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McIntyre v. Berryhill

United States District Court, D. New Jersey

November 13, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Ms. McIntyre brings this action pursuant to 45 U.S.C. §§ 405(g) and 1383(c)(3) to review a final decision of the Commissioner of Social Security ("Commissioner") her claims to Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and Supplemental Security Income ("SSI"), 42 U.S.C. § 1381. For the reasons set forth below, the thorough and conscientious decision of Administrative Law Judge ("ALJ") Jennifer Spector is affirmed.

         I. BACKGROUND[1]

         Ms. McIntyre seeks to reverse a decision that she did not meet the Social Security Act's definition of disability. Ms. McIntyre originally applied for DIB and SSI on April 15 and 16, 2013. The claim was denied initially on July 26, 2013, and upon reconsideration on October 25, 2013. (R. 13).

         A hearing was held before an ALJ on June 10, 2015. (Transcript at R. 55-127). The claimant, who was represented by counsel, testified; the AW also took testimony from a vocational expert ("VE"). On July 30, 2015, the ALJ rendered a decision denying benefits. (R. 10-54) On January 31, 2017, the Appeals Council denied Ms. McIntyre's request for review of the ALJ's decision, rendering it the final decision of the Commissioner. (R. 1)

         Ms. McIntyre appealed to this Court, asserting that the ALJ erred in finding that she was not disabled from an onset date of April 22, 2002, through the date of the ALJ's decision. The case was transferred, most recently to a Magistrate Judge on September 28, 2018. It was informally transferred to me for decision on November 2, 2018, and formally transferred November 8, 2018. (DE 18).


         To qualify for DIB or Supplemental Security Income, a claimant must meet income and resource limitations and show that she is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted (or can be expected to last) for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382, 1382c(a)(3)(A), (B); 20 C.F.R. § 416.905(a); see Illig v. Comm'r Soc Sec, 570 Fed.Appx. 262, 264 (3d Cir. 2014); Diaz v. Comm'r of Soc. Sec, 577 F.3d 500, 503 (3d Cir. 2009).

         A. The Five-Step Process and This Court's Standard of Review

         Under the authority of the Social Security Act, the Social Security Administration has established a five-step evaluation process for determining whether a claimant is entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920. This Court's review necessarily incorporates a determination of whether the ALJ properly followed the five-step process prescribed by regulation. The steps may be briefly summarized as follows:

Step One: Determine whether the claimant has engaged in substantial gainful activity since the onset date of die alleged disability. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not, move to step two.
Step Two: Determine if the claimant's alleged impairment, or combination of impairments, is "severe." Id. §§ 404.1520(c), 416.920(c). If the claimant has a severe impairment, move to step three.
Step Three: Determine whether the impairment meets or equals die criteria of any impairment found in die Listing of Impairments. 20 C.F.R. Pt. 404, subpt. P, app. 1, Pt. A. (Those Part A criteria are purposely set at a high level to identify clear cases of disability without further analysis.) If so, die claimant is automatically eligible to receive benefits; if not, move to step four. Id., §§ 404.1520(d), 416.920(d).
Step Four: Determine whether, despite any severe impairment, the claimant retains the Residual Functional Capacity ("RFC") to perform past relevant work. Id. §§ 404.1520(e)-(f), 416.920(e)-(f). If not, move to step five.
Step Five: At this point, the burden shifts to the Commissioner to demonstrate that die claimant, considering her age, education, work experience, and RFC, is capable of performing jobs that exist in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g); see Poulos v. Comm'r of Soc. Sec, 474 F.3d 88, 91-92 (3d Cir. 2007). If so, benefits will be denied; if not, they will be awarded.

         As to all legal issues, this Court conducts a plenary review. See Schaudeck v. Comm'r of Soc. Sec, 181 F.3d 429, 431 (3d Cir. 1999). As to factual findings, this Court adheres to the ALJ's findings, as long as they are supported by substantial evidence. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citing 42 U.S.C. § 405(g)). Where facts are disputed, this Court will "determine whether die administrative record contains substantial evidence supporting the findings." Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial evidence "is more than a mere scintilla but may be somewhat less than a preponderance of the evidence." Id. (internal quotation marks and citation omitted).

[I]n evaluating whether substantial evidence supports the ALJ's findings ... leniency should be shown in establishing the claimant's disability, and ... the Secretary's responsibility to rebut it should be strictly construed. Due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary system prevails.

Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal quotation marks and citations omitted). When there is substantial evidence to support the ALJ's factual findings, however, this Court must abide by them. See Jones, 364 F.3d at 503 (citing 42 U.S.C. § 405(g)); Zirnsak, 777 F.3d at 610-11 (“[W]e are mindful that we must not substitute our own judgment for that of the fact finder.").

         This Court may affirm, modify, or reverse the Commissioner's decision, or it may remand the matter to the Commissioner for a rehearing. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v. Comm'r of Soc. Sec, 235 Fed.Appx. 853, 865-66 (3d Cir. 2007). Remand is proper if die record is incomplete, or if there is a lack of substantial evidence to support a definitive finding on one or more steps of the five-step inquiry. See Podedworny, 745 F.2d at 221-22. Remand is also proper if the ALJ's decision lacks adequate reasoning or support for its conclusions, or if it contains illogical or contradictory findings. See Burnett v. Comm'r of Soc. Sec, 220 F.3d 112, 119-20 (3d Cir. 2000). It is also proper to remand where die ALJ's findings are not the product of a complete review which "explicitly weigh[s] all relevant, probative and available evidence" in the record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).

         B. The ALJ's Decision

         ALJ Jennifer Spector followed the five-step process in determining that Ms. McIntyre was not disabled from January 1. 2011 through March 31, 2013 (the date last insured). Her findings may be summarized as follows:

         Step One: At step one, Judge Spector determined that Ms. McIntyre had not engaged in substantial gainful activity since April 22, 2002, the amended onset date, in that her small amounts of income did not meet the threshold. (R. 15).

         Step Two: At step two, the ALJ determined that Ms. McIntyre had the following severe impairments: right elbow lateral epicondylitis, partial anterior cruciate ligament ("ACL") tear, arthritis of the thumb, herniated nucleus pulposus of the lumbar spine and lumbar facet syndrome, obesity, bipolar disorder, generalized anxiety disorder, obsessive compulsive disorder, posttraumatic stress disorder ("KPTSD"), and panic disorder without agoraphobia. (R. 16). The ALJ found that the following claimed impairments were not sever: sinusitis, inguinal pain-folliculitis, plantar fasciitis, asthma, status post anthrax poisoning, and cervical strain. As to these, the ALJ thoroughly reviewed the medical evidence. (R. 16-19)

         Step Three: At step three, the ALJ found that Ms. McIntyre did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Pt. 404, subpt. P., app. 1. As to musculoskeletal impairments, the ALJ made particular reference to Listings 1.02[2] and 1.04.[3] As to mental impairments, the ALJ cited Listings 12.04[4] and 12.06.[5] She exhaustively reviewed the evidence as to each of the "paragraph B" and "paragraph C" criteria. (R. 19-23).

         Step Four: At step four, the ALJ appropriately made a more detailed assessment of the evidence considered at steps two and three for the purpose of assessing the claimant's residual functional capacity ("RFC"):

... I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she can walk, stand or sit up to six hours a day but no more than two hours at a time, and then would need to shift positions for 4 to 5 minutes while remaining on task, can never climb ladders, ropes or scaffolds or work around unprotected heights or dangerous moving machinery, can frequently climb ramps or stairs, and can frequently operate foot controls, crouch or crawl and also can understand, remember and carry out simple instructions and can make only simple work related decisions.

(R. 23)

         The ALJ, in considering the claimed symptoms, properly followed the two-step process of determining whether they bore a reasonable relation to an underlying impairment, and then determining whether the claimed intensity of the symptoms is credible in light of the evidence.[6] Judge Spector found that Ms. McIntyre's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of Uiese symptoms are not entirely credible for the reasons explained in this decision." (R. 25) These conclusions were accompanied by a thorough review of the evidence. (R. 24-48)

         Step Five: Finally, the ALJ determined that given Ms. McIntyre's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that she could perform. (R. 48) Based on the VE's testimony, she identified the following: office helper (DOT code 239.567-010-83, 000 jobs in the national economy; office cleaner (night) (DOT code 323.687-014)-878, 000 jobs in the national economy; and mail clerk (DOT code 209.687-026)-116, 000 jobs in the national economy.

         Therefore, Judge Spector concluded that Ms. McIntyre had not been under a disability from April 22, 2002 through the date of her decision. (R. 49).

         C. Analysis of Ms. McIntyre's Appeal

         Ms. McIntyre challenges the ALJ's decision on four grounds. First, she says, the ALJ "gave insufficient weight to testimony, both of McIntyre and her close friend, concerning the numbness in her extremities . . . and her pain." Second, "[t]he ALJ likewise failed to give sufficient weight to McIntyre's subjective testimony concerning her emotional conditions, including her feelings of depression [and] her difficulty sleeping." (Pl. Br. 7, citing R. 75, 91-92). Third, the ALJ failed to "properly consider the combined effect of the McIntyre's myriad ailments on her ability to perform light work .... at step five of the sequential analysis." (Pl Br. 7) Fourth, die ALJ failed to assign controlling weight to the opinions of Ms. McIntyre's treating professionals. (Pl Br. 9)

         1. Grounds 1 & 2: Subjective complaints

         The first two grounds-pertaining to complaints of numbness, pain, depression, and sleeplessness-are interrelated, and I discuss them together.

         Subjective complaints of pain and other symptoms must of course be considered, but they are not necessarily controlling. As noted above, the ALJ must-and here, did-make a determination as to whether such complaints are credible in light of established medically determinable impairments and in the context of all the evidence of record. Seen. 6, supra, Hartranft v. Apfel, 181 F.3d 358, 363 (3d Cir. 1999). The ALJ must consider die extent to which the reported symptoms can "reasonably be accepted as consistent with die objective medical evidence and other evidence." 20 C.F.R. §§ 404.1529(a), 416.929(a). If the claimant's subjective complaints are unsupported by die evidence, the ALJ may discount them. 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4).

         What is required is that die ALJ give the claimant's testimony "serious consideration," state her reasons for accepting or discounting it, and make "specific findings." Rowan v. Barnhart, 67 Fed.Appx. 725, 729 (3d Cir. 2003). Where, as here, that has been done, die ALJ's credibility determinations are entitled to "great deference." Horodenski v. Comm'r of Soc. Sec, 215 Fed.Appx. 183, 188-89 (3d Cir. 2007) (citing Atlantic Limousine, Inc. v. NLRB, 243 F.3d 711. 718 (3d Cir. 2001)). Indeed, it has been said that "[t]he credibility determinations of an administrative judge are virtually unreviewable on appeal." Hoyman v. Colvin, 606 F.Appx. 678, 681 (3d Cir. 2015) (citing Bieber v. Dep't of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002)).

         The ALJ here found that although the medically determinable impairments could reasonably be expected to produce such symptoms, the claimant's complaints about the severity of the symptoms were not wholly credible. (R. 25) That finding was supported by substantial evidence. To be sure, there was evidence of numbness, pain, depression, and sleeplessness. It must be remembered, however, that to be fit for work, a claimant need not be pain-free or symptom-free. See Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986). To a great degree, the ALJ accepted the evidence of underlying medical conditions and associated symptoms. What was lacking was corroboration of the claim that those symptoms were disabling.

         In so finding, the ALJ carefully weighed the evidence, including the subjective testimony. (R. 23-41). I will not repeat that analysis here, but I will summarize enough of it to establish that there was substantial evidence in support of the ALJ's conclusions. Ms. McIntyre's treatment, including medication and injections, relieved her pain sufficiently enough for her to resume such activities as bowling; surgery and additional injections ameliorated her elbow pain; her thumb pain improved with medication and injections; and arthritis and bursitis in Plaintiffs right knee improved with medication, injections and physical therapy, although she complained of pain while running (R. 39-41). Similarly, the ALJ explained that symptoms related to mental impairments responded to some degree to medication and therapy; at any rate clinical observations did not support a conclusion that they were disabling. (R. 34-38). By April 2015, Ms. Schruntek opined that Plaintiff exhibited a euthymic mood, an appropriate affect, and good memory and attention (R. 38). State agency experts, Drs. Trachtenberg, Golish, and Turhan, reviewed the medical records, and found that the claimant could perform a range of light work with some additional limitations (R. 133-34, 137-39, 164, 167-69).

         That medical evidence provided a sufficient basis for die ALJ's conclusion that Plaintiffs testimony as to her subjective symptoms was only partially credible.

         2. Impairments in combination

         I make short work of die third asserted ground-Le., that the ALJ failed to consider the effect of Ms. McIntyre's impairments in combination. To begin with, I have rarely seen in an ALJ opinion such an exhaustive recital and discussion of all the evidence of all claimed impairments. The ALJ, moreover, was obviously well aware of the requirement that she consider impairments in combination, as well as individually. Her opinion states, for example, a finding that the claimant "did not have an impairment or combination of impairments that meets or medically equals” the listings, and repeats that she considered them "singly and in combination." (R. 19) From the context, it is readily apparent that die RFC reflects limitations that draw on multiple impairments. For example, it incorporates physical limitations on standing or climbing, as well as mental limitations on carrying out instructions or making decisions. (R. 23) And that composite RFC is of course the foundation of the step 5 finding as to particular jobs in the national economy that the claimant could perform. "[W]here the ALJ has indicated that die ...

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