Ferguson v. Astrue

Filing 14

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 6/6/11. (fms)

v

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

ANDREA Y. FERGUSON,
Plaintiff,

v.
MICHAEL ASTRUE, Commissioner,
Social Security Administration,
Defendant.

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) Civ. No. 10-333-SLR
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Angela Pinto Ross, Esquire of Doroshow, Pasquale, Krawitz & Bhaya, Wilmington,
Delaware. Counsel for Plaintiff.
Charles M. Oberly III, Esquire, 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 Stephen M. Ball, Esquire, Assistant Regional Counsel of the Office of
General Counsel, Philadelphia, Pennsylvania.

MEMORANDUM OPINION

Dated: June 0, 2011
Wilmington, Delaware

I. INTRODUCTION
Andrea Y. Ferguson ("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 award her
DIS benefits or, alternatively, remand the case for further proceedings. (0.1. 8)
Defendant has filed a cross-motion for summary judgment, requesting the court to
affirm his decision and enter judgment in his favor. (0.1. 11) The court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g).1
II. BACKGROUND

A. Procedural History
Plaintiff applied for DIS on September 12, 2007 alleging disability since May 4,
2007 due to seizures and headaches that occur as result of a brain tumor that was
previously removed. (D.1. 6 at 120) Plaintiff was 41 years old on the onset date of her
alleged disability and at the time her application for benefits was filed. (Id. at 139) Her
initial application was denied on December 6,2008 and upon her request for

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).

reconsideration on February 14, 2008. (Id. at 74,82) Plaintiff requested a hearing,
which took place before an administrative law judge ("ALJ") on October 23 2008. (Id. at
27) After receiving testimony from plaintiff, plaintiffs husband, and a vocational expert
("VE"), the ALJ decided on March 6, 2009 that plaintiff is not disabled within the
meaning of the Social Security Act, specifically, that plaintiff can perform other work that
exists in the national economy. (Id. at 25) Plaintiff's subsequent request for review by
the Appeals Council was denied. (Id. at 2) On January 28, 2008, plaintiff brought the
current action for review of the final decision denying plaintiff OIB. (0.1. 2)

B. Plaintiff's Non-Medical History
Plaintiff is currently 45 years old. She has a high school education and
completed three years of college. (0.1.6 at 148) Her past relevant work consists of
acting as a credit card collections representative for Bank of America. (Id. at 144) This
work was characterized as "sedentary" by the VE: it involved sitting most of the time,
and lifting no more than 10 pounds. (Id. at 64, 144) Plaintiff has not worked since

2007. (Id. at 33)

C. Medical Evidence
1. Physical impairments
Plaintiff was treated at Comanche Memorial Hospital in Lawton, Oklahoma on
May 4, 2007 after suffering from a single grand mal seizure that lasted less than five
minutes. (0.1. 361) She was alert and oriented, in no acute distress, and had no other
injuries other than a tongue bite requiring three stitches. (Id. at 362-364) A CT scan
was performed revealing a left frontal convexity meningioma. (Id. at 371) Plaintiff had

2

a history of seizures as a child, but they had since resolved. (Id. at 209)
Dr. Kennedy Yalamanchili M.D. (uYalamanchi") performed a left frontal
craniotomy for resection of a left frontal meningioma on plaintiff on May 18, 2007 at
Christiana Care Heath Services, Wilmington, Delaware. (Id. at 209) The surgery was
uncomplicated. (ld.) On July 16,2007, Yalamanchili noted in a follow-up examination
that plaintiff was doing well and could return to work as needed. (Id. at 234) During the
follow-up, plaintiff reported that she continued to have intermittent headaches, but that
they were improving, and that she had ongoing tiredness. (Id.)
Plaintiff was examined by Lanny Edelsohn, M.D. ("Edelsohn") on August 14,
2007 who noted normal physical and neurological function. (/d. at 229-230) Edelsohn
noted that there had been no further seizure activity but that plaintiff had accidently hit
her head on the satellite dish and developed some headaches which were slowly
improving. (/d. at 229) She was allowed to return to driving in a month and was told
that she could return to work on October 1, 2007. (/d. at 230) A brain MRI on
September 27,2007 showed no new intercranial abnormality since plaintiff's postoperative MRI on May 19, 2007. (Id. at 233)
Plaintiff received a second follow-up with Yalamanchili and Edelsohn on
November 13,2007. Yalamanchili noted that plaintiff had recovered well. (/d. at 232)
Plaintiff reported some residual swelling of the left periorbital tissues since her surgery.

(Id.) She had recently been given a flu shot and, shortly after, noted headaches, sores
in her mouth and swelling about the mouth. (Id.) All but the headaches and residual
swelling appeared unrelated to the surgery, although all symptoms appeared to be

3

improving. (lei)
Plaintiff received an occipital nerve block from Dr. Faisal Sayeed, MD ("Sayeed")
on July 2, 2008, to treat symptoms of occipital neuralgia, myofascial pain, and tension
headaches. (Id. at 465) On October 10, 2008, plaintiff reported that the nerve block
procedure worked well and afforded her good relief, but that the effect was then
wearing off. (ld. at 472)
Plaintiff began seeing Dr. John Kehagias, M.D. (UKehagias") in May 2007, and
had monthly appointments for routine medical management from May 2007 to
September 2008. (Id. at 246-340) On September 27,2007, Kehagais' progress report
indicated normal or negative physical, neurological and mental signs. (Id. at 309-17)
Plaintiffs mood was calm and she was not depressed or anxious. (Id. at 315) Plaintiff
reported that she engaged in regular aerobic exercise. 2 (ld. at 312) Despite these
findings, Kehagias filled out an insurance claim form indicating that plaintiff cannot
stand or walk, could not drive, had a less than sedentary functional capacity and had
severe psychological impairment. (Id. at 214-22) Also in the report, Kehagais noted
that plaintiff had three headaches in the last week that lasted a total of four hours. (Id.
at 310) The headaches caused a change in household functions, sleeping patterns
and social interaction. (ld.) They were exacerbated by alcohol intake, exertion, eye
strain, computer work, fatigue, menstrual cycle, position change, sneezing and Valsalva
maneuvers. (ld.) Relieving factors included decreased caffeine intake, cold

It is unclear from Kehgias' progress note whether plaintiff engaged in aerobic
exercise only prior to her craniotomy or after as well. The exercise notation is listed
only in the "Social History" section of the notes. (0.1. 6 at 312)
2

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application, heat application, rest, sleep and stress reduction. (Id.)
On September 25, 2008, Kehgias reported normal or negative signs after
examining plaintiff. (Id. at 449-50) For the first time, Kehgais noted that plaintiff tested
positive for Lyme's disease, but that it did not affect her daily activities. (Id. at 448)
Plaintiff complained of severe neck pain that was increasing in severity. (Id.) The
effect on daily activities is a change in activity level and a change in sleeping patterns.

(Id.) Despite plaintiff's complaint of neck pain, Kehagias reported that plaintiff's neck
was supple, non-tender, had no carotid bruit, no jugular venous distention, no
lymphadenopathy and no thyromegaly.3 (Id. at 451)
Plaintiff underwent physical therapy performed by Anna W. III, D.P.T. ("111") who
treated plaintiff once a week from February 2008 though September 2008. (Id. at 38184) Plaintiff's initial evaluation on February 29, 2008 indicates that she complained of
frequent tension headaches with light sensitivity and tenderness to palpation in the left
upper and middle trapezius musculature, as well as periodic edema and pain in the
cervical and shoulder region with activity. (Id. at 379) Treatment notes indicate
complaints of migraine headaches, tenderness of her lower cervical area, decreased
cervical range of motion, muscle soreness after activity and easy fatigability with
reduced exercise tolerance. (Id. at 381-84)
On September 25, 2008, III completed a Physical Residual Functional Capacity
Questionnaire. (Id. at 389-92) III noted that plaintiff frequently suffered from pain that

3 As of this last examination, plaintiff was on the following prescriptions:
tramadol, Cymbalta, Lunesta, Lidoderm, Vicodin, Ciprodex, Cipro, ergocalciferol,
doxycycline.

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was severe enough to interfere with attention and concentration, nonetheless, plaintiff
was capable of low stress jobs. (Id. at 390) She could stand/walk for less than 2 hours
in a given working day, and sit for about 4. (ld.) Plaintiff would need to walk every 45
minutes for 5 minutes at a time, and she needed a job where she could shift positions
from sitting to standing/walking at will. (Id. at 3.)
Also of record are the opinions of state agency medical experts Karen Sarpolis,
M.D. ("Sarpolis") and Vinod K. Kantaria, M.D. ("Kantaria"). On December 3, 2007, after
reviewing the record (but not personally examining plaintiff), Sarpolis opined that
plaintiff's seizure condition was under good control, had a minimal impact on her
functioning, and was non-severe. (0.1. 6 at 242) Also after reviewing the record (but
not personally examining plaintiff), on February 14, 2008, Kantaria opined that plaintiff
had the residual functional capacity to perform light work with frequent postural
maneuvers. ('d. at 356,358-59) However, plaintiff could not perform tasks which
require balancing, and she could not be exposed to hazards. (Id. at 358-59)

2. Mental health
On February 7,2008, Kehagais referred plaintiff to Dr. James Langan, Psy.D
("Langan"). (Id. at 372) Langan administered the WAIS 10 and memory tests, and
reported that plaintiff is currently functioning within the average range in the area of
intelligence. ('d. at 374-76) She had "average" abilities in terms of recalling organized,
spoken information, but had "low average" abilities when it came to "more complex and
demanding learning tasks." ('d.) Langan concluded by saying that, while her abilities
were functional, they were "slightly below" expectations considering her background.

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(ld.) Plaintiff also had some difficulties with verbal retrieval, which prevented her from

demonstrating the true extent of her learning. (ld.)
Langan reported that the results of plaintiff's personality testing were likely invalid
due to symptom magnification. (Id. at 377) According to Langan:
Her MMPI-2 profile is likely invalid. The validly configuration is consistent
with a person who is attempting to portray herself in an overly favorable light.
Typically such individuals do not admit to many common and benign human
short comings. Because of this response set, such persons are not usually
inclided to admit to psychological symptoms and conflicts .... Oftentimes
they will admit to physical problems but are relatively closed to the idea that
psychological factors may influence or have a role in producing their physical
symptoms. Indeed, there is a very high level of endorsement of
physical/somatic symptoms in the profile that goes well beyond clinical
control samples with orthopedic (e.g., chronic pain) or neurological (e.g.
multiple sclerosis) illnesses. A stomatoform disorder cannot be ruled out.
(ld)

Langan reported that plaintiff's recovery is somewhat complicated by issues
pertaining to depression and emotional function, and that plaintiff has had a history of
depression following the death of her daughter in 2000. 4 (ld. at 377-78) Langan
believed that antidepressants may Significantly reduce her level of depression and
perhaps improve her overall level of functioning. Ud.) Unfortunately, plaintiff is very
adverse to considering an antidepressant medication, and stated that she prefers to
deal with her depression with the help of family, friends and religion. (ld.)
Overall, Langan felt that plaintiff had made a fairly good cognitive recovery from
the brain surgery, and that her cognitive abilities are functional in many respects. (ld.)

Plaintiff and her daughter were involved in a car accident in 2000 when they
were struck by a car that had passed from the northbound lane into the southbound
lane and hit them head on. (D.1. 6 at 40) Plaintiff's daughter was killed and plaintiff's
ankle was crushed. (ld.)
4

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She is experiencing some mild difficulties in terms of the speed of her information
processing, multitasking and overall accuracy of her performance especially under time
pressure. (Id.) Plaintiff was overly self critical of her performance even when it was
objectively good. (Id.)
Langan stated that getting plaintiff out of the house and achieving a greater level
of independence by driving might be beneficial for her psychologically. (ld.) She was
also encouraged to actively participate in daily chores, and she could return to the
workforce on a part-time basis. (Id.)
On April 7, 2008, plaintiff was evaluated by a Sheppard Pratt psychiatrist. (Id. at
394) The only negative notations about plaintiff's mental status was that she presented
with a depressed and anxious mood and that she had a constricted affect. (Id. at 394)
Plaintiff was given a GAF score of 55 which indicates an individual with moderate
symptoms or moderate difficulty in social functioning. (Id.; 0.1. 12 at 7 n.2) Plaintiff was
prescribed an antidepressant and sleep aid. (0.1. 6 at 396) On April 28,2008, at a
follow-up, her mood was listed as "euthymic" and no longer depressed. (Id. at 397) A
second follow-up on August 14, 2008 reiterated the improvement. (Id. at 399)
Also of record is the opinion of state agency medical expert Carlene TuckerOkine, Ph.D C'Okine") who, on February 14, 2008, after reviewing the record, opined
that plaintiff's symptoms of depression and anxiety were not severe. (0.1. 6 at 344)

D. Hearing Before the ALJ

1. Plaintiff's testimony
Plaintiff lives with her husband and son. She is 5'5 3/4" and weighs 138 pounds.

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(Id. at 50) If plaintiff performs any activity that requires exertion, such as lifting less than
10 Ibs, her face, neck, arms, hands and legs swell up and give her pain. (Id.) She
swells up two to three times a week on average. (ld. at 52) Plaintiff can stand for three
minutes and walk about a block and a half. (ld.) She was diagnosed with Lyme's
disease which causes her to be tired and winded all of the time. (ld. at 53) Plaintiff can
sit for about an hour; any longer, and she dozes off. (Id. at 55)
Prior to her surgery, plaintiff worked for Bank of America as a collections
representative, calling individuals who were delinquent in their mortgage payments in
an attempt to put them on a plan to try and get them caught up before their home was
sold at a sheriff's sale. (Id. at 38) Her work required her to speak with customers,
review payment records, bank statements and credit reports. (Id.) Many of these tasks
were performed on a computer. (Id.) Prior to her surgery, plaintiff did not wear glasses
and could stare at the computer screen for a significant period of time. Now she wears
bifocals and gets severe headaches. (ld. at 38-39) Plaintiffs body swells up in the
morning and her face "turns black," further preventing her from working. (Id. at 43)
Plaintiff testified that immediately after the surgery, her mood was "black" and
she was constantly afraid. (Id. at 40) Even before the surgery, plaintiff suffered from
depression stemming from the loss of her young daughter in a car accident. (Id. at 4041)

Plaintiff is attending physical therapy because of the swelling. (Id. at 43-44) In
order to manage her pain, plaintiff is taking Mobic, Vicodin, Tylenol Three with codeine,
and Tramadol. (Id. at 44) Plaintiff experiences side effects including dizziness and

9

nausea and fatigue. (Id. at 44-45) Her fatigue causes plaintiff to nap frequently, taking
as many as three naps per day, each as long as two hours, although now averaging
one. (Id. at 45, 55) She has trouble sleeping at night and will sometimes have to take
Valium to get to sleep. (Id. at 46) She is usually in bed by 9:00 pm, and awake by 2:00
am, at which point she will sit up and lean her back on the back of the bed or stare at
the ceiling. (Id.)
Plaintiff does not participate in the daily chores at her home. (Id. at 45) Instead,
her husband prepares the family meals, and her son does the housework such as
vacuuming and laundry. (Id.) When her pain hits, no matter the form, she becomes
downtrodden and short tempered with those around her. (Id. at 49)
Plaintiff testified that she has migraine headaches every day, and that she sees
Dr. Sayed, a pain management specialist, who gives her injections for her migraines.

(Id. at 47) Ever since her diagnosis of Lyme's disease, plaintiff has been seeing Dr.
Hasne, a joint specialist. (/d.) She also has trouble concentrating, and is easily
distracted. (Id. at 49)

2. Testimony of plaintiff's witnesses
Plaintiff's husband testified that she does not participate in household chores,
and that he had to change his work schedule at Wachovia bank so that he could be
home to help take care of their son when he came home from school. (Id. at 59-60)
Plaintiff does not cook anymore because she once left the stove on after trying to
prepare a meal for their son. (Id. at 59)
Plaintiffs husband also testified that plaintiff suffers from frequent mood swings

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wherein she goes from a normal state to crying without provocation. (/d. at 60) She
also has frequent trouble sleeping, and naps a lot during the day. (/d. at 60-62)
Plaintiff frequently complains to her husband about being tired and her body aching.
(/d. at 61)

3. Vocational expert testimony
The hypothetical question that was asked by the ALJ was as follows:
I'd like for you to assume a person who is 40 years of age on her alleged
onset, which she puts at 5/4/07, has a 12th grade education plus two and a
half to three years of college. Suffering from status post effects of [a] brain
tumor in '07 in May, she has been diagnosed, at least has a positive for
Lyme's disease and some depression, all which cause her to have mild to
moderate fatigue, energy loss, occasional headache, indicates migraine, and
some moods swings of late, of which is somewhat relieved by her
medications without Significant side effects. But she says she derives some
dizziness, nausea and some sleepiness from one or a combination. If I find
that she needs to have simple, routine, unskilled jobs, Ms. Cody, low stress,
low concentration, low memory, is able to attend tasks and complete
schedules, probably SVP one or two jobs. She seems to be mildly and
moderately limited in her ability to perform her ADL's and to interact socially
and to maintain her concentration, persistence and pace. And if I find that
she can lift 10 pounds occasionally and lesser amounts frequently, stand for
30 minutes, sit for 10 minutes consistently on an alternate basis during an
eight-hour day, five days a week. Would have to avoid heights and
hazardous machinery, ropes, scaffolds, stairs but would seem to be able to
do sedentary work activity, would there be jobs you can give me in significant
numbers in the national economy that such a person in your opinion as a
Vocational Expert?
Based on this hypothetical, the VE testified that plaintiff could perform a limited number
of light, unskilled jobs, such as a "final assembler" a "bench hand," or a "table worker."
(/d. at 64-65) The VE stated that each of these jobs would allow plaintiff to sit and

stand as per the ALJ's requirements. (/d. at 65-66) However, the VE admitted that the
Dictionary of Occupational Titles does not specifically address a siUstand option, but

11

that she was indicating that a sit/stand option would be available based upon her work
experience placing people with similar disabilities in these jobs. (/d. at 66) Plaintiff
would not be able to perform her previous vocation with her current limitations. (/d.)
The VE acknowledged that, if the limitations found in the reports of Kahegus were taken
to be true, plaintiff would not be able to perform any of the work to which the VE
testified. (ld. at 67) Similarly, if plaintiff had to take naps with the frequency and
duration that was claimed, she would be precluded from all employment. {Id. at 68}

III. 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

12

J

I

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
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 Kentv. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983». Where, for example,
the countervailing evidence consists primarily of the plaintiffs 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

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A. Regulatory Framework
Social Security Administration regulations incorporate a sequential evaluation
process for determining whether a claimant is under a disability. 20 C.F.R. § 404.1520.
The ALJ first considers whether the claimant is currently engaged in substantial gainful
activity. 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 impairment meets the criteria of
an impairment listed in the "listing of impairments," 20 C.F.R. pt. 404, subpt. P, app. 1
(1999), which result in a presumption of disability, or whether the claimant retains the
capacity to work. If the impairment does not meet the criteria for a listed impairment,
then the ALJ assesses in the fourth step whether, despite the severe impairment, the
claimant has the residual functional capacity to perform his past work. If the claimant
cannot perform his past work, then step five is to determine whether there is other work
in the national economy that the claimant can perform. Sykes v. Apfel, 228 F.3d 259,
262-63 (3d Cir. 2000) (citing 20 C.F.R. § 404.1520). If the ALJ finds that a claimant is
disabled or not disabled at any point in the sequence, review does not proceed to the
next step. 20 C.F.R. § 404.1520(a). It is within the ALJ's sole discretion to determine
whether an individual is disabled or "unable to work" under the statutory definition. 20
C.F.R. § 404.1527(e)(1).
The ALJ is required to evaluate all of the medical findings and other evidence
that supports a physician's statement that an individual is disabled. The opinion of a
treating or primary physician is generally given controlling weight when evaluating the
14

nature and severity of an individual's impairments. However, no special significance is
given to the source of an opinion on other issues which are reserved to the ALJ, such
as the ultimate determination of disablement. 20 C.F.R. §§ 404.1527(e)(2) &
404.1527(e)(3). The ALJ has the discretion to weigh any conflicting evidence in the
case record and make a determination. 20 C.F.R. §§ 404.1527(c)(2).

B. The ALJ's Decision
The ALJ considered the medical evidence of record and testimony received at
the hearing, and concluded that plaintiff retains the capacity for work and is not disabled
as defined by the Social Security Act. The ALJ made the following enumerated
findings.
1. The claimant met the insured status requirements of the Social Security
Act through December 31,2011.
2. The claimant has not engaged in substantial gainful activity since May 4,
2007, the alleged onset date (20 C.F.R. § 404.1571 et seq.).
3. The claimant has the following severe impairments: status-post effects
of brain tumor, meningioma with craniotomy, Lyme disease, and depression.
(20 C.F.R. § 404.1521 et seq.).
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).
5. After careful consideration ofthe entire record, the undersigned finds that
the claimant has the residual functional capacity [(RFC)] to perform
sedentary work as defined in 20 CFR 404.1567(a) except lifting ten pounds
occasionally and lesser amounts frequently, stand for thirty minutes and sit
for ten minutes consistently on an alternating basis during an eight-hour day,
five days a week, avoiding heights and hazard[ous] machinery, ropes,
ladders, scaffolding, or stairs and limited to simple, routine, unskilled jobs
that are low stress, require low concentration and memory, and can attend
to tasks and complete schedules, mildly to moderately limited in her ability
to perform activities of daily living and to interact socially, and maintain her
concentration, persistence and pace.
15

6. The claimant is unable to perform any past relevant work (20 C.F.R. §
404.1565).
7. The claimant was born on September 27, 1966 and was 40 years old,
which is defined as a younger individual age 18-44, on the alleged disability
onset date (20 C.F.R. § 404.1563).
8. The claimant has at least a high school education and is able to
communicate in English (20 C.F.R. §§ 404.1564).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is "not disabled," whether or not the claimant has
transferable job skills (See SSR 82-41 and 20CFR part 404, Subpart P,
Appendix).
10. Considering the claimant's age, education, work experience, and
residual functional capacity, there are jobs that exist in significant numbers
in the national economy that the claimant can perform (20 C.F.R. §§
404.1560(c) and 404.1569a).
11. The claimant has not been under a disability, as defined in the Social
Security Act, from May 4,2007 through the date of this decision (20 C.F.R.
§§ 404.1520(g) and 416.920(g».

c.

Analysis

Plaintiff argues that the ALJ's determination was not based upon substantial
evidence because it: (1) improperly rejected plaintiff's testimony; (2) improperly
discounted the opinion of Kehagias; (3) failed to indicate what weight he gave to the
opinion of III; and (4) failed to devise a RFC that incorporated all of plaintiffs
impairments. (D.1. 16 at 13) The court considers these arguments within the
appropriate context of the regulatory framework.

1. ALJ's rejection of plaintiff's testimony
In conjunction with step 3, the ALJ declined to fully credit plaintiff's testimony,

16

concluding that
the clamant has underlying medically determinable impairments that could
reasonably be expected to result in some of the symptoms alleged. The
[ALJ] has reservations, however, as to whether the claimant's assertions
concerning [her] impairments, and their impact on her condition, can be
considered fully credible. The record fails to provide any objective medical
evidence that the claimant's impairments are as severe as her hearing
testimony indicates. The record fails to show the claimant requiring any
hospitalizations, Significant active treatment or significant care other than for
limited routine medical maintenance, and there have been no significant
increases or changes in prescribed medications reflective of an uncontrolled
condition, even though the claimant has alleged significant side effects
impacting her daily functioning. The record indicates only limited and
conservative treatment of her impairments. Her reported lack of activities of
daily living is not sustained as a defining condition of her alleged
impairments.
(Id. at 22)
Plaintiff argues that the ALJ improperly discounted plaintiff's testimony that she
could not work, despite the fact that her complaints of fatigue and headaches were
reflected at numerous points in the record. (D.I 16 at 16-21) In support of his decision
to not give full credit to plaintiff's testimony, the ALJ cited Edelsohn, who opined in
November of 2007 that plaintiff could go back to work for 32 hours a week for a month,
followed by 40 hours a week for a month, and then full 48 hours per week. (ld.) He
also cited III, who had opined that the plaintiff could perform low stress jobs (id. at 23),
and the state agency medical consultant who opined that plaintiff could perform light
exertional work with hazard precautions. (ld.) Finally, the ALJ cited Sarpolis, who
concurred that plaintiff's impairment in late 2007 was not severe, that control for her
seizures was good, and that she would be able to return to work and resume driving.
(ld.)
While the ALJ did discount her testimony, "the credibility determinations of an
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administrative judge are virtually unreviewable on appeal." Bieber v. Dep't of the Army,
287 F.3d 1358 ,1364 (Fed. Cir. 1997); Wagnerv. Department of Agriculture, 28 F.3d
279,283 (3d Cir. 1994). Nevertheless, the court finds that the ALJ's decision to
discount plaintiffs testimony was supported by substantial evidence. The opinions of
the treating physicians alone provided more than enough evidence to call into doubt
plaintiffs testimony.

2. ALJ's discounting of Kehagias' opinion
As plaintiffs treating physician, Kehagias' opinion is entitled to special
Significance and, when it is supported by objective medical evidence of record and is
consistent with other substantial evidence of record, it is entitled to controlling weight.
See Fargnoli v. Massanari, 247 F.3d 34,43 (3d Cir. 2001) (citing 20 C.F.R. §

404.1527 (d)(2». The ALJ cannot disregard the opinion of a treating physician without
explaining the reasoning for rejecting the opinion and referencing objective medical
evidence conflicting with the opinion. See Gilliland v. Heckler, 786 F.2d 178, 184 (3d
Cir. 1986). "If, however, the treating physician's opinion conflicts with other medical
evidence, then the ALJ is free to give that opinion less than controlling weight or even
reject it, so long as the ALJ clearly explains [his] reasons and makes a clear record."
Salles v. Comm'rof Social Sec., 229 fed. Appx. 140, 148 (3d Cir. 2007). "An ALJ need

not defer to a treating physician's opinion about the ultimate issue of disability because
that determination is an administrative finding reserved to the Commissioner." Id.
In the case at bar, there is objective medical evidence conflicting with Kehagias'
opinion. To begin, plaintiff relies on Kehagias' opinion report of September 2007, an

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opinion made less than six months after plaintiffs surgery. (Id. at 21) As discussed
supra, many medical experts who either personally examined plaintiff, or examined the

record after September 2007, opined that plaintiff was not significantly disabled and
was capable of returning to work in the near future. (Cantaria, Sarpolis, Yalamanchili,
Edelsohn; Id. at 22-23)
Furthermore, Kehagias' prognosis that plaintiff is completely unable to work is
inconsistent with his own reports. For example, Kehagais' progress report dated
September 27,2007 indicated normal or negative physical, neurological and mental
signs. (Id. at 309-17) Plaintiffs mood was calm, and she was not depressed or
anxious. (Id. at 315) Plaintiff also noted that she engaged in regular aerobic exercise.
(Id. at 312) Despite these findings, Kehagais reported that plaintiff was unable to work.

On September 25, 2008, Kehagias reported normal or negative signs after
examining plaintiff. (Id. at 449-50) Plaintiff complained of severe neck pain that was
increasing in severity. (Id.) Plaintiff reported that the effect of this pain on daily
activities was a change in activity level and a change in sleeping patterns. (Id.) Despite
plaintiffs complaint of neck pain, Kehagias reported that plaintiffs neck was supple,
non-tender, had no carotid bruit, no jugular venous distention, no lymphadenopathy and
no thyromegaly. (Id. at 451) For the first time, Kehagias noted that plaintiff tested
positive for Lyme's disease, but that it did not affect her daily activities. (Id. at 448)
These two reports are inconsistent with a determination that plaintiff is unable to
work in any capacity and, combined with the reports of other treating physicians,
provide a sufficient basis for the ALJ to discount Kehagias' opinion.

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3. Weight given to Ill's opinion
In contrast to Kehagias, III, a doctor of physical therapy, is considered an "other
source[ ]" whose opinion may be considered with respect to the severity of plaintiff's
impairment and ability to work, but need not be assigned controlling weight. See 20
C.F.R. § 416.913(d)(1). The ALJ noted that in September of 2008,11\ opined that
plaintiff could perform low stress jobs, and should be able to tolerate brief periods of low
stress activity with slow progression to longer periods, sit 45 minutes at one time, stand
15 minutes, stand or walk less than 2 hours, sit 4 hours, walk around and shift positions
and occasionally lift 10 Ibs. (Id. at 23) The ALJ also noted that Ill's report stated that
plaintiff's pain fluctuates significantly and, with the change in medication, it was hard to
accurately assess ability for sustained work activity. (Id.) Therefore, Ill's opinion is
more consistent with the ALJ's non-disability determination than with a disability
determination.
Plaintiffs arguments are confusing at best. Plaintiff never discusses the weight
(or lack thereof) given to Ill's opinion in her opening brief, and instead only responds to
the arguments defendant made in his answering brief. Even then, plaintiffs arguments
are contradictory. First, plaintiff argues that U[t]he ALJ failed to consider [Ill's] consistent
reports, despite being required to do so by the regulations." (D. I. 13 at 6) Plaintiff then
reasons that U[w]hile Ms. III is not an acceptable medical source, her opinion was rightly
acknowledged and considered by the ALJ as medical evidence." (Id.) If, as plaintiff
contends, III "is not an acceptable medical source," the ALJ need not give her opinion
any weight, and his failure to discuss exactly what weight he did give Ill's opinion is

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grounds for neither reversal nor remand.

4. The devised RFC
As a part of step four, the ALJ determined plaintiff's RFC. The ALJ found that
plaintiff retained the capacity to perform
sedentary work, except lifting 10 pounds occasionally and lesser amounts
frequently, stand for 30 minutes, sit for 10 minutes consistently on an
alternating basis during an 8-hour work day, five days a week, avoiding
heights and hazard[ous] machinery, ropes, ladders, scaffolding, or stairs and
limited to simple, routine, unskilled jobs that are low stress, require low
concentration and memory, and can attend to tasks and complete schedules,
mildly to moderately limited in her ability to perform activities of daily living
and to interact socially and maintain her concentration, persistence and
pace.

(0.1. 6 at 19) Plaintiff contends that the above RFC failed to include any limitations as
to fatigue, headaches, or the side effects of medications which are each well
documented on the record. (0.1. 9 at 27)
Plaintiff's argument ignores the hypothetical given to the vocational expert
wherein the ALJ asked the vocation expert to imagine a person having
mild to moderate fatigue, energy loss, occasional headache, indicates
migraine, and some moods swings of late, off which is somewhat received
by her medications without significant side effects. But she says she derives
some dizziness, nausea and some sleepiness from one or a combination.

(ld. at 64-65) (emphasis added) As the above hypothetical illustrates, the ALJ did
consider plaintiff's limitations regarding fatigue, headaches and side effects from
medication when formulating his hypothetical to the vocational expert. Therefore,
plaintiff's limitations were adequately considered in determining her RFC. McDonald v.
Astrue, 293 Fed Appx 941, 946 (3d Cir. 2008); Bracciodieta-Nelson v. Comm'r of Soc.
Security, Civ. No. 10-854,2011 WL 1598661, at *13 (W.O. Pa. Apr. 27,2011).

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Furthermore, the ALJ was not required to give credence to plaintiffs full claims of pain
and discomfort because, as explained in section 1, substantial medical evidence exists
that contradicts plaintiff's testimony.

V. CONCLUSION
In view of the foregoing, substantial evidence supports the ALJ's determination
that plaintiff is not disabled and is capable of sedentary work. Plaintiffs motion for
summary judgment (D.I. 8), therefore, is denied and defendant's motion for summary
judgment (D.1. 11) is granted. An appropriate order shall issue.

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