Lofland v. Astrue

Filing 19

REPORT AND RECOMMENDATIONS re 16 Cross MOTION for Summary Judgment filed by Michael J. Astrue, 13 MOTION for Summary Judgment with Plaintiff's Opening Brief and Proposed Order filed by Kym L. Lofland. Please note that w hen filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 8/12/2013. Signed by Judge Mary Pat Thynge on 7/24/13. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

KYM L. LOFLAND,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Civ. No. 12-624-RGA-MPT

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Plaintiff, Kym L. Lofland (“plaintiff”) filed this action against defendant Michael J.

Astrue, Commissioner of Social Security (“defendant”). Plaintiff seeks judicial review,
pursuant to 42 U.S.C. § 405(g), of a denial of her application for disability insurance
benefits (“DIB”) under Title II of the Social Security Act. Presently before the court are
the parties’ cross-motions for summary judgment. Plaintiff’s motion for summary
judgment seeks remand the Commissioner for further consideration.1 Defendant’s
cross-motion for summary judgment requests the court affirm the decision to deny
benefits.2 For the reasons set forth below, the court will grant plaintiff’s motion for
summary judgment, deny defendant’s cross-motion for summary judgment, and remand
to the ALJ for further consideration of plaintiff’s hand/arm limitations.

1
2

D.I. 13.
D.I. 16.

II.

BACKGROUND
A.

Procedural Background

On May 2, 2007, plaintiff applied for DIB3 due to neck, back, arm, knee and head
pain, as well as high blood pressure.4 Plaintiff amended her onset date prior to the
administrative hearing to allege disability since May 24, 2007.5 Her application was
denied initially on October 2, 2007,6 and on reconsideration on November 19, 2008.7
On January 13, 2009, plaintiff filed a written request for a hearing.8
A hearing before Administrative Law Judge (“ALJ”) Edward J. Banas was
conducted on April 8, 2010.9 Plaintiff, represented by counsel, testified at the hearing.
Christina L. Beatty-Body (“Beatty-Body”), an impartial vocational expert, also appeared
at the hearing.
On April 30, 2010, the ALJ issued a written decision denying plaintiff’s application
for DIB.10 The ALJ noted plaintiff’s insured status expired on September 20, 2008, and
thus she was required to establish disability on or before that date in order to be entitled
to a period of disability and DIB.11 After reviewing the record, the ALJ determined
plaintiff was not disabled under sections 216(I) and 223(d) of the Social Security Act.12

3

D.I. 11 at 139-43, 160.
Id. at 17, 139-41, 164.
5
Id. at 39, 151.
6
Id. at 58.
7
Id. at 59.
8
Id. at 74-75.
9
Id. at 34-57.
10
Id. at 14-33.
11
Id. at 17.
12
Id. at 17-28.
4

2

Specifically, the ALJ found plaintiff had severe impairments, including cervical facet and
myofascial pain syndromes with cervical disc protrusions, a history of migraine
headaches, and bilateral patellofemoral syndrome,13 but nonetheless had the residual
functional capacity to perform a range of simple, routine, unskilled sedentary work.14
Consequently, the ALJ concluded plaintiff was not disabled, as defined in the Social
Security Act, at any time from May 24, 2007, the amended alleged onset date, through
September 30, 2008.15
Plaintiff’s subsequent appeal to the Appeals Council was denied, as the Council
concluded there was no basis for reviewing the ALJ’s decision.16 The ALJ’s decision,
therefore, constitutes the final decision of the Commissioner.17
Having exhausted all administrative remedies, plaintiff now seeks judicial review
of this decision. On November 8, 2012, plaintiff moved for summary judgment.18 On
January 10, 2013, defendant crossed moved for summary judgment.19
B.

Factual Background

Plaintiff was born on December 15, 1961.20 She was forty-six years old as of her
last insured date, and is considered a “younger person” at all times relevant to her DIB
application.21 Plaintiff is a high school graduate with an associate’s degree,22 with prior

13

Id. at 19-22.
Id. at 17-28. See also 20 CFR § 404.1567(a).
15
Id. at 27.
16
Id. at 1-3.
17
Id.
18
D.I. 13. See also D.I. 14.
19
D.I. 16. See also D.I. 17.
20
D.I. 11 at 139.
21
See 20 C.F.R. § 404.1563(c) (“If you are a younger person (under age 50), we generally do not
consider that your age will seriously affect your ability to adjust to other work.”).
22
D.I. 11 at 40.
14

3

vocational experience as a program coordinator, child support specialist, and addictions
counselor.23 Her detailed medical history is contained in the record; this
recommendation will provide a brief summary of the pertinent evidence.
1.

Medical Evidence

Prior to the alleged onset date, plaintiff was involved in a motor vehicle accident
in May 2001.24 Thereafter, plaintiff complained of significant neck and arm pain.25 An
MRI performed in August 2001 revealed two small disc protrusions at C4-5 and C5-6
which slightly impinged her spinal cord.26 She was involved in a second motor vehicle
accident in August 2001.27 Plaintiff received steroid injections and physical therapy for
her injuries.28
In 2002, plaintiff began treating with Patrick Callahan, M.D., of Chesapeake
Anesthesiology and Pain Management Physicians. Dr. Callahan first treated plaintiff on
May 12, 2002 for complaints of neck and arm pain, headaches, numbness, insomnia,
and mild depression.29 During that appointment, the physical exam was significant for
tenderness along the cervical facet joints and cervical paraspinous muscles.30 Her
cervical range of motion was approximately 40%, with decreased sensation to light
touch in the C5 and C6 dermatomes.31
By October 2002, plaintiff had returned to work, and by December 2002, Dr.

23

Id. at 51-52.
Id. at 255.
25
Id. at 386-87.
26
Id. at 271.
27
Id. at 255.
28
Id. at 253-70.
29
Id. at 271.
30
Id.
31
Id.
24

4

Callahan prescribed Methadone and Percocet for her pain.32 In April 2003, plaintiff
stopped working due to headaches and muscle spasms. From April 2003 to August
2005, she continued treatment with Dr. Callahan for medication management of her
cervical condition, which included pain medication, and intermittent cervical steroid and
bilateral medial branch block injections.33
On April 14, 2005, her primary care physician, John Asman, Jr., D.O., noted
plaintiff was “feeling well with no new complaints” with continued cervical injections, and
was taking Norvasc for hypertension.34 Dr. Asman reported again on June 10, 2005,
plaintiff was “feeling well, no complaints.”35
On August 14, 2005, plaintiff slipped and fell onto both knees.36 Two days later,
she saw Dr. Asman for right shoulder and arm pain, after previous treatment in the
emergency room, with x-rays taken.37 The x-ray findings were normal.38
Nearly two years later, on April 19, 2007, plaintiff saw Evan H. Crain, M.D., of
First State Orthopaedics, for a second opinion for bilateral knee pain.39 Dr. Crain noted
she fell in 2005, and experienced pain since then.40 An MRI of both knees showed
slight irregularity of the patella, no joint effusion, and intact menisci and ligaments.41 His
diagnosis was patellofemoral contusions, and he prescribed an at home patellofemoral

32

Id. at 253-70.
Id. at 253-70, 273-353, 386-87, 427-30.
34
Id. at 367.
35
Id.
36
Id. at 358, 368.
37
Id. at 368.
38
Id.
39
Id. at 358.
40
Id. at 358.
41
Id. at 359.
33

5

rehab program.42
On May 24, 2007, Dr. Callahan wrote a letter on plaintiff’s behalf documenting his
prior treatment.43 Since he was not involved in her care at the time of the accident he
could not opine on the exact cause for the positive findings, but confirmed her
complaints and his findings were typical for vehicular accidents.44 He noted his initial
diagnoses in 2002 were multilevel cervical disc protrusions, chronic headaches
exacerbated by the accidents, and cervical facet and myofascial pain syndrome,45
treated by periodic cervical spinal injections and pain medication.46
Although that treatment was effective, it only partially addressed plaintiff’s pain.47
Because pain medication interfered with work, he doubted she could maintain
consistent employment in the future. 48 Dr. Callahan could to not rate the degree of her
impairment, disability or permanancy.49
On June 7, 2007, Dr. Callahan administered four bilateral cervical trigger point
injections, which had previously improved plaintiff’s pain.50
Dr. Crain reported on June 28, 2007 that plaintiff evidenced improvement through
leg strengthening exercises and had less pain.51 Plaintiff complained of daily
discomfort, particularly at night, and requested a cortisone injection.52 Dr. Crain’s

42

Id.
Id. at 271.
44
Id.
45
Id. at 272.
46
Id.
47
Id.
48
Id.
49
Id.
50
Id. at 340-41.
51
Id. at 361.
52
Id.
43

6

evaluation on August 9, 2007 found post-injection improvement, swelling from the calf to
her feet,53 with no knee edema and good range of motion and less tenderness.54
A state agency physician, Vinod Kataria, M.D., reviewed plaintiff’s claim for
benefits on October 2, 2007,55 and found she could occasionally lift and/or carry a
maximum of 10 pounds, frequently lift and/or carry 10 pounds, stand and/or walk (with
normal breaks) for at least two hours in an eight-hour workday, and sit (with normal
breaks) for six hours in an eight-hour workday, with unlimited push and/or pull (including
operation of hand/foot controls).56 From his review of her medical record, he concluded
the x-rays of the knees were normal with no signs of DJD, and although she evidenced
bilateral quad contraction weakness and a patellofemoral contusion, there was no
MSO.57 He found her partially credible, in the absence of objective evidence.58
Dr. Kataria further opined plaintiff had no manipulative limitations, including
reaching all directions, handling, fingering, or feeling,59 and concluded her physical
residual functional capacity enabled her to perform light work with occasional postural
maneuvers, except for climbing ladders/ropes/scaffolds, and avoiding concentrated
exposure to vibration and hazards, such as machinery and heights.60
On October 15 2007, Dr. Crain reexamined, and found the “benefit of the
injection is now wearing off.”61 He repeated an injection series for her knee

53

Id. at 392.
Id.
55
Id. at 373-78.
56
Id. at 374.
57
Id. at 375.
58
Id.
59
Id. at 376.
60
Id. at 373-78.
61
Id. at 391.
54

7

complaints.62 Increased crepitation was evident in both knees, but generally they were
stable with no effusion.63 Pain in the patellofemoral area and weakness in the quads
was elicited.64
On November 30, 2007, Dr. Callahan prepared another letter on plaintiff’s behalf,
essentially reiterating his prior findings.65 He concluded pain medication interfered with
her ability to work, making future employment unlikely.66
Dr. Callahan’s treatment notes of September 9, 2008 reflect plaintiff complained
of numbness in her arms and parasthesias in both hands, which had previously been
relieved by the injections.67
Plaintiff was treated by Eric T. Schwartz, M.D., of Delaware Orthopaedics and
Sports Medicine, on November 3, 2008 for evaluation of bilateral knee pain and to
review the results of an MRI conducted on October 20, 2008.68 Dr. Schwartz noted her
complaints and overall condition were the same.69 As a result of his physical evaluation
of the left knee, he diagnosed painful grinding and entrapment, with no intra-articular
effusion or joint line tenderness.70 Examination of the right knee revealed painful
grinding entrapment of the patella, absent intra-articular effusion.71 The MRI results of
her right knee showed a small amount of joint fluid and low grade chondromalacia, with

62

Id.
Id.
64
Id.
65
Id. at 386-87.
66
Id. at 387.
67
Id. at 402.
68
Id. at 404-05 (Dr. Schwartz’s treatment notes state that plaintiff “returns today for re-evaluation,”
but the record contains no previous evidence of his treatment).
69
Id. at 404.
70
Id.
71
Id.
63

8

no fracture or intraarticular loose body, and no medial or lateral meniscal tear or
degeneration.72 Dr. Schwartz diagnosed bilateral knee patellofemoral syndrome,73 but
did not recommend an arthroscopy.74
On November 11, 2008, Dr. Callahan administered two trigger point injections in
the bilateral trapezius muscle groups.75 Plaintiff returned to Dr. Callahan on January 8,
2009, and advised the numbness, tingling, and neck pain improved, but pain worsened
in cold weather.76
On April 7, 2009, plaintiff admitted she obtained Dilauded from a friend, which
“worked better than Percocet.”77 Dr. Callahan prescribed Dilauded until July 9, 2009,78
when he re-prescribed Percocet.79 Plaintiff continued under Dr. Callahan’s care for pain
medications throughout 2009 and 2010.80 Dr. Callahan’s last treatment note dated
January 4, 2010, states plaintiff was doing “reasonably well,” was able to perform her
activities of daily living (“ADLs”), but she wanted injections.81
On April 4, 2010, Dr. Callahan completed a Physical Residual Functional
Capacity Questionnaire (“RFC”) at plaintiff’s attorney’s request.82 He concluded she
was completely disabled.83 He found plaintiff had moderate depression and anxiety,

72

Id.
Id. at 405.
74
Id.
75
Id. at 425-26.
76
Id. at 422.
77
Id.
78
Id.
79
Id. at 421.
80
Id. at 420-26.
81
Id. at 420.
82
Id. at 427-30.
83
Id.
73

9

which affected her concentration,84 and significant limitations for repetitive reaching,
handling or fingering due to numbness in the hands and arms.85
Plaintiff did not return to Dr. Schwartz until April 6, 2010, almost one and one-half
years after her prior visit in November 2008.86 During the April visit, plaintiff advised of
continued pain which was tolerable.87 She requested a cortisone injection for the left
knee,88 which Dr. Schwartz administered, and plaintiff requested she continue with
home exercises and activity modification.89 Dr. Schwartz assessed plaintiff as
neurologically oriented in time, place and person, and her mood and affect as alert and
cooperative, with no acute distress.90
C.

The Administrative Law Hearing
1.

Testimony of Plaintiff

Plaintiff testified at the administrative law hearing that her husband does the
grocery shopping, and her niece assists with household chores.91 She claimed she can
only drive short distances, although she drove to the hearing.92 She further testified her
pain medication causes drowsiness and lightheadedness.93 In discussing her knee
pain, she described the pain as constant and awakens her from sleep.94
Plaintiff claimed she experiences on average four migraine headaches per week,

84

Id.
Id. at 429.
86
Id. at 432.
87
Id.
88
Id.
89
Id. at 433.
90
Id. at 432.
91
Id. at 41.
92
Id. at 42.
93
Id.at 43.
94
Id.
85

10

and suffers daily pain in her neck and back.95 She stated she takes Methadone for pain,
which is less effective than it previously was.96 She annually undergoes three trigger
point injections in her neck and back, which alleviates the numbness in her hands and
arms.97 Although she used a cane at the hearing, it was not prescribed by any
physician, but she claimed it was recommended because of weak knees.98 She testified
Dr. Schwartz had recently advised her knees were severely arthritic, and would require
bilateral knee replacements.99 She further claimed she could walk or stand continuously
for about 15 minutes, only sit for 20 to 30 minutes, and could not kneel or stoop.
Regarding problems with her hands and fingers, she noted severe numbness
and cramping.100 She chooses clothing that is easy to put on and does not require her
to raise her head. She needs assistance with buttoning,101 and cannot lift or carry a
gallon of milk.102 She is able to bathe herself, except for her legs or hair.103 Plaintiff
maintained she has experienced major pain since the two motor vehicle accidents and
the slip and fall.104
2.

Testimony of Vocational Expert

Beatty-Body, a vocational expert, also testified at the administrative hearing.105
Beatty-Body acknowledged pain could cause difficulty with concentration, persistence,

95

Id. at 44.
Id.
97
Id. at 44-45.
98
Id. at 46.
99
Id.
100
Id. at 48.
101
Id.
102
Id. at 49.
103
Id. at 50.
104
Id.
105
Id. at 51-56.
96

11

and pace, and attending to job duties. If pain reduced productivity by more than 15 to
20 percent, it would be work preclusive.”106 The ALJ asked Beatty-Body whether a
“hypothetical . . . younger individual, with a high school-plus education, and past
relevant work history similar to that of the [plaintiff],” with symptoms and limitations
similar to those asserted by plaintiff during the hearing, would be capable fo doing any
jobs. The vocational expert responded in the negative, because such pain would cause
a reduction in productivity of more than 15 to 20 percent, precluding any employment,
and may also cause excessive absences.107
The ALJ asked the vocational expert to assume an individual of plaintiff’s age,
education, and experience, who was restricted to simple, routine sedentary work with a
sit/stand option.108 Despite those limitations, the vocational expert concluded such an
individual could perform sedentary work as a microfilm document scanner, addressing
clerk, and final assembler.109 She further testified that use of a cane would not have any
adverse impact on those representative jobs.110 The vocational expert, however,
continued that if the individual required a 10-minute off-task break, this additional break
would preclude employment.111 Finally, she stated the limitations described in the RFC
questionnaire completed by Dr. Callahan would also preclude employment.112
D.

The ALJ’s Decision

Based on the evidence and testimony, the ALJ determined in his April 30, 2010

106

Id. at 52.
Id. at 52-53.
108
Id. at 53.
109
Id. at 53-54.
110
Id. at 54.
111
Id. at 55.
112
Id. at 56.
107

12

opinion,113 that plaintiff was not disabled, and not entitled to DIB.114 The ALJ’s findings
are summarized as follows:
1.

The claimant last met the insured status requirements of the Social
Security Act on September 30, 2008.

2.

The claimant did not engage in substantial gainful activity during the
period from amended alleged onset date of May 24, 2007 through her
date last insured of September 30, 2008 (20 CFR 404.1571 et seq.).

3.

Through the date last insured, the claimant had the following severe
impairments: Cervical Facet and Myofascial Pain Syndromes with cervical
disc protrusions, a history of migraine headaches, and Bilateral
Patellofemoral Syndrome(20 CFR 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 CFR 404, Subpart P, Appendix 1 (20 CFR 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 has the residual functional
capacity to perform a significant range of simple, routine, unskilled
sedentary work as those terms are defined in 20 CRF 404.1567(a).

6.

Through the date last insured, the claimant was unable to perform any
past relevant work (20 CFR 404.1565).

7.

The claimant was born on December 15, 1961 and was 46 years old,
which is defined as a younger individual age 18-44, on the date last
insured (20 CFR 404.1563).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).

113
114

Id. at 14-33.
D.I. 10 at 23.

13

10.

11.

III.

Through the date last insured, considering the claimant’s age, education,
work experience, and residual function capacity, there were jobs that
existed in significant numbers in the national economy that the claimant
could have performed (20 CFR 404.1569 and 404.1569(a)).
The claimant was not under a disability, as defined in the Social Security
Act, at any time from May 24, 2007, the amended alleged onset date,
through September 30, 2008, the date of last insured (20 CFR §§
404.1520(g)).

JURISDICTION
A district court’s jurisdiction to review an ALJ’s decision regarding disability

benefits is controlled by 42 U.S.C. § 405(g). The statute provides “[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 review of such decision by a civil action.”115 The
Commissioner’s decision becomes final when the Appeals Counsel affirms an ALJ
opinion, denies review of an ALJ decision, or when a claimant fails to pursue available
administrative remedies.116 In the instant matter, the Commissioner’s decision became
final when the Appeals Counsel affirmed the ALJ’s denial of benefits. Thus, this court
has jurisdiction to review the ALJ’s decision.
IV.

PARTIES’ CONTENTIONS
A.

Plaintiff’s Contentions

Plaintiff urges remand based on the following reasons:117 (1) the ALJ failed to
accommodate her hand and arm impairments; (2) the ALJ failed to properly consider
the side effects of the pain medications; and (3) the ALJ failed to properly consider

115

42 U.S.C. § 405(g) (2002).
Aversa v. Secretary of Health & Human Services, 672 F.Supp. 775, 777 (D.N.J. 1987); see
also 20 C.F.R. § 404.905 (2002).
117
D.I. 14.
116

14

mental limitations caused by debilitating pain.
Plaintiff initially contends because the ALJ failed to properly consider her hand
and arm impairments, remand is needed for further consideration of the specific
limitations caused by her severe cervical facet syndrome.118 The ALJ erred in according
"little weight”119 to Dr. Callahan’s opinion by failing consider her reaching limitations,120
and by finding that she had “no push/pull, grasping, handling, or manipulative
limitations.”121
As a result, plaintiff maintains the ALJ’s decision should be overturned, as he
failed to consider relevant and potentially work-preclusive limitations by the treating
physician. In support, plaintiff relies on Social Security Ruling (“SSR”) 96-5p, which
requires the Commissioner to evaluate all medical opinions, and not "ignore opinions
even in regard to issues that are reserved to the Commissioner.”122 Although the ALJ
relied primarily on Dr. Callahan’s report that plaintiff could perform activities of daily
living,123 he misstates her ability to perform these activities.124 The ALJ failed to
consider her reaching limitations and did not reject Dr. Callahan’s opinion in that regard;
however, he omitted any explanation for his finding that plaintiff could perform the
frequent reaching required by the jobs identified by the vocational expert.
Refuting defendant’s contention that Dr. Callahan’s RFC is irrelevant because it

118

D.I. 14 at 3-5.
D.I. 11 at 25 (stating Dr. Callahan’s opinion was unsupported by treatment records or medical
findings, and inconsistent with reports of plaintiff’s ability to perform activities of daily living).
120
D.I. 14 at 3.
121
Id.
122
See SSR 96-5P, 1996 WL 374183, at *3.
123
D.I. 11 at 25.
124
D.I. 14 at 4.
119

15

was rendered after expiration of her last insured date, plaintiff argues the assessment is
relevant because it is consistent with his prior treatment.125 Plaintiff relies on SEC v.
Chenery Corp. which found that "[t]he grounds upon which an administrative order must
be judged are those upon which the record discloses that its action was based.”126
Because the ALJ never determined the doctor’s assessment was irrelevant due to
timing, plaintiff reasons defendant’s argument is misplaced.127 Plaintiff concludes
remand is necessary for further consideration of the specific limitations caused by her
severe cervical facet syndrome.128
Plaintiff next contends the ALJ failed to properly consider the side effects of her
pain medications.129 Plaintiff argues the regulations and this circuit’s precedent require
an ALJ to address the effectiveness and side effects of a claimant’s medications.
Despite noting that her medications cause drowsiness and fatigue, the ALJ nonetheless
made no accommodations for such symptoms, and found she was capable of
performing simple, routine, unskilled work.130 Therefore, remand to determine how her
ability to work would be affected by the side effects of the medications is required.131
Finally, plaintiff argues the ALJ failed to properly consider the mental limitations
caused by debilitating pain.132 Despite the vocational expert’s testimony, the ALJ gave
little consideration to her pain. Although he recognized her mental capacity for work

125

D.I. 18 at 1-2.
318 U.S. 80, 87 (1943).
127
D.I. 18 at 2.
128
D.I. 14 at 5.
129
Id. at 5-6.
130
Id. at 6.
131
Id.
132
Id.
126

16

would be affected by her pain, he found she was not disabled and employable.133 The
ALJ failed to address the effect of her pain in relation to excessive absenteeism or on
attention or concentration.134 Plaintiff contends the ALJ’s finding that she "alleged no
memory, concentration, or attention deficits,” is contradicted by the record, specifically
in her initial disability reports.135 Moreover, the ALJ never inquired about her mental
limitations during the administrative hearing.136 Remand is necessary to assess how
pain interferes with the mental demands of work.137
B.

Defendant’s Contentions

Defendant maintains substantial evidence supports the ALJ’s findings that
plaintiff could perform the limited range of sedentary work identified by the vocational
expert.138 Defendant argues: (1) the medical evidence and findings of record support
the ALJ’s decision that plaintiff is not disabled; (2) the ALJ appropriately considered her
hand and arm complaints, and (3) the ALJ properly considered the effects of the pain
medications.139
First, defendant observes plaintiff was treated conservatively and never referred
for surgery.140 She was never treated for any mental health complaints, and a state
agency physician found she could perform a limited range of light work.141 Thus, the
ALJ accounted for her physical and mental complaints as supported by the record by

133

Id.
Id. at 7.
135
Id.
136
Id.
137
Id.
138
D.I. 17 at 9.
139
Id. at 9-13.
140
Id. at 9.
141
Id.
134

17

restricting employment to a limited range of sedentary work.142
Second, defendant argues the ALJ appropriately considered plaintiff’s hand and
arm complaints, and was not required to accept the reaching limitations determined by
Dr. Callahan,143 in an opinion rendered in April 2010, almost one and one-half years
after her insured status expired. Dr. Callahan’s assessment is immaterial to the
relevant time period.144 Moreover, Dr. Callahan’s reaching limitations are unsupported
by his own treatment notes.145 Finally, a state agency physician in October 2007, during
the relevant period, specifically opined plaintiff did not have any reaching, handling,
fingering, or feeling limitations.146 As a result, defendant argues the ALJ was not
required to impose any additional limitations based on plaintiff’s hand and arm
complaints.147
Third, defendant asserts the ALJ properly considered her pain medication,
because the jobs identified appropriately reflected any limitations, and her treatment
records do not support any additional restrictions due to the alleged side effects.148
Finally, defendant maintains the ALJ properly accounted for plaintiff’s mental limitations,
specifically difficulties in concentration, by confining her type of work.149 Refuting
plaintiff’s argument that the ALJ should have inquired about her mental limitations,
defendant counters the burdens of production and proof in a disability determination

142

Id.
D.I. 17 at 9-10.
144
Id. at 10.
145
Id.
146
Id.
147
Id.
148
Id. at 10-11.
149
Id. at 11.
143

18

proceeding rest with plaintiff,150 because she is "in a better position to provide
information about [her] own medical condition.”151 Because plaintiff’s arguments are
baseless, the opinion of the ALJ should be affirmed.
V.

STANDARD OF REVIEW
A.

Summary Judgment

In determining the appropriateness of summary judgment, the court must “review
the record as a whole, ‘draw[ing] all reasonable inferences in favor of the nonmoving
party[,]’ but [refraining from] weighing the evidence or making credibility
determinations.”152 If there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law, summary judgment is appropriate.153
This standard does not change merely because there are cross-motions for
summary judgment.154 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.155
“The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party.”156
B.

ALJ’s Findings

Section 405(g) sets forth the standard of review of the ALJ’s decision by the

150

D.I. 17 at 12 (citing 42 U.S.C. § 423(d)(5)(A)).
Id. (citing Bowen v. Yuckert, 482 U.S. 137, 147 n.5 (1987); 20 C.F.R. § 404.1512(a)).
152
Reeves v. Sanderson Plumbing, Prods., Inc., 530 U.S. 133, 150 (2000).
153
See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R. CIV. P. 56(c)).
154
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
155
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
156
Krupa v. New Castle County, 732 F. Supp. 497, 505 (D. Del. 1990).
151

19

district court. The court may reverse the Commissioner’s final determination only if the
ALJ did not apply the proper legal standards, or the record did not provide substantial
evidence to support the ALJ’s decision. The Commissioner’s factual decisions are
upheld if supported by substantial evidence.157 Substantial evidence means less than a
preponderance, but more than a mere scintilla of evidence.158 As the United States
Supreme Court has found, 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."159
In determining whether substantial evidence supports the Commissioner’s
findings, the court may not undertake a de novo review of the Commissioner’s decision
and may not re-weigh the evidence of record.160 The court’s review is limited to the
evidence that was actually presented to the ALJ.161 The Third Circuit has explained that
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. Nor is
evidence substantial if it is overwhelmed by other evidence, particularly certain types of
evidence (e.g., evidence offered by treating physicians) or if it really constitutes not
evidence but mere conclusion."162 Thus, the inquiry is not whether the court would have
made the same determination, but rather whether the Commissioner’s conclusion was

157

See 42 U.S.C. §§ 405(g), 1383(c)(3); see also Monsour Medical Center v. Hecklem, 806 F .2d
1185, 1190 (3d Cir. 1986).
158
See Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
159
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
160
See Monsour, 806 F.2d at 1190.
161
See Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001)
162
Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).

20

reasonable.163 Even if the court would have decided the case differently, it must defer to
the ALJ, and affirm the Commissioner’s decision so long as that decision is supported
by substantial evidence.164
When review of an administrative determination is sought, the agency's decision
cannot be affirmed on a ground other than that actually relied upon by the agency in
making its decision.165 In Securities & Exchange Commission v. Chenery Corp.,166 the
Supreme Court found 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.”167 The Third
Circuit has recognized the applicability of this finding in the Social Security disability
context.168 Thus, this court's review is limited to the four corners of the ALJ's
decision.169
VI.

DISCUSSION
A.

Disability Determination

Title 11 of the Social Security Act, 42 U.S.C. § 423(a)(l)(D), "provides for the
payment of insurance benefits to persons who have contributed to the program and who

163

See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
See Monsour, 806 F .2d at 1190-91.
165
See Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.D. Pa. 2011).
166
Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947).
167
Id.
168
Fargnoli v. Massanari, 247 F.3d 34, 44, n.7 (3d Cir. 2001).
169
Cefalu v. Barnhart, 387 F.Supp.2d 486, 491 (W.D. Pa. 2005).
164

21

suffer from a physical or mental disability."170 In order to qualify for DIB, the claimant
must establish that she was disabled prior to the date she was last insured.171 A
"disability" is defined as the inability to do any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.172 A claimant is disabled "only if [her] physical or mental
impairment or impairments are of such severity that [she] is not only unable to do [her]
previous work but cannot, considering [her] age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national
economy."173
In determining whether a person is disabled, the Commissioner is required to
perform a five-step sequential analysis.174 If a finding of disability or non-disability can
be made at any point in the sequential process, the Commissioner will not review the
claim further.175 At step one, the Commissioner must determine whether the claimant is
engaged in any substantial gainful activity. If the claimant is engaged in substantial
gainful activity, a finding of non-disabled is required.176 If the claimant is not engaged in
substantial gainful activity, step two requires the Commissioner to determine whether
the claimant is suffering from a severe impairment or a combination of impairments that
is severe. If the claimant is not suffering from a severe impairment or a combination of

170

Bowen, 482 U.S. at 140.
See 20 C.F.R. § 404.131.
172
See 42 U.S.C. §§ 423(d)(l)(A), 1382(c)(a)(3).
173
42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
174
See 20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422,427-28 (3d Cir. 1999).
175
20 C.F.R. § 404.1520(a)(4).
176
See 20 C.F.R. § 404.1520(a)(4)(i).
171

22

impairments that is severe, a finding of non-disabled is required.177
If the claimant’s impairments are severe, the Commissioner, at step three,
compares the claimant’s impairments to a list of impairments (the "listings") that are
presumed severe enough to preclude any gainful work.178 When a claimant’s
impairment or its equivalent matches an impairment in the listing, the claimant is
presumed disabled.179 If a claimant’s impairment, either singularly or in combination,
fails to meet or medically equal any listing, the analysis continues to steps four and
five.180 At step four, the Commissioner determines whether the claimant retains the
RFC to perform his past relevant work.181 A claimant’s RFC is “that which an individual
is still able to do despite the limitations caused by [his] impairment(s)."182 "The claimant
bears the burden of demonstrating an inability to return to [his] past relevant work.”183
lf the claimant is unable to return to his past relevant work, step five requires the
Commissioner to determine whether the claimant’s impairments preclude him from
adjusting to any other available work.184 At this last step, the burden is on the
Commissioner to show the claimant is capable of performing other available work
before denying disability benefits.185 In other words, the Commissioner must prove
"there are other jobs existing in significant numbers in the national economy which the
claimant can perform, consistent with [his] medical impairments, age, education, past
177

See 20 C.F.R. §404.1520(a)(4)(ii).
See 20 C.F.R. § 404.1520(a)(4)(iii); see also Plummer, 186 F.3d at 428.
179
See 20 C.F.R. § 404.1520(a)(4)(iii).
180
See 20 C.F.R. § 404.1520(e).
181
See 20 C.F.R.. § 404.1520(a)(4)(iv); Plummer, 186 F.3d at 428.
182
Fargnoli, 247 F.3d at 40.
183
Plummer, 186 F.3d at 428.
184
See 20 C.F.R. § 404.1520(g) (mandating finding of non-disability when claimant can adjust to
other work); see also Plummer, 186 F.3d at 428.
185
See id.
178

23

work experience, and [RFC].”186 In making this determination, the ALJ must analyze the
cumulative effect of all of the claimant’s impairments.187 At this step, the ALJ often
seeks the assistance of a vocational expert.188
B.

Plaintiff’s Hand and Arm Limitations
1.

Residual Functional Capacity Determination

“‘Residual functional capacity’ is defined as that which an individual is still able to
do despite the limitations caused by his or her impairment(s).”189 In this case, the ALJ
determined plaintiff had a RFC to perform “a significant range of simple, routine,
unskilled sedentary work.”190 The SSA defines work as “sedentary” when it:
involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job duties. Jobs
are sedentary if walking and standing are required occasionally and other
sedentary criteria are met.191
The ALJ further specified plaintiff had the
“residual functional capacity to lift and carry up to 10 pounds and that she
is able to sit for up to 6 hours and that she can stand/walk for at least 2
hours during the course of an ordinary 8-hour workday. The claimant has
no push/pull, grasping, handling or manipulative limitations, but she is able
to perform postural activities only occasionally. Finally, due to the
combination of her impairments and her use of narcotic and opioid pain
medications, the claimant cannot climb to or work at heights or with
hazardous or vibrating machinery.”192

186

Id.
See id.
188
See id.
189
Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000); see also Hartranft v.
Apfel, 181 F.3d 358, 359 n.1 (3d Cir.1999) (citing 20 C.F.R. § 404.1545(a)).
190
D.I. 11 at 23-26.
191
20 C.F.R. § 404.1567.
192
D.I. 11 at 25.
187

24

Plaintiff argues that despite the ALJ’s acknowledgment of her severe cervical
facet syndrome, he failed to accommodate the hand and arm limitations arising from
this impairment in his determination of her RFC.193 Defendant maintains the ALJ
appropriately considered such restrictions, and his determination is supported by
substantial evidence.194
After reviewing the record, the court is unable to determine whether the ALJ’s
finding that plaintiff can perform sedentary work is supported by substantial evidence
because he failed (1) to adequately evaluate all relevant evidence and to explain the
basis of his conclusions, and (2) to adequately explain his assessment regarding the
credibility of, and weight given to, the medical evidence and opinions from plaintiff’s
treating physician that contradicts his finding that plaintiff can perform sedentary work.
The court remands this matter to the ALJ for further proceedings.
a.

The ALJ’s duty to evaluate evidence and provide the
basis for his conclusions

It is well settled that the ALJ must consider all relevant evidence when
determining an individual's RFC in step four.195 That evidence includes medical records,
observations made during formal medical examinations, descriptions of limitations by
the claimant and others, and observations of the claimant's limitations by others.196 In
Adorno v. Shalala, the Third Circuit set aside an ALJ’s determination for failure to
address and refute contradictory medical evidence before him.197 The court held the
193

D.I. 14 at 3-5. See also D.I. 18.
D.I. 17 at 10.
195
See Fargnoli, 247 F.3d at 41. See also 20 C.F.R. §§ 404.1527(e)(2), 404.1545(a), 404.1546;
Burnett, 220 F.3d at 121.
196
Fargnoli, 246 F.3d at 41 (citing 20 C.F.R. § 404.1545(a)).
197
Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994).
194

25

“ALJ must review all the medical findings and other evidence presented in support of
the attending physician's opinion of total disability.”198 Similarly, the ALJ must also
consider and weigh all of the non-medical evidence before him.199
In Burnett v. Commissioner of Social Security Administration, the Third Circuit
found the “ALJ did err by reason of his failure to consider and explain his reasons for
discounting all of the pertinent evidence before him in making his residual functional
capacity determination.”200 Although the ALJ may determine the credibility, he must
indicate that evidence he rejects and his reasons for discounting it.201 “In the absence
of such an indication, the reviewing court cannot tell if significant probative evidence
was not credited or simply ignored.”202
The ALJ's finding of RCF must “be accompanied by a clear and satisfactory
explication of the basis on which it rests.”203 Under this circuit’s law, “an examiner's
findings should be as comprehensive and analytical as feasible and, where appropriate,
should include a statement of subordinate factual foundations on which ultimate factual
conclusions are based, so that a reviewing court may know the basis for the
decision.”204 Such analysis “is necessary so that the court may properly exercise its
responsibility under 42 U.S.C. § 405(g) to determine if the Secretary's decision is
supported by substantial evidence.”205

198

Id. (internal citations omitted).
See Burnett, 220 F.3d at 122 (citing Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir.1983)).
See also Cotter v. Harris, 642 F.2d 700, 707 (3d Cir.1981).
200
See id.
201
Id. (citing Plummer, 186 F.3d at 429; Cotter, 642 F.2d at 705).
202
See id. (citing Cotter, 642 F.2d at 705).
203
Fargnoli, 246 F.3d at 41 (citing Cotter, 642 F.2d at 704).
204
Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974).
205
Id.
199

26

Here, in making his determination of plaintiff’s RFC, the ALJ failed to account for
her hand and arm limitations. Regarding Dr. Callahan’s April 2, 2010 RFC
Assessment,206 the ALJ considered and rejected the physician’s description of plaintiff’s
limitations on walking, standing, elevating her feet, and using a cane.207 The ALJ
completely failed, however, to acknowledge her hand and arm limitations, which were
well-documented in the same assessment.208 In making his RFC determination, the ALJ
concluded, without explanation, that plaintiff “has no push/pull, gasping, handling, or
manipulative limitations.”209
The ALJ thus failed to consider all relevant evidence when determining plaintiff’s
RFC in step four.210 The reaching limitation was significant, given the diagnosis
accepted by the ALJ of severe cervical facet syndrome.211 Plaintiff’s hand and arm
condition should have been addressed and either accepted or rejected.
Plaintiff’s hand and arm limitation is amply supported by the medical record. Dr.
Callahan’s April 2, 2010 assessment stated plaintiff had significant restrictions in
repetitive reaching, handling or fingering.212 He further concluded plaintiff could grasp,
turn and twist objects with her hands 75 percent of the time during an eight hour
working day, and use her fingers for fine manipulations 100 percent of the time, but
could never reach with her arms.213 In virtually ignoring that limitation, the ALJ failed to

206

D.I. 11 at 427-30.
Id. at 25.
208
Id. at 427-30.
209
Id. at 25.
210
See Fargnoli, 247 F.3d at 41. See also 20 C.F.R. §§ 404.1527(e)(2), 404.1545(a), 404.1546;
Burnett, 220 F.3d at 121.
211
D.I. 11 at 19-22.
212
Id. 429.
213
Id. at 429.
207

27

appropriately “review all the medical findings and other evidence presented in support of
the attending physician's opinion of total disability.”214
Defendant’s argument that Dr. Callahan’s April 2010 opinion is irrelevant
because it was rendered after plaintiff’s insurance status expired is misplaced.215 The
ALJ never discounted Dr. Callahan’s opinion for that reason.216 Instead, he considered
select portions of that opinion and rejected them.217 Defendant’s ad hoc justification for
the ALJ’s decision is therefore rejected.218
In addition to the April 2010 assessment, there are numerous other references
throughout the medical record concerning limitations of plaintiff’s hands and arms. In
May 2007, Dr. Callahan noted that despite improvement, “some level of pain is present .
. . on a daily basis.”219 He concluded her underlying condition “will probably never
resolve and potentially can get worse over time.”220 He repeated those findings in
November 2007.221
Dr. Callahan’s treatment record is replete with notations of hand and arm
pain/numbness,222 specifically on April 18, 2007,223 November 30, 2007,224 February 15,

214

See Adorno, 40 F.3d at 48.
D.I. 17 at 9-10.
216
D.I. 11 at 14-33.
217
D.I. 11 at 25.
218
See Chenery, 332 U.S. at 196 (“[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.”)
219
D.I. 11 at 272.
220
Id.
221
Id. at 386.
222
Id. at 398-402, 420-26.
223
Id. at 270.
224
Id. 386.
215

28

2008, and January 8, 2009.225 Although the injections temporarily alleviated numbness
and parasthesias in her arms and hands,226 occasional improvement does not
undermine his lengthy treatment and consistent diagnoses of limitations.
Plaintiff’s subjective complaints of arm and hand numbness are similarly welldocumented. In the May 11, 2007 function report, she claimed to suffer from
“numbness, tingling [and] cramping in both arms in hands in the morning.”227 She notes
similar complaints in her disability report.228 Plaintiff reiterated the same complaints in
the June 25, 2007 function report,229 and in a subsequent disability appeal form, she
again noted “difficulty holding things due to numbness and cramping in hands and arms,
which makes it difficult to combing [sic] my hair, bathe, and get dressed.”230
In coming to his ultimate conclusion regarding plaintiff’s RFC, the ALJ appears to
focus on Dr. Callahan’s comments that plaintiff could perform daily living activities,231
emphasizing she was “independent in her bathing, dressing and eating.”232 He did not,
however, address her statements on her limited ability to perform such activities.
During the hearing, plaintiff testified her niece assisted with hair care, washing her lower
extremities and dressing.233 Plaintiff’s claims of arm and hand pain and other subjective
symptoms are consistent with the medical evidence,234 and even if they are not, the ALJ

225

Id. at 422.
Id. at 402.
227
Id. at 152
228
Id. at 164.
229
Id. at 182.
230
Id. at 220.
231
Id. at 25.
232
Id. at 24.
233
Id. at 48-49.
234
Hartranft, 181 F.3d at 362 (citing 20 C.F.R. § 404.1529).
226

29

was required to explain why he seemingly rejected her testimony.235
Plaintiff’s hand and arm complaints were well documented, observed and
described by plaintiff and her physicians.236 Similar to Adorno237 and Burnett,238 in the
instant matter, the ALJ failed to evaluate and address medical evidence contrary to his
findings to enable the court to “properly exercise its responsibility under 42 U.S.C. §
405(g) to determine if the Secretary's decision is supported by substantial evidence.”239
As a result, this court cannot assess whether the ALJ’s determination that plaintiff has
the residual functional capacity to perform “a significant range of simple, routine,
unskilled sedentary work” is supported by substantial evidence.
b.

The ALJ’s duty to assess credibility of and explain
weight applied to conflicting medical evidence

When determining plaintiff’s RFC, the ALJ accorded “little weight to the
sympathetic but medically-unsupported opinions of Dr. Callahan.”240 Instead, he found
the opinion of the non-examining state agency medical consultant, “more accurately
reflects the claimant’s work-related abilities and limitations,” according “Dr. Kataria’s
opinion significant weight in the determination of this matter.”241
Under this circuit’s precedent, “[t]reating physicians' reports should be accorded
great weight, especially ‘when their opinions reflect expert judgment based on a

235

Van Horn, 717 F.2d at 873.
Fargnoli, 246 F.3d at 41 (citing 20 C.F.R. § 404.1545(a)).
237
Adorno, 40 F.3d at 48.
238
See Burnett, 220 F.3d at 121. See also supra notes 210-35 and accompanying text.
239
Id.
240
D.I. 11 at 25.
241
Id.
236

30

continuing observation of the patient's condition over a prolonged period of time.’”242 A
court must give greater weight to the findings of a treating physician than to those of a
doctor who examined the claimant only once or not at all.243 When a physician has
treated a patient over an extended period of time, his opinion usually should be afforded
great weight.244 A treating physician's opinion is given “controlling weight” if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence [in the claimant's] case record.”245
A final disability determination must not conflict with an opinion deserving of
controlling weight. An ALJ may reject a treating physician's opinion "only on the basis of
contradictory medical evidence."246 That opinion may not be rejected for no reason or
the wrong reason.247 When there is contradictory medical evidence, the ALJ must
carefully evaluate how much weight to give the treating physician's opinion, and provide
an explanation as to why the opinion is not given controlling weight.248
“A decision not to give a treating physician's opinion controlling weight must not
automatically become a decision to give a treating physician's opinion no weight
whatsoever.”249 Instead, “treating source medical opinions are still entitled to deference
and must be weighed using all of the factors provided in 20 CFR [§§ ] 404.1527 and
416.927.”250 These factors include the treatment relationship, the length of treatment
242

Plummer v. Apfel, 186 F .3d 422, 429 (3d Cir. 1999) (quoting Rocco v. Heckler, 826 F .2d
1348, 1350 (3d Cir. 1987)).
243
Mason, 994 F .2d at 1067.
244
See Dass v. Barnhart, 386 F. Supp 2d 568, 576 (D. Del. 2005).
245
Fargnoli v. Massanari, 247 F.3d 34,43 (3d Cir. 2001).
246
Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000).
247
Id. at 317.
248
Gonzalez, 537 F. Supp. 2d at 660.
249
Id.
250
Id.

31

relationship, the frequency of examination, the nature and extent of the treatment
relationship, supportability of the opinion afforded by the medical evidence, consistency
of the opinion with the record as a whole, and specialization of the treating physician.251
Here, more than little weight should have been applied to the treating physician’s
opinion.252 Dr. Callahan’s opinion, particularly in terms of his assessment regarding
plaintiff’s hand and arm limitations, is “not inconsistent with the other substantial
evidence” in the record.253 As discussed herein, the ALJ seemingly ignored Dr.
Callahan’s RFC assessment regarding plaintiff’s hand and arm conditions. Despite
failing to consider Dr. Callahan’s entire assessment, the ALJ nonetheless chose to give
controlling weight to the opinion of the state agency physician.254
In support of his determination that the state agency physician was more credible
than Dr. Callahan, the ALJ simply stated that “Dr. Kataria considered the claimant’s
chronic headaches, her cervical impairment, and the claimant’s complaints of severe
knee pain in light of the generally benign medical findings of record, and he concluded
that the claimant retains the capacity to perform a significant range of sedentary work
activities,”255 commenting “the undersigned agrees.”256
Such a brief justification for his decision to adopt contradictory medical evidence
does not constitute a careful evaluation or a sufficient explanation as to why Dr.

251

Id.
D.I. 11 at 25.
253
Fargnoli, 247 F.3d at 43. See also D.I. 11 at 152, 164, 180, 182, 196, 217, 270, 386, 401, 402,
252

422.
254

D.I. 11 at 25.
Id.
256
Id.
255

32

Callahan’s opinion was not given controlling weight.257 Moreover, Dr. Kataria’s opinion,
which stated plaintiff had no push and/or pull limitations or manipulative limitations,258
conflicts with the extensive record of her hand and arm limitations.259
Even when the treating source opinion is not given controlling weight, the ALJ
must apply several factors in deciding how much weight to assign it.260 Here, the ALJ
failed so do so, as he merely commented that “[n]owhere are these asserted limitations
apparent in Dr. Callahan’s treatment records that repeatedly reference the claimant’s
ability to ‘perform ADLs,’ nor are these limitations consistent with the reported medical
findings of record.”261 Dr. Callahan began treating plaintiff in 2002 which continued into
2010.262 Plaintiff visited Dr. Callahan on regular basis, during which time she was
examined, prescribed medications, and underwent cervical point injections.263 Finally,
Dr. Callahan’s assessment of plaintiff’s arm and hand limitations were supported by
medical evidence, and consistent with the diagnosis of cervical facet syndrome.264
Because treating source medical opinions are still entitled to some deference, and the
ALJ failed consider Dr. Callahan’s opinion by applying the elements of 20 C.F.R. §§
404.1527 and 416.927,265 the ALJ’s assessment regarding Dr. Callahan’s limited
credibility is not supported by substantial evidence. On remand, the ALJ should

257

Gonzalez, 537 F. Supp. 2d at 660.
D.I. 11 at 374-76.
259
See supra notes 210-35 and accompanying text.
260
Id.
261
D.I. 11 at 25.
262
Id. at 271.
263
See id. at 44-45
264
Id. at 386-87.
265
Gonzalez, 537 F. Supp. 2d at 660.
258

33

carefully consider both Dr. Kataria266 and Dr. Callahan’s267 reports and specifically
discuss the basis, if any, for rejecting the opinions offered by Dr. Callahan.
2.

Assessment of Plaintiff’s Employability

The ALJ found the vocational expert testified that a hypothetical individual with
plaintiff’s age, education, work experience, and RFC was employable in certain
sedentary unskilled occupations.268 Consequently, he determined plaintiff was “capable
of making a successful adjustment to other work that existed in significant numbers in
the national economy.”269
In this final step of the sequential evaluation process for determining whether a
claimant is disabled, the ALJ “must analyze the cumulative effect of all the claimant’s
impairments in determining whether she is capable of performing work and is not
disabled.”270 When a claimant has established that she is unable to return to her past
employment, the ALJ has the burden to show that there is other employment that the
claimant is capable of performing.271
In order to meet the burden of production at step five of the sequential analysis,
the Commissioner needs to identify at least one occupation that exists in significant
numbers in the national economy that a claimant can perform.272 A vocational expert's
answer to a hypothetical question may be considered substantial evidence only when

266

D.I. 11 at 373-78.
Id. at 427-30.
268
Id. at 27.
269
Id.
270
Plummer, F.3d at 428 (citing 20 C.F.R. § 404.1523).
271
Id. at 429 (citing Ferguson v. Schweiker, 765 F.2d 31, 36 (3d Cir. 1981).
272
See Craigie v. Bowen, 835 F.2d 56, 58 (3d Cir.1987).
267

34

the question reflects all of a claimant's impairments supported by the record.273 The ALJ
need not include any impairments and limitations that are not “medically established” by
the record.274 It is the duty of the ALJ alone to determine the claimant's limitations and
RFC.275
Because the court has already determined that the ALJ improperly assessed
plaintiff’s RFC, the ALJ's finding regarding employment must necessarily be reversed.
Specifically, the ALJ failed to consider plaintiff’s hand and arm limitations, which were
not accommodated when determining her ability to perform other work, since each job
considered required frequent reaching,276 which is defined as reaching 1/3 to 2/3 of the
time.277 Because “a vocational expert's answer to a hypothetical question can be
considered substantial evidence only when the question reflects all of a claimant's
impairments that are supported by the record,”278 and the hypothetical question failed to
consider plaintiff’s hand and arm limitations,279 the ALJ’s employment determination is
not supported by substantial evidence.
C.

Side Effects of Medication

Plaintiff argues the ALJ failed to properly consider the side effects of her
medications.280 Defendant maintains the ALJ accounted for these limitations, and his
assessment is supported by substantial evidence.281 The court finds the ALJ properly
273

See Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir.1987).
See Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.2005).
275
See 20 C.F.R. §§ 404.1545, 404.1546, 416.945, 416.946.
276
D.I. 11 at 53-54.
277
DICTIONARY OF OCCUPATIONAL TITLES (Dep’t of Labor, 4th ed., 1991) §§ 249.587-018 (microfilm
document preparer), 209.587-010 (addresser), 713.687-018 (final assembler).
278
Chrupcala, 829 F.2d at 1276.
279
D.I. 11 at 51-54.
280
D.I. 14 at 5-7.
281
D.I. 17 at 10-13.
274

35

considered the side effects of plaintiff’s medications in making his determination.
The Commissioner’s regulations and Third Circuit precedent require an ALJ to
make findings regarding the effectiveness and side effects of medications.282 Under 20
C.F.R. § 404.1529(c)(3)(iv), in determining whether a claimant is disabled, the
Commissioner will consider the type, dosage, effectiveness, and side effects of any
medication the claimant takes or may have taken to alleviate pain or other symptoms.283
Plaintiff’s medications include Methodone, Oxycodone and Robaxin.284 Dr.
Callahan noted these medications cause drowsiness and lightheadedness.285 In making
his assessment, the ALJ considered these side effects, and noted that “due to the
combination of her impairments and her use of narcotic and opioid pain medications,
the claimant cannot climb to or work at heights or with hazardous or vibrating
machinery.”286 None of the jobs identified by the vocational expert involve such
activities.287
Moreover, the ALJ observed “the claimant’s mental capacity for work is limited
only by her pain and the side-effects of her medications, including drowsiness and
fatigue,”288 and ultimately found she could perform simple, routine, unskilled work.289
Because plaintiff's treatment records do not support any other effects from

282

Burnett, 220 F. 3d at 122 n.3 (citing Stewart v. Sec y of Health, Educ. and Welfare, 714 F.2d
287, 290 (3d Cir. 1983)). See also Dougherty v. Astrue, 715 F. Supp. 2d 572, 585 (D. Del. 2010); 20
C.F.R. § 404.1529(c)(3)(iv); SSR 96-7p, 1996 WL 374186.
283
20 C.F.R. § 404.1529(c)(3)(iv).
284
D.I. 11 at 236.
285
Id. at 427.
286
Id. at 25.
287
Id. at 53-54. See also DICTIONARY OF OCCUPATIONAL TITLES (Dep’t of Labor, 4th ed., 1991)
§§ 249.587-018 (microfilm document preparer), 209.587-010 (addresser), 713.687-018 (final assembler).
288
D.I. 11 at 26.
289
Id.

36

medication,290 by incorporating drowsiness and fatigue in his analysis, the ALJ
accounted for the side effects plaintiff experienced.
D.

Mental Limitations Caused by Pain

Finally, plaintiff argues the ALJ failed to properly consider mental limitations
caused by pain.291 Defendant maintains the ALJ recognized such concerns, and his
assessment is supported by substantial evidence.292 The court finds the ALJ properly
considered the effect pain has on her mental capacity to work.
The Commissioner has acknowledged pain may cause both exertional and
nonexertional limitations.293 Although allegations of pain and other subjective symptoms
must be consistent with objective medical evidence,294 the ALJ must still explain why he
is rejecting such testimony.295
The burdens of production and proof in a disability determination proceeding rest
with the claimant.296 Federal courts have tempered the statutory allocation by providing
that where a claimant is unrepresented, the ALJ has an independent duty to develop the
record.297 However, "[w]hen an applicant for social security benefits is represented by
counsel the administrative law judge is entitled to assume that the applicant is making

290

D.I. 11.
D.I. 14 at 5-7.
292
D.I. 17 at 10-13.
293
See 20 C.F.R. § 404.1569a(a) (explaining that pain may cause exertional or nonexertional
limitations). See also SSR 96-8p, 1996 WL 374184, at *1 (“Medical impairments and symptoms, including
pain, are not intrinsically exertional or nonexertional. It is the functional limitations or restrictions caused
by medical impairments and their related symptoms that are categorized as exertional or nonexertional.”).
294
See Hartranft, 181 F.3d at 362 (citing 20 C.F.R. § 404.1529).
295
See Van Horn, 717 F.2d at 873.
296
42 U.S.C § 423(d)(5)(A) ("An individual shall not be considered to be under a disability unless
[s]he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social
Security may require.").
297
Ferguson v. Schweiker, 765 F.2d 31, 36 (3d Cir. 1985); see also Livingston v. Califano, 614
F.2d 342, 345 (3d Cir. 1980).
291

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his strongest case for benefits."298
Here, the vocational expert acknowledged pain affects “concentration,
persistence, and pace, and attending to job duties,” and could be work preclusive.299
The vocational expert further stated if plaintiff were experiencing pain at the level she
claimed, she was not employable,300 because such pain would reduce her productivity
more than 15 to 20 percent,301 and cause excessive absences.302
In light of this evidence, the ALJ properly determined plaintiff’s mental capacity
for work would be affected by her pain, and would limit the type of work she could
perform.303 The ALJ specifically discussed the intensity, persistence and functionally
limiting effects of her pain,304 finding the pain was as intense as plaintiff asserts.305
The ALJ further noted plaintiff never claimed any memory, concentration, or
attention deficits, and found no evidence of such complaints in the record.306 Despite
plaintiff’s arguments it was the obligation of the ALJ to ferret out her mental limitations
during the hearing,307 since she was represented by counsel,308 this burden rested with
her.309
Furthermore, the ALJ considered Dr. Callahan’s findings that her depression and

298

Glenn v. Secretary of Health and Human Servs., 814 F.2d 387, 391 (7th Cir. 1987).
D.I. 11 at 52.
300
Id.
301
Id.
302
Id. at 53.
303
Id. at 26.
304
Id. at 24.
305
Id.
306
Id.
307
D.I. 14 at 7.
308
Ferguson v. Schweiker, 765 F.2d 31, 36 (3d Cir. 1985); see also Livingston v. Califano, 614
F.2d 342, 345 (3d Cir. 1980).
309
42 U.S.C § 423(d)(5)(A). See also Bowen, 482 U.S. at 147 n.5.
299

38

anxiety would often interfere with concentration and other work-related mental
abilities,310 and found no support in the record.311 His determination that Dr. Callahan’s
assessment of plaintiff’s work-related mental deficiencies lacked credibility is supported
by substantial evidence. Notes by Dr. Schwartz on April 6, 2010,312 contemporaneous
with Dr. Callahan’s April 2010 assessment, describe plaintiff's mood and affect as alert
and cooperative, with no evidence of acute distress.313 The ALJ properly evaluated the
relevant evidence regarding mental limitations, by restricting employment to simple,
routine, unskilled work.
VII.

ORDER AND RECOMMENDED DISPOSITION
For the reasons contained herein, I recommend that:
(1) Plaintiff’s motion for summary judgment (D.I. 13.) be GRANTED in part, and

the issues related to hand and arm limitations be remanded for further consideration.
(2) Defendant’s cross-motion for summary judgment (D.I. 16) be DENIED.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B),
FED. R. CIV. 72(b)(1), and D.Del.LR 72.1. The parties may serve and file specific written
objections within ten (10) days after being served with a copy of this Report and
Recommendation.
The parties are directed to the Court’s standing Order in Non-Pro Se matters for
Objections Filed under FED. R. CIV. 72, dated November 16, 2009, a copy of which is
available on the Court’s website, www.ded.uscourts.gov.

310

D.I. 11 at 26 (citing D.I. 11 at 427-30).
Id.
312
Id.
313
Id.
311

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Date: July 24, 2013

/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

40