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Friedman v. Berryhill

United States District Court, D. New Jersey

March 29, 2019

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



         Nicole Friedman (“Ms. Friedman” or “Plaintiff”), appeals from the final decision of the Acting Commissioner of Social Security, Nancy A. Berryhill (“Defendant”) denying Plaintiff disability benefits under Title II of the Social Security Act (the “Act”). After reviewing the Administrative Record, the Court finds that the Administrative Law Judge's (“ALJ”) assessment of Plaintiff's mental impairments is not based on substantial evidence. Accordingly, the matter is remanded on this limited basis.


         Plaintiff was born on February 14, 1996, and she was 13 years old on the alleged disability onset date of January 1, 2010. Administrative Record 58, 64 (hereinafter “A.R.”). Plaintiff has a high school education. A.R. 31.

         On January 29, 2014, Plaintiff applied for social security disability insurance benefits, alleging disability beginning on January 1, 2010. A.R. 58. Plaintiff's claims were denied on April 23, 2014, A.R. 77-81, and again upon reconsideration on April 9, 2015. A.R. 85-89. On April 20, 2015, Plaintiff requested a hearing, A.R. 90, which was held on March 30, 2017, before ALJ Dennis O'Leary. A.R. 26-46. The ALJ determined that Plaintiff was not disabled and denied her claims for disability insurance benefits. A.R. 12-21. Plaintiff requested review by the Appeals Council, which was denied on March 19, 2018. A.R. 1-3. On May 18, 2018, Plaintiff filed the instant appeal.

         A. Review of the Medical Evidence

         a.Dr. Feng and Dr. Chen

         From 2010 through 2013, Shufang Feng, M.D. (“Dr. Feng”) and Sydney Chen, M.D. (“Dr. Chen”) treated Plaintiff primarily for non-musculoskeletal complaints. More specifically, over the course of this three-year period, Plaintiff's reported symptoms included fever, ear pain, headache, stomach pain, cough, nasal/sinus congestion, cold sores, skin rashes, asthma, swelling underneath her chin, and difficulty sleeping. A.R. 275-295. In May of 2013, more than eight months after her prior visit, Plaintiff was provided with a medication refill for an upcoming trip to Florida. A.R. 291. In 2014, during follow up visits with Dr. Feng, Plaintiff's reported symptoms continued to include nasal congestion, cough, sore throat, fever, swollen glands, headache, and ear pain, in addition to pleuritic chest and acute thoracic back pain. A.R. 261, 264, 266, 269, 271, 296, 299. In 2016, upon resuming her treatment with Dr. Feng, Plaintiff complained of cough, sore throat, and sinusitis. A.R. 500-03, 505-06. She was also provided with a medication refill. A.R. 500.

         With the exception of upper thoracic spine and chest tenderness on two separate occasions in 2014, A.R. 297, 300, Plaintiff's physical examinations were generally unremarkable and confined to non-musculoskeletal ailments, including, among other things, occasional wheezing, nasal congestion, fever, and skin rash. A.R. 275-300, 500-04. Moreover, during the course of her treatment with Dr. Feng, Plaintiff did not exhibit any psychological abnormalities and she appeared alert with a normal mental status. A.R. 262, 265, 267, 270, 272, 288, 292, 295, 297, 300, 503.

         b.Dr. Allegra

         From 2010 through 2017, Edward Allegra, II, M.D., (“Dr. Allegra”) diagnosed and treated Plaintiff for juvenile rheumatoid arthritis (“JRA”). During periodic appointments every two to four months, Plaintiff reported mild to severe chronic pain, swelling, and/or stiffness in various areas of her body, including her neck, lower back, hip, knees, elbows, wrists, hands, fingers, shoulders, ankles, feet, and toes. A.R. 327, 330, 333, 335, 337, 339, 341, 343, 345, 347, 349, 351, 353, 355, 357, 359, 361, 363, 365, 367, 369, 371, 374, 376, 379, 381, 383. According to Plaintiff, her symptoms would usually occur between one to two hours in the morning, and, as a result, she would sometimes have difficulty walking, dressing, and getting in and out of her bed. A.R. 327, 330, 379, 381, 383. In addition, Plaintiff complained of non-musculoskeletal abnormalities. These constituted fever, fatigue, and weakness, and, on various occasions, Plaintiff stated that she felt anxious, depressed, agitated, and/or worried excessively. A.R. 337, 339, 341, 343, 345, 347, 349, 351, 353, 355, 357, 361, 363, 365, 367, 369, 372, 374, 376, 379, 381, 384.

         During appointments with Dr. Allegra, Plaintiff appeared well developed, well nourished, and well groomed, A.R. 327, 330, 333, 339, and her physical examinations revealed the following medical conditions: tenderness, crepitus (cracking or popping sounds in the joints), synovitis (inflammation), and effusion (fluid). A.R. 335-83. More specifically, notwithstanding a small number of exceptions, Plaintiff exhibited tenderness in her wrists, knees, and lumbosacral, cervical, and trapezius regions, while her crepitus, synovitis, and effusion were similarly confined to certain specific areas, such as her wrists, fingers, and knees.[1] A.R. 327, 330, 333, 335, 337, 339, 341, 343, 345, 347, 349, 351, 353, 355, 357, 359, 361, 363, 365, 367, 369, 371, 374, 376, 379, 381, 383. Moreover, on an infrequent basis, Plaintiff's physical examinations demonstrated a positive jump sign and a reduced range of motion in her lumbosacral region, and, on only one occasion, Plaintiff's left straight leg raise tested positive at 30 degrees. A.R. 345. As a result of Plaintiff's examinations, Dr. Allegra rendered various medical diagnoses, including monoarticular and polyarticular JRA, fibromyalgia, and osteoarthrosis in the left leg and knee. A.R. 328, 331, 333-34, 336, 337-38, 339, 342-43, 345, 348-49, 351, 354-56, 357, 359, 361, 363, 365, 367, 370, 372, 375, 377, 379, 38-82, 384.

         On March 9, 2017, Dr. Allegra completed a two-page form which she received from Plaintiff's counsel, titled “Seelig law Offices, LLC Treating Doctor's Patient Functional Assessment To Do Sedentary Work.” A.R. 325. Dr. Allegra provided responses to the document's pre-drafted questions, in the form of check marks, which indicated that Plaintiff was limited to the following work-related tasks during the course of an eight-hour workday: standing and/or walking for a total of less than two hours; sitting for a total of less than six hours; and lifting and/or carrying more than five pounds, but less than ten pounds, for a total of two hours and twenty minutes. A.R. 325-26. Dr. Allegra, in addition, checked answers which indicated that certain limitations would “interfere with [Plaintiff's] ability to perform” work-related tasks, including: frequent breaks of 15 minutes or more during the workday; pain which prevents her from working for eight hours; medications that interfere with her ability to function in the work setting; difficulty concentrating, as she would be off task for more than 10% of the workday; and an average of three or more sick days per month. A.R. 326. Although the form concluded with a question that asked “[p]lease indicate the diagnostic and clinical findings that support your opinion, ” Dr. Allegra failed to provide an explanation in connection with Plaintiff's alleged inability to perform sedentary work. A.R. 326. Indeed, Dr. Allegra crossed out a section intended for her response.

         C . Dr. Jortner

         Progress notes from Barbara Jortner, Psy.D. (“Dr. Jortner”), indicate that she treated Plaintiff for psychological ailments in 2016 and 2017. A.R. 472, 480-88, 494-99. During her initial intake assessment in March of 2016, Plaintiff complained of anxiety, depression, obsessive compulsive disorder, and reported that it was difficult to leave her home because of her arthritis and health problems. A.R. 495. Plaintiff also underwent a mental status exam which demonstrated the following results: she was cooperative and appeared neat; she was oriented in all three spheres; her motor functioning and speech were normal; her affect was full; she denied suicidal and homicidal ideation; she did not exhibit any perceptual abnormalities; she was estimated to have average intelligence; and her judgment and insight were intact; however, her mood was depressed and anxious; her thought process was circumstantial at times, her thought content was obsessive and compulsive; her concentration and recent memory were impaired; and her attention varied. A.R. 496-99. Dr. Jortner concluded her assessment by diagnosing Plaintiff with the following psychological impairments: panic disorder, social anxiety, and major depressive disorder. A.R. 499.

         Dr. Jortner's progress notes from March through June of 2016, and March through February of 2017, demonstrate that Plaintiff reported various psychological symptoms and stressors. A.R. 473-75, 480-88. Those documents also provide a summary of the clinical procedures that Plaintiff underwent, and a one-to two-sentence “special note” from Dr. Allegra, including a note from April of 2016 indicating that Plaintiff was traveling to Punta Cana for a wedding. A.R. 480-88. Plaintiff's final appointment with Dr. Jortner occurred in March of 2017, during which treatment notes indicate that Plaintiff provided Dr. Allegra with paperwork from her “SSD lawyer.” A.R. 473.

         On March 9, 2017, Dr. Jortner completed a form from Plaintiff's counsel, titled “Medical Assessment of Ability To Do Work-Related Activities (Mental), ” wherein she opined that Plaintiff is “unable to meet competitive standards” in performing certain work-related tasks, including using judgment and maintaining personal appearance. A.R. 469-72. Moreover, according to Dr. Jortner, Plaintiff lacked the “useful ability to function” in the following areas: abiding with work rules; relating to co-workers; dealing with the public; interacting with supervisors; dealing with work stresses; functioning independently; maintaining attention and concentration; complete detailed, non-complex, and simple job instructions; behaving in an emotionally stable matter; relating predictably in social situations; and demonstrating reliability. A.R. 469-72.

         d.State Agency Consultants

         On March 25, 2015, at the request of the administration, Dr. Mariam Rubbani performed a physical examination upon Plaintiff. Dr. Rubbani observed that Plaintiff was well developed, well nourished, obese, in no apparent distress, and followed directions. Moreover, upon examination, she reported the following findings:

Shoulder ranging was limited in all planes tested and she has bilateral positive Neer impingement signs. Elbow ranging was full bilaterally. Wrist ranging was full. There is no atrophy in her hands. She does have ulnar deviated digits in her hands bilaterally Grip and pinch strength are decreased to 3/5. She is able to separate papers. She can make a fist and oppose fingers and fully extend her hands, but these are painful. There is no erythema in the hands and there is some mild edema. Knee ranging is full bilaterally with some edema about the joint. No. medial or lateral joint line tenderness. No. crepitus. No. erythema . . . . Hip ranging is limited in forward flexion. The remainder of planes range of motion are full. Ankle ranging is full bilaterally.

         A.R. 304. Dr. Rubbani also indicated that Plaintiff's “straight leg raising is negative bilaterally. Squats less than halfway down. She is unsteady walking on her heels and on her toes. There is no sensory loss in bilateral upper or lower extremity dermatomes. There is no reflex loss in bilateral biceps, triceps, or patellar tendon.” Finally, in concluding her physical assessment, Dr. Rubbani determined that Plaintiff's condition was consistent with rheumatoid arthritis and lumbar myofascial spasm.

         On April 8, 2015, State agency medical consultant Mary McLarnon, M.D. (“Dr. McLarnon”), independently examined Plaintiff's medical records, and rendered an opinion as to Plaintiff's exertional limitations. A.R. 71-74. More specifically, Dr. McLarnon noted that Plaintiff could occasionally lift and/or carry up to 20 pounds, frequently lift and/or carry up to 10 pounds, stand and/or walk (with normal breaks) for a total of approximately 4 hours in an 8-hour workday, and sit (with normal breaks) for a total of approximately 6 hours in an 8-hour workday, and can push and/or pull objects. Furthermore, Dr. McLarnon indicated that Plaintiff could occasionally crawl, and climb ropes, ladders, and scaffolds; and she could frequently climb ramps/stairs, stoop, kneel, and crouch without any difficulty balancing. A.R. 72. According to Dr. McLarnon, her findings were consistent with a light/sedentary residual functional capacity assessment. A.R. 70.

         B. Review of the Testimonial Record

         a. Third Party Function Report

         On February 6, 2016, Deana Alles (“Ms. Alles”), Plaintiff's mother, completed a Third Party Function Report, wherein she provided information in connection with her daughter's daily activities and exertional abilities. A.R. 170-77. More specifically, according to Ms. Alles, Plaintiff's pain and discomfort cause her difficulty falling sleep, but during the course of the day, she attends the gym, in some degree, in order to alleviate joint stiffness, reads, and watches television. A.R. 170. Moreover, prior to her alleged disability, Ms. Alles indicated that her daughter was capable of attending school and related functions, socializing with friends, and was generally more independent. A.R. 171.

         As to her ability to provide personal care, Ms. Alles opined that her daughter “sometimes” has difficulty dressing, styling her hair, and shaving. A.R. 171. Ms. Alles indicated that her daughter relies on a “shower chain” to bathe, requires reminders to take her medication, and is unable to open childproof bottles. A.R. 171. However, Ms. Alles stated that her daughter was capable of feeding herself and using the bathroom without the need for assistance. A.R. 171.

         As to her ability to perform house and yard work, Ms. Alles stated that her daughter's “extreme inflammation, pain, and fatigue” precludes her from performing such tasks, including chores. A.R. 172-73. However, Ms. Alles indicated that her daughter was able to “go outside” two to three times a week, for short periods of time, and possessed the ability to drive herself and shop “in stores” for at least thirty to sixty minutes, as well as by phone, email, and computer. A.R. 173.

         As to her hobbies and interests, Ms. Alles stated that her daughter enjoys reading, journalism, watching television, playing board games, and baking. A.R. 174. Moreover, according to Ms. Alles, her daughter began “reading and journalism” after her JRA became “more severe.” A.R. 174. As to Plaintiff's social activities, Ms. Alles indicated that her daughter talks and visits “her friends and family” on a weekly basis, and regularly goes to her aunt's house and Barnes ...

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