Baptiste v. Social Security Administration Commissioner

Filing 23

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/11/15. (mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SHURBELLE JOHN BAPTISTE,
Plaintiff,
Civ. No. 12-1678-LPS

v.

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

Shurbelle John Baptiste, Gaithersburg, Maryland, Pro Se Plaintiff.

Charles M. Oberly, III, Esquire, United States Attorney and Patricia A. Stewart, Esquire, Special
Assistant United States Attorney, of the Office of the United States Attorney, Wilmington,
Delaware.
Of Counsel: Nora Koch, Esquire, Acting Regional Chief Counsel, Region III and Jillian Quick,
Esquire, Assistant Regional Counsel, of the Social Security Administration, Philadelphia,
Pennsylvania.

MEMORANDUM OPINION

March 11, 2015
Wilmington, Delaware

I.

INTRODUCTION
Plaintiff Shurbelle John Baptiste ("Baptiste" or "Plaintiff'), who appears prose, appeals from

a decision of Defendant, Carolyn W. Colvin, the Acting Commissioner of Social Security
("Commissioner" or "Defendant"), denying her application for disability insurance benefits
("DIB"), and supplemental security income ("SSI"), under Title II and Title XVI of the Social
Security Act (the "Act"), 42 U.S.C. §§ 401-433, 1381-1383£. The Court has jurisdiction pursuant to
42 U.S.C. § 405(g). 1 Presently pending before the Court are cross-motions for summary judgment
filed by Baptiste and the Commissioner. 2 (D.I. 18, 19) For the reasons set forth below, the Court
will deny Plaintiffs motion and will grant Defendant's motion.
II.

BACKGROUND
A.

Procedural History

On May 18, 2010, Baptiste protectively filed an application for DIB and, on May 26, 2010,
protectively filed an application for SSI benefits, alleging disability beginning January 31, 2009, due
to bursitis, fibromyalgia, scoliosis, arthritis, abdominal hernia due to gastric bypass complications,
sun UVA and UVB ray allergies, anxiety, and pelvic pubic dysfunction. The claims were denied on
July 26, 2010 and, upon reconsideration, on October 8, 2010. Plaintiff filed a request for hearing on
December 8, 2010. On August 30 2011, a hearing was held before an Administrative Law Judge

Under§ 405(g), "[a]ny individual, after any final decision of the Commissioner of Social Security
made after a hearing to which he was a party ... may obtain a review of such decision by a civil
action commenced within sixty days after the mailing to him of notice of such decision . . . . Such
action shall be brought in the district court of the United States for the judicial district in which the
plaintiff resides .... " 42 U.S.C. § 405(g).
1

2

The Court construes D.I. 18 as Plaintiffs motion for summary judgment.
1

("ALJ") who issued a decision finding that Baptiste was not disabled. Plaintiff filed a request for
review by the Appeals Council which was denied on October 18, 2012 and the ALJ's decision
became the final decision of the Commissioner. (D.I. 11 ("Tr.") at 1-6)
On December 10, 2012, Baptiste filed a Complaint seeking judicial review of the ALJ's
decision. (D.I. 2) Baptiste moved for summary judgment on July 18, 2014 (D.I. 18), and the
Commissioner filed a cross-motion for summary judgment on August 21, 2014 (D.I. 19).

B.

Medical and Mental Health Evidence

In 2003, Plaintiff underwent gastric bypass surgery. (Tr. at 266) She was diagnosed as
morbidly obese on April 8, 2010 and counseled on diet and exercise. (Id. at 260) As of April 11,
2011, she was diagnosed as obese, unspecified. (Id. at 417)
On April 15, 2009, Plaintiff presented to rheumatologist Maged I. Hosny, M.D. ("Dr.
Hosny") with complaints of arthralgias on multiple joints, mainly in both knees and legs. (Id. at 253)
Following examination, Dr. Hosny's impression was bilateral leg pain, likely myofascial in origin
versus bursitis of the knees in addition to strain on the knees and legs secondary to being
overweight. (Id. at 254) When Plaintiff returned on June 9, 2009, the leg pain was better, but she
continued with intermittent knee pain. (Id. at 255) Plaintiff denied any pain, stiffness, or swelling in
the small joints of the hands, wrists, and shoulders. (Id.) When Plaintiff was seen by Dr. Hosny on
October 6, 2009, she was slightly better, but continued to complain of pain mostly in both trapezius
muscles. (Id. at 256) As of February 23, 2010, Plaintiff continued with pain in both trochanteric
areas and the pelvic area, taking Aleve for pain as needed. (Id. at 257) Dr. Hosny prescribed
Tramadol for the pain. (Id.)

In October 2009, when Baptiste was 6 1/2 months pregnant, Dr. Michael B. Peters, Jr., ("Dr.
Peters") "recommend[ed] that [she] exercise more to augment weight loss and to improve overall
2

health and fitness." (Id. 264, 267) Plaintiff underwent a hernia repair in November and, by the
following month, she reported "[feeling] well overall" and that the "pain [was] well controlled." (Id.
at 262, 270-71, 319) Dr. Peters concluded that Plaintiff was "[d]oing well post op." (Id. at 260) In
April 2010, Plaintiff was "[o]verall doing well" and had no pain. (Id.) Her abdomen was obese,
there was no tenderness or guarding. (Id.) In May 2010, Plaintiff reported having the same
symptoms as prior to the repair, but upon examination there were no hernias, masses, or tenderness.

(Id. at 258) Dr. Peters stated that Plaintiff had "[a]bsolutely no pain on exam today" and Plaintiff
was to follow up in two months. (Id.)
Plaintiff received treatment for pain in the hips, shoulder, and upper back from Susan L.
Cowdery, M.D. ("Dr. Cowdery") at Christiana Care Rheumatology from May 25, 2010 to July 26,
2010. (Id. at 274-82, 346-55) Dr. Cowdery ran a number of tests and her impression was chronic
pain syndrome, vitamin D deficiency, genetic susceptibility to other disease, other dermatitis due to
solar radiation, and osteoarthritis with a plan to screen for other rheumatic disorder. (Id. at 286,
355) Diagnostic testing of the lumbar spine showed small osteophytes with no fracture or
subluxation, and the cervical spine had no fractures or subluxation with only a few tiny osteophytes.

(Id. at 351) Dr. Cowdery states that Plaintiff has experienced chronic pain since her teenage years
and notes that a referral to pain management has been suggested and declined. (Id.)
Plaintiff underwent a course of physical therapy from June 2, 2010 to June 30, 2010. (Id. at
288-92) Plaintiff reported painful hips for over a year, and diagnoses of fibromyalgia and bursitis of
the hips. (Id. at 288) Plaintiff indicated that the pain was constant, she had difficulty falling asleep,
is awakened by pain, her activities are limited due to pain/ fatigue, she is unable to stand to cook or
do the dishes, and she has help with these activities. (Id.) Diagnoses were myalgia, myositis NOS,

3

and enthesopathy' of the hip. (Id.) As of June 30, 2010, Plaintiff had difficulty with arm movements
secondary to UE pain/ discomfort. (Id. at 292) Plaintiff took part in initial aquatics without
increased hip pain. (Id.)
Plaintiff received treatment from pain management specialists David Rodriguez, D.0. ("Dr.
Rodriguez") and Prabhdeep Grawal, M.D. ("Dr. Grawal") at Advanced Pain Management Services
from November 12, 2010 to July 22, 2011. (Id. at 391-99, 403-15, 418-23, 432-34) Plaintiff
presented with multiple joint pains. (Id. at 393) She had been diagnosed with rheumatoid arthritis
due to family history but, upon further evaluation, the diagnosis was changed to psoriatic arthritis. 4

(Id.) Plaintiff was diagnosed with porphyria5 in 2010. (Id. at 433) Drs. Rodriguez and Grawal
prescribed medications and physical therapy and both noted that Plaintiff "is using oxycodone IR
15-mg and is functional on this" and continued Plaintiff on the medication. (Id. at 393, 396, 399,
420, 423, 433) Upon physical examination, Plaintiff appeared well nourished, well developed, and in
no acute distress. (Id. at 392, 395, 398-99, 407, 410, 414-15, 419, 422, 433) Her neck was supple
with no tenderness and only mild pain on range of motion, her low back had tenderness and mild
pain with motion, and straight leg raising was negative. (Id.) Her extremities had no edema or
cyanosis. (Id.) Neurologically, Plaintiff's memory was intact, her cranial nerves were grossly intact,
she had no motor weakness or sensory loss, and her balance and gait were intact. (Id. at 392, 395,

A disease occurring at the site of attachment of muscle tendons and ligaments to bones or joint
capsules. The American Heritage Stedman's Medical Dictionary 267 (2d ed. 2004).
3

Combined psoriasis and arthritis, often affecting the interphalangeal joints. The American Heritage
Stedman's Medical Dictionary at 678.

4

s Any

of several disorders of porphyrin metabolism, usually hereditary, characterized by large
amounts of porphyrins in the blood and urine. The American Heritage Stedman 's Medical Dictionary at
652.
4

398-99, 407, 410, 414-15, 419, 422, 433) She did not demonstrate unusual anxiety or evidence of
depression. (Id.)
In July 2010, State agency physician Michael Borek, D.O. ("Dr. Borek") reviewed the
evidence in connection with Plaintiffs initial application and opined that Plaintiff could perform a
limited range of light work that involved occasional lifting of twenty pounds and frequent lifting of
ten pounds at most, sitting for six hours, and standing/walking for two hours, with numerous
postural limitations and some environmental limitations. (Id. at 47, 293-98) In October 2010, State
agency physician Dr. Vinod Kateria, M.D. ("Dr. Kateria") affirmed Dr. Borek's opinion. (Id. at 50,
357-63)
On July 20, 2010,Joseph Keyes, Ph.D. ("Dr. Keyes"), a psychologist, consultatively
examined Plaintiff at the request of the State agency. (Id. at 299-306) Plaintiff reported that she was
not receiving any psychotropic medications. (Id. at 300) Dr. Keyes found Plaintiff neatly dressed
with excellent personal hygiene and grooming, her posture and gait were normal, and she had an
overall appropriate appearance. (Id.) Plaintiffs speech was clear and easy to understand, abstract
thinking was in the low average to average range, memory was intact, and she was able to perform
serial threes to forty with no errors. (Id. at 300-01) Plaintiffs social and interpersonal skills were
appropriate but mildly limited. (Id. at 300) Plaintiff maintained eye contact, answered questions, and
initiated appropriate conversation. (Id.) She was cooperative, had a pleasant attitude, and an
appropriate affect that was tearful at one point. (Id. at 301) Plaintiff was not easily distracted, was
not impulsive, and had adequate insight and judgment. (Id.)
Dr. Keyes assessed Plaintiffs IQ at 92, which indicates average/normal cognitive

5

Functioning, and a Global Assessment of Functioning ("GAF") 6 score of 65. (Id.) Dr. Keyes
opined that Plaintiff had moderate difficulties in sustaining work performance and attendance in a
normal work-setting, and that she generally had no or only mild impairment in such tasks. (Id. at
304-05) He diagnosed Plaintiff as having an adjustment disorder with depressive features. (Id. at
303)
On July 22, 2010, State agency psychologist Douglas Fugate, Ph.D. ("Dr. Fugate"), reviewed
the evidence in connection with Plaintiff's initial application and opined that Plaintiff did not have a
severe psychiatric condition that would interfere with her ability to work. (Id. at 307, 31 7) On
October 5, 2010, State agency psychologist Carene Tucker-Okine, Ph.D. ("Dr. Tucker-Okine")
affirmed Dr. Fugate's opinion. (Id. at 364, 374)
On January 21, 2011, Dr. Rodriguez completed a residual functional capacity ("RFC")
evaluation. (Id. at 400-02) He determined that Plaintiff was not capable of performing sedentary
work on a regular and continuing basis due to pain throughout her body becoming worse, along
with fatigue and depression interfering with her usual activities of daily living as well as occupational
activities, and a family history of inflammatory arthritis. (Id. at 402) On April 7, 2011, Dr.
Rodriguez completed a medical statement concerning chronic pain syndrome, in which he indicated
that Plaintiff suffers from severe pain due to multiple joint syndrome, psoriatic arthropathy,
rheumatoid arthritis, and disorders of porphyrin metabolism that cause marked restrictions in

6

The GAF scale is used to report the "clinician's judgment of the individual's overall level of
functioning" in light of his psychological, social, and occupational limitations. American Psychiatric
Association, Diagnostic and Statistical Manual ofMental Disorders, 32-34 (4th ed. text rev. 2000). A GAF
of 61 to 70 indicates some mild symptoms or some difficulty in social, occupational or school
functioning, but generally functioning pretty well, has some meaningful interpersonal relationships.

6

performing daily activities, maintaining social functioning, and maintaining concentration,
persistence, or pace. (Id. at 389-90)
On April 11, 2011, Plaintiff presented to Anu Shunna, M.D. ("Dr. Shunna") with
complaints of severe chronic pain in the back and knee, minimally relieved with oxycodone. (Id. at
416) Plaintiff reported pain in the hands and feet, primarily, worse in the morning and in the middle
of the night. (Id.) Upon examination, Plaintiffs upper and lower extremity joints had no synovitis,
no effusions, and she had full range of motion. (Id.) There was no edema. (Id.) Neurologically,
there was sensory diminished sensations, grossly intact at the bilateral upper and lower extremities.
(Id.) Tenderpoints were not present on palpation. (Id.) Plaintiff was assessed with psoriatic
arthropathy and obesity. (Id. at 417)
When Plaintiff presented to the Advanced Pain Management Services on July 22, 2011, her
history included multiple joint pain, moderate to severe, that occurs constantly and is worsening.

(Id. at 432) The pain is bilateral, aching, dull, and throbbing, but there is no radiation. (Id.) The
pain is aggravated by bending, climbing and descending stairs, lifting, movement, pushing, sitting,
walking, and standing. (Id.) It is relieved by heat, pain medication, and rest. (Id.) Associated
symptoms include decreased mobility, night pain, night-time awakening, tingling in the arms and
legs, and tenderness. (Id.) Chronic problems include psoriatic arthropathy, chronic pain syndrome,
rheumatoid arthritis, disorders of porphyrin metabolism, and pain in joint involving other specified
sites. (Id.)
Notes indicate that Plaintiff had been placed on Methotrexate. 7 (Id. at 433) Plaintiff

Used to treat severe psoriasis that cannot be controlled by other treatments. It is also used along
with rest, physical therapy, and sometimes other medications to treat severe active rheumatoid
7
7

continued to take oxycodone and is functional on it. (Id.) She was prescribed Dilaudid for flare.

(Id.)
C.

The Administrative Hearing

An administrative hearing took place on August 30, 2011, before the ALJ, with testimony
from Plaintiff, who was represented by counsel, and vocational expert Dr. James M. Ryan ('CVE").

(Id. at 29)
1.

Plaintiff's Testimony

Plaintiff was born on December 14, 1973 and has completed four or more years of college.

(Id. at 33) She has worked as a substitute teacher, mental health aide, and administrative assistant.
(Id. at 34) She stopped working in early 2009 due to severe pain. (Id. at 33-34, 36) Baptiste has two
small children; her mother and the children's father help with their activities. (Id. at 35) Tests
performed after her second pregnancy indicated that Plaintiff has arthritis. (Id. at 36)
Plaintiff is 5'3" tall and weighs 233 pounds, and her physician has recommended that she
lose weight. (Id. at 36) Plaintiff testified that she must sit down after ten minutes of standing. (Id. at
37) She would rather sit than stand and can sit for approximately 20 minutes before she has pain on
the right side of her thigh area, down to her feet. (Id.) Plaintiff cannot grip or hold much because
she does not have strength. (Id. at 38) She can hold, but not carry, thirty pounds. (Id.) She can
carry pencils and light-weight coffee cups. (Id.)
Plaintiff takes oxycodone by tablets and also uses a transdermal patch to relieve the pain of
her psoriatic arthritis. (Id. at 39) Plaintiff testified that her pain is increasing and her physicians are

arthritis. See http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682019.html#why (Mar. 9,
2015).
8

going to see what can be done about increasing the medication. The pain keeps her up through the
night. (Id. at 42) Plaintiff takes Savella for fibromyalgia, but it does not "work much," as well as a
dose of Methotrexate every Saturday evening. (Id.) The Methotrexate causes fatigue that typically
lasts until Tuesday or Wednesday, as well as nausea. (Id at 40-41) Plaintiff takes folic acid for relief,
but it does not stop the vomiting. (Id.)

2.

Vocational Expert's Testimony

The VE testified that Plaintiffs past relevant work was at the skilled light exertional level.

(Id. at 43) The ALJ posed a hypothetical question and asked the VE if a person with Plaintiffs age,
education, and experience, who could perform no more than sedentary8 exertional activity as
described in the Commissioner's Regulations; who should do no climbing of ropes, ladders, or
scaffolds; can do stooping, but only on an occasional basis; should avoid concentrated exposure to
extreme cold, sunlight, vibration, and avoid work around dangerous machinery or unprotected
heights; and has moderate difficulties in concentration, persistence, or pace which results in being
limited to performing simple, routine, unskilled tasks, could perform any of Plaintiffs past work.

(Id. at 43) The VE responded that such a person could not, but that there were sedentary jobs a
person could do, such as a quality control worker, a finish machine tender, and a grading and sorting
worker. (Id. at 43-44)
When the AL] added to the hypothetical that the person could stand and walk less than one
hour total in an eight hour day, sit less than five hours total in an eight hour day and the remaining

Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often necessary in carrying out
job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary
criteria are met. See 20 C.F.R. § 404.1567(a).
8

9

two hours the person would need to lie down and rest due to pain, fatigue, and side effects of
medications, the VE opined that such a person could not perform the jobs identified or any other
type of work. (Id. at 44) The VE further opined that if the person was unable to perform 40 hours
per week due to the side effects of medications, the person would not be capable of full-time
employment. (Id. at 45)

D.

The ALJ's Findings

The ALJ concluded that Plaintiffs medical conditions were not disabling. In reaching this
conclusion, the ALJ first considered the nature and severity of Plaintiffs physical and mental
impairments. (Id. at 16-19) The ALJ determined that Plaintiffs back impairments, depression,
anxiety disorders, and obesity were severe impairments. (Id. at 16) The ALJ found that although
Plaintiffs impairments were subjectively severe, there was insufficient evidence of record to meet
the requirements of a listing in 20 CFR Part 404, Subpart P, Appendix 1.
The ALJ determined that Plaintiff could not perform her past relevant work. (Id. at 21) The
ALJ found that Plaintiff could perform less than the full range of unskilled sedentary work that
involved no climbing of ropes, ladders, or scaffolds; occasional stooping; no concentrated exposure
to sunlight, extreme cold, or vibrations; no exposure to dangerous machinery or unprotected
heights; and only unskilled tasks to account for moderate limitations in concentration, persistence,
or pace due to pain, depression, and medication side effects, taking into consideration the VE's
opinion that a hypothetical individual with those limitations could perform such representative
occupations as a quality control worker, a finish machine tender, and a grading and sorting worker.

(Id. at 19, 21-22) The ALJ concluded that Plaintiff was capable of performing work that exists in
significant numbers in the national economy and, therefore, determined that she was not disabled
from January 31, 2009 through the date of the May 26, 2010 decision. (Id. at 22)
10

Ill.

LEGAL STANDARDS
A.

Motion for Summary J
udgm.ent

"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue
of material fact. See Matsushita Blee. Indus. Co. v. Zenith "Radio Cop., 475 U.S. 574, 586 n.10 (1986). A
party asserting that a fact cannot be -- or, alternatively, is -- genuinely disputed must be supported
either by citing to "particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for
the purposes of the motions only), admissions, interrogatory answers, or other materials," or by
"showing that the materials cited do not establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P.
56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then "come
forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at
587 (internal quotation marks omitted). The Court will "draw all reasonable inferences in favor of
the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
To defeat a motion for summary judgment, the non-moving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at
586-87; see also Podohnik v. U.S. Postal Service, 409 F.3d 584, 594 (3d Cir. 2005) (stating party opposing
summary judgment "must present more than just bare assertions, conclusory allegations or
suspicions to show the existence of a genuine issue") (internal quotation marks omitted). However,
the "mere existence of some alleged factual dispute between the parties will not defeat an otherwise
11

properly supported motion for summary judgment;" a factual dispute is genuine only where "the
evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v.

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

B.

Review of the ALJ's Findings

The Court must uphold the Commissioner's factual decisions if they are supported by
"substantial evidence." See 42 U.S.C. § 405(g); Monsour Med Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d
Cir. 1986). "Substantial evidence" means less than a preponderance of the evidence but more than a
mere scintilla of evidence. See Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). Substantial
evidence "does not mean a large or significant amount of evidence, but rather such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v.

Underwood, 487 U.S. 552, 565 (1988).
The Third Circuit has explained that "a single piece of evidence will not satisfy the
substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence -particularly certain types of evidence (e.g., that offered by treating physicians) -- or if it really
constitutes not evidence but mere conclusion." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
Thus, the inquiry is not whether the Court would have made the same determination but, rather,
whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d 1211, 1213 (3d
Cir. 1988).
12

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. See Monsour, 806 F.2d at 1190. The Court's review is limited to the evidence
that was actually presented to the ALJ. See Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001).
However, evidence that was not submitted to the ALJ can be considered by the Appeals Council or
the District Court as a basis for remanding the matter to the Commissioner for further proceedings,
pursuant to the sixth sentence of 42 U.S.C. § 405(g). See Matthews, 239 F.3d at 592. "Credibility
determinations are the province of the ALJ and only should be disturbed on review if not supported
by substantial evidence." Gonzalez v. Astrue, 537 F. Supp. 2d 644, 657 (D. Del. 2008) (internal
quotation marks omitted). Even if the reviewing Court would have decided the case differently, it
must give deference to the ALJ and affirm. the Commissioner's decision if it is supported by
substantial evidence. See Monsour, 806 F.2d at 1190-91.

IV.

DISCUSSION
A.

Disability Determination Process

Titles II and XVI of the Social Security Act, 42 U.S.C. § 423(a)(1)(D) and§ 1382(a),
"provideO for the payment of insurance benefits to persons who have contributed to the program
and who suffer from a physical or mental disability." Bowen v. Yuckert, 482 U.S. 137, 140 (1987). For
the purposes of DIB and SSI, a "disability" is defined as the inability to do any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months. See 42 U.S.C. § 423(d)(1)(A), § 1382c(a)(3). A claimant is disabled "only if
his physical or mental impairment or impairments are of such severity that he is not only unable to

13

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." 42 U.S.C.
§ 423(d)(2)(A), § 1382c(a)(1)(B); see also Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003). In determining

whether a person is disabled, the Commissioner is required to perform a five-step sequential
analysis. See 20 C.F.R. § 404.1520, § 426.920; Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir. 1999).
If a finding of disability or nondisability can be made at any point in the sequential process, the

Commissioner will not review the claim further. See 20 C.F.R. § 404.1520(a)(4), § 416.920(a)(4).
At step one, the Commissioner must determine whether the claimant is engaged in any
substantial gainful activity. See 20 C.F.R. § 404.1520(a)(4)(i), § 416.920(a)(4)(i) (mandating finding of
nondisability when claimant is engaged in substantial gainful activity). 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. See 20 C.F .R.

§ 404.1520(a)(4)(ii), § 416.920(a)(4)(ii) (mandating finding of nondisability when claimant's
impairments are not severe). If the claimant's impairments are severe, at step three the
Commissioner compares the claimant's impairments to a list of impairments that are presumed
severe enough to preclude any gainful work. See 20 C.F.R. § 404.1520(a)(4)(iii), § 416.920(a)(4)(iii);

Plummer, 186 F.3d at 428. When a claimant's impairment or its equivalent matches an impairment in
the listing, the claimant is presumed disabled. See 20 C.F.R. § 404.1520(a)(4)(iii), § 416.920(a)(4)(ii).
If a claimant's impairment, either singly or in combination, fails to meet or medically equal any

listing, the analysis continues to steps four and five. See 20 C.F.R. § 404.1520(e), § 416.920(e).
At step four, the Commissioner determines whether the claimant retains the RFC to
perform her past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv), § 416.920(a)(4)(iv) (stating
claimant is not disabled if able to return to past relevant work); Plummer, 186 F.3d at 428. A
14

claimant's RFC is "that which an individual is still able to do despite the limitations caused by his or
her impairment(s)." Fargnoli v. Halter, 247 F.3d 34, 40 (3d Cir. 2001). "The claimant bears the
burden of demonstrating an inability to return to her past relevant work." Plummer, 186 F.3d at 428.
If the claimant is unable to return to her past relevant work, step five requires the
Commissioner to determine whether the claimant's impairments preclude her from adjusting to any
other available work. See 20 C.F.R. § 404.1520(a)(4)(v) & (g), § 416.920(a)(4)(v) & (g) (mandating
finding of non-disability when claimant can adjust to other work); Plummer, 186 F.3d at 428. At this
last step, the burden is on the Commissioner to show that the claimant is capable of performing
other available work before denying disability benefits. See Plummer, 186 F.3d at 428. In other
words, the Commissioner must prove that "there are other jobs existing in significant numbers in
the national economy which the claimant can perform, consistent with her medical impairments,
age, education, past work experience, and [RFC]." Id. In making this determination, the ALJ must
analyze the cumulative effect of all of the claimant's impairments. See id. At this step, the ALJ often
seeks the assistance of a VE. See id.

B.

The Issues Raised on Appeal

Baptiste presents four issues in her appeal and moves for summary judgment on the
grounds that the ALJ: (1) improperly substituted his own opinion for those of Plaintiffs treating
physicians in finding she was not disabled; (2) failed to detail how he considered Plaintiffs obesity;
(3) failed to properly evaluate Plaintiffs fully supported allegations of pain and incorrectly evaluated
her RFC; and (4) failed to provide an accurate hypothetical to the VE and failed to properly include
the deleterious side effects of Methotrexate on Plaintiffs RFC.
The Commissioner moves for summary judgment on the grounds that the ALJ: (1) followed
the controlling regulations in evaluating opinion evidence; (2) followed the controlling regulations in
15

evaluating the credibility of Plaintiffs complaints; (3) considered Plaintiffs obesity in accordance
with SSR 02-1 p; and (4) the hypothetical question to the vocational expert adequately reflected
Plaintiffs work capacity as found by the ALJ.
The Court considers each of the issues in turn.

1.

Medical Opinions

Baptiste argues that the ALJ improperly substituted his opinion for those of her treating
physicians, while the Commissioner argues that the ALJ followed the controlling regulations in
evaluating the opinion evidence.

In Morales v. Apfel, 225 F.3d 310 (3d Cir. 2000), the Court of Appeals for the Third Circuit
set forth the standard for evaluating the opinion of a treating physician, stating that "[a] cardinal
principle guiding disability eligibility determinations is that the ALJ accord treating physicians'
reports 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."' Id. at 317 (quoting

Plummer, 186 F.3d at 429). The ALJ must consider the medical findings that support a treating
physician's opinion that the claimant is disabled. See Adorno v. Shala/a, 40 F.3d 43, 48) (3d Cir. 1994).
However, opinions of a treating physician are entitled to controlling weight only when they are wellsupported and not inconsistent with other substantial evidence in the record. See Haff v. Commissioner

ef Soc. Sec., 218 F. App'x 212, 215 (3d Cir. Feb. 22, 2007) (affirming ALJ's decision to give little
weight to treating physician's reports because of "internal inconsistencies in various reports and
treatment notes ... as well as other contradictory medical evidence"); Fargnoli, 247 F.3d at 43.
Where the opinion of a treating physician conflicts with that of a non-treating, nonexamining physician, the ALJ may choose whom to credit but "cannot reject evidence for no reason
or for the wrong reason," Plummer, 186 F.3d at 429, and he must give some reason for discounting

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the evidence he rejects, see Diaz v. Commissioner of Soc. Sec., 577 F.3d 500, 505-06 (3d Cir. 2009). In
choosing to reject the treating physician's assessment, an ALJ may not make "speculative inferences
from medical reports" and may reject "a treating physician's opinion outright only on the basis of
contradictory medical evidence" and not due to his or her own credibility judgments, speculation, or
lay opinion. Plummer, 186 F.3d at 429; Frankenfield v. Bowen, 861F.2d405, 408 (3d Cir. 1988). "[A]n
ALJ is not free to set his [or her] own expertise against that of a physician who presents competent
evidence." Fery,uson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985). An ALJ impermissibly substitutes
his "own judgment for that of a physician" when he independently reviews and interprets the
objective medical evidence. Id.
Here, the ALJ detailed his reasons for affording less weight to the opinions of Dr.
Rodriquez. The ALJ accorded Dr. Rodriguez's opinions little weight, finding that Dr. Rodriguez
identified disabling limitations even though his records did not support said limitations. (fr. at 20)
The ALJ made specific reference to what he found to be inconsistencies between Dr. Rodriguez's
opinions that Plaintiff was unable to perform sedentary work and his July 22, 2011 report that
Plaintiff was in no acute distress, there were no sensory or motor abnormalities, her balance and gait
were normal, and no unusual anxiety or evidence of depression was noted. (Id. at 20) The evidence
of record as outlined by the ALJ supports the ALJ's evaluation of the reports of Dr. Rodriquez.
The State agency medical consultants determined that Plaintiff could perform a limited range
of work that involved occasionally lifting twenty pounds, frequently lifting ten pounds, standing at
least two hours in an eight-hour workday, sitting about six hours in an eight-hour day, and unlimited
pushing and pulling but with restricted postural and environmental limitations. The ALJ considered
the State agency medical consultants' opinions and assigned significant weight to their opinions,
noting that their opinions were largely consistent with the evidence of record as a whole. See

Chandler v. Commissioner of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (referring to SSR 96-6p and
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stating that State agency opinions merit significant consideration, because "State agency medical and
psychological consultants ... are experts in the Social Security disability programs, ... 20 C.F.R.

§§ 404.1527(£) and 416.927(£) require [ALJs] ... to consider their findings of fact about the nature
and severity of an individual's impairment(s).").
After a careful review of the evidence of record and considering Plaintiffs and Defendant's
positions, the Court finds that the ALJ did not improperly substitute his opinion for that of Dr.
Rodriquez and did not err in the assignment of weight to the opinions of Dr. Rodriquez.

2.

Plaintiff's Obesity

The parties disagree as to whether the ALJ properly considered Plaintiffs obesity. Social
Security Regulation SSR 02-lp states that "[the Commissioner] will find that obesity is a 'severe'
impairment" when it significantly limits an individual's ability to do basic work activities. Social
Security Ruling 02-lP, 2002 WL 34686281 (S.S.A. Sept. 12, 2002). In addition, the Commissioner
may find that obesity in combination with other impairments may be equivalent to an impairment in
the listings. Id. An ALJ must meaningfully consider a plaintiffs obesity, individually and in
combination with other impairments, at step three and every subsequent step of the disability
analysis. See Diaz, 577 F.3d at 504. Meaningful consideration requires that the ALJ "set forth the
reasons for his decision." Burnett v. Commissioner of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000).
Thus, an ALJ must "provide a 'discussion of the evidence' and an 'explanation of reasoning' for his
conclusion sufficient to enable meaningful judicial review." Diaz, 577 F.3d at 504 (quoting Burnett,
220 F.3d at 120).
At step two, the ALJ determined that Plaintiff had several severe impairments, including
obesity. (Tr. at 16) The ALJ noted that Plaintiffs obesity adversely affected her other physical
impairments, reducing her RFC to sedentary, and further that pursuant to SSR 02-lp, the effects of

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obesity and Plaintiffs other impairments restrict Plaintiff to sedentary tasks. (Id. at 19) The ALJ
applied this RFC at subsequent steps of the analysis. Accordingly, after careful review of the
evidence of record, the Court finds that the ALJ did not err in his consideration of Plaintiffs obesity
condition.

3.

Plaintiff's Pain and Residual Functional Capacity

Plaintiff argues that the ALJ failed to properly evaluate her allegations of pain and incorrectly
evaluated her RFC, while Defendant contends that the ALJ followed the controlling regulations in
evaluating the credibility of Plaintiffs complaints.
The ALJ's "determination or decision must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the
individual's statements and the reasons for that weight." Social Security Ruling 96-7p, 1996 WL
374186, at *3 (S.S.A.July 2, 1996); see also Schaudeck v. Commissioner of Soc. Sec., 181F.3d429, 433 (3d
Cir. 1999). Pursuant to 20 C.F.R. §§ 404.1529 and 416.929, the Commissioner must consider all
"symptoms, including pain," in the disability determination. Statements of pain alone are not
enough to establish a disability; the claimant must also present objective medical evidence to show
that the medical impairment "could reasonably be expected to produce the pain or other symptoms
alleged." 20 C.F.R. §§ 404.1529(a); 416.929(a); SSR 96-7p. Once the Commissioner has determined
from the "medical signs or laboratory findings" that the claimant has an impairment which could
reasonably produce the pain, then the Commissioner must evaluate the intensity, persistence, and
limiting effects of the Plaintiffs symptoms to determine how the pain limits the claimant's capacity
for work. See 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1); SSR 96-7p.

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In determining the limits on the claimant's capacity for work, the Commissioner will
consider the entire case record, including evidence from the treating, examining, and consulting
physicians, observations from agency employees, and other factors such as the claimant's daily
activities, descriptions of the pain, precipitating and aggravating factors, type, dosage, effectiveness,
and side effects of medications, treatment other than medication, and other measures used to relieve
the pain. See 20 C.F.R. §§ 404.1529(c), 416.929(c); SSR 96-7p. In addition, the ALJ should account
for the claimant's statements, appearance, and demeanor; medical signs and laboratory findings; and
physicians' opinions regarding the credibility and severity of plaintiffs subjective complaints. See
Social Security Ruling 96-7p. The Commissioner also will look at inconsistencies between the
claimant's statements and the evidence presented. See 20 C.F.R. §§ 404.1529(c)(4); 416.929(c)(4).
Inconsistencies in a claimant's testimony or daily activities permit an ALJ to conclude that some or
all of the claimant's testimony about her limitations or symptoms is less than fully credible. See Burns

v. Barnhart, 312 F.3d 113, 129-30 (3d Cir. 2002).
With regard to a claimant's credibility, an ALJ must give great weight to the claimant's
testimony "when this testimony is supported by competent medical evidence." Schaudeck, 181 F.3d
at 433. The ALJ "has the right, as the fact finder, to reject partially, or even entirely, such subjective
complaints if they are not fully credible." Baer;ga v. "Richardson, 500 F.2d 309, 312 (3d Cir. 1974).
Although the ALJ may weigh the credibility of the evidence, he must give some indication of the
evidence he rejects and the reasons for discrediting such evidence. See Burnett, 220 F.3d at 121.
Ordinarily, an ALJ's credibility determination is entitled to great deference. See R.eeftr v. Barnhart, 326
F.3d 376, 380 (3d Cir. 2003).
The ALJ found that Plaintiffs statements concerning the intensity, persistence, and limiting
effects of her symptoms were not credible to the extent that they were inconsistent with the RFC

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assessment. Plaintiff's assertion that the ALJ failed to consider her complaints of pain and objective
findings related thereto is not supported by the record. To the contrary, the ALJ considered
Plaintiff's complaints of pain and was permitted to conclude that those complaints were not fully
credible and did not limit her ability to perform unskilled sedentary work. The ALJ determined that
Plaintiff's complaints were inconsistent with the record, noting that she was functional on
oxycodone and continued with the medication. In addition, the ALJ found that Plaintiff would have
limitations with concentration, persistence or pace due, in part, to pain, and incorporated numerous
limitations related to Plaintiff's complaints of pain in his RFC finding. (See Tr. at 9 (RFC finding
moderate difficulties in concentration, persistence or pain due to pain, depression and the side
effects of her medications)) In addition, the ALJ thoroughly analyzed the medical evidence,
including relatively mild or unremarkable diagnostic findings that were not consistent with a finding
of totally disabling pain. (See Tr. 17-20 and medical records cited therein)
Accordingly, the Court finds that substantial evidence supports the ALJ's ruling, his rejection
of Plaintiff's testimony as not fully credible, and his evaluation of Plaintiff's RFC.
4.

The Hypothetical

Finally, Baptiste argues that the ALJ failed to properly include the deleterious side effects of
Methotrexate on her RFC. The Commissioner contends that the hypothetical question posed to the
VE adequately reflected Plaintiff's work capacity as determined by the AIJ.
As the Third Circuit explained in Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984):
Testimony of vocational experts in disability determination proceedings typically
includes, and often centers upon, one or more hypothetical questions posed by the
ALJ to the vocational expert. The ALJ will normally ask the expert whether, given
certain assumptions about the claimant's physical capability, the claimant can
perform certain types of jobs, and the extent to which such jobs exist in the national
economy. While the ALJ may proffer a variety of assumptions to the expert, the
vocational expert's testimony concerning a claimant's ability to perform alternative
employment may only be considered for purposes of determining disability if the
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question accurately portrays the claimant's individual physical and mental
impairments.
Reliance on an expert's answer to a hypothetical question will not constitute substantial
evidence unless all credibly established limitations are included; remand is required where the
hypothetical question is deficient. See Anderson v. Astrue, 825 F. Supp. 2d 487, 498 (D. Del. 2011).
"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." Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987).
Third Circuit case law and governing regulations have provided guidance on whether a
limitation is "credibly established:"
Limitations that are medically supported and otherwise uncontroverted in the record,
but that are not included in the hypothetical question posed to the expert, preclude
reliance on the expert's response. Relatedly, the ALJ may not substitute his or her
own expertise to refute such record evidence. Limitations that are medically
supported but are also contradicted by other evidence in the record may or may not
be found credible. The ALJ can choose to credit portions of the existing evidence
but cannot reject evidence for no reason or for the wrong reason. Finally, limitations
that are asserted by the claimant but that lack objective medical support may possibly
be considered nonetheless credible. In that respect the ALJ can reject such a
limitation if there is conflicting evidence in the record, but should not reject a
claimed symptom that is related to an impairment and is consistent with the medical
record simply because there is no objective medical evidence to support it.

Rutherford, 399 F.3d at 554).
The final responsibility for determining a claimant's RFC is reserved to the Commissioner.

See Breen v. Commissioner of Soc. Sec., 504 F. App'x 96 (3d Cir. Nov. 14, 2012) (citing 20 C.F.R.

§§ 404.1546(c), 416.946(c)).
Plaintiff argues that the ALJ here erred in posing the hypothetical questions, referring to the
limitations as opined to by Dr. Rodriquez. However, as discussed above, the ALJ accorded little
weight to the opinions of Dr. Rodriquez. Instead, the hypothetical questions posed by the ALJ

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reflected the opinions of the State agency consultants, opinions to which the ALJ accorded
significant weight.

In addition, Plaintiff argues that the ALJ erred in not considering the effects of
Methotrexate. The hypothetical posed, however, included consideration of "moderate difficulties in
concentration, persistence or pace" and, as determined the ALJ, Plaintiff had moderate difficulties in
concentration, persistence, or pace due, in part, to the side effects of her medication." (Tr. at 19)
The Court finds that the first hypothetical -- which limited the jobs that Plaintiff could
perfonn as less than the full range of sedentary work -- accurately conveyed all of Plaintiff's
limitations as reflected in the RFC (an RFC the Court has already found is based on substantial
evidence of record). The more limiting hypothetical posed at the hearing, with regard to the effects
of Methotrexate, that the ALJ did not discuss in his decision, was based on Plaintiffs testimony
regarding the side effects of the medication but, as discussed, the ALJ found Plaintiff not fully
credible (a finding the Court has already found is based on substantial evidence of record). Hence,
the ALJ was not required to incorporate the more limiting hypothetical into his decision. See Johnson

v. Commissioner of Soc. Sec., 398 F. App'x 727, 736 (3d Cir. Oct. 27, 2010) (finding ALJ did not need to
make explicit his reason for not considering a second hypothetical which included a restriction
which was not included in the RFC, since that hypothetical was of no relevance).
The ALJ's first hypothetical question to the VE accurately conveyed Plaintiffs limitations
and the VE's testimony provided substantial evidence for the ALJ's conclusion. The Court finds
that the ALJ did not fail to provide an accurate hypothetical to the VE.

V.

CONCLUSION
For the foregoing reasons, the Court will deny Plaintiff's motion for summary judgment and

will grant Defendant's motion for summary judgment.
An appropriate Order will be entered.
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