Howard v. Colvin
REPORT AND RECOMMENDATIONS re 10 MOTION for Summary Judgment filed by Leon G. Howard, GRANTED in part, and Denied in part 15 Cross MOTION for Summary Judgment filed by Carolyn W. Colvin GRANTED in part, and DENIED in part Please note th at when filing Objections pursuant to Federal Rule 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 5/15/2015. Signed by Judge Mary Pat Thynge on 4/28/15. (kjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
C. A. No. 14-349-RGA-MPT
CAROLYN COLVIN, Commissioner of
REPORT AND RECOMMENDATION
Leon G. Howard ("plaintiff') filed this action pursuant to 42 U.S.C. § 1383(c)(3)
against Carolyn Colvin, Acting Commissioner of Social Security ("defendant"), on March
19, 2014. Plaintiff seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the final
decision by the Social Security Administration denying his claim for disability insurance
benefits ("DIS") under the Social Security Act ("SSA"). 1 Currently before the court are
the parties' cross motions for summary judgment. For the reasons stated below, the
court will grant and deny in part plaintiff's motion for summary judgment, and grant and
42 U.S.C. §§ 401-434, 1381-83(f).
deny in part defendant's motion for summary judgment.
Under 42 U.S.C. § 405(g), a district court has jurisdiction to review an
Administrative Law Judge's ("ALJ") decision once it becomes the final decision of the
Commissioner. 2 A decision of the Commissioner becomes final when the Appeals
Council either affirms the ALJ decision, denies review of the decision, or when the
claimant fails to appeal the decision within 60 days after an unfavorable ruling. 3
In the instant matter, the Commissioner's decision became final when the
Appeals Council denied review of the ALJ's decision against plaintiff. Thus, this court
has jurisdiction to review the ALJ's decision.
On March 29, 2010, plaintiff filed an application for DIB alleging disability as of
February 16, 2010. The claims were denied initially on October 26, 2010, and upon
reconsideration on February 24, 2011. Plaintiff then timely requested a review hearing
before an ALJ. A hearing before ALJ Melvin D. Benitz was held on April 10, 2012. The
ALJ denied disability status to plaintiff under the SSA on April 19, 2012. After the
denial, plaintiff requested review from the Appeals Council on May 16, 2012 which was
denied on September 24, 2013. On July 7, 2014 plaintiff moved for summary judgment
42 U.S.C. § 405(g) 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 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."
See 20 C.F.R. § 416.1455; see also 20 C.F.R. § 404.905.
and defendant cross-moved on August 22, 2014.
Plaintiff was forty-two years old at the onset of the alleged disability. Plaintiff has
a high school education and previously worked as an inventory clerk at a hospital,
assistant manager of a hardware store, and a sales clerk. His alleged disability is a
result of "extreme fatigue and shortness of breath that often prevent him from
performing even basic activities." 4
Plaintiff suffers from a wide variety of medical issues, but his overall compliant is
that he experiences fatigue and shortness of breath, or dyspnea. 5 None of his treating
physicians have offered a specific diagnosis for his condition. 6 Prior to the alleged
onset date, plaintiff was diagnosed with Adult Onset Still's disease, Crohn's disease,
and depression, among other diagnoses. 7 The symptoms of fatigue and shortness of
breath began in late 2009 and early 2010. 8
Amir Quefatich, M.D. ("Dr. Quefatich") treated plaintiff in February 2010. 9 With
regard to dyspnea on exertion, Dr. Quefatich found multi-factored symptoms of asthma,
muscle weakness, obesity, and deconditioning played a significant role. 10 On a follow
up visit for worsening symptoms, Dr. Quefatich found no evidence of significant lung
D.I. 11 at 2.
See D.I. 5 at 140; see also D.I. 11 at 2.
D. I. 11 at 3.
D.I. 5 at 494.
Id. at 387, 427-38, 443.
Id. at 427-36.
Id. at 428.
infiltrations or effusions on a recent CAT scan, with PFTs showing only "mild obstructive
airway disease without significant restriction or diffusion defect." 11 At a subsequent
follow up visit, although the etiology of the dyspnea on exertion was unclear, Dr.
Quefatich ruled out lung problems after a cardiopulmonary stress test. 12
During the same time, plaintiff was treated by rheumatologist Ivonne Herrera,
M.D. ("Dr. Herrera"). 13 Before the disability onset date, Dr. Herrera treated plaintiff for
joint pain. 14 Dr. Herrera noted plaintiff could not work, and developed "severe shortness
of breath and feels exhausted with minimal activity." 15 Dr. Herrera further reported
plaintiff did not improve with medication. 16 Ultimately, Dr. Herrera was unable to identify
the etiology for plaintiff's symptoms and a specific diagnosis. Since she was unsure
whether plaintiff should be evaluated by a rheumatologist or a pulmonary physician,
plaintiff was referred to a specialist at Johns Hopkins Myositis Center ("Johns
On May 28, 2010, plaintiff began treating with Thomas Lloyd, M.D. ("Dr. Lloyd")
at Johns Hopkins. 18 Dr. Lloyd noted that six months prior, plaintiff experienced severe
bronchitis which progressed to "severe dyspnea on exertion with only walking, for
example 100 feet to his mailbox," with the shortness of breath becoming significantly
at 444, 485, 591.
worse in February 2010. 19 Dr. Lloyd reported plaintiff had seen a number of
rheumatologists and pulmonologists in Delaware who were unable to determine the
etiology of his dyspnea. 20 Additionally, Dr. Lloyd noted occasional arm and leg
cramping and difficulty rising from a chair, getting off the floor, climbing steps, 21 and a
history of hand tremors. 22 Dr. Lloyd concluded since plaintiff's muscle strength was
normal with no evidence of an irritable myopathy, an underlying diagnosis of myositis
was "very unlikely." 23 Since Dr. Lloyd was unable to ascertain the etiology of plaintiff's
severe dyspnea on exertion, he recommended an evaluation by a rheumatologist. 24
Plaintiff was referred to Carol Ziminski, M.D. ("Dr. Ziminski"), a rheumatologist at
Good Samaritan Hospital. 25 Dr. Ziminski examined plaintiff on June 16, 2010 and found
no evidence of an underlying cardiopulmonary disease, and no joint symptomatology
for any rheumatological condition. 26 During a follow up visit on September 23, 2010, Dr.
Ziminski noted no signs of myopathy and was unable to diagnose a specific rheumatic
On August 12, 2010 plaintiff was evaluated by Beshara Helou, M.D. ("Dr. Helou")
at Delaware Disability Determination Service. 28 At that time, plaintiff's main complaints
at 487, 559, 561.
were severe fatigue and shortness of breath which prohibited work. 29 Regarding
fatigue, Dr. Helou recorded that plaintiff suffered "[s]evere deconditioning ...
disproportionate to his workup." 30 Dr. Helou found his pulmonary and cardiovascular
status stable and questioned whether an underlying collagen disease process was
causing fatigue. 31
Plaintiff returned to Dr. Lloyd on October 22, 2010, on the recommendation of
Dr. Theresa Michelle who diagnosed the dyspnea as probably caused by a neurological
problem. 32 At this appointment, plaintiff stated his symptoms stabilized over the last
four months. 33 Dr. Lloyd assessed that the most likely cause was an unclear
neurogenic etiology for diaphragmatic weakness. 34 An electromyography ("EMG") test
and muscle biopsy were performed. 35 Based on the results of the EMG, Dr. Lloyd
concluded that the dyspnea on exertion was not caused by a nerve or muscle
problem. 36 The muscle biopsy revealed minor myopathy. 37
Dr. Lloyd referred plaintiff to Noah Lechtzin, M.D. ("Dr. Lechtzin"), a
pulmonologist at Johns Hopkins University. 38 Dr. Lechtzin evaluated plaintiff on May 9,
2011 and found that "[w]hile no exact diagnosis has been confirmed, he has biopsy
evidence of myopathy and it is my opinion that he has respiratory muscle weakness
contributing to his symptoms," which would not improve within the next twelve months. 39
Dr. Lechtzin further concluded some mild diaphragmatic weakness may continue. 40
Plaintiff saw Fran D. Kendall, M.D. ("Dr. Kendall") on February 7, 2012 for a
consultative exam. 41 Dr. Kendall noted plaintiff suffered from "weakness, exercise
intolerance and fatigue" for two years. 42 He also noted plaintiff's previous tests,
including the EMG which showed "mild, non irritable myopathy," disclosed no clear
etiology. 43 Dr. Kendall recommended plaintiff follow up with Johns Hopkins regarding
residual muscle weakness and offered a referral to Baylor Genetics Laboratory for
mitochondrial enzymology and to Dr. Haller for glycolytic enzyme studies. 44
Finally, plaintiff was evaluated by Payam Sotanzadeh, M.D. and Stephen Reich,
M.D. at the University of Maryland. 45 The doctors concluded the previous biopsy of
February 18, 2011 indicated mild, but not abnormal myopathy. 46 They determined
fatigue was limited to plaintiff's lower extremities with none evidenced in the upper
extremities, 47 since "he was able to do 20 sit-ups from a sitting position without using
hands to a standing position in less than 60 seconds." 48 Further, plaintiff demonstrated
no fatigue when counting to 40. 49
Physical Residual Functional Capacity Evaluation
A physical residual functional capacity evaluation ("RFC") was completed by
Gurcharan Singh, M.D. ("Dr. Singh"), a state agency physician, on February 16, 2010. 50
Dr. Singh determined plaintiff could occasionally lift and/or carry twenty pounds and
frequently lift and/or carry ten pounds, stand and/or walk for six hours and sit for a total
of six hours in an eight hour workday, and push/pull without limitation. 51 Dr. Singh
based his conclusions on Dr. Helou's August 12, 2010 exam which "found claimant in
no apparent distress." 52 Dr. Singh further noted plaintiff could occasionally climb, stoop,
kneel, crouch and crawl, but should not balance, with no limits regarding manipulation,
vision, or communication. 53 Lastly, Dr. Singh found plaintiff should avoid concentrated
exposure to extreme cold, extreme heat, hazards, and fumes, odors, dusts, gases, poor
ventilation, and the like. 54
Physical Capacities Evaluations
Plaintiff underwent several physical capacities evaluations by his treating
physicians. On April 7, 2011, his primary care physician, Harry Anthony, M.D. ("Dr.
Anthony"), concluded plaintiff could sit for four hours and stand/walk for two hours a
work day with alternate sitting and standing, and could not perform fine hand
manipulation or repetitive hand motion tasks, such as typing, due to tremors. 55 He
further noted plaintiff could occasionally lift up to ten pounds, and never climb, balance,
kneel, crouch, or crawl, but could occasionally stoop or reach above shoulder level. 56
Dr. Anthony diagnosed plaintiff as suffering from disabling fatigue and disabling pain. 57
Dr. Herrera performed a physical capacities evaluation on April 12, 2011, finding
plaintiff suffered from severe fatigue. 58 Unlike Dr. Anthony, however, Dr. Herrera did
not conclude plaintiff's pain was disabling. 59 Dr. Herrera determined plaintiff could
occasionally lift up to ten pounds, sit for two hours, and stand for one hour during an
eight hour work day. 60 She recommended plaintiff never climb, balance, kneel, crouch,
crawl or reach above shoulder level, and only occasionally stoop. 61 In a later evaluation
on January 23, 2012, Dr. Herrera reported plaintiff could occasionally lift up to twenty
pounds and occasionally climb, stoop, kneel, crouch, crawl or reach above shoulder
level, but never balance. 62 He also determined plaintiff continued to experience
disabling fatigue. 63
Dr. Lechtzin performed a physical capacities exam on December 20. 2011,
finding plaintiff experienced disabling fatigue. 64 Similar to Dr. Herrera, Dr. Lechtzin did
not find that the pain was disabling. 65 He recommended plaintiff could lift/carry up to
five pounds occasionally, never climb, kneel, crouch, or crawl, and occasionally
balance, stoop, or reach above shoulder level. 66 He found plaintiff could stand/walk for
one hour during an eight hour work day, but could use his hands for repetitive motion
and fine manipulation. 67 Interestingly, during a subsequent physical capacities
evaluation on February 16, 2012 Dr. Lechtzin noted plaintiff could occasionally lift up to
twenty ponds, but continued having disabling fatigue. 68
Administrative Law Hearing
At the hearing before the ALJ on April 10, 2012, plaintiff was represented by
counsel and testified. An independent vocational expert ("VE") also testified.
Testimony of Plaintiff
Plaintiff testified that he left his job as an assistant manager at Ace Hardware
store in February 2010 because of fatigue which required him to rest on a regular
basis. 69 To illustrate his fatigue, he detailed a typical day as arising at 6:00 a.m. and
preparing his children for the school bus by 7:00 a.m. 70 Thereafter, he rests until 10:00
a.m. and uses his laptop while reclining. 71
If plaintiff does not rest, he experiences shaking which impairs grasping,
manipulating objects, and fine motor skills. 72 He is able to drive, but limits his travel to
twice a week and short distances, such as to the grocery store. 73
Plaintiff further testified about the treatment for fatigue and pain and claimed
difficulty with concentration and depression. 74 He uses a microwave or slow cooker to
prepare dinner and does laundry twice a week. 75
Plaintiff enjoys a dinner out about once a month, but such outings completely tire
him. 76 He attends a weekly forty-five minute church service which requires a
rest/recovery period afterward. 77 He can only walk about 100 feet before he starts to
experience shortness of breath. 78
Testimony of Vocation Expert
During the hearing, the ALJ consulted a VE, Tony Melanson, who classified
plaintiff's past work as an inventory clerk as light and semiskilled and work as an
assistant manager of a hardware store as medium and skilled. 79 Melanson testified that
plaintiff's sales skills were transferrable to light jobs, such as a sales clerk position, but
he had no transferable computer skills for this sedentary position. 80
The ALJ asked the VE to consider a hypothetical person who was forty-two
years old at the alleged onset date, has a high school education, a work history, and
symptoms similar to plaintiff. 81 According to the VE, the only position available was as
an evening security monitor which is a sedentary and unskilled job. 82 There are
approximately 200 of those positions locally and 75,000 in the national economy. 83 The
ALJ then posed an alternative hypothetical where the individual could occasionally
perform fine manipulation and dexterity. 84 The VE testified such a person could work as
an order clerk or as an addresser of which there are 125 jobs in the local region and
60,000 in the national economy. 85 The VE also testified plaintiff could not return to his
past employment. 86
Findings of the ALJ
On April 19, 2012, the ALJ issued the following findings:
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2015.
2. The claimant has not engaged in substantial gainful activity since
February 16, 2010, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: degenerative disc
disease and/or arthritis and/or idiopathic myopathy, and depression (20
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 sedentary
work as defined in 20 CFR 404.1567(a), but needs jobs that are simple,
routine, and unskilled, SVP 1 or 2, with low stress, low concentration, and
low memory, defined as jobs that are one or two step tasks, no production
rate work, little or no decision-making, changes in the work setting, or
judgment to perform the work, subject to usual and customary breaks
during an eight-hour workday, occasional interaction with the public,
coworkers, and supervisors, jobs that allow him to deal with things rather
than people, is able to lift 10 pounds occasionally and lesser amounts
frequently, could sit for 30 minutes and stand for 10 minutes, consistently,
Id. at 150.
on an alternate basis, or at will, over an eight hour workday, five days a
week, and would need to avoid heights and hazardous machinery,
temperature and humidity extremes, stair climbing, ropes, and ladders,
needs jobs that require only occasional fine dexterity and manipulation
due to occasional tremors, and jobs that allow him to avoid odors, gasses,
fumes, dust and like substances due to mild COPD.
6. The claimant is unable to perform any past relevant work (20 CFR
7. The claimant was born on September 13, 1967 and was 42 years old,
which is defined as a younger individual age 18-44, 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 ).
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 82041 and 20 CFR 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 February 16, 2010, through the date of the decision (20
CFR 404.1520(g)). 87
Standard of Review
Motion for Summary Judgment
Both parties moved for 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 non-moving party[,)' but [refraining from] weighing
D.I. 5 at 101.
the evidence or making credibility determinations." 88 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. 89
This standard does not change merely because there are cross-motions for
summary judgment. 9 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. 91
"The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party." 92
Review of the ALJ's Findings
Pursuant to 42 U.S.C. § 405(g), 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 contain substantial evidence to support the ALJ's decision. The Commissioner's
factual decisions are upheld if supported by substantial evidence. 93 Substantial
evidence means less than a preponderance, but more than a mere scintilla of
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation
See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R.
CIV. P. 56 (c)).
Appelmans v. City of Phi/a., 826 F.2d 214, 216 (3d Cir. 1987).
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
Krupa v. New Castle Cnty., 732 F. Supp. 497, 505 (D. Del. 1990).
See 42 U.S.C. §§ 405(g), 1383(c)(3); see also Monsour Med. Ctr. v. Heckler,
806 F.2d 1185, 1190 (3d Cir. 1986).
evidence. 94 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." 95
In determining whether substantial evidence supports the Commissioner's
findings, the court may not undertake a de novo review of the decision nor re-weigh the
record evidence. 96 The court's review is limited to the evidence that was actually
presented to the ALJ. 97 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. 98
Thus, the inquiry is not whether the court would have made the same determination,
but rather, whether the Commissioner's conclusion was reasonable. 99 Even if the court
would have decided the case differently, it must defer to and affirm the ALJ so long as
the decision is supported by substantial evidence. 100
Where 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. 101 In SEC v. Chenery Corp., the United States Supreme Court
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
Monsour, 806 F.2d at 1190-91 .
Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001 ).
Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
Monsour, 806 F.2d at 1190-91.
Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.D. Pa. 2011 ).
[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. 102
The Third Circuit has recognized the applicability of this finding in the social
security disability context. 103 This court's review is limited to the four corners of the
ALJ's decision. 104 In social security cases, the substantial evidence standard applies to
motions for summary judgment brought pursuant to FED. R. C1v. P. 56(c). 105
Title II of the Social Security Act, 42 U.S.C. § 423(a)(1 )(D), "provides for the
payment of insurance benefits to persons who have contributed to the program and
who suffer from a physical or mental disability." 106 In order to qualify for DIB, the
claimant must establish he was disabled prior to the date he was last insured. 107 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 twelve
332 U.S. 194, 196 (1947).
Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001 ).
Cefalu v. Barnhart, 387 F. Supp. 2d 486, 491 (W.D. Pa. 2005).
See Woody v. Secy of the Dep't of Health & Human Servs., 859 F.2d 1156,
1159 (3d Cir. 1988).
Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
20 C.F.R. § 404.131.
months. 108 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." 109
In determining whether a person is disabled, the Commissioner is required to
perform a five-step sequential analysis. 110 If a finding of disability can be made at any
point in the sequential analysis, the Commissioner will not review the claim further. 111
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. 112 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. 113
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. 114 When a claimant's
impairment or its equivalent matches an impairment in the listing, the claimant is
presumed disabled. 115 If a claimant's impairment, either singularly or in combination,
42 U.S.C. §§ 423(d)(1 )(A), 1382(c)(a)(3).
42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
20 C.F.R. § 404.1520(a)(4).
20 C.F.R. § 404.1520(a)(4).
20 C.F.R. § 404.1520(a)(4)(i).
20 C.F.R. § 404.1520(a)(4)(ii).
20 C.F.R. § 404.1520(a)(4)(iii); see a/so Plummer v. Apfel, 186 F.3d 422, 42728 (3d Cir. 1999).
20 C.F.R. § 404.1520(a)(4)(iii).
fails to meet or medically equal any listing, the analysis continues to steps four and
five. 116 At step four, the Commissioner determines whether the claimant retains the
RFC to perform her past relevant work. 117 A claimant's RFC is "that which an individual
is still able to do despite the limitations caused by [his] impairment(s)." 118 "The claimant
bears the burden of demonstrating an inability to return to [his] past relevant work." 119
If the claimant is unable to return to his past relevant work, step five requires the
Commissioner to determine whether the claimant's impairments preclude him from
adjusting to any other available work. 120 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. 121 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. 122
The ALJ considered plaintiff's need for simple, routine, unskilled, low stress jobs,
requiring only occasional fine dexterity and manipulation, with an alternating sit/stand
option or at will, and limitations on heights, hazardous machinery, temperature and
20 C.F.R. § 404.1520(e).
20 C.F.R. § 404.1520(a)(4)(iv); see a/so Plummer, 186 F.3d at 428.
Fargnoli, 247 F.3d at 40 (quoting Burnett v. Comm'r of Soc. Sec. Admin., 220
F.3d 112, 121 (3d Cir. 2000)).
Plummer, 186 F.3d at 428.
20 C.F .R. § 404.1520(g) (mandating finding of non-disability when claimant
can adjust to other work); see a/so Plummer, 186 F .3d at 428.
Plummer, 186 F.3d at 428.
humidity extremes, odors, gases, fumes, dust, bending, and climbing stairs, ropes, and
ladders. 123 Although, VE testified plaintiff was capable of working as an off-hours
addresser and surveillance security monitor, plaintiff contends he is precluded from
performing both jobs. Plaintiff argues off-hours addresser is precluded because he is
restricted to simple, routine, and unskilled jobs requiring only occasional fine dexterity
and hand manipulation. 124 Plaintiff argues a surveillance security monitor exceeds his
restriction to simple, routine, and unskilled work. 125
The final step of the disability analysis requires the ALJ to determine whether a
claimant can perform work existing in the national economy. 126 The SSA relies on the
Dictionary of Occupational Titles ("DOT") for specific requirements of each position. 127
Under the regulations, an ALJ is encouraged to use the expertise of an VE in deciding a
claimant's occupational capabilities. 128 In making the determination, job requirements
from the DOT and VE testimony are compared to the claimant's residual functional
capacity, age, education, and work experience to assess whether a claimant is able to
perform that occupation. An ALJ's finding that the claimant can perform employment
existing in the national economy must be supported by substantial evidence. 129 A
minimal number of jobs of a particular type existing nationally is sufficient to
D.I. 11 at 5-8.
20 C.F.R. § 404.1520(g).
20 C.F.R.§ 404.1566(e).
20 C.F.R. § 404.1520(g); SSR 00-4p.
demonstrate "that [such work] exists in the national economy." 130
ALJ found plaintiff able to perform "simple, routine, and unskilled" work
catorgorized as a SVP one or two, that is "low stress, low concentration, and low
memory," and limited to "one or two step tasks" which require little or no decisionmaking and judgment. 131 The ALJ further recognized plaintiff was limited to "occasional
fine dexterity and manipulation." 132
Plaintiff argues off-hours addresser is precluded because he is restricted to
simple, routine, and unskilled jobs requiring only occasional fine dexterity and hand
manipulation. 133 The restriction of simple and routine work does not preclude
employment in this position, but the restriction of jobs requiring only occasional fine
dexterity and hand manipulation does preclude this job.
The restriction of simple and routine work does not preclude plaintiff from an
addresser position. Plaintiff can perform level two work. An addresser is a level two
reasoning occupation, which requires "commonsense understanding to carry out
detailed but uninvolved written or oral instructions; to deal with problems involving a few
concrete variables from standardized situations." 134 Jones v. Astrue held a VE's
recommendation of a level two reasoning job was not contradicted by a claimant's need
Craigie v. Bowen, 835 F.2d 56, 58 (3d Cir.1987) (citing Dumas v. Schweiker,
712 F.2d 1545 (2d Cir.1983)).
D.I. 5 at 103.
D.I. 11 at 7-8.
for "simple, repetitive tasks." 135 The Third Circuit recognizes that a level two reasoning
position is consistent with simple, routine, and repetitive work. 136 Plaintiff's limitations
for simple, unskilled work are not incongruous with level two reasoning occupations.
However, plaintiff's physical limitations preclude this position.
The DOT description of an addresser indicates the position is a SVP of two and
provides: "addresses by hand or type writer, envelopes, cards, advertising literature,
packages, and similar items for mailing. May sort mail." 137
The primary task to address an envelop by hand or typewriter demands constant
hand manipulation, dexterity, and ease of hand movement. It requires the ability to
continually grasp a pen and write or type an address on a keyboard, affix a label to an
package, stuff envelops, and sort mail. Because plaintiff is limited to occasional fine
dexterity and hand manipulation, in light of the ALJ findings, the job requirements of
addresser exceed plaintiff's abilities.
Surveillance Security Monitor
Plaintiff asserts his limitation to SVP one or two and need for simple and
unskilled work preclude this position. 138 A surveillance system monitor is classified by
the DOT as unskilled with a level three reasoning. 139 The DOT lists the maximum
requirements of occupations, however, a VE may testify about the specific requirements
for a particular job. 140 Social Security Ruling 00-4p states that the "Commissioner's
Jones v. Astrue, 570 F. Supp. 2d 708, 716 (3rd Cir. 2008).
Money v. Barnhart, 91 Fed. App'x 210, 215 (3d Cir. 2004).
See DOT code 209.587-010.
D.I. 11 at 5-7.
See DOT code 379.367-010.
regulatory definitions of skill levels are controlling. Therefore, it would be inconsistent
with the Commissioner's regulations to rely on maximum reasoning levels as defined by
the DOT to argue that the mental demands of surveillance system monitor exceed
those for simple unskilled work." 141 Nevertheless, an ALJ must address and resolve
any material inconsistencies or conflicts between the DOT descriptions and a VE's
testimony; the failure to do so may necessitate remand. 142 SSA policy memo 09-2139
provides the ALJs should consider ratings that may appear to conflict with a claimant's
RFC and the cited occupation "for example, an occupation with a GED reasoning level
of 3 or higher for a claimant who is limited to performing simple, routine or unskilled
In the instant matter, the ALJ did not resolve conflicts between the DOT
descriptions and the VE's testimony, requiring remand.
Other Inadequacies Asserted
Plaintiff claims the ALJ was not specific as to the frequency needed to alternate
sitting and standing. Plaintiff is incorrect. The ALJ found plaintiff "could sit for 30
minutes and stand for 10 minutes, consistently, or on an alternate basis or at will, over
an eight hour workday, five days of week." 144 Plaintiff further argues that the ALJ's
hypothetical question to the VE was confusing because it allowed for sitting or standing,
"on an alternate basis, ... or at will." 145 The record does not substantiate any VE
20 C.F.R. §§ 404.1598(a), 416.968(a); see also Green v. Astrue, No. Civ. A.
10-468, 2010 WL 4929082, at *5 (W.D. Pa. Nov. 30, 2010).
Boone v. Barnhart, 353 F.3d 203, 206 (3d Cir. 2004).
SSA 09-2139 (citing POMS DI 25015.030).
D.I. 5 at 103.
D.I. 11 at 8.
confusion. The VE did not hesitate in his response. Moreover, plaintiff failed to clarify
the ALJ's question or VE's answer.
Plaintiff also contends whether the VE identified jobs that are available on a full
time basis, taking issue with the words "off hours" and "monitoring work, maybe in the
evening hours." Plaintiff fails to develop this claim, never citing why off hours or
evening work would not be full-time. Plaintiff again failed to seek clarification from the
VE or ALJ regarding this issue.
Weight Accorded to Medical Evidence Provided by Physicians
Plaintiff argues the ALJ failed to comply with regulations in weighing the medical
evidence. Only the ALJ, not a physician, makes the ultimate disability and RFC
determinations. 146 No medical opinion, even a treating physician's opinion, is binding
on the ALJ. 147 The ALJ prescribes weight to a medical opinion according to the medical
evidence submitted, including findings on examination and the extent of the treatment
relationship, consistency in the record, specialization of the physicians, and other
factors. 148 Controlling weight may be given to a treating source if the medical opinion is
well-supported by clinical and laboratory diagnostics and not inconsistent with the
record evidence. 149 When conflicting medical conclusions exist, "the ALJ is not only
entitled but required to choose between them." 150 The ALJ cannot reject evidence for
no reason, and must explain why evidence has been discounted. 151
Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011 ).
Brown v. Astrue, 649 F.3d 193, 197 (3d Cir. 2011 ).
20 C.F.R. § 404.1527.
Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981 ).
Id. at 706-07.
In this matter, the ALJ afforded less weight to Drs. Herrara and Lechtzin's
opinions because they were not supported by medical evidence and/or consistent with
the record as a whole. 152
The ALJ found Dr. Herrara's opinion was primarily based on plaintiff's subjective
complaints and unsubstantiated by medical evidence. 153 According to Dr. Herrara,
plaintiff's inability to work was "per patient." 154 In 2011, Dr. Herrara's records noted that
overall plaintiff was doing well with joint pain controlled on medication. Dr. Herrara
specifically reported plaintiff "wants me to support him for his disability, but I do not
know why he was [sic] his symptoms and I do not know how to treat him for fatigue and
shortness of breath." 155 In 2012, he observed that plaintiff's fatigue was mostly
resolved, and was unable to discern clear etiology for plaintiff's condition. 156
Dr. Lechtzin's medical opinion changed between 2011 to 2012 without
justification or any indication of additional or worsening clinical issues to substantiate
the modification of plaintiff's sit/stand restrictions. 157 Dr. Lechtzin performed multiple
diagnostic tests: x-rays, pulmonary function studies, and chest and lung exams finding
no clear etiology for plaintiff's fatigue. 158 Therefore, the ALJ rejected Dr. Lechtzin's
conclusion that plaintiff suffered from disabling fatigue and could not sit/stand for more
than one hour in an eight hour work day. 159
D.I. 5 at 108.
Id. at 109.
Id. at 109.
Id. at 109-10.
The ALJ accorded more weight to Dr. Singh's opinion, to the extent the opinion
"was consistent with the evidence on the record." 160 The record indicates plaintiff's
medical impairment was "expected to produce some degree of fatigue, pain and
discomfort that would limit him to a sedentary exertional level." 161 The ALJ rejected Dr.
Singh's opinion that plaintiff does not have severe mental impairment because Dr.
Lamb, who examined and treated the plaintiff, found this condition existed, which was
supported by the medical evidence. 162
Ultimately, the ALJ weighs the medical opinions of record and resolves
conflicts. 163 If the evidence would allow a reasonable mind to reach the same
conclusion as the ALJ, then the ALJ's decision is supported by substantial evidence
and must be sustained. 164 In this instance, the ALJ's rationale is supported by
Plaintiff's Subjective Complaints
The ALJ found plaintiff's complaints "concerning the intensity, persistence and
limiting effects of [his] symptoms ... not credible to the extent" they were inconsistent
with the RFC assessment. 165 Plaintiff reported constant, severe, fatigue, and pain and
joint stiffness. The ALJ found the medical evidence from treating sources
demonstrated plaintiff's symptoms were attributed mostly to obesity and deconditioning,
Id. at 110.
Richardson v. Perales, 402 U.S. 389, 401 (1971 ).
D.I. 5 at 105.
with moderate joint pain controlled on medication, and the fatigue resolved. 166 The ALJ
further determined the medical evidence did not substantiate disabling hand tremors
because plaintiff testified he did not need medication for the tremors. 167 The ALJ
accounted for plaintiff's subjective complaints that were supported by the record, as
evidenced by the RFC assessment in Finding 5. 168
ORDER AND RECOMMENDED DISPOSITION
For the reasons contained herein, it is recommended that:
(1) Plaintiff's motion for summary judgment (D.I. 10) be GRANTED in part, and
DENIED in part.
(2) Defendant's cross-motion for summary judgment (D.I. 15) be GRANTED in
part, and DENIED in part.
(3) The matter be remanded in part in further consideration consistent with this
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1 )(8),
FED. R. C1v. 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
The parties are directed to the Court's Standing Order in Non-Pro Se matters for
Objections Filed under FED. R. C1v. 72, dated October 9, 2013, a copy of which is
available on the Court's website, www.ded.uscourts.gov.
Id. at 105, 106, 666, 688, 757, 839.
Id. at 104.
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