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Reliford v. Commissioner of Social Security

United States District Court, D. New Jersey

June 30, 2017


          Sheryl Gandel Mazur, Esq., Attorney for Plaintiff Andrew Reliford.

          Matthew Jared Littman, Esq., Special Assistant U.S. Attorney Social Security Administration Office of the General Counsel, Attorney for Defendant Commissioner of Social Security.


          HONORABLE JEROME B. SIMANDLE, District Judge:


         This matter comes before the Court pursuant to 42 U.S.C. § 405(g) for review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff Andrew Reliford's application for disability benefits under Title XVI of the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff, who suffers from asthma, status post gunshot wounds with residual pain, depression, and a history of alcohol abuse in remission, was denied benefits for the period beginning November 14, 2011, the alleged onset date of disability, to October 27, 2014, the date on which the Administrative Law Judge (“ALJ”) issued a written decision.

         In the pending appeal, Plaintiff argues that the ALJ's decision must be reversed and remanded on three grounds. Plaintiff contends that the ALJ erred in (1) failing to consider all of Plaintiff's severe and non-severe impairments; (2) discrediting Plaintiff's subjective complaints, including pain; and (3) omitting some of Plaintiff's additional documented limitations in determining Plaintiff's residual functioning capacity (“RFC”). For the reasons discussed below, the Court will affirm the ALJ's decision denying Plaintiff disability benefits.


         A. Procedural History

         Plaintiff Andrew Reliford filed an application for disability insurance benefits on November 14, 2011, alleging an onset of disability as of that date. (R. at 22.) On March 1, 2012, the Social Security Administration (“SSA”) denied the claim, and upon reconsideration on January 10, 2013. (Id.) Hearings were held on February 14, 2014 before ALJ Leslie Rogall and on September 10, 2014 before ALJ Dennis O'Leary, at which Plaintiff appeared with counsel and testified and at which a vocational expert also testified. (Id.) On October 27, 2014, ALJ O'Leary denied Plaintiff's appeal at step five of the sequential analysis, finding that Plaintiff could perform work as a table worker, order clerk, or ampoule sealer. (R. at 30.) The Appeals Council denied Plaintiff's request for a review and Plaintiff timely filed the instant action. (R. at 1-7.) Subsequent to the ALJ's decision, Plaintiff was awarded disability benefits upon a new application, based on a different injury, filed on December 30, 2015. (Plaintiff's Brief at 4-5.)

         B. Medical History[1]

         The following are facts relevant to the present motion. Plaintiff was 45 years old as of the date of the ALJ Decision and had completed the eleventh grade and did not hold a GED. Plaintiff had work experience as a hand packager, janitor, fast food worker, and recycler. (R. at 79-80.)[2]

         1. Asthma

         Plaintiff testified before the ALJ that he has been diagnosed with COPD and asthma, and that he has shortness of breath going up and down stairs or walking a block. (R. at 59-60.) When he has an attack, which Plaintiff alleges happens “maybe about four or five times out of the month, ” he uses a nebulizer, emergency inhaler, or goes to the emergency room. (R. at 60-62.) He alleges that he takes Prednisone, Advair, and Singulair. (R. at 61.)

         In October and November of 2011, Plaintiff visited the ER or was hospitalized at Newark Beth Israel Medical Center for asthma or upper-respiratory problems six times. (R. at 476-551.) He was discharged with medication. (R. at 502, 551.) It appears that Plaintiff reported to Dr. Patel three times for bronchial asthma in 2012 (R. at 576-88, 761), and that he reported to Dr. Gupta of Jersey Rehab that his asthma was “resolved” as of November 15, 2012. (R. at 626.) At some point, Dr. Patel completed a pulmonary RFC questionnaire in which he diagnosed Plaintiff with COPD and asthma but did not identify any clinical findings, laboratory work, or function tests that supported his finding of impairments, and did not note how often Plaintiff has attacks and how long they last, or describe the nature, frequency and length of contact of their relationship. (R. at 589.) He opined that Plaintiff's symptoms were severe enough to “constantly” interfere with his attention and concentration and that Plaintiff's asthma would be a “severe limitation” on his ability to deal with work stress. (R. at 590.)

         Plaintiff sought treatment for asthma a number of times in the second half of 2013. Plaintiff was admitted to the ER on August 5, 2013 with a “wheezing lung sound” and “unable to speak in full sentence[s], ” and his chart notes that “the course/duration of symptoms is worsening” although this was his first “asthma exacerbation in over a year.” (R. at 635-638.) Plaintiff's respiratory exam showed regular respiration with moderate expiratory wheezes. (R. at 639.) He was treated with a nebulizer and discharged in stable condition with “no limited activity [and] no limited work.” (R. at 640.) Plaintiff returned to the ER on August 20, 2013 and was admitted to the intensive care unit directly. (R. at 666.) Plaintiff admitted to not following his home medication instructions, but his shortness of breath subsided after one day of treatment and he was discharged without chest pain or difficult breathing. (R. at 666-67.) Imaging of Plaintiff's chest showed “no radiographic evidence of acute pulmonary disease.” (R. at 667.)

         Plaintiff followed up with Dr. Pathak on September 10, 2013, reporting that he felt some “longing of oxygen” but that he had not be taking all his medications regularly since he was last discharged from the hospital. (R. at 698.) Dr. Pathak's exam showed no shortness of breath or wheezing, lungs clear to auscultation with non-labored respirations and equal breath sounds, and no chest wall tenderness. (R. at 698-700.) Dr. Pathak instructed Plaintiff to take all his medications regularly and report back with discomfort. (R. at 700.) On September 13, 2013, Plaintiff followed up with another pulmonologist, Dr. Mehta, reporting that his breathing was better overall but that he still had some shortness of breath at night and poor sleep. (R. at 654.) The exam showed a “chest wall free of abnormalities, ” normal breathing pattern and effort, normal breath sounds, and no wheezing or rhonchi. (R. at 655.) On November 8, 2013, Plaintiff again saw Dr. Mehta, complaining of “shortness of breath . . . exertional dyspnea, excessive daytime sleepiness, fragmented sleep, [and] frequent arousals” but noting that he had “no ER admissions [and] no frequent attacks” since his last visit. (R. at 652.) Dr. Mehta's exam again showed “chest wall free of abnormalities, ” normal breathing pattern and effort, normal breath sounds, and no wheezing or rhonchi. (R. at 653.) Finally, Plaintiff visited Dr. Pathak again on December 17, 2013, complaining of shortness of breath on exertion but again admitting that he wasn't regularly taking his medications. (R. at 752.) Dr. Pathak's respiratory exam noted “Lungs are clear to auscultation, Respirations are non-labored, Breath sounds are equal, No chest wall tenderness.” (R. at 753.)

         Nine months later, on September 17, 2014, Plaintiff returned to Newark Beth Israel Medical Center with difficulty breathing after exposure to smoke at a friend's barbeque. (R. at 842.) He reported having needed nebulizer treatments from other hospital emergency departments two other times in the days prior and getting “admitted in the hospital for asthma exacerbations 2-3 times each year.” (Id.) Plaintiff responded well to treatment and was discharged in stable condition. (Id.) Imaging taken during that hospital stay indicated clear lungs and no evidence of pulmonary emboli. (R. at 843.) The respiratory exam showed non-labored breathing and equal breath sounds. (R. at 844.)

         2. Back, Neck, and Extremities

         Plaintiff testified before the ALJ that he has pain in his back, neck, and groin area related to his gunshot wounds. (R. at 62.) Plaintiff also testified that he has pain and numbness in his legs from “blood clots” but that his doctors have decided not to prescribe blood thinners until his clots “move” or “grow bigger.” (R. at 63.) He takes Vicodin and Percocet to manage his pain. (R. at 64.)

         On February 12, 2012, Plaintiff sought treatment for substance abuse at Integrity, Inc. (R. at 557-575.) At his intake, Plaintiff reported no neurological or musculoskeletal problems, including numbness, weakness, extremity pain, or back pain. (R. at 567.)

         Plaintiff received treatment from Dr. David, a physiatrist, between August and November of 2012. (R. at 593-620.) Dr. David noted that Plaintiff “ambulates with a nonatalgic gait” and observed lumbago and cervicalgia and recommended that Plaintiff begin a course of physical therapy for those conditions and for lumbar and neck sprain. (R. at 615.) Plaintiff received physical therapy for pain in his neck and low back at Advanced Rehabilitation and Wellness Center from August through October of 2012. (R. at 593-612.) At his initial physical therapy exam, Plaintiff rated his pain an 8 out of 10 and reported “dull aching pain on his upper and lower back region that sometimes throbs.” (R. at 609.) Plaintiff reported that he was “independent with his functional skills and [activities of daily living] but with difficulty.” (Id.) His therapist noted decreased range of motion in the cervical and lumbar spine and bilateral tenderness to palpitation in the trapezius muscles. (R. at 609-612.) Therapists rated his “rehab potential” as “good” throughout the records of his visits. (Id.) Imaging of his spine taken on October 5, 2012 at Barnabas Health Imaging Center showed “[n]o evidence of herniation, spinal stenosis, foraminal narrowing or abnormal signal within the cord” in the lumbar spine and “[m]ultilevel degenerative changes, disc disease with canal and foraminal narrowing most marked at ¶ 5-C6 where there is effacement of the cord” in the cervical spine. (R. at 616-20.)

         Plaintiff was evaluated by Dr. Gupta of Jersey Rehab on November 15, 2012 for complaints of neck pain radiating to his hands and low back pain. (R. at 625.) Plaintiff reported that he had trouble turning his neck from left to right, experienced numbness and tingling in his hands, that his symptoms “worsen with daily activities of lifting, pushing, and pulling, ” and that he found no relief from his symptoms from physical therapy. (Id.) He also reported throbbing, sharp pain in his low back radiating down his right leg to the ankle. (Id.) Dr. Gupta noted a normal gait but diminished range of motion in the cervical and lumbar spine with some tenderness, pain, numbness, and tingling. (R. at 625-26.) Dr. Gupta diagnosed Plaintiff with low ...

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