Solomon v. Astrue

Filing 17

REPORT AND RECOMMENDATIONS re 11 MOTION for Summary Judgment filed by Kenneth Arnett Solomon, 14 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 11/8/2013. Signed by Judge Mary Pat Thynge on 10/22/13. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KENNETH ARNETT SOLOMON
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY
Defendant.

:
:
:
:
:
:
:
:
:
:
:

C. A. No. 12-1406-RGA-MPT

REPORT AND RECOMMENDATION
I.

INTRODUCTION
On November 7, 2012, plaintiff Kenneth Arnett Solomon (“plaintiff”) filed this

action against defendant Carolyn W. Colvin, Acting Commissioner of Social Security
(“defendant”).1 Plaintiff seeks judicial review, pursuant to 42 U.S.C. § 405(g), of a
decision by defendant denying his application for disability insurance benefits (“DIB”)
under Title II of the Social Security Act. Presently before the court are the parties’
cross-motions for summary judgment. For the reasons set forth below, the court
recommends plaintiff’s motion for summary judgment be granted, defendant’s crossmotion for summary judgment be denied, and remand to the ALJ for further
consideration.
II.

BACKGROUND
A.

1

Procedural History

Carolyn W. Colvin became the Commissioner of Social Security on February 13, 2013, after this
proceeding was initially filed. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure (“FED. R.
CIV. P.”), Carolyn W. Colvin replaced the previous Commissioner, Michael J. Astrue, as defendant in this
case.

On December 29, 2009, plaintiff applied for DIB2 alleging disability since October
26, 2009, due to low back pain and depression.3 Plaintiff’s application was initially
denied on May 12, 2010, and after reconsideration on September 28, 2010, plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”) on October 22, 2010.4
On August 18, 2011, ALJ Judith Showalter held a video hearing at which plaintiff,
who was represented by counsel, and a vocational expert (“VE”) appeared and
testified.5 In a decision dated September 19, 2011, the ALJ found plaintiff not disabled.6
On September 14, 2012, the Appeals Council denied plaintiff’s request for review of the
ALJ’s decision,7 making the ALJ’s decision the final decision of the Commissioner.
On November 7, 2012, plaintiff filed a complaint seeking judicial review of the
ALJ’s September 19, 2011 decision.8 On April 9, 2013, plaintiff filed a motion for
summary judgment.9 In response, on May 8, 2013, defendant filed a cross-motion for
summary judgment.10
B.

Non-Medical History

Plaintiff was born on February 15, 1962.11 He was forty-seven years old at the
onset of his alleged depression and back disorder.12 He obtained a GED in 1989, and
did not attend special education classes while in school.13 He worked in the past as a
2

D.I. 9 at 917-18.
Id. at 18-19.
4
Id. at 18; D.I. 12 at 1.
5
D.I. 9 at 879-916.
6
Id. at 18-30.
7
Id. at 1-6, 14.
8
D.I. 1.
9
D.I. 11.
10
D.I. 14.
11
D.I. 9 at 884.
12
See id. See also D.I. 12 at 2.
13
D.I. 9 at 885-86.
3

2

mail handler (semiskilled and light work as both generally and actually performed) and
cleaner (unskilled and heavy work as generally performed and unskilled and medium
work as actually performed).14
The relevant time period for purposes of review in this case is October 26, 2009,
plaintiff’s alleged disability onset date, through September 19, 2011, the date of the
ALJ’s decision.15
C.

Medical History
1.

Pre-Onset Date

Plaintiff served in the Army from May 4, 1979 to August 1, 1979 and from June
25, 1983 to December 12, 1984.16 In 1983, he injured his back in a service-related Jeep
accident and, in subsequent years, reported periodic exacerbations of low back pain.17
He also has a history of depression, anxiety, and cocaine, crack, marijuana, heroin,
opioid, and alcohol abuse.18 Plaintiff was employed as a housekeeper at the
Wilmington Veterans Administration Medical Center (“WVAMC”)–where he has received
virtually all of his medical care in this case–beginning in March 2008, after transferring
to that facility from the Philadelphia Veterans Administration Medical Center (“PVAMC”),
where he also worked as a housekeeper and previously received his medical care.19
On April 3, 2008, Robert Dewey, NP-C, a nurse practitioner at WVAMC and

14

Id. at 911-12, 996-97, 1031-35. Discussion of plaintiff’s past work is limited, since the ALJ
conceded plaintiff cannot perform any of his past relevant work. Id. at 29.
15
See infra Part II.C.
16
D.I. 9 at 976, 1992.
17
Id. at 1454.
18
Id. at 1456, 1482, 1500, 1504, 1509.
19
Id. at 1456, 1499, 1504.

3

plaintiff’s primary care treating source, saw plaintiff for the first time.20 Plaintiff stated he
was previously treated for substance abuse as an inpatient and was now using drugs
again.21 Nurse practitioner Dewey noted plaintiff’s history of low back pain, alcohol and
drug abuse, depression, and anxiety, and at plaintiff’s request, referred him for a
substance abuse evaluation.22
On April 25, 2008, Wendy Witmer, LCSW, performed a substance abuse
assessment.23 Plaintiff told Witmer he had not used alchohol, crack cocaine, or
marijuana in more than a month.24 Witmer noted plaintiff was presently assessed with
40 percent service-connected disability due to a back strain.25 Following an interview
and mental status examination, Witmer diagnosed depression and polysubstance
abuse; assigned plaintiff a global assessment of functioning score (“GAF”) of 65,
reflective of only mild or moderate symptoms or limitations; and referred him to both a
psychologist and psychiatrist at WVAMC.26
On June 19, 2008, Michelle Washington, Ph.D., a psychologist, saw plaintiff for
the first time.27 She indicated plaintiff had recently been discharged from MeadowWood
Hospital following a voluntary admission resulting from an angry altercation with his

20

Id. at 40.
Id. at 1504.
22
D.I. 9 at 1505.
23
Id. at 1498-1503.
24
Id. at 1500.
25
Id. at 1498.
26
Id. at 1503. The GAF scale ranges from zero to 100 and is used by a clinician to indicate
overall judgment of a person’s psychological, social, and occupational functioning on a scale devised by
the American Psychiatric Assocation. AMERICAN PSYCHIATRIC ASS’N, DIAGNOSTIC & STATISTICAL MANUAL OF
MENTAL DISORDERS-TEXT REVISION 34 (4th ed. 2000). A GAF of 61 to 70 is assigned to a person who has
only “some mild” symptoms or only “some” difficulty in social, occupational, or school functioning, but
generally functions “pretty well” and has some meaningful relationships. See id.
27
D.I. 9 at 1480-82.
21

4

WVAMC housekeeping supervisor.28 Dr. Washington’s clinical impressions were major
depression, anxiety disorder, and cocaine, opioid, and alcohol dependence, and she
assessed plaintiff with a GAF score of 55.29
On June 30, 2008, John Donnelly, M.D., a psychiatrist, saw plaintiff at WVAMC.30
Plaintiff told Dr. Donnelly he was no longer using drugs or alcohol and was attending AA
meetings.31 The results of Dr. Donnelly’s mental status examination of plaintiff were
essentially normal.32 Dr. Donnelly’s Axis I diagnoses were major depression, anxiety
disorder, and cocaine, opioid, and alchol dependence, and he assigned plaintiff a GAF
score of 55.33 Dr. Donnelly also renewed plaintiff’s prescriptions for Trazodone and
Fluoxetine.34
On July 23, 2008, plaintiff told Dr. Washington he had used cocaine, alcohol, and
marijuana for two days the previous week.35
On April 3, 2009, plaintiff told Dr. Washington he was experiencing job-related
stress, financial difficulties, and back pain, but had not used drugs or alcohol for nine
months and was now attending AA/NA meetings.36 Plaintiff’s mental status evaluation
was benign, and Dr. Washington counseled plaintiff on the interaction between his
depression and substance abuse.37

28

Id. at 1482, 1489.
Id. at 1482. A GAF score of 51 to 60 indicates an individual has moderate symptoms or
moderate difficulty in social, occupational, or school functioning. AMERICAN PSYCHIATRIC ASS’N, supra note
26, at 34.
30
D.I. 9 at 1479-80.
31
Id. at 1479.
32
Id. at 1480.
33
Id. at 1482.
34
Id. at 1479-80.
35
Id. at 1476.
36
D.I. 9 at 1414.
37
Id. at 1415.
29

5

On October 2, 2009, shortly before his onset, plaintiff complained of increased
low back pain, which prevented him from working.38 An examination revealed pain on
palpation of the sacral area, and his medications were refilled.39 On October 9, 2009,
plaintiff told Dr. Donnelly his housekeeping job was “stressing him out,” and Dr.
Donnelly again assigned plaintiff a GAF score of 55.40
2.

Post-Onset Date

Plaintiff alleges his disability started on October 26, 2009.41 He also reported he
stopped working on that date.42
a.

Examinations at WVAMC

On November 10, 2009, Dr. Malhotra performed a physical examination of
plaintiff which showed he had a normal gait; no focal neurological deficits; full forward
flexion in the trunk of the body, with limited extension and side bending; and,
tenderness over the right lumbar facets.43 Dr. Malhotra noted plaintiff demonstrated
pain behavior, moved slowly and awkwardly, and had difficulty lifting his legs off the
examination table.44 Dr. Malhotra diagnosed plaintiff with chronic low back pain due to
mild spondylosis and left lower extremity pain of unclear etiology, and she cleared
plaintiff to return to work on November 12, 2009.45 However, plaintiff stated he tried to
return to work, but was unable to do so on that or the previous day.46

38

Id. at 1129.
Id. at 1130.
40
Id. at 1360.
41
Id. at 974.
42
D.I. 9 at 888-91, 995-96, 974.
43
Id. at 1126.
44
Id.
45
Id. 1126-27.
46
Id. at 1122.
39

6

On December 3, 2009, plaintiff was seen for a follow-up visit at WVAMC in
connection with his chronic back pain.47 He reported suicidal thoughts, stress related to
his job, low back pain, guilt, and difficulty sleeping.48 He denied homicidal ideation,
psychotic features, or actual suicide attempt.49 Plaintiff was evaluated, kept overnight,
and discharged the following morning in stable condition.50
On December 24, 2009, Dr. Washington examined plaintiff and reported a
depressed mood and anxiety.51 In addition, Dr. Washington performed a mental status
examination and gave plaintiff the opportunity to ventilate.52 Plaintiff stated his “physical
and emotion issues, ‘make [him] not feel like a man.’”53 Dr. Washington reported
plaintiff had an anxious, depressed, and tearful mood, but otherwise was calm,
cooperative, appropriately dressed, and no suicidal or homicidal ideation.54
On January 19, 2010, Dr. Washington reported plaintiff’s family history.55 She
listed “traumatic events” in plaintiff’s life including his mother being abused, witnessing
his brother death, and his nephew’s suicide by hanging.56 His father was noted to be an
alcoholic.57
On February 3, 2010, plaintiff underwent a neurology evaluation with Dr.
Hanspal, where he reported low back pain with a numbing sensation, no weakness in

47

Id. at 1227.
D.I. 9 at 1227.
49
Id.
50
Id. at 1227, 1230.
51
Id. at 1105.
52
Id. at 1590.
53
Id.
54
D.I. 9 at 1590.
55
Id. at 1091.
56
Id.
57
Id.
48

7

the left leg, and taking opioids to control the pain.58 He walked using a cane. The
examination revealed plaintiff leaned to the right while seated, had tenderness in the
right lumbar region at L4-5, and experienced pain in the trigger areas.59 Dr. Hanspal’s
diagnosis was chronic back pain with no evidence of radiculopathy, and he administered
Lidocaine trigger point injections. During a follow-up visit on February 9, plaintiff
reported no improvement.60
On February 10, 2010, Dr. Washington completed a Certification of Health Care
Provider under the Family and Medical Leave Act (“FMLA”).61 His diagnoses included
major depressive disorder evidenced by a daily depressed mood most of the day,
markedly diminished interests in activities, fatigue/loss of energy, feelings of
worthlessness, diminished ability to concentrate, and recurrent suicidal ideation.62 Dr.
Washington concluded plaintiff was unable to work full-time indefinitely due to his
condition.63 Treatment included psychotherapy and medication management.64
On March 4, 2010, plaintiff had a follow-up visit with Nurse Practitioner Dewey for
his back pain.65 Plaintiff reported neither morphine nor physical therapy had improved
his pain, and advised he was limiting his intake of pain medication due to excessive
sweating and diarrhea.66 He was directed to wean off opioid medication in light of the
lack of response.67 Dewey opined on the FMLA form that plaintiff was unable to work a
58

Id. at 1260.
Id. at 1260-61.
60
D.I. 9 at 1258.
61
Id. at 1176-78.
62
Id. at 1176.
63
Id.
64
Id. at 1177.
65
Id. at 1250.
66
D.I. 9 at 1250.
67
Id. at 1253.
59

8

full-time job for an indefinite period of time due to back pain.68
Plaintiff attended physical therapy at WVAMC from approximately December
2009 to March 2010.69 Treatment modalities included ultrasound, massage, moist heat,
manual therapy, and therapeutic exercise.70 The physical therapist noted plaintiff’s low
back pain was due to mild spondylosis, and usually felt “good” after physical therapy
session. Plaintiff, however, reported no overall improvement in his back pain upon
discharge from therapy on March 16, 2010.71
b.

Brian Simon, Psy.D.–SSA Consultative Psychologist

On March 30, 2010, Dr. Simon performed a consultative psychological evaluation
at the request of the Social Security Administration (“SSA”).72 Plaintiff reported the
following: a history of back problems and depression since his vehicular accident in
1983;73 past hospitalizations for suicidal ideation on three occasions; currently receiving
mental health treatment at WVAMC; and presently experiencing poor energy and
motivation, difficulty sleeping, daily crying spells, poor appetite, and increased stress.74
Plaintiff also advised smoking cigarettes on a daily basis, but denied any alcohol or illicit
drug consumption for twenty months.75 The evaluation revealed plaintiff to be fully
oriented, guarded, and reserved, and displayed fair concentration, attention, good eye
contact, a depressed mood and constricted affect. Plaintiff was found to have fair-to-

68

Id. at 1173.
Id. at 1900-11, 1915-21.
70
Id.
71
Id. at 1900, 1921.
72
D.I. 9 at 1132-36.
73
Id. at 1132.
74
Id. at 1132-33.
75
Id. at 1133.
69

9

poor judgment and insight; coherent, relevant, and goal-directed speech; an appropriate
activity level; limited abstraction ability; no signs of hyperactivity; and a good immediate
memory with poor short-term memory.76 Plaintiff denied any hallucinations; or feeling
actively suicidal. He used a cane for ambulation; was unable to perform serial
calculations without any errors; and did not appear anxious.77 Dr. Simon’s Axis I
diagnoses were major depressive disorder and polysubstance dependence, in full
sustained remission. He assigned plaintiff a GAF score of 48, indicative of
serious/borderline moderate symptoms of limitations.78
In his report dated March 30, 2010, Dr. Simon opined plaintiff had a moderately
severe impairment in sustaining work performance and attendance in a normal work
setting and coping with pressures of ordinary work.79 However, he found plaintiff only
had moderate impairment in carrying out instructions and performing routine, repetitive
tasks under ordinary supervision.80 Dr. Simon also noted only a mild impairment to
understand simple, primarily oral, instructions.81
c.

Brian L. Brice, M.D.–SSA Consultative Examiner

On April 2, 2010, Dr. Brice performed a consultative physical examination of
plaintiff at the behest of the SSA. At that time, plaintiff reported a history of persistent
and radiating low back pain and numbness, depression, and drug addiction.82 Dr.
76

Id. at 1134-35.
Id.
78
D.I. 9 at 1136. A GAF score of 41 to 50 indicates an individual has serious symptoms or serious
impairment in social and occupational functioning. AMERICAN PSYCHIATRIC ASS’N, supra note 26, at 34.
79
D.I. 9 at 1138. “Moderately severe” means an impairment which seriously affects ability to
function. Id.
80
Id. “Moderate” means an impairment which affects but does not preclude ability to function.
81
Id. “Mild” means suspected impairment of slight importance which does not affect ability to
function.
82
Id. at 1153.
77

10

Brice’s examination revealed plaintiff was able to make smooth transfers, but had an
antalgic gait and walked with a cane.83 He concluded plaintiff could perform full-time
sedentary work with customary breaks; should avoid activities that require lifting,
bending, and prolonged standing; and be permitted to use a single-point cane and back
brace for regular work duty.84
d.

Jane Brandon, Ph.D. & Carlene Tucker-Okine,
Ph.D.–State Agency Medical Consultants

On April 1, 2010, Dr. Brandon reviewed the record as of that date, including Dr.
Simon’s consultative report, and concluded plaintiff’s depression and substance
addiction disorder caused only mild restrictions in his activities of daily living; only mild
difficulties maintaining social functioning; moderate difficulties in maintaining
concentration, persistence, or pace; and noted one or two repeated episodes of
decompensation, each of an extended duration.85 Dr. Brandon also considered
plaintiff’s ability to perform certain work-related mental activities by completing a
“Summary Conclusions” Worksheet.86 Out of the twenty mental activities listed therein,
Dr. Brandon determined plaintiff had no significant limitations in sixteen activities and
only moderate limitations in the remaining four.87 With respect to his mental residual
functional capacity (“RFC”), Dr. Brandon concluded plaintiff’s mental impairments did
not preclude him from engaging in routine workplace tasks.88
On September 14, 2010, Dr. Tucker-Okine completed a Psychiatric Review
83

Id.
Id.
85
D.I. 9 at 1139-49.
86
Id. at 1150-51.
87
Id.
88
Id. at 1152.
84

11

Technique89 and a Medical RFC Assessment90 affirming Dr. Brandon’s April 1, 2010
opinions.91
e.

Carl Bancoff, M.D. & Anne Aldridge, M.D.–State Agency
Medical Consultants

On May 11, 2010, Dr. Bancoff completed a Physical RFC Assessment.92 Dr.
Bancoff opined plaintiff could occasionally lift and/or carry 20 pounds, frequently lift
and/or carry 10 pounds, stand and/or walk for at least 2 hours, and sit for about 6 hours
in an 8-hour workday.93 He found plaintiff could occasionally climb ramps or stairs,
balance, stoop, kneel, crouch, and crawl,94 but should never climb ladders, ropes, or
scaffold,95 and avoid concentrated exposure to cold, extreme heat, and hazards.96
On September 22, 2010, Dr. Aldridge completed a case analysis affirming Dr.
Bancoff’s May 11, 2010 opinion.97
f.

Department of Veterans Affairs (“VA”) Decision

On August 9, 2010, the VA ruled plaintiff’s major depressive disorder was 70
percent disabling as of December 2009, and plaintiff was entitled to a monthly benefit
amount of $1,547.00 beginning on January 1, 2010.98
D.

Administrative Hearing Testimony
1.

Plaintiff’s Testimony

89

Id. at 1513-23.
Id. at 1524-26.
91
See supra notes 89-90 and accompanying text.
92
D.I. 9 at 1157-64.
93
Id. at 1158.
94
Id. at 1159.
95
Id.
96
Id. at 1161.
97
Id. at 1527.
98
D.I. 9 at 1992-95.
90

12

Plaintiff testified he stopped employment in October 2009 because of his inability
to work on a regular basis.99 He described back and leg pain with numbness radiating
down both legs, with swelling, and increased pain with any activity.100 He rated his pain
as five to nine on a ten-point scale, which had worsened over time, despite treatment.101
He can walk no more than a few minutes without pain.102 He has excruciating pain
when standing for one hour; can sit for only one hour; and can lift about five pounds.
He does home exercises.103
Plaintiff testified he has a history of substance abuse; however, he denied using
alcohol at the time of the hearing, except for an occasional beer.104 He experienced
mental health problems and wanted to kill himself every day, with medications
suppressing such urges.105 He has problems with memory and concentration, and
difficulty sleeping.106 He has a sponsor through Narcotics Anonymous, but he does not
attend meetings because of discomfort with standing.107
He lives with his wife and granddaughter, but isolates himself.108 He can manage
his personal hygiene, but his wife does all the cooking, and he does not do any
household chores.109 His wife and daughters do the grocery shopping.110 He has not
been out to eat for the past five months; however, he went to the beach once with his

99

Id. at 890.
Id. at 891.
101
Id. at 893.
102
Id. at 901.
103
Id. at 900-02, 909.
104
D.I. 9 at 896-97.
105
Id. at 899-900.
106
Id. at 902.
107
Id. at 896-97.
108
Id. at 885, 907.
109
Id. at 903.
110
D.I. 9 at 904.
100

13

granddaughter, which was very difficult.111
2.

VE’s Testimony

The VE testified a hypothetical individual with plaintiff’s limitations and
impairments, including his age, education, and work history, could perform simple, light
unskilled work,112 including a control worker,113 final inspector,114 and hand bander.115
The unskilled, sedentary jobs such a person couls perform included dial marker,116 type
copy examiner,117 and bench hand.118 The VE opined an individual similar to plaintiff is
limited to light exertional work, not at a production pace, with the ability to perform
occasional postural activities, except climbing ladders, ropes, or scaffolds, and should
avoid concentrated exposure to temperature extremes, hazards, and vibration.119 The
VE further testified an individual who needed more than a lunch break and two fifteen
minute breaks each day120 or who was absent more than once a month could not
maintain any unskilled jobs.121 The VE also concluded plaintiff could not perform his
past work.122

111

Id. at 907-08.
Id. at 912. “Unskilled work” means work which requires little or no judgment to do simple duties
that can be learned on the job in a short period of time. 20 C.F.R. § 404.1568(a). A person can usually
learn to perform an unskilled job in thirty days, and little specific vocational preparation and judgment are
needed. Id.
113
1,850 jobs regionally and 271,500 jobs nationally. D.I. 9 at 913-14.
114
1,100 jobs regionally and 190,500 jobs nationally. Id.
115
1,700 jobs regionally and 162,500 jobs nationally. Id.
116
1,300 jobs regionally and 111,900 jobs nationally. Id.
117
2,400 jobs regionally and 270,800 jobs nationally. Id.
118
1,300 jobs regionally and 188,650 jobs nationally. Id. Sedentary work involves lifting no more
than ten pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small
tools. 20 C.F.R. § 404.1567(a). Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary. Id.
119
D.I. 9 at 912.
120
Id. at 915.
121
Id.
122
Id. at 912.
112

14

E.

ALJ’s Decision

In a decision dated September 19, 2011, the ALJ determined despite severe
impairments of depression, substance abuse, and lumbar degenerative disc disease,
plaintiff retained the RFC to perform light work, except he could only occasionally climb
ramps and stairs, balance, stoop, kneel, crouch, and crawl; could never climb ladders,
ropes, or scaffolds; should avoid concentrated exposure to temperature extremes,
hazards, and vibration, and is limited to simple unskilled work not at a production
pace.123 The ALJ acknowledged plaintiff could not perform any of his past relevant
work, but was employable as a control worker, final assembler, hand bander, dial
marker, type copy examiner, and bench hand.124 The ALJ found plaintiff not disabled
under the Act because he retained the ability to perform work existing in significant
numbers in the national economy.125
III.

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

benefits is controlled by 42 U.S.C. § 405(g). The statute provides “[a]ny individual, after
any final decision of the Commissioner of Social Security made after a hearing to which
he was a party . . . may obtain review of such decision by a civil action.”126 The
Commissioner’s decision becomes final when the Appeals Counsel affirms an ALJ
opinion, denies review of an ALJ decision, or when a claimant fails to pursue available

123

Id. at 20-29.
Id. at 29-30.
125
D.I 9 at 29-30.
126
42 U.S.C. § 405(g) (2002).
124

15

administrative remedies.127 In the instant matter, the Commissioner’s decision became
final when the Appeals Counsel affirmed the ALJ’s denial of benefits.128 Thus, this court
has jurisdiction to review the ALJ’s decision.
IV.

PARTIES’ CONTENTIONS
A.

Plaintiff’s Contentions

Plaintiff argues the ALJ’s decision should be reversed, or alternatively, should be
remanded for a new hearing and decision, based on the following reasons that the ALJ
failed to properly weigh the medical opinions; properly evaluate plaintiff’s credibility; (3)
adequately consider the VA disability determination; and (4) relied on flawed VE
testimony.129
First, plaintiff contends the ALJ failed to give proper weight to the medical
opinions of treating physicians, Drs. Washington and Simon.130 Instead, the ALJ
attributed “significant weight” to the opinions of the State agency psychologists who
never treated or examined plaintiff.131 Plaintiff asserts the ALJ’s reasoning was
“vague.”132 Plaintiffs further argues even if controlling weight was not required, the ALJ
failed to indicate what weight was given because she did not address the required
factors in 20 C.F.R. § 404.1527(c)(2)-(6).133
Second, plaintiff asserts the ALJ credibility determination was inappropriately

127

Aversa v. Sec’y of Health & Human Servs., 672 F.Supp. 775, 777 (D.N.J. 1987); see also 20
C.F.R. § 404.905 (2002).
128
D.I. 9 at 1-6.
129
D.I. 12 at 1, 20.
130
Id. at 12-16.
131
Id. at 13.
132
Id. at 14.
133
Id.

16

based on her observation of plaintiff at the hearing.134 Under the two-step credibility
process for administrative hearings, plaintiff maintains the ALJ’s opinion was improper
since it was based on her layperson’s observation of plaintiff during the hearing.135
Third, plaintiff purports the ALJ failed to indicate the weight afforded to the VA
award of disability benefits, even though the ALJ noted the VA applied a different
standard of disability.136
Lastly, plaintiff contends the ALJ relied on flawed VE testimony because the ALJ
relied on a hypothetical question which did not accurately describe plaintiff’s recognized
mental limitations.137 Although it was undisputed plaintiff could not perform his past
work, the ALJ relied on the VE to determine he could perform various other available
jobs in the economy.138
B.

Defendant’s Contentions

Defendant counters 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; (2) appropriately evaluated plaintiff’s credibility; (3) adequately
considered the VA disability determination; and (4) thoroughly evaluated all relevant
evidence before concluding plaintiff retained the RFC to perform a range of simple,
unskilled light work.139
Defendant initially argues substantial evidence supports the ALJ properly

134

Id. at 17.
D.I. 12 at 16-17.
136
Id. at 18.
137
Id. at 18-20.
138
Id. at 19.
139
D.I. 15 at 2, 25.
135

17

weighed the medical opinions of Drs. Washington and Simon.140 The ALJ opined Dr.
Washington’s opinion was not given full weight because (1) it was not well supported by
the doctor’s own objective findings; (2) the treating psychiatrist’s, Dr. Donnelly, status
evaluations showed plaintiff was alert, fully oriented, and pleasant, among other
favorable findings; (3) two state agency psychological consultants concluded plaintiff
had the RFC to perform routine workplace tasks; and (4) based on the record as a
whole.141
The ALJ did not give full weight to Dr. Simon’s opinion because (1) he was not a
treating source, and only examined plaintiff one time; (2) it was inconsistent with his
objective findings, as well as Drs. Washington and Donnelly’s objective mental status
examinations; (3) the state agency psychologists found plaintiff had no more than
moderate work-related mental limitations; and (4) it was based in significant part on
plaintiff’s subjective representations.142
Second, defendant contends substantial evidence supports the ALJ properly
weighed plaintiff’s testimony.143 The ALJ discounted plaintiff’s allegations of totally
disabling mental and physical limitations and pain because those allegations were
inconsistent with the objective medical tests; the conclusions of two state agency
medical consultants; the objective examinations by Drs. Washington and Donnelly;
plaintiff’s request in November 2009 to be released to return to work; and (5) the
conservative back treatment, which did not include any surgeries.144
140

Id. at 19.
Id. at 19-20.
142
Id. at 20-21.
143
Id. at 21.
144
Id. at 22.
141

18

Third, defendant asserts substantial evidence supports the ALJ appropriately
considered the VA’s disability rating of plaintiff because a disability determination by
another governmental agency is not binding on the Commissioner; the Social Security
disability process is not a pro-claimant system, unlike the Department of Veterans’
Affairs system; and a VA disability determination does not take into account medicalvocational guidelines, or a person’s age, unlike a Social Security disability
determination.145
Lastly, defendant argues substantial evidence supports the ALJ’s reliance on the
VE’s testimony because the hypothetical questioning of the VE carefully took into
account all of plaintiff’s significant limitations.146
V.

STANDARD OF REVIEW
A.

Summary Judgment

In determining the appropriateness of summary judgment, the court must “review
the record as a whole, ‘draw[ing] all reasonable inferences in favor of the nonmoving
party[,]’ but [refraining from] weighing the evidence or making credibility
determinations.”147 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.148
This standard does not change merely because there are cross-motions for
summary judgment.149 Cross-motions for summary judgment
are no more than a claim by each side that it alone is entitled to summary
145

D.I. 15 at 23.
Id. at 24.
147
Reeves v. Sanderson Plumbing, Prods., Inc., 530 U.S. 133, 150 (2000).
148
See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R. CIV. P. 56(c)).
149
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
146

19

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.150
“The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party.”151
B.

ALJ’s Findings

Section 405(g) sets forth the standard of review of the ALJ’s decision by the
district court. The court may reverse the Commissioner’s final determination only if the
ALJ did not apply the proper legal standards, or the record did not provide substantial
evidence to support the ALJ’s decision. The Commissioner’s factual decisions are
upheld if supported by substantial evidence.152 Substantial evidence means less than a
preponderance, but more than a mere scintilla of evidence.153 As the United States
Supreme Court has found, substantial evidence "does not mean a large or significant
amount of evidence, but rather such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."154
In determining whether substantial evidence supports the Commissioner’s
findings, the court may not undertake a de novo review of the Commissioner’s decision
and may not re-weigh the evidence of record.155 The court’s review is limited to the
evidence that was actually presented to the ALJ.156 The Third Circuit has explained that

150

Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
Krupa v. New Castle County, 732 F. Supp. 497, 505 (D. Del. 1990).
152
See 42 U.S.C. §§ 405(g), 1383(c)(3); see also Monsour Medical Center v. Hecklem, 806 F.2d
1185, 1190 (3d Cir. 1986).
153
See Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
154
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
155
See Monsour, 806 F.2d at 1190.
156
See Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001).
151

20

a "single piece of evidence will not satisfy the substantiality test if the [Commissioner]
ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is
evidence substantial if it is overwhelmed by other evidence, particularly certain types of
evidence (e.g., evidence offered by treating physicians) or if it really constitutes not
evidence but mere conclusion."157 Thus, the inquiry is not whether the court would have
made the same determination, but rather whether the Commissioner’s conclusion was
reasonable.158 Even if the court would have decided the case differently, it must defer to
the ALJ, and affirm the Commissioner’s decision so long as that decision is supported
by substantial evidence.159
When review of an administrative determination is sought, the agency's decision
cannot be affirmed on a ground other than that actually relied upon by the agency in
making its decision.160 In Securities & Exchange Commission v. Chenery Corp.,161 the
Supreme Court found that a “reviewing court, in dealing with a determination or
judgment which an administrative agency alone is authorized to make, must judge the
propriety of such action solely by the grounds invoked by the agency. If those grounds
are inadequate or improper, the court is powerless to affirm the administrative action by
substituting what it considers to be a more adequate or proper basis.”162 The Third
Circuit has recognized the applicability of this finding in the Social Security disability
context.163 Thus, this court's review is limited to the four corners of the ALJ's decision.

157

Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
159
See Monsour, 806 F.2d at 1190-91.
160
See Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.D. Pa. 2011).
161
Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947).
162
Id.
163
Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001).
158

21

VI.

DISCUSSION
A.

Disability Determination

Title 11 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."164 In order to qualify for DIB, the claimant
must establish that he was disabled prior to the date he was last insured.165 A
"disability" is defined as the inability to do any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.166 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 national
economy."167
In determining whether a person is disabled, the Commissioner is required to
perform a five-step sequential analysis.168 If a finding of disability or non-disability can
be made at any point in the sequential process, the Commissioner will not review the
claim further.169 At step one, the Commissioner must determine whether the claimant is
engaged in any substantial gainful activity. If the claimant is engaged in substantial

164

Bowen, 482 U.S. at 140.
See 20 C.F.R. § 404.131.
166
See 42 U.S.C. §§ 423(d)(l)(A), 1382(c)(a)(3).
167
Id. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
168
See 20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422,427-28 (3d Cir. 1999).
169
20 C.F.R. § 404.1520(a)(4).
165

22

gainful activity, a finding of non-disabled is required.170 If the claimant is not engaged in
substantial gainful activity, 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 a severe impairment or a combination of
impairments that is severe, a finding of non-disabled is required.171
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
presumed severe enough to preclude any gainful work.172 When a claimant’s
impairment or its equivalent matches an impairment in the listing, the claimant is
presumed disabled.173 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.174 At step four, the Commissioner determines whether the claimant retains the
RFC to perform his past relevant work.175 A claimant’s RFC is “that which an individual
is still able to do despite the limitations caused by [his] impairment(s)."176 "The claimant
bears the burden of demonstrating an inability to return to [his] past relevant work.”177
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.178 At this last step, the burden is on the
170

See id. § 404.1520(a)(4)(i).
See id. § 404.1520(a)(4)(ii).
172
See id. § 404.1520(a)(4)(iii); see also Plummer, 186 F.3d at 428.
173
See 20 C.F.R. § 404.1520(a)(4)(iii).
174
See id. § 404.1520(e).
175
See 20 C.F.R. § 404.1520(a)(4)(iv); Plummer, 186 F.3d at 428.
176
Fargnoli, 247 F.3d at 40.
177
Plummer, 186 F.3d at 428.
178
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.
171

23

Commissioner to show the claimant is capable of performing other available work
before denying disability benefits.179 In other words, the Commissioner must prove
"there are other jobs existing in significant numbers in the national economy which the
claimant can perform, consistent with [his] medical impairments, age, education, past
work experience, and [RFC].”180 In making this determination, the ALJ must analyze the
cumulative effect of all of the claimant’s impairments.181 At this step, the ALJ often
seeks the assistance of a VE.
B.

Plaintiff’s Back Pain & Depression
1.

Medical Opinions
a.

Drs. Washington & Simon

Plaintiff initially contends the ALJ improperly weighed the medical opinions of
treating physicians, Drs. Washington and Simon.182 An ALJ “evaluate[s] every medical
opinion [he or she] receives.”183 20 C.F.R. § 404.1527(c)(2) states in pertinent part:
Generally, [the ALJ] give[s] more weight to opinions from your treating
sources, since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations. If we find that a treating source's
opinion on the issue(s) of the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in
your case record, we will give it controlling weight.184

179

See id.
Id.
181
See id.
182
D.I. 12 at 12-16.
183
20 C.F.R. § 404.1527(c).
184
Id. § 404.1527(c)(2).
180

24

If the ALJ does not give the treating source controlling weight, then the ALJ
considers the following factors in deciding the weight to give to a medical opinion:185
length of treatment relationship and the frequency of examination;186 nature and extent
of the treatment relationship;187 supportability with the relevant medical evidence;188
consistency with the record as a whole;189 specialization;190 and other factors which tend
to support or contradict the opinion.191 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.”192
In Burnett v. Commissioner of Social Security Administration, the Third Circuit
found the “ALJ did err by reason of his failure to consider and explain his reasons for
discounting all of the pertinent evidence before him in making his residual functional
capacity determination.”193 Although the ALJ may determine credibility, she must
indicate that evidence she rejects and her reasons for discounting it.194 “In the absence
of such an indication, the reviewing court cannot tell if significant probative evidence
was not credited or simply ignored.”195

185

Id.
Id. § 404.1527(c)(2)(i).
187
Id. § 404.1527(c)(2)(ii).
188
Id. § 404.1527(c)(3).
189
20 C.F.R. § 404.1527(c)(4).
190
Id. § 404.1527(c)(5).
191
Id. § 404.1527(c)(6).
192
Fargnoli, 247 F.3d at 42.
193
Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
194
Id.
195
Id.
186

25

Here, the ALJ provides two conclusory sentences to support her determination to
not give Dr. Washington’s opinion controlling weight as a treating physician.196 First,
she states, “[w]hile recognizing that Dr. Washington is a treating medical source, the
undersigned does not accept these opinions, as they are inconsistent with the record as
a whole.”197 Second, the ALJ adds, “[m]oreover, the medical record does not show the
severe symptomology that Dr. Washington alleges.”198 The ALJ does not provide any
reasoning as to what particular evidence in the record is inconsistent with Dr.
Washington’s opinion.
Plaintiff contends the ALJ’s reasoning is “vague and renders the ALJ’s analysis
meaningless.”199 Plaintiff further asserts even if the ALJ was not required to grant Dr.
Washington’s opinions controlling weight, she failed to indicate the weight attributed to
to the doctor’s opinions, and did not address her findings under the required factors in
20 C.F.R. § 404.1527(c)(2)-(6).200 While the ALJ was not bound by Dr. Washington’s
opinion based solely on her status as a treating psychologist, the ALJ’s findings must be
based on substantial evidence on the record and her reasoning should be sufficiently
explained so this reviewing court does not have to guess regarding the evidence.201
The ALJ failed to provide such explanation. The ALJ correctly indicated a treating
source should be weighed by the factors elucidated in § 404.1527(c)(2)-(6);202 however,
she failed to specifically apply any of the required factors to Dr. Washington’s opinion.

196

See D.I. 9 at 28.
Id.
198
Id.
199
D.I. 12 at 14.
200
Id.
201
Id.
202
D.I. 9 at 28.
197

26

Instead, the ALJ simply held Dr. Washington’s opinions were “inconsistent with the
record as a whole” and “the medical record [did] not show the severe symptomology
that Dr. Washington alleges.”203 These conclusory statements do not give the court any
basis to determine what specific medical evidence was considered in her analysis.
Defendant counters the ALJ rejected Dr. Washington’s opinion and afforded it
reduced weight because a review of the doctor’s objective evaluations during her
regular mental status examinations reflect plaintiff related well and was alert, calm,
cooperative, fully oriented, appropriately dressed, and attentive, with an anxious,
depressed, and tearful mood; no flight of ideas or racing thoughts; no cognitive defects;
coherent communication; fair insight and judgment; no homicidal ideation or psychosis;
and no suicidal ideation.204 While this may or may not be true, it is merely attorney
argument as to why Dr. Washington was not afforded controlling weight in the absence
of appropriate reasoning.
Similarly, the ALJ does not provide an explanation for crediting Dr. Simon’s
opinion with only “some weight” despite the doctor’s in-person evaluation of plaintiff.
The ALJ’s conclusory statement provides, “[t]he undersigned assigns some weight to
Dr. Simon’s opinion to the extent that it is consistent with the longitudinal medical record
and the [RFC] as assigned.”205 It is unclear what weight is given to any part of Dr.
Simon’s opinion.
Therefore, similar to Burnett, in the instant matter, the ALJ failed to evaluate and

203

Id.
Id. at 1590-97.
205
Id. at 27.
204

27

address medical evidence contrary to her findings to enable the court to “properly
exercise its responsibility under 42 U.S.C. § 405(g) to determine if the Secretary’s
decision is supported by substantial evidence.”206 Accordingly, the issue is remanded to
the ALJ to apply the factors in 42 U.S.C. § 405.1527(c)(2)-(6) to explain why the Dr.
Washington’s opinions were not given controlling weight, and to advise as to the bases
for the weight assigned to Dr. Simon’s testimony.
b.

State agency consultants

When determining plaintiff’s RFC, the ALJ accorded significant weight to nonexamining state agency consultant psychologists, Drs. Bancoff and Aldridge,207 instead
of the treating physician, Dr. Washington.208 Plaintiff argues the ALJ uncritical
acceptance of opinions of non-examining psychologists over the treating physician was
improper.209
Under this circuit’s precedent, “[t]reating physicians' reports should be accorded
great weight, especially ‘when their opinions reflect expert judgment based on a
continuing observation of the patient's condition over a prolonged period of time.’”210 A
court must give greater weight to the findings of a treating physician than to those of a
doctor who examined the claimant only once or not at all.211 When a physician has
treated a patient over an extended period of time, his opinion usually should be afforded

206

Burnett, 220 F.3d at 121.
D.I. 9 at 26-27. See supra Part II.C.2.e. (discussing Dr. Bancoff’s and Dr. Aldridge’s opinions
and reports).
208
See supra Part IV.B.1.a.
209
D.I. 12 at 15.
210
Plummer, 186 F .3d at 429 (quoting Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987)).
211
Mason, 994 F.2d at 1067.
207

28

great weight.212 A treating physician's opinion is given “controlling weight” if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence [in the claimant's] case record.”213
A final disability determination must not conflict with an opinion deserving of
controlling weight. An ALJ may reject a treating physician's opinion "only on the basis of
contradictory medical evidence."214 That opinion may not be rejected for no reason or
the wrong reason.215 When there is contradictory medical evidence, the ALJ must
carefully evaluate how much weight to give the treating physician's opinion, and provide
an explanation as to why the opinion is not given controlling weight.216
Here, the ALJ “assign[ed] significant weight to Drs. Bancoff and Aldridge’s
opinions as they are generally consistent with the longitudinal medical history and the
[RFC] assigned.”217 The ALJ also “assign[ed] significant weight to Drs. Brandon and
Tucker-Okine’s opinions to the extent that they are consistent with the longitudinal
medical and the [RFC] as assigned.”218 However, similar to the reasoning for not
affording Dr. Washington’s opinions controlling weight, assigning significant weight to
non-treating consultants was not sufficiently explained by the ALJ. The Third Circuit
has repeatedly found the ALJ should not rely on opinions from these sources when

212

See Dass v. Barnhart, 386 F. Supp 2d 568, 576 (D. Del. 2005).
Fargnoli, 247 F.3d at 43.
214
Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000).
215
Id. at 317.
216
Gonzalez, 537 F. Supp. 2d at 660.
217
D.I. 9 at 27.
218
Id. See supra Part II.C.2.d.
213

29

there is well-supported contradictory evidence.219
On remand, the ALJ should carefully consider Dr. Washington’s opinion and
specifically discuss both the basis for rejecting Dr. Washington’s opinion, and for
accepting the opinions of the state agency consultants, Drs. Brandon, Tucker-Okine,
Bancoff, and Aldridge.
2.

Plaintiff’s Testimony

Plaintiff argues the ALJ erred in evaluating the credibility of plaintiff’s subjective
complaints.220 In evaluating symptoms, the ALJ must “consider all . . . symptoms,
including pain.”221 Also, the ALJ must determine whether such symptoms “can
reasonably be accepted as consistent with the objective medical evidence and other
evidence.”222 As finder of fact, the ALJ is given considerable discretion in making
credibility findings.223 Once it is determined that an impairment “could reasonably be
expected to produce . . . symptoms, such as pain,” its intensity and persistence must be
evaluated to determine the effect on the ability to work.224
Under this evaluation, a variety of factors are considered, such as: (1) “objective
medical evidence,” (2) “daily activities,” (3) “location, duration, frequency and intensity,”

219

See Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 357 (3d Cir. 2008) (holding that
opinions from physicians are entitled to “minimal weight” when they are not based on a personal
examination of the claimant and premised upon a misunderstanding of the entire record); Dorf v. Brown,
794 F.2d 896, 901-902 (3d Cir. 1986) (“[I]t is improper for an ALJ to credit the testimony of a consulting
physician who has not examined the claimant when such testimony conflicts with the testimony of the
treating physician.”); Brewster v. Heckler, 786 F.2d 581, 585 (3d Cir. 1986) (physicians who do not
examine a claimant generally have less probative force than opinions from examining sources).
220
D.I. 12 at 16-18.
221
20 C.F.R. § 404.1529(a).
222
Smith v. Astrue, No. 08-4634, 2009 WL 5126559, at *3 (3d Cir. 2009) (quoting 20 C.F.R. §
404.1529(a)).
223
See Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983).
224
20 C.F.R. § 404.1529.

30

(4) medication prescribed, including its effectiveness and side effects, (5) treatment, and
(6) other measures to relieve pain.225 Subjective complaints of pain which are
supported by medical evidence should be given great weight.226 Thus, the ALJ
“determine[s] the extent to which a claimant is accurately stating the degree of pain or
the extent to which he or she is disabled by it.”
Here, the ALJ conceded plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms,” but his statements concerning
the intensity, persistence, and limiting effects of his symptoms were “not credible to the
extent they are inconsistent with the above [RFC] assessment.”227 Her determination
that plaintiff’s statements were only partially credible, is not based on substantial
evidence in the record. The ALJ’s reasons for rejecting plaintiff’s credibility as to the
intensity, persistence and limiting effects of these symptoms can be broken down into
three parts.
First, the ALJ’s credibility determination was inappropriately based almost entirely
on her layperson observation of plaintiff at the hearing. The ALJ noted,
[Plaintiff] appeared to be abulating normally in and out of the hearing
room. He sat normally through the hearing and got up and down normally.
Despite testimony to the contrary, he demonstrated normal memory,
concentration and attention through the hearing. He exhibited normal eye
contact and demeanor and did not seem to be anxious or nervous.228
The Third Circuit has denounced such a “sit and squirm” test.229 There was significant

225

Id. § 404.1529(c).
See Green v. Schweiker, 749 F.2d 1066, 1068 (3d Cir. 1984).
227
D.I. 9 at 23.
228
Id. at 24.
229
See Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir. 1983). See also Frankenfeld v.
Bowen, 861 F.2d 405, 408 (3d Cir. 1988) (finding error in ALJ’s rejection of credible medical evidence
based solely on observation of claimant at the hearing and testimony as to claimant’s daily activities).
226

31

objective medical evidence contrary to the ALJ’s observations. For example, Dr. Simon
tested plaintiff’s memory and determined while plaintiff had a good immediate memory,
he also had a poor short-term memory.230 In addition, Dr. Brandon opined plaintiff had
moderate difficulties in maintaining concentration, persistence, and pace.231 These
medical opinions were consistent with plaintiff’s testimony that he had problems with
memory and concentration.232 This type of consistency between objective medical
evidence and plaintiff’s testimony trumps an ALJ’s observations during the hearing.
Second, the ALJ relied on plaintiff’s request to be released back to work with no
limitations in November 2009.233 An ALJ is not permitted to “cherry-pick” from the
record evidence supporting her conclusion while ignoring other evidence that negates
the probative value of the evidence cited.234 Here, while the record clearly indicates
plaintiff’s request to be released to work, very next treatment note–nine days
later–shows plaintiff was unable to return to his usual job after his request, which the
ALJ conveniently omitted.235
Third, the ALJ expressed an inconsistency existed with plaintiff’s reported
depression because of his back pain, because “the objective testing reveals that the
degenerative disc disease is quite mild.”236 Again, this statement only provides half the
story because the objective medical evidence notes in the same Exhibit which the ALJ

230

D.I. 9 at 1134-35.
Id. at 1139-49.
232
Id. at 902.
233
Id. at 24.
234
See Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000) (holding that the ALJ may not simply
rely on “the pieces of the examination reports that supported [her] determination,” at the exclusion of other
evidence).
235
D.I. 9 at 1122.
236
Id. at 1083.
231

32

referenced: “worsening symptoms of low back pain with numbness radiating down
entire right leg and partially down left [leg].”237 Any apparent inconsistency between
plaintiff’s testimony regarding his back pain and the record appear to be tenuous at
best.
Defendant counters the ALJ’s opinion is based on substantial record evidence.
First, defendant advances the ALJ’s reasoning that the degenerative disc disease is
mild according to the medical tests in the record.238 However, as previously stated, this
narrow reading of the objective medical evidence fails to take into account the
worsening of the disease as explained in the record.239
Second, defendant hinges on the conclusions of the four state agency medical
consultants’ findings.240 However, as discussed herein, the ALJ failed to provide
sufficient reasoning why the non-examining consultants should be given significant
weight over the treating physician.241
Third, defendant notes plaintiff asked a physician in early November 2009 to
release him to his job as a housekeeper without any limitations.242 Again, as previously
discussed, this fails to consider that, shortly after his request, plaintiff was unable to
return to his employment.243
Lastly, defendant contends plaintiff’s conservative treatment for his back
consisted of injections, physical therapy, and medications, and did not involve any

237

Id.
D.I. 15 at 22.
239
D.I. 9 at 1083.
240
D.I. 15 at 22.
241
See supra Part VI.B.1.
242
D.I. 15 at 22.
243
D.I. 9 at 1122.
238

33

surgery or recommendations for surgery render his condition as not disabling.244
However, neither defendant nor the ALJ point to any authority that provides a bright-line
requirement if surgery is not required, then the claimant is not disabled.245
On remand, the ALJ should address plaintiff’s hearing testimony and adequately
explain the reasoning for not accepting his testimony in relation to the objective medical
evidence in the record.
3.

VA’s Disability Rating

On August, 9, 2010, the VA found plaintiff’s major depressive disorder was 70
percent disabling as of December 2009.246 Plaintiff contends the ALJ erred by not
adequately considering the disability determination by the VA.247
A determination made by another governmental agency that an individual is
disabled or not disabled is not binding on the Commissioner.248 The Third Circuit,
however, recognizes that VA disability determinations are “entitled to substantial
weight.”249
Here, the ALJ did not give specific reasons why the determination by the VA was
not given substantial weight, or attributed reduced or no weight, based on the facts of
the case. Instead, the ALJ rejected the VA determination solely on the differences
between the standard for disability between the VA and the SSA, with no analysis of the
facts.250

244

D.I. 15 at 22.
See id.; D.I. 9 at 18-30.
246
D.I. 9 at 1992-95.
247
D.I. 12 at 18.
248
20 C.F.R. § 404.1504.
249
See Kane v. Heckler, 776 F.2d 1130, 1135 (3d Cir. 1985).
250
See D.I. 9 at 26.
245

34

Defendant advances the differences between the VA and the SSA processes for
determining disability.251 The Social Security disability process is nonadversarial, and
not a pro-claimant system; with the burden on the claimant to show he is disabled.252
The VA’s disability system, on the other hand, is both nonadversarial and proclaimant.253 Lastly, the Social Security’s determination of disability considers an
individual’s age, education, and work history and process has detailed medicalvocational guidelines to direct or guide the analysis, with age being a significant
factor.254 The VA regulations have no medical-vocational guidelines, and under its
regulations, age cannot be considered.255
None of this reasoning, however, exists in the ALJ’s opinion.256 The ALJ merely
noted “this veteran’s claim is based upon a different statutory scheme and not Social
Security rules and regulations.”257
On remand, the ALJ should address the VA disability rating and appropriately
explain her reasoning consistent with the medical evidence in the record.
4.

VE’s Testimony

Plaintiff’s final argument is the ALJ erred in formulating plaintiff’s RFC and
hypothetical questioning by relying on the VE’s responses to the ALJ’s hypothetical
questioning to find plaintiff not disabled.258
251

See D.I. 15 at 23.
42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1512(a).
253
See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (“[The Federal Circuit] and the
Supreme Court both have long recognized that the character of the veterans’ benefits statutes is strongly
and uniquely pro-claimant.”).
254
See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§ 404.1560-404.1569a.
255
See 38 C.F.R. § 4.19. See also Smith v. Shinseki, 647 F.3d 1380, 1384-85 (Fed. Cir. 2011).
256
See D.I. 9 at 26.
257
Id.
258
See D.I. 12 at 18-20.
252

35

“A hypothetical question must reflect all of a claimant's impairments that are
supported by the record; otherwise the question is deficient and the expert's answer to it
cannot be considered substantial evidence.”259 “[G]reat specificity’ is required when an
ALJ incorporates a claimant's mental or physical limitations into a hypothetical.”260
“Where there exists in the record medically undisputed evidence of specific impairments
not included in a hypothetical question to a vocational expert, the expert's response is
not considered substantial evidence.”261
Plaintiff relies on Ramirez v. Barnhart262 to argue when a hypothetical question
does not accurately describe all of plaintiff’s mental and physical limitations, the opinion
of the VE is not supported by substantial evidence.263 In Ramirez, the Third Circuit
found error when an ALJ relied on hypothetical questioning which was inconsistent with
the ALJ’s own finding that the claimant often suffered from deficiencies in concentration,
persistence, or pace.264 Despite this finding, the ALJ accepted the VE’s opinion the
claimant could perform work that would have daily production quotas.265 The omission
of claimant’s mental limitations in the ALJ’s hypothetical questioning regarding how a
claimant that often suffers from pace deficiencies could perform work with daily
production quotas was reversible error.266
Here, the ALJ’s hypothetical questioning of the VE included plaintiff’s physical

259

Crupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987).
Ramirez v. Barnhart, 372 F.3d 546, 554-55 (3d Cir. 2004) (quoting Burns v. Barnhart, 312 F.3d
113, 122 (3d Cir. 2002)).
261
Burns, 312 F.3d at 123.
262
372 F.3d 546 (3d Cir. 2004).
263
See D.I. 12 at 18-20.
264
Ramirez, 372 F.3d at 554.
265
Id.
266
Id. at 554-55.
260

36

limitations, but omitted his mental limitations.267 The ALJ specifically found plaintiff’s
mental limitations to include severe impairment of depression and substance abuse.268
These limitations were not included in the ALJ’s hypothetical questioning.269 The only
seemingly mental limitations the ALJ included related to plaintiff’s inability to work at a
production pace, meaning the hypothetical question presupposed a person who would
need to be paid “by the piece” rather than having a weekly or monthly quota.270 Similar
to Ramirez, however, the ALJ did not indicate how plaintiff’s severe impairment of
depression and substance abuse would effect his ability to work.
Plaintiff’s mental limitations, including the ALJ’s own finding of severe mental
impairments, are well-documented in the record.271 The ALJ failed to evaluate and
address this medical evidence contrary to her findings to enable the court to “properly
exercise its responsibility under 42 U.S.C. § 405(g) to determine if the Secretary’s
decision is supported by substantial evidence.”272 As a result, this court cannot assess
whether the ALJ’s determination that plaintiff has the RFC to perform “simple unskilled,
light jobs” or “unskilled, sedentary jobs” is supported by substantial evidence.
VII.

ORDER AND RECOMMENDED DISPOSITION
For the reasons contained herein, I recommend that:
(1) Plaintiff’s motion for summary judgment (D.I. 11) be GRANTED, and

remanded for further consideration consistent with this opinion.

267

See D.I. 9 at 912-14.
Id. at 20-29.
269
Id. at 912-14.
270
Id. at 912.
271
See e.g., D.I. 9 at 20-29.
272
See Burnett, 220 F.3d at 121.
268

37

(2) Defendant’s cross-motion for summary judgment (D.I. 14) be DENIED.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B),
FED. R. CIV. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific
written objections within ten (10) days after being served with a copy of this Report and
Recommendation.
The parties are directed to the Court’s standing Order in Non-Pro Se matters for
Objections Filed under FED. R. CIV. 72, dated October 9, 2013, a copy of which is
available on the Court’s website, www.ded.uscourts.gov.
Date: October 22, 2013

/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

38