Opinion
Civil Action No. 03-4045.
July 27, 2004
MEMORANDUM
Presently before the Court are the parties' cross-motions for summary judgment. The United States Magistrate Judge to whom this matter had been referred filed a Report and Recommendation (the "Report") recommending that this Court grant Defendant's motion for summary judgment and deny Plaintiff's motion for summary judgment. After careful and independent consideration of the Report and the timely Objections filed by Plaintiff thereto, for the reasons set forth below, I will approve the Report and Recommendation.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed an application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381- 1383f, and also for Disability Insurance Benefits on June 29, 2001. Plaintiff alleged that he was disabled due to shoulder injury, lower back pain, and a pinched nerve in his neck. After Plaintiff's application was denied initially he requested a hearing before an Administrative Law Judge ("ALJ"). The hearing was conducted on September 12, 2002. At the hearing, Plaintiff and a court appointed vocational expert ("VE") testified. The ALJ issued his opinion which concluded that Plaintiff was not entitled to SSI or DIB benefits, and also found that Plaintiff was not disabled because he had the residual functional capacity to make a vocational adjustment to jobs in the national economy. Plaintiff's request for review was denied by the Appeals Council thereby making the decision of the ALJ the final decision of the Commissioner. Plaintiff then filed the instant civil action seeking review of the Commissioner's decision. Both parties subsequently filed their motions for summary judgment. Pursuant to Local Rule of Civil Procedure 72.1 and 28 U.S.C. § 636(b)(1)(B), this Court referred the matter to a Magistrate Judge. After review of the record, the Magistrate Judge filed the Report recommending that this Court grant Defendant's motion for summary judgment. Both parties were served with copies of the Magistrate Judge's Report. Pursuant to Local Rule of Civil Procedure 72.1 IV (b) and 28 U.S.C. § 636(b)(1)(C), Plaintiff timely filed written Objections to the Magistrate Judge's Report.
The medical records Plaintiff submitted in support of his disability application are extensive. The Report contains a more detailed summary of the relevant records, which are incorporated by reference herein.
II. SCOPE OF REVIEW
A district court judge may refer an appeal of a decision of the Commissioner to a Magistrate Judge. See 28 U.S.C. § 636(b)(1). Within ten days after being served a copy of the Magistrate Judge's report and recommendation, a party may file timely and specific objections thereto. See 28 U.S.C. § 636(b)(1)(C). The district court judge will then make a de novo determination of those portions of the report and recommendation to which objection is made. See Id. The district court judge may accept, reject, modify, in whole or in part, the findings or recommendations made by the Magistrate Judge, receive further evidence, or recommit the matter to the Magistrate Judge with instructions. See id.
In reviewing the Commissioner's decision, the district court is bound by the ALJ's findings of fact if they are supported by substantial evidence in the record. See 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate." Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
III. DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Plaintiff timely filed nineteen Objections to the Magistrate Judge's Report. Plaintiff's Objections fall into three general categories, 1) Objections to the portions of the Report in which the Magistrate Judge sustains the ALJ's findings regarding plaintiff residual functional capacity on the grounds that there was not substantial evidence to support the findings, 2) Objections to portions of the Report on the grounds that they violate certain case law, and 3) Objections based on the language used by the Magistrate Judge.
A: Plaintiff's Objections to the portions of the Report in which the Magistrate Judge sustains the ALJ's findings regarding plaintiff residual functional capacity on the grounds that there was not substantial evidence to support the findings.
Plaintiff's first Objection is to the portions of the Report in which the Magistrate Judge sustains the ALJ's findings regarding the residual functional capacity ("RFC") of Plaintiff. (Pl's. Obj. at 1.) Specifically, Plaintiff objects to the ALJ's finding that Plaintiff is able to lift and carry up to 20 pounds in weight occasionally and 10 pounds frequently, walk or stand for six hours out of an eight hour day, and sit for six hours out of an eight hour day. Id.
The medical opinions differ over the extent of Plaintiff's RFC. Plaintiff's treating physician, Dr. Stewart, and Dr. Sfedu, a consultative examiner, both concluded that Plaintiff was only able to work at a level below the sedentary level. The ALJ rejected those opinions after reviewing the medical record as a whole and finding no support for such a limitation. (R. 36) Specifically with regard to Dr. Sfedu's examination, the ALJ noted that other than limitation of motion, the examination was "completely normal." Id. Dr. Stewart's opinion was rejected for similar reasons, the ALJ found that her clinical notes provided "even less support for such an assessment [than Dr. Sfedu's] . . ." Id. Dr. Wander, a State Agency physician, reviewed Plaintiff's medical records and concluded that Plaintiff could "perform the full range of light with limitations on pushing and pulling with [his] right upper extremity and various postural limitations." (R. 655.) The ALJ found this opinion to be "much more congruent with the record as a whole . . ." (R. 37.)
The ALJ's determination regarding Plaintiff's RFC is supported by substantial evidence in the record. The ALJ reviewed the medical evidence in detail as it related to Plaintiff's neck, shoulder, and back. Regarding the Plaintiff's complaints of back pain, the ALJ noted that imaging tests of Plaintiff's lower back revealed mild to moderate problems. See (R. 354 (lumbar spine MRI, 12/99), 592 (lumbar spine MRI, 4/01), 555 (lumbar spine MRI, 6/01), 688 (lumbar spine MRI, 7/02), lumbar spine CT scan, 7/02).) The ALJ also noted that the vast majority of his straight leg tests were negative, and his gait was consistently normal. (R. 33-34.) Regarding Plaintiff's neck and right shoulder problems, the ALJ again reviewed medical evidence and noted that Plaintiff's physicians had found moderate to no limitation in the range of motion in Plaintiff's neck and right shoulder, and that his strength was normal to somewhat reduced. See (R. 687 (cervical spine MRI, 7/02), 704 (cervical spine CT scan, 7/02), 558-59 (cervical spine MRI, 5/01), 377 (right shoulder MRI, 11/00), 630-39 (nerve conduction study/EMG, 4/01), 650, 653 (discussion of bone scan, 7/01), (R. 34-35) The ALJ's findings regarding Plaintiff's RFC are supported by the record as discussed above. Plaintiff's Objection on this ground is therefore overruled.
Plaintiff's second, third and fourth Objections are related to the first Objection. Plaintiff Objects to the portions of the Report in which the Magistrate Judge sustains the findings of the ALJ regarding Plaintiff's ability to work in light or sedentary positions. (Pl's. Obj. 3-4.) Each Objection relies on the premise that the medical evidence of record fully supports the conclusions of Plaintiff's doctors regarding Plaintiff's limitations. As discussed, however, there is substantial evidence on the record to support the ALJ's finding that Plaintiff is able to lift and carry up to 20 pounds in weight occasionally and 10 pounds frequently, walk or stand for six hours out of an eight hour day, and sit for six hours out of an eight hour day. The VE testified that a person with those abilities and limitations would be able to perform substantially gainful activity at the light or sedentary level. (R. 765.) Plaintiff's second, third and fourth Objections are therefore overruled.
Plaintiff's fifth Objection is to the ALJ's reliance on the opinion of Dr. Wander, a non-examining physician, again regarding Plaintiff's ability to sit, stand, and carry various weights. (Pl's. Obj. 4-5.) Specifically, Plaintiff Objects to the ALJ's rejection of the contradictory opinion of Plaintiff's primary care physician. Id. Plaintiff claims that it is improper, under the Third Circuit's holding in Dorf v. Bowen, 794 F.2d at 896 (3d Cir. 1986), to credit the testimony of a consulting physician who has not examined the claimant when such testimony conflicts with the testimony of claimant's treating physician. Id. at 901. However, in Dorf, the ALJ adopted the opinion of a consulting physician which not only contradicted the opinion of the treating physician, but was unsupported by the medical evidence. Id. As discussed in the previous sections, there is substantial evidence on the record to support the opinions of Dr. Wander, and thus, the holding of Dorf does not apply in this case. Plaintiff's fifth Objection is therefore overruled.
B: Objections to portions of the Report on the grounds that they violate certain case law.
Plaintiff has a number of Objections based on alleged violations of case law. Plaintiff's ninth objection is premised on the idea that there is not substantial evidence to support the rejection of the opinions on Plaintiff's treating physician, this time on the grounds that such a finding allegedly violates the holdings of Fargnoli v. Massanari, 247 F.3d 34 (3d Cir. 2001),Walls v. Barnhart, 2002 U.S. Dist. Lexis 5558 (E.D. Pa. 2002), and Morales v. Apfel, 225 F.3d 310 (3d Cir. 2000). (Pl's. Obj. 7-8.) In each of these cases the courts held that a treating physician is to be given greater weight (and in some cases controlling weight) so long as their opinions are not contradicted by medical evidence in the record. As discussed in relation to Plaintiff's first Objection there is substantial medical evidence which contradicts the opinions of Plaintiff's treating physician, including numerous objective tests which were all carefully considered by the ALJ. Therefore, Plaintiff's ninth Objection is overruled.
Plaintiff's eleventh Objection, while not a model of clarity, appears to be to the ALJ's reliance on the opinion of Dr. Wander. (Pl's. Obj. 9-10.) Specifically, Plaintiff Objects on the grounds that Dr. Wander's opinion was rendered prior to the function assessments of Plaintiff's primary care physician, and prior to several tests that Plaintiff underwent. Id. The ALJ, however, relied on both the medical evidence (already discussed above) and the opinion of Dr. Wander in making his findings. He specifically found that Dr. Wander's opinion was more consistent with the medical evidence as a whole, which the ALJ reviewed in detail. There is, therefore, substantial evidence on the record to support the ALJ's reliance on the opinion of Dr. Wander, and the subsequent conclusions that the ALJ reached, and the eleventh Objection is therefore overruled.
Plaintiff's thirteenth Objection relates to the ALJ's findings regarding Plaintiff's complaints of pain. (Pl's. Obj. 10-11.) Plaintiff claims that his testimony regarding his pain is entitled to great weight if supported by competent medical evidence. Romani v. Commissioner, 2002 U.S. App. Lexis 24690 (3d Cir. 2002). An ALJ may disregard subjective complaints of pain when contrary evidence exists in the record. Mason v. Shalala, 994 F.2d 1058, 1067-68 (3d Cir. 1993). The ALJ stated his basis for giving Plaintiff only partial credibility, because Plaintiff gave conflicting statements to his physical therapists and doctors regarding his functional capacity. Plaintiff testified that he did no cooking, cleaning, laundry, or trash removal, and that he did not take public transportation. (R. 36.) Plaintiff, however, told occupational therapists that he was "independent with self care and mobility but experienced increased symptoms upon prolonged standing such as while washing dishes and taking public transportation. Id. In April 2001, he told another therapist that was "independent in taking public transportation, dressing himself, bathing himself, cooking, and doing laundry. Id. The ALJ did not find Plaintiff's claim that he was unable to "obtain any form of relief" from any of the pain medications or therapies he had undergone. (R. 36 (emphasis in original).) Furthermore, the ALJ noted that Plaintiff's had not been hospitalized or gone to an emergency room because of his symptoms, and had shown no signs of severe pain such as camptocormia, sensory deficits, motor abnormalities, reflex changes, muscle atrophy, pelvic tilt, gait changes, or loss of coordination and dexterity. Id. Thus, there is substantial evidence in the record to support the ALJ's decision to grant only partial credibility to Plaintiff's substantive complaints of pain, and therefore, Plaintiff's thirteenth Objection is overruled.
Plaintiff's eighteenth Objection also relates to the ALJ's findings regarding Plaintiff's subjective complaints of pain, and alleges that the Report violates the holding of the Third Circuit in Newell v. Barnhart, 2003 U.S. App. Lexis 20890 (3d Cir. 2003), in which the court held that a claimant's statements of intensity of pain could not be disregarded solely because they are not substantiated by objective medical evidence. (Pl's. Obj. 13.) In the present case, as previously discussed, the ALJ rejected Plaintiff's statements of pain because of Plaintiff's partial lack of credibility. Therefore, Plaintiff's eighteenth Objection is overruled.
Plaintiff's fourteenth Objection is that the Report allegedly violates the holding of the Third Circuit in Reefer v. Barnhart, 2003 U.S. App. Lexis 7042 (3d Cir. 2003), which held that courts should be mindful that leniency should be shown in establishing the claimant's disability and that the Secretary's responsibility to rebut it should be strictly construed. (Pl's. Obj. 11-12.) Plaintiff, however, offers no basis for the Court to conclude that the Magistrate Judge did not follow these principles, and even if such a basis did exist, it would be irrelevant to this Courts de novo review, which is focused on the question of whether the ALJ had substantial evidence to support his findings. Plaintiff's fourteenth Objection is therefore overruled.
Plaintiff's fifteenth Objection is that the Report allegedly violates the holdings of Dorf v. Bowen, 794 F.2d at 896 (3d Cir. 1986) regarding the ALJ's decision to discount the opinion of Plaintiff's treating physician in favor of the opinion of Dr. Wander. (Pl's. Obj. 12.) This appears to be a restatement of Plaintiff's fifth Objection, and for the same reasons as discussed regarding that Objection, the fifteenth Objection is overruled.
Plaintiff's sixteenth Objection alleges that the Report violates the holdings of a number of cases (primarily from other circuits) in which courts held that the opinion of a non-examining physician does not constitute substantial evidence on which to base a denial of benefits. (Pl's. Obj. 12.) As already discussed at length, the ALJ did not rely solely on the opinion of Dr. Wander in reaching his decision to deny benefits. The ALJ examined carefully, and exhaustively, the medical history of Plaintiff, including a long history of objective medical tests (which I have already discussed) that contradicted the opinions of Plaintiff's treating physician. Plaintiff's sixteenth Objection is therefore overruled.
Plaintiff's seventeenth Objection is that the Report allegedly violates the holding of the Third Circuit in Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979), which held that a claimant with a long work history was entitled to substantial credibility. (Pl's. Obj. 12-13) The holding in Dobrowolsky does not require that an ALJ give credibility to a claimant with a long work history in spite of contradictory statements made by the claimant that call that credibility into question. In the present case, the ALJ carefully examined Plaintiff's credibility (as discussed above), and concluded based on substantial evidence that Plaintiff was only entitled to partial credibility. Plaintiff's seventeenth Objection is therefore overruled.
Plaintiff's nineteenth Objection is that the Report is allegedly erroneous because the "substantial medical evidence of record" fully supports the elements of the hypothetical questions posed by Plaintiff's counsel to the VE at the hearing, which resulted in an opinion by the VE that, given the hypothetical scenario proposed by Plaintiff's counsel, all substantially gainful activity would be eliminated. (Pl's. Obj. 13.) As previously discussed, there is substantial medical evidence in the record to support the hypothetical proposed by the ALJ, which resulted in a different opinion by the VE. Therefore, Plaintiff's nineteenth Objection is overruled.
C: Plaintiff's Objections based on the language used by the Magistrate Judge.
Plaintiff's sixth, seventh, eighth, tenth, and twelfth Objections are to the language and characterizations used by the Magistrate Judge. (Pl's. Obj. 5-10.) These characterizations were used entirely by the Magistrate Judge, and had no impact on the Commissioner's decision. That alone would be grounds to overrule these Objections, nevertheless, I will address each of the Objections for their merit.
Plaintiff's sixth Objection is to the Magistrate Judge's alleged failure to properly weigh the statements of Plaintiff's treating rheumatologist, Dr. Huppert, regarding an EMG study, by using Plaintiff's unwillingness to proceed with local steroidal injections. (Pl's. Obj. 5-6.) Plaintiff claims that using his unwillingness to undergo these procedures as a basis for denying him full credibility is improper, and cites a number of cases in support of that contention. Id. The Report discusses Plaintiff's unwillingness to seek certain treatments to rebut Plaintiff's claims that he had "pursued, aggressively, [numerous] pain relieving modalities." (R. 30.) In the context of contradicting statements and arguments by Plaintiff, the unwillingness to undergo medical treatment is an appropriate basis to impugn the credibility of a complainant. The sixth Objection is therefore overruled.
Plaintiff's seventh Objection is to the Magistrate Judge's dismissal of Plaintiff's explanation for why he elected to not have surgery. (Pl's. Obj. 6-7.) Plaintiff claims that he was reluctant to undergo surgery in part because he had a number of surgeries in the past. Id. Plaintiff objects that the Magistrate Judge improperly characterized those surgeries as being "in the distant past," when in fact they occurred as recently as 1999. The Magistrate Judge's use of the adjective "distant" to describe when Plaintiff had surgery had no impact on the Commissioners decision regarding his disability. The seventh Objection is therefore overruled.
Plaintiff's eighth Objection is to the Magistrate Judge's faulting of Plaintiff for allegedly not obtaining a cane, despite Plaintiff's testimony that he had used a cane daily. (Pl's. Obj. 7.) In fact, the Magistrate Judge did not state that Plaintiff had not obtained a cane, only that as of November 6, 2001, Plaintiff had not yet obtained a cane. (R. 30.) This is supported by the letter sent to Plaintiff by Dr. Huppert, encouraging him to obtain a cane. (R. 659.) This conclusion was reached entirely by the Magistrate Judge, and had no impact on the Commissioner's decision. The eighth Objection is therefore overruled.
Regarding Plaintiff's tenth Objection, Plaintiff claims that the Magistrate Judge erroneously stated that "the objection of plaintiff to the opinion of the SSA record reviewer (Dr. Wander) was that the doctor was only a family practitioner." (Pl's. Obj. 9.) Apart from the fact that, again, this language was not contained in the ALJ's report, and had no impact on the Commissioners decision, Plaintiff's misstates what the Magistrate Judge wrote. The Magistrate Judge wrote that Plaintiff was "eager to point out" that Dr. Wander was a family practitioner, not that those were the sole grounds for Plaintiff's Objection. (R. 27.) In fact, the Magistrate Judge, in footnote 9 of the Report, included the basis that Plaintiff now advances as his actual reason for objecting to Dr. Wander. Id. The tenth Objection is therefore overruled.
Plaintiff's twelfth Objection is to the language used by the Magistrate Judge in characterizing Plaintiff's motor strength, specifically his statement that there did not exist a "significant reduction in motor strength," in light of findings that his motor strength in the right upper extremity was 4 out 5, except for the right proximal which was 3-/5. (Pl's. Obj. 10.) As the ALJ did not use this language, and reviewed in detail all of the medical information pertaining to Plaintiff's motor strength, Plaintiff's twelfth Objection is overruled.
IV. CONCLUSION
For the foregoing reasons, I will adopt the Report and Recommendation filed by the United States Magistrate Judge. Plaintiff's motion for summary judgment will be denied, and Defendant's motion for summary judgement will be granted. An appropriate order follows.
ORDER
AND NOW, this __ day of July 2004, upon consideration of the parties' cross-motions for summary judgment, the Report and Recommendation filed by United States Magistrate Judge Thomas Rueter, and Plaintiff's Objections, IT IS HEREBY ORDERED that:1) Plaintiff's Objections are OVERRULED;
2) The Report and Recommendation is APPROVED and ADOPTED;
3) Defendant's motion for summary judgment is GRANTED;
4) Plaintiff's motion for summary judgment is DENIED;