes and scaffolds. (R. at 600.) On August 18, 2010, another state agency consultant and orthopedic specialist, Dr. A. M. Pirone, reviewed the record and agreed with Dr. Kahanowicz's opinion regarding Plaintiff's residual functional capacity. (R. at 727.)

b. Psychological limitations

In addition to his physical limitations, Plaintiff suffers from depression and related psychological issues. He has received treatment from several psychiatric professionals at the VAMC.

Dr. Jane Chamberlain, a board certified psychiatrist, diagnosed Plaintiff with dysthymia and cannabis dependence and prescribed medications including Wellbutrin. (R. at 563.) Dr. Chamberlain's notes indicate that Plaintiff exhibited symptoms of " chronic depression, chronic anxiety, panic, social phobia, poor impulse control, sleeping too much (10hrs) etc." (R. at 567.) The same notes also reflect that Plaintiff stated he was " bright, learns quickly and can do anything [he puts his] mind to." (Id.) (internal citations omitted).

Ms. Melonie Boileau, a psychiatric social worker, provided Plaintiff with psychotherapy beginning in October, 2009. Ms. Boileau categorized Plaintiff's psychological conditions as " impulse control/anger mgt issues, marijuana abuse and employment issues." (R. at 574.) Her notes reflect comprehensive discussions with Plaintiff about his personal life, employment situation, social difficulties, and mental wellbeing. (See, e.g., R. at 569, 575.)

Another psychiatric social worker, Ms. Jamie Kazmarck, also treated Plaintiff with supportive psychotherapy. Ms. Kazmarck's progress notes reflect several discussions with Plaintiff about job prospects and possibly pursuing a bachelor's degree in business. (R. at 689.) Notably, Ms. Kazmarck evaluated Plaintiff's residual functional capacity and rated as " poor" his ability to interact with supervisors and deal with work stresses. (R. at 827-28.) Additionally, Ms. Kazmarck rated as " fair" Plaintiff's ability to follow work rules, use judgment, function independently, maintain attention and concentration, and behave in an emotionally stable manner. (Id.) Ms. Kazmarck rated as " good" Plaintiff's ability to understand, remember and carry out complex or detailed job instructions, relate to coworkers, deal with the public, and demonstrate reliability. (Id.)

On March 19, 2010, Dr. Wayne Tillman, a psychologist and state agency medical consultant, reviewed the record at the request of the administration and evaluated Plaintiff's residual functional capacity regarding psychological limitations. Dr. Tillman concluded that Plaintiff has some moderate restrictions with regards to sustained concentration and persistence, social interaction, and adaptation. (R. at 620-21.) Despite these restrictions, Dr. Tillman concluded that Plaintiff is able to understand and execute simple instructions and can adapt in work-like settings. (R. at 622.) On October 21, 2010, another state agency consultant, Dr. Herman Huber, reviewed the record and seconded this opinion. (R. at 728.)

2. Plaintiff's testimony

At the administrative hearing, Plaintiff testified that he left his job at the post office because the lifting requirements were too demanding and he was physically unable to keep up. (R. at 35.) Plaintiff testified to experiencing frequent lower back pain and numbness down his right leg. (R. at 44.) Plaintiff testified that these conditions prevent him from sitting, standing, or walking for prolonged periods of time. (Id.) Further, Plaintiff attested to suffering from depression as a result of his physical condition, stating that he has become socially withdrawn and has lost all his friends. (R. at 51-54.) With regards to daily living, Plaintiff testified that he is limited to watching television, performing light housework, and cooking with assistance from his mother and social worker. (R. at 57.)

Plaintiff's work history includes positions as a post office clerk, an administrative clerk, a swimming pool service technician, a security officer, and as a surveillance system monitor. These positions require varying levels of skill and physical exertion as performed in the national economy, ranging from unskilled and sedentary to semi-skilled and medium requisite exertion. At the hearing, Plaintiff acknowledged a history of substance abuse and admitted to smoking marijuana once or twice per month. (R. at 56.)

C. Legal framework

For purposes of determining a plaintiff's entitlement to benefits, the Act defines a " disability" as the 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." 42 U.S.C. § 1382c(a)(3)(A); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). A claimant is considered unable to engage in any substantial gainful activity " only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . ." 42 U.S.C. § 1382c(a)(3)(B).

The disability determination is comprised of five sequential steps:

In step one, the Commissioner must determine whether the claimant is currently engaging in substantial gainful activity . . . . If a claimant is found to be engaged in substantial activity, the disability claim will be denied . . . .
In step two, the Commissioner must determine whether the claimant is suffering from a severe impairment . . . . If the claimant fails to show that her impairments are " severe", she ...

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