Opinion
NO. 01-1584
May 21, 2003
ORDER
AND NOW, this day of , 2003, upon consideration of the parties' Motions for Summary Judgment, and after careful review of the Report and Recommendation of United States Magistrate Judge Arnold C. Rapoport, IT IS ORDERED that:
1. the Report and Recommendation is APPROVED and ADOPTED;
2. the Plaintiff's Motion for Summary Judgment is DENIED; and
3. the Defendant's Motion for Summary Judgment is GRANTED.
REPORT AND RECOMMENDATION
Plaintiff, Nelinda Torres ("Plaintiff"), brings this action under 42 U.S.C. § 1383 (c)(3), which incorporates 42 U.S.C. § 405 (g) by reference, to review the final decision of the Commissioner of Social Security ("Defendant"), denying her claim for disability insurance benefits ("DIB") provided under Title II of the Social Security Act ("the Act"). 42 U.S.C. § 401-433. Subject matter jurisdiction is based upon section 205(g) of the Act. 42 U.S.C. § 405(g). Presently before this Court are the parties' Cross-Motions for Summary Judgment. For the reasons that follow, it is recommended that Plaintiff's Motion should be denied, and Defendant's Motion should be granted.
I. PROCEDURAL HISTORY
Plaintiff applied for DIB on May 19, 1999, alleging that she became disabled on April 1, 1993 because of carpal tunnel syndrome, diabetes mellitus, back and leg pain, loss of balance, and tendonitis. (R. 30, 45-47.) Plaintiff filed a prior claim, which was denied in a hearing decision dated July 16, 1996; Plaintiff did not appeal. (R. 14, 468.) Plaintiff's date last insured is December 31, 1998. (R. 21, 56, 464.) Thus, the relevant period of review for this claim is from July 27, 1996 through December 31, 1998. (R. 15, 21, 464.)
Plaintiff's gastrointestinal problems, gynecological problems, and carpal tunnel syndrome were successfully corrected by surgery. (R. 440-442, 448-456.) Additionally, Plaintiff reported a seventy-five percent reduction in pain intensity following three nerve blocks. (R. 114, 155, 171, 174.) Finally, progress notes from Plaintiff's treating physician consistently show that Plaintiff's diabetes and hypertension were under control through the period of disability. (R. 168, 177, 178.) Thus, the bulk of Plaintiff's alleged impairments were controlled by medication or corrected by surgery, which leaves Plaintiff's back pain as the primary issue in the present appeal.
Plaintiff s current application was denied initially and upon reconsideration, and she filed a timely request for a hearing. (R. 30-33, 35-38.) A hearing was held on April 10, 2000, at which Plaintiff testified and was represented by counsel. (R. 466-478.) In a decision dated June 24, 2000, the ALJ determined that Plaintiff was not disabled and could perform her past relevant work as a social worker/case manager. (R. 11-23, Finding Nos. 7-10.)
Plaintiff filed a timely request for review by the Appeals Council, which was denied. (R. 7-9.) Plaintiff filed this action on April 16, 2001, and the matter was referred to this Court for preparation of a Report and Recommendation on October 28, 2002.
II. FACTS
Plaintiff has past relevant work as a caseworker, which is described as skilled, sedentary work. (R. 86, 477.) Plaintiff testified that she stopped working as a social worker at a Spanish community center in New Jersey, because she married and moved to Pennsylvania. (R. 477.) Plaintiff last worked as a nurse's aide, which is semi-skilled, medium extertional work. (R. 86, 477.) Plaintiff testified that she had not worked since 1993, due to a work-related injury. (R. 17, 477, 473.) Plaintiff additionally claimed that her medical condition worsened after her application for disability benefits was first denied, on July 26, 1996. (R. 474.) The relevant period of review for Plaintiff's current claim is from July 27, 1996 through December 31, 1998, and the medical evidence relative to that time is hereinafter examined.
On September 30, 1996, Robert D. Mazzola, M.D., Plaintiff's family practitioner, reported that he had been following Plaintiff for diabetes and hypertension. (R. 177-178.) Plaintiff alleged having chronic back pain and back pain on standing and walking, but Dr. Mazzola referred Plaintiff to other specialists, Carl Hansen, M.D. and Mark C. Lester, M.D., for her back condition. (R. 112, 178, 441.) Plaintiff, however, refused to go back to Dr. Hansen, who opined that x-rays did not show any abnormality of the thoracic spine. (R. 112, 177.) Dr. Mazzola noted that Plaintiff was seeing a lot of physicians for legal reasons, but none for therapeutic treatment. (R. 177.)
In July 1996, Dr. Mazzola assessed Plaintiff as having diabetes, described as controlled; hypertension, described as controlled; and a history rectal fistula with recurrent abscesses, also described as controlled. (R. 178.) Additionally, Dr. Mazzola reported that Plaintiff had chronic lumbrosacral pain, degenerative arthritis, and degenerative disc disease. (R. 178.) Dr. Mazzola noted that Plaintiff used one hundred Percocet (pain pills) in sixty days. (R. 178.)
In November 1996, neurosurgeon, Mark C. Lester, M.D. opined that Plaintiff had chronic mechanical low back and leg pain, but Plaintiff had no neurosurgically significant nerve root compression, disc herniation, or radicular complaints. (R. 442.) Dr. Lester recommended that Plaintiff see a physiatrist or chronic pain physician and have more current diagnosis studies performed, such as a repeat MRI and bone scan. (R. 442.)
In November and December 1996, Plaintiff saw specialists, Drs. James Dynan and John J. Pagan, for endometrial bleeding and rectal fistal, which were both surgically corrected. (R. 436-439, 448-456.)
In December 1996, Plaintiff underwent a MRI of her lumbar spine, which was unchanged from previous studies done in August 1995 and July 1993. (R. 110, 442.) Plaintiff had no new herniated discs, no spinal stenosis, and no marrow infiltration. (R. 442.) A total body scan in January 1997 was consistent with a mild compression fracture, but correlation with plain films did not show any abnormality. (R. 111-112.) A March 1997 thoracic MRI did not show any evidence of malignant neoplastic change. (R. 113.)
In January 1997, Plaintiff began seeing Frederick R. Struthers, D.O., a Board-Certified Physiatrist, whose impression of Plaintiff was thoracic dysfunction, cervical strain and sprain, lumbrosacral strain and sprain, cervical strain and sprain, possibly a T7 compression fracture by bone scan, herniated nucleus pulposis, moderate at one level, and degenerative disc desiccation at two levels. (R. 135-136.) Dr. Struthers opined that in order for Plaintiff to heal adequately she should stop working until further notice. (R. 136.)
Reza Azar, M.D., of the Pain Rehabilitation Center, indicated in May 1997 that Plaintiff had reported a seventy-five percent reduction of subjective pain intensity, following three nerve blocks. (R. 114.) The success of the nerve blocks were confirmed by Drs. Mazzola and Struthers. (R. 171, 174, 155.) In particular, Dr. Struthers reported that Plaintiff was better; the nerve block was working; she was sleeping better; and she was learning to adjust to life, which has been "excellent for her." (R. 155.) Two months later, in July 1997, Dr. Struthers reported that Plaintiff complained of bilateral leg pain, and he advised Plaintiff to use precautions to avoid injury, but she should continue to be active. (R. 154.)
In September 1997, Dr. Struthers reported that Plaintiff complained of pain in her whole body, and he wondered if she was developing fibromyalgia. (R. 152.) He also noted that Plaintiff was crying because she was unable to do the work at home, which helped her family and she was becoming more reliant on her husband. (R. 152.) Dr. Struthers and Plaintiff discussed the need for possible psychological intervention. (R. 152.)
In November 1997, Plaintiff reported to Dr. Struthers that Dr. Pagnanelli at Abington recommended that she undergo surgery for a large herniated disc; Dr. Struthers advised her to seek a second opinion. (R. 150.)
William Young, M.D., a neurosurgeon at Temple University Hospital, reported in December 1997 that MRI and EMG studies had shown only a small herniation at Ll-2 and only mild findings at L4-5. (R. 126.) Although Dr. Young initially recommended surgery, in April 1998, Dr. Young reported that recent multilevel discography had failed to show that Plaintiff's Ll-2 herniation was sympathetic. (R. 124.) Dr. Young concluded that Plaintiff's condition did not warrant surgery. (R. 124.)
Plaintiff occasionally visited the Esperanza Health Center for treatment, and on one occasion, the attending physician reported that Plaintiff complained of chronic lower back pain but that her complaints were somewhat out of proportion. (R. 220.)
In February 1998, Dr. Mazzola reported that Plaintiff had good control of her diabetes and control of her other conditions as well. (R. 168.)
In April 1998, Plaintiff began physical therapy and water therapy, and her condition dramatically improved. (R. 130, 141-145.) Notably, Dr. Struthers found Plaintiff to be depressed at this time. (R. 142-145.) In June 1998, Dr. Mazzola reported that generally Plaintiff felt good and was improving, both with psychiatric treatment and water therapy. (R. 167.)
On August 31, 1998, Plaintiff's treating physical therapist, Robert Vietri, reported that her treatment consisted of aquatic therapeutic exercises, mat exercises, isotonic exercises, and treadmill ambulation. (R. 127.) Plaintiff's physical therapist further reported that, though Plaintiff was on vacation in Puerto Rico for the last two weeks, Plaintiff had been using twenty-seven pounds for lat pull-downs, twenty-seven pounds for trunk rotation, twenty-seven pounds for standing rows, and twenty-two and a half pounds for the sitting overhead press exercise, while treadmill ambulation had increased to twenty minutes. (R. 127.) Additionally, Plaintiff had been off all of her pain medications since August 7, 1998. (R. 127.)
In October 1998, Plaintiff reported to Dr. Mazzola, who was monitoring Plaintiff's blood sugars, that she felt quite good and was comfortable with her physical and supportive back therapy. (R. 164.)
On June 8, 1999, Plaintiff completed a Work History Report, in what appears to be her own handwriting, which is in English. (R. 86-94.) In the Work History Report, Plaintiff noted that she performed blood testing, CPR, and wrote status reports. (R. 89.) Plaintiff also completed forms in her job as a social worker and nurses' aide. (R. 86-88.)
At the hearing held on April 10, 2000, Plaintiff testified without the aid of an interpreter. (R. 466-478.) Plaintiff testified that her condition became worse after the July 1996 decision because of her asthma and a sick stomach that had begun the prior year. (R. 474-475.) Plaintiff also alleged that in November 1999, after her date last insured, she aggravated her long-standing history of asthma. (R. 471.) Plaintiff admitted that she stopped using a cane in August 1998, and she was no longer taking any pain medication. (R. 475.) Plaintiff admitted that her surgery to correct carpal tunnel was successful. (R. 475-476.)
III. DISCUSSION
The role of this court on judicial review is to determine whether there is substantial evidence in the administrative record to support the Commissioner's final decision. Any findings of fact made by the Commissioner must be accepted as conclusive, provided that they are supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence" is deemed to be such relevant evidence as a reasonable mind might accept as adequate to support a decision. Richardson v. Perales, 402 U.S. 389, 407 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). See also. Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 113 S.Ct. 1294 (1993). In this case, the ALJ relied on the medical evidence of record and the testimony of Plaintiff and a vocational expert to make a disability determination.
Accordingly, although Plaintiff has alleged the ALJ erred by finding Plaintiff able to perform her past relevant work as a nurse's aide and by failing to find Plaintiff disabled pursuant to 20 C.F.R. Part 404, Subpart P, App.2, § 201.00(h), the issue before this Court is whether the Commissioner's final decision of "not disabled" should be sustained as being supported by substantial evidence. With regard to our review of Plaintiff's claims, the various sources of medical evidence, the submissions of counsel, and the testimony at the ALJ hearing were consulted.
To determine whether a claimant is entitled to disability benefits, the Commissioner must apply a five-step sequential evaluation process pursuant to 20 C.F.R. § 404.1520. Under this five-step analysis, the Commissioner determines first whether the claimant is currently engaged in substantial gainful activity. If the claimant is engaged in gainful activity, a finding of not disabled is mandated, regardless of the medical findings. If the claimant is not engaged in substantial gainful activity, the Commissioner must next determine whether the medical evidence indicates that the claimant suffers from a severe impairment which significantly limits his or her physical or mental ability to engage in basic work activity. If the claimant is found not to suffer such a severe impairment, a finding of not disabled is mandated. If a severe impairment is found, however, the Commissioner next determines whether the impairment meets or equals criteria for a listed impairment in Appendix 1, Subpart P, Regulations No. 4. If the claimant's impairment meets or equals the list of impairments in Appendix 1, a finding of disabled is directed. If the impairment does not meet or equal the list of impairments, the Secretary must proceed to the fourth step and determine whether the claimant retains the residual functional capacity ("RFC") to perform past relevant work. If the claimant can perform past relevant work, a finding of not disabled is directed. If the claimant cannot perform the kind of work that he or she did in the past, the Commissioner must lastly determine whether, considering the claimant's RFC, age, education, and past work experience, the claimant is capable of performing other work which exists in the national or regional economies. Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999) (citing 20 C.F.R. § 404.1520 (f)). If the Commissioner determines that, considering these enumerated factors, the claimant is incapable of performing any other work that exists in the national or regional economies, a finding of disabled is mandated. Otherwise, a finding of not disabled is mandated.
The ALJ proceeded through the first four steps, finding that: 1. Plaintiff has not been engaged in substantial gainful activity since July 27, 1996; 2. Plaintiff's impairment are severe; 3. Plaintiff's impairment do not meet or equal the standards of any listed impairment in Appendix 1, Subpart P, Regulations No. 4; 4. Plaintiff can engage in her past relevant work as a social worker/case worker. Thus, the ALJ found Plaintiff not disabled at step four in the sequential evaluation process. (R. 22.)
Plaintiff alleges that the ALJ should have found Plaintiff disabled pursuant to § 201.00(h) of the grids and that the ALJ should have found Plaintiff unable to perform her past relevant work.
A. Whether the ALJ Erred in Failing to Find Plaintiff Disabled Pursuant to § 201.00(h) of the Grids.
Plaintiff argues that the ALJ should have found Plaintiff disabled as directed by § 201.00(h) of the grids. Section 201.00(h) of the grids direct a finding of disabled for individuals age 45-49 who:
(i) Are restricted to sedentary work,
(ii) Are unskilled or have no transferrable skills,
(iii) Have no past relevant work or can no longer perform past relevant work, and
(iv) Are unable to communicate in English, or are able to speak and understand English but are unable to read or write in English.20 C.F.R. Part 404, Subpart P, App. 2, § 201.00(h).
The evidence, however, does not support Plaintiff's contention that she is disabled pursuant to the grids. Though Plaintiff has been restricted to sedentary work, she has clearly demonstrated her ability to communicate in English. Plaintiff had no trouble testifying in English at the ALJ hearing held on April 10, 2000. (R. 466-478.) Plaintiff's medical records and work history reports also demonstrate Plaintiff's fluency in the English language. On June 8, 1999, Plaintiff completed a Work History Report, in what appears to be her own handwriting, which is in English. (R. 86-94.) In that report, Plaintiff noted that she performed blood testing, CPR, and wrote status reports, which are presumably in English, since Plaintiff was employed in an American facility. (R. 89.) Plaintiff also worked as a social worker/case manager at a Spanish community center, which involved translation and helping people complete forms. (R. 20, 86-88.) Thus, Plaintiff's self-reported work history demonstrates her ability to read and write in English. Accordingly Plaintiff does not qualify for disability status pursuant to 20 C.F.R. Part 404, Subpart P, App. 2, § 201.00(h).
"Under 20 C.F.R. § 404.131, appellant is required to establish that [s]he became disabled prior to the expiration of [her] insured status." Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990). Thus, it is up to Plaintiff to produce evidence showing that she is unable to communicate in English. As Plaintiff has failed to demonstrate, or even claim, that the reading and writing tasks she performed in the course of her employment were done only in Spanish, we unavoidably conclude that Plaintiff retains the ability to read, write, and communicate in English.
In further support of this conclusion, we note that Plaintiff is also unable to meet §§ 201.00(h) (ii), (iii), because the ALJ found Plaintiff to have both transferrable work skills and an ability to perform her past relevant work as a social worker/case manager. (R. 22, Finding Nos. 7-9.) Substantial evidence supports this determination by the ALJ. Thus, Plaintiff fails to meet three out of four requirements under listing 201.00(h) of the grids.
The evidence demonstrates that Plaintiff has no significant non-exertional impairments and retains the ability to perform the exertional demands of sedentary work. Also, according to the testimony of the VE, Plaintiff's past work as a social worker/case manager is sedentary work, which Plaintiff is able to perform. (R. 477.)
B. Whether the ALJ Erred by Finding Plaintiff able to Perform her Past Relevant Work.
Plaintiff argues that the ALJ erred by finding Plaintiff able to perform her past relevant work as a nurse; however, the ALJ did not, in fact, find Plaintiff able to perform her past relevant work as a nurse. Rather, as noted above, the ALJ found that Plaintiff was capable of performing her past relevant work as a social worker/case worker. (R. 22, Finding Nos. 7-9.) Since the ALJ did not find Plaintiff able to perform her past relevant work as a nurse, Plaintiff's disagreement with such a finding is not relevant. However, in the interest of a thorough review, the ALJ's RFC determination is herein examined.
The ALJ made a residual functional capacity assessment that Plaintiff was able to perform sedentary work. The ALJ made his findings after a thorough evaluation of the medical evidence, consideration of Plaintiff's testimony, and consideration of the testimony of the VE. (R. 14-22.) Further, Plaintiff left her job as a social worker/case manager because she moved to a different state, not because she was unable to perform the job. (R. 477.) Thus, Plaintiff has failed to advance medical evidence of an impairment precluding work as a social worker/case manager, and the ALJ's determination that Plaintiff retained the RFC to perform work as a social worker/case manager was supported by substantial evidence.
Residual functional capacity ("RFC") measures
what an individual can still do despite his or her limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities.
SSR 96-8p, 61 Fed. Reg. 34474. See also 20 C.F.R. § 416.920 (evaluating disability generally), 416.945 (defining RFC), 416.961 (evaluating RFC generally), and 416.969a(d) (evaluating combined exertional and non-exertional RFCs). An RFC assessment must be based on all of the evidence in the case record. 20 C.F.R. § 416.945(a); SSR 96-7p, 61 Fed. Reg. 34483; SSR 96-8p.
Though Plaintiff alleged debilitating back pain and underwent several diagnostic tests, including MRIs, bone scans, and EMGs, none of the tests from 1993 through 1998 confirmed the presence of a neurosurgically significant impairment. (R. 110-111, 113, 119-123, 124-126, 440-442.) The medical evidence does not show that Plaintiff had muscle spasm, significant motor, sensory, or reflex loss, or significant muscle weakness associated with a disabling condition. Additionally, two consulting neurosurgeons examined and evaluated Plaintiff and confirmed that surgery was not warranted. (R. 124, 442.) Further, Plaintiff's own treating physician noted that Plaintiff's complaints were out of proportion with the medical evidence. (R. 175, 220.)
As stated above, substantial evidence supports the ALJ's finding that Plaintiff is capable of performing her past relevant work as a social worker/case manager. Plaintiff does not have a mental or physical impairment that would preclude her ability to perform her past relevant work on the date her insured status expired. Since substantial evidence supports the ALJ's evaluation of Plaintiff in relation to the grids as well as the ALJ' s determination that Plaintiff retains the ability to perform past relevant work, we make the following recommendation:
RECOMMENDATION
AND NOW, this 21 day of may, 2003. it is RESPECTFULLY RECOMMENDED that the Plaintiff's/Motion for Summary Judgment should be DENIED, and the Defendant's Motion for Summary Judgment should be GRANTED. BY-THE COURT: