Collick v. Astrue

Filing 24

MEMORANDUM. Signed by Judge Gregory M. Sleet on 10/24/2014. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ANNA MAE COLLICK,
Plaintiff,
v.

MICHAEL J. ASTRUE, 1
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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C.A. No.: 11-347-GMS

MEMORANDUM

I.

INTRODUCTION
On February 20, 2012, plaintiff Anna Mae Collick ("plaintiff') instituted this action

seeking judicial review of the final decision of the Commissioner of the SSA
("defendant") denying her application for disability insurance benefits ("DIB") and
supplemental security income ("SSI") under Titles II and XVI of the Social Security Act
(the "Act"), 42 U.S.C. §§ 401-433, 1381-1383.
Plaintiff first applied for DIB and SSI on May 14, 2007. (D. I. 12 at 99-110.) Her
applications were denied initially and on reconsideration. Subsequently, she timely filed
a request for a hearing before an administrative law judge. (/d. at 60-64, 66-78.) On
June 10, 2008, plaintiff, who was represented by counsel, appeared and testified at a

1

Carolyn W. Colvin became the Commissioner (the "Commissioner'') of the
Social Security Administration (the "SSA") on February 13, 2013, after briefing began.
Although, under FED. R. C1v. P. 25, Carolyn W. Colvin should be substituted for Michael
J. Astrue, pursuant to 42 U.S.C. § 405(g), no further action is necessary to continue this
action.

hearing before ALJ Barbara Powell ("ALJ"). (/d. at 22-55.) On May 28, 2009, the ALJ
issued an adverse decision. (/d. at 6-21.) The Appeals Council subsequently denied
review (id. at 1-3), making the ALJ's adverse decision final. 20 C.F.R. §§ 404.955,
404.981,416.1455,416.1481 (2012); Sims v. Apfel, 530 U.S. 103, 107 (2000);
Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001 ).

In 2010, plaintiff first sought judicial review of the ALJ's decision before this
court, which granted defendant's motion to remand. (D.I. 18 at 1; D.l. 12 at 406.) The
Appeals Council found no basis for changing the ALJ's decision, leading to plaintiff's
present appeal. (D. I. 12 at 406-07.)
Under consideration are the parties' cross-motions for summary judgments. This
court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). For the reasons
set forth below, the court will grant defendant's motion and deny plaintiff's motion.

II.

BACKGROUND
A.

Plaintiff's Medical Records

In support of her DIB and SSI applications, plaintiff submitted medical records
documenting back and leg pain, depression, fatigue, day-time somnolence, and sleep
apnea.

1.

Back and leg problems

On February 2, 2003, plaintiff saw Dr. Arnold B. Glassman, D.O. ("Dr.
Glassman"), who diagnosed an L4-L5 disc herniation, but ruled out left L4-L5
radiculopathy. Although her lumbar spine was normal and she could flex her trunk to
almost 80 degrees, plaintiff complained of back pain and tightness. (D. I. 12 at 230.) In

2

November 2004, Dr. Grossman diagnosed left L4-L5 radiculopathy. (/d. at 227.)
Plaintiff first saw Dr. Khalil F. Gorgui, M.D., her primary care physician ("Dr.
Gorgui"), in March 2007. His notes indicate spinal tenderness on palpation. (/d. at
345.) In May 2008, plaintiff visited Dr. Gorgui for leg cramps. (/d. at 348.) His notes of
her subsequent visits do not document back or leg cramp symptoms. (/d. at 347-49,
403-04.)
From March 2007 to October 2007, plaintiff received treatment from Dr. Richard
J. Sternberg, M.D. ("Dr. Sternberg"). (/d. at 261-75, 295, 297, 300-01.) His initial
clinical examination revealed some limitation in the range of motion and tenderness at
the right sciatic notch. (/d. at 309.) During the March 2007 visit, Dr. Sternberg
recommended that plaintiff refrain from work, with her return to work date "pending."
(/d. at 308.) His subsequent treatment notes document only subjective complaints. (/d.

at 295, 297, 300-01.)
In July 2007, plaintiff began treatment with Dr. Mana Antony, M.D. ("Dr. Antony"),
who reported an antalgic gait, lower lumbar facet tenderness, diminished range of
motion, and positive straight leg raising. (/d. at 282.) His diagnoses were lumbar facet
syndrome and chronic lumbar radiculopathy. (/d.) Dr. Anthony prescribed epidural
steroid injections to relieve back pain, which were administered in July and August
2007. (/d. at 296, 298.)
An MRI of March 3, 2007 revealed mild bulging at L5-S1 and a small broadbased L4-5 disk herniation. (/d. at 251.) The electromyography administered in May
2007 showed all nerve segments to be within normal limits with no lumbar or peripheral

3

nerve compromise. (/d. at 254.)
In her Disability Report of May 2007, plaintiff noted she could walk for eight
hours, stand for seven hours, reach for six hours, handle and grab large objects for five
hours, stoop and kneel for four hours, and type and handle small objects for one hour.
She reported an inability to climb, crawl, or crouch. (/d. at 135.)
In her Function Report of July 2007 (the "Function Report"), she claimed her
back problems affected her ability to lift, carry, stand, walk, sit, climb stairs, bend, kneel,
and use her hands. Plaintiff did not report any effect on her ability to crawl and reach.
(/d. at 152.) She allegedly could walk or stand zero hours and had to change body

position every hour, but she could frequently lift ten pounds and occasionally bend and
reach her arms up and out. (/d. at 153.) She stated she shopped for groceries twice a
month and occasionally for clothing. (/d. at 161.)
On August 28, 2007, K. Sarpolis, M.D., a state agency medical consultant ("Dr.
Sarpolis"), completed a Physical Residual Functional Capacity Assessment form (the
"PRFCA"). Dr. Sarpolis opined that plaintiff had a residual functional capacity
consistent with sedentary work, could frequently lift and carry ten pounds, stand and
walk at least two hours and sit about six hours in an eight-hour workday, and push and
pull without limitation. (/d. at 256.) Dr. Sarpolis also found plaintiff could frequently
balance and occasionally stoop, climb stairs, kneel, crouch, and crawl, but could not
climb ladders or ropes. (/d. at 258.) On November 29, 2007, J. Acuna, M.D., another
state agency medical consultant, affirmed Dr. Sarpolis's findings. (/d. at 275.)
In February 2008, plaintiff was evaluated by orthopedist John J. Greko, M.D.

4

("Dr. Greko"). (/d. at 339-40.) Her complaints included general pain with any range of
motion of lumbar spine, pain on palpation of the lumbar region, the buttocks, and both
hips, and weakness in the hips and legs in a seated position. (/d. at 339.) She
exhibited no difficulty with heel and toe walking, no leg muscle atrophy, and normal
knee and ankle reflexes. (/d.) Dr. Greko advised against a back surgery and
recommended continuation of her pain management regiment. (/d.) There is no
evidence that she sought a second opinion regarding surgery.
The record contains a number of emergency room discharge papers
documenting plaintiff's subjective back pain complaints. (/d. at 234, 238.) She
continued to receive treatment for back pain after the administrative hearing. The
emergency room discharge papers from August 22, 2008 instructed to avoid an
underactive life style and apply heat and ice to relieve back pain. (/d. at 375.) In May
2008, plaintiff again received epidural steroid injections. (/d. at 401 .)

2.

Dysthymia

Plaintiff added a claim for depression to her DIB and SSI applications of October
25, 2007. (/d. at 171.) On November 28, 2007, she clarified that she was not presently
receiving treatment for depression, but had undergone some medical treatment and
counseling for this condition in the past. (/d. at 178.) The SSA report notes she "did
not list any limitations attributable to a mental impairment on her ADL form," and
concludes "[a] severe mental impairment that would cause [plaintiff] any significant
limitations at this time is being ruled out." (/d. at 179.)
In March 2008, she complained to Dr. Gorgui of suffering from post-traumatic

5

stress disorder "for years." (/d. at 347.) He prescribed anti-depressant medications,
Celexa and Elavil, and recommended that she see a psychologist. (/d.) Her second
Disability Report of March 2008 stated she suffered from an on-going depression. (/d.
at 185.)
In January, March, and May 2008, plaintiff completed several forms and selfassessment questionnaires for the Delmarva Counseling Center. (/d. at 319-38.)
Despite her contentions of receiving counseling from Dr. Beatrice H. Hamilton ("Dr.
Hamilton") at the Delmarva Counseling Center (id. at 37), the record does not contain
treatment notes from Dr. Hamilton or any other mental health provider.
In August 2008, following the hearing before the ALJ, plaintiff underwent a
psychological evaluation by Joseph B. Keyes, Ph.D. ("Keyes"). (/d. at 360-70.) He
advised undergoing counseling and taking Celexa and Amitriptyline for depression, but
omitted that she had been abused as a child. (See id. at 360-61.) She reported that
she did not trust others and was irritable. (/d.)
According to Keyes, plaintiff's demeanor, orientation, mental alertness, and
memory were within normal limits, and her speech was clear. (/d. at 364.) His testing
indicated adequate cognitive functioning. (/d.) She had mild limitation in such areas as
carrying out complex instructions, interacting appropriately with the public, supervisors,
and co-workers, and responding to changes in a routine work setting. (/d. at 366-67.)
She had no limitation in understanding, remembering, and carrying out simple
instructions. (/d. at 366.) Her Global Assessment of Functioning ("GAF") was rated at

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60. 2 (/d. at 365.) The results of the Minnesota Multiphasic Personality lnventory-2 were
found invalid because of her extremely inconsistent responses. (/d. at 363-64.) Keyes
diagnoses included dysthymic disorder, alcohol dependence (full remission), and
cocaine dependence (full remission). (/d. at 364.) Plaintiff received a copy of Keyes'
report on or before September 24, 2008. (D.I. 18-2 at 1.)

3.

Sleep apnea and sleep disturbance 3

Plaintiff first complained that her back condition affected her sleep in her
Function Report of July 2007. (D.I. 12 at 156.) During an emergency room visit on
August 22, 2008, her respirations were not labored, and she denied any dizziness,
fatigue, or sleep disturbance. (/d. at 372, 389.) On September 8, 2008, she saw Dr.
Gorgui for cold-like symptoms and complained of shortness of breath and was
diagnosed with an upper respiratory infection. (/d. at 404.) Plaintiff explicitly denied
having breathing problems in her Disability Reports. (/d. at 131.)
On November 21, 2008, almost two months after receiving a copy of Keyes'
post-hearing report, plaintiff represented to the ALJ that she had undergone a sleep

2

The GAF is a scale ranging from zero to one hundred developed for use by
mental health professionals for expressing an adult's psychological, social, and
occupational functions. A GAP score of 61 to 70 indicates an individual only has "some
mild" symptoms or only "some" difficulty in social, occupational, or school functioning
but generally functions "pretty well" and has some meaningful relationships. A score of
51 to 60 indicates mild symptoms or moderate difficulty in social, occupational, or
school functioning. AM. PSYCHIATRIC ASS'N, DIAGNOSTIC & STATISTICAL MANUAL OF
MENTAL DISORDERS-TEXT REVISION 34 {4th ed. 2000).
3
Sleep apnea is a "periodic cessation of respiration associated with hypoxemia
and frequent arousals from sleep." 20 C.F.R. § 404, Subpart P, app. 1. It may be
associated with (1) chronic cor pulmonale disorders and chronic pulmonary
hypertension, (2) day-time somnolence, or (3) disturbances in cognitive function. See
§ 404, Subpart P, app. 1.

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study at the Nanticoke Memorial Hospital on October 20, 2008. (/d. at 396.) In support,
she submitted an unsigned neuropulmonary report on the Nanticoke Memorial Hospital
letterhead that noted diagnoses of obstructive sleep apnea, abnormal multiple sleep
latency, and excessive daytime somnolence and recommended that she undergo a
second sleep study and receive CPAP treatment. (/d. at 397.)

4.

Medications

The record shows that from March 2007 to April 2008, plaintiff was regularly
prescribed Erythromycin, Hydorcodone, Napoxen, Tizanadine, Lyrica, Oxycodon,
Endocet, Amoxicillin, Claritin-D, Omnicef, Cheratussin, Carisoprodol, Azithromycin,
Amitriptylin, and Citalopram. (/d. at 194-96.)

B.

Hearing Testimony
1.

Plaintiff's testimony

On June 10, 2008, plaintiff testified about debilitating back and leg pain, radiating
from her neck to her legs. (/d. at 35.) She claimed that any daily postural exertions
such as bending, stooping, crawling, crouching, and climbing stairs caused pain for the
past three to four years. (/d. at 30.) She could not lift a gallon of milk from the floor or
pull laundry from the dryer. (/d. at 42.) Her back would sometimes "lock up" leading to
emergency room visits. (/d. at 35.)
Plaintiff stated she cooked, regularly cleaned her house, did some laundry and
grocery shopping, occasionally drove, attended church every week, and read. She
handled her everyday grooming without assistance and cared for her grandchildren and
her dog. She also stated that she could only walk eight blocks. (/d. at 32-33.)

8

Plaintiff claimed being depressed, fatigued, anxious, exhausted, isolated, and
unable to sleep at night. (/d. at 34-36.) She believed that her pain and anti-depressant
medications caused fatigue, exhaustion, and day-time somnolence. (/d. at 39.) She
testified that Dr. Hamilton's counseling sessions helped the depression, bi-polar
disorder, anxiety, and post-traumatic stress. (/d. at 37.) She stated that these mental
disorders existed since she was a minor. (/d. at 43-45.)

2.

Unique S. Coles' testimony

Unique S. Coles, plaintiff's daughter ("Coles"), testified that she visited her
mother every day and confirmed her depression and isolation. She further observed
that medications caused plaintiff to be groggy. (/d. at 48-49.)

3.

Vocational expert's testimony

Jan Howard-Reed, an independent vocational expert (the "VE"), testified that
plaintiff could not return to her previous jobs as a cook, a deboner, or a box packer. (/d.
at 50-51.) The ALJ posed two hypotheticals to the VE. The first one adequately
reflected plaintiff's credibly alleged limitations. (/d. at 51.) The second hypothetical
incorporated all of plaintiff's subjective complaints. The VE stated that 400 jobs locally
and between 70,000 and 90,000 jobs nationally existed for a person as described in the
first hypothetical. She further testified that there were no jobs in the national economy
for a person as described in the second hypothetical. (/d. at 51-53.)

C.

The ALJ's Findings

The ALJ followed the standard five-step procedure to determine whether plaintiff
was disabled. Her findings may be summarized as follows:

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1.
2.

3.

4.

5.

6.
7.

8.
9.

10.

11.

Plaintiff meets the insured status requirements of the Act through
December 21, 2009.
Plaintiff has not engaged in substantial gainful activity since February
7, 2007, the alleged onset date (20 C.F.R. §§ 404.1571 et seq., and
416.971 et seq.).
Plaintiff has the following severe impairments: degenerative disc
disease and a mood disorder-dysthemia (20 C.F.R. §§ 404.1520(c)
and 416.920(c)). A sleep disorder is a non-severe impairment.
Plaintiff does not have an impairment or a combination of impairments
that meets or medically equals one of the listed impairments in 20
C.F.R. Part 404, Subpart P, app. 1 (20 C.F.R. §§ 404.1525, 404.1526
and 416.926).
Plaintiff has the residual functional capacity ("RFC") to perform
sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and
416.967(a), lifting up to ten pounds, standing or walking two hours a
day, and sitting six hours, except that she can only occasionally
balance, climb, stoop, kneel, crouch, or crawl, and she is limited to
unskilled work due to pain, depression, and effects of medication.
Plaintiff is unable to perform any past relevant work (20 C.F.R.
§§ 404.1565 and 416.965).
Plaintiff was born on January 28, 1964 and was 43 years old, which
is defined as a younger individual age 18-44, on the alleged disability
onset date (20 C.F.R. §§ 404.1563 and 416.963).
Plaintiff has at least a high school education and is able to
communicate in English (20 C.F.R. §§ 404.1564 and 416.964).
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 plaintiff is not 9isabled, whether or not she has
transferable job skills (see S.S.R. 82-41 and C.F.R. Part 404, Subpart
P, Appendix 2).
Considering plaintiff's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in
the national economy that she can perform (20 C.F.R. §§ 404.1569,
404.1569a, 416.969, and 416.969a).
Plaintiff has not been under a disability, as defined in the Act, from
February 7, 2007 through the date of the ALJ's decision (20 C.F.R.
§§ 404.1520(g) and 416.920(g)).

(/d. at 11-21.)

Ill.

STANDARD OF REVIEW

A.

Motion for Summary Judgment

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A court may grant a motion for summary judgement if it "determine[s] that 'there
is no genuine issue as to any material fact' and that the movant is entitled to judgment
as a matter of law." See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005)
(quoting FED. R. C1v. P. 56( c)). A dispute is genuine if "the evidence is such that a
reasonable jury could return a verdict for the non-moving party." See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material only if it might affect
the outcome of the suit under the applicable rule of law. /d.
In its determination, the court must review the record as a whole, "draw[ing] all
reasonable inferences in favor of the nonmoving party, [but] it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000). The threshold inquiry is whether 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." Liberty Lobby, 477 U.S. at 250; see

also Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (same).
The standard by which the court decides a summary judgment motion does not
change when the parties file cross-motions. Appelmans v. City of Philadelphia, 826
F.2d 214, 216 (3d Cir. 1987). Cross-motions for summary judgment
are no more than a claim by each side that it alone is entitled to summary
judgment, and the making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist.

Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
When ruling on cross-motions for summary judgment, the court must consider

11

the motions independently and view the evidence on each motion in the light most
favorable to the party opposing the motion. See Williams v. Philadelphia Hous. Auth.,
834 F.Supp. 794, 797 (E.D. Pa. 1993), aff'd, 27 F.3d 560 (3d Cir. 1994). "The filing of
cross-motions for summary judgment does not require the court to grant summary
judgment for either party." Krupa v. New Castle Cnty., 732 F. Supp. 497, 505 (D. Del.
1990).

B.

Review of the ALJ's Findings

District courts exercise plenary review over all questions of law in DIB and SSI
appeals. Allen v. Barnhart, 417 F.3d 396, 398 (3d Cir. 2005); see also Bordes v.
Comm'r of Soc. Sec., 235 F. App'x 853, 857 (3d Cir. 2007) ("plenary review over the
legal issue of whether the SSA's conduct violated fundamental fairness"). A district
court's review of an ALJ's factual findings is limited: it must uphold the ALJ's factual
findings if they are supported by "substantial evidence." 42 U.S.C. § 405(g).
Substantial evidence "does not mean a large or considerable amount of
evidence .... " Pierce v. Underwood, 487 U.S. 552, 565 (1988). Rather, it is defined
as '"more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate.'" Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971 )). The Third Circuit has
explained that 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 ... or if it really constitutes
not evidence but mere conclusion." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.

12

1983).
The substantial evidence standard does not allow the court to re-weigh the
evidence on the record. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91
(3d Cir. 1986) (deferential review of factual findings). The substantial evidence
standard also limits review to the factual evidence actually presented to the ALJ. See
Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001) ("No statutory provision authorizes
the district court to make a decision on the substantial evidence standard based on the
new and material evidence never presented to the ALJ."). Even if the court would
decide the case differently, it must defer to the ALJ and affirm so long as the ALJ's
decision is supported by substantial evidence. Monsour Med. Ctr., 806 F.2d at 119091.
The ALJ's decision cannot be affirmed on a ground other than that actually relied
upon in making the decision. See Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S.
194, 196 (1947); Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.O. Pa. 2011 ). In
Chenery, the U.S. Supreme Court explained that "a reviewing court, in dealing with a
determination or judgment which an administrative agency alone is authorized to make,
must judge the propriety of such action solely by the grounds invoked by the agency. If
those grounds are inadequate or improper, the court is powerless to affirm the
administrative action by substituting what it considers to be a more adequate or proper
basis." Chenery, 332 U.S. at 196; see also Fargnoli v. Massanari, 247 F.3d 34, 44 n.7
(3d Cir. 2001) (the Chenery standard applies in the SSA disability context).

IV.

DISCUSSION

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A.

Due Process

Plaintiff asserts that the ALJ was openly hostile and biased against her during
the administrative hearing and mishandled Keyes's post-hearing report, thereby
depriving her of due process rights.

1.

Waiver of bias

Plaintiff argues she was denied a fair hearing because of bias, purportedly
evident from the ALJ's conduct toward her and her counsel. (D. I. 18 at 16.) Because
of the alleged bias, plaintiff demands remand for a new administrative hearing before a
different ALJ. (/d. at 16.)
Due process requires that administrative hearings be full and fair. Ventura, 55
F.3d at 902 (citing Richardson, 402 U.S. at 400-01 ). The right to an unbiased AlJ is
essential to a fair hearing, and bias may constitute grounds for reversal of a decision
adverse to the claimant. Hummel v. Heckler, 736 F.2d 91, 93,95 (3d Cir. 1984).
A claimant objecting to an ALJ presiding over a hearing on the grounds of bias
must notify that ALJ at the earliest opportunity to allow review of the recusal request.
20 C.F.R. §§ 404.940; 416.1440. If the recusal motion is denied, the claimant may,
after the administrative hearing, "present objections to the Appeals Council as reasons
why the hearing decision should be revised or a new hearing held before another
[ALJ]." §§ 404.940; 416.1440.
The term "the earliest opportunity'' means as soon as practicable after the
claimant becomes aware of the ALJ's bias. Hummel, 736 F.2d at 94. The decision in
Hummel is on point. There, the Third Circuit found that the claimant properly asserted

14

bias before the district court because she learned of the ALJ's potential prejudice after
the issuance of an adverse decision. /d. at 94-95. The court explained, however, that if
the claimant had "been aware of the facts giving rise to her claim of bias" at the time of
the administrative hearing, she would have waived that claim under 20 C.F.R.
§416.1440. ld.at94.
Here, waiver precludes plaintiff's bias claim under§§ 404.940 and 416.1440 for
failing to object at her earliest opportunity. The alleged bias occurred at the
administrative hearing on June 10, 2008, almost a year before the adverse decision
was rendered and fourteen months before plaintiff first raised this claim before the
Appeals Council on August 17, 2009. (0.1. 18-1 at 2.) Plaintiff's understanding of her
post-hearing rights is evident from her objection to the ·admission of Keyes' findings into
the record and her request to cross-examine him, made three and a half months before
the adverse decision. (/d. at 3.) Following the remand by this court in 2010, the
Appeals Council invited plaintiff to submit additional evidence or contentions and found
no basis for modifying the ALJ's decision. (0.1. 12 at 406-07.) For these reasons,
remand of this matter to a different ALJ is not warranted.

2.

The handling of the post-hearing evidence

Plaintiff argues for remand because the ALJ violated the SSA's HALLEX4
4

HALLEX defines procedures for implementing the SSA's policy and provides
guidelines for processing and adjudicating claims at the administrative hearing, Appeals
Council, and other levels. Bordes v. Comm'r of Soc. Sec., 235 F. App'x 853, 857 n.7
(3d Cir. 2007). Under HALLEX, the ALJ must proffer all post-hearing evidence to the
claimant. HALLEX § I-2-7-30(A) (S.S.A. Sept. 2, 2005). The notice must "[g]ive the
claimant a time limit to ... exercise his or her rights with respect to requesting a
supplemental hearing and the opportunity to cross-examine" the authors of any posthearing reports "if it is determined by the ALJ that such questioning is needed to inquire
15

regulations by failing to rule on plaintiff's request to cross-examine Keyes and to notify
her of her right to a supplementary hearing. (D.I. 18 at 13.) Defendant counters that
the HALLEX provisions lack the force of law. (D. I. 22 at 20.)
The Third Circuit does not recognize HALLEX as an independent source of the
ALJ's legal duties. See Bordes, 235 F. App'x at 859 ("HALLEX provisions ... lack the
force of law and create no judicially-enforceable rights."). However, "ALJs have a duty
to develop a full and fair record in social security cases" according to the C.F.R.
standards. See Ventura, 55 F.3d at 902. This duty, inter alia, forbids ALJs from
"rely[ing] on post-hearing reports without giving the claimant an opportunity to crossexamine the authors of such reports, when such cross-examination may be required for
a full and true disclosure of the facts." Wallace v. Bowen, 869 F.2d 187, 191-92 (3d
Cir. 1989); see also 20 C.F.R. § 404.916. 5
Here, the ALJ's handling of the post-hearing evidence was not improper. When

fully into the issues." § 1-2-7-30(8) (emphasis added).
5
In the pertinent part, the 20 C.F.R. § 404.916(f) ("Opportunity to review and
comment on evidence obtained or developed by us after the hearing") states:
If, for any reason, additional evidence is obtained or developed by us after
your disability hearing, and all evidence taken together can be used to
support a reconsidered determination that is unfavorable to you with regard
to the medical factors of eligibility, we will notify you, in writing, and give you
an opportunity to review and comment on the additional evidence. You will
be given 10 days from the date you receive our notice to submit your
comments (in writing or, in appropriate cases, by telephone), unless there is
good cause for granting you additional time .... Your comments will be
considered before a reconsidered determination is issued. If you believe that
it is necessary to have further opportunity for a hearing with respect to the
additional evidence, a supplementary hearing may be scheduled at your
request. Otherwise, we will ask for your written comments on the additional
evidence, or, in appropriate cases, for your telephone comments.
20 C.F.R. § 404.916(f).
16

the ALJ forwarded Keyes' post-hearing report to plaintiff's counsel on September 22,
2008, she advised that plaintiff had a right to submit written comments concerning the
post-hearing evidence, a written statement of the applicable facts and law in light of that
evidence, any additional records for consideration, and written questions directed to
Keyes. (0.1. 18-3 at 1.) The ALJ also adequately notified plaintiff of her right to request
a supplementary hearing and to cross-examine Keyes. The ALJ specifically advised
she would assume that plaintiff intended not "to submit any written statements or
records or to orally question" Keyes if plaintiff or her counsel did not respond within ten
days. (/d.)
In her two-paragraph long response on September 24, 2008, plaintiff objected to
the· admission of Keyes' report solely because "his clinical exam of [plaintiff] was
extremely abbreviated and did not adequately explore her mental health history." (0.1.
18-2 at 1.) Plaintiff failed to advance a legal argument or identify medical reports
undermining Keyes' report. She did not proffer additional medical records of mental or
cognitive impairments, nor did she submit a list of proposed questions-the strongest
indicator that cross-examination of Keyes may be necessary. In contrast, the ALJ
sufficiently addressed plaintiff's objection to the admission of Keyes' report in her
assessment of its credibility and weight. (0.1. 12 at 18.)6 Additional medical records,
forwarded by plaintiff's counsel to the ALJ on November 21, 2008, did not contradict
Keyes' report because they advised that plaintiff was diagnosed with sleep apnea and
was receiving treatment for herniated disc. (/d. at 396-405.)

6

See infra Part IV.B.

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For these reasons, the court finds no violations of plaintiff's due process rights
and denies her request to remand this matter to a different ALJ.

B.

The ALJ's Credibility Determinations

Plaintiff argues the ALJ's credibility findings were unjustified. (D. I. 18 at 13.)
Defendant asserts that substantial evidence supports the ALJ's credibility
determinations. (0.1. 22 at 13.)
Credibility determinations are the province of an ALJ; a district court may disturb
them on review only if they are not supported by substantial evidence. Pysher v. Apfel,
C.A. No. 00-1309, 2001 WL 793305, at *2 (E. D. Pa. July 11, 2001) (citing Van Hom v.
Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)). When the record contains conflicting
evidence, the ALJ "is not only entitled but required to choose" between such evidence.
Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981 ). An ALJ "'cannot reject evidence for
no reason or for the wrong reason,"' Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)
(quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)), and must explain why
the evidence has been rejected. Cotter, 642 F.2d at 706-07.
The ALJ may reject allegations of subjective symptoms that lack support of
objective medical evidence. See Bailey v. Comm'r of Soc. Sec., 354 F. App'x 613, 618
(3d Cir. 2009). The ALJ may reject a medical opinion of a treating physician "only on
the basis of contradictory medical evidence, but may afford [it] more or less weight
depending upon the extent to which supporting explanations are provided." Plummer,
186 F.3d at 429. A treating physician's opinion may not be rejected because of the
ALJ's own credibility judgments, speculation, or lay opinion. See, e.g., id.
Here, substantial evidence supports the ALJ's credibility determinations.
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Plaintiff's subjective testimony was not entirely credible because it was inconsistent. As
the ALJ noted, plaintiff's self-assessment of back and lower extremities pain changed
several times: she reported an ability to stand or walk for "zero" hours in 2007, but
reported walking several blocks for exercise in 2008. (D.I. 12 at 17; see also id. at 34.)
The ALJ also noted that plaintiff failed the Minnesota Multiphasic Personality lnventory2 test used to measure her psychopathology and personality functioning because she
"tended to answer items true regardless of context." (/d. at 18-19; see also id. at 364.)
In addition, plaintiff denied ever suffering from alcoholism or using alcohol and
recreational drugs on her Delmarva Counseling Center self-assessment forms in
January and March 2008, but admitted cocaine and alcohol dependence to Keyes. (/d.
at 18; see also id. at 322, 324.)
Inconsistencies alone in plaintiff's testimony did not lead to its rejection by the
ALJ. Rather, the ALJ assigned weight to plaintiff's testimony proportional to the
objective medical evidence in the record. The ALJ accepted plaintiff's account of back·
pain, difficulties bending forward and lifting, except when contradicted by the PRFCA
and MRI results. (/d. at 15-17.) The ALJ credited her testimony of fatigue and daytime
somnolence due to pain and anxiety medications. (/d. at 17.) The ALJ, however,
discounted plaintiff's representations of debilitating depression because the record
showed only minimal medical treatment for this condition. (/d. at 17-18.)
The ALJ also adequately explored the conflicting objective evidence in the
record. When assessing plaintiff's back and leg pain, she accepted the PRFCA
showing plaintiff's ability to perform sedentary work and rejected Dr. Sternberg's
conclusory and ambiguous note that plaintiff was unable to work. (/d. at 16-17.) As the
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ALJ explained, Dr. Sternberg did not describe any specific functional limitations and
failed to note work restrictions in his later treatment records. (/d. at 16.) Analyzing
plaintiffs dysthymia claim, the ALJ distinguished between pre-hearing counseling
records and Keyes' diagnosis and explained that Keyes' report was credible "to the
extent it is consistent with [plaintiffs] residual capacity for unskilled work." (/d. at 19.)
The ALJ emphasized that "[t]he extreme symptoms and history of abuse detailed ... to
her psychologist five months before [Keyes'] examination are not reflected in his report."
(/d.)
For these reasons, the court finds the ALJ's credibility findings were based on
substantial evidence.

C.

The ALJ's Disability Determination

Plaintiff submits that the ALJ erred when she found no disability despite severe
back pain, determined sleep apnea to be a non-severe impairment, failed to consider
sleep apnea in combination with other impairments and ignored the VE's answers to
the second hypothetical. (D. I. 18 at 13-15; D. I. 23 at 1.) Defendant counters that the
ALJ's evaluation conformed with the regulations. (D.I. 22 at 13.) The parties agree that
plaintiff has not engaged in substantial gainful activity since February of 2007 and could
not return to her past work. (D.I. 12 at 11, 19.)
Under the Act, an ALJ must follow the SSA's five-step sequential evaluation
process to determine whether a claimant suffers from a physical or mental disability.
Fraser v. Astrue, 373 F. App'x 222, 224 (3d Cir. 201 0). In her determination, the "ALJ

must review: (1) the claimant's current work activity; (2) the medical severity and
duration of the claimant's impairments; (3) whether the claimant's impairments meet or
20

equal the requirements of an impairment listed in the regulations; (4) whether the
claimant has the residual functional capacity to return to past relevant work; and (5) if
the claimant cannot return to past relevant work, whether he or she can 'make an
adjustment to other work' in the national economy." /d. (citing 20 C.F.R.

§ 404.1520(a)(4)(i)-(v)). "The claimant bears the burden of proof on steps one through
four." /d. The Commissioner bears the burden of proof at step five. /d.

1.

Step two

To meet the requirement of "severe impairment," the claimant must show that
the "impairment or [a] combination of impairments ... significantly limits [her] physical
or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c); 416.920(c).
When assessing severity of a combination of impairments, the ALJ must "consider the
combined effect of all of [the claimant's] impairments without regard to whether any
such impairment, if considered separately, would be of sufficient severity." 20 C.F.R.

§§ 404.1523; 416.923. Even if the ALJ finds an impairment to be non-severe at step
two, she is still required to analyze the effect of such non-severe impairment throughout
the disability determination process. Kobulnicky v. Astrue, C.A. No. 11-1349, 2013 WL
1290955, at *7 (W.O. Pa. Mar. 27, 2013); Brown v. Astrue, C.A. No. 09-3737, 2010 WL
4455825, at *4 (E. D. Pa. Nov. 4, 201 0).
Here, the ALJ correctly found that plaintiffs degenerative disc disease was
severe. The ALJ based her findings on plaintiff's MRI results showing a small central
protrusion and mild bulging, pain management treatment for lumbar facet syndrome
and chronic lumber radiculopathy, and emergency room visits for treatment of back
pain with injections of Dilaudid. (0.1. 12 at 11.)
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The ALJ also correctly found plaintiff's obstructive sleep apnea to be a nonsevere impairment. She explained that a single unsigned sleep study recommending
further observations could not support a contrary finding, absent evidence that plaintiff's
condition "impose[d] any significant restrictions on [her] ability to perform basic work
activities." (/d.) Plaintiff erroneously argues that the ALJ failed to consider the effects
of sleep apnea, such as drowsiness, day-time somnolence, fatigue, and disruption of
sleep patterns throughout the disability determination process. Based on the medical
records and the testimony of plaintiff and Coles, the ALJ concluded that plaintiff's sleep
apnea symptoms were caused by medications and addressed those symptoms when
evaluating the cognitive and mental aspects of plaintiff's dysthymia. (/d. at 17, 12-14.)
The ALJ found that plaintiff suffered from severe dysthymia. (/d. at 11-12.) The
ALJ's finding is supported by substantial evidence, including Dr. Gorgui's prescriptions
of anti-depressant and anxiety medications in March 2008, counseling records
indicating ·a prior history of depression and treatment for this condition, and selfreported symptoms of anxiety, depression, mood swings, hyperactive and manic states,
panic attacks, phobias, paranoia, delusion, anger, post-traumatic stress, sleep pattern
disturbance, loss of appetite, fatigue, low energy, isolation, and frequent tearfulness.
(/d. at 12.)

2.

Step three

At step three, an ALJ determines whether the claimant's severe impairment or a
combination of impairments meets or medically equals the impairments listed in 20
C.F.R. § 404, Subpart P, app. 1. 20 C.F.R. § 404.1520(d). An impairment matches a
listing if it meets all of the specified medical criteria; an impairment that manifests only
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some of those criteria, no matter how severe, does not qualify. Williams v. Sullivan,
970 F.2d 1178, 1186 (3d Cir. 1992).
Here, the ALJ thoroughly compared plaintiff's impairments with those listed in 20
C.F.R. § 404, Subpart P, app. 1. To meet or equal Listing 1.04 ("Disorders of the
Spine"), a degenerative disc disease must result "in compromise of a nerve root or
spinal cord ... "with evidence of (1) nerve root compression, (2) spinal arachnoiditis, or
(3) lumbar spinal stenosis resulting in inability to ambulate effectively. 20 C.F.R. § 404,
Subpart P, app. 1. The ALJ correctly found that plaintiff's degenerative disc disease did
not match Listing 1.04 in the absence of lumbar root compromise, nerve root
compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in inability to
ambulate effectively. (D. I. 12 at 12.) The ALJ also noted in her decision that treatment
for plaintiff's back complaints was conservative, and no surgery was recommended.
(/d. at 17.)
Similarly, plaintiff's dysthymia did not meet or equal the listings. Dysthymia is
evaluated under Listing 12 ("Mental Disorders"). To satisfy Listing 12, mental
impairments must result in two of the following: marked restriction of activities of daily
living; marked difficulties in social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of decompression. 20 C.F.R.

§ 404, Subpart P, app. 1. The ALJ correctly concluded that plaintiff experienced only
mild difficulties in her daily activities because she did not require assistance with
personal hygiene, cooked simple meals, shopped for groceries twice a month, and
attended church weekly. (D.I. 12 at 12; see a/so id. at 26, 32-33.) Plaintiffs difficulties
in social functioning were mild because she interacted with her family and community;
23

her isolation was due to back pain. (/d. at 13.) Plaintiff had no marked cognitive
problems: Keyes' testing revealed that her working memory was in the borderline range
but her organizational and visual-spacial skills were in the normal range, and plaintiff
reported an ability to read and watch TV. (/d.; see a/so id. at 32-34, 363-34.) Lastly,
plaintiff never experienced episodes of decompression or decompensation. (/d. at 13.)

3.

Step five

At step five, an ALJ determines if there is a significant number of jobs in the
national economy for individuals with the claimant's age, education, work experience,
and RFC. 20 C.F.R. §§ 404.1560; 416.960. To ascertain the claimant's RFC, the ALJ
must pose a hypothetical "accurately convey[ing]" all of the claimant's "credibly
established limitations" to an independent vocational expert. Rutherford v. Barnhart,
399 F.3d 546, 554 (3d Cir. 2005) (emphasis omitted).
Here, the ALJ correctly determined that plaintiff is limited to unskilled sedentary
work. At the alleged disability onset date of 2007, plaintiff was forty-three years old,
making her a younger individual. (D. I. 12 at 19.) Her education was beyond the high
school level and included two and a half years of college. (/d.; see a/so id. at 26.)
Plaintiff, however, could not return to her prior employment due to her physical and
mental limitations. (/d. at 14.) Again, contrary to plaintiff's allegations, the ALJ
considered all of plaintiff's credible limitations, including not only pain and depression,
but also the effects of medication. (/d.)
Testimony of the VE confirmed that plaintiff could perform sedentary work in
such positions as assembler, order clerk, and inspector. (/d. at 20; see a/so id. at 5052.) The VE verified a significant number of jobs fitting plaintiff's RFC, that is, 400 local
24

jobs and between 70,000 to 90,000 positions nationally for each occupation. (/d. at 20.)
The ALJ did not err when she disregarded the VE's answers to her second hypothetical.
The second hypothetical encompassed all of plaintiff's subjective complaints, including
those unsupported or inconsistent with the record. The first hypothetical, however,
accurately reflected plaintiff's limitations supported by the record.
Accordingly, substantial evidence supports the ALJ's assessment of plaintiff's
restrictions resulting in the proper finding that plaintiff is not disabled and not entitled to
DIB and SSI.

V.

CONCLUSION
For the foregoing reasons, plaintiff's motion for summary judgment is denied and

defendant's motion for summary judgement is granted.

Dated October~· 2014

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