Daniello v. Commisioner

Filing 23

REPORT AND RECOMMENDATIONS re 16 MOTION for Summary Judgment filed by Irene R. Daniello and 18 Cross MOTION for Summary Judgment filed by Commissioner. Please note that when 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 6/20/2013. Signed by Judge Mary Pat Thynge on 6/3/13. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

IRENE R. DANIELLO,
Plaintiff,
v.
CAROLYN COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Civ. No. 12-1023-GMS-MPT

REPORT AND RECOMMENDATION
I.

INTRODUCTION
On February 22, 2013, plaintiff Irene R. Daniello (“plaintiff”) filed this action

against defendant Carolyn W. Colvin, Acting Commissioner of Social Security
(“defendant”).1 Plaintiff seeks judicial review, pursuant to 42 U.S.C. § 405(g), of a
decision by defendant denying 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. For the reasons set forth below, the court
recommends plaintiff’s motion for summary judgment be denied, and that defendant’s
cross-motion for summary judgment be granted.
II.

BACKGROUND
A.

1

Procedural History

Carolyn W. Colvin became the Commissioner of Social Security on February 13, 2013, after this
proceeding was initially filed. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure (“Fed. R.
Civ. P”), Carolyn W. Colvin replaced the previous Commissioner, Michael J. Astrue, as the defendant in
this case.

On July 14, 2006, plaintiff applied for DIB. Plaintiff alleged her disability began
July 7, 2006 due to mild scoliosis, herniated discs, and a recent heart attack with stent
placement. Her claim was initially denied on July 6, 2007, and upon reconsideration on
September 13, 2007. Plaintiff subsequently filed a written request for a hearing on
September 18, 2007. A hearing before Administrative Law Judge (“ALJ”) Edward J.
Banas was conducted on June 26, 2008.2 Plaintiff, represented by counsel, testified at
the hearing. Also appearing and testifying was Diana Sims, an impartial vocational
expert, as well as plaintiff’s husband and sister. After plaintiff raised previously a
undisclosed claim of depression, the ALJ ordered she undergo a psychological exam
following the hearing. This consultative examination was conducted by psychologist,
Joseph Keyes, Ph.D, on July 25, 2008.3
A supplemental hearing was conducted by ALJ Banas on January 8, 2009.4
During this hearing, impartial medical expert, Hillel Raclaw, Ph.D, testified via
telephone. Plaintiff and her husband also testified. Thereafter, plaintiff’s attorney
submitted written interrogatories for Dr. Keyes to clarify his report, which were answered
on February 18, 2009, and the record was closed.5 On March 27, 2009, the ALJ denied
her claims, finding plaintiff was not considered disabled under sections 216(I) and
223(d) of the Social Security Act.6 The ALJ determined that after consideration of the
entire record, plaintiff had the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a), except that she occasionally needed to change
2

D.I. 10 at 31-70.
D.I. 11 at 684-93.
4
D.I. 10 at 71-88.
5
D.I. 11 at 750-55.
6
D.I. 10 at 136-52.
3

2

positions, and is limited to simple, routine work due to pain and depression.7
Plaintiff filed a request for review of that decision, which was granted by the
Appeals Council on November 23, 2009.8 The hearing was originally scheduled for
August 11, 2010, but did not proceed as plaintiff objected to the medical advisor
testifying by phone during the hearing.9 The hearing before ALJ Banas occurred on
November 4, 2010.10 Present at the hearing were plaintiff and her counsel, Sims, and
the medical expert, Dr. Raclaw, who was permitted to testify by telephone over plaintiff’s
objection.
On December 16, 2010, the ALJ issued a written decision denying plaintiff’s
application for DIB. Specifically, the ALJ found that while her medically determinable
impairments could reasonably produce the alleged symptoms, plaintiff’s statements
regarding their intensity, persistence and limiting effects were not credible to the extent
that they were inconsistent with the residual functioning capacity assessment.11 As a
result, the ALJ held plaintiff was not disabled under sections 216(I) and 223(d) of the
Social Security Act.
Plaintiff’s subsequent appeal to the Appeals Council was denied on June 12,
2012. Consequently, the December 16, 2010 ALJ decision is the final decision of the
Commissioner. Seeking judicial review of this decision, on February 22, 2013, plaintiff
moved for summary judgment in the District Court of Delaware. Defendant filed a
cross-motion for summary judgment.
7

Id. at 144.
D.I. 10 at 153-57.
9
Id. at 89-93.
10
Id. at 94-133.
11
Id. at 16.
8

3

B.

Plaintiff’s Medical History, Condition and Treatment

Plaintiff was thirty-seven years old at the time of the November 4, 2010 hearing.
She alleges disability began July 2006, when she was thirty-two years old. She is a
high school graduate with prior vocational experience as a waitress, cashier and retail
price accuracy team member. Most recently, plaintiff worked part-time at Target
through October 2010. Her detailed medical history is contained in the record; however,
this recommendation will provide a brief summary of the pertinent evidence.
Specifically, the recommendation will address the relevant medical history and evidence
regarding plaintiff’s physical ability to do work in relation to her heart and back
conditions, as well as in regard to her mental state.
1.

Plaintiff’s Physical Ability to Do Work
a.

Plaintiff’s Heart Attack and Cardiac Condition

Plaintiff was admitted to the hospital on July 8, 200612, complaining of chest
pains. Treating physicians concluded she had suffered a myocardial infarction, related
to smoking and use of oral contraceptives.13 A catheterization confirmed coronary
artery disease with 90% stenosis of the LAD and a 25% ejection fraction with ischemic
cardiomyopathy.14 Plaintiff underwent a thrombectomy and stenting, and was released
after a few days.15 She returned to work in August 2006, roughly one month after her
heart attack.16 Records from her cardiologist, Dr. Ramos, indicate she underwent

12

D.I. 11 at 536-38.
Id. at 538.
14
Id. at 539.
15
D.I. 10 at 142.
16
Id. at 43.
13

4

cardiac rehabilitation.17 On November 8, 2006, Dr. Ramos noted plaintiff was “doing
very well from the cardiac standpoint.”18 In February 2007, plaintiff told Dr. Ramos that
as a result of occasional of chest discomfort while at work, she reduced her work hours
and had no further discomfort.19 Dr. Ramos’ notes reflect that by August 2007 plaintiff
returned to smoking, despite his repeated warnings to quit.20
On January 29, 2008, Dr. Ramos reported plaintiff was doing “pretty well from a
cardiac standpoint,” and she could perform her usual activities without difficulty.21 Dr.
Ramos’ treatment records show he did not impose any exertional restrictions.22 Followup testing in May 2008 was normal, as the echocardiogram revealed an ejection fraction
of 35 to 40%, and a stress test showed no evidence of ischemia. Plaintiff’s medical
records show normal blood pressure readings. Plaintiff continues to be seen by Dr.
Ramos for follow-up care. Most recently, in the May 24, 2010 follow-up visit note, Dr.
Ramos stated plaintiff was doing “fairly well from a cardiac standpoint since I last saw
her 10 months ago.”23 He noted plaintiff presented at the emergency room with atypical
chest pain, which was determined to be non-cardiac related. Although plaintiff
continues to smoke, she denied any further chest pain or cardiac symptoms. A stress
test was negative for ischemia.24
b.

Plaintiff’s Back Condition

17

D.I. 11 at 805.
Id. at 805.
19
Id. at 808.
20
Id. at 810-811.
21
Id. at 813.
22
Id. at 804-860.
23
Id. at 952.
24
Id. at 954.
18

5

In her records with Social Security, plaintiff advised she has experienced back
pain since the birth of her last child in 2005,25 and has undergone several MRI’s and xrays to determine the source of the pain. A lumbar spine MRI conducted on June 21,
2006 showed degenerative disc disease from L3-L4 through L5-S1, most significantly
involving the L5-S1 level with mild disc bulges and spondylotic changes, with a small
central disc herniation at L3-4.26 The MRI also suggested a tear of the annulus fibrosis
at L4-5, and a left paracentral disc herniation at L5-S1. On July 3, 2006, pain
management and rehabilitative specialist, Irene Mavrakakis, M.D., concluded the MRI
indicated probable mild scoliosis, but no neurological changes.27 A June 29, 2006
lumbosacral spine x-ray showed degenerative disc disease at L5-S1; the results,
however, were unremarkable.28
Plaintiff’s first documented visit to Dr. Mavrakakis occurred on July 3, 2006.
Plaintiff told Dr. Mavrakakis that she was “doing well until recently,” and rated her lower
back pain seven out of ten on the visual analog scale (“VAS”).29 Dr. Mavrakakis
diagnosed chronic lower back and lower extremity pain secondary to lumbar radiculitis,
concurrent sacroiliac syndrome, and myofascial pain, with no evidence of weakness,
numbness or bowel or bladder dysfunction. Dr. Mavrakakis’ progress note, however,
indicated “low back pain and left leg pain,” as well as increased “lower extremity pain
secondary to lumbar radiculitis,” but also advised plaintiff “denies leg pain.”30 Dr.

25

D.I. 10 at 124.
D.I. 11 at 526-27, 861.
27
Id.
28
Id.
29
Id.
30
Id. at 526-27, 861-62.
26

6

Mavrakakis continued plaintiff on Celebrex, Darvocet and other medications, and did not
prescribe any additional medications. She told plaintiff to continue with home exercises,
and avoid exacerbating activities. Also discussed was a possible MRI, and a different
work environment. Dr. Mavrakakis offered a surgical evaluation, but plaintiff declined.31
A diagnostic imaging report dated May 25, 2007 revealed five lumbar spine films
showed normal alignment of the lumbar vertebrae,32 with the disc spaces well
maintained.33 Subtle left convex scoliosis was evident, with no bony destruction or
fracture. A follow-up MRI on June 14, 2007 indicated similar results to the June 2006
MRI, including a small midline L3-4 disc herniation and annular tear, a tiny annular tear
and central disc herniation at L4-5, and a L5-S1 bulge which mildly encroached on the
left neuroframen.34
On July 3, 2007, state agency physician Michael Borek, D.O., completed a
physical residual functional capacity (“RFC”) assessment of plaintiff.35 Dr. Borek
determined plaintiff was able to occasionally lift up to twenty pounds, frequently lift
and/or carry ten pounds, stand and/or walk for a total of six hours in an eight-hour work
day, and her ability to push and/or pull was unlimited, other than restrictions for lifting
and/or carrying.36 He felt plaintiff was fairly credible. He concluded her condition was
severe, but had not lasted twelve months. As a result, he found plaintiff sufficiently
improved to do sedentary work in light of her back problems. He further noted there

31

Id. 862.
Id. at 610.
33
Id.
34
Id. at 528-29; D.I. 17 at 8.
35
D.I. 11 at 611-17.
36
Id. at 612.
32

7

was limited medical evidence of record (“MER”) to establish the severity of back pain.37
Dr. Borek’s assessment was confirmed in a subsequent medical evaluation by
state agency cardiologist, Carl Bancoff, M.D., on September 10, 2007, who found
plaintiff could perform a modified range of medium work.38 An additional medical
evaluation conducted by state agency physician, Gurcharan Singh, M.D., on September
10, 2007, stated plaintiff’s condition changed from July 23, 2007 with increased back
pain and limited ability despite mediation.39 Dr. Singh concluded the latest note from
Pain Treatment and Rehabilitation dated May 27, 2007, revealed moderate right
sacroiliac joint and midline lumbar tenderness. Patrick’s testing produced right and left
SI joint area pain. Plaintiff had no neurological changes.40 He reviewed the
medications related to her cardiac condition and noted “only muscle relaxant for lower
back pain.”41 Dr. Singh agreed with Dr. Borek’s July 3, 2007 RFC assessment.
Plaintiff underwent physical therapy with Edelman Physical Therapy from
February 2, 2007 through April 26, 2007. After she stopped physical therapy, she was
instructed to continue with at-home rehabilitative exercise. She initially informed Dr.
Mavrakakis on September 25, 2007 that she completed the home exercises “as time
allows.”42 She stated on December 20, 200743 that she did do the exercises, but by July
29, 2008, was no longer doing her home exercises.44

37

Id. at 616.
Id. at 646.
39
Id. at 644.
40
Id.
41
Id.
42
Id. at 696.
43
Id. at 698.
44
Id. at 877.
38

8

Plaintiff continued to visit Dr. Mavrakakis on a regular basis between July 2006
and October 2010. The record reflects that Dr. Mavrakakis’ progress notes from July 3,
2006 to September 22, 200845 indicate little change in plaintiff’s symptoms or
examination findings. Plaintiff repeatedly complained of back pain. Dr. Mavrakakis’
progress notes consistently diagnosed “chronic lower back and lower extremity pain
secondary to lumbar radiculitis, concurrent sacroiliac syndrome and myofascial pain.”46
Beginning on May 22, 2007, Dr. Mavrakakis also assessed facet syndrome.47
Examinations typically indicated “minimal” or “mild” sacroiliac joint tenderness with
occasional “mild” lumbar spasm.
There are a few instances in which a specific incident triggered an increase in
pain. For example, plaintiff complained of increased pain during a March 27, 2007 visit,
after a long-distance car ride.48 She advised during a visit on May 25, 2007 that she
experienced increased pain following a slip on a wet bathroom floor,49 as well as after
playing with her children in July 2007.50 During these exacerbations, Dr. Mavrakakis’
findings increased to “moderate” tenderness. Plaintiff consistently denied any leg pain,
weakness, numbness or bowel or bladder dysfunction.
As of July 25, 2007,51 plaintiff also received pain medication injections from Dr.
Mavrakakis, which she continues to receive intermittently. Throughout her treatment
with Dr. Mavrakakis, plaintiff was prescribed numerous medications, including Flexeril,

45

Id. at 861-88.
Id.
47
Id. at 872.
48
Id. at 870.
49
Id. at 873.
50
Id. at 877.
51
Id. at 620.
46

9

Neurontin, Celebrex, Skelaxin, Darvocet, the dosage and frequency for which varied
over the four year time span of her alleged disability. Plaintiff did, however, consistently
advise she improved while on medication, and denied any side effects.52 Although
plaintiff visited Dr. Mavrakakis monthly for prescription refills, she apparently never
requested a referral. While Dr. Mavrakakis suggested a surgical consultation, plaintiff
refused.53 She confirmed during the June 26, 2008 hearing that she did not want
surgery.54
On June 2, 2008, Dr. Mavrakakis completed a Medical Source Statement.55
Therein she reported a diagnosis of lumbosocral spondylosis,56 a diagnosis never
previously described in her progress notes. In her report, Dr. Mavrakakis opined
plaintiff could sit for a total of three hours during an eight hour work day,57 and on a
regular and continuing basis lift one to five pounds, occasionally lift six to ten pounds,
and never lift over eleven pounds.58 She indicated plaintiff could constantly balance,
occasionally stoop, frequently perform postures of the neck, constantly engage in
repetitive use of her hands, and required no assistive device for ambulating.59 She
concluded plaintiff would be absent, on average, two days per month due to her
impairments.60
On May 8, 2009, plaintiff informed Dr. Mavrakakis that she was working four days

52

Id. at 618-43, 647-57, 695-704, 713-22, 861-88, 906-25, 962-1001.
Id. at 862.
54
Id. at 40.
55
Id. at 882-88.
56
Id. at 882.
57
Id. at 884.
58
Id. at 886.
59
Id. at 887.
60
Id. at 888.
53

10

per week, eight hours per day which caused increased pain.61 She confirmed
medication provided pain relief. At this time, she rated her pain as five out of ten, which
is considered a moderate level of pain or discomfort. Dr. Mavrakakis suggested to
avoid exacerbating activities. On June 17, 2009, plaintiff was given pain injections,
including at the left L5-S1 joint.
Dr. Mavrakakis indicated in her February 8, 2010 progress note that plaintiff
suffered from sacroiliac syndrome and facet syndrome.62 A February 25, 2010 lumbar
spine x-ray demonstrated at the lumbosacral juncture avulsed versus unfused
spophysis at the inferior posterior aspect of L5. Otherwise, the examination was
unremarkable, and commensurate with plaintiff’s age with only mild degenerative
changes present.63 On March 2, 2010, an MRI showed no evidence of acute injury, but
indicated interval progression of degenerative disc disease, severe at L5/S1, with a
slight increase of the central and left lateral disc herniation, and mild central canal
stenosis with narrowing and encroachment of the left S1 nerve. The MRI also revealed
an increase in the size of small disc herniations with annular fissuring, arthrosis of the
facet joints and hypertrophy of lumbar spine, as compared to the June 14, 2007 MRI.
Dr. Mavrakakis referred plaintiff to Matthew Eppley, M.D., a neurosurgeon, who
examined plaintiff on April 13, 2010. Dr. Eppley noted intact neurological findings, but
suggested possible spinal surgery.64 An April 22, 2010 MRI of the lumbar spine showed
posterocentral and left paracentral disc protrusion, impinging the left S1 nerve roots in

61

Id. at 915.
Id. at 906.
63
Id. at 897
64
D.I. 10 at 490.
62

11

the thecal sac, which had not significantly progressed.65 A May 2, 2010 cervical spine
x-ray showed no evidence of subluxation or prevertebral soft tissue swelling or
degenerative changes.66 A subsequent MRI conducted on May 4, 2010 revealed
degenerative disc disease at the L5/S1 level, normal disc spaces at the other levels,
and no acute osseous abnormality.67
Because of left sided facet tenderness during the May 10, 2010 examination, 68
plaintiff received a L5-S1 facet joint injection on June 2, 2010.69 On July 26, 2010, she
told Dr. Mavrakakis that she was doing well, and rated her pain as five out of ten.70
During the August 27, 2010 visit, severe tenderness of the left sacroiliac joint and
lumbar spasm were reported by Dr. Mavrakakis.71 A September 8, 2010 lumbar
discogram showed pain at the L4-L5 disc level with a posterior annular tear, pain at the
L5-S1 disc level with diffuse internal disruption, and a normal study at the L3-L4 disc
spaces.72
As of the September 15, 2010 visit with Dr. Mavrakakis, plaintiff had been
prescribed Vicodin, Neurontin, Zocor, Plavix, Celexa, Ativan and Flexeril.73 During this
visit, Dr. Mavrakakis confronted plaintiff regarding her overuse of narcotics, threatened
to discharge her as a patient, and required her to attend drug counseling.74 Dr.
Mavrakakis recommended plaintiff seek less physical work and undergo vocational
65

Id. at 485.
D.I. 11 at 899.
67
Id.
68
Id. at 972.
69
Id. at 970.
70
Id. at 967.
71
Id. at 966.
72
Id. at 959.
73
Id. at 964.
74
Id.
66

12

rehabilitation.75 Plaintiff advised she intended to quit her present job because of pain.76
Dr. Mavrakakis prepared a Medical Source Statement detailing plaintiff’s medical
condition from July 2005 through August 31, 2010.77 Therein she reported plaintiff
suffered daily from right low back pain, which increased by bending, lifting, pulling or
pushing. Dr. Mavrakakis noted positive objective signs, including reduced range of
motion, abnormal posture in the lumbar area, tenderness, trigger points, muscle spasm
and abnormal gait.78 She opined plaintiff could sit for a total of three hours during a
eight hour work day, and would be absent from work twice a month.79 She further
concluded plaintiff’s conditions had not improved, and prevented her from working any
longer than as indicated on the June 2, 2008 Medical Source Statement.80
2.

Plaintiff’s Mental Ability To Work

Plaintiff did not initially allege any mental impairment or depression in her
disability reports dated July 14, 2006, July 26, 2007, or September 25, 2007 or in her
function report of July 14, 2006.81 In her initial July 2006 report, plaintiff did not check
any boxes that her illness, injuries or conditions affected memory, task completion,
concentration, understanding, following instructions, getting along with others or dealing
with authority.82 She did, however, indicate in her 2007 report that “since the heart
attack,” she “did not handle stress well.”83

75

Id.
Id.
77
Id. at 945-51.
78
Id. at 946.
79
Id. at 948.
80
Id. at 945.
81
D.I. 10 at 349-58, 386-02, 396-401, 336-345.
82
Id. at 343.
83
Id. at 380.
76

13

During the June 26, 2008 hearing, plaintiff mentioned for the first time
depression.84 She testified her depression began following the July 2006 heart attack.85
She never previously advised of her concerns about depression because she was
“embarrassed.”86 Dr. Mavrakakis’ June 2008 Medical Source Statement, however,
indicated plaintiff had no limitation in dealing with work stress.87 In light of plaintiff’s
allegations of depression, ALJ Banas ordered a psychological consultative evaluation.88
Plaintiff sought therapy with F.H. Evertt & Associates, Inc. in July 2008, and
began seeing a licensed clinical social worker (“LCSW”).89 In her report, the LCSW
concluded plaintiff had a major depressive disorder related to her heart condition and
other health problems.90 Plaintiff’s current Global Assessment Functioning (“GAF”) was
48.91 The report noted that plaintiff was neat and casual, passively cooperative with
normal eye contact, behaved in an anxious and guarded manner, had coherent speech
and relevant content and normal productivity.92 The report concluded plaintiff’s mood
and affect was depressed, and she exercised fair to poor judgment regarding her
depression.93 The report further provided plaintiff was alert, oriented, with intact
attention and memory, average intelligence and adequate concentration, but because
she could not spell a word backwards, concluded she had inadequate concentration.94

84

Id. at 31-70.
Id. at 52.
86
Id.
87
D.I. 11 at 678.
88
D.I. 10 at 69.
89
D.I. 11 at 935.
90
Id. at 938.
91
Id.
92
Id. at 936.
93
Id.
94
Id. at 937.
85

14

Plaintiff attended 20 counseling sessions with Everett & Associates (later The Mind and
Body Consortium) between July 1, 2008 and November 22, 2011,95 and was prescribed
medication for depression from her primary care physician. Beginning on August 26,
2008, Dr. Mavrakakis also noted depression as treated by the plaintiff’s primary care
physician.96 Curiously, the record contains virtually no documentation regarding
plaintiff’s ongoing treatment from her primary care physician.97
Following the June 2008 hearing, plaintiff was examined by a psychologist,
Joseph Keyes, Ph.D, on July 25, 2008,98 who concluded her behavior was appropriate
and not unusual, and her level of motor activity was within normal limits. He found
plaintiff’s speech clear and easy to understand, her thinking clear, organized and
relevant to the situational context, and her social and interpersonal skills appropriate,
but limited.99 He concluded that based upon plaintiff’s statements, she had moderate to
severe symptoms of depression under the Beck Depression Inventory.100
Dr. Keyes rated plaintiff’s degree of impairment regarding her ability to relate to
other people as moderate, her restriction of daily activities as mild, with no deterioration
of personal habits and moderate constriction of interests.101 Dr. Keyes attempted to
assess plaintiff using the Minnesota Multiphasic Personality Inventory-2, but found
plaintiff’s clinical profile invalid since she responded in “an extremely exaggerated

95

Id. at 931-44; see also D.I. 17 at 11.
Id. at 878.
97
D.I. 10; D.I. 11.
98
D.I. 11 at 684-93.
99
Id. at 684-87.
100
Id.
101
Id. at 692.
96

15

manner.”102 Her GAF score was 60.103 In his Medical Source Statement, Dr. Keyes’
concluded plaintiff had no impairment understanding, remembering or carrying out
simple instructions, or making judgments regarding simple instructions. She had mild
impairment understanding, remembering and carrying out complex instructions.104
Janis Chester, M.D. completed a mental health report on April 5, 2010.105 Dr.
Chester assessed a GAF score of 50.106 Dr. Chester’s report noted plaintiff was wellgroomed, psychomotor retarded and soft-spoken,107 described her mood as depressed,
her affect flat, with moderate impairment in relating to others, moderate restriction of
daily activities, no deterioration in personal habits, and no limitation in performing
complex, varied or repetitive tasks or following instructions.108
Plaintiff underwent a psychiatric medication evaluation on April 22, 2010,
conducted by nurse practitioner, Laura Hummel, at the Mind and Body Consortium.109
Hummel’s report noted despite taking Celexa for a year, plaintiff felt the medication not
working.110 Hummel advised plaintiff to taper off Celexa and start Cymbalta. She noted
that plaintiff’s father-in-law passed away that week.111 Plaintiff reported low energy,
feeling depressed and useless, and easily upset. Hummel found plaintiff manifested
normal behavior, displayed a well nourished physical condition, had fair rapport with
under productive speech, and demonstrated normal thought process, irritable mood,
102

Id. at 686.
Id. at 687.
104
Id. at 689.
105
Id. at 781.
106
Id. at 783.
107
Id.
108
Id. at 784.
109
Id. at 926-34.
110
Id. at 926.
111
Id.
103

16

congruent affect and intact memory, with fair judgment and insight.112 Her diagnosis
was major depression, with a GAF of 45.113
C.

Hearing Testimony

A hearing was held on November 4, 2010 before ALJ Banas on remand from the
Appeals Council.114 Plaintiff appeared and testified at the hearing. Vocational expert,
Diana C. Sims, also testified. Hillel Raclaw, Ph.D., an impartial medical expert, testified
by telephone. In response to plaintiff’s objections to Dr. Raclaw’s telephonic testimony,
the ALJ allowed her counsel to voir dire Dr. Raclaw, subsequently overruled his
objection, and made a formal ruling in his December 16, 2010 decision.115
1.

Testimony by Dr. Faclaw

Dr. Raclaw testified based on his review of the record.116 He treated evidence
from the registered nurse at Mind and Body Consortium as well as the notes from
Everett and Associates as highly suggestive lay evidence, which indicated nothing of
clinical significance until 2008.117 Regarding the period between the alleged onset date
and December 31, 2007, Dr. Raclaw testified that, in reference to any severe mental
medically determinable impairments, plaintiff’s diagnosis was under 12.04, that is, a
depressive disorder.118 Dr. Raclaw noted other evidence, such as plaintiff’s completion
of the July 14, 2006 and the July 23, 2006 disability reports,119 did not indicate any

112

Id. at 929.
Id. at 930.
114
D.I. 10 at 94-133.
115
Id. at 19-20.
116
Id. at 101.
117
Id. at 104.
118
Id. at 105.
119
Id. at 346-48, 374-81.
113

17

emotional disturbances.120 He determined since plaintiff participated in normal daily
activities, such as driving, shopping, cooking, cleaning, performing household chores,
no specific mental issues were indicated.121
Dr. Raclaw testified that after 2008, plaintiff suffered from severe depression. He
stated the medical source data, “two CEs and Dr. Mavrakokis’ comments” indicate
“emotional issues” do not factor into plaintiff’s pain.122 He concluded the record
suggested plaintiff was capable of adjusting to occupational activity. Dr. Raclaw noted
that his opinion was supported by Dr. Keyes’ assessment, which reiterated plaintiff “is
able to transition from part-time work . . . to full-time work with no significant mental
factors precluding that transition.”123 Dr. Raclaw concluded the evaluation by Hummel
was contradictory to plaintiff’s claims of being essentially bedridden due to
depression.124 In light of the record, Dr. Raclaw determined plaintiff evidenced no
substantial limitations.125
2.

Testimony by Plaintiff

Plaintiff’s testimony confirmed her education and previous work experience as a
waitress, cashier and in retail.126 She stated she quit her job at Target a month prior to
the hearing because of her cardiac condition, herniated disks and depression.127
Because of the limitations imposed by her cardiologist, plaintiff claimed she could not

120

Id.
Id. at 106.
122
Id. at 112.
123
Id. at 113.
124
D.I. 10 at 120.
125
Id. at 113-114.
126
Id. at 121.
127
Id. at 123.
121

18

“run around” or “ride a bike or anything,” and had to be careful climbing stairs due to
shortness of breath, although she continued to smoke despite doctor’s orders, and
claimed her back problems, which started in 2005, continued to worsen.128 She testified
her pain level remained constant, and for the past two years pain medication was
ineffective.129 Plaintiff noted Dr. Eppley suggested surgery, but she had not discussed
his suggestion with her cardiologist.130 She testified her pain did not decrease when she
stopped work, and her depression had not improved in the past year.131 She further
claimed she was unable to get out of bed “a few days per month”, and had difficulty
interacting with her children.132
3.

Testimony of the Vocational Expert

Diana Sims testified as the vocational expert. Sims opined that pain and
depression have a vocational impact if they are sufficiently severe to cause more than
12 to 15 days of lost work time per year, cause one to be less than 80 productive while
on the job, or prevent doing simple, unskilled work.133 When asked what work a
hypothetical individual with a high school education, having similar past work experience
as plaintiff “despite what he or she may complain of,” could be capable of performing,
Sims stated that person could perform at a “sedentary, unskilled level,” employed as a
document preparer, such as a general office helper, for which regionally there are
approximately 900 jobs and nationally approximately 375,000 positions.134 That

128

Id. at 124.
Id. at 125, 127.
130
Id. at 127.
131
Id. at 128.
132
Id. at 129.
133
Id. at 130.
134
Id. at 131.
129

19

individual could also perform the job of a non postal mail sorter, where there are about
250 jobs regionally and in the national economy approximately 190,000 jobs. She
testified her opinion was consistent with the Dictionary of Occupational Titles. Based on
Dr. Mavrakakis’ limitations for sitting, standing and walking, Sims concluded plaintiff
could work part-time, but not full-time.135
D.

The ALJ’s Findings

Title II of the SSA, 42 U.S.C. § 423 (a) (1) (D), “provides for the payment of
insurance benefits to persons who have contributed to the program and who suffer from
a physical or mental disability.”136 A disability is defined as “the inability to engage in
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.”137
In Plummer v. Apfel, the Third Circuit outlined the appropriate test for determining
whether a disability exists:
In order to establish a disability under the SSA, a claimant must
demonstrate there is some “medically determinable basis for an
impairment that prevents him from engaging in any ‘substantial gainful
activity’ for a statutory twelve-month period.” A claimant is considered
unable to engage in any substantial activity only if his physical or mental
impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful work
which exists in the national economy.
The Social Security Administration has promulgated regulations
incorporating a sequential evaluation process for determining whether a

135

Id. at 132.
Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
137
42 U.S.C. § 423(d)(1)(A).
136

20

claimant is under a disability. In step one, the Commissioner must
determine whether the claimant is currently engaging in substantial gainful
activity. If the claimant is found to be engaged in substantial activity, the
disability claim will be denied. In step two, the Commissioner must
determine whether the claimant is suffering from a severe impairment. If
the claimant fails to show that her impairments are “severe”, she is
ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence of the
claimant’s impairment to a list of impairments presumed severe enough to
preclude any gainful work. If a claimant does not suffer from a listed
impairment or its equivalent, the analysis proceeds to steps four and five.
Step four requires the ALJ to consider whether the claimant retains the
residual functioning capacity to perform her past relevant work. The
claimant bears the burden of demonstrating an inability to return to her
past relevant work.138
If the ALJ determines that a claimant is either disabled or not disabled at any step in the
sequence, the analysis stops.139
Based on the factual evidence and testimony, the ALJ determined in his
December 16, 2010 opinion that plaintiff was not disabled; therefore, she was not
entitled to disability insurance benefits.140 The ALJ’s finds are summarized as follows:
1.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2014.

2.

The claimant has not engaged in substantial gainful activity since July 7,
2007, the alleged onset date (20 CFR 404.1571).

3.

The claimant has the following severe impairments: degenerative disc
disease of the lumbar spine, hypertension, status post myocardial
infarction, and depression (20 CFR 404.1520(c)).

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and

138

186 F.3d 422, 427-28 (3d Cir. 1999).
See 20 C.F.R. § 404.1520 (a) (2002).
140
D.I. 10 at 23.
139

21

404.1526).
5.

6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565).

7.

The claimant was born on October 16, 1973 and was 32 years old, which
is defined as a younger individual age 18-44, on the alleged disability
onset date (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 an issue in this case because the
claimant’s past relevant work is unskilled (20 CFR 404.1568).

10.

Considering the claimant’s age, education, work experience, and residual
function capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569 and
404.1569(a)).

11.

III.

After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform sedentary
work as defined in 20 CRF 404.1567(a) with occasional changes in
position, performing jobs which are simple and routine in nature with
minimal public contact.

The claimant has not been under a “disability,” as defined in the SSA, from
July 7, 2006, through the date of this decision (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 that “[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.”141 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

141

42 U.S.C. § 405(g)(2002).

22

administrative remedies.142 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.

STANDARD OF REVIEW
A district court’s review of the Commissioner’s decision is limited to whether that

decision is supported by substantial evidence.143 If the decision is supported by
substantial evidence, then the court is bound by the factual findings therein.144 The
findings of the Commissioner . . . as to any fact, if supported by substantial evidence,
shall be conclusive.”145 Substantial evidence has been defined as less than a
preponderance, but “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”146 “‘Substantial
evidence . . . must do more than create a suspicion of the existence of a fact to be
established . . . it must be enough to justify, if the trial were to a jury, a refusal to direct a
verdict when the conclusion sought to be drawn from it is one of fact for the jury.’”147
“Overall this test is deferential, and we grant similar deference to agency inferences
from facts if those inferences are supported by substantial evidence, even where this
court acting de novo might have reached a different result.”148 Furthermore, “the
142

Aversa v. Secretary of Health & Human Services, 672 F.Sup 775, 777 (D.N.J. 1987); see also
20 C.F.R. § 404.905 (2002).
143
Jesurum v. Sec’y of the United States Department of Health & Human Servs., 48 F.3d 114, 117
(3d. Cir. 1995) (citing Brown v. Bowen, 845 F.2d 1211, 1213 (3d. Cir. 1988)); see also 42 U.S.C. § 405(g).
144
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
145
42 U.S.C. § 405(g); 5 U.S.C. § 706(E); see Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190
(3d Cir. 1986).
146
Ventura v. Shalala, 55 F.3d 900, 901(3d. Cir. 1995) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)).
147
Universal Camera Cor v. NLRB, 340 U.S. 474, 477 (1951)(citing Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
148
Monsour Med. Ctr., 806 F.2d at 1190.

23

evidence must be sufficient to support the conclusion of a reasonable person after
considering the evidentiary record as a whole, not just the evidence that is consistent
with the agency’s finding.”149
Thus, “a single piece of evidence will not satisfy the substantiality test if the
[Commissioner] ignores, or fails to resolve, a conflict created by countervailing
evidence.”150 “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.”151 Where, for example,
countervailing evidence consists primarily of the claimant’s subjective complaints of
disabling pain or mental disability, 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.”152 Despite the deference given to administrative decisions in
disability benefit cases, “appellate courts retain a responsibility to scrutinize the entire
record and to reverse or remand if the [Commissioner]'s decision is not supported by
substantial evidence.”153
This standard has also been embraced by the Supreme Court for determining the
availability of summary judgment pursuant to Fed. R. Civ. Pro. 56.154 “By its very terms,
this standard provides that the mere existence of some alleged factual dispute between

149

Id.
Morales v. Apfel, 225 F.3d 310 (3d Cir. 2000).
151
Id.
152
Matullo v. Bowen, 926 F.2d 240, 245 (3d. Cir. 1990); see also Smith v. Califano, 637 F.2d 968,
970 (3d. Cir. 1981).
153
Smith v. Califano, 637 F.2d 968, 970 (3d. Cir. 1981).
154
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-251 (1986); see also Williams v. Apfel,
2000 U.S. Dist. LEXIS 4888 at *17 (D. Del. March 30, 2000), vacated by, Williams v. Apfel, 2001 U.S. Dist.
LEXIS 9048 (D. Del. March 30, 2001).
150

24

parties will not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact.”155 Summary
judgment is appropriate “against a party who fails to make a showing sufficient to
establish the existence of an [essential element] . . . on which that party will bear the
burden of proof at trial . . . since a complete failure of proof concerning an essential
element of [that] . . . party’s case necessarily renders all other facts immaterial.”156
The party moving for summary judgment bears the burden of demonstrating
there is no genuine issue of material fact,157 by showing the court “that there is an
absence of evidence to support the nonmoving party’s case.”158 On the other hand, “a
party opposing a properly supported motion for summary judgment ‘may not rest upon
the mere allegations or denials of his pleadings, but . . . must set forth specific facts
showing that there is a genuine issue for trial.’”159
When reviewing a motion for summary judgment, a court must evaluate the facts
in a light most favorable to the nonmoving party drawing all reasonable inferences in
that party’s favor.160 The court should grant the motion “unless the evidence be of such
a character that it would warrant the jury in finding a verdict in favor of that party.”161
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

155

Anderson, 477 U.S. at 247-48.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
157
Id. at 323.
158
Id. at 325.
159
Id. at 321 (citing Catrett v. Johns-Manville Sales Cor, 756 F.2d 181, 184 (1985)).
160
Anderson, 477 U.S. at 255.
161
Id. at 251.
156

25

necessarily justified or that the losing party waives judicial consideration and a
determination whether genuine issues of material fact exist.162 Moreover, “[t]he filing of
cross-motions for summary judgment does not require the court to grant summary
judgment for either party.”163
V.

DISCUSSION
After considering the record, the parties’ submissions and arguments, and the

applicable law, the court finds the ALJ’s decision is supported by substantial evidence.
First, the ALJ properly found plaintiff was not fully credible concerning her pain and
limitation. Second, the ALJ correctly reviewed all of the pertinent medical evidence.
Third, the ALJ did not err by giving the opinion of plaintiff’s doctor “some weight.”
Finally, the ALJ was justified in relying on the expert testimony of Dr. Raclaw regarding
plaintiff’s mental condition. Consequently, there is substantial evidence to support the
ALJ’s determination that, based on the factual evidence and testimony, plaintiff was not
disabled and not entitled to disability insurance benefits.
A.

Plaintiff’s Credibility

Plaintiff argues the ALJ erred in finding her testimony concerning her pain and
limitations not fully credible.164 In evaluating symptoms, the ALJ must “consider all . . .
symptoms, including pain.”165 Also, the ALJ must determine whether such symptoms
“can reasonably be accepted as consistent with the objective medical evidence and

162

Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
Krups v. New Castle County, 732 F. Sup 497, 505 (D. Del. 1990).
164
D.I. 17 at 16-17; D.I. 22 at 1-2.
165
20 C.F.R. § 404.1529(a).
163

26

other evidence.”166 As finder of fact, the ALJ is given considerable discretion in making
credibility findings.167 Once it is determined that an impairment “could reasonably be
expected to produce . . . symptoms, such as pain,” its intensity and persistence must be
evaluated to determine the effect on the ability to work.168
Under this evaluation, a variety of factors are considered, such as: (1) “objective
medical evidence,” (2) “daily activities,” (3) “location, duration, frequency and intensity,”
(4) medication prescribed, including its effectiveness and side effects, (5) treatment, and
(6) other measures to relieve pain.169 Subjective complaints of pain which are
supported by medical evidence should be given great weight.170 Thus, the ALJ
“determine[s] the extent to which a claimant is accurately stating the degree of pain or
the extent to which he or she is disabled by it.”171
Here, the ALJ found, although plaintiff’s “medically determinable impairments
could reasonably . . . cause the alleged symptoms,” her statements “concerning the
intensity, persistence and limiting effects of these symptoms are not credible” because
they were inconsistent with the residual functional capacity assessment.”172 This
determination by the ALS that plaintiff’s statements were only partially credible, is based
on substantial evidence in the record, as plaintiff’s allegations of disabling limitations are
not fully consistent with her own statements as well as the objective medical evidence of

166

Smith v. Astrue, No. 08-4634, 2009 WL 5126559, at *3 (3d Cir. 2009) (quoting 20 C.F.R. §
404.1529(a)).
167
See Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983).
168
20 C.F.R. § 404.1529.
169
20 C.F.R. § 404.1529(c).
170
See Green v. Schweiker, 749 F.2d 1066, 1068 (3d Cir. 1984).
171
Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999).
172
D.I. 10 at 16.

27

her treatment history.
First, the inconsistencies in plaintiff’s testimony and statements demonstrate
limited credibility. Throughout the relevant period, plaintiff told Dr. Mavrakakis she was
“overall improved,”173 “doing okay,”174 and “continues to have her good days and her bad
days.”175 During the hearing, though, she testified that a pain level of ten out of ten was
“pretty much constant.”176 She continued that rarely did the pain subsided to the six or
seven range,177 and further represented that for the past year, the pain was never less
than six.178 Such testimony, however, conflicts with the moderate and varied VAS pain
assessments she repeatedly reported to Dr. Mavrakakis. For example, while plaintiff
indicated on March 3, 2010 her pain level was ten out of ten, on June 14, 2010 she
rated her pain as three-four out of ten.179 Typically, she described her pain level in the
range of three-five out of ten. Moreover, plaintiff stated on October 7, 2010, less than a
month before the hearing in question, that her pain was five out of ten.180
Second, plaintiff’s testimony regarding the effectiveness of medication and
treatment for pain reduction is also inconsistent with her statements to Dr. Mavrakakis,
and this doctor’s progress notes. When asked about the effectiveness of the physical
therapy, injections or pain medications, plaintiff responded that “they really haven’t done
anything, getting rid of the pain.181 Dr. Mavrakakis’ notes, however, reveal plaintiff

173

D.I. 11 at 649.
Id. at 654.
175
Id. at 657.
176
D.I. 10 at 125.
177
Id.
178
D.I. 10 at 126.
179
D.I. 11 at 969.
180
Id. at 962.
181
D.I. 10 at 127.
174

28

generally saw improvement through medications, physical therapy and injections, with
intermittent exacerbations of lower back pain, usually due to a specific incident.182
Throughout the entire period of treatment, plaintiff consistently reported to Dr.
Mavrakakis that her current medications decreased the pain.183 Plaintiff described a
similar improvement through injections and physical therapy.184 Such inconsistencies
between plaintiff’s statements regarding the intensity, persistence and limiting effects of
her symptoms provide substantial evidence supporting the ALJ’s determination
regarding her limited credibility.
Finally, the ALJ correctly considered the objective medical evidence regarding
plaintiff’s treatment regimen in respect to her physical and mental limitations.
Regarding her claims of severe back pain, the ALJ correctly noted the medical records
reveal findings of mild to moderate lumbar tenderness and spasm and sacroiliac joint
tenderness,.185 including after specific incidents of exacerbation.
In terms of her mental impairments, the ALJ also considered the objective
evidence and the treatment records. Although plaintiff testified being bedridden a few
times a month from depression, her statements were not supported by the objective
evidence.186 As part of his exhaustive evaluation of all relevant medical evidence
regarding depression, the ALJ relied on Dr. Raclaw’s findings that objective evidence
did not support plaintiff’s alleged degree of functional incapacity,187 such as her self-

182

D.I. 11 at 962-1001.
Id. at 649.
184
Id. at 618-43, 647-57, 695-704, 713-22, 861-88, 906-25, 962-1001.
185
D.I. 10 at 18.
186
Id. at 129.
187
Id. at 21.
183

29

reported daily activities of cooking, shopping, driving and personal hygiene care, and
maintaining part-time employment for several years after the purported onset date until
October 2010 shortly before the hearing.188
The ALJ also referenced Dr. Chester’s finding that, although plaintiff had
moderate limitations in her ability to relate to and perform work requiring frequent
contact with others, her limitation was mild for work involving minimal contact with
others. She had no difficulties following directions or performing simple tasks.189 The
ALJ accepted these findings to the extent they were consistent with the findings of Dr.
Keyes and the mental status examinations performed at Everett & Associates and Mind
and Body Consortium.190 The ALJ further relied on the findings of Hummel, whose
evaluations observed plaintiff as fully oriented, with intact memory and normal
concentration, attention, speech and thought process.191 Dr. Ramos also reported on
May 24, 2010 that plaintiff had appropriate mood, memory and judgment.192 Because
the ALJ properly relied on inconsistencies in plaintiff’s testimony, her treatment regimen,
objective medical evidence, and credible medical opinions, his determination that
plaintiff was partially credible is supported by substantial evidence.
B.

Evaluation of Medical Evidence

Plaintiff contends the ALJ did not review crucial medical evidence regarding her
back impairment.193 Specifically, she asserts the ALJ failed to consider the February 8,

188

Id.
Id. at 20.
190
Id. at 21.
191
Id. at 17.
192
Id.
193
D.I. 17 at 14; D.I. 22 at 2-3.
189

30

2010 MRI, the discogram, or Dr. Eppley’s suggestion for back surgery.194 The Third
Circuit has stated that “[a]lthough we do not expect the ALJ to make reference to every
relevant treatment note in a case where the claimant . . . has voluminous medical
records, we do expect the ALJ, as the factfinder, to consider and evaluate the medical
evidence in the record consistent with his responsibilities under the regulations and
case law.”195 Here, the ALJ thoroughly evaluated and discussed the relevant medical
evidence, and accounted for plaintiff’s back impairment by assessing her residual
functional capacity to perform the modest demands of sedentary work with occasional
changes in position.196
The ALJ expressly discussed the findings of the March 2010 MRI in the
decision,197 concluding it revealed “no evidence of acute injury but interval progression
of degenerative disc disease, severe at L5/S1, with increase in size of moderate central
and left lateral disc herniation,” and other conditions “causing mild central canal stenosis
with narrowing and encroachment of the left S1 nerve.” That same report indicated that
at the L3/L4 and L4/L5 levels, “an increase in the size of small disc herniations with
annular fissuring, arthrosis of the facet joints, and hypertrophy of the ligaments flava
causing mild central canal stenosis compared to the June 2007 MRI.”198 The ALJ also
considered the May 4, 2010 lumbar spine x-ray. While the ALJ did not specifically
address the April 30, 2010 lumbar spine MRI, such review was unnecessary since this
MRI concluded that the “overall appearance of the lumbar spine has not significantly
194

Id. at 3.
Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001).
196
D.I. 10 at 15-22.
197
Id. at 18
198
Id.
195

31

changed,” from the previous MRI.199 Because the findings in both MRIs were similar,
the April 2010 was not “particularly notable,” and thus the ALJ did not fail to consider
relevant evidence.200
Regarding the September 8, 2010 lumbar discogram, the ALJ included an
extensive discussion of its findings in the decision.201 He noted the CT lumbar
discogram performed was “positive for concordant pain with Grade V annular tear at the
L5-S1 level, Grade IV annular tear at the L4-5 level, and Grade III annular tear at the
L3-4 level with concordant pain at the L4-5 and L5-S1 levels.”202 Consequently, the ALJ
did properly evaluate and consider the discogram.
Concerning Dr. Eppley’s opinion, the ALJ noted that plaintiff represented Dr.
Eppley recommended surgery as soon as possible.203 Her statements conflict with Dr.
Eppley’s office examination notes, which indicate plaintiff “may be a decent candidate
for” surgery, but express concern regarding her cardiac history.204 Rather than
disregarding these findings, the ALJ recognized plaintiff had severe impairments,
including degenerative disc disease of the lumbar spine, but concluded she did not have
an impairment or combination of impairments that meet or medically equals those listed
in 20 CFR 404, Subpart P, Appendix 1.205 Therefore, the ALJ correctly considered,
discussed and weighed all probative evidence regarding plaintiff’s back condition in his

199

D.I. 11 at 905.
See Hur v. Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004) (“There is no requirement that the ALJ
discuss in its opinion every tidbit of evidence included in the record.”).
201
D.I. 10 at 19.
202
Id.
203
Id. at 16, 127.
204
D.I. 11 at 896.
205
Id. at 13.
200

32

determination of her residual functional capacity.
C.

Treating Physician’s Medical Opinion

Plaintiff asserts the ALJ erred by failing to give the opinion of plaintiff’s treating
doctor controlling weight.206 An examining doctor’s written report setting forth medical
findings in the doctor’s area of competence “may constitute substantial evidence.”207 In
determining the proper weight for such medical opinions, the ALJ is required to consider
all evidence and resolve any material conflicts.208 The Third Circuit has found “treating
physicians reports should be accorded great weight, especially ‘when their opinions
reflect expert judgment based on a continuing observation of the patient’s condition over
a prolonged period of time.”209 A treating physician’s opinion is “entitled to substantial
and at times even controlling weight.”210 It is accorded “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] record.”211
It is error, however, to apply controlling weight to an opinion merely because it
comes from a treating source if it is not well-supported by the medical evidence, or if it is
inconsistent with other substantial evidence, medical or lay, in the record.212 Thus, the
ALJ may reject a treating physician’s opinion if it is based on “contradictory medical
evidence.”213 In those instances, “even where there is contradictory medical evidence, .

206

D.I. 17 at 15; D.I. 22 at 3.
Richardson v. Perales, 402 U.S. 389, 402 (1971).
208
Id. at 399.
209
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Rocco v. Heckler, 826 F.2d 348,
350 (3d Cir. 1987)).
210
Fargnoli v. Halter, 247 F.3d 34, 42 (3d Cir. 2001).
211
Id. (quoting 20 C.F.R. 404.1527(d)(2)).
212
SSR 96-2p.
213
Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000) (citation omitted).
207

33

. . and an ALJ decides not to give a treating physician’s opinion controlling weight, the
ALJ must still carefully evaluate how much weight to give the treating physician’s
opinion.”214 Further, “treating source medical opinions are still entitled to deference and
must be weighted upon using all of the factors provided in 20 C.F.R. 404.1527 and
416.917.”215
It is improper for an ALJ to disregard a treating physician’s medical opinion
based solely on his own impression of the record and evaluation of a claimant’s
credibility.216 Additionally, some explanation must be given “for a rejection of probative
evidence which would suggest a contrary disposition.”217 It may be appropriate to
accept some evidence and reject the rest; however, all evidence must be considered
and a reason for rejection must be provided.218
Under the Social Security Regulations, if an opinion is not given controlling
weight, the ALJ must determine how much weight to give the opinion, citing specific
reasons, and considering the following factors: (1) the length of the treatment
relationship and frequency of examination; (2) the nature and extent of the treatment
relationship, including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician’s opinion is supported by relevant
evidence; (4) consistency between the opinion and the record as a whole; (5) whether
or not the physician is a specialist in the area upon which an opinion is rendered; and

214

Gonzalez v. Astrue, 537 F. Supp. 2d 644, 660 (D. Del. 2008).
Social Security Regulation (“S.S.R.”) 96-2p, 1996 WL 374188 at *4.
216
See Morales, 225 F.3d at 318 (“The ALJ cannot disregard [a treating physician’s] medical
opinion based solely on his own ‘amorphous impressions, gleaned from the record and from his evaluation
of [the claimant]’s credibility.”).
217
Brewster, 786 F.2d at 585.
218
See Stewart v. Sec’y of H.E.W., 714 F.2d 287, 290 (3d Cir. 1983).
215

34

(6) other factors brought to the Secretary’s attention which tend to support or
contradicted the opinion.219
In the instant matter, the weight apportioned by the ALJ to Dr. Mavrakakis’
opinion is based on substantial evidence in the record. The ALJ assigned “some
weight” to Dr. Mavrakakis’ opinion, as discussed in the decision at issue, as well as the
earlier March 27, 2009 decision that was incorporated by reference.220 The ALJ
accepted Dr. Mavrakakis’ assessment to the extent it was consistent with the residual
functional capacity as determined for sedentary work with a sit/stand option.221 The ALJ
found Dr. Mavravakis’ June 2008 opinion that plaintiff could lift up to ten pounds was
consistent with plaintiff’s testimony, and supports a residual functioning capacity for
sedentary work.222
Nevertheless, the ALJ rejected Dr. Mavrakakis’ conclusion that the plaintiff is not
able to sit, stand or walk more than three hours per day, since these findings were
inconsistent with the treatment records.223 Dr. Mavrakakis’ opinion is entitled to
controlling weight if supported by medical evidence and consistent with the record. In
light of conflicting and other evidence, the ALJ was entitled to reject some of Dr.
Mavrakakis’ findings.224
First, Dr. Mavrakakis’ opinion is inconsistent with other medical evidence of
record. Dr. Ramos’ records show he did not impose any exertional restrictions,225 and

219

20 CFR 404.1527(d)(2); SSR 96-5p; SSR 96-2p.
D.I. 10 at 21-22, 148-49.
221
Id. at 21.
222
Id. at 149.
223
Id. at 21.
224
Id. at 21-22, 149.
225
D.I.11 at 804-860.
220

35

noted on September 22, 2008 that plaintiff “can perform her usual activities without
discomfort.”226 He also consistently documented only nonfocal neurological findings.227
Moreover, Dr. Eppley ascertained plaintiff had intact neurological findings.228
Dr. Mavrakakis’ opinion also conflicts with the Physical Residual Functional
Capacity Assessment completed by Dr. Borek on July 3, 2007.229 Dr. Borek concluded
plaintiff was able to occasionally lift up to twenty pounds, frequently lift and/or carry ten
pounds, stand and/or walk for a total of about six hours in an eight-hour work day, and
her ability to push and/or pull was unlimited, other than restrictions for lifting and/or
carrying.230 His opinion was affirmed by Dr. Singh in September 2007.231 Dr. Bancoff
also indicated in September 2007 that claimant could lift up to 50 pounds occasionally
25 pounds frequently, and sit, or stand and walk six hours a day.232 The ALJ did not
give significant weight to these opinions, since he found the medical evidence supported
greater exertional limitations.233
Second, Dr. Mavrakakis’ opinion is inconsistent with her own treatment history.
Throughout her progress notes, the examinations never found more than mild to
moderate back spasm and tenderness.234 Her notes indicate plaintiff reported increased
back pain from standing all day at work, but she was not required to lift.235 On August
26, 2008, Dr. Mavrakakis stated plaintiff “noted that intensive physical activity worsens
226

Id. at 747.
Id. at 585, 587, 590, 605, 726, 731, 747, 800, 806, 810, 819, 864, 953.
228
D.I. 10 at 490.
229
D.I. 11 at 611-17.
230
Id. at 612.
231
Id. at 644.
232
Id. at 646.
233
D.I. 10 at 149.
234
D.I. 11 at 618-43, 647-57, 695-704, 713-22, 861-88, 906-25, 962-1001.
235
Id. at 652.
227

36

pain.”236 She consistently recommended plaintiff “avoid exacerbating activities,” but no
specific restrictions are documented.237
Moreover, during her treatment of plaintiff, Dr. Mavrakakis consistently recorded
plaintiff’s self-assessment of pain was usually between three and five out of ten.238 Only
occasionally were gait abnormalities documented. After plaintiff fell and twisted her
back, Dr. Mavrakakis noted on May 25, 2007 that her gait was “more antalgic.”239 The
progress reports indicate no trigger points, or clinical findings regarding weakness or
loss of range of motion. Finally, Dr. Mavrakakis’ opinion that plaintiff must change
positions every 15 minutes and cannot sit, stand or walk for more than a cumulative
three hours daily is not supported by the record. There were no other medical
evaluations expressing a similar opinion, and plaintiff’s work experience, which she
stated included working “four days a week eight hour days sometimes”240, contradicts
this finding.
Third, Dr. Mavrakakis’ opinion lacks supporting evidence. When asked to identify
any positive objective signs of plaintiff’s impairment, Dr. Mavrakakis did not indicate on
the August 31, 2010 Medical Source Statement that plaintiff had any sensory or reflex
changes, muscle weakness or muscle atrophy.241 She failed to provide any explanation
for her opinion that plaintiff’s condition had not improved since the June 2, 2008 Medical
Source Statement. Instead, she simply stated “[plaintiff] has continued under my care

236

Id. at 716.
Id. at 618-43, 647-57, 695-704, 713-22, 861-88, 906-25, 962-1001.
238
Id. at 618-43, 647-57, 695-704, 713-22, 861-88, 906-25, 962-1001.
239
Id. at 627.
240
Id. at 915, 990.
241
Id. at 946.
237

37

on a regular basis and, unfortunately, her condition has not improved.”242
Fourth, Dr. Mavrakakis’ assessment is inconsistent with the relatively
conservative degree of treatment prescribed. While plaintiff visited Dr. Mavrakakis
regularly, her progress notes suggest this frequency was necessary for plaintiff to
obtain medications; in fact, her notes demonstrate the typical “Plan” focused primarily
on prescription medications. The record shows, and plaintiff admits,243 that she became
addicted to pain medications, motivating Dr. Mavrakakis to discontinue Vicodin on
September 25, 2010.244 The only solution plaintiff sought for her pain was mediation;
she never requested a referral to another speciality or for other treatment,245 and
declined Dr. Mavrakakis’ initial suggestion for a surgical consultation.246 Dr. Mavrakakis
eventually referred plaintiff to Dr. Eppley, a neurosurgeon, who examined plaintiff on
April 13, 2010. Despite noting intact neurological findings, he suggested possible spinal
surgery.247
Finally, objective evidence regarding plaintiff’s daily activities also tends to
undermine Dr. Mavrakakis’ assessment. Plaintiff testified she worked part-time at
Target until October 2010, albeit with assistance with lifting.248 While plaintiff testified
her mother and sister assisted her, she was able to work on a part-time basis for over
four years, and perform certain household chores.249

242

Id. at 945.
D.I. 17 at 9.
244
Id. at 964.
245
Id. at 618-43, 647-57, 695-704, 713-22, 861-88, 906-25, 962-1001.
246
Id. at 862
247
D.I. 10 at 490.
248
Id. at 122-23.
249
Id. at 39.
243

38

“In order to determine the proper weight to be given to a medical opinion, the ALJ
is required to weigh all the evidence and resolve any material conflicts.”250 Here, the
ALJ thoroughly evaluated the record and Dr. Raclaw’s testimony before concluding Dr.
Mavrakakis’ opinion was inconsistent with other evidence on record.251 Because the
ALJ determined plaintiff’s testimony and self-assessments lacked some credibility, and
in turn, because Dr. Mavrakakis relied heavily upon subjective complaints to form her
assessment, the ALJ was entitled to assign limited weight to Dr. Mavrakakis’ opinion.
Therefore, the ALJ satisfied his burden of conducting a thorough evaluation and
providing appropriate explanations.
D.

Reliance on Opinion of Dr. Raclaw

Plaintiff argues the ALJ erred by relying on the testimony of Dr. Raclaw. The
court finds substantial evidence supports the ALJ’s assessment of this medical opinion
evidence. The ALJ found Dr. Raclaw’s testimony as unbiased, well-reasoned and
persuasive.252 Dr. Raclaw is a licensed clinical psychologist with extensive expertise in
psychology, and is familiar with the disability determination requirements of the Social
Security Act.253
While plaintiff contends that Dr. Raclaw never reviewed all of her medical data,254
the hearing notice shows Dr. Raclaw was provided with most of the exhibits prior to the
hearing.255 The current record indeed reflects a few additional pages were added

250

Gonzalez v. Astrue, 537 F. Supp. 2d 644, 659 (D. Del. 2008); see also Richardson v. Perales,
402 U.S. 389, 399 (1971).
251
Id. at 7-30.
252
Id. at 19.
253
Id. at 192-193.
254
D.I. 17 at 18.
255
D.I. 10 at 256.

39

subsequent to the hearing notice; two pages are administrative and contain no medical
evidence,256 and one is a generic internet printout of medical symptoms.257 The
remaining documents are dated after the administrative hearing: one is MRI results of
December 3, 2010, which describes “no significant interval changes,”258 while the other
is a largely repetitive letter from an LCSW dated November 22, 2011.259 Consequently,
Dr. Raclaw’s testimony did envelope the entire record, and therefore, the ALJ’s
determination that Dr. Raclaw’s opinion should be entitled to significant weight is
supported by substantial evidence.
Plaintiff’s also argue that Dr. Raclaw’s testimony relied heavily on the report of
Dr. Keyes, which she asserts is “especially troubling.”260 As the ALJ correctly noted,
however, Dr. Keyes opinion is entitled to considerable weight, as it is well supported by
the evidence and consistent with the entire record.261 Dr. Keyes’ assessment of
plaintiff’s functional abilities found plaintiff alert, with clear, organized and relevant
speech and thinking skills,262 and was substantiated by the LCSW who examined
plaintiff on July 1, 2008.263 Dr. Keyes concluded that based upon plaintiff’s statements,
she suffered from moderate, chronic major depressive disorder,264 but demonstrated
only mild restriction of daily activities and moderate impairment in relating to others.265
Hummel also found in April 2010 that plaintiff had normal motor behavior, fair
256

D.I. 11 at 1003, 1005.
Id. at 1002.
258
Id. at 1006.
259
Id. at 1004.
260
D.I. 17 at 18.
261
D.I. 10 at 20.
262
D.I. 11 at 685
263
Id. at 706-09.
264
Id. at 687.
265
Id. at 692.
257

40

rapport, average intellect, fair insight and good remote memory.266 Finally, Dr. Chester
concluded in April 2010 that plaintiff exhibited, at most, moderate impairment.267
Consequently, the relevant medical evidence of the LCSW, nurse practitioner and
physicians all serve to reaffirm Dr. Keyes’ assessment of plaintiff’s functional capacity,
which supports Dr. Raclaw’s findings as valid, and the ALJ’s determination of Dr.
Raclaw’s credibility.
Concerning plaintiff’s accusation that the ALJ credited the testimony of Dr.
Raclaw over the GAF scores, the ALJ carefully considered the documented GAF scores
of each source. Dr. Keyes assessed a score of 60.268 The ALJ acknowledged that Dr.
Chester’s GAF score of 50 indicated severe symptoms.269 Dr. Raclaw noted, however,
his assessment was based on Dr. Chester’s entire consultation report, which was
inconsistent with his GAF score.270 The ALJ acknowledged271 the April 22, 2010 GAF
score by Hummel of 45, which is also indicative of severe symptoms.272
While the GAF assessments ranged from 45 to 60, these scores do not
necessarily correlate with a disability claimant's ability to work.273 Instead, the GAF
scale to be used by practitioners in making treatment decisions.274 Neither the Social
Security regulations nor case law require an ALJ to determine the extent of an
individual's mental impairment based solely on a GAF score.275 A GAF score does not
266

Id. at 929-30.
Id. at 784-85.
268
Id. at 687.
269
D.I. 10 at 21.
270
Id. at 21; see also D.I. 11 at 781-785 Dr. Chester’s Medical Health Report.
271
D.I. 10 at 21.
272
D.I. 11 at 930.
273
Chanbunmy v. Astrue, 560 F. Supp. 2d 371, 383 (E.D. Pa. 2008).
274
Id.
275
Id.
267

41

have a direct correlation to the severity requirements in the Social Security mental
disorder listing.276 Moreover, “a GAF score of 45, if credited, would not require a finding
of disability.”277 In the instant matter, the ALJ specifically addressed the GAF scores
assessed by Dr. Chester and Hummel in the most recent decision, and the GAF score
by the social worker in the March 2009 decision.278 While the ALJ noted that GAF
scores may suggest serious symptoms or impairment in social or occupational
functioning, there was substantial evidence supporting the ALJ’s finding that the record
did not support such limitations.279
Finally, in terms of the weight assigned to Hummel’s assessment, under Social
Security Rulings and Regulations, a nurse practitioner is considered a medical source
who is not an “acceptable medical source” as defined at 20 CFR 404.1513(d) and SSR
06-03p.280 “Information from these ‘other sources’ cannot establish the existence of a
medically determinable impairment. Instead, there must be evidence from an
“‘acceptable medical source’ for this purpose.”281 The ALJ was thus justified in affording
her findings little weight.282 Hummel’s initial evaluation occurred within a week of
plaintiff’s father-in-law dying.283 Her Mental Status Exam is consistent with the findings
by Dr. Keyes and Dr. Chester showing no significant abnormalities.284 Moreover,
Hummel’s notes from August 19, 2010 show some improvement in plaintiff’s

276

Gilroy v. Astrue, 351 F. App'x. 714, 715 (3d Cir. 2009) (citing 66 Fed.Reg. 50764–5 (2000)).
Id.
278
D.I. 10 at 21, 150.
279
Id.
280
Id. at 21
281
SSR 06-03P (S.S.A Aug. 9, 2006).
282
D.I. 10 at 21.
283
D.I. 11 at 926.
284
Id. at 684-93, 781-87.
277

42

condition.285 Finally, at each documented visit, Hummel did not record any additional
medical problems nor order any new medications.286 Consequently, the record provides
substantial evidence, including multiple objective appraisals of plaintiff’s functional
ability, to support the ALJ’s evaluation of the medical opinion evidence.
VI.

ORDER AND RECOMMENDED DISPOSITION
For the reasons contained herein, I recommend that:
(1) Defendant’s cross-motion for summary judgment (D.I. 18) be GRANTED.
(2) Plaintiff’s 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. Fed. R. Civ. 72(b).
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.
Date: June 3, 2013

285
286

/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

Id. at 934.
Id. 926-34.

43