Kelly v. Astrue

Filing 26

REPORT AND RECOMMENDATIONS- DENYING 23 Cross MOTION for Summary Judgment, GRANTING 19 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of th e Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 10/7/2013. Signed by Judge Sherry R. Fallon on 9/18/2013. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

THOMAS J. KELLY,
Plaintiff,
v.

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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Civil Action No. 09-759-RGA-SRF

REPORT AND RECOMMENDATION

Plaintiff Thomas J. Kelly ("Kelly" or "Plaintiff') appeals from a decision of Carolyn W.
Colvin, the Commissioner of Social Security (the "Commissioner" or "Defendant"), 1 denying his
application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42
U.S.C. §§ 401-433. The court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g)_2
Presently pending before the court are cross-motions for summary judgment filed by
Kelly and the Commissioner. (D.I. 19, 23) Kelly asks the court for an award of benefits, or
alternatively, to remand to the Commissioner for further administrative proceedings. (D.I. 20)

1

Carolyn W. Colvin became the Commissioner of Social Security on February 13, 2013,
after this proceeding was initially filed. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Carolyn W. Colvin replaced the previous Commissioner, Michael J. Astrue, as the
defendant in this case.
2

Under § 405(g),

[a]ny individual, after any final decision of the Commissioner of Social Security made
after a hearing to which he was a party . . . may obtain a review of such decision by a
civil action commenced within sixty days after the mailing to him of notice of such
decision . . . . Such action shall be brought in the district court of the United States for
the judicial district in which the plaintiff resides ....
42 U.S.C. § 405(g).

The Commissioner requests that the ALl's decision be affirmed. (D.I. 24) For the reasons set
forth below, I recommend that the court grant Kelly's motion, deny the Commissioner's motion,
and remand this matter for further proceedings.

I.

BACKGROUND

A.

Procedural History

Kelly filed his application for DIB on July 22, 2005, alleging disability beginning on May
1, 2003. (D.I. 15 at 124-29, 145-53) Kelly later amended his onset date to June 30,2005. (Jd at
123) Kelly's claim was denied initially on December 29, 2005, and upon reconsideration on
November 16, 2006. (Id at 94-98, 102-06) On December 19, 2006, Kelly filed a request for a
hearing before an administrative law judge. (Id at 107-08) The hearing was held on February
20, 2008 before administrative law judge Judith A. Showalter (the "ALJ"). (Id at 114-20) On
April 9, 2008, the ALJ issued a decision confirming the denial of benefits to Kelly. (Id at 8-25)
Kelly requested a review of the ALJ's decision by the Appeals Council on April24,
2008. (Jd at 5-7) The Appeals Council denied Kelly's request for review on September 11,
2009. (Jd at 1-4) The April 9, 2008 decision ofthe ALJ therefore became the final decision of
the Commissioner. See 20 C.F.R. §§ 404.955, 404.981; see also Sims v. Apfel, 530 U.S. 103,
106-07 (2000).
On October 12,2009, Kelly filed a complaint seeking judicial review ofthe ALJ's
decision. (D.I. 2) On September 1, 2011, Kelly filed his motion for summary judgment. (D.I.
19) The Commissioner opposed Kelly's motion and filed a cross-motion for summary judgment
on November 3, 2011. (D.I. 23) On April26, 2012, this case was referred to the Magistrate
Judge to hear and resolve all pretrial matters.

2

B.

Factual Background
1.

Medical History

Kelly was fifty-three years old when the ALJ rendered her decision. (D.I. 15 at 12, 33)
He has a high school education and a two-year college degree. (!d. at 35-36) He has not worked
since 2003, when he was employed as a roofing foreman. (!d. at 38) Kelly alleges disability due
to ADHD, arthritis, depression, compulsive anxiety, and pain in his neck and left shoulder. (!d.
at 146)

a.

Substance abuse

Kelly treated with his primary care physician, A. Douglas Chervenak, D.O., since 1999
for various conditions, including substance abuse. (!d. at 276-93) On May 24, 2003, Dr.
Chervenak indicated that Kelly had been drinking heavily for about a month, three to four days a
week. (!d. at 286) He smoked two and a half packs of cigarettes per day. (!d.) In December
2003, Dr. Chervenak noted that Kelly continued to drink, had obtained several DUI's, and was
attending Kent County Counseling. (!d. at 285)
On June 2, 2004, Kelly was admitted to the emergency room of Kent General Hospital
after suffering a fall while intoxicated. (!d. at 264-69) A CT scan revealed no skull fracture or
extracranial soft tissue swelling. (!d. at 269) Kelly tested positive for alcohol. (!d. at 264-69)
Kelly began treating with psychiatrist Yvette Baker, M.D. on June 23, 2004 for his
alcohol dependence, among other conditions. (!d. at 270-72) On June 24, 2005, Dr. Baker
indicated that Kelly had served six months in jail due to a DUI conviction, but he had been clean
for a year and had been attending Alcoholics Anonymous meetings four times a week. (!d. at
225) On July 19, 2005, Dr. Baker noted that Kelly was still adjusting to life outside of jail
following his DU I conviction, but he was making progress. (!d. at 223) From September to

3

November 2005, Dr. Baker observed that Kelly attended his meetings and was doing well. (!d.
at 222-23) According to Dr. Baker, Kelly experienced cravings and dreams that he was using
again. (!d. at 224) However, Dr. Baker indicated that Kelly's alcoholism was in remission as of
November 7, 2005. (!d.)
b.

Mental conditions

Dr. Chervenak also noted Kelly's history of depression. (!d. at 276-93) In June 2000,
Dr. Chervenak prescribed Effexor to treat Kelly's depression and anxiety. (!d. at 288) He noted
that Kelly was sleeping better and seemed calmer at his next visit later that month. (!d.) Dr.
Chervenak prescribed Zoloft beginning in December 2003 after noting that Kelly had been
drinking and obtained a few DUI's. (!d. at 283, 285)
From 2004 to 2006, Kelly treated with Dr. Baker for major depressive disorder, attention
deficit hyperactivity disorder ("ADHD"), and recurrent and generalized anxiety disorder. (!d. at
270-72) On June 23, 2004, Dr. Baker noted that Kelly worried about his finances, his wife's
unemployment, the children he and his wife cared for, and the loss of his driver's license. (!d. at
270) Kelly informed Dr. Baker that his sleep was okay at that time and his appetite was good.
(!d.) Dr. Baker described Kelly's mood as overwhelmed. (!d. at 271) Dr. Baker prescribed
Librium and Zoloft to control Kelly's anxiety and depression at the June 2004 visit, and
measured his global assessment of functioning ("GAF") score at 61. (!d. at 272)
On June 24, 2005, Dr. Baker measured Kelly's GAF score at 62. At Kelly's next visit on
July 19, 2005, Dr. Baker noted that Kelly was anxious, but his mood and anxiety were
stabilizing, and he continued to take his medications. (!d. at 223) On October I 0, 2005, Dr.
Baker indicated continued improvement, described Kelly's mood and anxiety levels as stable,
and continued his medications. (!d.) Later that month, Dr. Baker observed that Kelly was better

4

on his medication, and the addition of Strattera to his medications had helped his organization.
(Jd at 224) She indicated that he was calmer and his mood and anxiety remained stable. (!d)

On November 28, 2005, Dr. Baker indicated that Kelly experienced some forgetfulness and mild
anxiety but was otherwise doing well. (Id)
From December 2005 through February 2006, Dr. Baker met with Kelly four times and
concluded that Kelly was doing fine, but had some increase in anxiety and mild depression due
to the fact that he was caring for a friend's son. (Jd at 219, 224) Dr. Baker increased Kelly's
prescription ofLexapro in December 2005. (Id at 224) On June 13,2006, Dr. Baker concluded
that he was "doing ok," and was calmer, but still tense. (Jd at 217) She identified his anxiety as
stable. (!d) Dr. Baker measured Kelly's GAF score at 61 during this visit. (Jd at 272)
Dr. Baker performed an assessment of Kelly on February 15,2008 prior to his hearing
before the ALJ and rated his GAF score at 63. (ld at 318) She indicated that Kelly was
currently taking Lexapro, Adderall, and Librium, and noted that while there was minimal
improvement in his mood, he had not relapsed and his ADHD symptoms had subsided. (ld at
319) Dr. Baker indicated that Kelly's chances of complete recovery were poor to fair. (ld)
According to Dr. Baker, Kelly's conditions would cause him to be absent from work more than
three times per month. (!d. at 320)

c.

Physical conditions

On January 22, 2002, Kelly visited Dr. Chervenak and reported that he had been
experiencing back pain since January 17, 2002. (ld at 287) Dr. Chervenak evaluated Kelly
again on May 24, 2003, and observed that Kelly experienced some tenderness to the touch on his
spine. (!d. at 286) Dr. Chervenak indicated that Kelly complained of occasional back pain
which grew worse during inclement weather. (Jd) On April 20, 2004, Kelly saw Dr. Chervenak

5

with complaints of lower back pain which had lasted for about three days. (Jd at 281) At
another visit shortly thereafter on April27, 2004, Kelly made no mention of his back pain. 3 (!d)
Subsequent treatment notes from June and July 2004 indicate that Kelly complained of an
infected and swollen right foot. (Jd at 279) Dr. Chervenak recommended elevation and
soaking. (Jd) These notes reflect no further complaints regarding back pain.
Kelly visited Dr. Chervenak three times after his disability onset date. In June 2005, Dr.
Chervenak treated Kelly for a rash on his hands and feet. (Jd at 277) The condition did not
improve by the end of July 2005, and Dr. Chervenak referred Kelly to a dermatologist. (Jd) In
October 2005, Dr. Chervenak noted that Kelly's hands were better, but Kelly had not gone to the
dermatologist. (Jd at 276) These treatment notes contain no reference to ongoing back pain.

d.

Non-treating physicians

The record contains various opinions and evaluations of Kelly from non-treating
physicians, including state agency doctors. On November 15, 2005, Kelly visited Jay Freid,
M.D., for a consultative examination. (Jd at 184-90) Dr. Freid identified Kelly's chief
complaint as back pain. (ld at 184) Dr. Freid determined that Kelly suffers from chronic
cervical and lumbar pain in his muscles. (Jd at 185) Dr. Freid further observed that Kelly has a
limited range of motion in his left thumb, he has a history of alcohol abuse, and he has obsessive
compulsive disorder with a history of anxiety. (Jd)
On November 29, 2005, Michael Borek, D.O., a state agency medical consultant,

3

In response to Kelly's complaints of rectal pain at this visit, Dr. Chervenak referred
Kelly to Thomas P. Barnett, M.D. (D.I. 15 at 273-75) Kelly visited with Dr. Barnett two times
in April and June of 2004, and Dr. Barnett performed a colonoscopy on June 24, 2004. (Jd) Dr.
Chervenak's records do not reflect any referrals made for additional treatment or testing of
Kelly's back, shoulder, neck, and thumb pain, nor are there any records suggesting that Kelly
independently sought treatment for these conditions by a specialist during the time period in
which he experienced the symptoms.
6

completed a physical residual functional capacity ("RFC") assessment of Kelly. (Id at 191-98)
Dr. Borek determined that Kelly could occasionally lift up to fifty pounds and frequently lift up
to 25 pounds, he could stand, walk, or sit for about six hours in an eight hour workday, and he is
unlimited in his ability to push or pull. (/d. at 192) Dr. Borek observed that Kelly had limited
feeling in his left thumb and opined that he should avoid concentrated exposure to vibration,
which could increase his pain. (Id at 194-95) According to Dr. Borek, the severity and duration
of Kelly's symptoms were disproportionate to their expected severity and duration based on
Kelly's medical history, and they were inconsistent with the medical and non-medical evidence.
(Id at 196) On November 12, 2006, Dr. R. Palandjian conducted a medical examination of
Kelly and affirmed Dr. Borek's RFC assessment dated November 29, 2005. (!d. at 263)
On December 16, 2005, Kelly saw Pedro M. Ferreira, Ph.D., a consultative psychologist
for the Social Security Administration. (Id at 213-16) Dr. Ferreira completed a mental RFC
assessment and determined that Kelly suffered from depression and anxiety, but indicated that
the severity of Kelly's symptoms was not supported by the psychiatric evidence. (Id at 215)
According to Dr. Ferreira, the record indicated that Kelly had been responding to treatment
slowly but adequately. (!d.) Overall, Dr. Ferreira concluded that Kelly was not significantly
limited by his conditions, and was only moderately limited in his ability to understand and
remember instructions, maintain concentration for extended periods of time, complete a normal
workday and work week, and set realistic goals. (Jd at 213-14) On October 26, 2006, Kelly saw
Dr. D. Fugate for a second mental RFC assessment. (Id at 251-53) Dr. Fugate affirmed Dr.
Ferreira's RFC assessment from December 16, 2005. (!d. at 253)
On October 24, 2006, Kelly visited Janis Chester, M.D., for a consultative examination.
(!d. at 229-39) Dr. Chester indicated that Kelly showed no signs or symptoms consistent with

7

ADHD, depression, bipolar disorder, or obsessive compulsive disorder. (!d. at 231) Dr. Chester
attributed his anxiety to Kelly's cravings for drugs or alcohol and his irritation with his wife's
tendency to keep a cluttered home. (!d.) Dr. Chester determined that Kelly's polysubstance
dependence was in remission and identified a cognitive disorder likely secondary to head trauma,
substance abuse, and side effects from his Librium prescription. (!d. at 233) Dr. Chester
concluded that Kelly was not capable of managing benefit payments. (!d. at 236)
On October 30, 2006, Kelly visited Kartik Swaminathan, M.D., for a consultative
examination. (!d. at 254-62) Dr. Swaminathan concluded that Kelly would be able to sit for
about 30 minutes or stand for about 30 to 45 minutes before needing rest, he must work in a job
that allows for constant changes in position, and he would be unable to perform any overhead
activities for longer than 5 to 10 minutes as a result of his right rotator cuff tendonitis. (!d. at
257) According to Dr. Swaminathan, the arthritis in the small joints of Kelly's hand would
prevent him from performing fine motor activities or gripping objects requiring more than 5 to
10 pounds. (!d.)
On July 6, 2008, Dr. Chris Schellinger, a spine specialist, conducted an independent
medical evaluation of Kelly's condition. (!d. at 324) Dr. Schellinger observed that Kelly
experienced a dull and aching pain in the neck bilaterally, which radiated to both arms and both
hands. (!d.) He further observed that Kelly experienced dull, aching, shooting and numbing
pain in the low back bilaterally, which radiated to both legs and significantly reduced his ability
to carry out daily activities. (!d.) Dr. Schellinger noted slight restrictions in the extension, right
lateral flexion, left rotation, and right rotation degrees of the cervical spine, and a mild restriction
in the left lateral flexion of the cervical spine. (!d. at 326) He concluded that generalized spinal
degeneration marked by stiffness of the vertebral joints was present, as well as extremely

8

advanced degenerative arthritis. (!d. at 327) He described Kelly's prognosis as fair and
indicated that continued improvement was expected despite permanent residuals. (!d. at 328)
Dr. Schellinger indicated that Kelly would be unable to perform strenuous work indefinitely.

(!d.)

2.

Employers' Letters

Kelly also submitted into evidence the statements of Marianne Jones and Tia-Justine G.
Peters-Sievila. (!d. at 173-75) Ms. Jones stated that Kelly had performed some house
maintenance jobs for her over the past several years even though others had warned her that he
has major problems with time and distraction. (!d. at 173) Ms. Jones observed that Kelly was
easily distracted, experienced memory issues, and had difficulty staying focused on "boring"
tasks. (!d.) Ms. Sievila indicated that Kelly replaced a window in her home, but the job took
several weeks for him to complete. (!d. at 174) She described Kelly as a perfectionist who
would get upset if things were not exactly right, and stated that Kelly had a habit of talking to
himself out loud about other tasks he felt he needed to complete. (!d. at 174-75) Ms. Sievila
also identified Kelly as being easily distracted and forgetful. (!d. at 174)

3.

The Administrative Hearing
a.

Plaintiff's Testimony

Kelly was fifty-three years old at the time of his hearing before the ALJ on February 20,
2008. (D.I. 15 at 33) At the hearing, Kelly testified that he is married and lives with his wife
and his sister-in-law, who has Down Syndrome. (!d. at 34) Kelly's driver's license was
suspended due to his multiple DUI convictions, and as a result, he relies on his wife for
transportation. (!d. at 34-35) He is a high school graduate and completed two years of college to
obtain a degree in architectural engineering technology. (!d.) He testified that his ability to spell

9

is weak, and he needs help to make a grocery list or fill out a job application. (Jd. at 36)
Kelly testified that he worked as a roofer for twenty-seven years, and at one point served
as a foreman who supervised up to four or five workers. (Id. at 36) However, he did not have
the authority to hire or fire an employee without first obtaining approval from the company
owner. (Id. at 37) When Kelly tried to work for other employers, he claims that he was fired
because he did not work fast enough and did not follow instructions. (Id. at 83) Kelly's work
involved heavy lifting and the use of power tools, and he often worked on ladders and
scaffolding. (Id. at 37)
Kelly chose to leave his job in May of 2003 because he suffered a relapse and began
using drugs and alcohol. (Id. at 37-38) He did not file for unemployment or look for work. (Id.
at 38-39) He served time in prison from October 2004 to June 2005 as a result of a DUI
conviction. (Id.) Following his release from prison in June 2005, he began treating with Dr.
Baker. (Jd. at 39)
Kelly testified that the work he performed since 2003 has been infrequent and he has not
earned a substantial wage. (Id. at 39) He considered training to become an electrician, but is
reluctant to return to the construction industry. (ld. at 40) He applied for a couple of vocational
programs and was rejected. (Id. at 40) His family supports itself on the disability income
received from his wife and his sister-in-law. (ld. at 41, 76-77)
Kelly testified that it takes him two hours to get out of bed in the morning due to the pain
in his back caused by his arthritis. (Jd. at 42) He wakes up in the morning to feed his cats, and
then gets washed. (Id. at 74-75) He makes himself coffee, takes his vitamins, and does the
dishes. (ld. at 75)
Kelly acknowledged that he never received treatment, surgery, or medication for his back

10

or neck pain. (!d. at 42) Kelly discovered the arthritis in his back after he fell and broke his ribs
and had his spleen removed in 1999 or 2000. (!d.) Kelly's primary care physician, Dr.
Chervenak, instructed him to perform exercises and take over-the-counter medications for his
back and neck pain. (!d. at 43) Kelly described the pain as spreading from his right hip bone
down his leg, and he testified that he has spasms in his shoulders and neck. (!d. at 44) On a
scale of one to ten, Kelly rated the pain at a five most of the time and a ten occasionally. (!d.)
Kelly severed his left thumb in 1992, and the nerves continue to grow back. (!d. at 44,
47) He received a nine-hour operation to reattach his thumb. (!d. at 48) He described the pain
in his thumb as constant, ranking it as a seven on a scale of one to ten. (!d.) Kelly testified that
he primarily uses his right hand, and he is able to hold a knife and fork, hold a comb or
toothbrush, and write with his right hand. (!d. at 49-50)
Kelly explained that he was injured in a robbery in 1989 or 1990 when a robber knocked
him down from behind and kicked him in the back of the head. (!d. at 45) At the time, his
doctors wanted to operate on him but he refused. (!d. at 46) He received physical therapy for a
long time. (!d.) Kelly continues to experience pain in his neck every day, but he is able to tum
his head from side to side. (!d. at 46-4 7) Kelly also testified that he had surgery on his right
shoulder in 1989 and still experiences pain from the surgery. (!d. at 51) Kelly exercises his
shoulder every day. (!d. at 52)
Kelly attends Alcoholics Anonymous at least five times a week and has a sponsor. (!d. at
54) Kelly receives counseling and therapy from Dr. Baker, who reviews his medications. (!d. at
56) He indicated that he pays for his visits with Dr. Baker out-of-pocket, and he no longer goes
to a primary care physician. (Jd. at 76)
Kelly continues to experience periods of depression, but has no thoughts of harming

11

himself. (!d. at 56-57) He occasionally has thoughts of harming others, and suffers from anxiety
and anger. (!d. at 57) He has panic attacks about once or twice a month, lasting anywhere from
a minute to a couple of days. (!d. at 61-62) However, he believes that his condition has
improved since he began treating with Dr. Baker. (!d. at 63) He testified that writing notes to
himself helps him overcome his short-term memory problems. (!d. at 64) Although he has
trouble concentrating on the average day, he is able to concentrate on jobs if he is left alone. (!d.
at 65)
Kelly's sleep and appetite are good sometimes and bad at other times. (!d. at 58) Kelly
averages about four or five hours of sleep per night. (!d. at 70-71) He fears that people do not
like him and he prefers being by himself, but he described himself as a social person who is wellliked. (!d. at 59) Kelly testified that he gets along with his family and has friends from his
Alcoholics Anonymous group. (!d. at 59-60)
Kelly testified that he performs all of the household chores, including mopping,
sweeping, vacuuming, laundry, and dusting. (!d. at 67) Kelly's wife drives him to the grocery
store and he does the shopping. (!d. at 67 -68) He cuts the grass and gardens in the warm
weather. (!d. at 68) As a hobby, he restores yard ornaments by painting them. (!d. at 68-69)
Kelly makes his own meals most of the time, and is able to make sandwiches and use the
microwave. (!d. at 69-70) He is able to shower, comb his hair, dry himself, and dress. (!d. at
70) He tries not to lift anything over twenty or thirty pounds, but he is able to stoop to the floor
and kneel down. (!d. at 73)

b.

Vocational Expert's Testimony

At the administrative hearing, the ALJ heard the testimony of Jan Howard Reed
("Reed"), an impartial vocational expert (the "VE"). (!d. at 84-90) The VE classified Kelly's

12

prior relevant work as a roofing foreman as semi-skilled work of a medium exertionallevel. (!d.
at 84) The VE opined that Kelly has no transferable skills from his previous jobs as a roofing
foreman. (!d.)
The ALJ posed a hypothetical to the VE to assume a person who is fifty years of age and
has a twelfth grade education. (!d. at 85-87) The hypothetical person could handle a medium
level of exertion and would have limitations with the left non-dominant hand, including limited
fingering in the left hand, and should avoid concentrated exposure to vibrations. (!d.) The
hypothetical person would not be able to frequently work overhead with the upper right
extremity, and would be precluded from performing his past relevant work. (!d.) The ALJ asked
whether there would be any simple, unskilled jobs at a medium level of exertion that the
hypothetical individual could perform that would not require a production pace, meaning that the
individual would be paid by the piece working at an assembly line in a low stress position
requiring only the occasional need to make changes or to use judgment, and only occasional
interaction with co-workers and the general public. (!d.)
The VE responded that available jobs at a medium level of exertion included a janitor and
a dishwasher, although Kelly would be unable to perform his past work with the limitations
described. (/d. at 87) With respect to light, unskilled work that would fit within the parameters
ofthe hypothetical, the VE listed the positions of housekeeper and inspector. (!d. at 87-88) The
VE answered affirmatively and provided examples of four jobs: a janitor with 2,000 jobs locally
and 200,000 jobs nationally, and a dishwasher with 800 jobs locally and 80,000 jobs nationally.

(!d.) The VE testified that jobs requiring light unskilled work that would fit within the
parameters of the hypothetical included a housekeeper with 3,000 jobs locally and 200,000 jobs
nationally, and an inspector with 1,000 jobs locally and 70,000 jobs nationally. (!d.)

13

Kelly's counsel questioned the VE regarding whether Kelly would be able to perform any
work at a level above sedentary if it was determined that Kelly had the limitations identified in
the consultative examination by Dr. Swaminathan. (!d. at 88) The VE testified that if Kelly
were limited to sitting for 30 minutes, standing for 30 to 45 minutes, with no overhead activity
and no fine motor activities, and limited to lifting and carrying no more than five to ten pounds,
Kelly would not be able to perform any work above the sedentary level. (!d. at 88-89)

C.

The ALJ's Findings

On April 9, 2008, the ALJ issued the following findings:
1.

The claimant meets the insured status requirements of the Social Security
Act through March 31,2008.

2.

The claimant has not engaged in substantial gainful activity since June 30,
2005, the alleged amended onset date (20 C.F.R. 404.1520(b) and
404.1571 et seq.).

3.

The claimant has the following severe impairments: lumbar and cervical
degenerative disc disease, left thumb injury, depression, anxiety and
attention deficit hyperactivity disorder (ADHD). (20 C.F.R. 404.1520(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 C.F .R.
Part 404, Subpart P, Appendix 1 (20 C.F .R. 404.1520( d), 404.1525 and
404.1526).

5.

After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform low stress,
medium work as defined in 20 C.F.R. 404.1567(c) not performed at a
production pace except that he could only sit for 6 hours in an 8 hour day
and stand or walk for 6 hours in an 8 hour day, lifting 50 pounds
occasionally, 25 pounds frequently and he should avoid concentrated
exposure to vibrations with only frequent overhead work with the upper
right extremity, frequent fingering with the left non-dominant hand and
only occasional contact with co-workers and the general public.

6.

The claimant is unable to perform any past relevant work (20 C.F.R.
404.1565).

7.

The claimant was born on July 13, 1954 and was 50 years old, which is
14

defined as an individual closely approaching advanced age, on the alleged
amended disability onset date (20 C.F.R. 404.1563).
8.

The claimant has at least a high school education and is able to
communicate in English (20 C.F.R. 404.1564).

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is "not disabled," whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part
404, Subpart P, Appendix 2).

10.

Considering the claimant's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 C.F .R. 404.1560( c)
and 404.1566).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from June 30, 2005 through the date of this decision (20
C.F.R. 404.1520(g)).

(D.I. 15 at 13-24)

II.

STANDARD OF REVIEW
A.

Motion for Summary Judgment

"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). Material facts are those that could affect the outcome of the proceeding, and "a
dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242,248 (1986)). Pursuant to Rule
56(c)(1), a party asserting that a fact is genuinely disputed must support its contention either by
citing to "particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for the purposes of the motion only), admissions, interrogatory answers, or other materials," or
15

by "showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R.
Civ. P. 56(c)(1)(A) & (B).
The moving party bears the initial burden of proving the absence of a genuinely disputed
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The burden then shifts to the
non-movant to demonstrate the existence of a genuine issue for trial. See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough ofWest Chester, Pa., 891
F.2d 458,460-61 (3d Cir.1989). When determining whether a genuine issue ofmaterial fact
exists, the court must view the evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party's favor. See Scott v. Harris, 550 U.S. 372, 380
(2007); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). However, the existence of some
evidence in support of the nonmoving party may not be sufficient to deny a motion for summary
judgment. Rather, there must be enough evidence to enable a jury reasonably to find for the
nonmoving party on the issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,249 (1986).
If the nonmoving party fails to make a sufficient showing on an essential element of its case on
which it bears the burden of proof, the moving party is entitled to judgment as a matter of law.
See Celotex Corp. v. Catrett, 477 U.S. at 322.

B.

Review of ALJ's Findings

The court must uphold the Commissioner's factual decisions if they are supported by
"substantial evidence." See 42 U.S.C. §§ 405(g); 1383(c)(3); Monsour Med. Ctr. v. Heckler, 806
F.2d 1185, 1190 (3d Cir. 1986). Substantial evidence does not mean a large or considerable
amount of evidence. Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citing Canso!. Edison Co.

v. NLRB, 305 U.S. 197,229 (1938)). Rather, it has been defined as "more than a mere scintilla.

16

It means such relevant evidence as a reasonable mind might accept as adequate." Ventura v.

Shalala, 55 F.3d 900,901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389,401
(1971)); see also Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
In determining whether substantial evidence supports the Commissioner's findings, the
court may not undertake a de novo review of the Commissioner's decision and may not re-weigh
the evidence of record. See Monsour, 806 F.2d at 1190. The court's review is limited to the
evidence that was actually presented to the ALJ. See Matthews v. Apfel, 239 F.3d 589, 593-95
(3d Cir. 2001). However, evidence that was not submitted to the ALJ can be considered by the
Appeals Council or the district court as a basis for remanding the matter to the Commissioner for
further proceedings, pursuant to the sixth sentence of 42 U.S.C. § 405(g). See Matthews, 239
F.3d at 592. Credibility determinations are the province of the ALJ, and should be disturbed on
review only if they are not supported by substantial evidence. Pysher v. Apfel, 2001 WL 793305,
at *2 (E.D. Pa. July 11, 2001) (citing Van Horn v. Schweiker, 717 F.2d 871, 973 (3d Cir. 1983)).
The Third Circuit has explained that:
[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.

Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
Thus, the inquiry is not whether the court would have made the same determination, but
rather, whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d
1211, 1213 (3d Cir. 1988). Even ifthe reviewing court would have decided the case differently,
it must give deference to the ALJ and affirm the Commissioner's decision if it is supported by
substantial evidence. See Monsour, 806 F .2d at 1190-91.

17

III.

DISCUSSION
A.

Disability Determination Process

Title II ofthe Social Security Act, 42 U.S.C. § 423(a)(l)(D), "provides for the payment
of insurance benefits to persons who have contributed to the program and who suffer from a
physical or mental disability." Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Title XVI of the
Social Security Act provides for the payment of disability benefits to indigent persons under the
SSI program. 42 U.S.C. § 1382(a). A "disability" is defined as the inability to do 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. See 42 U.S.C. § 423(d)(l)(A). A
claimant is 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." 42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20,
21-22 (2003).
In determining whether a person is disabled, the Commissioner is required to perform a
five-step sequential analysis. See 20 C.P.R.§ 404.1520; Plummer v. Apftl, 186 F.3d 422,427-28
(3d Cir. 1999). If a finding of disability or non-disability can be made at any point in the
sequential process, the Commissioner will not review the claim further. 20 C.P.R. §
404.1520(a)(4). At step one, the Commissioner must determine whether the claimant is engaged
in any substantial gainful activity. See 20 C.P.R.§ 404.1520(a)(4)(1) (mandating finding ofnondisability when claimant is engaged in substantial gainful activity). If the claimant is not
engaged in substantial gainful activity, step two requires the Commissioner to determine whether

18

the claimant is suffering from a severe impairment or a combination of impairments that is
severe. See 20 C.F.R. § 404.1520(a)(4)(ii) (mandating finding of non-disability when claimant's
impairments are not severe). lfthe claimant's impairments are severe, the Commissioner, at step
three, compares the claimant's impairments to a list of impairments that are presumed severe
enough to preclude any gainful work. See 20 C.F.R. § 404.1520(a)(4)(iii); Plummer, 186 F.3d at
428. When a claimant's impairment or its equivalent matches an impairment in the listing, the
claimant is presumed disabled. See 20 C.F.R. §§ 404.1520(a)(4)(iii). If a claimant's
impairment, either singly or in combination, fails to meet or medically equal any listing, the
analysis continues to steps four and five. See 20 C.F.R. § 404.1520(e).
At step four, the Commissioner determines whether the claimant retains the RFC to
perform his past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv) (stating that claimant is not
disabled if able to return to past relevant work); Plummer, 186 F.3d at 428. A claimant's RFC is
"that which an individual is still able to do despite the limitations caused by his or her
impairment(s)." Fargnoli v. Halter, 247 F.3d 34, 40 (3d Cir. 2001). "The claimant bears the
burden of demonstrating an inability to return to his past relevant work." Plummer, 186 F.3d at
428.
If the claimant is unable to return to his past relevant work, step five requires the
Commissioner to determine whether the claimant's impairments preclude him from adjusting to
any other available work. See 20 C.F.R. § 404.1520(g) (mandating a finding of non-disability
when a claimant can adjust to other work); Plummer, 186 F.3d at 428. At this last step, the
burden is on the Commissioner to show that the claimant is capable of performing other
available work before denying disability benefits. See Plummer, 186 F.3d at 428. In other
words, the Commissioner must prove that "there are other jobs existing in significant numbers in

19

the national economy which the claimant can perform, consistent with her medical impairments,
age, education, past work experience, and [RFC]." !d. In making this determination, the ALJ
must analyze the cumulative effect of all of the claimant's impairments. See id. At this step, the
ALJ often seeks the assistance of a vocational expert. See id.

B.

Plaintiff's Arguments on Appeal
1.

Sufficiency of the ALJ's RFC assessment

When determining a claimant's RFC, the ALJ must consider all relevant evidence.

Fargnoli, 247 F.3d at 41; see also 20 C.F.R. §§ 404.1527(e)(2), 404.1545(a), 404.1546. This
includes "medical records, observations made during formal medical examinations, descriptions
of limitations by the claimant and others, and observations of the claimant's limitations by
others." Fargnoli, 247 F.3d at 41. The ALJ must provide some explanation when she has
rejected relevant evidence or when there is conflicting probative evidence in the record. See

Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981). The court is "unable to conduct [its]
substantial evidence review if the ALJ fails to identify the evidence he or she rejects and the
reason for its rejection." Walton v. Halter, 243 F.3d 703, 710 (3d Cir. 2001). However, "the
ALJ is not required to supply a comprehensive explanation for the rejection of evidence; in most
cases, a sentence or short paragraph will probably suffice." Cotter v. Harris, 650 F.2d 481, 482
(3d Cir. 1981). Moreover, it is not for this court to reweigh the various medical opinions in the
record. See Monsour, 806 F.2d at 1190. Instead, the court's review is limited to determining if
there is substantial evidence to support the ALJ' s weighing of those opinions. !d.

(a)

Performing at a production pace

In support of his appeal, Kelly alleges that the ALJ erred by failing to consider the
functional limitations caused by Kelly's mental impairments, which were thoroughly

20

documented in Dr. Baker's treatment notes. (D.I. 20 at 5) According to Kelly, the ALJ's RFC
finding failed to account for the fact that Kelly is unable to work at an appropriate pace due to
his psychological impairments. (!d. at 6)
A careful reading of the hypothetical question shows that the ALJ accounted for Kelly's
inability to work at a production pace, and the VE incorporated this limitation into her analysis
of jobs that Kelly is capable of performing. Specifically, the ALJ included the limitation in her
hypothetical to the VE by expressly stating as follows:
Would there be any simple, unskilled or at a medium level of exertion such a
person could do that would also not be at a production pace, work that would not
be at a production pace? To me that means paid by the piece or working at an
assembly line, low stress work, defined as only occasional need to make changes
or to use judgment, and work that would only have occasional with co-workers
and the general public.
(D.I. 15 at 87) The ALJ further accounted for this limitation in her decision. After considering
and rejecting the proffered statements of Ms. Jones and Ms. Sievila, the ALJ noted that,
[a]lthough each opinion points out the claimant's difficulties with managing
construction jobs, the undersigned assigned low stress jobs, which would not be
performed at production pace, as part of the claimant's residual functional
capacity. In addition, the claimant was unsupervised at each of the jobs he
performed for Ms. Jones and Ms. Sievila. While working as a full time employee,
the claimant would have a supervisor, who would review his work activities and
insure [sic] that he remained on task. While Ms. Jones' and Ms. Sievila's
opinions are helpful in determining what can occur when the claimant attempts
jobs without supervision, they are not reflective of how the claimant can manage
his work requirements with appropriate supervision.
(!d. at 18-19) The ALJ did not neglect to consider the limitations stemming from Kelly's mental
impairments, as evidenced by the fact that she expressly included a limitation relating to Kelly's
inability to work at a production pace in her RFC finding after considering the record evidence
from Dr. Baker and Kelly's previous employers. The ALJ's hypothetical accurately conveyed
the disputed limitation relating to production pace as required by the Third Circuit. See

21

Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005).
(b)

Degenerative disc disease

Kelly further contends that the ALJ correctly identified Kelly's degenerative disc disease
as a severe impairment, but failed to include restrictions associated with his degenerative disc
disease in her RFC assessment and in the hypothetical posed to the VE. (Jd at 8) Specifically,
Kelly alleges that the ALJ erred by failing to impose restrictions on Kelly's ability to stoop,
bend, tum his head, or reach with his left arm. 4 (Jd at 9) According to Kelly, a finding that an
impairment is severe necessarily leads to an inclusion of limitations concerning the impairment
in the RFC assessment. (Jd at 8)
As a preliminary matter, "[i]n determining a claimant's RFC, the ALJ is only required to
include limitations credibly established by the evidence, not every limitation alleged." Scandone
v. Astrue, 2011 WL 3652476, at *11-12 (E.D. Pa. 2011) (concluding that the claimant's severe
impairment did not necessarily entitle her to an RFC assessment accounting for that impairment
if the ALJ concludes that no functional limitations stem from that impairment). Accordingly, a
finding of a severe impairment does not automatically lead to the inclusion of limitations
resulting from the severe impairment in the RFC assessment.
In the present matter, the court is unable to reach the substantial evidence inquiry because
the ALJ did not adequately explain why she discredited limitations that were medically
supported but were contradicted by other evidence in the record. See id (citing Dyson v. Astrue,
C.A. No. 09-3846,2010 WL 2640143, at* (E.D. Pa. June 30, 2010)). The ALJ acknowledged
that Dr. Freid's opinion regarding Kelly's degenerative disc disease conflicted with Dr.
Swaminathan' s opinion regarding the same condition. (D.I. 15 at 18) In concluding that no

4

Nothing m the record suggests that Kelly's ability to reach with his left arm 1s
22

limitations resulting from Kelly's degenerative disc disease were supported by the record, the
ALJ emphasized that no objective medical evidence supported Dr. Swaminathan's opinion. (!d)
However, Dr. Swaminathan conducted objective medical tests and determined that Kelly
experienced diffuse tenderness and his range of motion in his cervical and lumbar spine was
restricted. 5 (Jd at 256, 260); see Masher v. Astrue, 354 F. App'x 623, 626 (3d Cir. 2009)
("These complaints were consistent with the results of Dr. Togut's objective tests. For example,
range of motion in Masher's neck was reduced compared to April2004 .. .");Batts v. Barnhart,
2002 WL 32345745, at* 11 (E.D. Pa. Mar. 29, 2002) (observing that one doctor described
claimant's pain without documenting objective findings relating to the symptoms, such as
decreased range of motion, motor strength, and tenderness to palpitation). Most notably, Dr.
Swaminathan's objective medical testing revealed that Kelly had a limited range of motion in his
neck, a conclusion supported by Kelly's testimony during the hearing before the ALJ. 6 (Jd at
260)
In light of the fact that Dr. Swaminathan conducted objective medical tests to assess
Kelly's condition, the ALJ's reasoning that Dr. Swaminathan's opinion is unsupported by

compromised.
5
Dr. Swaminathan indicated the degree to which Kelly's range of motion extended for
each area of the lumbar and cervical spine. (Jd at 260) Dr. Freid completed a similar chart
using only slash marks, with no indication of the degree to which Kelly's range of motion
extended. (Id. at 188)
6
Kelly responded affirmatively to questions from the ALJ regarding whether he could
move his neck. However, his responses suggested that any motion in his neck was severely
limited:
ALJ: Can you turn your head from side to side?
Kelly: I can, well I get it so far this side, a little this way, but ALJ: Okay.
Kelly: -- you know. I can feel it. It cracks, it clicks on me.
ALJ: And can you look up and down?
Kelly: Yeah. I can look up and down if I use my eyes.
(D.I. 15 at 47)
23

objective medical evidence is flawed. The court is "unable to conduct [its] substantial evidence
review if the ALJ fails to identify the evidence he or she rejects and the reason for its rejection."
Walton v. Halter, 243 F.3d 703, 710 (3d Cir. 2001). Therefore, the court must remand the action
to the ALJ for a valid explanation of why the objective medical evidence on the record regarding
limitations stemming from Kelly's degenerative disc disease should be rejected.
(c)

Financiallimitations

Next, Kelly argues that the ALJ failed to account for the fact that Kelly's treatment of his
physical impairments was hampered by his financial situation, including his lack of health
insurance and his inability to qualify for free programs. (D.I. 20 at 9)
The authority cited by Kelly indicates that "the adjudicator must not draw any inferences
about an individual's symptoms and their functional effects from a failure to seek or pursue
regular medical treatment without first considering any explanations that the individual may
provide .... " SSR 96-7p, 1996 WL 374186, at *7-8; see also Newell v. Comm 'r ofSoc. Sec.,
347 F.3d 541, 547 (3d Cir. 2003) (addressing infrequency of claimant's medical visits). In the
present case, Kelly visited Dr. Chervenak on a regular basis over the course of several years, but
he only raised complaints about his back pain on two occasions in January 2002 and April2004.
(D.I. 15 at 286-87) Contrary to Kelly's contentions, he did not fail to seek regular medical
treatment due to his financial condition. Rather, he sought medical treatment on a regular basis
for a period of time, and during that time, only twice complained of back pain.
In the same vein, Kelly cites authority indicating that a claimant should not be penalized
for failure to undergo treatment that the claimant cannot afford. This authority is likewise
distinguishable from the facts of the present case. A claimant may refuse to accept prescribed
treatment if"[t]he individual is unable to afford prescribed treatment which he or she is willing

24

to accept, but for which free community resources are unavailable." SSR 82-59, 1982 WL
31384, at *4. In the present case, Dr. Chervenak told Kelly to perform exercises and instructed
him to use over-the-counter medications to alleviate his back pain. There is no evidence on the
record suggesting that Dr. Chervenak instructed Kelly to take prescription pain medication that
Kelly could not afford, nor is there evidence that Dr. Chervenak referred Kelly to a specialist or
ordered him to undergo medical tests. The authority cited by Kelly refers to a claimant's ability
to afford prescribed treatment, but no additional treatment was prescribed in this instance.
Therefore, the ALJ did not err in failing to account for Kelly's financial circumstances.
Within Kelly's argument regarding his financial condition, Kelly briefly raises a new
evidence argument, contending that his visit with Dr. Schellinger following the hearing before
the ALJ revealed advanced spondylosis, L5 marked intervertebral disc space narrowing,
extremely advanced degenerative arthritis, a goose neck deformity, and a positive rheumatoid
factor. (D.I. 20 at 11) According to Kelly, this evidence is based on objective medical testing,
and the results support Dr. Swaminathan' s opinion which was rejected by the ALJ.
If a plaintiff proffers evidence in the district court that was not previously presented to
the ALJ, then the district court may remand to the Commissioner pursuant to the sixth sentence
of§ 405(g) ("Sentence Six"). Matthews v. Apfol, 239 F.3d 589, 592 (3d Cir. 2001). Sentence
Six provides as follows:
The court may, on motion of the Commissioner of Social Security made for good
cause shown before the Commissioner files the Commissioner's answer, remand
the case to the Commissioner of Social Security for further action by the
Commissioner of Social Security, and it may at any time order additional
evidence to be taken before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there is good cause
for the failure to incorporate such evidence into the record in a prior proceeding;
and the Commissioner of Social Security shall, after the case is remanded, and
after hearing such additional evidence if so ordered, modify or affirm the
Commissioner's findings of fact and decision, and a transcript of the additional
25

record and testimony upon which the Commissioner's action in modifying or
affirming was based.
§ 405(g). When a plaintiff seeks to rely on evidence that was not before the ALJ, the district

court may remand the case to the Commissioner only if: (I) the evidence is new; (2) the evidence
is material; and (3) good cause exists as to why the evidence was not previously presented to the
ALJ. Matthews, 239 F.3d at 592; see also Szubak v. Sec. of Health & Human Servs., 745 F.2d
831, 833 (3d Cir. 1984). Where, as here, the Appeals Council receives the new evidence
following the ALJ's determination but denies review, the district court "is confined to review
evidence that was available to the [ALJ], and to determine whether the decision of the [ALJ] is
supported by substantial evidence." Wyatt v. Sec. of Health & Human Servs., 974 F.2d 680, 685
(6th Cir. 1993); see also Matthews, 239 F.3d at 590.
The purpose of the new evidence rule is to give the plaintiff an opportunity to present
new and material evidence for consideration by the Appeals Council in deciding whether to grant
review of the ALJ's decision. See Matthews, 239 F.3d at 594. This supports the policy of giving
the claimant ample opportunity to prove his or her disability. !d. However, "evidence that was
not before the ALJ cannot be used to argue that the ALJ' s decision was not supported by
substantial evidence." !d. (citing Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991)).
The district court has no statutory authority to review the Appeals Council decision to
deny review. !d. Instead, the Social Security Act gives the district court authority to remand the
case to the Commissioner if the plaintiff has shown good cause why such new and material
evidence was not presented to the ALJ. !d. A remand for "new evidence," without requiring
some justification for not having offered that evidence at the initial hearing, could "turn the
procedure into an informal, end-run method of appealing an adverse ruling by the Secretary."

Szubak, 745 F.2d at 834. The court may not consider the effect of the new evidence on the
26

substantiality of the evidence previously presented to the ALJ. Matthews, 239 F.3d at 594.
In keeping with Third Circuit precedent on this matter, I recommend that the court
decline to review or remand for consideration the additional evidence that Kelly submitted to the
Appeals Council. Kelly failed to show good cause for not presenting the evidence to the ALJ,
and has offered no explanation for why he did not attempt to obtain an evaluation from a spine
specialist at a time when it could be considered by the ALJ.

(d)

Reliance on out-of-date opinion

Finally, Kelly alleges that the ALJ erred in relying exclusively upon an out-of-date, nonexamining state agency opinion to support her RFC assessment. (D.I. 20 at 11) According to
Kelly, the opinion was rendered well before the record was complete, and it is inconsistent with
Dr. Swaminathan's more recent opinion following his physical examination ofKelly, which
revealed diffuse tenderness and decreased range of motion in the cervical spine, swelling of the
joints in his hands, decreased grip strength, positive left Tinel's sign, diffuse lumbar spine
tenderness, decreased lumbar lordosis, and terminally restricted range of motion. (!d. at 11-12)
Kelly cannot prevail on his argument that Dr. Freid's opinion is stale. The Third Circuit
has specifically noted that, "because state agency review precedes ALJ review, there is always
some time lapse between the consultant's report and the ALJ hearing and decision. The Social
Security regulations impose no limit on how much time may pass between a report and the ALJ' s
decision in reliance on it." Chandler v. Comm 'r ofSoc. Sec., 667 F.3d 356, 361 (3d Cir. 2012).
Dr. Freid issued his opinion on November 15, 2005. (D.I. 15 at 184) All ofthe relevant
treatment notes from Dr. Chervenak, Kelly's only treating physician for his back condition,
predate Dr. Freid's opinion. (!d. at 276-93) The record reflects that Kelly stopped treating with
Dr. Chervenak for his back pain after April2004, and Kelly's degenerative disc disease has gone

27

untreated since that time. (ld) In light of the fact that the Third Circuit imposes no limits on the
amount of time that passes between a non-treating physician's report and the ALJ's reliance on
it, the ALJ was not required to reject Dr. Freid's report based on its age.
This case is distinguishable from authority assessing the staleness of a consulting
physician's opinion because Dr. Chervenak's records do not suggest that Kelly's condition
progressed after Dr. Freid issued his report. Cf Foley v. Barnhart, 432 F. Supp. 2d 465, 476
(M.D. Pa. 2005). In the present case, there are no treatment notes in the record indicating that
Kelly's degenerative disc disease progressed after Dr. Freid's report was made.

2.

Treating physicians' opinions

The Third Circuit subscribes to the "treating physician doctrine." See Mason v. Shalala,
994 F.2d 1058, 1067 (3d Cir. 1993). Consistent with this rule, a treating physician's opinion is
accorded "controlling weight" if it is "well-supported by medically acceptable clinical and
laboratory diagnostic techniques and it is not inconsistent with the other substantial evidence in
the record." Fargnoli, 247 F.3d at 43. "A cardinal principle guiding disability eligibility
determinations is that the ALJ accord treating physicians' reports great weight, especially when
their opinions reflect expert judgment based on a continuing observation of the patient's
condition over a prolonged period oftime." Plummer, 186 F.3d at 429 (internal citation
omitted).
When there is medical evidence contradicting the treating physician's view, and an ALJ
decides to give controlling weight to the views of another physician, the ALJ must carefully
evaluate how much weight to accord the treating physician. See Gonzalez, 537 F. Supp. 2d at
660. If the ALJ rejects the treating physician's assessment, she may not make "speculative
inferences from medical reports" and may reject "a treating physician's opinion outright only on

28

the basis of contradictory medical evidence." Plummer, 186 F.3d at 429. The ALJ "may choose
whom to credit, but cannot reject evidence for no reason or the wrong reason." Id (citation
omitted). If a treating physician's opinion is not given controlling weight, the ALJ should
consider numerous factors in determining the weight to give it, including:
(1) the examining relationship -more weight is given to the opinion of a source
that has examined a plaintiff as compared to a source that has not; (2) the length,
nature and extent of the treatment relationship- more weight is given to the
opinion of treating sources since these professionals are most able to provide a
detailed and longitudinal picture of a plaintiffs medical history; (3) the
supportability of the opinion- more weight is given to opinions that are well
explained and supported with clinical or diagnostic findings; (4) the consistency
of the opinion - more weight is given to opinions that are more consistent with
the record as a whole; (5) specialization- opinions of specialists are given more
weight; and (6) other factors which tend to support or contradict an opinion.

Conn v. Astrue, 852 F. Supp. 2d 517,525-26 (D. Del. 2012) (citing 20 C.F.R. § 404.1527(d)).
Further, when the ALJ's decision is to deny benefits, the notice ofthe determination must:
contain specific reasons for the weight given to the treating source's medical
opinion, supported by substantial evidence in the case record and must be
sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave the treating source's medical opinion and the reasons for that
weight.
S.S.R. 96-2p, 1996 WL 374188, at *5.
Kelly argues that the ALJ failed to give controlling weight to his treating physicians, in
violation of the treating physician rule. (D .I. 20 at 12-15) According to Kelly, the ALJ
improperly rejected the opinions of Dr. Baker and Dr. Chervenak despite the fact that their
opinions are supported by their contemporaneous office notes and the record as a whole. (D.I.
20 at 13) Specifically, Kelly alleges that the ALJ violated her obligations by neglecting to
recontact Kelly's treating physicians to obtain additional information necessary to her disability
determination. (Id at 14)
It is the ALJ's duty to ensure that the administrative record is fully developed. See 20
29

C.F.R. § 404.1512(e)(l)/ see also Rutherfordv. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005);

Ventura v. Shalala, 55 F .3d 900, 902 (3d Cir. 1995) (concluding that ALJ failed to ensure record
was fully developed where treating physician's treatment notes were illegible). Specifically, an
ALJ has a duty to recontact a treating medical source to clarify the record if the report: ( 1)
contains a conflict or ambiguity that must be resolved, (2) does not contain all the necessary
information, or (3) does not appear to be based on medically acceptable clinical and laboratory
diagnostic techniques. 20 C.F.R. § 404.1512(e)(1); see also Johnson v. Comm'r ofSoc. Sec., 529
F.3d 198, 205 (3d Cir. 2008). If the record is not adequately developed, remand for further
proceedings is appropriate. Rutherford, 399 F.3d at 557. The ALJ is only required to recontact a
medical source if the evidence is insufficient for the ALJ to make a decision. 20 C.F.R. §
404.1512(e).
In the present matter, the ALJ concluded that Dr. Chervenak's opinion was inadequate to
determine whether Kelly was disabled because the opinion was unsigned and undated. (D.I. 15
at 22) To the extent that the ALJ determined that the signature and date were necessary to her
consideration of Dr. Chervenak's opinion, the ALJ had a duty to follow up with Dr. Chervenak
to obtain the information. The ALJ erred by failing to follow up on the inadequacies in the
information provided. See Johnson v. Comm 'r ofSoc. Sec., 529 F.3d 198,205 (3d Cir. 2008).
However, the ALl's conclusion that Dr. Baker's opinion was not consistent with either
Dr. Chester's conclusions or Dr. Baker's own treatment notes did not give rise to a duty to
recontact Dr. Baker. "[T]he regulation makes clear that the ALJ only need re-contact the

7

The Social Security Administration eliminated §§ 404.1512(e)(l) and 416.912(e)(l),
effective March 26, 2012. See generally How We Collect and Consider Evidence of Disability,
77 Fed. Reg. 10,651 (Feb. 23, 2012). The new protocol for recontacting medical sources is set
forth in 20 C.F.R. §§ 404.1520b and 416.920b. See Gray v. Astrue, C.A. No. 10-507, 2012 WL
1521259, at *3 n.l (E.D. Pa. May 1, 2012). Because this case arose prior to March 26, 2012, I
30

medical source when the evidence received from the medical source is inadequate to determine
whether or not the claimant is disabled," not because the ALJ finds the doctor's opinion
inconsistent with the claimant's medical records. Ellow v. Astrue, 2013 WL 159919, at *8 (E.D.
Pa. Jan. 15, 2013) (quoting Becker v. Barnhart, 2005 WL 747047, at *5 (E.D. Pa. Apr. 1, 2005)).
"[M]ost cases in this circuit have concluded that 'notwithstanding the deficiencies of a treating
physician's opinion, the evidence on record remained adequate to reach a disability
determination."' Thurman v. Barnhart, 2007 WL 2728656, at *7 (E.D. Pa. Sept. 18, 2007)
(concluding that ALJ was not obligated to recontact treating physician to request an explanation
of the inconsistency between his observations and his assessment).
Even if the ALJ had requested and obtained the additional information that she deemed
necessary to reaching a disability determination, the ALJ failed to apply the required factors in
deciding how much weight to accord a non-controlling treating physician's opinion.
These factors include the treatment relationship, length of relationship, frequency of
examination, nature and extent of the treatment relationship, supportability of the opinion
afforded by the medical evidence, consistency of the opinion with the record as a whole, and
specialization ofthe treating physician. Gonzalez, 537 F. Supp. 2d at 661; see 20 C.P.R.§
404.1527(d)(2)-(6). The ALJ did not indicate that any of these factors played a role in her
decision to assign little weight to the opinions of Dr. Chervenak and Dr. Baker.
Accordingly, I recommend that the court remand the case to the Commissioner.

IV.

ORDER AND RECOMMENDED DISPOSITION
For the reasons stated above, I recommend that the court grant Kelly's motion for

summary judgment (D.I. 19), deny the Commissioner's motion for summary judgment (D.I. 23),

apply the prior version.
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and remand the matter for further analysis not inconsistent with this recommendation.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b). The failure of a party to object to legal conclusions may result in the loss
ofthe right to de novo review in the district court. See Henderson v. Carlson, 812 F.2d 874,
878-79 (3d Cir. 1987); Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1 (3d Cir. 2006). The
objections and responses to the objections are limited to ten (1 0) pages each.
The parties are directed to the court's Standing Order In Non Pro Se Matters For
Objections Filed Under Fed. R. Civ. P. 72, dated November 16, 2009, a copy of which is
available on the court's website, www.ded.uscourts.gov.

Dated: September 18, 2013
Sherry R.'Fall n

UNIT~A ES MAGISTRATE JUDGE

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