Stokes v. Colvin

Filing 19

REPORT AND RECOMMENDATIONS re 16 Cross MOTION for Summary Judgment filed by Carolyn W. Colvin, 13 MOTION for Summary Judgment filed by Rosely Altagracia Stokes. Please note that when filing Objections pursuant to Federal Ru le 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 6/6/2014. Signed by Judge Mary Pat Thynge on 5/20/14. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROSELY ALTAGRACIA STOKES,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

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Civ. A. No. 13-1479-RGA/MPT

REPORT AND RECOMMENDATION
I.

INTRODUCTION
On August 26, 2013, plaintiff Rosely Altagracia Stokes (“plaintiff”) filed this action

against Carolyn W. Colvin, Acting Commissioner of Social Security (“defendant”).
Plaintiff appeals defendant’s decision denying her application for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the
Social Security Act. Presently before the court are the parties’ cross-motions for
summary judgment. For the reasons set forth below, the court recommends plaintiff’s
motion for summary judgment be denied, and defendant’s cross-motion for summary
judgment be granted.
II.

BACKGROUND
A.

Procedural History

On November 9, 2009, plaintiff applied for DIB, and on November 27, 2009 she
applied for SSI.1 In both applications, plaintiff alleged she was disabled starting on

1

D.I. 12 at 536-547.

January 9, 2009, due to a heart condition, back problems, and numbness in her arm
and back.2 Plaintiff’s applications were initially denied on May 19, 20103 and on
reconsideration on September 28, 2010.4 On November 10, 2010, plaintiff filed a
written request for a hearing.5
A hearing before Administrative Law Judge (“ALJ”) Melvin D. Benitz was
conducted on August 30, 2011.6 Plaintiff, represented by Tricia A. O’Donnell, a nonattorney representative, testified at the hearing.7 Christina Cody, an impartial vocational
expert (“VE”), also appeared at the hearing.8 On October 19, 2011, the ALJ issued a
written decision denying plaintiff’s applications for DIB and SSI.9 The ALJ noted
plaintiff’s insured status expired on December 31, 2013, and therefore, she was
required to establish disability on or before that date in order to be entitled to a period of
disability and DIB.10 The ALJ held plaintiff was not disabled under sections 216(i),
223(d), and 1614(a)(3)(A) of the Social Security Act.11 Specifically, the ALJ found
plaintiff had severe impairments, including depression, post-traumatic stress disorder,
degenerative disc disease, chronic obstructive pulmonary disease, and coronary artery
disease (aortic thoracoabdominal aneurysm), but nonetheless had the residual
functional capacity to perform simple unskilled light work as defined in 20 C.F.R. §
2

Id. at 562.
Id. at 460-61.
4
Id. at 478-79.
5
Id. at 495-96.
6
D.I. 11 at 398-439.
7
Id. at 401-28.
8
Id. at 428-39.
9
Id. at 18-29.
10
Id. at 18.
11
Id.
3

2

404.1567(b) and § 416.967(b).12 The ALJ further determined although plaintiff could
perform said work, she can sit for 20-30 minutes, stand for 20-30 minutes on an
alternate basis during an eight hour workday with ordinary and customary breaks,13 and
avoid heights, dangerous machinery, climbing stairs, ropes, ladders, and odors, gases,
fumes, and dust.14 He also found she could only have occasional interactions with her
supervisor, the public and co-workers.15 The ALJ found plaintiff mildly limited in pushing
and pulling with her lower left extremity.16
Plaintiff’s subsequent appeal to the Appeals Council was denied, as the Council
concluded there was no basis for reviewing the ALJ’s decision.17 The ALJ’s decision,
therefore, constitutes the final decision of the Commissioner.18
Having exhausted all administrative remedies, plaintiff now seeks judicial review
of this decision under 42 U.S.C. § 405(g).19 On January 16, 2014, plaintiff moved for
summary judgment.20 On February 18, 2014, defendant filed a cross-motion for
summary judgment.21
B.

Factual Background

Plaintiff was 45 years old at her onset date, and is considered a “younger person”

12

Id. at 21-23; see also 20 C.F.R. § 404.1567(b); 20 C.F.R. § 415.967(b).
D.I. 11 at 23.
14
Id.
15
Id.
16
Id.
17
Id. at 36-37.
18
Id. at 1-4.
19
D.I. 1; see also 42 U.S.C. § 405(g).
20
D.I. 13.
21
D.I. 16.
13

3

at all times relevant to her DIB and SSI applications.22 She has a ninth-grade
education.23 Her prior vocational experience included hand packager, machine
operator, assembler, warehouse worker, and housekeeper.24
1.

Medical Evidence

Prior to the alleged onset date, plaintiff underwent open heart surgery for a
thoracic aortic aneurysm with dissection, followed by intensive care for one month.25 On
September 30, 2008, Madhavi Y. Yerneni, M.D. (“Dr. Yerneni”), a specialist in internal
medicine, noted plaintiff had emphysema (“COPD”), which had been stable since
2006.26 On March 31, 2008, Dr. Yerneni diagnosed plaintiff suffered from depression,
spondylosis/osteoarthritis of the spine, chest pain and had returned to smoking.27 On
April 9, 2008, plaintiff reported thoracic back pain at a follow-up visit with Derreck
Robinson, P.A. (“Robinson”), describing the pain as “needle-like” and worse when
working.28 Robinson found tenderness on palpation of the thoracic spine regions,
prescribed Tramadol, and advised to alternate positions at work.29
On July 31, 2008, she returned to Dr. Yerneni complaining of significant left knee
pain.30 Dr. Yerneni noted tenderness of the left knee, diagnosed bursitis and

22

D.I. 11 at 424; see also 20 C.F.R. § 404.1563(c) (“If you are a younger person
(under age 50), we generally do not consider that your age will seriously affect your
ability to adjust to other work.”).
23
D.I. 11 at 422.
24
Id. at 27.
25
D.I. 12 at 622.
26
Id. at 683.
27
Id. at 622.
28
Id. at
29
Id. at 625-26.
30
Id. at 627-28.
4

administered a Steagall injection.31 Plaintiff returned to Dr. Yerneni on August 28, 2008,
because of severe abdominal pain after being diagnosed with diverticulitis at Rhode
Island Hospital a week prior.32 Dr. Yerneni noted continued abdominal pain, which had
improved.33 On September 19, 2008, plaintiff visited Dr. Yerneni reporting persistent
burning and tingling thoracic pain, which was progressive and prevented standing or
working.34 Dr. Yerneni diagnosed thoracic pain with paresthesias and a suspected
herniated disk.35 Within six days, plaintiff was evaluated at the Rhode Island Hospital
emergency room for shortness of breath and chest pain, radiating to her back.36 She
described the pain at seven on a scale of one to ten.37 Thereafter, she was monitored
and treated for several hours and released that night after the pain subsided.38 A
thoracic spine MRI revealed degenerative changes at the L4-L5 level.39
On February 4, 2009, plaintiff reported her back pain improved because she was
no longer working.40 On August 11, 2009, plaintiff saw Dr. Yerneni, and advised she
was doing well without chest pain or shortness of breath, but experienced episodes of
vertigo.41 Dr. Yerneni recommended an evaluation by an ear, nose, and throat
specialist.42
On November 4, 2009, plaintiff was seen by Irene Szeto, M.D. (“Dr. Szeto”) at
31

Id.
Id. at 630.
33
Id.
34
Id. at 632-33.
35
Id.
36
Id. at 608-09.
37
Id.
38
Id.
39
Id. at 635.
40
Id. at 640-42.
41
Id. at 679.
42
Id.
32

Christiana Care Health Services (“Christiana”), for recurrent leg pain and dizziness. Dr.
Szeto diagnosed hyperlipidemia and hypertension, prescribed Benazepril,43 and referred
plaintiff to Bhaskar Rao, M.D. (“Dr. Rao”) for further evaluation of her vascular
condition.44 On November 25, 2009, Dr. Rao reported plaintiff had lower left extremity
pain and discomfort not associated with ambulation, which increased when walking long
distances, and ordered a CT angiography.45 The CT angiography revealed a chronic
type A aortic dissection, and he referred her to the Christiana emergency room for
immediate evaluation by cardiac surgeons on December 16, 2009.46 The Christiana
surgeons found plaintiff’s condition was stable, and did not require any acute surgical
intervention.47
Plaintiff was evaluated by John Kelly III, M.D. (“Dr. Kelly”), a cardiologist, who
noted chest discomfort, worsened by emotional stress, and prescribed a beta blocker.48
Dr. Kelly found no evidence of cardiac injury based on enzyme testing and an
electrocardiogram, but recommended close follow up regarding her chronic
thoracoabdominal aortic dissection.49
On December 23, 2009, plaintiff was evaluated by an emergency room cardiac
surgeon, who felt plaintiff’s ascending aortic dissection was chronic in nature and could
be managed medically with antihyperintensive agents.50 The same day, she saw Dr.
43

Id. at 724-25.
See id. at 837-38.
45
Id. at 837-38.
46
Id. at 835.
47
Id. at 704.
48
Id. at 704-05.
49
Id.
50
Id. at 835.
44

6

Rao, who performed an exercise treadmill study, which revealed plaintiff was only able
to ambulate for five minutes due to bilateral lower extremity pain.51 The study
suggested the nature of her complaints of lower extremity pain were not arterial, but
possibly neuromuscular.52 On January 22, 2010, plaintiff underwent a chest CTA which
revealed an extensive post surgical repair of the ascending aortic dissection to the
abdominal aortic bifurcation.53
Plaintiff returned to Dr. Szeto for follow-up on February 23, 2010, reporting
numbness and tingling in both hands at night and numbness and discomfort in her
legs.54 Dr. Szeto’s examination found her blood pressure was under “excellent
control,”55 lungs clear to auscultation with non-labored respirations, normal heart rate
and rhythm with no murmur, and normal gait, range of motion, and strength.56 Dr. Szeto
continued the ACE-inhibitor for hypertension, determined plaintiff was currently disabled
from work, and diagnosed “anti-dissection, carpal tunnel, restless legs, COPD, and
hypertension.”57
On March 16, 2010, spirometry studies revealed no definite obstructive or
restrictive ventilatory deficits, normal lung capacity, with mild reduction in vital capacity
and moderate reduction in diffusion capacity.58 Plaintiff saw Dr. Szeto on April 6, 2010,
and the findings reflected no focal neurologic deficits, normal gait, sensation, motor
51

Id. at 726.
Id.
53
Id. at 841-44.
54
See id. at 713.
55
Id.
56
Id. at 713-15.
57
Id.
58
Id. at 734, 739.
52

7

function, and strength.59 During the examination, plaintiff was cooperative, and her
mood and affect were appropriate, with normal judgment and no suicidal ideation.60
Plaintiff advised Dr. Szeto of her appointment with Dr. Nguyen, a heart surgeon. Dr.
Szeto noted “[i]t is unclear why she is going there, [plaintiff] is asymptomatic at this
time.”61
On July 2, 2010, plaintiff complained to Dr. Szeto of shortness of breath,
coughing, asthma, sleep apnea, difficulty balancing, memory loss, and depression.62
Dr. Szeto diagnosed depression, chest pain, hyperlipidemia, hypertension, asthma,
sleep apnea, and emphysema and prescribed Prozac.63 Dr. Szeto further noted
plaintiff’s “general health status is good,” and she was engaging in “routine aerobic
activity, 4-5 times a week” including bicycling, running, and weight lifting.64 On July 9,
2010, plaintiff underwent a sleep study which reveled no abnormalities.65
Plaintiff returned to the emergency room on August 10, 2010 complaining of
chest pain, shortness of breath, and palpitations.66 After blood work and a CT scan of
the chest, she was discharged and instructed to follow-up with her treating
cardiologist.67 On August 26, 2010, plaintiff underwent a CT scan of her head with
normal findings.68 Plaintiff saw Dr. Szeto on November 10, 2010 and requested weight59

Id. at 740-41.
Id.
61
Id.
62
Id. at 742.
63
Id. at 745-46.
64
Id. at 742-44
65
Id. at 747.
66
Id. at 770-71.
67
Id.
68
Id. at 810.
60

8

loss medicine,69 for which he prescribed phentermine, an appetite suppressant.70
Plaintiff had a follow up appointment with Dr. Rao on March 16, 2011.71 He
found no interscapular or back pain, and noted she continued her day-to-day activities
without much difficulty.72 Dr. Rao ordered a repeat CT scan of the chest, and on April 6,
2011, he discussed surgical repair of her thoracoabdominal aneurysm.73 The CT scan
confirmed a chronic dissection of the ascending aortic arch and the entire descending
thoracic aorta, abdominal aorta and left iliac bifurcation, and a secular component in the
mid thoracic aorta with a diameter of approximately 5.6 cm.74 Plaintiff desired surgery,
and on October 6, 2011, Dr. Nguyen performed an aortic arch replacement procedure.75
Plaintiff saw Dr. Kelly for an evaluation of her descending aortic dissection repair
on October 24, 2011.76 Dr. Kelly noted plaintiff tolerated surgery and the stent
procedure “reasonably well,” and diagnosed thoracic aortic dissection, chest pain,
shortness of breath, hypertension, and obesity and advised her to progress with
physical activities as tolerated.77
On February 1, 2012, at Dr. Szeto’s request, plaintiff underwent a CT scan of the
lumbar spine to evaluate low back pain that radiated down her left leg, causing

69

Id. at 813-14.
Id.
71
Id. at 816, 830.
72
Id.
73
Id. The discussed surgery was a three-stage repair of plaintiff’s dissecting
aneurysm, as well as a two-stage repair of the proximal aortic arch. D.I. 12 at 816.
74
D.I. 12 at 830.
75
See D.I. 11 at 338.
76
Id. at 334.
77
Id.
70

9

numbness and tingling.78 The scan revealed severe degenerative disk disease at L4L5, with moderate size disk protrusion causing extradural impression on the spinal cord,
as well as, narrowing of the lateral nerve root bilaterally and mild disk protrusion at L3L4.79 Dr. Rao saw plaintiff on June 13, 2012 and concluded her lower extremity pain
was unrelated to her aortic dissection and likely due to chronic lumbar degenerative disk
disease, for which he referred her to a pain management specialist.80
On June 20, 2011, Dr. Szeto checked a box on a form indicating plaintiff “is
totally disabled without any consideration of any past or present drug and/or alcohol
use.”81 He checked the same box on an identical form on August 22, 2011.82
On September 10, 2012, plaintiff was admitted to Christiana for another surgery,
to repair the proximal thoracic aortic dissection.83 The primary diagnosis was proximal
thoracic aortic dissection, with secondary diagnoses of hypertension, COPD, obesity,
and depression.84 Plaintiff was discharged on September 14, 2012, with the following
medications: Abilify, Atenolol, Simvastatin, Spiriva, and Trazodone.85
2.

Mental Health Medical Evidence

On November 30, 2010, plaintiff was admitted to MeadowWood, with symptoms
of decreased concentration and memory, loss of energy and interest, poor hygiene,
panic attacks, social withdrawal and isolation, generalized anxiety, and anger
78

Id. at 380.
Id.
80
Id.
81
D.I. 12 at 825-26.
82
Id.
83
D.I. 11 at 51.
84
Id. at 42.
85
Id. at 43, 51.
79

10

outbursts.86 Her diagnosis was major depressive disorder, recurrent, severe, with a
GAF of 20.87 She was discharged on December 14, 2010.88
On December 20, 2010, plaintiff was seen at Harmonious Mind Psychiatric and
Counseling Services (“Harmonious Mind”) for follow-up mental heath treatment
complaining of chest tightness, fearfulness, visual hallucinations of shadows flying in the
air, and audio hallucinations of “static-like” whispering.89 Kendall Dupree, M.D. (“Dr.
Dupree”) diagnosed plaintiff with major depressive disorder, single episode, severe
without psychotic features, post-traumatic stress disorder (“PTSD”), and polysubstance
dependence in sustained full remission and prescribed Trazodone, Pristig, and
Risperdal.90 On January 27, 2011, plaintiff was discharged from Harmonious Mind for
failing to attend scheduled appointments.91
On January 31, 2011, plaintiff resumed treatment at Harmonious Mind, reporting
her mood was improved and stable, with no thoughts of self-harm.92 Dr. Dupree
diagnosed major depression, PTSD, and polysubstance abuse in full remission, and

86

D.I. 12 at 854-57.
Id. at 862. The GAF is a scale ranging from zero to one hundred used by
mental health professionals to express an adult’s psychological, social, and
occupational functions. A GAF score of 61 to 70 indicates some mild symptoms or only
some difficulty in social, occupational, or educational functioning; a score of 51 to 60
indicates mild symptoms or moderate difficulty in social, occupational, or educational
functioning; and a score of 41 to 50 suggests serious symptoms or serious impairment
in social, occupational, and educational functioning. AMERICAN PSYCHIATRIC ASS’N,
DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS-TEXT REVISION 34 (4th ed.
2000).
88
Id. at 847.
89
Id. at 800, 847.
90
Id. at 801-03.
91
Id. at 804.
92
Id. at 805.
87

11

continued Pristiq and Trazodone.93
On February 10, 2011, plaintiff reported that Pristiq helped; she had a brighter
mood, more motivation, and no depression.94 On March 2, 2011, plaintiff complained of
irritability for the previous week for unknown reasons, and weight gain from
medications.95 Dr. Dupree prescribed Abilify and discontinued Risperdal.96
Dr. Dupree completed a Psychiatric/Psychological Impairment Questionnaire on
August 3, 2011, with diagnoses of bipolar disorder and PTSD, a GAF of 51 and fair
prognosis.97 His clinical findings included sleep and mood disturbance, recurrent panic
attacks, suicidal ideation or attempts, perceptual disturbances, decreased energy,
generalized persistent anxiety, hostility, and irritability.98 He opined plaintiff’s ability to
maintain attention and concentration for extended periods, work in coordination with
others, cooperation with co-workers or peers and avoiding or exhibiting behavioral
extremes as markedly limited.99 He concluded her ability to understand, remember,
carry out detailed instructions, perform activities within a schedule, maintain regular
attendance, be punctual within customary tolerance, accept instructions, respond
appropriately to criticism from supervisors, maintain socially appropriate behavior, and
adhere to basic standards of neatness or cleanliness was moderately limited.100 Dr.
93

Id.
Id. at 806.
95
Id. at 807.
96
Id.
97
Id. at 817-24.
98
Id. at 818. Markedly limited is defined as “effectively precludes the individual
from performing the activity in a meaningful manner.” D.I. 12 at 819.
99
D.I. 12 at 820-22.
100
D.I. 12 at 820-22. Moderately limited is defined as “significantly affects but
does not totally preclude the individual’s ability to perform the activity.” Id. at 819.
94

12

Dupree further communicated plaintiff was not malingering; she was able to tolerate low
stress work; and she would be absent from work about once a month due to her mental
impairments.101
C.

The Administrative Law Hearing
1.

Testimony of Plaintiff

Plaintiff testified at the administrative law hearing that she was unable to work
due to psychological, heart, and back problems.102 She claimed experiencing chest
pain about once a month, lasting three to four minutes, resulting from both physical and
emotional stress, which is relieved by laying down.103 She takes aspirin for chest
pain.104 Plaintiff also detailed problems with fatigue, dizziness, and numbness in her left
leg.105 She experienced depression with insomnia, loss of appetite, panic attacks,
reduced energy levels, suicidal ideation, and problems with concentration and
memory.106 She, however, acknowledged her psychiatric symptoms improved since
increases in the dosages of her psychotropic medications.107
Plaintiff admitted past problems with crack cocaine and alcohol, but denied any
cocaine usage since 2006 or alcohol for a couple of months.108 She testified she can
walk about a quarter mile, sit for 10-15 minutes before her back and legs hurt; and lift 10

101

Id. at 823.
D.I. 11 at 401.
103
Id. at 402-03.
104
Id. at 403.
105
Id. at 402-07.
106
Id. at 409, 416-17.
107
Id. at 412-13.
108
Id. at 417-18.
102

13

to 20 pounds.109 She spends 8 to 10 hours a day at rest and has difficulty bending and
reaching overhead and forward due to back and leg pain.110
At the time of the ALJ hearing, plaintiff and her three children, none over the age
of twelve, were living with a friend.111 Plaintiff testified her friend helped care for her
children, performed household chores, cooked, and grocery shopped.112 On occasion,
plaintiff prepared meals.113 Plaintiff engaged in no social activities and watched
television.114 She received unemployment benefits in 2009 and 2010, and also babysat
her niece’s son three times a week, four hours a day for four months in 2010.115 In an
Adult Functional report, plaintiff reported she got along well with authority figures, had
never been terminated from employment for co-worker problems, and easily handled
changes in routine.116
2.

Testimony of Vocational Expert

Christina Cody, a VE, also testified at the administrative hearing.117 The ALJ
109

Id. at 413-14.
Id.
111
Id. at 418.
112
Id. at 419-20.
113
Id.
114
Id. at 421.
115
Id. at 423-24.
116
D.I. 12 at 575-76. In this Adult Functional Report, plaintiff’s testimony is
contradicted. Although she testified her friend cares for her children, she responded
“[n]o” to the question in the report “do you take care of anyone else such as a
wife/husband, children, grandchildren, parents, friend, other?” Id. at 571. Her testimony
is further contradicted by her positive answer to the question, “[d]o you prepare your
own meals,” wherein she claimed to prepare “complete meal[s],” but testified she does
not. D.I. 11 at 420; D.I. 12 at 572. At the hearing, she denied doing laundry because of
severe back pain; however in the report, in response to “[l]ist the household chores,
both indoors and outdoors, that you are able to do,” she circled “laundry.” D.I. 11 at
420; D.I. 12 at 572.
117
D.I. 11 at 428-39.
110

14

asked the VE to assume a hypothetical individual with plaintiff’s vocational
characteristics who was limited to light work118 that permitted her to consistently
alternate sitting and standing for 20-30 minutes or at will;119 allowed for mild limitations
in pushing/pulling with the left lower extremity;120 and required no exposure to heights,
dangerous machinery, odors, gases, fumes and dust, nor climbing stairs, ropes, and
ladders.121 The hypothetical individual was further limited to simple, routine, unskilled
tasks with an SVP of one to two, requiring only low concentration, stress, and memory,
restricted to one to two step tasks with little or no decision making or judgment, minimal
changes in the work setting, with no production or pace work, and only occasional
interaction with the public, co-workers, and supervisors.122 The VE testified the
hypothetical individual would be capable of performing various jobs in significant
numbers in the national economy.123
D.

The ALJ’s Decision

Based on the evidence and testimony, the ALJ determined in his October 19,
2011 opinion that plaintiff was not disabled, and not entitled to DIB and SSI benefits.124
118

Id. at 432 (“[A person with] those limitations would be able to do some
sedentary to light work activities. Can you give me jobs such a person could do in
significant numbers?”).
119
Id. at 431.
120
Id. at 432.
121
Id. at 430-32.
122
Id.
123
Id. at 432-33 (“At the light exertional level, a position as a hand bander . . .
national numbers, 162,300 . . . a position as a filler . . . national numbers, 134,600 . . .
[and] a position as a control worker . . . national numbers, 271,500 . . . . At the
sedentary exertional level, a position as a table worker . . . national numbers, 200,500 . .
. a position as a bench hand . . . national numbers, 188,600 . . . [and] a position as a
final assembler . . . national numbers, 170,500.”)
124
Id. at 18-29.
15

The ALJ’s findings are summarized as follows:
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 since
January 9, 2009, the alleged onset date (20 CFR 303.1571 et seq.,
and 416.971 et seq.).

3.

The claimant has the following sever impairments: depression,
post-traumatic stress disorder, degenerative disc disease, chronic
obstructive pulmonary disease and coronary artery disease (aortic
thoracoabdominal aneurysm) (20 CFR 404.1520(c) and
416.920(c)).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
and 416.926).

5.

The claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) except; she
can sit for 20-30 minutes, stand for 20-30 minutes or at will
consistently on an alternate basis, 8 hours a day, 5 days a week
subject to ordinary and customary breaks. Additionally, she can
perform simple routine unskilled jobs that are SVP 1-2 in nature
and only involve low concentration, stress and memory 1-2 step
tasks with little or no decision-making or changes in the work
setting or judgment, and no production pace work. She must avoid
heights, dangerous machinery, stair climbing, ropes, ladders,
odors, gases, fumes, and dust. She can only occasionally interact
with the public and co-workers and be essentially isolated except
for occasionally interacting with her supervisor. She is mildly
limited in pushing/pulling with her lower left extremity.

6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).

16

7.

8.

The claimant has a limited education and is able to communicate in
English (20 CFR 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 8241 and 20 CFR Part 404, Subpart P, Appendix 2).

10.

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
CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11.

III.

The claimant was born on October 15, 1963 and was 45 years old,
which is defined as younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).

The claimant has not been under a disability, as defined in the
Social Security Act, from January 9, 2009, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).

JURISDICTION
A district court’s jurisdiction to review an ALJ’s decision regarding disability

benefits is controlled by 42 U.S.C. § 405(g). The statute provides, “[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 review of such decision by a civil action.”125 The
Commissioner’s decision becomes final when the Appeals Council affirms an ALJ
opinion, denies review of an ALJ decision, or when a claimant fails to pursue available
administrative remedies.126 In the instant matter, the Commissioner’s decision became
125

42 U.S.C. § 405(g) (2002).
Aversa v. Sec’y of Health & Human Servs., 672 F. Supp. 775, 777 (D.N.J.
1987); see also 20 C.F.R. § 404.905 (2002).
126

17

final when the Appeals Council affirmed the ALJ’s denial of benefits.127 Thus, this court
has jurisdiction to review the ALJ’s decision.
IV.

PARTIES CONTENTIONS
A.

Plaintiff’s Contentions

Plaintiff urges remand based on the following reasons:128 (1) The ALJ failed to
follow the treating physician rule;129 (2) the ALJ failed to properly evaluate plaintiff’s
credibility;130 and (3) the ALJ relied on flawed vocational expert testimony.131
1.

Application of the Treating Physician Rule

Plaintiff contends the ALJ’s determination to give Dr. Dupree’s opinion “some
weight” was not supported by substantial evidence. Plaintiff asserts the ALJ should
have given controlling weight to his opinion,132 because his limitations were not
contradicted by the treatment record, but were based on appropriate clinical and
diagnostic evidence.133 Plaintiff points out that Dr. Dupree stated, “despite
improvement, [plaintiff] continued to exhibit evidence of sleep disturbance, mood
disturbance, recurrent panic attacks, suicidal ideation or attempts, perceptual
disturbances, decreased energy, generalized persistent anxiety, and hostility and
irritability based on diagnostic clinical interviews.”134
Plaintiff argues Dr. Dupree’s failure to specifically record concentration difficulties
127

D.I. 11 at 1-3.
D.I. 14.
129
Id. at 11-16.
130
Id. at 16-18.
131
Id. at 18-20.
132
Id. at 15.
133
Id. at 12-13.
134
Id. at 13.
128

18

and other limitations in his progress notes is not significant135 and claims “the ALJ erred
by assuming [plaintiff’s] gap in treatment was due to either a significant improvement or
unjustified non-compliance.”136 Instead, plaintiff contends this gap was most likely due to
psychiatric conditions.137
Plaintiff contends Dr. Dupree’s opinion, if not afforded controlling weight, should
be given great weight, pointing to the factors under 20 C.F.R. § § 404.1527 and
416.927.138 Namely, Dr. Dupree treated plaintiff over a long period, the treatment was
focused on her disabling mental impairments, the doctor appropriately supported her
findings, and is a board-certified psychiatrist.139 Lastly, plaintiff argues the ALJ, by not
referencing any medical opinions, impermissibly interpreted the medical data on his own
in creating the RFC determination.140
2.

Evaluation of Plaintiff’s Credibility

Plaintiff argues the ALJ improperly assessed her credibility.141 Plaintiff initially
contends, even though she can “carry out unspecified activities of daily living [this] does
not equate with the ability to work a competitive job eight hours a day, forty hours a
week.”142 She argues the ALJ failed to link her alleged non-compliance with the

135

Id. (citing Brownawell v. Astrue, 554 F.3d 352, 356 (3d Cir. 2008); Orn v.
Astrue, 495 F.3d 625, 634 (9th Cir. 2007); Leckenby v. Astrue, 487 F.3d 626, 633 n.7
(8th Cir. 2007)).
136
D.I. 14 at 13.
137
Id. (quoting Olmstead v. L.E. by Zimring, 527 U.S. 581, 610 (1999) (Kennedy,
J., concurring)).
138
D.I. 14 at 14.
139
Id. at 14-15.
140
Id. at 15-16.
141
Id. at 17.
142
Id.
19

physical and mental treatment to her disabilities, by failing to examine conditions
relevant to a finding of disability.143 Lastly, plaintiff points out her testimony regarding
her physical and mental symptoms and resulting limitations was consistent with the
record, and the finding of a lack of credibility was not linked to the record.144
3.

The Vocational Expert Testimony

Plaintiff argues the RFC the ALJ determined was unsupported by the record;
therefore, the ALJ erred when relying on the VE’s testimony in response to a
hypothetical individual with this RFC.145 Instead, plaintiff maintains a hypothetical
consistent with Dr. Dupree’s limitations should be applied, which would indicate she
could not perform any work.146 Plaintiff further contends the ALJ failed to accurately
describe her mental impairments in the question posted to the VE on which the ALJ
relied.147
B.

Defendant’s Contentions

Defendant maintains substantial evidence supports the ALJ’s determinations: (1)
Dr. Dupree’s opinion was entitled to some, but not controlling weight; (2) the ALJ
properly evaluated plaintiff’s credibility; and (3) the ALJ’s hypothetical question to the
VE was proper.148
Defendant contends Dr. Dupree’s treatment notes demonstrated plaintiff’s

143

Id. at 17-18.
Id.
145
Id. at 19.
146
Id.
147
Id.
148
D.I. 17 at 1-2.
144

20

depression improved.149 Over time, she became stable, motivated, brighter, and less
depressed.150 Defendant notes Dr. Szeto consistently reported normal psychiatric
examinations with an appropriate mode and affect, normal judgment, and no suicidal
ideation.151 Defendant, therefore, argues the ALJ reasonably adopted Dr. Dupree’s
opinion to the extent it was consistent with the record as a whole.152
Defendant points out “although plaintiff suggests that her non-compliance with
her treatment regimen was the result of her mental illness, this is not supported by the
record.”153 Rather, plaintiff has the burden of demonstrating the cause of her noncompliance through evidence, and not by a general statement.154 Defendant argues the
ALJ did not ignore the medical evidence in assessing plaintiff’s mental RFC, but
adopted many of Dr. Dupree’s findings.155
Defendant contends the ALJ’s finding that plaintiff’s subjective complaints were
not fully credible is supported by substantial evidence.156 Defendant points out the ALJ
found plaintiff’s medically determinable impairments could reasonably cause the alleged
symptoms, but her statements concerning the intensity, persistence, and limiting effects
of those symptoms were inconsistent with the objective medical evidence.157 Defendant
notes the ALJ, as the finder of fact, is entitled to great weight and deference when

149

Id. at 12-13.
Id.
151
Id. at 12-13.
152
Id.
153
Id. at 12.
154
Id.
155
Id. at 14.
156
Id. at 15.
157
Id.
150

21

determining credibility.158
Defendant maintains the ALJ’s hypothetical question to the VE accounted for all
credible limitations,159 and “the ALJ was not required to adopt the VE’s responses . . .
premised on limitations . . . not supported by the evidence.”160
V.

STANDARD OF REVIEW
A.

Summary Judgment

In determining the appropriateness of summary judgment, the court must “review
the record as a whole, ‘draw[ing] all reasonable inferences in favor of the nonmoving
party[,]’ but [refraining from] weighing the evidence or making credibility
determinations.”161 If there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law, summary judgment is appropriate.162
This standard does not change merely because there are cross-motions for summary
judgment.163 Cross-motions for summary judgment:
are no more than a claim by each side that it alone is entitled to summary
judgment, and the making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist.164
“The filing of cross-motions for summary judgment does not require the court to grant

158

Id. at 17-18.
Id. at 18.
160
Id. (quoting Craigie v. Bowen, 835 F.2d 56, 57-58 (3d Cir. 1987)).
161
Reeves v. Sanderson Plumbing, Prods., Inc., 530 U.S. 133, 150 (2000).
162
See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R.
CIV. P. 56(c)).
163
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
164
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
159

22

summary judgment for either party.”165
B.

ALJ’s Findings

Section 405(g) sets forth the standard of review for the ALJ’s decision.166 The
court may reverse the Commissioner’s final determination only if the ALJ did not apply
the proper legal standards, or the record did not provide substantial evidence in
support.167 Factual decisions are upheld if supported by substantial evidence.168
Substantial evidence means less than a preponderance, but more than a mere scintilla
of evidence.169 As the United States Supreme Court has found, 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.”170
In determining whether substantial evidence supports the Commissioner’s
findings, the court may not undertake a de novo review of the Commissioner’s decision
and may not re-weigh the evidence.171 The court’s review is limited to evidence
actually presented to the ALJ.172 The Third Circuit has explained that a “single piece of
evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to
resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence, particularly certain types of evidence (e.g., evidence

165

Krupa v. New Castle Cnty., 732 F. Supp. 497, 505 (D. Del. 1990).
See 42 U.S.C. § 405(g).
167
Id.
168
See 42 U.S.C. §§ 405(g), 1383(c)(3); see also Monsour Med. Ctr. v. Hecklem,
806 F.2d 1185, 1190 (3d Cir. 1986).
169
See Rutherford v. Barnhart, 399 F.3d 546, 522 (3d Cir. 2005).
170
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
171
See Monsour, 806 F.2d at 1190.
172
See Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001).
166

23

offered by treating physicians) or if it really constitutes not evidence but mere
conclusion.”173 The inquiry is not whether the court would have made the same
determination, but rather whether the Commissioner’s conclusion was reasonable.174
Even if the court would have decided the case differently, it must defer to the ALJ, and
affirm so long as that decision is supported by substantial evidence.175
When review of an administrative determination is sought, the agency’s decision
cannot be affirmed on a ground other than that actually relied upon by the agency in
making its decision.176 In Securities & Exchange Comm’n v. Chenery Corp.,177 the
Supreme Court found that a “reviewing court, in dealing with a determination or
judgment which an administrative agency alone is authorized to make, must judge the
propriety of such action solely by the grounds invoked by the agency. If those grounds
are inadequate or improper, the court is powerless to affirm the administrative action by
substituting what it considers to be a more adequate or proper basis.”178 The Third
Circuit has recognized the applicability of this finding in the Social Security disability
context.179 This court’s review is limited to the four corners of the ALJ’s decision.180
VI.

DISCUSSION
A.

Disability Determination

Title II of the Social Security Act, 42 U.S.C. § 423(a)(I)(D), “provides for the
173

Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
See Brown v. Brown, 845 F.2d 1211, 1213 (3d Cir. 1988).
175
See Monsour, 806 F.2d at 1190-91.
176
See Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.D. Pa. 2011).
177
Sec. & Exch. Comm’n v. Chenery Corp., 322 U.S. 194, 196 (1947).
178
Id.
179
Fargnoli v. Massanari, 247 F.3d 34, 44, n.7 (3d Cir. 2001).
180
Cefalu v. Barnhart, 387 F. Supp. 2d 486, 491 (W.D. Pa. 2005).
174

24

payment of insurance benefits to persons who have contributed to the program and who
suffer from a physical or mental disability.”181 In order to qualify for DIB, the claimant
must establish she was disabled prior to the date she was last insured.182 A “disability”
is defined as the inability to do any substantial gainful activity because of any medically
determinable physical or mental impairment, which either could result in death, or has
lasted or can be expected to last for a continuous period of at least 12 months.183 To be
disabled, the severity of the impairment must prevent return to previous work, and
based on age, education, and work experience, restrict “any other kind of substantial
gainful work which exists in the national economy.”184
In determining whether a person is disabled, the Commissioner is required to
perform a five-step sequential analysis.185 If a finding of disability can be made at any
point in the sequential analysis, the Commissioner will not review the claim further.186 At
step one, the Commissioner must determine whether the claimant is engaged in any
substantial gainful activity. If the claimant is so engaged, a finding of non-disabled is
required.187 If the claimant is not, then step two requires the Commissioner to determine
whether the claimant is suffering from severe impairment or a combination of
impairments that is severe. If the claimant is not suffering from either, a finding of nondisabled is required.188
181

Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
20 C.F.R. § 404.131.
183
42 U.S.C. §§ 423(d)(I)(A), 1382(c)(a)(3).
184
42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
185
20 C.F.R. § 404.1520(a)(4).
186
20 C.F.R. § 404.1520(a)(4).
187
20 C.F.R. § 404.1520(a)(4)(i).
188
20 C.F.R. § 404.1520(a)(4)(ii).
182

25

If the claimant’s impairments are severe, the Commissioner, at step three,
compares the claimant’s impairments to a list of impairments (the “listing”) that are
presumed severe enough to preclude any gainful work.189 When a claimant’s
impairment or its equivalent matches an impairment in the listing, the claimant is
presumed disabled.190 If a claimant’s impairment, either singularly or in combination,
fails to meet or medically equal any listing, the analysis continues to steps four and
five.191 At step four, the Commissioner determines whether the claimant retains the
RFC to perform her past relevant work.192 A claimant’s RFC is “that which an individual
is still able to do despite the limitations caused by [her] impairment(s).”193 “The claimant
bears the burden of demonstrating an inability to return to [her] past relevant work.”194
If the claimant is unable to return to her past relevant work, step five requires the
Commissioner to determine whether the claimant’s impairments preclude her from
adjusting to any other available work.195 At this last step, the burden rests with the
Commissioner to show the claimant is capable of performing other available work
existing in significant national numbers and consistent with the claimant’s medical
impairments, age, education, past work experience and RFC before denying disability
benefits.196 In making this determination, the ALJ must analyze the cumulative effect of
189

20 C.F.R. § 404.1520(a)(4)(iii); see also Plummer v. Apfel, 186 F.3d 422, 42728 (3d Cir. 1999).
190
20 C.F.R. § 404.1520(a)(4)(iii).
191
20 C.F.R. § 404.1520(e).
192
20 C.F.R. § 404.1520(a)(4)(iv); see also Plummer, 186 F.3d at 428.
193
Fargnoli, 247 F.3d at 40.
194
Plummer, 186 F.3d at 428.
195
20 C.F.R. § 404.1520(g) (mandating finding of non-disability when claimant
can adjust to other work); see also Plummer, 186 F.3d at 428.
196
Id.
26

all the claimant’s impairments, and often seeks the assistance of a VE.197
1.

Dr. Dupree’s Opinion

When determining plaintiff’s RFC, the ALJ accorded some weight to Dr. Dupree’s
opinion.198 The ALJ disagreed with the opinion concerning plaintiff’s limitations “in the
areas of social interact[ion] or . . . her concentration, persistence and pace.”199
The Third Circuit has held, “[t]reating physicians’ reports should be accorded
great weight, especially ‘when their opinions reflect expert judgment based on a
continuing observation of the patient’s condition over a prolonged period of time.’”200 A
court must give greater weight to the findings of a treating physician than to those of a
doctor who examined the claimant only once or not at all.201 When a physician has
treated a patient over an extended period of time, his opinion is usually afforded great
weight.202 A treating physician’s opinion is given controlling weight if “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and . . . not
inconsistent with the other substantial evidence [in the] case record.203
A final disability determination must not conflict with an opinion deserving of
controlling weight.204 An ALJ may reject a treating physician’s opinion “only on the basis
of contradictory medical evidence.”205 That opinion may not be rejected for no reason or
197

See id.
D.I. 11 at 27.
199
Id.
200
Plummer, 186 F.3d at 429 (quoting Rocco v. Heckler, 826 F.2d 1348, 1350
(3d Cir. 1987)).
201
Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993).
202
See Dass v. Barnhart, 386 F. Supp. 2d 568, 576 (D. Del. 2005).
203
Fargnoli, 247 F.3d at 43.
204
See Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000).
205
Id.
198

27

the wrong reason.206 When there is contradictory medical evidence, the ALJ must
carefully evaluate how much weight to give the treating physician’s opinion, and provide
an explanation as to why the opinion is not given controlling weight.207
“A decision not to give a treating physician’s opinion controlling weight must not
automatically become a decision to give a treating physician’s opinion no weight
whatsoever.”208 Instead, “treating source medical opinions are still entitled to deference
and must be weighed using all of the factors provided in 20 CFR [§§] 404.1527 and
416.927.”209 These factors include the treating relationship, the length of treatment
relationship, the frequency of examination, the nature and extent of the treatment
relationship, supportability of the opinion afforded by the medical evidence, consistency
of the opinion with the record as a whole, and specialization of the treating physician.210
In providing some weight to portions of Dr. Dupree’s opinion, the ALJ relied on
the doctor’s own treatment notes, which recorded plaintiff’s improvement over time and
oriented in all spheres with an alert level of consciousness.211 Dr. Dupree’s treatment
notes indicated plaintiff was “stable, motivated, brighter and less depressed.”212 The
ALJ also pointed out Dr. Dupree’s treatment notes noted plaintiff was cooperative,213
and never lacked concentration.214 The ALJ found such lack of documentation, “makes

206

Id. at 317.
Gonzalez v. Astrue, 537 F. Supp. 2d 644, 660 (D. Del. 2008).
208
Id.
209
Id.
210
Id.
211
D.I. 11 at 27.
212
Id.
213
Id.
214
Id.
207

28

the marked finding in this area of function quite conclusory.”215 Lastly, the ALJ noted a
gap in treatment between March 24, 2011, and August 3, 2011, which suggested either
plaintiff improved or was non-complaint with the prescribed treatment.216 The ALJ’s
findings are based on the medical record as a whole, as evidenced by his statement,
“treatment notes show[ing] that with medication compliance the [plaintiff’s] symptoms
were controlled [and plaintiff] is not refractory to treatment.”217 The ALJ also noted that
Dr. Dupree’s opinion was not well supported by medically acceptable clinical and
laboratory techniques.218
As a result, based on the treatment relationship, a lack of support from relevant
medical evidence, inconsistencies with the medical record as a whole, and a lack of
support from medically acceptable clinical and laboratory techniques, the ALJ’s
affording of some weight to Dr. Dupree’s opinion was appropriate and supported by
substantial evidence.
2.

Plaintiff’s Credibility

Under the two prong test for evaluating credibility, the ALJ must first “consider
whether there is an underlying medically determinable physical or mental impairment(s)
. . . that could reasonably be expected to produce the individual’s pain or other
symptoms.”219 Second, the ALJ “must evaluate the intensity, persistence, and limiting
effects of the individual’s symptoms to determine the extent to which the symptoms limit

215

Id.
Id.
217
Id.
218
D.I. 11 at 27 (citing D.I. 12 at 818).
219
SSR 96-7p, 1996 WL 374186.
216

29

the individual’s ability to do basic work activities.”220 The ALJ must then “make a finding
on the credibility of the individual’s statements based on a consideration of the entire
record.”221
The seven factors assessed in determining credibility are:
(1) the individual’s daily activities; (2) the location, duration, frequency,
and intensity of the individual’s pain or other symptoms; (3) factors that
precipitate and aggravate the symptoms; (4) the type, dosage,
effectiveness, and side effects of any medication the individual takes or
has taken to alleviate pain or other symptoms; (5) treatment, other than
medication, the individual receives or has received for relief of pain or
other symptoms; (6) any measures other than treatment the individual
uses or has used to relieve pain or other symptoms; (7) any other factors
concerning the individual’s functional limitations and restrictions due to
pain or other symptoms.222
The ALJ made a determination that plaintiff was limited by the combined effects
of her mental impairments, but based on the medical record as a whole, the ALJ found
she was not impaired to the degree alleged.223 The ALJ noted, “Dr. Nguyen
recommended [plaintiff] undergo a thoracoabdominal dissecting aneursym
procedure.”224 The ALJ, however, stated plaintiff had not followed this recommendation,
which suggested the allegations of pain were not as severe as plaintiff testified.225 The
ALJ further noted Dr. Szeto’s opinion that plaintiff was capable of carrying out her dayto-day activities without much difficulty, and he placed no restrictions or limitations on
her.226 This further suggested plaintiff’s alleged impairments were not a sever as she
220

Id.
Id.
222
Id.
223
D.I. 11 at 26.
224
Id.
225
Id.
226
Id.
221

30

represented.
The ALJ also found plaintiff failed to comply with other recommendations by her
doctors, by stating, “[plaintiff] is not complaint with other advice given, such as, to
discontinue smoking and continued dieting.”227 The ALJ continued “[plaintiff] was also
repeatedly advised to continue with psychiatric therapy and comply with her prescribed
medications; however, according to the record she has not consistently received
treatment.”228 There is further record evidence of plaintiff’s own statements which
contradict her testimony.229
As a result, based on a lack of support and inconsistencies from relevant medical
evidence, and the record as a whole, the ALJ’s finding of plaintiff’s lack of credibility as
to the degree of impairments was appropriate and supported by substantial evidence.
C.

The RFC

Plaintiff contends the ALJ, by not referencing any medical opinions,
impermissibly interpreted the medical data on his own in creating the RFC.230 The ALJ,
however, did reference medical opinions when creating the RFC. As indicated supra,
the ALJ referenced Dr. Dupree’s medical data and determined to afford some weight to
his opinion.231 The ALJ further considered Dr. Yerneni’s treating notes and opinion,
which indicated he advised plaintiff to seek pain management treatment and discontinue
smoking, however she did not follow this advise.232 The ALJ also noted plaintiff
227

Id.
Id.
229
See supra note 116.
230
D.I. 14 at 15-16.
231
See supra VI.A.1.
232
D.I. 11 at 24.
228

31

underwent an iliac celiac artery dissection in 2006, she was diagnosed with
spondylosis/osteoarthritis of the lumbar spine, and underwent an MRI of the brain in
2009, and a CT scan of the brain in 2010.233
The ALJ further referenced Dr. Kelly’s treatment record and opinion,
noting he found no evidence of cardiac injury and suggested the use of Betablockers.234 The ALJ noted Dr. Szeto’s diagnostic opinion of thoracic aneurysm
and unstable dissection within plaintiff’s chest.235 The ALJ cited Dr. Szeto’s
opinion that plaintiff’s range of motion and strength of her musculoskeletal
system were within normal limits with no tenderness, swelling, or deformity, and
she had normal giat.236 The ALJ considered Dr. Szeto’s opinion that plaintiff’s
health status was fair, lungs were clear to auscultation, respirations were nonlabored, breath sounds were equal/symmetrical to the chest wall, and she was
alert, oriented, and exhibited normal sensory and motor function without focal
defects.237
The ALJ also considered Dr. Rao’s opinion of dissection of the thoracic
aortic which extended from the ascending thoracic aorta to the abdominal aortic
bifurcations, without evidence of extravasation of contrast of the abdominal or
theoracic aorta.238 The ALJ also noted, Dr. Rao’ diagnostic opinion that plaintiff
had no significant carotid artery disease or peripheral arterial disease and both
233

Id.
Id.
235
Id. at 24-25.
236
Id. at 25.
237
Id.
238
Id.
234

32

carotid arteries were patent with no significant carotid artery or peripheral arterial
disease.239
The ALJ noted Dr. Dupree’s opinion was given some weight and Dr.
Szeto’s opinion was given little weight.240 The ALJ further gave some weight to
Dr. Rao’s opinion.241 By evaluating Dr. Dupree, Szeto, and Rao’s opinions, the
ALJ did reference medical opinions in creating the RFC. As a result, the RFC is
appropriate and supported by substantial evidence.
D.

VE Testimony

VE testimony in response to a hypothetical question that fairly sets forth every
credible limitation established by the physical evidence is substantial evidence.242
“While the ALJ may proffer a variety of assumptions to the expert, the VE’s testimony
concerning a claimant’s ability to perform alternative employment may only be
considered for purposes of determining disability if the question accurately portrays the
claimant’s individual physical and mental impairments.”243 “If, however, an ALJ poses a

239

Id.
D.I. 11 at 27. The ALJ assigned little weight to Dr. Szeto’s opinion, because
he found plaintiff was totally disabled, which the ALJ noted was inconsistent with her
own treatment notes. Id. Namely, Dr. Szeto’s notes indicate plaintiff denied any
problems with her respiratory, musculoskeletal, or neurological system, and
examinations always found normal range of motion and strength without pain regarding
her musculoskeletal system. Id.
241
D.I. 11 at 27. Dr. Rao’s opinion was given some weight, because the ALJ
found the medical record as a whole showed, with medication compliance, plaintiff’s
symptoms are basically controlled. Id. The ALJ found Dr. Rao’s opinion indicated
plaintiff’s subjective complaints were mainly considered over his clinical notes. Id. The
ALJ also noted his findings were not well supported by medically acceptable clinical and
laboratory techniques. Id.
242
See Plummer, 186 F.3d at 431.
243
Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984).
240

33

hypothetical question to a [VE] that fails to reflect ‘all of a claimant’s impairments that
are supported by the record, . . . it cannot be considered substantial evidence.’”244 An
ALJ is not required to credit VE testimony elicited in response to a hypothetical question
that includes limitations the ALJ finds not to be credible.245
In the present matter, the ALJ, based on substantial record evidence, found
plaintiff’s limitations to be: 1) sit or stand for 20-30 minutes or at will consistently; 2)
work an 8 hour work day subject to ordinary and customary breaks; 3) perform simple
routine and unskilled jobs, involving low concentration, stress and memory 1-2 step
tasks with little or no decision-making or changes in work setting or judgment; 4) avoid
heights, dangerous machinery, stair climbing, ropes, ladders, odors, and gases, fumes
and dust; 5) only occasionally interact with the public and co-workers; 6) essentially be
isolated except for occasional interactions with her supervisor; and 7) mildly limited in
pushing and pulling with her lower left extremity.246 The question posed by the ALJ to
the VE included all of these limitations.
The question posed to the VE included limitations one and two by the statement,
“can stand for 20 or 30 minutes, sit for 20 or 30 minutes, or at will consistently, or an
alternate basis eights hours a day, give days a week, subject to her regular and usual
customary breaks.”247 Plaintiff’s third limitation was incorporated as evidenced by the

244

Rutherford, 399 F.3d at 553 (quoting Chrupcala v. Heckler, 829 F.2d 1269,
1276 (3d Cir. 1987)).
245
Craigie v. Bowen, 835 F.2d 56, 57-58 (3d Cir. 1987) (“Inasmuch as the [ALJ]
did not have to accept [plaintiff]’s testimony, he did not have to credit . . . expert
testimony that was predicated upon it.”).
246
D.I. 11 at 23.
247
Id. at 431.
34

ALJ providing “[f]ailure to maintain her concentration, persistence, and pace due to her
pain, and depression, and/or posttraumatic stress disorder, and as a result we need to
add jobs that are simple, routine, and unskilled jobs . . . SVP 1 or 2 in nature. She’s able
to attend tasks, meet schedules, and by low-stress, low-concentration, and lowmemory, I mean that are one or two-step tasks. No production rate jobs, jobs that have
little or no decision-making in them, or changes in the work setting.”248 The fourth
limitation was covered by the statement, “jobs that would allow her to avoid heights and
hazardous machinery . . . no prolonged climbing, or balancing, and stooping. And by
that I mean jobs that are – would require only once or twice an hour to do that, in which
stair climbing, ropes, and ladders.”249 The ALJ’s question further included plaintiff’s fifth
and sixth limitations as evidenced by, “jobs that would have little to no interaction with
the public except on an occasional basis. Interaction with the workers, same; jobs that
can be given or be around things rather than people, and jobs that would be essentially
isolated with occasional supervision.”250 Plaintiff’s last limitation was considered by the
ALJ’s comment, “mildly limited as to push and pull in that left lower extremity.”251
As a result, the ALJ’s findings are supported by substantial record evidence and
all limitations in the RFC finding were included in the hypothetical question posed to the
VE. Therefore, reliance on the VE testimony in response to the hypothetical individual
was appropriate and supported by substantial evidence.
VII.

ORDER AND RECOMMENDED DISPOSITION
248

Id. at 430-31.
Id. at 431.
250
Id.
251
Id. at 431-32.
249

35

For the reasons contained herein, it is recommended that:
(1) Defendant’s cross-motion for summary judgment (D.I. 13) be GRANTED
(2) Plaintiff’s motion for summary judgement (D.I. 16) be DENIED.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B),
FED. R. CIV. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific
written objections within ten (10) days after being served with a copy of this Report and
Recommendation.
The parties are directed to the Court’s Standing Order in Non-Pro Se matters for
Objections Filed under FED. R. CIV. 72, dated October 9, 2013, a copy of which is
available on the Court’s website, www.ded.uscourts.gov.
Date: May 20, 2014

/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

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