Kelley v. Astrue
Filing
24
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 12/16/2011. (rpg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WILLIAM T. KELLEY,
Plaintiff,
Civ. No. 10-323-LPS
V.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Angela Pinto Ross, Esquire, ofDOROSHOW, PASQUALE, KRAWITZ, SIEGEL & BHAYA,
Wilmington, Delaware.
Attorney for Plaintiff.
Charles M. Oberly, III, Esquire, United States Attorney, Dina White Griffin, Esquire, Special
United States Attorney, and Patricia A. Stewart, Esquire, Special Assistant United States
Attorney, ofthe OFFICE OF THE UNITED STATES ATTORNEY, Wilmington, Delaware.
Of Counsel: Eric P. Kressman, Esquire, Regional Chief Counsel and Shawn C. Carver, Esquire,
Assistant Regional Counsel, ofthe SOCIAL SECURITY ADMINISTRATION, Philadelphia,
Pennsylvania.
Attorneys for Defendant.
MEMORANDUM OPINION
December 16, 2011
Wilmington, Delaware
'~U~.'D~
I.
Judge:
INTRODUCTION
Plaintiff, William T. Kelley ("Kelley" or "Plaintiff'), appeals from a decision of
Defendant, Michael J. Astrue, the Commissioner of Social Security ("Commissioner" or
"Defendant"), denying his application for disability insurance benefits ("DIB") and supplemental
security income ("SSI") under Title II and Title XVI of the Social Security Act (the "Act"), 42
U.S.C. §§ 401-433, 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
Presently pending before the Court are cross-motions for summary judgment filed by
Kelley and the Commissioner. (D .I. 16, 20) Kelley asks the Court to reverse and remand
Defendant's decision. (D.I. 17) Defendant requests that the Court affirm his decision. (D.I. 21)
For the reasons set forth below, the Court will deny Kelley's motion for summary judgment and
grant the Commissioner's motion.
II.
BACKGROUND
A.
Procedural History
Kelley filed his application for DIB and SSI on January 16, 2007, alleging disability since
March 1, 2006, due to major depression, anxiety, panic attacks, poor concentration, headaches,
and cervical disc disease that caused head and neck pain. (D.I. 12 ("Transcript" and hereinafter
"Tr.") at 56, 145, 166) Kelley's application was denied initially on August 31, 2007, and was
again denied after reconsideration on December 7, 2007. (Tr. 55-58) Thereafter, Kelley
requested a hearing before an administrative law judge (hereinafter "ALJ"). (Tr. 76) A hearing
was held on February 25, 2009. (Tr. 23, 25) The ALJ issued a decision dated June 24, 2009,
concluding that Kelley was not disabled and denying benefits. (Tr. 5-22) Kelley timely
requested review of the ALJ's decision by the Appeals Council, which denied the request without
substantive explanation on February 19, 2010. (Tr. 3-4, 52-54) Thus, the June 24, 2009 decision
ofthe ALJ became the final decision ofthe Commissioner. See 20 C.F.R. §§ 404.955, 404.981;
Sims v. Apfel, 530 U.S. 103, 107 (2000).
On April21, 2010, Kelley filed a complaint seeking judicial review ofthe ALJ's June 24,
2009 decision. (D.I. 2) On March 7, 2011, Kelley moved for summary judgment and filed an
opening brief in support. (D .I. 16, 17) In response, the Commissioner filed a cross-motion for
summary judgment, and a combined opening and answering brief in support of his cross-motion
and opposition to Kelley's motion. (D.I. 20, 21) Kelley then filed a reply brief. (D.I. 23)
B.
Factual Background
1.
Kelley's Medical History, Treatment, and Condition
Kelley was fifty-one years old when he applied for DIB and SSI and, thus, is viewed for
present purposes as closely approaching advanced age. See 20 C.F.R. §§ 404.1563, 416.963; Tr.
56. Kelley has a high school education and past relevant work experience as a manager of retail
stores and as a fast food cook. (Tr. 20) In his applications for DIB and SSI, Kelley relied on
several causes for his disability, addressed in detail below.
a.
Cervical Degenerative Disk Disease and Headaches
Kelley sought medical treatment for head and neck pain complaints in June 2005, when
he was referred by Dr. John Asman, M.D., to Dr. Paul C. Peet, M.D., a neurologist. (Tr. 221)
Kelley's general and neurologic exam revealed no evidence of deficit, with exception of a
significant paravertebral muscle spasm. (Tr. 222) Dr. Peet ordered cervical spine x-rays, which
showed multilevel degenerative disk disease at C3-4, C4-5, C5-6, and C6-7, as well as a
2
prominent anterior osteophyte at C5-6. (Tr. 226) The x-ray results were compared to a prior
study dated November 22, 2004, and no significant changes were found. (Tr. 226) On July 5,
2005, Dr. Peet noted that Kelley continued having headaches and neck pain and prescribed
physical therapy. (Tr. 220) Kelley attended five physical therapy sessions from August 8, 2005,
to August 18, 2005. He was then discharged upon expiration of prescription with no additional
physical therapy recommended. (Tr. 204-05)
On August 31, 2005, Dr. Peet referred Kelley to Dr. Mohammed Mehdi, M.D., a pain
management specialist. (Tr. 219) Dr. Mehdi diagnosed bilateral occipital neuralgia causing head
and neck pains and ordered an MRI. (Tr. 240-41) The MRI showed a C6-7 disc protrusion and
degenerative changes in the lower lumbar spine. (Tr. 240-41) Dr. Mehdi prescribed various
medications to alleviate the pain symptoms and also, on November 22, 2005, performed a
cervical epidural steroid injection. (Tr. 242) After the injection, Kelley had three follow-up
visits- in December 2005 and then January and March 2006- during which Dr. Mehdi
prescribed pain medication, including Elavil, Voltaren, and Fiorinal. (Tr. 229-34) There are no
records of visits between March 2006 and February 2007. On February 2, 2007, Dr. Mehdi noted
that Kelley could not continue with him after being laid off from work, and that Kelley was not
working but was applying for disability. Dr. Mehdi also recommended a consultation with a
surgeon. (Tr. 227-28)
Kelley saw Dr. Ronald C. Sabbagh, M.D., an orthopedic surgeon, on February 15,2007.
(Tr. 244) On March 1, 2007, Dr. Sabbagh reviewed new MRI results, noting that the MRI of the
head was essentially normal and the MRI of the neck demonstrated some age appropriate
degenerative changes. (Tr. 243) Dr. Sabbagh further stated that he was uncertain what was
3
causing Kelley's headaches, that the disc and osteophyte complexes normally would cause
radicular pain down the arm (which was not among Kelley's complaints), and that Kelley's neck
condition did not require any surgical options. (Tr. 243) Dr. Sabbagh, who did not schedule a
follow-up, referred Kelley to a neurologist. (Tr. 243)
On April 26, 2007, Kelley saw neurologist Dr. Stephen F. Penny, M.D., who diagnosed
severe headaches and obstructive sleep apnea. (Tr. 252) Dr. Penny confirmed that previous
diagnostic tests did not suggest a structural cause of the cough-induced headaches, and suggested
that migraine was the most likely diagnosis. (Tr. 253) His examination showed that Kelley
maintained normal strength in upper and lower extremities as well as normal coordination,
sensation, and reflexes. (Tr. 253) Dr. Penny recommended Topamax for preventative therapy, a
right occipital nerve block- which was performed the following day- and a sleep study. (Tr.
253-55) The first overnight polysomnogram, conducted on June 12, 2007, showed a moderate
sleep disorder and moderate to severe snoring. (Tr. 302) On July 18, 2007, the second sleep
study showed that sleep apnea was controlled with a nasal continuous positive airway pressure
device and sleep efficiency was improved. (Tr. 319) On July 26, 2007, Dr. Penny again noted
that clinical characteristics of the headaches were consistent with migraines. (Tr. 320) Kelley
continued to see Dr. Penny, who again opined that pain characteristics were typical of migraine
and that there were no findings on examination to suggest a cervical radiculopathy. (Tr. 324)
Dr. Penny then referred Kelley to Dr. Ronald M. Lieberman, D.O., for pain management
evaluation. (Tr. 324)
On October 4, 2007, Dr. Lieberman saw Kelley and diagnosed him with chronic
cervicogenic headaches and could not rule out an underlying ligamentous laxity disorder. (Tr.
4
326-28) Dr. Lieberman recommended several types of nerve blocks, which were performed
between October 2007 and January 2008. (Tr. 362-66) Kelley's response to all of the blocks
was nondiagnostic. (Tr. 362-63) On January 30 and February 6, 2008, Dr. Lieberman stated that
he was unable to explain Kelley's headaches objectively; he also reported a detailed conversation
with Dr. Penny, who had worked up all medical possibilities for Kelley's etiology. (Tr. 361-62)
On April28, 2008, Kelley was evaluated at Coastal Pain Care Physicians 1 for constant
head and neck pain rated as four on a ten-point scale. A cervical MRI was ordered. (Tr. 444-46)
The MRI findings did not change significantly compared to previous examination: Kelley had a
multilevel disk and facet disease with a left-sided nerve foramina! encroachment at C3-4, C5-6,
and C6-7; the only observed change was a more pronounced left paracentral disk and osteophyte
complex contacting the ventral surface of the cord but not causing a significant cord deformity at
C6-7. (Tr. 371) On May 19, 2008, a physician noted that prescription medications were working
without side effects and recommended increased dosage of Soma, a muscle relaxant, and
therapeutic massage. (Tr. 443) Kelley returned for follow-up visits through February 2009, and
over that time his medication plan was adjusted with Avinza, morphine, being added in
December 2008 due to continued complaints about pain. (Tr. 433-42) Kelley initially reported
improvement after adding Avinza, but in February 2009 he complained that it only lasted
fourteen hours, after which the prescribed dosage was increased. (Tr. 428-32)
1
Kelley states that he was evaluated by Dr. Gabriel J. Somori, M.D. (D.I. 17 at 6), but
there is only one progress note on his letterhead, and it is hard to determine from the rest of the
treatment notes whether it was Dr. Somori who saw Kelley on other occasions (see Tr. 428-47).
5
b.
Depression
Kelley started treatment for his depression in early 2007 with Gwyn A. Stup, APRN, and
Dr. Diane S. Cohen, LCSW, ofF.H. Everett & Associates. (Tr. 256-59, 265-71) On February
16, 2007, Ms. Stup assessed a depressed and anxious mood and affect, while the remainder of
Kelley's mental status examination was normal. (Tr. 257-58) Kelley was cooperative and
friendly, with relevant and normal speech, a normal range, and good judgment and insight. (Tr.
257-58) Ms. Stup diagnosed Kelley with a moderate recurring depression, and noted that Kelley
was dealing with grief from losing his parents and the loss of his job. (Tr. 256, 259) She gave
him a global assessment of functioning ("GAF") score of 60. 2 (Tr. 259) In May 2007, Ms. Stup
noted increased mood swings, crying spells and stress. (Tr. 260)
Kelley continued seeing Ms. Stup through February 2009. She noted ongoing symptoms
of attention deficits, mood swings, depression, frustration, anger, panic attacks, and anxiety with
slight improvement. (Tr. 331-39,342-47, 388-402) Other aspects ofthe mental status
examinations were generally normal (Kelley was alert, oriented, cooperative, with intact memory
and fluent speech); the GAF scores ranged from 41 to 60. (Tr. 331-39, 342-47, 388-402) On
2
Global assessment of functioning is a numerical scale used by mental health
professionals to subjectively evaluate the social, occupational, and psychological functioning of
adults. See Diagnostic and Statistical Manual ofMental Disorders 32-34 (4th ed. 2000). A
score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) or any serious impairment in social or occupational functioning (e.g., few
friends, unable to keep a job). See id. at 34. A score of 51 to 60 indicates moderate symptoms,
such as flat affect and circumstantial speech, occasional panic attacks or moderate difficulty in
social or occupational functioning, including few friends and conflicts with peers or co-workers.
See id. A score of 61 to 70 indicates some mild symptoms, such as depressed mood and mild
insomnia, or some difficulty in social or occupational functioning, such as occasional truancy,
but generally functioning pretty well and having some meaningful interpersonal relationships.
See id.
6
October 31, 2007, Ms. Stup opined that Kelley was improving (with increased medication),
including by having fewer panic attacks. err. 332)
Kelley reported difficulty getting along with his family in January 2008, as well as
problems keeping appointments with friends and stress at work in September 2008. (Tr. 388,
397) On December 3, 2008, Ms. Stup noted that Kelley reported improvement after medication
dosage increase. Even though Kelley still had "some bad days," he indicated that he got better at
dealing with them. (Tr. 427) After a mental status exam in February 2009, Ms. Stup noted an
anxious manner, hyperactivity, depressed and anxious affect, obsessions and compulsions, and
fair common sense, impulse control, and judgment. Kelley's GAF score was 55-60. (Tr. 423-25)
2.
Medical Source Opinions
a.
Physical Impairments
On August 4, 2007, Kelley underwent a physical residual capacity assessment by Dr.
Robert Palandjian, a state agency medical consultant. (Tr. 272-78) Dr. Palandjian noted that
Kelley could occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds,
stand and/or walk for six hours in an eight hour workday, sit for a total of six hours, frequently
climb a ramp or stairs but never climb ladders, ropes, or scaffolds, and occasionally balance,
stoop, kneel, crouch, and crawl. (Tr. 273-74) Dr. Palandjian noted that reaching in all directions
was limited to occasional, but not frequent or continuous, because of the cervical disk disease.
(Tr. 274) No visual or communicative limitations were established. (Tr. 274-75) Dr. Palandjian
limited exposure to environmental factors that could exacerbate migraines, such as extreme cold
and heat, noise, vibrations, and fumes, odors, dusts, or gases. (Tr. 275) He also limited exposure
to hazards because of the prescribed medications. (Tr. 275) Dr. Palandjian noted Kelley's partial
7
credibility, and indicated that the magnitude of Kelley's allegations was disproportionate to the
medical evidence in the record and reported activities of daily living. (Tr. 278) Dr. Palandjian
concluded that Kelley was capable of light activity with overhead and hazard restrictions. (Tr.
278) On December 6, 2007, Dr. Palandjian's assessment was affirmed by Dr. J. Acuna, a state
agency medical consultant, since the new medical evidence did not significantly alter the
limitations found on August 4, 2007. (Tr. 341)
On October 13, 2008, Dr. Somori filled out a cervical spine residual functional capacity
questionnaire. (Tr. 404-08) Dr. Somori diagnosed degenerative cervical disk and facet disease
and tension headaches. (Tr. 404) He noted severe cervical pain radiating around the forehead
that increased with coughing, sneezing, and laughing, impaired sleep, chronic fatigue, muscle
spasm, and decreased range of motion of the cervical spine. (Tr. 404) Dr. Somori also noted that
Kelley had daily headaches, which lasted thirty minutes to many hours, but that the pain was
controlled by medications which caused no side effects. (Tr. 405) Dr. Somori opined that Kelley
could walk eight blocks without rest, sit thirty minutes and stand twenty minutes at one time, sit
and stand or walk for two hours total in an eight hour workday, that he needed to switch positions
at will, and need to take two unscheduled breaks a day. (Tr. 406-07) Dr. Somori also noted that
Kelley could lift and carry ten pounds frequently, twenty pounds occasionally, and never fifty
pounds; could rarely look up, could occasionally look down, and could turn his head right or left,
and could frequently hold his head in static position. (Tr. 407) Dr. Somori further opined that
Kelley could occasionally twist, stoop, crouch or squat, and climb stairs and ladders, and that
Kelley could reach in all directions, including overhead, 10% of an eight hour workday. (Tr.
408) Dr. Somori concluded that Kelley's impairments were likely to produce good and bad days,
8
that Kelley was likely to be absent more than four days per month, and that he needed a low
stress job. (Tr. 406, 408)
b.
Mental Impairments
On August 26, 2007, Dr. Joseph Keyes, Ph.D., conducted a clinical psychological
evaluation and a memory functioning assessment. (Tr. 279-84) Dr. Keyes noted an overall
appropriate appearance and behavior and a level of motor activity within normal limits. (Tr. 280)
Dr. Keyes noted orientation and mental alertness within normal limits, affect appropriate to
situation, adequate social and interpersonal skills, adequate interest and motivation, and
independence in self-care skills. (Tr. 281-82) Memory functioning was adequate and within
normal limits, with no memory impairments or disorders noted. (Tr. 281) Dr. Keyes concluded
that Kelley had a mild major depressive disorder and a panic disorder with agoraphobia. (Tr.
282) Dr. Keyes gave Kelley a GAF score of 60-65. (Tr. 282)
On August 29, 2007, Dr. Christopher King, Ph.D., conducted a psychiatric review of the
record and concluded that Kelley had mild depression, anxiety, and a history of marijuana abuse,
all of which were not severe. (Tr. 285) Dr. King concluded that there were no restrictions of
activities of daily living, no difficulties in maintaining concentration, persistence, or pace, and no
repeated episodes of decompensation of extended duration. (Tr. 293) He also noted that Kelley
had mild difficulties in maintaining social functioning. (Tr. 293) On December 5, 2007, Dr.
King's findings were affirmed by Dr. Pedro M. Ferreira, Ph.D. (Tr. 340)
On January 16, 2008, Ms. Stup completed a medical certification form, diagnosed Kelley
with a major depressive disorder, and opined that he was unable to work. (Tr. 347) On July 22,
2008, Ms. Stup filled out a mental impairment questionnaire. (Tr. 41 0-15) She noted that Kelley
9
had difficulty responding to his medication for depression with mood changes, horrible bouts of
anger, and social difficulties interacting with others. (Tr. 41 0) Ms. Stup opined that Kelley
could not tolerate mental stress, and that he got easily angered and frustrated because of his
inability to pay attention and follow instructions. (Tr. 412-13) She also noted that Kelley was
unable to maintain attention in a two-hour segment, unable to complete a normal workday and
workweek without interruptions from psychologically based symptoms, and unable to perform at
a consistent pace without an unreasonable number and length of rest periods. (Tr. 412) Ms. Stup
concluded that Kelley's impairments would cause him to miss more than four days of work per
month. (Tr. 415)
3.
The Administrative Hearing
Kelley's administrative hearing took place on February 25, 2009. (Tr. 23-51) Kelley was
represented by counsel and testified at the hearing. In addition, a vocational expert testified.
a.
Plaintiffs Testimony
At the hearing Kelley testified that he was born on November 24, 1955, had a high school
education, and had some previous work experience as a manager and a cook. (Tr. 29-30) He had
been unemployed since 2006, when he had lost his job at a liquor store because of the business's
financial difficulties. (Tr. 30) After being fired, Kelley looked for another job, but at that time
his neck and head condition deteriorated. He also had to take care of his ill father, who required
twenty-four hour care. (Tr. 31) At the time of the hearing, Kelley collected welfare assistance
and food stamps and also received help from his brother, with whom he lived. (Tr. 36-37)
Kelley also helped at a local antique shop up to fifteen hours a week in return for being allowed
to use the space to sell some of his things, from which he received less than 1,000 dollars a
10
month. (Tr. 42-43) Kelley testified that he was unable to work a full-time job because he could
not guarantee working a full forty hour week due to unpredictability of his good days turning into
bad days. (Tr. 44)
Kelley testified that his neck and head pain increased after his father's death; by the time
of the hearing he was suffering from severe headaches that lasted from twenty minutes to an
hour. (Tr. 31, 38) Initially, the headaches were triggered by coughing or sneezing, but by the
time of the hearing laughing, crying, bending the wrong way, or reaching under a table could set
off the pain. (Tr. 38-39) To cope with the incidents of extreme pain, Kelley took Dilaudid and
laid down until the pain would go away. (Tr. 39) He was also taking Avinza, slow release
morphine, on a daily basis, the dosage of which was continually increased. (Tr. 39) Kelley
testified that he experienced only occasional grogginess from his medications, if he failed to eat
properly. (Tr. 40) Kelley explained that his severe pain affected his ability to walk and stand
because it was making him dizzy and nauseous. (Tr. 42) He also testified that he could not lift
anything extremely heavy because it could aggravate his neck pain. (Tr. 41)
Kelley explained that he first sought mental health help after the death of his parents. (Tr.
32) He testified that his depression changed his personality and that he did not enjoy going out
or going to his friends' homes as he used to. (Tr. 40) His doctors were also trying to figure out
whether he had attention deficit disorder by giving him some medicine to see whether it would
improve his condition. (Tr. 41) Kelley explained that he was seeing Ms. Stup on a monthly
basis for medical check-ups and Dr. Somori monthly for adjusting his pain medications. (Tr. 41)
Kelley also testified about activities of daily living. He explained that he used to enjoy
gardening, fishing, and antiquing, but could not continue because of his medical conditions. (Tr.
11
34-35) Kelley was the sibling responsible for closing his parents' house after his father's death,
following which Kelley moved in with his brother, where he helped with the chores on good
days. (Tr. 33, 37) On a usual day, Kelley went to help his friend who owned an antique shop or
watched TV at home or did basic house chores, like laundry. (Tr. 42) He also testified that his
conditions did not affect his ability to take care of himself: he could get dressed, shower, and do
other things without assistance. (Tr. 44)
b.
Vocational Expert's Testimony
Following Kelley's testimony, the ALJ heard the testimony of a vocational expert, Gary
Young. (Tr. 45) Mr. Young characterized Kelley's past job as a manager of a retail store as
skilled and light, but very heavy as it was performed. (Tr. 45) Kelley's prior job as a fast food
cook was skilled and at medium exertionallevel. (Tr. 45) Mr. Young further explained that
there were not enough transferrable skills to sedentary work to make a full-time job. (Tr. 45-46)
He also explained that pain and depression could affect the ability to work: the more severe the
symptoms, the less likely a claimant could work. (Tr. 46)
The ALJ then asked the expert to consider a hypothetical person who was fifty-five years
old and closely approaching advanced age, with a high school education and prior work history
similar to Kelley's, and with all the symptoms and limits that Kelley testified to at the hearing.
(Tr. 47) When the ALJ asked whether the hypothetical person would be capable of performing
any jobs, the expert responded in the negative. (Tr. 4 7) The ALI then changed the hypothetical
to a similar person who was capable of working at a light level of exertion, despite the
allegations of subjective symptoms. (Tr. 47) He further limited the second hypothetical question
to simple routine jobs that would give an opportunity to occasionally change positions to relieve
12
discomfort and would not involve any overhead tasks. (Tr. 4 7) The expert testified that none of
the past work could be performed, but that the hypothetical person could perform the following
jobs: (1) office helper, with 12,000 jobs locally and 197,000 nationally; (2) cashier, with 100,000
jobs locally, and 1.5 million nationally; and (3) inspector, with 2,000 jobs locally and 300,000
nationally. (Tr. 47-48)
Kelley's representative asked Mr. Young to determine whether the hypothetical claimant
with all of the restrictions outlined in Dr. Somori's questionnaire could perform any of the jobs
the expert cited as examples. (Tr. 48) Mr. Young testified that full-time work would be
precluded because of the four or more days per month of absences, although the lifting and
postural limitations would not make a difference. (Tr. 49) Kelley's representative also asked
about Dr. Somori's opinion that Kelley's symptoms would be severe enough to frequently
interfere with attention and concentration needed to perform even simple work tasks. (Tr. 49)
The vocational expert responded that this, too, would preclude work. (Tr. 49)
3.
The ALJ's Findings
On June 24, 2009, the ALJ issued the following findings: 3
1.
The claimant meets the insured status requirements of the Social Security
Act through December 31, 2011.
2.
The claimant has not engaged in substantial gainful activity since March 1,
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 impairments: head pain,
degenerative disk disease in the cervical spine, depression, and
anxiety (20 C.F.R. 404.1520(c) and 416.920(c)).
3
The ALJ' s factual findings have been extracted from his decision, which interspersed
factual findings and commentary. (Tr. 8-22)
13
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).
5.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 C.F.R. 404.1567(b) and
416.967(b), except that claimant is limited to performing tasks that
are simple and routine in nature, that he must be allowed the
opportunity to occasionally change positions to relieve his
discomfort and that he cannot perform overhead tasks.
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 on November 24, 1955, and was fifty years old,
which is defined as an individual closely approaching advanced age, on the
alleged disability onset date (20 C.F.R. 404.1563 and 416.964).
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 Medical-Vocational Rules as a framework
supports a finding that the claimant is "not disabled," whether or not
claimant has transferable job skills. See SSR 82-41; 20 C.F .R. 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 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 March 1, 2006 through the date of this
decision (20 C.F.R. 404.1520(g) and 416.920(g)).
(Tr. 8-22)
14
III.
LEGALSTANDARDS
A.
Motion for Summary Judgment
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56( a). In determining the appropriateness of summary judgment, the Court must "review
the record taken as a whole ... draw[ing] all reasonable inferences in favor of the nonmoving
party, and it may not make credibility determinations or weigh the evidence." Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (internal quotation marks omitted).
If the Court is able to determine that there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law, summary judgment is appropriate. See Hill
v. City ofScranton, 411 F .3d 118, 125 (3d Cir. 2005).
B.
Review of the ALJ's Findings
The Court must uphold the Commissioner's factual decisions if they are supported by
"substantial evidence." See 42 U.S.C. §§ 405(g), 1383(c)(3); Monsour Med. Ctr. v. Heckler, 806
F.2d 1185, 1190 (3d Cir. 1986). "Substantial evidence" means less than a preponderance of the
evidence but more than a mere scintilla of evidence. See Rutherford v. Barnhart, 399 F.3d 546,
552 (3d Cir. 2005). 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).
In determining whether substantial evidence supports the Commissioner's findings, the
Court may not undertake a de novo review of the Commissioner's decision and may not re-weigh
15
the evidence of record. See Monsour, 806 F.2d at 1190. The Court's review is limited to the
evidence that was actually presented to the ALJ. See Matthews v. Apfel, 239 F.3d 589, 593-95
(3d Cir. 2001). However, evidence that was not submitted to the ALJ can be considered by the
Appeals Council or the District Court as a basis for remanding the matter to the Commissioner
for further proceedings, pursuant to the sixth sentence of 42 U.S.C. § 405(g). See Matthews,
239 F.3d at 592. "Credibility determinations are the province of the ALJ and only should be
disturbed on review if not supported by substantial evidence." Gonzalez v. Astrue, 537
F. Supp. 2d 644, 657 (D. Del. 2008) (internal quotation marks omitted).
The Third Circuit has explained that a "single piece of evidence will not satisfy the
substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence particularly certain types of evidence (e.g. that offered by treating physicians) -or if it really
constitutes not evidence but mere conclusion." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.
1983).
Thus, the inquiry is not whether the Court would have made the same determination but,
rather, whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d
1211, 1213 (3d Cir. 1988). Even if the reviewing Court would have decided the case differently,
it must give deference to the ALJ and affirm the Commissioner's decision if it is supported by
substantial evidence. See Monsour, 806 F.2d at 1190-91.
16
IV.
DISCUSSION
A.
Disability Determination Process
Title II of the Social Security Act, 42 U.S.C. § 423(a)(l)(D), "provides for the payment of
insurance benefits to persons who have contributed to the program and who suffer from a
physical or mental disability." Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Title XVI of the
Social Security Act provides for the payment of disability benefits to indigent persons under the
SSI program. 42 U.S.C. § 1382(a). A "disability" is defined for purposes ofboth DIB and SSI
as the inability to do any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months. See 42 U.S.C.
§§ 423(d)(l)(A), 1382c(a)(3)(A). A claimant is disabled "only ifhis physical or mental
impairment or impairments are of such severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B); see also Barnhart v. Thomas, 540 U.S. 20,21-22 (2003).
In determining whether a person is disabled, the Commissioner is required to perform a
five-step sequential analysis. See 20 C.F .R. §§ 404.1520, 416. 920; 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 Commissioner will not review the claim further. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4).
At step one, the Commissioner must determine whether the claimant is engaged in any
substantial gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i) (mandating
17
finding of non-disability when claimant is engaged in substantial gainful activity). If the
claimant is not engaged in substantial gainful activity, step two requires the Commissioner to
determine whether the claimant is suffering from a severe impairment or a combination of
impairments that is severe. See 20 C.F.R. §§ 404.1520(a)(4)(ii) (mandating finding of
non-disability when claimant's impairments are not severe), 416.920(a)(4)(ii). Ifthe claimant's
impairments are severe, the Commissioner, at step three, compares the claimant's impairments to
a list of impairments that are presumed severe enough to preclude any gainful work. See 20
C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Plummer, 186 F.3d at 428. When a claimant's
impairment or its equivalent matches an impairment in the listing, the claimant is presumed
disabled. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If a claimant's impairment,
either singly or in combination, fails to meet or medically equal any listing, the analysis
continues to steps four and five. See 20 C.F.R. §§ 404.1520(e), 416.920(e).
At step four, the Commissioner determines whether the claimant retains the residual
functional capacity ("RFC") to perform his past relevant work. See 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv) (stating claimant is not disabled if able to return to past
relevant work); Plummer, 186 F.3d at 428. A claimant's RFC is "that which an individual is still
able to do despite the limitations caused by his or her impairment(s)." Fargnoli v. Halter, 247
F.3d 34, 40 (3d Cir. 2001). "The claimant bears the burden of demonstrating an inability to
return to her 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 her from adjusting to
any other available work. See 20 C.F.R. §§ 404.1520(g), 416.920(g) (mandating finding of
18
non-disability when claimant can adjust to other work); Plummer, 186 F.3d at 428. At this last
step, the burden is on the Commissioner to show that the claimant is capable of performing other
available work before denying disability benefits. See Plummer, 186 F.3d at 428. In other
words, the Commissioner must prove that "there are other jobs existing in significant numbers in
the national economy which the claimant can perform, consistent with her medical impairments,
age, education, past work experience, and [RFC]." !d. In making this determination, the ALJ
must analyze the cumulative effect of all of the claimant's impairments. See id. At this step, the
ALJ often seeks the assistance of a vocational expert. See id.
B.
Kelley's Argument on Appeal
Kelley presents four arguments in his appeal: ( 1) the ALJ ignored portions of the opinion
of the state agency non-examining physician and failed to provide grounds for rejecting this
evidence; (2) the ALJ failed to accord adequate weight to the opinion and assessments of
Kelley's treating physician; (3) the ALJ failed to accord appropriate deference to the opinions of
Kelley's treating nurse practitioner; and (4) the Commissioner did not meet his burden of
establishing that there was other work in the national economy that Kelley could perform. The
Court considers each of these arguments in turn.
1.
Whether the ALJ ignored portions of a non-examining
physician's opinion without providing grounds for rejection
Kelley argues that the ALJ failed to consider additional restrictions in Dr. Palandjian's
assessment, such as limited ability to reach, stoop, and kneel, as well as environmental
limitations, while at the same time relying on other parts of Dr. Palandjian's opinion. (D.I. 17 at
11-12) Kelley further argues that the ALJ failed to provide a rationale for the rejection of
19
additional restrictions. (D.I. 17 at 12) The Commissioner responds that the ALJ intended to
adopt Dr. Palandjian's opinion only to the extent that it was consistent with Kelley's RFC. (D.I.
21 at 16)
An ALJ is responsible for reviewing the evidence and making findings of fact and
conclusions of law, including by considering opinions of State agency medical or psychological
consultants. See 20 C.F.R. § 404.1527(£)(2). The ALJ must treat the opinions of State agency
medical consultants as expert opinion evidence; such opinions cannot be ignored, and the weight
given to them must be explained in the opinion. See SSR 96-6p. The ALJ must consider,
discuss, and weigh all relevant medical evidence and explain his reasoning for giving some
opinions more weight or rejecting them. See Plummer v. Apfel, 186 F.3d 422,429 (3d Cir.
1999). All the impairments credibly established in the record must then be included in the
hypothetical question posed to the vocational expert. See Ramirez v. Barnhart, 372 F.3d 546,
552 (3d Cir. 2004). At the same time, the ALJ has the responsibility to formulate the RFC, see
20 C.F.R. §§ 404.1546(c), 416.946(c), which is an administrative finding and not a medical
opinion, see SSR 96-5p. Even though the RFC assessment may adopt one or more physicians'
opinions, the two are not the same thing: "an RFC assessment is the [ALI's] ultimate finding"
based on consideration of all the evidence in the record "about what an individual can do despite
his or her impairment(s)." Jd.
In Kelley's case, the ALJ expressly considered Dr. Palandjian's opinion in making the
RFC finding and agreed with the doctor's findings "to the extent that they [were] consistent"
with the ALI's findings, specifically with the determination that Kelley had the ability to work in
spite of his physical impairments. (Tr. 17) The ALJ did not adopt Dr. Palandjian's opinion in
20
full; to the contrary, the ALJ found that Kelley was "limited to the extent noted in the [RFC] ...
consistent with the evidence of record." (Tr. 17) Dr. Palandjian concluded that Kelley "should
be capable of light activity with overhead/hazard restrictions" (Tr. 278), and it is this conclusion
on which the ALJ relied in formulating the RFC (Tr. 17). The ALJ further limited the RFC to
jobs that allow for occasional changes in position to relieve discomfort, a limitation that was not
a part of Dr. Palandjian's assessment. (Tr. 13, 278)
Kelley now argues that the ALJ failed to consider the limitations that Dr. Palandjian
imposed on reaching, but the Court finds that Kelley misinterprets the assessment. Dr.
Palandjian checked the box for limited reaching in all directions, including overhead, due to the
cervical disk disease, and then made a reference to section IV for additional comments. (Tr. 274)
In the narrative form, Dr. Palandjian noted only overhead and hazard restrictions (Tr. 278), which
leads to the conclusion that not all types of reaching were restricted. Moreover, inability to
reach, stoop, or kneel was not among Kelley's subjective complaints during the disability
hearing. (Tr. 29-44) The hazard restrictions were included because of the potential side effects
of the medications used to treat Kelley's symptoms (Tr. 275); however, the ALJ relied on the
medical evidence consistent with Kelley's testimony that he did not experience side effects
unless he did not eat (Tr. 16, 17), and did not include additional restrictions in the RFC.
The Court concludes that the ALJ complied with his obligation to review and analyze the
medical evidence of record by considering Dr. Palandjian' s opinion and according it the weight
the ALJ found to be appropriate. The Court further concludes that the ALJ did not err in
accepting Dr. Palandjian's opinion in part and that he adequately articulated his reasoning for
doing so.
21
2.
Whether the ALJ failed to accord adequate weight
to the opinion of Kelley's treating physician
Kelley also argues that the ALJ failed to give controlling weight to the opinion of a
treating physician, Dr. Somori, an opinion Kelley contends is consistent with the objective
findings and other medical evidence in the record. (D.I. 17 at 18) The Commissioner responds
that the ALJ had sufficient grounds to find Dr. Somori' s opinion inconsistent with the medical
evidence and Kelley's daily activity level and, therefore, had a sufficient basis to accord it
minimal weight. (D.I. 21 at 17-18)
A treating physician's opinion is entitled to controlling weight when it is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and consistent with the
other substantial evidence ofthe record. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Even
though a treating physician can render an expert opinion based on continued observation of his
patient's condition over an extended period of time, see Morales v. Apfel, 225 F .3d 310, 317 (3d
Cir. 2000), such an opinion should be supported by objective medical evidence, see 20 C.F.R.
§§ 404.1529(a), 416. 929(a); Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991). Objective
evidence includes medical signs and laboratory findings. See 20 C.F.R. §§ 404.1529(a),
416. 929( a). A simple recitation of a patient's subjective complaints in a report or treatment notes
does not transform subjective complaints into objective medical findings nor entitle such
complaints to controlling weight. See Hatton v. Comm 'r of Soc. Sec. Admin., 131 Fed. Appx.
877, 879 (3d Cir. 2005).
The ALJ discussed the treatment notes from Coastal Pain Care Physicians and the
opinion rendered by Dr. Somori and afforded the latter minimal weight because the limitations
22
contained therein were inconsistent with the medical evidence of record and Kelley's daily
activity level. (Tr. 16-17) Kelley argues that Dr. Somori' s opinion is supported by objective
medical evidence, such as MRis of the neck performed in 2005, 2007, and 2008, which the ALJ
allegedly disregarded. (D.I. 17 at 17) The ALJ, however, discussed the findings of the MRis in
his opinion, including by noting that the findings of the latest test performed in 2008 "had not
changed significantly from previous examinations." (Tr. 15) The ALJ further discussed the
detailed medical history comprising observations and examinations by various doctors who failed
to establish a connection between the headaches and the degenerative processes in the cervical
spine. (Tr. 15-16) Kelley's subsequent treatment at Coastal Pain Care Physicians primarily
involved adjustments in his prescription pain medications plan. (Tr. 15-16)
The treatment notes from Coastal Pain Care Physicians are one page long for each visit,
restate Kelley's subjective complaints, indicate that Kelley was alert, oriented, and without focal
deficit, and go on to adjust the treatment plan. (Tr. 428, 431-43) A simple restatement of
Kelley's subjective complaints about pain and stiffness does not transform those complaints into
objective medical evidence that could provide support for Dr. Somori's opinion about all the
additional limitations. The ALJ was justified in allocating minimal weight to an opinion that was
largely based on Kelley's subjective complaints and a single MRI, the results of which did not
differ significantly from prior examinations. Moreover, the Cervical Spine Residual Capacity
Questionnaire is a standard "check a box" or "fill in a blank" form with minimal commentary
and no supporting attachments. (Tr. 404-08) Such a form is "weak evidence at best," with
suspect reliability when unaccompanied by thorough written report. See Mason v. Shalala, 994
F.2d 1058, 1065 (3d Cir. 1993). Even though Dr. Somori was a treating physician, his opinion
23
was not entitled to controlling weight in the absence of supporting objective medical findings.
Thus, the Court finds that the ALJ' s findings of fact and conclusions oflaw with respect
to Dr. Somori' s opinion are supported by substantial evidence.
3.
Whether the ALJ failed to account adequately
for the treating nurse practitioner's opinion
Kelley further argues that the ALJ failed to provide adequate reasoning for rejecting Ms.
Stup's opinion and that the ALJ ignored portions of her treatment notes. (D.I. 17 at 21) The
Commissioner responds that the ALJ reviewed Ms. Stup's opinion and treatment notes and
properly concluded that they were inconsistent with other medical evidence on the record. (D.I.
21 at 19)
In evaluating an impairment, an ALJ may consider evidence from a source such as a
nurse practitioner, but such evidence is not entitled to controlling weight. See 20 C.F.R.
§§ 404.1513(d), 416.913(d). The ALJ must consider evidence from a nurse practitioner in the
context of the entire administrative record and may accord it little weight. See Rios v. Barnhart,
57 Fed. Appx. 99, 101 n.2 (3d Cir. 2003).
Contrary to Kelley's contentions, the ALJ discussed Kelley's history of mental health
problems in great detail. First, the ALJ noted that Kelley's mental status examinations routinely
reported depressed and anxious moods, while also describing him as alert, oriented, with intact
recent and remote memory and fluent speech, and cooperative. (Tr. 16) The ALJ also reviewed
the treatment notes that included occasional findings of preoccupation and obsessive thought and
only fair judgment at times. (Tr. 16) The treatment notes also referred to unresolved grief over
the deaths of Kelley's parents and show that Kelley reported being told that he was addicted to
24
his pain medications. (Tr. 16) The ALJ then considered all the GAF scores assigned to Kelley
from January 2007 to February 2009. (Tr. 16-17) The ALJ concluded that the GAF scores
assigned by Ms. Stup were inconsistent with Kelley's level of functioning and the treatment
notes. (Tr. 18) For example, Ms. Stup listed a 41-50 GAF score on July 14, 2008, and then
listed a 65 GAF score in a mental impairment questionnaire on July 22, 2008. (Tr. 18)
The ALJ specifically addressed the mental impairment questionnaire completed by Ms.
Stup in July 2008. (Tr. 18) He concluded that she was not an acceptable medical source and
gave little credibility to her opinion. (Tr. 18) The ALJ reasoned that the statements made on the
questionnaire were not supported by the evidence of the record and were based on Kelley's
subjective complaints instead of mental status examinations findings and observations. (Tr. 18)
Overall, the limitations reported by Ms. Stup were inconsistent with the treatment notes from
health providers and with Kelley's level of daily functioning. (Tr. 19)
After a careful consideration of the entire medical record, including Ms. Stup's treatment
notes, F.H. Everett & Associates' progress notes, and reports by the agency consulting
physicians, the ALJ concluded that Ms. Stup's opinion was inconsistent with the other evidence
and, therefore, assigned it little weight. (Tr. 19) The Court finds that the ALJ provided detailed
reasoning for his conclusion, which is supported by substantial medical evidence in the record,
and, thus, finds Kelley's third argument unavailing.
4.
Whether the Commissioner failed to meet his burden
of establishing availability of alternative work in the national
economy that Kelley can perform
Lastly, Kelley argues that the ALI's reliance on the vocational expert's testimony was
misplaced because the hypothetical question was deficient and did not comprehensively describe
25
Kelley's limitations, which were contained in Dr. Palandjian's, Dr. Somori's, and Ms. Stup's
opinions. (D.I. 17 at 22-23) The Commissioner responds that the ALJ properly included all the
limitations that were medically established and supported by the record. Therefore, the ALJ
could properly rely on the expert's testimony to establish that jobs Kelley could perform existed
in significant numbers in the national economy. (D.I. 21 at 20)
In order to meet the burden of production at step five of the sequential analysis, the
Commissioner needs to identify at least one occupation that exists in significant numbers in the
national economy that a claimant can perform. See Craigie v. Bowen, 835 F.2d 56, 58 (3d Cir.
1987). A vocational expert's answer to a hypothetical question can be considered substantial
evidence only when the question reflects all of a claimant's impairments that are supported by
the record. See Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). However, the ALJ
need not include any impairments and limitations that are not "medically established" by the
record. See Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005).
In Kelley's case, the ALJ limited the hypothetical claimant to performing light work,
except that the tasks had to be simple and routine in nature, that claimant had to be allowed the
opportunity to occasionally change positions to relieve his discomfort, and that he could not
perform overhead tasks. (Tr. 4 7) Based on these limitations, the vocational expert testified that
there were at least three occupations that such a hypothetical claimant could perform. (Tr. 4 7-48)
As the Court explained above, the limitations that the ALJ included in his assessment of RFC
and in the hypothetical question are supported by substantial evidence in the administrative
record. The ALJ did not err in partially adopting Dr. Palandjian's opinion and assigning little
weight to Dr. Somori's and Ms. Stup's reports; therefore, he was not required to include any
26
additional limitations in the hypothetical question (as they were not credibly established by the
record). Because the hypothetical question was not improperly formulated, the Court finds that
the vocational expert's testimony is substantial evidence of Kelley's ability to work, and,
therefore, the Commissioner met his burden of production at step five of the analysis.
V.
CONCLUSION
For the forgoing reasons, the ALJ's decision is supported by substantial evidence.
Kelley's motion for summary judgment will be denied and the Commissioner's motion for
summary judgment will be granted. An appropriate Order will be entered.
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