Walker v. Colvin

Filing 23

MEMORANDUM OPINION. Signed by Judge Sherry R. Fallon on 10/13/2016. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

SHAWN WALKER,
Plaintiff,
v.
CAROLYNW. COLVIN,
Commissioner of
Social Security,
Defendant.

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Civ. No. 14-458-SRF

David J. Lyons, Esquire, of The Lyons Law Firm, Wilmington, DE. Counsel for Plaintiff.
Charles M. Oberly, III, United States Attorney and Dina Griffin, Special Assistant United States
Attorney, Office of the General Counsel Social Security Administration, Wilmington, Delaware.
Counsel for Defendant. Of Counsel: Nora Koch, Acting Regional Chief Counsel and Erica Perkins,
Assistant Regional Counsel, Office of the General Counsel Social Security Administration,
Philadelphia, Pennsylvania.

MEMORANDUM OPINION

Dated: October j-:?;2016
Wilmington, Delaware

FALLON, MAGISTRATE JUDGE
I.

INTRODUCTION

Plaintiff Shawn Walker ("Walker") filed this action on April 11, 2014 against defendant
Carolyn W. Colvin, the Commissioner of the Social Security Administration (the
"Commissioner"). Walker seeks judicial review pursuant to 42 U.S.C. § 405(g) of
Administrative Law Judge, Melvin D. Benitz's, October 26, 2012, decision denying Walker's
claim for disability benefits ("DIB") and supplemental security income ("SSI") under Title II and
Title XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-434 and§§ 1381-1383f. The
court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).
On June 10, 2014, the parties consented to the jurisdiction of a U.S. Magistrate Judge.
The matter was reassigned to the undersigned Magistrate Judge to conduct all proceedings
through final judgment. (D.I. 8)
Currently before the court are Walker's and the Commissioner's cross-motions for
summary judgment. (D.I. 13; D.I. 19) Walker asks the court to enter an award of benefits or,
alternatively, to remand his case for further administrative proceedings. (D.I. 14 at 1) The
Commissioner requests that the court affirm the ALJ's decision. (D.I. 20 at 20) For the reasons
set forth below, Walker's motion for summary judgment is denied and the Commissioner's
cross-motion for summary judgment is granted.
II.

BACKGROUND
A.

Procedural History

Walker filed DIB and SSI applications on April 16, 2010, claiming a disability onset date
of March 25, 2010. (D.I. 11; Tr. at 40-41, 132-33, 134-40). Walker's claim was initially denied
on January 5, 2011, and denied again after reconsideration on August 16, 2011. (Tr. at 77-81,

2

84-88) On October 26, 2012, after a hearing on October 11, 2012, the Administrative Law
Judge, Melvin D. Benitz (the "ALJ"), issued an unfavorable decision, finding Walker was not
disabled under the Act for the relevant time period from March 25, 2010 to October 26, 2012.

(Id. at 20-31) The Appeals Council subsequently denied Walker's request for review on March
7, 2014, and the ALJ' s decision became the Commissioner's final decision. (Id. at 1--4) On
April 11, 2014, Walker brought a civil action in this court challenging the ALJ's decision. (D.I.
1)

B.

Medical History
1. Health history prior to relevant period

Walker was born in 1967, and was forty-three years old on his alleged onset date. (Tr. at
132--40) He is considered a younger individual under 20 C.F.R. 404.1563(c). Walker completed
high school and has Baccalaureate degrees in biology and nursing. (Id. at 52) He worked as a
registered nurse until his disability onset date. (Id. at 29, 153-54) He first injured his neck in
1995 in a motor vehicle accident. (Id. at 703-04) In 1995, he had a C6-C7 anterior cervical
discectomy and fusion ("ACDF"). (Id. at 452-53) He made a successful recovery from the
surgery. (Id. at 696-98). To address increased neck pain after another accident on July 7, 2009,
Dr. Bikash Bose performed a second ACDF procedure on December 1, 2009 at the C4-C5 and
C5-C6 levels, with a disc replacement at C3-C4. (Id. at 432-33, 452-53) Post surgery, Walker
became addicted to prescription pain medication. (Id. at 289, 384, 399, 469) Walker sought
treatment for suicidal thoughts or attempts in 2004, 2007, and 2009. (Id. at 57, 362-66, 658).
Walker was admitted to Meadow Wood Behavioral Health following the first attempt, and he
was admitted to the Rockford Center following the 2007 and 2009 attempts. (Id. at 469)

3

By January 4, 2010, Walker was doing well, and Dr. Bose instructed him to start driving,
resume activities, lift no more than twenty to twenty-five pounds, and wean off medication. (Id.
at 429) In a January 12, 2010, medical evaluation report, Dr. Leonard Katz noted that Walker
reported reduced physical and mental symptoms. (Id. at 274-75) Walker's neck remained stiff
and painful. (Id. at 274-75) On examination, Walker was oriented to time, place, and person,
although he seemed somewhat nervous. (Id. at 277) Dr. Katz diagnosed him as being in a
recuperative state following the surgery with some marked restrictions in the upper extremities.
(Id. at 278) He expected Walker would be able to return to work in three to six months. (Id. at
278-79) On February 1, 2010, Dr. Bose again reported that Walker was doing well and
recommended that Walker start a physical therapy program. (Id. at 428) On February 15, 2010,
Dr. Bose wrote a note excusing Walker from work until February 22, 2010. (Id. at 458)

2. Health history during the relevant time period
At his disability hearing, Walker alleged disability based on: (1) cervical radiculopathy 1
with hand numbness and shoulder pain; (2) major depressive disorder; and (3) generalized
anxiety disorder. (Id. at 153)
Walker testified that Dr. Bose instructed him to stop working on March 25, 2010. (Id. at
41) The record reflects that Dr. Bose examined Walker on March 26, 2010, and noted that
Walker was improving overall and had been weaned off pain medication patches. (Id. at 427)
Walker told Dr. Bose that his employer would not allow him time off to start a physical therapy
program despite Dr. Bose's recommendation for physical therapy. (Id.) At the time of the

1

Radiculopathy refers to cervical nerve irritation. It can cause pain, numbness, or weakness. It
occurs when a nerve in the neck is irritated as it leaves the spinal canal. UNIVERSITY OF
MARYLAND MEDICAL CENTER, http://umm.edu/programs/spine/health/guides/cervicalradiculopathy (last visited Oct. 12, 2016).

4

examination, Dr. Bose filled out a medical certification form for the Delaware Division of Social
Services indicating that Walker was unable to work for six to twelve months due to cervical
radiculopathy. (Id. at 272)
Walker saw Dr. Bose, again, on June 22, 2010, and he reported having low back pain
after falling twice. (Id. at 426) While noting that Walker's neck was doing well, Dr. Bose
recommended that Walker have an MRI and X-rays to address the low back pain. (Id.) Dr. Bose
reported that the MRI showed some evidence oflumbar disc disease at L3-L4 and L4-L5. (Id.
at 425) He advised Walker to start physical therapy and Motrin, but he noted that Walker was
receiving in-patient care in a drug rehabilitation facility, and would have to delay the start of his
physical therapy program. (Id.)
Walker's father, James J. Walker, completed a third party function report for the Social
Security Administration on August 1, 2010. (Id. at 168-80) Walker's father stated that when
Walker was home, despite his condition and frequent pain, Walker's daily activities included
reading the paper, watching television, spending time on the computer, attempting exercises
recommended by his physician, cleaning cat litter boxes, doing laundry, and going grocery
shopping. (Id. at 171-76) However, Walker's father noted that Walker's condition limited his
ability to do physical activity, and it was difficult for him to sleep at night. (Id. at 172)
Walker prepared responses to a pain questionnaire on August 2, 2010. (Id. at 200-02)
He indicated that he had constant neck and back pain, and that he used a bone stimulator and
stretches to help relieve the pain. (Id. at 200-01) His usual activities included attending group
sessions and walking. (Id. at 201)

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On September 27, 2010, Dr. Bose wrote a second disability certification stating that
Walker was unable to work for an additional six to twelve months due to his prior surgery to
treat cervical radiculopathy. (Id. at 41 7)
On December 6, 2010, Kimberlyn Watson, Ph.D. prepared a mental health report on
Walker for purposes of the disability determination process. (Id. at 467) Dr. Watson recounted
Walker's history of suicide attempts, depression, anxiety, and drug addiction. (Id. at 469-70)
She noted that Walker was well oriented, cooperative, had at least average intellectual skills, no
language problems, and intact social judgment and thought. (Id.) Dr. Watson opined that he was
suffering from a moderate to moderately high level of depression, and a moderate level of
anxiety. (Id. at 470) However, Walker reported that taking his medication was helpful. (Id. at
468, 470) Dr. Watson gave Walker a GAF score of 56. 2 (Id. at 471)
Similarly, on December 13, 2010, Dr. Kelly Heath conducted a physical evaluation and
prepared a report for the purpose of Walker's disability determination. (Id. at 472) Dr. Heath
noted deficits with the cervical and lumbar spine. (Id. at 473) She diagnosed Walker with

2

The GAF scale ranges from 0 to 100 and is used by a clinician to indicate his overall judgment
of a person's psychological, social, and occupational functioning on a scale devised by the
American Psychiatric Association. Robinson v. Colvin, Civ. No. 14-662-SLR, 2015 WL
5838469, at *4 n.9 (D. Del. Oct. 5, 2015) (citing American Psychiatric Association, Diagnostic
& Statistical Manual of Mental Disorders (Text Revision, 4th ed. 2000) (DSM-IV-TR)). A GAF
of 31-40 indicates "[sJome impairment in reality testing or communication (e.g., speech is at
times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or
school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends,
neglects family, and is unable to work ... )." Id. A GAF of 41-50 indicates "[sJerious symptoms
(e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a
job)." Id. A GAF of 51-60 indicates "[mJoderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school
functioning (e.g. few friends, conflicts with peers or co-workers)." Id. A GAF of 61-70
indicates "[ sJome mild symptoms (e.g. depressed mood and mild insomnia) OR some difficulty
in social, occupational, or school functioning ... , but generally functioning pretty well, has some
meaningful interpersonal relationships." Id.
6

cervical radiculopathy, lumbar mechanical back pain with possible radiculopathy at L3-L4,
anxiety, and depression. (Id. at 474) Dr. Heath opined that Walker would have lifelong neck
pain, and that he would benefit from weight loss and exercise to manage the low back pain. (Id.)
She also found that he was limited by his anxiety in novel and stressful situations. (Id.) Dr.
Heath opined that Walker was able to walk, drive, and speak without difficulty, but he was
unable to sit with normal rest breaks; stand for more than ten minutes; lift more than five pounds;
or do sedentary work for up to eight hours. (Id.)
Walker also visited primary care physicians, Dr. Seth Ivins and Dr. Judy Lim, during the
relevant time period. On February 4, 2011, Dr. Ivins completed a functional capacity
questionnaire in preparation for Walker's disability hearing. (Id. at 520-25) Dr. Ivins indicated
that Walker experiences chronic neck pain, exacerbated by lifting more than 15 pounds or by
being in one position for more than fifteen minutes, and lumbar disc disease and stenosis. (Id. at
520, 526) He indicated that Walker would be able to stand for two hours and sit for four hours
total in any given work day, but he would never be able to lift more than twenty pounds. (Id. at
523, 527) Dr. Ivins opined that Walker's pain or other symptoms were severe enough to
frequently interfere with attention and concentration, but that Walker was capable of low stress
jobs. (Id. at 522) However, Dr. Ivins noted that Walker was likely to be absent more than four
days per month as a result of his condition. (Id. at 524, 528) Dr. Ivins expected Walker's
condition to last at least twelve months. (Id. at 521, 526)
On February 21, 2011, Dr. Bose referred Walker to Dr. Pramod Yadhati for lumbar
injections, as Walker's cervical evaluation was within normal limits, but he still complained of
pain in his lower back. (Id. at 536) Dr. Yadhati reported that Walker complained of low back
pain with radiation down his right lower extremity and numbness in his toes. (Id. at 724)

7

Standing, lifting, pushing, pulling, and bending aggravated his pain. (Id.) Walker told Dr.
Yadhati that he attended physical therapy in 2010 for strength training, but the treatment did not
address his pain. (Id.) Dr. Yadhati administered five lumbar injections through August 1, 2012.
(Id. at 743-57) Walker reported significant relief following the May 2011 injection, until the

pain recurred in March of 2012. (Id. at 733) As a result, he returned to Dr. Yadhati on June 4,
2012 for another injection. (Id.) During a consultation on July 16, 2012, Walker reported that
his pain increases when performing yard work, but light activity kept his pain stable. (Id. at 730)
On June 24, 2011, Dr. Lim completed a medical certification form with respect to
Walker's disability determination. (Id. at 531) Dr. Lim reported that Walker would be unable to
work for at least a year due to low back pain and neck pain. (Id.) Despite these comments, she
wrote "light duty work" in the remarks section of the same form. (Id.)
From August 12, 2011 to October 4, 2012, Dr. Ivins indicated that Walker did not exhibit
any psychological signs of anxiety or depression, his musculoskeletal conditions were static, and
he was limited only by his range of motion in the lumbar spine. (Id. at 758-77) Walker
continued to report low back pain. (Id.) On June 7, 2012, Dr. Lim submitted a second medical
disability form, indicating that Walker would not be able to work for another year. (Id. at 692)
C.

The ALJ Hearing
1. Walker's testimony

Walker testified that his disability onset date was March 25, 2010, the day Dr. Bose
found him disabled for six months to a year from working as a registered nurse at Horizon
House. (Id. at 41) Walker also testified that he lost his nursing license around the same time for
stealing pain medication from a former employer after becoming addicted. (Id. at 42--43)

8

Walker stated that he took pain, anti-anxiety, cholesterol, and low testosterone
medications. (Id. at 44-45) He experienced some drowsiness as a side effect from taking the
medications. (Id. at 54) Walker also stated that his physician was treating his back and neck
pain with injections. (Id. at 46) He testified that he experienced pain in his neck, numbness,
tingling, and weakness in his upper extremities, and back pain and weakness all across his back
and into the lower extremities. (Id.) The injections provided relieflasting a few weeks to a
month, but he still had breakthrough pain that was not entirely resolved. (Id. at 46-4 7)
Walker explained that he lives with his parents and helped to cut the grass, sweep, cook,
and shop, but that he could not do any of those chores without pain. (Id. at 50-51) He
sometimes walked up to a quarter mile but did not go out socially with friends anymore because
it aggravated his back and neck pain. (Id. at 51-55) The depression and anxiety were
manifested though isolation, sleeping, and withdrawal. (Id. at 56)
Walker also testified that he could only lift about five to ten pounds without pain in his
shoulder, neck, and back. (Id. at 53) He could stand for an hour and sit for thirty minutes to an
hour. (Id. at 54) He testified that he was attending a vocational rehabilitation program in
expectation of finding a job. (Id.)
2. Walker's father's testimony

Walker's father testified that he and Walker perform most of the housework. (Id. at 58)
However, Walker was limited in most everything he did. (Id.) For example, Walker had limited
capacity for lifting or similar exertion and needed to rest and stretch a couple of times during
each day. (Id.) Walker's father acknowledged that Walker complained of pain, but Walker did
hot seem affected by depression, as he was able to engage in discussions about politics. (Id. at

59-60)

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3. Vocational expert testimony

The ALJ posed the following hypothetical to the vocational expert (the "VE"):
[A] person who is 43 years of age on his onset, has 12111 grade education plus a
degree in biology and some nursing, past relevant work as just indicated, right
handed by nature, suffering from generally mostly degenerative disc disease at the
cervical and lumbar area, more at the cervical. He suffers from depression. Treats
through his primary care doctor. And anxiety, somewhat relieved by his
medications, without significant side effects, but he indicates in his testimony that
he derives some drowsiness from one or a combination. And I find he's mildly
limited in his ability to perform is [sic] ADL's; moderately limited in his ability to
socialize; and moderately limited in his ability to maintain his concentration,
persistence and pace, one-third of the working day. Due to his depression, anxiety
and pain, and as a result would need to have simple, routine, unskilled jobs, [VE],
SVP: 1 or 2 in nature. He appears to be able to attend tasks and complete
schedules. Jobs that are low stress in nature, concentration and memory, and by
that I mean jobs that have little decision-making or changes in the work setting or
judgment to perform the work. One or two-step tasks. No production rate pace
work. And jobs that would have little interaction with the public, coworkers or
supervisors at this time. Jobs that allow him to deal with things rather than people.
And if I find he can lift ten pounds frequently, 20 on occasion; and stand for an
hour; can sit for an hour consistently on an alternate basis or at will; but would
need to avoid heights and hazardous machinery, temperature and humidity
extremes; and only occasional fine dexterity manipulation due to occasional
numbness in his upper extremities; and no repetitive neck turning jobs or
overhead reaching or stair climbing. All of these things during the usual and
customary breaks that allowed during a work day. Now with those limitations he
would be able to do some sedentary and light work activities, can you give me
jobs such a person could do with those limitations?
(Id. at 61-62) The VE testified that at the light exertional level, the individual described would
be able to work in occupations including hand bander, folder, or filler. (Id. at 62) The VE
further testified that at the sedentary level, the individual described would be able to work in
occupations including type copy examiner and surveillance system monitor. (Id. at 63) The VE
explained that none of Walker's prior work experience would apply. (Id.)

4. The ALJ's findings
Based on the factual evidence in the record and the testimony of Walker, his father, and
the VE, the ALJ determined that Walker was not disabled under the Act for the relevant time
10

period from March 25, 2010 through the date of the ALJ's decision, October 26, 2012. (Id. at
20) The ALJ found, in pertinent part:
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 March 25,
2010, the alleged onset date.
3. The claimant has the following severe impairments: depression and
cervical/lumbar degenerative disc disease (DDD).
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.
5. After careful consideration of the entire record, the undersigned finds that the
claimant had the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except; he must be able to sit for 1
hour, stand for 1 hour consistently on an alternative basis, 8 hours a day, 5
days a week. He must avoid temperature and humidity extremes, heights,
hazardous machinery and the climbing of stairs. There [sic] job must not
involve repetitive neck turning or overhead reaching. He can only
occasionally use his bilateral upper extremities for fine dexterity
manipulation. He can only perform simple routine unskilled jobs in nature that
involve low concentration, stress and memory with no decision-making,
judgment, or changes in the work setting and no production pace work, 1-2
step jobs. He can only occasionally interact with co-workers, the public and
supervisors.
6. The claimant is unable to perform any past relevant work.
7. The claimant was born on February 12, 1967 and was 43 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset
date.
8. The claimant has at least a high school education and is able to communicate
in English.
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.
11

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.
11. The claimant has not been under a disability, as defined in the Social Security
Act, from March 25, 2010, through the date of this decision.

(Id. at 22-31) (citations omitted)

III.

STANDARD OF REVIEW
Findings of fact made by the ALJ, as adopted by the Appeals Council, are conclusive if

they are supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3). Judicial
review of the ALJ' s decision is limited to determining whether "substantial evidence" supports
the decision. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). In making
this determination, a reviewing court may not undertake a de novo review of the ALJ' s decision
and may not re-weigh the evidence of record. See id. In other words, even if the reviewing court
would have decided the case differently, the court must affirm the ALJ's decision if it is
supported by substantial evidence. See id. at 1190-91.
Substantial evidence is defined as less than a preponderance of the evidence, but more
than a mere scintilla of evidence. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (quoting
Jesurum v. Secy of the US. Dep 't of Health & Human Servs., 48 F .3d 114, 117 (3d Cir. 1995)).
As the United States Supreme Court has explained, 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." Pierce v. Underwood, 487 U.S. 552, 565 (1988).
Thus, in the context of judicial review under § 405(g):
[a] single piece of evidence will not satisfy the substantiality test if [the ALJ]
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., that offered by treating physicians)-or if it really
constitutes not evidence but mere conclusion.
12

Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir. 1986) (quoting Kent v. Schweiker, 710 F.2d 110,
114 (3d Cir. 1983)). Where, for example, the countervailing evidence consists primarily of a
claimant's subjective complaints of disabling pain, the ALJ "must consider the subjective pain
and specify his reasons for rejecting these claims and support his conclusion with medical
evidence in the record." Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990). Courts have
embraced this standard in determining the availability of summary judgment pursuant to Federal
Rule of Civil Procedure 56, as well. See e.g., Barnhill v. Astrue, 794 F. Supp. 2d 503, 513 (D.
Del. 2011), reconsideration denied, 2011 WL 2693910 (D. Del. July 11, 2011).
"Despite the deference due to administrative decisions in disability benefit cases,
'appellate courts retain a responsibility to scrutinize the entire record and to reverse or remand if
the [CommissionerJ's decision is not supported by substantial evidence."' Morales v. Apfel, 225
F.3d 310, 317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)). "A
district court, after reviewing the decision of the [Commissioner] may, under 42 U.S.C. § 405(g)
affirm, modify, or reverse the [CommissionerJ's decision with or without remand to the
[Commissioner] for rehearing." Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984).

IV.

DISCUSSION
A.

Disability Determination Process

Title II of the Social Security Act affords insurance benefits "to persons who have
contributed to the program and who suffer from a physical or mental disability." 42 U.S.C. §
423(a)(l)(D); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). A disability is the "inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A).
13

A claimant is only disabled if his impairments are so severe that he is unable to do his previous
work or engage in any other kind of substantial gainful work existing in the national
economy. 42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003). To
qualify for disability insurance benefits, a claimant must establish that he was disabled prior to
I

the date he was last insured. 20 C.F.R. § 404.131; Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir.
199or
The Commissioner must perform a five-step analysis to determine whether a person is
disabled. See 20 C.F.R. §§ 404.1520, 416.920; Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir.
1999). If the Commissioner makes a finding of disability or non-disability at any point in the
sequential process, the Commissioner will not rev~ew the claim further. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4)(i). At step one, the Commissioner determines whether the
claimant is engaged in any substantial gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(i),
'

416.920(a)(4)(i) (mandating finding of non-disability when claimant is engaged in substantial
gainful activity). If the claimant is not engaged in substantial gainful activity, step two requires
the Commissioner to determine whether the claimant is suffering from a severe impairment or a
severe combination of impairments. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii)
(mandating finding of non-disability when claimant's impairments are not severe). If the
claimant's impairments are severe, at step three, the Commissioner compares the claimant's
impairments to a list of impairments that are presumed severe enough to preclude any gainful
work. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Plummer, 186 F.3d at 428. When
a claimant's impairment or its equivalent matches a listed impairment, the claimant is presumed
disabled. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If a claimant's impairment,

14

either singly or in combination, fails to meet or medically equal any listing, the analysis
continues to step four and five. See 20 C.F.R. §§ 404.1520(e), 416.920(e).
At step four, the ALJ considers whether the claimant retains the residual functional
capacity (the "RFC") to perform his past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv) (stating claimant is not disabled if able to return to past relevant work);

Plummer, 186 F.3d at 428. 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. Halter, 247 F.3d 34, 40
(3d Cir. 2001). The claimant bears the burden of demonstrating the inability to return to past
relevant work. See Plummer, 186 F.3d at 428.
If the claimant is unable to return to past relevant work, at step five, the Commissioner

must demonstrate that the claimant's impairments do not preclude him from adjusting to any
other available work. See 20 C.F.R. §§ 404.1520(g), 416.920(g) (mandating finding of nondisability when claimant can adjust to other work); 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]." Plummer, 186 F.3d at 428. The ALJ must
analyze the cumulative effect of all the claimant's impairments in determining whether he or she
is capable of performing work and is not disabled. See id. The ALJ often seeks the VE' s
assistance in making this finding. See id.

B.

Whether the ALJ's Decision is Supported by Substantial Evidence

On October 26, 2012, the ALJ found Walker was not disabled within the meaning of the
Act during the relevant time period from the alleged onset date of March 25, 2010. (Tr. at 30)
The ALJ concluded that Walker had the residual functional capacity to perform a range of light

15

unskilled and sedentary unskilled work. (Id.) After considering the VE's testimony, the ALJ
found that Walker could not return to his previous work, but that there were jobs that existed in
significant numbers in the national economy that Walker could perform. (Id.)
Walker asserts four arguments on appeal: (1) the ALJ improperly dismissed Walker's
mental impairments as non-severe; (2) the ALJ improperly discounted the medical opinions of
Walker's treating physicians; (3) the ALJ improperly evaluated Walker's credibility; and (4) the
ALJ improperly relied on the VE's expert testimony, which was based on a flawed hypothetical
proposing different impairments than those stated in the ALJ' s opinion reciting RFC findings.
(D.I. 14 at 5)

1. Substantial evidence supports the ALJ's finding that Walker's
alleged mental impairments were not severe
Walker contends that the ALJ committed error in concluding his mental impairments do
not cause functional limitations (D.I. 14 at 7). Specifically, the ALJ failed to note Walker's
diagnosis of anxiety and his mental decompensation. (Id.)
To reach his conclusion that Walker did not have a severe mental impairment during the
relevant period, the ALJ assessed the four functional areas set out in the disability regulations for
evaluating mental disorders, known as the "paragraph B" criteria. See 20 C.F.R. § 404, Subpt. P,
App. 1 (2015); (Tr. at 23) These areas include activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompen~ation. 20 C.F .R. § 404, Subpt. P,
App. 1, at§ 12.00(C). To find a marked rather than mild limitation in one of these areas, the
impairment must be more than moderate, but less than extreme, and the limitation must seriously
interfere with the ability to function independently, appropriately, effectively, and on a sustained
basis. Id.

16

First, with respect to activities of daily living, the ALJ found that Walker had a mild
restriction. (Tr. at 23) "[A]ctivities of daily living include adaptive activities such as cleaning,
shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring
appropriately for your grooming and hygiene, using telephones and directories, and using a post
office." 20 C.F.R. § 404, Subpt. P, App. 1, at§ 12.00(C)(l). The ALJ based his finding
primarily upon Walker's own testimony. In his testimony, Walker stated he was able to sweep,
cook, and shop. (Tr. at 50-51) In August 2011, it was noted Walker could take care of his own
personal hygiene, could perform simple chores, and occasionally drove. (Id. at 23) Accordingly,
substantial evidence supports the ALJ' s conclusion that Walker did not exhibit marked
restriction in activities of daily living.
Second, the ALJ found a mild restriction in social functioning. (Id.) Initiating social
contact with others, communicating clearly with others, or interacting and actively participating
in group activities are indicative of strength in social functioning. See 20 C.F .R. § 404, Subpt. P,
App. 1, at§ 12.00(C)(2) (2015). Walker stated that he did not like socializing in person, but
admitted to having conversations with others via telephone. (Tr. at 51) In August 2011, Walker
stated he was able to get along with his co-workers and supervisors. (Id.) Therefore, there is
substantial evidence to support the ALJ's finding that Walker's restriction in social functioning
was only mild.
Third, the ALJ found that Walker has mild difficulties in the functional area of
concentration, persistence, or pace. (Id. at 23) Walker stated that he experiences depression,
however, during a consultative examination, Walker demonstrated good working memory and
judgment. (Id. at 469-70) Dr. Simon also gave Walker a GAF score of 62 upon assessment,
which indicates only mild symptoms of depression. (Id. at 656-60) Accordingly, substantial

17

evidence supports the ALJ' s conclusion that Walker did not exhibit a marked restriction in
concentration, persistence, or pace.
Finally, the ALJ found no episodes of decompensation of extended duration during the
relevant time period. (Id. at 23) Because Walker's medically determinable mental impairments
caused no more than mild limitations in any of the first three functional areas, and no episodes of
decompensation of extended duration in the fourth area, the ALJ properly found that Walker's
mental impairments were non-severe. See Robinson, 2015 WL 5838469, at *13-14. Walker
asserts the ALJ did not consider his hospitalization for depression and anxiety with a GAF of 40
from July 8, 2009 to July 14, 2009, or his admittance into a drug rehabilitation facility for an
addiction to pain medication from June 2010 to October 2010. (D.I. 11 at 7) Walker's
hospitalization for depression and anxiety does not meet the standard for mental decompensation
of extended duration. To qualify, there must be "three episodes in 1 year, or an average of once
every four months, each lasting two weeks." 20 C.F.R. § 404, Subpt. P, App. 1 (2016). Walker
also asserts the ALJ improperly discounted the opinions of Walker's treating physicians
regarding his mental impairments in determining his RFC. (D.I. 11 at 7-8) However, there is no
evidence of medical opinions introduced by Walker that would support finding "anxiety" as a
severe impairment. The ALJ properly considered Walker's depression and related mental
functions in his analysis. Walker improperly conflates t!?-e mental function analysis with the
RFC. The ALJ correctly evaluated Walker's mental function limitations at steps 2 and 3 of the
sequential evaluation, and incorporated such limitations in his RFC assessment at steps 4 and 5.
Furthermore, Dr. Simon's treatment notes and GAF score contradict the assertion that Walker
was severely limited by anxiety. (Id. at 656-60) Additionally, the ALJ's RFC assessment
reflects limitations for work involving low concentration, stress and memory with no decision-

18

making, judgment, or changes in the work setting. (Id.) The ALJ further limits Walker to jobs
that require no production pace work, and only occasional interaction with co-workers,
supervisors, and the public. (Id.) Consequently, the court finds there is substantial evidence to
support the ALJ's finding that Walker's anxiety was not severe and there were no periods of
decompensation of extended duration during the relevant period.

2. The ALJ properly weighed the objective medical evidence and
opinions of treating physicians
To determine the proper weight to give to a medical opinion, the ALJ is required to
weigh all the evidence and resolve any material conflicts. See Richardson v. Perales, 402 U.S.
389, 399 (1971). Generally, the weight afforded to any medical opinion is dependent on a
variety of factors, including the degree to which the opinion is supported by relevant evidence
and consistent with the record as a whole. 20 C.F.R. § 404.1527(c)(3)-(4) (2012). To that end,
the more consistent an opinion is with the record as a whole, the more weight is given to that
opinion. Id.§ 404.1527(c)(4).
The ALJ must first assess whether a medical opinion is from a treating, non-treating, or
non-examining source. 20 C.F.R. §§ 404.1502, 416.902; see also Fletcher v. Colvin, Civil
Action No. 12-920-SRF, 2015 WL 602852, at *9 (D. Del. Feb. 11, 2015), report and

recommendation adopted, 2015 WL 1284391 (D. Del. Mar. 19, 2015). The opinion of a treating
physician--0ne who has an "ongoing treatment relationship" with the patient-is entitled to
special significance. 20 C.F.R. §404.1502; Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir.
2001) (citing 20 C.F.R. § 404.1527(d)(2)). On the other hand, a treating physician's opinion does
not warrant controlling weight if unsupported by clinical and laboratory diagnostic findings, and
if it is inconsistent with other substantial evidence. See 20 C.F.R. § 404.1527(c)(2); Fargnoli,

19

247 F.3d at 42--43. The more a treating source presents medical signs and laboratory findings to
support the medical opinion, the more weight it is given. See Robinson v. Colvin, Civ. No. 14662-SLR, 2015 WL 5838469, at *12 (D. Del. Oct. 5, 2015). Likewise, the more consistent a
treating physician's opinion is with.the record as a whole, the more weight it should be afforded.

Id.
An ALJ may not reject a treating physician's assessment based on his or her o\vn

credibility judgments, speculation, or lay opinion, and the ALJ cannot disregard a treating
physician's opinion without explaining his or her reasoning or referencing objective conflicting
medical evidence. Morales v. Apfel, 225 F.3d 3:10, 317 (3d Cir. 2000); Gilliland v. Heckler, 786
F.2d 178, 184 (3d Cir. 1986). Even when the treating source opinion is not afforded controlling
weight, the ALJ must determine how much weight to assign it by considering factors such as
length, nature, and frequency of treatment visits, nature and extent of the treatment relationship,
whether the opinion is supported by medical evidence, whether the opinion is consistent with the
medical record, and the medical source's specialization. 20 C.F.R. §§ 404.1527(d), 416.927(d).
In the present action, the ALJ gave great weight to treating physician Dr. Bose's
limitation restricting Walker to lifting not more than 25 pounds because the findings were
consistent with other treatment records. (Tr. at 28, 429) However, the ALJ afforded less weight
to Dr. Bose's March 26, 2010 and September 27, 2010 opinions that Walker could not work for
six to twelve months, respectively, as the restrictions were inconsistent with post-surgery
records, which do not show that pain would have prevented Walker from working. (Id.)
Specifically, the opinions contradicted Dr. Bose's own assessment that Walker could resume
normal activity on January 4, 2010. (Id. at 270) He recommended that Walker start a physical
therapy program multiple times. (Id. at 425, 427, 428) On March 26, 2010, the same day as the

20

note restricting Walker from work, Dr. Bose wrote in his examination notes that Walker was
overall improving. (Id. at 427) By June 22, 2010, Dr. Bose noted that although there was some
back pain following two falls, Walker's neck was doing well, he had no tenderness on palpation,
his alignment was good, he was mildly restricted in range of motion, and there was no deficiency
with his motor functioning. (Id. at 426) Given these inconsistencies, the ALJ had sufficient
reason to assign less weight to Dr. Bose's March 26, 2010 and September 27, 2010 notes, which
were unsupported by the objective medical evidence in the record. There is substantial evidence
to support the ALJ' s decision in this regard.
The ALJ also gave little weight to Dr. Ivins' RFC check mark questionnaires that
indicated significant physical and mental limitations. (Id. at 28, 520-29) Walker admitted that
medication and changing positions helped his pain, and that his pain was stable with light
activity. (Id. at 28, 724, 730) Dr. Ivins' restriction on sitting and standing for no longer than
fifteen minutes conflicts with the opinion of State agency consultant, Dr. Gurcharan, that
Walker, with normal breaks, could sit for six hours and stand for two hours in a given eight hour
work day. (Id. at 484) Moreover, Walker testified that he could sit and stand for about an hour
without pain. (Id. at 54) Dr. Ivins indicated that depression and pain would frequently interfere
with Walker's work day, but the State agency consultant, Dr. Campion, opined that Walker had
only mild limitations on concentration. (Id. at 522, 674) Contrary to Dr. Ivins' opinion, Dr.
Bose repeatedly reported that Walker was improving, and post-surgery examinations did not
show that Walker was significantly physically limited. (Id. at 28, 426-27, 436-39, 473, 537,
659, 730, 763, 766, 776) Despite these inconsistencies, the ALJ gave Walker the "benefit of the
doubt" and provided limitations in the RFC, including the need to alternate between sitting and
standing, and to work in an area requiring minimal amounts of concentration and stress. (Id. at

21

24, 29) Therefore, substantial evidence supports the ALJ's determination that Dr. Ivins'
February 4, 2011 disability certification did not warrant significant weight.
Furthermore, although the ALJ did not mention Dr. Lim's medical certifications
indicating that Walker was incapable of work, the June 24, 2011 certification facially contradicts
itself by stating that Walker could perform "light duty work." (Id. at 531) The court assigns no
error in not relying on this evidence. For these reasons, the ALJ's decision to assign less weight
to the opinions of Walker's treating physicians is supported by substantial evidence.

3. The ALJ properly weighed Walker's credibility
An ALJ must undertake a two-step process in evaluating a claimant's subjective

complaints of pain. See 20 C.F.R. § 404.1529; SSR 96-7p at 2; see also Conn v. Astrue, 852 F.
Supp. 2d 517, 527 (D. Del. 2012). First, the ALJ must determine whether there is an impairment
that could reasonably be expected to produce the claimant's pain. See Conn, 852 F. Supp. 2d at
527. Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the
symptoms to determine the individual's work limitations. Id. When subjective complaints of
pain are unsubstantiated by objective medical evidence, the ALJ must evaluate the claimant's
credibility based on the entire record.
In addition to the objective evidence, the ALJ should consider factors such as the
claimants daily activities; locations, duration, and frequency of pain; aggravating factors; the
effectiveness of medication and other treatment; and the consistency of the claimant's
statements. See Fletcher v. Colvin, Civil Action No. 12-920-SLR-SRF, 2015 WL 602852, at *11
(D. Del. Feb. 11, 2015), report and recommendation adopted, 2015 WL 1284391 (D. Del. Mar.
19, 2015). The ALJ must specifically support the decision based on evidence in the record "to

22

give the individual a full and fair review of his or her claim, and in order to ensure a wellreasoned ... decision." Id. (quoting Conn, 852 F. Supp. 2d at 527).
The ALJ found that Walker did experience symptoms from his impairments, but "[t]he
medical evidence of the record does not support [Walker's] allegations that he is completely
unable to perform any work activities." (Tr. at 27) Instead, the ALJ found that treatment notes
did not substantiate the level of physical or mental impairment claimed. (Id.) For example,
Walker was repeatedly advised to start or continue physical therapy. (Id. at 27, 425-28)
Moreover, State consultant Dr. Watson found that Walker's cognitive abilities were average, his
medications helped his depression and anxiety, his attention and concentration were good, and
his depression and anxiety were in remission. (Id. at 467-71, 656-60) The ALJ analyzed
medical records from before and after Walker's surgery and observed overall progress. (Id. at
24-29)
Walker asserts that his disability argument is supported by the opinion of State agency
consultant, Dr. Heath, who opined that Walker was physically limited, including the inability to
lift more than five pounds. (D.I. 14 at 16; Tr. at 474) However, as the ALJ noted, Dr. Heath also
reported that Walker's upper extremity motor strength was not limited, contradicting her own
report. (Tr. at 28, 473) Further, in assigning a lifting limitation, Dr. Heath noted that the
limitation had to be further clarified by a functional capacity evaluation. (Id. at 474)
The ALJ was not persuaded by Walker's complaints. (Id. at 27) The ALJ noted that
Walker lived with his elderly parents, performed many chores, attended vocational rehabilitation
classes, and indicated that he was hopeful of finding employment. (Id.) Accordingly, the ALJ
determined that although Walker's impairments could reasonably be expected to cause -his

23

alleged symptoms, his statements concerning intensity, persistence, and limiting effects were not
credible, as they were inconsistent with the RFC. (Id.)
The ALJ did not completely reject Walker's testimony, as he found that Walker cannot
return to his position as a nurse. (Tr. at 29) The ALJ' s finding is given deference due to his
opportunity to observe and hear the claimant's testimony. See Coleman v. Comm 'r ofSoc. Sec.,
494 F. App'x 252, 254 (3d Cir. 2012). Therefore, substantial evidence supports the ALJ's
credibility finding-that Walker's subjective complaints concerning intensity, persistence, and
limiting effects of his symptoms were not credible to the extent they were inconsistent with the
record. (Tr. at 27)

4. The ALJ properly relied on the VE's testimony
Walker's final argument is that the ALJ improperly relied on the VE's testimony with
regard to Walker's RFC. (D.I. 14 at 17-18) Walker asserts the ALJ's decision contradicts the
VE's hypothetical regarding available jobs in the work place, because it did not take into account
the VE's statement that a decrease in a person's work productivity by 15 to 20% can be work
preclusive. (Id.) Walker's second argument is that the ALJ's hypothetical question posed to the
VE did not match the RFC finding. (Id. at 17-18)
The ALJ's decision does not inherently contradict the VE's testimony. Despite mental
and physical limitations, the VE opined that Walker is capable of performing certain jobs in the
national economy to the fullest extent required by those positions. (Tr. at 61-64) In other
words, Walker would be able to perform the suggested jobs without any reduced production
because the positions already account for his limitations. Moreover, if the ALJ finds the VE's
hypothetical not supported by the record, the ALJ has the "authority to disregard the response."
See Jones v. Barnhart, 364 F.3d 501, 506 (3d Cir. 2004). The ALJ gave great weight to Dr.

24

Simon and Dr. Watson who found Walker was "mildly limited in social interaction and
concentration." (Tr. at 28) The ALJ concluded Dr. Simon and Dr. Watson's findings were
consistent with Walker's RFC. (Id.) The ALJ also gave great weight to the State agency
consultants who found that Walker could "perform light work with some postural/environmental
limitations." (Id.) Therefore, the ALJ was not required to accept the VE's testimony that
reduction in productivity would be work preclusive because it was not a limitation he found
credibly supported by the record. See Jones, 364 F.3d at 506.
Moreover, the ALJ did rely on the VE's testimony in response to the hypothetical. An
ALJ' s hypothetical RFC proposed to a VE must accurately portray the claimant's mental and
physical impairments, otherwise, the ALJ cannot substantially rely on the VE' s response.

Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005); Ramirez v. Barnhart, 372 F.3d 546,
552 (3d Cir. 2004). However, if the ALJ's hypothetical substantially includes all limitations
contained in its decision, even if not worded exactly the same, the court should find that
substantial evidence supports the ALJ's finding. See Dawson-Rhoades v. Barnhart, Civil Action
No. 03-627 GMS, 2008 WL 906107, at *4 (D. Del. Mar. 27, 2008).
A side by side comparison of the relevant language in the hypothetical and the written
decision shows the consistency of the limitations as follows:
Written Decision

Hy11othetical

•

•

•

•

"stand for an hour; can sit for an hour
consistently on an alternate basis or at
will"
"would need to avoid heights and
hazardous machinery, temperature and
humidity extremes"
"no repetitive neck turning jobs or
overhead reaching or stair climbing"

•

•

25

"must be able to sit for 1 hour, stand
for 1 hour consistently on an alternate
basis, 8 hours a day, 5 days a week"
"must avoid temperature and humidity
extremes, heights, hazardous
machinery and the climbing of stairs"
"job must not involve repetitive neck
turning or overhead reaching"

•

•
•
•

•
•
•
•
•
•
•
•
•

"only occasional fine dexterity
manipulation due to occasional
numbness in his upper extremities"
"can lift ten pounds frequently, 20 on
occasion"
"moderately limited in his ability to
maintain his concentration, persistence
and pace, one-third of the working
day"
"jobs that are low stress in nature,
concentration and memory, and by
that I mean jobs that have little
decision-making or changes in the
work setting or judgment to perform
the work"
"one or two-step tasks"
"no production rate pace work"
"due to his depression, anxiety and
pain, and as a result would need to
have simple, routine, unskilled jobs,
[VE], SVP: 1 or 2 in nature"
"he appears to be able to attend tasks
and complete schedules"
"jobs that would have little interaction
with the public, coworkers or
supervisors at this time"
"jobs that allow him to deal with
things rather than people"
"moderately limited in his ability to
socialize"
"he would be able to do some
sedentary and light work activities"
"all these things during the usual and
customary breaks that [sic] allowed
during a work day"
(Tr. at 61-62)

•

"can only occasionally use his
bilateral upper extremities for fine
dexterity manipulation"

•

"can only perform simple routine
unskilled jobs in nature that involve
low concentration, stress and memory
with no decision-making, judgment, or
changes in the work setting and no
production pace work, 1-2 step jobs"

•

"can only occasionally interact with
co-workers, the public and
supervisors"

•

"residual functional capacity to
perform light work"

(Id. at 24)

The hypothetical and RFC wording need not be identical, as the analysis instead turns on
whether an ALJ properly relied upon the response to a hypothetical that accurately captures the
claimant's individual impairments supported by the record. See Money v. Barnhart, 91 F. App'x

26

210, 213-14 (3d Cir. 2004) (ALJ properly relied on the VE's testimony in response to his
hypothetical where the ALJ incorporated impairments substantiated by the record in the
hypothetical). If there are no critical differences between the hypothetical and the RFC findings,
then substantial evidence supports the ALJ's findings.
As shown in the chart above, the hypothetical and the RFC findings mirror each other,
and the ALJ adequately represented Walker's limitations in both the hypothetical and the RFC
findings. For example, the ALJ addressed Walker's limited ability to socialize by finding that
Walker "can only occasionally interact with co-workers, the public and supervisors." (Tr. at 24)
Similarly, the ALJ addressed limitations on the ability to maintain concentration, persistence, or
pace by restricting Walker to jobs "that involve low concentration, stress and memory with no
decision-making." (Id.) That a person with this limitation could also attend tasks and complete
schedules is not contradictory, and the finding is supported by the record. Finally, the side effect
of drowsiness, although not explicitly stated, was adequately represented in the existing RFC
lifi1:itations, as the ALJ considered it in his report and in making his overall findings. (Id. at 2425)
Walker argues, however, that the ALJ made no findings as to how long he was able to
engage in certain activities of daily living each day as related to substantial gainful activity in a
job requiring a workday of eight hours, five days per week. (D.I. 14 at 17) Specifically, Walker
argues the ALJ's decision did not include the VE's findings that Walker's limitations would
apply 1/3 of the working day. (Id.) Walker's argument is vague and conclusory without factual
or legal support. Walker's argument also ignores the ALJ' s findings at step 5 of the sequential
evaluation process. The ALJ' s decision, as shown in the chart above, states that Walker could
perform jobs with "low concentration, stress and memory with no decision-making, judgment, or

27

changes in the work setting and no production pace work, 1-2 step jobs." (Tr. at 24) The ALJ
also finds that Walker "must be able to sit for 1 hour, stand for 1 hour consistently on an
alternate basis, 8 hours a day, 5 days a week." (Id.) The VE's opinions are consistent with the
ALJ' s RFC findings stated in the decision.
Because the hypothetical posed to the VE accurately represented Walker's limitations,
substantial evidence supports the ALJ' s RFC determination.
V. .

CONCLUSION
For the foregoing reasons, (1) Walker's Motion for Summary Judgment (D.I. 13) is

denied; and (2) the Commissioner's Cross Motion for Summary Judgment (D.I. 19) is granted.

28