Cannon v. Astrue

Filing 23

MEMORANDUM AND ORDER DENYING 18 Plaintiff's Motion for Summary Judgment filed by Cynthia Cannon, and GRANTING 19 Defendant's Motion for Summary Judgment filed by Michael J. Astrue. Signed by Chief Judge Gregory M. Sleet on 3/13/12. (mmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

CYNTHIA A. CANNON,
Plaintiff,
C. A. No. 09-108-GMS

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.

MEMORANDUM

I.

INTRODUCTION
This action arises from the initial denial of Cynthia Cannon's ("Cannon") claims

for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI")
under Titles II and XVI of the Social Security Act (the "Act") on May 21, 2007. 42
U.S.C. §§ 401-433m, 1381-1383f. Cannon applied for DIB and SSI on December 21,
2006, alleging her disability began on June 1, 2006 due to rheumatoid arthritis, low
back pain, history of pericardia! effusion, and depression and anxiety. (D.I. 13 at 88,
98.) After the Commissioner denied her application again on reconsideration, Cannon
requested a hearing before an Administrative Law Judge ("AL.I"). (!d. at 64, 70.)
Following the hearing, the ALJ issued a written opinion on October 28, 2008, denying
Cannon's applications for DIB and SSI. (!d. at 11.) Specifically, the ALJ stated
Cannon's impairments could reasonably produce her alleged symptoms, but found her
testimony lacked credibility and was unsupported by the medical record. (!d. at 14, 16.)
Additionally, the ALJ accorded "limited weight" to her treating physician, finding his

report was not substantiated by objective medical evidence, but instead relied on
Cannon's subjective self-assessments. (/d. at 17.) Cannon requested a review of the
ALJ's decision by the Social Security Appeals Council, which denied review on January
21, 2009. (/d. at 5-7.) On February 13, 2009, Cannon filed a timely appeal with this
court. (D.I. 2.) Presently before this court are the parties' cro:3s-motions for summary
judgment. Because the court finds the ALJ's decision meets the substantial evidence
test pursuant to 42 U.S.C. § 405(g), Cannon's motion is denied, the Commissioner's
motion is granted, and the ALJ's decision is affirmed.

II.

BACKGROUND

Cannon was born on April 24, 1965. (D. I. 13 at 88.) V\i'hen she filed for DIB and
SSI on December 21, 2006, Cannon was a forty-one year old female who was last
employed as a housekeeper from January 2006 to August 2006. (!d. at 156-57.)
Cannon's DIB and SSI claims stem from symptoms related to her rheumatoid arthritis,
low back pain, history of pericardia! effusion, and depression and anxiety, which have
been coupled with more recent claims regarding genitourinary disorders and postoperative pain in her right foot. (D.I. 18.) Despite prescribed medications and physical
therapy, Cannon claims she is still disabled under the Act. (D. I. 13 at 98.) To be
eligible for DIB and SSI, Cannon must demonstrate she is disabled within the meaning
of sections 216(i), 223(d), and 1614(a)(3)(A). (/d. at 11.)

A.

Medical Evidence

To support her claim, Cannon produced her medical records regarding the
history and alleged progression of her symptoms. The court will summarize these

2

records.
On February 17, 2004, Cannon had a total abdominal hysterectomy with anterior
repair and experienced temporary urinary retention following surgery. (/d. at 190, 21924.) Although her urinary retention resolved, Cannon also experienced post-operative
pain in her right lower quadrant, which was likely due to her "known history of adhesive
disease." (/d. at 190.) Cannon was treated with nonsteroidal anti-inflammatory agents
for several months, but the pain was not responsive to drug therapy. (/d.) Despite
Cannon's request for "definitive therapy" to alleviate the pain, the treating gynecologist,
Dr. Calvin Wilson, indicated Cannon repeatedly changed her appointments due to
"scheduling conflicts." (/d.) Ultimately, Cannon was admitted to the hospital for "an
increase in pelvic pain" on December 7, 2004 and an exploratory laparotomy with right
salpingo-oophorectomy 1 was performed. (!d. at 191.) At the time of surgery, Cannon
took Vicodin and Celebrex for musculoskeletal pain. (/d. at 190.)
On August 18, 2006, a gastroenterologist, Dr. William Kaplan, performed an
endoscopy and colonoscopy to investigate her complaints of abdominal pain, reflux
symptoms, and weight loss. (/d. at 193.) The endoscopy results showed no
abnormalities and Dr. Kaplan prescribed Prevacid to treat her nonerosive
gastroesophageal reflux disease and possible irritable bowel syndrome. (/d.) The
colonoscopy revealed small hemorrhoids for which a high-fiber diet was recommended.
(/d.) Although a previous endoscopy performed on October 29, 2004 showed benign

"tongues of gastric appearing mucosa ... above the gastroesophageal junction" and
1

Salpingo-oophorectomy is the removal of the ovary and its fallopian tube. See
STEDMAN'S MEDICAL DICTIONARY (25th ed. 1990).

3

the presence of a hiatal hernia, there was no indication these symptoms recurred on
August 18, 2006 or were present at her follow-up visit on September 27, 2006 (/d. at
195, 232.)
On October 4, 2006, Cannon was admitted to the emergency room for chest
pain and difficulty breathing. (!d. at 197.) Cannon was discharged on October 5, 2006
after testing revealed normal heart and lung function. (/d.)
On November 9, 2006, Cannon consulted a rheumatologist, Dr. Maged Hosny,
regarding lower back and right knee pain, which allegedly had been present for the past
two years. (/d. at 298.) Believing "[t]he patient [wa]s more

like~ly

to have osteo[arthritis]

than inflammatory arthritis," Dr. Hosny referenced previous x-rays of her cervical spine,
lower back, and right foot, which showed osteoarthritis, and ordered bloodwork and
additional x-rays of the spine, knees, shoulders, and hands to confirm his diagnosis.
(/d. at 299.) At that time, she was taking the following medications: Vicodin, Prevacid,

Lexapro, Docusate, and Cyclobenzaprine. (!d. at 298) Following that visit, Dr. Hosny
continued the Vicodin and also prescribed Naprosyn. (!d. at 299.)
On November 21, 2006, Cannon returned to Dr. Hosny for an unscheduled
follow-up visit, complaining of "acute flareup of pain in both elbows, knees, hands, [and]
wrists" despite drug therapy. (!d. at 296.) Dr. Hosny changed his impression of
Cannon's condition to "[i]nflammatory arthritis of multiple joints" due to Cannon's
reported "flareup of her arthritis." (/d.) Stating he was "still in the process of ruling in or
ruling out rheumatoid arthritis," Dr. Hosny prescribed Predniso11e. (/d.)
On November 30, 2006, Cannon returned to Dr. Hosny. (/d. at 294.) At this

4

time, the doctor discontinued Prednisone despite noting some improvement in joint
swelling, stiffness, and aching. (/d.) Following the discontinuance of Prednisone,
Cannon experienced a "flareup" and, as a result, Dr. Hosny continued Naprosyn and
Norco for pain, and also prescribed Enbrel. (!d.) Attributing both Cannon's
improvement and subsequent flareup to the prescription of and removal from
Prednisone, respectively, Dr. Hosny again revised his impression of Cannon's
condition. (/d.) Notwithstanding the negative results of bloodwork for rheumatoid
arthritis, lupus, and Lyme disease, Dr. Hosny determined Cannon "most likely" had
rheumatoid arthritis. (/d.)
On January 23, 2007, she met with Dr. Hosny for a follow-up visit. (!d. at 291.)
At this appointment, Dr. Hosny described Cannon as a "41-year old female diagnosed
with rheumatoid arthritis," noting she reported "overall great improvement" with drug
therapy, but had continued pain in her thumbs and lower back. (/d.) Dr. Hosny
continued with the Enbrel, Norco, and Naproxen. (/d.) Additionally, Dr. Hosny released
Cannon's medical records to the Delaware Department of Labor for use in its
determination of her eligibility for unemployment insurance benefits. (/d. at 292.)
On February 14, 2007, Cannon consulted a urologist, Dr. Delbert J. Kwan, for
urinary frequency. (/d. at 215.) Dr. Kwan noted Cannon's genitourinary exams were
normal and recommended a cystoscopy and other routine testing be performed. (/d. at
218.)
On February 21, 2007, Dr. Kaplan saw Cannon for a follow-up appointment
regarding the endoscopy performed on August 18, 2006. (/d. at 231.) Although Dr.

5

Kaplan noted Cannon's dyspepsia continued, he stated it had "not progressed and
[was] relatively mild." (/d.) Dr. Kaplan also expressed frustration regarding Cannon's
history of noncompliance, as confirmed in her medical records since November 2001.

(/d. at 231-38.)
On March 13, 2007, Cannon sought treatment for persistent pain in her left lower
quadrant and dyspareunia. 2 (/d. at 211.) Assessed as having adhesive disease,
dyspareunia, and a left ovarian cyst, a left salpingo-oophorectomy was performed. (/d.
at 214.)
On March 20, 2007, Cannon returned to Dr. Hosny for an "acute flare up of RA,"
which required reinstating a high dose of Prednisone. (/d. at 290.) At this time, Cannon
was taking Enbrel, Naprosyn, Norco, Prevacid, and Flexeril. (I'd.) Dr. Hosny noted she
would be tapered off Prednisone, while continuing the other medications. (/d. at 215.)
On April 7, 2007, Dr. R. Palandjian assessed Cannon's physical residual
functional capacity ("RFC"). (/d. at 248-53.) After evaluating Cannon's exertional,
postural, manipulative, visual, communicative, and environmental limitations, Dr.
Palandjian noted there were "treating/examining source conclusions about the
claimant's limitations or restrictions which [were] significantly different from [his]
findings." (/d. at 252.) Specifically, Dr. Palandjian noted Dr. Hosny's diagnosis of total
disability was an "opinion reserved for the commissioner." (/d.} Additionally, Dr.
Palandjian identified inconsistencies between Cannon's medical reports and her
complaints, concluding she was "partially credible." (/d. at 253.) Dr. Palandjian found
2

Dyspareunia is the occurrence of pain during sexual in~tercourse. See

STEDMAN'S MEDICAL DICTIONARY (25th ed. 1990).

6

Cannon capable of light activity "[b]ased upon the lack of complications from her
pericardia! effusion, lack of joint deformity, and independent 9ait." (/d.)
On April 23, 2007, Cannon consulted Dr. Kartik Swaminathan, a pain specialist,
for her lower back. (!d. at 335-39.) At this time, Cannon indicated she was taking the
following medications: Tramadol, Flexeril, Percocet, Vicodin, Ducosate Sodium,
Prevacid, and Lexapro. (/d. at 336-37.) Dr. Swaminathan continued the Percocet, and
also prescribed Zanaflex and Naprosyn. (/d. at 331-32.)
On May 1, 2007, Dr. Janis Chester performed a psychiatric examination of
Cannon for the Delaware Disability Determination Service. (/cf. at 264.) During this
examination, Dr. Chester evaluated Cannon's psychiatric, medical, and family and
social history as well as her current mental status. (/d. at 264-66.) According to Dr.
Chester's report, Cannon's primary care physician prescribed Lexapro approximately
two weeks prior to this appointment. (!d. at 264-65.) Although Cannon reported a
history of depression, Dr. Chester noted Cannon only recently initiated treatment with
Mr. Patrick Casey, a counselor at Delaware Guidance Services. (/d. at 265.) Dr.
Chester found no history of psychosis or mania, but documented Cannon's reported
history of crack cocaine abuse, which began as a teenager and continued until age·
thirty-five. (!d.) Dr. Chester also summarized Cannon's medical and treating
physicians' findings, previous surgeries, and current medications. (!d.) Dr. Chester
noted, however, that Dr. Hosny's diagnosis of rheumatoid arthritis was not corroborated
by Cannon's bloodwork, but would "entertain" a diagnosis of rh,eumatoid arthritis based
upon Cannon's history of heart disease and arthritis. (/d.) Further, Dr. Chester noted

7

she was able to care for her six children "to some degree." (lei. at 266.) Additionally,
Dr. Chester reported Cannon graduated high school, receivecl a degree from a
technical college, and last worked in June 2006. (/d.) Finally, Dr. Chester evaluated
Cannon's current mental health status, noting she was "enga~1eable," "alert and
oriented," "her mood [wa]s irritable[,] and her affect [wa]s full range." (/d.) Dr. Chester
found Cannon's "insight and judgment ... intact." (/d.) In addition to a narrative report,
Dr. Chester also completed a supplemental questionnaire regarding Cannon's RFC,
indicating her symptoms and impairments ranged from mild to moderate. (/d. at 26869.)
On May 3, 2007, Cannon sought treatment from Dr. Hosny for pain, swelling,
and stiffness following the discontinuation of Prednisone. (/d. at 289.) Feeling she was
not well-controlled on Enbrel and deciding not to reintroduce Prednisone, Dr. Hosny
started her on Remicade infusion. (/d.)
On May 10, 2007, Dr. Swaminathan saw Cannon regarding her back pain. (/d.
at 325-28.) Although Dr. Swaminathan indicated her mood wats normal, not depressed
or anxious, Cannon complained her low back pain had worsened. (ld. at 325, 327.) As
a result, Dr. Swaminathan continued the same pain medications and prescribed
physical therapy. (/d. at 326, 328.)
On May 17, 2007, Dr. Douglas Fugate prepared a psychiatric review, which
assessed Cannon's medical disposition. (ld. at 272-82.) Accordingly, Dr. Fugate found
her medical disposition consisted of "[c]oexisting [n]onmental [i]mpairment(s)" based on
her affective disorder and history of substance abuse. (/d. at 273.) Dr. Fugate

8

diagnosed "[d]epression secondary to chronic pain" and in remission for cocaine abuse.
(/d. at 275, 278.) Similar to Dr. Chester, Dr. Fugate found the degree of Cannon's

functional limitations to range from mild to moderate. (/d. at 280.) In addition to the
psychiatric review, Dr. Fugate performed a mental RFC, in which he concluded her
understanding and memory, sustained concentration and persistence, social
interaction, and adaptation were either "[n]ot [s]ignificantly [l]imited" or "[m]oderately
[l]imited." (!d. at 283-85.) Dr. Fugate noted Cannon had no history of psychiatric
treatment until recently, her mental exam was within normal limits, and she was "able to
meet the basic mental demands of simple work." (!d. at 285.)
On May 29, 2007, Cannon saw Dr. Hosny at an unsche!duled visit for "pain of 2days duration." (/d. at 288.) Her first Remicade infusion occurred two days prior. (/d.)
To treat her "acute rheumatoid flare," Dr. Hosny prescribed

Me~thotrexate

and folic acid

in addition to continuing the Remicade. (/d.)
On June 28, 2007, Cannon returned to Dr. Hosny for another unscheduled visit
regarding pain in her right foot. (/d. at 287.) Dr. Hosny noted Cannon had a ganglion
cyst removed from her right foot and determined her pain was unrelated to rheumatoid
arthritis. (/d.) Dr. Hosny advised Cannon to schedule an appointment with Dr. Kahn
and increased the dosage of her next Remicade infusion. (/d.)
On July 16, 2007, Dr. Swaminathan conducted a spinal evaluation. (/d. at 30104.) He diagnosed Cannon with low back pain and mild scolio:;is, but found she would
"return to normal home activities" with the assistance of a prescribed treatment plan
and medications. (/d. at 303.) On July 25, 2007, however, Cannon's physical therapist

9

contacted Dr. Swaminathan's office, advising Cannon discontinued physical therapy.
(/d. at 306.) The therapist advised Cannon only attended two of her four scheduled

visits, and "goals were not met secondary to her noncompliance with her plan of care."
(/d. at 688.) Despite Cannon's noncompliance with physical therapy, Dr. Swaminathan

continued to prescribe pain medications at the following office visits: November 6,
2007; January 22, 2008; March 18, 2008; April29, 2008; May 27, 2008; and June 17,
2008. (/d. at 698, 700, 704, 708, 710, 714.)
On November 27, 2007, Dr. Paul Falden performed a left anterolateral
thoracotomy with pericardia! window to alleviate Cannon's pericardia! effusion, for which
she was previously treated in 2002 by Dr. Alexander. (/d. at 2r55, 475, 579.) At the time
of the surgery, Cannon was taking folic acid, Naprosyn, Methotrexate, Ducosate,
Prevacid, Oxycodone, Remicade, Oxytrol, and Gabapentin. (/d. at 509.) Following her
cardiac surgery, Cannon was also prescribed Percocet. (/d.) On January 1, 2007,
Cannon was discharged in stable condition with "no pericardia I effusion of significance."
(!d. at 520-25.)

On January 16, 2008, Dr. Hosny ordered bloodwork to test for rheumatoid
arthritis. (/d. at 583-89.) Although Cannon's initial blood chemistry indicated a slightly
positive result of a rheumatoid factor of 11 (reference range< 14}, further bloodwork
performed on January 26, 2008 returned a higher, positive result of 15 (same reference
range). (/d. at 585, 594.)
On January 16, 2008, Gwyn Stup, A.P.R.N., treated Cannon for depression and
anxiety. (/d. at 660-63.) Although Stup initially prescribed Cymbalta, Cannon

10

complained she could not tolerate the medication, and was switched to Celexa on
February 18, 2008. (/d. at 664.) Despite finding Cannon

exp~erienced

moderate

symptoms or difficulties, Stup changed Cannon's medication again on April 21, 2008 to
Lexapro. (/d. at 665.)
On March 21, 2008, Dr. Jacob Hanlon performed a plantar fasciotomy on
Cannon's right foot to remove dense, fibrous tissue, which was causing her chronic
right foot pain. (/d. at 577.) Nothing in the medical records suggests Cannon suffered
any complications from this surgery. (/d. at 596.)
At the time of the hearing, Cannon's medications included: Prevacid 30 mg two
times daily, Lexapro 10 mg daily, Hydroxychloroquine 200 mg daily, Oxycodone Apa 5325 mg once every 6 hours; Cyproheptadine 4 mg daily, Docusate Sodium 100 mg two
times daily, Prednisone 10 mg daily, Methotrexate 25 mg daily, Colchicine 0.6 mg daily;
Tizanidine HCL 4 mg at bedtime, folic acid 1 mg daily, Remicade, and Oxytrol 3.9 mg
24-hour patch. (/d. at 188.)

B.

Hearing Testimony
1.

Cynthia Cannon's Testimony

Cannon testified she was born on April 24, 1965 and was currently forty-three
years old. (/d. at 30.) Cannon stated she graduated from high school, previously
worked as a child care provider, and currently lived with five of her six children. (/d. at
30-31.) To support her family, Cannon acknowledged she received cash assistance
and child support, and one of her sons received disability. (/d. at 32.) She had been
unemployed for the past three years because of problems with her hands, feet, and

11

back and hips. (/d. at 30.) Although Cannon claimed these problems began shortly
after her hysterectomy, she later testified the back and hip pain originated seven years
prior and her foot had bothered her since high school. (/d. at 30, 35, 36.) Further, she
took Oxycodone for the past seven years for back and hip pain. (/d. at 35.)
According to Cannon, she underwent pericardia! effusion surgery twice, and for
the past five to six years suffered from an overactive bladder. (/d. at 30-31, 41.)
Additionally, Cannon stated her rheumatoid arthritis required her to wear a brace on her
right hand, precluded her from lifting, and necessitated assistance from her children.

(/d. at 27-29.) Cannon explained she had difficulty walking and standing due to hip and
back problems and recent foot surgery, but she did not use a eane or back brace for
support. (/d. at 27-28, 45.) She claimed continued foot pain despite recent plantar
faciitis surgery. (/d. at 28.) As a result, she was unable to stand on her feet no longer
than fifteen to thirty minutes. (/d.) Cannon claimed difficulty srtting because of spasms
in her back, for which Dr. Swaminathan recently prescribed muscle relaxers. (/d. at 2729.)
Aside from her physical ailments, Cannon testified she was "down in the dumps"
and currently taking Lexapro for her depression and anxiety. (ld. at 29, 35.)
Additionally, Cannon stated she spent the majority of her day watching television or
sleeping, but would use public transportation to attend doctors' appointments. (/d. at
32-33.) Further, Cannon was reluctant to acknowledge her history of past cocaine
abuse. (/d. at 33.)
2.

The Vocational Expert's Testimony

12

The vocational expert ("VE"), Christina Beatty-Cody, also testified. (!d. at 44-48.)
Beatty-Cody classified Cannon's past work as a child care provider and commercial
cleaner as light exertionallevel and medium exertionallevel, 1·espectively. (/d. at 44.)
In the hypothetical proposed by the ALJ, Beatty-Cody was asked to assume
whether a younger individual with a high school education, past relevant work history
similar to that of Cannon, and all symptoms and limitations claimed by Cannon at the
hearing was capable of any jobs. (/d. at 46.) The VE responded such a hypothetical
individual could not perform any work. (/d.)
In the alternative hypothetical, the VE was instructed to apply the same
vocational factors, but assume whether the hypothetical individual was capable of
performing sedentary work with the following conditions: "a si1Jstand option," work
limited to "simple, routine tasks," and occasional "use of the upper extremities in such
activities as handling, fingering, [and] reaching." (/d. at 47.) The VE opined such an
individual was capable of performing the following sedentary jobs: (1) a surveillance
system monitor; and/or (2) a type copy examiner. (!d.)

C.

The ALJ's Findings

Under the Social Security Act, the Social Security Administration employs the
following five-step sequential claim evaluation process to determine whether an
individual is disabled:
[The Commissioner] determines first whether an individual is currently
engaged in substantial gainful activity. If that individual is engaged in
substantial gainful activity, he will be found not disabled regardless of the
medical findings. 20 C.F.R. § 404.1520(b). If an individual is found not to
be engaged in substantial gainful activity, the [Commissioner] will
determine whether the medical evidence indicates that the claimant

13

suffers from a severe impairment. 20 C.F.R. § 404.1520(c). If the
[Commissioner] determines that the claimant suffers from a severe
impairment, the [Commissioner] will next determine whether the
impairment meets or equals a list of impairments in Appendix I of sub-part
P of Regulations No.4 of the Code of Regulations. 20 C.F.R. §
404.1520(d). If the individual meets or equals the list of impairments, the
claimant will be found disabled. If he does not, the [Commissioner] must
determine if the individual was capable of performing in his past relevant
work considering his severe impairment. 20 C.F.R. § 404.1520(e). If the
[Commissioner] determines that the individual is not capable of performing
his past relevant work, then he must determine whether, considering the
claimant's age, education, past work experience and residual functional
capacity, he is capable of performing other work which exists in the
national economy. 20 C.F.R. § 404.1520(f).

West v. Astrue, No. 07-158, 2009 WL 2611224, at *5 (D. Del. Aug. 26, 2009) (quoting
Brewster v. Heckler, 786 F.2d 581, 583-84 (3d Cir. 1986)). Based on the factual
evidence and testimony of Cannon and the VE, the ALJ determined Cannon was not
disabled and, therefore, not eligible for DIB or SSI. (D. I. 13 at 11.) The ALJ's Findings
are summarized as follows:
1.

The claimant meets the insured status requirem13nts of the Social Security
Act as of her alleged onset date and continued to meet them through
March 31, 2008.

2.

The claimant has not engaged in substantial gainful activity at any time
since June 1, 2006, the alleged disability onset date (20 CFR
404.1520(b), 404.1571, etseq.; 416.920(b) and 416.971, etseq.).

3.

The claimant has the following severe impairments: rheumatoid arthritis;
low back pain; residuals of recent foot surgery; history of cardiac disorder;
and depression associated with anxiety (20 CFR 404.1520(c) and
416.920(c)).

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).

5.

After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform sedentary
14

work activity (i.e., work that involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket files, ledgers,
and small tools, and requires only limited walkinn and standing). The
claimant can perform manipulative activities such as handling, fingering,
and reaching frequently or occasionally, but not Gonstantly. She is limited
to jobs that permit the individual to alternate between sitting or standing
during the course of the workday as desired, and that involve only simple,
routine, tasks (20 CFR 404.1567(a), 416.967(a)}.
6.

7.

The claimant was born on April24, 1965, and is 43 years old, which is
defined as a "younger person" (20 CFR 404.1563 and 416.963).

8.

The claimant has a high school education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

9.

The issue of transferability of work skills is not material to this decision
due to the claimant's age and residual functional capacity (20 CFR
404.1568 and 416.968).

10.

Considering the claimant's age, education, work experience, and residual
functional capacity, there are a significant number of jobs that exist in the
regional and national economy that she can perform (20 CFR
404.1560(c), 404.1566, 416.960(c), and 416.9613).

11.

Ill.

The claimant cannot perform her past relevant work as it requires the
performance of work-related activities precluded by the claimant's residual
functional capacity (20 CFR 404.1565 and 416.H65).

The claimant has not been disabled within the meaning of the Social
Security Act at any time from June 1, 2006, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)). (/d. at 13-18).

STANDARD OF REVIEW

A.

Motion for Summary Judgment

The parties cross moved for summary judgment pursuant to Fed. R. Civ. P.
56( c). (D. I. 18, 19.) In determining the appropriateness of summary judgment, a court
must review the record as a whole and "draw all reasonable inferences in favor of the
nonmoving party, [but refrain from making] credibility determinations or weigh[ing] the
evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)
15

(citations omitted). If a court determines "'there is no genuine issue as to any material
fact' and ... the movant is entitled to judgment as a matter of law," then summary
judgment is appropriate. Hill v. City of Scranton, 411 F .3d 11 B, 125 (3d Cir. 2005)
(quoting Fed. R. Civ. P. 56(c)).

B.

Review of the ALJ's Findings

In social security cases, the substantial evidence standard applies to motions for
summary judgment. See Woody v. Sec'y of the Dep't of Health and Human Servs., 859
F.2d 1156, 1159 (3d Cir. 1988). Specifically, a reviewing court must uphold factual
decisions if they are supported by "substantial evidence." 42 U.S.C. § 405(g),
1383(c)(3). "Substantial evidence means less than a preponderance of the evidence,
but more than a mere scintilla of evidence .... " Lilly v. Astrue, No. 10-30-LPS/MPT,
2012 WL 256634, at *6 (D. Del. Jan. 30, 2012) (quoting

RuthE~rford

v. Barnhard, 399

F.3d 546, 552 (3d Cir. 2005)). Stated alternatively, substantial evidence "does not
mean a large or considerable amount of evidence, but rather 'such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."' Pierce v.

Underwood, 487 U.S. 552, 564-65 (1988) (citing Canso/. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). Although a reviewing court is limited to the evidence presented to the
ALJ, "[c]redibility determinations are the province of the ALJ and only should be
disturbed on review if not supported by substantial evidence." Pysher v. Apfel, No. 001309, 2001 WL 793305, at *3 (E. D. Pa. July 11, 2001) (citing Van Horn v. Schweiker,
717 F.2d 871, 973 (3d Cir. 1983)). Even if a reviewing court would reach a different
conclusion, the ALJ's decision warrants deference if it is supported by substantial

16

evidence. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986).
Therefore, the focus of the inquiry is not whether this court "would have made the same
determination, but rather, whether the ALJ's findings were reasonable." Lilly, 2012 WL
256634, at *7 (citing Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988)).

IV.

DISCUSSION

After considering the record in this case, the parties' submissions and
arguments, and the applicable law, the court concludes the AL.J's decision is supported
by substantial evidence. Specifically, the court finds the ALJ was reasonable in his
apportionment of weight to the medical opinion evidence and Hvaluation of Cannon's
credibility. Therefore, the court will: (1) deny plaintiff's motion for summary judgment;
and (2) grant defendant's motion for summary judgment.
A.

Treating Physician's Medical Opinion

A treating physician's written report setting forth medical findings in the
physician's area of competence "may constitute substantial evidence." Richardson v.
Perales, 402 U.S. 389, 402 (1971 ). In determining the proper weight to give such

medical opinions, the ALJ is required to weigh all evidence and resolve any material
conflicts. See id. at 399. According to the Third Circuit, "[t]reating physicians' reports
should be accorded great weight, especially 'when their opinions reflect expert
judgment based on a continuing observation of the patient's condition over a prolonged
period of time."' Plummer v. Apfel, 186 F .3d 422, 429 (3d Cir. 1999) (quoting Rocco v.
Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987)). Although a treating physician's opinion

may be "entitled to substantial and at times controlling weight,'' it is only accorded

17

"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 claimant's] case record."' Fargnoli v. Massanari, 247 F.3d 34, 43 (3d
Cir. 2001) (alteration in original) (quoting 20 C.F.R. § 404.1527(d)(2)).
The ALJ, however, may reject a treating physician's opinion if it based on
contradictory medical evidence. Morales v. Apfel, 225 F.3d 3'10, 317 (3d Cir. 2000)
(citations omitted). Alternatively, an ALJ may choose not to accord a treating
physician's opinion controlling weight if contradictory medical evidence is present;
nevertheless, "the ALJ must still carefully evaluate how much weight to give the treating
physician's opinion." Gonzalez v. Astrue, 537 F. Supp. 2d 644, 660 (D. Del. 2008).
Because "[t]reating source medical opinions are still entitled to [some] deference," the
ALJ must weigh them "using all of the factors provided in 20 C.F.R. 404.1527 and
416.927." Social Security Regulation 96-2p, 1996 WL 37418C:, at *4 (July 2, 1996).
An ALJ may not disregard a treating physician's medical opinion "based solely
on his own 'amorphous impressions, gleaned from the record and from his evaluation of
[the claimant]'s credibility."' Morales, 225 F.3d at 318 (alteration in original) (quoting
Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir. 1983)). Further, the ALJ must provide an

explanation "for a rejection of probative evidence which would suggest a contrary
disposition." Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (citing Brewster v.
Heckler, 786 F.2d 581, 585 (3d Cir. 1986)). Although some evidence may be

appropriately considered while the rest is ultimately rejected, the ALJ must consider all
evidence and provide a rationale for evidence that is rejected. See Stewart v. Sec'y of

18

H.E.W., 714 F.2d 287, 290 (3d Cir. 1983).
Here, the court finds the weight apportioned by the ALJ to Dr. Hosny's opinion is
based on substantial evidence in the record. In according "limited weight" to his
opinion, the ALJ found certain findings consistent with the record. (D. I. 13 at 16-17.)
Specifically, the ALJ stated "the claimant's medically determinable impairments could
reasonably be expected to produce her alleged symptoms .... " (/d. at 16.) However,
the ALJ found Dr. Hosny's assessment of Cannon's "physical functional limitations with
respect to exertional and postural activities ... to be based he~avily on the claimant's
subjective complaints rather than the results of her physical examinations or other
objective medical evidence." (/d. at 17.) Further, the ALJ found "the claimant's medical
treatment and mental health treatment consistent with a conclusion that she
experience[d] only moderate physical and mental limitations and remain[ed] capable of
performing non-strenuous, simple, routine jobs." (/d.) Because Dr. Hosny overstated
the degree of Cannon's limitations, the ALJ accorded "limited weight" to his opinion.

(/d. at 16-17.)
The court disagrees with Cannon's claim that the ALJ erred when he did not
afford Dr. Hosny's opinion "great weight." (D. I. 18 at 16.) Dr. Hosny's opinion is entitled
to controlling weight if supported by medical evidence and consistent with the record.
In light of conflicting, objective medical testing and inconsistencies within the record, the
ALJ was entitled to reject Dr. Hosny's findings regarding the extent of Canon's
limitations.
First, Dr. Hosny's opinion is inconsistent with the medical evidence on record,
which documented the mild to moderate range of her symptomatology and success of
19

drug therapy. Medical evidence from other treating doctors indicates the following: (1)
Cannon has normal genitourinary function; (2) she is capable of light activity; (3) her
diagnosed rheumatoid arthritis is not corroborated by bloodwork; (4) Cannon's
functional limitations range from mild to moderate; (5) a treatment plan and medication
would enable her to return to normal activities; (6) she does not suffer from post
operative complications from pericardia! effusion surgery; and (7) Cannon does not
suffer from post operative complications from plantar faciitis surgery. (D. I. 13 at 218,
253, 265, 280, 303, 520-25, 596.)
Second, Dr. Hosny's opinion is inconsistent with his own treatment history.
Throughout his treatment notes, Dr. Hosny indicated the following: (1) he could not
confirm a consistent diagnosis, oscillating from osteoarthritis to inflammatory arthritis to
rheumatoid arthritis; (2) Cannon's bloodwork did not support a diagnosis of rheumatoid
arthritis; (3) her pain improved with drug therapy; and (4) Cannon's most recent pain
was unrelated to rheumatoid arthritis. (/d. at 287, 291, 294, 296, 299.) Yet, on July 8,
2008 and again on January 18, 2010, Dr. Hosny, in

answerin~1

a questionnaire

regarding Cannon's ability to do work-related activities on a day-to-day basis, listed
limitations that effectively rendered her totally disabled. (/d. a·t 715-17; D.l. 18-1.)
However, Dr. Hosny did not provide any notes or comments even where a further
explanation was required. (D.I. 13 at 715-17.) Additionally, Dr. Hosny did not indicate
he observed any objective evidence of Cannon's self-reported pain. (/d. at 717.)
Because Dr. Hosny merely created a checklist of Cannon's limitations without any
substantiating support from either her medical records or his objective observations, Dr.
Hosny's determination of Cannon's total disability is not entitiE!d to deference.
20

Decisions regarding disability are reserved for the Commissioner and must be weighed
in light of credibility determinations and the claimant's history of noncompliance. See
20 C.F.R. § 404.1527(e)(1 ); Reynolds v. Astrue, No. 10-356-L.PS/MPT, 2011 WL
2708720, at *8 (D. Del. July 12, 2011).
Third, Dr. Hosny's opinion is also inconsistent with Cannon's daily activities. In
addition to caring for her children, Cannon does household chores, uses public
transportation, and attends church. (D. I. 13 at 126-33.) Such a level of daily activity is
inconsistent with a person who is totally disabled. As a result, the ALJ's allocation of
limited weight to Dr. Hosny's opinion is supported by substantial evidence.
Further, in assigning limited weight to Dr. Hosny's findings, the ALJ is required to
consider all evidence and provide an appropriate explanation. Here, the ALJ evaluated
the record and Cannon's hearing testimony before concluding Dr. Hosny's opinion was
inconsistent with the other medical evidence on record. (/d. at 17.) Because the ALJ
determined Cannon's testimony and self-assessments lacked credibility and noted, in
turn, Dr. Hosny heavily relied upon her subjective complaints to form his assessment,
the ALJ was entitled to assign limited weight to Dr. Hosny's opinion. (/d.) Therefore,
the ALJ satisfied his burden of conducting a thorough evaluation and providing
appropriate explanations.
B.

Evaluation of Cannon's Symptoms and Noncompliance

In evaluating symptoms, the ALJ must "consider all ... symptoms, including
pain." 20 C.F.R. § 404.1529(a). Also, the ALJ must consider whether such symptoms
"can reasonably be accepted as consistent with the objective medical evidence and

21

other evidence." /d. After determining an impairment "could reasonably be expected to
produce ... symptoms, such as pain," the "intensity and persistence" must be
assessed to ascertain the limitations on one's ability to work. 20 C.F.R. § 404.1529(c).
To assist with this determination, the following, non-exhaustive factors are considered:
(1) "objective medical evidence;" (2) "daily activities;" (3) "location, duration, frequency,
and intensity;" (4) medication prescribed, including its effectiveness and side effects; (5)
treatment; and (6) other measures to relieve pain. /d.
Here, the court finds the ALJ's analysis of Cannon's pain is reasonable. First,
the ALJ concluded Cannon's "medically determinable impairments could reasonably be
expected to produce her alleged symptoms." (0.1. 13 at 16.) However, the ALJ
determined "her statements concerning the intensity, duration and limiting effects of
these symptoms [were] not entirely credible." (/d.) In assessing Cannon's credibility,
the ALJ evaluated the record as a whole. (/d.)
The court disagrees with Cannon's allegation that the ALJ failed to support his
credibility determination with substantial evidence. (0.1. 18 at 16.) The ALJ included
Cannon's alleged symptoms and limits in the hypothetical questions posed to the VE.

(0.1. 13 at 46-47.) Although this court acknowledges Cannon's complaints of pain
throughout the record, multiple contradictions exist in the record, which provide
substantial evidence supporting the ALJ's evaluation of Cannon's symptom severity.
First, the purported severity of her symptoms is inconsistent with Cannon's daily
activities. As previously discussed, Cannon cares for her six children, does household
chores, uses public transportation, and attends church. (/d. at 126-33.) Although she
testified about multiple limitations in her daily activities, the extent of her abilities
22

contradict her contentions of debilitating pain and total inability to work.
Second, Cannon's alleged acute and chronic symptomatology is inconsistent
with the success of her surgical procedures and drug therapy. Regarding her
rheumatoid arthritis, Cannon testified her hands were swollen and prevented her from
working. (/d. at 28, 39.) Medical testing, however, did not strongly support a diagnosis
of rheumatoid arthritis. (/d. at 265, 294.) Independent of the proper diagnosis and
contrary to Cannon's testimony, the medical record reveals he!r arthritic symptoms
improved significantly with drug therapy. (/d. at 35, 291.) Additionally, Cannon testified
she continued to have problems with her foot despite having plantar faciitis surgery and
wearing inserts. (/d. at 28.) Nevertheless, the medical record reveals the dense,
fibrous tissue that was causing her chronic right foot pain was removed, and there were
no indications she suffered any post-operative complications. (/d. at 577, 596.)
Further, Cannon testified her foot, back, and hip pain caused her to suffer problems
with walking and standing. (/d. at 27.) Medical evidence, however, indicates her low
back pain and mild scoliosis would not preclude her from participating in daily activities
so long as she took medication and adhered to a prescribed treatment plan. (/d. at
303.) Regarding her depression and anxiety, Cannon testified she was "down in the
dumps" and currently taking Lexapro. (/d. at 29, 34.) Nevertheless, the medical record
indicates Cannon only recently sought psychological treatment and was still capable of
"meet[ing] the basic mental demands of simple work." (/d. at 285.) Cannon also
testified about her overactive bladder. (/d. at 41.) The medical evidence, however,
does not indicate this condition required frequent medical attention or is not well-

23

controlled by medication. Regarding Cannon's pericardia! infusion, the medical record
does not suggest she continues to suffer residual effects following her surgery. (/d. at
253, 520-25.) Therefore, significant evidence in the record reveals Cannon's
impairments are under control or amenable to treatment.
Third, the purported intensity of her symptoms is further complicated by
Cannon's persistent noncompliance. To obtain medical benefits, a claimant "must
follow treatment prescribed by ... [a] physician if ... [that] treatment can restore ...
[the claimant's] ability to work." 20 C.F.R. § 404.1530. As noted previously, the record
shows a history of failure to maintain office visits, seek follow-up treatment, and abide
by her prescribed treatment regimen. (0.1. 13 at 190, 231-38, 688.) Cannon's failed
adherence to her treatment plan, therefore, undermines her c1redibility and permits the
ALJ to accord her testimony only "some weight." (!d. at 16) fl.s manifested by
Cannon's daily activities, success through surgical intervention and drug therapy, and
history of noncompliance, the ALJ's evaluation of her symptoms is supported by
substantial evidence in the record.
C.

Determination of RFC and Evaluation of Limitations

In making a RFC determination, all evidence must be considered. See Burnett v.
Comm'rof Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted).

Although the ALJ can make credibility determinations, a reason must be provided for
rejecting specific evidence. /d. (citations omitted).
Here, the ALJ determined Cannon's RFC authorized sedentary work with specific
limitations for sitting, standing, handling, fingering, and reaching. (0.1. 13 at 18, 47.) In

24

reaching this conclusion, the ALJ noted medical evidence and opinion testimony were
considered. (/d. at 18.)
First, as previously stated, a thorough evaluation was conducted regarding
medical opinions, symptom evaluation, and treatment noncompliance. In conducting
his assessment, the ALJ provided explanations for rejecting evidence as lacking
credibility. In light of the ALJ's thorough evaluation, the RFC is based on substantial
evidence in the record.
Second, contrary to Cannon's alleged total disability, th,e RFC permits her to
perform restricted sedentary work. (/d.) In establishing the appropriate RFC, the ALJ
noted Cannon's limitations, which would preclude her from performing all the
requirements of every sedentary position. (/d.) Therefore, in determining job
availability, the ALJ relied on the VE's expertise and testimony addressing the existence
of such sedentary work in the national and regional economy. (/d. at 17-18.)

D.

Vocational Expert Testimony of Available Wol'k

Hypothetical questions proposed to the VE need only reflect the impairments
supported by the record. See McDonald v. Astrue, 293 F. App'x 941, 946-47 (3d Cir.
2008). When a hypothetical is accurately presented, the VE's response thereto
constitutes substantial evidence. See id. at 947 (citing Chrupcala v. Heckler, 829 F.2d
1269, 1276 (3d Cir. 1987)). Stated alternatively, aVE's testimony is only valid when
based upon a hypothetical question that accurately reflects a claimant's physical and
mental limitations. See Myers v. Comm'r of Soc. Sec., 340 F. App'x 819, 821 (3d Cir.
2009) (citing Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984)).

25

Here, the ALJ's hypothetical questions to the VE included Cannon's age,
education, work history, symptoms, and limitations. (D.I. 13 at 17-18.) In response, the
VE noted available jobs in the sedentary category. (/d. at 47.) Because the Dictionary
of Occupational Titles does not address a sit/stand option, one of Cannon's limitations,
the VE included this option as well as several other provisos in her analysis. (/d.) As
previously stated, the ALJ's evaluation of Cannon's symptom severity is supported by
substantial evidence in the medical record and, therefore, the hypothetical question was
accurate. Accordingly, the VE's testimony constitutes substantial evidence, which
supports the ALJ's determination that Cannon is not disabled and is capable of
performing other available work. See 20 C.F.R. § 404.1520(g).
V.

CONCLUSION
For the aforementioned reasons, the court concludes the following: (1) the ALJ's

denial of DIB and SSI is based on substantial evidence; (2) Cannon's motion for
summary judgment is denied; and (3) the Commissioner's motion for summary
judgment is granted.

/41,
I

Dated MarchL.2., 2012

jl~- '

ST.A.TES DIS

26

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

CYNTHIA A. CANNON,
Plaintiff,
C. A. No. 09-1 08-GMS

v.

MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.

ORDER

For the reasons set forth in the Memorandum issued on this date,
IT IS HEREBY ORDERED this_...._____ day of
I "~} ~

1

!'-'
_.__L::__'"-AA.--'--=---' 2012,

that
(1)

Plaintiffs's motion for summary judgment (D.I. 18) is DENIED; and

(2)

Defendant's motion for summary jud

E