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Oppenheim v. Commissioner of Social Security

United States District Court, D. New Jersey

July 23, 2019


          Alan 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.




         In this 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.

         Plaintiff 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.

         In the 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.

         For the reasons explained below, the Court finds that substantial evidence supports the ALJ's determinations and will affirm the ALJ's decision.


         A. Procedural History

         Plaintiff 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.

         B. Factual Background and Relevant Medical Evidence

         Plaintiff 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, 215, 291.]

         1. Primary Care Physician Reports

         The 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.]

         2. Knee Pain and Abnormalities

         According 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, [1] treated Plaintiff with lidocaine for pain management and advised her to follow up with physical therapy. [Id.]

         On 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.]

         Plaintiff 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[2] 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.]

         On 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.[3] [Id.] Dr. Patel administered cortisone injections in both knees. [Id.]

         3. Back Pain and ...

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