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Ganges v. Commissioner of Social Security

United States District Court, D. New Jersey

October 29, 2018


          Richard Lowell Frankel, Esq. BROSS & FRANKEL, PA Attorney for Plaintiff

          Heather Tashman Fritts, Special Assistant U.S. Attorney Naomi B. Mendelsohn, Special Assistant U.S. Attorney Social Security Administration Office of the General Counsel Attorneys for Defendant




         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 the application of Plaintiff Maddrice P. Ganges (“Plaintiff”) for Social Security Disability Benefits and Supplemental Security Income under Title II and XVI of the Social Security Act, 42 U.S.C. § 401 et. seq. Plaintiff, who suffers from lumbar degenerative disc disease, left shoulder impingement, left knee and right knee pain, cardiac condition, fibroids, cysts, diabetes, and gall bladder issues, was denied benefits for the closed period of disability from February 1, 2011, the amended onset date of alleged disability, to January 11, 2013, the date on which Plaintiff returned to substantial work.

         In the pending appeal, Plaintiff contends that the July 17, 2015 decision of Administrative Law Judge (“ALJ”) Keith Bossong should be reversed and remanded on five grounds. First, Plaintiff argues the ALJ erred by failing to follow SSA policy regarding the procedure when a claimant is unavailable to attend a hearing before the ALJ but her representative is present. Second, Plaintiff argues the ALJ failed to properly consider several “non-severe” impairments in determining the Plaintiff's Residual Functional Capacity (“RFC”). Third, Plaintiff argues the ALJ failed to properly evaluate Plaintiff's bilateral hand complaints. Fourth, Plaintiff argues the ALJ misinterpreted the results of a May 24, 2011 Functional Capacity Evaluation. Finally, Plaintiff argues the ALJ improperly rejected the opinion of Plaintiff's treating orthopedic surgeon. For the reasons that follow, the Court will affirm the ALJ's well-reasoned and thorough decision.


         A. Procedural History

         Plaintiff filed an application for Social Security Disability Benefits on or around September 13, 2012 (R. 176-77), and an application for Supplemental Security Income on or around September 24, 2012 (R. 178-83), initially alleging that she was disabled as of December 28, 2009. (R. 195.) Plaintiff subsequently amended her claim to a closed period from February 1, 2011 to January 11, 2013. (R. 239-40.)

         Plaintiff's claim was denied by the SSA on February 6, 2013. (R. 114-19.) Her claim was again denied upon reconsideration on July 8, 2013. (R. 127-31.) A hearing was held before ALJ Bossong on March 10, 2015; as discussed in more detail below, Plaintiff's attorney and representative, Mr. Richard Frankel, Esq., was present, but Plaintiff was not. (R. 55-70.) The ALJ issued an opinion on July 17, 2015, denying Plaintiff benefits for the closed period. (R. 21-49.) On January 19, 2017, the Appeals Counsel denied Plaintiff's request for review. (R. 1-5.) This appeal timely follows.

         B. Personal and Medical History

          As Plaintiff alleges a closed period of disability between February 1, 2011 and January 11, 2013, the Court only discusses those facts most relevant to this period. Plaintiff was 43 years old at the time of her amended alleged disability onset date and 45 years old when she returned to substantial work.[1] (R. at 176, 239-40.) Plaintiff graduated from high school and attended two years of college. (R. at 196.) From 1989 until 2009, she worked as a security guard at a hospital and casino. (R. at 59-61, 196.) Between 2009 and 2011, Plaintiff “continued to work on and off” (R. at 58) and in 2012 she briefly attempted to return to work. (R. at 185-88.) On or around January 11, 2013, Plaintiff returned to substantial work as a security guard for Marion Security Agency. (R. at 240.)

         1. Plaintiff's 2009 injury and subsequent testing and treatment

         On July 10, 2009, Plaintiff suffered a fall while at work and sustained injuries to her left knee, left shoulder, and the left side of her neck. (R. at 58, 247.)

         An August 4, 2009 MRI of Plaintiff's left knee showed findings consistent with chondromalacia, moderate joint effusion, and a vertical tear within the anterior horn of the lateral meniscus. (R. at 368-69.) Shortly thereafter, Plaintiff underwent left knee arthroscopic repair of the medial and lateral meniscus. (R. at 384-85.) At a September 24, 2009 follow-up visit, Dr. Jeffrey Malumed, M.D. observed Plaintiff is “doing better with her knee, ” “has good range of motion, ” and “[t]herapy is helping her, ” and determined that “[s]he may continue working on a light duty basis.” (R. at 380-81.) On October 8, 2009, Dr. Malumed again examined Plaintiff and noted that she had a full range of motion and her therapy had gone well, but that she had a little bit of fluid in the knee, which he expected. (R. at 378.) At Plaintiff's request, Dr. Malumed gave her one more week before she returned to her normal job. (Id.)

         On March 31, 2010, Plaintiff underwent a second knee surgery, this time a left knee medial meniscectomy, chondroplasty of the medial femoral condyle, partial synovectomy, and resection of the plica. (R. at 351.) In April 2010, Plaintiff began treating at NovaCare for physical therapy on the knee, as well as for the left hand, back, and spine. (R. at 305-09.) She continued working “on and off” until early 2011. (R. at 58.)

         2. Impairments during closed period of alleged disability

         Notwithstanding the July 2009 injury and subsequent testing and treatment described above, Plaintiff continued to work in some capacity until on or around February 1, 2011, the amended alleged onset disability date. (R. 239-40.)

         On February 1, 2011, Plaintiff visited, Dr. Laura Ross, D.O. at Ross Center for Orthopedics. (R. at 428.) At this time, Dr. Ross evaluated Plaintiff and determined that Plaintiff had “crepitus with range of motion” in the left knee and left shoulder. (Id.) It was Dr. Ross's impression that Plaintiff suffered from “[l]umbar [herniated nucleus pulposus] with left lower extremity radiculitis, left knee internal derangement with exacerbation of underlying degenerative joint disease, status post left carpal tunnel decompression and ulnar decompression at the elbow, and left shoulder impingement syndrome.” (Id.) As a treatment plan, Dr. Ross recommended Flector patches, aquatic and land therapy for her left arm, left knee and back, a standing x-ray of her left knee, a hinged knee brace for her left knee, and pain management. (Id.) Dr. Ross also noted that Plaintiff would remain out of work pending an x-ray and consultation. (Id.)

         A February 9, 2011 x-ray of Plaintiff's knee revealed she had mild osteophyte formation of the medial joint space and of the superior patella, that her patellofemoral joint was mildly narrowed, and she exhibited narrowing of both the medial and lateral joint spaces. (R. at 429.) The impression was that Plaintiff had mild degenerative changes of the joint and no fracture. (Id.)

         On March 9, 2011, Plaintiff had surgery on her left shoulder (R. at 637) and, the following day, she underwent carpal tunnel decompression of the left wrist and left ulnar nerve decompression at the elbow. (R. at 401.) Dr. Ross saw Plaintiff the following week and recommended that she go to physical therapy for her left shoulder. (R. at 443.) On May 12, 2011, Plaintiff returned to Dr. Ross who advised Plaintiff to continue home exercise and acupuncture for pain management and to go to physical therapy. (R. at 446.)

         On May 24, 2011, Plaintiff underwent a Functional Capacity Evaluation (“FCE”), which was performed by Tate L. Rice, PT, DPT. (R. at 397-416.) The FCE showed that Plaintiff could perform at least eight hours of handling, fingering, feeling, balancing, stooping, kneeling, and sitting, but only five hours of crouching and lifting 10 pounds, four hours of crawling and lifting 20 pounds, and two hours of lifting 50 pounds. (R. at 402.) The FCE also showed that Plaintiff's grip strength was measured at 56 pounds on the left and 81 pounds on the right. (R. at 400). Based on the FCE, Mr. Rice opined that, because she was not able to lift objects over 10 pounds above her shoulder height, Plaintiff could not reassume her past relevant work as a Security Supervisor. (R. at 399.) According to Mr. Rice, however, Plaintiff was able to perform “light” work. (Id.)

         On July 25, 2011, Plaintiff visited Dr. Mary Ann Sciamanna, D.O., for pain in her back, neck, left shoulder, and left elbow. (R. at 596-600.) Dr. Sciamanna noted that Plaintiff had good lumbar extension and her flexion measured to 90 degrees, but her side bending was painful. (R. at 596.) Plaintiff was diagnosed with low back pain and Dr. Sciamanna recommended a course of acupuncture. (Id.) Plaintiff met with Dr. Sciamanna several times for treatment during August 2011 and reported on August 25, 2011 that her lower back was “doing pretty good, ” but that she still experienced some left elbow pain. (R. at 597-98.) On September 1, 2011, Plaintiff's neck and low back pain were “stable, ” and by September 8, 2011, Plaintiff reported that her pain was 70 percent better. (R. at 598-99.)

         Starting in September 2010, Plaintiff attended physical and aqua therapy on several occasions. (R. at 467-70, 485-89, 510-36, 538-41.) On May 9, 2011, her physical therapist measured her lumbar flexion at 64 degrees, her extension at 26 degrees, her right lateral flexion at 22 degrees, and her left lateral flexion at 24 degrees. (R. at 540.) In August 2011, Plaintiff was discharged from aqua therapy because she met all of her goals. (R. at 489.)

         On August 20, 2012, Plaintiff reported to Dr. Ross that she experienced sharp pain in her left knee, left shoulder, and back, but that Dr. Sciamanna had “helped her with regard to her back.” (R. at 631.) It was Dr. Ross's impression that Plaintiff had impingement of the left shoulder, left knee degenerative joint disease, and lumbar degenerative disc disease, and that she was post left ulnar nerve decompression and left carpal tunnel decompression. (Id.) At this time, Dr. Ross recommended that Plaintiff consider applying for disability (Id.)

         Plaintiff returned to substantial work on or around January 11, 2013. (R. 239-40.)

         3. Plaintiff's Adult Function Report

         On October 1, 2012, Plaintiff filled out an Adult Function Report in connection with her application for disability benefits. (R. 209-16.) In this Report, Plaintiff stated that she had difficulty sleeping due to muscle spasms and aches in her legs, arm, and shoulder, and that it took her ten to fifteen minutes to get out of bed in the morning. (R. at 209-10.) She indicated that she used to be able to “do anything, ” including sports, hiking and climbs, but that, because of her shoulder, knee, and back conditions, she had difficulty dressing and bathing, could no longer do her hair, and that she could only sit for fifteen to thirty minutes before having to move, only walk ten to fifteen minutes before having to stop and rest, and only concentrate for fifteen to thirty minutes at a time. (R. at 210, 214.) Plaintiff also indicated that she could feed herself, use the toilet without limitations, prepare simple meals, wash laundry (but not pick up the basket), drive a car, shop for groceries (but not carry the groceries herself), handle personal finances, read, watch television, and use the computer. (R. at 209, 211-12.)

         4. Dr. Ross's Medical Source Statement

         In September 2013, several months after Plaintiff returned to substantial work, Dr. Ross completed a Medical Source Statement (“MSS”) on Plaintiff's behalf. (R. at 779-87.) In her MSS, Dr. Ross identified Plaintiff's left shoulder, elbow, back, and foot/ankle, and her bilateral hands as areas of musculoskeletal pain, in addition to other symptoms, including fatigue, general malaise, extremity numbness, pain, and/or tingling, difficulty walking/abnormal gait, muscle weakness, muscle spasm, loss of manual dexterity, swelling, difficulty thinking/concentrating/ maintaining attention, depression, and recent weight loss. (R. at 779.) Dr. Ross opined that Plaintiff's pain was occasionally “profound and intractable, ” usually present, and of such a degree as to prevent Plaintiff from performing normal, full-time work activities on a frequent basis. (R. at 780.) She further opined that medications would prevent Plaintiff from performing even the most simple work tasks and that Plaintiff would need to lie supine for two hours during the day on a daily basis, could sit for less than two hours in an eight-hour work day, could stand or walk for up to one hour in an eight-hour work day, would need to elevate her legs two to four times a day, could rarely lift less than 10 pounds, could rarely use her left hand or arm and never use her right arm to reach, could rarely handle objects and never finger with her right hand, and would be absent from work more than four days per month. (R. at 781-87.)

         5. State ...

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