Idegwu v. Astrue

Filing 20

REPORT AND RECOMMENDATIONS re 15 MOTION for Summary Judgment filed by Roxie L. Idegwu, 17 Cross MOTION for Summary Judgment filed by Michael J. Astrue. Please note that when filing Objections pursuant to Federal Rule of Civil Proce dure 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 12/5/2013. Signed by Judge Mary Pat Thynge on 11/18/13. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROXIE L. IDEGWU
Plaintiff,
Civ. A. No. 12-1134-RGA/MPT
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

REPORT AND RECOMMENDATION

I.

INTRODUCTION
On September 14, 2012, plaintiff Roxie L. ldegwu ("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 ("DIS")
under Title II of the Social Security Act. Presently before the court are the parties'
cross-motions for summary judgment. 2 For the reasons set forth below, the court
recommends plaintiff's motion for summary judgment be denied , and 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. C1v. P") , Carolyn W . Colvin replaced the
previous Commissioner, Michael J. Astrue, as defendant in this matter.

On July 16, 2009, plaintiff filed her application for DIS, claiming she was disabled
beginning on October 10, 2006 due to osteoarthritis, diabetes, high blood pressure, and
degenerative disc disease status post-arthroscopic surgery. 2 Plaintiff amended her
onset date prior to the administrative hearing to allege disability since October 26,
2009. 3 Plaintiff's application was denied initially on November 4, 2009, and on
reconsideration on January 8, 2010. 4 On February 9, 2010, plaintiff filed a written
request for a hearing. 5
A hearing before Administrative Law judge ("ALJ") Judith A. Showalter was
conducted on December 16, 2010. 6 Plaintiff, represented by counsel, testified at the
hearing. 7 Adena Leviton, an impartial vocational expert ("VE"), also appeared at the
hearing. 8 On January 28, 2011, the ALJ issued a written decision denying plaintiff's
application for Dl8. 9 The ALJ noted plaintiff's insured status expired on September 30,
2010, and therefore, she was required to establish disability on or before that date in
order to be entitled to a period of disability and Dl8. 10 After review of the evidence, the
ALJ held plaintiff was not disabled under sections 216(1) and 223(d) of the Social
Security Act. 11 Specifically, the ALJ found plaintiff had sever impairments, including
obesity, degenerative joint disease of the bilateral knees, and degenerative disc

2

Docket Item 11 at 136-37 (hereinafter "D. I._.").
/d. at 135
4
/d. at 87-92, 94-99
5
/d. at 100-01
6
/d. at 28-82.
7
/d. at 35-70.
8
/d. at 71-77.
9
/d. at 12-23.
10
/d. at 12.
11
/d. at 16-23.
3

2

disease of the cervical spine , but nonetheless had the residual functional capacity to
perform simple unskilled light work as defined in 20 C.F.R. § 404.1567(b). 12 The ALJ
further found plaintiff could perform said work, except that she can only stand and walk
for 2 hours in an 8 hour workday, sit for 6 hours in an 8 hour workday, with posturals
that are occasional , but no climbing of a rope , ladder or scaffold , and no frequent
handling, fingering and feeling. 13 The ALJ also determined plaintiff was to avoid
working overhead and concentrated exposure to extreme cold or hazards. 14
Plaintiff's subsequent appeal to the Appeals Council was denied , as the Council
concluded there was no basis for reviewing the ALJ 's decision. 15 The ALJ 's decision,
therefore, constitutes the final decision of the Commissioner.16
Having exhausted all administrative remedies , plaintiff now seeks judicial review
of this decision under 42 U.S.C. § 405(g).17 Plaintiff sought and received an extension
of time to file a motion for summary judgment. 18 On March 21 , 2013 , plaintiff moved for
summary judgment. 19 On April 22 , 2013, defendant filed a cross-motion for summary
judgment. 20

B.

Factual Background

Plaintiff was born on August 12, 1957.21 She was over fifty years old throughout
12

/d. at 16-22; see also 20 C.F.R. § 404.1567(b).
D.l. 11 at 16-22.
14 /d.
15
/d. at 1-3
16 /d.
17
D.l. 12; see also 42 U.S.C. § 405(g).
18
D.l. 13; D.l. 14.
19
D.l. 15; see also D.l. 16.
20
D.l. 17; see also D.l. 18.
21
D.l. 11 at 136.
13

3

the period at issue , and is considered "closely approaching advanced age" at all times
relevant to her DIB application. 22 Plaintiff is a high school graduate and went to college
for two years. 23 Plaintiff has prior vocational experience as a residential counselor
assisting people with disabilities, and working as a substance abuse and/or HIV
educator. 24
At the time of the ALJ hearing, plaintiff lived with her husband , her 14-year-old
son , and a boarder who rented a room from her.25 Furthermore , plaintiff was able to
drive,26 feed herself,27 use the microwave,28 prepare sandwiches,29 cook small meals
three times a week,30 shop for food ,31 maintain her personal care, 32 perform some
household cleaning ,33 wash laundry once a week,34 play games,35 shop on the
computer,36 and attend church Y

1.

Medical Evidence

22

/d. at 22; see also 20 C.F.R. § 404.1563(d) ("[i]f you are closely approaching
advanced age (age 50-54), we will consider that your age along with a server
impairment(s) and limited work experience may seriously affect your ability to adjust to
other work. ").
23
D.l. 11 at 23.
24
/d. at 38-43. 156, 162, 217.
25
/d. at 36-37, 64.
26
/d. at 37 (limiting her driving due to pain in her knee, hip, and hands).
27
/d. at 49.
28
/d. at 64.
29 /d.
30
/d. (Plaintiff cooks for approximately two hours, but receives help from her son
and husband.).
31
/d. at 182 (Plaintiff shops with assistance.).
32
/d. at 179.
33
/d. at 181 .
34
/d. at 181 (Plaintiff does laundry with assistance.).
35
/d. at 183.
36
/d. at 182.
37
/d. at 66 (Plaintiff goes to church , but can not sit through the entire service.).

4

Prior to the alleged onset date, plaintiff was involved in a motor vehicle accident
in October 2006.38 As a result, she complained of injury to her knee, shoulder pain, and
neck pain. 39 An MRI of her left knee showed evidence of a tear of the posterior horn
medial meniscus, minimal grade II chondral changes in the medial compartment and
patellofemoral compartment, small joint effusion with mild synovitis, and intact cruciate
and collateralligaments. 40 An MRI of her neck revealed cervical disc disease, but no
nerve root or spinal cord compression , and no stenosis or cord displacement. 41 Prior to
the automobile accident, plaintiff treated with Ganesh Balu , M.D. ("Dr. Balu") and
Obimbola Osunkoya , M.D. ("Dr. Osunkoya"), for complaints of lower back pain and
hand pain. 42
Plaintiff continued to treat with Drs. Balu and Osunkoya with complaints of neck,
back, leg, and shoulder pain. 43 Plaintiff began treatment with Glen D. Rowe, D.O. , P.A.
("Dr. Rowe"), on February 21 , 2007 , for knee and neck paint caused by the motor
vehicle accident. 44 Dr. Rowe diagnosed her neck pain as a strain and recommended
knee surgery after trying physical therapy and injections. 45 On April 4, 2007, Dr.
Osunkoya during his pre-operation examination, found that plaintiff retained normal
gait, power, and tone in all extremities with no loss of sensation. 46 On April 11, 2007,

38
39
40
41

42

43
44
45
46

/d. at 298.
/d.
/d. at 267-68.
/d. 368 .
/d. at 245-61
/d. at 242-44, 284,94.
/d. at 237.
/d. at 235-37.
/d. at 243.

5

plaintiff underwent left knee surgery. 47 Plaintiff improved following surgery, 48 and in
June and July, underwent a series of Supatz injections, which were "moderately
beneficial. "49
Plaintiff continued to treat with Drs. Rowe, Balu, and Dr. Osunkoya for
complaints of neck, knee, and back pain in 2008. 50 On April 25, 2008, Dr. Balu
conducted an EMG study, which showed evidence of left-sided C6 radiculopathy, but
the condition was "mild in nature," with no evidence of cubital tunnel syndrome or carpal
tunnel syndrome. 51 On June 5, 2008. Dr. Balu diagnosed plaintiff with a left shoulder
impingement, and found decreased range of motion, but no focal weakness in her
arms. 5 2 Thereafter, Dr. Balu treated plaintiff with medication 53 and Dr. Rowe
administered injections to her knee. 5 4
On or about October 27, 2008, 55 Dr. Rowe completed a medical source
statement and physical to determine plaintiff's ability to perform work related activities
on a day-to-day basis in a regular work setting. 56 Dr. Rowe indicated plaintiff could
occasionally lift fifty pounds, but could frequently lift ten pounds, and was able to stand
and walk at least two hours in an eight-hour work day. 57

47

/d. at 233.
/d. at 232.
49
/d. at 229-31 .
50
/d. at 272-83, 224-26, 240-41.
51
/d. at 264.
52
/d. at 279.
53
/d. at 272-78.
54
/d. at 224-26.
55
Dr. Rowe's report is not dated; however, he indicated his last contact with
plaintiff was on October 27, 2008. /d. at 299.
56
/d. at 299
48

57

/d.

6

On November 5, 2008, Dr. Osunkoya found plaintiff exhibited normal gait with
normal power and tone in all extremities, and no loss of sensation. 58 As a result, he told
plaintiff to exercise regularly, and at a minimum briskly walk two miles, three to five
times per week. 59
On October 25, 2009, Dr. Irwin Lifrak, M.D. ("Dr. Lifrak") performed a
consultative examination and found plaintiff had a mild limp, was able to get on and off
the examining table without assistance, had full muscle tone in her legs, and full grip
strength, and showed no evidence of muscle atrophy. 60 However, Dr. Lifrak found
plaintiff had a reduced range of motion in her knees, left shoulder, lower spine, and
knees. 61 Nevertheless, Dr. Lifrak concluded plaintiff could stand for a total of three to
four hours, and lift up to ten pounds with her right hand and five pounds with her left. 62
On October 29, 2009, Dr. Joyce Goldsmith, M.D. ("Dr. Goldsmith"), a state
agency consultant, completed a physical residual functional capacity assessment and
found plaintiff could lift ten pounds frequently, and could stand and/or walk for at least
two hours in an eight-hour workday. 63 On January 8, 2010, Anne C. Aldridge, M.D. ("Dr.
Aldridge") summarily affirmed Dr. Goldsmith's report. 64
In October and November 2010, Dr. Balu noted plaintiff had been advised to
pursue therapies that she did not want to try and slowly reduced her medication. 65 On
58
59
60
61

62
63
64
65

/d.
/d.
/d.
/d.
/d.
/d.
/d.
/d.

at 239-41 .
at 241 .
at 301-05

at 309-15.
at 324.
at 319-20.

7

November 16, 2009, Dr. Osunkoya examined plaintiff who complained of static back
pain, tender lower back, mild spasm, limited range of motion, but she denied neck
pain. 66 Dr. Osunkoya advised plaintiff to briskly walk two miles, three to five times per
week and limited her to "no lifting [greater than] 30 lbs."67
In May 2010, plaintiff was evaluated by Dr. John Ashby, M.D. ("Dr. Ashby"), who
found she exhibited a moderately antalgic gait with limited range of motion, but normal
manual muscle testing for neck pain. 68 On July 1, 2010, Dr. Ashby performed an EMG
which showed mild carpal tunnel syndrome, chronic C8 radiculopathy with mild ulnar
neuropathy, and chronic C6 radiculitis with the left being worse than the right. 69 Dr.
Ashby treated plaintiff with medication and referred her to a specialist, Matthew
Handling, M.D., for her complaints of hand pain. 70
On August 11, 2010, Dr. Handling treated plaintiff for her complaints of hand
pain; her musculoskeletal exam was negative except for her complaints of difficulty with
her hands. 71 Dr. Handling found plaintiff had an active range of motion without pain in
both wrists, but decreased wrist strength. 72 As a result, he administered an injection
and instructed her to wear a brace. 73
On November 2, 2010, Dr. Osunkoya evaluated plaintiff for complaints of lumbar

66
67
68

69
70

71

72
73

/d.
/d.
/d.
/d.
/d.
/d.
/d.
/d.

at
at
at
at
at
at

316-1 7.
318.
353-54.
326, 346-47.
342-46.
334-335.

8

pain , left knee stiffness, and numbness in her hands. 74 Plaintiff denied neck pain and
stated she was "doing fine." 75
On November 4, 2010, Dr. Ashby completed a Physical Residual Functional
Capacity questionnaire where he opined that plaintiff could sit, stand, or walk less than
two hours in an eight-hour workday, and could occasionally lift less than ten pounds. 76
On November 30, 2010 , Dr. Jie Zhu , M.D. ("Dr. Zhu") examined plaintiff, and
noted a lumbar x-ray on September 19, 2009 showed trace anterolisthesis and loss of
disc height, and moderate facet arthopath. 77 Dr. Zhu found plaintiff's gait to be normal,
with full range of motion in her lower back, arms, and legs, her muscle strength as
grossly normal , and her sensation to light touch was grossly intact_l8

C.

The Vocational Expert's Testimony At The Administrative Law
Hearing

Adena Leviton , a vocational expert ("VE"), testified at the Administrative Law
Hearing. 79 The ALJ asked the VE whether jobs existed in the national economy for an
individual with the claimant's age , education , work experience , and residual functional
capacity. 80 The VE testified, that given all of these factors , the individual was able to
perform the requirements of representative occupations such as: officer helper- 1,000
jobs in the local economy, 170,000 jobs in the national economy; assembler- 400 jobs

74

75
76
77
78

79
80

/d. at 364.
/d.
/d. at 358-61 .
/d. at 366-70 .
/d.
/d. at 71-81.
/d. at 23 , 71-81.
9

in the local economy, 385,000 jobs in the national economy. 81
D.

The ALJ's Decision

Based on the evidence and testimony, the ALJ determined in her January 28,
2011 opinion, that plaintiff was not disabled and not entitled to 018. 82 The ALJ's
findings are summarized as follows:
1.

The claimant last met the insured statute requirements of the Social
Security Act on September 30, 2010.

2.

The claimant did not engage in substantial gainful activity during the
period from her alleged date of October 26, 2009 through her date last
insured of September 30, 2010 (20 CFR 404.1571 et seq.).

3.

Through the date last insured, the claimant had the following severe
impairments: obesity, degenerative joint disease of the bilateral knees,
degenerative disc disease of the cervical spine (20 CFR 404.152(c)).

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).

5.

[T]hrough the date last insured, the claimant had the residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b) except
that the claimant can stand and walk for 2 hours in an 8 hour workday, sit
for 6 hours in an 8 hour workday, with posturals that are occasional but no
climbing of a rope, ladder or scaffold, and frequent handling, fingering and
feeling. The claimant is to avoid working overhead and no concentrated
exposure to extreme cold or hazards. The claimant is limited to simple,
unskilled work.

6.

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

7.

The claimant was born on August 12, 1957 and was 53 years old, which is
defined as an individual closely approaching advanced age, on the date
last insured (20 CFR 404.1563).

81
82

/d.
/d. at 12-23
10

8.

9.

Transferability of job skills is not material to the determination of disabilitiy
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.

Through the dated last insured, considering the claimant's age, education ,
work experience, and residual functional capacity, there were jobs that
existed in significant numbers in the national economy that the claimant
could have performed (20 CFR 404.1569 and 404.1569(a)).

11.

Ill.

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

The claimant was not under a disability, as defined in the Social Security
Act, at any time from October 26, 2009, the alleged onset date, through
September 30, 3010 , the date last insured (20 CFR 404.1520(g)).

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

benefits is controlled by 42 U.S.C. § 405(g) . The statute provides, "[a]ny individual ,
after any final decision of the Commissioner of Social Security made after a hearing to
which he was a party ... may obtain review of such decision by a civil action. 83 The
Commissioner's decision becomes final when the Appeals Council affirms an ALJ
opinion , denies review of an ALJ decision , or when a claimant fails to pursue available
administrative remedies. 84 In the instant matter, the Commissioner's decision became
final when the Appeals Council affirmed the ALJ 's denial of benefits. 85 Thus, this court
has jurisdiction to review the ALJ 's decision .

IV.

PARTIES' CONTENTIONS
83

42 U.S.C. § 405(g) (2002).
Aversa v. Secretary of Health & Human Services, 672 F. Supp. 775, 777
(D.N.J. 1987); see also 20 C.F.R. § 404.905 (2002).
85
0.1. 11 at 1-3.
84

11

A.

Plaintiff's Contentions

Plaintiff urges an award of benefits, or, in the alternative, for this case to be
remanded for further development and analysis before a different ALJ. Plaintiff proffers
the following reasons : (1) the ALJ limited plaintiff to standing an walking for "2 hours in
an 8 hour work day" and these restrictions are consistent with a limited range of
sedentary work; (2) the ALJ failed to accord appropriate deference to the treating
physician opinion or properly consider the examining and reviewing physicians' opinions
and in doing so, failed to provide a legally adequate basis for rejecting those opinions
concerning plaintiff's ability to lift; (3) the ALJ improperly relied on VE testimony that is
contrary to regulatory definitions and Agency Policy.
Plaintiff initially contends her medical limitations prevent her from performing the
standing , walking, and lifting requirements for light work, and is, therefore, entitled to an
award of benefits under sedentary work. In support, plaintiff relies on the
Commissioner's regulations for light work which requires , "frequent lifting and
carrying ."86 Plaintiff points to the Commissioner's explanation that frequent lifting and
carrying means , "being on one's feet for up to two-thirds of the workday [and] that a
good deal of standing or walking [is] the primary difference between sedentary and
most light jobs ."87 Lastly, plaintiff relies on medical-vocational rule 201 .14 when
contending she must be found disabled even if she is able to perform a full range of

86
87

20 C. F. R. § 404.1567(b ).
SSR 83-10 , 1983 WL 31251 , at *5-6; see a/so SSR 83-14, 1983 WL 31254, at

*4.
12

sedentary work. 88
Secondly, plaintiff contends the ALJ improperly weighed the medical evidence
for her determination that plaintiff could perform light work. Plaintiff points to the four
medical opinions during the relevant time period, including that of her treating physician
Dr. Ashby which she argues support sedentary work. 89 Another report was provided by
the examining physician, Dr. Lifrak, retained by defendant. 90 Lastly, the other two
opinions were provided by the non-examining State Agency physicians. 91
Plaintiff contends these four medical opinions formed the basis for the ALJ's
RFC "that the claimant can stand and walk for 2 hours in an 8 hour work day." 92
Additionally, plaintiff argues these opinions are unanimous in limiting plaintiff to lifting at
the sedentary level. 93 Plaintiff insists the ALJ rejected each one of them to by finding
plaintiff was capable of lifting up to 20 pounds occasionally and 10 pounds frequently
when she adopted the lifting requirements of light work. 94 Plaintiff suggests the ALJ
gave no explanation as to why part of the same doctor's opinion is given "great weight,"
but then findings the ALJ ignored are dismissed with "little weight."

88

See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.14 (qualifying a person of
plaintiffs age, education, and work experience as disabled if unable to perform past
relevant work, there are no transferable skills, and the individual is limited to sedentary
work).
89
D.l. 11 at 342, 358-61.
90
/d. at 301-08.
91
/d. at 359, 305, 310, 324.
92
/d.at16.
93
Dr. Ashby found plaintiff could lift less than 10 pounds occasionally. D. I. 360.
Dr. Lifrak determined plaintiff could lift 10 pounds with her right hand, but only five
pounds with her left hand. /d. at 305. Drs. Goldsmith and Aldridge concluded plaintiff
could lift 10 pounds both occasionally and frequently. /d. at 310, 324.
94
/d. at 16.

13

Plaintiff asserts the ALJ rejected the medical opinions and relied instead upon
her own lay judgment to fashion an RFC which she improperly characterized as "light"
work. Plaintiff maintains such analysis is plain legal error under both the law of this
circuit and the Commissioner's regulations and policy.95 As a result, plaintiff references
the "treating physician doctrine," by quoting, "a court considering a claim for disability
benefits must give greater weight to the findings of a treating physician than to the
finding of a physician who has examined the claimant only once or not at all." 96
Finally, plaintiff contends the ALJ improperly relied on VE testimony. Plaintiff
asserts the application of VE testimony was improper because it is only appropriate
when claimant's RFC falls more in the middle range "in terms of the regulatory criteria
for exertional ranges ."97 Instead , plaintiff argues that, under the ALJ 's finding, she is not
in the mid-range, as she cannot perform the frequent standing, walking , and lifting
requirements of light work. Furthermore , plaintiff asserts that even though the
Dictionary of Occupational Titles ("DOT") lists a job as "light," does not make it "light."
Plaintiff points out the "DOT lists maximum requirements of occupations as generally
performed ."98 As a result, she argues the relevant question is how the job is to be
performed given plaintiff's RFC . Lastly, plaintiff notes the DOT's classifications are at
odds with the regulatory definitions and as a result, "the regulatory definitions, of

95

See Brownawe/1 v. Comm'rof Soc. Sec. , 554 F.3d 352 , 355-57 (3d Cir. 2008)
(rejecting the ALJ 's attempt to discredit the treating and examining source opinions
based on his own interpretation of the treatment record, even though that interpretation
was supported by the opinion of a non-examining source).
96
Mason v. Shalala , 994 F.2d 1058, 1067 (3d Cir. 1993) (internal citations
omitted).
97
See SSR 83-12 , 1983 WL 31253, *2 .
98
See SSR 00-4p, 2000 WL 1898704, *3.

14

exertionallevels are controlling." 99
B.

Defendant's Contentions

Defendant urges no award of benefits is warranted and substantial evidence
supports the ALJ 's decision, for the following reasons: (1) the ALJ's RFC is between
light and sedentary exertion levels for range of work; (2) the ALJ properly obtained VE
testimony rather than rely on the grids; and (3) the ALJ properly weighed the medical
source opinions.
Defendant initially contends the ALJ is not required to mechanically assign an
RFC that fits the criteria of any specific grid rule or exertional category. 100 Instead, ALJs
may assign an RFC that fits some criteria of one category, and the criteria of another
category. 101 When the RFC falls between categories, the Medical-Vocational
Guidelines do not direct a finding of either disability or non-disability, and instead ALJs
should use vocational expert testimony. 102
Defendant points out the regulations provide the term "light" has the same
meaning as in the DOT which is:

99 /d.
100

SSR 83-12, 1983 WL 31253 , at *1. ("In some instances, an individual can do
a little more or less than the exertion specified for a particular range of work.").
101
/d. ("e.g., ... he or she can fully meet the exertional demands of light work
and can also perform part of the greater lifting requirement of medium work"); see a/so,
Haynes v. Barnhart, 416 F.3d 621, 627-28 (7th Cir. 2005) (affirming a hybrid RFC falling
between light and sedentary work, with light lifting abilities, but sedentary
standing/walking abilities).
102
SSR 83-12, 1983 WL 31253, at *1; see also Boone v. Barnhart, 353 F.3d 203,
209-11 (3d Cir. 2004) (finding where an RFC does not "fall neatly into either" sedentary
or light work, SSR 83-12 does not mandate reversal if the ALJ does not make specific
findings regarding the erosion of the occupational base, and the ALJ receives the
assistance of a VE).
15

Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is usually in this category when it
requires a good deal of walking or standing , or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls. To
be considered capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long period of time. 103

Defendant further notes that even though there are parts of the definition plaintiff
could not perform , namely standing for up to "two-thirds of a workday ," 104 and
"standing or walking , off an on , for ... approximately six hours of an eight-hour
workday ," 105 the definition applies to a "full range of light work, "106 which is
precisely why the ALJ used the term "except" in her RFC. 107 In addition,
defendant points out the regulations specifically acknowledge that work mostly
performed in a seated position may be considered light work. 108
In sum , defendant contends the ALJ 's RFC fell between the definitions of
sedentary work and light work, and she properly relied on vocational expert testimony to
determine the range of jobs available to plaintiff. 109
Lastly, defendant argues the ALJ properly weighed the medical evidence.
Defendant maintains ALJs weigh medical opinions by considering factors , such as the

103

20 C.F.R. § 404.1567(b) (emphasis added).

/d.
105 /d.
106 /d.
107
D.l. 11 at 16.
108
20 C.F .R. § 404 .1567(b) ("or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls").
109
/d. at 23.
104

16

examining and treating relationships , the supportability of the opinion , the consistency
of the record with the opinion , the source's specialization , and other elements. 110
Defendant further notes the ALJ is not required to give weight to treating source
opinions to the extent they are not supported by the record. 111
Defendant reiterates plaintiff challenges the ALJ 's assessment of the opinions
regarding her capacity to lift and carry. Defendant argues the medical opinions were
not unanimous regarding plaintiff's ability to lift and carry no more than 10 pounds.
Defendant points to Dr. Rowe's opinion that plaintiff could lift and carry up to 50 pounds
frequently. 112 Defendant emphasizes only one treating physician , Dr. Ashby, offered an
opinion inconsistent with Dr. Rowe's, when opining plaintiff could lift less than 10
pounds occasionally. 113 Defendant contends given the disagreement between the two
treating sources, the ALJ properly considered the record as a whole to determine the
weight accorded , and found plaintiff could lift up to 20 pounds , less than Dr. Rowe's but
greater than Drs. Ashby's and Lifrak's opinions. 114
Defendant points to Dr. Osunkoya's examination on November 2, 2010 , where
plaintiff denied any neck pain and stated that she was "doing fine ." 115 Dr. Osunkoya, on
November 16, 2009, found plaintiff could left no more than 30 pounds and advised her

110

See 20 C.F.R. § 404.1527.
See Brown v. Astrue, 649 F.3d 193, 196-97 (3d Cir. 2011); see also, Johnson
v. Comm'rof Soc. Sec. , 259 F.3d 198, 204 (3d Cir. 2008).
112
D.l.11 at21.
113
/d. at 358-62.
114
/d. at 20-21.
115
/d. at 364.
111

17

to walk briskly two miles, three to five times per week. 116 Defendant emphasizes Dr.
Zhu's examination on November 30, 2010 confirmed plaintiff had a normal gait, and
symmetrical deep tendon reflexes, and grossly normal manual muscle testing, range of
motion, and muscle tone of her upper extremities. 117 Lastly, defendant reiterates
plaintiff testified she maintained a generally normal range of foundational activity.
Defendant argues, considering the whole record, substantial evidence supports the
ALJ's assessment of the medical opinions regarding plaintiff's lifting ability, and finding
she could lift up to 20 pounds.

V.

STANDARD OF REVIEW
A.

Summary Judgment

In determining the appropriateness of summary judgment, the court must "review
the record as a whole, 'draw[ing] all reasonable inferences in favor of the nonmoving
party[,]' but [refraining from] weighing the evidence or making credibility
determinations." 118 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. 119
This standard does not change merely because there are cross-motions for

°

summary judgment. 12 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
116

/d. at 316. Dr. Osunkoya's record confirms he felt plaintiff could walk that

distance.
117

/d. at 366-370.
Reeves v. Sanderson Plumbling, Prods., Inc., 530 U.S. 133, 150 (2000).
119
See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R.
CIV. P. 56(c)).
120
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
118

18

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. 121
"The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party."122

B.

ALJ's Findings

Section 405(g) sets forth the standard of review of the ALJ's decision by the
district court. The court may reverse the Commissioner's final determination only if the
ALJ did not apply the proper legal standards, or the record did not provide substantial
evidence to support the ALJ's decision. The Commissioner's factual decisions are
upheld if supported by substantial evidence. 123 Substantial evidence means less than a
preponderance, but more than a mere scintilla of evidence. 124 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. "125
In determining whether substantial evidence supports the Commissioner's
findings , the court may not undertake a de novo review of the Commissioner's decision
and may not re-weigh the evidence of record. 126 The court's review is limited to the
evidence that was actually presented to the ALJ. 127 The Third Circuit has explained that
121

Rains v. Cascade Indus. , Inc., 402 F.2d 241, 245 (3d Cir. 1968).
Krupa v. New Castle County, 732 F. Supp. 497, 505 (D. Del. 1990).
123
See 42 U.S.C. §§ 405(g), 1383(c)(3); see a/so Monsour Medical Center v.
Heckfem, 806 F.2d 1185, 1190 (3d Cir. 1986).
124
See Rutherford v. Barnhart, 399 F.3d 546, 522 (3d Cir. 2005).
125
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
126
See Monsour, 806 F.2d at 1190.
127
See Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001 ).
122

19

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. "128 Thus, the inquiry is not whether the court would have
made the same determination, but rather whether the Commissioner's conclusion was
reasonable. 129 Even if the court would have decided the case differently, it must defer
to the ALJ , and affirm the Commissioner's decision so long as that decision is
supported by substantial evidence. 130
When review of an administrative determination is sought, the agency's decision
cannot be affirmed on a ground other than that actually relied upon by the agency in
making its decision. 131 In Securities & Exchange Commission v. Chenery Corp., 132 the
Supreme Court found that a "reviewing court, in dealing with a determination or
judgment which an administrative agency alone is authorized to make, must judge the
propriety of such action solely by the grounds invoked by the agency. If those grounds
are inadequate or improper, the court is powerless to affirm the administrative action by
substituting what it considers to be a more adequate or proper basis." 133 The Third
Circuit has recognized the applicability of this finding in the Social Security disability

128
129
130
131
132
133

Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
See Brown v. Brown , 845 F.2d 1211, 1213 (3d Cir. 1988).
See Monsour, 806 F.2d at 1190-91.
See Hansford v. As true , 805 F. Supp. 2d 140, 144-45 (W .D. Pa. 2011 ).
Sec. & Exch. Comm'n v. Chenery Corp., 322 U.S. 194, 196 (1947).

/d.
20

context. 134 Thus, this court's review is limited to the four corners of the ALJ 's
decision. 135

VI.

DISCUSSION

Title 11 of the Social Security Act, 42 U.S.C. § 423(a)(I)(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 In order to qualify for DIB , the
claimant must establish she was disabled prior to the date she was last insured. 137 A
"disability" is defined as the inability to do any substantial gainful activity by reason of
any medically determinable physical or mental impairment, which can be expected to
result in death , or which has lasted or can be expected to last for a continuous period of
not less than 12 months.138 A claimant is disabled "only if [her] physical or mental
impairment or impairments are of such severity that [she] is not only unable to do [her]
previous work but cannot, considering [her] age , education , and work experience,
engage in any other kind of substantial gainful work which exists in the national
economy. "139
In determining whether a person is disabled , the Commissioner is required to
perform a five-step sequential analysis. 140 If a finding of disability or non-disability can
be made at any point in the sequential analysis, the Commissioner will not review the

134
135
136
137
138
139
140

Fargnoli v. Massanari, 247 F.3d 34, 44, n.7 (3d Cir. 2001 ).
Cefalu v. Barnhart, 387 F. Supp. 2d 486 , 491 (W.O. Pa. 2005).
Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
See 20 C.F.R. § 404.131.
See 42 U.S.C. §§ 423(d)(I)(A), 1382(c)(a)(3).
42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas , 540 U.S. 20 , 21-22 (2003).
See 20 C.F.R. § 404.1520(a)(4).
21

claim further. 141 At step one, the Commissioner must determine whether the claimant is
engaged in any substantial gainful activity. If the claimant is engaged in substantial
gainful activity, a finding of non-disabled is required. 142 If the claimant is not engaged in
substantial gainful activity, step two requires the Commissioner to determine whether
the claimant is suffering from severe impairment or a combination of impairments that is
severe. If the claimant is not suffering from a severe impairment or a combination of
impairments that is severe, a finding of non-disabled is required. 143
If the claimant's impairments are severe, the Commissioner, at step three,
compares the claimant's impairments to a list of impairments (the "listing") that are
presumed severe enough to preclude any gainful work. 144 When a claimant's
impairment or its equivalent matches an impairment in the listing, the claimant is
presumed disabled. 145 If a claimant's impairment, either singularly or in combination,
fails to meet or medically equal any listing, the analysis continues to steps four and
five. 146 At step four, the Commissioner determines whether the claimant retains the
RFC to perform his past relevant work. 147 A claimant's RFC is "that which an individual
is still able to do despite the limitations caused by [her] impariment(s)." 148 "The claimant
bears the burden of demonstrating an inability to return to [her] past relevant work." 149
141

20 C.F.R. § 404.1520(a)(4).
See 20 C.F.R. § 404.1520(a)(4)(i).
143
See 20 C.F.R. § 404.1520(a)(4)(ii).
144
See 20 C.F.R. § 404.1520(a)(4)(iii); see also Plummer v. Apfel, 186 F.3d 422,
427-28 (3d Cir. 1999).
145
See 20 C.F.R. § 404.1520(a)(4)(iii).
146
See 20 C.F.R. § 404.1520(e).
147
See 20 C.F.R. § 404.1520(a)(4)(iv); see also Plummer, 186 F.3d at 428.
148
Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir. 2001 ).
149
Plummer, 186 F.3d at 428.
142

22

If the claimant is unable to return to his past relevant work, step five requires the
Commissioner to determine whether the claimant's impairments preclude her from
adjusting to any other available work. 150 At this last step, the burden is on the
Commissioner to show the claimant is capable of performing other available work
before denying disability benefits. 151 In other words, the Commissioner must prove
"there are other jobs existing in significant numbers in the national economy which the
claimant can perform , consistent with [her] medical impairments, age, education, past
work experience, and [RFC]." 152 In making this determination, the ALJ must analyze the
cumulative effect of all of the claimant's impairments.153 At this step, the ALJ often
seeks the assistance of a VE.154
After considering the record and the applicable law, the court finds the ALJ 's
weighing of the medical evidence is supported by substantial evidence, plaintiff has
waived her right to request appointment of a different ALJ , and plaintiff's RFC falls
between the light and sedentary work definitions which enabled the ALJ to rely on VE
testimony.

A.

ALJ's Weighing of the Medical Opinions

Plaintiff argues the ALJ simply accepted those portions of the opinions which
matched her RFC and summarily rejected those that did not and failed to provide an

150

See 20 C.F.R. § 404.1520(g) (mandating finding of non-disability when
claimant can adjust to other work); see also Plummer, 186 F.3d at 428.
151
See id.
152
153
154

/d.
See id.
See id.

23

adequate explanation. 155 Specifically, plaintiff argues the ALJ erred in weighing medical
evidence concerning plaintiff's ability to lift.
An examining doctor's written report setting forth medical findings in the doctor's
area of competence "may constitute substantial evidence." 156 In determining the proper
weight for such medical opinions, an ALJ is require to consider all evidence and resolve
any material conflicts. 157 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 ."158 A treating physician's opinion is "entitled to substantial and at times even
controlling weight." 159 It is accorded "controlling weight" if it is "well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in [the claimant's] record." 160
It is error, however, to apply controlling weight to an opinion merely because it
comes from a treating source if it is not well-established by the medical evidence, or if it
is inconsistent with other substantial evidence, medical or lay, in the record. 161 Thus,
the ALJ may reject a treating physician's opinion if it is based on "contradictory medical
evidence. "162 In those instances, "even where there is contradictory medical evidence ,

155

/d. at 12-13.
Richardson v. Perales, 402 U.S. 389 , 402 (1971 ).
157
/d. at 399.
158
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Rocco v.
Heckler, 826 F.2d 348, 350 (3d Cir. 1987)).
159
Fargnoli v. Halter, 247 F.3d 34, 42 (3d Cir. 2001 ).
160
/d. (quoting 20 C.F.R. § 404.1527(d)(2)).
161
SSR 96-2p, 1996 WL 37 4188.
162
Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000) (internal citations omitted).
156

24

... 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." 163 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." 164
It is improper for an ALJ to disregard a treating physician's medical opinion
based solely on his own impression of the record and evaluate of a claimant's
credibility. 165 Additionally, some explanation must be given "for rejection of probative
evidence which would suggest a contrary disposition."166 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. 167
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) examining relationship; (2) treatment
relationship; (3) supportability with the relevant medical evidence; (4) consistency with
the record as a whole; (5) specialization; and (6) any other factors which tend to support
or contradict the opinion. 168

1.

Dr. Ashby's Opinion

163

Gonzalez v. Astrue, 537 F. Supp. 2d 644, 660 (D. Del. 2008).
SSR 96-2p, 1996 WL 374188, at *4.
165
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.").
166
Brewster v. Heckler, 786 F.2d 581, 585 (3d Cir. 1986).
167
See Stewartv. Sec'yofH.E.W., 714 F.2d 287,290 (3d Cir.1983).
168
20 C.F.R. § 404.1527(d)(3)-(5).
164

25

Given the requirements set forth supra,169 the ALJ analyzed the medical
opinions, emphasizing the weight accredited to Dr. Ashby's opinion and explaining the
reasoning for her determination.170
Dr. Ashby's opinion was plaintiff could handle low stressed jobs, could sit for less
than 2 hours in an 8 hour workday, stand and walk for less than 2 hours in an 8 hour
workday, and could occasionally lift and carry less than 10 pounds.171 The ALJ
assigned great weight to the finding plaintiff is capable of performing low stress jobs
which is consistent with the objective medical evidence and record as a whole. 172 She
however, assigned little weight to other portions of Dr. Ashby's opinion , because they
were inconsistent with his treatment notes, plaintiff's admission to Dr. Osunkoya of the
absence of neck pain, and the doctor's failure to cite any objective testing in support of
his conclusions.
In reaching her determination, the ALJ first considered the inconsistencies
concerning Dr. Ashby's opinion and the relevant medical evidence , mainly, his own
records evidencing improved functionality in plaintiff's knees with almost full range of
motion. 173 The ALJ further considered the contradictions between Drs. Ashby and
Osunkoya, who treated plaintiff from 2006 until 2010 , and found no evidence of any
neck pain. 174 The ALJ also noted Dr. Ashby's opinion was inconsistent with the overall

169
170
171
172
173

174

See supra Part VI.B.
D. I. 11 at 20.
D. I. 11 at 20 .
/d.
D.l. 11 at 22 .

/d.
26

record as a whole in that plaintiff admitted to recovering from her left knee injuries. 175
Lastly, the ALJ pointed out Dr. Ashby neither observed plaintiff's condition over a
prolonged period nor provided laboratory diagnostic evidence to support his opinion. 176
Based on these considerations and explanations, the ALJ 's conclusion is adequately
supported.
The weight attributed by the ALJ to Dr. Ashby's opinion about lifting is further
supported by the record , namely, Dr. Rowe 's opined plaintiff could life up to 50 pounds
occasionally and 10 pounds frequently , while Drs. Goldsmith and Aldridge's concluded
plaintiff could lift and carry 10 pounds occasionally and frequently. 177 These opinions
are inconsistent with Dr, Ashby's finding that plaintiff could occasionally lift and carry
less than 10 pounds. 178
As a result, based on the treatment relationship , a lack of support from relevant
medical evidence, and inconsistencies with the medical record as a whole, the ALJ's
affording little weight to Dr. Ashby's opinion was appropriate and supported by
substantial evidence.

2.

Dr. Lifrak's Opinion

The ALJ also reviewed the medical evidence to determine the weight accredited
to Dr. Lifrak's opinion and explained her reasoning. 179
Dr. Lifrak's found plaintiff could walk up to one block before having to stop due to

175
176
177
178
179

/d.
/d.
/d. at 21.
/d.
/d. at 20-21 .

27

excessive pain, climb stairs on a limited basis, sit for 5-6 hours and stand for 3-4 hours
in an 8 hour workday, lift 10 pounds with her right hand and 5 pounds with her left on a
regular basis. 180 The ALJ assigned little weight to Dr. Lifrak's opinion as it was
inconsistent with the objective medical evidence and record as a whole, 181 in particular,
his consultative exam notes reflecting plaintiff can ambulate effectively without need of
an assistive device. 182 The ALJ also found Dr. Lifrak's opinion inconsistent with the
treatment notes of Dr. Ashby that demonstrated nearly full range of knee motion with no
neurological weakness in the lower extremities. 183 Dr. Ashby's finding suggests plaintiff
could walk a distance larger than a block without experiencing pain. 184 Dr. Ashby's
treatment notes further indicate plaintiff was capable of lifting higher weight in absence
of any weakness in her lower extremities. 185
In light of the limited treatment relationship, 186 the relevant medical evidence, and
inconsistencies with the medical record as a whole, the ALJ 's affording little weight to
Dr. Lifrak's opinion is supported by substantial evidence.

3.

Dr. Rowe's Opinion

The ALJ analyzed the medical record to explain the weight applied to Dr. Rowe's
opinion .187 Dr. Rowe found plaintiff could lift and carry 50 pounds occasionally, 10
pounds frequently, stand and walk for 2 hours in an 8 hour workday, sit for 6 hours in
180

/d. at 305.
/d. at 20.
182
/d. at 22.
183
/d. at 20-21.
184
/d. at 20.
185 /d.
186
The only time Dr. Lifrak met with plaintiff was on October 25, 2009.
187
D.I. 11 at 21.
181

28

an 8 hour workday, but never climb, balance, stoop, kneel, crouch or crawl, and to
avoid heights and temperature extremes. 188 He further opined plaintiff had no
restriction in handling, fingering, reaching or feeling. 189 The ALJ assigned great weight
to Dr. Rowe's opinion that plaintiff can stand and walk for 2 hours in an 8 hour workday,
sit for 6 hours in an 8 hour workday, and avoid temperature extremes as it was
consistent with the objective medical evidence and the record as a whole. 190
The ALJ assigned little weight to Dr. Rowe 's opinion regarding plaintiff's weight
lifting capabilities, and the absence of any limitations in handling, fingering, reaching or
feeling , and determined plaintiff's exertional capacity was more limited. 191 The ALJ
further assigned little weight to Dr. Rowe's limitations on climbing, balancing, stooping,
kneeling , crouching , or crawling, as inconsistent with plaintiff's admission to Dr. Lifrak
that she could climb stairs and Dr. Ashby's treatment notes reflecting essentially full
range of knee motion. 192 Dr. Rowe's opinion is also inconsistent with Drs. Goldsmith
and Aldridge conclusions that plaintiff could climb a ramp and stairs, balance, stoop,
kneel , crouch , and crawl. 193 Lastly, the ALJ noted the absence of testing to support Dr.
Rowe 's opinion. 194 Therefore the ALJ 's determination regarding Dr. Rowe's findings is
based on substantial evidence.

B.

188
189
190
191
192
193
194

Assignment to a Different ALJ

/d.
/d.
/d.
/d.
/d.
/d. at 21.
/d.

29

Plaintiff contends if remanded , the court should specifically require and
order the Commissioner to assign this matter to a different ALJ. Defendant argues
plaintiff raised no claim of bias either at the administrative level or before this court, and
any attempt to impugn the integrity of the ALJ has no bearing on this court's review
under 42 U.S.C. 405(g).
The Third Circuit in Ginsburg v. Richardson, found "[l]f the appellant felt that she
was being deprived of a fair hearing, the proper procedure would have been for her to
request the examiner to withdraw from the case. Thus, appellant's failure to request
withdrawal of the examiner during the hearing or in her request for review before the
Appeals Council constitutes a waiver of her right to object to the conduct of the
examiner."195
Based on plaintiff's failure to request withdrawal of the ALJ during the hearing or
before the Appeals Council, she waived her right to object at this stage of the
proceedings.
C.

The ALJ's RFC Finding

At the fifth step, the Commissioner bears the burden of proving that, considering
the claimant's residual functional capacity, age education , and past work experience,
she can perform work that exists in significant numbers in the regional economy.196 In
this step , "the ALJ often seeks advisory testimony from a vocational expert . ... [T]he
ALJ will generally consult the Dictionary of Occupational Titles ('DOT'), a publication of

195

Ginsburg v. Richardson, 436 F.2d 1146, 1151-52 (3d Cir. 1971) (citing 20
C.F.R. § 404.922).
196
42 U.S.C. § 423(d)(2)(A); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987); Sykes v. Apfel, 228 F.3d 295 , 263 (3d Cir. 2000).
30

the United States Department of Labor that contains descriptions of the requirements
for thousands of jobs that exist in the national economy, in order to determine whether
any jobs exist that a claimant can perform." 197 Additionally, "if the claimant's residual
functional capacity falls between two Medical-Vocational Guidelines which direct
opposite conclusions, i.e., 'Not disabled' at the higher exertionallevel and 'Disabled' at
the lower exertionallevel, then vocational assistance is advisable." 198 When the
claimant cannot perform substantially all of the exertional demands of work at a given
level of exertion and/or has non-exertional limitations, the Medical-Vocational rules are
used as a framework for decision-making. 199
The statutory definition of "light work" is in pertinent part,
"lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds .... 'Frequent' means occurring from
one-third to two-thirds of the time. Since frequent lifting or carrying
requires being on one's feet up to two-thirds of a workday, the full range of
light work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday." 200
Plaintiff notes, "the DOT identifies a job as light does not make it light, because
'the DOT lists maximum requirements of occupations as generally performed."' 201
Additionally, plaintiff argues, although the DOT identifies the jobs at issue as light, they
197

Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002); see a/so Boone v.
Barnhart, 353 F.3d 203, 205 (3d Cir. 2003).
198
Murphy v. Barnhart, Civ. A. No. 01-651-KAJ, 2004 WL 202891, at *7 (D. Del.
Jan. 22, 2004); see a/so SSR 83-12 ("In situations where the rules would direct different
conclusions, and the individual's exertional limitations are somewhere 'in the middle' in
terms of the regulatory criteria for exertional ranges of work, more difficult judgments
are involved as to the sufficiency of the remaining occupational base to support a
conclusion as to disability. Accordingly, VS assistance is advisable .... ").
199
200
201

/d.
SSR 83-10 .
D.l. 16 at 7 (citing SSR 00-4p).
31

are at best, sedentary jobs, under the Commissioner's definitions of light versus
sedentary work. 202
The ALJ relied on VE testimony to determine plaintiff could perform a limited
number of light jobs, such as, office helper and assembler. 203 Reliance on VE
testimony was appropriate since plaintiff's RFC placed her between the categories of
light and sedentary work. Therefore, the ALJ 's determination is supported by
substantial evidence and plaintiff's motion for summary judgment is denied.
Pursuant to the Medical-Vocational Guidelines, a job is in the light category
"when it requires a good deal of walking or standing ," which is "the primary difference
between sedentary and most light jobs, " except for sitting jobs that require pushing or
pulling of arm or leg controls. 204 This exception is not applicable since the jobs
identified by the VE did not fall within that description.
The ALJ found plaintiff could lift 20 pounds occasionally but not 10 pounds
frequently. 205 The ALJ also found plaintiff could only "stand and walk for 2 hours in an 8
hour workday."206 The full range of light work requires the individual to be able to walk
and stand for one-third to two-thirds of the time.207 The ALJ found plaintiff could only
walk and stand for one-fourth of a usual workday. 208
The ALJ 's conclusion plaintiff can lift 20 pounds occasionally, falls within the

202

/d.

203

0.1. 11 at 23.
SSR 83-10.
0.1. 11 at 22.
0.1. 11 at 22.
SSR 83-10 ("[F]requent means occurring from one-third to two thirds of the

204
205
206
207

time. ").
208

0 .1. 11 at 22.

32

definition of light work.209 The ALJ 's other conclusions , however suggest plaintiff's
abilities fall within the definition of sedentary work, namely, her ability to walk and stand
and her inability to frequently lift 10 pounds. 210 As a result, plaintiff's RFC fell between
the sedentary and light work definitions, which warranted guidance from a VE. 211
In sum, the ALJ properly applied the Medical-Vocational Guidelines when finding
plaintiff could perform a limited range of light jobs.212 When regulatory definitions are
applied , plaintiff's RFC fell between light and sedentary work. As a result, the ALJ
properly relied on the VE who determined plaintiff could perform a limited number of
light jobs and supported a finding of not disabled . The ALJ 's conclusions, thus, are
supported by substantial evidence.
VII.

ORDER AND RECOMMENDED DISPOSITION
For the reasons contained herein, it is recommended that:
(1) Defendant's cross-motion for summary judgment (D.I. 15) be GRANTED.
(2) Plaintiff's motion for summary judgement (D.I. 17) be DENIED.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1 )(8),

FED. R. Crv. 72(b)(1 ), and D. Del. LR 72.1 . The parties may serve and file specific
written objections within ten (1 0) days after being served with a copy of this Report and
Recommendation.
The parties are directed to the Court's Standing Order in Non-Pro Se matters for
209

211

See SSR 83-10.
/d.
/d.

212

/d.

210

33

Objections Filed under FED. R. CIV. 72, dated October 9, 2013, a copy of which is
available on the Court's website, www.ded .uscourts.gov.
Date: November 18, 2013

/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

34