Opinion
Civ. No. 97-3128 (DRD)
June 22, 1999.
Lawrence E. Kazmierczak, Esq., Oakland, N.J. Attorney for Plaintiff.
Faith S. Hochberg, Esq., United States Attorney, By: Peter G. O'Malley, Esq., Assistant U.S. Attorney, Newark, N.J. Attorney for Defendant.
O P I N I O N
Plaintiff, Edward Pinksaw, appeals pursuant to 42 U.S.C. § 405 (g) and 1383(c)(3) from a final determination of the Commissioner of Social Security ("Commissioner"), denying his application for social security disability insurance benefits under Title II and XVI of the Social Security Act ("Act"). Plaintiff seeks a reversal of the dismissal of his claim by the Administrative Law Judge ("ALJ"). For the reasons set forth below, the Commissioner's decision will be affirmed.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The following facts are set forth in the administrative records. Plaintiff, Edward Pinksaw, was born on May 26, 1950. (Tr. 29.) Plaintiff completed the eleventh grade. (Id.) For approximately one year, ending in September 1991, plaintiff worked as a driver and packer for a moving company. (Tr. 29-30.) This job required plaintiff to be on his feet constantly, bending and squatting, and lifting weights between 50 and 100 pounds. (Tr. 31.) Plaintiff's previous employment was assembling silk screen machines and dryers. (Id.) This job required kneeling, squatting, and lifting up to 150 pounds. (Id.) Plaintiff was on his feet all day. (Tr. 31-32.) Prior to this, Plaintiff worked as an assembler in a factory making stainless steel food mixers, with physical requirements similar to the silk screen assembly job. (Tr. 32-33.) In the 1970's, Plaintiff worked as a machinist assembler for over 9 years.
On March 28, 1995, Plaintiff applied for disability insurance benefits under the Act covering the dates from September 10, 1991 through the expiration of his insured status on December 31, 1996. (Tr. 48-51; 82-96.) The claim was denied by the State Agency, both initially and on reconsideration. (Tr. 52-79; 97-104.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") and appeared on April 11, 1996 at a hearing before the Hon. Richard L. DeSteno. (Tr. 80-81; 26-47.) On July 12, 1996, the ALJ held that Plaintiff was not disabled since there are a significant number of jobs in the national economy that he could perform. (Tr. 7-17.) On June 3, 1997, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 2-6.) Having exhausted his administrative remedies, Plaintiff now seeks review of the ALJ's decision.
A. Plaintiff's Testimony
The following statements were put forth by Plaintiff in his testimony at the April 11, 1996 hearing. Plaintiff was injured at work on September 9, 1991, when he slipped and struck his knee on the frame of a truck, bruising the inside of the patella. (Tr. 29-30.) After the accident Plaintiff had x-rays and tests performed at the hospital and was put on Workers' Compensation. (Tr. 33-34.) In January 1993, Plaintiff had arthroscopic surgery, followed by physical therapy. (Tr. 34.) This treatment failed to improve his condition. (Tr. 34.) Plaintiff was taking Naprosyn medication as a muscle relaxant and for pain. (Tr. 35.) Plaintiff had extreme pain and constant swelling of the leg and his knee locked up on him, with no sign of improvement from his medication. (Id.) In April 1994, Plaintiff had further surgery by Dr. Oppenheim to remove his patella. (Id.) This surgery did not help his condition. (Id.)
Since the accident Plaintiff's condition did not improve at all and he lost almost 60% of his leg strength. (Tr. 36.) In the past Plaintiff took Darvocet and Daypro, but at the time of the hearing he was taking Naprosyn, which sometimes helped, though it made him tired. (Tr. 36-38.) Plaintiff helped his sister with the cooking and dusting, but did not vacuum much since it required too much use of his leg. (Tr. 38.) Plaintiff did not shop, he drove periodically, perhaps twice a week for up to half an hour at a time, and had to walk slowly because his leg would get very sore and give out. (Tr. 39, 44.) Plaintiff could sit for approximately 30 to 45 minutes before his leg got very sore, swelled, cramped and was hard to lift, similar to what he experienced when he drove a car. (Id.) Plaintiff could walk for about 20 minutes and stand for approximately 15 minutes in one spot before he needed to shift his weight to the other leg. (Tr. 40.) Additionally, the heaviest object Plaintiff lifted was a gallon of milk and while he could use an exercise bike for 4 or 5 minutes, he did not do any strenuous exercise. (Id.)
Plaintiff testified that he suffered pain all day in his knee, stretching down his leg into his ankle, and would lose feeling in his leg. (Tr. 40-41.) Plaintiff had pain in the right side of his back due to his leg giving out. (Tr. 44.) Additionally, the pain distracted him, affecting his concentration, and sometimes made it difficult for him to fall asleep. (Tr. 45.) Plaintiff was off his feet most of the day, at least five or six times a day for a couple of hours at a time. (Tr. 45-46.) When Plaintiff got up in the morning he tried to make his bed, walked approximately one block to the store for a newspaper, then lay down and elevated his leg. (Tr. 41.) Plaintiff watched television for a couple of hours a day and tried to read, but it was hard on his eyes. (Tr. 42.) Plaintiff previously went fishing, camping, hiking, and walking, but could no longer do these activities. (Id.) Plaintiff testified that he did not think he could perform sedentary work because his leg would start to get numb. (Id.) Plaintiff saw his doctor every four to six weeks, but had not seen him for about two months at the time of the hearing. (Tr. 43.) Plaintiff no longer wore a brace because he was told there was no need for it since there was no longer a patella to hold the brace in place. (Tr. 43-44.)
B. Records of Treating Physician Dr. William Oppenheim, M.D .
Extensive records from Plaintiff's treating physician track his progress from January 28, 1993 to February 8, 1996. On January 28, 1993, Dr. Oppenheim first evaluated Plaintiff and rendered a diagnosis of patella malalignment and chondromalacia (softening of cartilage) of the patella. (Tr. 137.) A subsequent letter written by Dr. Oppenheim to Comprehensive Rehabilitation Associates, Inc. indicated that following the accident on September 10, 1991 Plaintiff underwent physical therapy until August 25, 1992, when an arthroscopic evaluation of his right knee was conducted. (Tr. 138.) The procedure involved diagnostic and operative arthroscopy. (Id.) Plaintiff was referred back to physical therapy where Plaintiff underwent exercises, electrical stimulation and edema control. (Id.) Dr. Oppenheim wrote that subjectively, the arthroscopy provided little improvement, and that the physical therapy had not been able to provide Plaintiff with any major degree of relief. (Id.) However, earlier records transferred from October 22, 1992 and December 7, 1992 indicated that while Plaintiff had reported pain around the inferior and lateral border of the patella, Plaintiff had felt that the surgery had helped. (Id.)
On April 1, 1993, Plaintiff's active range of motion of the knee was from 0 to 130 degrees. (Tr. 137.) When lateral pressure was applied medially, Plaintiff's discomfort was alleviated to a large extent. (Id.) Plaintiff was no longer required to continue with physical therapy, but should continue to stretch on his own. (Tr. 137.) On April 21, 1993, Plaintiff underwent arthroscopy for a vastis medialis advancement in hopes of alleviating his pain due to the malpositioning of the patella. (Tr. 133-36.) On May 4, 1993, Dr. Oppenheim noted that Plaintiff was not in any of the discomfort he had previously reported. (Tr. 133.) Plaintiff's range of motion was 0 to 115 degrees and the patella "appeared to be tracking more normally with no lateral deviation as previously noted." (Id.) No calf tenderness existed. (Id.)
Notations from June 1, 1993 indicated that Plaintiff was participating in physical therapy and walking with a cane. (Tr. 132.) Plaintiff was not suffering the pain he had prior to the surgery. (Id.) Three centimeters of thigh atrophy was noted. (Id.) Naprosyn 500 mgs was prescribed for twice a day. (Id.) On June 29, 1993, Plaintiff had been doing well in physical therapy and was ambulating for several hours on his feet. (Tr. 131.) On August 10, 1993, Plaintiff reported some "popping" of his patella with accompanying discomfort. (Tr. 130.) Dr. Oppenheim observed popping at 30 degrees of flexion and that it did appear to produce subjective discomfort. (Id.) Plaintiff was placed into a patella brace and was to begin McConnell taping of his patella to reduce the popping. (Id.) Plaintiff was next seen on September 14, 1993, then again on October 5, 1993, when a "squashy" feeling under the patella was noted, consistent with Plaintiff's condition of chondromalacia. (Tr. 128.) Marked improvement in leg strength was recorded. (Id.)
On November 11, 1993, Plaintiff reported that his patellofemoral joint produced discomfort when he climbed stairs or with prolonged ambulation. (Tr. 127.) Plaintiff continued stretching, using his brace, and taking Naprosyn. (Id.) Minimal atrophy was noted and an active range of motion of the knee was from 0 to 135 degrees. (Id.) Plaintiff's gait was normal on level surfaces with no instability pattern detected. (Id.) Plaintiff was given a new knee brace and was released from Dr. Oppenheim's care since Plaintiff had reached his maximum medical benefits. (Id.) Plaintiff was given a note that he could return to work, but that he could not lift heavy objects or climb stairs for a prolonged period of time. (Id.) Plaintiff was instructed to continue with his stretching and remain on Naprosyn. (Id.)
On January 5, 1994, Plaintiff re-visited Dr. Oppenheim and reported that he experienced swelling within his knee and could not walk for a day or two after any activity. (Tr. 126.) Plaintiff had been using his brace, but then switched to an ace bandage. (Id.) Plaintiff retained an active range of motion of the knee from 0 to 135 degrees. (Id.) Plaintiff still experienced popping of the patella and accompanying discomfort. (Id.) Plaintiff additionally complained of discomfort along the medial and lateral borders withing the flexion extension arc. (Id.) Dr. Oppenheim discussed three options with Plaintiff. (Id.) Plaintiff could do nothing, have a patellectomy, or have a custom patella femoral replacement. (Id.) Plaintiff indicated that the first option was unacceptable because he was unable to function in his condition. (Id.) Dr. Oppenheim explained that the second option, a patellectomy, would result in decreased leg strength, but there was a high probability that it would provide Plaintiff with a painless patella femoral joint. (Id.) The third option was experimental. (Id.) Plaintiff was evaluated by Dr. Arthur Canario, who agreed that a patellectomy was in order. (Tr. 125.) On March 24, 1994, Plaintiff continued to be bothered significantly by the patellofemoral problem. (Id.) Tenderness was detected over the inferior medial and lateral borders of the patella. (Id.) Dr. Oppenheim again explained the trade-off of having the patellectomy and Plaintiff agreed to go ahead with the procedure. (Id.)
On April 6, 1994, Plaintiff underwent a patellectomy and was placed in a long leg cast. (Tr. 118-19.) On May 19, 1994, Plaintiff's cast was removed and the incision appeared intact with no evidence of any infection and no tenderness to touch. (Tr. 117.) Plaintiff began a physical therapy program and as of July 28, 1994, despite use of the brace, Plaintiff was ahead of schedule with motion. (Tr. 115.) No evidence of swelling or tenderness to palpation was observed. (Id.) Plaintiff's active range of motion of the knee was from 0 to 130 degrees and while atrophy of the thigh remained, it was diminishing. (Id.)
On June 23, 1994, Plaintiff's visit revealed no evidence of swelling. (Tr. 116.) On October 13, 1994, Plaintiff reported having trouble with his physical therapy due to pain and a lack of strength over the superomedial corner of the knee. (Tr. 113.) There was no evidence of any swelling on this visit. (Id.) Dr. Oppenheim recorded an indication of tenderness relating to what Plaintiff described as a feeling that his knee wanted to give out. (Id.) Atrophy of the hamstring and quadriceps was noted. (Id.) Plaintiff received a therapeutic injection to eliminate discomfort. (Id.) Records from Plaintiff's November 3, 1994 visit indicated that Plaintiff developed pain over the lateral retinacular region. (Tr. 112.) However, Dr. Oppenheim noted that Plaintiff was able to participate more strongly in therapy although significant weakness still existed within the leg. (Id.) Plaintiff was freely ambulating without an assistive device. (Id.) Plaintiff received another therapeutic injection to the medial and lateral retinaculum to eliminate discomfort. (Id.)
On December 22, 1994, discomfort around the retinaculum was essentially gone since his last therapeutic injection. (Tr. 111.) Plaintiff reported that he still lacked strength and that he had stumbled and lost his balance on various occasions, once twisting his ankle. (Id.) On February 2, 1995, Plaintiff indicated that he experienced discomfort over "the medial aspect of the patella tendon-quadriceps tendon anterior portion of the medial retinaculum" when resistance was applied to his knee. (Tr. 110.) Additionally, Plaintiff reported some giving way. (Id.) However, the physical therapist indicated that Plaintiff's strength in his right leg was really quite good even though he had a 40% deficit as compared to the left side. (Id.) Plaintiff also spoke of periodic swelling, but Dr. Oppenheim noted that this was not documented by his prior visits or by his physical therapist. (Id.) Dr. Oppenheim measured an active range of motion of the knee from 0 to 130 degrees. (Id.) Plaintiff had the ability to maintain full leg extension as well as knee stability. (Id.) Plaintiff had no joint line discomfort and his strength appeared to have improved. (Id.) Dr. Oppenheim recorded that "it is unclear why he has the giving way which he claims. He certainly ambulates on visualization without any deficit being appreciated." (Id.) Dr. Oppenheim further recorded that he did not believe further physical therapy would benefit Plaintiff. (Id.) Dr. Oppenheim noted that Plaintiff's mother had passed away and that there was a question of "secondary gain." (Id.)
On June 22, 1995, Plaintiff indicated that he continued to experience periodic giving way of his knee and that he did not feel there was any improvement regarding leg strength. (Tr. 109.) Dr. Oppenheim noted that it was not clear to what extent Plaintiff had been exercising, though Plaintiff said he was using free weights. (Id.) Plaintiff complained of continuing pain within the anterior aspect of his knee around the patellectomy region where the quadriceps and patella tendon had been proximated. (Id.) Dr. Oppenheim again noted that Plaintiff walked without favoring the affected side. (Id.) No swelling was found, though some tenderness was noted over the patella quadriceps tendon interface and the medial retinacular region. (Id.) Plaintiff indicated that the Daypro medication was not helping relieve pain. (Id.) Dr. Oppenheim prescribed Oruvail and discussed the idea of bicycle use in Plaintiff's rehabilitation. (Id.)
On October 26, 1995, Plaintiff continued to report giving way of his knee and that he ambulated on the lateral aspect of his ankle since he still had discomfort. (Tr. 144.) Plaintiff also reported waking up with numbness about his leg, especially along the lateral aspect. (Id.) Dr. Oppenheim performed a sensory examination which showed a subjectively diminished sensation along the lateral aspect of the calf, the inner aspect of the calf, and the lateral aspect of the thigh. (Id.) Subjective tenderness was noted over the lower lumbar spine region, right transverse process region, and along the iliac crest region. (Id.) Plaintiff also indicated some discomfort along the sciatic nerve within the buttock. (Id.) Dr. Oppenheim showed Plaintiff stretches for the sciatic nerve and hamstring and continued Plaintiff on Naprosyn. (Id.) Dr. Oppenheim indicated in his record that it was unclear whether Plaintiff's complaints were related to his knee injury. (Id.)
On February 8, 1996, Plaintiff proclaimed he had been making great efforts to use his exercise bicycle and that he had increasing thigh strength and muscle mass. (Tr. 143.) Dr. Oppenheim observed obvious improvement of the quadriceps muscles mass. (Id.) Plaintiff still reported discomfort within the knee region around the area of the patellectomy. (Id.) Plaintiff still indicated some periodic numbness withing the leg. (Id.) Plaintiff continued to express subjectively diminished sensation along the lateral and inner aspects of the calf and the lateral thigh region. (Id.) Dr. Oppenheim's record indicated that there was no tenderness about the lower lumbar spine region or the transverse process. (Id.) Dr. Oppenheim placed Plaintiff on a Medrol dose pack for 5 days and indicated that an electrodiagnostic study may be needed if Plaintiff's complaints continue. (Id.)
C. Other Medical Evidence
On February 24, 1995, Plaintiff was examined by Dr. Paul Glicksman, M.D. (Tr. 105-06.) Dr. Glicksman observed that Plaintiff was walking without a limp. (Id.) No redness or heat was detected and there was no apparent joint effusion. (Id.) Knee motions were full, though Plaintiff experienced pain on extreme flexion. (Id.) Two inches of atrophy were detected involving the right thigh. (Id.) Dr. Glicksman's opinion, based upon his examination and Plaintiff's history, was that Plaintiff had sustained a severe injury to the right knee, which resulted in discomfort when weight bearing or stressful activities were required. (Id.) Dr. Glicksman further opined that Plaintiff was unable to perform occupations requiring the above activity types, and that Plaintiff "can only be employed in an occupation which is completely sedentary." (Id.)
On March 12, 1996, Plaintiff was evaluated by Dr. Mendelson, M.D. at Neurology Associates, P.A. for nerve conduction and electromyography ("EMG") studies. (Tr. 146.) Results showed Plaintiff's nerve conduction studies were normal. (Id.) In the paraspinal muscles, the EMG was abnormal with evidence of denervation at L4/L5 and to a lesser degree at L5/S1. (Id.) This was consistent with an L5 radiculopathy (disease of the spinal nerves) or an L4 and L5 radiculopathy. However, Dr. Mendelson stated that "the radiculopathy is presumably mild since the limb muscles remain unaffected with changes noted only in the paraspinal muscles." (Id.)
On April 5, 1996, Plaintiff underwent an MRI under the supervision of Dr. Edward Fobben, M.D. (Tr. 149.) Dr. Fobben's impression was that there was no evidence of disc herniation or spinal stenosis. (Id.) In response to a concern of a possible L4-5 disc herniation on the right, Dr. Fobben noted that the MRI was "unremarkable," showing no focal disc protrusion or herniation at any level. (Id.) Mild degenerative changes were seen at L3-4, L4-5 and L5-S1 with minimal dehydration of the disc material. (Id.) There was no evidence of nerve root compression at any level. (Id.)
DETERMINATION OF DISABILITY AND BURDENS OF PROOF
Under Social Security guidelines, disability is defined as the 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)(2)(A).
The Commissioner of the Social Security Administration ("Commissioner") has promulgated a five-step analysis for evaluating a claimant's disability. See 20 C.F.R. § 404. The ALJ first considers whether the claimant is currently engaged in "substantial gainful activity." 20 C.F.R. § 404.1520(a). If the claimant is working and the work is substantial gainful activity, his application for disability benefits is automatically denied. See 20 C.F.R. § 404.1520(b). If the claimant is not employed, the ALJ then proceeds to step two and determines whether the claimant has a "severe impairment" or "combination of impairments." 20 C.F.R. § 404.1520(c). A claimant who does not have a "severe impairment" is not disabled. Id.
Third, if the impairment is found to be severe, the ALJ determines whether the impairment is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. If so, the claimant is conclusively presumed to be disabled, and the evaluation ends there. See 20 C.F.R. § 404.1520(d). If the impairment is not a listed impairment or its equivalent, the ALJ proceeds to step four.
At the fourth step, the ALJ determines whether the claimant can return to his previous type of employment. See 20 C.F.R. § 404.1520(e). If the claimant can perform his previous work, the claimant is not disabled. Id. The claimant has 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). The Rossi court noted that a "plaintiff satisfies her initial burden of showing that she is unable to return to her previous employment when her doctor substantiates her subjective claims." Id. If the claimant has satisfied his initial burden that he is no longer able to perform his previous type of employment, the evaluation must continue to the fifth and final step.
For the fifth step "the burden of proof 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 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) (1995).
ADMINISTRATIVE FINDINGS
On July 12, 1996, ALJ Richard L. DeSteno determined the following:
1. The claimant met the disability insured status requirements of the Act on September 10, 1991, and continues to meet them through December 31, 1996.
2. The claimant has not engaged in substantial gainful activity since September 10, 1991.
3. The medical evidence establishes that the claimant has a "severe" impairment involving right knee arthritis and chondromalacia, with residuals from a patellectomy, but does not establish medical findings which meet or equal in severity the clinical criteria of any impairment listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's subjective complaints of knee pain which prevents prolonged standing, walking, and climbing, and the lifting of heavy weights, are credible. However the claimant's allegations of disabling knee pain precluding prolonged sitting and some standing and walking are not credible nor supported by the evidence.
5. The claimant's residual functional capacity has been, since September 10, 1991, limited to performing work that involves lifting and carrying objects weighing up to 10 pounds; sitting up to six hours, and standing and walking up to two hours in an eight-hour day; and the full range of sedentary work. The claimant has not had any significant non-exertional limitations ( 20 C.F.R. § 404.1568).
6. The claimant's past relevant work is that of a packer and assembler, which were within the heavy exertional category of work ( 20 C.F.R. § 404.1564).
7. Considering the claimant's residual functional capacity, the claimant could not perform his past relevant work activities as either a packer or assembler.
8. The claimant's date of birth is May 26, 1950. He is defined as a younger individual, and has an eleventh grade education ( 20 C.F.R. § 404.1563).
9. There are a significant number of jobs existing in the national economy which the claimant can perform, considering his residual functional capacity, age, education, and skills (Section 404.1569 and Rule 201.19, Table No. 1, Appendix 2, Subpart P of Regulations No. 4).
10. The claimant has not been under a "disability" as defined in Title II of the Social Security Act, as amended, at any time through the date of this decision ( 20 C.F.R. § 404.1520(f)).
(Tr. 15-16)
STANDARD OF REVIEW
A court must accept the findings of fact by the Commissioner if those findings are supported by "substantial evidence." 42 U.S.C. § 495(g). The Supreme Court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," which is "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Morales on behalf of Morales v. Bowen, 833 F.2d 481, 488 (3d Cir. 1987). The Court of Appeals for the Third Circuit has developed certain rules to scrutinize the evidentiary basis for administrative findings:
This oft-cited language [describing the standard of substantial evidence] is not, however, a talismanic or self-executing formula for adjudication; rather, our decisions make clear that determination of the existence vel non of substantial evidence is not merely a quantitative exercise. A single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence, but mere conclusion. . . . The search for substantial evidence is thus a qualitative exercise without which our review of social security disability cases ceases to be merely deferential and becomes instead a sham.Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983) (citations omitted). "However, `even if the Secretary's factual findings are supported by substantial evidence, a court may review whether the administrative determination was made upon correct legal standards.'" Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983) (quoting Curtain v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981)).
To enable a court to properly perform its function of review, an administrative decision "should be accompanied by a clear and satisfactory explanation of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.), reh'g denied, 650 F.2d 481 (3d Cir. 1981). The ALJ should indicate not only the evidence which supports his or her conclusion, but also indicate "significant probative evidence" that was rejected in order for the reviewing court to determine whether such evidence was not credited or simply ignored. Id. at 705. Additionally, when faced with conflicting evidence, an administrative decision must adequately explain in the record its reasons for rejecting or discrediting competent evidence. Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D.Pa. 1987).
DISCUSSION
The duty of a district court is not to review the case de novo, but instead to discern whether substantial evidence exists in the record to support the findings and determinations of the ALJ. See Bradley v. Bowen, 667 F. Supp. 161 (D.N.J. 1987).
Plaintiff asserts that 1) the ALJ erred in finding that Plaintiff did not have any impairments which significantly limited his ability to perform work-related functions, and 2) the ALJ made no effort to show or cause to be shown a reasonable availability of jobs which this particular claimant is capable of performing to support his denial of benefits.
In regard to Plaintiff's first assertion, Plaintiff further contends the following: 1) Dr. Glicksman's statement that Plaintiff is only capable of sedentary work fails to elaborate on the limitations of this type of work and fails to mention any limitations on Plaintiff's ability to walk; 2) Dr. Oppenheim's records show constant pain, swelling, and therapy; 3) results of an EMG test show radiculopathy, which alone impacts Plaintiff's ability to perform sedentary work; 4) the effect and pain of Plaintiff's knee injury affected Plaintiff's spine and is evidence of limitations imposed on sedentary activity; and 5) the ALJ is not free to set his own expertise against that of an expert.
The limitations on sedentary work are defined as involving lifting of no more than 10 pounds at a time, occasionally lifting or carrying articles such as files or small tools, and sitting, with some walking and standing in carrying out job duties. 20 C.F.R. § 404.1567(a). The fact that Dr. Glicksman did not describe such limitations when he opined that Plaintiff "can only be employed in an occupation which is completely sedentary" is not troublesome. (Tr. 106.) Furthermore, the lack of reference to any limitation on Plaintiff's ability to walk is consistent with Dr. Glicksman's observations that Plaintiff is "walking without a limp . . . [and] motions of the knee are noted to be full with pain on extreme flexion." (Tr. 105.)
Plaintiff's contention that Dr. Oppenheim's records show constant pain, swelling, and therapy is inaccurate. The record shows that on numerous occasions, Plaintiff's treating physician, Dr. Oppenheim noted that there was no evidence of swelling. (Tr. 109, 110, 113, 116, 117.) Dr. Oppenheim noted on February 2, 1995 that while Plaintiff complained of periodic, not constant, swelling, this was not documented by Plaintiff's prior visits or by his physical therapist. It should also be noted that the pain complained of was related to prolonged ambulation and stair climbing, not sitting or other activities required for sedentary work. At different points in time, Plaintiff reported pain on extreme flexion of the knee, over the medial aspect of the patella tendon-quadriceps tendon, over the lateral retinacular region, within his knee if he maintains a position for several hours, and within the patellofemoral joint with prolonged ambulation and stair climbing. No medical records show that Plaintiff complained of pain while sitting.
Plaintiff next contends that the effect of Plaintiff's knee injury upon his spine and the EMG results showing radiculopathy affect Plaintiff's ability to perform sedentary work. Defendant aptly points out that the complete report from the testing physician included that the radiculopathy "is presumably mild since the limb muscles remain unaffected with changes noted only in the paraspinal muscles." (Tr. 147.) The results of this one test do not conclusively lead to a finding that Plaintiff is incapable of performing sedentary work. Additional test results show normal nerve conduction, no focal disc protrusion, no significant spinal stenosis, and no evidence of nerve root compression. (Tr. 146, 149.) As discussed above, Plaintiff's complaints of pain were consistently related to his knee injury, with only one notation of subjective tenderness over the lower lumbar spine region, right transverse process region, and iliac crest region dated December 26, 1995. The record of Plaintiff's next visit with Dr. Oppenheim on February 8, 1996 reported that there was no tenderness about the lower lumbar spine region or the transverse process. (Tr. 143.) The ALJ determined that Plaintiff's allegations of wholly disabling knee pain were inconsistent with the record as a whole.
Plaintiff also states that the ALJ is not free to set his own expertise against that of an examining physician, though to which testimony Plaintiff is referring is not clear. In general, when evaluating symptoms such as pain, an ALJ will consider all of the claimant's statements about pain and any description that the claimant or the claimant's physician can provide about how the symptoms affect claimant's daily activities and ability to work. 20 C.F.R. § 404.1529(a). However, statements about pain will not establish that the claimant is disabled unless there are medical signs and test results which show that the claimant "has a medical impairment which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all of the other evidence . . . would lead to a conclusion that [the Plaintiff is] disabled." Id. (emphasis added). In addition, the ALJ has the final responsibility to determine claimant's residual functional capacity and to apply vocational factors. 20 C.F.R. § 404.1527(d)(2). Medical opinions are not the only factors to be considered, but will be given controlling weight if they are "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2).
In finding that Plaintiff is not disabled, the ALJ considered Plaintiff's subjective complaints of knee pain after prolonged walking, climbing, and standing and found them consistent with the medical records as a whole. When evaluating the Plaintiff's allegation that his knee pain prevents all work activity, the ALJ considered several years of physicians' observations and notations. The ALJ found no evidence that Plaintiff had ever complained of problems relating to sitting or that he could lift no more than 10 pounds. These findings are supported by substantial evidence, and the ALJ did not substitute his expertise against that of a physician.
Plaintiff's second assertion is that the ALJ made no effort to show or cause to be shown that there is a "reasonable availability of jobs which this particular claimant is capable of performing to support his denial of benefits." Pl. Br. at 8. The ALJ is not required to show availability for each individual claimant. The ALJ is to determine if work exists in the national economy, regardless of whether 1) work exists in the plaintiff's immediate area in which he lives, 2) whether a specific job vacancy exists for the plaintiff, or 3) whether the plaintiff would be hired if he applied for the work. 20 C.F.R. § 404.1566(a). The ALJ found that Plaintiff was not under a disability as defined in the Act at any time through the date of the ALJ's decision. While Plaintiff was not able to perform past relevant work as a packer or assembler since September 9, 1991, the ALJ found there were a significant number of jobs existing in the national economy which Plaintiff can perform. Plaintiff's age places him withing the category of a "younger individual," he has an eleventh-grade education, and no transferable work skills. Utilizing Rules 201.24-25 and 201.18-19 of Table No. 1, Appendix 2, Subpart P, to Regulations No. 4, the ALJ concluded that there were a significant number of jobs existing in the national economy which can be performed by "a younger individual" who has a residual functional capacity for sedentary work and who has not performed any skilled work in the relevant past or who does not have transferrable skills.
Finally, Plaintiff suggests that the ALJ erred in not soliciting the expertise of a vocational expert. For this case, the ALJ was not required to call a vocational expert. Vocational experts have been required when medical evidence is "borderline," Mayfield v. Sullivan, 730 F. Supp. 180 (N.D.Ill. 1990), when the medical evidence shows severe impairment,Wheeler v. Sullivan, 888 F.2d 1233 (8th Cir. 1989), and when there is evidence of disabling pain in addition to a physical impairment, Simonson v. Schweiker, 699 F.2d 426 (8th Cir. 1983). Plaintiff's medical evidence is not "borderline," it does not show severe impairment, and it does not suggest disabling pain. Plaintiff participated in physical therapy, including weight training and use of an exercise bicycle. Plaintiff also walks to get the paper every day, performs household chores, and visits his physician frequently. Furthermore, there is no evidence that Plaintiff suffered discomfort during physician visits simply from sitting in the office.
When limitations imposed by the claimant's injury and related symptoms, such as pain, affect only the claimant's ability to meet the strength demands of jobs, such as sitting or standing, the claimant is considered to have only exertional limitations. 20 C.F.R. § 404.1569(b). When the claimant's impairment(s) and related symptoms impose only exertional limitations and the claimant's specific vocational profile is listed in a rule contained in Appendix 2, Subpart P, that rule is to be directly applied in deciding whether the claimant is disabled. 20 C.F.R. § 404.1569(b). Furthermore, the Third Circuit has endorsed the use of vocational grids rather than vocational experts where no significant or substantial non-exertional impairments exist. Santise v. Schweiker, 676 F.2d 925 (3d Cir. 1982). Accordingly, the ALJ was justified in relying on the vocational rules and a vocational expert was unnecessary. Substantial evidence supports the ALJ's findings and he did not commit legal error.
CONCLUSION
For the foregoing reasons, the decision of the Commissioner will be affirmed. An appropriate order will be entered.