Roache v. Colvin

Filing 26

MEMORANDUM OPINION re cross-motions for summary judgment. Signed by Judge Leonard P. Stark on 3/21/16. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARIOND. ROACHE,
Plaintiff,
v.

CAROLYN COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civ. No. 14-1002-LPS

Angela Pinto Ross, DOROSH OW, PASQUALE, KRAWITZ, SIEGEL & BHAYA, Wilmington,
DE.
Attorney for Plaintiff.

Heather Benderson, Special Assistant United States Attorney, OFFICE OF THE GENERAL
COUNSEL, Philadelphia, PA,
Attorney for Defendant.

MEMORANDUM OPINION

March 21 , 2016
Wilmington, Delaware

t~P-~
STARK, U.S. District Judge:

I.

INTRODUCTION 1
Plaintiff Marion Roache ("Roache" or "Plaintiff') appeals from the decision of Carolyn

W. Colvin, the Acting Commissioner of the Social Security Administration ("the Commissioner"
or "Defendant"), denying her claims for disability insurance benefits ("DIB" or "DIB ' s") and
supplemental security income ("SSI") under Title II, 42 U.S.C. §§ 401-434 ("Title II"), and Title
XVI, 42 U.S.C. §§ 1381-1383 ("Title XVI") of the Social Security Act. The Court has
jurisdiction pursuant to 42 U.S .C. § 405(g) and§ 1383(c)(3). Before the Court are cross-motions
for summary judgment filed by Plaintiff and the Commissioner. (D.I. 15, 23)
Plaintiff seeks DIB ' s from August 5, 2010 through March 8, 2013 or, in the alternative,
asks for remand and further proceedings before the Commissioner. (D.I. 16 at 36) The
Commissioner requests that the Court affirm the decisions denying Plaintiffs application for
benefits. (D.I. 24 at 27) For the reasons set forth below, the Court grants in part Plaintiffs and
Defendant' s motions for summary judgment and remands for further proceedings before the
Commissioner.

II.

BACKGROUND
A.

Procedural History

On August 5, 2010, Plaintiff filed a Title II and XVI application for SSI and DIB ' s. (D.I.
8-5 at 2) Plaintiff alleged disability beginning on June 13, 2010, due to three dislocated discs in
her back. (D.I. 8-5 at 2; 8-6 at 5) After a hearing on May 6, 2013, an Administrative Law Judge

1

Unless otherwise indicated, all facts are taken from the case record and supporting briefs
submitted by the parties.
1

("ALI") found that Plaintiff was not disabled within the meaning of the Social Security Act

("SSA") because her alleged conditions were not severe enough to prevent employment. (D.I. 82 at 10-30) Plaintiff filed a request for review, which was denied. The Appeals Council also
denied Plaintiffs request for review, making the ALJ's decision the final decision of the
Commissioner. (D .I. 8-2 at 2-5) Plaintiff then filed this civil action.
B.

Relevant Medical Evidence

Plaintiff was born on June 25, 1965. (D.I. 8-3 at 25) She was 44 years old on the onset
date of her alleged disability, and 47 years old at the time of the ALJ's decision. (D.I. 8-2 at 28 ;
D.I. 8-5 at 2) She completed the eleventh grade and previously worked as a certified nurse
assistant. (D.I. 8-6 at 5-6) She stated at her hearing that she was unable to work because of
(1) degenerative disc disease in her back; (2) tarsal tunnel syndrome in her left foot; and
(3) depression.
1.

Degenerative Disc Disease
a.

First car accident and surgery

Plaintiff was injured in a car accident in October 2007. (D .I. 8-7 at 31) She was treated
by three physicians: her primary care physician, Dr. Phyllis James; orthopedic surgeon Dr. Bruce
Katz; and pain management specialist Dr. Phillip Kim. (Id. at 3-31; 43-53 ; 58-67) In April
2009, Plaintiff underwent a total disc replacement at L4-5. (Id. at 7)
b.

Follow-up treatment and onset of disability

Following her disc replacement, Plaintiff continued to complain of pain in her lower
back, right leg, right hip, and feet. (Id. at 3-16; 56-58) Drs. Katz and Kim treated Plaintiff with
medication and trigger point injections throughout 2009. (D.I. 8-7 at 9-16; 60; and 66-67) A
2

January 2010 electromyography ("EMG") study was consistent with chronic right LS
radiculopathy. (Id. at 40)
Plaintiff contends that she became disabled in June 2010. In July and August 2010,
Plaintiff complained to Dr. Katz of right back pain and left leg pain. (Id. at 1S-16) Dr. Katz
referred Plaintiff for a functional capacity evaluation ("FCE"), which was completed later that
month. (Id. at lS ; 32-34) Though she walked with a cane to maintain her balance, she was "not
functionally limited by her mild right antalgic gait/associated right leg weakness and was capable
of demonstrating functional activities without the single point cane." (Id. at 33) Based on this
FCE, Dr. Katz found in August 2010 that Plaintiff was able to return to work for four hours per
day at a medium Physical Demand Level ("PDL"). (D.I. 8-7 at 34)
Also in July 20 10, Plaintiff saw Dr. Kim. At the visit, she rated the pain in her right leg
as a "2" out of " lO." (Id . at S7) Dr. Kim recommended an EMG study. (Id.) Plaintifffollowedup with Dr. Kim in August 2010 after obtaining the results of the EMG and nerve conduction
studies, which showed that she suffered from a right LS , left S 1 radiculopathy. (D.I. 8-7 at 42,
S6) Dr. Kim found that these results were consistent with her complaints of pain in her back and
buttocks, radiating down her leg. (Id. at S6) He recommended treatment with a Transcutaneous
Nerve Stimulator ("TENS unit"). (Id. )

In November 2010, Plaintiff followed-up with Dr. Katz, complaining again of pain in her
lower back and both legs. (D .I. 8-8 at 66) Dr. Katz noted that Plaintiff was able to walk heel to
toe without difficulty; had a full and pain-free range of hip motion; had a normal lumbar range of
motion; and had negative leg raising bilaterally. (Id. ) Dr. Katz advised Plaintiff to continue
using her pain medications and to follow-up if necessary. (Id.)

3

In February 2010, Plaintiff again complained to Dr. Kim of back and leg pain. (Id.) Dr.
Kim noted that Plaintiff had experienced some relief through the use of a TENS unit and

continued to take pain medications as needed. (D.I. 8-8 at 16) He also noted that she was being
considered for a neurostimulator implant trial. (Id.)
c.

Second car accident and surgery

On July 10, 2011 , Plaintiff was involved in a second car accident. (Id. at 62) At an
appointment with Dr. Katz nine days later, she stated that her pain had increased from a "3" out
of " 1O before the accident to a "7" out of " 10" afterwards, with a "new" type of pain that caused
"
her right leg to fall asleep and made sitting difficult. (Id. ) She stated that, prior to the accident,
she had not been using much pain medication, but after the accident had begun regularly taking
Vicodin. (D.I. 8-8 at 62) Her physical examination showed that she had a non-antalgic gait; a
negative straight leg-raising test; a normal range of motion in her lumbar spine; and full strength
in her hips, knees, and feet. (Id. at 63) A lumbar x-ray showed " [n]o obvious fractures or
instability." (Id. ) Dr. Katz diagnosed a lumbar strain/sprain, prescribed physical therapy, and
instructed Plaintiff to follow-up in six weeks. (Id . at 64) After 12 therapy sessions, Plaintiff
stated that she felt minimal relief, and continued to experience back and leg pain that was more
severe than what she had experienced prior to the accident. (D.I. 8-8 at 59-60)
In September 2011 , Plaintiff underwent diagnostic tests: MRis of her lumbar and thoracic

spine and a CT scan of her lumbar spine. Dr. Katz found that the MRI of her thoracic spine
revealed a "small disc protrusion with no compression upon the spinal cord," while the MRI of
her lumbar spine showed "significant artifact [of the disc replacement hardware] where the disc
replacement was" as well as artifact in other areas . (Id. at 57) The CT scan of her lumbar spine
4

revealed hardware that "appear[ ed] to be in good position." (Id.) Dr. Katz recommended
injections to "see if this helps improve her symptoms," and mentioned possible use of a nerve
stimulator if no improvement was observed. (Id.)
Dr. Kim administered the injections in October 2011. (D.I. 8-10 at 15) In November
2011 , Plaintiff reported to Dr. Katz that her pain was unimproved, and Dr. Katz ordered that she
have a repeat CT scan in six months to rule out the possibility that her disc replacement was
loosening. (D.I. 8-8 at 53) At a follow-up appointment in December, Plaintiff stated that her
pain had actually worsened after the injection. (Id. at 10)
Dr. Kim scheduled Plaintiff for a neurostimulator trial, and on February 22, 2012
implanted two neurostimulator electrodes. (D.I. 8-8 at 68) Plaintiff reported no discomfort one
week after the surgery. (D .I. 8-9 at 16-18) In April 2012, Plaintiff stated that the stimulator
provided some relief, and later clarified that her pain was 45% better. (Id. at 6, 10) She further
noted that Tylenol was sometimes effective for an intermittent, short-term burning sensation in
her upper leg, and that she planned to taper her oral painkillers because they provided little relief
and might not be refilled. (Id.) She reported no changes to her back and associated leg pain at
follow-up appointments in April and October 2012. (Id. at 2, 10) At each appointment, Dr. Kim
noted that she suffered antalgic gait, but had no loss of range of motion, joint pain, swelling, or
weakness. (D.I. 8-9 at 2-13) In October, Plaintiff informed Dr. Kim that she continued to take
pain medication to partially control ongoing "moderate to severe" pain in her back as well as her
"right hip, buttock, and leg area." (Id. at 2-3)

2.

Tarsal Tunnel Syndrome

In August 2011 , Plaintiff visited her primary care physician complaining of foot pain.

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(D.I. 8-10 at 33) She was referred to and met with podiatrist Dr. Albert Iannucci in October
2011 , describing tingling, burning, and aching feet. (D.I. 8-9 at 39) Dr. Iannucci recommended
an EMG. (Id.) The EMG, conducted in 2011 , was "suggestive of mild bilateral tarsal tunnel
syndrome," as well as radiculopathy involving the spine. (D.I. 8-8 at 46-47)
At a follow-up appointment in November 2011 , Dr. Iannuci administered a cortical
steroid injection to determine whether Plaintiffs symptoms were mechanical or neurological.
(D.I. 8-9 at 38) After Plaintiffs pain did not improve near the site of the injection, Dr. Iannucci
sent her for physical therapy in December. (Id. at 37) When two weeks of physical therapy
failed to yield improvements, Dr. Iannucci concluded that her symptoms were likely from a
"peripheral/proximal source" rather than caused by mechanical defects. (Id. at 36) Because she
was scheduled to obtain her neurostimulator implant the following month, Dr. Iannucci deferred
further treatment to see whether the stimulator would be effective for her foot pain. (Id.)
The neurostimulator did not help, and Dr. Iannucci administered additional steroid
injections in April and May 2012. (D.I. 8-9 at 33-35) Though the injections helped somewhat,
Dr. Iannucci performed a surgical tarsal tunnel release and endoscopic plantar fasciatomy of
Plaintiffs left foot and ankle on September 11 , 2012. (D.I. 8-8 at 70-71 ) Plaintiff underwent
physical therapy from late October to late December. (D.I. 8-11 at 2-39) She reported a
significant decrease in pain, both at rest and during activity, over the course of her physical
therapy. (Id. at 5) At a January 2013 appointment with Dr. Iannucci, Plaintiff stated that the
symptoms in her left foot had improved since the surgery, though she still had ongoing symptoms
of tarsal tunnel syndrome on the right side. (D.I. 8-9 at 23)

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3.

Depression

In March 2010, Plaintiff saw nurse practitioner Catherine Doty for a psychiatric

evaluation. (D .I. 8-7 at 71-76) She complained of moodiness and decreased activity due to her
back pain. (Id. at 71 ) Doty found that Plaintiffs thinking was logical and coherent; that her
judgement was fair and insight good; that she was capable of adequate concentration and oriented
in the person/place/time dimensions ; and that she was alert, spoke clearly, and made good eye
contact. (Id. at 75) Doty diagnosed Plaintiff with major depressive disorder and found that
Plaintiff was experiencing only moderate difficulty in day-to-day functioning. (Id. at 76)
Plaintiff visited Doty approximately 15 times throughout 2010 and early 2011. (D.I. 8-8 at 4-7)
Doty' s notes indicate that Plaintiff's activity levels increased in 2011 , and that she often came to
therapy in a reasonably positive, non-depressed mood. (D.I. 8-7 at 69-76; D.I. 8-9 at 19-22)
From March through July of 2010, Plaintiff also attended six therapy sessions with Carol
Harrington, a mental health counselor. (D .I. 8-7 at 80-85) Plaintiff reported to Harrington that,
over that time, she became more active, attending a concert and helping to care for her mother.
(Id. at 84-85) Though Plaintiff continued to complain of anxiety and wanting to stay at home, she

stated that she was feeling better and Harrington concluded that her medication might be helping.
(Id. at 84)

C.

Plaintiff's Testimony
1.

Adult functioning self-reports

In September 2010, Plaintiff completed an Adult Function Report and Pain

Questionnaire. In her Adult Function Report, she stated that she was able to work before her
injury but could no longer do so. She stated that she experienced significantly restricted activity

7

that made it difficult for her to lift, squat, bend, stand, walk, sit, or kneel. (D.I. 8-6 at 17)
Although she remained able to care for herself, her children, and her household as a single
parent, she struggled with certain activities, like washing her hair or performing yard work, and
walked with a cane. (Id. at 12-18) She stated that she did not "get out much to do anything" partly because her physical limitations made it difficult for her to walk or engage in her usual
hobbies, and partly because she experienced anxiety about traffic and driving. (Id. at 15-19) In
her Pain Questionnaire, she stated that she experienced constant pain throughout the day, making
it impossible to attend church or work, or to engage in activities with her children, or participate
in her hobbies. (Id. at 20-21) She stated that use of Tylenol, a heating pad, a TENS unit, and
Epson salt soaks "help[ ed] a little," and that prescription pain medications alleviated "some pain"
and "help[ed] short term." (D.I. 8-6 at 20-21 )
In April 2011 , Plaintiff completed a second Adult Function Report, reporting essentially

the same condition as before. (Id. at 38-47) At that time, her friend Donna Tyler also submitted
a Third Party Adult Function Report. Tyler stated that Plaintiff was unable to work, engage in
activities with her children, or attend church. (Id. at 30-37) Tyler' s report also indicates that
Plaintiff's ability to engage in certain activities, such as walking without a cane, laundry, and
socializing, depended whether she was having a "good day," and on her "discomfort level" or
"pain level." (Id. )
2.

Third-party letters

In February 2012, both Tyler and Laticia John, another friend of Plainitff, submitted

third-party letters in support of Plaintiff's disability claim. Tyler stated that Plaintiff was
dependent on others and experienced depression due to her pain and inability to engage in

8

cooking and other activities. (D.I. 8-6 at 59) John stated that Plaintiffs life had changed
"tremendously" since her car accident. (Id. at 60) In particular, John noted that Plaintiff walked
with a cane 90% of the time, could not stand or sit for long, could not work, and could not be the
"very active sports mom" she had been before the accident. (Id.) John observed that Plaintiff
was depressed, had gained weight, and was in constant pain. (Id.)

3.

Administrative hearings

At her administrative hearing in February 2013, Plaintiff stated that she lived with her 11and 13-year-old children. (D.I. 8-2 at 45-46) She stated that her neurostimulator implant helped
with the burning sensation she had experienced in her back and leg, but that she still experienced
daily pain and spasms in her shoulders, back, legs, and feet. (Id. at 50-52) Similarly, she stated
that she continued to experience swelling, pain, and burning in her left foot despite her tarsal
tunnel surgery. (Id. at 53-54) She rated her pain without medication a "10" on a 1-10 scale. (Id.
at 52) Although pain medications mitigated this pain to a "7," the pain nevertheless prevented
her from working. (D.I. 8-2 at 50-52) Plaintiff said that she continued to experience depression
and anxiety that had become worse over time, had trouble sleeping, and experienced unprovoked
mood swings and occasional panic attacks. (Id. at 55-60).
With regard to her functional abilities, Plaintiff testified that she could walk one block, sit
up for 25 minutes, lift 5 pounds, and stand for 15 to 20 minutes. (Id. at 61) She used a cane for
stability and was able to bend at the waist, but used a "reacher" to lift items from the floor. (Id.
at 61-62, 66) She continued to live in a house with her children and was able to take care of her
own personal care, cook with the oven and microwave, assist with housework, manage finances,
drive, and help her sons with grocery shopping. (D.I. 8-2 at 63-65) She also stated, however,
9

that she was basically "homebound," slept for much of the day because she could not sleep at
night, and spent most of her time sitting on a heating pad. (Id.)

D.

Residual Functional Capacity ("RFC") Evaluations
1.

Nurse Doty

In May 2011, Nurse Doty completed a mental impairment questionnaire, diagnosing

Plaintiff with chronic depression and anxiety. (D.I. 8-8 at 29-34) The questionnaire states that
Plaintiff had a Global Assessment of Functioning score of "55 ," indicating serious symptoms or
serious impairment in social and occupational functioning. (Id. at 29) She stated that Plaintiff
had limited but satisfactory ability to get along with coworkers, respond to changes in a work
setting, and be aware of normal hazards that are necessary to perform unskilled work. (Id. at 31)
However, Plaintiff was seriously limited with respect to other abilities necessary for unskilled
work, including remembering work procedures, understanding instructions, carrying out
instructions, working near others without distraction, making simple/routine decisions, asking
simple questions or requesting assistance, accepting instructions, and responding appropriately to
criticism from supervisors. (Id.) Doty stated that Plaintiff was unable to meet competitive
standards with respect to the need to maintain attention for two hours, sustain ordinary routines
without supervision, or deal with work stress. (D.I. 8-8 at 31) Further, Doty assessed Plaintiff as
unable to complete a normal workday without interruptions from psychological symptoms, work
at a consistent pace without rest periods, or maintain regular attendance (estimating that
Plaintiffs mental impairments or treatment would require her to be absent from work more than
four days per month). (Id. at 31 , 34)
Similarly, Doty assessed Plaintiff as seriously limited or unable to meet competitive
10

standards with respect to all additional abilities and aptitudes necessary to do semiskilled or
skilled work. (Id. at 32) With regard to skills necessary to do particular types of jobs, Doty
stated that Plaintiff had limited but satisfactory ability to maintain appropriate social behavior
and adhere to basic standards of neatness and cleanliness. (Id. ) However, she had seriously
limited ability to use public transportation, was unable to meet competitive standards with
respect to interacting appropriately with the general public, and had no useful ability to travel in
an unfamiliar place. (D.I. 8-8 at 32)

2.

State Agency Consultants

State agency consultants evaluated Plaintiffs condition in 2010 and 2011. A December
2010 report found that Plaintiff was limited to work that required little lifting, no more than three
hours of walking, and no more than six hours of sitting per day. (D.I. 8-3 at 36, 41) The report
also advised that she should avoid exposure to vibration; should only occasionally climb stairs,
stoop, kneel, crouch, or crawl; and should never climb ladders, ropes, or scaffolds. (Id. at 41 )
Her ability to maintain concentration for extended periods of time was moderately limited. (Id.
at 43)
After reviewing additional medical evidence, including Plaintiff's April 2011 Adult
Function Report and her medical records from February and March 2011 , the State affirmed its
December 2010 findings about Plaintiff's physical condition. (D.I. 8-8 at 35) After reviewing
Plaintiffs mental health records, including Nurse Doty' s May 2011 report, the State found that
Plaintiff's allegations and symptoms were stable with medication, Nurse Doty' s report took an
overly pessimistic view of Plaintiff's ability to work, and Nurse Doty' s report was inconsistent
with Plaintiffs statements and medical record. (Id. at 36)

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3.

Dr. Kim

In January 2013 , Dr. Kim completed a medical source statement describing Plaintiff's
condition. He stated that she had chronic pain and burning in her leg and back. (Id. at 49) He
found that her condition led to reduced back flexion, abnormal gait, sensory loss, muscle spasm,
and impaired sleep that prevented her from walking more than a block without rest or severe pain
and limited her to jobs that permit shifting positions among standing, sitting and walking at will,
such that she could walk for 10 minutes every 15 minutes. (Id. at 50-51) Further, he found that
she could only sit for a total of less than two hours per day and stand or walk for less than two
hours per day, and would need 15-minute unscheduled breaks four to six times per day. (D.I. 8-8
at 50-51 ) Finally, Dr. Kim stated that Plaintiff needed to use a cane; could rarely lift 10 pounds
or less and never lift 20 or more; and could never twist, stoop, crouch, squat, or climb ladders or
stairs. (Id. ) He assessed her as "incapable of even ' low-stress' work." (Id. at 51-52)
4.

Dr. Iannucci

Also in January 2013 , Dr. Iannucci completed a medical source statement describing
Plaintiff's condition. He stated that she had chronic foot pain due to plantar fasciitis and tarsal
tunnel syndrome, which prevented her from standing for more than 5-10 minutes, walking a
block at a reasonable pace on a rough surface, walking enough to shop or bank, or climbing a few
steps at a reasonable pace. (D.I. 8-9 at 45-46) While Dr. Iannucci assessed Plaintiff as able to sit
for at least six hours per day, he added that she needed to elevate her legs level with her hip for at
least half of the working day and take at least four unscheduled, 15-minute breaks each day. (Id. )
E.

Vocational Expert Testimony

At Plaintiff' s February 2013 administrative hearing, vocational expert ("VE") Ellen
12

Jenkins testified about Plaintiff's ability to find work given her physical limitations. Jenkins
stated that Plaintiffs past experience as a CNA gave her no transferrable skills. (D.I. 8-2 at 73)
She opined that an individual of Plaintiff's age and education level who was limited to sedentary
and unskilled work could perform work in the national economy as a security monitor, credit
card clerk, or order clerk. (Id. at 73-74) The VE added that although an individual with each of
the limitations listed in the Iannucci report would be capable of working, employers might fire
such an individual because of :frequent absences. (Id. at 78-82) On the other hand, according to
the VE, an individual with all the limitations listed in the Kim report would be unable to find
work in the national economy. (Id. at 77-78)

F.

The ALJ's Findings

Plaintiff appeals the ALJ's August 15 , 2013 decision. The ALJ "afforded great weight"
to the decision of another ALJ who had earlier evaluated Plaintiffs condition for the period of
June 17, 2008 to June 12, 2010. (DJ. 8-2 at 25) The ALJ summarized the earlier opinion as
finding that Plaintiff:
could perform a significant range of sedentary work ([if] permitted
to elevate her right leg occasionally during the course of a
workday, cannot perform [tasks] requiring repetitive reaching
and/or neck turning, and avoid push/pull tasks using her bilateral
upper and right lower extremities. In addition, cannot work in
temperatures and/or humidity extremes, must be permitted to
alternate between sitting and standing positions at will or
approximately every 30 to 45 minutes and limited to simple,
routine, unskilled work activities.
(Id. ) The ALJ noted that these findings deserved great weight because "the evidence of record

does not document significant changes in the claimant' s medical condition since that decision."
(Id. ) The ALJ stated that, despite "concur[ ring] with and generally adopt[ing] the prior . . .

13

finding as to the claimant' s residual functional capacity," it was appropriate to "give the claimant
the benefit of the doubt" by accounting for additional limitations incurred since the earlier
decision. (Id.)
On August 15, 2013 , the ALJ issued the following findings:
1.

The claimant meets the insured status requirements of the Social
Security Act through June 30, 2014.

2.

The claimant has not engaged in substantial gainful activity since
June 13, 2010, the alleged onset date (20 CFR 404.1571 et seq.,
and 416.971 et seq.).

3.

The claimant has the following severe impairments: degenerative
disc disease, tarsal tunnel syndrome, obesity, and depressive
disorder (20 CFR 404.1520(c) and 416.920(c)).

4.

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

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) and
416.967(a) except the claimant is limited to only occasional
climbing ramps/stairs, stooping, kneeling, crouching, crawling and
only frequent balancing. The claimant should never climb
ladders/ropes/scaffolds. The claimant should avoid concentrated
exposure to vibrations. She is limited to performing simple,
repetitive work tasks, and to work that is not performed at a
production pace.

6.

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

7.

The claimant was born on June 25, 1965 and was 44 years old,
which is defined as a younger individual age 45-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963) .

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8.

The claimant has a limited education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is "not disabled,"
whether or not the claimant has transferable job skills (See SSR
82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10.

Considering the claimant's age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11 .

The claimant has not been under a disability, as defined in the
Social Security Act, from June 13, 2010, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).

(D.I. 8 at 15-30)

III.

LEGAL STANDARDS

A.

Motion for Summary Judgment

"The court shall grant summary judgment ifthe movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 415 U.S. 574, 586
n.10 (1986). A party asserting that a fact cannot be - or, alternatively, is - genuinely disputed
must support its assertion either by citing to "particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for the purposes of the motions only), admissions, interrogatory answers,
or other materials," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support
15

the fact. " Fed. R. Civ. P . 56(c)(l)(A) & (B). If the moving party has carried its burden, the
nonmovant must then "come forward with specific facts showing that there is a genuine issue for
trial." Matsushita, 415 U.S. at 587 (internal quotation marks omitted). The Court will "draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods. , Inc., 530 U.S.
133, 150 (2000).
To defeat a motion for summary judgment, the non-moving party must "do more than
simply show that there is some metaphysical doubt as to the material facts. " Matsushita, 475
U.S. at 586-87; see also Podohnik v. U S. Postal Service, 409 F.3d 584, 594 (3d Cir. 2005)
(stating that party opposing summary judgment "must present more than just bare assertions,
conclusory allegations or suspicions to show the existence of a genuine issue") (internal
quotation marks omitted). However, the "mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment;" a factual dispute is genuine only where "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 411 U.S . 242,
247-48 (1986). "If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted." Id. at 249-50 (internal citations omitted); see also Celotex Corp. v.

Catrett, 411 U.S. 317, 322 (1986) (stating entry of summary judgment is mandated "against a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden of proof at trial").

B.

Review of the ALJ's Findings

The Court must uphold the Commissioner' s factual decisions if they are supported by

16

"substantial evidence." 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). "Substantial evidence" means less than a
preponderance of the evidence but more than a mere scintilla of evidence. See Ruthe1ford v.

Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). As the United States Supreme Court has noted,
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).
In determining whether substantial evidence supports the Commissioner' s findings, the

Court may not undertake a de novo review of the Commissioner' s decision and may not re-weigh
the evidence of record. See Monsour, 806 F .2d at 1190-91. The Court' s review is limited to the
evidence that was actually presented to the ALJ. See Matthews v. Apfel, 239 F.3d 589, 593-95
(3d Cir. 2001). However, evidence that was not submitted to the ALJ can be considered by the
Appeals Council or the District Court as a basis for remanding the matter to the Commissioner
for further proceedings, pursuant to the sixth sentence of 42 U.S.C. § 405(g). See Matthews, 239
F.3d at 592. "Credibility determinations are the province of the ALJ and only should be
disturbed on review if not supported by substantial evidence." Gonzalez v. Astrue, 537 F. Supp.
2d 644, 657 (D. Del. 2008) (internal quotation marks omitted).
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., that offered by treating physicians) - or if it really
constitutes not evidence but mere conclusion." Kent v. Schweiker, 710 F .2d 110, 114 (3d Cir.

17

1983). Thus, the inquiry is not whether the Court would have made the same determination but,
rather, whether the Commissioner' s conclusion was reasonable. See Brown v. Bowen, 845 F.2d
1211 , 1213 (3d Cir. 1983). Even if the reviewing Court would have decided the case differently,
it must give deference to the ALJ and affirm the Commissioner' s decision if it is supported by
substantial evidence. See Monsour, 239 F.3d at 1190-91.

IV.

DISCUSSION
Plaintiff contends that the ALJ: ( 1) failed to evaluate all of the relevant evidence

supporting Plaintiff's claim for disability; (2) gave insufficient weight to the opinions of
Plaintiff's treating physicians, Drs. Kim and Iannucci, and nurse practitioner, Ms. Doty; and
(3) failed to sustain the burden of establishing that Plaintiff could find and perform other work in
the national economy. (D.I. 16 at 5) The Commissioner argues that the ALJ's determinations
were supported by substantial evidence and that the ALJ's decision should be affirmed. (See D.I.
24 at 6-7)

A.

Disability Determination Process

Title II of the Social Security Act, 42 U.S.C. § 423(a)(l)(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." Bowen v. Yuckert, 482 U.S. 137, 140 (1987) . Title XVI of the
Social Security Act provides for the payment of disability benefits to indigent persons under the
SSI program. See 42 U .S.C. § 1382(a). A "disability" is defined for purposes of SSI as 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 . See 42 U.S.C.

18

§ 1382c(a)(3). A claimant is disabled "only if his physical or mental impairment or impairments

are of such severity that he is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy." 42 U.S.C. § 1382c(a)(l)(B); see also Barnhart v. Thomas, 540
U.S. 20, 21-23 (2003).
In determining whether a person is disabled, the Commissioner is required to perform a

five-step sequential analysis. See 20 CFR § 416.920; Russo v. Astrue, 42 l Fed. App 'x. 184, 188
(3d Cir. Apr. 6, 2011 ). If a finding of disability or non-disability can be made at any point in the
sequential process, the Commissioner will not review the claim further. See 20 CFR
§ 416.920(a)(4).

At step one, the Commissioner must determine whether the claimant is engaged in any
substantial gainful activity. See 20 CFR § 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 combination of impairments that is
severe. See 20 CFR § 416.920(a)(4)(ii) (mandating finding of non-disability when claimant's
impairments are not severe). If the claimant' s impairments are severe, the Commissioner, at step
three, compares the claimant' s impairments to a list of impairments that are presumed severe
enough to preclude any gainful work. See 20 CFR § 416.920(a)(4)(iii). When a claimant's
impairment or its equivalent matches an impairment in the listing, the claimant is presumed
disabled. See 20 CFR § 416.920(a)(4)(iii). If a claimant's impairment, either singly or in
combination, fails to meet or medically equal any listing, the analysis continues to steps four and

19

five. See 20 CFR § 416.920(e).
At step four, the Commissioner determines whether the claimant retains the residual
functional capacity ("RFC") to perform her past relevant work. See 20 CFR § 416.920(a)(4)(iv)
(stating claimant is not disabled if able to return to past relevant work). A claimant' s RFC is
''that which an individual is still able to do despite the limitations caused by his or her
impairment(s)." Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir. 2001 ). "The claimant bears the
burden of demonstrating an inability to return to her past relevant work." Plummer v. Apfel, 186
F.3d 422, 428 (3d Cir. 1999) (internal citation omitted).
If the claimant is unable to return to her past relevant work, step five requires the
Commissioner to determine whether the claimant' s impairments preclude her from adj usting to
any other available work. See 20 CFR § 416.920(a)(4)(v) (mandating finding of non-disability
when claimant can adjust to other work); Plummer, 186 F.3d at 428 . At this last step, the burden
is on the Commissioner to show that the claimant is capable of performing other available work
before denying disability benefits. See id. 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 [her] medical impairments, age, education, past work
experience, and [RFC] ." Id. In making this determination, the ALJ must analyze the cumulative
effect of all of the claimant' s impairments. See id. At this step, the ALJ often seeks the
assistance of a vocational expert. See id.
B.

ALJ's Evaluation of the Evidence

Plaintiff contends that the ALJ failed to acknowledge and evaluate all of the medical
evidence in this case, and as a result made several findings that contradict it. (D.I. 16 at 20) An

20

ALJ must consider all relevant evidence when determining an individual's residual functional
capacity. See 20 C.F.R. §§ 404.1527(e)(2), 404.1545(a), 404.1546; Burnett v. Comm 'r of Soc.
Sec., 220 F.3d 112, 121 (3d Cir. 2000). An ALJ's finding ofresidual functional capacity must

also include "a clear and satisfactory explication of the basis on which it rests." Fargnoli, 247
F.3d at 41(intemal quotation marks omitted). These findings "should be as comprehensive and
analytical as feasible and, where appropriate, should include a statement of subordinate factual
foundations on which ultimate factual conclusions are based," so that a reviewing court knows
the basis of the ALJ' s decision and can properly exercise its responsibility to determine whether
substantial evidence supports it. Cotter v. Harris , 642 F.2d 700, 705 (3d Cir.1981) (internal
quotation marks omitted).
The ALJ' s opinion in this case extensively and comprehensively summarizes the
Plaintiffs medical record. (D.I. 8-2 at at 20-28) The ALJ concluded that Plaintiffs statements
about the degree of severity and constancy of her symptoms were inconsistent with this record.
(Id. at 24) The ALJ based this conclusion on four subsidiary findings: (1) Plaintiff did not
receive the type of treatment one would expect of a totally disabled individual; (2) Plaintiffs
physical examinations did not reveal significantly decreased strength, sensation, or range of
motion consistent with the severe symptoms she claimed to experience; (3) Plaintiffs work
history showed that she had not engaged in substantial gainful activity for at least three years
before the onset of her disability; and (4) Plaintiffs daily activities were not as limited as one
might expect for a totally disabled individual. (Id. at 24-25) Plaintiff challenges the first and
fourth of these conclusions as unsupported by substantial evidence.

21

1.

Treatment methods

The ALJ found that the treatment Plaintiff obtained over the course of her disability was
not as extensive as one would expect for a totally disabled individual. The ALJ noted that
Plaintiff ' s treatment was "relatively limited and conservative overall." (Id. at 24) Plaintiff
contends that this and similar statements ignore "substantial portions of the medical evidence," in
particular Plaintiffs foot surgery and neurostimulator implant.
The full context of the ALJ' s statement clarifies its meaning. After describing in detail
the Plaintiffs medical record, including both surgeries (D.I. 8-2 at 20-24), the ALJ noted that
Plaintiff:
did not generally receive the type of medical treatment during the
period at issue that one would expect for a totally disabled
individual. Treatment was relatively limited and conservative over
all. [Plaintiff] was treated primarily with medications, which
appear to have been relatively effective in controlling her physical
and mental symptoms. [Plaintiff] uses a cane to ambulate but the
cane was not prescribed by a doctor . ..
(Id. at 24) Taken together, these statements show that the ALJ's characterization of Plaintiffs

treatment as "limited and conservative" refers to the fact that her physicians treated her primarily
with medication, and do not appear to have to have sought other solutions - such as devices to
help her with locomotion - that one might expect physicians to consider when treating a totally
disabled person. Substantial evidence in the record supports the ALJ's findings.
In addition to the ALJ' s characterization of Plaintiffs treatment as "limited and
conservative," the ALJ noted that Plaintiff "uses a cane to ambulate but the cane was not
prescribed by a doctor and the medical evidence of record does not indicate that it would
preclude the residual functional capacity stated above." (Id.) Substantial evidence in the record

22

supports these statements. While Plaintiffs physicians never said that her cane was unnecessary,
there is no evidence that her physicians prescribed it. Moreover, even if her cane were medically
necessary, the record does not indicate why her use of a cane is inconsistent with the ALJ's
finding that Plaintiff has the "residual functional capacity to perform sedentary work . ..
[including] only occasional climbing ramps/stairs, stooping, kneeling, crouching, crawling." (Id.
at 18) Thus, both of the ALJ's statements about Plaintiffs cane are supported by substantial
evidence in the record.

2.

Plaintiff's activity levels

After considering the entire record, the ALJ concluded that Plaintiffs activity levels were
not as limited as one would expect of a totally disabled person. The ALJ noted as examples that
Plaintiff stated in 2011 that she could help her children go to school, do light household chores,
and go to the grocery store once a month. (D.I. 8-2 at 25) Plaintiff does not dispute these
statements. Instead, she argues that by the time of her June 2013 testimony her condition was
significantly more severe. (D .I. 16 at 25) While that may be, Plaintiff is seeking benefits for the
period beginning in June 2010. The record contains substantial evidence showing that Plaintiff
was able to engage in the kinds of activities cited by the ALJ throughout 2010 and 2011.

C.

Weight Afforded to Evaluations by Plaintiff's Medical Providers

Plaintiff argues that the ALJ erred in giving little weight to the medical source statements
of Drs. Kim and Iannucci and no weight to the mental impairment questionnaire completed by
nurse Catherine Doty. (D.I. 16 at 25-30) Treating physician opinions are assessed according to
20 C.F.R. §§ 404.1527, 416.927. Controlling weight is afforded to a treating physician opinion
when it is well-supported by medically-acceptable clinical and laboratory diagnostic techniques
23

and is not inconsistent with the other substantial evidence in the record. See 20 C.F.R.
§§ 404.1527(c)(2) , 416.927(c); see also Fargnoli , 247 F.3d at 43 . Substantial evidence is " such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Adorno v. Shalala , 40 F.3d 43 , 46 (3d. Cir. 1994) (internal quotation marks omitted).

If a treating physician' s opinion is not entitled to controlling weight, that determination
"must not automatically become a decision to give a treating physician' s opinion no weight
whatsoever." Gonzalez, 537 F. Supp.2d at 660. Instead, an ALJ should consider numerous
factors in determining the weight to give it, including: the length of treatment relationship,
frequency of examination, nature and extent of the treatment relationship, supportability of the
opinion afforded by relevant medical evidence, consistency of the opinion with the record as a
whole, and specialization of the treating physician. See 20 CPR§ 416.1527(c). In general,
physicians ' reports deserve "great weight, especially when their opinions reflect expert judgment
based on a continuing observation of the patient' s condition over a prolonged period of time. "
Plummer, 186 F.3d at 429 (internal citation omitted). Thus, it is important to note that "in many

cases, a treating source' s medical opinion will be entitled to the greatest weight and should be
adopted even if it does not meet the test for controlling weight." Social Security Rule 96-2P.
An ALJ may reject a treating physician' s opinion "only on the basis of contradictory

medical evidence." Morales v. Apf 225 F.3d 310, 318 (3d Cir. 2000) (internal quotation marks
el,
omitted). It follows that an ALJ cannot reject a treating physician' s opinion "for no reason or for
the wrong reason." Id. at 317 (internal quotation marks omitted). More specifically, an ALJ
"cannot disregard the opinion of a treating physician without referencing objective medical
evidence conflicting with the treating physician ' s opinion and explain[ing] the reasoning for

24

rejecting the opinions of the treating physician." Dass v. Barnhart, 386 F. Supp.2d 568, 576 (D.
Del. 2005). When an ALJ's decision is to deny benefits, the notice of the determination
generally must contain specific reasons for the weight given to the treating source ' s medical
opinion, along with support from substantial evidence in the case record. See Social Security
Rule 96-2P. The determination should make clear to any subsequent reviewers the weight the
adjudicator gave the treating source' s medical opinion and the reasons for that weight. See id.
It is not for this Court to re-weigh the medical opinions in the record but rather to
determine ifthere is substantial evidence to support the ALJ' s weighing of those opinions. See
Monsour, 806 F .2d at 1190-91. Where detailed regulations prescribe the process an ALJ must

follow in determining the weight to give particular evidence, the Court can and should remand
for further proceedings if it appears the ALJ failed to follow these procedures. See Jopson v.
Astrue, 517 F. Supp.2d 689, 702 (D. Del. 2007).

1.

Dr. Kim

The ALJ found that Dr. Kim was Plaintiff's treating physician, but afforded his opinion
"little weight." (D.I. 8-2 at 27-28) The ALJ cited three reasons for doing so: Plaintiff saw Dr.
Kim infrequently; his report suggested that he had "relied quite heavily on the subjective report
of symptoms and limitations provided by [Plaintiff] , and seemed to uncritically accept as true
most, if not all, of what [Plaintiff] reported;" and his report "contained inconsistencies." (Id. at
28) The ALJ did not, however, cite to contradictory medical evidence, nor explain how Dr. Kim
appeared to the ALJ to have uncritically accepted Plaintiff's reports of her condition in a manner
unsupported by "medically acceptable clinical . .. techniques. " Fargnoli, 247 F.3d at 43.
Further, the ALJ's description of Dr. Kim ' s report only recounted one inconsistency: the
25

contradictory statements that Plaintiff could both sit for 1 hour and 20 minutes at one time, and
also needed to walk for 10 minutes every 15 minutes in an eight-hour work day. (D.I. 8-2 at 27)
These contradictory statements appear, however, to be the byproduct of an error in filling out the
assessment form, which asked Dr. Kim to describe Plaintiff's capacity by checking boxes and
circling numbers on scales. Because this error is the only inconsistency the ALJ noted, and
because the ALJ neither specified why Dr. Kim ' s assessment was not well-supported by clinical
evidence nor cited medical evidence inconsistent with other substantial evidence in the record,
the ALJ' s decision to give little weight to the assessment is not supported by substantial
evidence. See Fargnoli, 247 F.3d at 41.
2.

Dr. Iannucci

The ALJ found that Dr. Iannucci was Plaintiff's treating physician, but afforded his
opinion "little weight." (D.I. 8-2 at 27) As with Dr. Kim, the ALJ cited three reasons for doing
so: Plaintiff saw Dr. Iannucci infrequently; his report suggested that he had "relied quite heavily
on the subjective report of symptoms and limitations provided by [Plaintiff] , and seemed to
uncritically accept as true most, if not all, of what [Plaintiff] reported;" and his report "contained
inconsistencies." (Id. ) The ALJ did not, however, cite to contradictory medical evidence, nor
cite inconsistencies in Dr. Iannucci ' s report, nor explain the inference that Dr. Iannucci had
uncritically accepted Plaintiff's reports of her condition in a manner unsupported by "medically
acceptable clinical ... techniques." Fargnoli , 247 F.3d at 43. Because the ALJ neither specified
why Dr. Iannucci ' s assessment was not well-supported by clinical evidence, nor cited medical
evidence inconsistent with other substantial evidence in the record, the ALJ's decision to give it
little weight is not supported by substantial evidence. See id. at 41 .

26

3.

Nurse Doty

The ALJ gave "no weight" to Nurse Doty' s mental health evaluation of Plaintiff. (D.I. 82 at 27) The ALJ cited two reasons for doing so: (1 ) Ms. Doty is not an "acceptable medical
source" for establishing a medically determinable impairment, and (2) Ms. Doty' s opinion was
unsupported by contemporaneous treatment notes, which were "brief, handwritten and mostly
unreadable without apparent mental status examinations." (Id. at 26-27)
Nurse practitioners like Ms. Doty are not "acceptable medical sources" that can
"establish ... a medically determinable impairment." 20 CFR § 404.1513 (a). However,
evidence from nurse practitioners may be used to show "the severity of [an] impairment[] and
how it affects [a claimant's] ability to work." 20 CFR § 404.1513( d). In evaluating such
evidence, factors to be considered include how long the practitioner has known the claimant and
how frequently the practitioner has seen the claimant; how consistent the opinion is with other
evidence; the degree to which the claimant presents relevant evidence to support an opinion; how
well the source explains the opinion; whether the source has a specialty related to the individual 's
impairments; and any other factors that support or refute the opinion. 20 CFR § 404.1527(c).
Given these factors , and given that Ms. Doty's treatment records were illegible and did not
sufficiently reflect an examination of Plaintiff's mental status, the ALJ' s decision to give no
weight to Ms. Doty's evaluation is supported by substantial evidence.

D.

Establishing the Availability of Other Work in the National Economy

At the fifth step of the disability determination process, the Commissioner has the burden
of showing that a claimant is capable of performing other available work given the claimant' s
residual functional capacity. Plummer, 186 F.3d at 428. As discussed earlier, the ALJ gave little

27

weight to the opinions of Plaintiffs treating physicians during the disability determination
process, without substantial evidence to support that weighting. Because the information in
those opinions is relevant to determining Plaintiff's residual functional capacity, the ALJ's
determination at step five also lacks substantial evidentiary support. See Jopson , 517 F. Supp. 2d
at 705 n. 18 .

V.

CONCLUSION
The Court will remand this matter to the Commissioner for further proceedings not

inconsistent with this Memorandum Opinion. The cross-motions for summary judgment will be
granted in part and denied in part. An appropriate order follows .

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