Carey v. Astrue

Filing 26

MEMORANDUM. Signed by Judge Gregory M. Sleet on 3/30/2015. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

JACQUELINE F. CAREY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Civil Action No. 10-413 GMS

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MEMORANDUM
I.

INTRODUCTION
On May 17, 2010, the plaintiff Jacqueline F. Carey ("Carey") filed this action against the

defendant Michael J. Astrue, Commissioner of Social Security (the "Commissioner"), for review
of the final decision denying her supplemental security income ("SSI") application under title XVI
of the Social Security Act. 1 (D.I. 2; D.I. 21 at 5.) Carey brought this civil action under 42 U.S.C.

§ 405(g) as incorporated by 42 U.S.C. § 1383(c)(3). (Id.) For the reasons that follow, the court
will deny Carey's motion for summary judgment and grant the Commissioner's cross-motion for
summary judgment. The court will affirm the decisions of the Administrative Law Judge ("ALJ")
and the Appeals Council.

II.

BACKGROUND
Carey filed an application for SSI on May 30, 2007, alleging disability beginning on June

21, 2005. 2 (D.I. 11 at 9.) Carey's alleged conditions consist of asthma, migraine headaches,

1

Administrative Law Judge Melvin D. Benitz (the "ALJ") issued a written decision denying the plaintiff's
claim for disability benefits on November 17, 2008 (the "ALJ's decision"). (D.I. 11 at 9-26.)
2

Carey was born on October 18, 1978 and was 26 years old at the time of the alleged disability onset date,
making her a "younger person:' under 20 C.F.R. §§ 404.1563, 416.963 (2011). (Id. at 111.)

1

depression, anxiety, bipolar disorder, and attention deficit hyperactivity disorder ("ADHD"). (Id.
at 12.) Following the denial of Carey's claim both initially and upon reconsideration on March
25, 2008, Carey requested a hearing before the ALJ on April 28, 2008. (Id. at 9, 82.) Pursuant to
that request, on October 29, 2008, the ALJ held a hearing on Carey's claim. (Id. at 9.) At the
hearing, the ALJ heard testimony from Carey and from an impartial vocational expert ("VE"),
Mitchell A. Schmidt, regarding Carey's claim for SSI. 3 On November 17, 2008, the ALJ issued a
written decision denying Carey's claim for SSL (Id.) The ALJ concluded that Carey was not
disabled under section 1614(a)(3)(A) of the Social Security Act. (Id. at 26.) The Appeals Council
denied Carey's request for review without substantive explanation. (Id. at 1-5.) On May 17, 2010,
Carey filed the instant appeal.

A. Medical History
a. Mental Impairments
During the relevant time period, Carey received treatment and medication from numerous
doctors for her mental impairments. (D .I. 11 at 12-17.) She was diagnosed with depression at the
age of 14 and has experienced a history of physical and emotional abuse. (Id. at 12.) Carey was
seen by David Nixon, M.D. from March to May, 2006. During this time, Carey was diagnosed
with ADHD, an anxiety disorder, rule out bipolar disorder, and post-traumatic stress disorder. She
was assigned Global Assessment of Functioning ("GAF") scores of 60 and 55. (Id. at 278, 283.)
Dr. Nixon referred Carey to a therapist and prescribed Ritalin and Wellbutrin. 4 (Id.) In July of

3

At the hearing, Carey was represented by her attorney, Stephen A. Hampton. (D.I. 11 at 9.)

4

Carey reported to her therapist on May 10, 2006 that she stopped taking Wellbutrin because she felt like a
"zombie" and the medication was hindering her ability to clean. (Id. at 12, 272.) On May 17, 2006 Carey reported to
Dr. Nixon that she stopped taking the Wellbutrin because it made her irritable, and the Ritalin was not helping. (Id.
at 270.) Instead, she took Xanax, which was provided by a friend. (Id.)

2

2006, after an examination by Abimbola Osunkoya, M.D., Carey was also prescribed Topamax to
help with migraine headaches and was warned of migraine triggers. (Id. at 333.)
In January and February of 2007, Carey was seen by neurologist Robert Varipapa, M.D.,
for treatment in response to the migraine headaches she had been experiencing. (Id. at 336, 339.)
Dr. Varipapa found that the examination was unremarkable and there was no suggestion of
intracranial pathology. (Id. at 338) He noted that Carey could be experiencing an analgesic
rebound due to overuse of over-the-counter medications. (Id.) Dr. Varipapa prescribed the
medication Elavil, along with twenty minutes of exercise per day and discontinuing consumption
of caffeinated beverages. 5 (Id.) Carey was also seen periodically from August, 2007 to June, 2008
by Stephen Penny, M.D., who works with Dr. Varipapa. 6 (Id. at 341--44, 478.)
Carey was also periodically treated by Gwynn Stup, A.R.N.P., from January of 2007 to
July of 2008. 7 (Id. at 13-15; 395-99.) Carey admitted during the first examination that she had
not taken her prescribed medications from April, 2006 to January, 2007. (Id. at 396.) During this
first examination, Carey was assigned a GAF score of 40-45. (Id. at 399.) Carey was given
medication, but in subsequent visits in June· and November of 2007 she indicated that she had not
been taking her medication for several months. (Id. at 453.) Carey again returned to Ms. Stup in
January and February of2008, when she was prescribed Cymbalta and Adderall in addition to her

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Carey reported that the Elavil was not helping and she had not been exercising because she believed taking
care of her child was enough exercise on its own. (D.I. 11 at 339.) Dr. Varipapa declined Carey's request for a
prescription of oxycodone, and instead prescribed Lamictal and Prozac, while urging conservative treatments such as
lying in a dark, quiet room. (Id. at 340.)
6

Dr. Penny treated Carey's headaches and indicated in his reports that Carey's migraine headaches appeared
to be frequent and severe. (Id. at 478.)
7

Under Social Security regulations, Gwynn Stup, who is an advanced practice nurse, is not an acceptable
medical source. (20 CFR 404.1513(d); 20 CFR 416.913(d).) The ALJ appropriately considered the factors set forth
in SSR 06-03p to determine the weight to assign Ms. Stup's medical opinion, and appropriately concluded that it will
be assigned little weight. (D.I. 11 at 22.)

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existing medication regimen. (Id. at 454-55.) After several months of taking her medication,
Carey was examined by Ms. Stup in July and August of 2008 and was determined to be fairly
stable. (Id. at 456.) Carey was assigned a GAF score of 51-60 during this visit. (Id.)
On December 8, 2007, Carey underwent a clinical psychological evaluation with Joseph
Keyes, Ph.D. (Id. at 351.) Dr. Keyes concluded that Carey demonstrated adequate cognitive
functioning within normal limits with a disturbance in the attentional process. (Id. at 356.) Dr.
Keyes assigned Carey a GAF score of 60-65. (Id. at 357.) Further, Dr. Keyes estimated a very
slight degree of impairment in the competitive labor-market setting. (Id. at 352.) He indicated no
problems understanding simple instructions or carrying out those instructions under ordinary
supervision. (Id.) He noted moderate impairment with sustaining work performance and coping
with pressures, as well as mild impairment performing routine, repetitive tasks. (Id.) The term
"moderate" impairment is described by Dr. Keyes' report as "an impairment which affects but
does not preclude ability to function." (Id.)
During the relevant time period, Carey also attended therapy sessions with Diana Cohen,
L.C.S.W. for approximately five months. (Id. at 14-15; 461-73.) Ms. Cohen diagnosed Carey
with ADHD, bipolar disorder, and migraines. (Id. at 464.) During her visits Carey reported to be
taking a home schooling high school course and was doing well. (Id. at 466.) Carey also described
a very close relationship with her daughter and indicated that she was taking her daughter to a
nursery program at the church where Carey attended Bible study twice per week. (Id. at 467.) Ms.
Cohen described Carey as appropriate, controlled, and stable throughout their interactions, and
reported improvement from Carey with proper medication. (Id. at 461-73.)

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b. Physical Impairments
Along with her mental impairments, Carey has also experienced several physical ailments
during the relevant time period.
On December 20, 2006, Carey saw Dr. Lewandowski for pain in her knee and right
shoulder. (D.I. 11 at 387.) She indicated that she had experienced left knee problems since she
was fourteen years old, and her right shoulder had been problematic for several years. (Id.) Carey
returned to Dr. Lewandowski in January of 2008 with increased shoulder pain, to which she was
prescribed pain medication. (Id. at 379.) She returned shortly after requesting increased pain
medication at which point Dr. Lewandowski advised her to see a pain management physician. (Id.
at 378.) On September 13, 2007, Carey was examined by Dr. Lakhani for coughing, wheezing,
and difficulty breathing. (Id. at 402.) She was diagnosed as highly allergenic with moderate
persistent asthma, which was complicated by chronic heavy smoking. (Id. at 403.) This condition
was treated with medication.

(Id. at 404.)

On June 25, 2007, Carey was diagnosed with

hyperthyroidism and a palpable goiter. (Id. at 418.) Follow-up appointments on October 31, 2007
and January 29, 2008, noted that the hyperthyroidism had significantly improved and required only
conservative monitoring.

(Id. at 419, 422.)

Carey also sought pain medication from other

physicians to help with muscular problems. 8 Additionally, Carey was previously diagnosed with
obesity. (Id. at 16, 287.)

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On December 12, 2007, Carey was examined by Dr. Easter complaining of right hip, ankle, and neck pain,
among other ailments. (D.1. 11 at 358.) After the examination was inconclusive, Carey requested pain medication,
but Dr. Easter refused because he had no explanation for her groin pain. (Id. at 359.) On January 9, 2008, Carey was
examined by Dr. Cagampan after experiencing right hip and right shoulder pain. (Id. at 413.) Carey noted she had
been taking her father's Oxycodone and that it helped with relief. (Id.) Dr. Cagampan reported no abnormalities and
full range of motion, but diagnosed her with bicipital tendonitis, sprained gluteus medius muscle, and muscle pain.
(Id. at 415.) She was prescribed Percocet and Skelaxin, and asked to continue with Naproxen. (Id.)

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B. Hearing Testimony
a. Testimony of Jacqueline Carey
At the October 9, 2008 hearing before the ALJ, Carey testified about her past work
experience, her home life, and the nature of her claim for SSL (Id. at 29-62.) Carey testified that
she worked as a secretary for two years, performing tasks such as answering phones, taking
messages, and handling warranty claims. (Id. at 30-31.) Carey indicated that she constantly
fought with her boss and missed time at work due to her migraines and mental health problems.
(Id. at 31.) Carey also had two other jobs, one at a Dollar General and the other at a doughnut

shop, each of which lasted no longer than three months. (Id. at 32-33.) She testified that she has
never gotten along with her boss, does not feel comfortable interacting with customers, and does
not respond well to criticism from others. (Id. at 33-34, 45.) In addition to her problems while at
work, Carey explained that she frequently had trouble with transportation to work and simply not
wanting to go. (Id. at 44.) Carey attributes all of her problems at work to her physical and mental
conditions, particularly the ADHD and migraines. (Id. at 31-32.)
Carey testified that her health issues became worse following the birth of her daughter,
who was born with special needs and was two years old at the time of the ALJ hearing. (Id. at 34,
181.) Carey has not worked since the birth of her child. (Id. at 34.) Carey stated that the
medications she has tried have cut her migraines down from approximately five times per month
to approximately three times per month. (Id. at 35.) Each migraine she suffers lasts about four
days. (Id.) Carey explained that her other conditions, such as ADHD and bipolar tendencies, have
also gotten worse since her daughter was born, and she frequently experiences mood swings and
agitation. (Id.) She also described periods of insomnia, during which she may not sleep for days
or weeks at a time before crashing. (Id. at 36-37) Carey testified that she has suffered through

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bouts of depression and anxiety, but has been taking medication to limit their frequency. (Id. at
44, 47.)
During the time Carey alleges to be disabled, she reported that she lived with her daughter
and her boyfriend. (Id. at 141, 280.) At the time of the ALJ hearing Carey was single and lived
only with her daughter. (Id. at 48.) Carey testified that she spent most of her time taking care of
her daughter, completing household chores, and cleaning the house on a daily basis. (Id. at 3739.) Carey also testified that she regularly goes for walks, takes her daughter to the park, and
attends social functions approximately once per week. (Id. at 39.) Carey attends a parenting class
and takes high school home courses but has difficulty paying attention. (Id. at 40.) Carey testified
that she relies on welfare and currently has no other source of income. (Id. at 49.)

b. Testimony of Vocational Expert, Mitchell Schmidt
The VE offered testimony regarding Carey's background, skills and limitations, and the
number of jobs that exist in the national economy that a person of Carey's age, education, and
skills may perform. (Id. at 52-62.) Specifically, the VE testified that the exertion and skill level
of Carey's work as a secretary/accounting clerk is a sedentary, skilled job with a Specific
Vocational Preparation ("SVP") of five. (Id. at 53.) He testified that Carey's other jobs may not
meet the threshold of substantial gainful activity, but that the cashier jobs would be considered
light duty, unskilled jobs at SVP level two; the deli slicer job is light duty, unskilled at SVP level
two; and the short order cook and waitress jobs would be light duty, semiskilled at SVP level three.

(Id.) In addition, the VE stated that Carey's prior work required skills that are transferable to other
sedentary work of a limited nature. (Id. at 54.)
According to the VE, a hypothetical person as described by the ALJ with Carey's residual
functional capacity could be employed to numerous positions that are sedentary, unskilled at SVP

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level two. (Id. at 55.) The VE testified that Carey would be able to perform the job requirements
of occupations such as an assembler, a garment sorter, an addresser, or a document preparer. (Id.
at 55-56.) The VE additionally testified that it is his opinion that all of the described positions
would allow Carey to sit and stand alternatively on the basis indicated by the ALJ, if needed. (Id.
at 56.) Upon further questioning, the VE clarified that ifthe ALJ determined that Carey is unable
to get along with coworkers and employers, then most jobs would be precluded. (Id. at 58-59.)

C. ALJ Determination
The ALJ ruled that, in light of all the evidence, Carey was not disabled. Although the ALJ
acknowledged that Carey suffered a number of severe impairments-including asthma, migraine
headaches, depression, anxiety, bipolar disorder, and ADHD-he concluded that these
impairments were not oflisting severity; i.e., they were not covered by 20 C.F.R. § 404. (Id. at
12-18.) The ALJ also found that Carey's impairments did not preclude her from obtaining light,
unskilled sedentary work. (Id. at 18.) The VE identified a number of potential jobs that Carey
could perform, including assembler, garment sorter, addresser, and document preparer, all of
which are available in the national and regional economy. (Id. at 24.) The ALJ found that Carey
did not qualify for benefits. (Id. at 26.)

III.

STANDARD OF REVIEW
A. Cross Motions for Summary Judgment
Both parties filed motions for summary judgment pursuant to Federal Rule of Civil

Procedure 56( c). In determining the appropriateness of summary judgment, the court must review
the record as a whole and "draw all reasonable inferences in favor of the nonmoving party, [but]
may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000) (citations omitted). If the court determines that there is no

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genuine issue as to any material fact and that the movant is entitled to judgment as a matter oflaw,
summary judgment is appropriate. See Hull v. City ofScranton, 411 F.3d 118, 125 (3d Cir. 2005)
(quoting Fed. R. Civ. P. 56(c)).
This standard does not change merely because there are cross-motions for summary
judgment. Appelmans v. Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987). Cross-motions for
summary judgment:
are no more than a claim by each side that it alone is entitled to
summary judgment, and the making of such inherently contradictory
claims does not constitute an agreement that if one is rejected the
other is necessarily justified or that the losing party waives judicial
consideration and determination whether genuine issues of material
fact exist.
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968) (citation omitted). "The
filing of cross-motions for summary judgment does not require the court to grant summary
judgment for either party." Krupa v. New Castle County, 732 F. Supp. 497, 505 (D. Del. 1990)
(citation omitted).

B. Review of an Agency Decision
A reviewing court must uphold the Commissioner's factual decisions if they are supported
by "substantial evidence." 42 U.S.C. §§ 405(g), 1383(c)(3); Williams v. Sullivan, 970 F.2d 1178,
1182 (3d Cir. 1992); see also Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) ("Where the
ALJ's findings of fact are supported by substantial evidence, ... [the court is] bound by those
findings, even if ... [it] would have decided the factual issue differently."). "Substantial evidence"
means more than "a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).) "It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." (Id.) The inquiry is not
whether the reviewing court would have made the same determination, but rather, whether the
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Commissioner's conclusion was reasonable. See Brown v. Boweni, 845 F.2d 1211, 1213 (3d Cir.
1988).

IV.

DISCUSSION
Carey asserts that the ALJ's decision is flawed on two primary grounds. (D.I. 21 at 5.)

First, Carey alleges that the ALJ's denial is invalid due to his failure to properly evaluate and weigh
the severe impairment of migraine headaches.

(Id.)

Second, Carey argues that the ALJ's

hypothetical question to the VE, concerning whether employers would allow Carey to sit and stand
alternatively while working, was flawed because the VE testified based upon personal opinion and
not based upon any specific resources. (Id. at 6.)

A. Applicable Statute and Law
The Social Security Act defines "disability" as the inability "to engage in 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." 42 U.S.C. § 1382(a)(3)(A). The Commissioner has promulgated
regulations for determining disability by application of a five-step sequential analysis. See 20
C.F.R. § 404.1520. The ALJ, the reviewing Appeals Council, and the Commissioner evaluate
each case according to this five-step process until a finding of "disabled" or "not disabled" is
obtained. See 20 C.F.R. § 404.1520(a). The process is summarized as follows:
1.
2.
3.

4.

If the claimant currently is engaged in substantial gainful employment, she will be
found "not disabled."
If the claimant does not suffer from a "severe impairment," she will be found "not
disabled."
If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404,
Subpart P, Appendix 1 and has lasted or is expected to last for a continuous period
of at least twelve months, the claimant will be found "disabled." Otherwise, she
will be found "not disabled."
If the claimant can still perform work she has done in the past ("past relevant work")
despite the severe impairment, she will be found "not disabled."
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5.

Finally, the Commissioner will consider the claimant's ability to perform work
("residual functional capacity"), age, education, and past work experience to
determine whether or not she is capable of performing other work in the national
economy. If she is incapable, a finding of disability will be entered. Conversely, if
the claimant can perform other work, she will be found "not disabled."

Cunningham v. Apfel, No. 00-693-GMS, 2001 WL 1568708, at *4 (D. Del. Dec. 7, 2001)
(paraphrasing the five-step process for determining disability).
The disability determination analysis involves a shifting burden of proof. See Wallace v.

Sec'y ofHealth & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of the
analysis, the burden is on the claimant to prove every element of his or her claim by a
preponderance of the evidence. At step five, however, the burden shifts to the Commissioner to
prove that there is some other kind of substantial gainful employment the claimant is able to
perform. See Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000); see also Kangas v. Bowen, 823
F.2d 775, 777 (3d Cir. 1987); Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983). Substantial
gainful employment is defined as ''work that (a) involves doing significant and productive physical
or mental duties; and (b) is done (or intended) for pay or profit." 20 C.F.R. § 404.1510. When
determining whether substantial gainful employment is available, the ALJ is not limited to
consideration of the claimant's prior work, but may also consider any other substantial gainful
activity which exists in the national economy. See 42 U.S.C. § 423(d)(l)(A), (2)(A); Heckler v.

Campbell, 461 U.S. 458, 460 (1983).

B. ALJ's Evaluation of Migraine Headaches
Carey alleges that the ALJ's denial of SSI benefits is improper because the ALJ failed to
properly evaluate and weigh the severe impairment of migraine headaches. (D .I. 21 at 5-6.) Carey
argues that there was significant evidence proving that she would miss so much time from work
because of migraines, that it would preclude all employment. (Id.) Further, Carey asserts that the

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AU failed to consider her testimony regarding the migraine headaches, despite the fact that the
medical records supported her testimony. (Id.)
The Commissioner asserts that the ALJ reasonably based his determination on substantial
evidence in the record. (D.I. 23 at 6.) Specifically, the Commissioner argues that the evidence
demonstrates Carey's failure to seek out treatment on a regular basis, failure to follow doctors'
instructions and failure to comply with treatment regimens. (Id.) The Commissioner further
contends that the ALJ fully addressed all limitations experienced by Carey and found that her
testimony regarding the intensity, persistence, and limiting effects of the migraines was
inconsistent with the evidence. (Id.)
After reviewing the decision of the ALJ in light of the relevant standard of review and
applicable legal principles, the court concludes that the ALJ's decision is supported by substantial
evidence. In making his decision, the ALJ must consider all relevant evidence and give some
reason for discounting the evidence he rejects. Fargnoli, 247 F.3d at 41 (ALJ is not expected to
reference every related treatment note when record is voluminous, but is expected to consider and
evaluate medical evidence consistent with his responsibilities under the law); Plummer v. Apfel,
186 F.3d at 429 (3d Cir. 1999) ("The ALJ must consider all the evidence and give some reason for
discounting the evidence she rejects."). The ALJ must also consider the claimant's subjective
complaints in conjunction with the objective medical evidence, and make a determination as to the
credibility of the claimant's testimony. Fargnoli, 247 F.3d at 41; Singleton v. Astrue, 542 F. Supp.
2d 367, 381 (D. Del. 2008) ("Generally, the A.L.J.'s assessment of a plaintiff's credibility is
afforded great deference, because the A.L.J. is in the best position to evaluate the demeanor and
attitude of the plaintiff."); Antoniewicz v. Astrue, 769 F. Supp. 2d 713, 724 (D. Del. 2011)
("Although allegations of pain and other subjective symptoms must be consistent with objective

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medical evidence, the ALJ must still explain why he is rejecting the testimony."); Pachilis v.
Barnhart, 268 F. Supp. 2d 473, 478 (E.D. Pa. 2003) (the ALJ's decision may not merely disregard

the claimant's subjective complaints).
Here, the ALJ's findings indicate that he carefully considered both Carey's testimony and
all of the objective medical evidence on the record before coming to his decision. The ALJ
considered the severity of the migraine headaches, as evidenced in step two of the sequential
process where he found that the migraine headaches Carey suffered from were severe within the
meaning of the regulations. (D.I. 11 at 12.) The ALJ also considered Carey's testimony, along
with the objective medical evidence, to determine her residual functional capacity. (Id. at 18-23.)
While her testimony suggested debilitating migraines, the medical records did not.

(Id.)

Specifically, the ALJ considered the frequency of her treatment and noted the intermittent nature
of the treatment over the relevant timeframe.

The objective medical records support the

Commissioner's finding that Carey did not continually seek out medical treatment and in several
cases failed to comply with her treatment regimen. (Id. ·at 19-20.) Carey's onset date was June
21, 2005, but the medical records do not indicate any treatment until March 30, 2006, when she
sought treatment with Dr. Nixon. (Id. at 280.) Carey then pursued treatment only intermittently
unti1Januaryof2007 when she began to see Dr. Varipapa. (Id. at 336.) See Klangwaldv. Comm 'r
of Soc. Sec., 269 F. App'x 202, 205 (3d Cir. 2008) (a claimant's failure to receive medical

treatment consistent with severity of claimed symptoms is highly relevant in evaluating
credibility).
Moreover, the medical records from Carey's treating doctors demonstrate numerous
failures to consistently take medication and follow doctors' treatment regimens. (Id. at 20, 270,
272, 339, 478.) The records also indicate that when Carey followed the treatment regimen, the

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migraines were better kept under control. (Id. at 20, 375.) The ALJ concluded that Carey's
testimony regarding the intensity, persistence and limiting effects of the symptoms is not credible
to the extent that it is inconsistent with his assessment of her residual functional capacity. (Id. at
21.) This conclusion was well reasoned and based on substantial evidence presented in the
objective medical records. (Id. at 18-21.) The ALJ did not disregard Carey's testimony. Rather,
the ALJ came to the conclusion that the testimony was not consistent with the objective medical
evidence in the record. (Id. at 21.) Therefore, the ALJ's decision regarding Carey's migraine
headaches was both reasonable and based on substantial evidence.
C. Hypothetical Questions Posed to the Vocational Expert
Carey also alleges several flaws in the VE's testimony at the October 9, 2008 hearing in
front of the ALJ. (D.I. 21 at 17.) The first deals with a hypothetical question posed to the VE by
the ALJ. Carey contends that when describing her impairments, the ALJ failed to include the
functional limitations associated with her migraine headaches, and therefore inaccurately
characterized them. (Id. at B-14.) The Commissioner alleges that there is no merit to Carey's
claim, because the ALJ's hypothetical question was structured based on his findings regarding the
level of impairment associated with Carey's migraine headaches. (D.I. 23 at 21-22.)
The validity of a VE's testimony regarding the claimant's ability to perform alternative
employment is dependent on the ALJ's accurate portrayal of the claimant's mental and physical
impairments as set forth in the hypothetical question. The ALJ's hypothetical does not need to
convey every alleged impairment contained in the record, but rather an accurate portrayal of the
claimant's impairments that are credibly established by the objective medical records. Rutherford
v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005) (the ALJ is not required to submit every alleged

impairment to the VE, but the hypothetical must accurately portray the claimant's impairments);

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Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002); Plummer, 186 F.3d at 431 (the ALJ must
accurately convey to the VE all of the claimant's credibly established impairments).
The ALJ' s hypothetical posed to the VE described an individual suffering from migraines
and from "headaches somewhat relieved by her medications without significant side effects." (D.I.
11 at 54-55.) This is an accurate portrayal and is credibly established by the objective medical
records available to the ALJ. The objective medical records indicate that no treating physician
attributed a functional limitation to the migraine headaches from which Carey suffered. The only
description of a functional limitation associated with the migraine headaches was Carey's own
testimony and subjective description of symptoms. The ALJ appropriately considered Carey's
testimony and subjective complaints, and found them inconsistent with assessments of her
functional capacity.

Therefore, the description of Carey's impairments, as presented in the

hypothetical question to the VE, was appropriate.
Carey also alleges that the VE's response to one of the ALJ's questions was flawed because
the response was based upon personal opinion, rather than expert opinion. (D.1. 21 at 14-15.)
Carey characterizes the VE's testimony on this subject as "simple speculation" that is unsupported
by resources or studies. (Id.) However, Carey offers inadequate support for this proposition. A
VE's opinion does not need to be based on specific journals or studies, and as long as it is within
his capacity as an expert, he may opine on what jobs can be performed by individuals with limited
abilities. Mcintyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014) ("[V]ocational expert may be
consulted to determine whether there is other work in the national economy that an individual with
the ability to do less than the full range of sedentary work may perform."); Davie v. Sec '.Y of
Health & Human Servs., 866 F.2d 431 (6th Cir. 1989) ("The VE's testimony need not be based on
journals or other documentary evidence but is indeed based on the VE's personal expertise.")

15

Here, the VE did not cite to specific resources or studies offering support for his position,
but it was based on his personal knowledge as an undisputed expert in the field. As a result, his
testimony was appropriately relied upon by the ALJ.
V.

CONCLUSION
For the foregoing reasons, the court will (1) grant the defendant's cross motion for

summary judgment, (2) deny the plaintiffs motion for summary judgment, and (3) affirm the
ALJ' s decision.

Dated: March ja, 2015

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