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Cowley v. Commissioner of Social Security

United States District Court, D. New Jersey

October 12, 2017


          Michael J. Brown, Esq. Wolf & Brown, LLC, Attorney for Plaintiff

          Antonia M. Pfeffer Special Assistant U.S. Attorney Social Security Administration Attorney for Defendant Commissioner of Social Security


          JEROME B. SIMANDLE U.S. 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 (“SSA”) denying Plaintiff Nancy Cowley's (“Plaintiff”) application for disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. The late Nancy Cowley, who suffered from lung cancer, a history of back surgery, hypertension, obesity, and chronic pulmonary insufficiency, was denied benefits for the period beginning May 15, 2013, the alleged date of disability, to February 12, 2016, the date on which the Administrative Law Judge (“ALJ”) issued a written decision. Unfortunately, Mrs. Cowley died on March 6, 2017.

         In the pending appeal, Plaintiff argues that the ALJ's decision must be reversed and remanded on four grounds. Plaintiff contends the ALJ erred by: (1) not finding that Plaintiff's impairments met the requirements of Listing 3.02, chronic pulmonary insufficiency; (2) failing to properly acknowledge and evaluate Plaintiff's degenerative disc disease and radiculopathy; (3) failing to properly account for the effects of Plaintiff's obesity; and (4) improperly discrediting Plaintiff's testimony. This inquiry is limited to the period from the claimed onset of disability in May of 2013 until the date of the ALJ's decision in February of 2016, and it does not examine Mrs. Cowley's status during the post-decision up until her death in March of 2017. For the reasons stated below, the Court will affirm the ALJ's decision denying Plaintiff disability benefits.


         A. Procedural History

         Plaintiff filed an application for disability insurance benefits on January 14, 2014, alleging an onset of disability beginning May 15, 2013. (R. at 16.) On April 15, 2014, the SSA denied the claim, and upon reconsideration on July 27, 2014. (R. at 16.) Hearings were held on December 2, 2015 before ALJ Jennifer Spector, at which Plaintiff appeared with counsel and testified, and at which a vocational expert also testified. (R. at 16.) On February 12, 2016, ALJ Spector denied Plaintiff's appeal at step four of the sequential analysis, finding that Plaintiff was capable of performing past relevant work as a loan processor or mortgage accounting clerk. (R. at 24.) The Appeals Council denied Plaintiff's request for a review and Plaintiff timely filed the instant action. (R. at 1-12.)

         On March 6, 2017, Plaintiff passed away from respiratory failure. [Docket Item 16.] Her widower, Theodore Cowley Sr., subsequently filed a Notice Regarding Substitution of Party upon Death of Claimant and entered the case as a substituted party on Plaintiff's behalf. [Id.] “Plaintiff, ” as used in this Opinion, will refer to the decedent, Nancy Cowley.

         B. Medical History

         The following are facts relevant to the present motion. Plaintiff was 47 years old as of the date of the ALJ Decision. (R. at 33.) Plaintiff completed high school and one year of college. (R. at 170.) She had previous work experience as a loan processor at a mortgage company. (R. at 53-54, 161.)

         1. Treatments Prior to Alleged Disability

          In 2007, six years before the period of alleged disability began, Plaintiff was reportedly diagnosed with sciatica and a herniated disk at L5-S1. (R. at 315.) After physical therapy and epidurals proved unsuccessful, Plaintiff underwent a microdiscectomy at the L5-S1 level in early 2009. (R. at 315.)

         On May 11, 2010, Plaintiff discussed the possibility of another back surgery with Dr. Lawrence Deutsch. (R. at 316.) Dr. Deutsch explained to Plaintiff the nature of the surgery, including the risks and benefits. (R. at 316.) Dr. Deutsch also “gave [Plaintiff] a long talk about the negative effects of cigarette smoking on the musculoskeletal system and in general.” (R. at 317.) On June 16, 2010, Plaintiff underwent a revision microdiscectomy at the L5-S1 level. (R. at 304-14.)

         Two months after the revision surgery, Plaintiff reported she was “100% better than she was” and had “minimal back pain.” (R. at 283.) According to Dr. Deutsch, “[Plaintiff] continues to get some left leg pain that comes and goes several times a day, ” but “[s]he finds that she can walk it off.” (R. at 283.) Dr. Deutsch prescribed Plaintiff with Percocet and Neurontin, “in case she has discomfort.” (R. at 283.) Plaintiff was then given a doctor's note to return to work. (R. at 283.)

         On November 15, 2012, Plaintiff was admitted to Kennedy Hospital with complaints of a herniated disk. (R. at 424.) A biopsy revealed that Plaintiff had adenocarcinoma (i.e., lung cancer). (R. at 424.) Shortly thereafter, Plaintiff underwent a successful thoracotomy for the right lobe lobectomy. (R. at 424.) Upon discharge, Plaintiff reported “having no symptoms [and] feeling much better.” (R. at 424.)

         On March 1, 2013, Plaintiff was again admitted to Kennedy Hospital due to complaints of shortness of breath and dyspnea on exertion. (R. at 436-51.) Plaintiff reported that “her symptoms have come on suddenly in the last 24 to 36 hours” and that she has “significant nasal congestion and rhinorrhea.” (R. at 449.) Dr. Thomas Morley determined that Plaintiff had acute exacerbation of chronic obstructive pulmonary disease (“COPD”), acute bronchitis, leukocytosis secondary to bronchitis, continual tobacco dependence, obesity, hypertension, and diet-controlled diabetes. (R. at 449-50.) Dr. Morley noted that Plaintiff “currently is still smoking 1 pack of cigarettes a day [and] has been doing so for 25 years” (R. at 449), and “once again, [] counseled the importance of continual [sic] of smoking cessation.” (R. at 451.) Plaintiff was released the following day and prescribed with antibiotics, steroids, and other medication. (R. at 451.)

         2. Impairments During Period of Alleged Disability

         On January 14, 2014, Plaintiff filed a claim for disability insurance benefits, alleging that, starting in May 2013, she suffered from lung cancer, a history of back surgery, COPD, diabetes, obesity, and depression. (R. at 169.)

         On June 11, 2013, Plaintiff was evaluated by Dr. James Giudice as a follow-up to her lung cancer surgery. (R. at 274-77.) At this meeting, Plaintiff denied any shortness of breath and stated that her symptoms had improved. (R. at 274.) While she reportedly smoked one and a half packs of cigarettes a day for the past 30 years (R. at 275), Plaintiff claimed that, following the surgery, she had not returned to her smoking habit. (R. 278.) Dr. Giudice noted that Plaintiff “appeared healthy, showed no signs of respiratory distress, did not cough or throat clear, could walk without tachypnea, ” and that her lungs were “clear bilaterally to auscultation and percussion.” (R. at 276.) Dr. Giudice also ordered a sleep study to determine whether Plaintiff had significant obstructive sleep apnea. (R. at 278.)

         On June 24, 2013, Plaintiff met with Dr. Elyse Kernis to obtain refills on her medications. (R. at 218-21.) During this appointment, Plaintiff explained she recently quit her job “due to feeling of exhaustion” and reported that she was “not sleeping well” and planned to undergo a sleep study in the next few days. (R. at 218.) Plaintiff also reported smoking five or less cigarettes “some days, but not every day.” (R. at 218.) Dr. Kernis observed that Plaintiff was “pleasant, alert and oriented, well developed and well-nourished.” (R. at 219.) Dr. Kernis further noted that Plaintiff's lungs were “clear to auscultation bilaterally” and that Plaintiff had “no wheezes/ rhochi/rales, ” but that Plaintiff had “decreased breath sounds throughout.” (R. at 219.) Dr. Kernis prescribed Plaintiff Percocet for her back pain, Albuterol Sulfate for shortness of breath, and VESIcare tablets for an overactive bladder. (R. at 220.) Dr. Kernis also recommended occupational or physical therapy for Plaintiff's obesity, which Plaintiff refused. (R. at 220.)

         In March 2014, returned to Dr. Giudice and reported she was experiencing shortness of breath. (R. at 248-52.) At this time, Plaintiff told Dr. Giudice she was considering applying for disability, to which he he responded that she was “borderline.” (R. at 252.) Dr. Giudice diagnosed Plaintiff with “mild restrictive physiology due to surgery” and tobacco abuse “questionably terminated 10/18/12, ” but found ...

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