Matthias v. Colvin

Filing 29

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/13/15. (mas, )

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PAPER DOCUMENT

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JO ANN MATTHIAS,
Plaintiff,

v.

Civ. No. 12-1203-LPS

CAROLYNW. COLVIN,
Acting Commissioner of Social Security,
Defendant.

JoAnn Matthias, Georgetown, Delaware, Pro Se Plaintiff.

Charles M. Oberly, III, Esquire, United States Attorney and Heather Benderson, Esquire, Special
Assistant United States Attorney, of the Office of the United States Attorney, Wilmington,
Delaware.
Of Counsel: Nora Koch, Esquire, Acting Regional Chief Counsel, Region III and Evelyn Rose
Marie Protano, Esquire, Assistant Regional Counsel, of the Social Security Administration,
Philadelphia, Pennsylvania.

MEMORANDUM OPINION

March 13, 2015
Wilmington, Delaware

I.

INTRODUCTION
PlaintiffJoAnn Matthias ("Matthias" or "Plaintiff') appeals from the decision of Defendant

Carolyn W. Colvin, the Acting Commissioner of Social Security ("Commissioner" or "Defendant"),
denying her application for disability insurance benefits ("DIB") under Title II of the Social Security
Act, 42 U.s.c. §§ 401-434. The Court has jurisdiction pursuant to 42 U.S.c. § 405(g).1 Presently
pending before the Court are cross-motions for summary judgment filed by Matthias and the
Commissioner. (O.!. 26, 27) For the reasons set forth below, the Court will deny Plaintiffs motion
and will grant Defendant's motion.

II.

BACKGROUND
A.

Procedural History

Matthias filed her application for DIB on July 7, 2010, alleging disability beginning
November 6, 2008. The application was denied in October 2010, and upon reconsideration on
March 14,2011. Matthias filed a request for hearing on March 22, 2011. OnJuly 11, 2011, a
hearing was held before an Administrative Law Judge ("AL]") who issued a decision finding that
Matthias was not disabled under the Act. Matthias filed a request for review by the Appeals Council,
which was denied on August 15,2012 and the ALl's decision became the final decision of the
Commissioner. (0.1.21 ("Tr.") at 1-5)
On September 25, 2012, Matthias filed a Complaint seeking judicial review of the ALl's July

1 Under § 405(g), "[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 a review of such decision by a civil
action commenced within sixty days after the mailing to him of notice of such decision. . .. Such
action shall be brought in the district court of the United States for the judicial district in which the
plaintiff resides ...." 42 U.S.c. § 405(g).

1

21,2011 decision. (D.L 2) Matthias moved for summary judgment on October 1, 2014 (D.L 26),
and the Commissioner filed a cross-motion for summary judgment on October 30, 2014 (D.I. 27).

B.

Medical and Mental Health Evidence

Plaintiff was admitted to Atlantic General Hospital in Berlin, Maryland, on September 15,
2008 with bilateral leg weakness and complaints that she could not walk. (Tr. at 202) She was
hospitalized for four days. Upon admission, Plaintiff could not lift her legs off the examination
table, and she was unable to ambulate or sustain her weight. (Id.) Plaintiff had pain with movement,
and stated that the pain was almost non-existent at rest. (!d.) As of September 19,2008, Plaintiff
complained of significant leg weakness as well as pain and weakness in her arms which seemed to
gradually progress and then suddenly worsen. (!d. at 198) Impression was a "suspicion of GuillainBatre or other muscular motor neuron problems." (Id. at 205)
While hospitalized, Plaintiff underwent a number of studies, including a CT scan, MRIs, and
an MRA. (Id. at 198, 208-10, 211,212,214,220) The brain CT scan and the MRI and MRA of the
brain were normal. (Id. at 198, 211, 214-15, 220) The MRI of the thoracic revealed no thoracic disc
herniation or significant central canal or foraminal narrowing; the MRI of the lumbar spine revealed
a mild central canal narrowing at the L4-L5 level caused by diffuse disc bulge and facet joint
hypertropic change, with mild disc bulges seen elsewhere; and the MRI of the cervical spine revealed
a disc bulge at the C5-C6level. (Id. at 208-10,212,220) Other tests were ordered, but at discharge
the results were pending.::'. (Id. at 198-99)

The tests included blood work for heavy metals, serum Lyme antibody, SPEP, UPEP, ANCA,
ANA, acetylcholine receptor, campylobacter antibody and oligo clonal bands. (Id. at 198-99) Dr.
Peric-Stepcic reviewed the results of the testing, noting that all were "within normal range." (Id. at
239)
2

2

,J

While hospitalized, Plaintiff improved significantly. Her leg pain resolved and leg weakness
significantly improved. (Id. at 199) Upon discharge, she could ambulate on her own and was steady.

(Id.) Plaintiffs discharge diagnoses included acute peripheral neuropathy3 which improved, and
"possibly Guillain-Barre but other workup still pending," vitamin B12 deficiency, hunbar disc bulges
and a cervical disc bulge, history of idiopathic thrombocytopenic purpura,4 hypomagnesemia, history
of anemia but now stable CBC, and history of gastric by-pass. (Id. at 200).
Joseph Karnish, D.D. ("Dr. Kru:nish") has been Plaintiffs primary care physician for more
than 15 years. (Id. at 303) Plaintiff saw Dr. Karnish on September 29,2008 for "ascending paralysis,
possibly Guillain-Barre syndrome." (M. at 245) He noted the extensive hospital work-up, and that
Plaintiff indicated she continued to note diffuse weakness. (Id. at 256) Plaintiffs strength was 4/5,
and she was able to arise independently from the exam room chair. (Id.) The etiology for her
myalgia and weakness was unclear. (Id.)
Plaintiff was seen by neurologist Dr. Gordana Peric-Stepcic ("Dr. Peric-Stepcic") on two
separate occasions, September 30, 2008 and October 14, 2008. 5 On September 30, 2008, Dr. Peric­

A condition that develops as a result of damage to the peripheral nervous system - the vast
communications network that transmits information between the central nervous system (the brain
and spinal cord) and every other part of the body. (Neuropathy means nerve disease or damage.)
Symptoms can range from numbness or tingling, to pricking sensations (paresthesia), or muscle
weakness. In acute neuropathies, symptoms appear suddenly, progress rapidly, and resolve slowly as
damaged nerves heal. See http://ninds.nih.gov/disorders1periheralneuropathy1detail_
peripheralneuropathy.htm#271663208 (Mar. 5,2015).
3

4 A bleeding disorder in which the immune system destroys platelets, which are necessary for
normal blood clotting. Persons with the disease have too few platelets in the blood. See
http://www.nlm.nih.gov/medlineplus/ency/article000535.htm (Mar. 4,2015).

The dates of service of one visit are not clear. Dr. Peric-Stepcic either saw Plaintiff on September
30,2008 or January 3,2009. Dr. Peric-Stepcic's report, dated January 3, 2009, provides a date of
service of September 30, 2008 in the caption of the report, but refers to a January 3, 2009
consultation and the report was electronically signed on January 3, 2009. However, the report refers
3
5

Stepcic noted that Plaintiff continued to have numbness in both feet with leg weakness. (!d. at 236)
She walked slowly without support on broader base and was unable to tolerate prolonged standing
or walking. (Id. at 236, 238) Dr. Peric-Stepcic noted 4/5 proximal leg muscle strength with
decreased toe movements, and 4+/5 feet dorsiflexion. (ld. at 238) Dr. Peric-Stepcic noted that
Plaintiffs systems were improving, and that they "could be due to Guillain-Barre syndrome which
improved spontaneously," although other neuropathies were possible. (ld. at 239) Dr. Peric-Stepcic
found that Plaintiffs muscle strength and hypoesthesia improved on a daily basis during her hospital
stay. (Id.) Plaintiff was to continue doing home exercises and to begin physical therapy if she did
not improve. (!d.) Dr. Peric-Stepcic noted that Plaintiff was unable to work due to her symptoms.

(ld.)
Dr. Peric-Stepcic reported on October 7, 2008 that that the etiology of Plaintiffs peripheral
neuropathy was unclear, but that she had been "improving a lot" since her initial presentation at the
hospital. (ld. at 243) Plaintiff had started physical therapy the prior week. (ld.) Dr. Peric-Stepcic
noted that Plaintiff regained all of her reflexes except at the ankle regions and that she was stronger
with an improved sensory examination. (ld.)
In an October 14,2008 letter, Dr. Kamish stated that he "evaluated]o Ann yesterday for her
work capacity based upon her recent diagnosis of Guillain-Barre syndrome. She appears to be
recovering adequately at this time." (!d. at 231) Dr. Karnish noted that Plaintiff could begin parttime work (a maximum of 8 hour shifts with a maximum of thirty-six hours per week) effective

to Plaintiffs recent hospital stay at Adantic General Hospital. The AL] determined that Plaintiff
was seen by Dr. Peric-Stepcic on September 30, 2008 for follow-up after her discharge from the
hospital. Dr. Peric-Stepcic also saw Plaintiff on October 8, 2008. Dr. Peric-Stepcic provided his
findings to Dr. Kamish on both occasions.
4

October 17,2008. (!d.) On October 16, 2008, Dr. Karnish noted that Plaintiff had "acute
peripherally neuropathy ... possibly Guillain~Barre syndrome." (Id. at 230) Dr. Karnish expected
Plaintiff to return to unrestricted work on November 3, 2008 if all went welL (Id. at 231) On
October 21, 2008, Dr. Karnish noted that Plaintiff continued to have difficulty with rote
memorization. (Id. at 229)
Plaintiff presented to Dr. Karnish on November 5, 2008 to discuss her fear of recurrent
descending paralysis symptoms. (Id. at 255) She described recurrent pain and numbness in her feet
having occurred on November 2, with eventual weakness and numbness of her thighs, and a
stumbling gait. (Id.) Plaintiff reported that, since November 2, there had been no further
progression of her symptoms. (Id.) Upon examination, Dr. Karnish found that Plaintiffs knee and
hip flexors were 4 to 4+ /5 upon strength testing. (Id.) He prescribed Lexapro for depression/
anxiety. (Id.) Plaintiff saw Dr. Karnish on January 15,2009 to address right hip pain. (Id. at 254)
The pain was treated with oxycodone. (Id. at 254, 255)
Plaintiff presented to Dr. Karnish on April 9, 2009 with severe leg pain, which Dr. Karnish
stated could be a residual effect of Guillain~Barre syndrome. (Id. at 251) He "[a)dvised [patient]
today I have limited experience w/Guillain~Barre syndrome and cannot specifically state which
[symptoms] are related to this disease process." (Id.) Dr. Kamish noted Plaintiffs chronic back and
leg pain were interfering with her qualify of life and that the pain was uncontrolled by MSIR (i.e.,
morphine). (Id.) Dr. Kamish discussed various types of medication therapy. He suspected
"depression may also be in play." (Id.)
When Plaintiff saw Dr. Kamish on May 12, 2009, she reported that her knees gave out and
that she had fallen for a fourth time. (Id. at 252) That morning, her son had to drag her to their
vehicle but, by the time of her office visit, Plaintiff was able to ambulate with more independence.

5

(Id) As her paresthesia began to recede, Plaintiff noted improving strength, but she did not return
to baseline. (Id.) Dr. Karnish noted, "there appears to be some type of neurologic process but I am
not able to define it." (!d.) On May 18, 2009, Plaintiff complained to Dr. Karnish of worsening
pains in her knees and more stiffness. (Id. at 250) Plaintiff advised Dr. Karnish that she had helped
her son move during the past weekend and this required carrying heavy objects and increased
ambulatory time. (Id.) During a July 31, 2009 appointment with Dr. Karnish, Plaintiff complained
of worsening resdess legs and an inability to afford her medication. (Id. at 249) She complained of
chronic persistent pain, and Dr. Karnish renewed a prescription for morphine. (!d.)
On August 25,2009, Plaintiff advised Dr. Karnish of a recent argument with her daughter
that resulted in an exchange of blows. (Id at 248) She denied worsened paresthesia and weakness
of her legs following a blow to her head. (Id.) Plaintiff relayed that the altercation aggravated her
depression and, as a result, Dr. Karnish increased her dose of Lexapro. (Id.) When Plaintiff was
seen on October 13, 2009 for pain management, she complained that the pain seemed to emanate
from her hip, although she also had diffuse myalgia. (Id. at 247)
On September 7, 2010, Plaintiff saw Dr. Karnish for a new type oflower back and left leg
radicular pain. (!d. at 308) Plaintiff had difficulty bearing weight on her leg, and "has been using a
borrowed quad cane for assistance w / ambulation." (Id.) Plaintiff denied an increase in paresthesia
from the baseline. (!d.) Her strength was limited by pain, but was 4/5 in the ankle plantar flexors,
knee extensors, and hip extensors. (Id.) Dr. Karnish increased the prescribed morphine and Lyrica
prescription with a plan to taper the medication after the pain was controlled. (Id)
Plaintiff was examined by State agency consultant Dr. Balepur Venkataramana ("Dr.
Venkataramana") on September 24,2010. (Id. at 278) Plaintiff provided a history of weakness in
both legs and difficulty walking, severe foot pain, without support she tends to fall, changed
6

dexterity in her fingers, and an inability to complete household chores. (Id.) Plaintiff was unsteady
and used a quad cane. (Id. at 279) Because she was unable to get on the examination table, she was
examined while sitting in a chair. (Id. at 280) Upon examination, Dr. Venkataramana noted no
muscle atrophy or muscle spasm, but that Plaintiff had limited neck and hip movement mainly due
to weakness. (Id.)
Medical consultant Anne Aldridge ("Aldridge") completed a physical residual functional
capacity assessment of Plaintiff on October 4, 2010. (Id. at 285) Aldridge determined that Plaintiff
could: occasionally lift or carry twenty pounds; frequently lift or carry ten pounds; stand or walk
about two hours in an eight hour day; and sit for six hours in an eight hour day. (Id. at 286) The
assessment noted that the magnitude of Plaintiff's alleged symptoms were disproportionate to the
objective evidence, citing the following examples: (1) Plaintiff's quad strength was decreased only to
4/5 and her other muscle groups were 5/5 without evidence of atrophy; and (2) the suspicion of
"Lou Gehrig's disease" was inconsistent with the medical records which did not include such a
diagnosis. (Id. at 289) Aldridge concluded that, because Plaintiff was a career nurse and would
know the difference between the conditions, she was intentionally misrepresenting her diagnosis.

(Id.)
On October 5, 2010, Pedro Ferreira, Ph.D. ("Dr. Ferreira") completed a psychiatric review
of Plaintiff. (Id. at 291) Dr. Ferreira noted that Plaintiff had a prescription for Lexapro and
KJonopin from her primary care physician to manage depression and help with anxiety and that she
reported responding favorably to these medications. (Id. at 301) Dr. Ferreira found that Plaintiff
had mild restrictions of daily living, maintaining social functioning, and maintaining concentration,
persistence, or pace, with no episodes of decompensation. (Id. at 299) He concluded that Plaintiff's

7

mental health condition was non-severe. (Id at 301) On March 14,2011, Carlene Tucker-Okine,
Ph.D. ("Dr. Tucker-Okine") affirmed Dr. Ferreira's October 5, 2010 psychiatric review. (Id. at 320)
When Plaintiff presented to Dr. Kamish on October 7, 2010, she stated that, due to pain, it
sometimes takes her three hours to get out of bed and dressed. (Id at 307) Upon examination, Dr.
Kamish noted that Plaintiffs strength was limited secondary to pain, with 4/5 strength in the ankle
plantar flexors, knee extensors, and hip extensors. (!d.) Plaintiff relayed that, due to pain in her
neck, she felt she had to be "extra vigilant while driving." (Id) Pain management included taking
three to four 30 mg. morphine tablets around the clock, as well as Lexapro and Klonopin. (Id.)
Plaintiff indicated that the cost of medication was becoming prohibitive. (Id)
Dr. Kamish's December 4, 2010 letter/opinion lists Plaintiffs conditions as Legg-CalvePerthes disease6 of the left hip, episodes of immune thrombocytopenic purpura, complications from
gastric bypass surgery, symptoms consistent with Guillain-Barre syndrome, and a cryptic, severe, and
transiently acute fluid retention/edema process that remains undiagnosed. (Id at 303) Dr. Kamish
noted that Plaintiff had acute peripheral neuropathy during her fall 2008 hospitalization, that she was
able to ambulate short distances upon her release from the hospital, but had relapsed weakness in
the lower extremities resulting in transient falls. (Id.) He noted that Plaintiff required significant
doses of narcotic analgesics to manage her lower extremity discomforts. (Id) Dr. Kamish stated
that "it is true that Jo Ann can move about and use her arms, hands and legs. However, the
durations for which she can use her extremities varies according to the degree of discomfort present
that day. When her pain is severe, she does have weakness particularly in her legs, and paresthesia

Inflammation of the upper end of the femur. The American Heritage Stedman's Medical Dictionary 583
(2d ed. 2004).

6

8

tend to be present more than they are absent." (Id.) Dr. Karnish also referred to Plaintiff's muscle
spasms and her treatment for depression. (Id. at 303-04) Dr. Kamish opined that Plaintiff would be
unable to perform at least an eight hour work day, commensurate with any job as a medical
professional nurse. (!d.)
Plaintiff presented to Dr. Kanllsh on March 22, 2011 with new left arm and leg discomforts.

(Id. at 323) Plaintiff relayed that she had fallen and was stumbling due to leg weakness and that she
was using a cane for stability. (Id.) Upon examination, her knee flexion was 4/5 on the left and
4+ /5 on the right, with hip flexion 4/5 on the left and 4+ /5 on the right. (Id.) Dr. Kanllsh
discontinued Klonopin and prescribed Xanax. (Id.) On May 9, 2011, Plaintiff complained of
worsening depression with an inability to fall asleep. (Id. at 322) She also complained of worsening
pain in her extremities, as well as muscle spasms. (!d.) Dr. Kanllsh treated Plaintiff's mental health
condition by continuing Lexapro, renewing Xanax, and adding Abilify. (!d.) In addition, the
morphine prescription was renewed. (Id.) Dr. Kanllsh assessed Plaintiff as having chronic
persistent somatic pain due to Guillain-Barn:: syndrome, fibromyalgia, and recurrent anasarca 7 of
unclear etiology. (Id.)
On July 7, 2011, Dr. Karnish completed a physical residual functional capacity questionnaire
for Plaintiff. Diagnoses included Guillain-Barre syndrome, amyotrophic lateral sclerosis,
thrombocytopenic purpura, Legg-Calve-Perthes disease, nonspecific peripheral neuropathy, major
depression, fibromyalgia, fluid retention, iron deficiency anemia, morbid obesity post gastric bypass,
syncope, hypotension, and chronic persistent insomnia. (Id. at 327) Dr. Kanllsh referred to

7

An accumulation of serious fluid in various tissues and cavities of the body. The American Heritage

Stedman sMedical Dictionary at 41.

9

.

Plaintiffs complaints of constant and severe pain in the lumbar areas and bilateral upper and lower
extremities that intensified with activity and her immobility of greater than 20 to 30 minutes. (Id.)
Dr. Kamish indicated that Plaintiff suffered from depression and anxiety and was incapable of even
low stress jobs. (!d. at 328)
Dr. Kamish determined that Plaintiff could sit for 20 to 30 minutes at a time, stand for 15 to
20 minutes at a time, and sit or stand/walk for less than two hours in an eight hour day. (Id. at 329)
He indicated that Plaintiff needs to take unscheduled breaks and requires a job that permits shifting
of positions at will. (Id.) Dr. Kamish noted that Plaintiff currently uses a cane or walker. (Id.) She
could lift and carry less than ten pounds rarely and could never lift and carry ten pounds or more.

(Id.) Plaintiff could not twist, stoop, crouch/squat, or climb ladders, and could rarely climb statts.
(!d. at 330) Dr. Karrush noted that Plaintiff had good days and bad days and would likely be absent
from work more than four days per month. (Id.)
Plaintiffs list of medications as ofJuly 8, 2011, included: MSIR for pain, Alprazolam for
muscle spasms, Savella for fibromyalgia, Lyrica for depression and pain, Abilify for depression,
Bumetanide and Spironolactone for dependent edema, Gabapentin for pain and muscle spasms,
Albuterol and Advair for wheezing, Veramyst for nasal congestion, and magnesium and potassium
supplements. (Id. at 162)

C.

The Administrative Hearing

An administrative hearing took place on July 11, 2011, before the ALJ, with testimony from
Plaintiff, who was represented by counsel, and vocational expert Adina Platt Leviton (''VE''). (Id. at
35)

1.

Plaintiffs Testimony

Plaintiff is 5'7" tall and weighs 200 hundred pounds, with a body mass index of

10

approximately 24. (!d. at 38, 44) She was 48 % years old at the time of the hearing. (Id.) Plaintiff
was employed as a nurse until she became unable to work following a neurological event in
September 2008, which, according to Plaintiff, was initially diagnosed as Lou Gehrig's disease, but
later diagnosed as Guillain-Barre syndrome. (Id. at 39-43) She also has Legg-Calve-Perthes disease
of the left hip, fibromyalgia, and a blood disorder. (!d. at 43-45)
Plaintiff testified that, due to lack of insurance, the only doctor she can afford to see is her
primary care physician, Dr. Karnish. (!d. at 51) In addition, she cannot afford to see a neurologist,
although at the time of the hearing she had an August referral for an ALS clinic in Maryland. (Id.)
Plaintiff is not treated by a psychologist or psychiatrist, but receives antidepressants from Dr.
Karnish. (Id. at 53)
Plaintiff testified that she has terrible difficulty with memory and problems retaining
information. (!d. at 47, 58) She attempted to work as a receptionist and emergency medical
technician, but only lasted three or four weeks because she was unable to handle the activity of the
office. (Id. at 40) She needs help with dressing and bathing, and cannot clean her home. (Id. at 46)
She acquired a walker about six weeks prior to the hearing because she is not steady on her feet. (Id.
at 48) She watches television and is able to prepare a light meal if the ingredients are placed next to
her. (Id. at 47) Plaintiff's family visits briefly or she visits them, although not as often as before. (Id.
at 48-49) Plaintiff also testified that her depression causes her to go weeks without leaving the
house. (Id. at 50) Plaintiff has a driver's license, but drives "very rarely." (Id. at 46)
Plaintiff has difficulty sleeping, does so at most three to four hours per night, and can go
several nights without sleep. (Id. at 57) The lack of sleep is caused by pain and muscle spasms from
the lower legs to the mid-back. (Id.) Plaintiff testified that her pain level is eight, with ten being the
worst. (Id. at 58) She can sit ten minutes before switching positions and can barely walk from the
11

handicapped parking spot to the scooter at Wal-Mart. (Id at 59) Plaintiff testified that there has
been a gradual worsening of not being able to do anything as far as having the physical strength to
do it. (Id at 54)
Plaintiff takes a number of medications for her conditions and testified that they help "to
some extent." (Id. at 50) The medications can cause "a complete drain of energy" and make
Plaintiff feel like she is "in another zone" or "goofy." (!d.)

2.

Vocational Expert's Testimony

The VE testified that there were no transferrable skills for Plaintiff limited to light or
sedentary jobs. (!d. at 61) The ALJ posed hypothetical questions concerning a hypothetical person
who was 48 years old with a high school and college education; had been a registered nurse; could
read, write, and use numbers; was capable of understanding, remembering, and carrying out detailed
instructions; with restrictions of standing and walking in excess of two but less than six hours; sitting
for six hours in a given workday or with a sit/stand option; no balancing, stooping, or stairs;
occasional crouching, crawling, squatting, and kneeling; and avoid concentrated exposure to heat
and cold and hazards. (Id at 61-62) The VE opined that the hypothetical individual could not
perform the prior work or a full light job, but that there were other jobs in the local and national
economy at a limited light semi-skilled level, light unskilled level, light semi-skilled, sedentary semi­
skilled level, and sedentary unskilled level, including work such as a hostess/receptionist,
companion, personal attendant, office helper, pre-assembler for printed circuit boards, assembler II
for small products, hospital admitting clerk, appointment clerk, receptionist, addresser, order clerk
for food and beverage, and taper for printed circuit boards. (!d. at 62-65)
When the ALJ added to the hypothetical the assignment of full credibility of every claim of
pain from any source, the VE opined that with these additional limitations there would be no work
12

on a full-rime sustained basis for such a hypothetical individual, due to the loss of productivity. (!d.
at 66-67)

D.

The ALl's Findings

The ALJ concluded that Plaintiffs medical conditions were not disabling. In reaching this
conclusion, the ALJ first considered the nature and severity of Plaintiffs physical and mental
impairments. (!d. at 22-24) The ALJ determined that Plaintiffs disorder of the nervous system,
possible Guillain-Barre syndrome, fibromyalgia, and obesity were severe impairments, but that her
mental impairment was mild. (!d. at 22, 24) The ALJ found that although Plaintiffs impairments
were subjectively severe, there was insufficient evidence of record to meet the requirements of a
listing in 20 CPR Part 404, Subpart P, Appendix 1. The ALJ determined that Plaintiff could not
perform her past relevant work. (Id. at 28) The ALJ determined that Plaintiff retained the residual
functional capacity to perform light work,8 except that she is capable of lifting twenty pounds
occasionally and ten pounds frequently; she can stand and walk in excess of two hours but less than
six; she can sit for six hours in any given day; she should not be required to balance on the job; she
can only occasionally crouch, crawl, squat, and kneel, but should avoid stairs; her hazards should be
restricted; and she should avoid concentrated exposure to heat or cold. (Id. at 24) The ALJ
concluded that Plaintiff was capable of performing work that exists in significant numbers in the

"Light work involves lifting no more than 20 pounds at a rime with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when it involves sitting most of the
rime with some pushing or 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
some 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 periods of rime."
20 c.P.R. § 404.1567(b).

8

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national economy and, therefore, detennined that Plaintiff was not disabled from November 6, 2008
through the date of the July 21, 2011 decision. (Id. at 30)

III.

LEGAL STANDARDS
A.

Motion for Summary Judgment

"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue
of material fact. See Matsushita Elec. Indus. Co. v. Zenith Rmiio Corp., 475 U.S. 574, 586 n.l0 (1986). A
party asserting that a fact cannot be -- or, alternatively, is -- genuinely disputed must be supported
either by citing to "particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for
the purposes of the motions only), admissions, interrogatory answers, or other materials," or by
"showing that the materials cited do not establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P.
56 (c) (1) (A) & (B). If the moving party has carried its burden, the nonmovant must then "come
forward with specific facts showing that there is a genuine issue for ttial." Matsushita, 475 U.S. at
587 (internal quotation marks omitted). The Court will "draw all reasonable inferences in favor of
the nonmoving party, and it may not make credibility detenninations or weigh the evidence." Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
To defeat a motion for summary judgment, the non-moving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at

586-87; see also Podohnik v. U.S. Postal Seroice, 409 F.3d 584, 594 (3d Cit. 2005) (stating party opposing
summary judgment "must present more than just bare assertions, conclusory allegations or
14

suspicions to show the existence of a genuine issue") (internal quotation marks omitted). However,
the "mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment;" a factual dispute is genuine only where "the
evidence is such that a reasonable jury could return a verdict for the nonmovmg party." Anderson v.

Liberry Lobf?y, Inc., 477 U.S. 242, 247-48 (1986). "If the evidence is merely colorable, or is not
significandy probative, summary judgment may be granted." !d. at 249-50 (internal citations
omitted); see also Celotex Cop. v. Catrett, 477 U.S. 317, 322 (1986) (stating entry of summary judgment
is mandated "against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden of proof at trial").

B.

Review of the ALl's Findings

The Court must uphold the Commissioner's factual decisions if they are supported by
"substantial evidence." See 42 U.S.c. § 405(g); Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d
Cir. 1986). "Substantial evidence" means less than a preponderance of the evidence but more than a
mere scintilla of evidence. See Rutherford fl. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). As the United
States Supreme Court has noted, substantial evidence "does not mean a large or significant amount
of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Pierce tJ. UndefWood, 487 U.S. 552, 565 (1988).
In detennining 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. See Monsour, 806 F.2d at 1190. The Court's review is limited to the evidence
that was actually presented to the ALJ. See Matthews

fl.

Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001).

However, evidence that was not submitted to the ALJ can be considered by the Appeals Council or
the District Court as a basis for remanding the matter to the Commissioner for further proceedings,
15

pursuant to the sixth sentence of 42 U.S.c. § 405(g). See Matthews, 239 F.3d at 592. "Credibility
determinations are the province of the ALJ and only should be disturbed on review if not supported
by substantial evidence." Gonzalez v. Astme, 537 F. Supp. 2d 644, 657 (D. Del. 2008) (internal
quotation marks omitted).
The Third Circuit has explained that: "a single piece of evidence will not satisfy the
substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence-­
particularly certain types of evidence (e.g., that offered by treating physicians)--or if it really
constitutes not evidence but mere conclusion." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
Thus, the inquiry is not whether the Court would have made the same determination but, rather,
whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d 1211, 1213 (3d
Cir. 1988). Even if the reviewing Court would have decided the case differently, it must give
deference to the ALJ and affirm the Commissioner's decision if it is supported by substantial
evidence. See Monsour, 806 F.2d at 1190-91.

IV.

DISCUSSION
A.

Disability Detennination Process

Title II of the Social Security Act, 42 U.S.c. § 423(a)(1)(D), "provides for the payment of
insurance benefits to persons who have contributed to the program and who suffer from a physical
or mental disability." Bowen v. Yuckert, 482 U.S. 137, 140 (1987). For the purposes ofDIB, 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. See 42 U.S.c.

16

§ 423(d)(1)(A). A claimant is disabled "only if his physical or mentalimpainnent or impainnents are

of such severity that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work whicb exists in
the national economy." 42 U.S.C. § 423(d)(2)(A); see also Barnhart v. Thomas, 540 U.S. 20, 21-22
(2003). In determining whether a person is disabled, the Commissioner is required to perform a
five-step sequential analysis. See 20 C.P.R. § 404.1520; Plummer v. Apfel, 186 P.3d 422, 427-28 (3d
Cit. 1999). If a finding of disability or nondisability can be made at any point in the sequential
process, the Commissioner will not review the clalm further. See 20 C.P.R. § 404.1520(a)(4).
At step one, the Commissioner must determine whether the claimant is engaged in any
substantial gainful activity. See 20 C.P.R. § 404.1520(a)(4)(i) (mandating finding of nondisability
when clalmant is engaged in substantial gainful activity). If the clalmant is not engaged in substantial
gainful activity, step two requires the Commissioner to determine whether the clalmant is suffering
from a severe impainnent or a combination of impainnents that is severe. See 20 C.P.R.

§ 404.1520(a)(4)(ii) (mandating finding of nondisability when clalmant's impainnents are not severe).
If the clalmant's impainnents are severe, the Commissioner, at step three, compares the clalmant's
impainnents to a list of impairments that are presumed severe enough to preclude any gainful work.

See 20 C.P.R. § 404.1520(a)(4)(iii); Plummer, 186 F.3d at 428. When a clalmant's impainnent or its
equivalent matches an impainnent in the listing, the claimant is presumed disabled. See 20 C.P.R.
§ 404.1520(a)(4) (iii). If a clalmant's impainnent, either singly or in combination, fails to meet or

medically equal any listing, the analysis continues to steps four and five. See 20 C.P.R. § 404.1520(e).
At step four, the Commissioner determines whether the clalmant retains the residual
functional capacity ("RFC") to perform her past relevant work. See 20 C.P.R § 404.1520(a)(4)(iv)
(stating clalmant is not disabled if able to return to past relevant work); Plummer, 186 P.3d at 428. A
17

claimant's RFC is "that which an individual is still able to do despite the limitations caused by his or
her impairment(s)." Fatl,noli v. Halter, 247 F.3d 34, 40 (3d Cit. 2001). "The claimant bears the
burden of demonstrating an inability to return to her past relevant work." Plummer, 186 F.3d at 428.
If the claimant is unable to return to her past relevant work, step five requires the
Commissioner to determine whether the claimant's impairments preclude her from adjusting to any
other available work. See 20 C.F.R. § 404.1520(g) (mandating finding of non-disability when
claimant can adjust to other work); Plummer, 186 F.3d at 428. At this last step, the burden is on the
Commissioner to show that the claimant is capable of performing other available work before
denying disability benefits. See Plummer, 186 F.3d at 428. In other words, the Commissioner must
prove that "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]." !d. In making this determination, the ALJ must analyze the cumulative
effect of all of the claimant's impairments. See id. At this step, the ALJ often seeks the assistance of
aVE. Seeid.

B.

The Issues Raised on Appeal

Matthias presents four issues in her appeal and moves for summary judgment on the
grounds that the ALJ erred: (1) in relying upon the independent medical evaluation performed by
Dr. Venkataramana rather than reports and records of Dr. Karnish, her primary care physician, or a
neurologist who saw her on two occasions;9 (2) in finding her testimony and information
inconsistent and unreliable; (3) in relying upon the opinions of the vocational expert given that few

Plaintiff names the neurologist as Dr. Moore. However, the record reflects that Plaintiff was seen
twice by Dr. Peric-Stepcic. (Ir. at 235-43) Neurologist Dr. James Moore authored a September 27,
2011 letter (id. at 332) following the ALl's decision, as discussed in Section IV.B.s. infra.

9

18

positions exist in the local economy and she is unable to perfoon jobs at the sedentary semi-skilled
or sedentary unskilled levels; and (4) in the assessment of her residual functional capacity.
The Commissioner moves for summary judgment on the grounds that: (1) substantial
evidence supports the weight given to, and the assessment of, the opinions of Plaintiffs treating
physician, Dr. Karnish; (2) the VE's discussion of jobs available in significant numbers in the
national economy was appropriate; (3) Plaintiffs post-hearing evidence - which consists of records
dated after the ALl's decision

may not be considered as substantial evidence in the review of the

ALl's decision and do not warrant a sentence six remand pursuant to 42 U.S.c. § 405(g); and
(4) Plaintiffs severity and credibility arguments should be rejected.
The Court considers each of these issues in tum.

1.

Medical Opinions

Plaintiff argues that the AL] gave insufficient deference to the opinions of treating physician
Dr. I<.:.arni.sh and a neurologist who saw her on two occasions. The Commissioner responds that the
ALJ properly afforded little weight to the opinions of Dr. Karnish in light of the other evidence of
record, that the record lacks objective medical testing and evidence to substantiate Plaintiffs alleged
symptoms and complaints of pain, that his opinions are often in conflict with other portions of the
record, and that the records of Dr. Karnish, who is a doctor of osteopathic medicine, reveal his
limited knowledge of Plaintiffs specific neurological disorder. (fr. at 27,28,230,245,251)
An AL] is free to choose one medical opinion over another where the AL] considers all of
the evidence and gives some reason for discounting the evidence he rejects. See Diaz v. Commissioner

ofSoc. Sec., 577 F.3d 500,505-06 (3d Cir. 2009); Plummer, 186 F.3d at 429 ("An AL] ... may afford a
treating physician's opinion more or less weight depending upon the extent to which supporting
explanations are provided."). Opinions of a treating physician are entitled to controlling weight only
19

·

.,.

when they are well-supported and not inconsistent with other substantial evidence in the record. See

Hall v. Commissioner of Soc. Sec., 218 F. App'x 212,215 (3d Cir. Feb. 22,2007) (affirming ALl's
decision to give little weight to treating physician's reports because of "internal inconsistencies in
various reports and treatment notes ... as well as other contradictory medical evidence"); Fargnoli v.

Massanan, 247 F.3d 34, 43 (3d Cir. 2001).

In the opinion, the ALJ detailed her reasons for affording less weight to the opinions of Dr.
Karnish, citing the medical evidence of record. 10 The ALJ noted that there was no definitive
diagnosis of Guillain-Barre syndrome, although the record does reflect that Plaintiff was diagnosed
with acute peripheral neuropathy. In addition, the ALJ noted that Dr. Karnish's treatment records
are based upon Plaintiff's subjective complaints of pain and weakness without substantiation by any
form of objective medical testing to confirm Plaintiff's symptoms or the diagnosis of a neurological
disorder. Dr. Kamish opined that Plaintiff was limited in the use of her extremities; however, his
opinion was based upon Plaintiff's subjective complaints and was not substantiated by medical
testing. (fr. at 303) In addition, Dr. Karnish's opinion, with regard to Plaintiff's ability to stand, sit,
walk, and lift, did not appear to consider strength testing of Plaintiff between 4/5 and 4+ /5, or that
Plaintiff had been able to help her son move, which involved standing and lifting, or that Plaintiff
had been involved in a physical altercation "rith her daughter. (Id. at 248, 250, 255, 259,307,323)
The .ALJ further noted that Dr. Karnish is a family practitioner with no apparent specialty in
neurology or orthopedic medicine and, as he admitted in his notes, he has limited experience with
Guillain-Barre syndrome and could not specifically state which symptoms are related to the disease

Plaintiff seems to argue that the ALJ did not consider the records of her neurologist. The ALl's
decision specifically references and considers the records of Dr. Peric-Stepcic, while making no
assignment of weight. (fr. at 25, 27)
10

20

process. (Id. at 239) Finally, State agency physician Dr. Venkataramana noted no muscle atrophy or
muscle spasm but limited neck and hip movement mainly due to weakness, while State agency
medical consultant Aldridge concluded that Plaintiff retained the physical capacity to occasionally lift
or carry twenty pounds; frequently lift or carry ten pounds; stand or walk about two hours in an
eight hour day; and sit for six hours in an eight hour day; occasionally lift or carry twenty pounds;
frequently lift or carry ten pounds; stand or walk about two hours in an eight hour day; and sit for
six hours in an eight hour day.
After a careful review of the evidence of record and considering Plaintiff's and Defendant's
positions, the Court finds that the ALJ did not err in the assignment of weight to the opinions of
Dr. Kamish.

2.

Credibility of Plaintiff and Severity of Conditions

The ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting
effects of her symptoms were not credible to the extent that they were inconsistent with the residual
functional capacity assessment. Matthias argues that the ALJ did not give sufficient weight to her
testimony and that the inconsistencies as interpreted by the ALJ are due to the severity of Plaintiff's
depression. The Commissioner responds that, based upon the record, the ALJ correctly found that
Plaintiff's depression was non-severe and did not support a finding that Plaintiff's physical
conditions were severe, other than those identified as severe by the ALJ. (See Tr. at 22)
With regard to Plaintiff's credibility, an ALJ must give great weight to a claimant's testimony
"when this testimony is supported by competent medical evidence," and an ALJ may "reject such
claims if he does not find them credible." Schaudeck

P.

CommissionertifSoc. Sec., 181 F.3d 429,433 (3d

Cit. 1999). The ALJ "has the right, as the fact finder, to reject partially, or even entirely, such

21

..

subjective complaints if they are not fully credible." Baer;ga v. Richardson, 500 P.2d 309,312 (3d Cir.
1974).
Under 20 C.P.R. § 404.1529(c)(3), the kinds of evidence that the ALJ must consider, in
addition to the objective medical evidence, when assessing the credibility of an individual's
statements include: the individual's daily activity; location, duration, frequency, and intensity of the
individual's symptoms; factors precipitating and aggravating the symptoms; the type, dosage,
effectiveness, and side effects of medication taken to alleviate the symptoms; treatment, other than
medication, received for relief of the symptoms; any non-treatment measures the individual uses to
relieve pain or symptoms; and other factors concerning the individual's functional limitations and
restrictions due to pain or other symptoms. See 20 C.P.R. § 404.1529(c)(3). In addition, the ALJ
should account for the claimant's statements, appearance, and demeanor; medical signs and
laboratory findings; and physicians' opinions regarding the credibility and severity of plaintiff's
subjective complaints. Social Security Ruling 96-7p, 1996 WL 374186 (S.S.A. July 2, 1996). The
ALJ's "determination or decision must contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight the adjudicator gave to the individual's
statements and the reasons for that weight." Social Security Ruling 96-7p, 1996 WL 374186, at *3;
see a/so Schaudeck, 181 P.3d at 433.
The ALJ discussed in detail her reasons for finding Plaintiffs testimony regarding the
intensity, persistence, and limiting effects of her impairments "not credible," as her reports of pain
and weakness are not consistent with the medical record as a whole. The ALJ noted that Plaintiffs
impairments could reasonably cause some symptomatology. However, the ALJ considered the
numerous inconsistencies between Plaintiffs testimony and the evidence of record, her reported
22

(

,

daily activities, the medical findings of the treating physicians and consultative examiner, as well as
the opinion of the medical consultant, to find that Plaintiff's subjective complaints about her
limitations not fully persuasive.
As the ALJ correcdy notes, there is no evidence of a definitive diagnosis of Guillain-Barn!
syndrome, no evidence that testing occurred other than during Plaintiff's single hospitalization, no
evidence of objective testing, the consultative physician found no muscle atrophy or muscle spasm,
and while Plaintiff uses an assistive device, the device was not prescribed by her physician. Finally,
Plaintiff did not follow-up with a neurologist even though she testified that the pain and weakness is
worserung.
With regard to the ALl's finding that Plaintiff's depression does not cause more than
minimal limitation, the ALJ properly relied upon the record. The record reflects that Plaintiff's only

treatment for depression was from Dr. Karnish, who prescribed anti-depressants. Plaintiff did not
receive treatment from a psychologist or a psychiatrist. Finally, the ALl's findings are consistent
with the psychiatric review technique of Dr. Ferreira, affirmed by Dr. Tucker-Okine.
For the above reasons, the Court finds that ALJ did not err with regard to the severity of
Plaintiff's conditions or in finding Plaintiff's statements concerning the intensity, persistence, and
limits effects of the symptoms are not credible to the extent they are inconsistent with the RFC.

3.

VE's Opinion

The VE testified that there were jobs in the local and national economy that Plaintiff could
perform. Plaintiff argues that many of the jobs cited by the VE exist nationally but few, if any, are
available locally. The Commissioner argues that the VE's testimony with respect to jobs available in
the national economy was appropriate.

23

t

' ,

...

The regulations permit the use of "job information available from various governmental and
other publications," including for example the Dictionary of Occupational Titles, published by the
Department of Labor. See 20 C.P.R. § 404.1566(d); Social Security Ruling OOAp, 2000 WL 1898704
(S.S.A. Dec. 4,2000). Contrary to Plaintiff's contention, "[i]t does not matter whether (1) work
exists in the immediate area in which you live; (2) a specific job vacancy exists for you; or (3) you
would be hired if you applied for work." 20 c.P.R. § 404.1566(a); see also Wcifford v. Commissionerrif

Soc. Sec., 2010 WL 5421303, at *5 (S.D. Ohio Aug. 19,2010) ("There is no requirement that there are
potential jobs available in the immediate area where plaintiff lives, as long as there are jobs available
nationally and are not all concentrated in one region.") (citing Harmon v. Apfel, 168 P.3d 289,292
(6th Cir. 1999)); Dickerson v. Colvin, 2014 WL 562981, at *10 (D.N.J. Peb. 11,2014). Thus, the Court
finds no merit to this argument.

4.

Residual Functional Capacity

The Court concludes that there is substantial evidence to support the ALJ's assessment of
Plaintiff's RFC. The record demonstrates that Plaintiff does not have the ability to perform all or
substantially all of the requirements of the full range of light work. Therefore, the ALJ
accommodated Plaintiff's additional limitations (e.g., a sit-stand option (Ir. at 63-65)) and, with the
assistance of the VE, found that even with the additional limitations Plaintiff remained qualified to
perform several types of jobs present in the economy (id. at 29). It has been recognized that H[i]n
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 ... VS [vocational specialist] assistance is advisable." Social Security Ruling 83-12, 1983 WL
31253, at *3 (1983); see also Santiago v. Barnhart, 367

Supp. 2d 728, 733 (ED. Pa. 2005) ("There is

nothing oxymoronic in finding that a plaintiff can perform a limited range of light work."). Thus,
24

• I

,..

the ALJ had a sufficient basis to find that Plaintiff could perform a limited range of light work,
which also includes sedentary work.
There is substantial evidence to support the ALl's classification of Plaintiff as being limited
to light work with the additional sitting/ standing restriction, which includes the findings of the
consulting physicians. In addition, and contrary to Plaintiffs assertion, the ALJ weighed the
evidence about her need for a cane. She addressed the lack of objective evidence from treating
physicians showing that Matthias medically required a cane, distinguishing such evidence from the
multiple observations in the record that Matthias used a cane. There is substantial evidence to
support the ALl's finding that Plaintiff did not have a medical necessity for a cane. Hence, the
ALl's decision not to incorporate the limitation of a cane into Plaintiffs RFC determination was not
unreasonable. Finally, with regard to Plaintiffs depression, the ALJ reviewed the record and
observed Matthias' lack of formal mental health treatment, with her only therapy being regular
prescription medication provided by her primary care physician. Thus, again, the Court finds
substantial evidence supports the ALl's assessment of Plaintiffs RFC.

5.

Post· Hearing Evidence

Plaintiff submitted additional evidence to the Appeals Council, following the ALl's July 21,
2011 decision. The Commissioner contends that this evidence may not be considered by the Court
in the instant appeal. The records include a September 27, 2011 letter from neurologist Dr. James
Morgan, a May 11, 2012 letter from Dr. Kamish, and records for Peninsula Orthopaedic Associates
from November 2011 to October 2012. (Ir. at 335-87)
When a claimant submits evidence after the ALl's decision, that evidence cannot be used to
challenge the ALl's decision on the basis of substantial evidence. See Matthews, 239 F.3d at 594.
Pursuant to 42 U.S.c. § 405(g), sentence six, the Court may, however, order a remand based upon
25

t

f

,..

evidence submitted after the ALl's decision, but only if the evidence satisfies three prongs: (1) the
evidence is new; (2) the evidence is material; and (3) there was good cause why it was not previously
presented to the ALJ. See Matthews, 239 F.3d at 593.
Plaintiff does not meet these requirements. All of the evidence post-dates the ALl's July 21,
2011 and relates to a period after the ALl's decision. In addition, some of the records submitted
relate to a hip replacement and knee problems occurring between November 2011 and October
2012. "[A)n implicit materiality requirement is that the new evidence relate to the time period for
which benefits were denied, and that it not concern evidence of a later-acquired disability or of the
subsequent deterioration of the previously non-disabling condition." SZ!'bak v. Secretary ojHeaith and

Human Servs., 745 F.2d 831, 833 (3d Cir. 1984); see also Nieves v. Commissioner ojSoc. Sec., 198 F. App'x
256,260 n.3 (3d Cir. Oct. 4,2006) ("Our determination [that the ALl's decision in 2001 was based
on substantial evidence) is in no way swayed by the fact that in October of 2003 an ALJ determined
that the petitioner was disabled. As per 42 C.S.C § 405(g), [the court's] review is limited to the
evidence in the record at the time of the 2001 decision of the ALJ and [it is] therefore not required,
nor able, to consider this subsequent ALJ ruling when rendering [its] decision.").
The records at issue post-date the ALl's decision and/or relate to later acquired issues and,
therefore, are not considered. The Court finds no basis to remand pursuant to the sixth sentence of
42 C.S.C § 405(g).11

Plaintiff has available the option of filing a new application, should she believe the new evidence
supports an award ofDIB benefits. See 20 CF.R. § 416.330(b).

11

26

V.

CONCLUSION
For the foregoing reasons, the Court will deny Plaintiffs motion for summary judgment and

will grant Defendant's motion for summary judgment.

An appropriate Order will be entered.

27