Opinion
97-CV-0159 (JBS).
March 17, 1999
Robert A. Petruzzelli, Esquire, Jacobs, Schwalbe Petruzzelli, P.C., Cherry Hill, N.J., for Plaintiff.
Faith S. Hochberg, United States Attorney, By: Anthony J. LaBruna, Jr., Assistant United States Attorney United States Attorney's Office Newark, New Jersey, for Defendant.
OPINION
This Matter comes before this court pursuant to section 205(g) of the Social Security Act ("Act"), as amended 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration ("Commissioner"), denying plaintiff's claim for a period of disability and Disability Insurance Benefits under Title II of the Act. For the reasons stated below, this court will affirm the Commissioner's decision.
I. Background
A. Procedural History
Plaintiff, Mary Miller, applied for a period of disability and disability insurance benefits on March 7, 1994 alleging disability as of July 7, 1992, due to Status Post Laminectomy Syndrome. (R. 67-79.) This application was denied initially and upon reconsideration. (R. 80-82, 86-87.)
Plaintiff then requested a hearing, which was held on March 8, 1995, before Administrative Law Judge ("ALJ") Alan M. Neff. (R. 20-27, 41-65.) In his decision dated August 24, 1995, the ALJ found that plaintiff met the insured status requirements of the Act on March 15, 1992, the date plaintiff stated she became unable to work, and continued to meet them through the date of the decision. (R. 26.) The ALJ also found that plaintiff had not engaged in substantial gainful activity since March 15, 1992. (Id.) The plaintiff was found to have a severe impairment, but not an impairment or combination of impairments listed in or equal to one of those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, Regulation No. 4. (Id.) However, the ALJ found that plaintiff was capable of performing her past relevant work as an office manager because her impairment does not prevent her from meeting the exertional demands of that occupation. (R. 25.) Therefore, the ALJ concluded that the plaintiff is not entitled to a period of disability or disability insurance benefits. (R. 27.)
The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on November 8, 1996. (R. 6-7.)
Plaintiff timely filed this action in the United States District Court on January 3, 1997, claiming that the Commissioner's finding that she is not entitled to disability insurance benefits was not based on substantial evidence. Specifically, plaintiff alleges that the ALJ improperly rejected the findings of plaintiff's treating physician and improperly discounted plaintiff's testimony. (Pl. Br. at 9-17.)
B. Personal and Medical History
Mrs. Miller was born on July 22, 1954 and is 40 years old. (R. 44.) She is married to her second husband and has two children from her first marriage, ages 23 and 19. (R. 45.) Mrs. Miller currently resides with her husband and son in a mobile home. (R. 46.) She receives an income of $840 per month in worker's compensation benefits as the result of an injury she sustained in 1987. (Id., 51.)
Mrs. Miller attended Jefferson Technical Institute from 1982 through 1984 to receive computer training. (R. 47-48) She returned to Jefferson in 1990, and in June of 1992 she graduated with an Associate's Degree in Data Processing. (R. 48.)
Mrs. Miller testified that she has a driver's license and drives on occasion. (R. 46.) She usually drives to her mailbox and to the office of Dr. Mayhouse which is approximately 15 minutes away. (R. 47.) She goes grocery shopping once a month and usually spends about three and a half hours shopping, but claims that she is unable to engage in any other activities because of the pain. (R. 59-60, 61).
Mrs. Miller testified that she was employed by Dr. Macedonia as an office manager for approximately eight months. (R. 49.) In this position, her daily activities consisted of supervising other employees, receiving the daily cash receipts, and preparing the payroll. (Id.) Prior to her employment as an office manager, Mrs. Miller held positions as a financial manager, a receptionist, and a bartender. (R. 49-50.)
She testified that she can no longer perform this type of work because she has difficulty with standing and sitting. (R. 50.) According to Mrs. Miller, the problems began in February, 1992 when she began to lose balance while walking and experienced pain in her back. (Id.)
Mrs. Miller testified that her treating physicians are Dr. Mayhouse, her family physician, and Dr. Strenger, a neurologist. (R. 52.) She is also seen by a number of other doctors, as requested by her worker's compensation insurance company. (R. 52-53.) Mrs. Miller has undergone two surgeries for herniated disks in the L4, L5 and L5-S1 areas. (R. 61.) The first surgery was performed by Dr. Sinshaker in July, 1987. (R. 53) She testified that although her condition improved following the surgery, the symptoms soon returned. (R. 53-54.) The second surgery was performed by Dr. Chandra Sen in 1989. (R.63.) Mrs. Miller has not undergone any further surgical procedures since March of 1992. (R. 55.)
Although Mrs. Miller refers to Dr. Mayhouse as a treating physician, there is no evidence in the record, nor in the papers submitted to the court which demonstrates that Mrs. Miller was treated by Dr. Mayhouse.
Mrs. Miller testified that she experiences pain in her legs, back, and sometimes her buttocks. (R. 55-56.) She stated that she sometimes loses her balance and feels her legs give out, causing her to fall. (R. 56-57.) Mrs. Miller also claims that she experiences pain in her back when she has bowel movements. (R. 57.)
She testified that she is only able to sit up straight and walk for approximately ten minutes. (R. 58.) She performs leg exercises everyday for eight to ten minutes, but does not receive physical therapy. (R. 58-59, 62.) She also undergoes epidural blocks which were recommended by Dr. Strenger. (R. 62.) In addition, Mrs. Miller wears a brace and a TENS unit. (Id.) She is currently taking Zoloft, Darvocet and Seldane. (R. 64.) A complete summary of the medical findings follows.
1. Laligam N. Sekhar, M.D.
Plaintiff was first seen by Dr. Sekhar on May 7, 1987, complaining of pain in her back and legs. (R. 116.) An examination revealed that tenderness in the back was minimal while movement was fairly good and not restricted. (R. Id.) Dr. Sekhar determined that plaintiff appeared to have an L5 and S1 radiculopathy, but arranged to have a myleogram for further evaluation. (Id.)
A lumbar myleogram was performed on May 11, 1987. (R. 117.) It revealed a herniated disc at L4-5 with a free fragment extending extradurally down to the L5, S1 level. (R. 118.) In addition, there was a calcified bulging disc herniation at the L5, S1 level. (Id.) Based on this myleogram, Dr. Sekhar recommended that plaintiff undergo surgery to alleviate the problem. (Id.)
On June 3, 1987, plaintiff underwent a L5 laminectomy bilaterally. (R. 119-121.) Following the surgery, plaintiff reported to Dr. Sekhar that her back and leg pain had almost totally resolved and her back felt better than it ever felt before. (R. 126.) On follow up visits, Dr. Sekhar reported that plaintiff was doing very well; her back pain was about 80% better and her leg pain had totally resolved. (R. 127-128.)
Plaintiff continued follow up visits with Dr. Sekhar through October 1989. During this time, plaintiff had a recurrence of her leg and back pain. (R. 131-136.) Dr. Sekhar determined that plaintiff should undergo a second surgical procedure. (R. 132.) On September 22, 1989, plaintiff underwent an L4-5 discectomy. (R. 139-140.) Following the surgery, plaintiff was again seen by Dr. Sekhar on October 26, 1989. (R. 131.) An examination revealed that plaintiff had a normal gait and residual weakness of the right EHL. (Id.) Plaintiff had no hypalgesia and her knee reflexes were 2+ and symmetrical. (Id.)
On March 3, 1992, plaintiff returned to Dr. Sekhar complaining of progressively severe back pain. (R. 156.) Physical examination revealed normal bulk, tone and power in all groups. (Id.) Rectal tone, power and sensation was normal, and she was able to tiptoe, heel walk, and knee bend. (Id.) Her reflexes were symmetrical throughout with absent ankle jerks bilaterally and downgoing toes. (Id.) Dr. Sekhar's impression was that plaintiff was experiencing mechanical back pain. (Id.) On a follow up visit, plaintiff reported that she was doing much better. (R. 158.) She explained that her leg pain had completely resolved and had no difficulty with any burning pain. (Id.) Dr. Sekhar recommended a physical therapy program for her to strengthen up her abdominal and back muscles. (Id.)
Plaintiff was last seen by Dr. Sekhar on July 7, 1992. (R. 161.) He opined that plaintiff may have spondylolisthesis or a recurrent herniated disc at the same level. (Id.)
2. Chandra N. Sen, M.D.
Plaintiff underwent her second surgical procedure on September 22, 1989. The surgery, performed by Dr. Sen, involved a re-exploration of plaintiff's lumbar laminectomy and removal of a large extruded disc at L4-5. (R. 139-140.) Following the surgery, Dr. Sen reported that a decompression of the thecal sac was achieved and that plaintiff had significant relief of the radicular pain in her right lower extremity. (R. 146.)
During a follow-up visit in January, 1990, plaintiff reported to Dr. Sen that she had injured her back again during casual activity. (R. 147.) On examination, Dr. Sen found no evidence of paraspinal spasm. (Id.) Plaintiff had good strength in all muscle groups in her lower extremities with a normal sensory examination. (Id.) Dr. Sen reviewed lumbar spine X-rays which showed no evidence of misalignment or narrowing of disc space. (Id.) Dr. Sen concluded that plaintiff's pain was musculoligamentus in nature and recommended that plaintiff begin physical therapy. (Id.) There was no evidence of radiculopathy. (Id.)
Plaintiff continued to see Dr. Sen on three more follow-up visits through May, 1990. (R. 150-152.) During these visits, plaintiff reported that physical therapy was going well. (Id.) Dr. Sen determined that plaintiff should be able to return to work as of June, 1990. (R. 151.)
3. John H. Feist, M.D., Radiology Report
On August 25, 1992, plaintiff had X-rays taken of her lumbosacral spine (R. 163.) Dr. Feist concluded that there was no visible malalignment or spondylolisthesis and that the sacrum and sacroiliac joints were normal. (Id.)
4. Dr. Peter J. Urda
On February 3, 1993, Dr. Urda conducted an independent medical exam for the purpose of assessing plaintiff's worker's compensation claim. (R. 173-175.) Plaintiff related that she had injured her back while attempting to lift a box of computer paper. (R. 173.) She indicated that she has had problems with pain off and on since her two surgeries in 1987 and 1989. (R. Id.) Dr. Urda reported that plaintiff was quite adamant about no further surgery. (R. Id.)
Following a physical examination, Dr. Urda concluded that plaintiff was unable to return to her work activities and has not reached a maximum level of improvement. (R. 174.)
5. Dr. Nick L. Terezis, M.D.
Plaintiff reported to Dr. Terezis on December 1, 1993 also for the purpose of assessing her worker's compensation claim. Dr. Terezis made essentially the same findings as Dr. Urda and concluded that plaintiff was not capable of returning to work and had not reached a maximum level of medical improvement. (R. 181-182.)
6. MRI Study, August 30, 1993
Plaintiff underwent an MRI of the lumbar spine on August 30, 1993. Dr. Albert Bleggi, M.D. concluded that post operative changes in the L4-5 levels with moderate amount of reactive epidural fibrosis were identified causing mild thecal sac compression, with no evidence of recurrent disc herniation. (R. 180.) There was no evidence of nerve entrapment nor significant spinal stenosis. (R. Id.)
7. MRI Study, March 24, 1994
Plaintiff underwent an MRI of the cervical and lumbar spine on March 24, 1994. The MRI of the cervical spine revealed mild bulging of the annuli at C3-C4 and C4-C5. (R. 183.) There was no evidence of disc herniation at any level. The cervical cord had a normal appearance and the cervical canal was normal in width, with no congenital stenosis. (R.Id.) Dr. M. Guzman concluded that there mild right foraminal stenosis at C4-C5, but no evidence of disc herniation. (R. Id.)
Dr. Guzman also performed an MRI of plaintiff's lumbar spine. Dr. Guzman concluded that the study revealed neither definite evidence of a recurrent disc herniation, nor an abnormal enhancement of the filum or nerve roots. (R. 184.)
8. Dr. Scott W. Strenger, M.D.
Plaintiff was first evaluated by Dr. Strenger on May 9, 1994. (R. 191-193.) Plaintiff related to Dr. Strenger that she was experiencing lower back pain which extended from the left buttock and down through the posterior aspect of the left leg into the heel of the left foot. (R. 191.) On physical examination, Dr. Strenger found that plaintiff's reflexes were equal and symmetric at +2. (R. 192.) Plaintiff's straight leg raise was positive on the left at 60 degrees and negative on the right. (R.Id.) Plaintiff moved all muscle groups well with 5 out of 5 strength. (R. Id.) After reviewing the MRIs of plaintiff's lumbar and cervical spines, Dr. Strenger determined that she is symptomatic from lumbar radiculopathy with post-laminectomy syndrome. (R. Id.)
9. Dr. Michael J. Partnow, M.D.
Dr. Partnow performed an independent neurological evaluation of plaintiff on June 28, 1994. (R. 214-215.) On examination, Dr. Partnow concluded that plaintiff's mental status and cranial nerves were normal. (R. 215.) Plaintiff's coordination, strength, and deep tendon reflexes were also normal throughout. (R. Id.) Plaintiff's straight leg raising was positive on the right at 45 degrees and on the left at 50-60 degrees. (R. Id.)
It was Dr. Partnow's impression that plaintiff had a persistent post-laminectomy syndrome secondary to her two surgeries. (R. Id.) He concluded that plaintiff was not capable of returning to work nor capable of sustained remunerative employment. (R. Id.) However, Dr. Strenger also noted that plaintiff might be capable of returning to work following a course of physical therapy. (R. Id.)
10. Dr. Morton B. Waldman, M.D.
Plaintiff reported to Dr. Waldman on May 1, 1995 to undergo an independent neurological exam for the purpose of assessing her worker's compensation claim. (R. 219-220.) Dr. Waldman determined that plaintiff's strength in her upper extremities was normal with no evidence of atrophy. (R. 220.) As for the lower extremities, plaintiff was able to walk on her heels and toes. (R. Id.) Her reflexes were +2 and straight leg reflexes were 75 degrees on the right and 60 degrees on the left. (R. Id.)
It was Dr. Waldman's opinion that plaintiff had chronic radiculopathy and chronic lumbar pain syndrome. (R. Id.)
II. Discussion
A. "Disability" Defined and Burdens of Proof
The Social Security Act defines "disability" for purposes of plaintiff's entitlement to benefits 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. § 1382c(a)(3)(A). Under this definition, a claimant qualifies as disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated regulations for determining disability applicable to Disability Insurance cases. See 20 C.F.R. § 404.1501-404.1599. Under these regulations, substantial gainful activity is defined as "work that — (a) involves doing significant and productive physical or mental duties; and (b) is done (or intended) for pay or profit." 20 C.F.R. § 404.1510. Importantly, this definition presupposes a regular, continuing, and sustained ability to perform such work. Kangas v. Bowen, 823 F.2d 775, 778 (3d Cir. 1987).
The Commissioner has promulgated regulations that determine disability by application of a five-step sequential analysis codified in 20 C.F.R. § 404.1520. The Commissioner evaluates each case according to a five-step process until a finding of "disabled" or "not disabled" is obtained. 20 C.F.R. § 404.1520(a). This five-step process is summarized as follows:
1. If the claimant currently is engaged in substantial gainful employment, he will be found "not disabled."
2. If the claimant does not suffer from a "severe impairment," he will be found "not disabled."
3. If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last for a continuous period of at least twelve months, the claimant will be found "disabled."
4. If the claimant can still perform work he has done in the past ("past relevant work") despite the severe impairment, he will be found "not disabled."
5. Finally, the Commissioner will consider the claimant's ability to perform work ("residual functional capacity"), age, education and past work experience to determine whether or not he is capable of performing other work which exists in the national economy. If he is incapable, a finding of disability will be entered. On the other hand, if the claimant can perform other work, he will be found not to be disabled.20 C.F.R. § 404.1520(b)-(f).
This analysis involves a shifting burden of proof. Wallace v. Secretary of Health Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of the analysis, the burden is on the claimant to prove every element of her claim by a preponderance of the evidence. In the final step, however, the Commissioner bears the burden of proving that work is available for the petitioner: "Once a claimant has proved that he is unable to perform his former job, the burden shifts to the Commissioner to prove that there is some other kind of substantial gainful employment he is able to perform." Kangas, 823 F.2d at 777. See Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).
B. Standard of Review
A reviewing court must uphold the Commissioner's factual decisions if they are supported by "substantial evidence." 42 U.S.C. § 405(g), 1383(c)(3); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992),cert. denied, 507 U.S. 924 (1993). "Substantial evidence" means 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)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The inquiry is not whether the reviewing court would have made the same determination, but, rather, whether the Commissioner's conclusion was reasonable. See Brown, 845 F.2d at 1213. Thus, substantial evidence may be slightly less than a preponderance. See Hanusiewicz v. Bowen, 678 F. Supp. 474, 476 (D.N.J. 1988).
The reviewing court, however, does have a duty to review the evidence in its totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). In order to do so, "a court must `take into account whatever in the record fairly detracts from its weight.'" Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks v. Secretary of Health Human Servs., 847 F.2d 301, 303 (6th Cir. 1988) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). The Commissioner has a corresponding duty to facilitate the court's review: "[w]here the [Commissioner] is faced with conflicting evidence, he must adequately explain in the record his reasons for rejecting or discrediting competent evidence." Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D.Pa. 1987) (citing Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). As the Third Circuit has held, access to the Commissioner's reasoning is indeed essential to a meaningful court review:
Unless the [Commissioner] has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). Nevertheless, the district court is not "empowered to weigh the evidence or substitute its conclusions for those of the fact-finder." Williams, 970 F.2d at 1182.
Some types of evidence will not be "substantial." For example,
[a] single piece of evidence will not satisfy the substantiality test if the [Commissioner] 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.Wallace, 722 F.2d at 1153 (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
The Third Circuit has long held that "[a] court considering a claim for disability benefits must give greater weight to the findings of a treating physician." Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993). See Kane v. Heckler, 776 F.2d 1130, 1135 (3d Cir. 1985). This is particularly true "`when the opinion reflects an expert judgment based on a continuing observation of the patient's condition over a prolonged period of time.'" Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987) (quoting Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984)).
The ALJ cannot reject a treating physician's testimony in the absence of contradictory medical evidence. See Jones v. Sullivan, 954 F.2d 125, 128-29 (3d Cir. 1991). However, an ALJ can reject the opinion of a treating physician if he or she explains on the record the reasons for doing so. See Allen v. Bowen, 881 F.2d 37, 41 (3d Cir. 1989); Brewster, 786 F.2d at 585. Moreover, apart from the substantial evidence inquiry, a reviewing court is entitled to satisfy itself that the Commissioner arrived at her decision by application of the proper legal standards.Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983); Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
III. Analysis
Plaintiff challenges the Commissioner's decision denying her a period of disability insurance benefits, claiming that the decision was not based on substantial evidence. Specifically, plaintiff alleges that the ALJ erred by failing to follow the administration policy established in Social Security Ruling 96-8P, and that the ALJ improperly discounted her testimony at the hearing. (Pl. Br. 9-17.) Plaintiff argues that the ALJ failed to follow administration policy by improperly rejecting the findings of her treating physicians. (Pl. Br. 12-14.) In addition, plaintiff argues that the administrative record provides a sufficient basis for an award of summary judgment in her favor. (Pl. Br. 17-18.)
For the following reasons, this court disagrees with Mrs. Miller's contentions and finds that the ALJ's determination is based on substantial evidence. The court will therefore affirm the Secretary's decision.
A. Whether the ALJ Correctly Evaluated the Findings of Plaintiff's Treating Physicians
Plaintiff alleges that the ALJ "ignored" the opinions of Dr. Peter Urda, Dr. Nick Terezis, Dr. Scott Strenger, and plaintiff's physical therapist in his determination that she is capable of performing her past relevant work. (Pl. Br. 13.) Plaintiff argues that had the ALJ given even the slightest consideration to these opinions, he could not have determined that plaintiff maintains residual functional capacity to perform her past relevant work. (R. Id.)
The Social Security Administration regulations regarding the evaluation of evidence from treating physicians are found in 20 C.F.R. § 404.1527. Generally, the regulations provide that the opinion of a treating physician will be given controlling weight if it is "well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." Id. and 416.927(d)(2) (1995).
The ALJ is not bound to accept the opinion of a treating physician without weighing it against the other medical evidence of record. Kent v. Schweiker, 710 F.2d 110, 115 n. 5 (3d Cir. 1983). Although the diagnosis of a treating physician is considered as to whether a claimant is "disabled," the ALJ has the final responsibility to determine claimants' residual functional capacity to perform past relevant work. 20 C.F.R. § 404.1527(e)(2).
Initially, the Court notes that plaintiff has improperly characterized the physicians discussed above as treating physicians. In explaining the nature of a treating physician's relationship with a patient and the weight given to their opinions, the regulations provide that the Social Security Administration will
give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.20 C.F.R. § 404.1527(d)(2).
Here, Dr. Urda, Dr. Terezis, and Dr. Strenger each saw the plaintiff only one time. Moreover, Dr. Urda and Dr. Terezis gave one time consultative exams for the sole purpose of evaluating plaintiff's worker's compensation disability benefits. The standards used to assess worker's compensation claims are completely different from those used under the Social Security Act. For example, Social Security disability insurance is available only where the disability could be expected to lead to death or last for more than 12 months, and prevents the ability to engage in any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A) (1983). In contrast, under worker's compensation, even temporary and partial disability are compensated. See e.g. N.J.S.A. 34:15-12 (West 1984-85 Supp.) Furthermore, Social Security disability conclusions are not geared to a percentage of disability, as are worker's compensation disability conclusions. Id.
Therefore, the use of such reports for Social Security purposes has been criticized in this district. See Minitee v. Harris, 510 F. Supp. 1216, 1218-19 (D.N.J. 1980). However, the Third Circuit has determined that these reports are entitled to some weight. Coria v. Heckler, 750 F.2d 245, 248 (3d Cir. 1984); Wallace v. Secretary of Health and Human Services, 722 F.2d 1150 (3d Cir. 1983). These types of reports will be weighed against the other evidence of record, and the ALJ may reasonably disregard so much of the physicians' reports as set forth their conclusions as to the claimant's disability for worker's compensation purposes while crediting the objective medical findings therein. Heckler, 750 F.2d at 247. In any event, however, the reports of Dr. Urda, Dr. Terezis, and Dr. Strenger are not to be regarded as findings by "treating physicians."
Here, contrary to the plaintiff's argument, the ALJ did consider the opinions of the physicians noted above and concluded that they were contradicted by other substantial medical evidence in the record. Dr. Strenger has seen Mrs. Miller on only one office visit on May 9, 1994. (R. 52, 191-193.) Dr. Strenger concluded that plaintiff's condition was symptomatic from lumbar radiculopathy with post-laminectomy syndrome. (R. 199-200) The ALJ evaluated this opinion in light of the remaining medical evidence and determined that Dr. Strenger's opinion was not consistent with other findings in the record.
The ALJ found that Dr. Strenger's own report revealed that physical examination of plaintiff showed no sensory deficits except for diminished pin sensation in the S1 distribution bilaterally. (R. 200.) Dr. Strenger reported that plaintiff was able to move all muscle groups well with five out of five strength. (R. Id.) All of plaintiff's reflexes were equal and symmetric, except for the achilles reflexes. (R. Id.)
In addition to Dr. Strenger's opinion, the ALJ relied on other evidence in the record which contradicted any finding that the plaintiff was disabled. The ALJ noted that Dr. Laligam Sekhar's examination of plaintiff revealed normal bulk, tone, sensation, and power in all groups. (R. 24, 157.) Plaintiff was able to tip-toe, heel walk, and knee bend. (R. 157.) Dr. Sekhar's office notes of subsequent visits contain no evidence of motor, sensory, or reflex deficits. (R. 161-162.) In fact, on March 24, 1992, plaintiff reported to Dr. Sekhar that she was doing much better, that her leg pain had completely resolved, and she had no difficulty with any burning pain. (R. 158.)
The ALJ found that an X-ray of plaintiff's lumbosacral spine, taken on August 8, 1992, revealed that the sacrum and sacroiliac joints were normal with no visible malalignment or spondylolisthesis. (R. 24, 163-165.) An MRI of plaintiff's lumbar spine, taken on August 30, 1993, revealed no evidence of nerve entrapment laterally and no significant spinal stenosis. (R. 180.) Although there was a moderate amount of reactive epidural fibrosis identified causing mild thecal sac compression, there was no evidence of recurrent disc herniation. (Id.) In addition, the ALJ found that an MRI of the cervical spine, taken on March 24, 1994, revealed only early degenerative changes at C3-C4 and C4-C5 with mild bulging of the annuli. (R. 24, 183-184.) There was no evidence of disc herniation. (Id.)
The ALJ also relied on the reports of Dr. Michael Partnow and Dr. Martin Waldman. (R. 25.) Dr. Partnow examined plaintiff on June 28, 1994 and found only mild degenerative changes in the cervical spine and post-operative changes at the L4-5 and L5-S1 levels. (R. 25, 214-215.) Despite concluding that plaintiff was incapable of returning to work, Dr. Partnow found that plaintiff's strength, coordination, and sensation were all normal. (R. 214-215.) The ALJ found that Dr. Partnow's opinion that Mrs. Miller was unable to return to work was inconsistent with Dr. Partnow's "essentially negative objective clinical laboratory findings and examination." (R. 25.) Dr. Waldman, a neurologist, examined plaintiff on May 1, 1995 and found no evidence of sensory deficits. (R. 219-220.) Dr. Waldman noted that plaintiff's strength in her upper extremities was normal without evidence of atrophy. (Id.) The ALJ also evaluated Dr. Waldman's opinion and found that it was inconsistent with these physical findings. (R. 25.)
The ALJ also considered the plaintiff's own testimony and disability reports submitted to the Social Security Administration. The ALJ noted that in a disability report dated March 7, 1994, the plaintiff indicated that she was able to drive when necessary and perform some household chores. (R. 25.) Indeed, the plaintiff and her husband own two cars. (R. 46.) He noted that Mrs. Miller had completed an associate's degree in data processing in June of 1992, and that her leg pain had also resolved in 1992. (R. 25.)
There is substantial evidence to support the ALJ's conclusion that plaintiff, although having a "severe" back impairment (R. 25), retained the residual functional capacity to perform a full range of at least sedentary work which would include her past relevant work as an office manager. The ALJ properly evaluated the medical opinions regarding plaintiff's disability and weighed them against the other evidence of record, including the various objective findings upon physical examination. The ALJ determined that the findings that plaintiff was incapable of returning to her previous employment were outweighed by other substantial evidence in the record. It is the final responsibility of the ALJ to resolve material conflicts in the evidence and determine plaintiff's residual functional capacity to perform past relevant work. 20 C.F.R. § 404.1527(e)(2) (1995); Perales, 402 U.S. at 399. The court must uphold the decision of the ALJ unless it is not supported by substantial evidence. Here, the ALJ's findings derive from substantial evidence in the record.
B. Whether the ALJ Properly Evaluated the Plaintiff's Subjective Complaints of Pain
Plaintiff alleges that the ALJ improperly disregarded her testimony as to the frequency and severity of her pain and failed to provide medical evidence to support his conclusions. (Pl. Br. 14-17.)
When evaluating the existence of a disability, subjective complaints of pain "do not in themselves constitute disability." Green v. Schweiker, 749 F.2d 1066, 1070 (3d Cir. 1984). They must be accompanied by medical signs and laboratory findings which show that the claimant has a medical impairment which could reasonably be expected to produce the pain or other symptoms alleged. See Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971). In the present case, the ALJ indeed found that the medical evidence established that plaintiff had a severe impairment. (R. 25.)
But the inquiry does not end here. Even if a medically determinable impairment exists which can reasonably be expected to produce pain, the intensity and persistence of symptoms must also be evaluated in order to determine how they might limit a claimant's ability to work. See 20 C.F.R. § 404.1529(c)(1) 1995). When a claimant's subjective complaints of pain indicate a greater severity of impairment than the objective medical evidence supports, the ALJ can give weight to factors such as physician's reports and claimant's daily activities. See 20 C.F.R. § 404.1529(c)(3) (1995).
In this case, the ALJ found that the plaintiff's subjective allegations as to the frequency and severity of her pain were not consistent with objective medical findings in the record to the extent that she would be incapable of performing her past relevant work. (R. 26.) The ALJ made an initial finding that the plaintiff has retained the residual functional capacity to perform a full range of at least sedentary work which would include her past relevant work as an office manager. (Id.)
Plaintiff testified that she suffers from extreme pain in her back and legs. (R. 55-56.) As a result of this pain, plaintiff further testified that she wears a brace and TENS unit, and is limited in her ability to walk. (R. 61, 62.) Despite these allegations of pain, the ALJ noted that there is no medical evidence in the record indicating that plaintiff suffers from sensory or motor deficits. (R. 26.) This finding is consistent with the reports of Dr. Strenger, Dr. Sekhar, Dr. Partnow, and Dr. Waldman, all of whom concluded that plaintiff showed no sensory or motor deficits. (R. 161-162, 200, 214-215, 219-220.)
Plaintiff also testified that she has problems sleeping and is unable to sit normally in a chair. (R. 58, 60.) However, the ALJ noted that the record contains no evidence of atrophy. (R. 26.) This finding is consistent with Dr. Waldman's conclusion that plaintiff had no atrophy during her May 1, 1995 examination. (R. 220.) Lack of atrophy can strongly support the proposition that the claimant is not restricting her body movements due to pain, since the major muscle groups have retained essentially normal size and strength through use.
The ALJ also relied on the post-operative MRI's of plaintiff's cervical and lumbosacral spine. (R. 26.) The August 30, 1993 MRI revealed no evidence of nerve entrapment laterally nor was any significant spinal stenosis identified. (R. 180.) In both the 1993 MRI and the March 24, 1994 MRI, it was determined that there was no evidence of recurrent disc herniation. (R. 180, 183-184.) As the ALJ determined, these findings are inconsistent with plaintiff's allegations that her pain renders her completely incapable of returning to her employment as an office manager.
These findings by the ALJ are supported by substantial evidence, and justify the ALJ's determination that plaintiff retains the residual functional capacity to perform a full range of at least sedentary work which would include her past relevant work as an office manger. This court declines to substitute its own determination of credibility for that of the ALJ, given that the ALJ had the opportunity to observe the plaintiff first-hand. See Wier v. Heckler, 734 F.2d 955, 962 (3d Cir. 1984) (recognizing that great deference is given to ALJ's determination of credibility). It is within the ALJ's discretion "`to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.'" Brown v. Schweiker, 562 F. Supp. 284, 287 (E.D.Pa. 1983) (quoting Bolton v. Secretary of Health Human Servs., 504 F. Supp. 288, 291 (E.D.N.Y. 1980)). The ALJ properly considered all of the evidence in the record, including plaintiff's subjective complaints of pain. There is substantial evidence to support the ALJ's conclusion that plaintiff retained the residual functional capacity to perform at least sedentary work.
IV. Conclusion
For the reasons discussed above, this court finds that the Commissioner's determination that Mrs. Miller is not disabled is supported by substantial evidence. This court affirms the Commissioner's final decision denying plaintiff's claim for a period of Social Security Disability and Disability Insurance Benefits.
The accompanying order is entered.
O R D E R
This matter having come before the court upon plaintiff Mary Miller's application to review the final decision of the Secretary of Health and Human Services denying plaintiff's application for a period of disability and disability insurance benefits under Title II of the Social Security Act; and this court having considered the entire record and all submissions on behalf of the parties; and for the reasons stated in the Opinion of today's date; and for good cause shown;
It is this day of March, 1999, hereby ORDERED that the plaintiff's appeal be, and hereby is, DENIED and the final decision of the Secretary be, and hereby is, AFFIRMED.