Opinion
Civil Action No. 98-641 (NHP)
August 2, 1999
Lawrence E. Kazmierczak, Esq., Oakland, N.J., Attorney for Plaintiff.
Anthony J. La Bruna, Assistant, U.S. Attorney, FAITH S. HOCHBERG, UNITED STATES ATTORNEY, Newark, N.J., Attorneys for Defendant.
STATEMENT OF FACTS
Plaintiff Renee Boyd is a thirty-six year old female. She has a high school education plus two years of college credits. She has also earned a certificate to teach in the public schools. Her past relevant work experience has been as a substitute teacher and a casino security guard from 1983-1993.
The Plaintiff stopped working in 1993 due to injuries sustained in an automobile accident. In support of her application for benefits, the claimant alleges that she is unable to work due to pain in her neck and lower back that occasionally radiates and a cough and shortness of breath, secondary to asthma.
Plaintiff applied for disability and SSI benefits on May 9, 1994. Initially and on reconsideration, the claim was denied. The Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"). A hearing took place before the Honorable John R. Tarrant on April 29, 1997.
On May 28, 1997, Judge Tarrant issued a decision that the Plaintiff was not disabled because she had the residual functional capacity to perform her past duties as a school teacher. This appeal followed.
DISCUSSION
In order to be eligible for benefits under the Social Security Act, the Plaintiff must meet all relevant requirements of the statute.
First, the Plaintiff must meet the insured status requirements described in 42 U.S.C. § 423(c) for disability benefits, in addition to the income and resource limitations set forth in 42 U.S.C. § 1382(a) and (b) to receive SSI benefits.
The Plaintiff must also show that he or she is not currently engaged in any substantial gainful activity. See 42 U.S.C. § 423 (d)(1)(A) and § 1382(c)(a)(3)(A). Finally, the claimant must be disabled as defined in 42 U.S.C. § 423(c)(2)(B)(d) and § 1382(c)(3)(B):
An individual is 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 kinds of substantial gainful work which exists in the national economy. . . .42 U.S.C.A. §§ 423(c)(2)(B)(a) and 1382(c)(3)(B).
The Plaintiff meets the insured status requirements and has not engaged in substantial gainful employment since March 7, 1994. Therefore, the question for the Administrative Law Judge to resolve was whether the Plaintiff was "disabled" within the meaning of the statute.
In making this determination, the ALJ must consider five factors in order:
1. One who is working and engaging in substantial gainful activity will not be deemed "disabled," regardless of the medical evidence. 20 C.F.R. § 404.1520(b).
2. An individual with no "severe impairment" is not disabled. 20 C.F.R. § 404.1520(c).
3. If Plaintiff is not working and has a "severe impairment" that meets the twelve-month duration requirement and that impairment "meets or equals" a listed impairment in Appendix 1, Subpart P, Regulation No. 4, the Plaintiff is deemed "disabled" regardless of other vocational factors. 20 C.F.R. § 404.1520(d).
4. Plaintiff is not disabled if she is capable of performing work that she has in the past. 20 C.F.R. § 404.1520(e).
5. If the impairment is so severe that past work cannot be performed, the ALJ must consider factors such as age, education, past work experience and residual functional capacity to determine if claimant is capable of performing any work at all.20 C.F.R. § 404.1520(f).
Therefore, in order to receive the requested benefits, the Plaintiff must have an impairment so severe that it creates functional limitations which will not allow her to perform any job which exists in the national economy.
In this case, the ALJ considered the above-listed factors and ruled that the claimant was not disabled within the confines of § 1614(a)(3)(A) of the Social Security Act. In making this determination, Judge Tarrant made the following findings:
1. The claimant met the disability insured requirements of the Act on March 7, 1994, the date the claimant stated she became unable to work, and continues to meet them through the date of the ALJ's decision.
2. The claimant has not engaged in substantial gainful activity since March 7, 1994.
3. The medical evidence established that the claimant has severe cervical and thoracolumbar sprain and strain, and bronchial asthma, but that she does not have an impairment or combination of impairments listed in, or equal to, one listed in Appendix 1, Subpart P, Regulations No. 4.
4. Having weighed the claimant's allegations of totally disabling pain in light of the entire record, it is not credible that her symptoms are of such intensity, frequency or duration as to preclude medium work activity.
5. The claimant has the residual functional capacity to lift and/or carry 50 pounds occasionally, 25 pounds frequently, stand and/or walk about six hours in an eight-hour work day, but must avoid concentrated exposure to temperature extremes, smoke, fumes and noxious odors. 20 C.F.R. § 404.1545 and 416.945.
6. The claimant's past relevant work as teacher did not require the performance of work-related activities precluded by the above limitation(s). 20 C.F.R. § 404.1565 and 416.965.
7. The claimant's impairments do not prevent the claimant from performing her past relevant work as a teacher.
8. The claimant was not under a "disability" as defined in the Social Security Act at any time through the date of the decision.20 C.F.R. § 404.1520(e) and 416.920(e).
In opposition to the ALJ's decision, the Plaintiff argues that the decision was not based on substantial evidence. More specifically, the Plaintiff asserts two issues for appeal: (1) that the ALJ erred in his finding that claimant does not have impairments which significantly limit the ability to perform work-related functions; and (2) that the ALJ made no effort to show a reasonable availability of jobs that this particular claimant is capable of performing to support his denial of benefits.
Title 42 U.S.C. § 405(g), which is made applicable to SSI cases by 42 U.S.C. § 1383(c)(3), permits this Court to review the factual findings of the Commissioner of Social Security to determine whether the record contains substantial evidence to support such findings.
This Court is not permitted to conduct a de novo review. See Cotter v. Harris, 642 F.2d 700, 704 (3rd Cir. 1981). Rather, this Court is bound by the Commissioner's conclusions so long as they are supported by "substantial evidence" from the record viewed in its entirety. See Early v. Heckler 742 F.2d 1002, 1007 (3rd Cir. 1984).
In reaching its findings, the ALJ may draw reasonable inferences from the evidence. When there is more than one possible interpretation of the evidence, this Court must accept the ALJ's conclusion. See Sample v. Schweiker 694 F.2d 639, 642 (9th Cir. 1982). Even if the record, viewed as a whole, may support a conclusion contrary to the ALJ's conclusion, this Court is required to uphold the decision so long as "substantial evidence" exists. See Social Security Act, § 205(g) as amended 42 U.S.C. § 405(g).
The Supreme Court has defined "substantial evidence" in this context as, "such that might be relevant as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229(1938)). "Substantial evidence does not mean a large or considerable amount." See Pierce v. Underwood, 487 U.S. 552, 565 (1988). "It means more than a mere scintilla, but may be less than a preponderance." Woody v. Secretary of HHS, 859 F.2d 1156, 1159 (3rd. Cir. 1988).
Claimant's first point asserts that the ALJ failed to apply the appropriate legal standard in two regards: (1) that the ALJ considered a portion of the record in isolation of the remainder of the record which is overwhelmingly to the contrary; and (2) that the ALJ found the Plaintiff's subjective complaints of pain not credible in light of the overall record.
On the first of these points, the Plaintiff points to the opinion of Dr. Frederick G. Panico, who found that Plaintiff suffered from bronchial asthma, severe scoliosis of the spine, lumbosacral sprain and strain with possible radiculopathy, endometriosis, severe hypotension and pulmonary emphysema. (Tr. 94-96, 183). Plaintiff also relies upon Dr. Steven Giamporcaro's opinion which indicates that the claimant suffers from thoracolumbar scoliosis, congenital sacralization of L5, joint dysfunction and post-traumatic cervical and lumbar fibromyagia. Dr. Giamporcaro found that the claimant will continue to experience pain because of her scoliosis. (Tr. 200-204).
However, the ALJ's opinion indicates that he did consider this evidence in the record along with evidence from the other doctors before making his decision. (Tr. 13-17). The Plaintiff fails to identify any evidence that the ALJ failed to consider. In fact, the ALJ specifically indicated the weight he gave to the opinions of the different physicians. (Tr.16).
Dr. Hugo Altamirano, the claimant's treating physician, found that the claimant's bronchial asthma was of moderate severity and not of the extent that would permanently incapacitate her or qualify her for disability. He also found substantial potential for improvement if claimant remained on medication as prescribed. (Tr. 193).
Dr. Giamporcaro, whose opinion the Plaintiff relies upon, did not place any limitations on the Plaintiff in terms of physical activity. The record also contains no treatment record from Dr. Giamporcaro. (Tr. 200-204).
Similarly, Dr. Steven Ziont's evaluation of Plaintiff's neck and back pain does not support a finding of disability. Dr. Ziont's examination discovered a full range of motion of the cervical and lumbosacral spine, the ability to heel-to-toe walk, full range of motion of other joints, including shoulders, elbows, wrists, knees, ankles and hips. He found no palpable muscle spasm, good grip strength and no gross muscle wasting in either the lower or upper extremities. (Tr. 101).
The ALJ considered the statements of three doctors as well as emergency room and x-ray records (Tr. 13-17). This is substantial evidence from which the ALJ concluded that the Plaintiff's asthma and back conditions were not disabling (Tr. 14-17).
The Plaintiff also contends that the ALJ failed to consider her complaints of back and neck pain and bronchial discomfort. Congress has established the type of evidence necessary to prove the existence of a disabling impairment by defining "impairment" as one that "results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 432(d)(3) and 1382c (a)(3)(c). The Plaintiff has the burden of showing that she is entitled to disability benefits.See 42 U.S.C. § 432(d)(5)(a) and 1382c (a)(3)(c). The Plaintiff must, therefore, point to medical evidence to demonstrate a condition which could reasonably produce the alleged symptoms. See 20 C.F.R. § 404.1529; see also Williams v. Sullivan, 970 F.2d 1178, 1186 (3rd Cir. 1992), cert. denied, 507 U.S. 924 (1993).
Subjective symptoms cannot be the only foundation upon which the Plaintiff claims disability. The ALJ has the discretion to evaluate the credibility of the Plaintiff's complaints of pain and to render an independent judgment based upon the medical evidence. See Van Horn v. Schweiker, 717 F.2d 871, 873 (3rd Cir. 1983). If supported by substantial evidence, this Court must defer to the ALJ's findings. See id.
Even if the medical record provides evidence which may reasonably be expected to produce the alleged pain, the inquiry does not end there. The ALJ then evaluates the intensity and persistence of the symptoms to determine the extent to which her capacity to work is diminished. See 20 C.F.R. § 404.1529 (c)(2) and 416.929(c)(2). If the claimant has alleged symptoms which are of greater severity than the objective evidence would indicate, the ALJ considers other factors such as daily activities, treatment of pain, medications, aggravating factors and other factors such as functional limitations the pain may cause. In this case, the ALJ found that the Plaintiff's complaints were not credible. (Tr. 15-17).
According to the objective medical evidence discussed earlier, the Plaintiff's testimony regarding her symptoms was inconsistent with the results of her medical tests. For example, though the Plaintiff complained of asthma attacks (Tr. 41-43), pulmonary function tests showed that she was not in acute respiratory distress (Tr. 96,97,183), but was suffering from only mild pulmonary emphysema (Tr. 183). Plaintiff's lung x-rays were unremarkable (Tr. 96). A chest x-ray showed no significant hyper-aeration. (Tr. 191).
Dr. Altamirano indicated that claimant's pulmonary function was normal for someone her age and that she was not incapacitated (Tr. 193). Dr. Panico told the Plaintiff that her asthma was controlled through medication. (Tr. 95).
Taking the Plaintiff's complaints and medical evidence into account, the ALJ found that her asthma prevented her from working in an environment with concentrated exposure to temperature extremes, smoke, fumes and noxious odors. (Tr. 16-17). This limitation, however, does not necessarily preclude the Plaintiff from returning to her past work as a teacher. "It is not inconsistent to find that a claimant has some pain and discomfort and yet is not so severely impaired as to meet the stringent test for disability imposed by the Social Security Act." Dumas v. Schweiker, 712 F.2d 1545, 1662 (2nd Cir. 1983); Manzo v. Sullivan, 784 F. Supp. 1157, 1158 (D.N.J. 1991).
Plaintiff's complaints of knee pain are contradicted by an x-ray which reveals no evidence of fracture, dislocation or bone disease. (Tr. 179). Dr. Zionts found that the plaintiff has full range of motion in her knees. (Tr. 182). As for the Plaintiff's complaints of back pain, Dr. Zionts concluded that there were no objective findings to substantiate her subjective complaints. (Tr. 101). Dr. Panico discovered no spine deformities. Plaintiff's neurological examination was satisfactory and deep tendon reflexes were hyper-reactive and equal. (Tr. 96).
The only medication the Plaintiff was taking for pain relief was Ibuprofin, 600 mg (Tr. 34, 207). No stronger pain relief medication was taken. In March, 1995, Dr. Zionts reported that the Plaintiff was not seeing a physician or taking any medication. (Tr. 100).
Furthermore, Plaintiff's daily activities are inconsistent with a claim of disability. Plaintiff testified that she cooked, did light cleaning, laundry and shopped for food. (Tr. 37, 165). She also acknowledged that she often visited friends, read, wrote poetry, recorded music, used public transportation and went out to eat and to the mall with her boyfriend. (Tr. 36-38, 165). Plaintiff's activities along with the medical evidence are inconsistent with her testimony that she is completely disabled by back pain and asthma. The ALJ, therefore, did not err by finding her testimony not credible.
The Plaintiff's final point on appeal asserts that the ALJ is required to show a reasonable availability of jobs that she is capable of performing in order to deny disability benefits. This Court does not agree.
Once the ALJ found that the Plaintiff had no impairment that was listed or was equal to one in the listing of impairments (Tr. 14-15), he proceeded to the next step of the evaluation, analyzing the Plaintiff's residual functional capacity as it relates to her previous work. See 20 C.F.R. § 404.1520(e), 404.1545, 404.1560(b), 416.920(e), 416.945, 416.960(b). If the Plaintiff has the capacity to perform her past work, she will not be found to be disabled. See 20 C.F.R. § 404.1520(e), 416.920(e). In addition, a claimant will be found not disabled if she can perform the actual functions and duties of her past job, or the functions and duties of her past job as generally required throughout the national economy. See Jock v. Harris, 651 F.2d 133, 135 (2nd Cir. 1981). In making this determination, the ALJ is entitled to apply the physical exertional requirement for any particular job as laid out in the Dictionary of Occupational Titles ("DOT"). See 20 C.F.R. § 404.1566, 404.1567 and 416.966,416.967.
In this case, the ALJ found that the Plaintiff could lift or carry 50 pounds occasionally or 25 pounds frequently. She was found to be able to stand or work six hours during an eight-hour day. (Tr. 16-18). She was classified as being capable of performing "medium work." See 20 C.F.R. § 404.1567(c), 416.967(c). The only other limitation placed on the Plaintiff was that she was prevented from working in an environment with concentrated exposure to fumes, temperature extremes, smoke and noxious odors. (Tr. 16-17).
The DOT classifies a school teacher as light work. United States Dep't of Labor Dictionary of Occupational Titles, 74 No. 091.227-010 (4th Ed. 1991). The DOT also does not indicate that a school teacher works in an environment with exposure to fumes, temperature extremes, smoke or noxious odors. See id. The regulations state that a person who is capable of medium work, like the Plaintiff, is also capable of performing light work. See 20 C.F.R. § 404.1567(c).
Therefore, the ALJ determined that the Plaintiff is capable of performing her past relevant work. The demands of her previous job as a school teacher do not exceed her ability to perform medium work.
In response, the Plaintiff argues that the ALJ did not show a reasonable availability of jobs that she could perform. The Plaintiff specifically argues that the ALJ failed to hear testimony from a vocational expert.
Such testimony was unecessary, however, because the claimant, however, has the burden of first proving the inability to return to her past work, before any evaluation of job availability begins. Only then will the burden shift to the Commissioner to establish the Plaintiff's ability to perform other work. See Mason v. Shalala, 994 F.2d 1058, 1064 (3rd Cir. 1993).
In this case, the Plaintiff did not satisfy her burden to show that she is incapable of performing the duties of a school teacher. Therefore, no vocational expert was required and no further proof was needed.
The ALJ's decision thus was based on substantial evidence in the record which indicates that the Plaintiff, indeed, had the functional capacity to perform her past work, precluding eligibility for disability and SSI benefits.
CONCLUSION
Accordingly, for the foregoing reasons and on the basis of the record as a whole, this court finds that the Commissioner's determination that the Plaintiff is not entitled to disability insurance benefits under the Social Security Act should be and hereby is AFFIRMED.
An appropriate Order accompanies this Letter Opinion.
Not For Publication