Anderson v. Astrue
Filing
19
MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 11/10/2011. (nmf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BONITA S. ANDERSON,
Plaintiff,
v.
MICHAEL ASTRUE, Commissioner,
Social Security Administration,
Defendant.
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)
)
)
) Civ. No. 10-062-SLR
)
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)
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Paul G. Enterline, Esquire of Georgetown, Delaware. Counsel for Plaintiff.
Charles M. Oberly, Ill, Esquire, United States Attorney, District of Delaware, Patricia A.
Stewart, Esquire, Special Assistant United States Attorney, District of Delaware, and
Dina White Griffin, Esquire, Special Assistant United States Attorney, District of
Delaware. Counsel for Defendant. Of Counsel: Eric P. Kressman, Esquire, Regional
Chief Counsel, and Shannon Petty, Esquire, Assistant Regional Counsel of the Office
of General Counsel, Philadelphia, Pennsylvania.
MEMORANDUM OPINION
Dated: November \D , 2011
Wilmington, Delaware
I. INTRODUCTION
Bonita Anderson ("plaintiff') appeals from a decision of Michael J. Astrue, the
Commissioner of Social Security ("defendant"), denying her application for disability
insurance benefits ("DIS") under Title II of the Social Security Act, 42 U.S.C. §§ 401433. Plaintiff has filed a motion for summary judgment asking the court to find her
disabled or remand the case for further proceedings. (D.I. 13) Defendant has filed a
cross-motion for summary judgment, requesting the court to affirm his decision and
enter judgment in his favor. (D. I. 15) The court has jurisdiction over this matter
pursuant to 42 U.S.C. § 405(g). 1
II. BACKGROUND
A. Procedural History
Plaintiff filed for DIB on April 18, 2005, claiming she had been disabled since
December 15, 2003 due to severe migraines, coronary artery disease, carotid artery
disease, arthritis, degenerative disk disease and chronic pain. (D. I. 11 at 177)
Plaintiff's DIB claim was initially denied on April 7, 2006. (/d. at 88) It was denied on
reconsideration on February 22, 2007. (/d. at 89) On May 13, 2008, a hearing on
1
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).
plaintiff's DIB claim was held in front of Administrative Law Judge ("ALJ") Melvin D.
Benitz. At the hearing, the ALJ heard testimony from plaintiff, her grandmother Geneva
Fry and a vocational expert ("VE"), Ellen C. Jenkins. (/d. at 39) Irene Gianesses,
plaintiff's roommate, also provided the ALJ with a letter attesting to her observations on
plaintiff's physical activities. In a decision issued August 8, 2008, the ALJ found that
plaintiff was not disabled because, while she could not perform her past work, she
could perform other work available in the national economy. (/d. at 25-28) The
Appeals Council denied plaintiff's request for review and, therefore, the ALJ's decision
became defendant's final decision. (/d. at 1) Having exhausted her administrative
remedies, plaintiff filed a civil action in this court on January 26, 2010, seeking review of
defendant's decision to deny her DIB.
B. Plaintiff's Non-Medical History
Plaintiff was born on September 7, 1953. (/d. at 132) She has a high school
education (id. at 185) and has been previously employed as an office manager and
bookkeeper. (/d. at 75) Her date last insured ("DLI") was December 31, 2006, making
December 15, 2003 (her alleged onset date) through December 31, 2006 (her DLI) the
relevant period at issue.
C. Plaintiff's Medical HistorY
In June of 2003, Dr. Balepur Venkataramana performed an anterior cervical
diskectomy and fusion surgery on plaintiff, removing her C4-5, C5-6 and C6-7 vertebrae
2
Because the only medical evidence directly at issue on this appeal relates to
plaintiff"s complaints of cervical disk disease, migraines, upper extremity arthritis and
chronic pain, the background presented in this section will be limited to those alleged
impairments.
2
and stabilizing the area with a plate and screw system. (/d. at 211) The procedure was
performed in response to herniated disks that had been identified in those regions. (/d.
At 260) Dr. Venkataramana followed up with plaintiff several times post-operatively,
the last time being September 11, 2003. (/d. at 260) While he acknowledged that
plaintiff still had some pain and had made an appointment to see a pain specialist, Dr.
Venkataramana opined that he would have "released the patient for light work" as of
September 2003. (/d.)
Following her surgery, plaintiff met with several physicians and complained of
pain radiating from her back and into her neck and extremities. Multiple MRis of
plaintiff's back and neck were done following her surgery, including MRis taken October
16, 2003, May 2, 2005 and August 21, 2006, but none revealed any abnormalities (i.e.,
no evidence of misalignment, herniation, disk bulge or stenosis). (/d. at 248; 246; 838)
Dr. Gabe Somori, a pain management physician at Costal Pain Care Physicians,
met with plaintiff on October 8, 2003. (/d. at 361-62) He initially diagnosed plaintiff as
having: (1) chronic neck and shoulder pain with no evidence of cervical radiculopathy;
(2) chronic low back pain; (3) migratory joint pains; and (4) a history of migraine
headaches. (/d.) Throughout the period at issue, Costal Pain Care Physicians and Dr.
Somori treated plaintiff's complaints of chronic pain. (/d. at 334-60; 789-95)
Specifically, her complaints related to neck pain, back pain, pain radiating into her
extremities and migraine headaches. (/d.) Plaintiff was proscribed various pain
relievers in various dosages and combinations throughout the relevant period. (/d.)
Plaintiff consistently rated her pain as a seven or above on a ten point scale. (/d.) In
3
June of 2006, Dr. Somori made a handwritten notation in plaintiff's chart of "failed
cervical laminectomy." (ld. at 334)
Dr. Kevin Wallace, a physician involved in treating plaintiff's neck and back pain,
referred plaintiff to Dr. Paul E. Howard in reference to plaintiff's "severe almost daily
headaches [that she has had] for many years." (ld. at 261) In a letter to Dr. Wallace,
Dr. Howard stated that he would agree with Dr. Wallace's assessment that plaintiff
suffered from vestibular migraines. (/d.)
On December 27, 2005, at the request of the agency, plaintiff was examined by
Dr. Beshara Helou. (ld. at 262-65) Dr. Helou concluded that: (1) plaintiff had a "limited
range of motion" in her cervical spine as a result of her surgery; (2) "mild radiculopathy"
in her lumbar spine that "seems to be clinically insignificant;" (3) "chronic pain syndrome
due to multiple musculoskeletal problems;" and (4) "chronic daily headaches" that have
been difficult to treat with medication because of other medications plaintiff was taking.
(/d.)
On April 4, 2006, at the agency's request, Dr. Anne Aldridge reviewed plaintiff's
medical records and provided a residual functional capacity assessment. (/d. at 26976) Dr. Aldridge concluded, based upon plaintiff's past medical history, that plaintiff:
(1) could occasionally lift twenty pounds and frequently lift ten pounds; (2) could
stand/walk or sit for six hours in an eight hour workday; (3) had an unlimited ability to
push and pull; (4) could not balance; and (5) could frequently reach in all directions (but
not do so continuously overhead). (/d.) Dr. Aldridge also opined that plaintiff "appears
capable of light RFC." (/d. at 271)
4
D. Hearing Before The ALJ
1. Plaintiff's testimony
At her hearing, plaintiff testified at length about her medical problems. (/d. at 4071) Her testimony can be summarized as follows:
•
Plaintiff has a work history of bookkeeping and secretarial work.
•
Plaintiff claims to have missed significant amounts of work (several days
in a week) due to chronic back and neck pain and migraines. She
describes the migraines as constant and causing blurred vision and
nausea. She says she needs to lay down in a quiet room in order to
obtain relief from the migraines. She also says that she was terminated
from several jobs because she needed to miss so much time.
•
Plaintiff has taken a variety of prescription medications to treat her pain.
According to plaintiff, the side effects of her medications include
drowsiness and nausea.
•
Plaintiff had an anterior cervical diskectomy and fusion surgery in 2003
because of cervical pain and now has a limited range of motion because
of the plates inserted into her neck.
•
Plaintiff complains of an inability to sleep due to pain.
•
Plaintiff complains that she cannot sit or stand or walk for any long periods
of time without pain.
•
Plaintiff claims she can not perform bookkeeping and/or secretarial work
due to constant pain, the side effects from her medications, an inability to
5
concentrate, an inability to sit for long periods and an inability to handle
pressure and stress, particularly with respect to deadlines and numbers.
•
Plaintiff claims she cannot do housework or chores because of pain.
(/d.)
2. Geneva Fry's testimony
Plaintiff's grandmother, Geneva Fry, testified on plaintiff's behalf. According to
Mrs. Fry, three or four times a week, plaintiff would be in so much pain that she could
not comprehend that someone was speaking to her. (/d. at 72) She also explained
that, while plaintiff tried to help out around the house, she could not. (/d. at 73) Ms. Fry
confirmed that plaintiff's medications made her drowsy. (/d.)
3. VE's testimony
The hypothetical question that the ALJ asked the VE is as follows:
Past relevant work as indicated. Suffering from various ailments, including
degenerative disk disease of the lumbar and of the cervical. She's had a
fusion at the cervical level. She had some heart trouble back in the '90's.
She indicated she had a couple of heart attacks. Now has some chest pain
on occasion. But she does have moderate pain and discomfort as a result
of her degenerative disk disease of the back/neck, all of which are somewhat
relieved by her medications, without significant side effects, but she indicates
she gets drowsy from one or a combination. And if I find she needs simple,
routine, unskilled jobs ... low stress, low concentration, low memory due to
her pain and depression; and if I find she is moderately able to perform her
ADL's, interact socially, and maintain concentration, persistence, and pace;
and can lift 20 pounds frequently, 3 20 on occasion; stand for 20 or 30
minutes - - strike that. Stand for 10 minutes, sit for 20 or 30 minutes
consistently on an alternate basis during an eight-hour day five days a week;
have to avoid heights and hazardous machinery due to her condition; no
prolonged climbing, balancing, or stooping, and by that, I mean no more than
once or twice an hour. With those limitations, she'd be able to do light work
3
The Court notes that the ALJ's RFC assessment in his decision permits
frequent lifting of 10 pounds, not 20. (D.I. 11 at 21)
6
activities? . . . Give me jobs that exist out there in the national economy .
. . such a person can do in significant numbers.
(/d. at 78) In response to this hypothetical, the VE testified that plaintiff could perform
the jobs of interviewer, non-postal mail sorter and library clerk, all of which are available
in significant numbers in the national and local economies. (/d. at 79) And according to
the VE, these three positions "can be accommodated with a sit/stand option,"
something the VE knows from having placed other persons in such positions. (/d.)
E. Ms. Gianesses's Letter
In a letter dated May 13, 2008 and provided to the ALJ at some point thereafter,
Ms. Gianesses "attest[ed] to [her] observations (as a roommate) to [plaintiff's] physical
activities." 4 (/d. at 209) In this letter, Ms. Gianesses asserted that: (1) plaintiff is in pain
90% of the time and cannot do household chores as a result of the pain; (2) plaintiff
cannot sit for long periods; and (3) pain keeps the plaintiff up at night which leaves her
tired during the day. (/d. at 209-1 0)
F. Regulatory Framework
The Social Security Administration is authorized to pay 018 to persons who are
"under a disability." 42 U.S.C. § 423(a)(1 )(E). Social Security Administration
regulations incorporate a five-step sequential evaluation process for determining
whether a claimant is under a disability. 20 C.F.R. § 404.1520; Sykes v. Apfel, 228
F.3d 259,262-63 (3d Cir. 2000) (citing 20 C.F.R. § 404.1520). The ALJ first considers
4
The letter does not provide a time frame regarding when plaintiff and Ms.
Gianesses were roommates and, thus, it is unclear whether Ms. Gianesses's
observations apply to the relevant time period; the ALJ notes this in his decision. (0.1.
11 at 25)
7
whether the claimant is currently engaged in substantial gainful activity. 5 If he is not,
then the ALJ considers in the second step whether the claimant has a "severe
impairment" that significantly limits his physical or mental ability to perform basic work
activities. If the claimant suffers a severe impairment, the third inquiry is whether,
based on the medical evidence, the claimant's impairment meets the criteria of an
impairment found in the "listing of impairments," 20 C.F.R. pt. 404, subpt. P, app. 1
(1999). If the claimant's impairment or combination of impairments meets or equals an
impairment set forth in the listing of impairments, the claimant is disabled. If the
impairment does not meet the criteria for a listed impairment, then the ALJ must first
determine the claimant's residual functional capacity ("RFC") before moving on to the
fourth and fifth steps of the evaluation process. RFC is defined as the most physical
and mental work activity an individual can perform despite limitations resulting from his
impairments. 20 C.F.R. § 404.1545. At step four, the ALJ assesses whether, despite
the existence of the severe impairment, the claimant has the RFC to perform his past
work. Assuming he can, he is not disabled. If, however, the ALJ determines that the
claimant cannot perform his past work, then, at step five, the ALJ must determine
whether there is other work in the national economy that the claimant can perform. If
the claimant can perform other work, he is not disabled; if he cannot perform other
work, he will be found disabled.
G. The ALJ's Decision
5
Substantial gainful activity is work activity that is both substantial and gainful.
20 C.F.R. § 404.1572. Work is substantial when it involves doing "significant physical
or mental activities." /d. Work is gainful when done for pay or profit. /d.
8
The ALJ ultimately concluded that plaintiff could perform other work in the
national economy and, therefore, was not disabled. The ALJ made the following
enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2006.
2. The claimant has not engaged in substantial gainful activity since December
15, 2003, the alleged onset date (20 CFR 404.1520(b) and 404.1571 et seq.).
3. The claimant has the following severe impairments: cervical and lumbar
degenerative disk disease, coronary artery disease, osteoarthritis, vestibular
migraines, and chronic myofascial pain syndrome (20 CFR 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 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 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 simple, routine,
unskilled, low stress, low concentration, low memory, light work as defined in 20
CFR 404.1567(b) except that she could lift 20 pounds occasionally, 10 pound
[sic] frequently, sit for 20 to 30 minutes, stand for 10 minutes continuously on an
alternate basis during an 8 hour a [sic] day, 5 days a week, with no prolonged
climbing, balancing and stooping, and avoiding heights and hazardous
machinery.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on September 7, 1953 and was 50 years old, which is
defined as an individual closely approaching advanced age, on the alleged
disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate
in English (20 CFR 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 CFR Part 404, Subpart P, Appendix 2).
10. Considering claimant's age, education, work experience and residual
functional capacity, there are jobs that exist in significant numbers in the national
9
economy that claimant can perform (20 CFR 404.1560( c) and 404.1566).
11. The claimant has not been under a disability, as defined in the Social
Security Act, from December 15, 2003 through the date of this decision (20 CFR
404.1520(g)).
(D.I. 11 at 12-28)
Ill. STANDARD OF REVIEW
Findings of fact made by the ALJ, as adopted by the Appeals Council, are
conclusive, if they are supported by substantial evidence. Accordingly, judicial review of
the ALJ's decision is limited to determining whether "substantial evidence" supports the
decision. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). In
making this determination, a reviewing court may not undertake a de novo review of the
ALJ's decision and may not re-weigh the evidence of record. See id. In other words,
even if the reviewing court would have decided the case differently, the ALJ's decision
must be affirmed if it is supported by substantial evidence.
See id. at 1190-91.
The term "substantial evidence" is defined as less than a preponderance of the
evidence, but more than a mere scintilla of evidence. As the United States Supreme
Court has noted, 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).
The Supreme Court also has embraced this standard as the appropriate standard for
determining the availability of summary judgment pursuant to Federal Rule of Civil
Procedure 56. The inquiry performed is the threshold inquiry of determining whether
there is the need for a trial-whether, in other words, there are any genuine factual
10
issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.
This standard mirrors the standard for a directed verdict under Federal Rule of
Civil Procedure 50( a), "which is that the trial judge must direct a verdict if, under the
governing law, there can be but one reasonable conclusion as to the verdict. If
reasonable minds could differ as to the import of the evidence, however, a verdict
should not be directed." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51
(1986) (internal citations omitted). Thus, in the context of judicial review under
§ 405(g), "[a] single piece of evidence will not satisfy the substantiality test if [the ALJ]
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." See Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir. 1986)
(quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). Where, for example,
the countervailing evidence consists primarily of the plaintiff's subjective complaints of
disabling pain, the ALJ "must consider the subjective pain and specify his reasons for
rejecting these claims and support his conclusion with medical evidence in the record."
Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990).
IV. DISCUSSION
Plaintiff's summary judgment motion identifies four6 reasons why plaintiff
6
Plaintiff's brief only sets forth three arguments; however, within one of those
arguments, an alternative but related argument exists. For clarity's sake, the court
discusses plaintiff's arguments in four separate sections.
11
believes the unfavorable decision is not based on substantial evidence. (0.1. 14 at 2)
First, plaintiff argues that the ALJ's RFC finding is incorrectly designated light work. (ld.
at 5-8) Plaintiff contends that the RFC actually places her in the sedentary work range
and reference to the Medical-Vocational Guidelines at this range directs a finding of
disabled. Second, plaintiff argues that the VE hypothetical did not properly include (1)
limitations in reaching and neck movement despite ample evidence of her cervical disk
disease and upper extremity arthritis; or (2) an allowance for unscheduled absences
despite ample evidence that she suffers from severe migraines and chronic pain
syndrome. (ld. at 8-12) Third, plaintiff argues that the ALJ failed to specify his reasons
for rejecting evidence that supports a contrary result despite circuit law requiring that he
provide such an explanation. (ld. at 10-12) Lastly, plaintiff asserts that the ALJ
improperly extended his disability determination beyond the relevant period of review.
(ld. at 13-14)
A. Is Plaintiff Limited to Sedentary Work and, Therefore, Disabled?
1. Standards
At step five of the sequential analysis, the ALJ will consult the MedicalVocational Guidelines, 20 C.F.R. Pt. 404, subpt. P, App 2, often called "the grids," in
order to determine whether an individual is disabled or not (i.e., to determine whether
an individual, who is unable to perform his or her past work, can perform other work).
The grids were adopted in 1979 to increase consistency and promote uniformity in
disability determinations. Social Security Ruling ("SSR") 83-10 at *1. The grids do this
by directing a "disabled" or "not disabled" finding based upon the interplay between
12
certain factors. /d. These factors include plaintiff's age, education, work experience
and RFC. A party's RFC is classified based upon the extent of extertional activity he or
she can perform- sedentary, light, medium, heavy or very heavy. /d. Sedentary work
"involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers or small tools." /d. at *5. Sedentary work is "performed
primarily in the seated position," "entails no significant stooping," and requires standing
and walking only "occasionally" (occasionally being defined as occurring "up to one third
of the time"). /d. Light work, on the other hand, involves a "good deal of walking or
standing." /d. The "primary difference" between a sedentary and light job is the amount
of sitting and/or standing required. /d. Light work also involves "lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds"
(with frequent being defined as occurring between one-third and two-thirds of the time).
/d. at *5-6.
Often times the grids cannot be applied precisely because, for example, an
individual's extertional capabilities fall somewhere between the light and sedentary
categories. In a situation like this, a decision of "disabled" or "not disabled" is not
directed by the grids; instead, the grids serve "as guidance for decisionmaking." /d. at
*1. When an individual's extertional abilities fall somewhere between two established
categories (such as sedentary and light) and those categories direct opposite
conclusions (i.e., "disabled" and "not disabled"), the ALJ should consider that: (1) an
exertional capacity that is only slightly reduced may still permit a finding of not disabled;
(2) an exertional capacity that is significantly reduced may require a finding of disabled;
13
and (3) because these are difficult judgment calls that often require expert opinion,
consulting aVE is appropriate. SSR 81-12 at *12.
2. Analysis
In the present case, plaintiff contends that, although ALJ Bentiz referred to her
RFC as one for light work, "it is actually an RFC for sedentary work." (D. I. 14 at 5) And
assuming the RFC was for sedentary work, this is beneficial to plaintiff because the
grids would direct a finding of disabled under 20 C.F.R. Pt. 404, subpt. P, App 2, Rule
201 .14. 7 (/d.) Plaintiff goes on to argue that, "because the jobs identified by the VE
would need to be performed at the sedentary level ... they cannot be relied upon to
support an unfavorable decision for a [plaintiff] who is disabled if limited to sedentary
work." (/d. at 7) Plaintiff contends that this is a sedentary RFC based upon two
observations. (/d. at 5-8) First, plaintiff argues that, since the ALJ's RFC does not
permit frequent standing and the primary difference between a sedentary and light job
is the amount of standing required, this is a sedentary RFC. (/d.) Second, plaintiff
contends that, since frequent lifting requires frequent standing and the RFC does not
permit frequent standing, plaintiff cannot do the frequent lifting required under the ALJ's
light RFC assessment. (/d.) In support of these observations, plaintiff directs the court
to Campbell v. Astrue, Civ. No. 09-5356, 2010 WL 4689521 (E.D. Pa. Nov. 2, 201 0),
and contends that the case "squarely" addresses the issues at bar. (D.I. 18 at 2-3)
Defendant disagrees with plaintiff, arguing that, because plaintiff's exertional capacity
fell somewhere between light and sedentary, a VE was properly consulted in order to
7
Defendant does not appear to dispute that the grids would direct a finding of
disabled assuming plaintiff's RFC was classified as sedentary.
14
determine whether plaintiff could find other work in the national economy, and the VE's
conclusion that other work exists constitutes substantial evidence. (0.1. 16 at 15-18)
In Campbell, the ALJ's RFC determination was as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a narrowed range of
light work as defined in 20 CFR 404.1567(b) which requires standing or
walking for no more than one to two hours in an eight hour work day and
which requires sitting for up to eight hours in an eight hour work day. The
claimant is limited to performing work which requires lifting no more than
twenty pounds occasionally and ten pounds frequently. In addition the
claimant is limited to jobs which allow the option of sitting or standing at will.
The claimant can frequently (but not constantly) engage in postural positions
such as bending, stooping, kneeling, crouching, and crawling but should
avoid heights, moving machinery, vibrations, and the climbing of ropes,
ladders, or scaffolding.
Campbell, 2010 WL 4689521 at *3. At a hearing, the ALJ asked a VE whether plaintiff
could hypothetically perform work in the national economy given the limitations
identified in his RFC. /d. The VE testified that the plaintiff could work in spite of his
limitations and identified several possible jobs. /d. In light of the VE's testimony, the
ALJ determined that plaintiff was not disabled. /d.
Based upon the ALJ's unfavorable decision and the RFC he used to arrive at his
decision, the plaintiff appealed. On appeal, the plaintiff and defendant in Campbell
made the same arguments that plaintiff and defendant make in the present case; in
other words, plaintiff argued that the RFC was actually sedentary and plaintiff "gridded
out" as disabled, and the defendant argued that the ALJ properly consulted and relied
on VE testimony where the plaintiff's exertional level fell between the light and
15
sedentary levels. 8
After careful consideration of the parties' arguments, the Campbell court
concluded that:
"[l]t would seem at first blush that the ALJ's RFC placed Campbell essentially
between the sedentary and light exertional levels, as he did not fit neatly
within either category, and that the ALJ properly complied with
Commissioner's rulings advising him to use the grids only as a framework for
decisionmaking and to take into account VE testimony as to how much the
claimant's various limitations erode the occupational base. See, e.g., SSR
83-12. We agree with Plaintiff, however, that the ALJ's finding that his RFC
allowed for a "narrowed range of light work" is problematic in two senses.
/d. at *4 (footnotes omitted). First, the court explained that the ALJ's characterization of
plaintiff's exertional capabilities as falling within the light range "is incongruent" with the
ALJ's particularized finding that Campbell could only stand or walk for one to two hours
a day. /d. at *5. As discussed, the primary difference between light and sedentary work
is the amount of sitting and/or standing/walking required. Based upon the ALJ's finding
that Campbell could only stand or walk for one or two hours in an eight-hour day (one-
8
Specifically, the Campbell court explained that:
The parties here disagree on the propriety of the ALJ's divergence from
the grids. Plaintiff contends that, while the ALJ broadly described his RFC
as at the "light" exertionallevel (although admittedly subject to additional
limitations, which rendered Rule 202.14 and its finding of "not disabled"
inapplicable), in reality, the ALJ was describing the capability of someone
limited to the sedentary level-which would result in him "gridding out" as
disabled pursuant to Rule 201.14. The Commissioner contends that the
ALJ appropriately concluded that Campbell's RFC matched neither grid
rule, based upon his assessment that Campbell could perform a "limited
range" of light work, and that the ALJ thus properly consulted aVE for
specific testimony concerning the work that Campbell would be capable of
performing notwithstanding those various limitations.
Campbell, 2010 WL 4689521 at *4.
16
eighth to one-fourth the day), the Campbell court concluded that the RFC more closely
corresponded with the sedentary level, which is characterized as requiring standing or
walking on an occasional (less than one-third of the day) basis. Second, the Campbell
court noted that there was "an inherent contradiction" between the ALJ's finding that
Campbell could frequently lift ten pounds, which requires frequent standing or walking
(between one-third and two-thirds of the day), when he was only able to stand for one
to two hours in an eight-hour work day (up to one-fourth of his day). /d. Based upon
these incongruities and contradictions, the Campbell court was compelled to remand.
/d. at *6.
Despite plaintiff's assertion, the same "inherent contradictions" and
"incongruities" present in Campbell do not exist in the present case. While plaintiff
argues that her RFC does not permit frequent standing, that is not an accurate
depiction of the ALJ's RFC. Plaintiff's RFC included a sit-stand option whereby the
plaintiff could "sit for 20 to 30 minutes [and] stand for 10 minutes continuously on an
alternate basis during an 8 hour day." In other words, plaintiff needed to be able to sit
and stand on an alternate basis and could stand between one-third and one-half of her
work day. Given that plaintiff can stand for between one-third and one-half of her work
day, she is not limited to the "occasional" (up to one-third) standing that is indicative of
sedentary work. Moreover, while plaintiff cannot lift for a full two-thirds of her day
because she can only stand for up to one-half of her day, her ability to lift between onethird and one-half of her day could still be characterized as "frequent" lifting since
frequent is defined as occurring between one-third and two-thirds of a day.
17
Instead of having the inherent contradictions and incongruities present in
Campbell, the ALJ in the present case had an RFC that placed plaintiff somewhere
between the light extertionallevel, which contemplates prolonged standing, and the
sedentary extertionallevel, which contemplates prolonged sitting. Faced with this
scenario, the ALJ, in accordance with Social Security Ruling ("SSR") 83-12, consulted
and relied on VE testimony in order to help him make the difficult decision of whether or
not plaintiff was disabled during the relevant period. See SSR 83-12 at *4 (explaining
that VEs should be consulted where alternate sitting and standing is required). While,
however, this consultation may have been appropriate based on the ALJ's RFC finding,
for the reasons discussed more fully below, the court is constrained to remand this case
back to the ALJ for another RFC determination.
B. Did the VE Hypothetical Include All Established Limitations?
1. Standards
As the Third Circuit explained in Podedworny v. Harris, 745 F.2d 210, 218 (3rd
Cir. 1984):
Testimony of vocational experts in disability determination proceedings
typically includes, and often centers upon, one or more hypothetical
questions posed by the ALJ to the vocational expert. The ALJ will normally
ask the expert whether, given certain assumptions about the claimant's
physical capability, the claimant can perform certain types of jobs, and the
extent to which such jobs exist in the national economy. While the ALJ may
proffer a variety of assumptions to the expert, the vocational expert's
testimony concerning a claimant's ability to perform alternative employment
may only be considered for purposes of determining disability if the question
accurately portrays the claimant's individual physical and mental
impairments.
Reliance on an expert's answer to a hypothetical question will not constitute substantial
18
evidence unless all credibly established limitations are included; remand is required
where the hypothetical question is deficient. ld; Rutherford v. Barnhart, 399 F.3d 546,
554 (3rd Cir. 2005). Third Circuit case law and governing regulations have provided
guidance on whether a limitation is "credibly established:"
[First, !]imitations that are medically supported and otherwise uncontroverted
in the record, but that are not included in the hypothetical question posed to
the expert, preclude reliance on the expert's response. [Second, and
r]elatedly, the ALJ may not substitute his or her own expertise to refute such
record evidence. [Third, I] imitations that are medically supported but are also
contradicted by other evidence in the record may or may not be found
credible-the ALJ can choose to credit portions of the existing evidence but
cannot reject evidence for no reason or for the wrong reason. Finally,
limitations that are asserted by the claimant but that lack objective medical
support may possibly be considered nonetheless credible. In that respect the
ALJ can reject such a limitation if there is conflicting evidence in the record,
but should not reject a claimed symptom that is related to an impairment and
is consistent with the medical record simply because there is no objective
medical evidence to support it.
Rutherford, 399 F .3d at 554.
With specific respect to establishing limitations based on a plaintiff's subjective
complaints of disabling pain, as previously discussed, an ALJ may only reject such
claims where he considers them, specifies his reason for rejecting them and supports
his conclusion with medical evidence in the record. Matullo, 926 F.2d at 245. 20
C.F.R. § 404.1529 and SSR 96-?p, which provides interpretive guidance on 20 C.F.R. §
404.1529, guide an ALJ with respect to subjective complaints of disabling pain and
credibility determinations that must be made with respect to such pain. 9 The
9
SSR 96-7p opens by noting that its purpose is to "clarify when the evaluation of
symptoms, including pain, under 20 CFR 404.1529 ... requires a finding about the
credibility of an individual's statements about pain or other symptom(s) and its
functional effects; to explain the factors to be considered in assessing the credibility of
the individual's statements about symptoms; and to state the importance of explaining
19
regulations explain that an ALJ must undertake a two-step process in evaluating
complaints of pain. SSR 96-?p at *2. First, the ALJ must determine whether there is an
impairment that could reasonably be expected to produce pain. /d. Second, after
making this determination, the ALJ must "evaluate the intensity, persistence, and
limiting effects of the individual's symptoms to determine the extent to which the
symptoms limit the individual's ability to do basic work activities." /d. When subjective
complaints of pain that are not substantiated by objective medical evidence are at
issue, the ALJ's evaluation requires a finding as to the claimant's credibility. /d. The
regulations require that credibility determinations be made based upon a review of the
entire record. /d. at *2-3. Aside from objective medical evidence, the ALJ must
consider the follow factors: (1) daily activities; (2) location, duration, frequency and
intensity of the individual's pain; (3) factors that precipitate and aggravate the
symptoms; (4) effectiveness of medications used in treating pain; (5) treatments other
than medications that alleviate pain; (6) any other non-treatment measures that help
alleviate pain (such as lying down); and (7) any other factors that relate to the pain at
issue. /d. at *3. Consistency in statements is another "strong indication" of credibility
that should be considered. /d. at *5.
Importantly, the ALJ's decision "must contain
specific reasons for the finding on credibility, supported by the evidence in the case
record, and must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual's statements and
the reasons for the finding about the credibility of the individual's statements in the
disability determination or decision." SSR 96-?p at *1
20
the reasons for that weight." /d. at *4. This degree of specificity "is necessary in order
to give the individual a full and fair review of his or her claim, and in order to ensure a
well-reasoned ... decision." /d.
2. Analysis
Plaintiff argues that the VE hypothetical question was deficient because it did not
include limitations for unscheduled absences despite the evidence in the record
concerning plaintiff's migraine headaches and myofasical pain syndrome. (0.1. 14 at 812) Plaintiff also argues that the VE hypothetical must have included limitations on the
plaintiff's reaching and neck movement because the ALJ found her cervical disk
disease and osteoarthritis to be severe impairments at step two of the sequential
evaluation process. 10 (ld; 0.1. 18 at 3-4)
a. Unscheduled absences due to migraines and chronic pain
As discussed more thoroughly in the background section of this opinion, several
doctors diagnosed and treated plaintiff for migraine headaches. A state agency
physician also noted that plaintiff had difficulty treating these migraines. Plaintiff also
testified to the debilitating effect these migraines had on her; she testified that the
migraines were constant, caused blurred vision and nausea, and relief was only
10
Two basic challenges to hypotheticals exist: (1) that the ALJ failed to convey
limitations to the vocational expert that were properly identified in the RFC assessment;
and (2) that the ALJ failed to recognize credibly established limitations during the RFC
assessment and so did not convey those limitations to the vocational expert.
Rutherford, 399 F.3d at 554. As just discussed, plaintiff is making two type two
challenges. The court initially notes, however, that a valid type one challenge exists
and provides another basis for remand. Specifically, when the ALJ posed his
hypothetical to the VE, the ALJ stated that plaintiff could lift 20 pounds frequently; this
was improper since his RFC explained that plaintiff could only lift 10 pounds frequently.
See supra, pg. 6, n.3.
21
possible after laying down in a quiet room.
The ALJ's decision acknowledges that the migraines could cause plaintiff pain,
but notes that the pivotal question is whether plaintiff's symptoms occur with such
frequency, duration and severity as to preclude work activity on a continuing and regular
basis. (D.I. 11 at 23-24) In other words, the ALJ acknowledges that he is required to
make a credibility determination on plaintiff's complaints of debilitating migraine pain. 11
Despite this acknowledgment, the ALJ's RFC assessment makes only passing
reference to plaintiff's migraines. The ALJ states that "Dr. Gohel noted that by April
2008, [plaintiff's] headaches were controlled with medication." (ld. at 24; 721) The ALJ
also states that he provided limitations to avoid heights and hazardous machinery in
consideration of plaintiff's migraine headaches. (Id.) These are the only references to
plaintiff's migraines in the ALJ's RFC assessment, and Dr. Gohel's 2008 notation falls
outside of the relevant time period at issue in this case.
Because an ALJ making a credibility determination on claims of disabling pain
must (1) consider the entire record including objective medical evidence and the seven
factors listed above, 12 (2) specify his reasons for rejecting such claims of disabling pain
and support his conclusions with medical evidence in the record, and (3) do so with a
fair amount of specificity, the court is constrained to remand for a more thorough
11
See infra, pg. 20, discussing this two-step evaluation process.
12
While there is no absolute requirement that an ALJ discuss all seven factors,
an ALJ should analyze "as many of these factors as is applicable in order to provide
sufficient findings for judicial review." Centeno v. Comm'r of Soc. Sec., Civ. No. 096023, 2010 WL 5068141, at *8 (D. N.J. Dec. 6, 201 0)
22
examination of the medical evidence on plaintiff's headaches and the ALJ's decision to
discount plaintiff's claim of disabling migraine headache pain. The ALJ's passing
references are insufficient.
Just as the ALJ acknowledged that plaintiff had migraine headaches that could
cause pain, the ALJ also explained that plaintiff had myofasical pain syndrome that
could cause a degree of distress. (/d. at 23) And again, the ALJ explained that the
pivotal question was whether plaintiff's symptoms occur with such frequency, duration
and severity as to preclude work activity on a continuing and regular basis. (/d. at 24)
In other words, a credibility determination was required. Regarding plaintiff's allegations
of chronic pain, the ALJ discounted plaintiff's complaints by explaining that "[plaintiff's]
pain was managed by pain medications when the [plaintiff] was treated by Dr.
Somori." 13 (/d. at 24) The ALJ went on to say that he limited the plaintiff to simple,
routine, unskilled, low concentration, low memory and low stress work in consideration
of her pain. (/d.) As discussed, the ALJ must consider the entire record (including the
seven factors discussed) and explain and support his credibility determinations with a
degree of specificity. The ALJ's decision was limited to a brief and somewhat
conclusory discussion of the relief provided to plaintiff through medication. 14 The ALJ's
13
While the court assumes this was the ALJ's means of discounting plaintiff's
claims of pain relating to her myofasical pain syndrome, the court notes that the ALJ
refers only to "pain." Because the ALJ spends time elsewhere in his RFC assessment
specifically discounting plaintiff's claims of pain relating to her other named impairments
(e.g., her cardiac impairments, lumbar spine impairments, etc), the court's assumption
is consistent with the record.
14
The court also notes that the ALJ did not provide a completely accurate
depiction of the medical evidence of record. While Dr. Somori's notes during the
relevant period do acknowledge plaintiff obtaining some relief from the medication, the
23
decision also summarily dismisses the testimony of Ms. Fry that corroborates plaintiff's
complaints of pain. (/d. at 25) This is insufficient; a more thorough examination of
subjective pain is required.
In summary, the court will remand so that the ALJ can provide a more thorough
examination of plaintiff's subjective complaints of disabling pain that is consistent with
the law discussed in this opinion. The court recognizes that cervical, lumbar and
cardiac impairments were the primary focus of plaintiff's case and it was
understandable, therefore, that the ALJ would focus his decision on these issues.
Because, however, plaintiff's appeal focuses on complaints of migraine headache pain
and myofasical pain syndrome, remand for a more detailed discussion of these
impairments is warranted.
b. Reaching and neck movement limitations
To the extent plaintiff argues, based upon step two severity findings, that
reaching and neck movement limitations were somehow mandated beyond what the
ALJ set forth in his RFC, the court disagrees. (0.1. 18 at 3-4) As explained in Holcomb
v. Astrue:
The second step [of the five-step sequential evaluation process] is generally
viewed as a de minimis screening device to dispose of groundless claims.
To surmount this hurdle, a claimant need only demonstrate that he or she
suffers from something more than a "slight abnormality" (or a combination of
slight abnormalities) which has no more than a minimal effect on his or her
ability to work. In this context, the word "severe" should not be construed in
accordance with its typical meaning. The purpose of the second step ... is
to dispose of claims in which a claimant fails to make a reasonable threshold
notes do not suggest the relief was sustained for any significant period or that the relief
could be characterized as substantial given plaintiff's relatively consistent pain score
ratings.
24
showing that his or her impairment is one which could conceivably keep him
or her from working.
Holcomb v. Astrue, Civ. No. 07-863, 2008 WL 3539987, at *5 (W.O. Pa. Aug. 13, 2008)
(citations and quotations omitted); see also, Newell v. Comm'r of Soc. Sec., 347 F.3d
541,549 (3d Cir. 2003); McCrea v. Comm'rofSoc. Sec., 370 F.3d 357,360 (3d Cir.
2004 ). It is prior to step four, when making an RFC determination, that an ALJ decides
the extent to which symptoms related to an impairment would limit an individual's ability
to work. This requires the ALJ to weigh conflicting evidence and is the process the ALJ
followed in the present case when he decided, based upon the evidence presented,
that plaintiff's disk disease and osteoarthritis did not limit her beyond what he set forth
in his RFC assessment. The ALJ placed great weight on the opinions of Drs.
Venkataramana and Aldridge that plaintiff was capable of light work in spite of her
impairments. (/d. at 25)
C. Failure to Examine the Evidence as Required by Circuit Law
1. Standards
The Third Circuit specifically requires that an ALJ explicitly 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 (3rd Cir.
1979) and Brewster v. Heckler, 786 F.2d 581, 584 (3rd Cir. 1986)). As the Third Circuit
stated in Dobrowolsky v. Califano, 606 F.2d at 406-07, "[t]his Court has repeatedly
emphasized that the special nature of proceedings for disability benefits dictates extra
care on the part of the agency in developing an administrative record and in explicitly
25
weighing all evidence." Put differently, "unless the Secretary has analyzed all evidence
and has sufficiently explained the weight he has given to obviously probative exhibits, to
say that his decision is supported by substantial evidence approaches an abdication of
the court's 'duty to scrutinize the record as a whole to determine whether the
conclusions reached are rational."' Gober v. Matthews, 57 4 F .2d 772, 776 (3rd Cir.
1978) (citation omitted). In short, special emphasis is placed on development of the
entire record so that a reviewing court can perform its appellate functions. Cotter v.
Harris, 642 F.2d 700, 704-05 (3rd Cir. 1981 ).
2. Analysis
Plaintiff argues that, because an ALJ is required to explain why he rejects
probative evidence, the ALJ's failure to explain his rejection of several medical opinions
relating to reaching/neck movement requires remand. (D.I. 14 at 10-12) Specifically,
plaintiff claims that the ALJ failed to consider and explain his rejection of: ( 1) Dr.
Aldridge's finding that plaintiff was limited in her ability to reach in all directions; (2) Dr.
Helou's finding that plaintiff had a limited range of motion in her cervical spine; and (3)
Dr. Somori's notation of a failed cervical laminectomy. (/d.)
With respect to plaintiff's argument that the ALJ failed to explain his rejection of
Dr. Aldridge's finding, the court finds that plaintiff mischaracterizes Dr. Aldridge's
conclusion. Dr. Aldridge's RFC assessment specifically found that plaintiff could
frequently (between one-third and two-thirds of her day) reach in all directions, but
could not continuously lift overhead; Dr. Aldridge then concluded that plaintiff was
capable of a light RFC. Contrary to plaintiff's assertion, this finding does qualify as
26
probative evidence that would suggest a contrary disposition (and whose rejection
would therefore need to be explained).
With respect to Dr. Helou's finding that plaintiff had a limited range of motion in
her cervical spine, the court finds that the ALJ explicitly considered this and justified his
RFC assessment in spite of this finding. At page six of his decision, the ALJ explicitly
notes that Dr. Helou found plaintiff to "exhibit[] limited flexion, extension and lateral
rotation in her cervical spine." (D. I. 11 at 17) Subsequently, the ALJ emphasized that
he placed great weight on Drs. Venkataramana and Aldridge's opinions that plaintiff
was capable of light work despite her cervical impairments. (/d. at 25)
Finally, with respect to Dr. Somori's "failed cervical laminectomy" observation,
the court notes that the ALJ's decision does not explicitly reference this notation. While
the court might ordinarily find this harmless error for many of the reasons defendant
sets forth in his brief, because the court already remands on other grounds and this
circuit places great emphasis on "explicit" review of all probative evidence, the ALJ
should address this notation on remand. 15
D. What Is the Appropriate Time Frame for this Decision?
The ALJ concluded his decision by finding that plaintiff "was not under a disability
15
Defendant's brief emphasizes that: (1) Dr. Somori is a pain management
physician and not a specialized surgeon like Dr. Venkataramana; (2) the notation was
based on subjective complaints and not medical evidence in the record; and (3) the
notation is inconsistent with objective medical evidence of record. (D.I. 16 at 12-13) In
other words, even though the notation is not explicitly referenced in the decision, the
record and the ALJ's decision contain ample reasons for rejecting this observation.
27
from December 15, 2003 through the date of [his] decision" (August 8, 2008). 16 (/d.
at 28) (emphasis added) Plaintiff objects to this final finding, arguing that this disability
determination extends beyond the relevant period of review. 17 (D.I. 14 at 13) Both
plaintiff and defendant agree that the relevant period for review is December 15, 2003
(plaintiff's alleged onset date) through December 31, 2006 (plaintiff's DLI). (D. I. 16 at
17) The ALJ's decision also acknowledges this as the proper period of review (e.g. D.l.
11 at 22), thus contradicting himself regarding the relevant period and extent of his
review. Given that all sides acknowledge the relevant time period as being December
15, 2003 through December 31, 2006, the ALJ's decision on remand should reflect this.
V. CONCLUSION
For the reasons discussed above, the court denies both plaintiff's and
defendant's motions for summary judgment and remands the case for further
proceedings consistent with this memorandum opinion. An appropriate order shall
issue.
16
Page one of the ALJ's decision also states that plaintiff is not disabled from
December 15, 2003 through the date of his decision. (D.I. 11 at 12)
17
Plaintiff is primarily concerned that this finding could negatively effect her
ability to obtain Supplemental Security Income (SSI) benefits. (D.I. 14 at 13)
28
from December 15, 2003 through the date of [his] decision" (August 8, 2008). 16 (/d.
at 28) (emphasis added) Plaintiff objects to this final finding, arguing that this disability
determination extends beyond the relevant period of review. 17 (D. I. 14 at 13) Both
plaintiff and defendant agree that the relevant period for review is December 15, 2003
(plaintiff's alleged onset date) through December 31, 2006 (plaintiff's DLI). (D. I. 16 at
17) The ALJ's decision also acknowledges this as the proper period of review (e.g. D.l.
11 at 22), thus contradicting himself regarding the relevant period and extent of his
review. Given that all sides acknowledge the relevant time period as being December
15, 2003 through December 31, 2006, the ALJ's decision on remand should reflect this.
V. CONCLUSION
For the reasons discussed above, the court remands the case for further
proceedings consistent with this memorandum opinion. Plaintiff's motion for summary
judgment, therefore, is granted and defendant's motion for summary judgment is
denied. An appropriate order shall issue.
16
Page one of the ALJ's decision also states that plaintiff is not disabled from
December 15, 2003 through the date of his decision. (D.I. 11 at 12)
17
Plaintiff is primarily concerned that this finding could negatively effect her
ability to obtain Supplemental Security Income (SSI) benefits. (D. I. 14 at 13)
28
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