Jones v. Astrue

Filing 17

MEMORANDUM. Signed by Judge Gregory M. Sleet on 7/20/2015. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HOWARD T. JONES,
Plaintiff,

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

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Civil Action No. 12-579-GMS

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MEMORANDUM
I.

INTRODUCTION
On May 8, 2012, the plaintiff, Howard T. Jones ("Jones"), filed this action against the

Defendant Michael J. Astrue, Commissioner of Social Security (the "Commissioner"), 1 for
review of the final decision denying Jones disability insurance benefits ("DIB") under Title II of
the Social Security Act. (D.I. 2; D.I. 10 at 19.) Jones brought this civil action under 42 U.S.C.
§405(g) as incorporated by42 U.S.C. §1383(c)(3). (Id.)
Jones applied for disability and DIB on March 9, 2006. (D.I. 10 at 198.) Jones' claims
were denied initially and on reconsideration. (Id. at 136--41, 145-49.) Subsequently, Jones filed
a request for a hearing before an Administrative Law Judge ("ALJ"). (Id. at 150-51.) The
claimant appeared and testified before ALJ, Judith Showalter, on May 15, 2008. (Id. at 44-48.)
On June 26, 2008, the ALJ issued an unfavorable decision against Jones. (Id. at 124-25, 128.)
Jones filed an appeal to the Appeals Council. (Id. at 132.) The Appeals Council remanded on
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. CIV. 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.

1

September 9, 2009, for further assessment of Dr. Kamali' s opinion, assessment of the February
2006 MRis of lumbar and cervical spine, and assessment of the severity of Jones' degenerative
disc disease. (Id. at 132-33.) A second hearing was held before ALJ Showalter on May 6, 2010.
(Id. at 89-115.) On July 10, 2010, the ALJ issued a second opinion denying disability benefits to

Jones. (Id. at 19-43.) The Appeals Council denied review of the ALJ's second opinion and the
ALJ's determination became final.

(Id. at 2-8.) See C.F.R. §§404.955, 404.981 (2012);

Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001).

Before the court are the parties' cross-motions for summary judgment. (D.1. 12; D.I. 13.)
For the reasons that follow, the court will remand-in-part and deny-in-part Jones' motion for
summary judgement. The court will affirm-in-part and remand-in-part the decisions of the ALJ
and the Appeals Council. The court's reasoning follows.

II.

BACKGROUND
Howard T. Jones was born September 2, 1956. (D.I. 10 at 49.) He has a high school

education. (Id. at 50.) Jones' previous employment was a network analyst and an ATM machine
servicer. (Id. at 50, 52.) Jones is claiming· disability from March 1, 2004 to December 31, 2008.
(Id. at 227, 233.)

1.

Medical History
a. Objective Medical Evidence

Jones has a history of neck and low back pain dating back to 1992. (D.I. 10 at 370.)
Jones experienced a sharp snapping in his lower back while working in his yard in 1992. (Id.)
Jones was involved in multiple minor motor vehicle accidents which re-injured his back in 1996,
1999, 2004, and 2005. (Id.) During the relevant time period Jones began seeing Dr. Stephen
Levine, D.C., chiropractor, on May 4, 2005, for neck and back pain. (Id. at 332-37.) At this

2

primary visit, Dr. Levine ordered x-rays of Jones' neck and back. (Id.) In Dr. Levine's review
of the x-rays, he found Jones was suffering from degenerative disc disease in the cervical and
lumbar spines. (Id. at 318-19.) Additionally, he found disc narrowing and spondylosis at L3L5. (Id.)

From these findings Dr. Levine treated Jones for three months with chiropractic

manipulation and manual therapy. (Id. at 338-69.)
In December 2005, Jones began treatment with Kenneth DeGroot, D.C. for daily neck

and low back pain. (Id. at 387-94.) During physical examination, DeGroot found that Jones was
experiencing distortion and muscle spasms in the cervical, thoracic, and lumbar spine, as well as
limited range of motion in the cervical and lumbar spine. (Id. at 389.)
In February 2006, Jones began seeing an orthopedic specialist, William Barrish, M.D.,

for neck and back pain. (Id. at 396-97.) At that time Jones was experiencing muscle spasms, as
well as, neck and back pain which radiated into his right leg causing him difficulty sleeping. (Id.
at 397.) During Jones' physical examination, Dr. Barrish found mild tenderness to palpation at
the cervical and lumbar spine, decreased sensation in the right S 1 distribution, and positive
straight leg raising on the right. (Id.) From these results Dr. Barrish ordered an MRI of the
cervical and lumbar spine. (Id. at 396.)
An MRI of the cervical and lumbar spine was completed on February 6, 2006. (Id. at

314--15 .) The lumbar spine presented multi-level degenerative disc disease, including severe
central canal stenosis and bilateral neural foraminal stenosis at L4-L5 with large disc protrusion
and significant facet arthropathy, as well as central and paramedian disc bulges at L3-L4 and
L5-S 1, causing severe right-sided neural foraminal stenosis, particularly at the L5-S 1 level.
(Id.) The cervical spine presented multi-level degenerative disc disease, with disc osteophyte

3

complex and spondylitic changes, most marked from the C4-C5 to the C6-C7 level, with mild
central canal stenosis at that level. (Id. at 316-1 7.)
An EMG/nerve conduction study was taken on February 13, 2006, and was consistent
with acute right L5-Sl radiculopathy.

(Id. at 466.)

Dr. Barrish recommended further

chiropractic treatment, pain medications, and steroid injections for pain reduction. (Id. at 396.)
Jones did not want to take prescription pain medications or receive steroid injections. (Id.)
Additionally, Dr. Barrish referred Jones to see pain management specialist Mohammad Mehdi,
M.D. (Id. at 398-99.)
Jones had follow-up appointments with Dr. Barrish on June 15, 2006, July 20, 2006,
April 17, 2007, and August 13, 2008. (Id. at 458-60, 498.) During these appointments Dr.
Barrish found restricted cervical and lumbar range of motion and positive straight leg raising.
(Id.)

At Jones' most recent appointment on January 7, 2009, the physical exam remained

unchanged. (Id. at 517.)
In August 2006, Jones began seeing Dr. Mehdi for his neck and back pain. (Id. at 398-

99.) Dr. Mehdi confirmed Jones was suffering from spinal stenosis, cervical spondylosis, and
radicular pain on the right side. (Id. at 399.) Dr. Mehdi, also recommended anti-inflammatories
and steroid injections for pain management. (Id.) Jones was not interested in pursuing steroid
injections. (Id.) Dr. Mehdi recommended Jones return for steroid injections if the pain became
unbearable and during the insured time period Jones did not return for injections. 2 (Id.)
Jones underwent a course of twenty physical therapy sessions between May 15, 2006,
and July 17, 2006.

(Id. at 427-40.)

Physical therapy notes document improvement with

treatment. (Id.) On July 25, 2007, Jones began treatment with orthopedic specialist, Mohammed

2

Jones did eventually pursue steroid injections on December 29, 2009 and received significant pain relief
as a result. (Id. at 544-50.)

4

Kamali, M.D. (Id. at 445-48.) On physical examination Dr. Kamali found mild tenderness to
palpation on the right side of the neck and back with tightness, muscle spasms, and decreased
range of motion in the neck.

(Id. at 446.)

The straight leg raising tests were positive and

numbness was found in the right foot. (Id.) Additionally, Dr. Kamali reviewed Jones' MRis of
the lumbar and cervical spines. (Id.) He found severe central canal stenosis at L4-L5, large disc
protrusion and significant facet arthropathy, resulting in severe central canal and bilateral neural
foraminal stenosis in the lumbar spine.

Additionally, he found cervical spondylolytic

(Id.)

changes C4-C5 to C6-C7, resulting in significant mass effect on the ventral sub arachnoid space.
Further, there was a mild foraminal central canal stenosis at C6-C7 in the cervical spine MRI.
(Id.) Dr. Kamali confirmed Dr. Barrish's findings in the EMG study from February 2006 which

revealed the presence of right LS-Sl radiculopathy with acute features. (Id. at 447.) Dr. Kamali
determined Jones was suffering from a sprain of the neck and low back, with spinal canal
stenosis of the cervical and lumbar spines and protruded discs. (Id.)
On October 3, 2006, Beshara Helou, M.D. evaluated Jones for State Disability
Determination Services. (Id. at 400-02.) Dr. Helou performed a consultative physical exam.
(Id.)

She determined Jones suffered from myofascial back pain and mild degenerative disc

disease with no neurological implications. (Id.) Dr. Helou opined that Jones was experiencing a
mild form of degenerative disc disease and no neurological implications were present. (Id.)
On December 20, 2006, Jones saw his primary care physician, Julie Holman, M.D. (Id.
at 442.) Jones suffers from Type II Diabetes. (Id.) Dr. Holman prescribed Jones medication to
control the diabetes. (Id.) During this exam Jones complained of neck pain, fatigue, and tingling
in his feet, right arm and right leg.

(Id. at 420.)

5

Dr. Holman noted Jones did not appear

uncomfortable during the exam and that he was able to bend over and completely remove his
boot unassisted. (Id. at 442.)
After Jones' last insured date, Dr. Barrish referred Jones to Ronald Sabbagh, M.D. for
further evaluation. (Id. at 517.) Dr. Sabbagh ordered new MRI studies. (Id. at 518.) The
January 2009 MRI of Jones' cervical spine showed mild central spinal canal stenosis at C4--C5,
C5-C6, and C6-C7 and a small central disc protrusion at C4--C5. (Id.) The MRI of the lumbar
spine showed a medium-sized central L4--L5 disc extrusion with moderate stenosis involving
both L5 nerve roots and a small broad-based right paracentral, posterolateral, and foraminal L5S 1 disc protrusion. (Id. at 519.) Dr. Sabbagh reviewed the MRis with Jones, on January 29,
2009, and recommended surgery to deal with the pain associated with the spinal issues. (Id. at
566.) Jones is considering surgical options for pain relief. (Id.)

b. Opinion Evidence
During the insured period Jones was seen by two treating physicians Dr. Barrish and Dr.
Kamali-both orthopedic specialists.
Dr. Barrish opined that Jones was suffering from degenerative disc disease in the cervical
and lumbar spine. (Id. at 397.) He recommended Jones undergo further chiropractic treatment
and steroid injections. (Id. at 396.) Dr. Barrish completed Spinal Impairment Questionnaires on
January 19, 2007, and November 19, 2009. (Id. at 412-18, 520-26.) On these questionnaires he
opined that Jones was able to sit for eight-hours in an eight-hour work day, stand/walk for one
hour in an eight-hour workday, with a sit/stand option, could occasionally lift/carry up to ten
pounds, was limited in his ability to push, pull, and should avoid kneeling, bending, and
stooping. (Id.) Dr. Barrish further opined that Jones would be able to sit for eight hours "with

6

frequent position changes," more specifically that he needed to get up and move around every
thirty minutes, during the eight-hour workday, for five minutes. (Id.)
Dr. Kamali found Jones' chiropractic, medication, and physical therapy treatments had
not caused significant improvement in Jones' condition. (Id. at 447.) He opined Jones was
unable to tolerate "low stress work" and was "unable to do full time competitive work and has
been unable to do so since early 2005." (Id. at 446-48, 475-76.) Dr. Kamali's clinical findings
included limited range of motion of the cervical and lumbar spine, tenderness, muscle spasm,
right facet sensory loss in the lumbar spine, hypoactive reflexes, mild lumbar muscle weakness,
and numbness in the right foot.

(Id. at 446.)

These findings were based on physical

examinations and review of the MRis and EMG study taken by Dr. Barrish. Jones saw Dr.
Kamali approximately once a week for two years. (Id. at 471.) Dr. Kamali further opined that
Jones' pain would "interfere with attention and concentration" making work very difficult for
Jones to perform. (Id. at 475-76.) Dr. Kamali completed a Spinal Impairment Questionnaire on
July 25, 2007, where he opined that lifting, bending, standing, and sitting for too long caused
Jones pain. (Id.) In Dr. Kamali's opinion, Jones could sit for three hours, stand/walk for two
hours, with a sit/stand option, occasionally lift/carry up to five pounds, and perform no pushing,
pulling, kneeling, bending, or stooping. (Id. at 474-75.) He further opined that Jones would
need to get up three to four times a day for approximately fifteen minutes each time. (Id.)
In October 2006, Dr. Helou filed a report for the State Disability Determination Services

based on her examination of Jones. (Id. at 402-408.) Dr. Helou observed that Jones did not
have difficulty getting on and off the exam table, was able to perform heel-toe walking, and
tandem walking. (Id. at 401.) She further observed that Jones' motor and sensory abilities as
well as his range of motion in his joints were normal. (Id. at 404.)

7

In January 2010, Dr. Joseph Schanno examined Jones for Delaware Disability Services
and completed a Medical Source Statement. (Id. at 527-31.) Dr. Schanno opined that Jones, in
an eight-hour workday, could lift up to ten pounds frequently and fifty pounds occasionally,
carry up to ten pounds frequently and twenty pounds occasionally, sit for three hours, stand for
two hours, and walk for two hours, sit/stand/walk for one hour at a time, could frequently use his
hands for activities except pushing/pulling, could occasionally use his feet for operation of foot
controls, could occasionally perform postural activities, except no climbing of ropes, ladders, or
scaffolds, and avoid unprotected heights and temperature extremes. (Id. at 535-36.)
A.

ALJ Hearing II Testimony
1.

Jones' Testimony

On May 6, 2010, Jones testified at a second ALJ hearing in front of ALJ Showalter. (Id.
at 91.) At this hearing the ALJ first questioned Jones as to his previous work experience. (Id. at
94.) Jones testified that he worked at Loomis Armored in 2003 and 2004 as an ATM servicer,
worked at Serphia Optical Networks in 2001 as a network analyst, worked at Broad Bridge
Securities Processing ADP from 1992 to 2000 as a network analyst, and worked at the Bank of
New York from 1989 to 1992 as a network analyst. (Id. at 94-95.)
Jones testified that he is suffering from Type II Diabetes, high blood pressure and
cholesterol, and chronic neck and low back pain.

(Id. at 96.)

Jones further testified to

experiencing pain in his legs and feet from diabetic neuropathy. (Id.) Jones testified that over
the years the pain he has been experiencing has gotten worse and even though the reason he
stopped working at Loomis Armored was due to a contract loss, he stated that the work was
becoming too difficult for him to complete. (Id. at 96-97.)

8

Jones testified that he has been receiving chiropractic treatment for about fourteen years
to deal with the neck and low back pain. (Id. at 98.) When questioned about the potential for
surgery, Jones testified that Dr. Mehdi and Dr. Sabbagh suggested he undergo surgery, but that
they could not guarantee its success. (Id.) Jones testified that he is considering surgery because
the pain has increased. (Id.) Jones testified that he is constantly experiencing pain throughout
the day. (Id. at 99.) Jones testified that "on a good morning" his pain level was at an eight, but
"on a bad morning" his level was at a ten. (Id.) Jones testified that he uses a combination of ice
and heat treatments to relieve pain. (Id. at 100.) He further testified that he has tried pain pills,
but they do not work for him. (Id.) Additionally, Jones stated that sitting or standing for long
periods of time would make the pain worse. (Id.)
Jones testified that it is a struggle for him to accomplish even basic daily activities like
doing household chores, driving, walking up and down stairs, and helping his wife. (Id. at 10203.) Additionally, Jones stated that receives assistance from his wife to get dressed and she has
been assisting him since after the 2005 car accident. (Id. at

10~05.)

Jones testified that he does

not participate in any active hobbies and does not attend social events because of his pain. (Id. at
105-06.) Additionally, Jones testified that he sometimes fixes his computer to keep himself
occupied. (Id. at 105.)
Jones testified that in an eight-hour workday he would be able to stand for an hour total
in ten minute increments, sit for ten to fifteen minutes before having to stand up, lift/carry up to
ten pounds, and walk about twenty steps. (Id. at 108-09.)

9

2.

The Vocational Expert's Testimony

On May 6, 2010, Vocational Expert ("VE") Christina Beatty-Cody testified at Jones
second administrative hearing. 3

(Id. at 110.)

The VE testified that two jobs were being

considered for Jones-a machine servicer and a network analyst. (Id. at 111.) The VE testified
that Jones did not have transferrable skills to perform a machine servicer position at a lower level
of exertion because the skills are too remote and the industry is constantly evolving. (Id.)
The ALJ asked the VE to consider a hypothetical individual who was forty-seven with a
high school education who can do work at a light level of exertion, but cannot climb ladders,
ropes, or scaffolds. (Id. at 111-12.) Additionally, the ALJ noted that the hypothetical individual
should avoid extreme temperatures, hazards and vibration, and pushing/pulling with lower
extremities. (Id.) The ALJ further stated that Jones' past work as a network analyst was a
sedentary position. (Id. at 112.) The ALJ questioned the VE as to whether the hypothetical
claimant could do the previous sedentary position. (Id.) The VE testified that the hypothetical
claimant could do the previous sedentary position. (Id.)
The ALJ added to the hypothetical that the claimant could only participate in limited
sedentary exertion that required a sit/stand option at will. (Id. at 112-13.) The ALJ asked
whether that person could perform the previous work as stated. (Id. at 113.) The VE testified
that the hypothetical claimant could perform the previous position at the limited sedentary level.
(Id.)

The VE was also questioned by Jones' attorney. The relevant portion of the exchange
follows:
Q:

3

Referring to spinal questionnaire at 15F and 30F. The hypothetical
claimant could sit for a total of eight hours in an eight-hour
workday. While sitting they would have to get up every 30 minutes

Ms. Beatty-Cody was not the VE at Jones' first administrative hearing. (D.I. 10 at 110.)

10

A:
Q:
A:
Q:
A:
Q:
A:

and move around five minutes at a time. This person could
frequently lift up to 5 pounds and occasionally lift up to 10 pounds,
but never more than that. He could also carry the same amount.
Would that person be able to do Mr. Jones' past work?
I have a question regarding the limitation of sitting
Yes.
When the individual is having to get up every five minutes to move
around, is that person off task?
Yes
Then that would preclude any type of employment.
And why is that?
If a person is off task for that amount of time, every five minutes,
their productivity is most certainly going to be reduced by more
than 15 to 20 percent, which would preclude any type of job.

(Id. at 113-14.)

3.

The ALJ's Findings

The ALJ conducted the standard five-step procedure to determine whether Jones was
disabled. Her findings may be summarized as follows:
1. Plaintiff last met the insured status requirements of the Social Security Act on December
31,2008.
2. Plaintiff has not engaged in substantial gainful activity during the period from his alleged
onset date of March 1, 2004, through his date last insured of December 31, 2008 (20
C.F.R. §404.1571 et seq.).
3. Plaintiff, through the date last insured, had the following severe impairments: Cervical
and lumbar spine degenerative disc disease (20 C.F.R. §404.1520(c)).
4. Plaintiff, through the date last insured, did 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. §404.15209d), 404.1525 and 404.1526).
5. Plaintiff, through the date last insured, had the residual capacity to perform sedentary
work as defined in 20 C.F.R. §404.1567(a), with occasional postural activities, except no
climbing of ladders or scaffolds, had to avoid concentrated exposure to temperature
extremes, hazards, and vibrations, avoid working overhead and pushing/pulling with the
lower extremities, and required a sit/stand option.
6. Plaintiff, through the date last insured, was capable of performing past relevant work as a
network analyst. This work did not require the performance of work-related activities
precluded by the claimant's residual functional capacity (20 C.F.R. §404.1565).
7. Plaintiff was not under a disability, as defined in the Social Security Act, at any time
from March 1, 2004, the alleged onset date, through December 31, 2008, the date last
insured (20 C.F.R. §404.1520(t)).
11

(D.I. 10 at 22-36.)

III.

STANDARD OF REVIEW

A district court's review of an ALJ's decision is limited to whether that decision is
supported by substantial evidence. Jesurum v. Sec '.Y of the US. Dep 't of Health & Human
Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.

1988)); see also 42 U.S.C. § 405(g).

In determining whether a decision is supported by

substantial evidence, this court may not undertake a de nova review of the ALJ's decision and
may not re-weigh the evidence of record. See Monsour Med. Ctr. V. Heckler, 806 F .2d 1185,
1190 (3d Cir. 1986). Even if this court would have decided this case differently, the ALJ's
decision must be affirmed if supported by substantial evidence. See Id. at 1190-91. If the
decision is supported by substantial evidence, then the court is bound by the factual findings
therein.

Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).

"The findings of the

Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive." 42
U.S.C. § 405(g); 5 U.S.C. § 706(E); see Monsour Med. -Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d
Cir. 1986). Substantial evidence has been defined as less than a preponderance, but "more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971)). Furthermore, "the
evidence must be sufficient to support the conclusion of a reasonable person after considering the
evidentiary record as a whole, not just the evidence that is consistent with the agency's finding."
Id.

Thus, "a single piece of evidence will not satisfy the substantiality test if the
[Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence."
Morales v. Apfel, 225 F .3d 310, 317 (3d Cir. 2000).

12

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. Id 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." Smith v. Califano, 637 F.2d 968, 970 (3d Cir.
1981).
IV.

DISCUSSION
Jones' motion for summary judgment identifies two reasons why he believes the ALJ's

decision is not supported by substantial evidence. First, Jones argues "ALJ Showalter failed to
apply the proper legal standard when evaluating Dr. Kamali's opinion by not affording it the
proper deference to which a treatment provider's opinion is entitled." (D.I. 12-1 at 8.) Second,
Jones argues "ALJ Showalter did not properly credit the vocational expert's testimony that a
hypothetical claimant with Jones' limitations would not be able to do any job because the
amount of time necessarily spent off-task would preclude any meaningful employment." (Id at
13.)
A.

The ALJ's Credibility Determination of Dr. Kamali's Opinion

The ALJ is the factfinder and credibility determinations are the ALJ's job alone. Pysher
v. Apfel, 2001 WL 793305, at *2 (E.D. Pa. July 11, 2001) (citing Van Horn v. Schweiker, 717

F.2d 871, 873 (3d Cir. 1983)). The district court may only disturb the determinations of the ALJ
if they are not supported by substantial evidence. Id The ALJ is entitled to reject evidence, but
must explain why that evidence has been rejected. Cotter v. Harris, 642 F.2d 700, 705-06 (3d.
Cir. 1981).

13

Jones correctly points out that deference is often given to the opinions of the claimants'
treating physician.

(D.I. 12-1 at 9.)

A treating source's medical opinion will be given

"controlling weight" if an ALJ finds: 1) the opinion is well supported by medically acceptable
clinical and laboratory diagnostic techniques; and 2) the opinion is not inconsistent with the other
substantial evidence in the record. 20 C.F .R. §404.1527(d)(2); Social Security Regulation
("SSR") 96-2p. Even if a treating source's medical opinion does not meet the test for controlling
weight, it is entitled to great weight. Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001).
The ALJ will determine the weight to place in a non-controlling opinion by the following
factors: 1) the examining relationship; 2) the length, nature, and extent of the treatment
relationship; 3) the supportability of the opinion; 4) the consistency of the opinion; 5)
specialization; and 6) other factors which tend to support or contradict an opinion. 20 C.F.R.
§404.1527(d). Regardless of the weight given to any opinion, the ALJ's determination must
always provide "good reasons" for the weight given to a treating source's opinion. Id The ALJ
can only "reject a treating physician's opinion if it is based on 'contradictory medical evidence.'"
Dougherty v. Astrue, 715 F. Supp. 2d 572, 581 (D. Del. 2010) (citing Morales v. Apfel, 225 F.3d

310, 317 (3d Cir. 2000)). Some treating source opinions, including opinions of "disability" or an
"inability to work,'' are not controlling or even considered medical opinions.

20 C.F .R.

§404.1527(e). This is because such opinions are administrative findings on issues reserved for
the Commissioner. Id
Jones argues that the ALJ' s decision was not supported by substantial evidence because
the ALJ did not afford proper deference to Dr. Kamali's opinion.

(D.I. 12-1 at 8.) The

Commissioner asserts that substantial evidence supports the ALJ's determination regarding Dr.
Kamali's credibility. (D.I. 14 at 15-16.)

14

In the present circumstances, there is substantial evidence to support the ALJ's decision
to not give controlling weight to Dr. Kamali's opinion. The ALJ opined that "while recognizing
that Dr. Kamali was a treating physician during the pertinent period under review, the
undersigned does not give controlling weight, as it is not supported by medical signs and
laboratory findings and is inconsistent with the detailed, contemporaneous treatment records."
(D.I. 10 at 34.) The ALJ reviewed the medical evidence and opinions of two treating orthopedic
physicians, Drs. Kamali and Barrish, and two consultative physicians, Drs. Helou and Schanno.
The ALJ determined, after a thorough review, that Dr. Barrish's opinion should be given
controlling weight instead of Dr. Kamali because Dr. Barrish's opinion was supported by clinical
and laboratory findings, in addition to being supported by the record as a whole. (Id. at 33-35.)
Further, Dr. Barrish's opinion was supported by the opinions of Drs. Helou and Schanno. (Id)
The court concludes that the level of disability described by Dr. Kamali is not fully
supported by the objective medical evidence presented and the record as a whole. (Id. at 34.)
Dr. Kamali's conclusory statement that Jones "is unable to do full time competitive work and has
been unable to do so since early 2005" is not supported by the record as a whole or the presented
medical evidence. (Id) See 20 C.F.R. §404.1527(e). Furthermore, Dr. Kamali's statements
regarding Jones' inability to work are not controlling or valid medical opinion because the
inability to work is an administrative finding reserved for the Commissioner's judgment. See 20
C.F.R. §404.1527(e). The ALJ gave a thorough and detailed reasoning concerning her decision
to provide controlling weight to Dr. Barrish's opinion rather than Dr. Kamali's. (D.1. 10 at 3335.) Thus the court concludes the ALJ's determination is supported by substantial evidence.

B. The ALJ's Credibility Determination of the VE's Testimony

15

Vocational expert testimony at an administrative hearing does not constitute substantial
evidence of jobs an applicant could perform unless the testimony about the hypothetical
applicant incorporates all of the applicant's limitations. See Ramirez v. Barnhart, 372 F.3d 546,
552 (3d Cir. 2004); see also Burns v. Barnhart, 312 F.2d 113, 123 (3d Cir. 2002).

In

incorporating all of the applicant's limitations the ALJ must consider the specific sit/stand
limitations accompanying the sedentary work level. See SSR 96-9p.
Jones argues the ALJ did not properly credit the VE's testimony that a hypothetical
claimant with Jones' specific sit/stand limitations would not be able to do any job because the
amount of time spent off-task would preclude any meaningful employment. (D.I. 12-1 at 13.)
The Commissioner argues the ALJ was not required to consider the VE' s testimony because the
ALJ' s review ended at step four of the disability determination when it determined Jones could
perform past relevant work as a network analyst. 4 (D.I. 14 at 19-20.)
The ALJ and the VE considered two possible positions in the national economy for
Jones-network analyst and machine servicer. (D.I. 10 at 111.) The VE testified that Jones did
not have the transferrable skills to be a machine servicer because the skills were too remote and
the field is constantly evolving. (Id)

Therefore, the only applicable position was Jones'

previous position-a network analyst. (Id) The ALJ' s decision gave controlling weight to Dr.
Barrish's opinion as to Jones' limitations.

(Id at 34.)

Dr. Barrish opined, in two spinal

questionnaires, that Jones needed to get up and move around every thirty minutes for five
4

The 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. 2010). In the
determination, the ALJ must consider: (I) 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 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." Id. (citing 20 C.F.R. §404.1520(a)(4)(i)-(v)). The claimant
bears the burden of proof on steps one through four. Id. The Commissioner bears the burden of proof at step five.
Id.

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minutes. (Id. at 412-18, 520-26.) In the ALJ's questioning of the VE she did not specify the
sit/stand limitations Jones required.

(Id. at 112.)

Jones' counsel, on cross examination,

narrowed the sit/stand option to that defined by Dr. Barrish and the following exchange took
place:

Q:

A:
Q:
A:
Q:
A:
Q:
A:

Referring to spinal questionnaire at 15F and 30F. The hypothetical
claimant could sit for a total of eight hours in an eight-hour
workday. While sitting they would have to get up every 30 minutes
and move around five minutes at a time. This person could
frequently lift up to 5 pounds and occasionally lift up to 10 pounds,
but never more than that. He could also carry the same amount.
Would that person be able to do Mr. Jones' past work?
I have a question regarding the limitation of sitting
Yes.
When the individual is having to get up every five minutes to move
around, is that person off task?
Yes
Then that would preclude any type of employment.
And why is that?
If a person is off task for that amount of time, every five minutes,
their productivity is most certainly going to be reduced by more
than 15 to 20 percent, which would preclude any type of job.

(D.I. 10 at 113-14.)
The VE testified that the job recommended for Jones was a sedentary network analyst
position.

(Id. at 112.)

The court finds that the VE's testimony regarding Jones' ability to

perform the sedentary network analyst position with the specific sit/stand limitations should be
considered in the ALJ's disability determination because a network analyst position is Jones'
past relevant work. Jones' ability to perform past relevant work compared to available positions
in the national economy changes the analysis required for determining whether Jones is disabled.
See 20 C.F.R. §404.1520(a)(4)(iv)-(v).

Jones argues the hypothetical presented by the ALJ

failed to take into account the extent of the sit/stand option that an individual such as Jones
would need, and, therefore is not inclusive of all of his limitations. (D.I. 12-1 at 15.) The

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excerpt of the ALJ' s testimony highlighted above seems to suggest that based on the narrowed
sit/stand limitation Jones would not be able to perform a sedentary network analyst position due
to a reduction in productivity. From a basic reading of this testimony it seems the VE misspoke
or had some confusion as to the specific sit/stand limitation as described by Jones' attorney.
Clarification is needed as to the VE's understanding of the sit/stand limitation. This testimony is
a crucial part of the disability decision-making process because the only job being considered in
this hearing is Jones' past relevant work as a network analyst. If Jones is unable to perform the
network analyst position due to productivity loss then the ALJ inquiry would not end at step
four, as suggested by the Commissioner, and further inquiry would be required as to the jobs in
the national economy Jones could potentially perform.

See 20 C.F.R. §§404.1520(g) and

416.920(g). Additionally, the ALJ is required to incorporate all a claimant's limitations in a
hypothetical. Ramirez, 372 F.3d at 552; see also Burns, 312 F.2d at 123. It appears the ALJ
discredited the VE's testimony as to the narrowing of the sit/stand limitation, but no reason was
given in the ALJ's opinion as to why this testimony was discredited. (D.I. 10 at 36.) Thus, the
court must remand for further clarification on this issue.
CONCLUSION

For the foregoing reasons, Jones' motion for summary judgment is denied-in-part and
remanded-in-part.

Dated: July ?.J, 2015

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