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Gentile v. Commissioner of Social Security

United States District Court, D. New Jersey
Aug 18, 1999
Civil Action No. 98-1693 (NHP) (D.N.J. Aug. 18, 1999)

Opinion

Civil Action No. 98-1693 (NHP).

August 18, 1999

Glenn B. Carey, Esq., Abromson Carey, Newark, N.J., Attorney for Plaintiff.

Peter G. O' Malley, Assistant U.S. Attorney, Newark, N.J., Attorney for Defendant.



LETTER OPINION ORIGINAL ON FILE WITH CLERK OF THE COURT


Dear Counsel:
This action comes before the Court on the application of Priscilla Gentile pursuant to sections 216(I) and 223 of the Social Security Act, 42 U.S.C. § 405(g), and 1383(c)(3), seeking review of the final determination of the Commissioner of Social Security denying plaintiff's claim for disability insurance benefits and supplemental social security income benefits. For the reasons stated herein, the Commissioner's decision is AFFIRMED.

BACKGROUND

Plaintiff is a fifty-nine year old female. Plaintiff was employed as a receptionist/switchboard operator. She answered calls, sorted mail, and greeted people and was not required to lift more than ten pounds. Plaintiff filed an application for disability benefits on July 22, 1994. Plaintiff claims "disability" as of November 26, 1993 because of a heart attack, hypertension, and high cholesterol.

Plaintiff sustained injuries in an automobile accident on August 21, 1992. The treating doctor, Dr. Pietrandrea, noted that Plaintiff suffered a decrease in the range of motion of the cervical and lumbar spines with pain and spasm. Plaintiff had cervical flexion and extension syndrome and low back sprain, but was cleared to return to work by September 3, 1992. From November 1992 through August 1993, Plaintiff was treated sporadically for soreness, colds and hypertension, but she continued to work during this time.

Plaintiff ceased all gainful employment on November 26, 1993. On June 30, 1994, she suffered a hearth attack and required emergency catheterization and angioplasty. The hospital physician, Dr. Kirschenbaum, noted that Plaintiff's recovery was uneventful, in fact, she did "remarkably well." Record of Proceedings at 224, dated June 4, 1998 (hereinafter "Rec."). Dr. Kirschenbaum conducted a stress test on Plaintiff in order to determine the amount of force being exerted on the heart by the movement of blood. The level of stress upon the heart was found to be normal. She was prescribed heart medication and was discharged from the hospital on July 7, 1994.

Plaintiff returned to the hospital the following day with syncopal episodes and hypertension. Dr. Kirshenbaum kept her under observation. It was his impression that Plaintiff was suffering from possible anemia and possible hypotension because of over medication. Plaintiff had no chest pain, only mild shortness of breath and her blood pressure had improved. She was subsequently released.

In an April 18, 1995 letter, Dr. Kirschenbaum stated that Plaintiff should be restricted from any work activity that requires lifting, carrying, pushing, climbing, bending, and extreme temperature changes. Her stress level was normal. Dr. Kirschenbaum did not proscribe sitting or walking. Plaintiff then began seeing Dr. Frey, a urologist in June of 1995. The Plaintiff denied any side or back pain. There were no abnormalities reported by the doctor.

On August 28, 1995 Dr. Kirschenbaum evaluated Plaintiff's residual functional capacity. He stated that although she could not lift any weight, Plaintiff was not precluded from sitting, standing, or walking. Dr. Kirschenbaum did not state that Plaintiff was totally disabled. On April 26, 1996, Dr. Kirschenbaum essentially repeated what he had already stated in the April 18, 1995 letter: Plaintiff was disabled, but Dr. Kirschenbaum never mentioned that Plaintiff was precluded from sitting, walking, or standing.

Plaintiff testified at the administrative hearing that she can stand for a few minutes and that she can sit for a short period of time with her legs elevated. Plaintiff stated that she could lift a few pounds, grasp light objects, and drive short distances. She cooks and does light housekeeping with some help from her family. She stated that stress and fatigue prevented her from working. (Rec. at 33). She did not state that she was experiencing pain.

The ALJ found that Dr. Kirschenbaum's April 26, 1996 letter was not supported by objective medical evidence. In addition, the statements regarding Plaintiff's functional capacity were found to be inconsistent with Plaintiff's testimony. Plaintiff's claims of stress and fatigue were found to not be supported by objective medical evidence. Dr. Kirschenbaum did not state in any of his medical reports that Plaintiff had constant fatigue; nor did he state that Plaintiff was under an above-normal amount of stress. Based upon Plaintiff's testimony as to her lifestyle activities, she was found to be able to return to her past relevant work as a receptionist/switchboard operator. Hence she was found not to be disabled.

DISCUSSION

When assessing an impairment, the ALJ must make a sequential evaluation of the following:

1. An individual who is working and engaging in substantial gainful activity will not be found to be "disabled" regardless of medical findings. 20 C.F.R. § 404.1520(b);
2. An individual who does not have a "severe impairment" will not be found to be "disabled." 20 C.F.R. § 404.1520(c);
3. If an individual is not working and is suffering from a severe impairment which meets the twelve-month durational requirement and "which meets or equals" a listed impairment in Appendix 1, Subpart P, Regulation No. 4, a finding of "disabled" will be made without further consideration of vocational factors. 20 C.F.R. § 404.1520(d);
4. If an individual is capable of performing work he or she has done in the past, a finding of "not disabled" must be made. 20 C.F.R. § 404.152(e); and
5. If an individual's impairment is so severe as to preclude the performance of past work, other factors including age, education, past work experience, and residual functional capacity ("RFC") must be considered to determine if their work can be performed. 20 C.F.R. § 404.1520(f).

Therefore, Plaintiff must not only have a medically determinable impairment, but it must cause functional limitations that preclude Plaintiff from doing any kind of work that exists in the national economy.

In the instant case, the ALJ made the following findings of fact in his August 22, 1996 decision:

1. The claimant met the disability insured status requirements of the Act on November 26, 1993, the date the claimant stated she became unable to work, and continues to meet them through March 31, 1996.
2. The claimant has not engaged in substantial gainful activity since November 26, 1993.
3. The medical evidence establishes that the claimant has a cardiac condition, hypertension, and high cholesterol, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's allegations of totally disabling pain are not supported by the objective evidence in the record, and are not credible.
5. The claimant has the residual functional capacity to perform work related activities except for work involving lifting and carrying more than 10 pounds ( 20 C.F.R. § 404.1545).
6. The claimant's past relevant work as a receptionist/switchboard operator did not require the performance of work related activities precluded by the above limitation(s) ( 20 C.F.R. § 404.1545).
7. The claimant's impairments do not prevent her from performing her past relevant work.
8. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision ( 20 C.F.R. § 404.1520(e)).

(Rec. 16-17).

Plaintiff argues that the ALJ's decision is not supported by substantial evidence. More specifically, plaintiff presents three issues for appeal: 1) the ALJ improperly evaluated medical evidence that would have supported Plaintiff's claim for disability; 2) the ALJ did not consider the plaintiff's non- exertional impairments when making his decision; and 3) the ALJ's finding that Plaintiff possesses the residual functional capacity to perform her past work activity is not supported by substantial evidence.

According to 42 U.S.C. § 405 (g), made applicable to SSI cases by 42 U.S.C. § 1383 (c)(3), this Court may review the factual findings of the Commissioner to determine whether the administrative record contains substantial evidence for such findings. If substantial evidence exists, the Commissioner's findings are conclusive. See Early v. Heckler, 743 F.2d 1002, 1006 (3d Cir. 1984). This Court, therefore, does not conduct a de novo review, but rather, affords considerable deference to the Commissioner's findings of fact. See id; 42 U.S.C. § 405 (g); 1383(c)(3).

When the record, read as a whole, contains evidence allowing a reasonable mind to accept the Commissioner's conclusions, and where the evidence is susceptible to more than one conclusion, the Commissioner's conclusion must be upheld. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Therefore, this Court must review the record and the ALJ's findings and conclusion within the narrow confines of its limited scope of review.

In reaching the findings in a disability benefits proceeding, the ALJ is entitled to draw inferences logically flowing from the evidence, and where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusions that must be upheld. See 42 U.S.C. § 423(d)(5); Miranda v. Secretary of Health, Educ. Welfare, 514 F.2d 996 (1st Cir. 1975).

In Social Security disability cases, it is for the Commissioner, not the reviewing Court, to determine what weight to give particular items of evidence. See id. Therefore, this Court's inquiry is limited to examining whether the decision was supported by substantial evidence. See id.

The Supreme Court has defined the term "substantial evidence," in the context of Social Security cases, as "more than a mere scintilla and . . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Peralles, 402 U.S. 389, 401 (1971);see also Cotter v. Harris, 642 F.2d 700, 704, reh'g denied, 650 F.2d 481 (3d Cir. 1981). The fact that the record as a whole might support a different conclusion is immaterial. This Court is required to uphold the Commissioner's decision so long as that decision is supported by substantial evidence. See 42 U.S.C. § 405(g).

Plaintiff alleges that her chronic pain, numbness, limited functional capacity, lack of concentration, anxiety, shortness of breath, fatigue, angina, and insomnia were not given credence by the ALJ. Plaintiff states that chronic pain ought to be given great weight when consistent with medical evidence.

The medical evidence, and Plaintiff's testimony, does not support a finding of pain to such a degree that Plaintiff was rendered disabled. During the administrative hearing, Plaintiff was asked if she could perform past work. She stated that stress and fatigue were what caused her to resign from her previous job.

Q: Now, would you be able to work at any of these jobs that you mentioned?
A: They are very, very — you know, I tell you, I can't — the stress, I can't take any stress today. I get too anxiety. I break out in sweats, and I get too shaky, especially on a phone with the responsibilities of a hospital, you know, that I had there. I couldn't do it. That's why I left. I was working, and then I go in and I get so stressed out. I just had to leave.

Q: How do you feel otherwise?

A: Well, I'm, you know, I guess I'm always tired. I'm not myself. Excuse me. From when I had this heart attack. It's just that it seems like I'm just another person in this body.

(Rec. at 33).

Not once did Plaintiff state any of the ailments alleged to have been disregarded by the ALJ. Plaintiff was then asked specifically if she experienced pain. She stated that she did experience some pain. However, she stated that she was taking medication that alleviated the pain. (Rec. at 37).

Plaintiff's testimony of chronic pain, stress, and fatigue is not supported by her treating physician. As the ALJ notes, "Dr. Kirschenbaum did not note that claimant has chest pain at rest . . ." (Rec. at 16). "Dr. Kirschenbaum did not state that the claimant has constant fatigue . . ." (Rec. at 16). In addition, all of Plaintiff's anxiety tests were normal. There is no objective medical evidence in the record to support Plaintiff's claim of disability as a result of pain, fatigue, or stress.

Plaintiff states that the ALJ placed his opinion over that of the treating doctor when he stated that Plaintiff's allegations were not credible. Plaintiff alleges that there is no basis for this determination anywhere in the record. The Court disagrees.

Plaintiff was examined by a state agency physician on December 5, 1995. In the physician's Residual Functional Capacity Assessment, the physician found that Plaintiff could lift or carry up to twenty-five pounds and could sit about six hours in an eight-hour work day. The physician entered these conclusions after reviewing Plaintiff's medical records. (Rec. at 58). The assessment of a non-examining physician may constitute substantial evidence. See Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991). The state agency physician's opinion supports the findings of the ALJ. Therefore, the ALJ is not substituting his own opinion in place of the treating physician. The ALJ's decision is based upon substantial evidence.

Even if Dr. Kirschenbaum's report could reasonably support a finding of disability, this is insufficient to challenge the ALJ's decision because the ALJ's decision is supported by substantial evidence; namely, the findings of the state agency physician.

In finding that Plaintiff could return to her past work as a telephone operator, the ALJ found that her condition is not such that she cannot "do her previous work . . . nor engage in any other kind of substantial gainful work which exists in the national economy . . ." 42 U.S.C. § 423(c)(2)(B)(d) 1382(c)(3)(B). There exists no objective evidence indicating that Plaintiff is unable to return to her previous work. Plaintiff has stated that she cooks, cleans, attends church every week, drives, and walks outside of her home.

Plaintiff stated that she could lift a few pounds. Plaintiff's statements are in direct contradiction to the Dr. Kirschenbaum's assessment that Plaintiff could lift no weight. There exisits no objective medical evidence to support the conclusion that Plaintiff cannot lift any weight. There is objective medical evidence to support a contrary conclusion. The state physician found that Plaintiff could lift more than ten pounds. A finding by the ALJ that Plaintiff may perform her past work is in accord with the state physician's report and Plaintiff's own testimony. The ALJ's decision that Plaintiff can perform sedentary work is therefore supported by substantial evidence.

CONCLUSION

For the foregoing reasons and on the basis of the record as a whole, this Court finds that the Commissioner's determination that plaintiff is not entitled to disability insurance benefits and SSI under the Social Security Act should be and hereby is AFFIRMED.

An appropriate Order accompanies this Letter Opinion.


Summaries of

Gentile v. Commissioner of Social Security

United States District Court, D. New Jersey
Aug 18, 1999
Civil Action No. 98-1693 (NHP) (D.N.J. Aug. 18, 1999)
Case details for

Gentile v. Commissioner of Social Security

Case Details

Full title:Re: Priscilla Gentile v. Commissioner of Social Security

Court:United States District Court, D. New Jersey

Date published: Aug 18, 1999

Citations

Civil Action No. 98-1693 (NHP) (D.N.J. Aug. 18, 1999)