Malcom v. Astrue

Filing 15

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 9/25/2013. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

ALBERT W. MALCOM,

)
)

Plaintiff,

)
)
) Civ. No. 12-584-SLR

v.

)

CAROLYN W. COLVIN, Commissioner,)
Social Security Administration,
)
)
Defendant.
)

Jennifer R. Morrell, Esquire and Thomas J. Reed, Esquire of Veterans Law Clinic,
Widener University School of Law, Wilmington, Delaware. Counsel for Plaintiff.
Charles M. Oberly Ill, Esquire, United States Attorney, District of Delaware, and
Heather Benderson, Assistant United States Attorney, District of Delaware, Counsel for
Defendant. Of Counsel: Eric P. Kressman, Esquire, Regional Chief Counsel, and
Donald K. Neely, Regional Counsel of the Office of General Counsel, Philadelphia,
Pennsylvania. Counsel for Defendant.

MEMORANDUM OPINION

Dated: September J.~
Wilmington, Delaware

, 2013

~

, District Judge

I. INTRODUCTION
Albert W. Malcom ("plaintiff) appeals from a decision of Carolyn W. Colvin, the
Commissioner of Social Security ("defendant"), 1 denying his application for disability
insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401433. (0.1. 1) Plaintiff has filed a motion for summary judgment asking the court to
award DIB or remand for further proceedings. (0.1. 9,1 0) Defendant has filed a crossmotion for summary judgment, requesting the court to affirm her decision and enter
judgment in her favor. (0.1. 12, 13) The court has jurisdiction over this matter pursuant
to 42 U.S.C. § 405(g}. 2

II. BACKGROUND
A. Procedural History

On November 5, 1999, plaintiff applied for DIB alleging disability as of October
22, 1998, the date that a physician at the Veteran's Administration ("VA") diagnosed

1

Carolyn W. Colvin became the Commissioner of Social Security on February 13,
2013, after this proceeding was initially filed. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Carolyn W. Colvin replaced the previous Commissioner,
Michael J. Astrue, as the defendant in this case.
2

Under § 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).

single vessel coronary artery disease. 3 (0.1. 6 at 107) After the application was denied,
both initially and upon reconsideration, plaintiff requested a hearing before an
administrative law judge ("ALJ"). (0.1. 7 at 699)
At the first hearing held on November 9, 2001, the ALJ requested that plaintiff
submit to an intelligence test and psychological examination. On February 25, 2002,
after review of the record and testing, the ALJ concluded that plaintiff was mildly
retarded, but affirmed the denial of disability benefits because plaintiff "had the residual
functional capacity to perform simple, routine, repetitive tasks at all exertionallevels."

(/d. at 700) On April 12, 2002, plaintiff filed a request for a review by the Appeals
Council. On August 6, 2004, the Appeals Council remanded the case to the ALJ, after
concluding that the ALJ had failed to weigh the state agency's medical opinion and did
not resolve the inconsistencies between plaintiff's mental retardation and his past ability
to perform semi-skilled work. (/d. at 707)
The ALJ held another hearing on January 31, 2005 to consider plaintiff's claims
of disability based on hearing loss, heart condition, shoulder and knee pain and mental
disability. The ALJ reviewed the evidence associated with plaintiff's physical problems
and found that each did not qualify as disabling. (/d. at 707) With respect to mental
disability, the ALJ found no documentation of mental retardation in plaintiff's
educational history. The ALJ concluded such a finding was inconsistent with plaintiff's
successful completion of helicopter maintenance training received during service in the

3

0n February 11, 2000, plaintiff amended his disability onset date to May 24,
1993 to reflect the date that he first filed a claim for VA pension benefits for total
disability. (0.1. 6. at 64)

2

United States Army. The ALJ also determined that plaintiff had overstated his
functional impairment. On September 23, 2005, the Appeals Council denied plaintiff's
request for review of the ALJ's decision.
Plaintiff initiated an action in this court. Malcom v. Barnhart, Civ. No. 05-797KAJ (D. Del. 2005). On September 15, 2006, The Honorable Kent A. Jordan vacated
and remanded the case, finding that the ALJ had not adequately considered or
explained the affect of the VA's decision finding him eligible for disability benefits. (D.I.
7 at 697-712) In so doing, the court observed,
[t]hat is not to say, of course, that another agency's decision is
determinative. On the contrary, the United States Court of Appeals
for the Third Circuit has noted that 'the determinations of other
government or non-government agencies are not binding on social
security benefits decisions ....
*
*
*
Although the VA's determination in plaintiff's case was not that he was
totally or permanently disabled, that agency did find him eligible for
disability benefits. It is not clear that the VA's decision was considered
by the ALJ in this case and therefore the case will be remanded.
(/d. at 710-12 (citation omitted)).

In October 2007, the ALJ held another hearing on plaintiff's claims. (/d. at 786)
Because the Social Security Administration was unable to transcribe the record of the
proceeding, a new hearing was held on March 10, 2011, with plaintiff testifying and
represented by counsel. 4 (!d. at 813-16)
On June 1, 2011, the ALJ denied benefits, finding that plaintiff was capable of
performing his past relevant work as a security guard and as a cleaner. (/d. at 684-687)

4

The record reflects that plaintiff and his representative appeared at each
hearing before an ALJ.

3

Plaintiff appealed the decision to the Appeals Council, which denied plaintiff's request
for review, making the ALJ's decision the Commissioner's final decision. (/d. at 6-8)
Having exhausted his administrative remedies, plaintiff filed a civil action in this court on
May 5, 2012, seeking review of defendant's decision to deny him OIB. (0.1. 1)

B. Plaintiff's Non-Medical History5
Plaintiff was born on January 10, 1948. Plaintiff attended school until eighth
grade, when he dropped out to start working. (0.1. 6 at 130; 0.1. 7 at 540, 573-74, 59899) Plaintiff was enrolled in regular classes, was able to read and write, and maintained
a C average. (0.1. 6 at 130; 0.1. 7 at 540) After dropping out of school, plaintiff trained
as a handyman with a construction company, learning carpentry, plumbing and
electrical skills. (0.1. 7 at 599-600) At age 18 or 19, plaintiff was drafted into the Army
in 1967. (0.1. 7 at 701)

C. Plaintiff's Military Service
Plaintiff served in the Army from July 6, 1967 to June 2, 1969. (0.1. 6 at 278) A
pre-induction physical examination noted no defects aside from prescription
5

As noted by the court in September 2006, "one of the chief challenges of this
case has been plaintiff's shifting story." (0.1. 7 at 700) The court also recognized
problems with plaintiff's credibility:
[Plaintiff] has previously been found less than credible by those charged
with reviewing his claims for governmental benefits. Besides the ALJ in this
case, who found 'the allegations made are less than fully credible,' the Board
of Veterans' Appeals concluded that [plaintiff's] reasons for claiming dental
benefits from the VA were 'implausible' and lacked any competent evidentiary
support.
(/d. at 703, fn.3 (citations omitted)) Similar problems exist in the record at bar and are
identified accordingly. Some inconsistencies may be attributable to memory lapses,
given the number of years that have passed and the very narrow time frame at issue,
May 2, 1993 (alleged OIB onset date) to March 31, 1996 (plaintiff's last date insured).

4

eyeglasses. (/d. at 298-301) He was disqualified from flight duty due to poor eyesight.
(/d. at 304-06) Plaintiff attended helicopter mechanic school at Ft. Rucker, Alabama

and was transferred to the 1901h Assault Helicopter Company stationed in Bien Hoah,
Vietnam. (/d. at 326, 130)
Plaintiff told the ALJ that he was trained in aircraft maintenance until he was sent
to Vietnam, where he worked in and drove cars in a motor pool.

(0.1. 7 at 601-602)

VA records reflect that plaintiff worked as a mechanic while stationed in Vietnam. (0.1.
6 at 233, 262)
In February 1969, plaintiff was injured while repairing a damaged building. (0.1.
6 at 398-99) Another serviceman, standing on a roof, dropped a hammer, striking the
right side of plaintiff's head and mouth. Plaintiff was knocked unconscious. He was
treated at the scene and returned to work. As a result, he sustained damage to his
teeth.

D. Plaintiff's Civilian Employment History
After discharge from the Army, plaintiff worked at Chrysler as a spray painter in
the finishing department from 1969 to 1975. (0.1. 7 at 602) From 1975 to 1979, plaintiff
was a security guard at a college campus. (0.1. 6 at 133, 136) From 1985 to 1989,
plaintiff worked as a tow truck driver for A-1 Auto Salvage. 6 (0.1. 6 at 71, 112-117)
From 1989 to 1991, plaintiff was employed as a part-time and full-time janitor by a
temporary employee agency. (/d. at 134)

6

Piaintiff claims to have worked for A-1 for about 18 years; however, earning
records reflect that he had no earnings between 1980-1984 and sporadic earnings
between 1985-1991. (0.1. 6 at 7)

5

E. Plaintiff's VA Claims
In 1993, plaintiff initiated a claim for service-connected disability compensation
for head injury, dental trauma (broken teeth), hearing loss and knee problems. (D. I. 6
at 240) The Wilmington VA Regional Office ("VARO") granted plaintiff 0% service
connection for bilateral hearing loss. The VA hearing officer held that plaintiff's hearing
impairment was not compensable because it caused "little or no functional impairment."
(/d. at 240) Plaintiff was denied service-connected disability for the head injury and

dental trauma because plaintiff's Army records did not show that he was treated for any
such injury. (/d. at 377-78)
Plaintiff appealed the decision. In 1996, the Board of VA remanded the case to
VARO to determine whether plaintiff had enlisted in the Army Reserves. (/d. at 271-74)
Plaintiff was awarded non-service-connected pension benefits from the VA on
August 21, 1997. (D. I. 6 at 453) The VA found plaintiff had no single disability or
combination of disabilities that met the required percent disability threshold, but
awarded permanent disability benefits based on a combination of other factors,
including age, education and occupational background. Plaintiff's pension award was
backdated to the date he filed his claim in 1993, and he has received a VA disability
pension since 1997.

F. Plaintiff's Medical History
The record reflects that plaintiff began to seek treatment at the VA in 1993,
notably for shoulder and arm pain. The record does not include medical records prior

6

to that time as plaintiff did not have a treating physician and did not receive regular care
from 1969 to 1993.
In April 1993, plaintiff sought emergency treatment at the Medical Center of
Delaware for severe pain in his right knee. (D. I. 6 at 375) He was prescribed a knee
brace and physical therapy.
On October 23, 1993, Dr. Thomas at the VA Wilmington Medical Center
diagnosed plaintiff with bilateral hearing impairment and a perforated left ear drum. (ld.
at 246-48) An audiology test showed that plaintiff had "a significant high frequency
sensorineural type hearing loss in each ear." (/d. at 369)
On November 15, 1996, an esophageal barium X-ray revealed a "suspicious
sliding hiatel hernia without reflux." (D. I. 6 at 221) The record does not reflect any
treatment for this condition or additional testing.
During an August 1997 examination for a Compensation and Pension Exam
Report, the presence of a hiatal hernia and GERD 7 were noted. (D. I. 6 at 184-86) His
blood pressure was recorded at 140/80. (!d. at 185) Plaintiff stated that he smoked a
pack of cigarettes a day. Dr. Charles Mauriello observed the presence of a "suspicious
degenerative change at the greater tuberosity of right humerus." (!d.) In post
examination notes, Dr. Mauriello diagnosed:
(1) Rotator cuff attrition involving both shoulders with arthrofibrosis
in the right.
(2) Chronic right bicipital tendinitis.
(3) Mild adhesive capsulitis/arthrofibrosis, both shoulders as described.
(4) Consider right suprascapular nerve entrapment and/or right
carpal tunnel syndrome, based on clinical findings.

7

Gastro-esophageal reflux disease.

7

(D.I. 6 at 470) Dr. Maureillo further opined that, based on his examination and plaintiff's
history, there would be a functional problem with the right shoulder which would result
in "lack of endurance, lack of strength, weakness, and fatiguability, which will result in
decreased range of motion." (!d.)
On November 14, 1997, plaintiff had two chest X-rays taken. (D. I. 6 at 222) The
x-rays showed an abnormal and irregular density in his left lower lung that required
immediate attention. (/d.) The records do not reflect that plaintiff received any followup care.
In June 1998, plaintiff sought treatment for chest pains at the VA Medical Center
Wilmington emergency room. In October 1998, plaintiff had a cardiac catherization
performed at the VA Medical Center, Baltimore, Maryland. The surgery revealed that
plaintiff's left anterior descending artery was 100% occluded. (/d. at 172-76, 158-66)
Plaintiff's surgeons decided not to try to open the blocked artery, instead electing
conservative treatment with medication. Plaintiff was subsequently discharged with
medication and instructions to stop smoking cigarettes and drinking alcohol. (!d. at 15866, 172-175)
In February 2000, Dr. Stephen J. Rodgers, M.D., examined plaintiff's records
and prepared a report for submission with materials filed in support of his social security
claim. (/d. at 232) Dr. Rodgers was not a treating physician. Dr. Rodgers opined that
plaintiff had been disabled from any type of gainful employment since 1991. Dr.
Rodgers stated that plaintiff "is presently and has been totally and permanently disabled
and unable to perform any type of gainful employment" due to a condition that began in

8

1991. There is no explanation or additional discussion supporting this summary
conclusion. (/d. at 237)
Medical records reflect that in August 2000, plaintiff had no acute health
complaints. (D.I. 7 at 535) A file notation indicates that plaintiff was missing his Lipitor
medication two days a week and not following a low-fat diet.
Progress notes dated February 23, 2001, reflect that as part of his arrest and
conviction for DU I, plaintiff was ordered to attend therapy sessions for approximately 15
weeks. (D. I. 6 at 487) In therapy, plaintiff rated his health as "good." (D. I. 7 at 510) A
medical progress report dated March 30, 2001, describes plaintiff's cardiac condition as
stable. (D.I. 6 at 486)
In October 2001, a social worker evaluated plaintiff to determine whether he
suffered from Post Traumatic Stress Disorder ("PTSD"). (D. I. 7 at 538) The progress
notes suggest that plaintiff sought the PTSD evaluation as part of his efforts to obtain a
monetary increase in his dental claim. The social worker concluded that plaintiff had
mild symptoms of PTSD, but that "these symptoms do not appear to affect relationship
with others and did not appear to negatively impact on previous employment." (/d. at
541)
In February 2002, at the request of the ALJ, Dr. S.M. Iqbal, PhD examined
plaintiff for a consultative psychological evaluation. (D. I. 7 at 544) After administering a
series of tests and examining plaintiff, Dr. Iqbal concluded that plaintiff was functioning
in a mild mental retardation range. (/d. at 548-49) Plaintiff's IQ score on the Wechsler
Ill test was 64. (/d. at 547) Although plaintiff's memory was in the defective range, Dr.
Iqbal reported that plaintiff was able to understand and carry out simple instructions.

9

(/d. at 549)

Dr. Iqbal further concluded that, at the time, plaintiff was not showing any

mental or physical symptoms which would preclude him from the kind of work he was
doing, unskilled labor.
Dr. Iqbal noted that plaintiff said he was seeking disability in order to relax and
live life and that plaintiff "wants to get all the benefits from all the agencies." (D.I. 7 at
547) Plaintiff told Dr. Iqbal that, if he were to work, then he would lose his VA pension,
as well as other benefits. (/d. at 544-552) Dr. Iqbal concluded that plaintiff was
unmotivated to work. He found him street-wise and capable of making rationale
decisions.
In January 2007, plaintiff was examined by Dr. David Shulkin, M.D., a nontreating physician who reviewed the record without examining plaintiff. (D. I. 7 at 772)
Dr. Shulkin opined:
In this review [of plaintiff's medical records], I have noted that he
had a fully occluded coronary artery (LAD) in October of 1998.
Given this level of hypercholesterolemia and the chronicity of this
finding, it is my opinion, within a reasonable degree of medical
certainty, that he had significant coronary artery disease in March
of 1996. It should be noted that the coronary artery disease was
not symptomatic at the time, however it is certain that the condition
and pathology was present at that time. He did not receive diagnostic
evaluation for his heart condition until 1997.
Plaintiff last worked in 1991. At that time he had left employment as a
janitor 3 days per week. He had numerous complaints of joint pain
(shoulder, knee and back) and had limited mental capabilities
(borderline mental retardation). While I cannot say with medical
certainty that he was unable to hold any employment after 1991, the
evidence is suggestive that such employment would have been
difficult.

(/d. at 776-75)

10

Dr. John Dettwyler, Ph.D. examined and conducted testing on plaintiff, at the
request of his counsel on February 6, 2007. (/d. at 777) Dr. Dettwyler administered
tests to determine plaintiff's cognitive and intellectual ability, and reviewed his extensive
medical history. (/d. at 778) Dr. Dettwyler concluded that plaintiff possessed an
"intellectual capacity at the .9 percentile, and with the mild range of mental retardation."
(/d. at 781) He averred that it was "highly unlikely" that plaintiff's intellectual defects

could have developed after 1996, unless he had received some traumatic or global
brain injury. Rather, Dr. Dettwyler surmised that his "current intellectual deficits have
existed since birth, notwithstanding the possibility of an acquired loss of spatial
reasoning skills as a product of the reported head injury." (/d. at 781) He computed
plaintiff's IQ at 61, placing him in the mild range of intellectual impairment. (/d. at 782)

G. Hearing Before the ALJ
At his March 10, 2011 hearing, plaintiff testified that in 1996 he had difficulty
walking due to arthritis in his legs and arms. (D.I. 7 at 961) Although he was able to
drive a truck for work, it was difficult and strenuous to do so. Plaintiff stated that he had
difficulty reading, writing and doing arithmetic. (/d. at 963) His girlfriend took care of
the household finances. While at one point, he said he did all of the laundry, cooking,
grocery shopping and cleaning of the home, he later stated that his girlfriend did all of
those chores. (/d. at 964-65)
Vocational Expert Jan Howard-Reed testified that plaintiff's past work as a
security guard would be considered light and unskilled work. (/d. at 986) She said his
past work as a cleaner would be considered heavy and unskilled.

11

Ill. STANDARD OF REVIEW
Findings of fact made by the ALJ, as adopted by the Appeals Council, are
conclusive if they are supported by substantial evidence. Accordingly, judicial review of
the ALJ's decision is limited to determining whether "substantial evidence" supports the
decision. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). In
making this determination, a reviewing court may not undertake a de novo review of the
ALJ's decision and may not re-weigh the evidence of record. See id. In other words,
even if the reviewing court would have decided the case differently, the ALJ's decision
must be affirmed if it is supported by substantial evidence. See id. at 1190-91.
The term "substantial evidence" is defined as less than a preponderance of the
evidence, but more than a mere scintilla of evidence. As the United States Supreme
Court has noted, substantial evidence "does not mean a large or significant amount of
evidence, but rather such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988).
The Supreme Court also has embraced this standard as the appropriate standard for
determining the availability of summary judgment pursuant to Federal Rule of Civil
Procedure 56. The inquiry performed is the threshold inquiry of determining whether
there is the need for a trial-whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.
This standard mirrors the standard for a directed verdict under Federal Rule of
Civil Procedure 50( a), "which is that the trial judge must direct a verdict if, under the

12

governing law, there can be but one reasonable conclusion as to the verdict. If
reasonable minds could differ as to the import of the evidence, however, a verdict
should not be directed." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51,
(1986) (internal citations omitted). Thus, in the context of judicial review under§
405(g), "[a] single piece of evidence will not satisfy the substantiality test if [the ALJ]
ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is
evidence substantial if it is overwhelmed by other evidence-particularly certain types of
evidence (e.g., that offered by treating physicians)-or if it really constitutes not
evidence but mere conclusion." See Brewster v. Heckler, 786 F.2d 581, 584 (3d
Cir.1986) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.1983)). Where, for
example, the countervailing evidence consists primarily of the plaintiff's subjective
complaints of disabling pain, the ALJ "must consider the subjective pain and specify his
reasons for rejecting these claims and support his conclusion with medical evidence in
the record." Matullo v. Bowen, 926 F.2d 240,245 (3d Cir.1990).

IV. DISCUSSION
A. Regulatory Framework

Social Security Administration regulations incorporate a sequential evaluation
process for determining whether a claimant is under a disability. 20 C.F.R. § 404.1520.
The ALJ first considers whether the claimant is currently engaged in substantial gainful
activity. If he is not, then the ALJ considers in the second step whether the claimant has
a "severe impairment" that significantly limits his physical or mental ability to perform
basic work activities. If the claimant suffers a severe impairment, the third inquiry is

13

whether, based on the medical evidence, the impairment meets the criteria of an
impairment listed in the "listing of impairments," 20 C.F.R. pt. 404, subpt. P, app. 1
(1999), which result in a presumption of disability, or whether the claimant retains the
capacity to work. If the impairment does not meet the criteria for a listed impairment,
then the ALJ assesses in the fourth step whether, despite the severe impairment, the
claimant has the residual functional capacity to perform his past work. If the claimant
cannot perform her past work, then step five is to determine whether there is other work
in the national economy that the claimant can perform. Sykes v. Apfel, 228 F.3d 259,
262-63 (3d Cir.2000) (citing 20 C.F.R. § 404.1520). If the ALJ finds that a claimant is
disabled or not disabled at any point in the sequence, review does not proceed to the
next step. 20 C.F.R. § 404.1520(a). It is within the ALJ's sole discretion to determine
whether an individual is disabled or "unable to work" under the statutory definition. 20
C.F.R. § 404.1527(e)(1 ).
The ALJ is required to evaluate all of the medical findings and other evidence
that supports a physician's statement that an individual is disabled. The opinion of a
treating or primary physician is generally given controlling weight when evaluating the
nature and severity of an individual's impairments. However, no special significance is
given to the source of an opinion on other issues which are reserved to the ALJ, such
as the ultimate determination of disablement. 20 C.F.R. §§ 404.1527(e)(2) &
404.1527(e)(3). The ALJ has the discretion to weigh any conflicting evidence in the
case record and make a determination. 20 C.F.R. §§ 404.1527(c)(2).

B. The ALJ's Decision

14

The ALJ considered the medical evidence of record and the testimony received
at the hearing, and concluded that plaintiff was capable of performing his past relevant
work as a security guard and as a cleaner. The ALJ made the following enumerated
findings:
1. The claimant last met the insured status requirements of the Social
Security Act on March 31, 1996.
2. The claimant did not engage in substantial gainful activity during the
period from his alleged onset date of May 2, 1993 through his date last
insured of March 31, 1996 (20 C.F.R. 404.1571 et seq.).
3. Through the date last insured, the claimant had the following
severe impairment: Borderline intellectual functioning (20 C.F.R. 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment
or combination of impairments that met or medically equaled one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds
that, through the date last insured, the claimant had the residual functional
capacity to perform a full range of work at all exertional levels but was
limited to simple, unskilled work.
6. Through the date last insured, the claimant was capable of performing
past relevant work as a security guard and cleaner. 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. The claimant was not under a disability, as defined in the Social
Security Act, at any time from May 2, 1993, the alleged onset date,
through March 31, 1996, the date last insured (20 C.F.R. 404.1520(f)).
(D. I. 7 at 679-87)

C. Analysis
1. Impairments

15

Plaintiff contends that the ALJ's decision is not based on substantial evidence
because his borderline intellectual functioning, along with additional minor impairments,
preclude plaintiff from working. He further asserts that the ALJ improperly discounted
the medical opinions presented and incorrectly evaluated plaintiff's credibility with
respect to subjective complaints of pain.
Having considered the record against the ALJ's decision in light of the authority
cited above, the court finds that the ALJ's decision is supported by substantial evidence
of record. Significantly, in this regard, the focus of the time period at issue is very
limited, i.e., May 2, 1993 (alleged disability onset date) to March 31, 1996 (plaintiff's
date last insured). The contemporaneous records related to this time detail plaintiff's
problems with his knees and hearing. For the knee problem, a brace was ordered but
no medication was prescribed or any further treatment noted. With respect to the
hearing problem, an audiology evaluation was performed and found little or no
functional impairment. The record simply does not support a finding that the knee or
hearing problems functionally limited plaintiff's life or work.
With regard to plaintiff's mental impairment, the record reflects that he was not
enrolled in special education classes, completed Army specialized training for helicopter
maintenance, and had a long work history without any recorded problems due to mental
deficits.
With respect to Dr. Rogers' report, the ALJ concluded that there were no
reasons provided for his opinion that plaintiff had been disabled since 1991. The ALJ
correctly observed that Dr. Rogers did not examine or treat plaintiff and relied on
medical findings that reference treatment subsequent to the date last insured, March
16

31, 1996. The ALJ's decision to give little significant weight to Dr. Shulkin's findingthat employment would have been difficult because of plaintiff's cardiovascular
problems- is supported by the record. Dr. Shulkin was not a treating physician and did
not express his opinion with any medical certainty. The record evinces that the ALJ
specifically set forth his reasons for discounting the medical opinions and did not
substitute his own non-medical opinion.

2. Subjective complaints of pain
The Third Circuit has instructed that, although "[t]estimony of subjective pain and
inability to perform even light work is entitled to great weight," Dobrowolsky v. Califano,
606 F.2d 403, 409 (3d Cir.1979), an ALJ may reject a claim of disabling pain where he
"consider[s] the subjective pain and specif[ies] his reasons for rejecting these claims
and support[s] his conclusion with medical evidence in the record." Matullo v. Bowen,
926 F.2d 240, 245 (3d Cir.1990). Put another way, the ALJ must give plaintiff's
subjective complaints "serious consideration" and make "specific findings of fact,
including credibility, as to [his] residual functional capacity." See Burns v. Barnhart, 312
F.3d 113, 129 (Fed. Cir.2002) (citations omitted).
Although subjective complaints of pain must be given serious consideration,
"pain alone cannot be the basis for a finding of disability; the subjective complaints
must be accompanied by medical evidence showing the existence of a condition that
reasonably could be expected to produce the alleged symptomalogy and support a
finding of disability. It is [plaintiff's] burden to prove that [his] subjective complaints of
pain are substantiated by medical evidence." See Alward v. Comm'r of Social Sec'y,

17

Civ. No. 08-3373, 2009 WL 4798263, *7 (D. N.J. Dec. 8, 2009) (citations omitted). The
language of the opinion demonstrates that the ALJ in this case thoroughly evaluated
plaintiffs subjective complaints against his medical records and provided sufficient
explanation for rejecting those complaints. 8
The record establishes that plaintiff's impairments could reasonably be expected
to cause the symptoms asserted. Nevertheless, the ALJ's finding that plaintiff's
statements about the intensity of the problems was not credible is supported by the
record. With respect to his back and shoulder pain, there is no evidence of treatment
during the relevant time period. Similarly, there is no evidence of treatment for the knee
pain, beyond 1993. As noted above, there are inconsistencies between plaintiff's
statements and the documentation of record. The ALJ aptly evaluated the differences
with specificity and assessed credibility appropriately.

3. Remand to consider the decision of the VA
Plaintiff asserts that the ALJ did not comply with Judge Jordan's remand order to
consider and explain the findings and affects of the VA's award of partial disability.
The court finds that the ALJ specifically addressed, analyzed and rejected the VA's
decision due to the different statutory standards of review, nonbinding effect on the
ALJ, disparate time periods at issue, and evidence of record clearly supporting the
conclusion that plaintiff was not disabled. Notably, the VA decision and record are
vague and fail to explain the reasons for the award of disability. For example, the VA

8

To the extent plaintiff suggests that the ALJ erred in evaluating his credibility,
the court finds nothing in the record to disturb the ordinary deference afforded an ALJ's
credibility determinations. Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003).
18

found no single disability or combination of disability within the range required; rather
the award was due to the "level of disability and other factors, such as the veteran's
age, education and occupational background." (D.I. 6 at 453) Without a description of
"other factors," the court finds that the ALJ's analysis satisfies the directive of the
remand.

V. CONCLUSION
For the reasons stated, the court finds that the ALJ's decision was supported by
substantial evidence of record. Plaintiff's motion for summary judgment is denied and
defendant's motion for summary judgment is granted. Judgment shall be entered in
favor of defendant. An appropriate order shall issue.

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