Gibbs v. Colvin

Filing 16

REPORT AND RECOMMENDATIONS re 10 MOTION for Summary Judgment filed by Desiare Gibbs. 12 Cross MOTION for Summary Judgment filed by Carolyn W. Colvin. Please note that when filing Objections pursuant to Federal Rule of Civil Pro cedure 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 9/5/2014. Signed by Judge Mary Pat Thynge on 8/19/14. (cak)

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

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Civ. A. No. 14-134-RGA/MPT

REPORT AND RECOMMENDATION
I.

INTRODUCTION
On May 16, 2014, plaintiff Desarie Gibbs (“plaintiff”) filed this action against

Carolyn W. Colvin, Acting Commissioner of Social Security, (“defendant”) seeking
judicial review of a final decision denying her application for disability insurance benefits
(“DIB”) under Title II of the Social Security Act.1 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.

JURISDICTION
A district court has jurisdiction to review an administrative law judge’s (“ALJ”)

decision in a Title II DIB case once it becomes the final decision of the Commissioner.2

1

See 42 U.S.C. §§ 401-433.
42 U.S.C. § 405(g) (“Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to which he was a party . . . may
obtain a review of such decision by a civil action . . . brought in the district court of the
United States for the judicial district in which the plaintiff resides.”).
2

A decision of the Commissioner becomes final when the Appeals Council affirms or
denies review of an ALJ decision.3 Here, the ALJ’s decision is the final decision of the
Commissioner because the Appeals Council denied plaintiff’s request for appeal.4
Therefore, this court has jurisdiction to review the ALJ’s decision.
III.

PROCEDURAL BACKGROUND
On May 5, 2010, plaintiff applied for DIB, asserting a disability onset date of April

15, 2010, and citing sickle cell anemia, beta thalassemia, hypertension, carpal tunnel
syndrome, bursitis, and a torn rotator cuff as alleged causes of her disability.5 The claim
was initially denied on November 9, 2010, and upon reconsideration on April 21, 2011.6
Plaintiff subsequently filed a written request for an administrative hearing before an ALJ
on June 20, 2011.7 On September 25, 2012, ALJ Melvin D. Benitz held a hearing to
determine whether plaintiff was disabled.8 Plaintiff was represented by counsel and
testified, and an impartial vocational expert (“VE”), Christina Beatty-Cody, also testified.9
On October 19, 2012, based on the hearing testimony and the record, the ALJ found
plaintiff not disabled within the meaning of the Act10 and, therefore, not eligible for DIB.11
The Appeals Council denied plaintiff’s request for review.12 Thereafter, plaintiff brought

3

See 20 C.F.R. § 416.1455; see also 20 C.F.R. § 404.905.
D.I. 8 at 1.
5
Id. at 128, 137.
6
Id. at 75, 81.
7
Id. at 86-88.
8
Id. at 38-71.
9
Id.
10
See 20 C.F.R. § 404.1520(a) and (g).
11
D.I. 8 at 20-32.
12
Id. at 1.
4

2

the present action seeking judicial review of the Commissioner’s final decision.13
IV.

FACTUAL BACKGROUND
Plaintiff was 41 years old at the alleged onset date of disability in 2010, 44 years

old at the time of the hearing in 2012, and is considered a “younger person” at all times
relevant to her DIB application.14 She completed one year of college, and holds a
certificate in medical billing.15 Her past relevant work includes customer service, data
entry clerk, and insurance clerk.16 Plaintiff stopped working on April 14, 2010, after she
was terminated by State Farm Insurance for absences due to her medical problems.17
In finding plaintiff not disabled, the ALJ also concluded she could no longer perform her
previous jobs.18
At the time of the hearing, plaintiff lived with her eleven year old daughter, who
has cancer and sickle cell disease.19 Plaintiff receives assistance from her mother,
cousin, and sister with household chores, grocery shopping, childcare, and bathing.20
Plaintiff reported she experiences sickle cell crises about once every other week that
last from three to five days.21 Plaintiff also notes difficulty sitting or standing for
prolonged periods, lifting heavy objects, reaching, and concentrating.22 Due to side
13

D.I. 1 at 1-3.
D.I. 8 at 73; 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.”).
15
D.I. 8 at 42-43, 138.
16
Id. at 30.
17
Id. at 54-55.
18
Id. at 30.
19
Id. at 43, 61.
20
Id. at 43-46.
21
Id. at 59-60.
22
Id. at 44-53.
14

3

effects from her medications, plaintiff claims she is unable to work because of lack of
focus and concentration, and an inability “to give 100 percent.”23
A.

1.
Medical Evidence

Prior to the alleged onset date, plaintiff was diagnosed with sickle cell anemia
and beta thalassemia in 2001.24 She was diagnosed with carpal tunnel syndrome in
both hands in 2008.25 On February 10, 2009, Dr. Andrew J. Gelman, D.O., performed
surgery to remove a benign tissue mass from her right shoulder.26 Plaintiff returned to
work within two weeks.27 On February 13, 2009, plaintiff, suffering from leg pain, began
seeing a pain management specialist, Dr. John J. Goodill, M.D.28 Dr. Goodill prescribed
OxyContin, Percocet, Dilaudid, and Promethazine.29
On August 13, 2009, plaintiff went to the emergency room at Christiana Care
Health Services for a sickle cell pain crisis.30 Her last hospital admission for a pain
crisis was eight years prior.31 She was discharged the next day with diagnoses of sickle
cell crisis, thrombocytopenia, left hip pain, sclerosis in both humeral heads consistent
with avascular necrosis, hypertension, obesity, a history of ventricular ectopy, and
microcytic anemia.32 Upon discharge, she was instructed to continue with her present

23

Id. at 56.
Id. at 203.
25
Id. at 472-73.
26
Id. at 173-75.
27
Id.
28
Id. at 264.
29
Id.
30
Id. at 176.
31
Id.
32
Id. at 201.
24

4

medications, including OxyContin, Percocet, Dilaudid, and Exforge.33
In August 2009, plaintiff started taking Hydroxyurea for severe bone pain, as
prescribed by Dr. Philip M. Blatt, M.D., a hematologist.34 On April 13, 2010, Dr. Blatt
noted no significant improvement in her pain, or increase in hemoglobin F level, since
starting Hydroxyurea.35 During an April 23 visit with Dr. Goodill, plaintiff reported leg
pain and fatigue, and two episodes of sickling pain since the previous visit six weeks
before.36 On July 12, 2010, plaintiff informed Dr. Goodill because of the loss of health
insurance, she could not afford to refill her OxyContin prescription.37 Dr. Goodill
suggested that she may need to switch from OxyContin to Duragesic if she qualified for
Medicaid.38 During the interim, she continued with Percocet as needed.39
On September 11, 2010, plaintiff was again admitted to the emergency room at
Christiana Care Health Services for a sickle cell crisis.40 Her pain was managed with
intravenous Dilaudid.41 She was advised to return on an outpatient basis for treatment
with Hydroxyurea.42 She was also diagnosed with chronic pain syndrome.43 On
September 13, during an appointment with Dr. Goodill, plaintiff rated her pain level at “7
[out of] 10.”44
33

Id.
Id. at 234.
35
Id.
36
Id. at 245, 249.
37
Id. at 311.
38
Id.
39
Id.
40
Id. at 210.
41
Id.
42
Id.
43
Id. at 213.
44
Id. at 308.
34

5

On November 8, 2010, Dr. Anne Aldridge, M.D., a state agency physician,
reviewed plaintiff’s medical records and completed a physical Residual Functional
Capacity (“RFC”) assessment.45 Dr. Aldridge determined plaintiff was able to perform
light work with no climbing of ladders, ropes or scaffolds; occasional climbing of stairs
and ramps; occasional balancing, stooping, kneeling, crouching, and crawling;
occasional overhead reaching with her right upper extremity; and frequent (but not
continuous) bilateral handing.46 Her environmental limitations included avoiding
concentrated exposure to temperature extremes, vibration, respiratory irritants, and
hazards.47 Dr. Aldridge noted plaintiff’s medical records confirmed a sickle cell related
hospitalization approximately once per year, with symptoms responding well to
medication.48 Her carpal tunnel syndrome was only symptomatic with repetitive use of
the hands, and her hypertension was controlled.49 Plaintiff’s chronic impingement
syndrome “responded only partially to conservative treatment.”50 Dr. Aldridge
concluded plaintiff was able to occasionally lift twenty pounds with frequent lifting of up
to ten pounds; stand or walk for at least two hours and sit for at least six hours per
workday; and push and pull on an unlimited basis.51

45

Id. at 317-22.
Id. at 318-19.
47
Id. at 320.
48
Id. at 322.
49
Id.
50
Id. Plaintiff had declined surgery for this condition.
51
Id. at 318. After the submission of new evidence, Dr. Vinod Kataria of
Delaware Disability Determination Services affirmed Dr. Aldridge’s findings. Id. at 397.
The findings were again affirmed by Lakisha Lett, a disability processing specialist, at
the SSA’s Southeastern Processing Center Operations in Birmingham, Alabama on
February 23, 2012. Id. at 403.
46

6

A November 8, 2010 Social Security “report of contact” noted plaintiff reported
her carpal tunnel symptoms increased during work and continuous typing.52 On
December 21, 2010, Dr. Michael W. Lankiewicz, M.D.,53 a hematologist, recommended
upward titration of Hydroxyurea to test whether it would improve her sickle cell
disease.54 On December 27, plaintiff visited Dr. Gregory D. Adams, M.D., her primary
care doctor, for complaints of neck and bilateral shoulder pain.55 Dr. Adams ordered xrays, which were taken on January 5, 2011, and showed mild degenerative changes of
her shoulder joints, and irregular bilateral sclerosis of the humeral heads.56 On March
16, 2011, Dr. Lankiewicz recommended anti-inflammatory medication after plaintiff
reported a pain crisis in her knees.57 On June 15, 2011, Dr. Lankiewicz noted plaintiff
“frequently aborts the Hydroxyurea trial prior to a significant titration.”58 After Dr.
Lankiewicz instructed plaintiff on the purpose of continued use of Hydroxyurea to raise
fetal hemoglobin levels, the medication was restarted for a full three month trial.59
Plaintiff saw Dr. Goodill on August 22, 2011.60 He noted her chronic pain
syndrome resulted in frequent crises every other week lasting three to five days, with
plaintiff recently taking twenty to thirty Oxycontin pills to manage pain.61 On September

52

Id. at 146.
Dr. Lankiewicz replaced Dr. Blatt at the same practice. Id. at 145.
54
Id. at 367.
55
Id. at 346.
56
Id. at 363.
57
Id. at 366.
58
Id. at 421. Plaintiff claimed she did not understand the process and thought
the medication should provide some immediate relief. Id.
59
Id.
60
Id. at 571.
61
Id.
53

7

14, 2011, plaintiff saw Dr. Lankiewicz with complaints of persistent right groin pain,
radiating into the hip, difficulty sleeping and tiredness.62 The doctor ordered an MRI of
the right hip.63 Dr. Lankiewicz noted plaintiff once again discontinued Hydroxyurea on
her own, “convinced that it was no help to her.”64 As a result, the doctor discontinued
the Hydroxyurea trial.65
The October 20, 2011 MRI revealed avascular necrosis in the pelvic area, with
the chronic bone infarcts more pronounced on the left, mild arthritic changes of the hip
joints and mild insertional tendinosis of the right gluteus medius.66 After discussing the
MRI findings with Dr. Lankiewicz on October 24, 2011, plaintiff expressed no interest in
a referral to an orthopedic surgeon for her hip avascular necrosis.67 However, she
mentioned some interest in surgery for carpal tunnel syndrome.68 The findings of a
sleep study performed by Dr. Goodill which showed moderate sleep apnea were also
discussed.69 Plaintiff reiterated she awakens with significant pain on a daily basis.70 On
October 28, 2011, Dr. Goodill provided a note recommending that plaintiff refrain from
working for a period of one year, due to disabling pain from sickle cell disease and
avascular necrosis of both hips.71 On November 16, 2011, Dr. Gelman told plaintiff to
use a crutch or cane as needed, lose weight, and advise to when she wanted to
62

Id. at 420.
Id.
64
Id.
65
Id.
66
Id. at 417.
67
Id. at 419.
68
Id.
69
Id.
70
Id.
71
Id. at 431.
63

8

proceed with carpal tunnel surgery.72 During a routine visit with Dr. Lankiewicz on
February 22, 2012, plaintiff described occasional vaso-occlusive crises which she
“manage[d] at home,” and low thoracic and lumbar back pain.73 Dr. Lankiewicz ordered
an MRI of the thoracic and lumbar spine to determine whether there were any new
structural lesions.74 The MRI of the lumbar spine, completed on March 23, 2012,
showed small disc protrusions and facet hypertrophy contributing to mild bilateral
foraminal stenosis.75
On March 20, 2012, Dr. Lankiewicz completed a “Multiple Impairment
Questionnaire” regarding plaintiff’s treatment history and status.76 Dr. Lankiewicz listed
plaintiff’s pain as a five, and her fatigue as a seven on a zero-to-ten scale.77 He
concluded plaintiff could sit for one hour, and stand or walk for zero to one hours in an
eight-hour workday, with ambulation every half hour for ten to fifteen minutes.78 Dr.
Lankiewicz found significant limitation in reaching, handling, fingering, grasping,
twisting, pushing, pulling, kneeling, bending, stooping, and lifting or carrying even light
items, due to severe pain.79 The doctor determined plaintiff’s conditions, including
constant pain, fatigue, and other symptoms, interfered with her ability to work a full-time
competitive job on a sustained basis, and were ongoing (defined as lasting at least

72

Id. at 418, 484.
Id. at 418.
74
Id.
75
Id. at 556.
76
Id. at 432.
77
Id. at 434.
78
Id. at 434-35.
79
Id. at 435-36, 438.
73

9

twelve months).80 He found no evidence of malingering.81 Dr. Lankiewicz noted plaintiff
would need thirty minute breaks three to four times during an eight-hour work day, with
at least four absences per month.82
On April 11, 2012, Dr. Goodill completed the same questionnaire on plaintiff’s
behalf, noting “her condition has slowly worsened over time.”83 On a zero-to-ten scale,
her pain was measured at eight, and her fatigue at four.84 Dr. Goodill noted plaintiff
could stand or walk from zero to one hours, and sit for up to two hours per eight-hour
workday.85 He recommended plaintiff not sit, stand, or walk continuously, but to
ambulate for fifteen minutes every two hours.86 The doctor estimated plaintiff could lift
and carry zero to ten pounds occasionally, but never lift or carry beyond ten pounds.87
He opined her symptoms would likely increase in a competitive environment, and
concluded she could not work full-time in a competitive job requiring sustained activity,
and would require at least four absences per month due to her frequent and ongoing
pain.88 He found no malingering.89
In early June 2012, plaintiff went to the emergency room for bilateral leg pain,
and was discharged after a short stay; she continued to manage her pain at home.90

80

Id. at 436-37.
Id. at 437.
82
Id.
83
Id. at 446.
84
Id. at 442.
85
Id.
86
Id. at 442-43.
87
Id. at 443.
88
Id. at 444-46.
89
Id. at 445.
90
Id. at 527.
81

10

On June 25, 2012, plaintiff saw Dr. Lankiewicz, who noted her back pain waxed and
waned in intensity, and the MRI failed to identify “any major structural pathology
accounting for her pain.”91 Dr. Lankiewicz described plaintiff as reluctant to undergo any
weight loss or fitness regimen to address poor strength issues and “significant
obesity.”92 Dr. Goodill also discussed weight loss and exercise with plaintiff on June 27,
2012, and continued her pain medication regimen of OxyContin, Endocet, and
Ibuprofen.93 He noted her obstructive sleep apnea was stable with the use of an
automatic continuous positive airway pressure (CPAP) machine.94
B.

The Administrative Law Hearing
1.

Testimony of Plaintiff

At the hearing on September 25, 2012, plaintiff testified she lives with her eleven
year old daughter, who suffers with cancer and sickle cell disease.95 Plaintiff worked
only five days per month in her previous job, which led to her termination.96 She
testified her height is five feet, four inches, and her weight is 260 pounds, and reported
a weight gain of twenty-five to thirty pounds since her termination due to inactivity.97
She drives frequently, but only for short distances primarily because of hip cramping.98
Plaintiff’s mother does the grocery shopping and helps with the dishes, sweeping, and

91

Id.
Id. Plaintiff was 5' 4.5" tall and weighed 260 pounds at the time of this
examination. Id.
93
Id. at 568-69.
94
Id.
95
Id. at 43, 61.
96
Id. at 54-55.
97
Id. at 43.
98
Id. at 43-44.
92

11

putting groceries away throughout the month.99 A cousin assists with grass cutting,
taking out the trash, mopping, and sweeping every three weeks.100 Plaintiff stated her
sister assists in getting her daughter ready for school when plaintiff suffers a pain
crisis.101
Because of sleep apnea, plaintiff experiences difficulty with sleeping and
resulting tiredness.102 She can stand for approximately ten minutes, walk about one
block and sit for twenty minutes before experiencing pain.103 Plaintiff testified she
cannot lift anything heavy, bend, stoop, or sweep.104 She has tingling in her hands,
which she attributes to carpal tunnel syndrome.105
Plaintiff testified that her focus, concentration and short-term memory are
impaired by pain medication, which has a “clouding” effect on her.106 She is unable to
do things she once enjoyed, such as reading and socializing.107 She noted pain
episodes occur once every two to three weeks, and last up to five days.108 During these
episodes, she experiences severe leg cramping, limited ambulation, and “locked up”
joints accompanied by pain, especially in the knees.109 When these symptoms occur,

99

Id. at 44-45. According to plaintiff, her mother does the shopping about three
times a month, while plaintiff does the shopping once a month. Id.
100
Id. at 46.
101
Id. at 46-47.
102
Id. at 48.
103
Id. at 50-51.
104
Id. at 51-52.
105
Id. at 53.
106
Id. at 53, 58.
107
Id. at 47.
108
Id. at 49, 53-54.
109
Id. at 49-50.
12

plaintiff contends she must crawl to ambulate.110 Plaintiff claims these crises occur
without warning, with varying levels of pain.111 She goes to the emergency room when
pain is severe and uncontrollable.112 Because of her sickle cell disease, high blood
pressure, avascular necrosis, carpal tunnel, bursitis, and lack of focus, she would not be
dependable and is unable to work a full-time job.113
2.

Testimony of Vocational Expert

Christina Cody, a VE, testified at the hearing.114 On questioning by the ALJ, the
VE described the exertional requirements and skill level of plaintiff’s prior jobs.115 The
VE identified plaintiff’s work experience to be at the 4 or 6 level according to the Specific
Vocational Preparation (“SVP”), consistent with the Dictionary of Occupational Titles
(“DOT”) criteria, which makes her prior work level sedentary to light.116 When
questioned by the ALJ regarding transferable skills, the VE responded they included
plaintiff’s keyboarding and clerical experience, which could transfer to sedentary and
light exertional positions at the SVP 3 through 5 levels.117 The ALJ presented a
hypothetical person with the same age, disability onset date, education, and weight as
plaintiff, suffering from the same disabilities, limitations, frequency of pain crises, and
prescribed the same medications.118 The ALJ asked the VE whether that hypothetical

110

Id. at 50.
Id. at 54.
112
Id.
113
Id. at 56-57.
114
Id. at 63-70.
115
Id. at 63.
116
Id.
117
Id. at 63-64.
118
Id. at 64-65.
111

13

person could perform any available jobs involving sedentary or light work.119 The VE
testified there were several.120 At the sedentary exertional level, positions available
included a type copy examiner, addressing clerk, and bench hand.121 The positions of
routing clerk, final inspector, and redemption clerk are available within the light
exertional level.122 When the VE was questioned on whether plaintiff would be able to
perform any past work given her limitations, the VE responded in the negative.123
Plaintiff’s counsel asked the VE whether the following situations would affect a
hypothetical individual’s ability to sustain full-time employment: impairments,
symptoms, or side-effects causing a twenty percent daily loss of work productivity;
more than three days of absences per month; regular tardiness and leaving work early;
random, unscheduled, thirty-minute breaks three to four times per day, in addition to
regularly scheduled breaks; inability to push, pull, kneel, bend, or stoop; and the need
for an hour to two-hour nap during the work day.124 The VE responded that each
limitation is work preclusive.125
C.

The ALJ’s Decision

119

Id. at 65-66
Id.
121
Id. All three positions are at SVP 2. The jobs available are: a type copy
examiner, 2,400 regional and 270,800 national jobs; an addressing clerk, 1,150 regional
and 156,400 national jobs; and a bench hand, 1,400 regional and 188,300 national jobs.
Id.
122
Id. All three positions are at SVP 2. Regarding the available jobs, a routing
clerk has 2,600 regional and 512,700 national positions; a final inspector has 1,250
regional and 198,500 national jobs; and a redemption clerk has 1,100 regional and
211,200 national positions. Id.
123
Id. at 66.
124
Id. at 68-70.
125
Id.
120

14

In a detailed October 19, 2012 decision regarding plaintiff’s claim, the ALJ found
as follows:126
1. The claimant meets the insured status requirements of the Social
Security Act through June 30, 2014.
2. The claimant has not engaged in substantial gainful activity since April
15, 2010, the alleged onset date (20 CFR 404.1520(c)).
3. The claimant has the following severe impairment: sickle cell disease
with infrequent crises or flare-ups and obesity (20 CFR 404.1520(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 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) except if because of pain from her
crises and otherwise, needs to have simple, routine, unskilled jobs SVP 1
or 2, and appears able to attend to tasks and complete scheduled,
needing jobs that are low stress in nature and in memory and
concentration, due to her medications, meaning jobs that are 1 or 2 step
tasks, no production-rate pace work, with little decision making or changes
in the work setting or judgment to do the work, can sit and stand for 30
minutes consistently on an alternate basis or at will for 8 hours a day and
five days a week, avoiding heights and hazardous machinery, temperature
and humidity extremes, with only occasional bending, stair climbing,
ropes, or ladders, able to do some sedentary and light work.
6. The claimant is unable to perform any past relevant work (20 CFR
404.1565).
7. The claimant was born on September 16, 1968 and was 41 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).

126

Id. at 20-32.
15

9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (see SSR 82-41 and 20 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
and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social
Security Act, from April 15, 2010 through the date of this decision (20 CFR
404.1520(g)).
V.

PARTIES CONTENTIONS
Plaintiff argues by improperly evaluating the medical evidence, the ALJ afforded

significant weight to the opinion of the non-examining state agency reviewing physician,
Dr. Anne Aldridge, rather than attributing appropriate weight to her treating
specialists.127 She contends the ALJ ignored medical evidence concerning significant
limitations in her right arm,128 and made improper speculative inferences regarding her
subjective complaints.129 In sum, she claims the ALJ’s subjective determination of her
credibility “lacks the support of substantial evidence.”130
Defendant contends the ALJ was justified in according little weight to Drs.
Lankiewicz and Goodill’s assessments since neither opinion were supported by the
evidence and were inconsistent with their treatment notes.131 Defendant points out that
the ALJ properly considered the findings of Dr. Aldridge that were consistent with the
127

D.I. 11 at 1, 14.
D.I. 14 at 1.
129
D.I. 11 at 18, D.I. 14 at 5.
130
D.I. 14 at 5.
131
Id. at 17-18.
128

16

record as a whole.132 Lastly, plaintiff’s complaints, when supported by evidence, were
incorporated in the ALJ’s RFC assessment and hypothetical question to the VE.133
VI.

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.”134 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.135
This standard does not change merely because there are cross-motions for summary
judgment.136 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.137
“The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party.”138
B.

ALJ’s Findings

132

D.I. 13 at 15.
Id. at 19.
134
Reeves v. Sanderson Plumbing, Prods., Inc., 530 U.S. 133, 150 (2000).
135
See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R.
CIV. P. 56(c)).
136
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
137
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
138
Krupa v. New Castle Cnty., 732 F. Supp. 497, 505 (D. Del. 1990).
133

17

Section 405(g) sets forth the standard of review for the ALJ’s decision.139 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.140 Factual decisions are upheld if supported by substantial evidence.141
Substantial evidence means less than a preponderance, but more than a mere scintilla
of evidence.142 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.”143
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.144 The court’s review is limited to evidence
actually presented to the ALJ.145 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
offered by treating physicians) or if it really constitutes not evidence but mere
conclusion.”146 The inquiry is not whether the court would have made the same

139

See 42 U.S.C. § 405(g).
Id.
141
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).
142
Rutherford v. Barnhart, 399 F.3d 546, 522 (3d Cir. 2005).
143
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
144
Monsour, 806 F.2d at 1190.
145
Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001).
146
Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
140

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determination, but rather whether the Commissioner’s conclusion was reasonable.147
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.148
The agency’s decision cannot be affirmed on a ground other than that actually
relied upon in making the decision.149 In Securities & Exchange Comm’n v. Chenery
Corp.,150 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.”151 The Third Circuit has recognized the applicability of this finding in the Social
Security disability context.152 This court’s review is limited to the four corners of the
ALJ’s decision.153
VII.

DISCUSSION
A.

Disability Determination

Title II of the Social Security Act, 42 U.S.C. § 423(a)(I)(D), “provides for the
payment of insurance benefits to persons who have contributed to the program and who
suffer from a physical or mental disability.”154 In order to qualify for DIB, the claimant
147

Brown v. Brown, 845 F.2d 1211, 1213 (3d Cir. 1988).
Monsour, 806 F.2d at 1190-91.
149
Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.D. Pa. 2011).
150
Sec. & Exch. Comm’n v. Chenery Corp., 322 U.S. 194, 196 (1947).
151
Id.
152
Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001).
153
Cefalu v. Barnhart, 387 F. Supp. 2d 486, 491 (W.D. Pa. 2005).
154
Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
148

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must establish she was disabled prior to the date she was last insured.155 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.156 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.”157
In determining whether a person is disabled, the Commissioner is required to
perform a five-step sequential analysis.158 If a finding of disability can be made at any
point in the sequential analysis, the Commissioner will not review the claim further.159 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.160 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.161
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

155

20 C.F.R. § 404.131.
42 U.S.C. §§ 423(d)(I)(A), 1382(c)(a)(3).
157
42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
158
20 C.F.R. § 404.1520(a)(4).
159
20 C.F.R. § 404.1520(a)(4).
160
20 C.F.R. § 404.1520(a)(4)(i).
161
20 C.F.R. § 404.1520(a)(4)(ii).
156

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presumed severe enough to preclude any gainful work.162 When a claimant’s
impairment or its equivalent matches an impairment in the listing, the claimant is
presumed disabled.163 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.164 At step four, the Commissioner determines whether the claimant retains the
RFC to perform her past relevant work.165 A claimant’s RFC is “that which an individual
is still able to do despite the limitations caused by [her] impairment(s).”166 “The claimant
bears the burden of demonstrating an inability to return to [her] past relevant work.”167
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.168 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.169 In making this determination, the ALJ must analyze the cumulative effect of
all the claimant’s impairments, and often seeks the assistance of a VE.170

162

20 C.F.R. § 404.1520(a)(4)(iii); see also Plummer v. Apfel, 186 F.3d 422, 42728 (3d Cir. 1999).
163
20 C.F.R. § 404.1520(a)(4)(iii).
164
20 C.F.R. § 404.1520(e).
165
20 C.F.R. § 404.1520(a)(4)(iv); see also Plummer, 186 F.3d at 428.
166
Fargnoli, 247 F.3d at 40.
167
Plummer, 186 F.3d at 428.
168
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.
169
Plummer, 186 F.3d at 428.
170
See id.
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1.

Drs. Lankiewicz, Goodill, and Aldridge’s Opinions

The ALJ relied on the state agency reviewing physician, Dr. Aldridge, attributing
less weight to plaintiff’s treating doctors, Drs. Lankiewicz and Goodill. The opinions of
treating doctors are generally given more weight, if “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with
the other substantial evidence in [the] case record.”171 When there are conflicting
medical conclusions, “the ALJ is not only entitled but required to choose between
them.”172 The ALJ cannot reject evidence for no reason, and must explain why
evidence has been rejected.173
In the instant matter, the ALJ explained why he afforded less weight to the
opinions of Drs. Lankiewicz and Goodill, because they failed to accurately translate their
treatment reports in their opinions.”174 The ALJ found that Dr. Lankiewicz consistently
indicated in his treatment records that plaintiff’s pain crises were infrequent, making her
claims of frequent crises unsubstantiated.175 Dr. Goodill, in his office notes, “reported
the claimant with mental status alert, well groomed, not anxious, depressed, or in acute
distress or sickly. . . well nourished, and well developed, [with] normal posture and
gait.”176 The ALJ determined these assessments undermined Dr. Goodill’s
recommendation that plaintiff refrain from work for one year.
The ALJ accorded more weight to the opinion of Dr. Aldridge, because “it was
171

See 20 C.F.R. § 404.1527.
Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
173
Id. at 706-07.
174
D.I. 8 at 30.
175
Id. at 29.
176
Id.
172

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based upon thorough review of the evidence and familiarity with Social Security Rules
and Regulations and legal standards set forth therein.”177 Although Dr. Aldridge
referenced the limitation in plaintiff’s upper right extremity to reach overhead, the ALJ
did not include this restriction in his RFC assessment and hypothetical question to the
VE.178 Plaintiff argues that by giving significant weight to Dr. Aldridge’s opinion, the ALJ
was required to adopt each of the doctor’s findings. An ALJ, however, is not compelled
“to incorporate into an RFC every finding made by a medical source simply because the
ALJ gives the source’s opinion as a whole ‘significant’ weight.”179 The Commissioner,
through the ALJ, is the sole arbiter of plaintiff’s RFC, and may incorporate medical
evidence into the RFC to the extent it is consistent with the record as a whole.180 The
ALJ noted, for example, Dr. Gelman’s reports showing plaintiff had full mobility of her
shoulders prior to the removal of an “increasingly painful” and “long standing” mass.181
Despite this procedure, she “was allowed to return to work after a week.”182 Therefore,
the ALJ’s findings are supported by substantial evidence.
2.

Plaintiff’s Subjective Complaints

The ALJ found plaintiff’s complaints “concerning the intensity, persistence and
limiting effects of [her] symptoms are not credible to the extent” they were inconsistent
with the RFC assessment.183 Plaintiff reported pain crises every other week lasting

177

Id. at 30.
Id. at 64-65.
179
Wilkinson v. Comm'r Soc. Sec., 558 F. App'x 254, 256 (3d Cir. 2014).
180
See 20 C.F.R. § 404.1527.
181
D.I. 8 at 23.
182
Id.
183
Id. at 28.
178

23

three to five days in duration, but the ALJ found the medical evidence “supports
infrequent or occasional crisis,” noting plaintiff sought emergency room treatment only
three times.184 The ALJ further determined the medical evidence did not substantiate
the degree of debilitation alleged by plaintiff, again citing the relative lack of emergency
room visits and that CPAP stabilized her sleep apnea and eliminated the need for
frequent daytime naps.185 The ALJ accounted for plaintiff’s subjective complaints that
were supported by the record, as evidenced by the RFC assessment in Finding 5.186
The ALJ considered plaintiff’s need for simple, routine, unskilled, low stress jobs
with an alternating sit/stand option or at will, and limitations on heights, hazardous
machinery, temperature and humidity extremes, bending, and climbing stairs, ropes,
and ladders.187 Each of these limitations were included in the hypothetical to the VE,
who found plaintiff was capable of substantial gainful activity at the sedentary and light
levels. As a result, the ALJ’s findings are supported by substantial evidence on the
record.
VIII.

ORDER AND RECOMMENDED DISPOSITION
For the reasons contained herein, it is recommended that:
(1) Defendant’s cross-motion for summary judgment (D.I. 12) be GRANTED
(2) Plaintiff’s motion for summary judgment (D.I. 10) 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
184

Id.
Id.
186
Id. at 26-27.
187
Id.
185

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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: August 19, 2014

/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

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