Morris v. Astrue

Filing 23

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 2/26/2014. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

ALONZO MORRIS,

)
)

Plaintiff,

v.

)
)

Civ. No. 12-1720-SLR

)

)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security,)
)
Defendant.
)
)

Karen Y. Vicks, Esquire of Law Office of Karen Y. Vicks, LLC. Counsel for Plaintiff.
Charles M. Oberly Ill, United States Attorney, Wilmington, Delaware and Heather
Benderson, Special Assistant United States Attorney, Office of the General Counsel
Social Security Administration. Of Counsel: Nora Koch, Esquire, Acting Regional Chief
Counsel, Region Ill and Maija DiDomenico, Esquire, Assistant Regional Counsel of the
Office of the General Counsel Social Security Administration, Philadelphia,
Pennsylvania. Counsel for Defendant.

MEMORANDUM OPINION

Dated: February 26, 2014
Wilmington, Delaware

I. INTRODUCTION
Alonzo Morris ("plaintiff') appeals from a decision of Carolyn W. Colvin, Acting
Commissioner of Social Security ("defendant"), denying his application for Disability
Insurance Benefits ("DIS") and supplemental security income (SSI) under Title II of the
Social Security Act (the "Act"), 42 U.S.C. §§ 401-434, 1381-1383f. The court has
jurisdiction pursuant to 42 U.S.C. § 405(g). 1
Currently before the court are the parties' cross-motions for summary judgment.
(D.I. 15, 20) For the reasons set forth below, plaintiff's motion will be denied and
defendant's motion will be granted.

II. BACKGROUND
A. Procedural History
Plaintiff filed applications for DIS and SSI on March 8, 2002, 2 alleging disability
beginning on March 18, 2001, 3 due to "bipolar disorder, attention deficit disorder
inattentive type, arthritis left hip." (D.I. 15 at 46, 534-36, 673) On November 21, 2006,
after a hearing on August 23, 2006 ("the 2006 hearing"), the ALJ issued a partially
favorable decision ("the 2006 decision"), finding that plaintiff became disabled on April

1

Under § 405(g), [a]ny individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party ... may obtain a review of
such decision by a civil action commenced within sixty days after the mailing to him of
notice of such decision .... Such action shall be brought in the district court of the
United States for the judicial district in which the plaintiff resides .... 42 U.S.C. § 405(g).
2

Piaintiff previously applied for DIS; the application was denied at the
reconsideration level in March 1999 and plaintiff did not appeal. (D.I. 15 at 41, 44)
3

Piaintiff originally alleged his alleged disability onset date as February 15, 1997,
but amended it to correspond to the diagnosis of his hip impairments. (D. I. 15 at 46,
673)

17, 2006. (/d. at 4-6, 14-21, 27 -30) After an unsuccessful appeal to the Appeals
Council (id. at 4-6), plaintiff appealed to the United States District Court (id. at 488-89),
which remanded the case for further administrative proceedings (id. at 490-512). After
another hearing, the ALJ issued another partially favorable decision on May 28, 2010
("the 2010 decision"), finding that plaintiff was disabled from March 18, 2001 through
November 1, 2003, and then again beginning on April 17, 2006. 4 (/d. at 581-96)
Plaintiff again appealed. The Appeals Council vacated the 2010 decision and
remanded the case for further review because the recording of the hearing could not be
located. (/d. at 472, 597-99) After a third administrative hearing, the ALJ issued
another partially favorable decision on January 19, 2012 ("the 2012 decision"), 5 finding
again that plaintiff was disabled from March 18, 2001 through November 1, 2003, and
then again beginning on April 17, 2006. (/d. at 472-87) Plaintiff unsuccessfully sought
review by the Appeals Council. (/d. at 450-53) On December 17, 2011, plaintiff filed
the current action for review of the 2012 decision. (D.I. 15)
B. Medical History
1. Hip replacement
Plaintiff underwent a left total hip replacement on July 22, 2003 after a history of
left hip osteoarthritis. (D. I. 15 at 207-08, 215-16, 313-18) On August 11, 2003,
plaintiff's primary care physician, Domingo G. Aviado, M.D. ("Dr. Aviado"), noted plaintiff

4

Piaintiff was last insured on June 30, 2001. (D.I. 15 at 41, 554).

5

The 2012 decision incorporates plaintiff's testimony at both previous hearing as
summarized in the ALJ's 2006 and 2010 decisions, as well as the medical evidence
described in the 2010 decision.

2

was doing "fairly well" after his hip replacement. (/d. at 200) On September 4, plaintiff
complained to Dr. Aviado of "muscle spasm[s] especially in left leg," with pain in the "left
calf, ankle and foot." (/d. at 199) On September 10, 2003, at six weeks post-operative,
plaintiff followed up with orthopedic specialist Wilson Choy, M.D. ("Dr. Choy").
Treatment notes indicate that plaintiff reported he was "doing very well now and [was]
pleased with the results." (/d. at 206) Plaintiff was no longer taking Oxycontin, got up
early in the morning to get dressed, and "[t]his [was] the best that he has felt in 10
years." (/d.) Dr. Choy observed "excellent" left hip range of motion, and left hip x-rays
revealed a well fixed prosthesis. (!d.) Dr. Choy referred plaintiff to physical therapy,
recommended aquatic therapy and exercises to work on plaintiff's iliopsoas muscles,
prescribed Celebrex and Vicodin, and advised activity as tolerated. (/d.)
On November 21, 2003, approximately four months post hip replacement, Dr.
Choy's notes indicate that plaintiff was doing "very well," was no longer taking any
narcotic pain medication, and was "walking well with no assistive device." Plaintiff had
some pain in his left groin and walked with a "little limp." (ld. at 205) Plaintiff had
excellent passive hip range of motion, full leg extension, and no pain to the thigh or
groin with knee strike. (/d.) Dr. Choy again recommended aquatic therapy, but
prescribed no medications and advised activity as tolerated. (/d.)
On January 14, 2004, plaintiff was doing "very well" and his tendinitis was
improving. (!d. at 302) An examination revealed "no pain at all" for passive left hip
range of motion, no thigh or groin pain with knee strike, and some groin pain and
tenderness along the iliopsoas tendon. The x-rays showed a well fixed femoral and

3

acetabular implant in excellent alignment. (Id.) Dr. Choy recommended stretching the
iiopsoas muscle with warm compresses, did not prescribe any medication and advised
activity as tolerated. (/d.)
On March 16, 2004, plaintiff consulted Dr. Aviado for a cold and cough. Dr.
Aviado noted that plaintiff "[s]till [had] difficulty ambulating with [l]eft hip" and plaintiff
requested that Dr. Aviado complete a state disability form. (ld. at 195) Dr. Aviado
indicated on the disability form that plaintiff had left hip surgery in 2003 and was unable
to work because of "hip arthritis, asthma, and [hypertension]." (ld. at 204) Plaintiff
consulted Dr. Aviado for other medical issues on April 12, 2004, May 3, 2004, and June
29, 2004, and did not complain of issues or pain with his hips. (/d. at 192-95)
On June 30, 2004, Dr. Choy noted plaintiff was doing "very well," and his groin
pain was "much improved." (ld. at 300) Plaintiff was able to achieve full leg extension
and had "no pain at all to the thigh or groin with knee strike." (ld.) Plaintiff's x-rays
revealed "excellent" ingrowth of the left hip prosthesis. (/d.) Dr. Choy prescribed no
medications, advised that no further intervention was required, and recommended a
follow-up in one year. (Id.)
On January 12, 2005, plaintiff reported "excruciating" hip pain at the Veterans
Affairs Medical Center (VA). (ld. at 401) Treatment notes indicate the pain was
actually in the lower back and plaintiff had shooting pain down the back of his leg. (Id.)
On physical examination, plaintiff exhibited pain in his left groin, low back, and leg when
performing a straight leg raise. (Id. at 402) The physician ordered x-rays. (Id.)
On March 29, 2005, state agency physician Vinad Katareo, M.D. ("Dr. Katareo")

4

reviewed the record and opined that plaintiff retained the ability to lift and carry 20
pounds occasionally and 10 pounds frequently; stand and/or walk for about six hours
and sit for about six hours during an eight-hour workday; push and pull consistent with
his lifting and carrying abilities, except for the operation of foot controls with his left leg;
occasionally climb, balance, stoop, kneel, crouch, and crawl; and avoid concentrated
exposure to extreme cold, vibration, pulmonary irritants, and hazards. (/d. at 364-71)
According to his Function Report form completed on March 8, 2005, plaintiff prepared
frozen meals, cared for his personal needs, drove, rode in a car, walked (but "not far"),
used public transportation, shopped in stores, spent time with others, and did not use a
cane or other assistive device. (/d. at 82-88)
X-rays taken on August 11, 2005 revealed "[m]ild degenerative hypertrophic
spurring involving all of the lumbar vertebral bodies," and an intact hip prosthesis with
no evidence of loosening. (/d. at 397-98) On that date, plaintiff was fitted for a straight
cane. (/d. at 391-92)
On October 24, 2005, during a VA visit, plaintiff reported a history of chronic low
back pain for several years, which he treated with a heating pad, Tylenol, and balm.
(/d. at 387-88) Plaintiff did not do his back exercises, as he was afraid of hurting his

back. (/d. at 388) On physical examination, plaintiff had limited lumbar spine range of
motion, but a negative straight leg raising test, full motor strength throughout, intact
sensation, and symmetric reflexes. (/d.) Plaintiff was ambulating independently. (/d.)
The VA physician provided instructions for simple back stretching exercises and
ordered a back brace at plaintiff's request. (/d. at 387 -88)

5

On February 22, 2006, a lumbar spine CT scan revealed disc bulging at L3-4
and L4-5 with no focal disc herniation, mild bilateral facet joint degenerative changes
from L3-4 through L5-S1, and no evidence of spinal stenosis. (/d. at 381) On March
21, 2006, plaintiff was issued a cane. (/d. at 377)
On November 12, 2009, Jay Freid, M.D. ("Dr. Freid") evaluated plaintiff at the
request of the state agency. (/d. at 564-76) Plaintiff reported that he had hip pain, but
took no medications for it. (/d. at 564) He continued to smoke a pack of cigarettes
every two days despite his diagnosis of chronic obstructive pulmonary disease
("COPD"). (/d.) On examination, plaintiff walked slowly without an assistive device and
exhibited full (5/5) motor strength in his arms and legs, normal sensation in his legs,
good range of motion in all joints and both hips, and only mild pain with left hip
movement. (/d. at 565) Dr. Freid noted that plaintiff seemed to be "subjectively limited
with more physical activities." (/d.) Dr. Freid opined that plaintiff could lift and carry up
to 20 pounds occasionally and 10 pounds frequently; sit for eight hours, stand for two
hours, and walk for one hour during an eight-hour day, with additional postural and
environmental restrictions; only occasionally reach with either arm; and should never
perform postural activities, like balancing, kneeling, or stooping. (/d. at 571-76)
2. Pulmonary issues
Plaintiff has a history of sinus issues. (/d. at 192-201) Through June 2004, Dr.
Aviado treated plaintiff for chronic sinusitis and prescribed medication, including a
bronchodialator on March 16, 2004. 6 (/d. at 192-201) Starting in October 2004, plaintiff
6

Piaintiff points out that on October 15, 2003, Dr. Aviado noted "occasional
wheez[ing and a] harsh cough;" plaintiff was diagnosed with acute bronchitis on that

6

received treatment for his sinusitis and pulmonary complaints either from another
primary care physician or an Ear, Nose, and Throat specialist at the VA. (/d. at 233-34,
250-51, 376-77, 379-84, 411) At various times, plaintiff was assessed with chronic
smokers rhinosinusitis and COPD, prescribed medication and bronchodilator therapy,
and advised to quit smoking. (/d. at 376-77, 382, 402, 412) Physician notes indicate
plaintiff smokes at least a half-pack of cigarettes daily. (/d. at 233) Plaintiff participated
in several smoking cessation programs, which were unsuccessful. (/d. at 379
(indicating plaintiff failed to attend a smoking cessation visit), 400-01, 403, 409)
Plaintiff underwent several diagnostic studies during the relevant period. On
October 29, 2003, x-rays of plaintiff's paranasal sinuses were negative. (/d. at 213) On
March 19, 2004, plaintiff underwent a pulmonary function study and Dr. Aviado
diagnosed COPD. (/d. at 211) On November 30, 2004, sinus x-rays revealed bilateral
frontal and bilateral ethmoid sinusitis. (/d. at 250, 252) On January 9, 2005 a
pulmonary physician at the VA diagnosed plaintiff with mild obstructive airways disease
after testing on December 17, 2004. (/d. at 234) On March 23, 2006, a maxillofacial
CT scan revealed mild to moderate thickening in plaintiff's sinuses. (/d. at 378)
C. Administrative Hearing
1. Plaintiff's testimony
An administrative hearing was held on November 15, 2011. (/d. at 702-03)
Plaintiff appeared, represented by counsel. Plaintiff was born on April 17, 1951 and
was sixty on the date of the hearing. (/d. at 706) He is divorced and has adult children.

date. (/d. at 198)

7

(!d. at 706, 716) He lives by himself and does housework when he is able. (!d. at 713,
720-21) He has a driver's license, but does not drive a lot. (/d. at 706-07) He
completed ninth grade and obtained a GED. (!d. at 707) He took some college
courses (including asbestos courses) for two years at the University of Delaware and
DeiTech. (/d. at 715-16) He served in the military from 1968-70. (/d. at 707) He wears
glasses to read. (/d. at 721)
His past work history included welder, painter, asbestos removal, and shipping
and receiving. (/d. at 708) He has not worked since 1998, when he worked doing
maintenance for Dunkin Donuts for a week. (/d. at 707-08) He draws a VA pension of
approximately $985 per month, 7 but does not recall drawing workmen's compensation
or unemployment. (/d. at 716-17, 720)
Prior to his hip surgery, plaintiff testified he had arthritis and could barely walk.

(/d. at 708-09) He could only lift about three to five pounds, as he could not bend or
squat. (/d. at 717 -18) He could not stand or sit for longer than about twenty minutes,
before starting to get pain. (/d. at 718-19) He could not walk more than a block. (/d. at
718) He used a cane. (/d. at 722) He did not injure his back, however, it started
hurting at the same time as his hips began hurting. (/d. at 723)
Plaintiff had his left hip replaced in 2003. (/d. at 708-09) He testified that he
improved somewhat after surgery, he was a little better, but still had problems walking
long distances or staying on his feet. (/d. at 709) He could continuously walk for about
twenty minutes. (/d. at 709-10) He was still only able to walk about a block. (/d. at

7

lt is unclear from the testimony when plaintiff began drawing the pension.

8

720) He could not sit for long. (!d. at 720) He had back problems and problems sitting
for long periods. (!d. at 71 0) He has to keep moving from side to side and move
around while sitting. (/d. at 712) Post surgery, he was instructed to not lift over ten or
twenty pounds. (/d. at 712) His hip and back pain were about a six on a scale of one
through ten. (!d. at 712-13) He was on pain medication, but now takes over-thecounter medication. (/d. at 711, 719) He was sometimes able to sleep through the
night. (!d. at 713) He continued to use a cane post-surgery. (/d. at 722) He does not
recall when he was given a back brace, but continues to use it. (/d. at 722-23) He has
not had any hospitalizations or emergency room visits recently for his conditions (id. at
711, 721 ), although he also has issues with his right hip and needs surgery. (/d. at 71 0)
He was diagnosed with bipolar disorder in the 1980s and received some
treatment. (!d. at 710, 719) He testified he had no problems with alcohol and has not
been arrested for drugs or alcohol. (/d. at 719)
When asked about a typical day after hip surgery, plaintiff testified he went to
"rehab" in the morning, watched a lot of TV and read. (!d. at 713-14) He testified that
his improvement after surgery was pain related. (!d. at 714) His pain went from a ten
to twelve before surgery, to less severe after surgery. (/d.) He did not feel that he
could have handled a job which required standing for most of the day, as the doctor told
him no prolonged standing and his hip was only guaranteed for ten years. (/d. at 71415) He could no longer perform hands-on jobs. (/d. at 715)

2. VE's testimony
At the hearing, the VE testified that plaintiff's vocational background consisted of

9

work as a painter, a welder, and asbestos worker, which are at a heavy exertional level
with a special vocational preparation ("SVP") of 2. (/d. at 724-25) The VE opined that
there were no transferrable skills to a lower level of exertion. (/d. at 728)
The ALJ posed the following to the VE:
I would like for you to assume a hypothetical of a person
who's 49 years of age on his alleged onset date, has a 121h
grade education, plus a couple of years of asbestos
teaching at the college, no certificate however. Past
relevant work as just indicated, and right-handed by nature.
Suffering from degenerative disk disease in 2006 at
the L3-4-5 level. He had a hip replacement in 2003, in July
and had back then according to his testimony some
depression with a bipolar component and/or attention deficit
disorder by record.
And he had his hip replacement as indicated in 2003
with improvement. But he did have some pain and
discomfort and depression, moderate in nature. The file
indicates perhaps some personality disorder, and all of
which were somewhat relieved by his medications without
significant side effects.
And if I find at that time that he was moderately
limited in his ability to perform his ADLs and to interact
socially and to maintain his concentration, persistence and
pace, all due to his depression and pain, and as a result
thereof would need to have some simple, routine, unskilled
jobs, Ms. Cody, SVP one or two in nature, you can explain
what that means.
He was able to attend tasks and complete schedules
and still is. Jobs that were low stress, low concentration, low
memory. By that I mean jobs that are one or two-step tasks.
No production rate pace work. Jobs that had little interaction
with the public, coworkers or supervisors. Jobs that would
allow him to deal with things rather than people during the
period in question.
And jobs that wouldn't have decision[ ]making or
changes in work setting or judgment to perform the work due
to his depression and pain. And if I find that he could have
lifted 10 pounds frequently, 20 on occasion, could have
stood for 20 or 30 minutes, sit for 20 or 30 minutes
consistently on an alternate basis, however, eight hours a
day, five days a week. Would need to avoid heights and
10

hazardous machinery due to his hip.
All subject to the usual and customary breaks during
a normal work day. No prolonged climbing, balancing and
stooping, and by that I mean no more than once or twice an
hour. Jobs that would allow him to avoid stair climbing,
ropes, ladders and like devices due to his condition. With
those limitations, would have been able to do some
sedentary only work activities. Can you give me jobs such a
person could do in significant numbers?
(/d. at 725-27) The VE responded: "Yes, Your Honor.... [a]t the light exertionallevel, 8

a position as an inspector ... , a filler, ... hand bander . . . . At the sedentary exertion aI
level, 9 a position as a dial marker ... , bench hand ... , [and] table worker .... " (/d. at

8

The Social Security Regulations define light work as follows:
Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine
that he or she can also do sedentary work, unless there are
additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.

20 C.F.R. § 404.1567(b)
9

The Social Security Regulations define sedentary work as follows:
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.

20 C.F.R. § 404.1567(a).
11

727-28) On cross-examination, the VE was asked:
Going back to the hypothetical number one with the sit/stand
option. If the sit/stand option, which I believe was defined as
20 to 30 minutes at a time sitting, 20 to 30 minutes at a time
standing, if the whole reason for having that sit/stand option
was because of pain and the person was needing to
alternate between the positions because of that and they
were going to need an off-task break of about ten minutes or
so, would that person be able to do any work?
(/d. at 728-29) The VE responded, "[n]o. That amount of breaks would be excessive in

the employer's opinion and would certainly preclude any type of employment." When
asked about the impact of using a cane, "necessary for pain and for balance," the VE
opined that it would preclude the light positions. (/d. at 729)

D. The ALJ's Findings
Based on the factual evidence and the testimony of plaintiff and the VE, the ALJ
determined that the plaintiff was not disabled from November 1, 2003 through April 17,
2006. (/d. at 486) The ALJ's findings are summarized as follows: 10
1. The claimant last met the insured status requirements of the Act on
June 30, 2001.
2. The claimant has not engaged in substantial gainful activity since
March 18, 2001, the date claimant became disabled (20 C.F.R. §§
404.1520(b), 404.1571 et seq.).
3. Plaintiff was under a disability from March 18, 2001 through October
31, 2003 as defined by the Act (20 CFR 404.1520(g)), and had the
following severe impairments: degenerative disc disease, bilateral
osteoarthritis of the hips with July 2003 total left hip replacement, chronic
obstructive pulmonary disease, bipolar disorder, attention deficit
hyperactivity disorder, learning disability, and substance abuse (20 C.F.R.
§§ 404.1520(c)).
10

The ALJ's rationale, which was interspersed throughout the findings, is omitted
from this recitation.
12

4. The claimant has not developed any new impairments since November
1, 2003, the date the claimant's disability ended. The claimant's severe
impairments were the same with the exception of chronic obstructive
pulmonary disease.
5. Beginning November 1, 2003, the claimant did not have an impairment
or combination of impairments that met or medically equaled one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. §§ 404.1520(f)(2)).
6. Medical improvement occurred as of November 1, 2003, the date
claimant's disability ended (20 C.F.R. §§ 404.1594(b)(1 )).
7. The medical improvement was related to claimant's ability to work
because there was an increase in the claimant's residual functional
capacity (20 C.F.R. §§ 404.1594(b)(4)(i)).
8. Beginning on November 1, 2003, the claimant had the residual
functional capacity to perform light work as defined in 20 C.F.R. §
404.1567(b) except that he could sit for 20 to 30 minutes and stand for 20
to 30 minutes consistently on an alternate basis for 8 hours a day, 5 days
a week; he would need to avoid heights and hazardous machinery; he
required jobs with no prolonged climbing, ropes, ladders and like devices.
The claimant was limited to simple, routine, unskilled, SVP 1-2 jobs with
low stress, low concentration, and low memory; no production rate pace
work; jobs with little interaction with the public, co-workers, and
supervisors; jobs working with things and not people; and jobs with little
decision making, changes in the work setting, or judgment.
9. The claimant remains unable to perform past relevant work (20 C.F.R.

§ 404.1565 and 416.965).
10. On November 1, 2003 the claimant was an individual closely
approaching advanced age (20 C.F.R. § 404.1563). On April17, 2006,
claimant's age category changed to an individual of advance age (20
C.F.R. § 404.1563).
11. The claimant's education level did not change (20 C.F.R. §
404.1564).
12. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is "not disabled," whether or not the
claimant has transferrable job skills (See SSR 82-41 and 20 C. F. R. Part
404, Subpart P, Appendix 2).
13

13. From November 1, 2003 through April 17, 2006, considering the
claimant's age, education, work experience, and residual functional
capacity, there were jobs that existed in significant numbers in the
national economy that the claimant could have performed (20 C.F.R. §
404.1560(c) and 404.1566).
14. As of April 17, 2006, the date the claimant's age category changed,
considering the claimant's age, education, work experience, and residual
functional capacity, there were no jobs that existed in significant numbers
in the national economy that the claimant could have performed (20
C.F.R. § 404.1560(c) and 404.1566).
15. The claimant was not under a disability, as defined in the Social
Security Act, from November 1, 2003 through Apri117, 2006, but became
disabled on April 17, 2006, the date the claimant's age category changed
(20 C.F.R. § 404.1594(g).
(/d. at 476-87)

Ill. STANDARD OF REVIEW
Findings of fact made by the ALJ, as adopted by the Appeals Council, are
conclusive if they are supported by substantial evidence. See 42 U.S.C. §§ 405(g),
1383(c)(3). Judicial review of the ALJ's decision is limited to determining whether
"substantial evidence" supports the decision. See Monsour Med. Ctr. v. Heckler, 806
F.2d 1185, 1190 (3d Cir. 1986). In making this determination, a reviewing court may
not undertake a de novo review of the ALJ's decision and may not re-weigh the
evidence of record. See id. In other words, even if the reviewing court would have
decided the case differently, the ALJ's decision must be affirmed if it is supported by
substantial evidence. See id. at 1190-91.
The term "substantial evidence" is defined as less than a preponderance of the
evidence, but more than a mere scintilla of evidence. As the United States Supreme
Court has noted, substantial evidence "does not mean a large or significant amount of
14

"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 Supreme Court also has embraced this standard as the appropriate standard for
determining the availability of summary judgment pursuant to Federal Rule of Civil
Procedure 56. "The inquiry performed is the threshold inquiry of determining whether
there is the need for a trial-whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986).
This standard mirrors the standard for a directed verdict under Federal Rule of
Civil Procedure 50( a), "which is that the trial judge must direct a verdict if, under the
governing law, there can be but one reasonable conclusion as to the verdict. If
"reasonable minds could differ as to the import of the evidence, however, a verdict
should not be directed." See /d. at 250-51 (internal citations omitted). Thus, in the
context of judicial review under§ 405(g), "[a] single piece of evidence will not satisfy the
substantiality test if [the ALJ] 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." See Brewster
v. Heckler, 786 F.2d 581, 584(3d Cir.1986)(quoting Kentv. Schweiker, 710 F.2d 110,

114 (3d Cir. 1983)). Where, for example, the countervailing evidence consists primarily
of the plaintiff's subjective complaints of disabling pain, the ALJ "must consider the
subjective pain and specify his reasons for rejecting these claims and support his
15

conclusion with medical evidence in the record." Matullo v. Bowen, 926 F.2d 240, 245
(3d Cir. 1990).
"Despite the deference due to administrative decisions in disability benefit cases,
'appellate courts retain a responsibility to scrutinize the entire record and to reverse or
remand if the [Commissioner]'s decision is not supported by substantial evidence."'
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d
968, 970 (3d Cir. 1981 )). "A district court, after reviewing the decision of the
[Commissioner] may, under 42 U.S.C. § 405(g) affirm, modify, or reverse the
[Commissioner]'s decision with or without a remand to the [Commissioner] for
rehearing." Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984).

IV. DISCUSSION
A. Disability Determination Process

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

16

work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); 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; Plummer v. Apfel,
186 F.3d 422, 427-28 (3d Cir. 1999). 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. 20 C.F.R. § 404.1520(a)(4). At step one, the Commissioner must determine
whether the claimant is engaged in any substantial gainful activity. See 20 C.F.R. §
404.1520(a)(4)(1) (mandating finding of non-disability 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) (mandating finding of non-disability when claimant's impairments are
not severe). If the claimant's impairments are severe, the Commissioner, at step three,
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); 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). 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).
At step four, the Commissioner determines whether the claimant retains the RFC

17

to perform his past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv) (stating claimant
is not disabled if able to return to past relevant work); Plummer, 186 F.3d at 428. A
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. Massanari, 247 F.3d 34, 40 (3d Cir.
2001). "The claimant bears the burden of demonstrating an inability to return to h[er]
past relevant work." Plummer, 186 F.3d at 428.
If 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. See 20 C.F.R. § 404.1520(g) (mandating finding
of non-disability when claimant can adjust to other work); Plummer, 186 F.3d at 428. At
this last step, the burden is on the Commissioner to show that the claimant is capable
of performing other available work before denying disability benefits. See Plummer,
186 F.3d at 428. In other words, the Commissioner must prove that "there are other
jobs existing in significant numbers in the national economy which the claimant can
perform, consistent with her medical impairments, age, education, past work
experience, and [RFC]." /d. In making this determination, the ALJ must analyze the
cumulative effect of all of the claimant's impairments. See id. At this step, the ALJ
often seeks the assistance of a vocational expert. See id.
B. Whether the ALJ's Decision is Supported by Substantial Evidence

On January 19, 2012, the ALJ found that plaintiff was not under a disability within
the meaning of the Act from November 1, 2003 to April 17, 2006 ("the relevant time
period"). The ALJ concluded that, despite plaintiff's severe impairments (degenerative

18

disc disease, bilateral osteoarthritis of the hips with a July 2003 total left hip
replacement, bipolar disorder, attention deficit hyperactivity disorder, learning disability,
and substance abuse), as of November 1, 2003, he had the residual functional capacity
to perform light work except that he could sit for 20 to 30 minutes and stand for 20 to 30
minutes consistently on an alternate basis for 8 hours a day, 5 days a week; he would
need to avoid heights and hazardous machinery; he required jobs with no prolonged
climbing, ropes, ladders and like devices. The claimant was limited to simple, routine,
unskilled, SVP 1-2 jobs with low stress, low concentration, and low memory; no
production rate pace work; jobs with little interaction with the public, co-workers, and
supervisors; jobs working with things and not people; and jobs with little decision
making, changes in the work setting, or judgment. After considering the VE's
testimony, the ALJ concluded that, while plaintiff could no longer perform his past work,
there were a significant number of other jobs in the national economy, including
inspector, filler, and hand bander at the light exertionallevel, as well as dial marker,
bench hand, and table worker at the sedentary exertionallevel.
Plaintiff contends that the ALJ erred in finding that his COPD was no longer a
severe impairment; finding medical improvement with respect to his bilateral hip
impairment; and finding that plaintiff could perform a range of light, not sedentary work.
Defendant disagrees and contends that substantial evidence supports the ALJ's
decision that plaintiff was not disabled under the Act from November 1, 2003 to April
17, 2006.
1. Chronic obstructive pulmonary disease
Plaintiff argues that the medical evidence does not support the finding that his

19

COPD was no longer a severe impairment as of November 1, 2003. The ALJ found
that plaintiff's primary care physician treated his COPD through June 2004, after which
the VA treated plaintiff. The ALJ cited the medical records reflecting that plaintiff's
respiratory impairment was under control with medication, no hospitalizations were
required, and a pulmonary function test in January 2005 confirmed mild obstructive
disease. The ALJ noted that plaintiff continued smoking and did not testify as to his
pulmonary symptoms at an administrative hearing in 2011.
A "severe" impairment is one that significantly limits a claimant's physical or
mental ability to do basic work activities. 20 C. F. R. §§ 404.1520( c), 416. 920( c).
Examples of basic physical work activities include functions like walking, sitting, lifting,
pushing, pulling, reaching, carrying, or handling. 20 C.F.R. §§ 404.1521, 416.921. The
evidence cited by the ALJ supports a conclusion that plaintiff's COPD was not a
"severe" impairment as of November 1, 2003.
Plaintiff argues that the ALJ should have compared plaintiff's medical condition
before and after November 1, 2003, in order to find "medical improvement." 20 C.F.R.

§§ 404.1594(b)(7). Medical improvement must be proven by "changes (improvement)
in the symptoms, signs and/or laboratory findings associated with [the claimant's]
impairment." 20 C.F.R. §§ 404.1594(b)(1 ), 416.994(b)(1 )(I). Plaintiff points to the fact
that a prior pulmonary function study had shown similar values (no medical source
compared the two tests), thus there was no significant medical changes beginning on
November 1, 2003. Nor were there any changes to his chest x-rays. 11 The ALJ's

11

While plaintiff admits that his condition after April 17, 2006 is not at issue,
plaintiff refers to his testimony on August 23, 2006 regarding his pulmonary problems at
20

findings indicate that he concluded that plaintiff's COPD was "under control," based on
the signs described in the cited medical records for the relevant time period. The court
concludes that the ALJ did not err in finding that plaintiff's COPD was no longer severe
as of November 1, 2003. 12· 13
2. Bilateral hip impairment
Plaintiff argues that the ALJ erred in finding medical improvement of his bilateral
hip impairment, as the ALJ focused only on a short period of time immediately following
plaintiff's surgery and did not take into account his continued reports of pain. To
support his argument that his hip pain did not improve, plaintiff points to various
complaints throughout the record. 14 For example, plaintiff cites to his report to Dr.
Aviado, that he was doing "fairly well," on August 11, 2003, less than a month after his
hip replacement on July 22, 2003. Plaintiff also references the pain relief medications

that time. Plaintiff's testimony as to his condition in August of 2006 is not dispositive as
to his condition during the relevant time period.
12

Moreover, regardless of whether the ALJ erred in finding that plaintiff's COPD
was no longer severe, the ALJ found in plaintiff's favor at that step (holding that he did
have severe impairments), so any such error was harmless. See Salles v. Comm'r of
Social Security, 229 F. App'x 140, 145 n. 2 (3d Cir. 2007) ("Because the ALJ found in
Salles' favor at Step Two, even if he had erroneously concluded that some of [plaintiff's]
other impairments were non-severe, any error was harmless.") (citing Rutherford v.
Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)).
13

Additionally, defendant notes that two of the jobs identified by the VEinspector and hand bander- involved no atmospheric conditions; therefore, plaintiff
could have performed these jobs regardless of any functional restrictions stemming
from his COPD. See DICOT 727.687-062, 1991 WL 679674 Inspector; DICOT
920.687-026, 1991 WL 687967, Bander, Hand (both stating that atmospheric conditions
are not present, i.e., activity or condition does not exist).
14

Piaintiff does not separate out the opinions of his orthopedist from his primary
care physician and the VA, nor does he provide the dates of his chosen complaints.
21

he was taking in August 2006, however, this is not the relevant time period.
An ALJ is free to choose one medical opinion over another where the ALJ
considers all of the evidence and gives some reason for discounting the evidence he
rejects. See Diaz v. Commissioner of Soc. Sec., 577 F.3d 500, 505-06 (3d Cir. 2009);
Plummer, 186 F.3d at 429 ("An ALJ ... may afford a treating physician's opinion more or
less weight depending upon the extent to which supporting explanations are
provided."). Opinions of a treating physician are entitled to controlling weight only when
they are well-supported and not inconsistent with other substantial evidence in the
record. See Hall V. Commissioner of Soc. Sec., 218 F. App'x 212, 215 (3d Cir. 2007)
(unpublished) (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.
The ALJ based his conclusion of medical improvement on Dr. Choy's evaluations
of plaintiff following his left hip replacement on July 22, 2003. Dr. Choy's treatment
notes indicate plaintiff was no longer taking narcotic pain medication as of November
21, 2003 and was doing "very well" in June 2004. The ALJ explained that plaintiff still
experienced some pain, causing some limitation to his standing and walking. The ALJ
also discussed plaintiff's continued reports of pain to the VA and Dr. Aviado, including
plaintiff's reported pain in his left low back, hip, and leg in January 2005. While plaintiff
was given a cane in August 2005, the ALJ noted that there is no mention of plaintiff
using the cane when he returned to the VA in October 2005 for a back brace. Plaintiff

22

admitted that he was not doing recommended back exercises. 15 Plaintiff returned to the
VA in February 2006 after a car accident, complaining of lower back pain. The ALJ
concluded that plaintiff's reports regarding the intensity, persistence and limiting effects
of his symptoms were not credible for the relevant time period, when compared to the
medical evidence.
The ALJ detailed his reasons for affording little weight to Dr. Aviado's opinion
regarding plaintiff's inability to work in March 2004: (1) it was not consistent with the
opinion of the state agency reviewing consultant who opined that plaintiff could perform
a range of light work based on a review of the evidence; (2) it was not supported by Dr.
Aviado's contemporaneous treatment notes which did not document the severity of
symptoms or examination findings to support his conclusion; (3) the form Dr. Aviado
completed did not explain his conclusions or refer to any objective tests; (4) Dr. Aviado
was not a specialist in orthopedics or rehabilitative medicine, and Dr. Choy, plaintiff's
treating orthopedist, did not note any work restrictions; and (5) opinions regarding a
claimant's ability to work are administrative findings reserved to the Commissioner.
After a careful review of the evidence of record and considering plaintiff's and
defendant's positions, the court finds that the ALJ did not err in giving less weight to the
opinions of Dr. Aviado. Moreover, the court concludes that substantial evidence
supports the ALJ's decision that plaintiff's bilateral hip impairment was medically

15

The ALJ appropriately made reference to plaintiff's noncompliance with medical
care and treatment (i.e., the failure to stop smoking and stopping or refusing to take
medication). To obtain medical benefits, a claimant "must follow treatment prescribed
by ... [a] physician if ... [that] treatment can restore ... [the claimant's] ability to work." 20
C.F.R. § 404.1530.
23

improved as of November 1, 2003.
3. Type of work

Plaintiff argues that the ALJ erred in finding that plaintiff could perform a range of
light, not sedentary work. Plaintiff argues that the ALJ gave "considerable weight" to Dr.
Fried's opinion, but then ignored crucial restrictions therein without explanation,
including the standing and walking limitations, reaching occasionally, and performing
postural activities. Further, the ALJ misrepresented plaintiff's testimony regarding the
amount of weight he could lift or carry. The ALJ's finding of light work is contradicted by
plaintiff's use of a cane.
The ALJ stated that, based upon the medical evidence as of November 2003, a
limitation to lifting twenty pounds occasionally and ten pounds frequently was
reasonable. The ALJ concluded this was consistent with plaintiff's testimony at the
2010 hearing, of being able to lift twenty pounds and his testimony at the 2006 hearing
of lifting up to twenty-five pounds. 16 The ALJ then explained that the medical evidence
and plaintiff's subjective complaints supported additional limitations in sitting and
standing, i.e., standing and siting only twenty to thirty minutes at a time. The ALJ

16

The court notes that the testimony reads:
Q. What have they said to you about how much you should
or should not lift?
A. Basically they kind of left it up to me but no more than 25
pounds, that's for sure. On a constant lift. Although I have
tried to lift a few different things around the house, and from
time-to-time I've pulled a muscle or I've heard my prosthesis
snap and pop.
Q. What would you say you 're comfortable with? ...
A. Ten pounds.

24

concluded that the medical evidence of record did not support greater physical
restrictions as of November 2003.
The ALJ gave significant weight to the March 2005 state agency physical
assessment indicating a capacity for light work, consistent with the residual functional
capacity beginning November 1, 2003. The state agency found that the record
supported limiting plaintiff to lifting twenty pounds occasionally and ten pounds
frequently. The ALJ explained that the medical evidence supported additional
limitations on sitting and standing, as discussed above.
The ALJ gave considerable weight to Dr. Fried's opinion in November 2009,
which stated that plaintiff could lift twenty pounds occasionally and ten pounds
frequently, stating that this was consistent with the medical evidence beginning in
November 2003. The ALJ gave less weight to Dr. Fried's opinion regarding plaintiff's
ability to sit eight hours a day, stand for two hours a day and walk for one hour a day,
as the medical evidence supported the limitations discussed by the ALJ above.
The ALJ indicated that he did not find the plaintiff's statements concerning the
intensity, persistence and limiting effects of his symptoms as of November 1, 2003
credible, to the extent that they were inconsistent with the residual functional capacity
assessment determined from the medical evidence. An ALJ must give great weight to a
claimant's testimony only "when this testimony is supported by competent medical
evidence," and an ALJ may "reject such claims if he does not find them credible."
Schaudeck v. Commissioner of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999). The ALJ
"has the right, as the fact finder, to reject partially, or even entirely, such subjective
complaints if they are not fully credible." Baerga v. Richardson, 500 F.2d 309, 312 (3d
25

Cir. 1974 ). The ALJ took into account plaintiff's complaints, however, the ALJ assigned
more weight to Dr. Choy's treatment notes as plaintiff's orthopaedic specialist, than to
Dr. Aviado's as plaintiff's primary care physician.
The ALJ also noted that while plaintiff was given a cane in August 2005, there is
no mention of his using the cane when he returned to the VA in October 2005 for a
back brace. 17 That plaintiff's sitting and standing requirements total four hours of each
is not dispositive. See Santiago v. Barnhart, 367 F. Supp. 2d 728, 733 (E.D. Pa. 2005)
(stating that "[t]here is nothing oxymoronic in finding that a plaintiff can perform a limited
range of light work. Such a finding is appropriate where, as here, the evidence shows
that the plaintiff can perform some, though not all, of the exertional requirements of a
particular range.")
The ALJ considered all the relevant evidence and adequately discussed the
bases for his RFC determination in his findings and evaluation of the evidence. The
court concludes that a careful review of the entire record provides substantial evidence,
sufficient to support the ALJ's finding that plaintiff could perform a limited range of light
work and that jobs existed in significant numbers in the national economy that he could
have performed, and that he was not disabled from November 1, 2003 to April 17,
2006.

17

Piaintiff has not before this motion practice alleged an impairment reasonably
causing reaching restrictions or received treatment for such an impairment. Further, at
least two of the jobs identified by the VE did not involve any postural activities. See
DICOT 727.687-062, 1991 WL 679674, Inspector; DICOT 780.684-066, 1991 WL
680790, Filler (both stating that postural activities like climbing, balancing, stooping,
kneeling, crouching, and crawling are not present, i.e., activity or condition does not
exist).
26

IV. CONCLUSION
For the reasons stated, plaintiff's motion for summary judgment will be denied
and defendant's motion for summary judgment will be granted. An appropriate order
shall issue.

27