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Kalb v. Commissioner of Social Security

United States District Court, D. New Jersey

December 21, 2018

DONNA LYNN KALB, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Robert Anthony Petruzzelli, Esq. JACOBS, SCHWALBE & PETRUZZELLI, PC Attorney for Plaintiff

          Heather Tashman Fritts, Special Assistant U.S. Attorney SOCIAL SECURITY ADMINISTRATION OFFICE OF THE GENERAL COUNSEL Attorney for Defendant

          OPINION

          JEROME B. SIMANDLE, U.S. District Judge

         I. INTRODUCTION

         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 Donna Lynn Kalb (“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 diabetes, neuropathy, and lupus, was denied benefits for the period of disability from March 20, 2013, the alleged onset date of disability, to January 15, 2016, the date on which the Administrative Law Judge (“ALJ”) issued a written decision.

         In the pending appeal, Plaintiff contends that the ALJ's decision must be reversed and remanded on three grounds. To that end, Plaintiff contends that the ALJ erred by: (1) failing to properly evaluate and weigh the medical evidence of record, including the opinions of Plaintiff's treating physician; (2) failing to make a finding of disability based on the existence of a listing level impairment consistent with Listing 1.04 in the Listings of Impairments; and (3) failing to consider all of Plaintiff's impairments in assessing her Residual Function Capacity (“RFC”). For the reasons that follow, the Court will affirm the ALJ's decision.

         II. BACKGROUND

         A. Procedural History

         Plaintiff filed an application for Social Security Disability Benefits on April 16, 2013 (R. at 240-44), and an application for Supplemental Security Income on April 24, 2013 (R. at 245-50), alleging a disability onset date of March 20, 2013. Plaintiff's claim was denied by the SSA on July 15, 2013. (R. at 175-80). Her claim was again denied upon reconsideration on December 16, 2013. (R. at 185-90.) A hearing was held before ALJ Karen Shelton on November 24, 2015. (R. at 48-118.) The ALJ issued her opinion on January 15, 2016, denying benefits. (R. at 23-47.) On May 17, 2017, the Appeals Counsel denied Plaintiff's request for review. (R. at 3-8.) This appeal timely follows.

         B. Personal and Medical History

         Plaintiff was 50 years old on the alleged disability onset date and 52 years old at the time of her hearing before the ALJ. (R. at 61.) She graduated from high school and subsequently earned a degree in office automation. (R. at 65.) Plaintiff subsequently worked for several years at various law firms, before spending ten years as a foreclosure coordinator at a mortgage company. (R. at 66-67.) In late 2012, Plaintiff left the mortgage company to work at a mortgage foreclosure law firm that laid her off in March 2013. (R. at 69-70, 73-74.) She then reapplied to work at the mortgage company she had previously left, but the mortgage company decided not to hire her back. (R. at 74.) Plaintiff then collected unemployment benefits while looking for other jobs. (R. at 75-76.) She has not worked since.

         Plaintiff was diagnosed with lupus in 1993 (R. at 406), which was in remission until sometime in 2012. (R. at 433.) She was also diagnosed with diabetes mellitus in November 2012. (Id.)

         On March 22, 2013, Plaintiff visited Dr. Vincent Savarese, M.D., an endocrinologist, for a follow up relating to poor glycemic control. (R. at 421.) Dr. Savarese observed that Plaintiff's blood glucose control was improving and that she had been working hard on diet and exercise. (Id.) Plaintiff complained of persistent lower extremity pain and reported that she had been recently laid off. (Id.) Dr. Savarese noted a “[m]arked improvement” in Plaintiff's diabetes and recommended “no changes for now but instructed on dose titration of both insulin, particularly decreasing NovoLog with meals if having frequent postprandial hypoglycemia, ” as well as to “[c]ontinue to work on diet and exercise. (Id.)

         On April 12, 2013, Dr. Savarese observed that Plaintiff had full muscle strength in her upper and lower extremities with no atrophy noted. (R. at 437.) He also assessed Plaintiff with having diabetic peripheral neuropathy and prescribed her with 60mg Cymbalta per day. (R. at 438.) The following month, Plaintiff returned to Dr. Savarese who observed that Cymbalta improved her symptoms, though her neuropathic pain remained present. (R. at 433.) Dr. Savarese also noted that Plaintiff's lupus was no longer in remission. (Id.)

         A September 6, 2013 MRI of Plaintiff's lumbar spine revealed: a disc herniation at ¶ 4-L5 indenting the ventral thecal sac; disc herniation and disc bulge at ¶ 3-L4 also indenting the ventral thecal sac; L3-L4 lateral recess and bilateral neural foramina with the disc contacting the exiting right L3 nerve root; disc bulge at ¶ 5-S1 indenting the ventral thecal sac; and straightening of the normal lordosis. (R. at 617.) An MRI of Plaintiff's cervical spine showed: a disc herniation at ¶ 3-C4 indenting the ventral thecal sac; disc bulges at ¶ 5-C6 and C6-C7 indenting the ventral thecal sac; narrowing bilateral neural foramina; and straightening of the normal lordosis. (R. at 619.)

         From November 15, 2013 through July 15, 2015, Plaintiff attended pain management with RA Pain Services of Cherry Hill, consistently complaining of neck, lower back, and generalized joint pain. (R. at 702-58, 799-895.) On several occasions, she was noted as using a cane to ambulate. (R. at 705, 715, 721, 727, 738, 744, 750, 756, 802, 808, 815, 821, 827, 834, 841, 848, 862, 868, 874, 880, 886, 892.) On examination, Plaintiff had normal muscle strength and tone, and she was able to walk on her heels and toes. (Id.) On March 24, 2014, Plaintiff complained of diffuse pain from her neck down with some numbness traveling to her arms and legs, but was told she was not a surgical candidate for her cervical spine degenerative changes. (R. at 718.) By August 2014, Plaintiff reported she was “hanging in there” and doing well with her current medication regimen. (R. at 877.)

         On March 5, 2014, Dr. Savarese prepared a physical residual functional capacity assessment wherein he opined that Plaintiff's symptoms would frequently interfere with her attention and concentration required to perform simple work-related tasks; she would not be required to lie down during a workday in excess of her normal breaks or lunch; she could walk a half a block before needing to rest; she could sit and stand/walk for five minutes each at one time; she would need a job which permits shifting positions from sitting, standing, or walking; she would need to take two or three unscheduled breaks during an eight-hour workday; she could occasionally lift less than 10 pounds; and she would likely be absent once or twice a month. (R. at 976-78.) Ultimately, Dr. Savarese opined that Plaintiff was capable of working an eight-hour workday, five days a week with the limitations noted. (R. at 977.)

         On or before March 19, 2014, Plaintiff started treating with Dr. James Dwyer, D.O., a rheumatologist. (R. at 966-68). On October 22, 2014, Plaintiff reported to Dr. Dwyer that “since last seen, she is doing somewhat better, ” but that she remains uncomfortable and fatigued. (R. at 961.) On examination, Dr. Dwyer noted that Plaintiff walked with a normal gait, had no swelling, warmth, or erythema in her joints, had a full range of motion in all joints with the exception of generalized tenderness in her upper and lower extremities with some light touch sensation changes in her lower extremity consistent with known diabetic neuropathy. (R. at 961.)

         On February 9, 2015, Plaintiff revisited Dr. Dwyer, who this time noted that Plaintiff was taken off steroids because of problems with her diabetes and recent laboratory studies, which demonstrated improvement in her inflammatory markers. (R. at 959.) Plaintiff also reported to Dr. Dwyer that her depression had improved with Cymbalta. (Id.) On examination, Dr. Dwyer again noted that Plaintiff walked with a normal gait, had no swelling, warmth, or erythema in her joints, had full range of motion in all joints with the exception of pain with range of motion in her lower extremity from her lumbar spine, and had full range of motion in her cervical spine with no specific tenderness. (R. at 959.)

         A June 3, 2015 MRI of Plaintiff's cervical spine revealed: disc bulges at ¶ 4-C5 and C5-C6 that were associated with bilateral facet hypertrophy and encouragement of the neural foramina, as well as a partial fusion anomaly in the C2 odontoid and a probably thyroid module. (R. at 772.) An MRI of Plaintiff's lumbar spine showed: disc bulges at ¶ 3-L4 and L4-L5 associated with bilateral facet hypertrophy and encroachment of the neural foramina with moderate central disc herniation at ¶ 5-S1. (R. at 774.)

         On August 10, 2015, Dr. Dwyer observed on physical examination that Plaintiff had a normal gait with no swelling, warmth, or erythema in any joints and full range of motion of all joints except for diffuse tenderness without localization. (R. 956.) Additionally, Dr. Dwyer noted that recent laboratory studies showed her lupus at the present time was negative. (Id.)

         C. State ...


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