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rejecting the plaintiff's argument that the exhibit list was deficient because it did not include all the exhibits where such objection was not raised at the hearing and where the plaintiff did not show that the ALJ's exhibit list was deficient or that she suffered any harm by not having the missing exhibits included
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Civ. No. 2:11-cv-02724 (KM)
03-21-2014
LISA NEWMAN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION
KEVIN MCNULTY. U.S.D.J.:
Lisa Newman brings this action pursuant to 42 U.S.C. § 405(g) and 5 U.S.C. § 706 to review a final decision of the Commissioner of Social Security that denied her application for disability insurance benefits under the provisions of 42 U.S.C. § 423. Compl. (Docket No. 1). That application, her first, sought benefits starting in November 2006. Pursuant to a second application, she was granted benefits starting in November 2009. Thus, on this appeal from the denial of her first application, she seeks benefits for the period November 2006 - November 2009. For the reasons set forth below, the Commissioner's decision is affirmed.
I. BACKGROUND
On May 17, 2007, the plaintiff, Lisa Newman, filed her first application for disability insurance benefits ("DIB") pursuant to 42 U.S.C. § 423. That first application claimed a period of disability commencing November 29, 2006. Compl. ¶ 4; Pl. Br. (Docket No. 13) at 2. It was denied initially and on reconsideration. Record of Proceedings ("R___") (Docket No. 12) at pp. 34-36. Newman and her attorney appeared before Administrative Law Judge ("ALJ") James Andres for a hearing on June 23, 2009. R 44-92. ALJ Andres denied Newman's application in a decision dated November 5, 2009. R 14-25. She appealed the decision to the Appeals Council, which denied her request for review on March 21, 2011. The denial of benefits pursuant to that first application thus constitutes the "final decision" of the Commissioner. R 1-5, Answer (Docket No. 11) ¶ 5.
After the denial of her claim, Newman filed a second application for DIB on November 17, 2009. This time she alleged an onset date of November 6, 2009. Pl. Br. at 1. That second application was granted by ALJ Wexler on February 22, 2012. Id.
Newman was procedurally barred from alleging an earlier onset date because of ALJ Andres' unfavorable decision.
Newman's brief states that this second decision is attached, but it does not appear to have been filed with the Court.
Newman now appeals the denial of her first application, filed May 17, 2007. (References to her application herein, unless otherwise specified, pertain to the first application.) As noted, on her second application she was found to be disabled as of November 6, 2009, and she has received benefits from that date forward. At issue here, then, is whether she was entitled to disability benefits for the period starting from the originally alleged onset date, November 29, 2006, through November 5, 2009.
A. Plaintiff's Testimony and Non-Medical Evidence
Newman was born in 1963, and was 43 at the time of her alleged disability onset in November 2006. R 49, 142, 153. She obtained a bachelor's degree in criminal justice. R 49, 140. She worked as a probation officer from 1985 until June 2005 (retiring in March 2006); as a part-time retail stock room manager from December 2005 through July 2006; and as a full-time retail "key holder" and manager-in-training from July to September 2006. R 49-50, 59-66, 123-27, 135-36, 181.
Newman's application for DIB primarily relied on alleged neuropathy in both legs. R 39. At the June 23, 2009, hearing before ALJ Andres, Newman testified to the leg pain she had experienced since undergoing gynecological surgery on November 27, 2006. R 66-68. She testified that she had not been able to work since the surgery because she was unable to sit, stand, lie down, or walk for long periods of time. Wearing clothing on her legs, she testified, caused pain at the front of her legs from her hips to her knees. R 51-52, 70, 70-82. Newman testified that she could sit or stand for five or ten minutes without a problem. R 52. She took the prescription drug Neurontin for the pain. R 81-83. She stated that, other than leg pain, she had no other physical problems that affected her ability to work. R 52. She also testified that she had been diagnosed with post-traumatic stress disorder ("PTSD") but had not received any psychological treatment since January 2007. R 56-58. During the hearing, she stated that she did not think that psychological problems affected her ability to do things. R 58. She later testified that her ability to concentrate was affected because she was tired and in pain all the time, and that stress made her emotional. R 83-84, 88-89.
Newman also had a herniated disc in her lower back, but she testified that it did not bother her as much as her leg pain but made her back "tired". R 53.
Newman lived alone in an apartment at the time of her application and hearing. R 58, 145. Newman was her father's primary care-giver. R 74-75. She communicated with her father's doctors, scheduled his appointments, picked up his medications from the pharmacy, and drove him to appointments about twice a month. R 74-76. She also cared for her cat. R 165. She sometimes prepared her own meals, but would get food delivery when she was not able to do so. R 58, 147, 166. She did household chores when she was able, although she would sometimes take her laundry to a friend's house to avoid the need to walk downstairs to the laundry room in the basement of her building. R 46, 58.
Newman took medicine without assistance and handled her own money. R 147-48. She drove a car and was able to go out alone. R 148. She enjoyed computers, reading, television, movies, walking, traveling, and needlepoint. R 148-49. Because of her leg pain, however, she needed to constantly change positions from standing to sitting. Id. She testified that this sometimes made it impossible to go to movies, read, or do needlepoint. Id. She spent time with other people, lunching with friends several times a week. She reported that she did not have any problems getting along with family, friends or neighbors. R 145, 149. She also stated, however, that it was hard for her to meet people because she was not working and physical activity was difficult. R 149. She stated that she got along "very weir with authority figures. R 170.
B. Medical Evidence
The following is a summary of the record evidence of medical opinion and treatment.
1. 2007
On January 4, 2007, Newman was examined by a neurologist, Dr. Babak Morvarid, to whom she was referred by her primary care physician, Dr. Javed Yousaf. R 196-98. Dr. Morvarid performed a neurologic examination which revealed some "vague decrease" in pinprick sensitivity over patchy areas of Newman's thighs, but was otherwise unremarkable. R 197. Newman's cranial nerves II through XII and muscle tone and bulk were normal. She had no tremors, 5/5 strength, normal coordination and deep tendon reflexes, negative Romberg testing, and the ability to tandem walk. Id. Dr. Morvarid noted that Newman had persistent pain and numbness over the anterior part of the leg. R 197. He also noted that it was unlikely that the symptoms had an L2 or L3 radicular origin because Newman had no history of trauma or reported back pain. A more likely diagnosis, he noted, was left lateral femoral cutaneous neuropathy, also known as meralgia paresthetica. He noted that the etiology could be compressive, giving as an example an overweight woman who wore tight jeans. Id. Dr. Morvarid planned to perform an EMG/nerve conduction study ("NCS"), and then, if there was any evidence of radiculopathy, an MRI of the lumbosacral spine. Id. He prescribed Lyrica for the pain and recommended that Newman be checked for evidence of diabetes, B12 or folate deficiency, hypothyroidism, or inflammatory causes of neuropathy such as lupus and rheumatoid arthritis. Id.
The Romberg test measures balance.
Compression of L2 and L3 nerve roots can cause radicular pain in the front of the thigh and shin.
Newman denied that this was true in her case.
Newman underwent the EMG/NCS on January 9, 2007. R 194. The results of the NCS were normal: no evidence of neuropathy was found along the peroneal, tibial, or sural nerves, and no evidence of radiculopathy was found. Id. The Lyrica prescription was discontinued after Newman reported side effects. R 200. Newman underwent a lumbosacral spine MRI on February 12, 2007, that revealed a central herniated disc at L5-S1, abutting the left S1 nerve root. R 247.
These results were recorded by Jeffrey N. Lang, M.D., a board certified neuroradiologist. R 247.
The following day, January 5, 2007, Newman saw a second neurologist, Dr. Mukesh Solanky, again at the referral of her primary care physician, Dr. Yousaf. R 250. Dr. Solanky wrote that Newman presented with a complaint of bilateral leg pain, mainly in front of the thigh up to the knee area. Id. Dr. Solanky recorded that Newman had experienced a "subacute onset" of symptoms sometime in November [2006] after undergoing myomectomy surgery. Within a few weeks, she noticed significant pain on the left side localized into lateral distribution on the anterior aspect of the thigh. Id. She also mentioned some hyperesthesia and numbness in the thigh area, more on the left side, which caused her some difficulty in walking. Dr. Solanky's possible differential diagnosis included lumbar radiculopathy or lumbar sacral plexopathy. R 251. He requested Newman's MRI and EMG results and all prior medical reports. Id. He recommended meanwhile that Newman increase her dosage of Neurontin and continue taking Elavil. R 252.
On March 12, 2007, Dr. Solanky completed a form report on Newman's behalf for the New Jersey Department of Labor and Workforce Development, Division of Temporary Disability Insurance. R 347. On the form he stated his diagnosis of lumbar radiculopathy/neuropathy. Id. He stated that, as a result of her disability, Newman was unable to perform her regular work duties beginning on November 29, 2006, after her surgery. Id. He estimated her recovery time to be four to six weeks from the date of the report. Id.
On March 22, 2007, Newman saw Thomas Raguknois, M.D., a pain management specialist. R 201-02. Newman complained to Dr. Raguknois of pain in the mid-lumbar area as well as numbness and dysesthesia in the left lateral thigh and anterior thighs bilaterally. R 201. She denied having any loss of bladder or bowel control, perceivable muscle weakness, or foot drop. R 202. Dr. Raguknois' examination revealed allodynia and dysesthesia, to a greater extent on Newman's left lateral thigh as compared to the right. R 201. The exam revealed that she had normal range of motion in her back, with normal muscle strength testing. Id. Her reflexes were within normal limits and her muscle bulk and tone were normal as well. Id. Dr. Raguknois' diagnostic impression was neuropathic pain syndrome with a herniated disc at L5-S1. R 202. He noted that he had a "long talk" with Newman, and told her that the treatment of her neuropathic pain was being done in a "proper way." Id. He agreed that it was "within the realm of possibility" that that dysesthesis and neuropathic pain could be a result of her myomectomy and positioning on the OR table, and that it might take a year to go away. Id. He recommended that Newman add vitamins B6 and B12 to her Neurontin and Cymbalta regimen. Id. He also suggested that she consider seeking additional neurologic opinions, and said he could give her injections to help her back pain if she wished. Id.
Newman returned to Dr. Solanky on July 16, 2007. R 245. His diagnostic impression was lumbosacral radiculopathy and meralgia paresthetica. Id. His notes stated that Newman was on Neurontin and Cymbalta, both of which he continued. Id.
On July 17, 2007, Newman saw her primary care physician, Dr. Yousaf, for a routine physical. R 291-94. Newman complained of changes in bowel habits and abdominal pain. R 292. She did not make any other complaints. Dr. Yousaf noted that she had normal gait and could undergo exercise testing or participate in an exercise program. R 293. The neurologic component of the exam revealed that cranial nerves II - XII were grossly intact; her reflexes were 2+ symmetric, with no pathological reflexes; and her sensation was intact to touch, pin, vibration and position. R 294. Examination of her mental status did not reveal any issues. Id. Dr. Yousaf noted that Newman would be scheduled for a colonoscopy and return to the clinic in three months. Id.
On October 24, 2007, Newman returned for a follow-up appointment with Dr. Solanky. R 246. He noted that her leg pain was continuing and that she had a burning sensation, mostly in the right leg. She had no shooting pain or numbness. Id. Newman had full motor strength and intact sensation. Id. She was continued on Neurontin and Cymbalta, and was prescribed lidocaine patches on a trial basis. Id.
On November 14, 2007, Newman underwent a consultative neurological examination from Dr. Richard Mills at the request of the Commissioner. R 228-31. Dr. Mills' notes stated that Newman drove herself to the appointment. R 228. He wrote that she could transfer papers appropriately, don and remove her shoes and socks without difficulty, and descend from the exam table unassisted. Id. Her chief complaint was numbness in both anterior thighs, with pain. Id. Newman told Dr. Mills that the pain and numbness in the anterior thighs had continued since her surgery the year before. Id. She rated the severity of the pain as between three to eight out of ten. Id. She stated that the pain increased with bad weather, with sitting for more than five to fifteen minutes, with standing more than five minutes, or with walking for about one block. She also stated that she had fallen, most recently in September. R 22829. Dr. Mills found that she was awake and alert, exhibited good calculations, and had a "good fund of knowledge." R 228. He also found she had normal mental status. R 229.
Newman's cranial nerves II-XII were intact and sensation was intact to pinprick and light touch except for an eight inch by two inch strip on both anterior thighs. Id. Dr. Mills described this area as bilaterally symmetrical, stating that she had 20% pinprick and light touch sensation and that pain was caused by palpating the area. He described this pain as a "painful paresthesia." Id. Her motor strength was 5/5 and her coordination and finger-nose Romberg testing was intact. Id. He noted that she had a limping gait with no drift. She was able to do tandem walking but had to hold onto the wall because of the pain in her legs. Id. Her range of motion was intact except that her lumbar spine flexion was limited to 85 degrees because of posterior thigh pulling. Id. In a seated position, she was able to raise her straight leg 90 degrees bilaterally. She was not able to squat, but was able to walk on her heels and toes. She had no muscle weakness or loss of reflex. Id.
Dr. Mills' impression was that Newman had a history of painful numbness with paresthesia in both anterior thighs following her abdominal surgery. Id. He wrote that her ability to sit was limited to five to fifteen minutes, her ability to stand was limited to five minutes, and her ability to walk was limited to one block. Id.
State agency medical consultant Dr. Howard Goldbas reviewed Newman's file and completed a Physical Residual Functional Capacity Assessment on November 30, 2007. R 232-39. The assessment stated the following:
1. Newman could occasionally lift 20 pounds and frequently lift 10 pounds;R 233. Dr. Goldbas explained that his conclusion was based on Newman's reports of pain and numbness in the anterior thighs after gynecologic surgery and her reports of some weakness in the legs. Id. The studies in the file were consistent with meralgia paresthetica and LS radiculopathy. Her examination revealed limping gait with no use of an assistive device and she was able to tandem walk while holding onto the wall. He also noted her mild limitation of LS flexion to 90 degrees. She was able to walk on toes and heels but not squat. He wrote that there was decreased bilateral sensation in her anterior thighs. He reported that Newman could stand/walk for four hours a day. Id. Dr. Goldbas rejected Dr. Mills' impression that Newman's ability to sit was limited to five to fifteen minutes, her ability to stand was limited to five minutes, and her ability to walk was limited to one block, stating that it was merely a restatement of what Newman told Mills. R 238.
2. She could stand and/or walk with normal breaks for at least two hours in an eight hour work day;
3. She could sit with normal breaks for about six hours in an eight hour work day;
4. She could push and pull (including operation of hand or foot controls) an unlimited amount.
Dr. Goldbas did not cite any specific evidence for this finding.
Another state agency medical consultant, Dr. Nancy Simpkins, reviewed the file on March 20, 2008. Simpkins seemingly confirmed Dr. Goldbas' findings. See R 34, 94, 310-11.
There is little detail in the Record regarding Dr. Simpkin's findings.
Newman saw Dr. Solanky again on December 9, 2007. She complained of continued leg pain and said she had fallen on one occasion. R 243. Her examination showed full motor strength (5/5). Id. Dr. Solanky continued the Plaintiff on Neurontin and referred her for a physical therapy evaluation. Id.
2. 2008
On January 2, 2008, Newman returned to Dr. Yousaf with upper respiratory symptoms and complaints of depression. R 253. Dr. Yousaf noted that her mental judgment, insight, and memory were intact but that she had a depressed mood. R 254. She was prescribed Allegra-D, Promethazine-Codeine, and Lexapro. Id.
Newman saw Dr. Yousaf again on August 4, 2008, for a routine physical exam. R 330-33. Newman had no complaints at this visit. She denied having any back pain, muscle cramps or weakness, paresthesia, depression, anxiety, or mental disturbance. R 331. Dr. Yousaf did not note any issues with her abdominal, musculoskeletal, neurologic, and mental status exams. R 332-33. Her cranial nerves II-XII were grossly intact and her reflexes were recorded as 2+, symmetric, with no pathological reflexes. Her sensation was intact to touch, pin, vibration, and position. R 333. Dr. Yousaf assessed Newman's existing hypercholesterolemia and hypothyroidism, both of which he reported were well controlled by current therapy. Id.
Newman returned to Dr. Solanky on March 9, 2009, for a follow-up appointment regarding her back pain and bilateral paresthesia. R 342-43. Dr. Solanky noted that this issue had been ongoing for the "last few years" and that Newman continued to have mild back pain and paresthesia in the lateral part of both legs. R 342. She had been taking 600 mg of Neurontin six times a day but still continued to have symptoms. Newman had tried to wean herself from the Neurontin, but her symptoms had worsened. She continued to complain of fatigue and difficulty with prolonged sitting and standing because of her back pain and paresthesia. Id. Dr. Solanky described Newman as having 5/5 strength in both upper and lower extremities with normal tone and bulk. Her sensory examination was intact to light touch, pinprick, vibration, and position sense. She had hyper-sensitivity and paresthesia in the left lateral quadrant of the bilateral thigh. Her coordination, rapid alternating movements, and reflexes were normal. Her gait was slow but normal with normal tandem walk. Her Romberg test was negative. Id. Dr. Solanky's impression was that, because of the minimal improvement in Newman's condition over the past two years, it was less likely that her condition would improve. Id. He advised she continue taking Neurontin five times a day. R 343.
3. 2009
In July 2009, following Newman's June 23 hearing before ALJ Andres, two psychologists submitted letters regarding Newman's treatment for mental health issues. Dr. Raymond S. Dimetrosky, D.Ed, wrote that he had recently seen Newman twice for issues related to anger, insomnia, and her "highly dysfunctional'' family. R 420. When Newman first attended therapy, starting in 1994, her diagnoses were Oppositional Defiant Disorder and Post Traumatic Stress Disorder. Id. Dr. Dimetrosky reported that Newman indicated during her recent therapy sessions that she was experiencing constant pain from meralgia paresthesia, the result of nerve damage from the removal of fibroid tumors. Id. Newman reported a burning sensation in both legs from this condition, and said it was extremely painful for her to wear clothing. In addition, Newman was reportedly taking care of her brother who was in the hospital. She stated that her family was dysfunctional and that her brother had abused her in the past. Id. Dr. Dimetrosky wrote that Newman's prognosis was not favorable because of the length of time that she had exhibited current emotional behaviors, her inability to sustain relationships, and her chronic pain. Id.
The report attached to Dimetrosky's letter characterized Newman's "marked restrictions of daily living" and "marked difficulties in maintaining social functioning" as "extreme". R 421. For "marked difficulties in maintaining, concentration, persistence or pace," the report indicated a "moderate" functional limitation. Id. Newman was also reported to possess the following "deeply ingrained, maladaptive patterns of behavior": seclusive thinking; pathologically inappropriate hostility; oddities of speech; persistent disturbances of mood or affect; and intense and unstable interpersonal relationships and impulsive damaging behavior. Id. Newman's prognosis was reported as "poor to fair." Id.
Psychologist Marilyn Birke, PhD, also submitted a letter regarding her past treatment of Newman. Dr. Birke had treated Newman from approximately 1994 to 2004. R 422. Birke noted that Newman came from a highly dysfunctional family. Id. After a psychiatric evaluation in 2004, Newman had been asked to relinquish her position as a senior probation officer. Newman left her position and also discontinued treatment. Dr. Birke had not heard from her since then. Id.
II. DISCUSSION
Newman's claim for DIB was denied by ALJ Andres after application of the five-step analysis described below. On appeal to this Court, Newman raises three claims of error with respect to the substance of ALJ Andres' decision. First, Newman argues that ALJ Andres failed to discharge his affirmative duty to develop the record. Pl. Br. at 1. In that connection, she alleges that ALJ Andres did not elicit sufficient testimony from her or adequately consider the testimony she did give. Id. at 3. Second, Newman asserts that ALJ Andres erroneously failed to credit or give appropriate weight to the opinions of her treating physicians. Id. at 4. Third, Newman asserts that the ALJ's exhibit list did not include all the exhibits that were submitted. Id. at 5-6.
Finally, Newman raises an argument based on her second application, pursuant to which the Commissioner awarded her benefits running from November 2009. That second decision, she asserts, is tantamount to a concession that she had been entitled to benefits for the November 2006-November 2009 period covered by her first application, i.e., the period at issue on this appeal.
A. Legal Framework
1. The Five-Step Sequential Analysis
Under the authority of the Social Security Act, the Social Security Administration ("SSA") has established a five-step evaluation process for determining whether a claimant is entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999).
Step 1: Determine whether the claimant has engaged in substantial gainful activity since the onset date of the alleged disability. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not, move to step two.
Step 2: Determine if the claimant's alleged impairment, or combination of impairments, is "severe.'' Id. §§ 404.1520(c),
416.920(c). If the claimant has a severe impairment, move to step three.
Step 3: Determine whether the impairment meets or equals the criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Part 404, Subpart P, Appendix 1, Part A. If so, the claimant is automatically eligible to receive benefits; if not, move to step four. Id. §§ 404.1520(d), 416.920(d).
Step 4: Determine whether, despite any severe impairment, the claimant retains the Residual Functional Capacity ("RFC") to perform past relevant work. Id. §§ 404.1520(e)-(f), 416.920(e)-(f). If not, move to step five. Up to this point (steps 1 through 4) the claimant has borne the burden of proof.
Step 5: The burden shifts to the SSA to demonstrate that the claimant, considering his or her age, education, work experience, and RFC, is capable of performing other jobs that exist in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g); see Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007). If so, DIB will be denied; if not, they will be awarded.
2. Standard of Review
As to legal issues, this Court's review is plenary. See Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to the factual findings of the Administrative Law Judge ("ALJ"), however, this Court is directed "only to determine whether the administrative record contains substantial evidence supporting the findings." Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). Substantial evidence is "less than a preponderance of the evidence but more than a mere scintilla." Jones v. Bamhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation omitted). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.; accord Richardson v. Perales, 402 U.S. 389, 401 (1971).
[I]n evaluating whether substantial evidence supports the ALJ's findings . . . leniency should be shown in establishing the claimant's disability, and . . . the Secretary's responsibility to rebut it should be strictly construed. Due regard for the beneficentReefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal citations and quotations omitted). When there is substantial evidence to support the ALJ's factual findings, this Court must abide by them. See Jones, 364 F.3d at 503 (citing 42 U.S.C. § 405(g)).
purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary system prevails.
B. The Commissioner's Decision
ALJ Andres found at step one of the sequential evaluation that Plaintiff had not engaged in substantial gainful activity since November 29, 2006, the alleged onset date. R 19. Substantial gainful activity ("SGA") is defined as work activity that is both substantial and gainful. "Substantial work activity" is work activity that involves significant physical or mental activities. 20 CFR 404.1572(a). "Gainful work activity" is work that is usually done for pay or profit, whether or not the profit is realized. 20 CFR 404.1572(b).
At step 2, ALJ Andres found that Newman's lumbosacral disc herniation and lower extremity pain syndrome were "severe" impairments. R 19-21. However, ALJ Andres found that Newman's mental impairment was not "severe." Newman's medically determinable mental impairment of oppositional behavior caused no more than "minimal limitation" on her ability to perform basic mental work activities. R 19-20. In making this finding, the ALJ considered the four broad functional areas set out in the disability regulations for evaluating mental disorders. R 20 (citing 20 CFR, Part 404, Subpart P, Appendix 1). Based on the physical impairments alone, then, he proceeded to step 3.
At step 3, ALJ Andres found that Newman did not have an impairment or combination of impairments that met or medically equaled one of the listened impairments in 20 CFR Part 404, Subpart P, Appendix 1. R 21 (citing 20 CFR 404.1520(d), 404.1525, 404.1526). ALJ Andres noted that other than a small area of paresthesia in Newman's thighs, there was no evidence of any neurological deficit. R 21. He noted that her motor strength in both lower extremities was normal at 5/5, and that her coordination, reflexes, and gait were normal as well. Id. (citing Exhibits IF, 7F, 13F). Nerve conduction study results were normal and did not show any evidence of neuropathy or radiculopathy. The results of Newman's lumbosacral MRI scan revealed a herniated disc at L5-S1 with no significant stenosis. Id. (citing Exhibit 7F). ALJ Andres also found no evidence of any nerve root compromise associated with neurological deficits as required in section 1.04A. Id. (citing 20 CFR Part 404, Subpart P, Appendix 1.04A).
At step 4, ALJ Andres ruled as to Newman's residual functional capacity (RFC). He concluded that she retained the ability to perform sedentary and light work, as defined in 20 CFR § 404.1567(b). R 21. He found that Newman nevertheless had several limitations: she could only lift and carry up to 10 pounds frequently and 20 pounds occasionally; could stand and walk two to four hours, and sit six hours, in an eight hour workday; could only occasionally climb ramps and stairs, balance, stoop and crouch; could not balance, kneel, or crawl; and needed to avoid concentrated exposure to extreme cold or hazards. Id.
In making this determination, ALJ Andres assessed Newman's subjective statements regarding her condition as well as the objective evidence of her impairments. After such consideration, ALJ Andres explained that Newman's medically determinable impairments could reasonably be expected to cause the alleged symptoms to some degree. He found, however, that her statements regarding the severity of her symptoms were not credible insofar as they conflicted with his RFC assessment. R 22. Specifically, he found that there was no objective evidence of any neurological deficits in Newman's lower extremities aside from some patchy paresthesia in both thighs. Id. Her nerve conduction studies were negative and her strength and coordination were normal. Id. Other than Newman's complaints of severe lower extremity pain, the evidence was "devoid of any objective evidence establishing neuropathy or other involvement in her lower extremities." R 22. While the evidence established a disc herniation in Newman's lumbosacral spine, she testified that this did not cause significant pain. R 22-23. Her treating neurologist, Dr. Solanky, described Newman's back pain as "mild" and found there was no evidence of radiculopathy or nerve root involvement. R 23.
ALJ Andres also found that the level of pain reported by Newman was not consistent with her daily activities. Id. Newman continued to drive locally for food, clothes and supplies, and continued to handle household chores such as cleaning, cooking, and laundry. Id. She cared for her pet cat and cared for her elderly father, monitoring his medication and health care. Id. The ALJ noted that she lunched with friends and attended weight watcher meetings weekly. Id.
ALJ Andres did not give any weight to the assessment provided by Dr. Mills, a consultative examiner. He found that Mills merely reiterated Newman's allegations, which were not consistent with the results of the neurological examination. Id. On the other hand, ALJ Andres gave "great weight" to the state agency's medical consultant's assessment (Exhibits 5F, 9F), because it was consistent with objective evidence. Id.
After determining Newman's RFC, ALJ Andres found that Newman did not retain the RFC to perform her past relevant work. That past work as a probation officer and stock room manager, he found, exceeded her residual functional capacity assessment. R 23.
At step 5, ALJ Andres concluded that Newman was not disabled within the framework of Medical-Vocational Rules 201.21, 201.28, and 202.28. R 24. Although Newman could not perform her past work, ALJ Andres found that there were jobs existing in significant numbers in the national economy that Newman could perform, taking into account her age, education, work experience, and residual functional capacity. Id. The ALJ considered Newman's age, education, and work experience in accordance with the Medical-Vocational Guidelines. Id. ALJ Andres found that the limitations on Newman's ability to work had little or no effect on the occupational base of unskilled jobs for which Newman was suited. Id. Accordingly, ALJ Andres found that Newman was not disabled from November 29, 2006, through the date of his decision, November 5, 2009. R 25.
The "occupational base" represents the types and number of jobs existing in the national economy for claimants with exertional impairments. See Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000). The occupational base is established by the grid laid out the Medical-Vocational Guidelines, which consists of a matrix of four factors: physical ability, age, education, and work experience. Id.
Substantial evidence in the Administrative Record supports ALJ Andres's conclusion that Newman was not disabled for the period alleged. The Commissioner's final ruling is therefore affirmed on that basis, and for the reasons set forth below.
C. Newman's Arguments
1. ALJ Andres Failed to Develop the Record
Newman first asserts that ALJ Andres failed to fulfill his affirmative duty to develop the record. Pl. Br. at 3. Part of that duty, she contends, is eliciting sufficient testimony from the claimant at the hearing. Newman argues that there is only brief mention of her testimony in ALJ Andres's opinion (at p. 6), even though she testified "at length" at the hearing and in her Function Reports. Id. This, she says, indicates (1) that ALJ Andres did not elicit sufficient testimony from her, and (2) that he did not adequately take her testimony into account when making his decision. Id. Because of these lapses, Newman argues, the record was not sufficiently developed, particularly regarding her physical tolerance for sitting, standing and walking. Id.
Newman's contention is not supported by ALJ Andres's opinion or the evidence in the record. ALJ Andres heard Newman's testimony at the June 23, 2009 hearing. See R 48-91. The ALJ questioned Newman about the pain in her legs, how long she could sit or stand, how much she could lift, and whether she had any other physical problems that affected her ability to work. R 52-53. Newman answered that she could sit or stand for five to ten minutes without a problem, that lifting was not a problem, and that she did not have any other problems that affected her ability to work. Id. ALJ Andres also asked Newman about EMG, nerve conduction, and MRI testing that she had received. R 54-55. In addition, ALJ Andres questioned Newman about the psychological treatment she had received. R 57-58. Newman testified that she did not believe psychological problems affected her ability to do things. R 58. The ALJ asked Newman about how active she was—how many times per week she cooked and cleaned, and how often she socialized. R 58-59.
Whether the ALJ followed proper procedure, including development of the record, is a legal question over which my review is plenary. His findings of fact based on therecord, however, are reviewed under the substantial evidence standard.
At the time of the hearing, ALJ Andres did not have all records from Newman's psychological treatment. The ALJ granted Newman's attorney an additional 30 days to submit those records.
After completing his questioning, ALJ Andres permitted Newman's attorney, Tracey Cahn, to develop her testimony with additional questions. R 59. Cahn questioned Newman in detail about the onset of her leg pain, and the ALJ interjected to ask follow-up questions. R 67-70. Newman testified at length about the extent and degree of her symptoms, and the medication she took to relieve them. R 78-97. Cahn asked Newman about her work history as a probation officer and therapy she had received for emotional issues. R 50-66. Cahn also delved into Newman's physical problems, starting with her fibroid surgery in November 2006. R 66-67. She asked Newman about her ability to care for herself and her father, for whom she was the primary care giver. R 70-75. Cahn also elicited testimony regarding Newman's social life, including weekly Weight Watchers and lunch meetings with a friend. R 75-78. There is no indication that ALJ Andres failed to adequately develop the record with Newman's testimony.
It is also clear that the ALJ considered Newman's testimony in rendering his opinion. ALJ Andres's opinion directly addresses Newman's statements about her condition, comparing and contrasting them with other evidence in the record. His opinion explicitly discusses her testimony and assesses its credibility. After considering her subjective complaints in light of the rest of the record, ALJ Andres accepted them in part, but reasonably concluded that they were not entirely credible. See R 20-22.
To say that the ALJ did not entirely accept Newman's testimony is not to say that he did not consider it. The record demonstrates that the ALJ did permit her to testify fully and fairly. In the end, he found the claimant's subjective statements to be inconsistent with the other evidence in the record and insufficient to establish a disability. And the ALJ's approach was correct. An individual's statement as to pain or other symptoms cannot, by itself, be conclusive evidence of a disability. 42 U.S.C. § 423(d)(5). There must also be "medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment . . . which could reasonably be expected to produce the pain or other symptoms alleged." Id. Accord Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1992).
The ALJ must then, as Andres did here, consider the claimant's statements and the objective evidence together. If the ALJ concludes that there is a medical impairment that could reasonably cause the alleged symptoms, the ALJ must then evaluate "the intensity and persistence of the pain or symptom, and the extent to which it affects the individual's ability to work." Hartranft, 181 F. 3d at 362. Here, ALJ Andres determined that there was a medical impairment that could reasonably cause Newman's alleged symptoms. R 22. ALJ Andres also found, however, that Newman's statements concerning the intensity, persistence and limiting effects of these symptoms were not credible— i.e., exaggerated—when considered in light of the other evidence. Id.
Newman's objection, then, goes less to the process of the ALJ's analysis than to the result. But that result, the ALJ's ultimate finding, was consistent with the objective medical evidence of record, including: a lack of objective evidence of any neurological deficits in Newman's lower extremities other than some patchy paresthesia, negative nerve conduction studies, normal strength and coordination, and a normal (if slow) gait. See R 194, 197, 201, 229, 246, 294-94, 333. The finding was also consistent with the evidence elicited from Newman during the hearing, which established that Newman performed most daily activities on her own, cared for herself and her father, and drove herself to appointments and social engagements. R 74-79. These pieces of evidence are all cited, discussed, and weighed in ALJ Andres' opinion.
Newman specifically cites a lack of evidence regarding Newman's physical tolerance for sitting, standing and walking. Pl. Br. at 3. Those issues are, however, addressed in the ALJ's opinion. In response to the ALJ's questions, Newman testified that she could sit for only five to ten minutes, and could stand for about the same period. R 52-53. The only other evidence that supports this contention was provided by Dr. Mills, a consultative examiner. He noted that Newman could sit for five to fifteen minutes and stand for five. R 229. The ALJ chose to give no weight to this assessment, concluding in effect that it was hardly a medical opinion at all; rather, it was merely Mills' recapitulation of what Newman told him. Further, it was inconsistent with the results of Dr. Mills' own neurological examination. R 23. That exam was essentially normal, showing that Newman's sensation was intact in the lower extremities except for a small patch on both thighs, that her motor strength was normal, her coordination intact, and that she had no reflex loss. Id. The ALJ's decision to give no weight to Dr. Mills' assessment was not arbitrary or erroneous; as the ALJ explained, it was reasonably based on evidence from Mills' own neurological exam as well as the other medical evidence in the record.
In sum, Newman's argument that the ALJ failed to sufficiently develop the record is without merit. The ALJ sufficiently developed the record and made a determination of Newman's disability that was reasoned and supported by the evidence of record.
2. ALJ Andres Failed to Give Appropriate Weight to the Opinions of Newman's Treating Physicians
Newman next argues that the ALJ ignored, or failed to give appropriate weight to, the opinions of Newman's treating physicians. Pl. Br. at 4. Medical opinions are properly considered together with the rest of the relevant evidence in the record. 20 CFR 404.1520b. Opinions from treating sources are generally given more weight, and are given controlling weight if the ALJ finds that a treating source's opinion on the nature and severity of the claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record. 20 CFR 404.1527(c)(2). Newman contends that ALJ Andres ran afoul of these principles. Her treating doctors' opinions, she says, were supported by "[t]he clinical medical record and her persistent symptoms," and therefore should have been given controlling weight. Pl. Br. at 4.
Specifically, Newman focuses on her mental impairment. She disputes the ALJ's finding that her medically determinable mental impairment caused no more than a "mild" limitation under the criteria set forth for evaluating mental disorders in the disability regulations. Pl. Br. at 4; 20 CFR, Part 404, Subpart P, Appendix 1, Section 12.00(C). Functional limitations from mental impairment are assessed using four criteria: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 CFR, Part 404, Subpart P, Appendix 1, Section 12.00(C). This criteria is used to rate the severity of the alleged mental impairment at steps 2 and 3 of the sequential analysis.
ALJ Andres found that Newman had no limitation in the first three categories: activities of living; social functioning; and concentration, persistence, or pace. R 20. He also found that Newman had experienced no episodes of decompensation that were of extended duration. Id. Because Newman's mental impairment caused no more than "mild" limitations in the first three areas and "no" episodes of decompensation for extended duration in the fourth area, he found the mental impairment was not severe. Id. (citing 20 CFR 404.1520a(d)(1)). ALJ Andres thus concluded that the facts of record did not establish a severe mental impairment. Id.
The Opinion does not explain why the ALJ first stated that Newman had "no limitation" in the first three functional areas, and then stated that there was no more than a "mild" limitation in those areas. R 20. That discrepancy, if that is what it was, does not bear on the ALJ's conclusion that there was not a "severe" mental impairment.
There is no indication that the ALJ failed to appropriately weigh the opinion evidence of Newman's treating physicians in making this assessment. In her brief, Newman points to opinion evidence from three mental health professionals: Dr. Ravinder Bhalla, Dr. Charles Whul, and Dr. Marilyn Birke. Pl. Br. at 5 (citing Exhs. 11F, 15F, and 17F). None of the evaluations from these providers, however, occurred during the relevant period (starting November 29, 2006). Dr. Bhalla's evaluation dated from January 2006; Dr. Wuhl's evaluations occurred in December 2004 and November 2005; and Dr. Birke treated Newman from 1994 to 2004. See id. Dr. Wuhl, moreover, was not Newman's treating physician; he evaluated Newman's continued fitness to work as a probation officer. R 361-64.
During the relevant period, Newman attended only two mental health sessions, both of which occurred after the June 23, 2009 hearing. See R 57-58 (Newman testified at hearing that she had not gotten psychological treatment since 2007). Newman saw Dr. Dimetrosky, a licensed psychotherapist, twice for individual psychotherapy. R 420. Dr. Dimetrosky's letter regarding those sessions stated that Newman said she was experiencing constant pain from meralgia paresthesia. Id. In addition, she was caring for her brother who was in the hospital. She indicated that her family was dysfunctional and that her relationship with her brother had involved abuse. Id. Dr. Dimetrosky also noted that Newman's social relationships were limited, and that her emotional issues had been occurring for "more than ten years." He found her prognosis not favorable. Id.
ALJ Andres incorrectly recorded the dates of Newman's treatment by Dr. Dimetrosky. His decision states that Dimetrosky saw Newman twice in 2004, but in fact he saw her in 2009. R 20, 420. It is unclear whether this was a mere scrivener's error. Given that, after the June 2009 hearing, the ALJ kept the record open in order that this evidence could be received, it seems unlikely that he could have truly thought it dated from 2004.
The ALJ's overall findings regarding Newman's mental impairment are supported by substantial evidence. ALJ Andres assessed the evidence from Dr. Dimetrosky, as well as from Dr. Birke, Dr. Bhalla, and Dr. Wuhl. R 19-20. The Birke, Bhalla, Wuhl assessments centered on Newman's time as a probation officer, and even Dr. Dimetrosky's 2009 assessment rested in part on Dr. Birke's earlier work. See R 420. ALJ Andres gave these assessments little weight, for reasons he explained in his opinion. R 20. The assessments were not accompanied by treatment records. Even after the Birke, Bhalla, and Wuhl assessments, and after Newman had left her job as a probation officer, she was employed as a stock room manager from December 2005 to July 2006. Clearly the problems identified by those doctors did not preclude gainful employment at that time. Id. ALJ Andres also pointed to Newman's own testimony that she had not had any mental health treatment since she started receiving her disability pension. He cited the June 2009 treatment notes from her treating general physician, Dr. Yousef, which stated that Newman did not have any depression, anxiety, or agitation. Id. Finally, ALJ Andres reasoned that Newman was able to handle her own personal care, perform household tasks, shop, drive, care for her father, and meet friends for lunch. Id. On the basis of all this evidence, he concluded that Newman did not have a severe mental impairment.
It is true that Dr. Dimetrosky's 2009 letter suggests that Newman's emotional or mental issues, identified years earlier when she was employed as a probation officer, were ongoing. The evidence as a whole, however, does not support a finding of a severe mental impairment. Newman was not receiving psychotherapy or any other psychological treatment during the period relevant to her disability claim. Newman did report feeling depressed during her January 2008 visit to her primary care physician, Dr. Yousef, and he prescribed Lexapro. R 254. However, when she returned in August 2008, she no longer reported a depressed mood and her mental exam was normal. R 331. Further, none of the medical opinions of other treating physicians indicated a mental issue or disturbance. See R 197, 251, 228-29, 342. There is no other evidence in the record of Newman's needing or seeking mental health services during the relevant period. Newman herself testified that psychological problems did not affect her ability to do things. R 58.
The ALJ, in deciding whether to give Dr. Dimetrosky's letter "controlling weight" as the opinion of a "treating" therapist, might also have considered that Dimetrosky saw Newman just twice, and that those two sessions occurred in 2009 after her claim had been filed.
Even giving due weight to evidence of psychological treatment before the relevant period, the ALJ was entitled to, and did, find that it was outweighed by the other evidence in the record pertaining to the relevant period. The ALJ carefully considered this evidence, and cogently stated the basis for his decision not to give it "controlling weight" pursuant to 20 CFR 404.1527. This was not erroneous. The ALJ did not "disregard" Dr. Dimetrosky's opinion, but reasonably placed it in the context of the other evidence in the record. See Pl. Br. at 6; R 19-20. That evidence does not support a conclusion that Newman had a mental impairment that caused functional limitations that significantly limited or precluded her from engaging in any substantial gainful work. See 20 CFR 404.1505. The ALJ's conclusion that Newman did not have a severe mental impairment was supported by substantial evidence and will not be disturbed.
3. ALJ Andres' Exhibit List was Deficient
Newman also contends that the exhibit list is deficient because it does not include all of the exhibits submitted. Pl. Br. at 6. No such objection was raised at the hearing. At the outset of the hearing, the ALJ identified the exhibits (1B through 10F) that were being introduced, and he noted that "whatever additional information" Newman's attorney submitted into evidence would also be accepted. R 40. Asked if she had any objection, Newman's attorney, Ms. Cahn, stated that she did not. Id. Newman now argues that the exhibit list is deficient because it does not include any "A" exhibits and only one "B" exhibit, and thus violates the Hearings, Appeals and Litigation Law Manual ("HALLEX) I-2-1-15.
Newman has not demonstrated that the ALJ's exhibit list was deficient, or that she suffered any prejudice by not having certain "A" and "B" exhibits included. The burden of showing that an error is harmful normally falls on the party attacking the agency's determination. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009); City of Camden, N.J. v. U.S. Dep't of Labor, 831 F.2d 449, 451 (3d Cir. 1987). Newman does not even identify the substance of these omitted exhibits. (The Government's opposition, however, identifies the "A" exhibits as "payment documents and decisions" and the "B" exhibits as "jurisdictional documents and notices.") Without any further description of these unlisted exhibits or their significance, I cannot assess whatever harm is said to flow from their omission.
The record here does contain a May 27, 2009 hearing notice marked as Exhibit "IB."
Furthermore, it is not at all clear that the omission of these exhibits from the list violated HALLEX. The relevant provision of HALLEX provides that the hearing office staff will select exhibits and prepare an exhibit list for the ALJ, selecting those documents that are "material to the issues in the case." HALLEX I-2-1-15. HALLEX itself, then, seems to contemplate some winnowing process, subject of course to objections by the parties. Even now, Newman fails to identify the missing exhibits or state how they were material to the ALJ's determination of her application. She has not demonstrated any harmful error related to omissions from the exhibit list and thus this claim of error must also be denied.
These two categories of documents are typically identified as proposed exhibits. HALLEX I-2-1-15C.
4. Subsequent Receipt of Benefits-Second Application
Finally, Newman suggests that the Social Security Administration effectively conceded that she had been disabled since November 29, 2006, when it rendered a second decision finding her disabled as of November 6, 2009. Pl. Br. at 1. Newman's reliance on a later determination of disability is misplaced.
A copy of that second decision was not submitted.
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Newman is essentially claiming that the second determination is new evidence that bears on the first. A court may remand a case to the agency upon a showing that there is "new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g). Such a remand would not be appropriate here.
This Court has jurisdiction to review the SSA's final decision based on the pleadings and administrative record of the case. See id. Generally, that means that the Court reviews the evidence submitted to the ALJ, and only the evidence submitted to the ALJ. See Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001) (holding that evidence not presented to ALJ cannot be used to argue that the ALJ's decision was not supported by substantial evidence). Evidence not submitted to the ALJ, however, may be reviewable as a basis for a court's decision whether to remand to the Commissioner for further proceedings. See Szubak v. Sec'y of Health and Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). Such extrinsic evidence "must relate to the time period for which benefits were denied" and must not be solely of a "later acquired disability, or of the subsequent deterioration of the previously non-disabling condition." Id. A subsequent decision that a claimant is (or has become) disabled does not in itself constitute "new and material evidence" and is not sufficient to warrant reversal or remand. Allen v. Commissioner of Social Sec, 562 F.3d 646, 653 (6th Cir. 2009); Cunningham v. Commissioner of Social See, 507 Fed App'x 111, 120 (3d Cir. 2012) (citing Allen with approval). To demonstrate that remand or reversal is appropriate, Newman must show that the second decision was based on new and material evidence that she had good cause for not raising in the first proceeding. Id. at 653; Cunningham, 507 Fed App'x at 120.
Newman has not made that showing here. To begin with, Newman does not submit a copy of the second decision. She does not claim that the second decision was based on new evidence. She instead asserts that because the ALJ in the second determination related Newman's bilateral neuropathy back to nerve damage from her 2006 surgery, she must have been disabled starting the date of that surgery. That does not necessarily follow; medical conditions can grow more severe over time. Newman's assertion is not sufficient to demonstrate that there is "new evidence that is material" as required by Section 405(g). Remand is therefore not appropriate.
I will, however, entertain a motion for reconsideration that attaches a copy of the second decision, with a sufficient explanation of why it was not submitted before. Because the substantive arguments are contained in the present papers, such a motion should consist of no more than five pages, and should be submitted within the time limit imposed by the Local Rules. I express no view on the merits of such a motion, or whether it would meet the prerequisites of the Local Rules
III. CONCLUSION
Newman's claims of error based on the evidence adduced and evaluated at the hearing before the ALJ fail to show that the ALJ erred as a matter of law or that his decision was not supported by substantial evidence. The denial of Newman's claim for DIB for the period of November 29, 2006 to November 6 2009 is therefore AFFIRMED.
An Order will be entered in accordance with this Opinion.
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Hon. Kevin McNulty
United States District Judge