Williams v. Astrue

Filing 19

MEMORANDUM. Signed by Judge Gregory M. Sleet on 2/26/2016. (mdb)

IN THE UNITED STATES DISTRICT COURT
(

FOR THE DISTRICT OF DELAWARE

ANGELA WILLIAMS
Plaintiff,

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

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)

C.A. No. 12-1098-GMS

MEMORANDUM
I.

INTRODUCTION
This action arises from the denial of plaintiff Angela Williams' ("Williams") claim

for Social Security benefits. On May 27, 2009, Williams filed an application for
Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act").
(D.I. 5 at 9, 71.) Her claims for disability were denied initially on February 8, 2010, and
upon reconsideration on May 6, 2010. (Id. at 9.) Williams requested a hearing before
an administrative law judge ("ALJ"), which was held January 11, 2011. (Id.) On
February 9, 2011, the ALJ issued a decision finding Williams was not disabled under
the Act. (Id. at 6-20.) The Appeals Council denied her request for review, and the
ALJ's opinion became the final decision of the Commissioner of Social Security

1

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

("Commissioner") on July 11, 2012. (Id. at 1.) Presently before the court are the
parties' cross-motions for summary judgment. For the reasons below, the court will
grant in part and deny in part Williams' motion (D.I. 11.) and grant in part and deny in
part the Commissioner's motion. (D.I. 12.)

II.

BACKGROUND
Williams was born May 30, 1967 and was forty-one years old when she filed for

DIB on May 27, 2009. (D.I. 5 at 71.) She has a high school education, and previously.
worked as a cashier and a certified nurse's assistant ("CNA"). (Id. at 30, 33.) In her
application and disability report, Williams claimed disability beginning November 6,
2006, 2 due to a workplace injury sustained in June 2006. (Id. at 31-32.) To qualify for
DIB, Williams must demonstrate that she is disabled within the meaning of§§ 216(i)
and 223( d) of the Act. (Id. at 10.)

A.

Medical Evidence Presented
1. Delaware Back Pain

Williams saw Dr. Ginger Chiang, M.D. ("Dr. Chiang"), of Delaware Back Pain &
Sports Rehabilitation Cente·rs ("Delaware Back Pain") on March 7, 2008. (Id. at 368.)
She was referred to Dr. Chiang by Dr. Arnold Glassman, D.O. ("Dr. Glassman"), also of
Delaware Back Pain, who began treating Williams in July 2006. 3 (Id. at 60, 361.) Her
2

Based on an earlier application, Williams was granted a closed period of
disability from November 6, 2006 through March 5, 2008. (D.I. 5 at 9.) She agreed to
this closed period disability at the "insistence of her attorney." D.I. 11 at 1. A closed
period of disability or "closed period" cases are where a disability claimant is found to
be disabled for a finite period of time. Shepard v. Apfel, 184 F.3d 1196, 1198 (101h Cir.
1999).
3
Though Dr. Glassman began treating Williams in July 2006 (Id. at 60), the
medical evidence before the court begins on March 7, 2008. (Id. at 368-74.)

2

chief complaint was pain in the upper and lower back, neck pain, and stiffness down the
right leg.· (Id. at 368.) Williams indicated that her pain increased with postural changes,
housework, and laying flat on her stomach. (Id.) Additionally, she reported numbness
or tingling down the right leg and weakness of the right arm. (Id.) Her pain improved
with physical therapy and chiropractic treatment. (Id. at 369.) At the time of the 2008
visit, Williams was taking Xanax, Zoloft, and Percocet, although she related the
medications did not improve pain and produced drowsiness, mood swings, and
constipation. (Id.) Williams noted a past medical history of depression. (Id.) Past
surgeries included carpal tunnel, right rotator cuff, and right trigger thumb. (Id.)
Dr. Chiang administered trigger point injections to Williams' lower back. (Id. at
362.) Progress notes show she reported no leg pain after the injections. (Id. at 383.)
Her follow-up appointments with Dr. Glassman occurred nearly every month from
March 2008 to March 2010. (Id. at 188, 191-387, 409-430.)
At her April 23, 2008 visit with Dr. Glassman, Williams completed a patient
follow-up history. (Id. at 350.) Her chief complaints were right shoulder, neck, and back
pain, daytime sleepiness, headache, weakness, anxiety/panic, nervousness, mood
changes, and tension. (Id.) Housework increased her pain; rest and medication
improved it. (Id.) She also completed a pain and function self-assessment, listing
current pain 5/1 O; average pain 7-8/1 O; worst pain ,since last visit 7-8/10. (Id. at 351.)
Pain completely interfered with work, sleep, participation in social activities, and sexual
activities. (Id.) Finally, Williams reported medication side effects of constipation,
trouble sleeping, and difficulty with concentration. (Id.)

3

Williams completed a patient follow-up history and a pain and function selfassessment on each of her subsequent monthly visits to Dr. Glassman. (Id. at 193352, 409-30.) _With little deviation, her follow-up histories and self-assessments
remained stable for the duration of her treatment with him. 4 (Id. at 309-10, 303-04, 29596, 289-90, 280-81, 274-75, 268-69, 262, 266, 252-53, 243-44, 236-37, 225-26, 21516, 210-11, 204-05, 193-94, 409-10, 420-21, 426-27.)
Dr. Glassman completed a physical exam at each monthly visit5 and consistently
noted right carpal tunnel syndrome; chronic second degree strain and sprain of the
cervical, lumbar, and thoracic spine; right shoulder pain; tenderness of the right wrist;
spinal tenderness; normal coordination; normal/non-antalgic gait; and
depression/anxiety. (Id. at 352-54, 311-13, 305-07, 297-99, 286-89, 282-84, 276-78,
263-65, 254-56, 245-47, 238-240). Beginning with the August 26, 2009 visit and
continuing to March 17, 2010, Dr. Glassman also noted somatic dysfunction. (Id. at
227-29, 217~19, 212-14, 206-08, 195-97, 411-13, 422-24, 428-30.) He recorded left
Tinel's sign on three occasions, 6 and diagnosed bilateral carpal tunnel on the last visit.
(Id. at 353, 412, 413, 424.)
Beginning with the May 26, 2009 visit and continuing to the latest report from Dr.
4

Williams reported general improvement in function during her October 22, 2008
visit. (Id. at 304.) She further reported significant improvement with sleep on July 29,
2009 (id. at 237), September 24, 2009 (id. at 216), and October 21, 2009. (Id. at 211.)
However, she never rated symptom interference below 6/10. (Id. at 193-352.)
5
Williams saw Physician's Assistant Richard A. Falcioni, at Delaware Back Pain
on October 21, 2009. (Id. at 210-14.)
6
Tinel's sign is a test used to diagnose carpal tunnel syndrome. Carpal Tunnel
Syndrome, WebMD;
http://www.webmd.com/pain-management/carpal-tunnel/physical-exam-for-carpal-tunne
I-syndrome (last visited Sept. 16, 2015).

4

Glassman, Williams was prescribed Cymbalta, Oxycontin, and Xanax. (Id. at 191-260,
409-430.) During that time, Dr. Glassman consistently noted no adverse side effects
and reported the medication helped. (Id.) He recorded no impairment and noted
improvement in Williams' activities of daily living ("ADLs"). (Id. at 194, 409, 420.)
Dr. Glassman completed a functional capacities assessment for The Hartford
Insurance Company. 7 (Id. at 433-34.) His primary diagnosis was a cervicothoracic
lumbosacral spine injury with secondary diagnoses of carpal tunnel syndrome, right
shoulder impingement, and major depression. (Id. at 433.) His physical findings were
decreased range of motion because of pain and decreased function of the right upper
extremity. (Id.) Dr. Glassman's current treatment plan included pharmacologic therapy
and a home exercise program. (Id.) He concluded Williams could sit for six to eight
hours, but not more than one hour at a time; stand for one to two hours, but not more
than twenty minutes at a time; and walk for one hour, but not more than fifteen minutes
ata time, with frequent stretch breaks. (Id. at 434.)
Dr. Glassman further indicated Williams could not lift any weight with her right
arm, and not more than ten pounds occasionally with her left arm. 8 (Id.) He noted
Williams should never crouch or kneel and could occasionally bend at the waist and
drive. (Id.) Her additional restrictions were to never reach above shoulder or below
waist levels with her right arm, occasionally reach above shoulder and below waist
levels with her left arm, and at waist/desk level with both arms and occasionally handle

7

The date of this assessment is unknown, but it likely occurred between
December 16, 2009 and January 13, 2010. (D.I. 5 at 433.)
8
"Occasionally" is defined as 1-33% of the time. (Id. at 434.)

5

and finger with both hands. (Id.) Dr. Glassman concluded Williams was totally disabled
due to physical injuries and depression. (Id.)
Dr. Glassman reported that Williams cried in his office (id. at 227, 254, 305,
311 ), but at other times, her mood and affect were normal. 9 (Id. at 195, 206, 212, 217,
227, 238, 245, 270, 276, 282, 372, 411, 422.) He routinely found her orientation of
person, place, and time as normal. 10 (Id. at 195, 206, 212, 217, 227, 238, 245, 254,
263, 270, 276, 282, 297, 352, 372, 411, 422.)
Williams underwent psychological therapy sessions from Dr. Fisher, who noted
depression and anxiety secondary to chronic pain. (Id. at 230, 248, 249, 250.) Dr.
Fisher encouraged changes in diet, exercise, and adding structure to daily life. (Id. at
249.)
2. Ors. Borek and Singh

Dr. M. H. Borek, D.O. ("Dr. Borek"), a State agency medical consultant,
completed a Physical Residual Functional Capacity Assessment on February 10, 2010,
finding Williams could occasionally lift and/or carry ten pounds; frequently 11 lift and/or
carry five pounds; stand and/or walk at least two hours in an eight-hour workday and sit
for a total of six hours in an eight-hour workday, with limited upper extremity ability to
push and/or pull. (Id. at 391.) Regarding postural limitations, Williams could
occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl, but should
never climb ladders, ropes, or scaffolds. (Id. at 391-92.) She had limited reaching in all

9

On March 7, 2008, Williams was examined by Dr. Chiang. (Id. at 372.)
See note 9, supra.
11
"Frequently" is defined as 34-67% of the time. (D.I. 5 at 434.)

10

6

directions (including overhead), limited handling and fingering, and unlimited feeling.

(Id. at 392.) No visual or communicative limitations were found. (Id. at 392-93.) Dr.
Borek noted Williams should avoid concentrated exposure to extreme cold, vibration,
·and hazards. (Id. at 393.) He concluded she was capable of sedentary work with
frequent, but not constant, hand manipulation. (Id. at 396.) On May 5, 2010, Dr. Nisha
Singh, MD ("Dr. Singh"), another State agency medical consultant, affirmed Dr. Borek's
findings. (Id. at 432.)
3. Ors. King and Ferreira
Christopher King, Psy.D. ("Dr. King"), a State agency medical consultant,
completed a Psychiatric Review Technique on February 7, 2010. (Id. at 398.) Dr. King
found no severe impairment (id.), but diagnosed depressive disorder and anxiety. (Id.
at 400-02.) He found no restrictions on activities of daily living, mild limitations in social
functioning, concentration, persistence, and pace, and no episodes of decompensation.

(Id. at 406.) On April 19, 2010, Pedro M. Ferreira, Ph.D., M.B.A. ("Dr. Ferreira"), also a
State agency medical consultant, affirmed Dr. King's assessment. (Id. at 431.)
8.

Hearing Testimony

At the administrative hearing before ALJ Melvin D. Benitz on January 11, 2011,
Williams appeared without counsel. (Id. at 26.) She advised the ALJ the evidence did
not contain a medical record of Dr. Glassman prepared the week before the hearing. ·

(Id. at 28.) Because Williams was granted a closed period of disability from November
6, 2006 to March 5, 2008, the ALJ modified the onset date to March 6, 2008. (Id. at 2829.)

7

1.

Williams Testimony

Williams testified she is five feet and one inch tall, weighing 195 pounds, age
forty two years old, 12 single with three adult children. (Id. at 29-31.) She has a twelfth
grade education and is a CNA. (Id. at 30.) She lives in her home with her daughter and
two grandchildren, age four and eleven months. (Id. at 40.) The grandchildren's father,
Williams' son, is incarcerated, and the mother is "around." 13 (Id. at 40-41.) She is
unemployed, but receives biweekly workman's compensation payments of $213.80 and
monthly long-term disability insurance payments of $832.00. (Id. at 31.) Previously,
she worked at State Hospital as a CNA. (Id. at 32.)
Williams was injured on the job in June,2006 when a patient fell on her, causing
injuries to her neck, back, right shoulder, and both hands. (Id. at 32-33.) She cannot
work because of pain and medication side effects. (Id. at 33.) She underwent regular
physical therapy, which provided short term relief, along with a personal TENS unit. 14
(Id. at 34.) She additionally claimed headaches four times per week of two to three

hour duration. (Id. at 34-35.) Williams takes Oxycontin and Cymbalta, which cause dry
mouth, fatigue, constipation, nausea, vomiting, and dizziness. (Id. at 35-36.) Her
symptoms of depression include low energy, low drive, and mood swings. (Id. at 36.)

12

Since her birth date is May 30, 1967, she was 43 years old at the time of the
hearing. (Id. at 30.)
13
"She's, she's around, sir, in Wilmington, here, there, and everywhere, sir." (Id.
at 41.)
14
Transcutaneous electrical nerve stimulation (TENS) is a therapy that uses
low-voltage electrical current for pain relief. Transcutaneous Electrical Nerve
Stimulation (TENS) - Topic Overview, WebMD,
http://www.webmd.com/pain-management/tc/transcutaneous-electrical-nerve-stimulatio
n-tens-topic-overview (last visited Sept. 23, 2015).

8

Although she was previously granted a closed period of disability on the basis
that her condition improved, her condition remained the same and the pain worsened.

(Id. at 37.) She did not want the previous closed period of disability, but her previous
attorney refused to represent her if she did not accept it. (Id.) She is seeking a
continuing period of disability. (Id. at 37-38.)
Williams claimed limited range of motion, with pain radiating downwards from the
back of her head. (Id. at 39.) She can lift ten pounds, limited by right shoulder
impingement. (Id. at 38.) She can stand about an hour, walk twenty minutes to a half
hour, and sit a half hour to forty minutes. (Id. at 39.) She does not cook her own meals
and occasionally does household chores. (Id. at 40.)

2.

Vocational Expert's Testimony

A vocational expert, James Michael Ryan ("Dr. Ryan") testified at the hearing.

(Id. at 42.) The VE acknowledged Williams' previous work as a CNA, but noted she
performed at the heavy exertional level, while her former employment is usually rated at
the medium level. (Id.) In response to the ALJ's hypothetical of an individual having
the same physical, mental, and emotional ailments, and medication side effects as
Williams, the VE testified this hypothetical person was capable of light exertional
unskilled work as a laundry worker; machine tender; and packer and packaging worker,
and sedentary unskilled work as a small parts inserter; finish machine tender, and
grading and sorting worker. (Id. at 42-44.) 15

15

The VE testified that his examples were not an exhaustive list. (D.I. 5 at 44.)
9

The VE also confirmed all jobs are SVP 2. 16 (Id. at 44-45.) The VE also defined
sedentary and light work. (Id. at 45.) He confirmed his testimony was consistent with
the Dictionary of Occupational Titles ("DOT"), supplemented by knowledge and
experience. (Id. at 45-46.) He further testified the hypothetical individual would be
unable to return to previous work due to exertional and skill requirements. (Id. at 46.)
The ALJ then explained to Williams the manner in which he questioned the VE
and that she could question the VE, suggesting she ask about the limitations from her
impairments. (Id. at 46-47.) Williams stated she might miss two to three days of work
per week, to which the VE responded that such absenteeism rate would render her
unable to work. (Id. at 47.)

C.

The ALJ's Findings

The Social Security Administration uses a five-step sequential claim evaluation
process to determine whether an individual is disabled:
[The Commissioner] determines first whether an individual is currently
engaged in substantial gainful activity. If that individual is engaged in
substantial gainful activity, he will be found not disabled regardless of the·
medical findings. 20 C.F.R. § 404.1520(b). If an individual is found not to
be engaged in substantial gainful activity, the [Commissioner] will
determine whether the medical evidence indicates that the claimant
suffers from a severe impairment. 20 C.F.R. § 404.1520(c). If the
[Commissioner] determines that the claimant suffers from a severe
impairment, the [Commissioner] will next determine whether the
impairment meets or equals a list of impairments in Appendix I of sub-part
P of Regulations No. 4 of the Code of Regulations. 20 C.F.R. §
404.1520( d). If the individual meets or equals the list of impairments, the
claimant will be found disabled. If he does not, the [Commissioner] must
determine if the individual was capable of performing in his past relevant
16

In explaining the meaning of SVP2, the VE testified "SVP: 2 would require the
·individual to have a brief period of demonstration and/or shown how to perform the
jobs, up to and including 30 days." (D.I. 5 at 45.)
10

work considering his severe impairment. 20 C.F.R. § 404.1520(e). If the
[Commissioner] determines that the individual is not capable of performing
his past relevant work, then he must determine whether, considering the
claimant's age, education, past work experience and residual functional
capacity, he is capable of performing other work which exists in the ·
national economy. 20 C.F.R. § 404.1520{f).

West v. Astrue, C.A. No. 07-158, 2009 WL 2611224, at *5 (D. Del. August 26, 2009)

(quoting Brewster v. Heckler, 786 F.2d 581, 583-84 (3d Cir. 1986)). Based on the
factual evidence and the testimony of Williams and Dr. Ryan, the ALJ determined she
was not disabled and, therefore, ineligible for DIB. (D.I. 5 at 20.) The ALJ's findings of
February 9, 2011 are summarized as follows:
1.
The claimant meets the insured status requirements of the Social
Security Act through June 30, 2013.
2.
The claimant has not engaged in substantial gainful activity since
March 6, 2008, the alleged onset date (20 CFR 404.1571 et seq.).
3.
The claimant has the following severe impairments: right shoulder
impingement, rotator cuff tear, degenerative disc disease, bilateral carpal
tunnel syndrome, depression, anxiety and obesity (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 Part 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 the claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) except the claimant could lift
and/or carry 20 pounds occasionally and 10 pounds frequently. The
claimant can stand for 30 minutes, and sit for 30 minutes, consistently on
an alternate basis, for 8 hours a day,.5 days a week. The claimant should
avoid heights, hazardous machinery, and stair climbing. The claimant can
perform work that requires no fine dexterity or fine manipulation with right
upper extremity. The claimant could perform simple, unskilled, work, svp
2 in nature, low concentration, low memory, low stress, meaning jobs that
have no changes in the workplace or judgment to speak of, simple one
and two step tasks.
11

6.
The claimant is unable to perform any past relevant work (20 CFR
404.1565).
7.
The claimant was born on May 30, 1967 and was 41 years old,
which is defined as a younger individual age 18-49, 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 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).
10.
Considering the claimant's age, education, work experience, and
residual functional 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.
The claimant has not been under a disability, as defined in the
Social Security Act, from March 6, 2008, through the date of this decision
(20 CFR 404.1520(g)).
(Id. at 11-20)

Ill.

STANDARD OF REVIEW

A.

Motion for Summary Judgment

Both parties move for 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 non-moving party[,]' but [refraining from] weighing
the evidence or making credibility determinations." Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000) (citation omitted). 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. See Hill v. City of Scranton, 411 F.3d 118, 125 (3d
12

Cir. 2005) (quoting FED. R. Crv. P. 56(c)).
This standard does not change merely because there are cross-motions for
summary judgment. Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir.
1987). Cross-motions for summary judgment:
are no more than a claim by each side that it alone is entitled to summary
judgment, and the making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist.

Rains v. Cascade Indus., Inc., 402 F .2d 241, 245 (3d Cir. 1968). "The filing of crossmotions for summary judgment does not require the court to grant summary judgment
for either party." Krupa v. New Castle Cnty., 732 F. Supp. 497, 505 (D. Del. 1990).

8. Review of the ALJ's Findings
Section 405(g) sets forth the standard of review of an ALJ's decision. 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 contain substantial evidence to support the
decision. Factual findings are upheld if supported by substantial evidence. See 42
U.S.C. §§405(g); see a/so MonsourMed.-Ctr. v. Heckle, 806 F.2d 1185, 1190 (3d Cir.
1986). Substantial evidence means less than a preponderance, but more than a mere
scintilla of evidence. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). 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." Pierce v. Underwood, 487
U.S. 552, 565 (1988).

13

In determining whether substantial evidence supports the Commissioner's
findings, the court may not undertake a de novo review of the decision nor re-weigh the
evidence of record. Monsour, 806 F.2d at 1190. The court's review is limited to the
evidence that was actually presented to the ALJ. Matthews v. Apfel, 239 F.3d 589,
593-95 (3d Cir. 2001 ). 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.

Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983). Thus, the inquiry is not whether
the court would have made the same determination, but rather, whether the
Commissioner's conclusion was reasonable. Brown v. Bowen, 845 F.2d 1211, 1213
(3d Cir. 1988). Even if the court would have decided the case differently, it must defer
to and affirm the ALJ so long as the decision is supported by substantial evidence.

Monsour, 806 F2d at 1190-91.
Where "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." Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.D.
Pa. 2011). In SEC v. Chenery Corp., the 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." 332 U.S. 194, 196 (1947). "If those grounds are inadequate or improper, the
court is powerless to affirm the administrative action by substituting what it considers to
14

be a more adequate or proper basis." Id. The Third Circuit has recognized the
applicability of this finding in the Social Security disability context. Fargnoli v.
Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001 ). This court's review is limited to the four
corners of the ALJ's decision. Cefalu v. Barnhart, 387 F. Supp. 2d 486, 491 (W.D. Pa.
2005). In Social Security cases, the substantial evidence standard applies to motions
for summary judgment brought pursuant to FED. R. C1v. P. 56. See Woody v. Sec'y of
the Dep't of Health & Human Servs., 859 F.2d 1156, 1159 (3d Cir. 1988).

IV.

DISCUSSION
A.

Parties' Contentions

Williams maintains the ALJ erred in denying her application for DIB because the
ALJ failed to assist an unrepresented and mentally impaired claimant in developing the
administrative record. (D.I. 11-1 at 1.) She further contends the ALJ failed to properly
accommodate her neck, shoulder, hand, and arm impairments, and erred in assessing
her activities of daily living. (Id. at 1-2.) Finally, Williams argues the ALJ failed to
consider the side effects of her medications. (Id.) The Commissioner maintains the
ALJ fulfilled his duty, adequately accounted for work-related limitations, and properly
assessed the credibility of subjective complaints. (D.I. 13 at 1-2.)

· 8. Disability Analysis
Title II 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 suffer from a physical or mental disability." Bowen, 482 U.S. at 140. In order to
qualify for DIB, the claimant must establish she was disabled prior to the date she was

15

last insured. See 20 C.F.R. § 404.131. A "disability" is defined as the inability to do
substantial gainful activity because of any medically determinable physical or mental
impairment, which either could result in death or has lasted or can be expected to last
for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(l)(A). To be
disabled, the severity of the impairment must prevent return to previous work, and
based on age, education, and work experience, restrict "any other kind of substantial
gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); Barnhart
v. Thomas, 540 U.S. 20, 21-22 (2003).

1.

The ALJ's Duty to Williams

Williams maintains the ALJ failed to fulfill his duty on behalf of an unrepresented
and mentally disabled claimant to conduct a full and fair administrative hearing and fully
develop the record. (D.I. 11-1 at 4.)
a.

Duty to an Unrepresented and Mentally Disabled Claimant

Williams asserts the ALJ owes a heightened duty to an unrepresented and
mentally ill claimant. "The fact that a claimant is unrepresented by counsel and has
knowingly waived this right is not alone sufficient for remand. However, if it is clear that
the lack of counsel prejudiced the claimant or that the proceeding was marked by
unfairness due to the lack of counsel, this is sufficient for remand, or reversal."
Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980) (internal citation omitted). "An

ALJ owes a duty to a pro se claimant to help him or her develop the administrative
record." Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). The ALJ has a
heightened level of care and responsibility to assume a more active role when a

16

claimant is unrepresented. Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979).
"When a claimant is both unrepresented and suffers from a mental impairment ... the
ALJ's duty to carefully develop the record is even greater." Ransom v. Bowen, 844
F.2d 1326, 1330 n.4 (7th Cir. 1988).
The facts do not support her contention. Williams claims the ALJ failed to notify
her of key elements of her right to representation, including fee structures and finding
representation. (D.I. 11-1 at 7.) The agency informed Williams of her right to counsel
on numerous occasions before, during, and after the hearing. (D.I. 5 at 7, 26, 86, 88,
90, 96, 101.) Williams indicated her understanding of that right (id. at 26, 77, 85) and
waived her right to representation at the hearing. (Id. at 109.) The agency repeatedly
provided her with information regarding agency approval of fee agreements for private
counsel, and names, addresses, and telephone numbers to obtain free legal aid. (Id. at
7, 86-91.) In light of the agency's prior notifications, any purported error that the ALJ
did not directly notify Williams of the same is harmless.
Williams contends the ALJ had a heightened duty to a mentally impaired plaintiff
relying on Thompson v. Sullivan, 933 F.2d 581 (7th Cir. 1991). (D.I. 11-1 at4.) The
plaintiff in Thompson was diagnosed with chronic alcoholism and an adjustment
disorder with depressed mood. 933 F.2d at 583. There the ALJ failed to inquire as to
the limitations imposed by the plaintiff's alcoholism and mental impairments. Id. at 587.
The court found the ALJ failed to meet a heightened duty owed to the plaintiff to
develop the record, and remanded the claim. Id. at 588.
In the instant matter, the ALJ inquired as to Williams' depression, asking for

17

symptoms and causes. (D.I. 5 at 35-36.) The ALJ further instructed Williams to include
limitations stemming from her mental impairment in her questioning of the VE. (Id. at
47.) Unlike Thompson, here the ALJ discussed Williams' mental impairments and
assisted her in developing the record, and, thus, met his obligation.
b.

Duty to Fully and Fairly Develop the Record

Williams argues the ALJ failed to conduct a full and fair hearing and fully develop
the record. An ALJ has a duty to "investigate the facts and develop the arguments both
for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 111 (2000) (plurality)
(dicta). "An ALJ owes a duty to a prose claimant to help him or her develop the
administrative record. When a claimant appears at a hearing without counsel, the ALJ
must scrupulously and conscientiously probe into, inquire of and explore for all the
relevant facts." Reefer, 326 F.3d at 380 (internal quotations omitted). A hearing may
be characterized as unfair "due to the failure of the ALJ to develop the record."
Livingston, 614 F.2d at 345. "However, the ALJ is not required to function as the

claimant's substitute counsel, but only to develop a reasonably complete record." Clark
v. Shala/a, 28 F.3d 828, 830-31 (8th Cir. 1994).

Here, the ALJ fully developed the record. Williams has shown no prejudice or
unfairness resulting from her pro se status. The ALJ questioned Williams on her
impairments and their effect on her ability to work, her medication and side effects, daily
activities, treatment history, financial status, family life, the prior administrative hearing,
and physical exertional limits. (D.I. 5 at 26-41.) Finally, the ALJ gave Williams the

18

opportunity to include any additional information. 17 The ALJ instructed her on
questioning the vocational expert, noting the questions should address the limitations
resulting from her impairments. (Id. at 46, 47.) The ALJ also instructed Williams on her
right to elicit testimony from the VE challenging the ALJ's questioning. (Id. at 46.)
Williams takes exception to the ALJ's decision not to ask the VE follow-up
questions, but cites no law or procedure requiring him to do so. (D.I. 11-1 at 5.) She
asserts this is error, citing omissions from the hypothetical and shortcomings in her own
questioning of the VE. 18 (Id.) The hypothetical, however, noted a claimant with fatigue,
mood swings, social limitations, and manipulative limitations of the right upper
extremity. (D.I. 5 at 43.) Her examination of the VE mentioned bilateral carpal tunnel,
but did not include bilateral manipulative impairment in relation to work (id. at 47), or her
response to the ALJ's question on lifting limitations. (Id. at 38.) The hypothetical posed
by the ALJ, along with Williams' examination, was thus inclusive of her limitations, and
follow-up questions were not necessary.
Williams further urges that the record is incomplete because a medical report
had not been submitted to the ALJ before the hearing. 19 (D.I. 11-1 at 6.) Williams fails,
however, to specify any prejudice suffered from a lack of this evidence. Williams did
not provide the evidence to the ALJ or to the Appeals Council. She never indicated

17

"Q. Okay. Is there anything else you want to tell me about your situation, Ms.

Williams, that I haven't asked you or you volunteered?
A. No, sir, I've told you everything, sir." (D.I. 5 at 41.)
18
Williams contends the questioning omitted consideration of drowsiness or
pain, social limitations from mood swings, and manipulative restrictions. (D.I. 11-1 at
5.)
19
At the hearing, the ALJ asked Williams to submit the medical record to him.
(D.I. 5 at 28.)

19

what this medical record is, its significance, or why it was error for the ALJ to proceed
without it. 20
Williams lastly asserts ALJ improperly failed to explain his legal basis for
amending the alleged onset date at the hearing. (Id. at 6.) She does not dispute the
propriety of the amendment, but the procedure. The ALJ's procedure is not actionable
error. 21
2.

The ALJ's RFC Finding

Williams argues the ALJ's residual functional capacity (RFC) assessment is
unsupported by substantial evidence because it failed to accommodate her hand, neck,
and arm impairments, social impairments, and resulting limitations. (Id. at 5 n.1, 7.)
Defendant contends the RFC finding is adequately supported. (D.I. 13 at 12.)
a.

Physical Impairments

Williams maintains the ALJ improperly found that, regarding her arm and hand
use, she was capable of frequently lifting ten pounds and occasionally twenty pounds,
with no limitations for left carpal tunnel syndrome, despite finding this condition was
severe. (D.I. 11-1 at 7.) The ALJ also found while the impairments cause some
functional limitations, "the moderate clinical findings, conservative treatment, and
extensive activities of daily living shown in the record are not consistent with total

20

"The court ... may at any time order additional evidence to be taken before
the Commissioner of Social Security, but only upon a showing that there is new
evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding[.]" 42 U.S.C. § 405(g). As Williams
has made no showing of materiality, new or additional evidence is not required.
21
The court may not impose procedures upon an administrative agency. See
Vermont Yankee Nuclear Power Corp. v. N.R.D.C, 435 U.S. 519, 549 (1978).
20

disability." (D.I. 5 at 16.) The ALJ did note chronic right shoulder and moderate neck
and back pain, and made adequate allowance for these conditions by limiting her to
light work, 22 sitting or standing for only thirty minutes at a time, and minimal pushing and
pulling, with no exposure to heights, hazardous machinery, or stair climbing, and no
requirement of fine dexterity or manipulation (Id. at 16-17.)
The ALJ notes in his RFC finding the weight assigned to and his reasoning for
each treating opinion. (Id. at 17-18.) An ALJ's findings of fact must be taken as
conclusive when supported by substantial evidence. Van Hom v. Schweiker, 717 F.2d
871, 873 (3d Cir. 1983). However, while the court finds the ALJ adequately
accommodated her impairments, his decision to assign no weight to Dr. Glassman's
opinions lacks support and is contrary to the evidence. "The grounds upon which an
administrative order must be judged are those upon which the record discloses that its
action was based." SEC v. Chenery, 318 U.S. 80, 87 (1943). 23 A district court may not
affirm an administrative decision by substituting more appropriate grounds. Chenery,
332 U.S. at 196; Fargnoli, 247 F.3d at 44 n.7.
The ALJ's decision to afford no weight to Dr. Glassman's multi-year treatment
relationship is unsupported by substantial evidence. The ALJ, in justifying his decision,
notes "Dr. Glassman's opinions are conclusory, primarily based on claimant's subjective
complaint!? and outside of his range of expertise as Dr. Glassman's specialty is Physical
Medicine and Rehabilitation and he retains no specialization in Psychiatry." (D.I. 5 at
22

20 CFR 404.1567(b) defines light work as "lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to 10 pounds."
23
The Commissioner, in his brief, relies heavily on Dr. Glassman's medical
findings in arguing the RFC finding is properly supported. (D.I. 13.)
21

18.) The ALJ discusses the factors in evaluating treating source opinions, 24 but
ultimately ignores them because Dr. Glassman's opinions are "conclusory". (Id.) The
ALJ seemingly rejects more than two years of treatment evidence. The doctor opined
that Williams was totally disabled. Given his opinion and the length and nature of the
treatment he provided, it may well be the case that this evidence would be sufficient to
provide the detailed, longitudinal picture of impairments described in 20 CFR §
404.1527(c)(2). While determination of disability rests with the ALJ, he may"not ignore
the underlying evidence because it led to a conclusion. See§§ 404.1527(d)(1 )-(2).
Similarly he may not discount the entire treatment relationship because a physician
gave an opinion outside his expertise. While the ALJ properly affords little weight to Dr.
Glassman's psychiatric opinions, this does not warrant rejection of all of Dr. Glassman's
opinions. Dr. Glassman's assessments of Williams' physical impairments are within his
specialty of physical medicine and rehabilitation.
"Careful consideration must be given to any available information about
symptoms because subjective descriptions may indicate more severe limitations or
restrictions than can be shown by objective medical evidence alone." SSR 96-8p, 1996
WL 374814 at *5. That Dr. Glassman noted Williams' subjective_descriptions of pain
and evaluated them is not grounds for discounting his opinion. On each visit, Dr.
..
Glassman performed objective physical tests, including range of motion and for carpal
tunnel syndrome. (See e.g. D.I. 5 at 195-96.) The ALJ's failure to give any weight to

24

Examining relationship; treatment relationship; (namely, length and nature and
extent of treatment relationship); supportability; consistency with the record; and
specialization. 20 C.F.R. § 404.1527(c).
22

Dr. Glassman's objective and subjective assessments of Williams' impairments and
medical conditions was in error.

b.

Mental Impairments

Williams contends the ALJ's RFC finding fails to incorporate any social
limitations despite a finding of moderate social difficulty. (D.I. 11-1 at 5 n.1.) "In
assessing RFC, the adjudicator must consider limitations and restrictions imposed by all
of an individual's impairments, even those that are not 'severe."' SSR 96-Bp, 1996 WL
37 4184 at *5. The ALJ found Williams had moderate difficulties in social functioning
and severe mental impairments (D.I. 5 at 13, 17); the RFC assessment only includes
limitations related to 'mental impairments. 25 It fails to address her reported problems of
getting along with family, friends, neighbors, and others due to mood swings, conditions
determined at step 3 of the 5 step process. (Id. at 13) The effect of these impairments,
though not severe, merits discussion in the RFC analysis. Accordingly, the RFC finding
is incomplete and not supported by substantial evidence.
As a result, the matter should be remanded for the ALJ to elaborate upon the
elements of 20 C.F.R. §404.1527(c) regarding the appropriate weight afforded to Dr.
Glassman, a treating physician, and fully address Williams' social limitations.

3.

Williams' Subjective Complaints

Williams alleges the ALJ erred in assessing her activities of daily living (ADLs)
and her reports of side effects from medication. (D.I. 11-1 at 10, 12.) The ALJ found

25

"Simple, unskilled work ... low concentration, low memory, low stress,
meaning jobs that have no changes in the workplace of judgment to speak of, simple
one and two step tasks." (D.I. 5 at 13-14.)
23

her extensive ADLs were not consistent with total disability. (0.1. 5 at 16.) The ALJ
further found Williams' "statements concerning the intensity, persistence and limiting
effects ofthese symptoms are not credible to the extent they are inconsistent with the .
. . residual functional capacity assessment." (Id. at 15.)
a.

Activities of Daily Living

Williams argues the ALJ erred in finding a mild restriction to activities of daily
living because the conclusion contradicts her reports. (D.I. 11-1 at 11.) The
Commissioner, however, identifies in her brief, inconsistencies in her AOL reports. (D.I.
13 at 16.)26 See SSR 96-7p, 1996 WL 374186 at *5 ("One strong indication of the
credibility of an individual's statements is their consistency, both internally and with
other information in the case record.") The ALJ's RFC determination provides no
rationale, 27 (D.I. 5 at 15) with the justification for the credibility finding appearing only in
the Commissioner's brief. (D.I. 13 at 15-16.) This lack of any articulation in the RFC
assessment renders the finding unsupported by substantial evidence.
b.

Side Effects of Medication

Williams lastly alleges the ALJ failed to properly consider the side effects of her
pain medications. 28 The ALJ is required to consider "[t]he type, dosage, effectiveness,

26

The medication improved her ability to care for her children, grandchildren, and
mother (id. at 204); the pain medication was effective at relieving pain (id. at 243); she
could do housework and light shopping. (Id. at 111.) Williams, however, reported she
relied on her mother and daughter for meal preparation and shopping. (Id. at 161-62.)
27
"The reasons for the credibility finding must be grounded in the evidence and
articulated in the determination or decision. It is not sufficient to make a conclusory
statement that 'the individual's allegations have been considered' or that 'the allegations
are (or are not) credible."' SSR 96-7P, 1996 WL 374186 at* 4.
28
Side effects include dizziness, dry mouth, fatigue, and vomiting. (D.I. 5 at 15.)
24

and side effects of any medication .... " 20 C.F.R. § 404.1529(c)(3)(iv). The record is
replete with subjective complaints of side effects. (D.I. 5 at-191-387, 409-30.) Dr.
Glassman, during the same period, reported no adverse effects. (Id.) The
Commissioner claims the ALJ accounted for credible side effects by limiting Williams to
simple, unskilled work involving one to two step tasks, low concentration, low memory,
and low stress. (D.I. 13 at 16-17.) The RFC finding, however, explicitly states these
restrictions are to accommodate her depression and anxiety. (D.I. 5 at 17.) Although
the ALJ acknowledged her reports of side effects (id. at 15), he never addressed
whether they cause any limitation. Indeed, the ALJ makes no further mention of them
in his RFC finding. While the finding suggests the ALJ was aware of the medication
issues, there is no evidence he considered them in rendering the RFC assessment.
For these reasons, the court concludes the ALJ's findings on ADLs and the side
effects of medication are unsupported by substantial evidence. The RFC finding is
remanded for the ALJ to substantiate whether any bases exist for his findings regarding
Williams' ADLs, and any side effects.and resulting limitations from her medication.

V.

CONCLUSION
For the foregoing reasons, (1) Williams' motion for summary judgment is granted

in part and denied in part; (2) the Commissioner's motion for summary judgment is
granted in part and denied in part; and (3) the matter is remanded for further
proceedings consistent with the Memorandum.

Dated February~' 2016

25