Bentzen v. Astrue

Filing 18

MEMORANDUM. Signed by Chief Judge Gregory M. Sleet on 6/12/2014. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

BRADLEY A. BENTZEN,
Plaintiff,

v.
MICHAEL J. ASTRUE, 1
Commissioner of Social Security,
Defendant.

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Civil Action No. 09-1006-GMS

MEMORANDUM

I.

INTRODUCTION
This action arises from the denial of plaintiff Bradley Bentzen's ("plaintiff') claim

for Social Security benefits. On December 18, 2006, plaintiff filed applications for
Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under
Titles II and XVIII of the Social Security Act (the "Act"). (D.I. 6 at 103-117) In his
application and disability report, plaintiff claimed he became disabled beginning on
June 5, 2006, due to lower back and bilateral leg pain. (/d. at 140-41.) Following the
Social Security Administration's ("SSA") denial of his claim, both initially and upon
reconsideration, plaintiff requested an ALJ hearing. (/d. at 64, 69-71, 76-79.) The
hearing occurred on February 4, 2009. (/d. at 24, 26.) At the hearing, testimony was
provided by plaintiff and an impartial vocational expert (''VE"), Tony Melanson
1

Carolyn W. Colvin became the Commissioner of Social Security
("Commissioner'') on February 13, 2013, after briefing began. Although under Federal
Rule of Civil Procedure 25, Carolyn W. Colvin should be substituted for Michael J.
Astrue, pursuant to 42 U.S.C § 405(g), no further action is necessary to continue this
action.

("Melanson"). (/d. at 26-59) On April29, 2009, the ALJ, Melvin D. Benitz, issued a
written decision denying plaintiff's benefits claim. (/d. at 8-23.) Plaintiff requested a
review of the ALJ's decision by the Social Security Appeals Council, which denied
review on December 2, 2009. (/d. at 1-7.) On December 30, 2009, plaintiff filed a
timely appeal with the court. (D. I. 1.) Presently before the court are the parties' crossmotions for summary judgment. (D. I. 9, 14.) For the reasons that follow, the court will
grant plaintiff's motion for summary judgment, and deny defendant's motion for
summary judgment.

II.

BACKGROUND

Plaintiff was born on February 1, 1975. (D.I. 6 at 11 0.) He has a high school
diploma and attended some college. (/d. at 28-29.) His alleged disability dates back to.
June 5, 2006. (/d. at 34.) Plaintiff's underlying injury occurred in 1998, when he was
accidentally struck by a heavy drum while working as a chemical operator. (/d. at 2933.) Plaintiff continued to work as a chemical operator until he was terminated on June ·
5. 2006. (/d. at 34.) Plaintiff, however, stopped physically working in 2005, and
collected long-term disability benefits until his termination in 2006. (/d. at 34-35.)
Plaintiff has not worked since his termination as a chemical operator. (/d. at 118-23.)
Despite his prior vocational experience, plaintiff claims he remains disabled under the
Act. (/d. at 35-55.) To be eligible for DIB and SSI, plaintiff must demonstrate he is
disabled within the meaning of sections 216(1), 223(d), and 1614(a)(3)(A) of the Social
Security Act. (/d. at 11.)

2

A.

Evidence Presented

Plaintiff suffered a work-related lumbar strain back injury on October 8, 1998.
(/d. at 469, 726.) Plaintiff suffered further lumbar strain back injuries in 2001 and in

September 2003. (/d. at 469.) Until December 2003, plaintiff was treated
conservatively for back pain resulting from the injuries, with treatment consisting of
physical therapy and medications. (/d. at 188.) His back pain failed to lessen after this
conservative treatment, and he experienced a high level of limitations and impairment
of activities of daily living. (/d. at 190, 192.) On December 9, 2003, plaintiff was
admitted to Christiana Care for an experimental total disk replacement, after being
diagnosed with degenerative disk disease with internal disk disruption and positive
diskogenic pain at the L5-S1 segment. (/d. at 188, 190, 192, 605.) He tolerated the
procedure well. (/d. at 188, 190, 193.)
Plaintiff continued to work as a chemical synthesis technician until June 5, 2006.
(/d. at 141.) On June 14, 2006, he underwent a lumbar discography, which revealed a

degenerative L4/5 disc with posterior annular tear, herniated nucleus propulsus, and
concordant back pain. (/d. at 214.) This procedure was performed by Dr. Frank Falco
("Dr. Falco") of Mid Atlantic Spine, who was plaintiff's physician from June 2006 until
April2009. (/d. at 214, 607-706.) The tear was described as a "thru and thru tear." (/d.
at 701.) The result of an electrodiagnostic report on June 19, 2006 showed an
abnormal condition. (/d. at 693-94.) However, multiple examinations in 2006 and 2007
found plaintiff to have normal reflexes, muscle strength, alertness, motor functions, and
coordination. (/d. at 210, 239, 469, 611-21, 624-37, 642-43, 648-49, 722.)

3

On January 2, 2007, plaintiff underwent aCT scan performed by Dr. Falco,
which revealed an L4/5 disc protrusion with subsequent stenosis and nerve root
compression. (/d. at 561.) The CT scan showed no central canal stenosis or
degenerative disc changes. (/d.) On January 8, an EMG performed by Dr. Falco
showed abnormal right L5 motor radiculopathy and left L5 and S1 motor radiculopathy.
(/d. at 656.) Another EMG performed by Dr. Falco on August 22, 2007, showed

abnormal bilateral L5/S1 motor radiculopathy. (/d. at 608.)
Plaintiff sought many treatments for pain, which he described as severe. (/d. at
332.) These treatments included intradiscal electrothermic therapy sessions by Dr.
Falco in August and September 2006, selective nerve root block treatments from Dr.
Falco in March and April2006 and January and February 2007, and a seven-day spinal
cord stimulation 2 trial by Dr. Falco in June 2007. (/d. at 495-96, 498, 548, 550, 554,
575, 616, 622-23, 672, 683.) Plaintiff was prescribed multiple medications for his pain,
including morphine, Oxycodone, Valium, Depakote, Dilaudid, MS Contin, and Percocet.
(/d. at 242, 252-53, 368, 737.) Plaintiff also visited the emergency room at Christiana

Care on three occasions in 2006 due to back pain. (/d. at 223, 235, 51 0.)
Beginning in May 2006, plaintiff's physicians advised he could not work. (/d. at
340.) Similar reports continued through August 2007. (ld. at 611-12.) In November
2007, Dr. Falco prepared a Residual Functional Capacity ("RFC") evaluation. (/d. at
717-720.) This RFC evaluation limited plaintiff's lifting to nothing heavier than a can of
2

While plaintiff claimed to use the spinal cord stimulator the majority of the day,
every day, Dr. Falco's programmer noted plaintiff only used the stimulator for one hour
during the first four days of the seven-day trial. (/d. at 616.) Plaintiff only used the
stimulator for a total of 75 hours during the entire seven-day trial. (/d.)

4

soda. (ld. at 717.) It also restricted sitting or standing to ten minutes at a time, nor for
more than two hours in an eight-hour workday, and required plaintiff to lie down twice
an hour for fifteen to twenty minutes. (/d.) The RFC noted plaintiffs medications had a
moderate effect on his ability to concentrate, and pain would interfere with his ability to
complete an eight-hour workday. (ld. at 717-18.) The RFC advised no exposure to
extreme temperature changes, unprotected heights, vibration, fumes, or moving
machinery. (/d. at 718.) Finally, the RFC found plaintiff could not perform sedentary
work, 3 even on a part-time basis. 4 (/d. at 719.) In February 2009, Dr. Falco prepared
another RFC evaluation that reached the same conclusions. (/d. at 737-40.) This RFC
evaluation repeated plaintiff was incapable of doing "low stress" jobs because of
severe pain. (ld. at 738.)
In January 2007, plaintiff was examined by Dr. David Stephens, who concluded
he could perform sedentary work. (/d. at 468-71.) Dr. Stephens noted plaintiff limped
during the examination, which disappeared when he was leaving the office. (/d. at 469.)
Dr. Stephens observed plaintiff moved more freely than he claimed. (/d.) Upon
reexamination in August 2007, however, Dr. Stephens found plaintiff could not work at
all. (/d. at 723.) His change of opinion rested on the failure of the spinal cord
stimulation to reduce pain and significant loss in range of motion. (/d. at 469, 722-23.)

3

Sedentary work is defined as work involving lifting no more than ten pounds at
a time, but with occasional lifting or carrying of light items. It includes sitting, but also
may require some walking and standing. Thus, jobs may be considered sedentary if
occasional walking and standing is required. (20 C.F.R. § 404.1567(a).) For sedentary
work, no more than a total of two hours of standing during an eight-hour workday is
allowed. (SSR 83-10 at *5.)
4
"Part-time" is defined as less than forty hours per week. (D.I. 6 at 719.)

5

Finally, a Physical Residual Functional Capacity Assessment prepared by Dr.
Sheldon Stein ("Dr. Stein") on June 4, 2007, determined plaintiff could perform light
duty work. 5 (/d. at 600-06.) Dr. Stein never examined plaintiff, and based his
assessment on the medical records. (/d.) Dr. Stein acknowledged plaintiff suffered
from significant pain, 6 which was constant and not relieved by pain medication. (/d. at
605).
Dr. Stein, however, noted the absence of any abnormal findings on the
emergency room records from plaintiff's three emergency room visits for back pain in
2006. (/d.) He further noted normal findings on several occasions in the medical
record, apart from a finding of L4/5 disc protrusion with subsequent stenosis and nerve
root compression. (/d. at 561, 606.) Dr. Stein concluded plaintiff was exaggerating his

5

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 falls in this category when it requires a considerable 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, a claimant must have the ability to do substantially all these activities. If a
claimant can perform light work, then he or she is able to 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. § 404.1567(b).) Thus, light work is more physically
demanding than sedentary work. (20 C.F.R. § 404.1567.) Sedentary work is the least
physically demanding type of work. (/d.)
6
Plaintiff's pain while taking pain medication was described as six out of ten.
(D.I. 6 at 605.) Pain is measured on a scale of zero to ten, where zero is no pain and
ten is pain so severe that hospitalization is required for management. (/d. at 349.) Six
out of ten corresponds to pain severe enough to warrant use of a mild narcotic, such as
codeine, for treatment. (/d.)

6

symptoms, displayed narcotic-seeking behavior, 7 and found his complaints were only
partially credible. (ld. at 606.)
In the February 2009 RFC evaluation by Dr. Falco, he refuted Dr. Stein's findings
and determined plaintiff was unable to perform any work. (/d. at 727, 738.) The RFC
reported pain was eight out of ten, 8 and the prognosis was poor. (ld. at 737.) Dr. Falco
concluded plaintiff was not a malingerer, and pain would constantly9 interfere with his
ability to perform even simple work tasks. (ld. at 737-38.) The RFC evaluation
restricted plaintiff from lifting or carrying anything, and from twisting, stooping, bending,
crouching, squatting, or climbing ladders. (ld. at 739-40.) Plaintiff could occasionally
climb stairs, and had no significant limitations on reaching, handling, or fingering. (ld. at
740.) The RFC reported plaintiff would, on average, be absent from work more than
four days per month because of pain. (ld.)
Despite his injury, plaintiff was able to engage in some limited personal activities.
In a March 2007 Function Report, plaintiff stated he read, watched television, did simple
cooking, 10 dishwashing, dusting, small loads of laundry, and limited driving, walked

7

Plaintiff stated he has a written contract with Dr. Falco requiring he only obtain
pain medication from Dr. Falco except in an emergency. Violation of this agreement
would result in discharge from Dr. Falco's practice. (ld. at 37.) As a result of his
second examination of plaintiff in August 2007, Dr. Stephens reported plaintiff had an
opioid dependency. (ld. at 722.)
8
Eight out of ten corresponds to pain severe enough to warrant an emergency
room visit and strong narcotics for treatment. (ld. at 349.)
9
"Constantly'' is defined to mean more than two-thirds of the workday. (ld. at
738.)
10
Plaintiff explained he only cooks frozen dinners in the microwave and makes
sandwiches, because cooking multi-course meals requires standing for too long. (ld. at
150, 605.)

7

short distances, 11 made small grocery purchases, 12 and occasionally attended church. 13
(/d. at 148-53.) All these activities are limited by plaintiff's pain. (/d.) Plaintiff claimed

he rarely socialized due to pain. (/d. at 153.)

B.

Hearing Testimony
1.

Plaintiff's Testimony

At the February 4, 2009 hearing, plaintiff testified about his background, injury,
pain, and treatments. (/d. at 26-55.) He stated his past jobs were a chemical operator,
a restaurant manager, and a cook at multiple restaurants. (/d. at 29.) His initial back
injury occurred in 1998 while working as a chemical operator, when a 1600-pound drum
struck him. (/d. at 30-33.) After the accident, plaintiff continued to work as a chemical
operator until June 5, 2006, 14 when he was terminated by his employer. (/d. at 33-34.)
Plaintiff's salary at the time of termination was about $65,000 annually. (/d. at 47.) At
the time of the hearing, plaintiff was receiving workers' compensation benefits of $542
per week, which was his only source of income. (/d. at 30-31, 52.) Previously, he
received a lump sum payment of $34,000 for permanency and disfigurement. (/d. at
31-32.)
Plaintiff stated his job as a chemical operator involved frequent lifting of
moderate weights, requiring him to repeatedly lift thirty pounds 200 times in an hour.
11

Plaintiff represented he can only walk a quarter of a block, and requires
roughly fifteen minutes breaks between walks. (/d. at 153.) By February 2009, plaintiff
could not walk without severe pain, although he testified he could possibly walk up to
half a block. (/d. at 52, 738.)
12
Plaintiff said he only shops once a month for short time periods. (/d. at 151.)
13
Plaintiff explained he only attends church if not in pain.
14
Plaintiff actually stopped work in 2005 due to back pain. From then until his
termination, he collected long-term disability benefits from his employer. (/d. at 34-35.)

8

(/d. at 35.) In 2005, back pain eliminated such lifting, and his doctor recommended to

stop working. (/d.) As a result, plaintiff claimed he could not perform a light duty job,
such as answering phones, and could only sit or stand for fifteen minutes at a time due
to pain. (/d. at 35-36.)
Plaintiff described the medical treatment for his pain. (/d. at 36-44.) After
undergoing disc replacement surgery in 2003, his pain briefly subsided for about eight
months. (/d. at 39.) His surgeon referred him to Dr. Falco for pain management, whom
he exclusively sees for this condition. (/d. at 39-40.) At the time of the hearing, plaintiff
was taking MS Contin, Lyrica, and Dilaudid for pain. (/d. at 41.) He was also
prescribed Amrix, a muscle relaxant, to be taken as needed. (/d.) Dr. Falco requires all
patients, including plaintiff, to undergo monthly drug screening urine tests. (/d. at 3738.)
Plaintiff underwent both a trial morphine pump and a trial spinal cord stimulator.
(/d. at 36-37.) The morphine pump provided some pain relief, while the spinal cord

stimulator made his pain worse. (/d.) At the time of the hearing, plaintiff was scheduled
to receive a permanent morphine pump, which may enable him to reenter the workforce
in the future. (/d. at 36, 47-48.) Plaintiff testified physical therapy provided no benefit,
and only exacerbated his pain. (/d. at 50-51.)
Pain interferes with sleep and dressing. (/d. at 42-45.) Plaintiff stated although
he can perform some simple household tasks, they are severely limited in scope and
duration due to pain. (/d. at 45-46.) Driving or riding in a car is limited to doctors'
appointments or for short distances. (/d. at 46-48, 54-55.) Pain interferes with enjoying

9

or playing with his son. (/d. at 48-49.) He is required to lie down for five hours during
an eight-hour period, and if he does not, the pain becomes so severe that he requires
emergency room treatment. 15 (/d. at 49-50, 53-54.) Finally, plaintiff claims he gained
about 100 pounds after his injury, since he cannot exercise. (/d. at 51-52.)

2.

The Vocational Expert's Testimony

Melanson testified about plaintiff's background, skills, and limitations, and the
number of jobs available in the national economy that a person of plaintiff's age,
education, and skills may perform. (/d. at 55-59.) Plaintiff's past relevant work history
was as a chemical operator at heavy exertional levels, 16 a restaurant manager at
medium exertionallevels, and a cook at medium exertionallevels. (/d. at 55.)
Melanson opined plaintiff could transfer skills from his previous restaurant
manager job to a similar position at light exertionallevels. (/d. at 56.) His other prior
employment would not involve the transferring of skills. (/d.)
The ALJ posed the following hypothetical situation: the individual had the same
age, educational background, and past relevant work history, as well as all of plaintiff's
symptoms and limitations. (/d.) In response, the VE testified that individual could

15

Often, a member of Dr. Falco's staff would be called to the emergency room.
(/d. at 53-54.) Some of plaintiff's emergency room visits resulted in hospitalization. (/d.
at 54.)
16
Typically, chemical operators perform at medium exertional levels. Because of
the frequency and weight plaintiff had to lift, the VE classified his position as a chemical
operator at heavy exertionallevels. (/d. at 55, 57-58.) Exertion refers to the primary
strength activities of sitting, standing, walking, lifting, carrying, pushing, and pulling.
SSR 83-10, at *5.
10

perform the jobs of security monitor, 17 addresser/clerical sorter, 18 or information clerk. 19
(/d. at 56-57.) All of these jobs would permit the individual to sit and stand 20 as is

required. (/d. at 57.) However, the VE testified the individual could no longer perform
any of his past work due to his limitations. (/d.)
C. The ALJ's Findings

Based on the medical evidence and testimony of plaintiff and the VE, the ALJ
determined plaintiff was not disabled and, therefore, ineligible for DIB or SSI. (ld. at 823.) The ALJ's findings are summarized as follows:
1.

The claimant meets the insured status requirements
of the Social Security Act through March 31, 2012.

2.

The claimant has not engaged in substantial gainful
activity since June 5, 2006, the alleged onset date (20
C.F.R. 404.1571 et seq. and 416.971 et seq.).

3.

The claimant has the following severe impairment:
degenerative disc disease of the lumbar spine with
associated radiculopathy (20 C.F.R. 404.1520© and
416.920©).

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. 404.1525,
404.1526, 416.925, and 416.926).

17

The security monitor is sedentary and unskilled work, and 500 of these jobs
exist regionally, with 120,000 available nationally. (D.I. 6 at 57)
18
About 380 of these jobs are available regionally and 70,000 nationally. (/d. at
57.)
19
Roughly 350 of these jobs exist regionally and 65,000 nationally. (/d. at 57.)
20
The official descriptions of these jobs do not address the issue of sitting and
standing. However, the VE testified, in his experience, such jobs would be compatible
with relevant sitting and standing requirements. (/d. at 57.)
11

5.

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform sedentary work as
defined in 20 C.F.R. 404.1567(a) and 416.967(a)
except for work which requires lifting more than 10
pounds occasionally or lesser amounts frequently,
standing for periods of more than 15-20 minutes
consistently on an alternate basis during an 8-hour
day, 5 days per week, any climbing of stairs,
scaffolds, or such devices, any exposure to heights
and hazardous machinery, or any exposure to
temperature and humidity extremes or vibration. In
addition, the claimant is further limited to no more
than simple, routine, unskilled tasks not involving
more than a low level of stress, concentration, or
memory secondary to pain.

6.

The claimant is unable to perform any past relevant
work (20 C.F.R. 404.1565 and 416.965).

7.

The claimant was born qn February 1, 1975, and was
31 years old, which is defined as a younger individual
age 18-44, on the alleged disability onset date (20
C.F.R. 404.1563 and 416.963).

8.

The claimant has at least a high school education and
is able to communicate in English (20 C.F.R.
404.1564 and 416.964).

9.

Transferability of job skills is not material to the
determination of disability because using the MedicalVocational 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. 404.1569, 404.1569a, 416.969, and
416.969a).

11.

The claimant has not been under a disability, as
defined in the Social Security Act, from June 5, 2006
12

through the date of this decision (20 C.F.R.
404.1520(g) and 416.920(g)).

Ill.

STANDARD OF REVIEW

A.

Motion For Summary Judgment

Both parties filed motions for summary judgment pursuant to Federal Rule of
Civil Procedure 56©. 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 there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law, summary judgment is appropriate.

See Hillv. City of Scranton, 411 F.3d 118,125 (3d Cir. 2005) (quoting FED. R. CIV. P.
56©).
This standard does not change merely because there are cross-motions for
summary judgment. Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir.
1987). Cross-motions for summary judgment:
are no more than a claim by each side that it alone is entitled to summary
judgment, and the making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist.

Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968). "The filing of crossmotions for summary judgment does not require the court to grant summary judgment
for either party." Krupa v. New Castle County., 732 F. Supp. 497, 505 (D. Del. 1990).

13

B.

Review of the ALJ's Findings

Section 405(g) sets forth the standard of review of the ALJ's decision by the
district court. The court may reverse the Commissioner's final determination only if the
ALJ did not apply the proper legal standards, or the record did not include substantial
evidence to support the ALJ's decision. The Commissioner's factual decisions are
upheld if supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3); see
also Monsour Med. Ctr. v. Heckle, 806 F .2d 1185, 1190 (3d Cir. 1986). Substantial
evidence means less than a preponderance, but more than a mere scintilla of evidence.
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). As the United States
Supreme Court has found, substantial evidence "does not mean a large or significant
amount of evidence, but rather such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565
(1988).
In determining whether substantial evidence supports the Commissioner's
findings, the court may not undertake a de novo review of the Commissioner's decision
nor re-weigh the evidence of record. Monsour, 806 F.2d at 1190. The court's review is
limited to the evidence that was actually presented to the ALJ. Matthews v. Apfel, 239
F.3d 589, 593-95 (3d Cir. 2001 ). 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., evidence
offered by treating physicians) or if it really constitutes not evidence but mere

14

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. Brown

v.

Bowen, 845 F.2d 1211,

1213 (3d Cir. 1988). Even if the court would have decided the case differently, it must
defer to the ALJ and affirm the Commissioner's decision so long as that decision is
supported by substantial evidence. Monsour, 806 F .2d at 1190-91.
In an action in which review of an administrative determination is sought, the
agency's decision cannot be affirmed on a ground other than that actually relied upon
by the agency in making its decision. Hansford

v. Astrue, 805 F. Supp. 2d 140, 144-45

(W .D. Pa. 2011 ). In Sec. & Exch. Comm'n v. Chenery Corp., the United States
Supreme Court found that a "reviewing court, 'in dealing with a determination or
judgment which an administrative agency alone is authorized to make, must judge the
propriety of such action solely by the grounds invoked by the agency. 332 U.S. 194,
196 ( 1947). If those grounds are inadequate or improper, the court is powerless to
affirm the administrative action by substituting what it considers to be a more adequate
or proper basis." (/d.) The Third Circuit has recognized the applicability of this finding
in the social security disability context. Fargnoli v. Massanari, 247 F.3d 34, 44, n.7 (3d
Cir. 2001 ). This court's review is limited to the four corners of the ALJ's decision.
Cefalu

v. Barnhart, 387 F. Supp. 2d 486, 491 (W.O. Pa. 2005). In social security cases,

the substantial evidence standard applies to motions for summary judgment brought
pursuant to FED. R. CIV. P. 56©. See Woody v. Sec'y. of the Dep't. of Health & Human
Serv., 859 F.2d 1156, 1159 (3d Cir. 1988).

15

IV.

DISCUSSION
A.

Parties' Contentions

In his appeal, plaintiff contends the ALJ did not have substantial evidence to
support the denial of his application for Dl8 and SSI, arguing the ALJ improperly
substituted his judgment for that of the treating medical source opinions of record, and
erred in the amount of controlling weight given to the assessments of Drs. Falco and
Stephens. (D.I. 10, 17.) Plaintiff also argues the ALJ's finding that he must alternate
between sitting and standing is incompatible with the ability to perform sedentary work.
(/d.) The Commissioner maintains the ALJ properly included all medical opinion
evidence of record, and controlling weight to the assessments of Drs. Falco and
Stephens was not required. (D. I. 15) The Commissioner also contends the.ALJ
properly found plaintiff could perform certain types of sedentary work, and seeks a
finding that the ALJ's decision was supported by substantial evidence. (/d.)

B.

Disability Analysis

Title II of the Social Security Act, 42 U.S.C. § 423(a)(I)(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, 482 U.S. at 140. In order to
qualify for Dl8, the claimant must establish he was disabled prior to the date he was
last insured. See 20 C.F.R. § 404.131. A "disability" is defined as the inability to do
any substantial gainful activity because of any medically determinable physical or
mental impairment, which either could result in death or has lasted or can be expected
to last for a continuous period of at least 12 months. 42 U.S.C. §§ 423(d)(I)(A),

16

1382(c)(a)(3). To be disabled, the severity of the impairment must prevent return to
previous work, and based on age, education, and work experience, restrict "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. 20 C. F. R. § 404.1520; see a/so Plummer v.
Apfel, 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 review ends. 20 C.F.R.

§ 404.1520(a)(4). At the first step, the Commissioner must determine whether the
claimant is engaged in any substantial gainful activity, and if so, a finding of nondisabled is required. 20 C.F.R. § 404.1520(a)(4)(1). If the claimant is not so engaged,
step two requires the Commissioner to determine whether the claimant is suffering from
an impairment or a combination of impairments that is severe. If no severe impairment
or a combination thereof exists, a finding of non-disabled is required. 20 C.F.R.

§ 404.1520(a)(4)(ii).
If the claimant's impairments are severe, the Commissioner, at step three,
compares them to a list of impairments (t.he "listings") that are presumed severe
enough to preclude any gainful work. 20 C.F.R. § 404.1520(a)(4)(iii); see a/so
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. 20 C.F .R.

§ 404.1520(a)(4)(iii). If a claimant's impairment, either singularly or in combination, fails
to meet or medically equal any listing, the analysis continues to steps four and five. 20
C.F.R. § 404.1520(e). At step four, the Commissioner determines whether the claimant
17

retains the RFC to perform his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv);
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] impairment(s)." Fargnoli, 247 F.3d at 40.
"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 adjusting to
any other available work. 20 C. F. R. § 404.1520(g); see a/so Plummer, 186 F .3d at 427428. At this final step, the burden is on the Commissioner to show the claimant is
capable of performing other available work existing in significant national numbers and
consistent with the claimant's medical impairments, age, education, past work
experience and RFC before denying disability benefits. Plummer, 186 F.3d at 427428. In making this determination, the ALJ must analyze the cumulative effect of all the
claimant's impairments aRd often seek the assistance of a vocational expert. /d.

1.

Weight Given to Treating Physicians

Plaintiff asserts the ALJ erred by failing to give the opinions of Drs. Falco and
Stephens controlling weight. (D.I. 10, 17.) "A cardinal principle guiding disability
eligibility determinations is that the ALJ accord treating physicians' reports great
weight." Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). Such reports will be given
controlling weight where a treating source's opinion on the nature and severity of a
claimant's impairment is well supported by medically acceptable clinical and laboratory

18

diagnostic techniques, and is not inconsistent with the other substantial evidence on
record. Fargnoli, 247 F.3d at 43.
The ALJ must consider medical findings supporting the treating physician's
opinion that the claimant is disabled. Morales, 225 F.3d at 317 (citing Plummer, 186
F.3d at 429). It is error, however, to apply controlling weight to an opinion merely
because it comes from a treating source if it is not well-supported by the medical
evidence, or inconsistent with other substantial evidence, medical or lay, in the record.
SSR 96-2p. If the ALJ rejects the treating physician's assessment, he may not make
"speculative inferences from medical reports," and may reject "a treating physician's
opinion outright only on the basis of contradictory medical evidence." Plummer, 186
. F.3d at 429. A statement by a treating source that a claimant is "disabled" is not a
medical opinion: rather, it is an opinion on an issue reserved to the ALJ because it is a
finding that is dispositive of the case. See 20 C.F.R. § 416.927 (e)(1 ). Only the ALJ
.can make a disability determination. Also, the ALJ may not give greater weight to the
·assessment of a physician who has not personally examined the claimant if the
assessment conflicts with those by physicians who have personally examined the
claimant. Brownawe/1 v. Comm'r of Soc. Sec., 554 F.3d 352, 357 (3d Cir. 2008).
In this instance, the ALJ did not give proper weight to the medical opinions and
objective record evidence of Drs. Falco and Stephens. The ALJ gave diminished
weight to their conclusions because the doctors suggested an inability to perform
sedentary work activity on a sustained basis. 21 (D.I. 6 at 20.) Their opinions were
21

Both doctors actually stated plaintiff could not work at all. (See, e.g., id. at
340, 611' 723.)
19

based on their examinations of plaintiff and findings of an annular tear of the L4/5 disc,
severe low back pain, post-traumatic lumbar strain, and degenerative lumbar disc
disease. (See, e.g., id. at 339-40, 611-12, 722-23.) Both doctors examined plaintiff
and did not base their findings only upon subjective history or complaints. (See, e.g.,
id. at 339-40, 611-12, 722-23.)

In determining the weight afforded to the assessments of Drs. Falco and
Stephens, the ALJ noted certain normal findings in their examinations, including normal
alertness, reflexes, and gait; 22 lack of atrophy; and full muscle strength and tone. (/d. at
14-20.) Such findings, however, do not preclude diagnoses of multiple lower back
problems and attendant severe lower back pain. (/d. at 15-20.)
The ALJ noted plaintiff was able to engage in certain personal activities, but
these activities were greatly restricted by pain, and could only be performed on a limited
basis. (/d. at 17, 148-53.) The ALJ did not acknowledge these restrictions and
limitations, and speculated the normal findings and personal activities somehow
reduced the severity of plaintiffs lower back issues and attendant pain to allow limited
sedentary work. (See id. at 17.) The findings of Drs. Falco and Stephens were not
contradicted by the record as a whole. Since "speculative inferences from medical
reports" are inappropriate, there is not substantial evidence for the ALJ to appreciably
reduce the weight afforded to plaintiffs treating physicians' opinions. Plummer, 186
F.3d at 429.

22

Dr. Stephens' August 2007 examination of plaintiff noted a slow plodding gait.
(/d. at 722.)
20

The ALJ also gave significant weight to Dr. Stein's opinion that plaintiff was able
to engage in light work. (/d. at 20.) Dr. Stein never personally examined plaintiff, and
his opinion predated Dr. Stephens' second examination which found, based on the
notable increase in symptoms, plaintiff was incapable of working, findings which were
consistent with those of Dr. Falco. (/d. at 600-606, 611-12, 721-23.) Greater weight
should not be afforded the assessment of a physician who has not personally examined
a claimant if it conflicts with findings of treating physicians who have. Brownawe/1, 554
F.3d at 357.

2.

Determination Plaintiff Could Perform Sedentary Work

Plaintiff asserts the ALJ erred by finding he could perform sedentary work. (D.I.
10, 17.) Sedentary work is defined as requiring a total of no more than two hours.of
standing in an eight-hour workday. SSR 83-10, at *5. Jobs involving more than two
hours of standing in an eight-hour workday are classified as light instead of sedentary.
(See id., at *5, *6.) Some individuals otherwise capable of performing sedentary work

cannot perform such work because of a requirement to alternate between sitting and
standing. SSR 83-12 (1983), at *4. Unskilled jobs, in particular, often cannot be
adjusted to accommodate a requirement to alternate between sitting and standing. (/d.)
When such a requirement exists, the testimony of a VE is needed to explain the
limitation's effect on the jobs an individual could otherwise perform. (/d.) The ALJ may
not rely on the testimony of a VE if it conflicts with regulatory policies, including policies
involving exertionallevels. SSR 00-4P, at *3.

21

In the present case, the ALJ noted plaintiff was capable of performing sedentary
work on an eight-hour-per-day, five-day-per-week basis, but would require constant
alternating between sitting and standing every fifteen to twenty minutes. (D. I. 6 at 21.)
This limitation would require plaintiff to stand for a total of four hours 23 during an eighthour workday. Since sedentary jobs may only involve a total of two hours of standing
during an eight-hour workday, this alternating sitting and standing restriction is
inconsistent with sedentary work.
The VE, in responding to the ALJ's hypothetical of an individual who could
perform sedentary work but who also required alternating between sitting and standing
every fifteen to twenty minutes, stated plaintiff could perform several sedentary jobs.
(/d. at 56-57.) When questioned by the ALJ whether th~se jobs would be compatible

with plaintiff's sitting and standing requirements, the VE advised they were. (/d. at 57.)
This testimony, however, conflicts with the regulatory policy involving the maximum
amount of standing permitted for sedentary jobs. The ALJ, thus, erred in relying on the
VE's testimony that plaintiff could perform some sedentary work. (/d. at 21-22.)
With due consideration given to the parties' arguments and submissions, and the
applicable law, the court finds that the ALJ's disability determination was not properly
supported by substantial evidence.

23

Standing every other fifteen minutes means plaintiff would stand thirty minutes
of each hour, and would necessitate in an eight hour work day a total of 240 minutes or
four hours of standing. Standing every other twenty minutes would require plaintiff to
stand for forty minutes during the first, third, fifth, and seventh hours for a total of 160
minutes, and for twenty minutes during the second, fourth, sixth, and eighth hours for a
total of eighty minutes. Thus, in an eight hour workday, plaintiff would stand for a total
of 240 minutes or four hours.
22

V.

CONCLUSION
For the aforementioned reasons, the court concludes that the ALJ's denial of

DIB and SSI is not based on substantial evidence, and accordingly, will grant Bentzen's
motion for summary judgment and deny the Commissioner's motion for summary
judgment.

Dated June .J.L 2014

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