Clark v. Astrue

Filing 23

REPORT AND RECOMMENDATIONS re 18 MOTION for Summary Judgment filed by Constance Clark, 20 Cross MOTION for Summary Judgment filed by Michael Astrue. Please note that when filing Objections pursuant to Federal Rule of Civil P rocedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 8/12/2013. Signed by Judge Mary Pat Thynge on 7/24/13. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CONSTANCE CLARK,
Plaintiff,
v.

CAROLYN COLVIN,
Commissioner of Social Security,
Defendant.

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C. A. No.12-1116-RGA-MPT

REPORT AND RECOMMENDATION
I.

Introduction
Plaintiff, Constance Clark (“plaintiff”) appeals the decision of Carolyn Colvin, the

Commissioner of Social Security (“defendant”), denying her claim for Social Security
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”).1
Currently before the court are the parties’ cross-motions for summary judgment.
II.

Jurisdiction
A district court has the jurisdiction to review an administrative law judge’s (“ALJ”)

decision in a Title II DIB case once it becomes the final decision of the Commissioner.2
A decision of the Commissioner becomes final when the Appeals Council either affirms
or denies review of an ALJ decision, or when a claimant fails to appeal the ALJ’s
decision within 60 days a unfavorable ruling.3
Here, the ALJ’s decision is the final decision of the Commissioner because the
1

See 42 U.S.C. §§ 401-433
42 U.S.C. § 405(g) (“Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party . . . may obtain a review of such decision by a civil
action . . . brought in the district court of the United States for the judicial district in which the plaintiff
resides.”).
3
See 20 C.F.R. § 416.1455; see also 20 C.F.R. § 404.905.
2

Appeals Council denied plaintiff’s request for appeal. Therefore, this court has
jurisdiction to review the ALJ’s decision.
III.

Procedural Background
On March 17, 2009, plaintiff filed a Title II application for a period of DIB, alleging

her disability began March 13, 2008.4 The claim was initially denied on September 24,
2009, and upon reconsideration on November 9, 2009.5 Thereafter, plaintiff filed a
written request for an administrative hearing on November 16, 2009.6
On August 12, 2010, ALJ Melvin D. Benitz held a video hearing to determine
whether plaintiff was disabled under §§ 216(i) and 223(d) of the Social Security Act and
to determine if the insured status requirements under the same sections were met.7
Plaintiff, represented by counsel, testified to her disability.8 Also testifying at the hearing
was Christina L. Beatty-Cody, an impartial vocational expert (“VE”).9
After the hearing, the ALJ determined plaintiff was not disabled within the
meaning of the Act from March 13, 200810 to October 20, 2010, the date the opinion was
issued.11 The ALJ’s decision became final when the Appeals Council denied plaintiff’s
request for review.
IV.

Factual Background
Plaintiff was 36 years old at the time of her alleged onset date of disability, March

4

D.I. 11 at 13
Id.
6
Id.
7
Id.
8
Id.
9
Id.
10
Id.
11
Id. at 24.
5

2

13, 2008.12 By the time of the hearing, she was 39 years of age.13 Plaintiff has
consistently alleged an inability to work due to chronic back pain and depression.14
A.

Medical Evidence

Plaintiff is insured for disability benefits until December 31, 2013.15 Prior to the
onset of her back pain, plaintiff worked as a machinist for 19 years, from age 18 to 37
years, stopping in March 2008.16 The job of a machinist is a skilled position, and is
generally performed at a medium level of exertion, but the VE testified plaintiff performed
her job at a heavy exertion level, often lifting more than 80 pounds and stood
approximately six to eight hours a day while working.17
In May 2008, plaintiff reported a three-month history of back pain.18 Plaintiff did
not work from March 2008 to May 2008 due to the pain, and was terminated.19 On May
28, 2008, she had her initial visit with Dr. Bruce Rudin, who administered injections,
medication, and physical therapy,20 which only provided minimal relief.21 Plaintiff
complained to Rudin that her legs were giving way occasionally, but upon examination,
Rudin observed plaintiff walked with a normal gait and could rise from a sitting position
easily.22 Rudin also noted plaintiff had 5/5 strength in her legs and her sensation was
intact.23 A lumbar discogram was performed to further evaluate the reported back pain,
12

D.I. 19 at 3.
Id.
14
D.I. 11 at 18.
15
Id. at 2.
16
D.I. 19 at 3.
17
Id.
18
D.I. 11 at 18.
19
D.I. 19 at 3.
20
D.I. 11 at 18.
21
D.I. 19 at 3.
22
D.I. 11 at 18.
23
Id. at 19.
13

3

which revealed “essentially normal” discs.”24 Rudin concluded spinal fusion surgery was
not appropriate, explained the risks and encouraged plaintiff to try to “live with” the pain
until spinal disc replacement surgery was available at multiple levels.25
Dr. James Moran also examined plaintiff in September 2008 to evaluate her back
pain.26 Moran indicated plaintiff sought treatment to help manage her pain; however, he
later learned from another physician that she had a history of drug-seeking behavior.27
After plaintiff successfully filled a Roxicet (narcotic) prescription, despite having the
prescription filled two days prior, Moran discontinued proscribing28 opioid medications
because she violated a medication agreement by testing positive for cocaine and
marijuana.29
On November 20, 2008, plaintiff met with Dr. Bikash Bose to discuss fusion
surgery.30 Despite Rudin’s recommendation, Bose suggested a two-level diskectomy
and spinal fusion.31 Plaintiff sought a second opinion on February 2, 2009 from Dr.
Kennedy Yalamanchili,32 who agreed with Bose’s course of treatment, and explained the
significant risks.33 Plaintiff decided to proceed with surgery to reduce her pain.34 Surgery
occurred in April 2009, and post-surgery examinations indicated the incision was “well
healed without swelling around the wound.”35 Bose only restricted her from driving, and

24

Id.
Id.
26
Id.
27
Id.
28
D.I. 21 at 4.
29
D.I. 11 at 19.
30
D.I. 19 at 4.
31
D.I. 11 at 19.
32
D.I. 19 at 4.
33
D.I. 11 at 19.
34
Id.
35
Id.
25

4

not as a passenger.36 He also recommended a follow-up examination two weeks later.
Plaintiff failed to return until 14 months after her initial surgery.37 Post surgery, Dr.
Emannuel DeVotta treated plaintiff for pain management; however, DeVotta later
discharged her in August 2009 because she violated the controlled substance
agreement by testing positive for cocaine.38
Over the next several months, plaintiff was admitted to the emergency room on
multiple occasions, complaining of severe back pain. In May 2009, she was hospitalized
for severe low back pain for approximately four days.39 In June 2009, plaintiff underwent
right foot surgery with no post operative compilations, except for pain for which Percocet
was proscribed.40
A CT scan of her lumbar spine in July 2009 showed the surgical hardware was in
the proper position and the alignment stable.41 Plaintiff was hospitalized for lower back
pain and bronchitis in mid-July 2009 for six days.42
In November 2009, Dr. Irwin Lifrak, a non-treating physician, performed a
consultative examination for the Disability Determination Service.43 Plaintiff’s chief
complaint was lower back pain radiating to her left hip and left lower extremity.44 Lifrak
concluded plaintiff was capable of lifting up to ten pounds, and able to sit five hours and
stand four hours in an eight-hour work day.45 He found no deficits in manual dexterity,
36

D.I. 21 at 6.
Id.
38
Id. at 5.
39
D.I. 19 at 5.
40
D.I. 11 at 19-20.
41
Id.
42
D.I. 19 at 5.
43
D.I. 11 at 20.
44
Id.
45
D.I. 19 at 5.
37

5

normal grip strength, and reduced lumbar range of motion.46 His diagnosis was
degenerative joint disease and probable disc damage.47 Four days after Lifrak’s
examination, Dr. Anne Aldridge, a non-treating non-examining state agency doctor,
completed a Physical Residual Functional Capacity Assessment (“RFC”) of plaintiff.48
Aldridge estimated plaintiff was capable of lifting twenty pounds occasionally, ten pounds
frequently, and could stand and/or walk for two-hours and sit for six hours in an eighthour work day.49
Also in November 2009, plaintiff began treatment with Dr. Renato Vesga for pain
management.50 Vesga prescribed medications and injections, and carefully monitored
plaintiff’s intake of pain medicine.51
In December 2009, plaintiff unsuccessfully attempted to return to work52 as a parttime deli worker, which was less physically demanding than her prior employment as a
machinist since she could sit, stand, lift lighter objects, and only worked every-other
day.53 Plaintiff held this position for approximately two and a half months, but stopped
because of persistent and severe back pain.54
In February 2010, plaintiff was treated in the emergency room for complaints of
severe back pain after she fell on her back.55 That same month, she lost her medical

46

D.I. 11 at 20.
Id.
48
D.I. 19 at 5.
49
Id. at 5-6.
50
Id. at 6.
51
Id.
52
Id. (referred to as a work attempt, which is a work effort that ends within three months or less
due to impairment).
53
Id.
54
Id.
55
D.I. 11 at 20.
47

6

insurance.56
In June 2010, plaintiff was hospitalized again for exacerbated back pain, which
prevented ambulation.57 Plaintiff was given pain medications and instructed to follow-up
with Dr. Bose.58 Bose determined her severe pain was due to nonfusion of the lumbar
vertebrae after the April 2009 surgery.59 On July 22, 2010, Bose performed a posterior
lumbar exploration and removal of L4-L5 and L5-S1 pedicle screw; L4-L5 bilateral
foraminotomies, decompression and neurolysis, and augmentation fusion of L4-L5 and
L5-S1.60 During this hospitalization, significant narcotic pain medications were
prescribed, from which she was weaned before discharge.61 At the time of discharge,
plaintiff experienced no post operation complications and was ambulating without
assistance.62
Besides her back problems, the record indicates plaintiff has been diagnosed with
depression.63 The record shows she reported depression due to her physical condition.64
In October 2009, Dr. Patricia Lifrak, plaintiff’s psychiatrist, diagnosed PTSD, mood
disorder NOS, and cocaine dependence, which was in remission.65 Lifrak concluded
plaintiff had decreased concentration and rated her GAF at 60, which is consistent with
moderate symptoms.66 Dr. Carlene Tucker-Okine, a State agency medical consultant,

56

D.I. 19 at 6.
D.I. 11 at 20.
58
Id.
59
D.I. 19 at 6.
60
Id. at 7.
61
D.I. 11 at 20.
62
Id.
63
Id. at 21.
64
Id.
65
D.I. 19 at 5.
66
D.I. 11 at 21.
57

7

found in November 2009 plaintiff’s mental impairment caused “mild” limitations in her
daily life activities, and “moderate” limitations in her concentration, persistence, or
pace.67
V.

Administrative Law Hearing
A.

Plaintiff’s Testimony

At the August 12, 2010 hearing, plaintiff testified she was considered a first class
machinist and had not worked in that position since March 13, 2008.68 Plaintiff explained
the March 13, 2008 date corresponded with the date she last worked, and her leave was
due to her back pain.69 Plaintiff also claimed leg swelling, difficulty standing, problems
with walking, which prevented her from working.70 In addition, she testified about her
back fusion procedure in April 7, 2009.71
Plaintiff discussed her attempt to work after the initial surgery as a deli manager, a
position she left after two and a half months because it required walking and bending.72
Because of continued back problems, she underwent a second surgery in July, the
month prior to the ALJ hearing, to repair the non-fusion.73
Plaintiff further reported she wore a back brace,74 and used a bone simulator to
increase bone growth.75 Both were prescribed to promote healing and curb back pain.76

67

Id.
Id. at 33-4.
69
Id. at 34.
70
Id.
71
Id.
72
Id. at 35.
73
Id. at 35-36.
74
Id. at 38.
75
Id.
76
D.I. 19 at 7-8.
68

8

She used the bone simulator for nine months, and the brace until fusion was complete.77
Finally, plaintiff testified she completed high school and four years of vocational
training to become a first class machinist.78
B.

Vocational Expert’s Testimony

Christina Cody, a VE, testified at the hearing.79 Cody explained plaintiff
employment as a machinist constituted a heavy exertional level, even though most
machinists’ work is consider a medium exertional level.80 She further stated plaintiff had
no transferable skills in the machinist industry.81 The ALJ posed a hypothetical person
like plaintiff at the same age, having the same disability onset date, and education,
suffering from the same disabilities, degenerative disk disease and depression, which
cause moderate pain, and taking the same medications which provide some relief
without significant side effects, for a simple, routine, unskilled job with low concentration
and low memory requirements, and who is able to sit for 20-30 minutes at a time and
stand for 20-30 minutes at a time, and who can lift 10 pounds frequently and 20 pounds
occasionally.82 Cody testified there were several jobs within the regional and national
economies that that hypothetical person could perform,83 that is: (1) an inspector; (2)
order caller; (3) hand bander; (4) copy examiner; (5) final assembler; and (6) bench
hand.84

77

D.I. 11 at 55.
Id. at 50.
79
Id. at 63.
80
Id.
81
Id. at 64.
82
Id. at 66.
83
Id.
84
Id. at 66-7.
78

9

VI.

ALJ’s Findings
After considering all of the evidence, the ALJ found plaintiff was not disabled

within the meaning of the Act since March 13, 2008, and denied her claim. His findings
from his October 20, 2010 opinion are:85
1.

Plaintiff meets the insured status requirements of the Act through
December 31, 2013.

2.

Plaintiff had not engaged in substantial gainful activity since March 13,
2008, the alleged onset date.

3.

Plaintiff had the following severe impairments: degenerative disc disease;
and depression.

4.

Plaintiff did not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart A, Appendix 1 (20 CFR 404.1520(d), 404.1525 abd
404.1526).

5.

After careful consideration of the entire record, the ALJ found that plaintiff
had the RFC to perform light work as defined in 20 CFR 404.1567(b)
except: plaintiff retains the ability to perform light and sedentary work
activities, which allow her to stand for 20-30 minutes and sit for 20-30
minutes at a time due to moderate pain in her back and legs. She could lift
20 pounds occasionally and 10 pounds frequently. Plaintiff had the
residual functional capacity to perform work activities that allow her to avoid
climbing stairs, ropes, and ladders. Plaintiff retained the ability to perform
simple, routine tasks requiring low concentration and low memory (SVP-2
level) due to moderate symptoms of depression.

6.

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

7.

Plaintiff was born on July 20, 1971 and was 36 years old, which is defined
as a younger individual age 18-49, on the alleged disability onset date
(Exhibit 1D) (20 CFR 404.1564).

8.

Plaintiff has at least a high school education and is able to communicate in
English (Exhibit 2E) (CFR 404.1564).

85

Id. at 13-24.

10

9.

10.

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

11.

VII.

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

Plaintiff has not been under a disability, as defined in the Act, from March
13, 2008, through the date of the ALJ decision (20 CFR 404.1520(g)).

Parties’ Contentions
A.

Plaintiff’s Position

Plaintiff argues she is entitled to judgement in her favor. First, she asserts the
ALJ failed to develop the record and, instead, relied upon outdated medical opinions.
She contends the duty of the ALJ is to develop the record, making the proceeding
inquisitorial rather than adversarial.86 She further maintains the ALJ must make “‘every
reasonable effort to obtain evidence from [plaintiff’s] own medical sources’ or obtain a
consultative examination.”87 Plaintiff reasons that because her attorney failed to provide
an opinion from her treating physicians about her residual functional capacity, and the
ALJ compounded the error by failing to obtain such information from her physicians and
medical experts, she is entitled to another reveiw.88 Because the medical opinions relied
on were outdated and did not consider the non-fusion of her vertebrae and her second
surgery (Irwin Lifrak and Anne Aldridge opinions), the ALJ should have ordered a

86

Sims v. Apfel, 530 U.S. 103, 110-11 (2000).
See 20 C.F.R. § 404.1512(e)(f); see also 20 C.F.R. § 404.1517.
88
D.I. 19 at 9.
87

11

consultative examination of her condition and a thorough review of the updated medical
records by a medical expert prior to his decision.89
Plaintiff further argues the ALJ arbitrarily relied on Dr. Aldridge’s report over Dr.
Irwin Lifrak’s report, making his decision arbitrary and capricious.90 The reports were
both composed in early November 2009.91 Plaintiff contends that since the two opinions
were issued within the same time frame, both are based on insufficient medical
information, and unreliable.92
Finally, with regard to the under developed record, plaintiff argues the ALJ failed
to consider her current medical condition.93 Although evidence of her second surgery
and continued treatment were presented, the ALJ did not request additional information
from her treating physicians or consultative examiners, which resulted in an erroneous
RFC and violated agency regulations.94
Plaintiff next argues the ALJ failed to explain the weight given to Dr.
Yalamanchili’s opinion, or why the surgical recovery periods were not included in his
hypothetical question to the VE.95 Plaintiff reasons to evaluate all medical findings, the
ALJ must analyze all relevant evidence and explain the basis for his conclusion.96
Plaintiff contends the Third Circuit requires an ALJ to either accept evidence and include
it in his opinion, or reject it with an explanation.97 Plaintiff asserts the ALJ’s opinion

89

Id. at 10.
Id. at 11
91
Id.
92
Id.
93
Id. at 12
94
See Doak v. Heckler, 790 F.2d 26 (3d Cir. 1986); 20 C.F.R. § 404.1512(e), (f); 404.1517
95
D.I. 19 at 12.
96
Id.
97
See Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004).
90

12

should have stated whether he accepted Yalamanchili’s opinions regarding plaintiff’s
recovery time and potential improvement rate, and discussed the weight applied to the
physician’s opinions, or explained why the opinions were rejected.98 Because the ALJ
cited to Yalamanchili’s report, he accepted his opinion at least in part and should have
asked the VE about recovery time and the potential for pain improvement in his
hypothetical question.99
Finally, plaintiff points to new evidence which shows the government doctor upon
whose opinion the ALJ relied, had her medical license suspended due to professional
misconduct, therefore remand is required.100 Plaintiff explains when a claimant relies on
evidence not previously before the ALJ, “the district court may remand [the case] to the
Commissioner, . . . if the evidence is new and material and if there is good cause why it
was not previously presented to the ALJ.”101
Plaintiff insists the State’s disciplinary action against Dr. Aldridge is new, material
evidence that the ALJ should consider because it relates to actions happening when DIB
denials occurred.102 Aldridge’s suspension resulted from her prescribing to herself and
family members, narcotics which violated medical ethics.103 Plaintiff asserts such
conduct impunes the reliability of her November 2009 report, mandating remand for
consideration of this new evidence.104
B.

Defendant’s Position

98

D.I. 19 at 13.
Id. at 14.
100
Id. at 16.
101
Matthews v. Apfel, 239 F.3d 589, 592-93 (3d Cir. 2001); 405 U.S.C. § 405(g)
102
D.I. 19 at 16.
103
Id. at 17
104
Id. at 18
99

13

Defendant argues substantial evidence supports the ALJ’s finding that plaintiff
could work.105 Defendant notes the medical evidence demonstrates plaintiff was advised
not to undergo surgery for the back pain, and despite her reports of pain, not one of her
treating physicians opined she is unable to work,106 and “[a] lack of medical evidence is
very strong evidence that [plaintiff] [is] not disabled.”107 Defendant submits plaintiff’s
part-time job, although an unsuccessful work attempt, demonstrates she is not disabled
because the regulations recognize the “work. . .that you have done during any period in
which you believe you are disabled may show that you are able to work at the substantial
gainful activity level.”108 Since the ALJ acknowledged plaintiff suffered from back pain
which caused functional limitations,109 he limited plaintiff to light and sedentary jobs
which accommodated her needs.110 Defendant claims “an individual need not be pain
free or experiencing no discomfort in order to be found not disabled.”111
Defendant asserts the ALJ reasonably considered the medical opinions,112 and
maintains “the requirement for additional information is triggered only when the evidence
from the treating medical source is inadequate to make a determination as to [plaintiff’s]
disability.”113 Plaintiff does not argue insufficient evidence, but that the ALJ failed to
further develop the record beyond its over 1,200 pages.114
Defendant contends a treating source opinion is not required for a disability
105

D.I. 21 at 7.
Id. at 8.
107
Lane v. Comm’r of Soc. Sec., 100 F. App’x 90, 95 (3d Cir. 2004).
108
D.I. 21 at 9.
109
Id. at 10.
110
Id.
111
Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986).
112
D.I. 21 at 11.
113
Id.
114
Id.
106

14

determination,115 because determining a plaintiff’s RFC is within the province of the ALJ,
not a physician,116 as Third Circuit law recognized “the opinion of a treating physician
does not bind the ALJ on the issue of functional capacity.”117
Defendant also relies on the lack of restrictions by plaintiff’s treating sources as
indicating she is not disabled.118 While the absence of such restrictions is not
determinable, it is probative.119
Lastly, defendant urges the ALJ’s reliance on the opinions of Drs. Aldridge and
Irwin Lifrak, which did not address plaintiff’s second surgery is appropriate since the
Third Circuit recognizes “because state agency review precedes ALJ review, there is
always some time lapse between the consultant’s report and the ALJ hearing and
decision.”120 Further, the Third Circuit acknowledges “Social Security regulations impose
no limit on how much time may pass between a report and the ALJ’s decision in reliance
on it.”121
Defendant contends Dr. Yalamanchili’s speculative and general statements about
a medical procedure are not considered a medical opinion to be weighed because he did
not specify plaintiff’s functional abilities or individual prognosis.122 None of Yalamanchili’s
comments address plaintiff’s response to the operation or the specific activities she could
perform,123 and therefore, the ALJ was not obliged to weigh his report.124
115

Id.
Id.
117
Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011).
118
D.I. 21 at 12.
119
Thompson v. Halter, 45 F. App’x 146, 148 (3d Cir. 2002)
120
Chandler v. Comm’r of Soc. Sec., 664 F.3d 356 (3d Cir. 2011)
121
Id.
122
Id. at 14.
123
See McDonald v. Astrue, 492 F. App’x 875, 884 (10th Cir. 2012).
124
D.I. 21 at 15.
116

15

Finally, defendant argues plaintiff’s additional evidence regarding Dr. Aldridge’s
suspended license is not a basis for remand, since she present no new evidence related
to her medical condition, or a new medical opinion. 125 Rather, the ALJ determined
plaintiff’s work capacity based on the record as a whole by adopting a completely
different work capacity determination than Aldridge recommended.126
VIII.

Standard of Review
A.

Summary Judgment

In determining the appropriateness of summary judgment, the court must “review
the record as a whole, ‘draw[ing] all reasonable inferences in favor of the nonmoving
party[,]’ but [refraining from] weighing the evidence or making credibility
determinations.”127 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.128
This standard does not change merely because there are cross-motions for
summary judgment.129 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.130
“The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party.”131

125

Id. at 18.
Id. at 18-19.
127
Reeves v. Sanderson Plumbing, Prods., Inc., 530 U.S. 133, 150 (2000).
128
See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R. CIV. P. 56(c)).
129
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
130
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
131
Krupa v. New Castle County, 732 F. Supp. 497, 505 (D. Del. 1990).
126

16

Regarding Social Security Benefits matters, this court’s review is limited to
determining whether the final decision of the Commissioner is supported by substantial
evidence.
Substantial evidence is less than preponderance but more than a mere
scintilla. It is such relevant evidence as a reasonable mind would accept
as adequate support for a conclusion. It 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 put to a jury, a refusal to direct a verdict when the
conclusion sought to be drawn from it is one of fact to the jury.132
The Supreme Court has embraced a similar standard for determining summary judgment
pursuant to FED. R. CIV. P. 56:
The inquiry performed is the threshold inquiry of determining whether there
is a need for a trial - whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party . . . .
[T]his standard mirrors the standard for a directed verdict under Federal
Rule of Civil procedure 50(a), which is that the trial judge must direct a
verdict if, under the governing law, there can be but one reasonable
conclusion as to the verdict. If reasonable minds could differ as to the
import of evidence, however, a verdict should not be directed.133
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 conclusion.”
Furthermore, evidence taken as a whole must be sufficient to support a
conclusion by a reasonable person, not just the evidence consistent with
the agency’s decision.134 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. Nor is the 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

132

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986) (citation omitted).
134
Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986).
133

17

no evidence but a mere conclusion.135
B.

Disability Determination Standard
Five-Step Test

The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled.136
In step one the ALJ must determine if the claimant is engaged in any
substantial gainful activity. If a claimant is found to be engaged in any
substantial gainful activity, the ALJ will find the claimant not disabled.137
In step two, the ALJ must determine if the claimant is suffering from a
medically determinable impairment that is severe and meets the durational
requirement. A severe impairment is one that significantly limits a
claimant’s ability to do basic work activities.138 If the claimant does have a
severe impairment, the analysis proceeds to the next step.
In step three, the ALJ determines if a claimant’s impairments meets or
medically equals the criteria of one of the listings in 20 C.F.R. Part 404,
Subpart P, Appendix 1.139 If the claimant’s impairments meet or equal a
listed impairment, the claimant is disabled. If not, the analysis proceeds to
the next step.
Before continuing to step four, if claimant’s impairments do not meet or
equal a listed impairment, the ALJ will assess the claimant’s residual
functional capacity, to be used in steps four and five.140
In step four, the ALJ compares the claimants residual functional capacity to
her past relevant work. If a claimant can still perform past relevant work,
then she is not disabled.141 If a claimant cannot perform past relevant
work, the analysis proceeds to the last step.
In step five, the ALJ must consider the claimant’s impairments, residual
functional capacity, age, education, and work experience to determine if

135

Id.
20 C.F.R. § 404.1520(a).
137
Id. at § 404.1520(b).
138
Id. at § 404.1520(c).
139
Id. at § 404.1520(d).
140
Id. at § 404.1520(e).
141
Id. at § 404.1520(f).
136

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the claimant can perform other work. Here the burden shifts to the ALJ to
show that there are other jobs existing in significant numbers in the national
economy which the claimant can perform. The ALJ will often seek the
assistance of a vocational expert at this fifth step.142
If the ALJ determines a claimant is disabled at any step in the sequence, the
analysis ends.143
IX.

Discussion
A.

Developing the record and reliance on outdated medical opinions

Plaintiff asserts the ALJ did not adequately develop the record before rendering a
decision regarding her DIB, relying on outdated medical opinions. Although the ALJ’s
role in social security disability benefits cases is to develop the record,144 that duty does
not solely rest with the ALJ. In Supplemental Security Income (SSI) cases, the ALJ is
required to seek additional medical evidence if he believes the evidence presented is
inconclusive or unclear.145 In cases involving DIB, however, the burden is exclusively on
the plaintiff to prove by medical evidence that she cannot return to her past
employment.146 While other jurisdictions in this circuit have noted a limited duty of the
ALJ to develop the record “in cases where the ALJ believes that he or she is lacking
information critical to the determination of a factual issue”147 in both SSI and DIB cases,
this court has not previously addressed the issue. The Third Circuit distinguished these
two programs in Ferguson, noting specifically that SSI cases require the ALJ to secure
whatever evidence he believes is necessary to make a sound determination of whether
142

Plummer v. Apfel, 186 F.3d 422 (3d Cir. 1999).
See 20 C.F.R. § 404.1520(a).
144
See Sims, 530 U.S. at 110-11.
145
Ferguson v. Schweiker, 765 F.2d 31, 36 (3rd Cir. 1985).
146
See id. at n.4.
147
Thomas v. Chater, C.A. No. 95-3194, 1997 WL 256458, at *2-*3 (E.D. Pa. May 9, 1997)
143

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social security income is warranted if the evidence is inconclusive or unclear, while that
burden does not exist in DIB cases.148 Relying on the legislative history of Title II and
Title XVI (statute regarding SSI benefits), court found “although the definitions of
disability under both programs are the same, the burden of producing the medical
documentation required to establish disability is not,”149 because Title XVI’s legislative
history provides
“Your committee recognizes that under a needs program, it would be
unreasonable to expect a claimant to pay for the medical evidence
necessary to establish disability or blindness or even to provide the same
extent of medical documentation required under Title II of the Social
Security Act. Thus, the Secretary would be expected to secure the needed
medical evidence and [sic] the evidence was needed to make a sound
determination. Thus, in an SSI case, if there is insufficient medical
documentation or if the medical documentation is unclear, it is incumbent
upon the Secretary to secure any additional evidence needed to make a
sound determination.”150
Plaintiff incorrectly places the burden of seeking additional evidence regarding her
second surgery and non-fusion on the ALJ, arguing the ALJ was obligated to ferret out
such information.151
As evidenced by Ferguson, the ALJ is not obligated to obtain a medical opinion or
order a consultative examination of plaintiff, or seek such evidence in DIB cases. If that
information was so significant, plaintiff should have obtained that material and included it
in the record. The burdens of production and proof in a disability proceeding rest with

148

Ferguson, 765 F.2d at 36 n.4.
Id.
150
Id.
151
D.I. 19 at 10.
149

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the claimant.152 “When an applicant for social security benefits is represented by counsel
the administrative law judge is entitled to assume that the applicant is making his
strongest case for benefits.”153
Plaintiff further argues the ALJ arbitrarily relied on Aldridge’s outdated medical
opinion when determining her RFC.154 Plaintiff contends despite the contemporaneous
timing the Aldridge and Irwin Lifrak’s opinions, the ALJ applied significant weight to
Aldridge’s report, and gave only moderate weight to Lifrak’s opinion.155 “In evaluating
medical reports, the ALJ is free to choose the medical opinion of one doctor over that of
another . . . but cannot reject evidence for no reason or the wrong reason.”156 The Third
Circuit allowed records and opinions much older than Aldridge’s and Lifrak’s opinions
when determining if there is substantial evidence.157
Because state agency review precedes ALJ review, there is always some
time lapse between the consultant’s report and the ALJ hearing. The
Social Security regulations impose no limit on how much time may pass
between a report and the ALJ’s decision in reliance on it. Only where
‘additional medical evidence is received that in the opinion of the ALJ . . .
may change the State agency medical . . .consultant’s finding that the
impairment(s) is not equivalent in severity to any impairment in the Listing,’
is an update to the report required.158
In the instant matter, the ALJ relied on both Aldridge and Lifrak’s opinions in

152

42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless
[s]he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social
Security may require.).
153
Glenn v. Secretary of Health and Human Servs., 814 F.2d 387, 391 (7th Cir. 1987).
154
D.I 19 at 10.
155
Id. at 10, 11.
156
Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 505 (3rd Cir. 2009).
157
See, e.g., Chandler, 667 F.3d at 361 (“the records presented to the ALJ were, at most, a few
years old”); Morales v. Apfel, 225 F.3d 310, 312-3 (3rd Cir. 2000) (upholding a 1997 ALJ decision based
on records from 1989-1994); Hartranft v. Apfel, 181 F.3d 358, 360-61(3rd Cir. 1999) (finding substantial
evidence where the ALJ relied on six-year-old medical records).
158
Chandler, 661 F.3d at 361.

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determining plaintiff’s RFC. Though both reports were prepared roughly nine months
prior to the hearing, the ALJ was entitled to rely on one opinion over the other, and
provided his reasoning in doing so.159 Despite plaintiff’s arguments, the ALJ incorporated
more limitations regarding her work capacity assessment than either opinion
suggested.160
Finally, Chandler v. Comm’r of Soc. Sec. recognizes there are natural, incurable
time gaps in the disability adjudicatory framework, which neither violate any regulations,
nor warrant remand.161
B.

Failing to explain the weight given to doctors’ opinions

Plaintiff also argues the ALJ did not properly weigh Dr. Yalamanchili’s opinion
regarding her estimated recovery time.162 Plaintiff cites Third Circuit case law stating an
ALJ must explain the weight and importance of specific medical evidence if accepted, or
explain its irrelevance if rejected.163 “When making a residual functional capacity
determination, ‘an ALJ may not reject pertinent or probative evidence without
explanation.’”164 Controlling weight is usually given to a treating physician’s medical
opinion, unless it is inconsistent with the substantial evidence of the administrative
record.165 Although an ALJ cannot arbitrarily select parts of a physician’s opinion that
support a finding of non-disability, he “is entitled to reject or assign less weight to medical
opinions . . . based on factors . . . such as . . . [the] nature and length of the relationship,

159

D.I. 11 at 22.
D.I. 21 at 13.
161
Chandler, 661 F.3d at 361.
162
D.I. 19 at 12.
163
See Ramirez, 372 F.3d at 554
164
Russo v. Astrue, 421 Fed. App’x 184, 190 (3rd Cir. 2011).
165
Id.
160

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medical specialty, and consistency.”166 An ALJ must explain his reasons for rejecting a
medical opinion,167 which must provide a clear and satisfactory basis.168 “When a conflict
in evidence exists, the ALJ may choose whom to credit but ‘cannot reject evidence for no
reason or the wrong reason.’ The ALJ must consider all the evidence and give some
reason for discounting the evidence [he] rejects.”169 An ALJ however, need not proscribe
weight to a general statement by a treating or consulting physician.170 Under 20 C.F.R. §
404.1527(a)(2), “medical opinions are statements from physicians . . . or other
acceptable medical sources that reflect judgments about the nature and severity of [a
patient’s] impairment(s), including . . . symptoms, diagnosis and prognosis, what [a
patient] can still do despite impairment(s), and [his or her] physical or mental
restrictions.”171 General statements that do not apply the specific facts regarding a
patient to the medical knowledge of a physician to develop a prognosis or diagnosis are
typically not considered medical opinions within the meaning of 20 C.F.R.
§ 404.1527(a)(2).172
In this case, Yalamanchili’s comments regarding the recovery time typical for
plaintiff’s surgery do not qualify as medical opinion. In his letter to Dr. Bose, he states:
I have advised the patient that while I do agree with the proposed surgical
treatment planned as provided by Dr. Bose, she should be aware of the
limitations of this type of surgery. Approximately 50% of patients will
166

Guido v. Astrue, C.A. No. 11-686, 2012 WL 2403242, at *4 (W.D. Pa. June 26, 2012).
Id.
168
Bucker v. Astrue, C.A. No. 12-17, 2012 WL 5392255, at *8 (W.D. Pa Nov. 5, 2012).
169
Diaz v. Comm’r of Soc. Sec., 410 Fed. App’x 430, 433 (3rd Cir. 2010).
170
See e.g. McDonald v. Astrue, 492 Fed. App’x 875, 884 (10th Cir. 2012) (declining to elevate a
statement to medical opinion where it “d[id] not indicate any prognoses [or] provide opinions as to what
[the claimant] could still do despite her impairments); Cowan v. Astrue, 552 F.3d 1182, 1189 (10th Cir.
2008).
171
20 C.F.R. § 404.1527(a)(2) (emphasis added).
172
See Cowan, 552 F.3d at 1189.
167

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experience any improvement in pain associated with this type of surgery.
Furthermore, the surgery itself is extensive, requiring three to six months of
recovery and up to a year to see improvements.173
This report does not address plaintiff’s individual situation or what he expects she will
experience after surgery. It merely reflects what an average person could expect
regarding recovery time and success. His comments do not address plaintiff’s medical
circumstances, and therefore, the ALJ did not error in failing to proscribe weight to
Yalamanchili’s general medical statement, or for not including it in his hypothetical
question to the VE.
C.

New Evidence

Plaintiff claims the new evidence regarding Aldridge’s license suspension is
grounds for remand.174 Pursuant to 42 U.S.C. § 405 (g), “[t]he findings of the
Commissioner of Social Security [in a social security benefits case] as to any fact, if
supported by substantial evidence, shall be conclusive.” Section 405 (g) further allows a
district court to remand a matter to the ALJ for rehearing if presented with evidence not
previously provided to the ALJ:175 It specifically states:
the court may . . . at any time order additional evidence to be taken before
the Commissioner . . . , 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.176
For evidence to be material, it must be necessary to fully develop the facts of the
case, non-cumulative, and essential to a fair hearing.177 The evidence “must [also]

173

D.I. 11 at 332 (emphasis added).
D.I. 19 at 16.
175
Matthews, 239 F.3d at 592 (3rd Cir. 2001).
176
42 U.S.C. § 405 (g)
177
Pilet v. Apfel, 20 F. Supp. 2d 240, 247 (D. Mass. 1998).
174

24

permit the conclusion that the Secretary’s final decision might reasonably have been
different had the evidence been present at the time of decision.”178 Further, evidence is
material if it “relate[s] to the time period for which benefits were denied, and [does] not
concern evidence of a later-acquired disability or of the subsequent deterioration of a
previously non-disabling condition.”179 Good cause exists if the evidence was
unavailable at the time of the hearing.180
Plaintiff merely contends the case should be remanded due to Aldridge’s
suspension because her suspension could affect her credibility. Plaintiff does not assert
Aldridge’s findings are false, flawed, or lack foundation, and does not question the
validity of Aldridge’s findings from the consultative examination. As a result, this
additional information is insufficient to warrant remand and further review by the ALJ.
This new evidence is not necessary to develop plaintiff’s case factually. Such purported
new evidence does not address the ultimate issue of disability. At most it may relate to
the credibility of one physician, whose opinion was not completely adopted by the ALJ.181
Aldridge’s suspension and the bases for it are not sufficient to reasonably conclude the
ALJ’s decision would likely differ had this information been available during the hearing.
Plaintiff does not challenge the content of the report, nor present any contradicting
information. Plaintiff only cites Aldridge’s suspension and its alleged potential affect on
weight. Further, Aldridge’s suspension does not affect or discount other medical
evidence in the record.

178

Id.
Szubak v. Sec’y of HHS, 745 F.2d 831, 833 (3rd Cir. 1984).
180
Pilet, 20 F. Supp. 2d at 247.
181
D.I. 21 at 19.
179

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X.

Order and Recommended Disposition

Consistent with the findings contained in the Report and Recommendation,
IT IS RECOMMENDED that plaintiff’s motion for summary judgment (D.I. 18) be
denied, and defendant’s motion for summary judgment (D.I. 20) be granted.
Pursuant to 28 U.S.C. § 636(b)(1)(B), FED. R. CIV. P. 72 (b)(1), and D. DEL. LR
72.1, any objections to the Report and Recommendation shall be filed within fourteen
(14) days limited to ten (10) pages after being served with the same. Any response shall
be limited to ten (10) pages.182
The parties are directed to the Court’s Standing Order in Non-Pro Se Matters for
Objections Filed under FED. R. CIV. P. 72 dated November 16, 2009, a copy of which is
found on the Court’s website (www.ded.uscourts.gov.)
Date: July 24, 2013

/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

182

FED. R. CIV. P. 72(b)(2).

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