Rogers v. Commissioner of Social Security

Filing 25

MEMORANDUM. Signed by Judge Gregory M. Sleet on 6/19/2017. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOSEPH EDWARDS ROGERS, JR.

)
)
)
)
) Civil Action No. 14-319-GMS
)
)
)
)
)

Plaintiff,
v.

NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant. 1

MEMORANDUM
I.

INTRODUCTION
The plaintiff Joseph Edwards Rogers, Jr., ("Rogers"), who appears prose, appeals the

decision of Nancy Berryhill, Acting Commissioner of Social Security ("Commissioner"),
denying his claim for disability insurance benefits ("DIB") and Supplemental Security Income
("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f.
The parties have filed cross-motions for summary judgment. 2 (D.I. 21, 22.) The court has
jurisdiction pursuant to 42 U.S.C. § 405(g). 3

1

Nancy A. Berryhill became the Acting Commissioner of Social Security, effective
January 23, 2017, to succeed Acting Commissioner Carolyn W. Colvin, whose term ended on
January 20, 2017. Pursuant to Fed. R. Civ. P. 25(d) and 42 U.S.C. § 405(g), Nancy A. Berryhill
is automatically substituted as the defendant in this action.
2

In his complaint, Rogers states that he suffered a stroke after he was denied benefits, but
provided no documentation to support this statement. (See D .I. 1.) In addition, evidence that
was not before the ALJ cannot be used to argue that the ALI' s decision was not supported by
substantial evidence. See Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001).
3

Under § 405(g), [a]ny individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party ... may obtain a review of such decision
by a civil action commenced within sixty days after the mailing to him of notice of such decision
.... Such action shall be brought in the district court of the United States for the judicial district

Rogers protectively applied for DIB on March 31, 2010, and for SSI benefits on May 8,
2012, alleging disability since September 1, 2009, due to a permanent back injury and arthritis. 4
(D.I. 16-2 at 21; D.I. 16-5 at 2-3;16-6 at 53.) His claims were denied initially and upon
reconsideration. (D.I. 16-3 at 2-6.) Thereafter, Rogers requested a hearing, which took place
before an administrative law judge ("ALJ") on June 21, 2012. Counsel represented Rogers at the
hearing, and Rogers and a vocational expert ("VE") testified. (D.I. 16-2 at 36-72.) The ALJ
found that Rogers is unable to perform his past relevant work, but could perform simple,
unskilled light work as identified by the VE. (Id. at 21-31.) Rogers sought review by the
Appeals Council, but it denied his request for review and, therefore, the ALJ' s decision became
the final agency decision subject to judicial review. (Id. at 2-5.) On March 10, 2014, Rogers,
now proceeding prose, filed the current action for review of the final decision. (D.I. 1.)

II.

BACKGROUND
A.

Prior Decision

Rogers previously applied for DIB benefits. He received a partially favorable decision by
an ALJ on August 31, 2009, when he was awarded benefits for the closed period of June 13,
2005 through September 19, 2007, after the ALJ found Rogers was unable to perform even

in which the plaintiff resides .... " 42 U.S.C. § 405(g).
4

The relevant period for Rogers' DIB claim runs from September 1, 2009, the amended
alleged onset date, to March 31, 2012, the date Rogers was last insured. (D.I. 16-6 at 2.); see 20
C.F.R. § 404.131 (a) (2016) (to establish a period of disability, the claimant, who must have
disability insured status, bears the burden to prove that the impairment became disabling prior to
the date the insurance status expired). The relevant period for Rogers' SSI claim is May 8, 2012,
the protective SSI application date, to July 12, 2012, the date of the ALJ's decision. (D.I. 16-2 at
21-30); see 20 C.F.R. §§ 416.335, .501 (SSI benefits are only payable as of the month after the
month in which the application is filed); 20 C.F.R. § 416.330 (a claimant must establish that he
became disabled and met the other requirements for benefits by the date of the ALJ's decision).
2

sedentary work due to a work related back injury that required surgery in May 2006 and a period
for recovery and therapy. (D.I. 16-3 at 7-22.) Rogers sought review by the Appeals Council, but
it denied his request for review and, therefore, the ALJ' s decision became the final agency
decision subject to judicial review. (Id at 23-25.) There is no evidence that Rogers sought
judicial review of the 2009 decision. Rogers states, "whether [he] followed proper court
procedure or not does not change the significance of the injury." (D.I. 24.)
Claim preclusion, also known as res judicata, bars a claim litigated between the same
parties or their privies in earlier litigation where the claim arises from the same set of facts as a
claim adjudicated on the merits in the earlier litigation. Blunt v. Lower Merion Sch. Dist., 767
F.3d. 247, 277 (3d Cir. 2014). Claim preclusion applies to Roger's disability status as of the date
of the prior ALJ decision (i.e., August 31, 2009). See 20 C.F.R. § 404.955 (2016) ("The decision
of the administrative law judge is binding on all parties to the hearing .... "); 20 C.F.R.
§ 404.957(c)(l) (explaining that resjudicata applies where facts and issues were already

adjudicated in a final decision on a prior application). Accordingly, to the extent that Rogers
contends that his disability continued after September 19, 2007 through the alleged onset date in
this case (i.e., September 1, 2009), the claim is barred.

B.

Plaintiff's Testimony

Rogers was represented by counsel and testified at the hearing. At the time of the
hearing, Rogers was 51 years old, and married. (D.I. 16-2 at 43.) He testified that he has a high
school diploma, a driver's license, and that drove himself to the hearing. (Id. at 44.) He
provided descriptions regarding his past work from 1985 to the date of the hearing. (Id. at 4447 .) Rogers testified that in June 2012 he was hired to perform light duty work, one or two days

3

per week. (Id. at 48-49.) He further testified that he was actively looking for work that he could
do with his restrictions, but was unable to find anything. (Id. at 49-50.) Rogers testified that he
could care for his personal hygiene, prepare light meals, perform light housework (dusting,
sweeping, loading the dishwasher, and laundry), run errands, and go grocery shopping. (Id. at
60-63.)
When questioned about his back condition, Rogers testified that he received injections in
2005, 2006, 2007 and 2010, but has not had any injections since November 2010 because they
are not working for him. (Id. at 51.) Rogers received massage therapy in 2011, and it helped, but
he no longer receives this type of therapy. (Id.)

~e

now undergoes pain management. (Id.)

Rogers takes medication for his back, but not every day. (Id. at 52.) The medication upsets his
stomach, causes drowsiness, and makes him "a little slow on decisions." (Id.) Rogers testified
that he has chfonic pain in his back every day. (Id. at 52-53.) He also has a lot of tightness with
spasms. (Id. at 53.) With medication, the pain is reduced to five on a scale of one to ten, and
without medication it is a seven. (Id.) Treatment provides some relief. (Id.) At home, Rogers
uses hot baths, a heating pad, a TENS unit, every afternoon he lies down with his feet up, and he
does stretches to relieve the pain. (Id. at 57-58.) Rogers sees Dr. DuShuttle for his back
condition. (Id. at 51.) In May, 2012, Rogers was referred to another physician for a second
opinion for another back surgery, but he does not wish to undergo the surgery. (Id.)
Rogers also receives treatment for a mental condition. (Id. at 53.) He does not take any
medications for the condition, but in the past has taken medication for anxiety. (Id. at 54.)
Rogers explained that he is trying not to rely on medication. (Id.) Rogers testified that due to his
back condition, he has lost confidence and becomes easily frustrated. (Id.) Rogers has difficulty
4

sleeping and takes natural medications to help with sleeping. (Id. at 55.) He suffers from
headaches which occur every other day, or due to lack of sleep, and last a couple of hours. (Id. at
65.) He has problems with his memory, has no problems with mood swings, and is a little
paranoid. (Id. at 56.) Lately, he has heard a few voices. (Id. at 57.) If he goes into a store, he
has anxiety and leaves. (Id.)
Rogers testified that he can stand, sit, and walk less than one hour in an eight hour work
day. (Id. at 58.) He has one flight of stairs in his home, but falls frequently when using them.

(Id. at 58, 64.) He can lift ten pounds. (Id. at 58.) He has a hard time bending, a really hard time
kneeling, no problem using his hands, and no problem breathing. (Id.) Reaching over his head
and in front of him cause difficulty. (Id. at 65.) Rogers testified that his restrictions only allow
him to work four hours a day performing sedentary work. (Id. at 64.)

C.

Plaintiff's Medical History, Condition, and Treatment
1.

Medical

Following a work-related accident, Rogers underwent a L4-5, L5-Sl discectomy due to
disc herniation in May 2006. (D.I. 16-3 at 14.) He continued with pain management treatment
provided by Ganesh Balu, M.D. ("Dr. Balu"), and saw Antonio Zarraga, M.D. ("Dr. Zarraga")
from November 2008 through March 2010 with complaints of anxiety, depression, and lower
back pain. 5 (D.I. 16-8 at 20, 27-65.)
On August 31, 2009, Dr. Zarraga reported Rogers' limited range of motion and an
inability to bend the body due to back pain, positive straight leg raising, sciatic tenderness, and
paraspinal pain with palpation. (D.I. 16-7 at 2.) He found Rogers had a poor prognosis and a

5

See paragraph II.A., supra, discussing previous finding of limited disability.
5

permanent disability that could not be removed by treatment. (Id. at 3.) Dr. Zarraga reported
functional limitations of: walking less than 100 feet; climbing one to two flights of stairs; lifting
ten pounds or less; standing two hours or less; sitting two hours or less; and avoiding reaching
above the shoulder level, stooping, bending, twisting, and temperature/humidity changes. (Id.)
In April 2010, Rogers presented to R.P. DuShuttle, M.D. ("Dr. DuShuttle"), who had last
evaluated Rogers in 2007, 6 for reevaluation of his back. (D.I. 16-9 at 19.) X-rays of the thoracic
spine indicated mild mihritis. (Id.) Upon examination, Rogers had full flexion and extension
with stiffness, no sciatic notch tenderness/buttock pain/radiculopathy, straight leg raising test was
negative bilaterally, mild tightness, guarding, and splinting in the thoracic area, and reflexes were
symmetrical. (Id.) In July 2010, Dr. DuShuttle noted that Rogers reported an increase in back
pain following yard work. (D .I. 16-9 at 18 .) Examination revealed full flexion and extension
with stiffness and bilateral sciatic notch tenderness with no buttock pain or radiculopathy,
straight leg raising test was negative bilaterally, there was positive tightness, guarding, and
splinting, positive spasm, no neuro or sensory deficits, and symmetrical reflexes. (Id.) When
Rogers was seen by Dr. DuShuttle a few weeks later, they reviewed a July 16, 2010 lumbar MRI
that revealed moderately severe bilateral neural foraminal narrowing at L5-Sl. (D.I. 16-9 at 27.)
Upon examination, Rogers had decreased flexion and extension, bilateral sciatic notch
tenderness, positive tightness/guarding/splinting with no buttock pain or radiculopathy, straight
leg raising tests were negative bilaterally, reflexes were symmetrical, and there were no
neurological or sensory deficits. (Id.)

6

ln an August 23, 2007 report, Dr. DuShuttle classified Rogers' work restrictions as
permanent sedentary light work, fours hours per day. (D.I. 16-8 at 226.)
6

Rogers received treatment at Compassionate Pain Management beginning in September
2010. (D.I. 16-12 at 2-45.) Nerve conduction velocity and electromyogram studies of the right
arm and leg, conducted on November 19, 2010, were normal. (Id. at 26-33.) In a December 10,
2010 pain questionnaire, Rogers indicated that his pain with medication was six to seven. (Id. at
24.)
Rogers was seen by consultative examiner Joseph Schanno, M.D. ("Dr. Schanno") on
November 16, 2010. (D.I. 16-9 at 28.) Rogers described persistent pain in the right hip and
back, radiating down his legs to just above the knee, more common in the right leg, but
occasional discomfort in the left leg. (Id. at 29.) Dr. Schanno observed that Rogers had a brisk
gait and walked with no obvious limp, his mental status examination was relatively normal,
neurological examination was within normal limits, cervical spine examination was normal,
shoulders and hips had full/normal range of motion, and there was no paravertebral muscle
spasm. (Id. at 30-31.) Dr. Schanno opined that Rogers could easily perform at a sedentary level
of activity or even light duty if so motivated. (Id. at 32.) On December 1, 2010, and June l?,
2011, State agency reviewing physicians, Gurcharan Singh, M.D. ("Dr. Singh") and Joseph
Michel, M.D. ("Dr. Michel") opined that Plaintiff could perform a limited range of unskilled
light work. (D.I. 16-9 at 40-46, D.I. 16-10 at 26.)
In March 2011, Rogers was examined by Dr. Zarraga who noted an unremarkable
neurological examination with limited motion in the lumbar and lumbosacral spine, and referred
Rogers to pain management. (D.I. 16-10 at 13-14.) Rogers continued with pain management
through January 2012. (D.I. 16-12 at 2-45, 57-76.) He continued to be seen by Dr. Zarraga,

7

including visits on August 2, 2011, September 22, 2011, May 4, 2012, and May 31, 2012. (D.I.
16-13 at 38-45.)
A May 11, 2011 thoracic spine MRI revealed no disc herniation, stenosis, alteration of the
central canal or foramina, or cord compression. (D.I. 16-12 at 48, 77.) An MRI of the lumbar
spine taken the same day, showed the previous right-sided L5-S 1 hemilaminectomy, mild
epidural fibrosis in the right lateral recess, contact of the right S 1 nerve root, a disc extrusion at
L4-5 extending superiorly from the disc space level, and moderate stenosis. (Id. at 46-47, 78-79.)
Rogers returned to Dr. DuShuttle, on May 8, 2012, having last seen him on July 27, 2010.
(D.I. 16-13 at 3.) On that day, Dr. DuShuttle, classified Rogers' work restrictions as permanent
sedentary light work, fours hours per day. (D.I. 16-12 at 87.) Dr. DuShuttle observed sciatic
notch tenderness, buttock pain to palpation, tightness, guarding, and splinting, but reflexes were
full and symmetrical, there was no objective sensory deficit, straight leg raise was negative, and
there was a five to ten degree loss of flexion. (D.I. 16-13 at 3.) On May 17, 2012, Dr. DuShuttle
completed a lumbar spine residual functional capacity questionnaire. (D.I. 16-12 at 82-86.) He
reported diagnoses of lumbar stenosis, lumbar degenerative disc disease, and lower extremity
radiculopathy supported by MRI findings and noted a fair prognosis. (Id. at 82.) Dr. DuShuttle
reported Rogers' complaints of pain and his findings of a five to ten degree reduced range of
motion, muscle spasm, muscle weakness, tenderness, and crepitus. (Id. at 82-83.) Dr. DuShuttle
stated that Rogers can walk two city blocks without rest or severe pain, can sit for more than two
hours and can stand for one hour before needing a break in ah eight-hour workday and, with
normal breaks, can stand/walk less than two hours and sit at least six hours. (Id at 83-84.) He
also determined that Rogers needs to walk every sixty minutes for ten minutes each time and will

8

need to take unscheduled breaks during an eight-hour work day. (Id.) Dr. DuShuttle determi:ned
that Rogers can occasionally lift less than ten pounds, rarely lift and carry 10 pounds, never twist,
crouch/squat, or climb ladders, and rarely stoop and climb stairs. (Id. at 85.) A May 22, 2012
lumbar spine MRI was unchanged when compared to the previous July 2010 MRI, showed no
evidence of central canal stenosis or disc herniation, and showed the previous right-sided lumbar
laminectomy at L4-L5 and L5-Sl. (D.I. 16-13 at 55-52.)

2.

Mental Health

Rogers received therapy from Sheryl Winsby, Ph.D. ("Dr. Winsby"), from April 5, 2010
through April 12, 2011 to discuss issues concerning pain, finances, and his circumstances due to
his back.

7

(D.I. 16-9 at 20-26; D.I. 16-13 at 31-37.) At the April 13, 2010 session, Rogers

indicated that he was no longer depressed. (Id. at 25.)
Rogers underwent a consultative psychological evaluation by Joseph Keyes, Ph.D. ("Dr.
Keyes") on December 7, 2010. (Id. at 33-38.) Dr. Keyes concluded that Rogers' orientation,
mental alertness, and memory were within normal limits, with a mild disturbance in
concentration. (Id. at 35-36.) Rogers' affect was appropriate to the situational context and
adequately modulated, he interacted and conversed easily and appropriately, and his social and
interpersonal skills were appropriate and adequate. (Id. at 36.) Rogers exhibited an adjustment
disorder with depressed mood related to his back problem and loss of employment. (Id.) He

7

A May 2007 vocational-psychological evaluation found mild to moderate range of
depression, problems with decision making and indecisiveness, a mild degree of low mood,
feelings of pessimism, sense of failure, dissatisfaction with life, and several vegetative symptoms
of depression. (D.I. 16-8 at 19.) The evaluation recommended occupational areas that are
largely semiskilled, noting that Rogers' physical imitations would play a significant role in
developing a meaningful vocational plan. (Id.)
9

noted that Rogers was capable of performing self-care skills, light activities of daily living,
independent in self-care, and performed light household domestic chores and tasks. (Id.) Dr.
Keyes assessed a GAF score of 65. 8 (Id.)
On December 16, 2010, and June 6, 2011, State agency reviewing psychologists, Jennifer
Hill-Keyes, Ph.D. ("Dr. Hill-Keyes") and Carlene Tucker-Okine, Ph.D. ("Dr. Tucker-Okine")
conducted psychiatric review techniques and opined that Rogers had medically determinable
impairments that were not severe. (D.I. 16-10 at 2-12, 15-25.)

D.

VE Testimony

During the hearing before the ALJ, the VE classified Rogers' prior relevant work
(electronic assembler, heavy equipment operator, loader, security guard, electronic assembler) as
either unskilled exertional level medium, semi-skilled exertional level medium, or semi-skilled
exertional level light. (D.I. 16-2 at 66-68.) The VE testified that a person who had performed
those occupations would have skills that would transfer into jobs with less demanding skills,
such as amusement equipment operator, and coordinator for measuring equipment operator. (Id.
at 68.)
The ALJ then asked the VE to consider the following hypothetical question:

8

The Global Assessment of Functioning scale considers the psychological, social, and
occupational functioning on a hypothetical continuum of mental health-illness. See American
Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders (DSM-IV-TR) 34 (4th
ed. text revision 2000). The GAF scale was not included in the DSM-V, for several reasons,
including its conceptual lack of clarity. See American Psychiatric Ass'n, Diagnostic & Statistical
Manual of Mental Disorders (DSM-V) 16 (5th ed. 2013). A GAF score between 61 and 70
indicates some mild symptoms or some difficulty in social, occupational, or school functioning,
but generally functioning pretty well, has some meaningful interpersonal relationships. See
DSM-IV-TR at 34.
10

[t]his is an individual who is approximately the claimant's stated age, an onset of
about 49 years, has a high school degree, is able to read and write and do at least
simple math, adding and subtracting, certain underlying impairments [] placed
limitations on the ability to do work related activities ... with a light level of
exertion and this hypothetical with all the posturals are occasional, but there is
. no climbing a ladder, a rope or a [scaffold]. And with this light level of exertion
would there be any of the claimant's past work such a person could do?
(Id at 69.) The VE responded, "It would be the security guard and electronic assembler, ...

[exertion level] light." (Id.) The ALJ changed the hypothetical to include a sit/stand option and
the VE testified that neither of the jobs could accommodate that limitation. (Id.) Next, the ALJ
asked if there were "any simple unskilled work this person could do at the light level of exertion .
. . and at sedentary .... " (Id.) The VE responded the positions that could be performed were:
housekeeping cleaner, exertional level light and unskilled; addressor, exertional level sedentary
and unskilled; bagger, exertional level light and unskilled; and amusement equipment operator,
exertional level light and semi-skilled. (Id. at 70.)

C.

Regulatory Framework and the ALJ's Findings

Within the meaning of social security law, a "disability" is defined for purposes of both
DIB and SSI as the inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment, which can be expected to result in death, or which
has lasted or can be expected to last, for a continuous period of not less than 12 months. See 42
U.S.C. §§ 423(d)(l)(A), 1382c(a)(3). To be found disabled, an individual must have a "severe
impairment" which precludes the individual from performing previous work or any other
"substantial gainful activity which exists in the national economy." See 20 C.F.R. §§ 404.1505,
416.905. The claimant bears the initial burden of proving disability. See 20 C.F.R. §§
404.1512(a), 416.912(a); Podeworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984). To qualify for

11

disability insurance benefits, the claimant must establish that he was disabled prior to the date he
was last insured. See 20 C.F.R. § 404.131; Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).
To determine disability, the Commissioner uses a five-step sequential analysis. See 20
C.F.R. §§ 404.1520; 416.920; Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir. 1999). "The
claimant bears the burden of proof at steps one through four, and the Commissioner bears the
burden of proof at step five. Smith v. Commissioner ofSoc. Sec., 631 F.3d 632, 634 (3d Cir.
2010). If a finding of disability or non-disability can be made at any point in the sequential
process, the Commissioner will not review the claim further. See 20 C.F .R. §§ 404.1520( a)( 4),
416.920(a)(4).
At step one, the ALJ considers whether the claimant is currently engaged in substantial
gainful activity, and if not proceeds to the next step. See 20 C.F.R. §§ 404.1520(a)(4)(i),
416.910(a)(4); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). At step two, the ALJ considers
whether the claimant has a "severe impairment" that significantly limits her physical or mental
ability to perform basic work activities. See 20 C.F.R. §§ 404.1S20(a)(4)(ii), 416.910(a)(4)(ii).

If the claimant suffers a severe impairment, the ALJ considers at step three whether the
impairment meets the criteria in the listing of impairments, 20 C.F.R. pt. 404, subpt. P, app. 1
(1999). 9 See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.910(a)(4)(iii). If the impairment does not
meet the criteria for a listed impairment, Io then the ALJ considers at step four whether, despite

9

Additionally, at steps two and three, claimant's impairments must meet the duration
requirement of twelve months. See 20 C.F.R. §§ 404.1520(a)(4)(ii-iii), 416.920(a)(4)(ii)(iii).
Io At steps two and three, limitations in four functional areas are used to determine the
severity of a claimant's mental impairment. SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996).
These areas, sometimes referred to as the Paragraph B criteria, include activities of daily living;
social functioning; concentration, persistence, or pace; and episodes of decomposition. 20 C.F.R.

12

the severe impairment, the claimant has the residual functional capacity ("RFC") to perform his
past work. 11 See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.910(a)(4)(iv); Sykes, 228 F.3d at 263. If
the claimant cannot perform his past work, then the final step is to determine whether there is
other work in the national economy that the claimant can perform. Id. At this last step the
burden is on the Commissioner to show that the claimant is capable of performing other available
work before denying disability benefits. See Plummer, 186 F.3d at 428. In other words, the
Commissioner must prove that "there are other jobs existing in significant numbers in the
national economy which the claimant can perform, consistent with his medical impairments, age,
education, past work experience, and [RFC.]" Id
The ALJ determined that: (1) Rogers had not engaged in substantial gainful activity since
September 1, 2009; (2) Rogers had severe impairments of degenerative disc disease and an
adjustment disorder with depressed mood; (3) all other impairments were non-severe; and (4)
that Rogers did not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments. (D.I. 16-2 at 23-24.) The ALJ found that
Rogers had the RFC to perform light work 12 as defined in 20 C.F.R. 404.1567(b) and 416.967(b),

404, Subpt. P, App. 1, at§ 12.00.
11

Prior to step four, the Commissioner must assess the claimant's RFC. See 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4). A claimant's RFC is "that which an individual is still able to
do despite the limitations caused by his or her impairment[s]." Fargnoli v. Massanari, 247 F.3d
34, 40 (3d Cir. 2001) (quoting Burnett v. Commissioner ofSoc. Sec. Admin., 220 F.3d 112, 121
(3d Cir. 2000)).
12

"Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifteq may be very little, a
job is in this category when it requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing or pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you must have the ability to do
13

except that he can never climb ladders, ropes, or scaffolding, and can occasionally balance,
stoop, kneel, crouch, crawl, and climb ramps and stairs, and is limited to simple, unskilled work.
(Id. at 25.) The ALJ determined that Rogers is unable to perform any past relevant work, that he
was defined as a younger individual on the alleged disability onset date and subsequently
changed age category to closely approaching advanced age. (Id. at 30.) Based upon the VE's
testimony, the ALJ concluded that considering Roger's age, education, work experience, and
RFC, he is capable of making a successful adjustment to other work that exists in significant
numbers in the national economy, and therefore, Rogers was not disabled from September 1,
2009 through the date of the July 12, 2012 decision. (Id. at 31.)

III.

STAND ARDS OF REVIEW
A.

Motion for Summary Judgment

Both parties filed motions for summary judgment pursu'J.nt to Federal Rule of Civil
Procedure 56(c). 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 non-moving
party[,]' but [refraining from] weighing the evidence or making credibility determinations."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation omitted). If the
court determines that there is no genuine issue as to any material fact and that the movant is

substantially all of these activities. If some can do light work, we determine that he or she can
also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity
or inability to sit for long periods of time." 20 C.F.R. § 404.1567(b). The Social Security
Regulations define sedentary work as follows: "Sedentary-work involves lifting no more than 10
pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are met." 20 C.F.R.
§ 404.1567(a).
14

entitled to judgment as a matter of law, summary judgment is appropriate. See Hill v. City of

Scranton, 411F.3d118, 125 (3d Cir. 2005) (quoting Fed. R. Civ .P. 56(c)).
B.

Review of the ALJ's Findings

The court must uphold the Commissioner's factual decisions if they are supported by
"substantial evidence." See 42 U.S.C. § 405(g). Substantial evidence does not mean a large or a
considerable amount of evidence. Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citing

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Rather, it has been defined as
"more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate." Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting Richardson v.

Perales, 402 U.S. 389, 401 (1971)).
Credibility determinations are the province of the ALJ, and should be disturbed on review
only if they are not supported by substantial evidence. Pysher v. Apfel, 2001 WL 793305, at *2
(E.D. Pa. July 11, 2001) (citing Van Horn v. Schweiker, 717 F.2d 871, 973 (3d Cir. 1983)).
Thus, the inquiry is not whether the court would have made the same determination, but rather,
whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d 1211,
1213 (3d Cir. 1988). In social security cases, this substantial evidence standard applies to
motions for summary judgment brought pursuant to Fed. R. Civ. P. 56(c). See Woody v.

Secretary of the Dep 't of Health & Human Serv., 859 F.2d 1156, 1159 (3d Cir. 1988).

IV.

DISCUSSION
Rogers objects to the Commissioner's determination on the following grounds: (1) the

ALJ afforded improper weight to Dr. Schanno's opinion; and (2) the ALJ's decision is not

15

supported by substantial evidence. The Commissioner seeks summary judgment on the grounds
that substantial evidence supports the RFC assessment.
Rogers' position is that the ALJ improperly relied upon the report of examining
consultant Dr. Schanno. Rogers argues that Dr. Schanno "did not spend IO minutes to check or
see [his] back and hip injury, felt like [he] was wasting his time, [was] very rude, could not hear
what was told to him, [and] the evaluation was not professional." (D.I. 24.) The ALJ gave great
weight to Dr. Schanno's opinion that Rogers could perform sedentary or light duty activity
finding that it was consistent with the credible evidence ofrecord. (D.I. 16-2 at 29.) In addition,
the ALJ gave great weight to the assessments of State agency consultants. (Id. at 29-30.) The
ALJ gave little credit to the opinions of treating physicians Dr. DuShuttle and Dr. Zarraga, one of
whom opined that Rogers perform sedentary light duty work for four hours per day. (Id. at 29.)
An ALJ is free to choose one medical opinion over another where the ALJ considers all
of the evidence and gives some reason for discounting the evidence he rejects. See Diaz v.

Commissioner of Soc. Sec., 577 F.3d 500, 505-06 (3d Cir. 2009); Plummer, 186 F.3d at 429 ("An
ALJ ... may afford a treating physician's opinion more or less weight depending upon the extent
to which supporting explanations are provided."). Opinions of a treating physician are entitled to
controlling weight only when they are well-supported and not inconsistent with other substantial
evidence in the record. 13 See Hall v. Commissioner ofSoc. Sec., 218 F. App'x 212, 215 (3d Cir.
Feb. 2007) (unpublished) (affirming ALJ's decision to give little weight to treating physician's
reports because of "internal inconsistencies in various reports and treatment notes ... as well as

13

The Social Security Administration recently abolished the treating source rule. See
Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01 at 5853 (Jan.
18, 2017, effective Mar. 27, 2017) ("we are not retaining the treating source rule").
16

other contradictory medical ·evidence"); Fargnoli, 247 F.3d at 43. In addition, it is well
established that a non-examining physician's opinions "have less probative force as a general
matter, than they would have had if the doctor had treated or examined [the claimant]." Morales
v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000) (internal quotation marks and citation omitted); see
also 20 C.F.R. § 416.927(d)(3) ("[B]ecause nonexamining sources have no examining or treating
relationship with [the claimant], the weight we will give their opinions will depend on the degree
to which they provide supporting explanations for their opinions."). The ALJ's decision to give
great weight to the examining and nonexamining consultants was both thoroughly explained and
well supported by substantial evidence.
The ALJ gave little credit to the opinions of Rogers' treating physicians, noting their
opinions were inconsistent with the credible evidence of record, the longitudinal medical
evidence, reported activities, and Rogers' pain medication usage. (Id.) In reviewing the ALJ's
decision, the court finds that the ALJ fully considered the opinions of Dr. DuShuttle and Dr.
Zarraga, and adequately explained why they were entitled to little weight, considered the
evidence of record, and provided ample reasons to support her decisions in the assignment of
weight to the medical opinions of record. The Court finds no error in her decision.
In addition, Rogers argues that the ALJ's decision is not supported by substantial
evidence, while the Commissioner contends that substantial evidence supports the RFC
assessment as determined by the ALJ. The final responsibility for determining a claimant's
residual functional capacity is reserved to the Commissioner. See Breen v. Commissioner ofSoc.
Sec., 504 F. App'x 96 (3d Cir. Nov. 2012) (unpublished) (citing 20 C.F.R §§ 404.1546(c)).

17

Here, the ALJ considered the effects of Rogers' condition in relation to his ability to
perform work. It is clear in reading the ALJ's decision that she thoroughly reviewed Rogers'
longitudinal treatment history. The ALJ noted that in April 2010, Rogers was seen by Dr. Shuttle
and examination indicated that Rogers had full flexion and extension with stiffness, no sciatic
notch tenderness/buttock pain/radiculopathy; straight leg raising test was negative bilaterally, he
had only mild tightness, guarding, and splinting in the thoracic area, and reflexes were
symmetrical. Also, thoracic spine x-rays showed only mild arthritis. In July 2010, examination
revealed decreased stiff flexion and extension with stiffness, bilateral sciatic notch tenderness
with no buttock pain or radiculopathy, straight leg raising test was negative bilaterally, positive
tightness, guarding, and splinting and positive spasm but no neuro or sensory deficits and
reflexes were symmetrical. MRis taken in 2010 revealed moderately severe bilateral neural
foraminal narrowing at L5-S 1.
The ALJ considered Rogers' March 2011 visit with Dr. Zarraga, wherein he noted an
unremarkable neurological examination and that Rogers had limited motion in the lumbar and
lumbosacral spine. A thoracic spine MRI revealed no disc herniation, stenosis, alteration of the
central canal or foramina, or cord compression and a lumbar spine MRI showed the previous
right-sided L5-Sl hemilaminectomy as well as disc protrusion with moderate stenosis at L4-5.
When Rogers was seen in May 2012, examination revealed sciatic notch tenderness,
buttock pain to palpation, tightness, guarding, and splinting, but reflexes were full and
symmetrical, there was no objective sensory deficit, straight leg raise was negative, and Rogers
had only 5-10 degree loss of flexion and an MRI taken the same month of the lumbar spine MRI
showed no evidence of central canal stenosis or disc herniation.

18

The ALJ also considered statements regarding Rogers' activities interspersed throughout
the medical records including that Rogers reported doing landscape work, working in the garden,
fishing, and doing mechanical work compared to Rogers' testimony that he suffered from
continued pain and because of this he is unable to work. (D.I. 16-2 at 28.) The ALJ considered
the medical records wherein Rogers was referred to pain management and his testimony that he
had been prescribed daily medication for his pain, but does not take it because he does not like
the side effects. In addition, Rogers reported some improvement with treatment.
The ALJ also considered Rogers' testimony that in June 2012 he was hired at a job to
perform light duty work, one or two days per week and that he was actively looking for work that
he could do with his restrictions, but was unable to find anything. See 20 C.F.R. § 404.1571
(discussing work performed after the alleged onset date, "[e]ven ifthe work you have done was
not substantial gainful activity, it may show that you are able to do more than you actually did");
see also Russo v. Astrue, 421 F. App'x 184, 189 (3d Cir. 2011) (unpublished) (finding it notable
that the plaintiff continued working after alleged onset date even though that work did not reach
the level of substantial gainful activity). Finally, the ALJ considered Rogers' testimony
regarding his ability to care for himself, perform light housework, run errands, and go grocery
shopping. In considering the foregoing, the ALJ found that Rogers' statements concerning the
intensity, persistence and limiting effect of his symptoms not credible to the extent they are
inconsistent with the RFC assessment. (D.I. 16-2 at 26.)
In addition, in assessing Rogers' physical RFC, the ALJ afforded great weight to the
examining medical consultant and non-examining State agency medical and psychological
consultants who found Rogers capable of work at a sedentary or light duty activity that is simple

19

and unskilled, but no climbing of a ladder, rope, or scaffold, and occasional balancing, stooping,
kneeling, crouching, crawling, and climbing ramps and stairs. The ALJ did not elevate her own
medical opinion over those of the physicians, but rather made findings based upon all of the
evidence in the record.
The substantial evidence of record supports the ALJ' s finding that Rogers cannot perform
his past relevant work and the RFC assessment that Rogers can perform a limited range of light
work. The ALJ thoroughly analyzed the medical evidence, considered the medical opinions, and
appropriately relied upon the testimony of the VE. Accordingly, the court finds that substantial
evidence supports the ALJ's ruling and her evaluation of Rogers' RFC.
V.

CONCLUSION
For the reasons discussed above, the court finds that substantial evidence supports the

findings of the ALJ. Therefore, the court will: (1) deny Rogers' motion for summary judgment
(D.I. 21); and (2) grant the Commissioner's cross-motion for summary judgment (D.I. 22).

An appropriate order will be entered.

~ I']
'2017
Wilmington, Delaware

T""

20