Psonak v. Astrue

Filing 22

REPORT AND RECOMMENDATIONS - denying 14 MOTION for Summary Judgment filed by Eric P. Psonak, granting 17 Cross MOTION for Summary Judgment filed by Michael J. Astrue. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 9/16/2013. Signed by Judge Sherry R. Fallon on 8/30/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

ERIC P. PSONAK,
Plaintiff,
v.

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

)

)
)
)
)
)
)
)
)
)

Civil Action No. 10-959-SLR-SRF

REPORT AND RECOMMENDATION
Plaintiff Eric P. Psonak ("Psonak" or "plaintiff') appeals from a decision of Carolyn W.
Colvin, the Commissioner of the Social Security Administration ("Commissioner" or
"defendant"), l denying his application for supplemental security income ("SSI") under Title XVI
of the Social Security Act. The court has jurisdiction over this matter pursuant to 42 U.S.C. §
405(g).
Presently before the court are cross-motions for summary judgment filed by Psonak and
the Commissioner. (D.I. 14, 17) Psonak asks the court to order an award of benefits, or, in the
alternative, to remand this case for further administrative proceedings. (D.I. 14, 15) The
Commissioner requests that the decision of the administrative law judge ("ALJ") be affirmed.
(0.1. 17, 18) For the reasons set forth below, I recommend that the court deny Psonak's motion

and grant the Commissioner's motion.

Carolyn W. Colvin became the Commissioner of Social Security on February 13,2013,
after this proceeding was initially filed. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Carolyn W. Colvin replaced the previous Commissioner, Michael 1. Astrue, as the
defendant in this case.
I

I.

BACKGROUND
A.

Procedural History

Psonak protectively applied for SSI on February 23, 2007, alleging disability beginning
on September 15, 2006 due to a tumor in his neck and fibromyalgia in his right arm and neck.
(D.I. 9, Tr. at 139, 163) Psonak's claim was denied initially on March 12,2007, and upon
reconsideration on November 1,2007. (Id. at 85-86) Psonak requested a hearing before an ALJ,
which took place on January 8, 2009. (Id. at 34, 97)
On April 29, 2009, the ALJ issued a decision confirming the denial of benefits. (Id. at
15-33) Psonak requested a review of the ALl's decision by the Appeals Council on May 12,
2009, but the request for review was denied and, therefore, the ALl's decision became the final
decision of the Commissioner subject to judicial review. (Id. at 4-7, 10-11) On November 10,
2010, Psonak filed the current action for review of the tinal decision. (D.I. 1)
B.

Factual Background

1.

Medical History

Psonak began treating with Dr. James W. Sheehan on October 12, 2006 for pain,
numbness, stiffness, and weakness in his head, neck, and spine. (D.1. 9, Tr. at 376-77) Dr.
Sheehan described moderate limitation in Psonak's cervical range of motion and mild limitation
in his lumbar range of motion, and cervical X-rays showed evidence of degeneration and cervical
postural abnormality_ (Id. at 378-81) Dr. Sheehan recommended treatment with supervised
electric stimulation spasm, mechanical traction, manipulation, manual therapy, and ultrasound.
(Id. at 382-83) Psonak returned to Dr. Sheehan on November 8, 2006, noting improvement in

his neck and back pain and resolution of his muscle weakness and stiffness. (Id. at 384) During
this exam, Psonak exhibited only mild limitation in his cervical and lumbar range of motion. (Id.

2

at 387-89) Dr. Sheehan concluded that further treatment of the cervical and lumbar conditions,
as well as lesions of the nerve roots, was not required because it was well-controlled. (Id. at 390)
On November 23,2006, Psonak was admitted to the inpatient psychiatric ward at
Wilmington Hospital with suicidal ideation following a drunk driving accident. (Id. at 244) He
was diagnosed with substance-induced mood disorder, depression, chronic and musculoskeletal
radicular pain, chronic low back pain, and hepatitis C. (Id. at 245) He was prescribed Zoloft and
Trazodone, and was stabilized with supportive medical and psychiatric interventions. (Id. at
245-46) He was discharged on November 27, 2006? (Id. at 246)
On November 26, 2006, Psonak visited Daniel 1. Elliott, M.D., for chronic lower back
pain and right upper extremity pain. (Id. at 251) Dr. Elliott observed that Psonak had multiple
tumors on his forearms, upper arms, and legs. (Id. at 252) Dr. Elliott diagnosed Psonak with
radicular right arm pain and weakness, chronic lower lumbar spine pain, hepatitis C, anemia,
thrombocytopenia, lipomas or neurofibromas, calvarial lesion, alcohol and psychiatric issues,
and hyperglycemia. (Id. at 253) Psonak underwent an MRI of his cervical and lumbar spine,
which revealed lumbar and cervical radiculopathy. (Id. at 278-81)
Psonak returned to Dr. Sheehan on November 30,2006, having experienced a worsening
of his previous conditions due to the November 23, 2006 automobile accident. (ld. at 393)
During a subsequent visit with Dr. Sheehan on December 20, 2006, Psonak reported that the
treatment had improved his condition, and tests revealed only mild limitation in his cervical and
lumbar range of motion, with a complete range of motion in his biceps, wrist, and triceps. (Id. at
395, 401-02) Dr. Sheehan recommended manipulation, therapeutic exercises, and supervised
electric stimulation to treat Psonak's conditions. (Id. at 404-05)

2

The parties do not dispute the ALJ's assessment of limitations stemming from Psonak's
3

On January 9, 2007, Psonak began treating with neurologist Enrica Arnaudo, M.D. for
severe progressive right hand weakness and numbness. (Jd at 885-89) Dr. Amaudo noted
severe right hand and forearm atrophy with numbness, and referred Psonak for an EMG/nerve
conduction study of the right upper extremity. (Jd at 888) Dr. Arnaudo observed that Psonak
had symptoms consistent with entrapment neuropathies and recommended that he receive a
neurosurgical consultation for cervical root or nerve decompression. (Jd at 889) Psonak
subsequently underwent an MRI of his right brachial plexus and cervical spine, which showed
abnormal soft tissue on the right side of his thoracic spine, mild cervical degenerative disc
disease, and multilevel cervical spondylosis with secondary foraminal stenosis. (Jd at 890-92)
On February 5, 2007, Psonak visited neurosurgeon Kennedy Yalamanchili, M.D., who
conducted imaging studies and located a right-sided mass on his spine. (Jd at 767) He
concluded that Psonak suffered from multilevel cervical disk disease and significant nerve
impingement, although there was no evidence of spinal cord compression. (Id at 769) Psonak
underwent a biopsy of the soft tissue mass on his spine on February 9,2007. (Id at 567)
Imaging studies from February 21, 2007 showed foraminal tumors on his thoracic spine. (Jd at
758) Dr. Yalamanchili diagnosed Psonak with neurofibromatosis and recommended surgical
removal oftwo subcutaneous lesions in the thoracic region. (Id)
On March 22,2007, Dr. Yalamanchili performed a laminectomy with foraminotomy, an
instrumented fusion, and removal of a spinal mass. (Id at 462-504) Psonak returned to the
hospital on March 29,2007 with post-operative neck and chest pain and received Dilaudid. (Jd
at 620) Psonak subsequently developed a thoracic wound infection and was admitted to the
hospital from April 4, 2007 to April 10, 2007. (Jd at 505-12) Surgery was performed to achieve

substance abuse and mental conditions.
4

decompression of an abscess. (ld. at 525-26) Psonak followed up with Wesley W. Emmons, III,
M.D. for his wound infection on several occasions between May and August 2007. (ld. at 574­
77)

On May 2, 2007, Dr. Yalamanchili noted that Psonak's incision was healing well, the
swelling was decreased, there was no discharge or tenderness at the incision site, and although he
had decreased strength in his right upper extremity, the range of motion in his neck had
improved and he had full range of motion in both shoulders. (/d. at 755) X-rays of his thoracic
spine showed appropriate bone growth and proper instrumentation placement with staple spinal
alignment. (ld.) Dr. Yalamanchili gave Psonak permission to increase his activity level in
moderation and recommended physical therapy. (ld.) Dr. Yalamanchili specifically noted that
Psonak could return to work in a light duty supervisory capacity for the next six to eight weeks.
(ld.)

Psonak began visiting Adrienne N. Pinckney, MPT for physical therapy on May 10,

2007. (ld. at 692) Psonak presented with decreased myotomal strength in certain vertebrae,
decreased cervical thoracic range of motion, and residual neural tension in his right upper
extremity. (ld.) By June 6, 2007, Psonak presented asymptomatic in his neck and upper back.
(Id. at 691)

On May 14, 2007, Psonak visited Dr. Arnaudo, who noted severe impressive diffuse
mass lesions with lipomas and neurofibromas throughout the arms, forearms, and thighs. (ld. at
883) Psonak underwent surgery with Dr. Yalamanchili on November 26,2007 to remove
neurofibromas on his right upper extremity. (ld. at 784) On December 19,2007, Psonak
underwent an MRI that revealed degenerative disc disease ranging from mild to severe
throughout the cervical spine. (ld. at 720) The MRI showed evidence of postoperative scar

5

tissue, but no solid mass or abscess. (ld. at 740) Dr. Yalamanchili performed surgery on
January 14,2008 to remove neurofibromas on Psonak's left upper extremity. (fd. at 740)
Psonak began treating with orthopedist Evan H. Crain, M.D. on March 5, 2008 for pain in
his left upper extremity. (fd. at 733) Dr. Crain reported that Psonak had full painless range of
motion in the neck, good shoulder range of motion, both active and passive, and his X-rays were
normal, revealing no spur formation, joint space narrowing, or degenerative joint disease. (fd.)
At Dr. Crain's suggestion, an EMG was performed on March 20, 2008, revealing mild, chronic
left median entrapment neuropathy at the wrist consistent with mild to moderate carpal tunnel
syndrome. (fd. at 775) On March 31, 2008, Psonak noted improvement in his left shoulder since
beginning treatment with Dr. Crain, although the right side had not improved. (fd. at 732)
On June 16,2008, after reviewing the results ofPsonak's recent cervical MRI and
thoracic spine X-rays, Dr. Yalamanchili concluded that no further surgeries were necessary to
treat Psonak's spine and referred Psonak to a pain specialist. (fd. at 739) On July 2, 2008,
Psonak visited James E. Downing, M.D., a spine pain consultant, for neck and upper back pain.
(fd. at 796) Dr. Downing discussed a trial of lower cervical facet injections and physical

therapy, but Psonak indicated that he did not have time to participate in physical therapy. (fd. at
797) From September 17, 2008 to October 13,2008, Psonak visited Julia Kegelman, D.P.T. of
The Back Clinic, Inc. (fd. at 798) Psonak made good progress with treatment and felt that he
had more endurance for daily activities and reduced pain levels, but he was severely disabled
according to the Oswestry Disability Index. (fd.)
On October 30, 2008, E. Russell Ford, M.D., Psonak's family physician, completed a
physical capacities evaluation of Psonak, opining that Psonak could sit for two to three hours
without changing position if given a soft chair and a pillow, and he could stand and walk for

6

fifteen to twenty minutes at a time. (Id. at 806) Dr. Ford observed severe pain in Psonak's right
upper extremity, hips, neck, upper and lower back, and legs, which was worsened by prolonged
sitting standing, walking, and wet or cold weather. (Id.) Dr. Ford noted that Psonak had
numbness, tingling, and weakness in his right upper extremity. (Id.) Dr. Ford opined that
Psonak could lift and carry up to ten pounds occasionally, but could not push, pull, grasp, or
perform fine manipulation with his right upper extremity. (Id. at 807-08) According to Dr. Ford,
Psonak could bend, squat, climb, reach above, stoop, and kneel only occasionally, and doing so
would be very painful. (Id. at 808) Moreover, he concluded that Psonak would need
unscheduled interruptions of his work routine and would miss work frequently. (Jd. at 810) Dr.
Ford opined that Psonak would not be able to work due to his chronic severe pain, stiffness,
weakness, muscle spasms, numbness, burning and tingling. (Id. at 811) Dr. Arnaudo completed
an identical physical capacities evaluation on October 27,2008. (ld. at 870-75)
On November 14,2008, Dr. Arnaudo diagnosed Psonak with neurofibromatosis, severe
right hand weakness and numbness, and recent right foot drop. (Id. at 877) Dr. Arnaudo
indicated that the results ofPsonak's November 19,2008 EMG revealed subacute left peroneal
entrapment neuropathy at the fibular head, which was consistent with his symptoms, clinical
examination, and his recent improvement with physical therapy. (Id. at 903-04)

2.

The Administrative Hearing
a.

Plaintifrs testimony

Psonak was forty-six years old at the time of the hearing before the ALJ. (D.!. 9, Tr. at
38) He testified that he was married, but his wife died in 2005, and he now lives with his two
minor children in a first floor apartment. (Id. at 38-39) Psonak obtained his GED and attended
community college for a short period of time, but he did not graduate. (Id. at 39) He is able to

7

read with glasses but has some issues with his vision due to his diabetes. (Id.) He cannot write
legibly on a consistent basis because he cannot use his right dominant hand. (Id. at 40) He is
able to perform basic math but does not handle his finances without his son's assistance. (Id.)
Psonak testified that, in the last fifteen years, he has worked in underground
communications installing pipe and wire for telephones, television and electric. (Id. at 42) He
would run equipment, dig, drive equipment, load and unload tractors, and fill out paperwork and
reports. (Id.) He injured his back for the first time in the early 1980's and could not maintain a
supervisory position as a result of his injury. (Id. at 43) He tried to go back to work full time
after his wife died, but he worked for less than two months when his right arm began to bother
him, and he left in September of 2006. (Id. at 44-45)
Psonak testified that his doctors diagnosed him with neurofibromatosis, carpal tunnel
syndrome, and tumors near his spine. (Id. at 47) He was able to obtain Medicaid, and he
received an operation to remove the tumors. (Id. at 48) Following the operation, the surgical
incision became infected. (Id.) Psonak claims that after the operation, the nerves in his right
hand never came back, and he is not able to use his right arm or hand very much. (Id.) He
cannot lift, carry, or grab with his dominant right hand. (Id. at 49)
Psonak testified that two of the fingers on his left hand went numb in March 2008 and he
had X-rays, an MRI, and an EMG performed on his left arm. (Id. at 50) Dr. Arnaudo diagnosed
him with left chronic carpal tunnel syndrome. (Id.) Psonak has difficulty using his left arm and
hand because it is not his dominant arm, and it takes him much longer to complete tasks with it.

(Id. at 51) He testified that he also has tumors in his left arm, as well as shoulder pain caused by
bone spurs. (Id.)
Psonak testified that, at the time of the hearing, he had tumors in his right and left arms,

8

his stomach, his ribcage, his back, his legs, and his head. (Id. at 51-52) Many of them grew
back after he underwent surgery, and new ones have grown since his surgery. (Id. at 52) He
estimated that he had approximately twenty or thirty tumors removed during surgery. (Id.)
Psonak was also diagnosed with foot drop and had an EMG performed on his left leg.
(ld. at 54) According to Psonak, the top of his foot is numb and his toes sometimes go numb.
(Id. at 54-55) He experiences numbness in the front part of his shin and his gait is uneven. (Id.
at 55) He testified that he experiences pain in his left hip when he walks, and the pain runs down
his leg. (Id.)
Psonak testified that he can walk for a couple of blocks, or for about fifteen to twenty
minutes, before his hip and back begin to hurt. (ld.) He indicated that he can stand for a
maximum of fifteen to twenty minutes before he needs to sit down for a period of time. (ld. at
57) He is able to sit in a reclining chair for a couple of hours at a time, but can only sit in a
regular chair for about a half hour and needs to change positions every fifteen to twenty minutes.
(Id. at 57-58) He is not able to lift or carry anything with his right hand unless it is the weight of
a piece of paper which he can pin against his chest with his arm. (ld. at 58-59) He cannot open a
jar, open a door, or button his buttons with his right hand. (ld. at 59)
Psonak requires help from his teenage daughter and seven-year-old son to cook and
clean. (Id.) He cannot perform household chores due to his inability to reach or bend. (Id. at
60) He uses his left hand to maintain his personal hygiene. (Id.) He is able to reach with his
right hand but he cannot grab anything with it, and it is painful for him to lift it. (Id. at 61) He
can reach, lift, and carry a gallon of milk with his left hand. (ld.) He is able to cook
prepackaged meals for his children. (Id.) Psonak is able to drive by using his left hand. (Id. at
63) He has not had alcohol since June of2008. (ld. at 65)

9

Psonak's sister, Barbara Cornival, also testified. (ld. at 72) She testified that Psonak has
difficulty driving because he is unable to sit in one spot for long periods of time, and his reaction
time has slowed significantly. (Id. at 73) He also has difficulty climbing stairs, cutting his food,
and writing. (Id.) He cannot clean his apartment, pay his bills, or help his son with his
schoolwork. (Jd.) Ms. Cornival talks to Psonak every day by telephone and visits with him in
person once or twice a week. (Id. at 75) She testified that her brother used to drink, but she had
not seen him drink alcohol for six months prior to the hearing before the ALl (Jd. at 75-76)

h.

Vocational Expert's Testimony

The ALJ posed the following hypothetical to VE Tony Melanson:
Like for you to assume a person who is 44 years of age on his application date.
Has a GED education. Right-handed by nature. Past relevant work as indicated.
Suffering from various impairments including degenerative disc disease and/or
fibromyalgia and/or arthritis. Status post effects of tumor in the neck operation.
He also has neurofibromatosis in his body. He has some depression. He's been
recently diagnosed as having diabetes, October of '08. These things do cause him
to have moderate pain and discomfort, depression. In the lower leg, and shoulder,
foot, and hip, not depression but pain, all of which are somewhat relieved by his
medication without significant side effects. But he indicates he derives dry mouth
or sleepiness from one or a combination. And if I find he needs to have simple,
routine, unskilled job, Mr. Melanson. Low stress in nature, concentration and
memory. Probably SVP 2 jobs. And at the appropriate time perhaps you can tell
us exactly what that means. He's able to attend tasks and complete schedule.
And if! find that he's mildly limited in his ability to perform his ADL's, interact
socially, and to maintain concentration, persistence, and pace. And would be
limited as to 10 pounds frequently, 20 pounds on occasion as to his lifting ability.
Stand for 30 minutes, sit for 30 minutes consistently on an alternate basis during
an eight-hour day. Heights and hazardous machinery to avoid, due to his
sleepiness. Temperature and humidity extremes, vibration. And would be mildly
to moderately limited as to push and pull, grip in that right upper extremity, and
no repetitive neck turning. Jobs that require little writing ability due to his
educational background. And no overhead reaching. Generally what I'm looking
for, Mr. Melanson, is jobs that can be performed with one arm and minimal assist
with the other. Can you give me jobs that would exist out there in the national
economy with those limitations, in your opinion as a vocational expert, in
significant numbers?
(ld. at 77-78)
10

The VE testified that Psonak's previous work as a construction worker was heavy and
semi-skilled, and as a result, Psonak would have no transferable skills. (Id. at 76-77) The VE
indicated that available jobs at a light, unskilled level of exertion included a gate tender, which
has a specific vocational preparation ("SVP") score of two, with 200 gate tender positions
available locally and 60,000 nationally. (Jd. at 78-79) The VE reduced the numbers of available
positions by about 70 percent to accommodate the hypothetical individual's additional
limitations. (Jd. at 79) The VE testified that there would be no other work that could be
performed in the light or sedentary categories. (Id.) The ALJ then asked the VE to address the
position of surveillance monitor. (Id.) The VE responded that this position required some
writing, and noted about 150 positions available locally and 60,000 nationally. (Id.)
Psonak's counsel questioned the VE regarding whether Psonak would be able to perform
any work if the RFC assessments of Drs. Ford and Aranudo were credited. (Jd. at 80-81)
Specifically, counsel asked the VE to consider a hypothetical individual who can carry ten
pounds occasionally, is limited in his upper extremities with severe pain in his right upper
extremity from shoulder into shoulderblade, down the arm and into the fingers, with numbness,
tingling, and weakness. (Id. at 82) The hypothetical individual would have extremely limited
mobility and strength in the right shoulder, arm, elbow, and hand, and would experience left foot
drop, left foot pain, stiffness, and weakness from a prior crush injury, pain in his back, pain in
fibromas on both legs, and knee stiffness and crackling. (Id.) The hypothetical individual would
also experience pain in bending, squatting, climbing, reaching, stooping, and kneeling, and
cannot be exposed to unprotected heights, moving machinery, or marked changes in temperature.
(Jd.)

The VE responded that, in view of these limitations, there would be no substantial gainful

11

activity that could be perfonned by the hypothetical individual. (Id.)
3.

The ALJ's Findings

Based on the factual evidence and the testimony of Psonak, Ms. Cornival, and the VE,
the ALJ detennined that Psonak had not been under any type of disability within the meaning of
the Act from September 15,2006 through the date of his decision. The ALJ's findings are
summarized as follows:
I. The claimant has not engaged in substantial gainful activity since February 23,
2007, the application date (20 C.F.R. 416.971 et seq.).
2. The claimant has the following severe impainnents: Neurofibromatosis,
Cervical and Thoracic Degenerative Disc Disease with neuropathy and
radiculopathy, and Mood Disorder (20 C.F.R. 416.920(c)).
3. The claimant does not have an impainnent or combination of impainnents 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. 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perfonn a range of light work as
that tenn is defined in 20 C.F.R. 416.967(b). The claimant can lift up to 10
pounds frequently and up to 20 pounds on occasion, and the claimant can sit,
stand, and walk for the duration of an 8-hour workday, but he must be permitted
to alternate between positions at will or about every 30 minutes. The claimant is
limited in his right upper extremity use for all activities, and he cannot perfonn
any tasks requiring overhead reaching, but he can otherwise perfonn all postural
activities except crawling and climbing frequently. Due to the combination of his
physical impainnents, the claimant must also avoid working at heights or with
hazardous and/or vibrating machinery, and he must avoid working in extreme
temperatures and/or humidity. Finally, due to the combination of his pain, the
side effects of his medications, and the symptoms of his mental impainnent, the
claimant is limited to simple, routine, non production pace unskilled work.
5. The claimant is unable to perfonn any past relevant work (20 C.F.R. 416.965).
6. The claimant was born on November 20, 1962 and was 44 years old, which is
defined as a younger individual age 18-49, on the date the application was filed.
(20 C.F.R. 416.963).
7. The claimant has at least a high schooleducation and is able to communicate
in English (20 C.F.R. 416.964).
12

8. Transferability ofjob 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. Considering the claimant's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 C.F.R. 416.969 and 416.969a).
10. The claimant has not been under a disability, as defined in the Social Security
Act, since February 23,2007, the date the application was filed (20 C.F.R.
416.920(g)).
(D.1. 9, Tr. at 18-33)

III.

STANDARD OF REVIEW
Findings of fact made by the ALJ, as adopted by the Appeals Council, are conclusive if

they are supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3). Judicial
review of the ALJ's decision is limited to determining whether "substantial evidence" supports
the decision. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). In making
this determination, a reviewing court may not undertake a de novo review of the ALl'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 ALl's decision must be affirmed if it is supported
by substantial evidence. See id. at 1190-91.
The term "substantial evidence" is defined as less than a preponderance of the evidence,
but more than a mere scintilla of evidence. As the United States Supreme Court has noted,
substantial evidence "does not mean a large or significant amount of evidence, but rather such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Pierce v. Underwood, 487 U.S. 552, 565 (1988). The Supreme Court also has embraced this

standard as the appropriate standard for determining the availability of summary judgment

13

pursuant to Federal Rule of Civil Procedure 56. "The inquiry perfonned is the threshold inquiry
of detennining whether there is the need for a triaI- whether, in other words, there are any
genuine issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986).
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." Id. at 250-51 (internal
citations omitted). Thus, in the context ofjudicial 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." 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 plaintiffs subjective complaints
of disabling pain, the ALJ "must consider the subjective pain and specify his reasons for
rejecting these claims and support his conclusion with medical evidence in the record." Matullo

v. Bowen, 926 F.2d 240,245 (3d Cir. 1990).
"Despite the deference due to administrative decisions in disability benefit cases,
'appellate courts retain a responsibility to scrutinize the entire record and to reverse or remand if
the [Commissioner]'s decision is not supported by substantial evidence.'" Morales v. Apfel, 225
F.3d 310,317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d 968,970 (3d Cir. 1981)). "A

14

district court, after reviewing the decision of the [Commissioner] may, under 42 U.S.c. § 405(g)
affirm, modify, or reverse the [Commissioner],s decision with or without remand to the
[Commissioner] for rehearing." Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984).

IV.

DISCUSSION
A.

Disability Determination Process

Title II of the Social Security Act, 42 U.S.C. §423(a)(1)(D), "provides for the payment of
insurance benefits to persons who have contributed to the program and who suffer from a
physical or mental disability." Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Title XVI of the
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 by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months. See 42 U.S.c. §
423(d)(l )(A). A claimant is disabled "only if his 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); Barnhart v. Thomas, 540 U.S. 20,
21-22 (2003).
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

15

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),
416.920(a)(4)(ii) (mandating finding of non-disability when claimant's impairments are not
severe). 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). Ifa
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 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 relevant work); Plummer, 186 F.3d at 428. A
claimant'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 his 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

16

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]." ld 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.

Plaintifrs Arguments on Appeal
1.

Sufficiency of the VE's opinion at step 5

Psonak alleges that the VE erred in testifying that an individual with the functional
limitations and vocational factors identified by the ALJ would be capable of performing the job
of "gate tender" because the position is semi-skilled, not unskilled as the VE testified at the
hearing. (D.I. 15 at 3 -4) Psonak also contends that the position of surveillance system monitor
does not satisfy the Commissioner's burden at step five due to the writing requirement, and
Psonak cannot perform a sedentary position in light of the fact that he lacks bimanual dexterity.
(ld at 4-5)

In response, the Commissioner alleges that Psonak erroneously substitutes the
requirements of the semi-skilled "gate guard" for the proffered position of "gate tender," which
is listed in the Dictionary of Occupational Titles ("DOT") 690.686-042, as an unskilled position.
(D.I. 18 at 22) However, the Commissioner acknowledges that the gate tender position proffered
by the VE was insufficient to constitute substantial evidence ofPsonak's ability to perform work
due to the medium exertional requirement. (ld) Therefore, the parties' dispute centers only on

17

the sufficiency of the surveillance monitor position.
Social Security Ruling 96-9p states that "[m lost unskilled sedentary jobs require good use
of both hands and the fingers, i.e., bilateral manual dexterity .... Any significant manipulative
limitation of an individual's ability to handle and work with small objects with both hands will
result in a significant erosion of the unskilled sedentary occupational base." S.S.R. 96-9, 1996
WL 374185, at *8. However, the condition does not automatically dictate a finding of disability
when a VE is consulted to determine the extent of the erosion of the occupational base. See Fox
v. Comm'r, 2009 WL 367628, at *19 (N.D.N.Y. 2009) (citing 20 C.F.R. § 416.966(e)). The
DOT description of the surveillance system monitor position notes that aptitudes for handling,
fingering, and feeling are not present. See DOT § 379.367-010. Moreover, the DOT lists
"maximum requirements of occupations as generally performed, not the range of requirements of
a particular job as it is performed in specific settings." Fox, 2009 WL 367628, at * 19.
In the present case, the VE accounted for Psonak's writing limitations before offering
numbers of positions available:
Well, there is - the surveillance monitor is a position that would require some
writing. There's not a lot of writing. That's one of the - there would be some
numbers in the surveillance monitor that could be ... There would be about 150
locally, and about 60,000 nationally. Those are similar numbers. The other
positions do require more handling, so that would be about all.

(D.I. 9, Tr. at 79) This conclusion is consistent with the hypothetical posed by the ALl, which
requested "[j]obs that require little writing ability," and Psonak's own testimony, which reflected
that his ability to write was "inconsistent." (Id at 40,51, 78) The record shows that the VE
calculated the extent of the erosion of the position based on Psonak's limited ability to write, and
the ALl did not err in relying on the VE's testimony. See Fox v. Comm 'r ofSoc. Sec., 2009 WL

18

367628, at *19 (N.D.N.Y. 2009). The ALl did not find Psonak incapable ofwriting,3 and there
is record evidence that he was able to write, albeit with difficulty. See Welch

v.

Astrue, 2012 WL

3113148, at *8 (D. Me. 2012) (finding any error by ALl harmless where ALl never clarified
whether plaintiff retained ability to write with her non-dominant hand, but ALl did not find
plaintiff incapable of writing, and record evidence showed that plaintiff was able to write with
difficulty). Therefore, substantial evidence supports the ALJ's conclusion that Psonak retained
the RFC to perform the job of surveillance monitor.

2.

Treating physicians' opinions

A treating source's medical opinion will be given "controlling weight" if an ALl 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.lS27(d)(2);
Social Security Regulation ("SSR") 96-2p. In many cases, even if a treating source's medical
opinion does not meet the test tor controlling weight, it will nevertheless be entitled to great
weight and should be adopted by an ALl Id. In order to determine what weight to accord a
non-controlling treating physician opinion, an ALl is required to weigh the evidence in light of
several factors. Id. These factors include: (l) 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 opinion

more weight is

3 Although the ALl placed a limitation on Psonak's ability to write due to his educational
background, and not because of the nerve damage in his right hand, this error is harmless
because the ALJ accounted for the fact that Psonak's ability to write was limited.
19

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 ALl's determination must always provide "good reasons"
for the weight given to a treating source's opinion, id, and an ALl can only "reject a treating
physician's opinion ifit is based on 'contradictory medical evidence.'" Dougherty v. Astrue, 715
F. Supp. 2d 572, 581 (D. Del. 2010) (citing Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)).
Psonak alleges that the ALl erred in relying upon the opinion of a non-examining state
agency physician who saw only a partial medical record before all the evidence was submitted.
(D.l. 15 at 6) According to Psonak, the ALl's reliance was particularly misplaced because
Psonak's two long-time treating specialists, Dr. Amaudo and Dr. Ford, both offered detailed
functional assessments consistent with disability that were not credited by the ALl. (ld at 7)
Moreover, Psonak alleges that Dr. Amaudo's opinion was not inconsistent with her own prior
statements because she had said as early as May 14,2007 that Psonak was unable to perform
full-time work. (ld) Psonak contends that the same was true of Dr. Ford's opinion. (ld)
In response, the Commissioner alleges that the ALl appropriately discredited the opinions
of Drs. Amaudo and Ford after noting that the opinions were identical in both form and content
and surmising that the opinions were not written by the treating physicians themselves. (D.I. 18
at 16-17) Moreover, the Commissioner contends that the ALl properly concluded that the
treating physicians' opinions were inconsistent with their treatment notes, which indicated that
Psonak responded well to treatment. (ld at 17)
The court concludes that substantial evidence supports the ALl's decision to reject the

20

findings of Dr. Ford and Dr. Arnaudo, which were inconsistent with the totality of the medical
evidence. Psonak's course of treatment was generally conservative, consisting of physical
therapy and pain medication or muscle relaxants. Moreover, Psonak's clinical findings were
largely unremarkable. The ALJ noted that Dr. Yalamanchili instructed Psonak to increase his
activity level and released him to work in a light duty supervisory capacity in May 2007, and
found that he had full ranges of motion in his bilateral upper extremities. (Id. at 22) The ALJ
also observed that Psonak's physical therapist recommended discharge from therapy and planned
to have him return to work in a light-medium duty position. (Id.) In March 2008, Dr. Crain
found full and painless ranges of motion in Psonak' s neck and shoulders, and Psonak indicated
that his left shoulder symptoms improved with his home exercises. (Id. at 24) Dr. Crain
observed that X-rays ofPsonak's shoulders were normal, without spur formation, joint space
narrowing, or evidence of degenerative joint disease. (Id.) Cervical and thoracic X-ray and MRI
studies taken in June 2008 revealed "no role for additional surgery." (Id.) For these reasons,
substantial evidence supports the ALJ's conclusion that the opinions of Drs. Ford and Arnaudo
should not be accorded controlling weight.
Psonak's allegations that the ALJ improperly relied on Dr. Borek's RFC assessment due
to the passage oftime following Dr. Borek's assessment are not supported by the case law. The

Third Circuit has specifically noted that, "because state agency review precedes ALJ review,
there is always some time lapse between the consultant's report and the ALJ hearing and
decision. The Social Security regulations impose no limit on how much time may pass between
a report and the ALl's decision in reliance on it." Chandler v. Comm 'r o/Soc. Sec., 667 F.3d
356, 361 (3d Cir. 2012).

3.

Failure to account for severe impainnents

21

Lastly, Psonak alleges that the ALl erroneously failed to find that his carpal tunnel
syndrome4 was a severe impairment under the second step of the analysis, and the ALl's failure
to include further limitations stemming from this condition was outcome determinative. (D.!. 15
at 8) According to Psonak, surgery in his left upper extremity to remove tumors did not relieve
his symptoms, and the ALl erred in not imposing any functional restrictions on the left upper
extremity. (Jd.)
In response, the Commissioner alleges that the ALl did not deny Psonak's claim at step
two of the analysis, and it was not necessary for the ALl to specifically find additional alleged
impairments to be severe. (D.I. 18 at 13-14) Moreover, the Commissioner contends that Psonak
points to no established functional limitations resulting from his carpal tunnel syndrome other
than those included in the ALl's RFC assessment. (Id. at 14)
A review of the ALl's decision reveals that the ALl considered Psonak's claims
regarding his carpal tunnel syndrome but rejected those complaints in view of the medical
evidence of record. The ALl acknowledged that Psonak experienced "some symptoms of pain
and weakness in his left arm and hand," but noted that "no particular treatment measures, such as
splints, were recommended or used with regard to the claimant's left hand issues." (D.I. 9, Tr. at
30) The ALl concluded that Psonak's "mild to moderate and generally untreated carpal tunnel
syndrome [did] not cause any functional limitations in [Psonak's] work-related abilities." (Id. at
25) The medical record is consistent with the ALl's findings; therefore, the ALl's determination
that Psonak's carpal tunnel syndrome is not a severe impairment is supported by substantial
evidence. (Id. at 775)

4 In his opening brief, Psonak identifies both carpal tunnel syndrome and lumbar spine
problems as severe impairments ignored by the ALl. (D.I. 15 at 8) However, Psonak
subsequently limits his argument to his left carpal tunnel syndrome in his reply brief. (D.I. 21 at

22

IV.

CONCLUSION
For the reasons stated above, I recommend that the court deny Psonak's motion for

summary judgment (D.I. 14) and grant the Commissioner's cross-motion for summary judgment
(D.I. 17).
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R.
Civ. P. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b )(2). The failure of a party to object to legal conclusions may result in the
loss of the right to de novo review in the district court. See Henderson v. Carlson, 812 F.2d 874,
878-79 (3d Cir. 1987); Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1 (3d Cir. 2006). The
objections and responses to the objections are limited to ten (10) pages each.
The parties are directed to the court's Standing Order In Non-Pro Se Matters For
Objections Filed Under Fed. R. Civ. P. 72, dated November 16,2009, a copy of which is
available at http://www.ded.uscourts.gov.

Dated: August 30, 2013

5)
23