Malandrino v. Astrue

Filing 23

MEMORANDUM OPINION re cross-motions for summary judgment. Signed by Judge Leonard P. Stark on 9/18/12. (ntl)

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IN THE UNITED STATES piSTRICT COURT
FOR THE DISTRICT <)F DELAWARE
ASHLEY R. MALANDRINO,
f/k/a/ ASHLEY R. GILLISS,
Plaintiff,
C.A. No. 10-670-LPS

v.

MICHAEL J. ASTRUE,
Commissioner of Social Security,
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Defendant.

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Stephen A. Hampton, Esquire, GRADY & HAMPTON, LLC, Wilmington, DE.
Attorney for Plaintiff.
Charles M. Oberly, III, Esquire, United States Attornh, and Heath Henderson, Esquire, OFFICE
OF THE UNITED STATES ATTORNEY, Wilmingtlon, DE.
Eric P. Kressman, Esquire, and Eda Giusti, Esquire, $OCIAL SECURITY ADMINISTRATION
OFFICE OF GENERAL COUNSEL, Philadelphia, P~.
Attorneys for Defendant.

MEMORANDUM OPINION

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September 18,2012
Wilmington, Delaware

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-(_~~.v
STARK, U.S. District Judge:
I.

INTRODUCTION
Plaintiff, Ashley R. Malandrino, f/k/a Ashley iR. Gilliss ("Malandrino" or "Plaintiff'),
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appeals from a decision of defendant, Michael J. Astfue, the Commissioner of Social Security
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("Commissioner" or "Defendant"), denying her clain} for Supplemental Security Income ("SSI")
under Title XVI of the Social Security Act, 42 U.S.q §§ 1381-1383(f). This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g).
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Presently pending before the Court are cross-~otions for summary judgment filed by
Plaintiff and the Commissioner. (D .I. 16, 20) Plaintiff requests that the Court order an award of
SSI or, in the alternative, remand this case for furthe~ analysis by a different administrative law
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judge ("ALJ"). (D.I. 17 at 20) Defendant asks the Cpurt to affirm his decision. (D.I. 21 at 20)
For the reasons set forth below, Plaintiffs motion wilil be granted in part and the Commissioner's
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motion will be denied. This matter will be remanded to the Commissioner for further findings
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and/or proceedings consistent with this Memorandmb. Opinion.
II.

BACKGROUND
A.

Procedural History

On January 24, 2004, Plaintiff filed an applic~tion for SSI alleging disability beginning
December 2, 1992. (D.I. 11 (hereinafter "Tr.") at 54t57) After Plaintiffs application was denied
initially and on reconsideration, she request a hearint before an administrative law judge
("ALJ"). (!d. at 23-27, 36-41) A hearing was held on March 2, 2005 before an ALJ, at which
Plaintiff was represented by counsel. (Id. at 242-85): Plaintiff and a vocational expert testified at
the hearing. (!d.)
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On February 22, 2005, the ALJ issued a decis~on in which he denied Plaintiffs
application for SSI and determined that Plaintiff was rot disabled. (Id. at 304) The Appeals
Council denied Plaintiffs request for review on June !30, 2005. (Id. at 5-7) Therefore, the ALJ' s
February 22, 2005 decision became the final decisionj ofthe Commissioner. See 20 C.F.R.
§§ 404.955, 404.981; Sims v. Apfel, 530 U.S. 103, 10p (2000).
Having exhausted her administrative remedie$, Plaintiff filed a timely appeal with this
Court. (Tr. at 335) On March 30,2007, the Court is$ued a Memorandum Opinion and remanded
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the action for further proceedings. (Id. at 313-31) In its Memorandum Opinion, the Court
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determined that the ALJ' s hypothetical question to t~ vocational expert was flawed because it
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did not include all ofPlaintiffs credibly-established limitations. (Id. at 313-31)
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On remand, Plaintiffwas referred for consult4tive examinations. (Id. at 362-80, 414-42)
A new hearing was held before the ALJ on Septembo/ 6, 2007. (Id. at 414-42) At this hearing,
Plaintiff, her husband, and a vocational expert all

tes~ified.

(ld. at 414-42) On October 12, 2007,

the ALJ issued a decision again denying PlaintiffSSl. (ld. at 293-304)

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Subsequently, on July 15, 2010, the Appeals ~ouncil denied Plaintiffs request for
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review. (ld. at 286-89) Thus, the ALJ's October 12,,2007 decision became the final decision of
the Commissioner. See 20 C.F.R. §§ 404.955, 404.9~1; Sims, 530 U.S. at 107.
On August 10, 2010, Plaintiff filed a complaiht seeking judicial review of the ALJ's
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October 12, 2007 decision. (D.I. 2) On May 11, 201!1, Plaintiff moved for summary judgment.
(D.I. 16) In response, on July 13, 2011, the Commis$ioner filed a cross-motion for summary
judgment. (D.I. 20)

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B.

Factual Background
1.

Plaintiff's Medical History, 'treatment, and Conditions

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Plaintiff was seven years old on her alleged OJilset date and was twenty-two years old at
the time of the ALJ's decision on remand. (Tr. at 54~ At all times relevant to this decision,
Plaintiffwas a "younger individual" for purposes ofSSI. See 20 C.F.R. § 416.963(c). Plaintiff

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graduated from high school, but stated on forms filed in conjunction with her application for SSI
that she attended special education classes and received assistance with reading, writing,
language, and math. (Tr. at 71) She is able to speak,: read, and write English. (Id. at 67)
Additionally, Plaintiff has a driver's license. (ld. at ~47) Plaintiff presented a variety of
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evidence regarding her mental health, as detailed bel<l>w.

a.

Pre-Remand Records:

In December 1992, the Milford School District conducted a psychological assessment of
Plaintiff, who was seven years old at the time. (ld. at 130-33) ·According to school psychologist
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MaryS. Stoops, Plaintiffwas "of at least Borderline ~ntelligence" with language difficulties in
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reading comprehension. (ld. at 132-33) Dr. Stoops ~ecommended that Plaintiffbe considered for

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eligibility as a special education student. (Id. at 133)!
JoAnn Mclllvan, Plaintiff's former elementruiy and high school teacher, prepared a letter

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relating to Plaintiff's disability claim. (See id. at 9l)i Ms. Mclllvan reported that Plaintiffhad a
learning disability and memory retention problems. (Id.) Specially, Ms. Mclllvan indicated that
a "definite learning disability was immediately reco~ized" upon Plaintiff's entrance into fifth
grade. (ld.) Testing during 11th grade revealed thatsome ofPlaintiff's "academics were below
the minimum score for Grade 2." (Id.) Plaintiff gra4uated high school "vocationally at the 8th

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grade level- with learning gaps even lower." (Id.)
Plaintiffs primary care physician, Robert Wil~on, D.O., began treating her in February
2002; he saw her in his office seven times between J<tnuary 2004 and August 2004. (Id. at 164170) Dr. Wilson's records indicate that Plaintiffpres~nted with depression, insomnia, anxiety,
and fatigue. (Id. at 164, 169, 170) Dr. Wilson presqibed Lexapro to treat Plaintiffs symptoms.
(ld. at 169) On March 5, 2005, Dr. Wilson stated:
[I]t appears that [Plaintiff] has some dEelopmental delays
including memory impairments and le ing disabilities. These
have made it very difficult for her to aintain employment. As a
result of her ongoing depression, fatigpe, and learning disabilities,
it is my opinion that [Plaintiff] is curr~ntly not able to sustain a full
time job on a regular basis. She will qeed specialized training,
treatment, and assistance if she is to bfcome able to sustain any
type of employment.
(Id. at 194)

On April20, 2004, when Plaintiffwas ninetefn years old, Joseph B. Keyes, Ph.D.,
evaluated her on behalf of the Delaware Disability Dftermination Service. (Id. at 13 7) Dr.
Keyes reported that Plaintiff "obtained a Full Scale IQ of 84, indicating cognitive functioning in
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the borderline to average/normal intelligence functiotling range." (Id. at 140) Dr. Keyes noted
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that Plaintiff was oriented to time, place, and person,' and demonstrated normal memory. (!d.)
He also stated that Plaintiff was organized, but socia~ly withdrawn. (Id. at 141) Dr. Keyes's
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diagnostic impression was single episode major depr~ssive disorder, a mild language based
learning disorder, and a dependent personality. (ld.) Dr. Keyes opined that Plaintiff "would do
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best in work involving primarily routine/repetitive tasks." (Id.) Dr. Keyes recommended that
Plaintiff not work where a high degree of interpersonal functioning is required. (Id. at 143) He

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found that Plaintiff did not have any impairment in understanding simple instructions, but had a
mild impairment in carrying out instructions, perfornting routine tasks, attendance, and in coping
with ordinary work pressures. (!d.)
On May 28, 2004, Carlene Tucker-Okine, Ph~D., a state agency psychologist, evaluated
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Plaintiffs mental residual function capacity. (!d. at ~44-47) Dr. Tucker-Okine concluded that
Plaintiff had some moderate limitations and was dep¢ndent on her mother for directions, but

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could handle repetitive tasks. (!d. at 146) Pedro M. erriera, Ph.D., a state agency psychologist,
affirmed Dr. Tucker-Okine's assessment. (!d. at 180! 192)

b.

March 2, 2005 Pre-R~mand Hearing

An administrative hearing was held on Marcq, 2, 2005. (See id. at 242-85) Plaintiff, her

mother, and a vocational expert testified at this heari~g. (See id.) A complete summary of all
testimony presented at this hearing can be found in tije Court's earlier Memorandum Opinion.
(See D.I. 21)

c.

Post-Remand Record~

Joan Gorra, M.D., examined Plaintiff in June!2007. (!d. at 363) Plaintiff informed Dr.
Gorra that she felt tired and fatigued since the age ofiseven and that she has celiac disease. 1 (!d.)
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Dr. Gorra diagnosed Plaintiff with a learning disabili~, fatigue attributed to celiac disease, and
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depression. (!d. at 365) Dr. Gorra completed a Medtcal Source Statement of Ability to Do
Work-Related Activities (Physical), setting forth lim~tations on Plaintiffs ability to work, which
primarily stemmed from Plaintiffs "feeling of fatigue." (!d. at 368-73)
Plaintiff saw her treating physician, Dr. Wilson, in May 2007 and reported that she had
Blood work performed in December 2004 w~s negative for celiac disease. (Tr. at 393)

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felt depressed for the past couple of months. (!d. at 384) Specifically, Plaintiff stated that she
had recently had a baby and felt like her new son wa~ getting most of her husband's attention.
(!d.) Dr. Wilson prescribed Zoloft to treat Plaintiffs!depression. (!d.) In June 2007, Plaintiff

reported to Dr. Wilson that, since commencing Zolo:ti, she was "feeling much better," but that the
symptoms seemed to return when she did not take her medication. (!d. at 383)
Dr. Keyes, who had examined Plaintiff in 2004, examined Plaintiff again in June 2007.
(!d. at 374) He noted that Plaintiff had been unemplpyed since 2004. (!d. at 375) Plaintiff

informed Dr. Keyes that she had quit all ofher jobs because she found them overwhelming and
stressful and was unable to keep up the required pace. (!d.) Dr. Keyes found that Plaintiff was
independent in self-care skills and was able to perfo$ basic household/domestic chores and
tasks. (!d. at 376) Plaintiff obtained a Full Scale IQ pf 83, indicating cognitive functioning in
the low average intellectual functioning range. (!d.

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377) Dr. Keyes diagnosed Plaintiff with a

language-based learning disorder and dysthymic disorder, but ruled out dependent personality
disorder. (!d. at 378) Dr. Keyes concluded that Plaithiff"performs best on tasks that are routine
and repetitive and that involve limited social interpersonal contact." (!d.) He stated that Plaintiff
"is capable of performing self-care skills and basic a¢tivities of daily living" and her "[t]hinking
is clear and organized." (!d.)
Dr. Keyes also completed a Medical Source Statement of Ability to Do Work-Related
Activities (Mental). (!d. at 379) In this evaluation, rl>r. Keyes indicated that Plaintiffhad no
limitation is understanding, remembering, or carryin$ out simple instructions; no limitation in
making judgments on work-related decisions; a mild limitation in interacting appropriately with
the public, supervisors, and co-workers; and a mild limitation in responding appropriately to
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usual work situations and to change in a routine work setting. (!d. at 379-80)

d.

September 6, 2007

Po~t-Remand

Hearing

After remand, a second administrative hearing was held before the ALJ on September 6,
2007, at which Plaintiff was represented by counsel. i(See Tr. at 416) At the hearing, Plaintiff,
Plaintiffs husband, Stephen Malandrino, and a vocational expert testified. (See id.)

i.

Plaintiff's Tes~imony

Plaintiff testified that she was twenty-two years old and a high school graduate. (!d. at
420) She stated that she previously worked at a bab~sitter, cashier, and receptionist. (!d.)
Plaintiff also testified that she was married on September 3, 2005 and, subsequently, had a baby.
(!d. at 421) Plaintiffwas not presently employed out~ide the home and stayed at home taking
care of her son while her husband was at work. (!d. at 421-22) Plaintiff explained that she
requires her husband's assistance in order to complete household chores because she gets very
tired and cannot finish tasks she starts. (!d. at 424-25) She also testified that she has trouble
understanding and remembering instructions from her husband when he tries to teach her how to
do things around the house. (!d. at 426-27) She is unable to remember a recipe, so she does not
usually cook but, instead, heats up food. (!d. at 427) She testified that while working at a
doctor's office, she would forget what she had been ~old the day before about how to do her job.
(!d.) She had similar problems at Walmart. (!d. at 427-28)

Plaintiff stated she is under the care of Dr. Wilson, her family physician, for depression
and anxiety. (!d. at 423) She testified that her mediCation makes her feel better, but if she stops
taking it or forgets to take it, her anxiety and depression return. (!d.) Plaintiff stated that her
husband often has to remind her to take her medication because she forgets. (!d.)

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ii.

Plaintiff's Husband's Testimony

Plaintiffs husband, Stephen Malandrino, also: testified at the hearing. (!d. at 428-33) He
testified that Plaintiff is often sad and depressed and forgets things that he tells her. (!d. at 431)
He stated that Plaintiff takes a lot of naps, does not h~ve any hobbies or interests, and talks on the
phone only to her cousin. (!d.) He opined that Plain~ff is incapable of working outside the home
due to her fatigue and inability to understand directions. (!d. at 433)

iii.

Vocational Expert's Testimony

A vocational expert, Christina Beatty Cody, a1so testified at the hearing. (See id. at 43341) The vocational expert testified that Plaintiff's past relevant work as a babysitter was
medium, semi-skilled work; her past relevant work a$ a cashier was light, semi-skilled work; and
her past relevant work as a file clerk was light, semi-$killed work. (!d. at 434) The ALJ asked
the vocational expert the following question:
Say you have a hypothetical individua1, a younger individual, with
a twelfth grade education. Prior work I history is similar to that of
the claimant. This hypothetical indivi~ual might be capable of
performing work activity at a medium level of exertion as defined
in the Dictionary of Occupational Titl~s with the following
provisals: any jobs that would have toibe just simple routine in
nature and wouldn't involve a great d¢al of public contact. With
those limits, any of the past jobs possi(ble or are there any other
jobs?
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(!d. at 434) In response, the vocational expert testifi~d that, despite those limitations, such an
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individual could perform medium work as a dietary Clide, light work as a gate guard, and
sedentary work as a final assembler. (!d. at 435)
When the ALJ asked the vocational expert to assume the limitations identified by Dr.
Keyes in June 2007, the vocational expert stated that those limitations would not preclude

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performance ofthe named representative jobs. (!d. at 435-36) When further asked to assume the
limitations set forth by Dr. Gorra in June 2007, the vocational expert testified that those
limitations also would not preclude performance of tlie named representative jobs. (!d. at 43 7)
In response to questioning from Plaintiffs attorney, the vocational expert testified that if
Plaintiffs performance was inconsistent to the extent that her productivity was decreased by
fifteen percent because she was not able to rememberj what she had been told day to day, then
Plaintiff could still perform the assembly position job because, for that job, there are different
tasks every day. (!d. at 439-40) However, ifPlaintifrhad to nap for an hour to an hour and a half
per day, then Plaintiff would be precluded from perfdrming all jobs. (!d. at 440)

4.

The ALJ's Findings

On October 12, 2007, the ALJ issued the following findings: 2
1.

The claimant has not engaged in substantial gainful activity since January 12,
2004, the application date (20 C.F.R. ~16.920(b) and 416.971 et seq.).

2.

The claimant has the following severe impairments: learning disorder and
depression (20 C.F.R. 416.920(c)).

3.

The claimant does not have an impairtnent or combination of impairments that
meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix I (20 C.F.R. 416i.920(d). 416.925 and 416.926).

4.

After careful consideration of the entite record, the undersigned finds that the
claimant has the residual functional capacity to perform medium exertional work
as defined in the Dictionary of Occupational Titles, with lifting/carrying up to 50
pounds frequently and over 50 pound$ occasionally, sitting 8 hours,
standing/walking 8 hours, no limitatiqn on the use of upper or lower extremities,
occasional climbing of stairs, ramps, ~adders or scaffolds, frequent stooping,
kneeling, crouching and crawling, occasional exposure to unprotected heights,
humidity and wetness, dust, odors, fumes, and pulmonary irritants, extreme cold,

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The ALJ' s factual findings have been extracted from his decision, which interspersed
factual findings and commentary. (Tr. at 295-304)

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extreme heat, vibrations, no more than moderate exposure to noise, and work
which is simple and routine in nature, with minimum public contact.

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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 perforrh (20 C.F.R. 416.960(c) and 416.966).

10.

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Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is "not disabled," whether or not the claimant has transferable
job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).

9.

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Based on school records (Exhibit 8E),the claimant, although she graduated from
high school, has a limited education ruild is able to communicate in English (20
C.F.R. 416.964).

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The claimant was born on February 2~, 1985 and was 18 years old, which is
defined as a younger individual aged 18-49, on the date the application was filed
(20 C.F.R. 416.963).

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III.

The claimant is unable to perform any.past relevant work (20 C.F.R. 416.965).

The claimant has not been under a dis~bility, as defined in the Social Security Act,
since January 12, 2004, the date the application was filed (20 C.F.R. 416.920(g)).

LEGAL STANDARDS

A.

Motion for Summary Judgment

"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R.
Civ. P. 56( a). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 415 U.S. 574, 586 n.10
(1986). A party asserting that a fact cannot be- or,

~ltematively,

is- genuinely disputed must be

supported either by citing to "particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for the purposes of the motions only), admissions, interrogatory answers, or other
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materials," or by "showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."
Fed. R. Civ. P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant
must then "come forward with specific facts showing that there is a genuine issue for trial."

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Matsushita, 415 U.S. at 587 (internal quotation marks omitted). The Court will "draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000).
To defeat a motion for summary judgment, th~ non-moving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586-87; see also Podohnik v. US. Postal Service, 409 F.3d 584, 594 (3d Cir. 2005)
(stating party opposing summary judgment "must pr~sent more than just bare assertions,
conclusory allegations or suspicions to show the existence of a genuine issue") (internal
quotation marks omitted). However, the "mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment;" a factual dispute is genuine only where "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 411 U.S. 242,
247-48 (1986). "If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted." !d. at 249-50 (internal citations omitted); see also Celotex Corp. v.

Catrett, 411 U.S. 317, 322 (1986) (stating entry ofsu,mmary 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 the burden of proof at trial").

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B.

Review of the ALJ's Findings

The Court must uphold the Commissioner's factual decisions ifthey are supported by
"substantial evidence." See 42 U.S.C. §§ 405(g), 1383(c)(3); Monsour Med. Ctr. v. Heckler, 806
F.2d 1185, 1190 (3d Cir. 1986). "Substantial evidence" means less than a preponderance ofthe
evidence but more than a mere scintilla of evidence. See Rutherford v. Barnhart, 399 F.3d 546,
552 (3d Cir. 2005). As the United States Supreme Court has noted, substantial evidence "does
not mean a large or significant amount of evidence, but rather such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood,
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u.s. 552, 565 (1988).
In determining whether substantial evidence supports the Commissioner's findings, the

Court may not undertake a de novo review of the Commissioner's decision and may not re-weigh
the evidence of record. See Monsour, 806 F.2d at 1190. The Court's review is limited to the
evidence that was actually presented to the ALJ. See Matthews v. Apfel, 239 F.3d 589, 593-95
(3d Cir. 2001 ). However, evidence that was not subrp.itted to the ALJ can be considered by the
Appeals Council or the District Court as a basis for rCf:IDanding the matter to the Commissioner
for further proceedings, pursuant to the sixth sentence of 42 U.S.C. § 405(g). See Matthews,
239 F.3d at 592. "Credibility determinations are the province of the ALJ and only should be
disturbed on review if not supported by substantial evidence." Gonzalez v. Astrue, 537
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F. Supp. 2d 644, 657 (D. Del. 2008) (internal quotation marks omitted).
The Third Circuit has explained that:
A single piece of evidence will not satisfy the substantiality test if
the [Commissioner] ignores, or fails to resolve, a conflict created
by countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence - particularly certain types of
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evidence (e.g., that offered by treating physicians) - or if it really
constitutes not evidence but mere conclusion.
Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
Thus, the inquiry is not whether the Court would have made the same determination but,
rather, whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d
1211, 1213 (3d Cir. 1988). Even if the reviewing Court would have decided the case differently,
it must give deference to the ALJ and affirm the Commissioner's decision if it is supported by
substantial evidence. See Monsour, 806 F.2d at 1190-91.

IV.

DISCUSSION

A.

Disability Determination Process

Title II of the Social Security Act, 42 U.S.C. § 423(a)(l)(D), "provides for the payment of
insurance benefits to persons who have contributed t<:> the program and who suffer from a
physical or mental disability." Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Title XVI ofthe
Social Security Act provides for the payment of disability benefits to indigent persons under the
SSI program. 42 U.S.C. § 1382(a). A "disability" is defined for purposes of both DIB and SSI
as the inability to do any substantial gainful activity ~y reason of any medically determinable
physical or mental impairment which can be expecte~ to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months. See 42 U.S.C.
§§ 423(d)(l)(A), 1382c(a)(3)(A). A claimant is disabled "only ifhis physical or mental
impairment or impairments are of such severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B); see also Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
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In determining whether a person is disabled, the Commissioner is required to perform a
five-step sequential analysis. See 20 C.F.R. §§ 404.1520, 416.920; Plummer v. Apfel, 186 F.3d
422, 427-28 (3d Cir. 1999). If a finding of disability or non-disability can be made at any point
in the sequential process, the Commissioner will not review the claim further. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4).
At step one, the Commissioner must determine whether the claimant is engaged in any
substantial gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i) (mandating
finding of non-disability when claimant is engaged in substantial gainful activity). If the
claimant is not engaged in substantial gainful activity, step two requires the Commissioner to
determine whether the claimant is suffering from a severe impairment or a combination of
impairments that is severe. See 20 C.F.R. §§ 404.1520(a)(4)(ii) (mandating finding of
non-disability when claimant's impairments are not severe), 416.920(a)(4)(ii). If the claimant's
impairments are severe, the Commissioner, at step three, compares the claimant's impairments to
a list of impairments that are presumed severe enough to preclude any gainful work. See 20
C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Plummer, 186 F.3d at 428. When a claimant's
impairment or its equivalent matches an impairment in the listing, the claimant is presumed
disabled. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If a claimant's impairment,
either singly or in combination, fails to meet or medically equal any listing, the analysis
continues to steps four and five. See 20 C.F.R. §§ 404.1520(e), 416.920(e).
At step four, the Commissioner determines whether the claimant retains the residual
functional capacity ("RFC") to perform his past relevant work. See 20 C.F .R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv) (stating claimant is not disabled if able to return to past

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relevant work); Plummer, 186 F.3d at 428. A claim~t's RFC is "that which an individual is still
able to do despite the limitations caused by his or her impairment(s)." Fargnoli v. Halter, 247
F.3d 34, 40 (3d Cir. 2001). "The claimant bears the burden of demonstrating an inability to
return to her past relevant work." Plummer, 186 F.3d at 428.
If the claimant is unable to return to her past relevant work, step five requires the
Commissioner to determine whether the claimant's impairments preclude her from adjusting to
any other available work. See 20 C.F.R. §§ 404.1520(g), 416.920(g) (mandating finding of
non-disability when claimant can adjust to other work); Plummer, 186 F.3d at 428. At this last
step, the burden is on the Commissioner to show that the claimant is capable of performing other
available work before denying disability benefits. See Plummer, 186 F.3d at 428. In other
words, the Commissioner must prove that "there are other jobs existing in significant numbers in
the national economy which the claimant can perform., consistent with her medical impairments,
age, education, past work experience, and [RFC]." !d. In making this determination, the ALJ
must analyze the cumulative effect of all of the claimant's impairments. See id. At this step, the
ALJ often seeks the assistance of a vocational expert. See id.

B.

Malandrino's Arguments on Appeal

Malandrino presents five arguments on appea:l: (1) the ALJ erred by failing to respond
properly to Plaintiffs request to have Dr. Keyes attend the hearing; (2) the ALJ gave an improper
amount of weight to the opinion of Dr. Keyes; (3) the ALJ failed to evaluate properly and assess
the testimonial and documentary evidence in the file concerning Plaintiff's limitations; (4) the
ALJ's hypothetical question to the vocational expert did not accurately reflect all limitations
established by the record; and ( 5) the ALJ erred in finding that Plaintiff's fatigue was not a severe

15

impairment.
1.

Whether the ALJ failed to properly respond to Plaintiff's request to
have Dr. Keyes attend the hearing

Plaintiff first argues that the ALJ erred when he failed to evaluate her request for a
subpoena to compel Dr. Keyes to attend the hearing. (D.I. 17 at 12) However, the record
demonstrates that the ALJ did evaluate Plaintiffs request for a subpoena. At the hearing, the
ALJ stated that he "noted [Plaintiffs] ... written objection to the two [consultive examiners]"
and was "going to overrule them." (Tr. at 417) The substance ofPlaintiffs objection to the two
consultive examiners was that the ALJ should not be able to rely on their medical opinions
without compelling their attendance at the hearing so that Plaintiff could cross-examine them.
(Tr. at 346) It was within the discretion of the ALJ to deny Plaintiffs subpoena request. See 20
C.F.R. §404.950(d)(1) (stating ALJ may subpoena witnesses at request of party where
"reasonably necessary for the full presentation of the case").
Plaintiff has presented no evidence that Dr. Keyes's presence at the hearing was necessary
for full presentation of the case. 3 To the contrary, the Court concludes that Dr. Keyes's presence
at the hearing was not necessary for a full presentation of the case because Plaintiffs attorney
had the opportunity to point out the alleged inconsistencies in Dr. Keyes's two written opinions
during the hearing even without Dr. Keyes's presence. Thus, the ALJ did not abuse his

3

Indeed, Plaintiff failed to comply with the requirements of 20 C.F .R. § 404.950( d)(2), as
Plaintiff did not "state the important facts that the witness or document is expected to prove ...
and indicate why these facts could not be proven without issuing a subpoena." Plaintiffs request
merely stated that "[i]f [the ALJ] intend[s] to give weight to Dr. Keyes' opinions, then [Plaintiff]
request[ s] that he attend the next hearing so that [Plaintiff] can ask him questions concerning his
opinions;" her request also discussed alleged inconsistencies among the documentary evidence
that the ALJ had to consider. (Tr. at 345-46)
16

discretion in denying Plaintiffs request to subpoena Dr. Keyes. See generally Del Valle v.
Astrue, 2011 WL 4470709, at *6 (E.D. Pa. Sept. 23, 2011) (noting that "ALJ has broad
discretion" in assessing whether subpoena is necessary); see also generally Torres v. Barnhart,
139 Fed. Appx. 411, 414 (3d Cir. July 14, 2005) (concluding AU did not abuse discretion in
denying subpoena request where subpoena was not necessary for full presentation of claimant's
case).
Additionally, Plaintiff argues that the ALJ committed legal error by failing to provide her
written notification of denial ofthe subpoena request and failing to enter this denial on the
record, as required by HALLEX I-2-578(D). (D.I. 17 at 12) However, failure to comply with the
HALLEX provision is not legal error. See Bordes v. Comm 'r of Soc. Sec., 235 Fed. Appx. 853,
859 (3d Cir. May 18, 2007) (stating HALLEX provisions "lack the force oflaw and create no
judicially-enforceable rights"). Accordingly, the ALJ did not commit legal error when he failed
to issue a written denial of Plaintiffs subpoena request.

2.

Whether the ALJ erred in giving controlling weight to the opinion of
Dr. Keyes

Next, Plaintiff argues that the ALJ erred in giving controlling weight to Dr. Keyes's
opinions because they are internally inconsistent and also inconsistent with other evidence in the
record. (D.I. 17 at 12) The Commissioner responds that there are no inconsistencies between
Dr. Keyes's opinions and other evidence in the record. (D.I. 21 at 17-18)
The Court concludes that the ALJ did not err in giving controlling weight to Dr. Keyes's
opinions. Dr. Keyes's opinions are consistent with medical evidence in the record. Following
examinations in 2004 and 2007, Dr. Keyes concluded that Plaintiff was able to perform routine,
repetitive tasks, involving limited interpersonal contact. (Tr. at 141, 378) Dr. Keyes's
17

conclusion is consistent with the findings of two state agency psychologists and with the opinion
of Plaintiffs former employer- all of whom indicated Plaintiff could perform routine tasks that
did not involve much interpersonal contact. (See id. at 63, 144-47, 192) Additionally, Plaintiffs
own testimony that she was able to care for her young son on a full-time basis without assistance
from others supports Dr. Keyes's assessment. (See id. at 63, 144)
Plaintiff identifies some apparent inconsistencies within Dr. Keyes's opinions. (D.I. 17 at
12) However, the presence of inconsistencies in a medical expert's opinions does not compel an
ALJ to disregard those opinions. See Dunkle v. Comm 'r ofSoc. Sec., --- F. Supp. 2d ----, 2011
WL 1930619, at *10 (W.D. Pa. May 19, 2011). In any event, Dr. Keyes's opinions were not
truly inconsistent. Dr. Keyes noted that Plaintiff relied on her mother to provide assistance with
daily activities, and this was reflected in Dr. Keyes's determination that Plaintiffhad a "mild
impairment" in both her ability to understand simple instructions and perform routine tasks. (Tr.
at 138-39, 142-43) Dr. Keyes supported his finding that Plaintiff was independent in her selfcare skills by noting that she "is able to perform routine household/domestic chores." (!d. at 139)
Further, Dr. Keyes accounted for his finding that Plaintiff"has no friends and is socially
detached" in determining that she had a mild impairment in her ability to interact with the public,
supervisors, and co-workers. (ld. at 378-80) Additionally, any inconsistencies between specific
findings in Dr. Keyes's 2004 and 2007 opinions appear to reflect the passage of time and
performance of a new evaluation.

3.

Whether the ALJ properly evaluated the testimonial and
documentary evidence concerning Plaintiff's limitations

Plaintiff argues that the ALJ failed to consider, discuss, and weigh all probative evidence
that was inconsistent with Dr. Keyes's findings. (D.l. 17 at 15) The Court concludes that the
18

I

[

ALJ properly considered, discussed, and weighed all probative evidence present in the record.
Specifically, the ALJ noted that he considered the "claimant's school records and statement from
her past employer." (Tr. at 301) The ALJ discussed in detail the evidence that was contrary to
the findings ofDr. Keyes and noted that the RFC adequately addressed these limitations. (Id.)
The record further demonstrates that the ALJ considered the testimony of Plaintiff, her husband,
and her mother. (See id.) Moreover, the ALJ discussed his rationale for giving controlling
weight to the assessments of Drs. Keyes and Gorra and giving less weight to the opinion of Dr.
Wilson. (Id. at 303)

4.

Whether the ALJ's hypothetical question to the vocational expert
reflected all limitations established by the record

Plaintiff contends that the ALJ' s hypothetical question to the vocational expert contained
erroneous information and did not include all ofher established limitations. (D.I. 17 at 17) The
Commissioner responds that ALJ' s hypothetical question reflected all of Plaintiffs established
limitations and was accurate. (D.I. 21 at 18-19)
Because Plaintiff established that she is unable to return to her past employment, the
burden of production shifted to the Commissioner to "demonstrate that the claimant is capable of
performing other available work in order to deny a claim of disability." Plummer, 186 F .3d at
428; see also 20 C.F .R. § 404.1520(±). The Commissioner must identify at least one occupation
that exists in significant numbers in the national economy that Plaintiff can perform. See Craigie
v. Bowen, 835 F .2d 56, 58 (3d Cir. 1987). A vocational expert's answer to a hypothetical

question can be considered substantial evidence only when the question reflects all of the
claimant's impairments that are supported by the record. See Chrupcala v. Heckler, 829 F.2d
1269, 1276 (3d Cir. 1987). However, the ALJ need not include any impairments or limitations
19

that are not "medically established" by the record. See Rutherford v. Barnhart, 399 F.3d 546,
554 (3d Cir. 2005).
In this case, the ALJ limited the hypothetical claimant to performing work at a medium

level of exertion with limited public contact, in jobs that are simple and routine in nature. (Tr. at
434) Additionally, the ALJ stated that the hypothetical claimant had a "twelfth grade education."
(!d.)

Plaintiffs argument that the ALJ erred by failing to mention Plaintiffs dependent
personality and fatigue is unpersuasive because these impairments were not medically established
by the record. Although Plaintiff indicated that she was dependent upon her mother at some
points, her own testimony reflects that she was able to care for her young son during the day
without assistance from others. (!d. at 421-22) In his 2007 evaluation, Dr. Keyes explicitly
found that Plaintiff did not suffer from dependent personality disorder. (!d. at 378) Further, the

AU noted that Plaintiff has never been diagnosed with a disease that would cause fatigue;
indeed, all laboratory studies for diseases causing fatigue were negative. (Id. at 302)
Moreover, the ALJ was not required to include Plaintiffs depression in his hypothetical
question. Although Plaintiffhad been diagnosed with depression, the ALJ observed that the
treatment notes of Dr. Wilson and Plaintiffs own testimony established that Plaintiffs
depression was under good control as long as Plaintiff took her medication. (!d.) The ALJ
concluded that, based on the medical evidence and opinion of Dr. Gorra, Plaintiffs depression
had no impact on her ability to perform medium-skilllevel work. (!d.)
Nevertheless, the ALJ' s hypothetical was deficient for the reason that it did not include
all ofPlaintiffs mental limitations. The hypothetical related to a claimant who had a "twelfth

20

1

grade education." (!d. at 434) Although Plaintiff did attend high school (!d. at 420), she did not
obtain a twelfth grade education. Instead, as the ALPs findings establish, Plaintiffhas a severe
impairment learning disorder and was "in a program for vocational students, with a high school
curriculum based on fifth through eight grade materials." (!d. at 296) The fact that Plaintiff
attended twelfth grade is insufficient, here, to support a finding that she received a twelfth grade
education. See 20 C.F.R. 404.1564(b) ("[T]he numerical grade level that you completed in
school may not represent your actual educational abilities. . . . [I]f there is no other evidence to
contradict it, we will use your numerical grade level to determine your educational abilities.").
The record evidence indicates that Plaintiff"graduated vocationally at the 8th grade level." (Tr.
at 91)
Defendant argues that even if the hypothetical question posed to the vocational expert
was flawed, the error was harmless because the ALJ limited the Plaintiff to unskilled work, and
the representative jobs do not require a twelfth grade· education. (D .I. 21 at 19) Reviewing the
entire record here, the Court does not agree that the error was harmless. See generally Crock v.
Astrue, 2010 WL 2640324, at *8 (W.D. Pa. July 1, 2010) ("The Commissioner cannot cure his
own failure of proof simply by arguing that he would have been able to meet his burden if the
ALJ's hypothetical had been properly articulated."); see also id. at *7 (stating Commissioner
cannot meet burden "by showing that jobs exist in the national economy that are consistent with
someone else's (i.e., a less limited individual's) residual functional capacity and vocational
background").
Because the hypothetical question posed to the vocational expert was flawed, the Court
concludes that the Commissioner's decision is not supported by substantial evidence.

21

I
5.

Whether the ALJ properly accounted for Plaintifrs complaints of
fatigue

Finally, Plaintiff contends that the ALJ improperly determined that Plaintiffs welldocumented complaints of fatigue did not constitute a severe impairment. (D.I. 17 at 19)
However, no medical doctor ever diagnosed Plaintiff with an underlying disease which would
cause her fatigue. Moreover, the record demonstrates that the ALJ did consider Plaintiffs
complaints of fatigue. The ALJ asked the vocational expert to take into account Dr. Gorra's
findings (which were primarily based on Plaintiffs complaints of fatigue due to undiagnosed
celiac disease). (Tr. at 436) Thus, the ALJ properly accounted for Plaintiffs complaints of
fatigue.

IV.

CONCLUSION

For the foregoing reasons, Plaintiffs motion for summary judgment is granted in part and
denied in part. The Commissioner's motion for summary judgment is denied. This matter is
remanded to the Commissioner for further proceedings consistent with the Memorandum
Opinion. 4 An appropriate Order follows.

4

The Court finds no reason to remand this case to a different ALJ than handled it
previously.

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