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Rubinson v. Commissioner of Social Security

United States District Court, D. New Jersey

March 25, 2015


Page 387

For Plaintiff: Richard L. Frankel, Esq., BROSS & FRANKEL, P.A., Cherry Hill, N.J.

For Defendant: Stephen P. Conte, Special Assistant U.S. Attorney, Paul J. Fishman, UNITED STATES ATTORNEY, Social Security Administration, Office of the General Counsel, New York, N.Y.


Page 388

JEROME B. SIMANDLE, Chief United State District Judge.


In this action, Plaintiff Victor M. Rubinson (hereinafter, " Plaintiff" ), a college educated male with a significant history of employment as a self-employed manager/landlord of rental properties, seeks review pursuant to 42 U.S.C. § 405(g) of the Commissioner of the Social Security Administration's (hereinafter, " Defendant" ) denial of his application for disability benefits pursuant to Title II of the Social Security Act, 42 U.S.C. § § 401-434.

Mr. Rubinson claims he is disabled from progressive shortness of breath due to a paralyzed hemidiaphragm and/or phrenic nerve damage.[1] On May 11, 2011, the Administrative Law Judge (hereinafter, the " ALJ" ) issued a eight page written decision denying Plaintiff, who suffers Social Security benefits for the period beginning June 1, 2005, the alleged onset date of disability, to May 11, 2011. (See R. at 16-23.) Plaintiff owns and manages multiple rental properties in the Camden County area. The ALJ found, under the " three prong test" that governs whether a self-employed individual's activities constitute substantial gainful activity (hereinafter,

Page 389

" SGA" ), that Plaintiff provided " 'significant services'" to the management and supervision of his real estate properties and in return received " 'substantial income.'" (R. at 20-22.) The ALJ, accordingly, concluded at step one of the five-step sequential analysis that Plaintiff engaged in SGA and, as a result, denied Plaintiff's request for disability benefits. (R. at 22-23.)

In the pending appeal, Plaintiff argues that the ALJ's decision must be reversed and remanded on two related grounds. (See generally Pl.'s Br. at 8-19.) First, Plaintiff argues that the ALJ committed reversible error at step one, by finding Plaintiff actively engaged in the management of his rental properties, rather than acting as merely a supervisor without substantial involvement in the operation's affairs. (See id. at 8-10; see also Pl.'s Reply at 2-4.) In particular, Plaintiff insists that, in finding Plaintiff provided significant services to his real estate ventures, the ALJ ignored and/or mischaracterized the relevant record evidence, namely, Plaintiff's 2007 federal tax return, a written lay statement by William McEwens, in addition to Plaintiff's statements at the hearings and to various medical examiners. (See Pl.'s Br. at 10-15.) Second, Plaintiff argues that the ALJ erred in his determination of " countable income" under 20 C.F.R. § 404.1575(c) and Social Security Ruling (hereinafter, " SSR" ) 83-34, by failing to account for certain deductions, by improperly including Plaintiff's " rental income," and by otherwise failing to perform the required regulatory review of Plaintiff's income. (See id. at 15-19; see also Pl.'s Reply at 6-9.)

The principal issue before the Court is whether substantial evidence supports the ALJ's conclusion at step one that Plaintiff provided significant services and in return received substantial income in connection with his work as a self-employed real estate manager/landlord.

For the reasons explained below, the Court finds that substantial evidence supports the ALJ's determinations, and will affirm the ALJ's decision.


A. Factual and Procedural History

Because the pending appeal presents discrete questions concerning the ALJ's step one analysis, the Court need not retrace every facet of the voluminous administrative record developed in this action (see generally R. at 1-792), nor set forth Plaintiff's lengthy history of medical treatment.[2] (See, e.g., R. at 518-715.) Rather, for purposes of the pending appeal, the Court notes that Plaintiff filed an application for disability insurance benefits on January 12, 2006. (See R. at 138-39.)

In connection with the Social Security Administration's (hereinafter, the " SSA" ) review of Plaintiff's initial application, the New Jersey Division of Disability Services conducted a face-to-face interview of Plaintiff on February 2, 2006. (See R. at 427-38.) During the interview, Plaintiff claimed that an injury sustained when diving into shallow water in June 2005 rendered him " unable to lie on [his] back, bend over, lift any weight or perform any sort of physical exertion." (R. at 431-33.) Plaintiff, in particular, professed an inability

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to " walk[] up a flight of steps" without shortness of breath, and stated that his " lungs simply cannot pump enough oxygen under duress." (Id.) Plaintiff further explained that his limitations prevented him from completing his " previous job responsibilities" running " the day to day operations" of his rental properties, and required him " to hire sub-contractors in order to keep [his] business afloat." (Id.)

Following the interview, the claims adjudicator requested that Plaintiff complete a functional audit, describing, in greater detail, the manner in which Plaintiff's breathing condition limited his daily activities. In connection with this functional audit, Plaintiff, in essence, reiterated the limitations expressed during his initial interview. (See generally R. at 439-47.) Plaintiff specifically reiterated that his physical condition precluded him from participating in any sports or physical activities or the exertional tasks required in maintaining his rental properties, including " painting, lifting, building," and " general maintenance repairs." (R. at 439-47.) Indeed, Plaintiff stated that any sustained activity, whether walking, bending, climbing, or even talking, caused shortness of breath. (R. at 447.) Plaintiff further indicated that, as a result of his slow movements and shortness of breath, any activities took " twice as long" to complete. (R. at 441.) Nevertheless, Plaintiff professed an ability to perform light cleaning and laundry, to regularly engage in normal social activities, to go to the office to " do about 2-3 hours of work daily," and to travel to the various rental properties for " about 2 hours daily." (R. at 441, 443, 447.)

Thereafter, at the direction of the New Jersey Division of Disability Services, Ken Klausman, M.D., conducted a medical evaluation of Plaintiff on June 15, 2006. (R. at 710-13.) At that time, Plaintiff identified past relevant work in the maintenance, property management, and construction fields. (R. at 711.) Plaintiff indicated, however, that his injury, and related shortness of breath, limited him to work on a part time basis. (Id.) In addition, Plaintiff expressed significant injury-induced limitations on his ability to travel, to participate in recreational activities, in addition to an inability to sit, stand, walk, climb stairs, bend, squat, and/or sleep for prolonged periods, without experiencing shortness of breath. (R. at. 711.) Nevertheless, Dr. Klausman's examination generally depicted Plaintiff as a healthy, able-bodied individual, albeit with a history " of paralysis of the diaphragm secondary to phrenic nerve injury." (R. at 712-713.) In particular, Dr. Klausman reported that Plaintiff exhibited a normal gait, range of motion, fine motor skills, and neurological functioning. (R. at 712-13.) Dr. Klausman, however, noted slightly " decreased breath sounds" on Plaintiff's right side, as well as Plaintiff's inability " to lie down on his back for more than few seconds without" shortness of breath. (Id.)

In light of Dr. Klausman's findings, among other medical documentation supplied by Plaintiff, the SSA found Plaintiff capable of returning to " usual work," despite his " nerve injury involving the diaphragm," particularly given his age, education, training, and work experience. (R. at 153-54.) Consequently, because Plaintiff's condition did not preclude him from working, the SSA found Plaintiff " not disabled," and denied his application for Social Security benefits on July 12, 2006. (Id.)

Plaintiff requested reconsideration of the SSA's initial determination on September 22, 2006, on the grounds that the SSA " failed to adequately consider the severity and effect" of Plaintiff's impairments. (R. at 77.) In so requesting, however, Plaintiff did not report any change in his physical

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condition, nor provide any additional record evidence. (R. at 159-61, 725.) Rather, Plaintiff merely relied upon the same information submitted in connection with his initial application. (R. at 159-61.) Given the absence of any new allegations, the SSA denied Plaintiff's request for reconsideration on May 1, 2007. (Id. (finding the original determining denying Plaintiff's claim for disability benefits " proper under the law" ).) On June 27, 2007, Plaintiff requested a de novo hearing before an ALJ (see R. at 162), and the SSA scheduled the hearing for December 9, 2008. (See R. at 168-80.)

In advance of the hearing, Plaintiff submitted an array of additional lay and expert documentation concerning the workrelated limitations imposed by his condition.

In particular, Plaintiff participated in a follow-up medical examination by Dr. Klausman on October 30, 2008. (R. at 735-37.) In connection with this evaluation, Dr. Klausman largely reiterated his prior observations concerning Plaintiff's physical conditions, intellectual abilities, and mental clarity. (Id.) Dr. Klausman noted, however, Plaintiff's continued complaints concerning his shortness of breath and persistent cough, and again stated his impression that Plaintiff suffered from a " hemidiaphragm paralysis." (R. at 735, 737.) Nevertheless, Dr. Klausman opined that Plaintiff's condition had no impact on his ability to continuously lift or carry materials of less than 50 pounds, to sit or stand, to use his hands or feet, and/or to stoop, kneel, crouch or crawl. (See R. at 728-34.) Rather, Dr. Klausman only indicated that Plaintiff's condition limited his ability to frequently and/or continuously carry materials in excess of 51 pounds, to walk for prolonged periods of time (more than 3-4 hours), and to climb stairs, ramps, ladders, or scaffolds. (Id.) Aside from these limitations, however, Dr. Klausman expressed no additional limitations on Plaintiff's work-related activities. (Id.) To the contrary, Dr. Klausman suggested that Plaintiff possessed the ability to engage in a wide-array of personal, social, and/or professional activities, subject only to the identified restrictions. (Id.)

In addition, Plaintiff's primary care physician, Katharine Garnier, M.D., submitted an opinion concerning Plaintiff's physical capacity for work. (See R. at 774-76.) Dr. Garnier similarly indicated that Plaintiff's permanent " phrenic nerve injury" resulted in " ongoing difficulties consisting of pain, breathlessness," and difficulty sitting or standing " due to pain and fatigue for even reasonably brief periods of time." (R. at 776.) Contrary to Dr. Klausman, however, Dr. Garnier rated Plaintiff " as capable of less than sedentary work," due to his " inability to occasionally exert up to 10 pounds of force or to frequently lift, carry, push or pull objects." (Id.) Moreover, despite being " capable at times of walking/standing or driving," Dr. Garnier specifically indicated that Plaintiff " must be able to rest" when necessary, and indicated that there should be no expectation that he " consistently" perform even those limited activities. (Id.)

Finally, Karen Rubinson, Plaintiff's wife, submitted a statement describing Plaintiff's various physical symptoms, including " difficulty breathing, trouble clearing his throat and lungs," and " continuous sneezing and coughing." (R. at 491.) In addition, Mrs. Rubinson indicated that Plaintiff's injury rendered him incapable of completing most tasks without assistance, and that he required breaks while participating in any even " minimal activity," including " walking greater than two blocks." (Id.)

Armed with this additional evidence, Plaintiff proceeded to an administrative hearing before an ALJ on December 9,

Page 392

2008, at which time he appeared, with counsel, and testified before an ALJ. (See R. at 28-102.) At the conclusion of the hearing, the ALJ advised that the record would remain open for an additional 33 days, in order for Plaintiff to submit any additional documentation relevant to the ALJ's ...

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