Gebhart v. Astrue
REPORT AND RECOMMENDATIONS re 11 MOTION for Summary Judgment filed by Samuel R. Gebhart, 19 Cross MOTION for Summary Judgment filed by Michael J. Astrue. Please note that when filing Objections pursuant to Federal Rule of C ivil 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 5/30/2014. Signed by Judge Mary Pat Thynge on 5/12/14. (cak)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SAMUEL R. GEBHART,
MICHAEL J. ASTRUE,
C. A. No. 12-1289-RGA-MPT
REPORT AND RECOMMENDATION
Plaintiff Samuel R. Gebhart (“plaintiff”) filed this action against defendant Michael
J. Astrue, then Commissioner of Social Security (“defendant”).1 Plaintiff seeks judicial
review, pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. 1383(c), of a denial of his
application for Social Security Disability and Supplemental Security Income benefits
under Title II and Title XVI of the Social Security Act (the “Act”). Presently before the
court are the parties’ cross-motions for summary judgment. Plaintiff seeks reversal, or
in the alternative, remand to a different Administrative Law Judge (“ALJ”). Defendant
requests the court affirm the decision to deny benefits.
Carolyn W. Colvin became the Commissioner of Social Security on February 13, 2013 after
briefing began. Although under Federal Rule of Civil Procedure 25, Carolyn W. Colvin should be
substituted for Michael J. Astrue, pursuant to 42 U.S.C § 405(g), no further action is necessary to continue
Plaintiff applied for disability insurance benefits (“DIB”)2 on July 25, 2005, alleging
he was disabled since September 30, 2004 due to pericardial diffusion, a gunshot
wound to his right calf, and nervous breakdowns.3 His application was denied initially
on February 16, 2006,4 and on reconsideration on March 2, 2007.5 On April 23, 2007,
plaintiff filed a written request for a hearing.6
A video hearing before ALJ Judith A. Showalter was conducted on March 17,
2008.7 Plaintiff, represented by counsel, testified at the hearing.8 Mitchell A. Schmidt,
an impartial vocational expert, also appeared at the hearing.9
On July 10, 2008, the ALJ issued a written decision denying plaintiff’s application
for DIB.10 The ALJ noted plaintiff’s insured status expired on March 31, 2007, requiring
disability be established on or before that date.11 The ALJ determined plaintiff was not
disabled under sections 216(I), 223(d), and 1614(3)(A) of the Social Security Act.12
Specifically, she found plaintiff had severe impairments, including posterior tibial tendon
disorder, status post-gunshot wound, and personality disorder, but none, singly or in
combination, met or medically equaled the criteria for listed impairments under the Act.13
D.I. 8 at 134-40.
Id. at 75-76.
Id. at 49, 75-76.
Id. at 50-52, 84-89.
Id. at 90.
Id. at 53-69 (plaintiff appeared in New Castle, DE, while the ALJ presided over the hearing from
Id. at 55.
Id. at 53-69.
Id. at 55.
Id. at 69.
Id. at 57, 61; see also 20 C.F.R §§ 404.1520(d), 404.1525-26, 416.920(d), 416.925-26 (“The
Listings represent medical conditions of such functionally limiting severity that an individual who
establishes that he meets or medically equals the criteria of a listed impairment could not reasonably be
expected to engage in sustained work-related activities.”).
The ALJ determined plaintiff had the residual functional capacity (“RFC”) to perform
simple, routine, unskilled, sedentary work at a non-production pace.14 The ALJ also
found the RFC required plaintiff to do occasional postural activities, and precluded him
from exposure to extreme temperature and humidity, as well as from climbing ropes,
ladders, or scaffolds.15 Consequently, the ALJ concluded plaintiff was employable and
Plaintiff then filed a request for review on July 17, 2008,17 and the Appeals
Council remanded the matter to the ALJ on June 23, 2010 for further consideration and
to obtain additional evidence.18
On August 18, 2011, another video hearing was held before ALJ Judith
Showalter.19 Plaintiff again testified at the hearing.20 Christina L. Beatty-Cody, an
impartial vocational expert (“VE”), also testified.21
On December 2, 2011, the ALJ again denied plaintiff’s application for DIB.22 In
that opinion, the ALJ concluded, although plaintiff had the same severe impairments,
along with substance addiction disorder and depression, he maintained the previously
determined RFC,23 and was not disabled under the Act.24
Plaintiff’s subsequent request for review was denied by the Appeals Council on
Id. at 65; see also 20 C.F.R § 404.1567(a).
D.I. 8 at 65.
Id. at 69.
Id. at 106-107.
Id. at 72-74.
D.I. 9 at 1144.
Id. at 1145, 1151-60.
Id. at 1145, 1160-63.
D.I. 8 at 24-37.
Id. at 27-3.
Id. at 37.
August 10, 2012, as the Council concluded there was no basis for reviewing the ALJ’s
decision.25 The ALJ’s 2011 decision, therefore, constitutes the final decision of the
Having exhausted all administrative remedies, plaintiff now seeks judicial review
of this decision. On January 10, 2013, plaintiff moved for summary judgment.27 On
March 25, 2013, defendant cross moved for summary judgment.28
Plaintiff was born on March 7, 1963,29 and was forty-four years old as of his last
insured date.30 He is considered a “younger person” at all times relevant to his DIB
application.31 Plaintiff is a high school graduate with prior vocational experience as a
heavy equipment operator and a tree service worker.32 His detailed medical history is
contained in the record; this Recommendation will provide a summary of the relevant
Plaintiff’s complaints of pain associated with a number of injuries and conditions
occurred prior to the alleged onset date. His treatment records reflect a long-standing
history of substance abuse and mental illness.33
Id. at 10-13.
D.I. 8 at 36.
Id. at 25.
Id. at 25, 36; see also 20 C.F.R. § 404.1563 (“If you are a younger person (under age 50), we
generally do not consider that your age will seriously affect your ability to adjust to other work. However, in
some circumstances, we consider that persons age 45–49 are more limited in their ability to adjust to
other work than persons who have not attained age 45.”)
D.I. 8 at 36, 157.
Id. at 58.
In June 2004, plaintiff sustained cervical and thoracic strain injuries resulting from
a motor vehicle accident,34 causing neck and upper extremities’ pain and numbness of
the hands.35 On August 2, 2004, plaintiff visited Wai Wor Phoon, M.D., for a nerve
conduction test, which yielded normal results, with no evidence of neuropathy or
radiculopathy.36 Plaintiff briefly sought treatment for his symptoms from Jeremy Rivada,
PT, (“Rivada”) of DYNAMIC Physical Therapy and Aquatic Rehabilitation Centers.37 On
August 6, 2004, Rivada reported decreased range of motion and increased muscle
tightness with spasms.38 During that appointment, plaintiff advised he was placed on
lighter duty at work and refrained from heavy lifting.39
On September 17, 2006, plaintiff was involved in another motor vehicle
accident.40 He began treatment with Frank Falco, M.D., (“Dr. Falco”) and Jie Zhu, M.D.,
at Mid Atlantic Spine for lower back, neck, and leg pain on September 21, 2006 .41 On
examination, Dr. Falco found normal range of motion (“ROM”), no muscle spasms in the
back, and some tenderness along the facets.42 Plaintiff was treated with pain
medications for his lower back from September to November 2006.43 At his November
2, 2006 office visit with Dr. Falco, plaintiff rated his lower back pain as 8/10 without pain
Id. at 580, 280-81.
Id. at 280.
Id. at 280-81.
Id. at 580-81.
Id. at 588, 91.
Id. at 583-84.
medication, and 5/10 with medication.44 During that appointment, plaintiff requested
more medication, claiming the pharmacy only provided him 80 of the 120 pills he was
supposed to receive.45 Because the pharmacy properly filled the prescription, Dr. Falco
discharged plaintiff for abusing pain medication.46
On August 12, 2010, plaintiff saw his primary care physician, Seth Ivins, M.D.,
(“Dr. Ivins”) for lower back pain.47 Dr. Ivins reported decreased range of motion in the
On September 10, 2004, plaintiff was seen at the emergency room of Christiana
Care for chest discomfort.49 He reported being a self-employed carpenter, and taking
Xanax and Paxil for anxiety due to the June 2004 motor vehicle accident.50 Cardiologist
Edward Goldenberg, M.D., (“Dr. Goldenberg”) conducted an electrocardiogram (“ECG”)
and CT scan (“CT”), which showed no evidence of a pericardial effusion or pulmonary
emboli.51 Dr. Goldenberg diagnosed “chest pain syndrome, probably pericarditis.” 52
On October 28, 2004, plaintiff followed up with Dr. Goldenberg for recurrent
sharp anterior chest pain.53 Dr. Goldenberg performed another ECG and assessed the
chest pain as “probably musculoskeletal in etiology.”54
Id. at 588. Pain rating is based on a scale of 0 to 10, with 10 being the most severe pain.
Id. at 584.
D.I. 9 at 1008; see also D.I. 8 at 28.
D.I. 8 at 331-32.
D.I. 9 at 757. Dr. Goldenberg is associated with Cardiology Consultants, P.A.
D.I. 8 at 332
D.I. 9 at 757.
Id. at 757-58.
On January 15, 2005, plaintiff again reported to the emergency room at
Christiana Hospital complaining of chest pain resulting from a fall.55 The ECG and chest
x-ray presented no probative findings.56 Plaintiff was discharged with a diagnosis of
“nonspecific chest pain” and prescribed Percocet for pain.57
In June 2005, plaintiff visited Union Hospital in Elkton, Maryland, on two
occasions complaining of “sharp and stabbing” chest pain.58 During the June 6, 2005
visit, he claimed the pain started while fishing and drinking alcohol and the symptoms
were identical to those experienced during his admission to Christiana Care in 2004.59
Plaintiff related a family history of congestive heart failure, coronary artery disease, and
pericarditis.60 On June 24, 2005, plaintiff returned to the Union Hospital emergency
room with another episode of chest pain, and was evaluated by Christopher Baldi, D.O.,
who noted that “some features of [plaintiff’s] pain and his actions . . . suggest drugseeking behavior.”61 During each visit, plaintiff was diagnosed with pericarditis and
hypertension.62 He also tested positive for Hepatitis C.63 Plaintiff was advised to
discontinue alcohol and tobacco use, and follow up with his primary care provider, Keith
On January 4, 2007, plaintiff visited Dr. Goldenberg for the first time since 2004,
for recurrent chest discomfort and shortness of breath associated with “hard work or
Id. at 284.
Id. at 299, 303.
Id. at 285.
Id. at 371.
Id. at 391.
Id. at 410-11, 436.
Id. at 410-11, 413-14.
Id. at 413-14.
emotional upset.”65 Plaintiff advised taking nitroglycerine for relief.66 He stated his
activities were limited and still smoked a half a pack of cigarettes a day.67 Dr.
Goldenberg administered an ECG and diagnosed the chest pain as “not clearly
ischemic in origin.”68
On January 17, 2007, plaintiff underwent a stress test administered by Richard
F. Gordon, M.D., which revealed a regional wall motion abnormality and a moderately
sized, reversible inferior defect.69 Thereafter, plaintiff underwent a cardiac catherization
on January 30, 2007 by James M. Ritter, M.D., (partner to Dr. Goldenberg) which
revealed non-obstructive coronary artery disease.70
On January 11, 2008, plaintiff was admitted to Christiana Care after developing
chest pain during a domestic dispute.71 Dr. Goldenberg found plaintiff’s chest x-ray was
normal and his ECG unchanged.72 Two months later, Dr. Goldenberg cleared plaintiff
from “a cardiac standpoint” for foot surgery.73
Plaintiff continued to see Dr. Goldenberg for chest pain from April 2009 through
December 2009.74 During the April 7, 2009 appointment, plaintiff advised he continued
to smoke and had experienced significant emotional distress.75 While his ECG was
normal, plaintiff had elevated cholesterol and Dr. Goldberg prescribed Lipitor.76
D.I. 9 at 751.
Id. at 752.
Id. at 748-49.
Id. at 747, 743-46.
Id. at 1097.
Id. at 869.
Id. at 870-72, 873-88.
Id. at 870.
Id. at 870-71; see also id. at 1077.
Nevertheless, when Dr. Goldenberg was asked on November 23, 2009 whether plaintiff
was disabled from a “cardiac standpoint,” the doctor responded in the negative.77
On November 24, 2009, plaintiff contacted Dr. Goldenberg’s office complaining of
persistent and intermittent chest pain.78 On December 2, 2009, Dr. Goldenberg
administered another stress test, which was negative for ischemia and arrythmias, and
revealed an ejection fraction of 69%, normal sized chambers, normal perfusion, normal
hemodynamic response, and average functional capacity.79
On December 15, 2009, plaintiff was evaluated by Dr. Goldenberg for continued
activity-related tightness in his chest. 80 At this time, plaintiff advised he had
discontinued alcohol, continued to smoke, and remained under increased emotional
stress.81 Dr. Goldenberg’s diagnosis was atypical angina, and he ordered another
cardiac catherization.82 On December 28, 2009, Michael E. Stillabower, M.D.,
conducted the catherization, and found non-obstructive coronary disease with no focal
stenosis in excess of 30-40%, intramyocardia with mild bridging.83
In 1981, plaintiff sustained a gunshot injury which left multiple bullet fragments in
his right leg.84 On January 6, 2005, plaintiff was seen at Christiana Care complaining of
pain in both wrists, right ankle and foot.85 X-rays revealed osteoarthritic changes in both
Id. at 873.
Id. at 874.
Id. at 876-77.
Id. at 881.
Id. at 888.
Id. at 58, 282, 455.
Id. at 282.
wrists and possible joint subluxation in the left wrist.86 An X-ray of the right ankle
revealed multiple pellets in the soft tissue compatible with the 1981 gunshot injury, but
otherwise showed no significant arthritic changes or deformities.87 The right foot X-ray
evidenced osteoarthritic changes and possible hammertoe deformities.88
Plaintiff saw podiatrist James D. Bray (“Dr. Bray”) for his foot and ankle pain from
January 2005 through February 2006.89 In January 2005, Dr. Bray diagnosed posterior
tibial tendon disorder of the right ankle and ordered a sonogram which occurred on
February 3, 2006.90 According to the sonogram, there was evidence of chronic
thickening and fibrosis along the musculotendinous junction of the posterior tibialis
tendon, with the abnormal thickening in the posterior tibialis region possibly representing
the “sequela of previous injury to the tendon.”91
In May 2006, plaintiff began treatment with podiatrist Jason T. Kline (“Dr.
Kline”).92 Dr. Kline first treated plaintiff on May 25, 2006 for complaints of foot and ankle
pain and ambulation problems due to occasional “collapse” of the right foot.93 Plaintiff
also complained his ankle brace for stability caused pain.94 Dr. Kline’s examination
revealed subtalar ROM elicited mild pain with no evidence of crepitus.95 Weight bearing
analysis revealed severe collapse of the subtalar joint and longitudinal arch.96 Dr. Kline
Id. at 282-83; see also STEDMAN’S MEDICAL DICTIONARY 1494 (25th ed. 1990)(“an incomplete
luxation or dislocation; though relationship is altered, contact between joint surfaces remains.”).
Id. at 282; see also id. at 58.
Id. at 282-83.
Id. at 452-463; see also D.I. 9 at 741-42.
D.I. 8 at 463; D.I. 9 at 741-42.
D.I. 9 at 742.
Id. at 890.
Id. at 733-34.
Id. at 733.
diagnosed a 3/4 function grade of plaintiff’s posterior tibial tendons and hammertoe
deformities.97 He recommended reconstructive surgery for both conditions to stabilize
plaintiff’s right foot.98 On June 22, 2006, Dr. Kline’s examination revealed a severe pes
valgus deformity secondary to subtalar joint collapse, muscle weakness secondary to
nerve damage related to the gunshot injury, and rigid contracted digits of the right foot.99
Based on these findings, Dr. Kline scheduled subtalar joint fusion surgery which was
performed on July 14, 2006.100
On August 10, 2006, Dr. Kline’s post-operative evaluation noted plaintiff was
“doing well.”101 During this appointment, he applied a fiberglass cast with strict nonweight bearing activity for two weeks, and prescribed a CAM walker, pain medication,
and thirty days of physical therapy.102
On September 15, 2006, plaintiff began physical therapy with Heather J. Browne,
PT, (“Browne”) at DYNAMIC Physical Therapy & Rehabilitation Center.103 At that time,
plaintiff rated his pain in a range of 8/10 to 10/10.104 Browne reported plaintiff’s overall
rehabilitation potential as fair, and he tolerated therapeutic treatment activities with mild
complaints of pain and difficulty.105 On October 6, 2006, plaintiff told Browne he felt “a
lot better” since physical therapy began.106 Browne observed plaintiff had increased
Id. at 734, 720
Id. at 726.
Id. at 726-27, 709-725.
Id. at 705.
Id. at 702-705; see also D.I. 8 at 573.
D.I. 8 at 578.
Id. at 577-79.
Id. at 575.
mobility, and could walk without a boot.107 Plaintiff reported exercising on his own,
including using five pound weights at one hundred repetitions a couple of times per day,
walking on the treadmill for five miles per day at five miles per hour, and doing fifty
pound leg presses.108 Nevertheless, he reported pain after walking for a long time, at
night and in the morning, and at extreme ankle ROM.109 Browne advised plaintiff to
temper his exercise activities.110
On October 18, 2006, Dr. Kline diagnosed plaintiff’s right subtalar fusion as
“successful” and “totally healed.”111 Despite these findings, Dr. Kline concluded plaintiff
was “temporarily disabled until further notice,” and scheduled a second surgery for
On November 28, 2006, plaintiff underwent surgical reconstruction of his right
foot.113 Dr. Kline prescribed post-operative pain medication until December 12, 2006.114
Shortly after his November 2006 surgery, plaintiff experienced tenderness in his
right toes, determined to be caused by a screw that migrated distally.115 As a result,
plaintiff was admitted on January 25, 2007 to Glasglow Medical Center to have the
appliance surgically removed.116
Plaintiff visited Dr. Kline regularly following his 2007 surgery, and often
D.I. 9 at 700.
Id. at 695 (finding plaintiff temporarily disabled on October 18, 2006); see also id. at 700
(recommending further surgery).
Id. at 687-692; see also id. at 650-676; id. at 658 (procedures included joint fusion, lengthening
Id. at 679-80, 682-83, 686.
Id. at 630; see also id. at 959.
Id. at 622-39, 645-49.
complained of right foot and ankle pain.117 Dr. Kline continued with pain medication and
referred plaintiff to Emmanuel Devotta, M.D., (“Dr. Devotta”) of Brandywine Pain
Management.118 On March 9, 2007, Dr. Devotta performed a physical and a pain
management evaluation.119 He observed plaintiff wore a boot over his lower right
extremity, had multiple well-healed surgical scars and significant decreased ROM in the
ankle with diffuse allodynia and mild edema.120 Dr. Devotta recommended a lumbar
sympathetic block to reduce lower extremity hypersensitivity.121 However, there is no
documentation that plaintiff underwent this procedure.122
In a May 2007 letter concerning plaintiff’s disability status, Dr. Kline opined that
the recovery process was ongoing and discussed plaintiff’s difficulty with pain
management.123 Dr. Kline felt the pain was due to a “nonunion at one of the surgical
sites” and if further surgery was required, “the period of disability may . . . extend at
least 3-6 months.”124
In August 2007, Dr. Kline completed a lower extremities impairment
questionnaire listing the current diagnosis as subtalar joint nonunion, based on a June
2007 CT scan, which revealed incomplete fusion of the right subtalar joint.125 He
reported plaintiff suffered sharp and throbbing pain during ambulation and, while able to
Id. at 959-989.
Id. at 892-936 (showing prescriptions for Percocet and pain management referrals); see also id.
at 954 (detailing Dr. Devotta’s evaluation).
Id. at 954-55.
Id. at 957.
Id. at 815-22.
initially ambulate independently, could not sustain walking or other activities.126 Dr.
Kline noted plaintiff used a CAM walker and cane and could not climb stairs without a
handrail.127 Dr. Kline concluded plaintiff could sit for eight hours, walk or stand for one
hour, frequently lift between 0-20 lbs., occasionally lift 20-50 lbs., and never lift over 50
lbs.128 He also noted swelling of the right leg would require elevation above hip-level for
1-2 hours, twice daily.129 Dr. Kline indicated severe pain frequently interfered with
plaintiff’s attention and concentration,130 and denied any evidence of malingering.131 He
concluded plaintiff could tolerate low stress work, and required unscheduled work
breaks every two hours, with absenteeism of more than three times a month because of
the impairments.132 Dr. Kline’s further work limitations identified avoiding temperature
extremes, kneeling, bending, and stooping.133
Plaintiff began treatment with Dr. Ivins in 2007.134 Like Dr. Kline, Dr. Ivins treated
the foot and ankle pain.135 At the November 1, 2007 appointment, plaintiff rated his
lower leg pain at 9/10.136 On March 3, 2008, plaintiff informed Dr. Ivins that his pain
level remained the same.137
On March 26, 2008, plaintiff complained to Dr. Kline of persistent pain in the right
ankle and along the outer aspect of his right foot, which turned inward during
Id. at 817.
Id. at 817-18.
Id. at 817-19.
Id. at 820.
Id. at 820-21.
Id. at 1043,1045.
Id. at 995-1061.
Id. at 1043.
Id. at 1039.
ambulation.138 Plaintiff advised the CAM walker provided more secure ambulation.139
Dr. Kline’s examination found possible nonunion of the subtalar joint, ankle equinus, and
tenderness and tightness along the Achilles tendon.140 Based on these findings, Dr.
Kline recommended percutaneous tendo-Achilles lengthening to decrease
compensatory pronation at the subtalar joint, and to delay the nonunion repair because
the subtalar joint was presently not tender on motion.141
On March 31, 2008, plaintiff told Dr. Ivins the pain had not increased since his
last visit, for which 30 mg. Roxicodone was prescribed.142 Eleven days later, Dr. Kline
re-prescribed the same dosage.143
On April 22, 2008, plaintiff was admitted to Glasglow Medical Center for
percutaneous tendo-Achilles lengthening.144 On postoperative evaluation, Dr. Kline
noted improvement in ankle ROM, with pain well-controlled.145
In May 2008, Dr. Kline referred plaintiff to DYNAMIC Physical Therapy, where
treatment was provided by several different clinicians.146 On June 24, 2008, plaintiff
saw Sarah Price, MPT, about severe pain around the Achilles tendon and anterior and
medial ankle area and lateral numbness.147 On July 2, 2008, plaintiff informed
Christopher Goetz, PT, (“Goetz) that his right ankle pain decreased and ROM
Id. at 973.
Id. at 1038.
Id. at 936.
Id. at 952.
Id. at 976-77.
Id. at 866.
increased.148 One week later, however, plaintiff rated the severity of pain at 10/10.149
On July 11, 2008, Goetz reported plaintiff’s overall condition was “improving,” “with good
tolerance to [the] exercise program.”150 On July 16, 2008, plaintiff stated he was
“improving” with physical therapy, and Rivada noted minimal complaints of pain or
difficulty.151 On July 17, 2008, plaintiff told Goetz he felt “pretty good with little pain,”
and his functional ability had improved more than 50% since starting physical therapy.152
On July 22, 2008, plaintiff reported increased walking was less painful.153 July 25, 2008
was his last physical therapy appointment, when he complained of soreness due to
On October 7, 2008, plaintiff underwent another surgical procedure on his right
foot at Glasglow Medical Center.155
On October 30, 2008, Dr. Kline reported plaintiff had decreased edema in the
right foot with mild residual erythema.156 Moreover, on November 13, 2008, Dr. Kline
noted plaintiff still experienced pain in the right foot, but his condition had improved.157
The doctor prescribed additional Roxicodone.158 The following day, plaintiff complained
to Dr. Ivins that his level of pain was at 8/10 and needed his prescriptions refilled.159 At
Id. at 855.
Id. at 850.
Id. at 845.
Id. at 838-38.
Id. at 835-36.
Id. at 832.
Id. at 828, 826.
Id. at 949 (the operation involved revision of the second digit proximal interphalangeal joint
arthrodesis with K wire fixation and an exostectomy of the fifth metatarsal base).
Id. at 984.
Id. at 985.
Id. at 926-27.
Id. at 1032; see also id. at 927 (note from Dr. Kline to Dr. Ivins advising of the November 13,
2008 Roxicodone refill).
both his December 10 and December 30, 2008 appointments with Dr. Kline, plaintiff
reported the pain was localized to the outer aspect of his right ankle after periods of
ambulation.160 On December 12, 2008, plaintiff’s chief complaint to Dr. Ivins was he
needed further refills of his medications because of increased right foot and ankle pain
due to cold weather.161
X-rays taken June 16, 2009 revealed joint space narrowing and osteophytes
consistent with degenerative joint disease.162 Dr. Kline noted possible subtalar
nonunion, but determined no surgery was necessary.163
Roughly a year later, Dr. Kline reported in a letter that plaintiff’s condition
remained consistent with the information contained in his 2007 lower extremities
impairment questionnaire.164 Specifically, Dr. Kline concluded plaintiff suffered reduced
ROM in his right subtalar and ankle joints, tenderness in the right sinus tarsi and plantar
lateral heel, muscle atrophy in the right calf, swelling and sensory loss in the right foot
and lower leg, joint instability and crepitus in the right subtalar joint, and an abnormal
gait.165 Dr. Kline concluded plaintiff could not stand or walk for more than one hour in an
eight hour work day, required elevation of his right leg above hip level for one to hours
twice each day, and his condition would result in more than three absences from work
per month.166 Lastly, Dr. Kline stated plaintiff’s condition was ongoing and had existed
Id. at 986.
Id. at 1031.
Id. at 988.
Id. at 890.
since May 25, 2006.167
Dr. Kline did not see plaintiff again until May 4, 2011, when plaintiff complained of
a burning pain in his outer heel and along his right foot to the fourth and fifth digits,
which had been present for over two weeks; he denied any injury to the affected area.168
Dr. Kline’s examination revealed mild residual edema on the lateral aspect of the foot.169
Although Dr. Kline found no tenderness in the subtalar joint on attempted ROM, pinpoint
tenderness was evident at the plantar fascial insertion site, and on palpation along the
entire fascial band including submetatarsal VI and V.170 Dr. Kline noted no edema,
erythema, calor, ecchymosis, or interspace neuroma, and a negative Mulder sign.171
Assessment of recent radiographs of plaintiff’s right foot confirmed the subtalar joint
screw remained and no evidence of heel spurring.172 Based on these findings, Dr. Kline
suspected plantar fasciitis for which he administered injections and recommended
continued icing and elevation of the right leg, using his custom orthotics, and performing
daily plantar fascia stretching exercises.173 He also recommended plaintiff return within
three to four weeks if he remained symptomatic.174 This was plaintiff’s last reported
appointment with Dr. Kline.175
Plaintiff continued seeing Dr. Ivins regularly until August 2011.176 Dr. Ivins’
records indicate that, from February 2009 onward, plaintiff’s reported pain levels did not
Id. at 989.
Id. at 995.
rise above a 5/10 and he never complained of increased pain.177 In May 2011, Dr. Ivins
completed a Multiple Impairment Questionnaire listing plaintiff’s pain level as a 5/10 or
moderate.178 In the questionnaire, Dr. Ivins identified plaintiff’s primary symptoms as
chronic foot and ankle pain exacerbated by weight bearing and “sensory changes of
[the] area,” which would likely increase in a competitive work environment, and would
frequently interfere with concentration and attention.179 Dr. Ivins described plaintiff’s
pain as a “constant, deep pain, var[ying] in quality (sharp/dull), of a mechanical
nature.”180 Dr. Ivins further determined plaintiff suffered burning neuropathic pain which
“was not completely relieved with medication without unacceptable side effects.”181
In the context of an eight-hour work day, Dr. Ivins determined plaintiff was able to
sit for four hours and stand or walk for one hour or less, with absences more than three
times a month and unscheduled breaks every ten to fifteen minutes, each for a duration
of at least fifteen minutes.182 Although no medical condition prevented continuous
sitting, plaintiff should not stand or walk continuously.183 Dr. Ivins reported plaintiff could
occasionally lift and carry up to ten pounds, but never more than that amount.184 He
also noted no significant limitations in performing repetitive reaching, handling, fingering,
or lifting, and no limitations with grasping, turning, or twisting objects, fine finger and
hand manipulations, and arm reaching.185 He further concluded plaintiff’s narcotic
Id. at 995-1028.
Id. at 1045-52.
Id. at 1046, 1049-50.
Id. at 1046.
Id. at 1046-47.
Id. at 1047-51.
Id. at 1047-48.
Id. at 1048.
Id. at 1048-49.
medication caused mild psycho-motor impairment.186
Plaintiff has also undergone evaluations and treatment for substance abuse
issues and various mental impairments, including social functioning issues,
concentration and memory deficits, depression, and episodes of decompensation.
Frederick Kozma Jr., Ph.D.
Plaintiff was referred to Frederick Kozma, Jr., Ph.D., (“Dr. Kozma”) for evaluation
of his mental status.187 On January 23, 2006, Dr. Kozma conducted a Mini-Mental
Status Evaluation (“MMSE”) and clinical interview.188 Upon plaintiff’s arrival for the
appointment, Dr. Kozma noted plaintiff was “disheveled,” walked with a cane and his
movements were “generally slow and awkward.”189
Regarding his medical history, plaintiff related his right leg was amputated at age
eighteen due to a hunting accident, he suffered heart failure two years prior, and he was
blind in his right eye.190 Neither the record nor his representations to health care
providers support these statements.191 Plaintiff reported a number of recent deaths in
his family, and depression as evidenced by emotional lability, poor sleep, poor appetite,
and low energy.192 Plaintiff further claimed to experience “visual hallucinations” of his
dead relatives at night.193
D.I. 8 at 476-82.
Id. at 476.
Id. at 479.
Id. at 476.
Id. at 476-77.
Id. at 477.
Concerning family history, plaintiff reported a troubled childhood, and was raised
by his grandparents from age seven because his mother abandoned him.194 Absent
plaintiff’s claim of his mother’s mental instability, he was otherwise unaware of any other
psychological problems in his family.195 Plaintiff related he was married at age eighteen,
but the marriage ended seven years later.196 Plaintiff did not report any subsequent
marriages, and denied having any children.197
Plaintiff reported that, although he attended special education classes, he
received a high school diploma.198 Concerning employment, plaintiff claimed to have
worked at a gas station for two years,199 and his last full time job for fifteen years was
cleaning up commercial hazardous waste.200 Plaintiff admitted quitting several jobs
because of difficulties with co-workers.201 Plaintiff never served in the military.202
Plaintiff claimed he occasionally drank, and never experienced any blackouts or
delirium tremens from alcohol use. He denied using other substances.203 He admitted
smoking cigarettes “occasionally.”204 Regarding his criminal history, plaintiff related he
had been arrested once for “petty theft as a child.”205
During the evaluation, Dr. Kozma noted plaintiff was cooperative yet “somewhat
Id. at 478.
passive” because he “offered little information spontaneously.”206 Dr. Kozma further
observed plaintiff comprehended test questions and materials without difficulty.207 He
found plaintiff’s speech coherent and relevant, with a good vocabulary and a “variably
organized flow” of information.208 Dr. Kozma found plaintiff’s insight and judgment was
Plaintiff became tearful during the evaluation.210 Plaintiff advised that he cried
frequently and often thought about death, but denied he was suicidal.211 He also
complained of poor appetite, low energy, trouble sleeping, and hallucinations.212
Plaintiff claimed he often struggled with short-term memory,213 as evidenced by
occasionally forgetting his telephone number or taking his medications, and getting lost
when traveling home from familiar locations.214 Nevertheless, Dr. Kozma found his
“general fund of information” was adequate.215
Plaintiff’s MMSE score was a 20/30, which is classified as moderate cognitive
impairment.216 The MMSE results revealed he was partially-oriented.217 Although he
could recall the correct month, day of the week, and season, plaintiff could not
remember the date, year, and his location.218
Id. at 479.
Id. at 478.
Id. at 479.
The evaluation results showed plaintiff’s ability to register and recall information
was good. He repeated three out of three objects immediately, recalled three words
after a brief delay, correctly named common objects, repeated phrases, wrote
sentences, read and followed directions, and followed three-step-commands, but was
unable to correctly copy a diagram of interlocking pentagons.219
Based on his evaluation, Dr. Kozma diagnosed Major Depressive Disorder,
manifested by depressed mood, diminished interest and pleasure, low energy, sleep
disturbance, poor appetite, thoughts of death, visual hallucinations, and diminished
ability to think or concentrate.220 Dr. Kozma also noted plaintiff’s financial management
On February 5, 2006, Dr. Kozma completed a Psychological Functional
Capacities Evaluation Form in connection with his evaluation of plaintiff for the Delaware
Disability Determination Service (“DDS”).222 The form required evaluating the degree of
impairment from none to severe.223 Dr. Kozma rated plaintiff’s ability to relate to other
people as moderate, restriction of his daily activities as severe, deterioration of his
personal habits as mild, and constriction of interests as severe.224 Using the same
scale, Dr. Kozma rated plaintiff’s degree of impairment within the competitive labor-
Id. at 480.
Id. at 481. DDS is a state administered federal program that serves Delawareans who are
unable to work due to a disability. DDS is a state agency governed by the Social Security Administration.
DDS develops, adjudicates and processes disability claims for Social Security disability benefits.
Id.; see also id. at 482. The DDS form defines “moderately severe” as “an impairment which
seriously affects the ability to function; “moderate” as “an impairment which affects but does not preclude
ability to function;” and “mild” as “suspected impairment of slight importance which does not affect ability to
market setting as none for understanding simple, primarily oral, instructions; was
moderately severely impaired for carrying out instructions under ordinary supervision;
and was severely limited for sustaining work performance and attendance, coping with
work pressures, and performing routine, repetitive tasks under ordinary supervision.225
Dr. Kozma’s diagnosis was Major Depressive Disorder, without any chronic brain
syndrome or psychotic disorder.226 He rated plaintiff’s Global Assessment of Function
(“GAF”) score at 35.227
D. Fugate, Ph.D.
On February 16, 2006, D. Fugate, Ph.D., (“Dr. Fugate”) conducted a psychiatric
review in connection with plaintiff’s disability determination,228 and found he suffered
from depression.229 Dr. Fugate concluded plaintiff had mild functional limitation, which
caused some restriction of daily living activities and some difficulty in social functioning,
concentration, persistence, or pace, and would not experience decompensation of an
Based on his findings, Dr. Fugate concluded plaintiff’s mental impairment was
not severe, and he was mentally capable to perform routine work.231 Regarding Dr.
Id. at 482.
The GAF is a scale ranging from zero to one hundred used by mental health professions to
express an adult’s psychological, social and occupational functions. A GAF score of 61 to 70 indicates
some mild symptoms or only some difficulty in social, occupational or educational functioning; a score of
51-60 indicates mild symptoms or moderate difficulty in social, occupational, or educational functioning;
and a score of 41 to 50 suggests serious symptoms or serious impairment in social, occupational and
educational functioning. AMERICAN PSYCHIATRIC ASS’N, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL
DISORDERS-TEXT REVISION 34 (4th ed. 2000).
Id. at 483.
Id. at 486.
Id. at 493.
Id. at 483, 495.
Kozma’s findings, Dr. Fugate pointed out that plaintiff may have “present[ed] himself in
a manner that a lay person could be expected to act if he wanted the [examiner] to think
that he was psychiatrically impaired,”232 and noted several of his statements to Dr.
Kozma were not credible because they conflicted with the medical record.233 Therefore,
Dr. Fugate recommended Dr. Kozma’s evaluation be accorded little weight.234
On June 30, 2006, plaintiff presented to the Christiana Care emergency room
complaining of chest pain and suicidal thoughts.235 He related contemplating suicide
after learning of his wife’s infidelity,236 and feared hurting himself or others because of
his purported long history of poorly modulated anger impulsivity and behavioral
The mental status examination described plaintiff as cooperative and polite, with
speech of normal rate and volume.238 He was moderately tremulous with no ataxia.239
His thought processes were logical and his associations intact.240 Plaintiff described his
mood as depressed, which the examination confirmed.241 He expressed suicidal and
homicidal ideation, and his thought content was characterized by feelings of
Id. at 495.
Id. at 505.
Id. The record is unclear whether plaintiff is married because the alleged infidelity concerned
his second wife of five years. Id. Six months earlier, plaintiff told Dr. Kozma he had been married only
once and the marriage ended after seven years. In a consultation report from his June/July 2006
hospitalization, plaintiff reported he had one daughter in college, which is inconsistent with his responses
during his January 2006 evaluation by Dr. Kozma where he claim to have no children. D.I. 8 at 512.
Id. at 505.
Id. at 506.
hopelessness, helplessness, and worthlessness.242 The examination revealed no
evidence of hallucinations or delusions,243 and found plaintiff was alert, oriented, and his
memory intact.244 His intellectual functioning was within the average range, and his
abstract reasoning was “concrete.”245 The examination reported plaintiff’s attention
span was impaired, and his judgment poor due to impulsivity and substance abuse.246
In relating his history, plaintiff denied treatment for depression and admitted to
self-medicating with alcohol,247 by drinking between six and twenty-four cans of beer
daily.248 Plaintiff, however, later claimed to consume only two or three beers per day.249
Plaintiff admitted to episodic cocaine abuse,250 which was confirmed through lab tests
positive for cocaine and benzodiazepines.251 However, it was difficult for the examiners
to determine whether plaintiff was also abusing prescribed medications.252
Plaintiff was admitted to the Psychiatric Unit for individual, group, and adjunctive
therapy.253 Although he gradually reported less emotional dyscontrol and diminished
suicidal ideation, he continued to express concern about his impulsivity and possible
future violent or suicidal behavior.254 The hospital discharge summary states there was
obvious improvement within the first week after admission,255 as evidenced by his
Id. at 505.
Id. at 512.
Id. at 506.
Id. at 505.
Id. at 506.
Id. at 507.
“significant progress” and good participation in group therapy.256 He was more energetic
and optimistic, and his level of depression diminished, with no evidence of suicidal
ideation.257 Plaintiff was discharged on July, 7, 2006.258 In terms of follow-up, plaintiff
advised he would continue treatment at the Open Door Counseling Program, and with
Plaintiff was treated by Michael N. Marcus, M.D., of Christiana Care’s Department
of Psychiatry on two occasions in October and November 2006,260 who diagnosed
recurrent, severe major depression of a psychotic nature, PTSD, alcohol dependence,
anger, irritability, and explosiveness. Treatment was via medication.261
Glen D. Greenberg, Ph.D., ABPP
On September 19, 2006, plaintiff saw Glen D. Greenberg, Ph.D., ABPP, (“Dr.
Greenberg”) of The Neuroscience Institute of Delaware, who noted depressed mood,
clear and fluent speech, and organized, logical thoughts.262 His mental status exam
revealed orientation as to date, ability to memorize two of three words after a distracter,
significantly impaired serial sevens, and difficulty with subtraction.263 Plaintiff scored a 35
on the Beck Depression Inventory II, which is in the severe range.264 On a PostTraumatic Stress Disorder (“PTSD”) screening measure, plaintiff related witnessing the
9/11 terrorist attack in New York City, with other moderate to severe symptoms
Id. at 540.
Id. at 507.
Id. at 505.
Id. at 507.
D.I. 9 at 605.
Id. at 804-05.
Id. at 805.
Id. at 805, 807-08.
associated with the event.265 Dr. Greenberg diagnosed adjustment reaction with
depression, PTSD, alcohol and polysubstance abuse, and rule out (“R/O”) major
depression and antisocial personality disorder.266 Dr. Greenberg concluded plaintiff
remained at risk for suicide and recommended individual counseling, couples therapy,
and a possible referral to the University of Pennsylvania for severe PTSD treatment .267
Maurice Prout, Ph.D.
Maurice Prout, Ph.D., (“Dr. Prout”) completed a Social Security Administration
Psychiatric Review Technique form on February 23, 2007, identifying plaintiff’s
personality and substance addiction disorders as “not severe.”268 He found mild
limitation of activities of daily living, and in maintaining social functioning, concentration,
persistence, and pace.269 Dr. Prout estimated plaintiff would experience between one
and two episodes of decompensation, each of extended duration.270 It is unclear
whether Dr. Prout’s evaluation was the result of direct observation or review of the
Brian Simon, Psy. D.
Brian Simon, Psy.D., (“Dr. Simon”) examined plaintiff on February 5, 2007 for his
disability determination.271 Dr. Simon’s behavioral observations were as follows: a
strong smell of alcohol; fair attention and concentration; speech with normal rate,
volume, and articulation; poor memory; errors in performing serial calculations; limited
Id. at 805, 809.
Id. at 805-06.
Id. at 776.
Id. at 786.
Id. at 767.
abstraction ability; constricted affect; and no evidence of significant pain and limited
ambulation despite a boot on his foot.272 After conducting a clinical interview, Dr.
Simon’s diagnostic impression was malingering, alcohol abuse, antisocial personality
disorder, and a GAF score of 45, and he recommended outpatient psychiatric and
substance abuse treatment.273
On the psychological functional capacities evaluation form, Dr. Simon noted
moderate impairment in restriction of daily activities and constriction of interests, mild to
moderate impairment to relate to people, and moderately severe impairment in the
deterioration of personal habits.274 In the competitive labor-market, Dr. Simon reported
mild impairment in understanding simple, primarily oral instructions, and moderate
impairment in carrying out instructions, sustaining work performance, attendance in a
normal work-setting, coping with pressures of ordinary work, and performing routine,
repetitive tasks under ordinary supervision.275 Dr. Simon further concluded plaintiff was
incapable of handling his finances.276
Seth Ivins, M.D.
As previously discussed, plaintiff began treatment with Dr. Ivins as his primary
care physician in April 2007.277 While treatment notes indicate the majority of visits
concerned foot and ankle concerns, the doctor occasionally prescribed medication for
Id. at 768-69.
Id. at 770.
Id. at 771.
Id. at 772.
See id. at 1054.
On a Psychiatric/Psychological Impairment Questionnaire dated May 6, 2011, Dr.
Ivins diagnosed plaintiff’s condition as bipolar disorder I with psychotic features,279 with a
current GAF score of 60.280 Dr. Ivins noted the primary symptoms included “mood lability
with difficulty functioning in normal social situations and periods of psychosis, both drug
and non-drug induced.”281
Dr. Ivins’ evaluation of plaintiff’s restrictions in a competitive work environment
found moderate limitation to remember locations, work procedures and one or two step
instructions,282 and marked limitation to understand and remember detailed
instructions.283 He noted mild limitation in completing simple one or two step instructions,
avoiding hazards, traveling to unfamiliar places or using public transportation; moderate
limitation in setting realistic goals, independent planning, sustaining an ordinary routine
without supervision, performing within a schedule, maintaining regular and punctual
attendance; and marked limitation in carrying out detailed instructions, maintaining
attention/concentration for extended periods, and working with or in proximity to
others.284 Dr. Ivins reported unpredictable episodes of decompensation, accompanied
by hostile, aggressive, and inappropriate behavior.285
While Dr. Ivins indicated plaintiff was taking Seroquel XR, Cymbalta, and Xanax,
See generally D.I. 9 at 995-1043 (checking “no anxiety or depression” and occasionally noting
“mania”). But see id. at 1028 (noting presence of anxiety or depression and prescribing Cymbalta).
Id. at 1054-61.
Id. at 1054. Dr. Ivins noted the lowest GAF score in the past year was 30.
Id. at 1056.
Id. at 1057.
Id. at 1059.
he recorded no side effects.286 He found no evidence of malingering or reduced
intellectual functioning,287 and estimated plaintiff’s impairments would cause absences
from work more than three times a month.288 Dr. Ivins ultimately determined plaintiff
could perform low stress work, but cautioned even low level stressors were likely to
exacerbate his condition during episodes of decompensation or hypomania.289
The Administrative Law Hearing
Testimony of Plaintiff
Plaintiff testified he has been treating with Dr. Goldberg for approximately three
years, with office visits every six to eight months and if a problem arises.290 His present
medications include blood thinners and for treatment of hypertension and elevated
cholesterol.291 He related undergoing two catherization procedures.292
Plaintiff claimed to experience chest pain either daily or every other day, which is
primarily triggered by stress and overexertion from household activities, but also occurs
occasionally at rest.293 His chest pain lasts from fifteen to twenty seconds and is relieved
Plaintiff testified his episodes of chest pain are accompanied by shortness of
breath, which lasts for twenty minutes.295 Exertion also triggers shortness of breath,
Id. at 1057.
Id. at 1060.
Id. at 1060-61.
Id. at 1059.
Id. at 1152.
Id. at 1153.
Id. at 1154.
which he experiences while showering, cleaning, bending over, and sitting up.296
Plaintiff claimed he essentially does no daily living activities.297 He denied doing
any household chores, and his girlfriend cooks and does his laundry.298 Plaintiff testified
his driving is limited to doctor’s appointments.299
Regarding problems with his right calf, ankle, and foot, he claims to sit in a
recliner with his leg wrapped in an ice-pack and elevated at waist-level for most of the
day to minimize pain and swelling.300 He walks for about ten to fifteen minutes every few
hours when his leg becomes numb.301 Plaintiff used a cane at the hearing, which he
claims to need for walking and stability.302
Plaintiff testified he sleeps between four and five hours each night,303 but awakens
frequently because of his medications.304 As a result, he feels tired and “run down”
during the day.305 Plaintiff claimed difficulty with concentration and memory.306
Regarding medication side effects, plaintiff testified nitroglycerin causes severe
headaches, which last about fifteen minutes,307 and narcotic medications cause nausea
for an hour after ingestion.308
Plaintiff admitted his doctor strongly recommended he quit smoking,309 which he
Id. at 1156.
Id. at 1157.
Id. at 1155-56.
Id. at 1155.
Id. at 1156, 1159.
Id. at 1157.
Id. at 1158.
Id. at 1153-54.
Id. at 1158.
did six to eight weeks prior to the hearing.310
Testimony of Vocational Expert
Christina Beatty-Cody, a vocational expert, also testified at the administrative
hearing.311 The ALJ referenced the prior vocational expert’s testimony concerning
plaintiff’s past relevant work, which included employment as a heavy equipment
operator, classified medium and skilled, and a tree cutter helper, rated as heavy and
unskilled, with the skills from this prior work not transferable.312 The hypothetical person
the ALJ presented was a individual age 41 years, with a 12th grade education, who is
able to read, write and perform simple math, including addition and subtraction, is
sedentary, but could stand and walk for about two hours in an eight hour work day.
Based on the limitations in Dr. Kline’s Lower Extremities Impairment
Questionnaire, Beatty-Cody responded to the ALJ’s hypothetical that plaintiff’s pain,
fatigue, and other symptoms were severe enough to interfere with concentration, and
would reduce his productivity by 15 to 20 percent or more.313 She further noted plaintiff
could not tolerate low stress jobs,314 and his symptoms would cause more than three
absences per month, which are work preclusive.315
In response to plaintiff’s counsel’s question of how his client’s use of a cane and
the need to elevate his right leg twice a day for one to two hours would affect working,
Id. at 1160.
Id. at 1162; see also id. at 815-22 (Dr. Kline’s 2007 Lower Extremities Impairment
Questionnaire); see also id. at 890 (Dr. Kline’s 2010 letter stating his medical opinion remained consistent
with his responses in the 2007 questionnaire).
Beatty-Cody responded if such elevation occurred at work, and not during a break, it
would be work preclusive.316
The ALJ’s Decision
Based on the evidence and testimony, the ALJ determined in her December 2,
2011 opinion,317 that plaintiff was not disabled, and not entitled to DIB.318 The ALJ’s
findings are summarized as follows:
The claimant meets the insured status requirements of the Social
Security Act through March 31, 2007.319
The claimant has not engaged in substantial gainful activity since
September 30, 2004, the alleged onset date (20 CFR 404.1571 et.
seq., and 416.971 et. seq.).320
The claimant has the following severe impairments: posterior tibial
tendon disorder, status post gunshot wound, substance addiction
disorder, and depression (20 CFR 404.1520(c) and 416.920(c)).321
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1526, 416.920(d), 416.925, and
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a), except that he is limited to occasional postural activities.
In addition, the claimant must avoid temperature and humidity
extremes and can never climb ropes, ladders or scaffolds. Due to
the claimant’s mental impairment, the claimant is limited to simple,
Id. at 1163.
D.I. 8 at 24-37.
Id. at 37.
Id. at 26.
Id. at 27.
Id. at 28.
unskilled work that is not at a production pace.323
The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).324
The claimant was born March 7, 1963 and was 41 years old, which
is defined as a younger individual age 18-44, on the alleged
disability onset date. The claimant subsequently changed age
category to a younger individual, age 45-49 (20 CFR 404.1563 and
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).326
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2).327
Considering the claimant’s age, education, work experience, and
residual functioning capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).328
The claimant has not been under a disability, as defined in the
Social Security Act, from September 30, 2004, through the date of
this decision (20 CFR 404.1520(g) and 416.920(g)).329
A district court’s jurisdiction to review an ALJ’s decision regarding disability
benefits is controlled by 42 U.S.C. § 405(g). The Commissioner’s decision becomes
final when the Appeals Counsel affirms an ALJ opinion, denies review of an ALJ
Id. at 30.
Id. at 36.
Id. at 37.
decision, or when a claimant fails to pursue available administrative remedies.330 In the
instant matter, the Commissioner’s decision became final when the Appeals Counsel
affirmed the ALJ’s denial of benefits. Thus, this court has jurisdiction to review the ALJ’s
Plaintiff urges remand because the ALJ: (1) failed to follow the treating
physician’s rule; (2) failed to properly evaluate his credibility; and (3) erred by finding he
could perform other work.331
First, plaintiff contends the ALJ failed to accord proper weight to the medical
opinions of treating physicians, Drs. Kline and Ivins. The ALJ refused to give controlling
weight to the treating physicians’ opinions to the extent they conflicted with plaintiff’s
RFC, reasoning they are “not well supported by medical signs and laboratory findings
and are inconsistent with detailed, contemporaneous treatment records.”332 Plaintiff
alleges the ALJ failed to cite: (1) the specific medical records on which she relied as the
basis for finding the opinions inconsistent; (2) any other substantial evidence in
contradiction of the opinions; and (3) evidence from the record to support her RFC
determination.333 Plaintiff cites 20 C.F.R. § 404.1527(c)(2), which provides the
Commissioner will give controlling weight to a treating source’s opinion if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
Aversa v. Sec’y of Health & Human Serv., 672 F. Supp. 775, 777 (D.N.J. 1987); see also 20
C.F.R. § 404.905 (2002).
D.I. 12 at 6.
D.I. 8 at 33.
D.I. 12 at 19-20.
not inconsistent with other substantial evidence in . . . the case record.”334 Plaintiff
maintains the opinions of Drs. Kline and Ivins are well-supported by clinical and
diagnostic findings, and therefore, deserve controlling weight.335 He further contends
even if controlling weight was not required, the ALJ failed to indicate what weight was
afforded and to address necessary factors under 20 C.F.R. § 404.1527(c)(2)-(6).336
Second, plaintiff asserts the ALJ improperly assessed his credibility.337 Under the
two-step credibility process, the ALJ found his statements concerning intensity,
persistence, and the limiting effects of his symptoms as “not credible to the extent they
are inconsistent with the above residual functional capacity assessment.”338 Plaintiff relies
on SSR 96-7p, which requires an ALJ to determine credibility “based on a consideration
of the entire case record.”339 Plaintiff contends the ALJ erred by evaluating the
consistency of his statements against her own RFC, rather than against the record
evidence.340 In support, he references a recent Seventh Circuit decision, Bjornson v.
Astrue, which found that an ALJ’s application of her determination of a claimant’s ability to
work in determining credibility “gets things backwards.”341
Lastly, plaintiff asserts the ALJ erred in finding he could perform other work.342
Plaintiff contends the ALJ improperly relied on the VE testimony from the March 2008
hearing, which is outside of the record before this court and inconsistent with the Appeals
Id. at 17; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
D.I. 12 at 19.
Id.; see also 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
D.I. 12 at 21.
Id.; see also D.1. 8 at 31.
D.I. 12 at 21.
Id. at 22; see also Bjornson v. Astrue, 671 F.3d, 640, 645-46 (7th Cir. 2012).
D.I. 12 at 22.
Council’s order of remand for the ALJ to obtain additional VE testimony.343 Plaintiff claims
the ALJ’s hypothetical at the first hearing did not accurately describe his recognized
Defendant maintains the ALJ’s decision was based on substantial evidence in the
record, and, accordingly, should be affirmed because the ALJ: (1) properly weighed the
medical opinions of Drs. Kline and Ivins; (2) appropriately assessed plaintiff’s credibility;
and (3) reasonably relied upon VE testimony from the first hearing in concluding he could
perform other work in the national economy.
Defendant contends substantial evidence supports the ALJ’s finding that Drs. Kline
and Ivins’s opinions warranted less weight.345 Regarding Dr. Kline’s 2010 letter affirming
his earlier opinion, defendant argues the document cannot be afforded controlling weight
because it was drafted by plaintiff’s counsel and presented to Dr. Kline only for his
signature; plaintiff’s counsel is not an “acceptable medical source” under the regulations;
and the opinion is not based on any recent medical records because the letter was signed
in June 2010, and Dr. Kline’s last contact with plaintiff was June 2009.346 Defendant
further maintains Dr. Kline’s opinions are of little probative value, and accuses him of
merely documenting limitations for litigation purposes and adopting an “advocacy role” in
plaintiff’s application for benefits.347
Defendant also asserts the ALJ cited adequate evidence to explain her
Id. at 23.
Id. at 24.
D.I. 20 at 12-16.
Id. at 13.
determination that Drs. Kline and Ivins’ opinions warranted less weight, because their
opinions contradict each other; are inconsistent with their respective progress notes; and
constitute “mere checkbox forms.”348 Defendant relies on Mason v. Shalala, wherein the
Third Circuit recognized checkbox forms as weak evidence.349
Defendant argues the ALJ adequately assessed and explained her conclusions
regarding plaintiff’s credibility,350 as evidenced by his inconsistent statements throughout
the record, including his drug and alcohol usage and low earnings.351
Lastly, defendant asserts the ALJ properly determined plaintiff could perform other
work that exists in the national economy, arguing she reasonably relied upon VE
testimony from the first hearing as evidence of employability.352 Accordingly, the record
does not support all limitations suggested by Dr. Kline; therefore, the ALJ properly did not
rely on the VE testimony from the 2008 hearing.353 Defendant additionally maintains the
ALJ adequately accommodated plaintiff’s moderate restrictions in concentration and
social functioning, because she limited him to unskilled non-production pace jobs.354
Defendant relies on 20 C.F.R. § 404, subpt. P, app. 2 § 202.00(g), which recognizes the
primary work functions for unskilled work relates “to working with things,” rather than
STANDARD OF REVIEW
Id. at 14-15.
Id. at 14; see also Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993).
D.I. 20 at 16-20.
Id. at 17 (list of inconsistent statements throughout the record).
Id. at 21.
Id. See also 20 C.F.R. § 404, subpt. P, app. 2 § 202.00(g) (discussing primary functions of
unskilled work in the context of illiteracy or inability to communicate in English).
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.”356 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.357
This standard does not change merely because there are cross-motions for
summary judgment.358 Cross motions for summary judgement
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.359
“The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party.”360
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 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 drawn from it is one of fact to the jury.361
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R. CIV. P. 56(c)).
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
Rains v. Cascade Indus., Inc., 404 F.2d 241, 245 (3d Cir. 1968).
Krupa v. New Castle Cnty., 732 F. Supp. 497, 505 (D. Del. 1990).
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).
The United States 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 . . . This 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. 362
Overall, this test is deferential, and a court must give deference to agency
inferences, if supported by substantial evidence, even where acting de novo, the court
might have reached a different result.
The evidence, taken as a whole, must be sufficient to support a conclusion by a
reasonable person. The ALJ cannot ignore or fail to resolve conflicts created by
countervailing evidence. Evidence is not substantial if it is overwhelmed by other
evidence, such as that provided by treating physicians, or is merely conclusory.363
When countervailing evidence consists primarily of the claimant’s subjective
complaints of disabling pain, the ALJ “must consider the subjective pain and specify his
reasons for rejecting these claims and support his conclusion with medical evidence in
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986) (citations omitted).
Monsour Med. Ctr. v . Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986).
Matullo v. Brown, 926 F.2d 240, 245 (3d Cir. 1990).
Title II of the Social Security Act, 42 U.S.C. § 423(a)(l)(D), "provides for the
payment of insurance benefits to persons who have contributed to the program and who
suffer from a physical or mental disability."365 In order to qualify for DIB, a claimant must
establish he was disabled prior to the date he was last insured.366 A claimant is disabled
"only if his physical or mental impairment or impairments 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 which exists in the
In determining whether a person is disabled, the Commissioner is required to
perform a five-step sequential analysis.368 If a finding of disability or non-disability can be
made at any point in the sequential process, the review ends.369 At step one, the
Commissioner determines whether the claimant is engaged in any substantial gainful
activity. If the claimant is so engaged, a finding of non-disabled is required.370 If the
claimant is not so engaged, step two requires the Commissioner to determine whether the
claimant is suffering from a severe impairment or a combination of impairments that is
severe. If the claimant is not suffering from either, a finding of non-disabled is required.371
If the claimant’s impairments are severe, the Commissioner, at step three,
compares the claimant’s impairments to a list of impairments (the "listings") that are
Bowen, 482 U.S. at 140.
20 C.F.R. § 404.131.
42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir. 1999).
20 C.F.R. § 404.1520(a)(4).
20 C.F.R. § 404.1520(a)(4)(i).
20 C.F.R. §404.1520(a)(4)(ii).
presumed severe enough to preclude any gainful work.372 When a claimant’s impairment
or its equivalent matches an impairment in the listing, the claimant is presumed
disabled.373 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.374 At step four,
the Commissioner determines whether the claimant retains the RFC to perform his past
relevant work.375 A claimant’s RFC is what “an individual is still able to do despite the
limitations caused by [his] impairment(s)."376 "The claimant bears the burden of
demonstrating an inability to return to [his] past relevant work.”377
lf the claimant is unable to return to his past relevant work, step five requires the
Commissioner to determine whether the claimant’s impairments preclude him from
adjusting to any other available work.378 At this last step, the burden rests with the
Commissioner to show the claimant is capable of performing other available work existing
in significant national numbers and consistent with the claimant’s medical impairments,
age, education, past work experience and RFC before denying disability benefits.379 In
making this determination, the ALJ must analyze the cumulative effect of all the claimant’s
impairments, and often seeks the assistance of a vocational expert.380
Medical Opinions of Drs. Kline & Ivins
20 C.F.R. § 404.1520(a)(4)(iii); see also Plummer, 186 F.3d at 428.
20 C.F.R. § 404.1520(a)(4)(iii).
20 C.F.R. § 404.1520(e).
20 C.F.R.. § 404.1520(a)(4)(iv); see also Plummer, 186 F.3d at 428.
Fargnoli, 247 F.3d at 40.
Plummer, 186 F.3d at 428.
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.
Plaintiff contends the ALJ improperly weighed the medical opinions of treating
physicians, Drs. Kline and Ivins.381 An ALJ “evaluate[s] every medical opinion [she]
receives.”382 20 C.F.R. § 404.1527(c)(2) provides generally for more weight to be
afforded to treating sources because they often are able to provide “a detailed longitudinal
picture” of the claimant’s medical impairments, not available from “objective findings
alone” or individual medical reports; and if their opinions are “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and not inconsistent with the
other substantial evidence in the record,” they are given controlling weight. 383
An ALJ may reject a treating physician’s opinion “only on the basis of contradictory
medical evidence.”384 In those instances, “[e]ven where there is contradictory medical
evidence, . . . 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.”385 An ALJ's decision not to give a treating physician's opinion
controlling weight “must not automatically become a decision to give a treating physician's
opinion no weight whatsoever.”386
If the ALJ does not give the treating source’s opinion controlling weight, the
“[t]reating source medical opinions are still entitled to deference”387 and must be weighed
using the following factors:388 length of treatment relationship and the frequency of
D.I. 12 at 17-20.
20 C.F.R. § 404.1527(c).
Id. § 404.1527(c)(2).
Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000).
Gonzalez v. Astrue, 537 F. Supp. 2d 644, 660 (D. Del.2008).
Winters v. Colvin, C.A. No. 09-460-CJB, 2013 WL 5956246, at *18 (D. Del. Nov. 7, 2013)
(quoting Gonzalez, 537 F. Supp. 2d at 660)
SSR 96-2p, 1996 WL 374188, at *4 (July 2, 1996).
examination;389 nature and extent of the treatment relationship;390 support with the
relevant medical evidence;391 consistency with the record as a whole;392 specialization;393
and other factors which tend to support or contradict the opinion.394
The Third Circuit has stated that “[a]lthough we do not expect the ALJ to make
reference to every relevant treatment note in a case where the claimant . . . has
voluminous medical records, we do expect the ALJ, as the factfinder, to consider and
evaluate the medical evidence in the record consistent with his responsibilities under the
regulations and case law.”395
In Burnett v. Comm’r of Soc. Sec. Admin., the appellate court found the ALJ erred
by failing “to consider and explain his reasons for discounting all of the pertinent evidence
before him in making his residual functional capacity determination.”396 Although the ALJ
may determine credibility, she must identify the rejected evidence and explain her
reasons for discounting it.397 As the Third Circuit noted, “[i]n the absence of such an
indication, the reviewing court cannot tell if significant probative evidence was not credited
or simply ignored.”398
Here, the ALJ refused to accord Drs. Kline and Ivins’ medical opinions controlling
Id. § 404.1527(c)(2)(i).
Id. § 404.1527(c)(2)(ii).
Id. § 404.1527(c)(3).
20 C.F.R. § 404.1527(c)(4).
Id. § 404.1527(c)(5).
Id. § 404.1527(c)(6).
Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2000).
Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted).
See also Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (clarifying Burnett) (“Burnett does not
require the ALJ to use particular language or adhere to a particular format in conducting his analysis.
Rather, the function of Burnett is to ensure that there is sufficient development of the record and
explanation of findings to permit meaningful review.”).
Burnett, 220 F.3d at 121.
Id. (quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).
weight “to the extent that they are inconsistent with the residual functional capacity as
determined.”399 The ALJ’s justifications are the opinions “are not well supported by
medical signs and laboratory findings” and are “inconsistent with detailed,
contemporaneous treatment records.”400
While the ALJ was not bound by the physicians’ opinions based solely on their
status as treating sources, her findings must be based on substantial evidence in the
record, and her reasoning should be sufficiently explained so this court does not have to
guess regarding the evidence on which she relied.401 Although she summarized parts of
the medical record after deeming both treating sources’ opinions “uncontrolling,” the ALJ
failed to apply the required factors under § 404.1527(c)(2)-(6), and explain the weight
given to either opinion.402
Defendant contends the ALJ was not obligated to adopt either physicians’ opinion
because plaintiff’s counsel drafted Dr. Kline’s 2010 letter for his review and signature, and
the opinions were checkbox forms prepared for the purpose of litigation.403 Defendant
further notes gaps in treatment, internal inconsistencies within the opinions, and
contradictions between the opinions and the record.404 These comments are merely
attorney argument as to why Drs. Kline and Ivins’ opinions were not afforded controlling
D.I. 8 at 33; see also id. at 30-31(defining plaintiff’s RFC as “claimant has the residual
functional capacity to perform sedentary work . . . , except that he is limited to occasional postural
activities. In addition, the claimant must avoid temperature and humidity extremes and can never climb
ropes, ladders, or scaffolds. Due to the claimant’s mental impairment, the claimant is limited to simple,
unskilled work that is not at a production pace.”).
Id. at 33.
See Burnett, 220 F.3d at 121.
D.I. 8 at 31-35; see also id. at 32 (acknowledging the required factors, but citing incorrect
D.I. 20 at 12.
Id. at 14-16.
weight in absence of appropriate reasoning by the ALJ. As this court has recognized:
[i]t is not for Commissioner to make an after-the-fact argument in support of
the ALJ's decision. The analysis in Commissioner’s brief cannot substitute
for the ALJ’s analysis. Thus, these arguments can have no bearing on this
Court’s decision. The ALJ therefore did not offer any sufficient basis for
assigning [the physician’s] opinion “little weight.”405
Accordingly, the issue is remanded to the ALJ to apply the factors in 20 C.F.R. §
404.1527(c)(2)-(6) to explain why Drs. Kline and Ivins’ opinions were not given controlling
weight, and to provide the bases for the weight assigned to each treating sources’
Plaintiff argues the ALJ erred in evaluating the credibility of his subjective
complaints.406 In evaluating symptoms, the ALJ must “consider all symptoms, including
pain, and the extent to which [they] can reasonably be accepted as consistent with the
objective medical evidence and other evidence.”407
The regulations describe a two-step process for evaluating symptoms.408 First, the
ALJ must consider whether a “medically determinable impairment” exists that “could
reasonably be expected to produce” the alleged symptoms.409 Second, the ALJ must
evaluate the intensity and persistence of symptoms to determine the effect on capacity to
work.410 Under this evaluation, a variety of factors are considered, such as: (1) “objective
Griffies v. Astrue, 855 F. Supp. 2d 257, 272 (D. Del. 2012) (internal citation omitted).
D.I. 12 at 20.
20 C.F.R. § 404.1529(a).
SSR 96-7p (1996).
20 C.F.R. § 404.1529(b).
Id. § 404.1529(c).
medical evidence,”411 (2) “daily activities,”412 (3) “location, duration, frequency and
intensity” of symptoms,413 (4) “precipitating and aggravating factors,”414 (5) medication
prescribed for symptoms, including its effectiveness and side effects,415 (6) treatment,416
and (7) other measures used to relieve symptoms.417 In determining capacity to perform
basic work, the ALJ evaluates the claimant’s statements about intensity, persistence, and
limiting effects of symptoms in relation to the record as a whole.418 To assess the
credibility of a claimant’s statements, the ALJ “must consider the entire case record and
give specific reasons for the weight given to the individual's statements.”419 Social
Security Ruling 96-7p clarifies the ALJ’s obligations under the regulations:
The reasons for the credibility finding must be grounded in the evidence and
articulated in the determination or decision. It is not sufficient to make a
conclusory statement that . . . “the allegations are (or are not) credible.” . . .
The 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 [ALJ] gave to the individual's statements and the
reasons for that weight. This documentation is necessary in order to give
the individual a full and fair review of his or her claim, and in order to ensure
a well-reasoned determination or decision.420
Here, while the ALJ conceded plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms,” she found his statements
concerning the intensity, persistence, and limiting effects of his symptoms “not credible to
Id. § 404.1529(c)(2).
Id. § 404.1529(c)(3)(i).
Id. § 404.1529(c)(3)(ii).
Id. § 404.1529(c)(3)(iii).
Id. § 404.1529(c)(3)(iv).
Id. § 404.1529(c)(3)(v).
Id. § 404.1529(c)(3)(vi).
Id. § 404.1529(c)(4).
SSR 96-7p (1996).
SSR 96-7p (1996).
the extent they are inconsistent with the above [RFC] assessment.”421 Plaintiff contends
the ALJ failed to consider the factors outlined in § 404.1529 and incorrectly evaluated the
credibility of his statements against the ALJ’s own RFC determination, rather than against
the record as a whole.422
Plaintiff relies on Bjornson v. Astrue,423 where the Seventh Circuit criticized the
same language used by the ALJ in basing credibility on RFC as “boilerplate language”
and putting “the cart before the horse.”424 Yet, the Seventh Circuit has since recognized
“[i]f the ALJ has otherwise explained his [or her] conclusion adequately, the inclusion of
this language can be harmless.”425 While “[i]t would have been preferable for the ALJ to
explicitly go through the SSR 96–7p analysis,”426 she nevertheless articulated reasons to
support her negative credibility determination, including instances of malingering,
substance abuse, reports of mild-to-moderate pain, inconsistency as to frequency of pain,
conflicting progress notes, and gaps in treatment.427 The Third Circuit has held, “where . .
. the ALJ has articulated reasons supporting a credibility determination, that determination
will be entitled to ‘great deference.’”428 Thus, given this deferential standard, “the Court
cannot say there is not substantial evidence to support the ALJ's [credibility]
D.I. 8 at 31.
D.I. 12 at 21-22.
671 F.3d 640, 644 (7th Cir. 2012)
D.I. 12 at 21-22; see also Bjornson, 671 F.3d at 644-46.
See Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012) (clarified Bjornson).
Mayo v. Astrue, CIV.A. 10-792-RGA, 2012 WL 3185418 at *10 (D. Del. Aug. 3, 2012)
(upholding negative credibility determination where “to the extent testimony conflicts with above RFC
assessment,” the standard was employed and followed by discussion of record).
D.I. 8 at 31-35; see also Mayo, 2012 WL 3185418 at *10 (finding ALJ’s brief recitation of facts
that merely “fit into” rubric provided by the regulations sufficient).
Horodenski v. Comm'r of Soc. Sec., 215 F. App'x 183, 189 (3d Cir. 2007) (quoting Atlantic
Limousine, Inc. v. NLRB, 243 F.3d 711, 718 (3d Cir.2001)).
Plaintiff’s final argument is the ALJ erred in relying on VE testimony from the March
2008 hearing, the transcript of which is outside the record before this court.430
Additionally, plaintiff maintains the 2008 hypothetical is deficient because it does not
consider his moderate mental limitations recognized in the 2011 decision.431 Defendant
counters the ALJ was not obligated to rely on VE testimony from the 2011 hearing, and a
work capacity limited to unskilled jobs without a production pace requirement sufficiently
accommodates plaintiff’s moderate mental limitations.432
Section 405(g) requires “the Commissioner of Social Security . . . file a certified
copy of the transcript of the record including the evidence upon which the findings and
decision complained of are based.”433 Here, the ALJ explicitly based her conclusion that
plaintiff is “capable of making a successful adjustment to other work that exists in
significant number in that national economy” on VE testimony from the March 2008
hearing.434 No copy of the transcript of that hearing was provided to or filed with the
court.435 As a result, the court cannot determine whether the ALJ’s decision as to
plaintiff’s RFC is supported by substantial evidence.436 The ALJ must provide the basis
Mayo, 2012 WL 3185418 at *10.
D.I. 12 at 23; see also D.I. 8 at 36-37 (citing 2008 VE testimony). See also id. at 73 (order of
Appeals Council requiring ALJ to “[o]btain evidence from a [VE] to clarify the effect of the assessed
limitations on the claimant’s occupational base.”).
D.I. 12 at 24; D.I. 8 at 29-30.
D.I. 20 at 21; D.I. 8 at 30-31.
42 U.S.C. § 405(g) (emphasis added).
D.I. 8 at 36-37.
D.I. 8 Court Transcript Index (lacking March 17, 2008 hearing transcript).
42 U.S.C. § 405(g); see also Smith v. Astrue, 961 F. Supp. 2d 620, 658 (D. Del. 2013) (“In the
end, the Court is left with an unclear record regarding the VE's testimony—the only evidence relied upon
by the ALJ in determining that there were a significant number of jobs in the national economy [claimant]
for her conclusion on evidence found in the record.437 Therefore, remand is
Assignment to a Different ALJ
In a single closing remark, plaintiff suggests if remanded, the court should order
the Commissioner to assign this matter to a different ALJ.439 There is no evidence that
plaintiff raised any claim of bias either at the administrative level or before this court.
The Third Circuit in Ginsburg v. Richardson, found “[I]f the appellant felt that [he]
was being deprived of a fair hearing, the proper procedure would have been for [him] to
request the examiner to withdraw from the case. Thus, appellant's failure to request
withdrawal of the examiner during the hearing or in [his] request for review before the
Appeals Council constitutes a waiver of [his] right to object to the conduct of the
Based on the absence of any evidence that plaintiff requested withdrawal of the
ALJ during the hearing or before the Appeals Council, he waived his right to object at this
stage of the proceedings.
ORDER AND RECOMMENDED DISPOSITION
For the reasons contained herein, IT IS RECOMMENDED that:
1. Plaintiff’s motion for summary judgment (D.I. 11) be GRANTED in part with the
matter remanded for further consideration consistent with this Report and
could perform, given his RFC. In order to affirm the ALJ's decision . . . the Court would have to speculate .
. . [which] the Court cannot do . . . . Under these circumstances, remand is appropriate . . . .”).
Plummer, 186 F.3d at 431.
Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir.1987).
D.I. 12 at 20.
Ginsburg v. Richardson, 436 F.2d 1146, 1151-52 (3d Cir. 1971) (citing 20 C.F.R. § 404.922).
2. Defendant’s cross motion for summary judgment (D.I. 19) be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), FED. R. CIV. P. 72 (b)(1), and D. DEL.
LR 72.1, any objections to the Report and Recommendation shall be filed within fourteen
(14) days limited to ten (10) pages after being served with the same. Any response shall
be limited to ten (10) pages.
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 found
on the Court’s website (www.ded.uscourts.gov.)
May 12, 2014
/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE
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