Roberts v. Colvin

Filing 18

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 10/22/2014. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

DIETRICH LAMONT ROBERTS,

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

Civ. No. 13-721-SLR

Angela Pinto Ross, Esquire of Doroshow, Pasquale, Krawitz & Bhaya. Counsel for
Plaintiff.
Charles M. Oberly Ill, United States Attorney, Wilmington, Delaware and Dina White
Griffin, 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 Roxanne Andrews, Esquire, Assistant Regional Counsel of the
Office of the General Counsel Social Security Administration, Philadelphia,
Pennsylvania. Counsel for Defendant.

MEMORANDUM OPINION

Dated: October»,1 20 14
Wilmington, Delaware

I. INTRODUCTION
Dietrich Lamont Roberts ("plaintiff') appeals from a decision of Carolyn W.
Colvin, Acting Commissioner of Social Security ("defendant"), denying his application
for 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. 13, 15) 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 protectively filed an application for SSI on May 25, 2010 alleging
disability beginning on February 1, 2009, due to a bulging disc in his back, nerve
damage, and a slipped disc. (D.I. 11 at 182, 186) On June 24, 2011, after a hearing on
May 31, 2011, the ALJ denied plaintiff's claim, finding that plaintiff could perform a
range of unskilled, sedentary work. (/d. at 25-40, 42-86) After the Appeals Council
denied review (id. at 1-11 ), plaintiff filed the current action for review. (0.1. 13)
B. Medical History
1. Lower back pain

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).

Plaintiff's medical history states that he "had sudden onset of left leg pain" while
lifting furniture in 1997. He was evaluated and underwent pain management, but he
refused injections at that time. He re-injured his back in 2002, was prescribed some
medications and told that he might need surgery. He moved to Atlanta for a few years.
Upon returning to Delaware, he was seen by a physician and was offered medical
management and epidural steroid injections. Plaintiff refused any interventions. (D.I.
11 at 255)
On July 22, 2010, plaintiff completed a "function report" form in connection with
his SSI claim, indicating he lived in an apartment with friends. He checked the box for
"no problem" with personal care, but stated reaching and bending causes "severe pain"
for "dress," "bathe," and "hair" care categories. He prepared "complete meals when
pain subsides" twice daily taking thirty minutes to one hour. He indicated he went
outside everyday, walked and took public transportation. He shopped in stores for food
and clothes, once a month for two to three hours. He goes to meetings, social groups
and church daily, but indicated that he did not visit friends as often as he used to. He
can walk two blocks before needing to rest for twenty to thirty minutes. He can pay
attention "all the time;" follows written and verbal instructions "very well;" gets along with

authority figures "very good;" and handles stress "very well" and changes in routine "not
so good." He states that he uses a "brace/splint" (not prescribed by a doctor) every
day, but did not check the box for a "cane." (/d. at 191-198)
Portia Conix, D.O. ("Dr. Conix") provided treatment to plaintiff from May to
August of 2010. (/d. at 232-253) On May 24, 2010, Dr. Co nix's examination revealed
that plaintiff had intact neurological findings, spinal tenderness and painful range of

2

motion, normal musculoskeletal findings, and normal strength and stability. Dr. Conix
diagnosed plaintiff with chronic lower back pain, obesity, depression, anxiety disorder
and high blood pressure. (/d. at 232) Later diagnoses included spinal stenosis. (/d. at
242) Plaintiff's medications were Percocet, Oxycontin, Valium and Xanax. (ld. at 232)
Dr. Conix's later treatment notes state no changes in plaintiff's status. (ld. at 235-243)
On August 17, 2010, plaintiff underwent evaluation at Albert Einstein Pain
Center. He complained of "lower back [pain] radiating down the left leg to the knee ...
particularly worse with prolonged sitting and standing as well as bending forward." (ld.
at 255) Examination revealed plaintiff had a normal toe and heel walk that favored his
left side, normal motor strength, normal light touch upon sensory examination, lumbar
spine tenderness, positive straight leg raising on the right, positive Patrick's sign
bilaterally, and limited thoraco-lumbar flexion/extension with pain. Plaintiff also had
normal affect and intact memory. The examining pain management specialist, Jasmeet
Oberoi, M.D. ("Dr. Oberoi"), diagnosed lumbar spinal stenosis and lumbar
radiculopathy. Plaintiff's August 2008 MRI showed multilevel degenerative disc disease
and lumbar spondylosis causing significant central and foramina! narrowing, particularly
on the left at the L4-5 level and L5-S1 level, and displacement of the left Sl exiting
nerve root. Dr. Oberoi recommended a treatment plan including epidural steroid
injections and medication (Percocet, Motrin, and nortriptyline). Dr. Oberoi also noted a
possibility of surgery. Plaintiff refused to consider the injections or surgical options. (/d.
at 255-260)
On August 26, 2010, the Commissioner scheduled a consultative physical

3

examination by Leonard Popowich, D.O., an internist; plaintiff did not attend. (ld. at
311)
Dr. Conix referred plaintiff to Cindy Feaster, P.T. ("Ms. Feaster"), a certified work
capacity evaluator with Progressive Rehab, LLC, for treatment and evaluation of his
spinal stenosis in August 2010. (ld. at 280) Ms. Feaster prescribed moist heat,
electrical stimulation, neuro re-education, and a home exercise program. (ld. at 279)
Ms. Feaster treated plaintiff on five occasions from August 18 to August 27, 2010. (ld.
at 270-74) On September 20, 2010, Ms. Feaster filled out a functional capacity form
(checking boxes without comment) indicating that plaintiff occasionally could lift up to
ten pounds and carry up to twenty pounds; stand/walk for one hour or less and sit for
one-half hour at a time in an eight-hour work day; was limited in his ability to push/pull
with his lower extremity; occasionally could kneel and balance; never could bend,
stoop, crouch, or climb; and had limitations regarding other physical functions like
reaching, handling, seeing, hearing, speaking, tasting, and smelling. (ld. at 281-82)
Ms. Feaster also reported that plaintiff had reduced range of motion in hip flexion,
lumbar flexion, and flexion-extension. (ld. at 284)
Plaintiff received treatment at Quality Community Health Care ("QCHC") for his
lower back pain. 2 (ld. at 314-54) QCHC providers prescribed Percocet and Soma for
his lower back pain. His medication sheet also includes Gabapentin. (Id. at 354) The
providers diagnosed spinal stenosis, radiculopathy, peripheral neuropathy and
hypertension. (ld. at 321, 330, 332) On September 13, 2010, plaintiff reported relief of

2

Piaintiff's bloodwork notes a Leila Hardware ("Dr. Hardware") at QCHC.

4

his back pain with Percocet. (/d. at 325) On October 18, 2010, plaintiff requested an
increase in his Percocet; the physician discussed the dangers of taking large amounts
of narcotics. (/d. at 327) On January 10, 2011 and February 7, 2011, plaintiff reported
that the Percocet helped with his back pain. (/d. at 335, 339) On March 4, 2011 and
April 4, 2011, plaintiff denied having any acute issues. (ld. at 341, 345)
On September 22, 2010, Paula Vanscoy ("Ms. Vanscoy") performed a physical
residual function capacity ("RFC") assessment of plaintiff, finding that plaintiff could
occasionally lift and/or carry up to twenty pounds; frequently lift and/or carry up to ten
pounds; stand and/or walk for about six hours in an eight-hour work day; was unlimited
in his ability to push and/or pull; occasionally could use ramps, climb stairs and ladders,
bur should never climb ropes or scaffolds; could frequently balance and stoop;
occasionally kneel, crouch and crawl; and had no limitations regarding other physical
functions like reaching, handling, fingering and feeling; no visual or communicative
limitations; and should avoid concentrated exposure to vibration. These findings were
based on plaintiff's allegations, medical records, and treatments received. (/d. at 305310)
A lumbar spine MRI on April 26, 2011 showed multilevel degenerative changes,
most pronounced at the L5-S1 level where there is severe bilateral neural foramina!
stenosis and mild central canal stenosis. (/d. at 355-56)
2. Mental health treatment

After an intake biopsychosocial assessment on August 16, 2010, a QCHC
therapist, Jake Wayne, diagnosed general anxiety disorder ("GAD"), depression,

5

unresolved grief, and assigned plaintiff a Global Assessment of Functioning ("GAF")
scale score of 48. Plaintiff's substance abuse history included heroin, alcohol, and
cocaine. (/d. at 358-62) On September 24, 2010, Lewis Merklin, M.D. ("Dr. Merklin")
examined plaintiff noting plaintiff's past heroin addiction and that plaintiff was still
mourning his mother's death three years earlier. Dr. Merklin's examination revealed
normal findings, but mild anger, moderate anxiety and irritable mood and moderate
depression. Plaintiff had normal attention and concentration and exhibited normal
behavior. Dr. Merklin diagnosed GAD and heroin dependence by history. He
recommended outpatient therapy for anxiety and depression, and prescribed Xanax.
(/d. at 363-369) The QCHC providers continued to prescribe Xanax through May 2011.
(/d. at 372, 375, 379, 382-84) Plaintiff did not report side effects, nor did the QCHC

providers observe any. (/d. at 377-78, 380, 382) The treatment notes state the
following. On October 14,2010, plaintiff was doing well on his medications and had no
complaints or adverse medication side effects. (ld. at 380) On November 19, 2010, he
was doing well on the current regimen and benefitting from physical therapy. (/d. at
382) On December 16, 2010, he was doing well and had no complaints or adverse
medication side effects. (/d. at 378) On February 10, 2011, he had no complaints or
adverse medication side effects, but was concerned about the possibility of being
bipolar. The Xanax helped with anxiety and nail biting, and he felt angry during the day.
(/d. at 376) On November 19, 2010, he was doing well on the current regime and

should ask about an increase in his dose of Neurontin for relief of his neuropathy. (/d.
at 382) On March 17, 2011, he was doing well on his medications and had no

6

complaints or adverse medication side effects. (/d. at 374) On April15, 2011, he was
stressed due to "lots of things going on" and had no adverse side effects. (/d. at 373)
On May 12, 2011, he was doing well, again with no adverse side effects. (/d. at 371)
Mark Hite, Ed.D., a state agency expert, reviewed plaintiff's file in September
201 0 and opined on a Psychiatric Review Technique form that he did not have a
medically determinable impairment. (/d. at 292) Dr. Hite explained that plaintiff alleged
depression and anxiety, but was not receiving any type of mental health intervention nor
was he prescribed any psychotropic drugs. (/d. at 304) Dr. Hite cited Dr. Conix's report
of August 18, 2010, stating that plaintiff had intact judgment and normal orientation,
mood, and affect, and the evaluation from the Albert Einstein Medical Center of
September 16, 2010, indicating that plaintiff had a normal affect and intact memory,
and was fully oriented in all spheres. (/d. at 304)

C. Administrative Hearing
1. Plaintiff's testimony
An administrative hearing was held on May 31, 2011. (D.I. 11 at 44-86) Plaintiff
appeared, represented by counsel. Plaintiff completed eleventh grade 3 and can read,
write and do basic math. (ld. at 46-47) He is 5'1 0" and weighs 217 lbs. He
purposefully lost weight in the last five-and-a-half months ago, from 243 lbs. (/d. at 62)
He was living in a house with his wife and kids until the divorce. (/d. at 73) He then
lived in an apartment with some friends and lived with a family member. In those
arrangements, he had to fend for himself, doing some cooking. (/d. at 74) For the past

3

The disability report indicates 101h grade. (D.I. 11 at 186)

7

two months, he has lived at a shelter, the Outley House. Although there is a chore list,
he does not have to do any, because of the pain and medications. (/d. at 72-74)
He has not worked since May 2010. He worked as a cook about 15 years ago
and as a mover. He worked as a full-time asbestos worker from 1998-2003, removing
asbestos, which bags weight about 50-100 lbs and was on his feet more than half the
time. He "worked produce" in 2003, unpacking and putting out the inventory. The
heaviest produce weighed 50-100 lbs and plaintiff was on his feet "most of the time."
(/d. at 47-49) When asked if he believed he could work doing anything full-time, plaintiff

testified that he could not work because "one wrong turn, one wrong bend and my back
is out of order, muscle spasms .... " (/d. at 50) When asked if he could do jobs where
he "really wouldn't have to do heavy lifting and even be on [his] feet a lot," he
responded, "[w]ell, right now, no, because they had me basically standing for a half an
hour and sitting every 15 minutes." (/d. at 50-51) When asked if he could "actually only
stand out of an eight hour day for a half an hour," plaintiff did not directly respond,
stating "as bad as I want to work I can't work." (/d. at 51-52) When asked if he could
work at a job, where he could sit and stand when he wanted, without lifting, plaintiff
responded that "no," because he is not comfortable being on the clock and "one little
slip one little wrong way [he's] done." (/d. at 77)
Plaintiff testified he is doing "nothing" right now. He reads, goes to the library,
and takes walks for no more than an hour, at least three or four times a week. (/d. at
53-54, 69) He takes a nap after lunch for 45 minutes to an hour, "because the pain
kicks in." (/d. at 69, 76-77) His day is centered around "taking [his] medicines for blood

8

pressure and nerves. (/d. at 54) He is going to start getting injections in his back,
which is "even more reason for [him] not to be active." (ld. at 54)
Plaintiff testified that he divorced over his lack of work and that: "[M]y wife for the
beginning of the situation when it first happened she thought that It was okay, you're
putting the system on. But it's no longer now you're putting the system on, you know,
it's like okay, now you can't perform." (ld. at 52) When questioned further, he
explained that for his wife, it was a money issue and she thought, "[he] could go out and
[he] could still work because you're looking at an able body on the outside but the inside
[he is] messed up." (!d. at 61) Plaintiff received Worker's Compensation in 1997-1998
and 2003. He received a lump sum, but left his "medical open." (/d. at 61)
Plaintiff testified that sitting too long or standing in the wrong position causes him
pain. (/d. at 54) Laying down too much also causes pain. (!d. at 71) He can sit for
fifteen minutes at a time, but tries to do so for half an hour; however, he is in pain if he
sits for the half an hour. (/d. at 72) He uses a cane all the time, because it helps him
keep "a balance in [his] back." (/d.) It was not prescribed, but was suggested by his
psychiatrist, Dr. Merklin. (/d. at 76) His left leg also hurts, it "tingles" and "throbs." (/d.
at 72) He testified that only lying down in bed and taking pain medications "subsides
[his] pain." (/d. at 53) He also testified that medication is the only thing that "relaxes"
him to take the pain away. (/d. at 69-70)
He attends NA meetings. He was abusing cocaine and alcohol. His clean date
is February 21, 201 0 and he is not currently having an issue with his substance abuse.
(/d.at74)

9

Plaintiff has been under the care of his primary physician, Dr. Hardware at
QCHC, since the beginning of the year and just started seeing Dr. Prokop at
Hahnemann Hospital. 4 (/d. at 55, 57) Dr. Conix (plaintiff's primary physician until she
retired) requested he go to the Albert Eienstein Pain Center, but the center did not
"want to take [him] on to keep [him] on a pain medication" at his current limitations. (!d.
at 55, 57) The center evaluated him, but did not want to prescribe his pain medication.
(/d. at 56) Dr. Hardware wants someone else to handle plaintiff's pain medication. (!d.
at 57) Plaintiff had a nerve study done in Delaware in 1998; he states he has "50
percent nerve damage." (/d. at 59-60) He had an MRI in 2008 and just received
another MRI. (/d. at 58) He has also been treated by a physical therapist. (/d. at 6768) Plaintiff states that his current treatment plan is to start receiving the injections, with
Hahnemann handling all his pain medication, then surgery will be considered. (/d. at
60)
Plaintiff started receiving pain management in 1997 after he was injured. (/d. at
58) He has been on medication, oxycontin 80 mg, since 1997, prescribed by several
doctors. (/d. at 58-59) He switched to Percocet, which "is not really helping," so his
doctor is trying "to get [him] in pain management." (/d. at 59) Plaintiff also takes Soma,
a muscle relaxer. (/d. at 72)
Plaintiff has depression and has been treated by a psychiatrist5 (for about nine
months) and a therapist (for over a year, twice a month). (/d. at 62-63, 65) He takes

4

There are no records from Hahnemann.

5

He states Jane Brown is his psychiatrist, but the records are from Dr. Merklin.
10

Xanax and used to take Valium. (/d. at 63, 65-66) He testified he was diagnosed with
bipolar disorder by his therapist Jake Wayne. (/d. at 64) He last saw his psychiatrist
one month ago. (/d. at 64) Plaintiff testified that his mental health affects his ability to
work. (/d. at 67) His physical condition makes him more depressed because of his
inability to do things. (/d. at 67)
Instead of describing his side effects, plaintiff answered that he took Xanax,
because he was hyper, and if he did not take his Percocet, he had "withdrawals,
sweats, chills .... " (/d. at 70) If he takes his medication, plaintiff testified he has
"nodding, incoherent, scratching, itching, you name it." (/d. at 71)

2. VE's testimony
At the hearing, the VE testified that plaintiff's vocational background consisted of
work as a furniture mover from 1992 to 1997, a very heavy occupation, with a special
vocational preparation ("SVP") of 3 (DOT number 904.687-01 0); a line cook from
approximately 1995 to 2009, a light occupation, semiskilled, SVP 3 (DOT 313.374-014);
an asbestos removal worker from 1998-2003, a heavy occupation, unskilled, SVP 2
(DOT number 869.684-082); produce clerk for a year, heavy occupation, semiskilled
SVP 4 (DOT number 299.367-014). (/d. at 78-79)
The ALJ posed the following questions to the VE:
ALJ: Let's assume I find the claimant limited to work lifting and carrying
no more than 20 pounds occasionally, 10 pounds frequently; standing and
walking up to 6, sitting up to 6 hours; no climbing of ladders, ropes or
scaffolds; no more than occasional- I'm sorry, ladders, ropes or
scaffolds; no more than occasional using of stairs, using of ramps and
climbing stairs; no more than occasional balancing, stooping, kneeling,
crouching and crawling; need to avoid exposure to vibration, concentrated
exposure to vibration, as well as hazards including moving machinery and
11

unprotected heights; also, limited to work involving simple, routine tasks;
short, simple instructions; simple work related decisions with few
workplace changes. Could he perform his past work?
VE: No, that would eliminate all of the work.
ALJ: Would there be other work available?
VE: There would be other positions available, yes. And I can give you
some examples at light.

Hospital product assembler, that is light, it is unskilled, SVP: 2, the
DOT number is 712.687-010, local numbers approximately 250 positions
and then nationally about 40,000. Another similar position would be a
hand packager and inspector, the DOT number is 559.687-074, it is light,
unskilled, SVP: 2, local numbers would be about 550 positions and then
nationally about 50,000. Another example would be a garment folder, the
DOT number is 789.687-066, it is light, unskilled, SVP: 2, local numbers
about 500 positions, nationally about 50,000.
ALJ: All right, so now if we were to add the need for a sit/stand at will,
would there be work available at the light exertional level?
VE: Yes, I think the same positions.
ALJ: Same numbers?
VE: And the same numbers. This is not covered by the DOT, but these
are positions that typically would allow for sit or stand.
ALJ: Okay. Now, if we were to shift to the sedentary exertionallevel with
the same limitations, so just basically change lifting and carrying to no
more than 10 pounds occasionally; standing and walking up to 2, sitting
up to 6 with all the same additional limitations, though to my prior
hypothetical, would there be work available?
VE: At sedentary, yes. For example, a table worker, which is a sedentary
inspector of small products, unskilled, SVP: 2, DOT number 739.687-182,
local numbers about 500 positions, nationally about 50,000. Another
example would be a final assembler for optical goods, the DOT number is
713.684-014, and it is sedentary, unskilled, SVP: 2, the local numbers
would be about 2000 positions and nationally about 30,000. Another
example of a sedentary position would be a cuff folder, a folder for
12

textiles, DOT number 685.687-014, and it is unskilled, SVP: 2, local
numbers about 500, nationally about 50,000.
ALJ: Okay. All right, then now can you tell me what are the permissible
breaks?
VE: Usually a 10 to 15 minute break in the morning, a 10 to 15 minute
break in the afternoon and a lunch break of 30 to 60 minutes, depending
on the employer.
ALJ: Okay. Now, if an individual required unscheduled breaks at will,
would there be work available?
VE: No.
ALJ: If a person were off task more than 10 percent on a consistent basis
in addition to allowable breaks, would there be work available?
VE: No, they wouldn't be able to maintain.
ALJL And if a person were not able to sit, stand and walk a total of eight
hours, would there be work available?
VE: No.
(/d. at 78-81)
Plaintiff's counsel did not cross-examine the VE, but stated that:
[B]ased on the MRI showing that [plaintiff] does have multi-level
degenerative changes, most pronounced at the L-5, S-1 level where it's
noted that he has severe bilateral and neuroforaminal stenosis. There
was the RFC that was completed by the physical therapist that examined
him at Progressive Rehab Centers that put him at a less than sedentary
level. And also based on his testimony, the need for laying down
throughout the days would not- I guess to avoid having to take his
medication - if he was not taking his medication he would need to lay
down throughout the day, which would account for unscheduled breaks,
and if he was not laying down and taking his medication to deal with the
pain he testified to the fact that the side effects do have him out of it and
not able to concentrate, which would have him off task more than 10
percent during the day. I believe that either one of those ways to help him
cope with the pain would have him functionally less than sedentary level.
(/d. at 82)

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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 as of May 25, 2010. (/d. at 36) The ALJ's
findings are summarized as follows: 6
1. The claimant has not engaged in substantial gainful activity since May
25, 2010, the application date (20 C.F.R. §§ 416.971 et seq.).
2. The claimant has the following severe impairments: degenerative disc
disease of the lumbar spine; hypertension; obesity; generalized affective
disorder; 7 and heroin dependence by history (20 C.F.R. §§ 416.920(c)).
3. 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 (20 C.F.R. 416.920(d),
416.925 and 416.926).
4. The claimant has the residual functional capacity to perform sedentary
work as defined in 20 C.F.R. § 416.967(a) except requiring a sit/stand
option at will; no climbing of ladders, ropes or scaffolds; no more than
occasional climbing of stairs and ramps; and no more than occasional
balancing, stooping, kneeling, crouching, and crawling. The claimant
should also avoid concentrated exposure to vibration and hazards,
including moving machinery and unprotected heights. He is also limited to
simple, routine tasks based on short, simple instructions, with only simple
work-related decisions and few workplace changes.
5. The claimant is unable to perform any past relevant work (20 C.F.R. §
416.965).
6. The claimant was born on September 24, 1972 and was 37 years old,
which is defined as a younger individual age 18-44, on the date the
application was filed (20 C.F.R. § 416.963).
7. The claimant has a limited education and is able to communicate in

6

The ALJ's rationale, which was interspersed throughout the findings, is omitted
from this recitation.
7

The court notes that plaintiff's diagnosis referred to by the ALJ in his rationale is
generalized anxiety disorder. (D. I. 11 at 34)
14

English (20 C.F.R. § 416.964).
8. 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).
9. Considering the claimant's age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform. (20
C.F.R. §§ 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Act,
since May 25, 2010, the date the applicaiton was filed. (20 C.F.R. §
416.920(g)).
(/d. at 28-37)

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
15

"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 Kent v. 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
16

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

17

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

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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 June 24, 2011, the ALJ found that plaintiff was not under a disability within
the meaning of the Act from May 25, 2010. The ALJ concluded that, despite plaintiff's
severe impairments (degenerative disc disease of the lumbar spine, hypertension,

19

obesity, generalized affective disorder, and heroin dependence by history), as of May
25, 2010, he had the residual functional capacity to perform sedentary work, except that
he required a sit/stand option at will; could not climb ladders, ropes or scaffolds; could
only occasionally climb stairs and ramps; and could only occasionally balance, stoop,
kneel, crouch, and crawl.

Plaintiff should also avoid concentrated exposure to vibration

and hazards, including moving machinery and unprotected heights. He is also limited
to simple, routine tasks based on short, simple instructions, with only simple workrelated decisions and few workplace changes. 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 hospital product
assembler, hand packager and inspector, and garment folder, at the light exertional
level, as well as table worker, final assembler and cuff folder at the sedentary exertional
level.
Plaintiff contends that the ALJ erred in giving plaintiff's treating physical
therapist's opinion "little weight," failed to address all of the relevant evidence, and
specifically failed to address plaintiff's GAF score of 48. Defendant disagrees and
contends that substantial evidence supports the ALJ's decision that plaintiff was not
disabled under the Act as of May 25, 2010.
1. Lower back pain

Plaintiff argues that the ALJ erred in giving "little weight" to Ms. Feaster's medical
source statement ("statement") and did not sufficiently explain her reasoning. Plaintiff
specifically disagrees with the ALJ's assessment of plaintiff's RFC, because it differs
from the statement, which indicated that plaintiff could stand/walk one hour or less in an
20

eight-hour day, sit one-half hour and could never stoop. Plaintiff alleges that such
statement is consistent with Dr. Oberai's findings regarding plaintiff's lower back pain.
The ALJ analyzed plaintiff's daily activities and determined that they were not
limited to the extent expected, given plaintiff's description of his disabling symptoms
and limitations. Plaintiff described being able to take care of his personal needs, go
outside daily, take walks, go to the library, regularly attend meetings and use public
transportation. The ALJ noted plaintiff's use of a cane (albeit not prescribed) and
testimony that he could only sit for thirty minutes at a time. The ALJ concluded that
plaintiff's treatment has been routine and conservative.
The ALJ noted that the objective evidence shows plaintiff has degenerative
changes and severe stenosis, but treatment notes indicate that he has reported relief
with medication. The ALJ stated that plaintiff "was treated by a physical therapist but
did not see a medical professional for rehabilitation." As to opinion evidence, the ALJ
considered the residual functional capacity conclusion of Paula Vanscoy, but found that
plaintiff was more limited based upon the record at the hearing level. The ALJ
considered the medical source statement completed by Ms. Feaster, noting the
assigned limitations of sitting/standing and walking for a total of one and a half hours in
an eight hour day. The ALJ concluded that "the medical evidence of record as well as
the claimant's daily activities do not support the identified limitations." The ALJ afforded
"little weight" to Mr. Feaster's opinion as it was inconsistent with the record at the
hearing level. The ALJ further found that plaintiff's statements that he is completely
unable to work are not supported and are no more than fairly credible in light of the
discrepancies with plaintiff's testimony and documented daily activities.

21

While plaintiff complains that the ALJ "incorrectly implies that Ms. Feaster is not
a medical professional since she provided rehabilitation services," Ms. Feaster is
properly considered an "other source" by the SSR 06-03p and 20 C.F.R. § 416.913.
The ALJ reasonably considered Ms. Feaster's evaluation, which was provided after Ms.
Feaster treated plaintiff in August 2010, with five appointments over one and a half
weeks, from August 18 to August 27, 2010. The ALJ afforded Ms. Feaster's evaluation
"little weight" as it was inconsistent with the record at the hearing level. 8 Plaintiff's
treating physicians noted normal strength and stability, as well as normal toe and heel
walk that favored his left side, with normal motor strength. The ALJ specifically
questioned the VE regarding jobs where plaintiff could siUstand at will.
Plaintiff argues that the ALJ did not consider all of the relevant evidence,
specifically pointing out that the ALJ did not mention plaintiff's testimony that he will be
starting injections and that Dr. Oberai recommended epidural steroid injections and
possible surgery. Plaintiff fails to note that he refused both of these treatment options.
The ALJ properly summarized the medical records, including plaintiff's complaints and
the medical opinions in making his RFC determination. Fargnoli, 247 F.3d at 42 (The
ALJ need not "make reference to every relevant treatment note," but should, "as the

8

Piaintiff cites to Corson v. Astrue, Civ. No. 10-236-E, 2012 WL 726885 (W.O.
Pa March 6, 2012) for support that the ALJ erred in failing to explain inconsistencies
with a Functional Capacity Evaluation report by a physical therapist. However, in
Corson, the ALJ rejected the only piece of medical evidence that directly related to
plaintiff's ability to sit (a detailed written account by a physical therapist, stating that
plaintiff could only tolerate functional sitting of 10 to 15 minutes) finding instead that
plaintiff could sit for six hours a day. The physical therapist's opinion was consistent
with plaintiff's testimony, physical demeanor at the hearing, and plaintiff's daily
activities. /d. at *4-5.
22

factfinder, ... consider and evaluate the medical evidence in the record consistent with
his responsibilities under the regulations and case law.")
Plaintiff argues that the ALJ discounted his reports of pain. The ALJ considered
plaintiff's testimony regarding his inability to work and found that these were "no more
than fairly credible in light of discrepancies between [plaintiff's] assertions and
information contained in the documentary reports." The ALJ concluded that plaintiff's
testimony was not supported by the medical evidence of record. Hartranft v. Apfel, 181
F .3d 358, 362 (3d Cir. 1999) (the ALJ "must evaluate the intensity and persistence of
the pain or symptom, and the extent to which it affects the individual's ability to work, ..
. requir[ing) the ALJ to determine the extent to which a claimant is accurately stating the
degree of pain or the extent to which he or she is disabled by it.") (citing 20 C.F.R. §
404.1529( c)). Plaintiff reported relief with the use of medication on more than one
occasion.
2. Mental health

Plaintiff alleges that the ALJ's failure to cite plaintiff's GAF score of 48 requires
remand. In evaluating plaintiff's mental impairments, the ALJ noted plaintiff's treatment
over nine months, Xanax prescription, diagnosis of generalized anxiety disorder and
heroin dependence by history, and lack of side effects. While the ALJ did not
specifically cite plaintiff's lone GAF score (noted by plaintiff's therapist, not plaintiff's
treating physician), such omission does not necessarily require remand. The ALJ
correctly noted that plaintiff reported an inability to work because of "his bulging disc,
nerve damage, and slip disc." In three non-precedential opinions, the United States
Court of Appeals for the Third Circuit discussed the applicability of a claimant's GAF
23

score to the disability analysis. See Rios v. Comm'rof Soc. Sec., 444 F. Appx. 532 (3d
Cir. 2011 ); Gilroy v. Astrue, 351 Fed. Appx. 714 (3d Cir. 2009); Irizarry v. Barnhart, 233
Fed. Appx. 189 (3d Cir. 2007). In Rios, the record contained three GAF scores, of
which the ALJ discussed two. The Court held that remand was not warranted as the
ALJ's judgment that plaintiff's RFC was limited by his impairment aligned with the
treatment notes. Rios, 444 F. Appx. at 534-35. In Irizarry, the Court remanded the
case when plaintiff was treated by three physicians, each of which assigned a GAF
score, and the ALJ only discussed the highest GAF score. The ALJ did not discuss the
two lower GAF scores or the corresponding treatment notes. Irizarry, 233 Fed. Appx. at
192. In Gilroy, the ALJ made "repeated references to observations" from the
psychiatrist's report, but did not specifically reference the "one-time" GAF score of 45.
The Court held that failure to specifically address the single GAF score was not error,
as the ALJ properly explained plaintiff's limitations and the psychiatrist "did not express
any opinions regarding specific limitations." Gilroy, 351 Fed. Appx. at 716. In the case
at bar, plaintiff did not allege limitations with regard to his mental impairment, nor did his
treating providers make any note thereof. While the ALJ's summary is brief, such
discussion along with the analysis of plaintiff's daily activities and testimony, suffices to
support the ALJ's RFC determination. 9
The ALJ considered all the relevant evidence and adequately discussed the
9

To the extent plaintiff relies on the GAF score to require a finding of
disablement, plaintiff's therapist Jake Wayne is considered an "other source" and his
report alone can not establish disability. 20 C.F.R. §§ 404.1513(d)(1 ), 416.913(d)(1 );
SSR 06-03p ("Information from these "other sources" cannot establish the existence of
a medically determinable impairment, [but] ... may provide insight into the severity of
the impairment(s) and how it affects the individual's ability to function.")
24

bases for her RFC determination in her 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 as of May 25, 2010.

V. 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.

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