Willis v. Astrue

Filing 16

REPORT AND RECOMMENDATIONS re 10 MOTION for Summary Judgment filed by Lewis D. Willis, 12 Cross MOTION for Summary Judgment filed by Michael J. Astrue. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 3/31/2014. Signed by Judge Mary Pat Thynge on 3/14/14. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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LEWIS D. WILLIS,
Plaintiff
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

C.A. No.: 12-1232-RGA/MPT

REPORT AND RECOMMENDATION
I.

Introduction
Plaintiff, Lewis D. Willis (“plaintiff”) appeals the decision of Michael J. Astrue, the

Commissioner of Social Security (“defendant”), denying his claim for Social Security
Disability Insurance Benefit (“DIB”) under Title II of the Social Security Act (“Act”).1
Currently before the court are the parties’ cross-motions for summary judgment.2
II.

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

decision in a Title II DIB case once it becomes the final decision of the Commissioner.3
A decision of the Commissioner becomes final when the Appeals Council either affirms

1

See 42 U.S.C. §§ 401-434.
D.I. 10 (Plaintiff’s motion for summary judgment); D.I. 12 (Defendant’s crossmotion for summary judgment).
3
42 U.S.C. § 405(g) (“Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to which he was a party . . . may
obtain a review of such decision by a civil action . . . brought in the district court of the
United States for the judicial district in which the plaintiff resides.”).
2

1

or denies review of an ALJ decision, or when a claimant fails to appeal the ALJ’s
decision within 60 days of an unfavorable ruling.4
Here, the ALJ’s decision is the final decision of the Commissioner because the
Appeals Council denied plaintiff’s request for appeal.5 Therefore, this court has
jurisdiction to review the ALJ’s decision.
III.

Procedural Background
On April 15, 2009, plaintiff filed a Title II application for a period of DIB, alleging

his disability began February 22, 2009.6 The claim was initially denied on December 18,
2009,7 and upon reconsideration on May 19, 2010.8 Thereafter, plaintiff filed a written
request for an administrative hearing on July 14, 2010.9
On December 20, 2010, ALJ Judith Showalter held a video hearing to determine
whether plaintiff was disabled under §§ 216(I) and 223(d) of the Act and to determine if
the insured status requirements under the same sections were met.10 Plaintiff,
represented by counsel, testified as to his disability.11 Also testifying at the hearing was
Beth Kelly, an impartial vocational expert (“VE”).12
After the hearing, the ALJ determined plaintiff was not disabled within the
meaning of the Act from February 22, 2009 to February 10, 2011, the date the opinion
4

See 20 C.F.R. § 416.1455; see also 20 C.F.R. § 404.905.
D.I. 8 at 1.
6
Id. at 151.
7
Id. at 88.
8
Id. at 95.
9
Id. at 101.
10
Id. at 35-69 (transcript of oral hearing); see D.I. 105-06 (listing issues to be
considered).
11
Id. at 35-69.
12
Id.
5

2

issued.13 The ALJ’s decision became final when the Appeals Council denied plaintiff’s
request for review.14
IV.

Factual Background
Plaintiff was 45 years old at the time of his alleged onset date of disability,

February 22, 2009.15 By the time of the hearing, he was 47 years of age.16 Plaintiff has
consistently alleged an inability to work due to shoulder impairments and degenerative
disk disease of the lumbar spine.17
Medical Evidence
Plaintiff is insured for disability benefits until June 30, 2014.18 Prior to the onset
of his alleged disability, plaintiff worked as an electrician.19 The job of an electrician is a
skilled position, and is generally performed at a medium level of exertion, but the VE
testified plaintiff may have performed his job at a heavy exertion level, lifting more than
50 pounds on occasion.20
A.

Back and Leg Pain and Treatment

In February 2008, plaintiff was seen by his treating physician, Dr. Robert Kopecki
(“Kopecki”), for back and leg pain.21 Kopecki prescribed Oxycodone,22 and also ordered

13

Id. at 29.
Id. at 1.
15
See id. at 151.
16
Id. at 40.
17
Id. at 39.
18
Id. at 23.
19
Id. at 42.
20
Id. at 64.
21
Id. at 338.
22
Id.
14

3

a MRI of plaintiff’s lumbar spine which was performed on April 2, 2008.23 The physician
evaluating the MRI found dextroscoliosis, lower thoracic and diffuse lumbar disc
desiccation with annular bulge, and bilateral foraminal narrowing in plaintiff’s spine.24 At
the follow-up visit after the MRI, Kopecki noted plaintiff complained of continued lower
back pain that radiated down his right leg.25 On May 30, 2008, Kopecki determined
plaintiff was a poor candidate for epidural injections as a result of his hemophilia.26
Kopecki later observed, on January 20, 2009, plaintiff was trying to work, but suffered
continued pain and walked with his back flexed. His prescriptions for Oxycodone and
Oxycontin were refilled.27 Kopecki subsequently wrote a letter indicating plaintiff
suffered lower back and leg pain from a 2003 motor vehicle accident, and was a poor
candidate for surgery or injections due to hemophilia.28 As a result, Kopecki concluded
plaintiff could not sit for extended periods of time and favored long-term disability for
him.29
Plaintiff continued to report back pain throughout 2009 and Kopecki wrote
another letter, dated August 4, 2009, indicating plaintiff suffered a leg deformity due to a
motor vehicle accident, along with continued chronic back pain which prevents him from
sitting or standing for long periods of time and represents a permanent disability
precluding full-time work.30 Concomitantly, Kopecki completed a Multiple Impairment
23

Id. at 260-61.
Id. at 261.
25
Id. at 337.
26
Id. at 336.
27
Id. at 333.
28
Id. at
29
Id.
30
Id. at 519-20.
24

4

Questionnaire (“MIQ”) where he diagnosed chronic lower back pain resulting from
severe lumbar disc disease and leg pain due to the previous fracture.31 Kopecki also
pointed out on the MIQ that plaintiff can only walk short distances and walks with his
back flexed.32 Kopecki also opined plaintiff could only sit or stand for less than one hour
at a time, occasionally lift up to 10 pounds, and was significantly limited in terms of
repetitive reaching, handling, fingering, and lifting.33 Kopecki also noted plaintiff suffers
fatigue and rated his pain as 7 out of 10.34 In addition, Kopecki indicated plaintiff would
need unpredictable breaks every 10 minutes for 10-20 minutes, and would miss work
more than 3 times per month.35 Plaintiff continued to report chronic back and leg pain;
Kopecki noted tenderness and positive straight leg raising on October 21, 2009.36
B.

Shoulder Pain and Treatment

On July 2, 2008, plaintiff complained of right shoulder pain.37 Kopecki ordered a
MRI which revealed a Hill-Sachs type deformity and an irregularity of the superior
labrum with a possible underlying superior labral tear.38 Plaintiff was evaluated by Dr.
Brian Galinat (“Galinat”) for his shoulder pain, who administered a subacromial injection
and prescribed Ultram.39 Upon follow-up, plaintiff reported continued pain and
consented to arthroscopic rotator cuff repair.40
31

Id. at 523.
Id.
33
Id. at 525-26.
34
Id. at 525, 528.
35
Id. at 528-29.
36
Id. at 515.
37
Id. at 335.
38
Id. at 258-59 (MRI performed November 10, 2008).
39
Id. at 317.
40
Id.
32

5

In advance of his shoulder surgery, plaintiff was examined by Dr. Philip Blatt
(“Blatt”) for evaluation of his hemophilia.41 Blatt noted plaintiff is a hemophiliac with
hepatitis C and instructed him on pre-operative measures.42 On March 18, 2009,
plaintiff underwent the shoulder procedure performed by Galinat.43 Upon follow-up,
plaintiff continued to report shoulder pain and characterized it as worse than prior to the
surgery.44 Galinat continued to prescribe narcotic pain medications until April 23, 2009
when he instructed plaintiff to only seek pain medication from his primary care physician
because of issues with denial of prescriptions due to multiple prescribers.45 An X-ray
performed on April 3, 2009 indicated continued Hill-Sachs deformity and separation due
to widening of the acromioclavicular space.46 In an undated letter, faxed on September
9, 2010, Dr. Michael Lankiewicz reported plaintiff suffers from hemophilia B and
recurrent bleeds in his shoulder joint making full-time work difficult.47
V.

Administrative Law Hearing
A.

Plaintiff’s Testimony

At the hearing, plaintiff testified he was an electrician, but stopped working in
February 2009,48 due to his shoulder issues. Plaintiff indicated his surgeon advised a
shoulder replacement would be needed in the future because it was “bone on bone,” but

41

Id. at 395.
Id. at 396.
43
Id. at 321-22.
44
Id. at 315-16.
45
Id.
46
Id. at 318.
47
Id. at 553.
48
Id. at 42.
42

6

it could not be performed for 10 years.49 Plaintiff then testified Kopecki told him such
surgery could be performed now, but without health insurance, he could not afford the
operation.50 Plaintiff noted his hemophilia also prevents surgical intervention due to
bleeding risks.51 Plaintiff stated his back problems and left leg issues prevented return
to work.52 Plaintiff further explained he missed substantial time from work of 4-5 days
per month for 2-3 months prior to his onset date.53
According to plaintiff, after the March 2009 shoulder surgery, his shoulder is
worse and requires a replacement.54 Due to pain, he takes Oxycodone, morphine and
MS-Contin, as well as Celebrex for arthritis and Paxil for depression.55 Plaintiff
characterized his shoulder pain as 5 out of 10 with medication and 10 without, which
occurs daily, and causes limited range of motion.56 Plaintiff also testified a prior
motorcycle accident in 2003 caused his original back injury and characterized his back
pain as 5-6 out of 10 with medication and 10 or worse without, along with stiffness and
occasional spasms.57
Plaintiff indicated having issues with using his right hand, but is able to button or
zipper clothing, hold a knife, fork or spoon to eat, and hold a pen, but experiences pain
when brushing his hair, and he uses his left hand for holding a phone or turning door

49

Id. at 43, 45.
Id. at 43.
51
Id.
52
Id. at 44.
53
Id. at 60.
54
Id. at 45.
55
Id. at 45, 52.
56
Id. at 46.
57
Id. at 47-48, 51.
50

7

knobs.58 With respect to his hemophilia, he does not receive regular treatment or
medication; however if he suffers bleeding, either internally or externally due to an
injury, he requires Factor 9.59
With respect to medication side effects, plaintiff noted he experiences tiredness.60
He also cannot walk any distance nor walk or stand for more than two hours,61 and can
only sit for less than an hour and lift up to 10 pounds.62 Plaintiff also indicated he has
memory issues, but is “pretty independent.”63
As to daily activities, plaintiff testified to sleeping problems, but handles his
personal hygiene and certain chores, except those which require standing, such as
vacuuming or sweeping.64 His wife does the laundry and grocery shopping although he
accompanies her at times. He spends most days watching television.65
Finally, plaintiff attested, consistent with Kopecki’s recommendation, he uses a
cane for balance and back support.66 Plaintiff also explained he once changed spark
plugs, but does not normally engage in such work.67
B.

Vocational Expert’s Testimony

58

Id. at 49-50.
Id. at 50.
60
Id. at 53.
61
Id. at 53-54.
62
Id. at 54.
63
Id. at 55.
64
Id. at 56-57.
65
Id. at 57, 59.
66
Id. at 61-62.
67
Id. at 63.
59

8

Beth Kelly (“Kelly”), a VE, testified at the hearing.68 Kelly stated plaintiff’s
employment as an electrician appeared to be at a heavy exertional level, although such
work is typically of a medium exertional level.69 She indicated some of plaintiff’s skills as
an electrician are transferrable to “some light jobs.”70 The ALJ proposed a hypothetical
person similar to plaintiff, at the same age of onset, education, and suffering from the
same disabilities including limitations on climbing ladders, ropes or scaffolds, pushing or
pulling with the right arm, with no overhead work or exposure to extreme cold, and
handling, fingering or feeling with the right hand restricted to frequent.71 Kelly testified
there were several classes of assembler work such a hypothetical person could
perform.72 Specifically, Kelly noted those jobs included: (1) assemblers; (2) hand
pickers; (3) production inspectors; (4) assemblers (sedentary); (5) inspectors; and (6)
sorters, with numerous positions both regionally and nationally.73 Kelly also testified
chronic absenteesim of three or more days per month would be unacceptable for those
jobs.74
VI.

ALJ’s Findings

68

Id. at 64.
Id.
70
Id.
71
Id. at 65.
72
Id.
73
Id. at 65-66.
74
Id. at 68.
69

9

After considering all of the evidence, the ALJ found plaintiff was not disabled
within the meaning of the Act since February 22, 2009 and denied his claim.75 Her
findings from her February 10, 2011 opinion are:76
1.

Plaintiff meets the insured status requirements of the Social Security Act
through June 30, 2014.

2.

Plaintiff has not engaged in substantial gainful activity since February 22,
2009.

3.

Plaintiff has the following severe impairments: chronic right shoulder pain
resulting from rotator cuff repair and chronic lower back pain associated
with degenerative disc disease.

4.

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

5.

After careful consideration of the entire record, the ALJ found plaintiff had
the residual functional capacity (“RFC”) to perform a range of light work as
defined in 20 CFR 404.1567(b). Plaintiff had the RFC to perform light
work excluding climbing ladders, ropes, or scaffolding; pushing or pulling;
overhead work with his dominant right arm; and exposure to extreme
temperatures. Further, plaintiff would be limited in terms of frequent
handling, fingering, or feeling in the dominant right hand and would only be
able to perform unskilled work due to medication side effects.

6.

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

7.

Plaintiff was born April 2, 1963 and was 45 years old, which is defined as
a younger individual age 18-49, on the alleged disability onset date (20
CFR 404.1563).

8.

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

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a

75
76

Id. at 29.
Id. at 23-29.
10

finding that plaintiff is “not disable,” whether or not plaintiff has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10.

11.

VII.

Considering plaintiff’s age, education, work experience and RFC, there are
jobs that exist in significant numbers in the national economy that plaintiff
can perform (20 CFR 404.1569 and 404.1569(a)).
Plaintiff has not been under a disability, as defined in the Act, from
February 22, 2009, through the date of the ALJ decision (20 CFR
404.1520(g)).

Parties’ Contentions
A.

Plaintiff’s Position

Plaintiff argues he is entitled to judgment in his favor.77 First, he asserts the ALJ
failed to follow the treating physician rule by giving “little weight” to Kopecki’s opinions
without citing medical evidence contradicting his conclusions.78 Plaintiff also argues the
ALJ erred by failing to support her opinion with substantial evidence,79 and did not
consider the factors in 20 C.F.R. § 404.1527(c)(2)-(6).80 He asserts the ALJ also erred
by concluding, contrary to Kopecki’s opinion, but consistent with plaintiff’s testimony, he
is able to care for his needs, and the level of treatment was inconsistent with the
doctor’s opinion.81 Instead, plaintiff argues the limited course of treatment is due to risks

77

D.I. 10.
D.I. 11 at 9, 12.
79
Id. at 12-13; see also 20 C.F.R. § 404.1527(c)(2) (assigning “controlling
weight” to a treating physician’s opinion if supported by “medically acceptable clinical
and laboratory diagnostic techniques” and “not inconsistent with other substantial
evidence”).
80
Id. at 13; see also 20 C.F.R. § 404.1527(c)(2)-(6) (detailing factors affecting
weight to be given to medical opinions if not assigned “controlling weight” including: (1)
examining relationship; (2) treatment relationship including length and the nature and
extent of the relationship; (3) supportability; (4) consistency; (5) specialization; and (6)
other factors).
81
D.I. 11 at 10.
78

11

associated with hemophilia, not the severity of his conditions, and, as found by Kopecki,
he cannot perform even sedentary work.82 Likewise, plaintiff propounds Kopecki’s
findings on standing, walking or sitting is based on a five-day work environment, and
thus does not preclude performance of daily activities.83 Finally, plaintiff states the
conclusion he can perform light work is not supported by substantial evidence since the
ALJ did not provide specific objective findings, and may not substitute her own medical
judgment for that of a medical professional, but must decide residual functional capacity
(“RFC”)84 based on medical evidence and not her own credibility judgments.85
Plaintiff also argues the ALJ improperly evaluated his credibility.86 Specifically,
he argues the ALJ violated 20 C.F.R. § 404.1529(c)(4) by analyzing his credibility
against her own RFC rather than the evidence of record.87 Characterizing the ALJ’s
findings as vague and insufficient, plaintiff posits his lack of back treatment while
undergoing shoulder surgery is unsurprising, and his ability to walk the short distance
from his hospital room to a vehicle is irrelevant.88 Plaintiff also contends an absence of
any planned surgery does not diminish his shoulder limitations.89 Thus, plaintiff asserts
the ALJ’s opinion on his credibility is unsupported by substantial evidence.

82

Id. at 11.
Id. at 11-12. Plaintiff also cites cases from other courts to support the context
of a five day work week in assessing work capacity. Id. at 12.
84
Residual function capacity is the most a claimant can do despite his limitations.
20 C.F.R. § 404.1545(a)(1).
85
Id. at 13-14 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999);
Simmonds v. Astrue, 872 F. Supp. 2d 351, 359 (D. Del. 2012)).
86
D.I. 11 at 14.
87
Id. at 15.
88
Id. at 16.
89
Id.
83

12

B.

Defendant’s Position

Defendant contends the ALJ complied with the regulations in considering both
the weight attributed to Kopecki’s testimony and plaintiff’s credibility.90 Defendant
argues RFC determinations are within the exclusive province of the ALJ, since they are
administrative findings and not medical opinions.91 He also points out the ALJ
supported her decision to give little weight to Kopecki’s opinion by providing adequate
reasons.92 Defendant quotes the ALJ’s assessment of Kopecki’s opinion on the basis of
“an eight hour work day.”93 Defendant also indicates the ALJ considered plaintiff’s
hemophilia, medication regimen and side effects, and Kopecki’s relationship with
plaintiff, which contradicts arguments that the ALJ failed to use substantial evidence or
follow regulations in deciding the weight to accord Kopecki’s opinion.94
With respect to plaintiff’s credibility, defendant asserts this falls within the sole
province the ALJ, who must only provide enough specificity for the reviewing court to
determine the weight and basis for the weight accorded plaintiff’s testimony.95
Defendant notes, contrary to plaintiff’s argument, that the Third Circuit does not follow a
specific ordered approach for determining the RFC, nor forbid assessing a claimant’s
statements against the ALJ’s RFC determination.96 Defendant asserts the ALJ
considered the record and provided reasons for her credibility determination, and
90
91

D.I. 13 at 11, 13.
Id. at 11 (citing Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir.

2011).
92

D.I. 13 at 11-12.
Id. at 12.
94
Id. at 13.
95
Id. at 13-14.
96
Id. at 14.
93

13

supported her findings by distinguishing inconsistencies in plaintiff’s testimony with the
objective medical record.97 Specifically, defendant refers to the absence of any
evidence for shoulder replacement, plaintiff’s healing after the shoulder procedure, and
the lack of back treatment while undergoing shoulder treatment.98 Defendant notes the
ALJ’s consideration of MRI findings and plaintiff’s ability to walk independently, as well
as the lack of any evidence a cane was prescribed for assistance.99 Therefore,
defendant argues the ALJ explained her credibility findings, her RFC and her
determination of “very limited light duty work” with sufficient specificity.100
VIII.

Standard of Review
A.

Summary Judgment

In determining the appropriateness of summary judgment, the court must “review
the record as a whole, ‘draw[ing] all reasonable inferences in favor of the nonmoving
party[,]’ but [refraining from] weighing the evidence or making credibility
determinations.”101 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.102
This standard does not change merely because there are cross-motions for
summary judgment.103 Cross-motions for summary judgment

97

Id. at 15.
Id. at 15-16.
99
Id. at 16-17.
100
Id. at 17.
101
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
102
See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R.
CIV. P. 56(c)).
103
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
98

14

are no more than a claim by each side that it alone is entitled to summary
judgment, and the making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist.104
“The filing of cross-motions for summary judgment does not require the court to
grant summary judgment for either party.”105
Regarding Social Security Benefits matters, this court’s review is limited to
determining whether the final decision of the Commissioner is supported by
substantial evidence.
Substantial evidence is less than preponderance but more than a mere
scintilla. It is such relevant evidence as a reasonable mind would accept
as adequate support for a conclusion. It must do more than create a
suspicion of the existence of a fact to be established . . . it must be
enough to justify, if the trial were put to a jury, a refusal to direct a verdict
when the conclusion sought to be drawn from it is one of fact to the jury.106
The Supreme Court has embraced a similar standard for determining summary
judgment pursuant to FED. R. CIV. P. 56:
The inquiry performed is the threshold inquiry of determining whether
there is a need for a trial - whether, in other words, there are any genuine
factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.
[T]his standard mirrors the standard for a directed verdict under Federal
Rule of Civil Procedure 50(a), which is that the trial judge must direct a
verdict if, under the governing law, there can be but one reasonable
conclusion as to the verdict. If reasonable minds could differ as to the
import of evidence, however, a verdict should not be directed.107

104

Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
Krupa v. New Castle Cnty., 732 F. Supp. 497, 505 (D. Del. 1990).
106
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).
107
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986) (citation
omitted).
105

15

Overall, this test is deferential, and we grant similar deference to agency
inferences from facts if those inferences are supported by substantial
evidence, “even [where] this court acting de novo might have reached a
different conclusion.”
Furthermore, evidence taken as a whole must be sufficient to support a
conclusion by a reasonable person, not just the evidence consistent with
the agency’s decision.108 Thus, a single piece of evidence will not satisfy
the substantiality test if the [Commissioner] ignores, or fails to resolve, a
conflict created by countervailing evidence. Nor is the evidence
substantial if it is overwhelmed by other evidence - particularly certain
types of evidence (e.g. that offered by treating physicians) - or if it really
constitutes no evidence but a mere conclusion.109
B.

Disability Determination Standard
Five-Step Test

The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled.110
In step one the ALJ must determine if the claimant is engaged in any
substantial gainful activity. If a claimant is found to be engaged in any
substantial gainful activity, the ALJ will find the claimant not disabled.111
In step two, the ALJ must determine if the claimant is suffering from a
medically determinable impairment that is severe and meets the durational
requirement. A severe impairment is one that significantly limits a
claimant’s ability to do basic work activities.112 If the claimant does have a
severe impairment, the analysis proceeds to the next step.
In step three, the ALJ determines if a claimant’s impairments meets or
medically equals the criteria of one of the listings in 20 C.F.R. Part 404,
Subpart P, Appendix 1.113 If the claimant’s impairment meets or equals a
listed impairment, the claimant is disabled. If not, the analysis proceeds to
the next step.
108

Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986).
Id.
110
20 C.F.R. § 404.1520(a).
111
Id. at § 404.1520(b).
112
Id. at § 404.1520(c).
113
Id. at § 404.1520(d).
109

16

Before continuing to step four, if claimant’s impairments do not meet or
equal a listed impairment, the ALJ will assess the claimant’s residual
functional capacity, to be used in steps four and five.114
In step four, the ALJ compares the claimant’s residual functional capacity
to his past relevant work. If a claimant can still perform past relevant
work, then he is not disabled.115 If a claimant cannot perform past relevant
work, the analysis proceeds to the last step.
In step five, the ALJ must consider the claimant’s impairments, residual
functional capacity, age, education, and work experience to determine if
the claimant can perform other work. Here the burden shifts to the ALJ to
show that there are other jobs existing in significant numbers in the
national economy which the claimant can perform. The ALJ will often
seek the assistance of a vocational expert at this fifth step.116
If the ALJ determines a claimant is disabled at any step in the sequence,
the analysis ends.117
IX.

Discussion
A.

Weight Accorded Kopecki’s Medical Opinion

Plaintiff argues the ALJ erred by assigning Kopecki’s opinion little weight
by failing to support this finding with substantial evidence or consider the required
factors. Plaintiff also argues the ALJ erred by substituting her own medical
judgment and failing to rely on objective medical evidence in determining
plaintiff’s RFC. Controlling weight is ordinarily assigned to a treating physician’s
opinion unless otherwise contradicted by substantial evidence.118 “When making
a residual functional capacity determination, ‘an ALJ may not reject pertinent or

114

Id. at § 404.1520(e).
Id. at § 404.1520(f).
116
Plummer v. Apfel, 186 F.3d 422 (3d Cir. 1999).
117
See 20 C.F.R. § 404.1520(a).
118
Russo v. Astrue, 421 Fed. App’x 184, 190 (3d Cir. 2011).
115

17

probative evidence without explanation.’”119 Further, an ALJ may assign weight
based on the factors in 20 C.F.R. § 404.1527(c)(2)-(6).120
In the present case, the ALJ afforded little weight to Kopecki’s medical
opinion.121 In her decision, the ALJ pointed to a lack of objective medical
evidence indicating severe impairment.122 The ALJ further noted an
inconsistency between Kopecki’s opinion that plaintiff may sit or stand for zero to
one hour in an eight hour work day, and plaintiff’s own testimony regarding his
daily activities and abilities.123 The ALJ was also unconvinced that the level of
treatment was consistent with a severe impairment of the nature alleged by
Kopecki.124 In addition, the ALJ acknowledged Kopecki’s status as plaintiff’s
primary care physician,125 and that he had treated plaintiff since 2003.126 Thus,
the ALJ properly considered all of the factors in 20 C.F.R. § 404.1527(c)(2)-(6) in
determining the weight to accord Kopecki’s opinion. In assessing these factors,
the ALJ likewise justified her determination by addressing a lack of support and
inconsistencies in the underlying record, precisely the types of substantial

119
120

Id.
Guido v. Astrue, C.A. No. 11-686, 2012 WL 2403242, at *4 (W.D. Pa. June 26,

2012).
121

D.I. 8 at 27.
Id.
123
Id.
124
Id. The ALJ discussed substantial portions of plaintiff’s treatment history and
assessed each doctor’s evaluation. Specifically, the ALJ noted the lack of hemophilia
treatment except immediately prior to the should procedure, the decrease in back
treatment during shoulder treatment, lack of scheduled surgery, and assessments of
plaintiff’s healing and range of motion. Id. at 23-28.
125
Id.
126
Id. at 24.
122

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evidence that would support her finding. Specifically, the ALJ noted no medical
evidence supported plaintiff’s assertion his shoulder was “bone on bone”
requiring a replacement and the lack of reference to his arm in Kopecki’s
opinion.127 As such, the ALJ did not err in affording Kopecki’s opinion little
weight.
Plaintiff mischaracterizes the ALJ’s RFC finding, citing only to the page
containing her conclusion. Rather, the ALJ based her RFC finding on the same
evidence used to evaluate Kopecki’s opinion, namely plaintiff’s treatment history,
doctors’ statements and records and plaintiff’s own testimony. Although the ALJ
did not expound on the rationale for her decision after her conclusion, in light of
her prior analysis, her determination was evidently based on plaintiff’s testimony
as to daily activities and objective medical findings, which provide sufficiently
substantial evidence in support.

B.

Determination of Plaintiff’s Credibility

Plaintiff argues the ALJ erred by assessing his credibility against her own
RFC determination. Although she found plaintiff’s impairments sufficient to
cause his alleged symptoms, she found his statements with respect to “intensity,
persistence and limiting effects” to be not credible.128 The Third Circuit does not
reject an ALJ’s finding with respect to a plaintiff’s credibility when compared to
the ALJ’s RFC determination.129 Although plaintiff disputes the ALJ’s findings
127

Id. at 27.
Id. at 26.
129
Russo, 421 F. App’x at 190.
128

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based on the evidence on which she relied, the fact that she referenced medical
evidence and his testimony in assessing credibility renders her decision
supported by substantial evidence. The ALJ summarized plaintiff’s testimony
and treatment history in her findings, specifically, noting the reduction in plaintiff’s
back treatment throughout his shoulder treatment, his ability to walk immediately
after shoulder surgery and subsequent healing of his incision, as well as
noticeable conflicts between Kopecki’s opinion and plaintiff’s own statements
regarding his daily activities and abilities. The mere fact the ALJ referenced
plaintiff’s RFC in assessing his credibility serves as a reference to her other
findings and the evidence in support of her decision. Thus, plaintiff’s argument is
semantic, and the ALJ’s decision is supported by substantial evidence.

X.

Order and Recommended Disposition
Consistent with the findings contained in this Report and

Recommendation,
IT IS RECOMMENDED that plaintiff’s motion for summary judgment (D.I.
10) be DENIED, and defendant’s motion for summary judgment (D.I. 12) be
GRANTED.
This Report and Recommendation is filed pursuant to 28 U.S.C. §
636(b)(1)(B), FED. R. CIV. P. 72(a) and D. Del. LR 72.1. The parties may serve
and file specific written objections within fourteen days after being served with a
copy of this Report and Recommendation. The objections and response to the
objections are limited to ten (10) pages each.
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The parties are directed to the Court’s Standing Order in Non-Pro Se
matters for Objections Filed under FED. R. CIV. P. 72, dated October 9, 2013, a
copy of which is available on the Court’s website, www.ded.uscourts.gov.
March 14, 2014

/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

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