United States District Court, D. New Jersey
H. Polonsky POLONSKY AND POLONSKY Attorney for Plaintiff.
Theresa Ann Casey Special Assistant U.S. Attorney Social
Security Administration Office of the General Counsel
Attorney for Defendant.
HONORABLE ROBERT B. KUGLER JUDGE
action, Plaintiff Wendy Lynne Oppenheim (hereinafter
“Plaintiff”) seeks review pursuant to 42 U.S.C.
§ 405(g) of the Commissioner of the Social Security
Administration's (hereinafter “Defendant”)
denial of her application for disability benefits under Title
II of the Social Security Act.
claims she is disabled due to several conditions including
degenerative disc disease of the lumbar and cervical spine,
bilateral knee osteoarthritis, bilateral meniscal tears and
fibromyalgia. On September 11, 2017, Administrative Law Judge
Michael Hertzig (hereinafter “ALJ Hertzig” or
“the ALJ”) issued a written decision denying
Plaintiff Social Security benefits for the period beginning
December 31, 2011 to December 31, 2016.
pending appeal, Plaintiff argues that the ALJ's decision
must be remanded on two grounds. First, she argues that the
ALJ's conduct during the hearing reflected bias which
precluded her from having a fair and impartial evaluation of
her case. Second, Plaintiff argues that the ALJ's
decision at Step Four of the Sequential Evaluation Process in
finding that she could return to her past work activity was
not supported by substantial evidence.
reasons explained below, the Court finds that substantial
evidence supports the ALJ's determinations and will
affirm the ALJ's decision.
Wendy Lynne Oppenheim filed an application for social
security disability benefits on June 16, 2014 alleging
disability beginning on December 31, 2011, at the age of 50.
[R. at 87, 178.] Plaintiff's application was denied on
initial consideration on September 10, 2014 and upon
reconsideration on May 15, 2015. [Id. at 87.] After
her claim was denied upon reconsideration, Plaintiff, along
with her representative, Samantha Xander, of the law firm
Binder & Binder, appeared for a hearing before ALJ
Hertzig on July 31, 2017. [Id.] During the hearing,
the ALJ received testimony from Plaintiff and Vocational
Expert Adina Levitan. [Id.] The ALJ denied benefits
in a September 11, 2017 opinion. [Id.] On April 6,
2018 the Appeals Council denied Plaintiff's request for
review. [Id. at 1-6.] This appeal followed.
Factual Background and Relevant Medical Evidence
was born on April 26, 1961 and is currently 58 years old.
[Id. at 212.] Plaintiff earned a Bachelor's
degree in psychology and a Master of Social Work degree from
Rutgers University - Camden. [Id. at 32-33.] From
May 1994 to December 2011, she was employed as a mental
health therapist. [Id. at 217.] She alleges that she
has been disabled and unable to work since December 31, 2011
due to pain and discomfort emanating from migraines, knee and
spine impairments, and fibromyalgia. [Id. at 34,
Primary Care Physician Reports
record indicates that Plaintiff met with her primary care
physician, Vivienne Matalon, M.D. beginning in March 2012.
[Id. at 352.] Up until April 2015, Dr. Matalon
reported unremarkable findings concerning Plaintiff's
musculoskeletal system including a normal gait and normal
range of motion in her neck, spine, pelvis and extremities.
[Id. at 339, 342, 355.] Dr. Matalon reported that
Plaintiff had knee, lower back and neck pain in April 2015.
[Id. at 327-238.]
Knee Pain and Abnormalities
to records from South Jersey Radiology Associates, Plaintiff
was diagnosed with a medial meniscus tear and degenerative
joint disease in her left knee following an MRI examination
on February 11, 2013. [Id. at 259.] On May 24, 2013,
Plaintiff met with Paul Marchetto, M.D. at the Rothman
Institute (hereinafter “Rothman”) complaining of
left knee pain. [Id. at 369.] Dr. Marchetto
confirmed that Plaintiff had been diagnosed with a medial
meniscus tear in her left knee. [Id.] Dr. Marchetto
stated that Plaintiff failed to follow through with physical
therapy and decrease her dog-walking. [Id.] Dr.
Marchetto reported a positive McMurray's test result,
treated Plaintiff with lidocaine for pain management and
advised her to follow up with physical therapy.
March 14, 2015, Plaintiff was diagnosed with a medial
meniscus tear, arthritic changes, patellar chondromalacia,
effusion and popliteal cyst in her right knee. [Id.
at 254.] Later, on July 7, 2014, Dr. Marchetto reported an
antalgic gait, joint tenderness, and positive McMurray's
test result. [Id. at 542.] The physical examination
also yielded positive varus stress, patellar compression and
patellar inhibition test results. [Id. at 542.] He
also reported abnormal muscle strength and quad atrophy.
[Id.] Dr. Marchetto diagnosed Plaintiff with
moderate degenerative joint disease in her right knee and
advised Plaintiff to consider a weight loss plan and
nonoperative treatment including anti-inflammatories and
viscosupplementation. [Id. at 543-544.]
began seeing Mitesh Patel, M.D. at Rothman on August 8, 2014.
[Id. at 539.] Dr. Patel diagnosed Plaintiff with
bilateral osteoarthritis and degenerative meniscal tearing.
[Id. at 540.] Dr. Patel reported trace effusion,
mild retropatellar crepitus, tenderness, bilateral pain
during McMurray's tests, negative drawer
signs and stability during valgus and varus
stress tests. [Id. at 540.] Plaintiff was instructed
to continue taking current pain medications and was
authorized to receive Orthovisc viscosupplement injections to
treat her knee pain. [Id.]
December 17, 2014, Dr. Patel reported that the Orthovisc
injections were ineffective in managing Plaintiff's pain.
[Id. at 343.] A physical examination demonstrated
bilateral tenderness, moderate retropatellar crepitus,
limited range of motion, stability to varus and valgus stress
testing, negative drawer signs and negative McMurray's
and Lachman tests. [Id.] Dr. Patel administered
cortisone injections in both knees. [Id.]
Back Pain and ...