Opinion
Civil No. 01-2829.
June 25, 2002
Vasiliki Pagidas, Esq., Pellettieri, Rabstein Altman, Princeton, New Jersey, Attorney for Plaintiff.
Christopher J. Christie, United States Attorney, By: Anthony J. LaBruna, AUSA, Newark, New Jersey, Attorney for Defendant.
OPINION
This matter comes before the Court pursuant to Section 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g), upon the complaint filed by plaintiff James S. Warren ("Warren" or "plaintiff"), to review the final decision of the Commissioner of the Social Security Administration denying plaintiff's claims for Disability Insurance Benefits Under Title II of the Act. The main issue to be decided is whether the Commissioner's decision that the plaintiff is "not disabled" within the meaning of the Act is supported by substantial evidence. For the reasons stated below, this Court finds that there is substantial evidence in the record to support the determination of the Administrative Law Judge ("ALJ") at step five of the five-step analysis that plaintiff is capable of performing other work which exists in the national economy. As a result, this Court upholds the ALJ's decision denying James Warren Disability Insurance Benefits.
I. BACKGROUND
A. Procedural History
Plaintiff, James S. Warren, filed an application on March 5, 1998 with the Social Security Administration for Disability Insurance Benefits ("SSA") because of a back injury. (R. at 13.) Warren claimed he became unable to work starting on September 23, 1994. (Id. at 27.) The State Agency initially denied Warren's application on April 22, 1998 and denied reconsideration on July 24, 1998. (Id. at 12.) Plaintiff's ensuing request for a hearing before an Administrative Law Judge was granted. (Id.) The hearing was held on March 3, 1999 before the Honorable William J. Reddy, Administrative Law Judge. (Id.) The ALJ found that Warren suffered from a lower back disorder that was severe. However, the ALJ found that Warren did not suffer from an impairment that meets or equals in severity the appropriate medical criteria contained in 20 C.F.R. Part 404, Appendix 1 to Subpart P. (R. at 21.) The ALJ also found that Warren retains the residual functional capacity to perform light exertional work-related activities, as long as he does not climb ladders or perform any kind of postural activities more often than occasionally. (Id. at 19.)
The Appeals Council denied Warren's request for review of the Administrative Law Judge's decision. (Id. at 4-5.) Warren then appealed to this Court on June 13, 2001.
Plaintiff raises three grounds of appeal: (1) that the ALJ improperly discounted plaintiff's complaints of pain and restrictions; (2) that the ALJ committed substantial error by rejecting the opinion of Dr. Kirshner, plaintiff's treating physician; and (3) that the ALJ incorrectly concluded that plaintiff's impairment did not meet the listing of impairments in Appendix 1.
B. Facts
The plaintiff, James S. Warren, was born on December 10, 1950, has a twelfth grade education, and was employed for years as a carpenter. (R. at 73, 105.) From September 1992 until September 23, 1994, the date of his injuries, Mr. Warren worked for Tom Michalik Builders. (Id. at 125.) On that day, while working in a dumpster to make room for some more waste, Warren bent over and felt a sharp and severe pain in the lower part of his back in addition to hearing and feeling a snap. (Id. at 208.)
1. Plaintiff's Testimony
Mr. Warren reports that he has had constant pain, which escalates with activities, since the day he was injured. (Id. at 43-44.) Walking, sneezing, coughing, trying to lift something, and standing or sitting for an extended period of time all reportedly increase plaintiff's pain. (Id. at 44.) Furthermore, Warren said he can kneel with support, but cannot twist, bend or do any movement that pivots around the hip area. (Id. at 47.) Plaintiff said he can push objects with wheels, but cannot pull things. (Id.)
Mr. Warren stated that his left leg feels like dead weight, which occasionally collapses and causes him to fall or stumble. (Id. at 40.) Plaintiff also gets a shooting pain in his back that causes him to lose mobility in his legs about two to three times a day for a couple of seconds. (Id. at 40.) He describes it as a temporary paralysis where everything just locks up. (Id. at 41.) Warren does not fall when this happens, but it appears once or twice a week. (Id.)
On a scale of 0 to 10, plaintiff describes the pain as 5 or 6 when he first gets up in the morning. (Id. at 44.) During the day, it rises to 9 or 10 and all he can do is lay flat on his back. (Id.) Warren usually has to lay down for about two and a half hours every day for the pain to ease. (Id.) He can do slight physical activities. For example, he can lift a five pound bag of sugar with both hands, but has problems lifting an 8 pound gallon milk container. (Id.) Warren can walk about 50 yards without taking a break, as well as stand for fifteen minutes to a half hour. (Id. at 46.) Plaintiff states that he can sit for half an hour to forty five minutes before his back pain gets horrendous. (Id.) He can only walk up the stairs one step at a time. (Id. at 47.)
Warren does not walk with a cane and does not take prescription medication for the pain because he is afraid of the medication damaging his liver. (Id. at 41-42.) When Warren's pain becomes very severe, he will take over-the-counter medication such as Advil or Tylenol 500. (Id.) Warren also uses a TENS machine, which he has at home, and moist heat every day. (Id.)
Mr. Warren lives on a 40 acre blueberry farm in a mobile home. (Id. at 43.) Plaintiff used to work on the farm, but since his injury, he has not been able to help at all around the farm. (Id.) During the day, Warren watches television and reads a little bit. (Id. at 48.) Warren cannot do housework. (Id.) He cannot vacuum because it involves a twisting motion and cannot feed the dogs because they knock him over. (Id.) Plaintiff says he does not go shopping, go to church or go to the movies because of the pain. (Id. at 49.) Moreover, he does not go to visit his family; they have to visit him. (Id.)
When examined by his attorney, Warren said the most he drives is 11 miles (22 miles round trip) to get coffee and cigarettes. (Id. at 50.) He only sleeps two or three hours a night because of the pain. (Id.) Warren feels his lack of sleep affects his performance in his daily activities because he has no concentration. (Id.) Warren tried to go back to work in 1995, but he was terminated because his injuries caused him to miss too much work. (Id. at 52.)
2. Medical Evidence
The record contains many medical reports that track the plaintiff's medical treatment regarding his injuries on September 23, 1994. To improve his condition, the plaintiff saw several doctors who performed treatments such as physical therapy, epidural steroid injections, and a laminectomy. His medical record contains the following doctors' reports.
a. Steven B. Kirshner, M.D.
Dr. Kirshner examined the plaintiff in December of 1994. (R. at 204.) He found that the patient ambulated well with a mild left leg limp. (Id.) There was no pelvic obliquity. (Id.) The doctor diagnosed low back pain, left leg radiculopathy, degenerative disc disease at L4-5, and herniated nucleus pulposus. (Id. at 203.) Mr. Warren continued to see Dr. Kirshner on an irregular basis through March 2, 1998. (Id. at 181-204.) He received epidural injections during this period and went to physical therapy. (Id. at 182, 208.) Kirshner's report reflected varying degrees of pain, including improvements followed by worsening of the condition. (Id. at 181-204.) Dr. Kirshner explained that his options included surgery or a "wait and see" approach. (Id. at 200.)
On November 2, 1995, Dr. Kirshner noted in his progress report that Mr. Warren had not been seen in about seven months. (Id. at 199.) Examination revealed tenderness over the left sciatic notch and on the left posterior superior iliac spine. (Id. at 198.) There was also sciatic notch tenderness on the right disc, but no tenderness at the midline. (Id.)
On May 29, 1996, Dr. Kirshner performed a L2-L4 laminectomy on Mr. Warren. (Id. at 197.) A post surgery exam revealed tenderness of the superior aspect of the iliac crest and greater ochanter. (Id. at 196.) There was no sciatic notch tenderness and the neurologic exam was normal. (Id.) Moreover, there were no abnormalities or problems in the X-ray exam of the right L2-3 and L4-5 laminectomy sites. (Id.) Mr. Warren stated that the pain was improving. (Id. at 195.) Mr. Warren went through pelvic traction with Dr. Nash, but Warren stated the treatment made him worse. (Id. at 193.) As a result, Dr. Kirshner suggested he stop the traction and use moist heat and rest after physical therapy. (Id.)
On October 29, 1996, a MRI showed no evidence of recurrent disc or displacement of the thecal sac. (Id. at 193.) Dr. Kirshner recommended epidural injections of cortisone but Mr. Warren declined. (Id.) In June 1997, Dr. Kirshner recommended for Mr. Warren to wear a TSLO body jacket type brace to determine if a spinal fusion would be a benefit to him. (Id. at 188.) When Mr. Warren had the brace on, he noticed an immediate decrease in back pain. (Id. at 185.) Therefore, Dr. Kirshner felt that a spinal fusion would be helpful. (Id.) However, Mr. Warren was against surgery. (Id. at 182.) Mr. Warren continued to have pain and said that the pain limits his activities considerably. (Id. at 181.) Dr. Kirshner suggested that he receive another MRI scan to see if there is any change in the scar tissue or discs in the lower part of the back. (Id.)
Dr. Kirshner completed a narrative report of his treatment of the patient on March 23, 1999. (Id. at 208.) In this report, Dr. Kirshner said that Mr. Warren had severe limitations and was not capable of gainful employment. (Id. at 210.) He stated that Mr. Warren was having serious trouble dealing with the pain and was unable to sit, stand, or walk more than 10 to 15 minutes at a time. (Id.) Kirshner stated that his report is based on evidence obtained from the plaintiff in addition to clinical tests. (Id. at 211.) The ALJ noted, however, that Dr. Kirshner did not examine plaintiff in his visits during the year before the March 23, 1999 report, and that there was no predicate information in Dr. Kirshner's medical records to support his statements in the report. (Id. at 16.)
b. Louis Spagnoletti, M.D.
Mr. Warren first saw Dr. Louis Spagnoletti on December 30, 1997. (R. at 138.) Mr. Warren reported pain radiating down the left lower extremity to the foot with associated numbness, tingling and paresthesias. (Id.) He also stated he had right lower extremity pain that descended to the knee without numbness, tingling or paresthesias. (Id.) Dr. Spagnoletti diagnosed failed back syndrome, myofascial pain syndrome, lumbar radiculopathy, and complex regional pain syndrome type I. (Id. at 139.) Dr. Spagnoletti performed trigger point releases. (Id.) Mr. Warren continued his weekly visits with Dr. Spagnoletti until February 20, 1998. (Id. at 138-44.) During that time, range of motion initially increased with the trigger point releases. (Id. at 141.) However, from January 21, 1998 until February 20, 1998, range of motion in the lumbar spine fell again. (Id. at 142-44.) On his February 20, 1998 report, Dr. Spagnoletti noted that Mr. Warren was refractory to treatment. (Id. at 144.) He did not tolerate physical therapy or percutaneous trigger point releases. (Id.) On that date, the claimant was referred back to Dr. Kirshner. (Id.)
c. Perry I. Barr, D.O.
On August 11, 1998, Mr. Warren was examined by Dr. Perry I. Barr, D.O. (R. at 205.) In addition to pain in the lower back and left leg, Mr. Warren complained of dragging of the left foot due to foot drop. (Id. at 206.) Examination of the lower back showed that there was muscle spasm and tenderness of the paravertebral musculature. (Id.) There was interspinous tenderness at the L2-3, L4-5 interspaces. (Id.) The sacro-iliac joints were non-tender and there was tenderness at the left sacrosciatic notch. (Id.) The neurologic examination of the lower extremities revealed the deep tendon reflexes to be intact and equal bilaterally with sensory loss along the L4-5 dermatomes on the left. (Id. at 207.) However, there was weakness of the left leg when used in extension against resistance and there was also a 3/4 inch atrophy of the left thigh. (Id.) Dr. Barr found that Warren had a 55 percent permanent disability. (Id.) (This finding is in relation to workers compensation).
d. Dr. Benjamin I. Smolenski
On June 27, 1995, Mr. Warren's medical history and information was examined by Dr. Benjamin Smolenski. (Id. at 158.) Smolenski found no neurologic deficit and stated that the MRI showed only a small central disc herniation. (Id.) Smolenski opined that surgery would likely fail to alleviate plaintiff's pain. (Id.)
e. William J. Nash
The record contains reports from Warren's physical therapist, William Nash, from the dates of July 22, 1996 to June 20, 1997. (R. 173-180.) Nash's initial report stated that the deep tendon reflexes were normal and there were no abnormally grated muscles. (Id. at 180.) A straight leg raise test showed no limitation in motion, but a range of motion test showed severe limitation. (Id.) On October 8, 1996, Warren stopped traction because it made him worse. (Id. at 193.) On January 27, 1997 Warren again declined traction. (Id. at 176.)
f. Drs. Stuart From and Joseph Udomsaph, State agency review physicians
The Social Security Administration requested an evaluation of Mr. Warren. Drs. Stuart From and Joseph Udomsaph found that he can occasionally do the following activities: climb stairs, balance, stoop, kneel, crouch, and crawl. (R. at 147.) The physicians found that he can occasionally lift or carry up to twenty pounds and can frequently lift or carry up to ten pounds. (Id. at 146.) In addition, he can stand or walk for a total of at least two hours in an eight hour work day. His push or pull capacity is unlimited. (Id. at 146.)
g. Roberta M. Lynch, M.D. and Kent K. Smith, M.D.
The record shows that Mr. Warren had two MRIs and an X-ray performed by radiologists, Dr. Lynch and Dr. Smith. These exams were requested by Dr. Kirshner. On March 4, 1996, central disc protrusions that were consistent with small central disc herniations were noted. (R. at 169.) There was only minimal narrowing of the canal. (Id.) On June 20, 1996, an X-ray noted slight narrowing at L4-L5 and left hemilaminectomy at L4 and L5. (Id. at 168.) On October 28, 1996, minimal bulging annuli were seen and there was no disc herniations identified from the MRI. (Id. at 166.) The upper lumbar discs appeared normal. (Id.)
h. Burlington County Hand Surgical Associates
On February 7, 1997, Mr. Warren was evaluated by Burlington County Hand Surgical Associates. (R. at 170.) Mr. Warren complained of palm thickening of his right hand and also his left hand (although to a lesser degree). (Id.) Warren had some loss of extension of his right little finger, but there was no associated trauma. (Id.) The examination revealed that the plaintiff had bilateral palmar Dupuytren's Disease. (Id.) The doctor stated he would like to keep the plaintiff under observation, but no treatment was given during this visit. (Id.)
Dupuytren's Disease, also known as palmar aponeurosis, is defined as "[t]he thickened, central portion of the fascia ensheathing the hand; it radiates toward the bases of the fingers from the tendon of the palmaris longus muscle." ON-LINE MEDICAL DICTIONARY, at http://cancerweb.ncl.ac.uk/omd/.
II. DISCUSSION
A. Disability Defined
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 [twelve] 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 regulations determine disability by applying a five-step sequential analysis as codified in 20 C.F.R. § 404.1520. The Commissioner evaluates each case according to the 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). Therefore, entitlement to benefits is dependent upon a finding that the claimant is incapable of performing some type of work in the national economy.
B. Burdens of Proof
In this analysis, the plaintiff bears the initial burden of proof. Wallace v. Sec'y 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, 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).
C. 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); Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). "Substantial evidence" means more than "a mere scintilla." Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)). "It means such relevant evidence as a reasonable mind might accept as adequate." Id. Where the ALJ's findings of fact are supported by substantial evidence the reviewing court is bound by these findings, "even if [it] would have decided the factual inquiry differently." Fargnoli v. Massanari, 247 F.3d 34, 35 (3d Cir. 2001); see Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
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)).
Also, the ALJ must evaluate all relevant evidence when determining an individual's residual functional capacity and the ALJ's findings must "be accompanied by a clear and satisfactory explication of the basis on which it rests." Fargnoli, 247 F.3d 34, 40 (quoting Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)).
Further, "where there is conflicting probative evidence in the record" (id. at 42) there is a "particularly acute need for an explanation of the reasoning behind the ALJ's conclusions." Id. The reviewing court requires "more than just a conclusory statement that a claimant does not meet the listings." Id.;see Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119-20 (3d Cir. 2000). As the Third Circuit has held, access to the ALJ's reasoning is indeed essential to a meaningful court review. See Fargnoli, 247 F.3d at 42. Nevertheless, the district court is not "empowered to weigh the evidence or substitute its conclusions for those of the fact-finder."Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
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. Fargnoli, 247 F.3d 34, 42. When the ALJ fails to consider all relevant regulations in making a determination of substantial gainful activity, the case must be remanded. Id. at 40.
III. ANALYSIS
In analyzing the fifth step, the ALJ found that the claimant retained the capacity to make an adjustment to jobs which exist in the national economy. A vocational expert testified that a person in Mr. Warren's position would be capable making a vocational adjustment to work as a sales clerk at approximately 6,500 jobs regionally and 3,678,000 jobs nationally in addition to an automobile rental clerk at approximately 900 jobs regionally and 337,000 jobs nationally. As a result of this information, a finding of "not disabled" was reached within the framework of the above rule.
The plaintiff first argues that the ALJ committed substantial error by discounting Mr. Warren's subjective complaints of pain and restrictions. Second, the plaintiff contends that the ALJ committed substantial error by rejecting the opinion of Dr. Kirshner, Mr. Warren's treating physician of four and one-half years. Finally, the plaintiff argues that there is no substantial basis for the ALJ's conclusion that Mr. Warren has no impairment that meets the listing of impairments in appendix one.
A. The ALJ did not commit substantial error by discounting Mr. Warren's subjective complaints
The plaintiff contends that the ALJ improperly dismissed his subjective complaints. Specifically, the plaintiff believes that the ALJ offered no reasonable basis for discounting his testimony. Plaintiff states that the ALJ was incorrect in placing weight on the fact that he does not take pain medication because he took other steps to alleviate the pain such as physical therapy, TLSO body brace, and several epidural injections. Plaintiff also feels that the record is entirely consistent regarding his complaints and therefore credible.
When evaluating the existence of a disability, subjective complaints "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). However, the ALJ is required to give serious consideration to the claimant's subjective complaints even though those assertions are not fully confirmed by the objective medical evidence. See Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986). Under S.S.R. 96-97p, "allegations concerning the intensity and persistence of pain or other symptoms may not be disregarded solely because they are not substantiated by objective medical evidence." S.S.R. 96-7p. The objective medical evidence is only one factor that the ALJ must consider in assessing a plaintiff's credibility. Id. 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 HHS, 504 F. Supp. 288 (E.D.N.Y. 1980)).
Thus, on review, this Court must consider whether the ALJ's findings with regard to subjective complaints are supported by substantial evidence. Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983). This analysis does not entail questioning whether the evidence preponderates in the ALJ's favor. Id. at 1553. The finding of the ALJ is conclusive if supported by substantial evidence. Id.
Subjective symptoms of pain can be validated if observed and treated over time by a physician. Dorf v. Bowen, 794 F.2d 896 (3d Cir. 1986). When a plaintiff testifies that she suffers from pain and that testimony is corroborated by medical reports, the ALJ must give the subjective allegations great weight. See 20 C.F.R. § 404.1529(a)-(c); Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986). However, the ALJ has discretion "to evaluate the credibility of a claimant and to arrive at an independent judgment in light of medical rulings and other evidence regarding the true extent of the [ailment] alleged by the claimant." LaCorte v. Bowen, 678 F. Supp. 80, 83 (D.N.J. 1988) (quoting Brown v. Schweiker, 562 F. Supp. 284, 287 (E.D. Pa. 1983)). "[B]efore an ALJ can reject a plaintiff's testimony as not being credible, there must be a sufficient subordinate factual foundation for this assessment." Brown, 562 F. Supp. at 287 (citing Boyle v. Harris, 506 F. Supp. 294, 298 (E.D. Pa. 1980)). After reviewing the record and plaintiff's testimony, the ALJ found the claimant's testimony was not credible and provided a detailed explanation of his reasoning. The ALJ stated:
The regulations provide:
Since symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, we will carefully consider any other information you may submit about your symptoms. . . . Because symptoms, such as pain, are subjective and difficult to quantify, any symptom-related functional limitations which you, your treating or examining physician or psychologist, or other persons report, which can be reasonably accepted as consistent with the objective medical evidence and other evidence, will be taken into account . . . in reaching a conclusion as to whether you are disabled.20 C.F.R. § 404.1529(c)(3).
[Warren's] allegations of severe pain at a "10" level, everyday, causing him to lie down for at least two and a half hours everyday, is not believable when considered with his testimony that he does not take pain medication. He stated that he does not take pain medication due to fear of liver damage, but the medical evidence contains no indication that any doctor has ever been concerned about his liver or that pain medications are in any way contra-indicated. The evidence does not support his allegations regarding the pain intensity alleged and its effect on his activities. The claimant testified to having diminished concentration but is able to concentrate long enough to read novels and watch television. He said that driving causes pain but he also said that he drives 22 miles roundtrip for cigarettes and coffee. (R. at 19.)
The record reveals, therefore, that the ALJ gave serious consideration to plaintiff's claims. There is other information in the record that questions the plaintiff's statements about the pain. As the government mentions in its brief, in light of the fact that Warren smokes cigarettes which have a greater known health risk than taking over-the-counter medication, his concerns about liver damage seem difficult to understand. Moreover, although Warren claims he took extensive steps to relieve his pain through other methods, he refused more trigger point injections even though he later reported that they had helped (id. at 144, 183), and also declined further epidural injections of cortisone. (Id. at 193, 144.) He also refused a spinal fusion after Dr. Kirshner thought it would help. (Id. at 182.) Furthermore, Mr. Warren went a seven month period in 1995 without seeing Dr. Kirshner. (Id. at 180-81).
The ALJ is permitted to evaluate the credibility of the claimant's subjective statements about pain when analyzing the nature and extent of his injury. Brown, 562 F. Supp. at 287. As already referenced, the ALJ provided a sufficient explanation and analysis for its reasoning in not finding Warren's subjective statements credible. For the foregoing reasons, the ALJ did not commit substantial error in discounting Mr. Warren's subjective complaints.
B. The ALJ did not commit substantial error by disagreeing with the opinion of Dr. Kirshner
Plaintiff contends that by failing to accept Dr. Kirshner's opinion, which stated Warren was unable to perform gainful employment, the ALJ committed substantial error. Plaintiff argues that the opinion of Dr. Kirshner should have been given more weight than Dr. Barr's opinion because Kirshner was his primary treating physician for four and one half years.
The ALJ must analyze all of the evidence in the record and provide an adequate explanation for disregarding evidence. See Adorno v. Shalala, 40 F.3d 43 (3d Cir. 1994). A particularly probing review is required before an ALJ can discredit the opinion of a treating physician. See Fargnoli, 247 F.3d at 42-43. The Social Security Administration regulations regarding the evaluation of evidence from treating physicians are found in 20 C.F.R. § 404.1527. 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 of brief hospitalizations.20 C.F.R. § 404.1527(d)(2). 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.
In line with the Social Security Administration regulations, the Third Circuit has long held that "[a] court considering a claim for disability 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 judgement 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 is not bound to accept the opinion of a treating physician without weighing it against the other medical evidence in the record. Kent v. Schweiker, 710 F.2d 110, 115 n. 5 (3d Cir. 1983). However, 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). "[A]n ALJ may rely on the opinion of a non-examining medical source, even when it contradicts the opinion of a treating physician, when it is consistent with the record." Clark v. Social Security Administration, 33 Fed.Appx. 643, 646 (3d Cir. 2002) (citingJones, 954 F.2d at 129). The ALJ must assess the credibility of, and explain the weight given to, conflicting medical evidence by the claimant's treating physician and explain the basis for his or her conclusions. See Fargnoli, 247 F.3d at 40.
The ALJ provided adequate reasons for disagreeing with the opinion of Dr. Kirshner, which stated Warren was unable to work. Dr. Kirshner claimed that his statement is "based upon my knowledge of the patient, physical examination, the tests, studies, x-rays and MRI Scans performed and history from the patient." However, the ALJ pointed out that the opinion about Warren's ability to work was based mainly on statements made by the plaintiff instead of clinical tests. Dr. Kirshner did not evaluate Mr. Warren for the report which contained this opinion. (R. at 208-11.) Furthermore, when Dr. Kirshner saw Mr. Warren on his last two visits, March of 1998 and September of 1998, he did not examine the plaintiff. (Id. at 181-82.) There is a pattern of Dr. Kirshner not examining Warren when he came for appointments. For example, Mr. Warren saw Dr. Kirshner six times in 1997, but he was only examined once, on May 13, 1997. (Id. at 185-90).
The ALJ also stated that Kirshner's clinical records do not include supporting information that logically leads to his opinion. (Id. at 16.) For example, the 1996 MRI showed minimal bulging at the L5-S1 levels and the upper lumbar discs were normal. (Id. at 129, 209.) In addition, on May 13, 1997, the report stated that the neurologic was normal and there was no sciatic notch tenderness, although there was severe tenderness in the midline of his lower back. (R. at 189.)
Dr. Kirshner's report states that Mr. Warren has trouble with menial tasks and can also only sit, stand or walk for 15 minutes at a time. However, according to the state agency review physicians, Drs. Stuart From and Joseph Udomsaph, Mr. Warren's injuries do not appear to be as prohibitive, which matches the ALJ's finding about Warren's residual functional capacity. The state agency physicians found that Warren can sit for about six hours in an eight hour work day and walk at least two hours in an eight hour work day, in addition to occasionally climbing stairs, balancing, stooping, kneeling, crouching, and crawling. Drs. From and Udomsaph also stated that Mr. Warren can occasionally lift or carry up to twenty pounds and can frequently lift or carry up to ten pounds. State agency medical consultants are supposed to be highly qualified physicians who are experts in Social Security evaluation, 20 C.F.R. § 404.1527(f)(2), and there is no indication that this is not true of these physicians. As a result, ALJs must consider their findings, even though the ALJ is not bound by them. Id. Drs. From and Udomsaph's opinion appears to be consistent with evidence in the record, such as the 1996 MRI that Kirshner had reviewed and Dr. Barr's medical report, thus giving their report credibility. Dr. Barr's medical findings which supported an opinion of only a 55 percent permanent disability for workers compensation furthers the conclusion that Warren does have the capacity to work. Although this finding is for workers compensation and not for Disability Insurance Benefits, it follows that Mr. Warren does have the capacity to perform work since he is not completely disabled. Therefore, the ALJ's finding that Warren can perform other jobs in the national economy and is not disabled is well-supported by evidence in the record that contradicts Kirshner's opinion.
In light of the questionable clinical support for Dr. Kirshner's opinion and the contradictory evidence, there is a reasonable basis for the ALJ's decision to give little weight to Kirshner's opinion. After weighing the opinion of Dr. Kirshner against the relevant evidence, the ALJ provided an explanation of the reasons for discrediting Dr. Kirshner's opinion as required under Adorno v. Shalala, 40 F.3d 43 (3d Cir. 1994). The explanation provided was reasonable and logical. Therefore, the ALJ did not commit substantial error in allocating no weight to Dr. Kirshner's opinion.
C. There is a substantial basis for the ALJ's conclusion that Mr. Warren's condition does not meet the listing level
Warren claims that there is no substantial basis for the ALJ to have concluded that his impairments do not meet the listing levels. The disorder applicable to plaintiff is vertebrogenic disorders and it has the following requirements:
Other vertebrogenic disorders (e.g., herniated nucleus pulposus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.20 C.F.R. Part 404, subpart P, Appendix 1, 1.05(c).
The ALJ did not commit a substantial error in determining that Mr. Warren did not meet the listing level. In order to meet the level, it is essential that all the elements of subsection 2 are met. There is a substantial basis for the ALJ's decision because there is adequate evidence to support the conclusion. There is diagnosis of radiculopathy, but there is not also the appropriate distribution of significant motor loss with muscle weakness and sensory and reflex loss. For example, Dr. Spagnoletti reported that Mr. Warren had no motor or sensory deficits on all of the examinations that he conducted between December 1997 and February 1998. He also reported that the deep tendon reflexes were two-plus and symmetrical on December 30, 1997, February 11, 1998 and February 20, 1998. In addition, both Dr. Kirshner and Dr. Smolenski examined plaintiff and reported that his neurological examination was normal or that there was no neurological deficit. (R. 189 and 158). Dr. Barr also reported the deep tendon reflexes were intact and equal bilaterally, although there was sensory loss along the L4-5 dermatones on the left. (Id. at 207.) Therefore, the ALJ was reasonable and did not commit substantial error in concluding that Mr. Warren's back disorder does not meet the impairment listings.
IV. CONCLUSION
For the reasons discussed above, this Court finds that the ALJ's determination that the plaintiff is able to perform work in the national economy, and is therefore "not disabled" under the Act is supported by substantial evidence. Accordingly, the Commissioner's decision denying plaintiff Disability benefits is affirmed. The accompanying order is entered.
ORDER
This matter having come before the Court upon plaintiff James Warren's application to review the final decision of the Commissioner of the Social Security Administration denying plaintiff's application for Disability Insurance Benefits under Title II of the Social Security Act; and this Court having considered the entire record and all submissions made by the parties; and for the reasons stated in the Opinion of today's date; and for good cause shown;
IT IS on this day of June, 2002, hereby
ORDERED that the plaintiff's appeal be, and hereby is DENIED, and the final decision of the Commissioner be, and hereby is, AFFIRMED.