Boulware v. Astrue

Filing 23

REPORT AND RECOMMENDATIONS- GRANTING 20 Cross MOTION for Summary Judgment, DENYING 18 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 3/27/2015. Signed by Judge Sherry R. Fallon on 3/10/2015. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARK C. BOULWARE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner
Of Social Security,
Defendant.

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Civil Action No. 13-CV-106-SLR-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Plaintiff Mark C. Boulware ("Boulware" or "Plaintiff') filed this action against Defendant

Carolyn W. Colvin, Commissioner of the Social Security Administration (the "Commissioner" or
"Defendant") 1 on January 18, 2013. (D.I. 2) Plaintiff seeks judicial review, pursuant to 42 U.S.C.
§405(g), of a decision on August 18, 2011, by Administrative Law Judge ("ALJ") Susanne
Lewald, denying his claims for disability insurance benefits ("DIB") and supplemental security
income ("SSI") under Title II and Title XVI of the Social Security Act, respectively. See 42 U.S.C.
§§ 401-434, 1381-1383(£).
Presently before the court are cross-motions for summary judgment filed by Plaintiff (D.I.
18) and the Commissioner (D.I. 20). Plaintiff asks the court to enter an award of benefits. (D.I. 22
at 2) The Commissioner requests that the decision of the ALJ be affirmed. (D.I. 21 at 2) For the

1

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

1

reasons set forth below, I recommend that the court DENY Plaintiff's motion for summary
judgment and GRANT the Commissioner's cross-motion for summary judgment.

II.

BACKGROUND
A.

Procedural History

On August 27, 2009, Plaintiff filed an application for DIB and SSI, alleging that he has
been disabled since August 1, 2008. (D.I. 13 at 38-40) Plaintiff's claims for benefits were denied
initially on January 21, 2010 (Id at 42-46), and again on reconsideration on May 25, 2010 (Id at
49-54). On June 28, 2010, Plaintiff filed a written request for a hearing. (Id at 55)
On July 19, 2011, the ALJ held an administrative video hearing. (Id at 17-37) Plaintiff and
a vocational expert, Stephen Hughes ("VE"), appeared and testified. (Id) On August 18, 2011, the
ALJ issued a decision finding that Plaintiff was not disabled under §1614(a)(3)(A) of the Social
Security Act and therefore could perform light work, which included Plaintiff's past positions as
a retail manager and sous chef. (Id at 10, 12-15) The Appeals Council denied Plaintiff's request
for review, rendering the ALJ's decision the final decision of the Commissioner. (Id at 1-4)

B.

Factual Background

Plaintiff last worked in Nevada at Jimmy's Cheyenne Market ("Jimmy's"), from June to
December of 2010. (Id. at 33, 34) At Jimmy's, Plaintiff performed a variety of cooking and
cleaning jobs, including working as a fry cook and running the hot deli. (Id) A letter from the
owner of Jimmy's reports that Plaintiff originally worked 30 hours per week. (Id at 115) At the
administrative hearing, Plaintiff testified that his hours were reduced to 16 to 24 hours per week
in July or August of2010. (Id at 32) Plaintiff terminated his employment at Jimmy's in December
2010 due to marital issues unrelated to his claimed disability. (Id at 31-32)

1.

Medical History

2

Plaintiff has three severe impairments: lumbar spine pain, diabetes mellitus with peripheral
neuropathy, and an umbilical hernia. (Id at 234-40, 306, 237)

a.

Lumbar Spine Pain

On January 11, 2010, Plaintiff was examined by Karl Fazekas, M.D., 2 as part of a disability
evaluation. (Id at 234-240) Dr. Fazekas administered an x-ray of Plaintiffs cervical spine and the
report showed a straightening of the cervical spine, possibly due to muscle spasms, though there
were no definite acute compression fractures. (Id at 240) The report also showed that Plaintiffs
disc spaces, soft tissues, and posterior elements appeared grossly intact. (Id) Dr. Fazekas'
evaluation of Plaintiff indicated a normal gait and full range of motion of Plaintiffs cervical and
lumbar spine. (Id at 236-39)
In his functional assessment of Plaintiff, Dr. Fazekas' diagnostic impression was low back
pain with full range of motion on exam, myopia and early left cataract with good corrected vision,
diabetes mellitus, hypertension, moderate obesity, and an umbilical hernia. (Id at 237). Dr.
Fazekas reported that Plaintiff could stand and/or walk for 8 hours in an 8 hour workday and could
sit for 8 hours or more in an 8 hour workday. (Id at 238) Dr. Fazekas also noted that if Plaintiff
needed time during the day to alternate between sitting and standing, standard breaks and lunches
alone would provide sufficient relief. (Id) Dr. Fazekas found that Plaintiff could frequently climb
ramps/stairs, balance, stoop/bend, crawl, crouch/squat, and kneel and could occasionally climb
ladders/scaffolds. (Id) There were no other limitations noted with regards to reaching, fingering,
handling objects, hearing, seeing, speaking, or travelling. (Id)

2

Karl Fazekas, M.D., is a board certified, internal medicine consultative examiner. (D.I. 13 at
234)
3

On May 16, 2010, Karyn Doddy, M.D., a state agency physician, reviewed Plaintiffs
medical record and other evidence and affirmed the opinion of Dr. Fazekas that Plaintiff is capable
oflight work. (Id at 301).
On December 14, 2010, Plaintiffs physician, Elleston Rucker, M.D., reported that Plaintiff
was "totally disabled" and that the proposed treatment/limitations would be lifelong. (Id at 302).
However, Dr. Rucker also reported a "fair" prognosis and his treatment indicates regular, routine
follow up visits with Plaintiff and normal physical examinations of Plaintiff. (Id at 303-318)

b.

Diabetes Mellitus with Peripheral Neuropathy

Since at least 2003, Plaintiff has had non-insulin dependent diabetes mellitus (NIDDM) for
which Plaintiff takes oral medications. (Id at 235, 306). Plaintiff may soon require insulin due to
poor control over his blood sugar levels. (Id) However, Plaintiffs records show no end-organ
damage and no hospitalizations due to his diabetes mellitus. (Id at 303-318) Plaintiff was
prescribed medication for diabetic neuropathy, but as of December 14, 2010, Plaintiffs extremities
were within normal limits and he has an intact neurological exam without deficit. (Id at 313, see
also id at 235)

c.

Umbilical Hernia

During Plaintiffs January 11, 2010 examination, Dr. Fazekas noted a small umbilical
hernia. (Id at 237) Due to the umbilical hernia, Dr. Fazekas recommended that Plaintiff lift and/or
carry no more than 20 pounds occasionally and IO pounds frequently. (Id) Dr. Fazekas also
recommended that Plaintiff be restricted from moving machinery. 3 (Id at 239)

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Dr. Fazekas noted that these restrictions could be reassessed after surgical repair of Plaintiffs
umbilical hernia. (D.I. 13 at 238)
4

2.

The Administrative Hearing
a.

Plaintiff's Testimony

Plaintiff was fifty-two years old at the time of the hearing. (Id at 20) He lives in an
apartment with the son of his separated wife. (Id at 21) Plaintiff finished high school and
completed one or two semesters of culinary school. (Id. at 22)
Plaintiff receives Food Stamp benefits, but has no other source of income. (Id at 40) The
Department of Social Services provides him with a medical card that allows Plaintiff to see a
doctor. (Id. at 29)
Plaintiff worked at Jimmy's as a fry cook and at the hot deli from June through December
of 2010. (Id. at 31) He was originally scheduled to work 30 hours per week, though he testified
that his hours were reduced in July or August to 16 to 24 hours a week due to lack of business. 4
(Id. at 31-32) He terminated his employment in December 2010 to travel to Montana for personal
marital reasons. (Id.) Plaintiff also stated that he is a Jehovah's Witness and goes door-to-door two
(2) or three (3) days a week for two (2) to four (4) hours at a time. (Id at 27)
Plaintiff testified that he has constant back pain, numbness and tingling in his fingers and
toes, foot pain, and leg swelling if he remains standing for more than five (5) or six (6) hours at a
time. (Id. at 23-24) The most he can stand at any time is 90 minutes before he has to sit. (Id)
Plaintiff explained that the medications prescribed to treat his pain occasionally make him very
tired, requiring him to rest. (Id. at 25) Plaintiff has not been evaluated by an orthopedic specialist
or orthopedic surgeon for his back problems. (Id at 29)

4

Plaintiff indicates that the record was incorrect. Plaintiff alleges that his hours were reduced in
September 2010 and in December 2010 he moved to Montana. (D.I. 22 at 2)
5

Plaintiff does limited housework, including making his bed and rinsing and putting away
dishes. (Id. at 27) However, he spends most of his day "just laying there." (Id.) Plaintiff testified
that although it would be difficult, he could work again on a full-time basis if necessary. (Id. at 32)

b.

Vocational Expert's Testimony

The ALJ posed the following hypothetical to VE Stephen Hughes:
[A]ssuming an individual of the claimant's age, education, and experience who can
sit up to six out of eight [hours a day], stand and walk short distances[s] up to six
out of eight [hours a day], lift up to 10 [pounds] frequently and 20 occasionally,
no[t] work from heights and [no more than] occasional[] postural [activities]. Can
such an individual perform the claimant's past relevant work?
(Id. at 34) The VE testified that the individual described would be able to perform the claimant's

past relevant work as a retail manager and as a sous chef as it was actually performed by the
claimant. (Id. at 34-35)
The ALJ posed a second hypothetical and asked whether there is any work available in the
full range of sedentary work that is transferrable from Plaintiffs past relevant work. (Id. at 35)
The VE explained that Plaintiff has skills from his background in management and supervision
that are transferrable to a full range of sedentary work, such as a telemarketer, receptionist, and
appointment clerk. (Id.)

3.

The ALJ's Findings

The ALJ determined that Plaintiff has not been disabled within the meaning of the Social
Security Act from August 1, 2008 through the date of her decision. (Id. at 10) The ALJ found, in
relevant part:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2013.
2. The claimant has not engaged in substantial gainful activity August 1, 2008, his
alleged onset date (20 C.F.R. 404.1520(b), 404.1571 et seq., 416.920(b) and
416.971 et seq.).

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3. The claimant has the following severe impairments: lumbar spine pain, diabetes
mellitus with peripheral neuropathy, and umbilical hernia (20 C.F.R. 404.1520(c)
and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).
5. [T]he claimant has the residual functional capacity to perform light work as
defined in 20 C.F.R. 404.1567(b) and 416.967(b) except the following limitations:
sit up to 6 hours in an 8-hour day; stand and walk short distances up to 6 hours in
an 8-hour day; lift 10 pounds frequently and 20 pounds occasionally; no work at
heights; and occasional posturals.
6. The claimant is capable of performing past relevant work as a retail manager or
sous chef. This work does not require the performance of work-related activities
precluded by the claimant's residual functional capacity (20 C.F .R. 404.1565 and
416.965).
7. The claimant was born on September 19, 1958 and was 49 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset date. The
claimant subsequently changed age category to closely approaching advanced age
(20 C.F.R. 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in
English (20 C.F.R. 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding that
the claimant is "not disabled," whether or not the claimant has transferable job skills
(See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
10. [C]onsidering the claimant's age, education, work experience, and residual
functional capacity, there are other jobs that exist in significant numbers in the
national economy that the claimant can perform (20 C.F.R. 404.1569, 404.1569(a),
416.969, and 416.969(a)).
(Id at 9-16)

III.

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

7

determination, a reviewing court may not undertake a de novo review of the ALJ's decision and
may not re-weigh the evidence ofrecord. See id In other words, even ifthe 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.
Substantial evidence is defined as less than a preponderance of the evidence, but more than
a mere scintilla of evidence. As the Supreme Court has explained, 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 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 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." Id 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." Brewster v. Heckler, 786 F.2d 581, 584

8

(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 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 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 provides insurance benefits "to persons who have
contributed to the program and who suffer from a physical or mental disability." 42 U.S.C. §
423(a)(l)(D); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The Act defines "disability" as the
"inability to engage in 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." 42 U.S.C. § 423(d)(l)(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 work which exists

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in the national economy." 42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22
(2003). In order to qualify for disability insurance benefits, a claimant must establish that he was
disabled prior to the date he was last insured. 20 C.F.R. § 404.131; Matullo, 926 F.2d at 244.
To determine whether a claimant is disabled under the Act, the Commissioner is required
to perform a five-step sequential evaluation process. 20 C.F .R. §§ 404.1520, 416.920; 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), 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 a 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), 416.920(a)(4)(ii)
(mandating a 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), 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)(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), 416.920(e).
At step four, the Commissioner determines whether the claimant retains the residual
functional capacity ("RFC") to perform his past relevant work. See 20 C.F.R. §§

10

404.1520(a)(4)(iv), 416.920(a)(4)(iv) (stating that a claimant is not disabled ifhe is 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. Halter,
247 F.3d 34, 40 (3d Cir. 2001). "The claimant bears the burden of demonstrating an inability to
return to his 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), 416.920(g) (mandating a finding ofnondisability 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 his 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.

Plaintiff's Arguments on Appeal
1.

Vocational Expert's Findings

Plaintiff disagrees with the ALJ's findings at step four. (D.I. 22 at 1) The ALJ found the
Plaintiff capable of performing his past relevant work as a retail manager and sous chef. (D .I. 13
at 9-16). Plaintiff challenges the opinion of the VE as being internally inconsistent. (D .I. 22 at 1)

However, the testimony shows the VE acknowledged a mistake and immediately recanted
his original statement that an individual identical to Plaintiff would be unable to perform Plaintiffs

11

past work due to the amount of walking in his past jobs. (D.1. 13 at 34) The VE corrected his error
and stated that an individual with limitations identical to Plaintiff would be able to perform
Plaintiffs past work as a retail manager and sous chef as they were actually and generally
performed. (Id. at 34-35)

The Third Circuit "does not require an ALJ to submit to the [VE] every impairment alleged
by a claimant. Rather, the ALJ is only required to submit credibly established limitations. Where,
as here, a limitation is supported by some medical evidence but controverted by other evidence in
the record, it is within the ALJ' s discretion whether to submit the limitation to the VE." Zirnsak v.

Colvin, No. 14-1168, 2014 WL 7799983, at *7 (3d Cir. Dec. 9, 2014) (internal citations omitted).
There is substantial evidence to support the ALJ' s finding that the Plaintiff can perform his past
relevant work and, alternatively, light work. The treatment notes reveal that the Plaintiffs diabetes
was managed with medication. (D.1. 13 at 235, 306) Physical examinations demonstrated full range
of motion of the cervical and lumbar spines and a normal gait. (Id. at 23 7) The ALJ therefore
appropriately exercised her discretion when she determined which limitations to submit to the VE.
In the process of reviewing the record for substantial evidence, this court will not substitute its
own judgment for that of the fact-finder. See Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.
2005).

2.

The ALJ's Consideration of the Medical Opinions of Dr. Rucker and
Dr. Fazekas

Plaintiff contends that the ALJ did not give "appropriate deference" to the medical opinions
of Plaintiffs treating sources, particularly Dr. Rucker. (D.I. 22 at 1)
In determining the appropriate weight medical evidence deserves, the ALJ must first assess
whether the evidence is from a treating, non-treating, or non-examining source. 20 C.F.R. §§
404.1502, 416.902. A treating source is a "physician, psychologist, or other acceptable medical

12

source" who provides a patient with "medical treatment or evaluation," and has an "ongoing
treatment relationship" with the patient. Id A medical source may be considered a treating source
where the claimant sees the source "with a frequency consistent with accepted medical practice
for the type of treatment ... required for [the claimant's] condition(s)." Id A medical source is
not a treating source ifthe treatment is based "solely on [the claimant's] need to obtain a report in
support of [his or her] claim for disability," and not based on medical need for treatment. Id
A treating source's medical opinion will be given "controlling weight" if the ALJ finds:
(1) the opinion is well supported by medically acceptable clinical and laboratory diagnostic
techniques; and (2) the opinion is not inconsistent with the other substantial evidence in the record.
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Fargnoli, 247 F.3d at 43; Conn v. Astrue, 852 F.
Supp. 2d 517, 525 (D. Del. 2012).
Regardless of the weight given, the ALJ' s decision must always provide "good reasons"
for a treating source's opinion, id, and an ALJ can only "reject a treating physician's opinion if it
is based on 'contradictory medical evidence."' Dougherty v. Astrue, 715 F. Supp. 2d 572, 581 (D.
Del. 2010) (citing Morales, 225 F.3d at 317). However, "the ALJ is not required to supply a
comprehensive explanation for the rejection of evidence; in most cases, a sentence or short
paragraph will probably suffice." Cotter v. Harris, 650 F .2d 481, 482 (3d Cir. 1981 ). Moreover, it
is not for this court to reweigh the various medical opinions in the record. See Monsour Med Ctr.,
806 F.2d at 1190. The court's review is limited to determining ifthere is substantial evidence to
support the ALJ' s weighing of those opinions. Id

a. Dr. Rocker's Opinion
On the December 14, 2010 examination of Plaintiff, Dr. Rucker found Plaintiff to be
"totally disabled," with the proposed treatment and limitations lasting the remainder of Plaintiff's

13

life. (Id at 302) Dr. Rucker's evaluation appeared on a Social Services "Disability Assessment"
form with blanks for the doctor to complete and without any substantial explanation for the
doctor's diagnoses or prognosis. (D.I. 13 at 302) The only substantive information included in the
form was Plaintiff's diagnosis of degenerative disc disease of the lumbar spine, diabetic
neuropathy, hypertension, and a treatment plan of physical therapy and pain medication. (Id)
However, Dr. Rucker's conclusion of total disability contradicted his own records as well
as the findings of other physicians who examined Plaintiff. (D.I. 13 at 168, 241, 246, 285, 302,
306, 309, 313) Based on this contradiction, the ALJ properly assigned little weight to Dr. Rucker's
conclusion because "[t]he opinion is not consistent with the overall evidence of the record,
including Dr. Rucker's own treatment notes, the claimant's activities of daily living, and the
consultative examiner's report." 5 (D.I. 13 at 13)

b. Dr. Fazekas' Opinion
Plaintiff contends Dr. Fazekas' findings are erroneous because they are inconsistent with
the limited activities Plaintiff believes he can perform. 6 (D.I. 22 at 1) Plaintiff argues that he is
unable to work as a result of limited ability to stand and walk due to back pain, joint pain, and leg
swelling. (Id) Plaintiff insists leg swelling would occur within four (4) hours of standing and joint

5

The ALJ is not required to re-contact a physician about ambiguous medical evidence where the
entire record is adequate to determine whether the claimant is disabled. See, e.g., Kelly, 2013 WL
5273814, at* 15 (explaining that the ALJ need not re-contact the medical source simply "because
the ALJ finds the doctor's opinion inconsistent with the claimant's medical records" (citations
omitted)); Simmons v. Barnhart, 2004 WL 2323776, at *6 (D. Del. Oct. 12, 2004) (same), aff'd,
148 F. App'x 134 (3d Cir. 2005). See also 20 C.F.R. 404.1520b(b) ("If any of the evidence in your
case record, including any medical opinion(s), is inconsistent, we will weigh the relevant evidence
and see whether we can determine whether you are disabled based on the evidence we have."); 20
C.F.R. 404.1520b ("We consider evidence to be inconsistent when it ... is ambiguous .... ").
6
Plaintiff argues that the findings of Dr. Fazekas are "not consistent with what [he] was able to
perform." (D.I. 22 at 1) The court assumes that the Plaintiff is in agreement with Dr. Rucker's
opinion of complete disability and is arguing that Dr. Fazekas' opinions should not have been
given greater weight.
14

pain would occur within 90 minutes of standing and/or walking. (Id.) Plaintiff admits that the
medication prescribed did control his pain. (Id.) However, four (4) hours after taking the
medication, his movements would slow down considerably making it difficult to work an eight (8)
hour shift. (Id.) Plaintiff also maintains that increased activity would aggravate his pain and require
even more pain medication. (Id.)
Plaintiff argues that he had taken pain medication before being examined by Dr. Fazekas,
which may account for the normal examination findings including greater movement in his joints
than Plaintiff would normally have without medication. (Id.) By arguing that Dr. Fazekas' findings
are inconsistent with what Plaintiff is able to perform, Plaintiff is essentially contending that the
ALJ' s RFC assessment is erroneous because it does not include "established limitations" that result
from Plaintiff's severe impairments. (D.I. 22 at 1)
However, Plaintiff's argument fails because the ALJ's RFC assessment accounts for all of
Plaintiff's limitations that were credibly established by the evidence of record. 7 The ALJ found
that Dr. Fazekas' opinions deserved greater weight as his opinions were more consistent with the
medical record as a whole. (See id. at 303-318) Therefore, substantial evidence exists to support
the ALJ's findings based upon the medical opinions. See 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2).

3.

Testimony Regarding Plaintiff's Activity as a Door-to-Door Jehovah's
Witness

7

This court has rejected similar arguments in previous cases. In Kelly v. Colvin, 2013 WL 5273814
(D. Del. Sept. 18, 2013), the court explained,"' [i]n determining a claimant's RFC, the ALJ is only
required to include limitations credibly established by the evidence, not every limitation alleged.'"
Id. (alteration in original) (quoting Scandone v. Astrue, 2011 WL 3652476, at *11-12 (E.D. Pa.
2011)).In Scandone, the court held that a claimant's severe impairment does not necessarily entitle
her to an RFC assessment accounting for that impairment if the ALJ concludes that no functional
limitations stem from that impairment. Scandone, 2011WL3652476, at *12.

15

Plaintiff contends that the ALJ misinterpreted his testimony regarding his activities as a
door-to-door Jehovah's Witness. (D.I. 22 at 2) As a Jehovah's Witness, Plaintiff is obligated to go
door-to-door as part of his preaching and teaching activities. (D.I. 13 at 27) As a result of his
physical limitations, Plaintiff cut down this activity to two (2) to four (4) hours a day, two (2) to
three (3) days a week. (D.I. 22 at 2) Plaintiff believes the ALJ overestimated his physical activities
as a Jehovah's Witness as proof that Plaintiff is not disabled. (Id.) Plaintiffs activities of daily
living were considered by the ALJ within the entirety of the record. Based upon consideration of
the record as a whole, the ALJ determined the Plaintiff has the residual functional capacity to
perform light work. Contrary to Plaintiffs assertion, the ALJ's decision did not hinge on this one
single activity of the Plaintiff.

4.

Objections Regarding Inconsistencies in the Record

Plaintiff argues the ALJ improperly relied on inconsistencies in the transcript of the
administrative hearing. (D.I. 22 at 1-2). Plaintiff believes the ALJ gave inappropriate weight to
Plaintiffs statement that, ifhe had to, he could return to work on a full time basis. 8 (DJ. 13 at 32)
However, the ALJ's decision does not refer to Plaintiffs statement. (D.I. 13 at 9-15)
Plaintiff insists the record is incorrect in regards to his employment at Jimmy's. (D.I. 22 at
2). Plaintiff states that he worked 30 hours per week from June 2010 to December 2010 and that
his hours were cut back in September 2010, rather than in July or August as he testified to during
the administrative hearing. (Id.) However, this inconsistency was not determinative of the ALJ's
finding of "not disabled." The ALJ only discussed this portion of Plaintiffs employment history
when referencing that Plaintiffs hours were reduced due to a general lack of work and that Plaintiff

8

When the ALJ asked if Plaintiff could "do the work on a full-time basis," Plaintiff responded:
"Could I? I could do the work, again ... It would be difficult but if necessary and I had to do it,
yeah, that's life." (D.I. 13 at 32)

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terminated his employment at Jimmy's due to personal issues unrelated to his claimed disability.
(D.I. 13 at 13-14) Therefore, Plaintiff has failed to support his assertion that the ALJ relied on
inconsistencies in the transcript to reach a decision on the Plaintiffs RFC.

5.

Finding of Transferability of Plaintiff's Job Skills

Plaintiff contends that it is "virtually impossibl[e]"for him to obtain either of the jobs cited
by the vocational expert due to his age, physical disabilities, and possible legal liability. 9 (D.I. 22
at 2)
Having found the Plaintiff was capable of performing two of his past relevant jobs, the ALJ
proceeded to consider whether the Plaintiff has skills that would transfer to other work that exists
in significant numbers in the national economy.
The award of benefits is based in part upon the existence of jobs in the local and national
market which Plaintiff is able to perform considering his RFC, education, and work experience.
See C.F.R. §§ 404.1563(a) and 416.963(a). Age is also considered along with severe impairments

for a person closely approaching advanced age (age 50-54). See C.F.R. §§ 404.1563(d) and
416.963(d). In those circumstances, limited work experience may affect a claimant's ability to
adjust to other work. See id
Here, Plaintiff has extensive work experience in a number of related fields. (D.I. 13 at 13034) The VE considered Plaintiffs age, RFC, education, and past work experience when
determining whether there is work available that Plaintiff is capable of performing in the national
and local economy. (Id at 15, 34-36) The VE made the assessment that there were 300,000 jobs
nationally and 3000 locally in Nevada as a telemarketer and 40,000 jobs nationally and 400 locally
in Nevada as an appointment clerk. (Id at 35-36) Both of these jobs are considered semi-skilled

9

Plaintiff believes that an employer would face legal liability due to Plaintiffs need to take
prescription pain medication in order to perform tasks. (D.I. 22 at 2)
17

sedentary positions that Plaintiff would be capable of performing considering his limitations. (D.I.
13 at 15, 34-36) Again, considering the record as a whole in support of the VE's opinion as to
other jobs within the Plaintiff's limitations, substantial evidence exists for the ALJ' s determination
that Plaintiff is capable of making a successful adjustment to other work that exists in significant
numbers in the national economy.

V.

CONCLUSION
For the foregoing reasons, I recommend that the court DENY Plaintiff's motion for

summary judgment and GRANT the Commissioner's cross-motion for summary judgment.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.l. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation. Fed.
R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to ten (10) pages

each. The failure of a party to object to legal conclusions may result in the loss of the right to de
novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n. l (3d Cir.
2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded.uscourts.gov.
Dated:

March~,

2015
on
s Magistrate Judge

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