Hardy v. Colvin

Filing 18

MEMORANDUM. Signed by Judge Gregory M. Sleet on 8/21/2015. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

REBECCA L. HARDY,
Plaintiff,
v.

CAROLYN COLVIN, Acting Commissioner
of Social Security Administration,
Defendant.

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Civil Action No. 13-752-GMS

MEMORANDUM
I.

INTRODUCTION
The plaintiff Rebecca L. Hardy ("Hardy'') filed for disability insurance benefits ("DIB")

on September 1, 2011, pursuant to Title II of the Social Security Act. This action against defendant
Commissioner of Social Security Administration ("SSA") Carolyn Colvin ("Commissioner")
arises from the denial of Hardy's application. The SSA denied Hardy's claim initially and on
reconsideration. (D.I. 6 at 20.) Hardy thereafter requested an administrative law judge ("ALJ")
hearing. (Id.) ALJ Melvin Benitz conducted the hearing on August 25, 2011. (Id.)
. ALJ Benitz issued a written opinion on October 4, 2011, denying Hardy's DIB claim. (Id.
at 20-30.) The Appeals Council denied review of the ALJ's decision on March 15, 2013. (Id. at
1-6.) Hardy filed a timely appeal with the court on April 30, 2013. (D.I. 1.) Presently before the
court are the·parties' cross-motions for summary judgment. (D.I. 11, 15.) For the reasons that
follow, the court will: (1) deny Hardy's motion for summary judgment; and (2) grant the
Commissioner's motion for summary judgment.

II.

BACKGROUND
Hardy was born on May 17, 1954. (D.I. 6 at 43.) She has a college education. (Id. at 44.)

At the time of her alleged disability onset date (April 16, 2009), Hardy was fifty-four years old.
She was fifty-five years old, however, at the time of her actual application for DIB. She was fiftyseven years old at the time of the ALJ hearing.
Prior to the alleged onset of her disability, Hardy worked twenty-three years for the
University of Delaware as an assistant to the director ofbudget and finance. (Id. at 4~5.) Among
her job responsibilities, Hardy administrated the finances, oversaw budget development, worked
extensively on grant proposals, and ensured compliance with federal and state regulatory agencies.
(Id.)

Hardy left her job in April 2009 because of chronic pulmonary bacterial infectio:qs. (Id. at
· 45--47.) Her history with such infections date back to 1998. (Id. at 321.) Since 2008, Drs. Clifton
Hunt (pulmonology) and David Cohen (infectious diseases) have treated Hardy's infections. (Id.
at 362-92.) On March 4, 2009, Hardy received surgery to treat acid reflux (gastroesophageal
reflux disease), which was believed to be a contributor to her infections. (Id. at 334, 347--48.) Dr.
Jeffrey Zem performed the surgery. (Id.)
Around this time, Hardy also began treatment with Dr. Maria Lazar, a primary care
physician. (Id. at 429.)
A.

Medical Treatment During Relevant Time Period
1. Pulmonary Treatment
On May 1, 2009, Dr. Cohen noted that, despite her periodic episodes of shortness of breath,

Hardy had improved since 2008. (Id. at 437.) On May 4, 2009, Hardy told Nurse Carol Jaques-

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in Dr. Lazar's office-that she could not work; she presented disability papers for_Dr. Lazar's
completion. (Id. at 428.) Nurse Jaques noted that Hardy had coarse ronchi but no wheeze. (Id.)
On June 1, 2009, during a follow-up visit with Dr. Zem, Hardy reported "near normal
activity level." (Id. at 357.) Dr. Zem noted that Hardy was "progressing well postoperatively,"
without any further reflux symptomology. (Id.) On June 30, 2009, Hardy again saw Nurse Jaques
who noted that Hardy had considerable anxiety over her illness: "Emotionally, [Hardy] is unable
to pull together .... [She] feels she is unable to function." (Id. at 423.) Again, Hardy had coarse
ronchi without wheeze. (Id.)
On August 3, 2009, Dr. Hunt examined Hardy. (Id. at 499.) Hardy did exhibit increased
shortness of breath but no increase in cough or sputum production.

(Id.)

Hardy's chest

examination again demonstrated scattered ronchi, but exat)1inations of her heart, abdomen, and
extremities were ''unremarkable." (Id.) During a visit with Nurse Jaques on August 7, 2009,
Hardy explained that she was no longer being paid while on disability. (Id. at 425.) Problems
with her finances and her family caused Hardy additional anxiety: "[Hardy] is just completely
stressed." (Id.) On August, 26, 2009, however, Hardy reported that she was feeling better, with
reduced anxiety, and that her medication seemed to be working. (Id. at 426.) Her breathing was
clear to auscultation, with no ronchi. (Id.)
Dr. Cohen treated Hardy again in September 2009. (Id. at 362-63.) He noted that she was
doing "extremely well," after approximately sixteen months of treatment. (Id. at 362.) Dr. Cohen
recommended continuing with her existing treatment. (Id.) Although Hardy reported that she felt
poorly, Dr. Cohen found that her activity level indicated that she was "breathing reasonably well."
(Id. at 363.)

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On September 25, 2009, Hardy went to the emergency room for shortness of breath. (Id.
at 401.)

The treating physicians were unable to find a specific cause; an x-ray showed

improvement from her previous exam on March 5, 2009. (Id. at 396, 398.) Hardy was discharged
shortly thereafter. (Id. at 405.) Overall, to the attending physician, Hardy was "quite wellappearing." (Id. at 407.)
Hardy received a CT scan in October 2009, which showed "no significant interval change,"
as compared to her previous scan from April 2009. (Id. at 490-92.) In February 2010, Hardy
sought treatment from Dr. Hunt for worsening symptoms, including increased cough and fever.

(Id. at 500.) Hardy, however, reported no changes to her daily activities, her eating habits, or her
sleep patterns. (Id.) After examination, Dr. Hunt noted that Hardy's respiration appeared normal.

(Id. at 502.) Dr. Hunt also evaluated Hardy in March and May 2009, and made similar findings.
(Id. at 507-09, 513-15.) When Dr. Cohen evaluated Hardy in April 2009, he noted that her lungs
were clear, despite her complaints of increased cough. (Id. at 436.)
A CT scan in June 2010 again showed Hardy's lung condition to be stable, with no notable
changes from her previous exanis. (Id. at 506-07.) Dr. Cohen and Dr. Hunt made similar findings
during their subsequent evaluations. (Id. at 477-79, 529.) Dr. Cohen prescribed an aggressive
antibiotic regimen on August 4, 2010. (Id. at 528.) Hardy reported improvement in her breathing
in follow-up visits in September and October 2010. (Id. at 570-71.)
On January 11, 2011, another CT scan again confirmed that Hardy's lung physiology was
stable. (Id. at 548.) Dr. Hunt's evaluation on February 7, 2011, also remained consistent with his
prior notes. (Id. at 550-52.) Hardy sought a second opinion from Dr. Alexander Swift on March
1, 2011. (Id. at 558-60.) Dr. Swift described Hardy's care to that point as "excellent" and agreed
with the present plan of care. (Id. at 560.) Hardy subsequently restarted antibiotic treatment and,

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in June 2011, reported to Dr. Cohen that she was breathing better and that her condition was mild.

(Id. at 561.)

2. Knee Treatment
An x-ray image of Hardy's knee revealed no evidence of fracture or dislocation. (Id. at
430.) Nurse Jaques recommended rest and ice. (Id. at 426.) She noted normal range of motion in
Hardy's limbs. (Id. at 427-28.)
Hardy sought treatment from Dr. Andrew Gelman on January 9, 2010. (Id. at 410.) He
noted that Hardy's knee difficulties were likely the result of an arthroscopic procedure several
years earlier. (Id.) He diagnosed Hardy with posttraumatic arthritis. (Id. at 411.) Hardy responded
well to a series of knee injections, from February to March 2010 and again from December 2010
to January 2011. (Id. at 537-44.)

3. Hearing Tests
A hearing test in December 2008 revealed a decline in Hardy's hearing. (Id. at 316.) She,
however, maintained normal hearing sensitivity and excellent word recognition abilities in both
ears. (Id.) Hardy's hearing was tested again in February 2010, revealing no changes from the
December 2008 test. (Id. at 413.)

4. Psychological Examinations
Hardy never sought treatment from a mental health professional. (Id. at 70.) Nurse Jaques'
notes in 2009 indicated that Hardy was stressed and anxious about her illness and finances. (Id. at
423, 425.) Hardy took Xanax. Dr. Hunt and Dr. Cohen did not observe any psychiatric concerns.

B. Expert Opinions
Dr. Brian Simon performed a consultative psychological exam on May 4, 2010. (Id. at
443-50.) He opined that Hardy's "psychiatric problems do not appear to be to the severity that

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they would limit her ability to make decisions, adapt to different circumstances, as well as
exercisingjudgment, insight, and common sense."
Dr. Carlene Tucker-Okine, a reviewing state agency physician, completed a psychiatric
review technique form on May 6, 2010. (Id. at 583-93.) She noted that Hardy's psychiatric
impairments were not severe and that she would have no more than mild limitations to her daily
activities, social functioning, or concentration, persistence, or pace. (Id. at 583, 591.)
Dr. Nisha Singh, a reviewing state agency physician, completed a physical residual
functional capacity ("RFC") assessment on May 17, 2010. (Id. at 451-58.) Dr. Singh opined that
Hardy could lift up to twenty pounds occasionally, and up to ten pounds frequently. (Id. at 452.)
She opined that Hardy could stand or walk for four hours and sit for about six hours in a typical
eight-hour workday. (Id.) Dr. Singh noted that Hardy could perform her daily activities, such as
driving, shopping, personal care, laundry, preparing meals, and walking. (Id. at 453.) She opined
that Hardy had no limitations in her ability to communicate. (Id. at 455.)
Dr. Michael Borek, another state agency physician, reviewed Dr. Singh's opinions on
September 5, 2010. (Id. at 531.) Dr. Borek affirmed Dr. Singh' s opinions, noting that they were
consistent with the clinical records and Hardy's own statements. (Id.)
Finally, Dr. Lazar completed a medical assessment form on May 15, 2011. (Id. at 53235.) Dr. Lazar opined that Hardy was unable to perform routine, repetitive tasks, or interact with
others. (Id. at 532.) She opined that Hardy could not walk a single city block without rest or
severe pain. (Id.) Dr. Lazar also noted that Hardy could only sit up to two hours and stand/walk
for only about twenty minutes. (Id. at 533.) According to Dr. Lazar, Hardy could rarely lift less
than ten pounds. (Id. at 534.) Dr. Lazar filled out another functional limitations form on August
9, 2011. (Id. 582.) In it, Dr. Lazar noted a number of considerable limitations, opining that Hardy

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could not interact appropriately with the general public and could not complete a normal
workday/week without interruptions and an unreasonable number of rest periods. (Id.) Dr. Lazar
also opined that Hardy would have noticeable difficulty performing accurately and consistently,
accepting instructions and criticism, working with co-workers, and dealing with stress of
semiskilled work. (Id.)

C. The ALJ's Findings
On October 4, 2011, the ALJ issued an unfavorable decision finding that Hardy was not
disabled. (fd. at 20-30.) Hardy had last engaged in substantial gainful employment on April 16,
2009, the alleged onset date of disability. (Id. at 22.) ALJ Benitz determined that Hardy's lung
infections and degenerative disease in her right knee were severe impairments. (Id.) Hardy's acid
reflux, hearing loss, and mental impairments (i.e., depression and anxiety) were found to be n9nsevere impairments. (Id. at 22-23.)
The ALJ found that Hardy's lung infections and arthritis in her knee, however, were not
listing-level severity, according to 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 23-24.)
Taking into account Hardy's severe impairments, the ALJ found that she had the RFC to perform
light work, with the conditions that she could only lift up to twenty pounds occasionally, ten
pounds frequently, and that she could sit and stand for an hour at a time, on an alternating basis.
(fd. at 24.) ALJ Benitz determined that Hardy could perform semiskilled work.
The ALJ found that Hardy was unable to perform any of her past relevant work;
nonetheless, in light of testimony from the Vocational Expert ("VE"), there were still a significant
number of jobs in the national economy that Hardy could perform. (Id. at 28-29.) Ultimately, the
ALJ determined that Hardy was not under a disability as defined in the Social Security Act, at any
time from April 16, 2009, to the date of decision. (Id. at 29.)

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Ill.

STANDARD OF REVIEW
A. Reviewing the ALJ's Decision
A reviewing court will only reverse the ALJ' s decision if the ALJ did not apply the proper

legal standards or if the decision was not supported by "substantial evidence" in the record. 42
U.S.C. § 405(g); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). ''Where the ALJ's
findings of fact are supported by substantial evidence," the court is "bound by those findings."

Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001). "[S]ubstantial evidence ... means more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Thus, substantial evidence "may be
somewhat less than a preponderance of evidence." Rutherford v. B_amhart, 399 F.3d 546, 552 (3d
Cir. 2005) (quoting Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971)). "If there is
only a slight preponderance of the evidence on one side or the other, the [ALJ's] finding should
be affirmed." Hanusiewicz v. Bowen, 678 F. Supp. 474, 476 (D.N.J. 1988).
In determining whether substantial evidence supports the ALJ' s findings, the court may
not undertake a de nova review of the arguments, nor may it re-weigh the evidence of record.

Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). The inquiry is not whether
the reviewing court would have made the same determination, but rather whether the ALJ' s
conclusion was reasonable. Richardson, 402 F.2d at 401; see Brown v. Bowen, 845 F.2d 1211,
1213 (3d Cir. 1988). ALJ decisions are therefore to be accorded a high level of deference in
review. Even if the court would have decided the case differently, it must defer to the ALJ and
affirm the Commissioner's decision so long as that decision is supported by substantial evidence.

Monsour, 806 F.2d at 1190-91.

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An agency's decision cannot be affirmed on a ground other than that actually relied upon

by the agency in making its decision. Fargnoli, 247 F.3d at 44 n.7 ("The grounds upon which an
administrative order must be judged are those upon which the record discloses that its action was
based." (citing SECv. Chenery Corp., 318 U.S. 80, 63 (1943))). "The district court's function is
to determine whether the record, as a whole, contains substantial evidence to support the
Commissioner's findings." Cefalu v. Barnhart, 387 F. Supp. 2d 486, 491 (W.D. Pa. 2005) (citing
Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994)). In Social Security cases, this substantial
evidence standard applies to motions for summary judgment brought pursuant to Federal Rule of
Civil Procedure 56(c). See Woody v. Secy ofthe Dep 't ofHealth &Human Servs., 859 F.2d 1156,
1159 (3d Cir. 1988).
B. Applicable Statute & Law
The Social Security 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. § 1382c(a)(3)(A). The Commissioner has promulgated
regulations for determining disability by application of a five-step sequential analysis. See 20
C.F.R. § 404.1520. The ALJ, the reviewing Appeals Council, and the Commissioner evaluate
each case according to this five-step process until a finding of "disabled" or "not disabled" is
obtained. See§ 404.1520(a). The process is summarized as follows:
1. If the claimant currently is engaged in substantial gainful employment, she
will be found "not disabled."
2. If the claimant does not suffer from a "severe impairment," she will be
found "not disabled."
3. If the severe impairment meets or equals a listed impairment in 20 C.F.R.
Part 404, Subpart P, Appendix 1 and has lasted or is expected to last for a
continuous period of at least twelve months, the claimant will be found
"disabled." Otherwise, she will be found "not disabled."
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4. If the claimant can still perform work she has done in the past ("past relevant
work") despite the severe impairment, she will be found "not disabled."
5. Finally, the Commissioner will consider the claimant's ability to perform
work ("residual functional capacity"), age, education, and past work
experience to determine whether or not she is capable of performing other
work in the national economy. If she is incapable, a finding of disability will
be entered. Conversely, ifthe claimant can perform other work, she will be
found "not disabled."
§ 404.1520(b)-(f); see also Carey v. Astrue, No. 10-413-GMS, 2015 WL 1467205, at *6 (D. Del.

Mar. 30, 2015) (paraphrasing the five-step process for determining disability).
The disability determination analysis involves a shifting burden of proof. See Wallace v.
Sec'y ofHealth &Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of the
analysis, the burden is on the claimant to prove every element of his or her claim by a
preponderance of the evidence. At step five, however, the burden shifts to the Commissioner to
prove that there is some other kind of substantial gainful employment the claimant is able to
perform. Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000); see also Kangas v. Bowen, 823 F.2d
775, 777 (3d Cir. 1987); Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983). Substantial gainful
employment is defined as "work that-(a) involves doing significant and productive physical or
mental duties; and (b) is done (or intended) for pay or profit." 20 C.F.R. § 404.1510. When
determining whether substantial gainful employment is available, the ALJ is not limited to
consideration of the claimant's prior work, but may also consider any other substantial gainful
activity which exists in the national economy. See 42 U.S.C. § 423 (d)(l)(A), (2)(A); Heckler v.
Campbell, 461 U.S. 458, 460 (1983).

IV.

DISCUSSION
Hardy asserts that the ALJ's decision is flawed on several grounds. (D.I. 11 at 16-30.)

First, Hardy argues that the ALJ failed to resolve an inconsistency between the VE testimony and
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the Dictionary of Occupational Titles ("DOT"), concerning the sit/stand option. (Id. at 16-18.)
Second, Hardy argues that the ALJ failed to properly consider her age as a criterion for the
Medical-Vocational Guidelines. (Id. at 18-21.) Third, Hardy argues that the ALJ erred in
determining that her hearing impairment was non-severe. (Id. at 21-22.) Fourth, Hardy argues
that the ALJ failed to afford adequate weight to the opinion of her treating physician Dr. Lazar.
(Id. at 22-28.) Fifth, and finally, Hardy argues that the Commissioner failed to satisfy her burden

to prove that there were jobs for Hardy in the national economy. (Id. at 28-30.)
A. Sit/Stand Option
In his hypothetical question posed to the VE, the ALJ included the condition that the person

"can sit for an hour, stand for an hour consistently on an alternate basis during an eight-hour day."
(D.I. 6 at 78.) The parties refer to this opportunity to alternate between standing and sitting as the
"sit/stand option."
Hardy argues that the ALJ failed to have the VE address an inconsistency between his
testimony and the DOT. The DOT does not address the sit/stand option for any of its occupations.
Therefore, Hardy asserts that the VE's proposed jobs conflict with the DOT.
"Social Security Ruling 00-4p requires that the ALJ ask the vocational expert whether any
possible conflict exists between the vocational expert1s testimony and the DOT, and that, if the
testimony does appear to conflict with the DOT, to 'elicit a reasonable explanation for the apparent
conflict."' Burns v. Barnhart, 312 F.3d 113, 127 (3d Cir. 2002) (quoting SSR 00-4p, 2000 WL
1898704 (Dec. 4, 2000)). "The Ruling requires that the explanation be made on the record and
that the ALJ explain in his decision how the conflict was resolved." Id.
The court disagrees with Hardy's view that the VE's testimony was inconsistent with the
DOT. The DOT's silence on the sit/stand option does not place it in tension with the VE's

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suggested occupations. See Conn v. Astrue, 852 F. Supp. 2d 517, 528 (D. Del. 2012) ("[T]he VE's
testimony and the DOT are not in conflict; the DOT simply does not address sit/stand options.");
Faulknerv. Astrue, No. 06-202-MPT, 2007 WL 2936111, at *14 (D. Del. Oct. 9, 2007) ("Contrary
to plaintiff's argument, the testimony of ... the vocational expert[] and the information in DOT
are not in conflict. DOT does not address whether a job allows an employee to sit or stand. It only
covers how much sitting or standing a particular occupation requires.").

The ALJ was not

obligated to resolve an inconsistency that did not exist. 1
The VE testified that a hypothetical person with Hardy's RFC could perform three jobs:
(1) receptionist, bookkeeper; (2) office manager; and (3) clerical assistant. 2 (D.I. 6 at 79-80.) "SSR
00-4p does not limit a VE's testimony solely to the DOT." Conn, 852 F. Supp. 2d at 528. As the
DOT is silent on the sit/stand option, the VE was entitled to rely on his own "education, training
and experience" to opine about Hardy's ability to maintain a job. See id. Hardy has made no
challenge to the VE's qualifications. Thus, the ALJ did not err in accepting the VE's opinion that
the proffered occupations were consistent with Hardy's RFC.

1

In his decision, ALJ Benitz mistakenly used what appears to be form language from a previous opinion,
stating that the VE appropriately relied on his expertise to explain why his opinions differed from the DOT. (D.I. 6
at 29.) In fact, the VE never aclrnowledged the DOT's silence on the sit/stand option during his testimony. (Id. at
79-80.) The court agrees with the Commissioner that this gaffe does not change the outcome-it was harmless error.
The ALJ's mistake cannot create an inconsistency between the VE's testimony and the DOT that was not present in
the first place.
Hardy's reliance on Smith v. Astrue is misplaced. 961 F. Supp. 2d 620 (D. Del. 2013). That case from this
District did not hold that the DOT's silence on the sit/stand option automatically created an inconsistency that needed
to be addressed. Id. at 657-58. Rather, Smith merely stated that, in the context of the specific case, the ALJ's question
to the VE concerning the sit/stand option was inadequate to address whether the VE's opinions were fully consistent
with the DOT. Id. at 658 ("The Court is not persuaded that this question was intended to, or had the effect of, more
broadly addressing potential inconsistencies between the jobs listed by the VE and the contents of the DOT."). Hardy
is incorrect that the court in Smith remanded solely to allow the ALJ to analyze the sit/stand option.
2
The ALJ ultimately only identified the positions of receptionist, bookkeeper and clerical assistant-the
VE's proposed "sedentary" positions-in his decision.

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. B. Medical-Vocational Guidelines

As of the alleged disability onset date, Hardy was fifty-four years old, within the "person
closely approaching advanced age" category. See 20 C.F.R. § 404.1563(d) (age fifty to fifty-four).
Hardy, however, turned fifty-five years old as of May 17, 2009, placing her in the "person of
advanced age" category. See § 404.1563(e) (age fifty-five or older). Hardy contends that the ALJ
erred by failing to establish the transferability of her prior work experience to the VE's proposed
sedentary occupations, as required by Social Security Regulations.
To find that an individual who is age 55 or over and is limited to
sedentary work exertion has skills transferable to sedentary
occupations, there must be very little, if any, vocational adjustment
required in terms of tools, work processes, work settings or the
industry.... [These] [i]ndividuals ... cannot be expected to make a
vocational adjustment to substantial changes in work simply
because skilled or semiskilled jobs can be identified w~ich have
some degree of skill similarity with their [past relevant work].
SSR 82-41, 1982 WL 31389, at *5 (Jan. 1, 1982); see also 20 C.F.R. § 1568(d)(4) ("If you are of
advanced age and you have a severe impairment( s) that limits you to no more than sedentary work,
we will find that you have skills that are transferable to skilled or semiskilled sedentary work only
if the sedentary work is so similar to your previous work that you would need to make very little,
if any, vocational adjustment in terms of tools, work processes, work settings, or the industry.").
The ALJ adopted two of the VE' s three proposed jobs in his decision. (D .I. 6 at 29.) Both
of these jobs were described as sedentary work. (Id. at 29, 79-80.) Although identifying only
these two sedentary jobs in the national economy, the ALJ actually determined that Hardy had the
RFC to perform a range of light work, with some limitations on the amount of weight she could
lift and the time she was capable of sitting/standing. (Id. at 24.) "[G]rid rules are based on the
RFC and not the characteristics of the available jobs .... " Anderson v. Comm 'r ofSoc. Sec., 406
F. App'x 32, 36 n.1 (6th Cir. 2010). Hardy is mistaken in her assertion that the ALJ was required
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in this instance to adduce evidence from the VE that her past work was "so closely related to other
jobs" that she would require only a "minimal amount of job orientation." See SSR 82-41, 1982
WL 31389, at *5.
The ALJ assessed Hardy with an RFC that did not fit squarely into any single "grid"
category of the Medical-Vocational Guidelines. (D.I. 6 at 24.) In these situations, it is proper for
the ALJ to "consult a vocational resource," such as the VE. SSR 83-12, 1983 WL 31253, at *1-2
(Jan. 1, 1983). The VE testified that Hardy possessed skills that could be transferred to the
hypothetical jobs. (D.I. 6 at 79-80.) The ALJ also acknowledged that Hardy transitioned from
"closely approaching advanced age" to "advanced age" when she turned fifty-five years old. (Id.
at 28.) The court sees no error with the ALJ's treatment of Hardy's age or the Medical-Vocational
Guidelines.

C. Hearing Impairment
Hardy asserts that the ALJ's finding that her hearing loss was only a non-severe impairment
was not supported by substantial evidence. .Hardy argues that her hearing loss is "more than a
slight abnormality and causes more than a minimal effect on her ability to work," thus satisfying
the relatively low standard for finding an impairment to be "severe." (D.I. 12 at 21-22); see
McCrea v. Comm 'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004) ("[A]n applicant need only
demonstrate something beyond a slight abnormality or a combination of slight abnormalities which
would have no more than a minimal effect on an individual's ability to work. Any doubt as to
whether this showing has been made is to be resolved in favor of the applicant. In short, the steptwo inquiry is a de minimis screening device to dispose of groundless claims." (internal citations,
quotation marks, and alterations omitted)).

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Despite her conclusory statement quoted above, Hardy produced no evidence that her
hearing loss had any effect on her ability to work. Indeed, the ALJ noted as much, saying that
Hardy's hearing loss "do[es] not cause any functional restrictions." (D.I. 6 at 22.) Hardy did
produce the results of her hearing tests, but these fail to indicate that her ability to work would be
hindered. (Id. at 316, 413.) Hardy's own testimony at the hearing-though it describes her
symptomology-also does not aver that her functioning would be limited. (Id. at 53-54.) Dr.
Singh, one of the reviewing physicians, opined that Hardy had no communicative limitations,
which included hearing and speaking.

(Id. at 455.)

Thus, the court finds that the ALJ's

determination that Hardy's hearing loss was only a non-severe impairment was supported by
substantial evidence.
D. Treating Physician Opinion
Dr. Lazar completed two medical assessment forms opining that Hardy was incapable of
performing full-time work. (D.I. 6 at 532-35; 582.) ALJ Benitz rejected these opinions. Hardy
contends that the. ALJ failed to afford Dr. Lazar's opinions adequate weight, as she was Hardy's
treating physician.
Generally, the ALJ must give more weight to opinions from treating sources but is only
required to give controlling weight ifhe finds that "the treating source's opinion on the issue(s) of
the nature and severity of [claimaint's] impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record." 20 C.F.R. § 1527(c)(2); see also Brown v. Astrue, 624 F.3d 193,
196 (3d Cir. 2011) (noting that a treating physician's opinion may be outweighed by other
evidence). Where an ALJ does not afford controlling weight to the opinion of a treating source,
he should take into account a number of factors in determining precisely the amount of weight to

15

give each medical opinion, such as: (1) examining relationship, (2) treatment relationship
(including the ti:i:ne and nature of treatment), (3) supportability of the opinion, (4) consistency of
the opinion, (5) specialization, and (6) any other factors brought to the ALJ's attention. § 1527(c).
After summarizing Hardy's medical history, ALJ Benitz explained the weight he assigned
to each expert opinion. (D.I. 6 at 27-28.) The ALJ assigned "significant weight" to Dr. Singh's
opinion and Dr. Borek's opinion affirming that of Dr. Singh. (Id. at 27.) The ALJ noted that Dr.
Singh's and Dr. Borek's RFC assessments were consistent with the medical records as a whole
and aligned with the ALJ's own view of Hardy's RFC. (Id.) The ALJ also gave significant weight
to Dr. Tucker-Okine, who opined that Hardy's mental impairments were not severe. (Id. at 27.)
Finally, the ALJ gave Dr. Simon significant weight as well, who opined that Hardy's daily
activities were only moderately restricted, for similar reasons. (Id. at 27-28.)
ALJ Benitz did not, however, afford Dr. Lazar's opinion considerable weight and instead
rejected her opinions. (Id. at 28.) The ALJ reasoned that, despite her being a treating source, Dr.
Lazar's opinions were undermined by the medical record as a whole.

(Id.)

The ALJ also

determined that Dr. Lazar's opinions were conclusory, unsubstantiated, and beyond her scope of
expertise, and that they merely recited Hardy's own subjective complaints. (Id.)
The court finds substantial evidence in support of the ALJ's conclusions. First, Dr. Lazar's
opinions in her assessments took the form of checkboxes or circles. (Id. at 532-35, 582.) She did
not provide any reasoning or cite to any previous treatment records in support of these conclusions.
The ALJ properly assigned reduced weight to her Dr. Lazar's opinion, as "supportability" is a
factor for the ALJ's consideration. See 20 C.F.R. § 1527(c)(3) ("The more a medical source
presents relevant evidence to support an opinion, particularly medical signs and laboratory
findings, the more weight we will give that opinion. The better an explanation a source provides

16

for an opinion, the more weight we will give that opinion."); see also Mason v. Shala/a, 994 F.2d
1058, 1065 (3d Cir. 1993) ("Form reports in which a physician's obligation is only to check a box
or fill in a blank are weak evidence at best.").
Moreover, the opinions in Dr. Lazar's assessments are not supported by previous medical
notes, neither from Drs. Hunt and Cohen, nor Dr. Lazar herself. While the treatment records
periodically illustrated that Hardy's lung infections interfered with her ability to breathe, overall
they fail to support the dramatic limitations identified in Dr. Lazar's 2011 assessments, which had
never previously been identified, dating back over two years. Dr. Cohen noted in September 2009
that Hardy was breathing reasonably well, considering the fact that she had walked around
Washington, D.C. with her grandkids. (D.I. 6 at 363.) Hardy would exercise with yoga, and her
gait was consistently normal. The CT and x-ray images showed Hardy's lung physiology to be
stable, and her physicians' treatment notes do not indicate any dramatic changes throughout the
length of the alleged disability period. Thus, the inconsistencies in Dr. Lazar's ultimate RFC
assessment further justifies the ALJ' s decision to discount her opinions.

See 20 C.F .R.

§ 1527(c)(4) ("Generally, the more consistent an opinion is with the record as a whole, the more

weight we will give to that opinion.").
In addition, Dr. Lazar, despite being Hardy's primary care physician, was not a specialist
in the relevant fields of pulmonology, infectious diseases, orthopedics, or psychology.

Her

specialty was family medicine. See § 1527 (c)( 5) ("We generally give more weight to the opinion
of a specialist about medical issues related to his or her area of specialty than to the opinion of a
source who is not a specialist."). The court finds substantial evidence in support of the ALJ's
decision to afford greater weight to the opinions of the non-examining consulting physicians over
those of Dr. Lazar, Hardy's treating physician. See Chandler v. Comm 'r ofSoc. Sec., 667 F.3d 356,

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361 (3d Cir. 2011) ("The ALJ-not treating or examining physicians or State agency consultantsmust make the ultimate disability and RFC determinations. Although treating and examining
physician opinions often deserve more weight than the opinions of doctors who review records,
the law is clear that the opinion of a treating physician does not bind the ALJ on the issue of
functional capacity. State agent opinions merit significant consideration as well." (internal
citations, quotation marks, and alterations omitted)); Brown v. Astrue, 649 F.3d 193, 196 (3d Cir.
2011) ("Although there was record evidence from a treating psychiatrist suggesting a contrary
conclusion, the ALJ is entitled to weigh all evidence in making its finding." (footnote omitted)).
E. Jobs in the National Economy

Finally, Hardy argues that the ALJ's acceptance of the VE's testimony that there were jobs
in the national economy that she could perform was not supported by substal1:tial evidence. As
stated above, the Commissioner bears the burden of establishing that a claimant's RFC permits her
to perform jobs in the national economy. See Sykes, 228 F.3d at 263. The VE in this case testified
that a hypothetical person with Hardy's RFC could perform three jobs that were available in the
national and local economies: (1) receptionist, bookkeeper; (2) office manager; and (3) clerical
assistant. (D.I. 6 at 79-80.) In his decision, the ALJ ruled that Hardy could perform two of these
positions-receptionist, bookkeeper and clerical assistant. (Id. at 29.)
First, Hardy argues that, because the ALJ improperly discounted Dr. Lazar's opinion, the
hypothetical question addressed by the VE did not accurately convey Hardy's RFC. For the
reasons already discussed, the ALJ decision to reject Dr. Lazar's opinion was supported by
substantial evidence.
Second, Hardy argues that the ALJ could not rely on the VE's testimony because of
unreconciled inconsistencies between the testimony and the DOT.

18

For the reasons already

discussed, the DOT' s silence concerning a sit/stand option did not create an inconsistency with the
VE' s testimony that required an explanation.
Third, Hardy argues that the VE's testimony did not include an opinion as to whether she
would require vocational adjustment, a requirement given her "advanced age" status. For the
reasons already discussed, the ALJ did not err because he assessed Hardy with an RFC to perform
light work (not merely sedentary work) and properly followed the Medical-Vocational Guidelines.
Fourth, Hardy argues that the ALJ's hypothetical question did not include Hardy's hearing
loss as a limitation on functionality. For the reasons already discussed, the ALJ's decision to
classify Hardy's hearing loss as a non-severe impairment-i. e., "it does not significantly limit [her]
physical or mental ability to do basic work activities"-was supported by substantial evidence.
See 20 C.F.R. § 404.1521(a). Therefore, the ALJ. did not err by excluding a hearing limitation
from the hypothetical question. See Rutherford, 399 F.3d at 554 ("We do not require an ALJ to
submit to the vocational expert every impairment alleged by a claimant. Instead the directive ... is
that the hypotheticals posed must 'accurately portray' the claimant's impairments and that the
expert must be given an opportunity to evaluate those impairments 'as contained in the record."').
Finally, Hardy contends that medical evidence in the record conflicts with the VE's
testimony that she was capable of performing semi-skilled work. Hardy, however, only cites Dr.
Lazar's assessment fomis, which-as already discussed-the ALJ rejected. The ALJ's decision
to do so was supported by substantial evidence. In formulating his hypothetical question, the ALJ
is not obligated to include alleged impairments that he finds are not supported or incredible. See
id.; see also Chandler, 667 F.3d at 361 ("The ALJ-not treating or examining physicians or State

agency consultants-must make the ultimate disability and RFC determinations.").
Commissioner sustained her step-five burden.

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The

V.

CONCLUSION
For the foregoing reasons, the court grants the Commissioner's motion for summary

judgment (D.I. 15) and denies Hardy's motion for summary judgment. (D.I. 11.)

Dated:

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