Opinion
No. 97-3799 (DRD).
August 26, 1999
Abraham S. Alter, Esq., Langton Alter Rahway, NJ, Attorney for Plaintiff.
Faith S. Hochberg, Esq., United States Attorney By: Anthony J. LaBruna, Esq., Assistant U.S. Attorney Newark, NJ, Attorney for Defendant.
OPINION
Plaintiff 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 applications for disability insurance benefits and Supplemental Security Income ("SSI") benefits. Plaintiff moves for a reversal of the dismissal of his claim by the Administrative Law Judge ("ALJ"). For the reasons set forth below, Plaintiff's appeal is denied and the Commissioner's decision is affirmed.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The following facts are set forth in the administrative records. Plaintiff, Luis Velazquez, was born on March 29, 1961. (Tr. 97) Plaintiff completed an eighth grade level of education in Puerto Rico. (Tr. 37) Plaintiff can read and write English. (Tr. 37-38) For two months in 1990 and for three months in 1992, Plaintiff worked in chemical cleaning. (Tr. 39-40) Prior to his work at chemical cleaning companies, Plaintiff worked for eight years doing steel polishing. (Tr. 44) Before that, Plaintiff operated a hi-lo truck as foreman for two or three years. (Tr. 46-47) Plaintiff was in an automobile accident at his job on March 16, 1990. (Tr. 38)
On June 29, 1993, Plaintiff applied for disability insurance benefits under the Act. (Tr. 97-102) Plaintiff alleged disability since November 15, 1991 due to back, neck, and leg pain. (Tr. 97, 104) This application was denied initially and not further appealed. (Tr. 104-106) Plaintiff filed a second application for disability insurance benefits, as well as an application for SSI benefits on May 11, 1994. (Tr. 107-114) These applications were denied initially and again on reconsideration. (Tr. 117-122, 135-139) The Plaintiff requested a hearing before an ALJ. (Tr. 140) On October 2, 1995, Plaintiff appeared before the ALJ, the Honorable Joel H. Friedman. (Tr. 27) The ALJ, in his decision dated August 29, 1996, held that Plaintiff was not disabled since his impairments did not prevent him from performing the full range of light work, including his past relevant work as a hi-lo operator. (Tr. 19-20) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on April 20, 1998. (Tr. 4-5)
At the October 2, 1995 hearing, Plaintiff testified that he cannot sit for extended periods of time because of back pain. (Tr. 35-36) He therefore only drives locally about twice a week. (Tr. 36) Plaintiff stated that he lives with his mother and sister who assist him at home. (Id.) Plaintiff testified that he cannot work because his back and legs bother him, which make him uncomfortable when sitting. (Tr. 38)
Plaintiff testified that he was in a motor vehicle accident on March 16, 1990. (Tr. 38) Plaintiff stated that he was admitted to the hospital and released the same day. (Tr. 39) Plaintiff then testified that when he tried to go to work the next day, he could not get up. (Id.) Plaintiff stated that he waited two months before returning to work. (Id.) He then remained at work for two months on light duty. (Tr. 39, 75) Plaintiff was then sent back to his regular job, which he was unable to do. (Tr. 77) Then, in 1992, Plaintiff returned to work for about three months. (Tr. 40) Plaintiff stated that his job required about four hours sitting and four hours standing; no lifting was required. (Tr. 40-41) Plaintiff testified that he has not worked since 1992. (Tr. 41)
Plaintiff testified that he is only taking over the counter medications at the present time. (Tr. 42) Plaintiff stated that he had been taking prescription Motrin two or three months before the hearing. (Id.)
Plaintiff testified that before his accident, he worked for two years at a chemical cleaning company, which required light lifting, about ten to fifteen pounds, and a little sitting. (Tr. 43-44) When questioned again, Plaintiff stated that his job required lifting a hose that weighed about 40 to 50 pounds, crawling into manholes, and climbing ladders. (Tr. 70-71) Plaintiff stated that before that job, he worked for eight years in steel polishing, which required him to stand all the time and to lift up to 50 pounds. (Tr. 44-45) Prior to that job, Plaintiff stated, he drove a hi-lo truck for two years, which required eight hours of sitting. (Tr. 46) Plaintiff testified that he could get up off the hi-lo to stand when necessary. (Tr. 47) Plaintiff stated that in order to drive the hi-lo truck, he had to turn around to look back, which he can do. (Tr. 63)
Plaintiff stated that he now stays home all the time. (Tr. 48) He stated that he does not wash dishes, sweep, mop, vacuum, or do gardening. (Tr. 48-49) Plaintiff said that he sits or lies down to watch television or listen to the radio. (Tr. 48) He stated that he cannot sit for long periods of time to watch television. (Id.) Plaintiff stated that he goes shopping occasionally when his sister, or his girlfriend, takes him. (Tr. 50)
Plaintiff testified that he has difficulty sleeping because he is uncomfortable. (Id.) Plaintiff stated that he does sleep five hours a night, though. (Id.) Plaintiff said that he can get in and out of the shower, button buttons, shave, and comb his hair without assistance. (Id.) Plaintiff stated that he must walk with a cane since his accident. (Tr. 51) Plaintiff testified that he cannot bend over to pick something up from the floor. (Id.) Plaintiff stated that he can lift 20 to 25 pounds and could carry 10 to 15 pounds if he had to lift all day. (Tr. 52) Plaintiff testified that he can walk two blocks without a problem. (Tr. 53) Plaintiff stated that he can stand for 20 minutes before he experiences lower back pain. (Id.) Plaintiff then stated that he can sit for 15 minutes before he has back and leg pain. (Tr. 54) Plaintiff testified that he has no problem with his arms. (Tr. 55)
Plaintiff testified that he has problems with his balance. (Tr. 56) Plaintiff stated that his pain is worse in high humidity. (Tr. 57) He then said that the pain from his back spreads to his left leg. (Id.) Plaintiff stated that at no time during any given day is his back in no pain. (Tr. 58) Plaintiff then testified that the pain in his back is strong and gets worse when he twists to the side. (Id.) Although he stated that he walks better with a cane, Plaintiff said that he could walk without the cane. (Tr. 66) Plaintiff said that he had therapy for seven months to a year. (Tr. 67) He then said that after therapy, he still felt the same pain as in 1990 and still has that pain. (Tr. 67-68)
Plaintiff testified that he takes Aleve, Advil, Tylenol, and Doan's for pain. (Tr. 86) Plaintiff stated that in addition to his other pain, he suffers from headaches. (Tr. 89) He said that he gets them about twice a week. (Id.) Plaintiff stated that he takes painkillers to relieve his headaches, and that they help a little bit. (Tr. 90) Plaintiff stated that he had two epidural blocks in June 1994 to relieve his back pain. (Tr. 95)
Rose Marie Reyes testified that she has known Plaintiff for 13 years. (Tr. 79) She stated that she goes with Plaintiff to all his doctor appointments. (Id.) She stated that Dr. Sweeney told Plaintiff that he needed surgery. (Id.) She said that Dr. Sweeney later said that Plaintiff did not require surgery. (Tr. 80) Ms. Reyes testified that Plaintiff visibly has trouble walking. (Tr. 81) She stated that when in pain, Plaintiff must lie down. (Id.) Ms. Reyes testified that Plaintiff cannot go to the movies because he cannot sit for a long period of time. (Tr. 82)
MEDICAL EVIDENCE
Dr. Ohad Lifshitz's medical reports dated March 26, 1990 state that Plaintiff had been seen for a physical therapy evaluation and treatment for lower back pain. (Tr. 209) Plaintiff's range of motion within his lumbar spine was maximally restricted in all planes of motion. (Id.) In addition, Plaintiff had severe spasm laterally along his lumbar spine. (Id.) Dr. Lifshitz's report of July 31, 1990 states that Plaintiff's range of motion within his lumbar spine was markedly restricted in forward flexion, extension, and side flexion to the left side. (Tr. 214)
Medical records of John F. Kennedy Medical Center from March 1990 state that Plaintiff stated that he was in a car accident in which he was hit from behind. (Tr. 215) X-rays of Plaintiff's cervical spine showed normal results. (Tr. 217) X-rays of Plaintiff's lumbosacral spine were also normal. (Tr. 218)
Dr. Melvin Jaspan's report of April 13, 1990 states that he performed a Magnetic Resonance Imaging ("MRI") of Plaintiff's lumbar spine. (Tr. 219) Dr. Jaspan found disc degeneration at L3, L4, and L5 with only minimal impressions upon the anterior surface of the subarachnoid space. (Id.)
Records of Union Hospital from July 1990 state that Plaintiff was admitted for one week on July 19, 1990 at which time he had a myelogram and CAT scan performed which showed no operative pathology. (Tr. 222) Plaintiff's CAT scan report dated July 24, 1990 states that Plaintiff showed no evidence of disc herniation or other defects of his lumbar spine. (Tr. 225) Plaintiff's x-ray report dated July 25, 1990, states that he had an essentially negative myelogram. (Tr. 226)
Reports of Central Rehabilitation Associates, Inc. dated August 3, 1990 state that Plaintiff was diagnosed by Dr. Steven Nehmer with degenerative herniated lumbar disc, despite a CT scan and a lumbar myelogram that were both negative. (Tr. 233) Dr. Nehmer diagnosed Plaintiff with "herniated discs" on August 1, 1990, based on an April 1990 MRI that indicated mild herniation of L3, L4, and L5 discs. (Id.) Dr. Nehmer also diagnosed Plaintiff with a post-myelogram headache which, the physician stated, rarely lasts more than a day or two. (Id.) Dr. Nehmer suggested that Plaintiff continue with bed rest for another week and have physical therapy three times a week. (Id.) Plaintiff was taking Motrin 800 mg three times a day and flexeril 10 mg three times a day for back pain which, Plaintiff stated, helped "a little." (Tr. 234) Plaintiff was also taking Darvocet N-100 up to four times a day for headache pain. (Id.) Plaintiff's prognosis at that time was guarded as Dr. Nehmer was not certain that physical therapy would decrease Plaintiff's pain. (Id.) Dr. Nehmer anticipated that Plaintiff could return to work on or about August 23, 1990. (Id.) At that time, the report states, Plaintiff was unable to bend forward or to either side and he became tired easily. (Id.) The doctor also stated that Plaintiff's body movements seemed inconsistent with his reported levels of pain, specifically, that Plaintiff could assume a side-lying position with his trunk propped on his left elbow which seemed unlikely given the severity of his reported pain. (Tr. 234-235)
Reports of Central Rehabilitation Associates, Inc. dated August 23, 1990 state that Plaintiff was diagnosed with degenerative herniated discs at L3, L4, and L5. (Tr. 237) The report stated that Plaintiff had a worsening of back pain and therefore could not return to work on the projected August 23, 1990 date. (Tr. 238)
Reports of Central Rehabilitation Associates, Inc. dated September 6, 1990 state that Plaintiff was scheduled for an epidural block on August 29, 1990. (Tr. 243) Plaintiff stated that the block was not effective in decreasing his back pain. (Id.) Dr. Nehmer stated that Plaintiff's epidural block was ineffective and that physical therapy was discontinued because that too was ineffective. (Tr. 243-244) Plaintiff stopped taking his prescribed medication as it was irritating his stomach. (Tr. 244) Dr. Nehmer then recommended that Plaintiff undergo a discogram to clarify Plaintiff's diagnosis. (Id.)
Reports of Central Rehabilitation Associates, Inc. dated September 13, 1990 state that while Plaintiff was unable to tie his shoelaces, he could dress himself. (Tr. 246) Plaintiff reported that his back and right leg pain had improved slightly since his epidural block. (Id.) Plaintiff was taking no medications for his pain. (Id.) Dr. Ralph Sweeney, an orthopedic surgeon, stated that Plaintiff's x-ray and MRI showed that he had one degenerative disc in his neck and three degenerative discs in his back. (Id.)
Dr. Sweeney's report dated September 14, 1990 states that Plaintiff did not appear to have a significant nerve root compression involving his right leg, but his studies were not definitive. (Tr. 273) Dr. Sweeney stated that Plaintiff was a possible surgical candidate, but that a further work up was necessary to determine if Plaintiff should undergo surgery. (Id.) Dr. Sweeney's report of October 1, 1990 states that Plaintiff had a degenerative herniated disc at L5-S1 going to the right. (Tr. 270) Dr. Sweeney advised that Plaintiff undergo surgical decompression of his nerve root at that level, with excision of the compressing disc fragment. (Id.)
Records of Dr. Martin Diamond dated September 26, 1990 state that Plaintiff's range of motion in his back was markedly diminished for flexion and extension. (Tr. 268) There was also marked tightness in Plaintiff's paraspinals bilaterally and tenderness to palpation in Plaintiff's sacroiliac joints bilaterally and in his right sciatic notch with radiation laterally to his shin. (Id.) Manual muscle testing revealed no focal weakness. (Id.) Straight leg raising was positive for low back pain on Plaintiff's right at 30 degrees of elevation. (Id.) Dr. Diamond concluded that Plaintiff's electrodiagnostic abnormalities were minimal and consisted primarily of rest potentials in L-5, S-1 muscles bilaterally, in Plaintiff's right side more than his left. (Tr. 269) He stated that the presence of complex polyphasic potentials was indicative of chronicity and might indicate a chronic L-5, S-1 radiculopathy. (Id.)
Reports of Central Rehabilitation Associates, Inc. dated October 5, 1990 state that while Plaintiff complained of ongoing lower back and right leg pain since his March 16, 1990 accident, he was flexible and mobile in terms of sitting, standing, and walking. (Tr. 250) Dr. Nehmer stated that Plaintiff's discogram and EMG both showed a problematic herniated disc at L5-S1. (Tr. 251) Dr. Nehmer suggested that Plaintiff could either have surgery, return to work in his present condition, an option that Dr. Nehmer did not think would be successful, or live with the pain, but find a new job. (Id.)
Reports of Central Rehabilitation Associates, Inc. dated October 19, 1990 state that Plaintiff was examined by Dr. Steven Dorsky, a spine surgeon, who found that Plaintiff had a "very small" disc herniation at L5-S1. (Tr. 253-254) Dr. Dorsky felt that surgery was not necessary, but also not unreasonable given Plaintiff's reported level of pain. (Tr. 254) Dr. Dorsky recommended four weeks of intensive physical therapy to see if Plaintiff's condition would improve. (Id.) If the therapy was ineffective, surgery was to be considered. (Id.)
Medical records of Dr. Dorsky dated October 22, 1990 state that Plaintiff was well developed and well nourished, in no acute distress. (Tr. 278) Plaintiff's range of motion revealed poor flexion with modest discomfort. (Id.) Extension caused leg pain. (Id.) An MRI revealed a small herniated disc at Plaintiff's L5-S1 level with bulging of his L4-L5 disc. (Id.) Dr. Dorsky suggested a trial course of rehabilitation in order to return Plaintiff to his previous job. (Tr. 279)
Reports of Central Rehabilitation Associates, Inc. dated November 15, 1990 state that Plaintiff reported no left leg pain and improvements in both his right leg and back pains. (Tr. 256) Dr. Dorsky stated that he anticipated that Plaintiff could return to work on approximately December 19, 1990 without any restrictions on his physical responsibilities. (Tr. 257)
Dr. Dorsky's report dated November 16, 1990 states that Plaintiff had undergone significant improvement in his condition and that Plaintiff stated that his pain has resolved fairly well. (Tr. 282) Plaintiff had residual lower back pain in his right paralumbar region as well as right calf discomfort. (Id.) Plaintiff had had satisfactory progress at rehabilitation by that date. (Id.) Dr. Dorsky stated that Plaintiff would continue rehabilitation for another three weeks at which time he would be ready to return to work. (Id.)
Reports of Central Rehabilitation Associates, Inc. dated December 6, 1990 state Plaintiff reported that his pain was not as bad as it had been. (Tr. 259) Reports of Central Rehabilitation Associates, Inc. dated January 14, 1991 state that Plaintiff's therapist stated that Plaintiff's lift evaluation showed a small increase in strength. (Tr. 264) On January 14, 1991, Plaintiff's therapist reported that Plaintiff's evaluations had gone well. (Tr. 265) At that time, Plaintiff was released to full time work without any physical restrictions. (Id.)
In Dr. Dorsky's report dated January 9, 1991, he stated that Plaintiff had made remarkable improvement. (Tr. 280) He also stated that Plaintiff had no complaints of pain and that he stated that he was doing very well on a day to day basis. (Id.)
Dr. Frederick Lumda's records dated July 3, 1993 state that he saw Plaintiff only once and diagnosed him with lumbar radiculopathy. (Tr. 166) He suggested that Plaintiff be treated with acupuncture. (Id.)
Dr. Aruna S. Patel's report dated November 4, 1993 states that Plaintiff had lower back pain that goes to his right leg and toes, and on occasion, he had pain in his neck and head. (Tr. 170) Plaintiff was taking only over the counter medications. (Id.) Plaintiff's muscle strength in his upper extremities was complete. (Id.) Plaintiff's tendon reflexes were intact. (Id.) Plaintiff was able to take resistance well and his sensory system was normal. (Id.) Plaintiff's cervical and lumbosacral spine revealed no paraspinal muscle spasms. (Tr. 171) Dr. Patel noted no tenderness in Plaintiff's lumbosacral spine area. (Id.) Dr. Patel noted no swelling in Plaintiff's ankle. (Id.) She stated that Plaintiff's muscle strength was complete. (Id.) Plaintiff was able to walk into the examining room, was able to get on the examining and x-ray tables without any difficulty. (Id.) Plaintiff's gross movements were normal and his squatting and bending were not restricted. (Id.)
Dr. Patel's report dated June 6, 1994 states that Plaintiff's cervical spine was not spastic. (Tr. 176) Lateral flexion was to 40 degrees. (Id.) Flexion and extension were to 30 degrees. (Id.) Rotation of the cervical spine was to 45 degrees. (Id.) Forward flexion and extension of Plaintiff's lumbar spine was to 60 degrees. (Id.) Straight leg raising was weakly positive bilaterally. (Id.) Plaintiff's muscle strength was 4/5 in his left and right legs. (Id.) He was not able to take resistance well in his legs and complained of pain to his lower back. (Id.) Plaintiff's deep tendon reflexes and his sensations were normal. (Id.)
Records of St. Elizabeth Hospital dated April 21, 1994 state that Plaintiff was admitted for continuous back pain. (Tr. 181) Plaintiff had refused surgery in the past and attempted alternate therapies without relief. (Id.) According to hospital records, Plaintiff was admitted on April 28, 1994 for lumbar back pain. (Tr. 179) The hospital's records also show Plaintiff was admitted May 12, 1994, May 25, 1994, June 2, 1994, September 29, 1994, and November 10, 1994, for back and neck pain. (Tr. 183-191) On May 25, 1994, Plaintiff had an x-ray of his lumbosacral spine which demonstrated disc degenerative change at L5-S1. (Tr. 191) Plaintiff was admitted for a bone scan on May 26, 1994 which showed no abnormalities. (Tr. 190)
Dr. Sweeney's medical records dated December 16, 1994 state that he saw Plaintiff in his office on December 12, 1994. (Tr. 205) At that time, Plaintiff stated that his back had been getting worse when he was active and inactive. (Id.) Plaintiff stated that he had begun having left and right leg pain, as well as lateral and medial ankle pain. (Id.) Plaintiff stated that he had had one epidural block and six weeks of therapy with no relief. (Tr. 205-206) Dr. Sweeney believed that Plaintiff had a degenerative herniated disc at L5-S1, which went untreated from 1990 to 1994. (Tr. 207) Plaintiff now presented with a lumbar radicular syndrome that had gotten worse in the past several months for no apparent reason. (Id.) Dr. Sweeney recommended that Plaintiff have a new MRI of his lumbar spine. (Id.)
Dr. Sweeney initially saw Plaintiff on September 13, 1990 and at that time Plaintiff told him that he was driving his van on March 16, 1990 when he was hit in the back and thrown forward. (Tr. 205) According to Dr. Sweeney, Plaintiff complained of persistent pain in his back since his accident. (Id.) Plaintiff had an MRI, epidural blocks, and therapy. (Id.) Dr. Sweeney recommended in 1990 that Plaintiff undergo surgery. (Id.) Plaintiff was not seen again by Dr. Sweeney until his December 12, 1994 office visit. (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 has promulgated a five-step analysis for evaluating a claimant's disability. See 20 C.F.R. § 404. The Commissioner 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 substantially 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 Plaintiff 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 August 29, 1996, ALJ Joel H. Friedman determined the following:
1. The claimant met the disability insured status requirements of the Act on November 15, 1991, the date he alleges onset of disability, and continued to meet those requirements through December 31, 1995. So far as the record shows, the claimant has not performed substantial gainful activity since his alleged onset date ( 20 C.F.R. 404.1564 and 416.964).
2. The issue of "disability" existing prior to the adverse determination dated December 8, 1993, has been dismissed ( 20 C.F.R. 404.957(c)(1) and 416.1457(c)(1)).
3. The medical evidence establishes that the claimant has minor disc herniations at the L3, L4, and L5 levels, and disc degeneration, which are considered to be "severe" impairments, within the Social Security Act, as amended.
4. The medical evidence does not establish that the claimant has an impairment or a combination of impairments which" meets or equals" in severity the clinical criteria of any impairment listed in 20 C.F.R. 404 and 416, Regulations No. 4.
5. The claimant's subjective complaints of occasional back pain, which is treated with over-the-counter medications is credible. However, to the extent, duration, and severity that the claimant relates it prevents him from engaging in all work activity, are exaggerated and are not credible.
6. The claimant's residual functional capacity is such that he is capable of engaging in the full range of light work activity, as indicated by the claimant's medical records, functional assessments, and testimony ( 20 C.F.R. 404.1568 and 416.968).
7. The claimant's past relevant work is as a hi-lo operator, which is a job requiring sitting, and the use of foot pedals, and is considered to be light level work activity ( 20 C.F.R. 404.1564 and 416.964).
8. Considering the claimant's residual functional capacity, the claimant could perform his past relevant work.
9. The claimant has not been under a "disability" as defined in Titles II and XVI of the Social Security Act, as amended, at any time through the date of this decision ( 20 C.F.R. 404.1520(f) and 416.920(f)).
Tr. 19-20.
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 (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).
Generally, a claimant who wishes to qualify for Social Security disability benefits must demonstrate that there is some "medically determinable basis for an impairment that prevents him from engaging in any substantial gainful activity for a statutory twelve-month period." Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987). A claimant may make such a showing in one of two ways. The claimant can introduce medical evidence showing that he is disabled per se because he suffers from one or more of a number of serious impairments delineated in 20 C.F.R. Regulations No. 4, Subpart P, Appendix 1. If, however, the claimant's impairments do not meet or equal the Listing of Impairments, the claimant must demonstrate that he is nevertheless unable to engage in any other kind of substantial gainful work existing in the national economy.
The ALJ found that Plaintiff was not under a disability as defined in the Social Security Act at any time through the date of the ALJ's decision. The ALJ determined that Plaintiff's disc herniations and disc degeneration constituted a severe impairment, but that the medical evidence did not establish that the impairment equaled in severity the clinical criteria of any impairment listed in Regulations No. 4, Subpart P, Appendix 1.
Plaintiff asserts that the ALJ erred in concluding that Plaintiff could perform his past relevant work as a hi-lo operator. Plaintiff argues that since the ALJ did not state in his opinion what a hi-lo operator does, he must have been incorrect in finding that Plaintiff can perform such past relevant work. Plaintiff testified as to what the job of hi-lo operator entailed, though. He stated that operating a hi-lo truck required eight hours of sitting. (Tr. 46) Plaintiff also stated that, when necessary, he could stand up off the hi-lo and that in order to drive the hi-lo, he had to turn and look back, which he testified that he is able to do. (Tr. 47, 63) The ALJ stated in his opinion that "a hi-lo operator . . . is a job requiring sitting, and the use of foot pedals, and is to be considered light level work activity." (Tr. 19) Plaintiff made clear in his testimony what is required of a hi-lo operator. As such, it was not essential for the ALJ to include more than he did in his opinion.
Plaintiff next argues that the ALJ failed to state in his opinion how much Plaintiff can lift, or whether there are non-exertional limitations to stooping, crouching, concentrating, keeping pace, bending, or carrying. The responsibility for deciding a plaintiff's residual functional capacity to do his past relevant work lies with the ALJ at the hearing. 20 C.F.R. § 404.1546. In this case, Plaintiff argues that the ALJ failed to assess Plaintiff's residual functional capacity.
The ALJ stated in his opinion that Plaintiff's "subjective complaints of back pain occurring occasionally, which [are] treated with over-the-counter medications, [are] consistent with the medical record. However, the claimant's allegation that his back pain prevents all work activity, is not entirely consistent with the record as a whole." (Tr. 18) The ALJ went on to say that "[t]he preponderance of the record evidence indicates that the claimant's residual functional capacity permits him to perform the full range of light level work activity." (Id.) This is a clear assessment of Plaintiff's residual functional capacity.
Light work is defined by the Commissioner as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.20 C.F.R. § 404.1567(b). The ALJ found that based on Plaintiff's testimony, his objective medical tests, and the opinions of his treating physicians, he is capable of performing a wide range of light work. Plaintiff himself testified that he can occasionally carry 20 to 25 pounds and can frequently lift 10 to 15 pounds. (Tr. 52) Plaintiff also stated that he is able to turn around and look back which is required to operate a hi-lo truck. (Tr. 63) Dr. Dorsky reported in January 1991 that Plaintiff had "no complaints of pain" and that he could return to his cleaning work. (Tr. 280) The ALJ's determination that Plaintiff has the residual functional capacity for light work is therefore supported by substantial evidence of record.
The ALJ then addressed Plaintiff's past relevant work. He stated that since past relevant work is defined in 20 C.F.R. § 404.1565 as "work activity which has been done within the last fifteen (15) years and which can be considered `substantial gainful activity' under the earnings guidelines," Plaintiff's past relevant work includes his job as a hi-lo operator. (Id.) The ALJ then concluded that Plaintiff has the residual functional capacity to perform his past relevant work as a hi-lo driver/foreman since he can perform the entire range of light work, which includes operating a hi-lo truck. (Id.)
Plaintiff next argues that his testimony was credible and supported by medical evidence. The ALJ concluded that Plaintiff's complaints were somewhat exaggerated in alleging that his back pain prevents all work activity. (Id.) Testimony by a claimant of subjective symptoms such as pain must be given serious consideration and may not be discounted by the ALJ, even if objective medical findings do not establish the existence of a condition that clearly demonstrates a cause for the pain. Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993); Green v. Schweiker, 749 F.2d 1066, 1068 (3d Cir. 1984); Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981). However, in considering a claimant's testimony, the ALJ has considerable discretion in evaluating his or her credibility. See Williams v. Sullivan, 970 F.2d 1178, 1186-87 (3d Cir. 1992), cert. denied, 502 U.S. 924 (1993); LaCorte v. Bowen, 678 F. Supp. 80, 83 (D.N.J. 1988). The ALJ must view the claimant's complaints in light of the medical evidence in the records. Id.
In finding that "the extent, duration, and severity that the claimant relates [his subjective complaints of pain] prevent him from engaging in all work activity, are exaggerated and are not credible," the ALJ evaluated both Plaintiff's testimony and the objective medical evidence and gave less weight to Plaintiff's subjective complaints of pain in light of the results of Plaintiff's x-rays, MRI, other objective tests, and the findings of his treating physicians. The results of Plaintiff's diagnostic tests were inconsistent with his complaints. His complaints of disabling back pain conflict with normal x-rays, a normal bone scan, and a normal CAT scan of Plaintiff's lumbar and cervical areas. (Tr. 217-218, 190, 225) Likewise, his complaints of terrible lower back pain are contradictory to an MRI showing only minimal anterior degeneration at L3, L4, and L5. (Tr. 219)
Reports from Plaintiff's treating physicians are also contradictory to Plaintiff's complaints of disabling pain. Dr. Diamond stated that Plaintiff's electrodiagnostic abnormalities were minimal at Plaintiff's L5-S1 disc. (Tr. 269) Likewise, Dr. Dorsky, a spine surgeon, found that Plaintiff had a very small disc herniation at L5-S1. (Tr. 253-254) Dr. Dorsky maintained that with therapy, Plaintiff had significant improvement to his condition and that Plaintiff himself had stated that his pain had resolved fairly well. (Tr. 282) Dr. Dorsky reported in January 1991 that Plaintiff had "no complaints of pain" and that he could return to work. (Tr. 280)
The ALJ clearly states in his decision his reasons for questioning the credibility of Plaintiff's testimony. He noted that Plaintiff had virtually no treatment from 1991 until 1994. (Tr. 16) In addition, the only medication that he was taking was Aleve and Doan's pills. (Tr. 17) While Plaintiff testified that he has severe radiating back pain which greatly limits his daily activities, the record indicates that Plaintiff's herniations were not that severe and that he was successfully treated with therapy. (Tr. 17, 219, 225, 265, 282) Thus, the medical records constitute substantial evidence supporting the ALJ's conclusion that Plaintiff's pain may not be as severe as he claims. As such, substantial evidence supports the ALJ's findings and he did not commit legal error.
CONCLUSION
For the foregoing reasons, the decisions of the Commissioner will be affirmed. An appropriate order will be entered.