Hockensmith v. Astrue

Filing 38

MEMORANDUM OPINION - Signed by Judge Sue L. Robinson on 11/30/12. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ARNOLD R. HOCKENSMITH,

)
)
Plaintiff,
)
)
v.
) Civ. No. 10-961-SLR
)
MICHAEL J. ASTRUE,
)
Commissioner of Social Security, )

)

Defendant.
)

Arnold R. Hockensmith, Felton, Delaware. Pro se Plaintiff.
Charles M. Oberly III, United States Attorney, Wilmington, Delaware and Patricia A.
Stewart, Special Assistant United States Attorney, Office of the General Counsel Social
Security Administration. Of Counsel: Nora Koch, Esquire, Acting Regional Chief
Counsel, Region III and Charles J. Kawas, Esquire, Assistant Regional Counsel of the
Office of the General Counsel, Philadelphia, Pennsylvania. Counsel for Defendant.

MEMORANDUM OPINION

Dated: November ~O, 2012
Wilmington, Delaware

I. INTRODUCTION
Arnold R. Hockensmith ("plaintiff') appeals from a decision of Michael J. Astrue,
the Commissioner of Social Security ("defendant"), denying his applications for
Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under
Title II and Title XVI, of the Social Security Act (the "Act"). 42 U.S.C. §§ 401-434, 1381­
1383f. The court has jurisdiction pursuant to 42 U.S.C. § 405(g).1
Currently before the court are the parties' cross-motions for summary judgment.
(0.1.18,29, 32)2 Plaintiff seeks remand for a new hearing or an award of benefits from
January 20, 2006 to December 19, 2008. For the reasons set forth below, plaintiffs
motions will be granted and defendant's motion will be denied.

II. BACKGROUND

A. Procedural History
Plaintiff filed his claim for DIB and SSI applications on August 24, 2006, alleging
disability since the amended onset date of January 20,2006 3 due to spinal disorders,

1Under § 405(g), [a]ny individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party ... may obtain a review of
such decision by a civil action commenced within sixty days after the mailing to him of
notice of such decision. . .. Such action shall be brought in the district court of the
United States for the judicial district in which the plaintiff resides .... 42 U.S.C.
§ 405(g).
2Plaintiff filed two identical motions for summary judgment and supporting briefs.
The first on November 4,2011 (0.1. 18, 19), and the second on February 17, 2012 (0.1.
29,30) In addition, on three separate occasions, he filed identical physical residual
functional capacity (URFC") questionnaires prepared by Lyndon Cagampan, D(ur.
Cagampan) dated August 20,2009. (See 0.1. 6, 20, 37)
3Plaintiff filed an application for DIB and SSI in 2004, denied on January 19,
2006. (0.1. 22, transcript (UTr.") 33-42) Thereafter, he amended his alleged disability
onset date to January 20, 2006. (Id. at 285-86)

bipolar/depression, and a neck condition. (0.1. 22, Tr. 13-14, 166, 171, 243) Plaintiffs
applications were denied initially and on reconsideration. (Id. at 90-95) Thereafter,
plaintiff requested a hearing which took place before an administrative law judge ("ALJ")
on September 16,2008. Counsel represented plaintiff at the hearing, and plaintiff and
a vocational expert ("VE") testified. (Id. at 11-55)
On December 19, 2008, the ALJ issued an unfavorable decision, finding plaintiff
not disabled and denying his claims for DIS and SSI. (/d. at 74-87) The ALJ found
that, while plaintiff could not perform his past work, he could perform a limited range of
light work available in the national economy. Plaintiff sought review by the Appeals
Council, but it denied his request for review and, therefore, the ALJ's decision became
the final agency decision subject to judicial review. (Id. at 1-4) On November 9,2010,
plaintiff, proceeding pro se, filed the current action for review of the final decision. (0.1.
1)

B. Background
1. Medical history
Plaintiff received medical and mental health treatment at the Wilmington
Veteran's Hospital between 2004 and 2008 for a variety of conditions including cervical
spondylosis without myelopathy, spinal stenosis in the cervical region, lumbosacral
spondylosis without myelopathy, cervicalgia, unspecified hyperlipidemia, chronic
obstructive pulmonary disease ("CaPO"), bipolar disorder, agoraphobia with panic
disorder, allergies, gastroesophageal reflux disorder, low back pain, depressive

2

disorder, scoliosis, pain management, and foot problems. (Id. at 265-371,397-402,
404-62)
An August 16, 2006 MRI of plaintiff's cervical spine revealed degenerative disc
disease and some moderate to severe spinal stenosis, but no evidence of cord edema
or gliosis. (Id. at 370-71) On December 18, 2006, Joyce Goldsmith, M.D. ("Dr.
Goldsmith"), completed a physical RFC assessment and opined that plaintiff could
occasionally lift and/or carry twenty pounds; frequently lift and/or carry ten pounds;
stand and/or walk about six hours in an eight-hour workday; sit about six hours in an
eight-hour workday; and was unlimited in his ability to push and/or pull. (Id. at 236-43)
In addition, Dr. Goldsmith opined that plaintiff had some postural, manipulative, and
environmental limitations, but no communicative or visual limitations. (Id. at 238-40)
Plaintiff underwent cervical facet nerve blocks in March 2007 and tolerated the
procedures well. (Id. at 263-64) On June 7, 2007, Michael Borek, D.O. ("Dr. Borek"),
completed a physical RFC assessment of plaintiff. (Id. at 383-90) Dr. Borek opined
that the maximum RFC for plaintiff would be sedentary and that plaintiff could
occasionally lift and/or carry ten pounds; frequently lift and/or carry less than ten
pounds; stand and/or walk at least two hours in an eight-hour workday; sit about six
hours in an eight-hour workday; and was limited in his ability to use his arms to push
and/or pull. (Id. at 384) He also opined that plaintiff had some postural, manipulative,
and environmental limitations, but no communicative or visual limitations. (Id. at
384-86, 389)

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As of August 8, 2007, plaintiff exhibited no musculoskeletal weakness or
numbness. (Id. at 441) Plaintiff presented to Franklin Irwin, M.D. ("Dr. Irwin"), in
September and November 2007. (Id. at 393-96) Plaintiff received a cervical facet
nerve block injection in September 2007 and a cervical facet ablation injection in
November 2007. (Id. at 393,395) He tolerated both procedures well without complaint.
(Id.) In December 2007, plaintiff had a decreased range of motion in his cervical spine,

but he exhibited a normal gait, no atrophy was noted in his hands or left arm, a sensory
examination was normal, and he had full range of motion of his shoulders, elbows,
wrists, and hands. (Id. at 426) On the same date, electrodiagnostic studies indicated
normal findings with no evidence of carpal tunnel syndrome, peripheral neuropathy, or
cervical radiculopathy affecting plaintiff's left arm. (Id. at 427)
In April 2008, Stephen Penny, M.D. ("Dr. Penny"), evaluated an MRI examination
of plaintiff's lumbar spine. (ld. at 403) It revealed scoliosis and significant end-plate
changes and facet disease at multiple levels in the lumbar spine, but there was no
evidence of disk herniation, nerve root canal stenosis, or central spinal stenosis. (Id.)
Plaintiff reported in May 2008 that he had lost 30 pounds and, despite having some
pain, was doing better and felt much better. (Id. at 405) Throughout 2007 and 2008,
plaintiff exhibited 5/5 strength in his arms and legs. (Id. at 311,406,414,435,452)
Plaintiff was evaluated by licensed clinical psychologist Kate McGraw, Ph.D.
("Dr. McGraw"), in February 2007. (Id. at 258-60) Dr. McGraw noted that plaintiff
walked without evidence of a limp or gait impairment; he appeared alert and oriented to
person, place, and time/date; he was cooperative; his judgment was fair and his

4

attention, concentration, and recent memory appeared intact. (ld. at 259) Diagnoses
included bipolar disorder, polysubstance abuse disorder, panic disorder, and post
traumatic stress disorder. (Id. at 259) Plaintiffs Global Assessment of Functioning
("GAF") score was 65. 4 (Id. at 259)
On August 8, 2007, plaintiff was alert and oriented to person, place, time, and
situation. (Id. at 441) Notes dated April 2008 indicate that plaintiffs bipolar disorder
had improved, he was alert and oriented with euthyrnic mood, with organized thinking,
no evidence of delusions or thought disorganization, improved insight, and improved
impulse control. (ld. at 409)

2. The administrative hearing
a. Plaintiff's testimony
Plaintiff was born on August 16, 1958 and was fifty years old on the date of the
hearing. (ld. at 15) He has a high school education, some training certificates, and
last worked in 2005 as a machine operator. (Id. at 16) He has a driver's license and is
able to drive, but finds it difficult. (ld. at 17)
Plaintiff testified that he has been unable to work since January 20, 2006 due to
spurs on his cervical spine and pain. (ld.) The pain is mainly on the left side shooting
down the neck into the arm. (ld. at 17-18) There is constant pain, worse at times. (ld.
at 18) There are also cervical issues with intense pain on the right side. (Id.)

4A GAF score of 61-70 corresponds to an individual with "some mild symptoms"
or an individual who is "generally, functioning pretty welL" American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994).

5

Plaintiff engages in pain management, had a series of nerve blocks, participated
in physical therapy, and takes pain medication and muscle relaxers. (Id. at 19-20) The
medication causes drowsiness and, even after taking medication, plaintiff described the
pain as an eight on a scale of one to ten. (Id. at 21-22) Most treatment did not
significantly help with the pain. (Id. at 23) At the time of the hearing, plaintiff was
scheduled to meet with a surgeon and he intended to have surgery. (Id. at 20-21)
Plaintiff testified that certain motions cause an increase in pain, his neck locks
up, and he has limited motion. (Id. at 22) When the pain is severe enough, it causes a
migraine headache that can last anywhere from three to four hours to all night. (Id. at
24) In addition, plaintiff has difficulty moving his head left and right and looking up and
down, particularly looking up. (Id. at 25) He can raise his right arm, but is unable to
raise his left arm. (Id. at 26) He has issues with his left hand and does not use it, but
has grip strength in his right hand. (/d.)
Plaintiffs back pain begins at the beltline and spreads down the back of his legs,
at times to the left calf area and to the back of the right knee area. (Id. at 27-28) He
sometimes has numbness in the left leg and foot. (Id. at 28-29) The pain is constant
and similar to a knot with the pain in the legs described as a shooting sensation. (/d.)
Treatment for back pain has included trigger point in the lower back for muscle spasms
and the use of a TENS unit which somewhat relieved his symptoms. (Id. at 29) He
takes the same medications for the back as he does for the cervical spine, and it
reduces the pain to seven on a scale of one to ten. (Id. at 30) However, quite often,

6

plaintiff experiences back pain at a ten, normally in the morning, even after taking
medication. (ld.)
Plaintiff has agoraphobia and a bipolar disorder and is treated for the conditions.

(ld. at 31) The bipolar disorder causes manic and depressive stages. (ld. at 31-32) At
times plaintiff will not sleep for days while at other times he will sleep for days. (ld.) He
estimates that he has twenty percent bad days, compared to ten percent good days.

(Id. at 33-35) Plaintiff takes a mood stabilizer and medication for anxiety attacks that,
on average, occur approximately three times per week. (Id. at 35-36)
At the time of the hearing, Plaintiff testified that he is able to sit in a chair (with
shifting) for a couple of hours, can stand for six to eight minutes before sitting, can walk
from 100 to 150 feet before taking a break, and can bend his knees and pick something
off the floor (with pain). (ld. at 37-39) Plaintiff takes care of his hygiene, cooks using
the microwave, reads, and goes to church but avoids activities that cause pain. (ld. at
39-40,42)

b. VE's testimony
At the administrative hearing, the VE opined that plaintiff has no transferable
skills from his previous jobs. (ld. at 48-49). The ALJ posed a detailed hypothetical to
the VE to assume
a person who's 47 years of age on his onset date. Has a twelfth grade
education, past relevant work as indicated. He's right handed by nature.
Suffering from various problems. He has degenerative disc disease of the
cervical. The file indicates he might have some mild scoliosis. And
depression with a bipolar component. And he indicates he weighs 227
pounds, so mild to moderate obesity with a 8MI (Le., body mass index) of
35 to 5 [phonetic] .... COPD [controlled by inhalers], GERD [controlled
by medication] .... aU [that] cause him to have moderate pain and

7

discomfort. Some radiation of that pain to the left lower extremity per the
file. And some depression with infrequent mood swings and anxiety
attacks. Somewhat relieved by his medications, however. Without
significant side effects, but he indicates drowsiness and confusion from
one or a combination. And if I find [] that he needs to have simple,
routine, unskilled jobs due to his pain and depression, low stress, low
concentration, low memory. He's able to attend tasks, however, and
complete schedules. SVP (Le., specific vocational preparation) 2 jobs or
less . . . . And if I find that he has some mild or moderate ability to
perform his ADL's (Le., activities of daily living) and his social ability, and
to maintain his concentration, persistence, and pace. No episodes of
decompensation . . . . And jobs that would have little interaction with the
public, coworkers, or supervisors. And if I find he can lift 10 pounds
frequently, 20 on occasion. Stand for 30 minutes, sit for 30 minutes
consistently on an alternative basis during an eight-hour day, five days a
week. That he'd have to avoid heights and hazardous machinery,
temperature and humidity extremes, vibrations, and no prolonged
climbing, balancing, and stooping. And I mean by that no more than once
or twice an hour if needed. And jobs that would allow him to avoid
repetitive neck turning due to his cervical problem. And would be mildly
limited in push and pull and grip in that left upper extremity. And due to
his COPD avoid odors, gases, fumes, dust, and like substances. But with
his limitations seems to be able to do light work activities. s Would there
be jobs you can give me with those limitations in significant numbers in
the national economy?
(Id. at 49-51) The VE responded that jobs available included a lig ht unskilled office
helper (DOT 372.667-010), a light unskilled security clerk (DOT 372.667-010), and a
light unskilled information clerk (DOT 237.367-028). (Id. at 51) The VE explained that
the Dictionary of Occupational Titles ("DOT') does not specify a sit-stand option, but

Slight work is defined in the Social Security Regulation as follows: (b) Light work
involves lifting no more than twenty pounds at a time with frequent lifting or carrying of
objects weighing up to ten pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of arm or leg controls.
To be considered capable of performing a full or wide range of light work, you must
have the ability to do substantially all of these activities. If someone can do light work,
we determine that he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20
C.F.R. § 404.1567(b).

8

opined that, based upon the jobs as described in the DOT, flexibility in the performance
of the jobs would exist. (Id.) The VE further opined that plaintiff would be unable to
perform his past work with the limitations described. (Id. at 52)

3. The ALJ's Findings
Based on the factual evidence and the testimony of plaintiff and the VE, the ALJ
determined that plaintiff had not been under any type of disability within the meaning of
the Act from January 20, 2006 through the date of his decision. The ALJ's findings are
summarized as follows: 6
1. The claimant met the insured status requirements of the Act through
March 31, 2010.
2. The claimant has not engaged in substantial gainful activity since
January 20,2006, the alleged onset date (20 C.F.R. § 404.1571 et seq.
and § 404.971 et seq.).
3. The claimant has the following severe impairments: cervical and
lumbar spondylosis, cervical facet syndrome, and bipolar disorder (20
C.F.R. § 404.1521 et seq. and § 416.921 et seq.).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1525,
404.1526,416.925 and 416.926).
5. The claimant has the residual functional capacity to perform light work
as that term is defined in 20 C.F.R. §§ 404.1567(b) and 416.976(b).
6. The claimant is unable to perform any past relevant work (20 C.F.R. §§
404.1565 and 416.965).
7. The claimant was bom on August 16,1958 and was 47 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date. During the pendency of his application, the claimant

6The ALJ's rationale, which was interspersed throughout the findings, is omitted
from this recitation.

9

turned 50 years of age, which is defined as an individual closely
approaching advanced age (20 C.F.R. §§ 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to
communicate in English (20 C.F.R. §§ 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 transferrable job skills (See SSR 82-41 and 20 C.F.R. Part
404, Subpart P, Appendix 2).
10. 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. §§ 404.1569, 404.1569a, 416.969, and 416.969a).
11. The claimant has not been under a disability, as defined by the Act,
from January 20, 2006 through December 19, 2008, the date of the
decision (20 C.F.R. §§ 404.1520(g) and 416.962(g».
(D.1. 22, Tr. 74-87)

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. Cff. 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
10

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 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." Anderson v. Uberty 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." See Id. at 250-51 (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
11

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 bene'fit 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 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 a remand to the [Commissioner] for
rehearing." Podedwomy 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 )(0), "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. Yuckeri, 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)(1)(A),

12

1382(c)(a)(3). 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 claimant is engaged in any substantial
gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(1), 416.920(a)(4) (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). If a claimant's impairment, either singly or in
13

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 his past relevant work, step five requires the
Commissioner to determine whether the claimant's impairments preclude him 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]." Id. 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.

14

B. Whether ALJ's Decision is Supported by Substantial Evidence
On December 19, 2008, the ALJ found that plaintiff had not been under any type
of disability within the meaning of the Act from January 20, 2006, through the date of
his decision. The ALJ concluded that, despite plaintiff's severe impairments (cervical
and lumbar spondylosis, cervical facet syndrome, and a bipolar disorder), he retained a
RFC to perform a limited range of light work, he retained a RFC to lift up to ten pounds
frequently and up to twenty pounds on occasion, and to sit, stand, and/or walk for the
duration of an eight-hour workday, but that he must alternately sit and stand/walk at
about thirty minute intervals. The ALJ determined that, due to his cervical and lumbar
impairments, plaintiff cannot perform activities requiring repetitive neck turning and is
limited to the occasional use of his left arm for tasks such as reaching, handling,
fingering, and feeling. In addition, because of his COPD, the ALJ determined that
plaintiff must avoid climbing to or working at heights or with hazardous/vibrating
machinery and cannot work in environments with extreme temperatures or humidity or
where odors, dusts, gases, fumes, or other respiratory irritants are present. Further,
based upon his mental capacity for work, the ALJ limited plaintiff to simple, unskilled,
non-production pace work, with a limitation to not more than occasional contact with
supervisors, co-workers, and/or the general public. After considering the VE's
testimony, the ALJ concluded that plaintiff could not perform his past work, but could
perform a significant number of other jobs in the national economy, including office
helper, security clerk, and information clerk.
Plaintiff seeks remand for a new hearing or an award of benefits. He contends
that he was disabled from January 20,2006 until December 19,2008 because: (1) he

15

was an individual closely approaching advanced age on the established disability dates;
(2) an RFC from Dr. Cagampan, a treating and examining physician, was timely entered
into evidence but not considered; and (3) he was later found disabled following a
January 1,2009 hearing with the same record as considered in the instant case. (0.1.
18, 29) Defendant contends that substantial evidence supports the decision that
plaintiff was not disabled under the Act. (0.1. 32)

1. Medical opinions; improvement of condition
Plaintiff alleges that the ALJ erred in giving greater weight to the December 18,
2006 opinion of Dr. Goldsmith, without giving weight to Dr. Borek's June 7,2007
opinion. An ALJ is free to choose one medical opinion over another where the ALJ
considers all of the evidence and gives some reason for discounting the evidence he
rejects. See Diaz v. Commissioner of Soc. Sec., 577 F.3d 500, 505-06 (3d Cir. 2009);

Plummer, 186 F.3d at 429 ("An ALJ ... may afford a treating physician's opinion more
or less weight depending upon the extent to which supporting explanations are
provided."). In this case, the ALJ detailed his reasons for affording significant weight to
the assessment of Dr. Goldsmith and for discounting the assessment of Dr. Borek. In
addition, the ALJ made reference to plaintiff's "temporary" exacerbation of symptoms.
U[C]hanged symptoms, signs and laboratory findings are the only relevant indicia
of medical improvement under the regUlations." Rice v. Chafer, 86 F.3d 1,2 (1 st Cir.
996) (citing 20 C.F.R. § 404.1594(b)(1) & (7), (f){3»; see also Wahwassuck v. Asfrue,
2008 WL 818262, at *4-5 (D. Idaho Mar. 24, 2008) (Umedical improvement standard
requires that there be medical evidence demonstrating an improvement in symptoms,
signs or laboratory findings").
16

After considering the opinions of Drs. Goldsmith and Borek and the evidence of
record, the ALJ concluded that Dr. Goldsmith's opinion was more consistent with the
overall evidence of record than Dr. Borek's opinion. The ALJ explained that Dr. Borek's
opinion highlighted a short-term exacerbation of plaintiff's symptoms and that, after Dr.
rendered his opinion, plaintiff exhibited normal gait and objective strength findings. The
ALJ referred to electrodiagnostic studies performed in December 2007 that showed no
evidence of carpal tunnel syndrome, peripheral neuropathy or cervical radiculopathy
affecting the left upper extremity. (D.1. 22, Tr. 84,426-27) The ALJ also referred to
plaintiff's subjective statement in May 2008 that, although he continued to have pain, he
was "doing better," that facet joint nerve ablation reduced pain by about thirty percent,
and that plaintiff had lost weight. (/d. at 84, 406)
Finally, the ALJ opined that since June 2007, subsequent exams discerned
plaintiff to walk with a normal gait and to manifest a full range of motion in his shoulder,
elbows, wrists, and hands. (/d. at 84) However, in May 2008, plaintiff exhibited an
antalgic gait,? not a normal gait, and slowed speed. (Id. at 406) At that time, he rated
his pain as eight on a scale of one to ten and continued to take the pain medications
Oxycodone and Percocet four times per day. (/d. at 405) When plaintiff was examined
in May 2008, the musculoskeletal examination revealed "cervical spine with dec[reased]
[range of motion] and decreased mobility of spine with walking and forward bendingl
nexion, extension, lateral flexion. Negative radicular stretch signs." (/d. at 406) As

7A limp in which a phase of the gait is shortened on the injured side to alleviate
the pain experienced when bearing weight on that side. The American Heritage
Stedman's Medical Dictionary 49 (2d ed. 2004).

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discussed by the ALJ, examinations of plaintiff in 2006 and 2007 typically revealed a
limited range of motion in the cervical spine. (Id. at 77) In addition, the ALJ's findings
discuss that the follow-up MRI of the lumbar spine taken in April 2008 revealed scoliosis
convex to the left in the mid-lumbar spine and significant end-plate changes and facet
discs at multiple levels in the lumbar spine; findings that generally have remained
unchanged since 2004. (Id. at 77,403)
Upon a review of the record as a whole, the undersigned concludes that the
ALJ's finding that plaintiffs exacerbation of symptoms around the time of Dr. Borek's
report was temporary is not supported by substantial evidence. The subjective medical
evidence indicates that plaintiffs condition either remained static or worsened. Further,
while the ALJ provided a basis for his assignment of weight to the opinions of Drs.
Goldsmith and Borek, as discussed, his reasoning is not supported by substantial
evidence.

2. Mental health opinion
Plaintiff alleges that the ALJ overlooked the opinion of Dr. McGraw. To the
contrary, the ALJ specifically discussed and evaluated Dr. McGraw's opinion and
afforded it significant weight.

3. Age
Plaintiff turned fifty during the pendency of the application and he mentions this
fact in his motion and supporting brief. While not clear, it appears that he believes the
ALJ erred in the application of age categories as defined by 20 C.F.R. § 404.1563 and

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§ 416.963. When plaintiff first sought DIB, he was defined as a younger individual but,
during the pendency of his application, he turned fifty years of age and, therefore,
became a "person closely approaching advanced age" category.
When making a determination, the Social Security Administration will use the age
category that applies to an individual during the period for which disability must be
determined. It is unclear in reviewing the ALJ's decision whether he considered
plaintiff's change in status from a younger individual to an individual closely approaching
advanced age. While the age category is referenced in his findings, the ALJ made no
mention of plaintiff as an individual closely approaching advanced age when he posed
his hypothetical question to the ALJ.

4. Dr. Cagampan's report
Plaintiff argues that Dr. Cagampan's report, dated August 20, 2009, was not
considered, yet it was later relied upon in a subsequent disability filing wherein plaintiff
was awarded disability benefits. The report was not before the ALJ when he denied
plaintiff benefits. Plaintiff submitted the report upon review of the ALJ's December 19,
2008 decision denying him benefits. The Appeals Council "looked" at Dr. Cagampan's
report but did not consider it. The Appeals Council stated, U[t]his new information is
about a later time. Therefore, it does not affect the decision about whether you were
disabled beginning on or before December 19, 2008." (0.1.22, at 2)
When a claimant submits evidence after the ALJ's decision, that evidence cannot
be used to challenge the ALJ's decision on the basis of substantial evidence. See
Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001). This court, however, may order a
sentence six remand based upon evidence submitted after the ALJ's decision, but only if
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the evidence satisfies three prongs: 1) the evidence is new; 2) the evidence is material;
and 3) there was good cause why it was not previously presented to the ALJ. Matthews,
239 F.3d at 593.
Here, plaintiff does not meet the required prongs. While the evidence is new, it is
not material to plaintiff's claim for benefits from January 20, 2006 to December 19, 2008.
The report, dated August 20, 2009, speaks to a time after the disability period in
question. U[A]n implicit materiality requirement is that the new evidence relate to the time
period for which benefits were denied, and that it not concern evidence of a later­
acquired disability or of the subsequent deterioration of the previously non-disabling
condition." Szubak v. Secretary of Health and Human Servs., 745 F.2d 831,833 (3d Cir.
1984); See also Nieves v. Commissioner of Soc. Sec., 198 F. App'x 256,260, n.3 (3d

Cir. 2006) (unreported) ("Our determination [that the ALJ's decision in 2001 was based
on substantial evidence] is in no way swayed by the fact that in October of 2003 an ALJ
determined that the petitioner was disabled. As per 42 U.S.C. § 405(g), our review is
limited to the evidence in the record at the time of the 2001 decision of the ALJ and we
are therefore not required, nor able, to consider this subsequent ALJ ruling when
rendering our decision."); Bruni v. Astrue, 773 F. Supp. 2d 460, 473-74 (D. Del. 2011)
("The fact that [a] subsequent application was successful does not itself meet the new
evidence standard articulated in Szubak. Hence, the court sees no basis to remand
pursuant to the sixth sentence of 42 U.S.C. § 405(g)").
Dr. Cagampan's report is not material to the question of whether plaintiff was
disabled on or before the ALJ's December 19, 2008 decision denying benefits. Plaintiff

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has failed to provide a basis for a sentence six remand. Moreover, the subsequent
award of benefits does not establish an entitlement to benefits in the instant case.

5. Consultative examination
Plaintiff claims that error occurred because he was not physically evaluated by a
third-party Social Security physician. The record reflects that plaintiff underwent a
mental examination by Dr. McGraw.
The applicable regulations allow, but do not require, an ALJ to seek the opinions of
a medical expert. See 20 C.F.R. §§ 404.1527(f)(2)(iii) and 416.927(f)(2)(iii). Accordingly,
a decision regarding whether to order a consultative examination or a medical advisor
rests in the sound discretion of the ALJ. See Bonanno v. Commissioner of Soc. Sec.,
2009 WL 82694, at *2 (3d Cir. Jan. 4,2009) (The regulations provide that the ALJ "may,"
but is not required to, consult medical experts. 20 C.F.R. 416.927(f)(2)(iii)).
Here, the ALJ discharged his duty and properly exercised his discretion by
reviewing the evidence of record with regard to plaintiffs physical impairments. The
evidence of record included hospital records, treatment notes and assessments from
state agency physicians. The court finds that plaintiffs medical history was adequately
developed on the record, there was no need for a physical conSUltative examination, and
no error by the ALJ.

6. Hypothetical question
As the Third Circuit explained in Podedwomy v. Harris, 745 F.2d 210, 218 (3d Cir.
1984):
Testimony of vocational experts in disability determination proceedings
typically includes, and often centers upon, one or more hypothetical
questions posed by the ALJ to the vocational expert. The ALJ will normally
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ask the expert whether, given certain assumptions about the claimant's
physical capability, the claimant can perform certain types of jobs, and the
extent to which such jobs exist in the national economy. While the ALJ may
proffer a variety of assumptions to the expert, the vocational expert's
testimony concerning a claimant's ability to perform alternative employment
may only be considered for purposes of determining disability if the
question accurately portrays the claimant's individual physical and mental
impairments.
Reliance on an expert's answer to a hypothetical question will not constitute
substantial evidence unless all credibly established limitations are included; remand is
required where the hypothetical question is deficient. Anderson v. Astrue, 825 F. Supp.
2d 487, 498 (D. Del. 2011) (citations omitted). "A hypothetical question must reflect all of
a claimant's impairments that are supported by the record; otherwise the question is
deficient and the expert's answer to it cannot be considered substantial evidence."

Chrupcala v. Heckler, 829 F .2d 1269, 1276 (3d Cir. 1987).
Third Circuit case law and governing regulations have provided guidance on
whether a limitation is "credibly established:"
[First, Ilimitations that are medically supported and otherwise
uncontroverted in the record, but that are not included in the hypothetical
question posed to the expert, preclude reliance on the expert's response.
[Second, and rlelatedly, the ALJ may not substitute his or her own expertise
to refute such record evidence. [Third, Ilimitations that are medically
supported but are also contradicted by other evidence in the record mayor
may not be found credible.The ALJ can choose to credit portions of the
existing evidence but cannot reject evidence for no reason or for the wrong
reason. Finally, limitations that are asserted by the claimant but that lack
objective medical support may possibly be considered nonetheless credible.
In that respect the ALJ can reject such a limitation if there is conflicting
evidence in the record, but should not reject a claimed symptom that is
related to an impairment and is consistent with the medical record simply
because there is no objective medical evidence to support it.

Rutherford, 399 F.3d at 554.

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The final responsibility for determining a claimant's RFC is reserved to the
Commissioner. Breen v. Commissioner of Soc. Sec., 2012 WL 5503774, at *3 (3d Cir.
Nov. 14,2012) (citing 20 C.F.R. §§ 404.1546(c), 416.946(c». At bar, the ALJ determined
that plaintiff had the physical RFC: (1) to lift up to ten pounds frequently and up to twenty
pounds on occasion; (2) to sit, stand, and/or walk for the duration of an eight-hour
workday, but he must alternatively sit and stand/walk at about thirty minute intervals; (3)
due to cervical and lumbar impairments, plaintiff cannot perform activities requiring
repetitive neck turning and he is limited to the occasional use of his left upper extremity
for tasks such as reaching, handling, fingering, and feel; (4) must avoid climbing to or
working at heights or with hazardous/vibrating machinery; and (5) due to otherwise
controlled COPO, cannot work in environs with extreme temperatures or humidity or
where odors, dusts, gases, fumes, or other respiratory irritants are present. In addition,
the ALJ found that plaintiff had the mental RFC for simple, unskilled, non"'Production pace
work, but that he is limited to not more than occasional contact with supervisors, co­
workers, and/or the general public. (0.1. 22, Tr. 85)
The hypothetical posed to the VE did not include the same RFC findings that the
ALJ made at step five. The hypothetical does not include reference to plaintiffs lumbar
condition, his status as an individual closely approaching advanced age, or the non­
production pace limitation. Given the failure to include these factors, and the Third
Circuit's mandate to include everything in a hypothetical based on the relevant physical
and mental RFC's, remand is appropriate.

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V. CONCLUSION
For the reasons stated, the court remands the case for further proceedings
consistent with this memorandum opinion. Plaintiffs motion for summary judgment will
be granted and defendant's motion for summary judgment will be denied.
An appropriate order shall issue.

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