Sayers v. Astrue

Filing 31

MEMORANDUM. Signed by Judge Gregory M. Sleet on 9/10/12. (dzb, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

DAVID K. SAYERS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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) Civil Action No. 09-849-GMS
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MEMORANDUM
I.

INTRODUCTION
The plaintiff David K. Sayers ("Sayers"), who appears pro se, appeals the decision of

Michael J. Astrue, Commissioner of Social Security ("Commissioner"), denying his claim for
disability insurance benefits ("DIB") prior to September 19,2008, under Title II of the Social
Security Act, 42 U.S.C. §§ 401-433. The parties have filed cross-motions for summary
judgment. (D.1. 25, 27.) The court has jurisdiction pursuant to 42 U.S.C. § 405(g).1
Sayers applied for DIB in December 2005, alleging disability as of July 22, 2004, due to
back, neck, knee, and shoulder impairments. (D.!. 21, Tr. 118-123.) His initial application was
denied on July 31, 2006, and a request for reconsideration was denied on June 1, 2007. (Id at
82-86, 89-93.)

lUnder § 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).

Thereafter, Sayers requested a hearing, which took place before an administrative law
judge ("ALI") on February 23, 2009. Counsel represented Sayers at the hearing, and Sayers and
a vocational expert ("VE") testified. (Id at 34-76.) The ALJ found that Sayers was disabled
beginning on September 19,2008, his 55 th birthday, but was not disabled prior to his 55th
birthday. (Id at 31-31, ~ 11.) Sayers sought review by the Appeals Council, and it was denied
on August 21,2009. (Id at 1-3.) On October 8, 2009, while represented by counsel, Sayers filed
the instant action for review of the final decision as to the finding of the date that he first became
disabled. (0.1.1.) Sayers now proceeds pro se.

II.

BACKGROUND
Sayers was born on September 19, 1953. (0.1.21, Tr. 39.) He is a high school graduate

with past work experience as a Canine Unit Supervisor for the Maryland Department of
Correction where he last worked on July 22, 2004. On that date, he was injured when he slipped
and fell down concrete steps at work. He received medical treatment and was discharged in
stable condition with a plan to contact an orthopedic surgeon. (ld at 40, 144, 149,233,235-36.)

A.

Medical Evidence

As a result of the July 22, 2004 fall, Sayers sustained a closed head injury, a wrist
fracture, and a right knee sprain. (0.1.21, Tr. 233, 235.) Sayers began treating with orthopedist
Richard Kang, M.D. ("Dr. Kang") on July 28, 2004, for neck pain, low back pain, right shoulder
pain, right wrist pain, and right knee pain. (ld at 246.) On that date, Dr. Kang wrote Sayers a
prescription for a cane. (ld at 247.) Sayers was assessed as having cervical and lumbar spine
strain. (Id at 248.) In August 2004, Dr. Kang referred Sayers to neurologist Richard E. Bird,
M.D. ("Dr. Bird") to evaluate Sayers' closed head injury. (ld at 238.) Dr. Bird opined that the

2

fall resulted in a concussion and that Sayers would need physical therapy for his neck and back.
(Id at 238- 239.) By early October 2004, Dr. Kang observed that Sayers was slowly improving.
(Id at 243,245.) Sayers had complaints of pain, rating it as a five out often. (Id at 245.)

Because Dr. Kang no longer accepted workers' compensation cases, Sayers was advised to
continue his case with a different physician. At the last visit on October 6, 2004, Dr. Kang
assessed Sayers with persistent right knee pain, possible medial meniscal tear; cervical
sprain/strain, still significantly painful but improving with therapy; lumbar sprain/strain with
persistent pain, also improving slowly with therapy; right wrist pain, nearly resolved; and
multiple neurologic and psychiatric issues. (Id at 243.)
In October 2004, Sayers presented to orthopedist Jeffrey S. Cuomo, M.D., ("Dr. Cuomo")
with significant complaints of pain in his right knee and right shoulder. (D.I. 21, Tr. 333.) Dr.
Cuomo assessed Sayers as having an intraarticular right knee injury, and ordered an MRl. (Id. at
334, 525-26.) In addition, Dr. Cuomo had Sayers follow-up with neurologist Dr. Julius Zant
("Dr. Zant") for a workup and evaluation of persistent cervical spine pain. (Id) Sayers received
conservative treatment of the right shoulder through physical therapy. (Id. at 331.)
Dr. Zant treated Sayers for cervical and lumbar spine issues in December 2004 and
assessed him as having "mostly mechanical pain," with no tract long signs or root signs on
examination. (D.I. 21, Tr. 277.) Dr. Zant ordered an x-ray of the lumbar spine that revealed mild
to moderate degenerative disc disease and degenerative joint disease changes. (/d at 275,282.)
The x-ray suggested a compression fracture at L4. (Id at 275.) Dr. Zant sought an evaluation by
neurologist Peter R. Sebastian, D.O. ("Dr. Sebastian"). (/d.)

3

In December 2004, Dr. Cuomo surgically repaired Sayers' tom right knee meniscus
through arthroscopy surgery. (Id. at 271-73,330.) Three weeks following knee surgery, Sayers
had good range of motion, although he still had some pain and a limp using the lower extremity.

(ld. at 329,521.) Dr. Cuomo reported that Sayers' shoulder was "markedly improved" following
physical therapy; however, overhead positioning of his arm still caused some pain and difficulty.

(ld.) As of February 7, 2005, Dr. Cuomo reported that Sayers was making progress with regard
to the quadriceps muscle, and he wrote a prescription for physical therapy. (Id. at 328,520.)
Sayers saw Dr. Sebastian on January 25,2005. (D.I. 21, Tr. 312, 314, 320.) Dr.
Sebastian assessed Sayers with unresolved mechanical dysfunctions of the lower cervical and
upper thoracic region, restricted in his right shoulder, a vertebral fracture, and right knee issues.

(ld. at Tr. 313.) At the January 25 th visit, Dr. Sebastian completed a "disability certificate"
stating that Sayers was "totally incapacitated" from January 25, 2005 through March 1,2005.

(ld. at 311, 323.) Dr. Sebastian prescribed therapy to include treatment for lower back with
gentle manual techniques. (ld.) Sayers received physical therapy for an eight week period, twice
a week. (ld. at 291-310.) He made complaints of pain at each session. (ld.)
Sayers was seen by Dr. Sebastian on February 1,4, and 17,2005. (D.!. 21, Tr. 536-38.)
On February 17,2005, Dr. Sebastian opined that Sayers would be unable to perform his past
work as a correctional officer, and he doubted Sayers would be able to perform heavy lifting or
be involved with physically restraining inmates? (ld. at 532-535.) As of May 20, 2005, Dr.
Sebastian had seen Sayers a total of seven visits. In his May 23, 2005 Physician's Medical

2In March 2005, Sayer was referred to Dr. Eugene K. Sawyer ("Dr. Sawyer") for a
"workability evaluation." (D.I. 21, Tr. 286-90). Dr. Sawyer concluded that Sayers was unable to
return to work and safely perform his essential job duties as a correctional officer. (Id. at 289.)
4

Report Dr. Sebastian wrote under prognosis, "doubt further significant improvement. will not
return to corrections office duty capabilities." (ld. at 319.)
When Sayers saw Dr. Cuomo on March 11,2005, he relayed overall "his pain to be
improved," but he had significant back pain. (ld. at 327, 519.) Dr. Cuomo noted that Sayers was
making steady improvement and that the swelling and pain were secondary to knee arthritis. (Id.)
On April 8, 2005, Sayers stated that he felt he was making improvement. (Id. at 326,518.) His
quadriceps strength was returning although still decreased, and he had good range of motion.
(ld.) Dr. Cuomo reported, "I think he is making favorable improvement and progress" ...

however, I feel if his pain continues he would be a good candidate for a Synvisc series of
injections. (ld.)
Alon Davis, M.D. ("Dr. Davis") is Sayers' primary care physician. Sayers presented to
Dr. Davis in January 2006 with complaints of chronic back pain. (D.!. 21, Tr. 449.)
Musculoskeletal examination revealed myalgia, back pain, and decreased range of motion of the
back. (ld) Sayers was referred to physical therapy. (Id) In late February 2006, Dr. Davis
referred Sayers to an orthopedist. (Id at 448.) In early April 2006, Sayers complained of
worsening back and knee pain. (Id. at 447.) Dr. Davis found that Sayers was unable to stay in a
sitting or standing position for twenty minutes, he had decreased range of motion in the neck,
decreased flexion in the lumbar region, and knee, back, and neck pain. (Id) Sayers continued to
complain of back pain in late April 2006. (ld. at 446.) Dr. Davis reviewed the MRIs of Sayers'
back and neck and referred him for physical therapy. (Jd)
In April 2006, Sayers returned to Dr. Cuomo for follow-up and presented with a recent
increase of an achy pain with prolonged standing and high levels of activity. (Id at 325,517.)
5

Dr. Cuomo indicated that the symptoms were related to degenerative changes. (Id.) Sayers
received a steroid injection into his right knee for pain relief. (Jd.) On June 30, 2006, Sayers
received the first ofthree Synvisc injections for his knee, the last one on July 14,2006. (Id. at
514-16.)
Sayers was first seen by pain specialist Dr. Thomas Rosenthal, M.D. ("Dr. Rosenthal") in
May 2006. Treatment for neck and low back pain consisted of a series of epidural steroid
injections that Sayers received in May, June, July, and August 2006. (D.1. 21, Tr. 365, 367-68,
373-74.)
On June 23, 2006, Sayers underwent a consultative physical examination by Kartik
Swanithan, M.D., ("Dr. Swanithan") at the request of the Delaware state agency. (D.1. 21, Tr.
350-52.) Sayers related that he had severe neck pain, chronic low back pain, right knee pain, and
used a TENS unit. (Jd. at 350.) Sayers indicated that he was unable to sit, stand, squat, go up
and down steps or stand for prolonged periods of time or walk for prolonged periods of time. He
was not able to lift anything greater than ten to fifteen pounds. (Id.) Dr. Swanithan's impression
was that Sayers had cervical facet arthropathy; cervical radiculopathy with clinical evidence for a
C5-C6 radiculopathy, lumbar facet arthrophy, and lumbar radiculopathy; internal derangement of
the knee with MRI positive for degenerative changes, complex tear of right medial meniscus and
sprain of the medial collateral ligaments; evidence for right shoulder rotator cuff tendinitis with
MRI positive acrominoplasty and tendinopathy. (Id. at 351-52.) Dr. Swanithan noted that Sayers
used a cane, walked with a broad-based gait with poor balance, and had some loss of balance
with closing his eyes. (Id. at 352.)

6

State agency medical consultant, Richard D. Carter, M.D. ("Dr. Carter"), reviewed
Sayers' medical evidence in July 2006, completed a residual functional capacity ("RFC")
assessment, and opined that Sayer retained the capacity to occasionally lift twenty pounds,
frequently lift ten pounds, stand and/or walk about six hours in an eight hour workday, sit about
six hours in an eight hour workday, engaged in unlimited push and/or pull, with postural
limitations of occasional climbing of stairs or ramps, balancing, stooping, kneeling, crouching,
and crawling, but no climbing ladders/ropes/scaffolds. (D.1. 21, Tr. 356-63.) Dr. Carter did not
have a treating or examining source statement regarding Sayers' physical capacities in the file.

(Id at 362.) Dr. Carter relied upon the consultative physical examination performed by Dr.
Swanithan, medical notes from Dr. Rosenthal, Dr. Davis, and AquaCare, as well as MRl reports
that were available to him at the time. (Id at 363.) The RFC findings were affirmed upon
reconsideration. (Id at 502.)
During a follow-up visit with Dr. Davis in late August 2006, Sayers' examination
indicated back, joint, and knee pain. (Id at 445.) Dr. Davis and Sayers discussed his back pain
and treatment with medications, physical therapy, and epidurals. (Jd) At this visit, Dr. Davis
completed a medical assessment report and stated that Sayers did not have the capacity to be on
his feet for prolonged periods oftime; did not have the strength and endurance necessary to
perform on a sustained, regular, and continuous basis the lifting of objects weighing a maximum
of 20 pounds to frequently lift and carry objects weighing up to 10 pounds; and that the intensity
and duration of Sayers' symptoms, along with any side-effects of his medications, would cause
substantial restrictions in his capacity for sustained mental alertness, concentration, and

7

persistence in carrying out simple job duties in a competitive work environment over a regular
eight hour workday. (Id at 505-06.)
Sayers presented to Dr. Rosenthal on August 23, 2006 and at that time indicated that his
pain was five out often. (ld. at 365.) Sayers advised Dr. Rosenthal that his pain was somewhat
improved with the series of injections, but that he had pain with activity, any prolonged sitting, or
standing. (Id) Sayers had been prescribed a TENS unit, and when he saw Dr. Davis on
September 28, 2006, he related that the TENS unit and physical therapy were helping with the
pam. (ld at 444.) On that date, Sayers rated his pain as a five out often. (Id)
As of March 2007, Sayers exhibited an "excellent prognosis" at the time of discharge
"from skilled rehabilitative therapy in conjunction with a home exercise program." (Id at 460.)
No objective measurements were taken on that day. Sayers' complaints of knee pain of "current
severity" of two out often and "severity at worst" of seven out often, had decreased to zero and
one, respectively, by March 12,2007. (Id at 460.) In addition, Sayers' complaints of spine pain
of "current severity" of four out of ten and "severity at worst" of nine out of ten, had decreased to
zero and one, respectively.3 (ld)
In 2007, Dr. Davis saw Sayers in January, June, July, August, and October. (Id at 443,
556-57,559,561-62.) In January 2007, Sayers complained of back and right knee pain. (Id at
443.) In mid-June 2007, Sayers presented to Dr. Davis and advised that he had fallen at home

3Sayers received physical therapy for his right shoulder, right knee, low back, and neck on
numerous occasions in 2004 through 2007. (D.L 21, Tr. 375-437,459-501.) September 26,
2006 notes states that Sayers' pain of the lower back and neck was four out often and that the
pain was aggravated as follows: sit/stand for long period of time, bending activities, tying shoes,
lifting, running, driving for periods. (Id at 378.) When Sayers was evaluated on October 25,
2006, he had loss of range and motion in the spine and he experienced pain with all range of
motion. (ld at 379.)
8

and had worsening back pain. (Id. at 562). Sayers reported that physical therapy was "helping
generally." (Id.) The following month, Sayers reported to Dr. Davis that medication was helping
and that his pain was a five on a scale often. (Jd. at 561.) He had back pain, spasms, and
decreased flexion. (Jd.) In mid-August 2007, Sayers saw Dr. Davis regarding his back pain and
reported that physical therapy traction was helping. (Id. at 559.) He continued to use a cane, had
joint swelling and joint pain. (Id.) During Sayers' October 2007, he reported his pain as five on
a scale up to ten; worse with activity. (D.L 21, Tr. 557.) For treatment, Sayers used a TENS
unit, a hot tub, and was taking medication, which he reported was helping. (Id.) Sayers
continued with use of a cane. (Jd.)
Sayers saw Dr. Cuomo on November 14,2007, and he complained of increasing knee
pain. (Jd. at 513.) Upon examination there was significant low back discomfort. (Jd.) Dr.
Cuomo's notes state that Sayers had a "favorable response" to Synvisc. (Id.) Sayers underwent a
series of three Synvisc injections beginning on December 4, 2007. (Id. at 510-11.) In February
2008, Sayers reported to Dr. Cuomo that the injections "significantly helped his symptoms,"
although he still has some medial sided pain. (Jd. at 509.) Upon examination, there was a lot of
pain involving the lumbar spine and a radicular component radiating down the right leg. (Id.)
When Sayers saw Dr. Rosenthal in April 2008, he indicated that he had done "relatively
well for about a year." (Id. at 579). Dr. Rosenthal's notes indicate that Sayers had a good
response to previous injections and used a TENS unit, as well as two traction devices for his
cervical spine issues. (Jd.) Dr. Rosenthal administered another epidural steroid injection on May
8, 2008. (Id. at 578.)

9

Sayers presented for follow-up with Dr. Davis in mid-April 2008 regarding his chronic
back and neck pain. (Id. at 555.) In addition, Sayers complained of right arm pain, which Dr.
Davis assessed as medial epicondylitis. (Id.) Dr. Davis examined Sayers on October 2, 2008,
and his impression was chronic pain syndrome and degenerative joint disease. (Id. at 554.)
Sayers saw Dr. Sebastian in October 2008 for a left elbow consultation. (D.1. 21, Tr. 530­

31.) At this time, Sayers' medications included Ultram and Skelaxin, as needed, and Lyrica, with
an occasional anti-inflammatory drug such as Aleve. (Id. at 530.) Upon examination, Dr.
Sebastian concluded that there was a "significant arthritic change" in the left elbow. His plan
was to refer Sayers to Dr. Cuomo for a surgical consultation. His impression was that Sayers had
continuing issues with pain and restriction in his right shoulder and upper back. (Id. at 531.)
Sayers presented to Dr. Cuomo in October 2008, with complaints of left elbow pain. (Id. at 507.)
An x-ray revealed significant degenerative changes in the elbow joint and Dr. Cuomo
recommended surgery.4 (Id. at 507-08.)
Drs. Sebastian, Cuomo, and Davis each completed their own Medical Assessment Report
in December 2008 and January 2009. Dr. Sebastian had last seen Sayers on December 17,2008,
Dr. Cuomo had last seen Sayers on October 22,2008, and Dr. Davis had last seen Sayers on
October 2,2008. 5 They each independently concluded that Sayers did not have the capacity to be
on his feet for prolonged periods of time; did not have the strength and endurance necessary to

4Throughout his treatment Sayers underwent various diagnostic studies, including MRis
of the right shoulder, right knee, lumbar spine, and cervical spine; an x-ray of the lumbar spine
and x-rays of the cervical spine, lumbar spine, and left elbow. (D.l. 21, Tr. 282-84, 337-38, 344­
46,348-349,454-56,5528,564-65).
5Sayers turned 55 on September 19,2008. The ALJ factored in his advanced age in
finding disability as of the date he turned 55.
10

perform, on a sustained, regular, and continue basis, the lifting of objects weighing a maximum
of 20 pounds to frequently lift and carry objects weighing up to 10 pounds; and that the intensity
and duration of Sayers' symptoms, along with any side-effects of his medications, would cause
substantial restrictions in his capacity for sustained mental alertness, concentration, and
persistence in carrying out simple job duties in a competitive work environment over a regular 8
hour workday. (Id. at 541-42,543-44,547-48.)
Dr. Sebastian diagnosed arthritis of the left elbow, bilateral hip, spine, right knee, right
should restrictions, compression fracture with multiple areas of pain, restricted movement, very
limited activity tolerance, depression. (D.1. 21, Tr. 541.) Dr. Cuomo listed Sayers' diagnoses as
osteoarthritis of the forearm and osteoarthritis localized in the right knee, and opined that Sayers'
functioning precluded his ability to work. (Id. at 547-48.) Dr. Cuomo stated that Sayers has
significant degenerative changes in the right knee, documented by x-ray, MRI, and surgical
arthroscopy. (Jd. ) On examination he has shoulder pain, requires a cane to ambulate and has an
arthritic left elbow with a limited range of motion. (/d.)
Dr. Davis diagnosed chronic pain syndrome of the cervical and lumbar spine, left elbow
pain with severe arthritic changes, a compression fracture at L4, and a right meniscal tear. (Id. at
543.) He assessed functional limitations that would preclude work. (Jd. at 544-46.) Dr. Davis
stated that Sayers required a cane to assist in ambulation, had chronic back pain that resulted in
change of positions frequently, was limited in lifting and carrying with the left arm, had limited
ambulation, had progressive and severe degenerative joint disease in the left elbow and in
multiple vertebrae, and had limited improvement with physical therapy and steroid epidurals
administered by Dr. Rosenthal. (Id. at 544-45, 566.)
11

B.

February 23, 2009 Administrative Hearing
1.

Sayers' testimony

Sayers was represented by counsel and testified at the hearing that the impairments
precluding his ability to work include constant severe pain in his neck, lower back, right knee,
and left elbow, as well as arthritis in his hands. (D.I. 21, at 43,52.) The neck pain radiates into
his left shoulder and arm "on a daily basis all day long." (Id. at 44.) He described the pain as
constant at six or seven on a scale of one to ten. (Id. at 45.) Treatment provides temporary relief,
and he can function somewhat better. (Id. at 46.) At the time of the hearing, Sayers was
receiving treatment for his neck. (Id. at 44.)
In addition, Sayers continues with treatment for his back. At the time of the hearing, he
has just finished "a run of physical therapy." (Id. at 46.) Sayers has back pain on a daily basis.
The pain in his back is relatively constant and radiates down the right buttocks and into the right
leg. (Id. at 47.) The pain worsens depending on what Sayers is doing. (Id.) In addition, he has
stiffness and back spasms. (Id.) The back pain is from six to eight on a scale of one to ten. (Id.
at 48.) Sayers receives epidural injections in his neck and back that provide temporary relief.
(Id. at 48.) The relief may last a week up to a couple of months. (Id. at 65.)

Sayers had arthroscopy performed on his right knee and has received two rounds of
Synvisc injections. (Id. at 48.) The injections help to alleviate a constant throb, providing Sayers
does not "overdo it." (Id. at 48.) Sayers controls the knee pain by limiting his activity. (Id. at
49.) The knee pain stays around a five or six on a scale of one to ten. (Id.) Sayers testified that
treatment has stabilized the knee. (Id.)

12

Sayers also has left elbow pain. (Id. at 50.) The elbow is arthritic and the condition is
progressive. (Id. at 51.) Sayers engaged in physical therapy for the condition in the latter part of
2008. (Id.) Surgery has been recommended for the condition. (Id.) Sayers testified that he has
severe arthritis in his hands and problems with his shoulder. (Id. at 52.) Finally, he testified that
he suffers from depression. (Id. at 54.)
Sayers takes quite a bid of medication. (Id. at 44.) The medication causes lethargy and
affects his short-term memory. (Id. at 55.) Sayers has purchased different therapeutic devices for
use at home, and they provide temporary relief. (Id. at 55-56.) Sayers walks with a cane that was
prescribed by a physician.6 (Id. at 50.)
It is difficult for Sayers to sit leaning over a table for any length of time. (Id. at 53.) He

can walk 100 to 150 yards and that would take him about five minutes. (Id. at 56-57.) He no
longer uses stairs. (Id. at 57.) He can stand for 30 to 40 minutes and sit for 30 to 40 minutes
until he has to get up, move, and change positions. 7 (Id.) Sayers testified that he had a driver's
license and is only able to drive short distances from five to ten minutes. (Id. at 40,62.) Sayers
testified that he does not do any grass cutting. 8 (Id. at 62.)

6Dr. Davis, a family practice physician, is Sayers' primary care physician. CD.!. 21, Tr.
67.) Sayers has been a patient of Dr. Davis for at least fifteen years. (Id.) Sayers also sees the
following physicians on a regular basis: Dr. Sebastian, Dr. Cuomo, and Dr. Rosenthal. (Id. at
68-69.)
7The ALJ found that the medical record reflected that Sayers was able to mow the lawn,
bend, lift, run, drive, and sit and stand for moderate periods. (D.!. 21, Tr. 24.) She based this
upon physical therapy records that stated Sayers' pain was aggravated by sitting or standing for
long periods of time, bending, lifting, running or driving for long periods, even though the
medical records do not indicate that he actually performed many of those activities. (Id. at 18.)
8During physical therapy, Sayers indicated that he had received a TENS that had helped
with activities such as mowing the lawn. (D.I. 21, Tr. 378.) Sayers indicated in a physical
13

Sayers has not tried to lift anything that weighs more than "just a couple of pounds." (Id.)
He has difficulty bending and kneeling. (Id. at 58.) On a typical day he spends three to four
hours lying down. (Id. at 70.) Over the past two years he has suffered two falls. (Id.) He sleeps
no more than two to three hours at any given time. (Id. at 59.)
He is able to perform personal hygiene, but needs assistance from his spouse for anything
that requires bending over. (Id. at 60.) He does not perform any household chores, do the
laundry, or grocery shopping. (Id. at 61.) His day consists mostly of sitting around.9 (Jd. at 64.)
He has a little dog that keeps him company, but his wife takes care of the dog. JO (Jd.)

2.

The Vocational Expert

Following Sayers' testimony, the ALJ consulted the VB. The VE classified Sayers' prior
relevant work (correctional officer supervisor) as semi skilled and of a medium exertionallevel.
The VE identified no transferable skills from this work history.
The ALJ then asked the VE to consider two hypothetical questions. The first
hypothetical, asked by the ALJ was as follows:

activities questionnaire, dated March 27, 2006, that he could ride his lawn tractor for
approximately thirty minutes at a time, but needs to take frequent breaks, it is not comfortable
and causes increased discomfort for a few days afterwards. (Id. at 178, 181.) The ALJ stated
that the medical record as a whole reflects that Sayers was able to mow the lawn.
9The ALJ found that Sayers' testimony was not consistent with his reported abilities in
the medical record. (Jd. at 24.) She noted that Sayers' testimony occurred in February 2009,
"which apparently reflected his most recent fimctional status and not his fimctional status prior to
September 19,2008." (Id. at 24-25.) Neither the ALJ, nor Sayers' counsel, elicited testimony
from Sayers specifically directed to his functional abilities for the time period prior to September
19,2008.
lOThe ALJ incorrectly stated that Sayers cared for the pet. (Id. at 21.)
14

We'll be talking now about a hypothetical person who is the claimant's stated age
at onset. That would be 50 years of age. Has a twelfth grade education and work
history that you just talked about. There are certain underlying impairments that
place limitations on the ability to do work related activities. We'll start at a light
level of exertion. II Posturals are all occasional but no climbing of a ladder, a rope
or a scaffold. This person should avoid working overhead and environmentally
should avoid concentrated exposure to extreme cold, wetness or humidity as well
as hazards defined as moving machinery or heights. Handling, fingering would be
frequent rather than constant and due to pain and medication side effects, although
this person has a semiskilled work background, he would be limited to simple,
unskilled work .... Would there be any simple, unskilled work such a person
could do in the regional or national economy that would fit within the parameters
of the hypothetical. Maybe several at light, several at sedentary,12 if you can.
(D.I. 21, Tr. 71-72.) In response, VE explained that this hypothetical individual would be able to
perform the representative jobs of gate tender and library clerk at the light level of exertion and
the position of dispatcher routing clerk at the sedentary level and that these jobs exist in
significant numbers in the local and national economies. (Id at 72.) When the ALJ added the
limitation that the hypothetical individual ambulated with the use of a cane, the VE eliminated
the job of gate tender and substituted light, unskilled position of a copier operator. (Id at 73.)

I I Light work is defined in the Social Security Regulation as follows: (b) Light work
involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time. 20 C.F.R. § 404.1 567(b).

12Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met. 20 C.F.R. § 404. 1567(a).
15

Counsel for Sayers asked the VE to add to the original hypothetical that the individual
would be: (1) unable to maintain a mental alertness, concentration, persistence in carrying out
even simple job duties; (2) medically anticipated to be absent from work at least thirty days out
of a year on an unscheduled basis; or (3) required to lie down at least four hours out of an eight
hour day. The VE opined that these factors would negate all positions proffered in the two
hypothetical questions. (ld at 74.)

C.

The ALJ's Findings

Based on the factual evidence and the testimony of Sayers and the VE, the ALJ
determined that Sayers was disabled beginning September 19,2008. (D.1. 21, Tr. 13-33.) The
ALJ found that Sayers was not disabled prior to September 19, 2008, and, therefore, was not
eligible for DIB beginning on July 22, 2004 and ending on September 18, 2008. (ld.) The
ALJ's findings are summarized as follows: 13
1. The claimant met the insured status requirements of the Social Security Act
through December 30, 2010.
2. The claimant has not engaged in substantial gainful activity since July 22,
2004, the alleged onset date (20 C.F.R. §§ 404. 1520(b), 404.1571 et seq.).
3. Since the alleged onset date of disability, the claimant has had the following
severe impairments: cervical and lumbar degenerative disc disease, osteoarthritis,
cervical and lumbar radiculopathy, lumbar facet arthropathy, obesity, broad based
gait status post arthroscopy, partial medial and lateral menisectomy, and
chondroplasty of the right knee (20 C.F.R. § 404. 1520(c)).
4. Since the alleged onset date of disability, the claimant has not had 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)).

13The ALl's rationale, which was interspersed throughout the findings, is omitted from
this recitation.
16

5. Prior to September 19,2008, the date the claimant became disabled pursuant to
his 55 th birthday, the claimant had the residual functional capacity to perform
simple, unskilled light work as defined in 20 C.F.R. § 404.1567(b) except that he
could lift 20 pounds occasionally, 10 pounds frequently, stand or walk for 6 hours
in an 8 hour day, sit for 6 hours in an 8 hour day, occasionally climbing a ramp or
stairs, kneeling, crouching, crawling, stooping and balancing but never climbing a
ladder, rope or scaffold, avoiding overhead work, avoiding concentrated exposure
to extreme cold, wetness, humidity and hazards with frequent rather than constant
handling and fingering and requiring the use of a cane for ambulation.
6. Beginning on September 19,2008, the claimant's 55th birthday, the claimant
has had the residual functional capacity to perform light work as defined in 20
C.F.R. § 404. 1567(b) except that he could lift 20 pounds occasionally, 10 pounds
frequently, stand or walk for 6 hours in an 8 hour day, sit for 6 hours in an 8 hour
day, occasionally climbing a ramp or stairs, kneeling, crouching, crawling,
stooping and balancing but never climbing a ladder, rope or scaffold, avoiding
overhead work, avoiding concentrated exposure to extreme cold, wetness,
humidity and hazards and frequent handling and fingering and requiring with the
right arm, only occasion use of the left arm, and requiring the use of a cane for
ambulation.
7. Since the alleged onset date of disability, the claimant has been unable to
perform past relevant work (20 C.F.R. § 404.1565).
8. The claimant was born on September 19, 1953 and was 55 years old, which is
defined as an individual closely approaching advanced age, on the alleged
disability onset date (20 C.F.R. § 404.1563).
9. The claimant has at least a high school education and is able to communicate
in English (20 C.F.R. § 404.1564.
10. Prior to September 19, 2008, transferability ofjob 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. Beginning on September 19,2008, the
claimant has not been able to transfer any job skills to other occupations (see SSR
82-41 and 20 C.F.R. § Part 404, Subpart P, Appendix 2).
11. Prior to September 19, 2008, considering the claimant's age, education, work
experience, and residual functional capacity, there were a significant number of
jobs in the national economy that the claimant could have performed (20 C.F .R.
§§ 404.1560(c), 404.1566).

17

12. Beginning on September 19,2008, considering the claimant's age, education,
work experience, and residual functional capacity, there are not a significant
number of jobs in the national economy that the claimant could perform (20
C.F.R. §§ 404. 1560(c), 404.1566).
13. The claimant was not under a disability, as defined by the Social Security Act,
prior to September 19,2008, but became disabled on that date, his 55 th birthday,
and has continued to be disabled through the date ofthis decision (20 C.F.R. §
404.1520(g».

(D.l. 21, 15-33.)

III.

STANDARD OF REVIEW
A.

Motion for Summary Judgment

Both parties filed motions for summary judgment pursuant to Federal Rule of Civil
Procedure 56(c). In determining the appropriateness of summary judgment, the court must
"review the record as a whole, 'draw[ing] all reasonable inferences in favor of the non-moving
party [,]' but [refraining from] weighing the evidence or making credibility determinations."

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation omitted). If the
court determines that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law, summary judgment is appropriate. See Hill v. City of

Scranton, 411 F.3d 118,125 (3d Cir. 2005) (quoting Fed. R. Civ .P. 56(c».

B.

Review of the 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). Substantial evidence does not mean a large or a
considerable amount of evidence. Pierce v. Underwood, 487 U.S. 552,565 (1988) (citing

Consolidated Edison Co. v. NLRB, 305 U.S. 197,229 (1938». Rather, it has been defined as
"more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept

18

as adequate." Ventura v. Shalala, 55 F.3d 900,901 (3d Cir. 1995) (quoting Richardson v.

Perales, 402 U.S. 389,401 (1971».
Credibility detenninations are the province of the ALl, and should be disturbed on review
only ifthey 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».
Thus, the inquiry is not whether the court would have made the same detennination, but rather,
whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d 1211,
1213 (3d Cir. 1988). In social security cases, this substantial evidence standard applies to
motions for summary judgment brought pursuant to Fed. R. Civ. P. 56(c). See Woody v.

Secretary ofthe Dep't ofHealth & Human Serv., 859 F .2d 1156, 1159 (3d Cir. 1988).

IV.

DISCUSSION
A.

Regulatory Framework

Within the meaning of social security law, a "disability" is defined as the inability to do
any substantial gainful activity by reason of any medically detenninable physical or mental
impainnent, which can be expected to result in death, or which has lasted or can be expected to
last, for a continuous period of not less than 12 months. See 42 U.S.C. § 423(d)(I)(A). To be
found disabled, an individual must have a "severe impainnent" which precludes the individual
from perfonning previous work or any other "substantial gainful activity which exists in the
national economy." See 20 C.F.R. § 404.1505. The claimant bears the initial burden of proving
disability. See 20 C.F.R. § 404.1512(a); Podeworthy v. Harris, 745 F.2d 210,217 (3d Cir.
1984). To qualify for disability insurance benefits, the claimant must establish that he was
disabled prior to the date he was last insured. See 20 C.F.R. § 404.131; Matullo, 926 F.2d at 244.

19

To detennine disability, the Commissioner uses a five-step sequential analysis. See 20
C.F.R. § 404.1S20; Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir. 1999). "The claimant bears
the burden of proof at steps one through four, and the Commissioner bears the burden of proof at
step five. Smith v. Commissioner ofSoc. Sec., 631 F.3d 632, 634 (3d Cir. 2010). 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. See 20 C.F.R. § 404.1S20(a)(4). At step one, the
Commissioner must detennine whether the claimant is engaged in any substantial gainful
activity. See 20 C.F.R. § 404.1S20(a)(4)(I) (mandating a finding of non-disability when claimant
is engaged in substantial gainful activity). If the claimant is not engaged in substantial gainful
activity, step two requires the Commissioner to detennine whether the claimant is suffering from
a severe impainnent or a combination of impainnents that is severe. See 20 C.F .R. §
404.1S20(a)(4)(ii) (requiring finding of not disabled when claimant's impainnents are not
severe). If claimant's impainnents are severe, at step three the Commissioner, compares the
claimant's impainnents to a list of impainnents (the "listing") that are presumed severe enough
to preclude any gainful work. 14 See 20 C.F.R. § 404.1S20(a)(4)(iii); Plummer, 186 F.3d at 428.
When a claimant's impainnent or its equivalent matches an impainnent in the listing, the
claimant is presumed disabled. See 20 C.F.R. § 404. 1S20(a)(4)(iii). If a claimant's impainnent,
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. § 404.1S20(d)Y

14Additionally, at steps two and three, claimant's impainnents must meet the duration
requirement of twelve months. See 20 C.F.R. § 404.1S20(a)(4)(ii-iii)
15Prior to step four, the Commissioner must assess the claimant's residual functional
capacity ("RFC"). See 20 C.F.R. § 404.1S20(a)(4). A claimant's RFC is "that which an
20

At step four, the Commissioner determines whether the claimant retains the RFC to
perform his past relevant work. See 20 c'F.R. § 404.1 520(a)(4 )(iv) (stating a claimant is not
disabled if able to return to past relevant work). "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 that a claimant is not disabled if the
claimant can adjust to other work); Plummer, 186 F.3d at 428. As previously stated, 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
the national economy which the claimant can perform, consistent with his medical impairments,
age, education, past work experience, and [RFC.]" Id. This determination requires the
Commissioner to consider the cumulative effect of the claimant's impairments and a vocational
expert is often consulted.
At step one, the ALl found that Sayers met the insured status requirements of the Social
Security Act through December 30, 2010, and that he had not engaged in substantial gainful
activity since July 22, 2004. At step two, the ALl found that Sayers has the combination of
severe impairments of cervical and lumbar degenerative disc disease, osteoarthritis, cervical and
lumbar radiculopathy, lumbar facet arthropathy, obesity, broad based gait status post arthroscopy,

individual is still able to do despite the limitations caused by his or her impairment[s]." Fargnoli
v. Massanari, 247 F.3d 34, 40 (3d Cir. 2001) (quoting Burnett v. Commissioner ofSoc. Sec.
Admin., 220 F.3d 112, 121 (3d Cir. 2000)).
21

partial medial and lateral menisectomy, and chondroplasty of the right knee. At step three, the
ALl determined that Sayers' impairments do not meet or medically equal the listing criteria.16 At
step four, the ALl determined that Sayers could not perform his past relevant work. At step five,
the ALl concluded that prior to September 19,2008, Sayers retained the residual functional
capacity ("RFC") to perform unskilled light work with additional limitations and that there were
a significant number ofjobs in the national economy that Sayers could perform, as defined in 20
C.F.R. § 404.1 560(c) and § 404.1566, but that beginning on September 19,2008, considering
Sayers' age, education, work experience, and residual functional capacity, there were not a
significant number of jobs in the national economy that the claimant could perform, as set forth
in 20 C.F.R. § 404.1560(c) and § 404.1566.

B.

Whether the ALJ's Decision is Supported by Substantial Evidence

Sayers objects to the Commissioner's determination on the following grounds: (1) the
ALl afforded improper weight to the opinions of his treating physician, Dr. Davis, his treating
neurologist, Dr. Sebastian, and his treating orthopaedic surgeon, Dr. Cuomo; (2) the ALl failed
to properly evaluate Medical Listing 1.02(A) at Step 3 of the sequential evaluation; (3) the ALl
failed to properly analyze the onset of disability within the mandates of SSR 83-20 and failed to
call upon the services of a medical expert, but instead mechanically applied the mechanic grid;
and (4) the ALl ignored evidence and took evidence out of context.
Sayers argues that the ALl failed to give proper weight to his treating physicians. The
Commissioner responds that the ALl may discount a treating physician's opinion when it is

16Sayers contests the step three determination.
22

inconsistent with the evidence and further, the ALl provided support in her decision to afford
reduced weight to the opinions of Drs. Davis, Cuomo, and Sebastian.
When an ALl accepts the opinion of the non-examining state agency physician, the ALl
is required to include the functional limitations identified by that source in the RFC finding and
hypothetical question. See Ramirez v. Barnhart, 372 F.3d 546,552 (3d Cir. 2004). Further, the
ALJ explicitly must weigh all relevant, probative and available evidence and provide some
explanation for the rejection of probative evidence that would suggest a contrary disposition.

Adorno v. Shalala, 40 F.3d 43,48 (3rd Cir. 1994) (citing Dobrowolsky v. Califano, 606 F.2d 403,
407 (3d Cir. 1979) and Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir. 1986». Conclusory
statements are beyond meaningful judicial review. Burnett v. Commissioner ofSocial Sec.

Admin., 220 F .3d 112, 119 (3d Cir. 2000). An ALl's decision must be accompanied by a clear
and satisfactory explanation of the basis on which it rests in order for this court to properly
decide whether the ALl's decision is based upon substantial evidence. Cotter v. Harris,
642 F.2d 700, 704-05 (3d Cir. 1981).
In considering the medical opinion evidence in the instant case, the ALl gave "little
weight" to the opinions of Sayers' treating physician Dr. Davis and treating orthopaedic surgeon
Dr. Cuomo. The ALJ determined that Dr. Davis' conclusions were inconsistent with the record
and his own treatment notes and that his lack of expertise in vocational training and occupational
health coupled with his speciality in general medicine did not provide a balance review of
Sayer's limitation. The ALJ concluded that Dr. Cuomo's opinion was not consistent with his
treatment notes, that Dr. Cuomo relied upon Sayers' subjective complaints of pain to guide the

23

completion of his opinion, and that his opinion was provided to allow Sayers to engage in a
recuperative period following knee surgery.
With regard to treating neurologist Dr. Sebastian, the ALl gave "little weight," and "some
weight," to his opinions. The ALl gave "little weight" to the opinions made by Dr. Sebastian
during the time-period the ALl found that Sayers not disabled. The ALl determined that Dr.
Sebastian's opinions were not consistent with the medical record as a whole and further, she
discounted his assignment of remaining limitations on the basis that they were provided to allow
Sayers to engage in a recuperative period following his injuries. However, the ALl assigned
"some weight" to Dr. Sebastian's opinion rendered after September 19, 2008 (i.e., that Sayers did
not have the capacity to be on his feet for prolonged periods of time; did not have the strength
and endurance necessary to perform, on a sustained, regular, and continue basis, the lifting of
objects weighing a maximum of 20 pounds to frequently lift and carry objects weighing up to 10
pounds).
The ALl gave "great weight" to the opinion of the state agency medical consultant, Dr.
Carter, that found Sayers capable oflight work with additional limitations. (D.1. 21, Tr. 29.) The
record reflects that the ALl's hypothetical questions did not include the limitations as outlined by
Dr. Carter that the Sayers could stand or walk for 6 hours in an 8 hour day, and sit for 6 hours in
an 8 hour day with an unlimited ability to push and pull. Accordingly, remand on this issue
appropriate.
In addition, the ALl's reliance on the non-examining state agency source opinion is
flawed because his opinion was rendered upon an incomplete record. Specifically, Dr. Carter did
not have available to him medical exhibits submitted into the record subsequent to the time that

24

he offered his opinion in July 2006. In spite of this fact, the ALJ relied upon his opinion in
finding no disability prior to September 19, 2008, even though his opinion did not include the
entire time frame.
For these reasons, the court finds remand is appropriate for a more comprehensive
evaluation.17

V.

CONCLUSION
For the aforementioned reasons, the court remands the case for further proceedings

consistent with this memorandum. Sayers' motion for summary judgment is granted and the
Commissioner's motion for summary judgment is denied.

5;;£1

It>
,2012
Wilmi gton, Delaware

17In light of the court's findings, it is unnecessary to address Sayers' remaining
arguments.
25