Tyler v. Astrue

Filing 31

MEMORANDUM OPINION re cross-motions for summary judgment. Signed by Judge Leonard P. Stark on 9/28/12. (ntl)

IN THE UNITED STATES biSTRICT COURT
FOR THE DISTRICT dF DELAWARE

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THERESA TYLER,
Plaintiff,
C.A. No. 10-599-LPS

v.
MICHAELJ. ASTRUE,
Commissioner of Social Security,
Defendant.

Gary Linarducci, Esquire, of LINARDUCCI &

BUT~ER, PA, Wilmington, DE.

Attorney for Plaintiff.
Charles M. Oberly, III, Esquire, United States AttornFY and Heather Benderson, Esquire
OFFICE OF THE UNITED STATES ATTORNEY, ~ilmington, DE.
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Eric P. Kressman, Esquire, SOCIAL SECURITY ADMINISTRATION - REGION III OFFICE
OF GENERAL COUNSEL, Philadelphia, PA.
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Attorneys for Defendant.

MEMORANDUM OPINION

September 28, 2012
Wilmington, Delaware

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I.

INTRODUCTION
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Plaintiff, Theresa Tyler ("Tyler" or "Plaintiff!), appeals from a decision of defendant,
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Michael J. Astrue, the Commissioner of Social Secuility ("Commissioner" or "Defendant"),
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denying her claim for disability insurance benefits ("Pill") under Title II of the Social Security
Act, 42 U.S.C. §§ 401-433. This Court has jurisdictibn pursuant to 42 U.S.C. § 405(g).
Presently pending before the Court are cross-kotions for summary judgment filed by
Plaintiff and Defendant. (D.I. 24, 28) Plaintiff seek~ reversal of Defendant's decision and an
award ofDffi or, in the alternative, remand for furth+ analysis. (D.I. 25 at 18) Defendant
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requests the Court affirm his decision. (D.I. 29 at 21) For the reasons set forth below, the Court
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will deny Plaintiffs motion for summary judgment a~d grant Defendant's motion for summary
judgment.
II.

BACKGROUND

A.

Procedural History

Plaintiff filed her claim for DID on August 7, 2007, alleging disability since December
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31, 2003, due to high blood pressure, neck fusion, ru1hritis, and back pain. (D .I. 12 (hereinafter
"Tr.") at 10, 112) Plaintiffs claim for DID was denitd initially and upon reconsideration. (Id. at
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45-49, 54-58) Thereafter, Plaintiff requested a heari*g before an administrative law judge
("ALJ"). (Id. at 60-63) A hearing was held on Aprill7, 2009 before an ALJ, at which Plaintiff
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was represented by counsel. (Id. at 10) Plaintiff and a vocational expert testified at the hearing.
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(See id. at 20-41) On August 3, 2009, the ALJ issue1 a written decision in which he found that

Plaintiff was not disabled as defined in the Social

Se~urity Act.
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(!d. at 16) Plaintiff requested

review of the ALl's decision on August 5, 2009. (!d.' at 6) The Appeals Council denied
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Plaintiffs request for review on June 10, 2010. (Id. ~t 5) Thus, the August 3, 2009 decision of
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the ALJ became the final decision of the Commissiofer. See 20 C.F.R. §§ 404.955, 404.981;
Sims v. Apfel, 530 U.S. 103, 107 (2000).
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On July 14, 2010, Plaintiff filed a complaint ,eekingjudicial review ofthe ALl's August
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3, 2009 decision. (D.I. 2) Subsequently, on

Septem~er 23, 2011, Plaintiff moved for summary
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judgment. (D.I. 24) In response, on November 22, 21011, the Commissioner filed a cross-motion
for summary judgment. (D.I. 28)

B.

Factual Background
1.

Plaintiff's Medical History, treatment, and Condition
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Plaintiff was forty-seven years old on her all+ed disability onset date and was considered
a younger individual for disability determination p~oses. See 20 C.F.R. § 404.963(c); Tr. at
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112. She was forty-nine years old when the ALJ ren~ered a decision in this case. (Tr. at 16)
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Less than twenty days after the ALJ' s decision, Plair¥ff turned fifty years old. (!d. at 20)
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Plaintiff has a limited education; she left school in tefth grade and never obtained aGED. See
20 C.F.R. § 404.1564(b)(3); Tr. at 20. Plaintiffhas ~revious work experience as a packer,
assembler, and cashier. (Tr. at 34) In her application for DIB, Plaintiff relied on cervical and
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lumbar injuries as the cause of her disability. Plaintiffs relevant medical history is detailed
below.
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a.

Cervical and Lumbat Injuries
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Plaintiffhas a significant history of cervical spine injury. (!d. at 12) Plaintiff underwent
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a cervical fusion in 2002. (!d. at 12, 281) On May 1f, 2007, Plaintiffwas injured in a motor
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vehicle accident, which aggravated her past cervical

~pine

injuries. (!d. at 12-13, 282-83, 291,

307-08) As a result of the accident, Plaintiff was dia~osed with a strained neck and sprained
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ankle. (!d. at 212)
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Several days after the accident, Wayne I. Tuc~er, D.O., found that Plaintiffhad
tenderness and spasms along her spine. (!d. at

282-8~)

On May 25, 2007, Plaintiff told Dr.

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Tucker that she was sore and felt weak on the left si1e of her body. (!d. at 284) Dr. Tucker
observed spinal tenderness and spasms on two subsefuent examinations. (!d. at 285-86)
On July 9, 2007, Plaintiff underwent MRis other cervical and lumbar spine. (!d. at 13,
281, 289) The MRI of her cervical spine showed

sta~s-post cervical fusion at C6-7 and small
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central disc osteophyte complexes at C3-4 and C4-5,lbut no signs of disc extrusion or significant
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central canal or foramina! stenosis. (!d. at 13, 281) tn MRI ofPlaintiffs lumbar spine revealed
degenerative changes superimposed onto congenital farrowing at L4-5, which contributed to
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moderate central canal stenosis and mild bilateral fotminal stenosis. (!d. at 13, 289) A normal
variant ofleft-sided hemisacrolization at L5 and lig*entum flavum thickening on the left side at
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T10-11 also appeared, but there was no disc extrusiop at any level. (!d.)
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Ten days later, on July 19, 2007, Dr. Tucker ~gain observed tenderness in Plaintiffs
cervical and lumbosacral spine. (!d. at 287) Subseq111ently, on August 9, 2007, Plaintiff
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presented to Conrad K. King, Jr., M.D., with neck,

l~wer

back, and right ankle pain exacerbated

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by activity and partially relieved by medicine. (!d. a~ 308) Dr. King determined that Plaintiff had
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full range of motion in her cervical spine with discotfort at the extremes of rotation, extension,
and lateral bending. (!d. at 311) Dr. King also detetined that Plaintiff had moderate myospasm
in her left trapezius and mild myospasm in her right rapezius. (!d.) Based on his examination,
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Dr. King diagnosed Plaintiffwith strain/sprain ofherjcervical and lumbar spine and bruising,
with sprain, of her right ankle. (!d.) Dr. King opine4 that Plaintiff was "currently totally
disabled." (!d. at 310-11) Upon reexamination sevefal days later and in two subsequent
evaluations, Dr. King found tenderness and tightnesslin Plaintiffs spine. (!d. at 302)
On August 27, 2007, Bruce J. Rudin, M.D.,
cervical spine in January 2004, examined Plaintiff.

t~e orthopedist who had fused Plaintiffs

(~d. at 13, 194-95, 291)

Dr. Rudin noted

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Plaintiffhad likely sustained a fairly significant soft ~issue injury and fairly severe lumbar
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stenosis with severe facet disease at L4-5. (!d. at 13,1291) Dr. Rudin observed that Plaintiffwas
neurologically normal, but that she had restricted ran~e of motion in her neck and back with
surrounding bone tenderness. (!d.) He recommendet Plaintiff undergo lumbar epidural steroid
injections. (!d. at 13)
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On September 11, 2007, Dr. King found

Plai~tiffs physical status essentially unchanged.

(!d. at 305) He continued to diagnose Plaintiff with tervical and lumbar sprain/strain, but this

reso~ving.

time noted that her right ankle bruise/sprain was

(!d.) Dr. King opined that Plaintiff

remained disabled. (!d. at 305-06)
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Subsequently, on October II, 2007, V.K.

Kara,

M.D., a state agency physician,

reviewed the record evidence and concluded that Platntiff retained the residual functional
capacity ("RFC") to occasionally lift/carry twenty po

ds, frequently lift/carry ten pounds,

stand/walk at least two hours in an eight-hour workd y, sit about six hours in an eight-hour
workday, and had an unlimited ability to push or pul . (!d. at 296) Dr. Kataria further limited
Plaintiff to no balancing and to only occasional clim ing, stooping, kneeling, crouching, and
crawling. (!d. at 298) He also stated that Plaintiffs ould avoid concentrated exposure to

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vibration and hazards. (Id. at 299) Ultimately, Dr. ~ataria opined Plaintiff had a sedentary RFC.
(Id. at 297)

On October 16, 2007, Plaintiff complained to Dr. King of continued neck and low back
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pain exacerbated by daily activities. (Id. at 304) Dr.IKing observed tightness in Plaintiffs
trapezius and lumbar paraspinal muscles with palpabJe trigger points. (!d.) He opined that
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Plaintiff remained disabled. (!d.)
In November 2007, Plaintiff reported to Dr.

~ng that while the cooler weather increased
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her neck and lower back discomfort, she did "derive relief with use of pain medication." (Id. at
326) On examination, Dr. King observed moderate-r-marked myospasm of Plaintiffs trapezius
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and lumbar paraspinal muscles. (Id. at 326) Again, ?r. King opined that Plaintiff remained
disabled. (Id. at 326-27)
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Plaintiff visited with Dr. King or his associatf, Damon Cary, D.O., ten times between
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December 11,2007 and January 27,2009. (Id. at 31f-17, 322-25, 338-43) On December 11,
2007, Dr. King observed that Plaintiff had moderate }esidual myospasm ofthe trapezius and
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lumbar paraspinal muscles with palpable trigger poi4ts. (Id. at 324) On January 9, 2008, Dr.
Cary found ongoing muscle spasms over the trapeziaf and lumbar paraspinal muscles along with
trigger points in the lumbar region. (Id. at 322) On iuly 31, 2008, Dr. King again found trigger
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points in Plaintiffs trapezial and lumbar paraspinal tuscles. (Id. at 339) On September 26,
2008, Dr. King found tightness in these muscles.

(14

at 341) On January 27, 2009, Dr. King

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observed that Plaintiff had moderate-to-marked myofpasm in her trapezial and lumbar paraspinal
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muscles with a limited range of motion ofher cervic~ and lumbar spine. (Id. at 343)
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2.

The Administrative Hearing I

Plaintiffs administrative hearing took place 9n April 7, 2009. (Id. at 10, 17) Plaintiff
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testified at the hearing and was represented by couns+l. (Id. at 10) A vocational expert also
testified. (Id. at 34-40)

a.

Plaintiff's Testimony

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At the hearing, Plaintiff testified that she is fqrty-nine years old and lives with her
husband. (Id. at 20) Plaintiff stated that she is activd in her church and serves as an assistant to
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her pastor. (Id. at 29) She stated that she dropped o4t of high school in tenth grade and never
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received aGED. (Id.) Plaintiff testified that she pretiously was employed doing automotive
assembly work at General Motors. (Id. at 21) She f$ther testified that she was injured at work
after getting hit with a forklift in both 2002 and

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(!d.) Plaintiff stated that she has not

returned to work since her car accident in 2007. (Id. rt 21-22) She stated that she had undergone
surgery on her neck and fingers. (Id. at 22)

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Plaintiff also testified that she presently expetences neck and back pain as well as pain in
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her fingers. (Id. at 23) She stated that the pain varief day to day, but impacts her ability to grip
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objects and do housework and laundry. (Id. at 23, 2~, 27-28) She indicated that Dr. Roden has
been treating her pain, on and off, for the past seven years. (Id. at 24-25) Plaintiff stated that she
takes Percocet and medicine to treat high blood pres~ure. (Id. at 25) She testified that she drives,
but does not drive far from her home. (Id. at 25) Sh also testified that she can carry eight to ten
pounds, can stand for fifteen minutes before she nee s to sit down and rest, and can sit for half an
hour before she needs to get up. (Id. at 27, 30) She

rther testified that she can lift her head and

use both of her arms without any problems. (Id. at 3$)
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b.

Vocational Expert's testimony
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A vocational expert, Ellen C. Jenkins, also te$tified at the hearing. (See id. at 34-40) Ms.
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Jenkins classified Plaintiffs past relevant work expepence as follows: (1) Plaintiffs job as a
packer as a medium exertion level, unskilled job; (2)1Plaintiffs job as an assembler as a light
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exertion level, semi-skilled job; and (3) Plaintiffs jop as a cashier as a light exertion level,
unskilled job. (!d. at 34)

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The ALJ asked the vocational expert the follqwing question:
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Let's say we have a person who is 47~ears of age on her onset
date, has a 1Oth grade education ... ri t-handed by nature,
suffering from degenerative disc dise se, lumbar, cervical, mostly
cervical. She had a cervical fusion . ·1· in '02 as a work injury and
she's had several automobile acciden~since, some injury to the
left upper extremity. All of these thin s cause her to have
moderate pain and discomfort somew at relieved by her
medication without significant side e I ects, but she indicates in her
testimony today she derives some sle~iness from one or a
combination. And ifl find because of her pain she needs to have
simple, routine, unskilled jobs, SVP ~'she's able to attend tasks
and complete schedules, low-stress cgncentration and memory, she
can lift 10 pounds regularly and 20 o~ occasion, sit for an hour,
stand for five or 10 minutes if neede~d onsistently on an alternate
basis during an eight hour day, five d ys a week, would have to
avoid heights and hazardous machin
and nothing along
climbing, balancing, stooping, no overhead reaching with the left
upper extremity and would be mildly Jimited as to push and pull in
the right lower extremity, and no repetitive neck turning jobs, and
would seem to be able to do light work activities, can you can give
me jobs that such a person could do opt there in the national
economy in significant numbers in yopr opinion as a Vocational
Expert?
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(Id. at 35-36) In response, the vocational expert tesfed that, despite those limitations, such an
individual could perform the light, unskilled jobs of ropier operator and information clerk. (!d.
at 36) The vocational expert also testified that PlaintIf could perform her past job as a cashier so

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long as there was a stool that permitted a sit/stand option. (ld.)

3.

The ALJ's Findings

On August 3, 2009, the ALJ issued the

follo~ing findings: 1

1.

The claimant last met the insured sta4s requirements of the Social
Security Act on June 30, 2009.
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2.

The claimant did not engage in substttial gainful activity during
the period from her alleged onset date of May 11, 2007 through her
date last insured of June 30,2009 (20 C.F.R. 404.1471 et. seq.).
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3.

Through the date last insured, the clat~ant had the following
severe impairment: degenerative disc isease of the cervical spine
and lumbar spine (20 C.F.R. 404.152 (c)).
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4.

Through the date last insured, the claitnant did not have an
impairment or combination of impainPents that met or medically
equaled one of the listed impairments lin 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. 401.1525 and 404.1526).
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5.

After careful consideration of the enti e record, the undersigned
finds that, through the date last insure , the claimant had the
residual functional capacity to perfo light work as defined in 20
C.F.R. 404.1567(b) except the claim t must be able to sit for one
hour then stand for fifteen minutes oughout an eight-hour
workday. She must avoid heights, mF.ing machinery and she
cannot engage in prolonged climbing d stooping. The claimant
cannot perform repetitive neck tumin .

6.

Throughout the date last insured, the <plaimant was capable of
performing past relevant work as a c;·hier. This work did not
require the performance ofwork-relat d activities precluded by the
claimant's residual functional capaci (20 C.F.R. 404.1565).
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7.

The claimant was not under a disabili~, as defined in the Social
Security Act, at any time from May 1 , 2007, the alleged onset
date, through June 30, 2009, the date ast insured (20 C.F.R.
404.1520(f)).
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The ALJ's factual findings have been extracled from his decision, which interspersed
factual findings and commentary. (Tr. at 12-16)
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III.

LEGAL STANDARDS
A.

Motion for Summary Judgment

"The court shall grant summary judgment if $e movant shows that there is no genuine
dispute as to any material fact and the movant is enti~led to judgment as a matter oflaw." Fed. R.
Civ. P. 56(a). The moving party bears the burden

of~emonstrating the absence of a genuine
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issue of material fact. Matsushita Elec. Indus. Co. v.,Zenith Radio Corp., 415 U.S. 574, 586 n.10
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(1986). A party asserting that a fact cannot be -or, ~ltematively, is -genuinely disputed must be
supported either by citing to "particular parts of mate~als in the record, including depositions,
documents, electronically stored information, affidaits or declarations, stipulations (including
those made for the purposes of the motions only), adfissions, interrogatory answers, or other
materials," or by "showing that the materials cited d1 not establish the absence or presence of a
genuine dispute, or that an adverse party cannot prodhce admissible evidence to support the fact."
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Fed. R. Civ. P. 56(c)(1)(A) & (B). If the moving p t has carried its burden, the nonmovant
must then "come forward with specific facts showin~ that there is a genuine issue for trial."

Matsushita, 415 U.S. at 587 (internal quotation marl$ omitted). The Court will "draw all
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reasonable inferences in favor of the nonmoving pafo/, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sarzderson Plumbing Prods., Inc., 530 U.S.
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133, 150 (2000).

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To defeat a motion for summary judgment, t* non-moving party must "do more than
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simply show that there is some metaphysical doubt a to the material facts." Matsushita, 475
U.S. at 586-87; see also Podohnik v. US. Postal Se ice, 409 F.3d 584, 594 (3d Cir. 2005)
(stating party opposing summary judgment "must pr sent more than just bare assertions,

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conclusory allegations or suspicions to show the existence of a genuine issue") (internal
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quotation marks omitted). However, the "mere existtnce of some alleged factual dispute
between the parties will not defeat an otherwise propfly supported motion for summary
judgment;" a factual dispute is genuine only where

"~e evidence is such that a reasonable jury

could return a verdict for the nonmoving party." An4erson v. Liberty Lobby, Inc., 411 U.S. 242,
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247-48 (1986). "If the evidence is merely colorable, rr is not significantly probative, summary
judgment may be granted." Id. at 249-50 (internal citations omitted); see also Celotex Corp. v.

Catrett, 411 U.S. 317,322 (1986) (stating entry ofsrmary judgment is mandated "against a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear thf burden of proof at trial").

B.

Review of the ALJ's Findings

The Court must uphold the Commissioner's

ctual decisions if they are supported by

"substantial evidence." See 42 U.S.C. §§ 405(g), 13 3(c)(3); Monsour Med. Ctr. v. Heckler, 806
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F .2d 1185, 1190 (3d Cir. 1986). "Substantial eviden~e" means less than a preponderance of the
evidence but more than a mere scintilla of evidence. ISee Rutherford v. Barnhart, 399 F.3d 546,
552 (3d Cir. 2005). As the United States Supreme

C~urt has noted, substantial evidence "does

not mean a large or significant amount of evidence, ~ut rather such relevant evidence as a
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reasonable mind might accept as adequate to support Ia conclusion." Pierce v. Underwood,
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487 u.s. 552, 565 (1988).

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Court may not undertake a de novo review of the Co missioner's decision and may not re-weigh

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the evidence of record. See Monsour, 806 F .2d at 11

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In determining whether substantial evidence upports the Commissioner's findings, the

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The Court's review is limited to the

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evidence that was actually presented to the ALJ. SeeiMatthews v. Apfel, 239 F.3d 589, 593-95
(3d Cir. 2001 ). However, evidence that was not

sub~itted to the ALJ can be considered by the
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Appeals Council or the District Court as a basis for rfnanding the matter to the Commissioner
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for further proceedings, pursuant to the sixth sentencf 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 etidence." Gonzalez v. Astrue, 537
F. Supp. 2d 644, 657 (D. Del. 2008) (internal quotati~n marks omitted).
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The Third Circuit has explained that:

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A single piece of evidence will not sa isfy the substantiality test if
the [Commissioner] ignores, or fails t resolve, a conflict created
by countervailing evidence. Nor is ev"dence substantial if it is
overwhelmed by other evidence - pa icularly certain types of
evidence (e.g., that offered by treating physicians) - or if it really
constitutes not evidence but mere con lusion.

Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
Thus, the inquiry is not whether the Court wo~ld have made the same determination but,
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rather, whether the Commissioner's conclusion was
1211, 1213 (3d Cir. 1988). Even if the reviewing

~easonable.

See Brown v. Bowen, 845 F.2d

Co~rt would have decided the case differently,
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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.

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
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insurance benefits to persons who have contributed tt 1he program and who suffer from a

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physical or mental disability." Bowen v. Yuckert, 48i U.S. 137, 140 (1987). Title XVI of the
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Social Security Act provides for the payment of disaiility benefits to indigent persons under the
SSI program. 42 U.S.C. § 1382(a). A "disability" isldefined for purposes ofboth DIB and SSI
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as the inability to do any substantial gainful activity 1y reason of any medically determinable
physical or mental impairment which can be expectef to result in death or which has lasted or
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can be expected to last for a continuous period ofno1less than 12 months. See 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is

disa~led "only if his physical or mental
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impairment or impairments are of such severity that ~e is not only unable to do his previous work

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but cannot, considering his age, education, and work !experience, engage in any other kind of

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1382c(a)(3)(B); see also Barnhart v. Thomas, 540 uJs. 20, 21-22 (2003).

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substantial gainful work which exists in the national rconomy." 42 U.S.C. §§ 423(d)(2)(A),

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In determining whether a person is disabled, ~e Commissioner is required to perform a

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five-step sequential analysis. See 20 C.F.R. §§ 404.11520, 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 determi~e whether the claimant is engaged in any
substantial gainful activity. See 20 C.F.R. §§ 404.15~0(a)(4)(i), 416.920(a)(4)(i) (mandating
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finding of non-disability when claimant is engaged , substantial gainful activity). If the
claimant is not engaged in substantial gainful activi , step two requires the Commissioner to
determine whether the claimant is suffering from a s vere impairment or a combination of
impairments that is severe. See 20 C.F.R. §§ 404.15 O(a)(4)(ii) (mandating finding of
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non-disability when claimant's impairments are not ~evere), 416.920(a)(4)(ii). If the claimant's
impairments are severe, the Commissioner, at step thlree, compares the claimant's impairments to
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a list of impairments that are presumed severe enout to preclude any gainful work. See 20
C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Plurmer, 186 F.3d at 428. When a claimant's
impairment or its equivalent matches an impairment rn the listing, the claimant is presumed
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disabled. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.~20(a)(4)(iii). If a claimant's impairment,
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either singly or in combination, fails to meet or medifruly equal any listing, the analysis
continues to steps four and five. See 20 C.F.R. §§ 414.1520(e), 416.920(e).
At step four, the Commissioner determines ~ether the claimant retains the residual
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functional capacity ("RFC") to perform his past releiant work. See 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv) (stating claifant is not disabled if able to return to past
relevant work); Plummer, 186 F.3d at 4 28. A clairntt' s RFC is "that which an individual is still
able to do despite the limitations caused by his or hei impairment(s)." Fargnoli v. Halter, 247
F .3d 34, 40 (3d Cir. 2001 ). "The claimant bears the turden of demonstrating an inability to
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return to her past relevant work." Plummer, 186 F.3~ at 428.
If the claimant is unable to return to her past relevant work, step five requires the
Commissioner to determine whether the claimant's impairments preclude her from adjusting to
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any other available work. See 20 C.F.R. §§ 404.152t(g), 416.920(g) (mandating finding of
non-disability when claimant can adjust to other wo+); Plummer, 186 F.3d at 428. At this last
step, the burden is on the Commissioner to show tha1 the claimant is capable of performing other
available work before denying disability benefits.

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Plummer, 186 F.3d at 428. In other

words, the Commissioner must prove that "there are rther jobs existing in significant numbers in

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the national economy which the claimant can perfo4, consistent with her medical impairments,
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age, education, past work experience, and [RFC]."

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In making this determination, the ALJ

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must analyze the cumulative effect of all ofthe clai:ant's impairments. See id. At this step, the
ALJ often seeks the assistance of a vocational expert See id.
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B.

Tyler's Arguments on Appeal

Tyler presents six arguments on appeal: (1) t1e ALJ improperly determined that Tyler's
past work as a cashier constituted past relevant work !experience; (2) the ALJ incorrectly
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classified Tyler's sedentary RFC as an RFC for light !work; (3) the ALJ incorrectly identified
Tyler's date last insured ("DLI") and failed to

consid~r the entire period at issue; (4) the ALJ

failed to consider the fact that Tyler reached age

fi~ within twenty days of the ALJ' s decision;
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(5) the ALJ's RFC and hypothetical to the vocation~ expert failed to include all of Tyler's
credibly established limitations; and (6) the ALJ fail~d to weigh the medical opinion evidence in
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accordance with applicable laws and regulations.

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1.

Tyler's past work as a

cashi~r

Plaintiff first argues that the ALJ improperlyjdetermined that Plaintiffs past work as a
cashier was past relevant work experience, as the So .ial Security Administration ("SSA") defines
the term, because the record does not establish that P aintiff ever performed her job as a cashier
at the substantial gainful activity level. (D.I. 25 at 6) The Commissioner responds that

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Plaintiffs work experience as a cashier does qualify ~s past relevant work experience. (D.I. 29 at

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The SSA defines past relevant work

experien~e as work that was performed: (1) in the

last fifteen years; (2) long enough for the claimant tollearn how to do it; and (3) at the substantial
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gainful activity level. See 20 C .F .R. § 404.1565(a).

order to reach the level of substantial

gainful activity, the claimant must have earned more rhan $500 per month (for the period through
June 1999) and $700 (for the period after June 1999 through December 1999). See 20 C.F.R.
!

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§ 404,1574(b), tbl. 1.

1

decision. (Tr. at 16, 98, 113) The vocational expert plassified this work as unskilled, which

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means work that "a person can usually learn to do . . in 30 days .... " 20 C.F .R. § 404.1568(a);

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Plaintiff's work as a casino cashier in 1999 +s within fifteen years of the ALJ's 2009

i

Tr. at 34. The record contains substantial evidence t support a finding that Plaintiff earned at
least $500 per month for at least one month between anuary and June 1999 and/or at least $700
ecember 1999. 3 Accordingly, there was

per month for at least one month between June and

substantial evidence to support the ALJ' s determinat on that Plaintiffs past work as a cashier
qualified as past relevant work experience.
I

In her briefing, Plaintiff contends she worked! as a "teller," not a "cashier." (D.I. 30 at 1)
Documents in the record show Plaintiff describing h r position (at Delaware Park casino in 1999)
as "Teller" and, in more detail, "nuetral teller. Taki

money from people placing bets." (Tr. at

2

The amount a claimant must have earned vJes based on the relevant time period. The
relevant time period here is from 1990 to 1999.
I
3

Records indicate that Plaintiff earned total
ges of $4,656.66 from Delaware Park (not
counting an additional $728.27 she earned in tips).
r. at 105) It appears that Plaintiff did not
work at Delaware Park for the entirety of 1999; she r orts working 40-hour work weeks as an
assembler reworking parts for cars beginning on som unspecified date in 1999. (Tr. at 138, 140)
Plaintiff disclosed that she earned $11 per hour in th casino, where she worked five days per
week for eight hours per day. (Tr. at 113, 137, 142) On a monthly basis, this would amount to at
least $1760 of wages per month ($11 per hour times hours times 5 days times 4 weeks), well in
excess of the $500 or $700 thresholds. There is noth ng in the record to suggest that Plaintiff
earned less than $500 or $700 per month at the casin
15

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113, 137, 142) The vocational expert testified that Ptaintiff"worked as a cashier, that was in the
casino." (Tr. at 34) Elsewhere the vocational expertldescribed Plaintiffs position at the casino
I

as a "cashier teller position" and "the teller position i the casino, she was a cashier teller in a
casino." (Tr. at 36-47) There was substantial evide

e to support the ALJ's determination that

Plaintiff's past relevant work was properly characteted as a "cashier" position.

2.

Tyler's RFC

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Next, Plaintiff contends that the sit/stand optiFn contained in the ALJ' s RFC assessment
contravenes the Commissioner's definition oflight 1ork. (See D.I. 25 at 7-8; 20 C.F.R.
§ 404.1567(b) (defining light work)) In response, thf Commissioner argues that the ALJ
properly relied on the assessment of the vocational efpert to clarify the implications of Plaintiffs
RFC, which was somewhere between the sedentary td light exertionallevels of work. (D.I. 29
at 11)

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The Court concludes that the ALJ correctly aJsessed Plaintiffs RFC. The SSA has
I

recognized that "[i]n situations where the rules woulf direct different conclusions, and the
i

individual's exertionallimitations are somewhere 'iq the middle' in terms of the regulatory
criteria for exertional ranges of work ... VS

[vocati~nal specialist] assistance is advisable ...."

SSR 83-12, 1983 WL 31253, at *3; see also Santiag~ v. Barnhart, 367 F. Supp. 2d 728,733
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(E.D. Pa. 2005) ("There is nothing oxymoronic in fi1ding that a plaintiff can perform a limited
range of light work."). Thus, the ALJ properly conclfded that claimant could perform a limited
I

range of light work in that she was limited by the ne9d to be able to sit for one hour and then
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stand for fifteen minutes. (Tr. at 13) That Plaintiff cpuld not fully perform light work- which
requires the ability to stand and walk for one-third to two-thirds of the work day- does not mean
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that the ALJ was required to determine that Plaintiff pad a sedentary RFC. Instead, there is
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substantial evidence to support the ALJ' s classificatifn of Plaintiff as being limited to light work
with the additional sitting/standing restriction, inclu4ing Plaintiffs own testimony and the
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finding of the state agency consultant. 4 (See id. at 27~ 296)

3.

Tyler's DLI and the period

~t issue

Plaintiff argues that the ALJ incorrectly identtfied Plaintiffs DLI for DIB entitlement as
June 30, 2009, when Plaintiffs actual DLI was June

~0, 2010.

(D.I. 25 at 11) The

Commissioner responds that even if the ALJ erroneo)lsly identified her DLI, remand is not
I

required because such error was harmless. (D.I. 29 ~ 12)
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It appears that the ALJ did incorrectly identi1 Tyler's DLI. (Compare Tr. at 89 (correctly

listing Plaintiffs DLI as June 30, 2010) with id. at 1 (incorrectly listing Plaintiffs DLI as June
30, 2009)) However, the Court agrees with Defend t that this error is harmless. See generally

Raines v. Astrue, 2012 WL 699460, at *4 (N.D. Cal.

ar. 1, 2012) (stating ALJ's incorrect

calculation of claimant's DLI is harmless if"error w4s inconsequential to the ultimate
determination that Plaintiff was not disabled");

Swai~ v. Comm 'r ofSoc. Sec. Admin., 2011 WL

6780904, at *2 (N.D. Ohio Dec. 27, 2011) ("[E]ven assuming that the ALJ's determination [of
claimant's DLI] was flawed, the error was of no con~equence as it did not influence the ALJ' s
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decision, and consequently, does not support the neef for remand."); see also generally Odette v.

Comm 'r of Soc. Sec., 2010 WL 2104300, at *10 (E.q. Mich. May 3, 2010) (determining that

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Although the state agency consultant determ
at 297), this determination was not controlling on th
administrative findings reserved to the ALJ. See 20
and incorporated various findings of the state agenc
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ned that Plaintiff had a sedentary RFC (Tr.
ALJ, as RFC determinations are
.F.R. § 404.1546([c]). The ALJ relied on
consultant in his RFC.

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incorrectly identifying claimant's DLI "is harmless

e~or where the onset date was prior to the

[DLI]").
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Plaintiff asserts that the ALJ' s error deprived Iher of her right to have her entire period of
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potential entitlement considered. (D.I. 25 at 11) Hotever, the ALJ expressly stated that he gave
"careful consideration to the entire record." (Tr. at 1 ) The entire record included all medical
evidence relating to Plaintiffs alleged disability- yet none of the medical evidence in the record
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post-dated the incorrect DLI. The last date on the

m~dical records is March 2009.

(Tr. at 169-

343)
Additionally, Plaintiff argues that this error was harmful because the ALJ failed to
consider how Plaintiff's August birthday (when she red fifty years old) impacted her disability
status. (D.I. 25 at 11; see also 20 C.F.R. § 404.15631d) (explaining that turning fifty advances
claimant to category of"person closely approaching tdvanced age," where claimant's age may
contribute to serious limitation of claimant's ability t adjust to other work)) However, even if
the ALJ viewed Plaintiff as closely approaching adv~ced age, this would not have had any
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impact on Plaintiffs disability status because the ALr determined Plaintiff had the RFC to
I

perform light work. See 20 C.F .R., pt. 404, subpt. P ,: app. 2 § 202.10, tbl. 2 (indicating that
I

claimant "closely approaching advanced age" who

di~

not graduate high school, has unskilled

past work, and retains RFC for light work, is not dis~bled).

4.

Whether the ALJ failed to c nsider the fact that Tyler reached age
fifty within twenty days oft e ALJ's decision

Plaintiff argues that the ALJ erred in failing t consider that Plaintiff would reach age
fifty within twenty days of his decision. (D.I. 25 at 11) Plaintiff contends this error requires

18

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remand because the AU had limited Plaintiff to sed+tary work, and a fifty year old limited to
sedentary work is considered disabled. !d. at 12; see 120 C.F .R. pt. 404, subpt. P, app. 2 § 202.1 0,
tbl. 1. In response, the Commissioner argues that th · ALJ' s alleged failure to consider Plaintiff's
upcoming fiftieth birthday was harmless error becau e even a fifty year old claimant with an RFC
for light work is considered not disabled. D.I. 29 at 4; see 20 C.F.R., pt. 404, subpt. P, app. 2

§ 202.1 o, tbt 2.

1

As an initial matter, it is unclear whether the hJ failed to consider Plaintiffs age in
I

making his determination. In his written opinion, th(;) ALJ mentioned Plaintiffs date of birth and
noted that Plaintiff was forty-nine years old, and thu~, a younger individual. (Tr. at 15)
Therefore, it seems that the ALJ was aware of Plainf ff s age and the fact that within a month of

ee Lockwood v. Comm 'r of Soc. Sec.

his decision, the Plaintiff would tum fifty years old.

Admin., 616 F.3d 1068, 1071-72 (9th Cir. 2010) (fin ing ALJ's discussion of claimant's birth
date, current age, and SSA regulations regarding imp ct of age on disability determination to be
sufficient evidence of ALJ's consideration of claim~t's age situation); Bowie v. Comm 'r of Soc.
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Sec., 539 F.3d 395, 399-401 (6th Cir. 2008) (same).

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Even assuming that the ALJ failed to consider Plaintiffs upcoming fiftieth birthday, this
error was harmless. As previously discussed, the Co"j.lrt has determined that there was substantial
evidence to support the ALJ' s categorization of Plai tiffs RFC as one for light work. Thus,
Plaintiffs argument that turning fifty would impact er disability status is misplaced because
turning fifty would only impact her disability status i she had an RFC for sedentary work. See
20 C.F .R. pt. 404, supt. P, app. 2 § 201.10, tbl. 2 (in icating claimant "closely approaching

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advanced age" who did not graduate high school, ha unskilled past work, and retains RFC for

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sedentary work, is disabled). Thus, this is not a bord¢rline age situation. See 20 C.F.R.
i

§ 404.1563(b) (defining borderline age situation as

here claimant is "within a few days to a few

months of reaching an older age category, and using he older age category would result in a
determination or decision that [claimant] is disabled').

5.

Whether the ALJ's RFC an hypothetical to the vocational expert
failed to include all of Tyler'~ credibly established limitations

Plaintiff contends that the AU's RFC and h1othetical to the vocational expert failed to
include all medically established limitations. (D.I. 2$ at 12) The Commissioner responds that
the ALJ's RFC was complete and that the ALJ comnjunicated all ofPlaintiffs functional
limitations to the vocational expert. (D.I. 29 at 14)

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First, Plaintiff cites a conflict between the A~J' s favorable citation to the state agency
physician's RFC assessment and the ALJ's omissionlfrom the ALJ's own assessment ofRFC of
some of the alleged limitations identified by the stat,.gency physician. (D .I. 25 at 12-13)
However, the Court finds no error in the ALJ's decis on to rely on some of the state agency
physician's findings while making his own ultimate

C finding. The ALJ has the authority to

make the ultimate RFC determination and evaluate a 1 evidence before making a disability
determination. See 20 C.F.R. § 404.1546(c) (reserving RFC assessments to ALJ); 20 C.F.R.
§ 404.1527(c)(2) (stating ALJ weighs all relevant m · ical evidence to make disability
determination). The ALJ reviewed all medical evide ce and Plaintiffs own testimony regarding

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her physical limitations in formulating Plaintiffs RF . (See Tr. at 14-15) Accordingly, there
was no error in the ALJ's decision not to wholly ado t the state agency physician's RFC.
Second, Plaintiff argues that the ALJ failed t address the effects of Plaintiffs obesity in

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his RFC and in the hypothetical question posed to th vocational expert. (D .I. 25 at 13)
However, the record does not reflect any medical fin ing of obesity; indeed, there is no mention
of obesity in the record. Because Plaintiff's claim th t she is obese was not raised before the ALJ
and is not medically established by the record, the A J was not required to consider it or include
it in his hypothetical question. See Rutherford v. Ba nhart, 399 F.3d 546, 554 (3d Cir. 2005)
(noting that only those impairments and limitations " edically established" by record need to be
included in ALJ's hypothetical).
Third, Plaintiff argues that the ALJ failed to onsider how Plaintiff's drowsiness from
taking the medication Percocet impacted her ability t concentrate and/or sustain work. (D.I. 25
at 14) The Third Circuit has stated, "[d]rowsiness o en accompanies the taking of medication,
and it should not be viewed as disabling unless the r cord references serious functional
limitations." Burns v. Barnhart, 312 F.3d 113, 131 ( d Cir. 2002). Here, the record does not
demonstrate that Plaintiff's drowsiness caused any s rio us functional limitations. The ALJ
acknowledged that Plaintiff experienced drowsiness om taking her medications and included
this information in the hypothetical question posited fo the vocational expert. (Tr. at 35)
However, the ALJ and the vocational expert determiJtted that Plaintiff was capable of performing
various jobs despite the drowsiness she experiences. There is nothing in the record that merits a
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contrary finding.
Fourth, Plaintiff contends that the ALJ failed o consider and include the limitations
found in Dr. King's medical source statement. (D.I. 5 at 14) However, the record indicates that
the ALJ did consider Dr. King's medical source stat ment. (See Tr. at 15) Specifically, the ALJ
determined that Dr. King's opinion deserved less th
21

controlling weight because it contradicted

Dr. King's own findings that Plaintiff did not exhibit any neurological deficits and had relatively
intact ranges of motion. (!d.) It was not error for the ALJ to reject Dr. King's opinion based on
the ALJ's determination that it was unsupported by t e objective medical evidence in the record.

See 20 C.F.R. § 404.1527(d)(2) (indicating that con

lling weight must be given to treating

source opinions that are "well-supported by medicall acceptable clinical and laboratory
diagnostic techniques and ... not inconsistent with t e other substantial evidence in [the] case
record").
In sum, the ALJ reasonably assessed Plaintif s RFC and posed a hypothetical question

that included all of Plaintiffs credibly established li itations.

6.

The ALJ's assessment of the medical opinion evidence

Finally, Plaintiff contends that the ALJ erred n failing to weigh the medical opinions in
the record. (D .I. 25 at 15) In response, Defendant ar

es that the ALJ reasonably weighed the

medical opinion evidence. (D.I. 29 at 16)
Plaintiff re-asserts her argument that the ALJ did not adequately explain his rationale for
refusing to give Dr. King's assessment controlling wtight. (D.I. 25 at 16-18) However, as the
Court explained above, the ALJ adequately explainef his rationale for his decision to reject Dr.
King's opinion that Plaintiff was disabled. (Tr. at 15 Hence, the Court concludes that the ALJ
adequately explained the amount of weight he gave t the medical evidence and his basis for
doing so.

IV.

CONCLUSION

For the foregoing reasons, the Court will den Plaintiffs motion for summary judgment
and grant Defendant's motion for summary judgmen. An appropriate Order follows.
22