Conn v. Astrue

Filing 14

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 3/30/2012. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

TRACEY LYNNE CONN,
Plaintiff,

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

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) Civ. No. 10-791-SLR
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David J. Lyons, Esquire of Wilmington, Delaware. Counsel for Plaintiff.
Charles M. Oberly, Ill, Esquire, United States Attorney, District of Delaware, and
Patricia A. Stewart, Esquire, Special Assistant United States Attorney, District of
Delaware. Counsel for Defendant. Of Counsel: Eric P. Kressman, Esquire, Regional
Chief Counsel, and Maija DiDomenico, Esquire, Assistant Regional Counsel of the
Office of General Counsel, Philadelphia, Pennsylvania.

MEMORANDUM OPINION

Dated: March 30, 2012
Wilmington, Delaware

R M , , lstrict Judge
I. INTRODUCTION
Tracey Lynne Conn ("plaintiff') appeals from a decision of Michael J. Astrue, the
Commissioner of Social Security ("defendant"), denying her application for disability
insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and
XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. (0.1. 7 at 14)
Plaintiff has filed a motion for summary judgment asking the court to remand the case
for further proceedings. (D.I. 9) Defendant has filed a cross-motion for summary
judgment, requesting the court affirm his decision and enter judgment in his favor. (D. I.
12) The court has jurisdiction over this matter pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3).

II. BACKGROUND
A. Procedural History
Plaintiff filed for DIB and SSI on November 3, 2005 alleging that she had been
disabled since January 19, 2004. (D.I. 7 at 102; 109) Plaintiff's claims were initially
denied on July 12, 2006 and denied upon reconsideration on November 9, 2006. (/d. at
67-77) Plaintiff timely filed for and was granted a hearing on the matter. On November
8, 2007, a hearing on plaintiff's claims was held in front of Administrative Law Judge
("ALJ") Edward J. Banas. (/d. at 26) In a decision issued January 5, 2008, the ALJ
found that plaintiff was not disabled because, while she could not perform her past
work, she could perform other work available in the national economy. (/d. at 24-25)
The Appeals Council denied plaintiff's request for review and, therefore, the ALJ's
decision became defendant's final decision. (/d. at 1) Having exhausted her

administrative remedies, plaintiff filed a civil action in this court on September 17, 2010,
seeking review of defendant's decision to deny her DIB and SSI.

B. Plaintiff's Non-Medical History
Plaintiff was born on September 23, 1966 which made her 37 years old on her
alleged disability onset date. (!d. at 33) Plaintiff is a high school graduate who has
previously worked as an admissions coordinator, general office worker and stock room
worker. (!d. at 33; 166-71)

C. Plaintiff's Medical History1
While plaintiff claims to have suffered from back pain since 1991, it appears a
slip and fall on a patch of ice precipitated her current medical condition and this
disability claim. 2 (!d. at 33; 31 0)

1. Chiropractic care
The administrative record contains billing records from the Baer Chiropractic
Center. (!d. at 250-72) From these records, it appears that plaintiff treated with a Dr.
Alexander Bohatiuk (Dr. A. Bohatiuk) at Baer Chiropractic from September of 2002 until
February of 2003 and then resumed treatment in 2004 after her fall. (!d. at 251-58)

1

Because the only medical evidence directly at issue on this appeal relates to
plaintiff's complaints of degenerative disc disease, the background presented in this
section will be limited to that alleged impairment.
2

At times, plaintiff's testimony and the record clearly suggest that her slip and
fall precipitated this disability claim. (e.g. D. I. 7 at 33; D. I. 13 at 3) However, plaintiff
also testified that she stopped working in the summer of 2005 (after a brief stint as a
receptionist) because she could no longer do the type of work she was doing; in other
words, it was not the fall that specifically prompted this claim, but instead degenerative
changes that had been building since 1991. (!d. at 42; 49)

2

After the fall, Dr. A. Bohatiuk wrote a series of prescription pad notes stating that plaintiff
could not work due to a low back injury. (!d. at 267-71) At Dr. A. Bohatiuk's request,
plaintiff had an MRI of the lumbar spine done on March 26, 2004. (/d. at 295) That MRI
revealed: "Dessication of disc material ... at all levels except L2-3" as well as "a mild
disc bulge at L5-S1 vs. a broadbased mild disc protrusion. Indentation on the thecal
sac [was] minimal, if any." (/d.) Treatment with Dr. A. Bohatiuk appears to have ceased
in July of 2004. (/d.)

2. Physiatric care
On February 19, 2004, approximately one month after her fall, plaintiff visited
with Dr. George M. Bohatiuk ("Dr. G. Bohatiuk"), a board certified doctor in physical
medicine and rehabilitation. (/d. at 241) Notes from her first visit- a comprehensive
physiatric evaluation - do not reference plaintiff's fall, but instead explain that plaintiff
developed radiating low back pain after a 2-day sickness. (/d.) Dr. G. Bohatiuk's
treatment notes indicate that plaintiff had "no tenderness, guarding, or trigger pointing"
in the cervical, thoracic or lumbosacral sections of the spine; they also indicated "full
painless cervical range of motion in all directions" and "[n]egative Kemp's and Fabere's
tests." (/d.)
On a February 23, 2004 follow-up visit, plaintiff continued to complain of radiating
neck and lower back pain. (/d. at 239-40) On physical examination, Dr. G. Bohatiuk
noted "[t)enderness over the mid-low dorsal cervical paraspinal muscles" as well as "the
low lumbar/lumbosacral paraspinal muscles" but a "negative Spurling's test," "a negative
foramen compression test," "full painless cervical range of motion in all directions," and
"no tenderness or guarding over the mid-thoracic paraspinal muscles." (/d.) An EMG

3

was also "directed to the C5-T1 paraspinal muscles and both upper extremities to
assess for radiculopathy vs. brachial plexopathy vs. neuropathy." (/d.) Dr. G. Bohatiuk
concluded that plaintiff had a "[c]ervical sprain/strain with radiculitis," "[c]ervical
discogenic pain with radicular irritation," a "[t]horacic sprain/strain," and "[l]umbosacral
sprain/strain with radiculitis, R/0 radiculopathy" and recommended trigger point
injections. (/d.) After receiving a series of trigger point injections in February and
March, plaintiff followed up with Dr. G. Bohatiuk. (/d. at 234-37) Plaintiff reported
considerable improvement with respect to her spinal pain complaints, but some
lingering low back pain; "[t]enderness over her low lumbar/lumbosacral paraspinal
muscles" was also noted. (/d.)

3. Primary care
Plaintiff's primary care physician was Dr. Ralph Burdick ("Dr. Burdick").
Treatment notes from after the fall indicate that plaintiff made sporadic complaints about
back pain and was prescribed medication to manage the pain. (/d. at 290-91; 294) In
May of 2005, Dr. Burdick requested an MRI of plaintiff's cervical and thoracic spines.
(/d. at 294) Results revealed "mild degenerative changes present in the thoracic spine,"

as well as "degenerative changes present in the mid cervical spine" with findings "most
pronounced with encroachment on the right neural foramina at C4-5 and C5-6." (/d. at
292) Dr. Burdick also requested spinal MRis be done in April of 2008 and August of
2009. The 2008 MRI indicated: "Moderate cervical spondylitic changes which may
have slightly progressed from the C4-C5 to C6-C7 levels without resulting in significant
central canal or neural foramina! stenosis at either of the levels." (!d. at 343) The 2009
MRI revealed the following: "1) There is disc dessication with angular bulge seen about

4

L 1-L2, L3-L4 and L4-L5, without frank herniation or stenosis. 2) At L5-S1, there is
degenerative disc disease with slight retrolisthesis, annular bulge and superimposed
central disc herniation, as well as bilateral facet arthropathy. There is mild narrowing of
the lateral recesses and inferior borders of the foramina." (!d. at 345)
During the course of plaintiff's treatment, Dr. Burdick opined several times that
plaintiff was not capable of working. On September 5, 2006, Dr. Burdick wrote out a
prescription pad note that said plaintiff was "unable to work" due to "chronic neck and
back pain." (!d. at 287) In December of 2006, Dr. Burdick filled out a Medical
Impairment Evaluation in which he stated that plaintiff's chronic back and neck pain was
"disabling." (!d. at 311) In November of 2007, Dr. Burdick wrote a "to whom it may
concern letter" explaining that plaintiff "has been unable to work since August 5, 2005
due to chronic neck and back pain beginning in 1991." (!d. at 31 0)

4. Neurological care
On a referral from Dr. Burdick, Dr. Yakov Koyfman ("Dr. Koyfman"), of the
Delaware Neurosurgical Group, saw plaintiff on June 30, 2005. (!d. at 244-45) She
presented with complaints of neck and back pain and stated that her symptoms began
around fifteen years before (although she did not mention any precipitating event). (/d.)
After reviewing her medical history and performing a physical examination, Dr. Koyfman
concluded that plaintiff was "in no acute distress" and surgical intervention was not
recommended. (!d.) Dr. Koyfman did, however, diagnosis plaintiff with "[d]egenerative
cervical, thoracic and lumbar spine disease" and referred her to James Downing for
pain management and possible facet blocks. (!d.)
Dr. James Downing ("Dr. Downing"), of lnterventional Spine Pain Consultants,

5

performed cervical facet injections on plaintiff in July of 2005; plaintiff did not find them
to be helpful. (/d. at 248) Dr. Downing recommended that plaintiff "continue[] with
conservative care including chiropractic care as tolerated." (/d.)

5. Consultative examination
On June 7, 2006, plaintiff met with Dr. Donald Archer, Jr. ("Dr. Archer") for a state
agency consultative examination. (/d. at 273-74) She reported pain in her neck and
back going back to 1991. (/d.) She also explained that she can dress and bathe herself
and walk without an assistive device, although she reported fatigue in her limbs and a
need to return to bed often to cope with pain. (/d.) After his examination, Dr. Archer
concluded that plaintiff is "limited by chronic pain .... Her exam was significant for a
decreased range of motion and it is likely related to some mild degenerative changes as
well as ... guarding due to pain." (/d.)

6. State agency opinions
In July of 2006, state agency physician R. Palandijan ("Dr. Palandijan") reviewed
plaintiff's medical records to assess her residual functional capacity ("RFC"). (/d. at
281) Dr. Palandijan concluded that plaintiff's complaints are "disproportionate" to the
medical evidence of record and that plaintiff should be able to sustain "light" work
activity. (/d. at 286) Dr. Michael Borek affirmed this RFC in November of 2006. (/d. at
307-09)

D. Hearing Before The ALJ
1. Plaintiff's testimony
Plaintiff testified that she worked consistently until January 19, 2004 when she

6

injured her neck and back after slipping and falling on a patch of ice. 3 (!d. at 33-34; 4344) She acknowledged trying to go back to work in 2005 for financial reasons. (!d.)
According to plaintiff, between May and July of 2005, she did reception work for a
chiropractor but had to quit due to neck and back pain; she explained that she "couldn't
do the computer, the looking up and down work, getting up and down out of the chair to
take the patients back." (!d. at 34)
When asked to rate her pain from one to ten with ten requiring a trip to the
hospital, plaintiff said she had a high pain tolerance but was an eight on good days.
(!d.) She also told the ALJ that her pain was constant, effecting her all day and night

even though she took Percocet four times a day to control her symptoms. (!d.) A
burning sensation in her neck and back occurred alongside the pain. (!d.) She also
noted that the day of her hearing was not a good day. (!d.) When asked whether or not
she received any degree of relief from the spinal injections, she said she had about a
day's worth of relief. (!d. at 4 7)
When questioned about her daily routine, plaintiff said that she gets up in the
morning, dresses herself and gets her son to the bus stop, but then heads back to bed
or gets into her recliner and watches TV. (/d. at 35-36) After some more specific
questioning, plaintiff stated that she can feed and dress herself, but her live-in boyfriend
does most of the cooking, cleaning and household chores. (!d. at 35-36; 44) She also
acknowledged driving a short distance one time a week to pick up her son from school
and being able to stand or sit for one half hour at a time. (!d. at 36; 45-46)

3

As discussed supra, note 2, she also asserted that the fall was not the specific
impetus for her claim.

7

Plaintiff complained of drowsiness being a side effect of her medications. 4 (/d. at
37 -38) She stated that when she tried to go back to work in 2005, she needed to go off
the medications because she could not effectively function while on them. (/d. at 41)
When asked if she could work five hours a day in a sedentary position, she said that
would not be possible due to her pain and the medication side effects. (/d. at 44) She
also said that she could not sit for that period of time without needing to get up and
stretch. (/d. at 45-46)
When asked if she and her boyfriend do any social activities, the answer was no.
(!d. at 45)

2. Testimony of Georgiana Williams
Plaintiff's best friend, Georgiana Williams, testified on her behalf. (/d. at 51) She
indicated that plaintiff could do more physical activities prior to her 2004 fall.
Specifically, she explained that she has had to help plaintiff with things like her laundry
and grocery shopping, and the two of them do not go out and enjoy themselves like they
used to do. (/d. at 53-55) Ms. Williams did note that plaintiff drove the hour to the
hearing, but she said she saw it take a toll on plaintiff physically. (/d. at 56)

3. VE's testimony
At the hearing, the ALJ asked Jan Reed, a vocational expert ("VE"), three
hypothetical questions. First, he asked whether a hypothetical individual would be
capable of any jobs in the national economy if this hypothetical person was "a younger

4

Along with Percocet, she was also taking Valium for anxiety and Soma to relax
her muscles. (/d. at 37) She also complained of migraine headaches - occurring at
least four times a week and taking Toradol and Ibuprofen for those symptoms.

8

individual with a high school education and prior work history similar to that of [plaintiff]
and if this hypothetical individual has all of the symptoms and limits that [plaintiff] stated
[at her hearing]." (/d. at 59) In response, the VE said no, she would not, given the
amount of pain she says she has and the time she says she needs to lay down in a
given day. (/d.) After hearing that response, the ALJ asked two follow up questions.
First, he asked:
Now, if I changed the hypothetical, this hypothetical individual might be
capable of performing work activity at the sedentary level of exertion as
defined in the Dictionary of Occupational Titles with the following provisos.
Any job would have to entail a sit/stand option and also would not involve any
complex tasks[,] it just entails simple, routine work. With those limits[,] any
jobs?

(/d.) In response, the VE said that plaintiff could find jobs in the local and national
economies, including a sedentary security guard, order clerk and assembler. (/d. at 5960) Second, the ALJ asked:
Now, what if I changed that hypothetical again, keeping the vocational factors
the same as far as age, education, prior work. This hypothetical individual
might be capable of doing work activity at the light level of exertion defined
in the Dictionary of Occupational Titles. Any jobs that would have to entail
a sit/stand option would give the person an opportunity to occasionally
change positions for unusual postural discomfort. Also the jobs would have
to be just simple, routine in nature. And also the jobs should not entail
continuous use of the upper extremities, frequent use would be all right but
not continually using upper extremities without any opportunity to rest. Any
jobs you can think of that might fit into that[?]

(/d. at 60) In response, the VE explained that an inspector and mail clerk are jobs in the
local and national economy that meet those requirements. (/d.)
On questioning from plaintiff's counsel, the VE acknowledged that the Dictionary
of Occupational Titles ("DOT") does not address the sit/stand option. (/d. at 61) She
also admitted side effects of medication like drowsiness resulting in a fifteen percent
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decrease in productivity would eliminate all potential jobs for plaintiff. (/d. at 63)

F. Regulatory Framework
The Social Security Administration is authorized to pay DIB and SSI to persons
who are "under a disability." 42 U.S.C. § 423(a)(1 )(E); 42 U.S.C. § 1382(c). Social
Security Administration regulations incorporate a five-step sequential evaluation process
for determining whether a claimant is under a disability. 20 C.F.R. § 404.1520; Sykes v.
Apfel, 228 F.3d 259, 262-63 (3d Cir. 2000) (citing 20 C.F.R. § 404.1520). The ALJ first

considers whether the claimant is currently engaged in substantial gainful activity. 5 If
she is not, then the ALJ considers in the second step whether the claimant has a
"severe impairment" that significantly limits her physical or mental ability to perform
basic work activities. If the claimant suffers a severe impairment, the third inquiry is
whether, based on the medical evidence, the claimant's impairment meets the criteria of
an impairment found in the "listing of impairments," 20 C.F.R. pt. 404, subpt. P, app. 1
(1999). If the claimant's impairment or combination of impairments meets or equals an
impairment set forth in the listing of impairments, the claimant is disabled. If the
impairment does not meet the criteria for a listed impairment, then the ALJ must first
determine the claimant's residual functional capacity ("RFC") before moving on to the
fourth and fifth steps of the evaluation process. RFC is defined as the most physical
and mental work activity an individual can perform despite limitations resulting from his
impairments. 20 C.F.R. § 404.1545. At step four, the ALJ assesses whether, despite

5

Substantial gainful activity is work activity that is both substantial and gainful.
20 C.F.R. § 404.1572. Work is substantial when it involves doing "significant physical or
mental activities." /d. Work is gainful when done for pay or profit. /d.
10

the existence of the severe impairment, the claimant has the RFC to perform his past
work. Assuming she can, she is not disabled. If, however, the ALJ determines that the
claimant cannot perform her past work, then, at step five, the ALJ must determine
whether there is other work in the national economy that the claimant can perform. If
the claimant can perform other work, she is not disabled; if he cannot perform other
work, he will be found disabled.

G. The ALJ's Decision
The ALJ ultimately concluded that plaintiff could perform other work in the
national economy and, therefore, was not disabled. The ALJ made the following
enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through March 31,2010.
2. The claimant has not engaged in substantial gainful activity since January 19,
2004, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b)
and 416.971 et seq.).
3. The claimant has the following severe impairment: degenerative disc disease
of the lumbar and cervical spine (20 CFR 404.1520(c) 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that
[plaintiff] has the residual functional capacity to perform simple, routine, light work
with a sit/stand option except that she would require work that does not involve
continuous use of the upper extremities.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).
7. The claimant was born on September 22, 1966 and was 37 years old, which
is defined as a younger individual age 18-49, on the alleged disability onset date
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(20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate
in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is "not disabled," whether or not the claimant has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering claimant's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that claimant can perform (20 CFR 404.1560(c), 404.1566, 416.960(c),
and 416.966).
11. The claimant has not been under a disability, as defined in the Social
Security Act, from January 19, 2004 through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).

(0.1. 7 at 16-25)
Ill. STANDARD OF REVIEW
Findings of fact made by the ALJ, as adopted by the Appeals Council, are
conclusive, if they are supported by substantial evidence. Accordingly, judicial review of
the ALJ's decision is limited to determining whether "substantial evidence" supports the
decision. See MonsourMed. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). In
making this determination, a reviewing court may not undertake a de novo review of the
ALJ's decision and may not re-weigh the evidence of record. See id. In other words,
even if the reviewing court would have decided the case differently, the ALJ's decision
must be affirmed if it is supported by substantial evidence.

See id. at 1190-91.

The term "substantial evidence" is defined as less than a preponderance of the
evidence, but more than a mere scintilla of evidence. As the United States Supreme
Court has noted, substantial evidence "does not mean a large or significant amount of

12

evidence, but rather such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988).
The Supreme Court also has embraced this standard as the appropriate standard for
determining the availability of summary judgment pursuant to Federal Rule of Civil
Procedure 56. The inquiry performed is the threshold inquiry of determining whether
there is the need for a trial-whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.
This standard mirrors the standard for a directed verdict under Federal Rule of
Civil Procedure 50( a), "which is that the trial judge must direct a verdict if, under the
governing law, there can be but one reasonable conclusion as to the verdict. If
reasonable minds could differ as to the import of the evidence, however, a verdict
should not be directed." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51
(1986) (internal citations omitted). Thus, in the context of judicial review under§ 405(g),
"[a] single piece of evidence will not satisfy the substantiality test if [the ALJ] ignores, or
fails to resolve, a conflict created by countervailing evidence. Nor is evidence
substantial if it is overwhelmed by other evidence-particularly certain types of evidence
(e.g., that offered by treating physicians)-or if it really constitutes not evidence but mere
conclusion." See Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir. 1986) (quoting Kent v.
Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). Where, for example, the countervailing

evidence consists primarily of the plaintiff's subjective complaints of disabling pain, the

ALJ "must consider the subjective pain and specify his reasons for rejecting these
claims and support his conclusion with medical evidence in the record." Matullo v.
13

Bowen, 926 F.2d 240, 245 (3d Cir. 1990).

IV. DISCUSSION
Plaintiff's summary judgment motion identifies three reasons why she believes
the unfavorable decision is not based on substantial evidence and, therefore, should be
remanded. First, plaintiff argues that the ALJ failed to give proper weight to the opinion
of plaintiff's treating physician Dr. Burdick. 6 Second, plaintiff argues that the ALJ
improperly discounted plaintiff's subjective complaints of pain and drowsiness. Lastly,
plaintiff contends that the ALJ improperly ignored testimony from the VE. 7

A. Treating Physician Opinion
Plaintiff correctly points out that deference is provided to the opinions of treating
physicians. In fact, a treating source's medical opinion will be given "controlling weight"
if an ALJ finds: 1) the opinion is well supported by medically acceptable clinical and
laboratory diagnostic techniques; and 2) the opinion is not inconsistent with the other
substantial evidence in the record. Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir.
2001 ); 20 C.F.R. § 404.1527(d)(2); Social Security Regulation ("SSR") 96-2p. In many
cases, even if a treating source's medical opinion does not meet the test for controlling
weight, it will nevertheless be entitled to great weight and should be adopted by an ALJ.

/d. In order to determine what weight to accord a non-controlling treating physician's
6

It was difficult to determine what exactly plaintiff was arguing in Argument
Section I.A. of her brief. While the heading is titled "The ALJ incorrectly concluded that
the Plaintiff had [an RFC] for [Light] Work," in substance, this section of the brief
appears to focus on the issue of whether proper weight was accorded to the opinion of
Dr. Burdick. (D.I. 10 at 9-12) Accordingly, the court will analyze it as such.
7

These last two arguments are troubling given their sheer brevity and the total
absence of citations.
14

opinion, an ALJ is required to weigh the evidence in light of several factors. /d. These
factors include: 1) the examining relationship- more weight is given to the opinion of a
source that has examined a plaintiff as compared to a source that has not; 2) the length,
nature and extent of the treatment relationship - more weight is given to the opinion of
treating sources since these professionals are most able to provide a detailed and
longitudinal picture of a plaintiffs medical history; 3) the supportability of the opinionmore weight is given the opinions that are well explained and supported with clinical or
diagnostic findings; 4) the consistency of the opinion - more weight is given to opinions
that are more consistent with the record as a whole; 5) specialization- opinions of
specialists are given more weight; and 6) other factors which tend to support or
contradict an opinion. 20 C.F.R. § 404.1527(d). Regardless of the weight accorded, an
ALJ's determination must always provide "good reasons" for the weight given to a
treating source's opinion, id., and an ALJ can only "reject a treating physician's opinion if
it is based on 'contradictory medical evidence."' Dougherty v. Astrue, 715 F. Supp. 2d
572, 581 (D. Del. 201 0) (citing Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)).
Some treating source opinions, including opinions of "disability" or an "inability to
work," are not controlling or even considered medical opinions. 20 C.F.R. §
404.1527(e). This is because such opinions are administrative findings on issues
reserved for defendant. /d. Therefore, to the extent that plaintiff argues that she
deserves benefits based upon Dr. Burdick's determinations that she was "disabled" and
"unable to work," that argument fails since those determinations are administrative
decisions explicitly reserved for defendant.
To the extent that plaintiff argues that Dr. Burdick's opinions should have been
15

given controlling or more substantial weight, the court concludes that substantial
evidence exists in support of the ALJ's decision to reject Dr. Burdick's findings and
conclude that plaintiff was capable of a modified light RFC. The record, and the ALJ's
decision, reflect that Dr. Burdick's conclusions were inconsistent with the medical
evidence on the whole. Plaintiff's course of treatment was generally conservative.
Plaintiff never visited an emergency room or had surgery; her pain was conservatively
managed with medication and occasional chiropractic care or injections. Moreover,
plaintiff's clinical findings were largely unremarkable. Dr. G. Bohatiuk initially noted no
spinal tenderness, guarding or trigger points and recorded negative Kemp and Fabere
tests; on a follow-up visit he diagnosed plaintiff with a sprain/strain and noted negative
Spurling and foramen compression tests. Dr. Koyfman did not recommend surgical
intervention. Dr. Downing recommended continued "conservative care." Plaintiff's
MRis revealed only mild degenerative conditions. Dr. Palandijan opined that light work
would be appropriate and Dr. Borek agreed with this opinion. Furthermore, plaintiff only
sporadically complained of back pain to Dr. Burdick and none of his treatment notes
suggested that she has work-related functional limitations. For these reasons, Dr.
Burdick's conclusions were also not well supported. As defendant explains, Dr.
Burdick's own treatment notes "fail[] to support his extreme opinion." (D.I. 13 at 14)
With respect to specialization, it should be noted, as the ALJ did, that Dr. Burdick is a
generalist and does not have specialized training in occupational health or disorders of
the spine.
Ultimately, the ALJ concluded that Dr. Palandijan's RFC findings corresponded
with the medical evidence of record, whereas Dr. Burdick's conclusions were generally

16

inconsistent and unsupported. (D. I. 7 at 23) Substantial evidence supports the ALJ's
position.

B. Plaintiff's Subjective Complaints
Plaintiff argues that the ALJ improperly discounted her subjective complaints of
pain and medication-induced drowsiness. (D.I. 10 at 12-13) According to plaintiff, the
record - in particular the opinions of Dr. Burdick and testimony of Georgian Williams confirms that her complaints were credible. (/d.)
20 C.F.R. § 404.1529 and SSR 96-7p (which provides interpretive guidance on
20 C.F .R. § 404.1529) direct ALJs with respect to their evaluations of a claimant's
alleged symptoms (particularly pain) and credibility determinations that must be made
with respect these allegations. 8 The regulations explain that an ALJ must undertake a
two-step process in evaluating subjective complaints. SSR 96-7p at *2. First, the ALJ
must determine whether there is an impairment that could reasonably be expected to
produce the pain or other symptoms. /d. Second, after making this determination, the
ALJ must "evaluate the intensity, persistence, and limiting effects of the individual's
symptoms to determine the extent to which the symptoms limit the individual's ability to
do basic work activities." /d. When subjective complaints unsubstantiated by objective

8

SSR 96-7p opens by noting that its purpose is to "clarify when the evaluation of
symptoms, including pain, under 20 CFR 404.1529 ... requires a finding about the
credibility of an individual's statements about pain or other symptom(s) and its functional
effects; to explain the factors to be considered in assessing the credibility of the
individual's statements about symptoms; and to state the importance of explaining the
reasons for the finding about the credibility of the individual's statements in the disability
determination or decision." SSR 96-7p at *1.

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medical evidence are at issue, the ALJ's evaluation requires a finding as to the
claimant's credibility. /d. The regulations require that credibility determinations be
made based upon a review of the entire record. /d. at *2-3. Aside from objective
medical evidence, the ALJ should consider the follow factors: 9 (1) daily activities; (2)
location, duration, frequency and intensity of the individual's pain; (3) factors that
precipitate and aggravate the symptoms; (4) effectiveness of medications used in
treating pain; (5) treatments other than medications that alleviate pain; (6) any other
non-treatment measures that help alleviate pain (such as lying down); and (7) any other
factors that relate to the pain at issue. /d. at *3. Consistency in statements is another
"strong indication" of credibility that should be considered. /d. at *5.

Importantly, the

ALJ's decision "must contain specific reasons for the finding on credibility, supported by
the evidence in the case record, and must be sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight the adjudicator gave to the
individual's statements and the reasons for that weight." /d. at *4. This degree of
specificity "is necessary in order to give the individual a full and fair review of his or her
claim, and in order to ensure a well-reasoned ... decision." /d.
The ALJ's decision acknowledges that plaintiff's condition could cause her to
suffer the symptoms that she alleged, but notes that the pivotal question is whether
plaintiff's symptoms occur with such frequency, duration and severity as to preclude
work activity on a continuing and regular basis. (D.I. 7 at 20-21) In other words, the

9

"In recognition of the fact that an individual's symptoms can sometimes suggest
a greater level of severity of impairment than can be shown by the objective medical
evidence alone," these factors are also considered. SSR 96-7p at *3.
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ALJ acknowledges that he is required to make a credibility determination on plaintiff's
complaints of debilitating back pain and drowsiness. (/d.) According to the ALJ,
plaintiff's complaints "concerning the pain associated with her degenerative disc disease
and her ability to work [were] not entirely credible" for several reasons. In this regard,
the ALJ noted that no objective evidence (i.e., imaging studies and physical
examinations) supported plaintiff's complaints with respect to the alleged severity of her
pain. (/d. at 21-22) The ALJ also found that plaintiffs activities undermined her
complaints of pain. (/d.) For instance, the ALJ noted that plaintiff was able to drive an
hour to the hearing despite claiming she could not sit for more than one half hour at a
time. (/d.) The ALJ also emphasized that plaintiff's demeanor did not reveal any sign of
"discomfort" or "impairment" despite her earlier acknowledgment that she was in a great
deal of pain. (/d.) The ALJ also discredited plaintiff's complaints of pain due to the fact
that she had been working consistently since 1991 despite claiming to have back pain
since that time. (/d.) Finally, the ALJ noted that the testimony of Ms. Williams, plaintiff's
"best friend," was obviously biased and, therefore, could be discounted. (/d.)
The court has already acknowledged plaintiff's treating physicians, aside from Dr.
Burdick, only found mild degenerative concerns; the other evidence highlighted by the
ALJ further undermines plaintiff's credibility and reveals obvious inconsistences in her
testimony. Accordingly, the court finds the ALJ's credibility determination to be based
upon substantial evidence. The court also believes it to be of a sufficient specificity.

C. VE Testimony
Plaintiff argues that the ALJ ignored two aspects of the VE's testimony: 1) that a
claimant with the symptomology described by plaintiff (i.e., one with debilitating back
19

pain and medication-related drowsiness) would not be capable of work; and 2) that the
DOT does not address the sit/stand option.
Contrary to plaintiff's position, the ALJ did not ignore the VE's answer to the
hypothetical question posed about a claimant who suffered all the ailments described by
plaintiff. Instead, the ALJ made a credibility determination and found that plaintiff's
symptoms were not as severe as she described them to be. See supra section IV. B.
As discussed above, substantial evidence supported the ALJ's credibility determination,
as well as his determination that the medical evidence of record, on the whole, revealed
only mild degenerative concerns (i.e., concerns that would appropriately limit plaintiff to
a modified light RFC). Furthermore, it should be noted that the ALJ explicitly accounted
for any drowsiness with an RFC that required plaintiff to work in a job that was "simple
and routine in nature."
With respect to the DOT not addressing a sit/stand option, the court presumes
that plaintiff, in reliance on SSR 00-4P, is arguing that the ALJ failed to resolve a conflict
between the VE's testimony and the DOT. See SSR 00-4P at *2 ("Occupational
evidence provided by a [VE] generally should be consistent with the occupational
information supplied by the DOT. When there is an apparent unresolved conflict
between [VE] evidence and the DOT, the adjudicator must elicit a reasonable
explanation for the conflict before relying on the [VE] evidence to support a
determination or decision about whether the claimant is disabled."). Contrary to this
argument, the VE's testimony and the DOT are not in conflict; the DOT simply does not
address sit/stand options. Faulkner v. Astrue, 2007 WL 2936111, at *14 (D. Del Oct. 9,
2007). As a vocational expert, Ms. Reed was qualified, based upon her education,
20

training and experience, to opine about the employment market and plaintiff's ability to
work within it. 10 /d. This is exactly what she did. Moreover, "SSR 00-4P does not limit
aVE's testimony solely to the DOT." /d. Thus, the explanation provided by the VE
regarding the availability of a sit/stand option is reasonable and the ALJ did not err by
relying it. /d.
V. CONCLUSION
For the reasons discussed above, the court grants defendant's motion for
summary judgment and denies plaintiff's motion for summary judgment. An appropriate
order shall issue.

10

Her qualifications were not challenged. (D. I. 7 at 57)

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