Opinion
Civ. No. 97-0054 (DRD).
September 29, 1999.
Debra Rose Brown, Jersey City, New Jersey, Plaintiff pro se.
Peter G. O'Malley, Esq., Assistant United States Attorney Newark, New Jersey, Attorney for Defendant.
OPINION
Pro se plaintiff Debra Rose Brown appeals from a final determination of the Commissioner of Social Security ("Commissioner"), denying her applications for Disability Insurance Benefits ("DI") and Supplemental Security Income benefits ("SSI") under the Social Security Act. Plaintiff alleges that the Commissioner's determination is not supported by substantial evidence, but has not submitted a brief as required by L. Civ.R. 9.1. In light of her pro se status, however, the Court will review the administrative record without the benefit of briefs from either party. For the reasons set forth below, the Commissioner's determination is affirmed.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On December 1, 1993, plaintiff applied for DI and SSI benefits, alleging disability due to neck and back pain resulting from a bus accident on March 23, 1993. (Tr. 128-34). Her application was denied initially and again upon reconsideration. (Tr. 141-57). Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on May 4, 1995 before ALJ Joel H. Friedman. (Tr. 158, 30-127). Plaintiff was represented by counsel at this hearing. Id. On December 26, 1995, the ALJ issued his decision, finding that while plaintiff is severely impaired, she was not disabled because there were a substantial number of jobs in the national and regional economy that she could perform despite her impairments. (Tr. 9-19).
Plaintiff requested review of this determination from the Appeals Council and submitted additional medical records in support of her claim. In a letter to plaintiff's counsel dated April 24, 1997, these additional items were dismissed as "cumulative of evidence previously entered into the record. (Tr. 239). The ALJ' decision became final when the Appeals Council denied plaintiff's request for review on November 7, 1996. (Tr. 3-8). Plaintiff now seeks review of this determination.
Administrative Findings
ALJ Friedman made the following findings:
1. The claimant met the disability special insured status requirements of the Act on march 23, 1993, the date she alleges onset of disability, and continues to meet those requirement through September 30, 1997. So far as the record shows, the claimant has not performed substantial gainful activity since her alleged onset date. The record evidence indicates that the claimant has not worked since April of 1992 ( 20 C.F.R. § 404.1564 and 416.964).
2. The medical evidence establishes that the claimant has cervical and lumbar sprain and strain. The claimant therefore suffers from an impairment that is "severe" within the meaning of the Social Security Act, as amended.
3. The medical evidence does not establish that the claimant has an impairment or combination of impairments which "meets or equals" in severity the clinical criteria of any impairment listed in 20 C.F.R. part 404, Regulations No. 4. (Listing of Impairments).
4. The claimant's subjective complaints of anxiety, left hand numbness and weakness, and neck and back pain, to the extent, duration, and severity that the claimant relates it prevents her from engaging in all work activity, are exaggerated and not credible.
5. The claimant's residual functional capacity is such that she is capable of sitting or standing for six hours in an 8 hour day, and there are no limitations regarding the claimant's ability to lift and walk, as indicated by the claimant's medical records, functional assessments, and testimony ( 20 C.F.R. § 404.1568 and 416.968).
6. The claimant's date of birth is November 11, 1969. She is defined as a younger individual and has at least two years of college education ( 20 C.F.R. § 404.1563 and 414.963).
7. The claimant's past relevant work is as a bank teller and sales clerk, which is considered light level work activity ( 20 C.F.R. § 404.1564 and 416.964).
8. Considering the claimant's residual functional capacity, and her age, education, and past relevant work experience, there were times after march 23, 1993 when the claimant could perform her past relevant work.
9. There are a substantial number of jobs existing in the national and regional economy, which the claimant can engage in, considering her residual functional capacity, age, education, and skills.
10. The claimant has not been under a "disability" as defined in the pertinent provisions of Titles II and XVI of the Social Security Act, as amended, at any time through the date of this decision ( 20 C.F.R. § 404.1520(f) and 416.920(f)).
(Tr. 17-19).
Evidence Before the ALJ
ALJ Friedman had several items of documentary evidence before him, primarily plaintiff's medical and hospital records. (Tr. 162-238). The report of plaintiff's treating physician, Dr. John R. Croft, M.D., diagnoses plaintiff as suffering from traumatic cervicodorsal derangement with radiculopathy and traumatic lumosacral derangement with radiculopathy. (Tr. 190). These records indicate that plaintiff suffers from some limitation of motion and that her condition has been treated with prescription Tylenol pain reliever. (Tr. 191-99).
Records from SIP Medical Center of Jersey City, New Jersey provide a similar diagnosis with a prescribed treatment of physical therapy. (Tr. 203-05). A statement signed by Dr. Gideon Hedrych, M.D. indicates that plaintiff was totally disabled as of March 23, 1993.
An examination performed by Dr. Ronald Bagner on behalf of the New Jersey Department of Labor again diagnoses plaintiff's condition as cervical radiculopathy and lumbosacral strain. (Tr. 211). Dr. Bagner notes that while plaintiff exhibited minimal movement in the cervical region during examination, she exhibited a normal range of movement when not aware of being observed. Id.
Finally, an assessment of plaintiff's ability to perform work-related activities provided by Dr. V. Hiremath, M.D., dated November 10, 1995, finds no impairment of plaintiff's functional abilities. (Tr. 214-17).
In addition to these reports, plaintiff appeared at her administrative hearing represented by counsel. ALJ Friedman received testimony from plaintiff and from Dr. Steven H. Feinstein. At the hearing, plaintiff's counsel, Mr. Abraham Alter, conceded that the examination made by Dr. Bagner had found that plaintiff did not suffer from limitations. (Tr. 34-35). Alter argued that plaintiff's condition had improved considerably by the time of Dr. Bagner's examination, to the point where she was no longer disabled as of the hearing date. Id. Counsel asked that plaintiff's request for benefits be amended and considered for a closed period of disability beginning March 23, 1993 and ending December 31, 1994. Id.
Plaintiff then related the details of the bus accident and her course of treatment. (Tr. 38-46). She described her past work as a retail sales clerk and as a bank teller. (Tr. 47-56). Plaintiff also offered testimony regarding her pain and physical limitations. (Tr. 56-73).
Dr. Feinstein testified as a vocational expert (Tr. 73-127). Dr. Feinstein stated that based on plaintiff's testimony he found that it would be difficult for her to perform he past relevant work in the regional or national economy, due to the amount of standing required. (Tr. 77-78). He opined that plaintiff could, however, perform other, sedentary jobs characterized as light work. (Tr. 78-80). Mr. Alter then cross-examined Dr. Feinstein as to the amount of training which these jobs would require, as well as the methodology used to determine the availability of jobs in the regional economy. (Tr. 81-99). Following an extensive colloquy regarding plaintiff's ability to perform other work suggested by the vocational expert (Tr. 99-124), counsel closed by repeating his request for a finding that plaintiff had sustained a closed, 16-month period of disability. (Tr. 125-26).
Additional Evidence Before the Appeals Council
Following the denial of plaintiff's claim by the ALJ, plaintiff submitted additional items of evidence to the Appeals Council. (Tr. 240). These additional items include additional medical records completed by Dr. Joseph S. Sobelman, M.D. on April 13, 1993, shortly after the date of the bus accident. (Tr. 248-49). The report notes impact and sprain to the cervical and lumbar spine regions, but does not give any indication of plaintiff's ability to perform work. Id. Plaintiff also submitted a medical certificate completed by Dr. Gideon Hedrych, dated August 12, 1993, which states that plaintiff was unable to work due to her injuries. (Tr. 255-56). Additional medical records from Dr. Croft (Tr. 257-64) and from SIP Medical Group (Tr. 265-75) are inconclusive.
Finally, plaintiff proffered a letter from Dr. Hedrych, dated July 25, 1995. (Tr. 276-79). Dr. Hedrych relates the course of plaintiff's treatment following the bus accident, including a detailed account of her diagnosis and physical limitations. He found that plaintiff had been "significantly injured" and that "her injuries have altered her ability to function as she did prior to the accident." Dr. Hedrych concluded with his opinion that plaintiff "has a permanent impairment/disability due to the injuries sustained in said accident."
DETERMINATION OF DISABILITY AND BURDENS OF PROOF
Under the Social Security Act, the term "disability" is defined as "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The statute further states that:
an individual will be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work . . .42 U.S.C. § 423(d)(2)(A).
Social Security regulations provide a five-step procedure for evaluating disability claims. See 20 C.F.R. § 404.1520 and 416.920. The Commissioner first determines whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a). If the claimant is employed in substantial gainful activity, his application for disability benefits is automatically denied. 20 C.F.R. § 404.1520(b).
The second step determines whether the claimant has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities . . ." 20 C.F.R. § 404.1520(c). A claimant who does not have a severe impairment is not disabled. Id.
If the claimant has a severe impairment, the Commissioner next determines whether the impairment is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 404.1520(d). If so, the claimant is conclusively presumed to be disabled, without consideration of the claimant's age, education and work experience. See id.
Fourth, the Commissioner determines whether the claimant can return to his previous type of employment. See 20 C.F.R. § 404.1520(e). The claimant bears the burden of proving that he is unable to return to his former occupation. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). TheRossi court noted that a "[p]laintiff satisfies her initial burden of showing that she is unable to return to her previous employment when her doctor substantiates her subjective claims." Id.
For the fifth step, "[t]he burden shifts to the [Commissioner] to show that the claimant, given [his] age, education, and work experience, has the capacity to perform specific jobs that exist in the national economy." Id. at 55, 57. Entitlement to disability benefits is dependent on a finding that the claimant is incapable of performing some other type of work in the national economy. See 20 C.F.R. § 404.1520(f).
STANDARD OF REVIEW
A district court must accept the Commissioner's findings of fact as conclusive if they are supported by "substantial evidence." 42 U.S.C. § 405(g), Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981). Substantial evidence has been defined as "[s]uch relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 704. Whether evidence is substantial has been described by the Third Circuit as a qualitative, not quantitative, exercise, see Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983), requiring an elaboration of the ALJ's analysis "so that a reviewing court may know the basis for the decision . . . not only an expression of the evidence s/he considered which supports the result, but also some indication of the evidence which was rejected." Cotter v. Harris, supra at 705 (quoting Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974)).
DISCUSSION
Applying this standard, the Court finds that the Commissioner's determination (Tr. 12-19) is supported by substantial evidence. The ALJ appears to have undertaken a thorough examination of plaintiff's medical records. While acknowledging the conflicting report of Dr. Hedrych, ALJ Friedman indicated his reasons for resolving the conflict, citing Dr. Hedrych's failure to indicate which tests were performed in reaching his diagnosis and the apparently limited amount of contact he had with plaintiff. (Tr. 14). Moreover, the ALJ found that Dr. Hedych's report "conflicts with other more complete reports from the claimant's long-term treating sources, consultative examination findings, and the claimant's own ability to engage in full time college activities." Id. Primary responsibility for resolving such conflicts rests with the ALJ. While bearing in mind that another ALJ might have resolved the conflict differently by giving greater weight to Dr. Hedrych's report, the Court cannot say that ALJ Friedman's determination is irrational or unsupported by the administrative record.
The same can be said for the determination of the Appeals Council following the submission of additional evidence. The letter informing plaintiff of the Appeals Council's decision indicates that the Council reviewed the additional evidence and found it to be cumulative of what had already been presented to the ALJ. The Appeals Council's determination is not unsupported by the record and will not be overturned by this Court.
CONCLUSION
For the foregoing reasons, the final determination of the Commissioner is affirmed. An appropriate order shall be entered.