Woznicki v. Colvin

Filing 16

MEMORANDUM. Signed by Judge Gregory M. Sleet on 5/12/2016. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RICHARD WOZNICKI
Plaintiff,
v.

CAROLYN W. COLVIN,
Commissioner of
Social Security,
Defendant.

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Civ. No. 14-1202-GMS

MEMORANDUM
Plaintiff Richard Woznicki ("Woznicki") appeals from a decision of defendant Carolyn W.
Colvin, Acting Commissioner of Social Security ("Commissioner"), denying his application for
disability insurance benefits ("DIB") under Title XVI of the Social Security Act, 42 U.S.C. § 401434. The court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).
Presently before the court are the parties' cross-motions for summary judgment. (D.I. 9,
12). For the foregoing reasons, Woznicki's motion for summary judgment is granted-in-part and
denied-in-part; the Commissioner's motion for summary judgment is denied-in-part and grantedin-part; and the matter is remanded for further findings and proceedings consistent with this
Memorandum.
I.

BACKGROUND
A.

Procedural History

Woznicki filed an application for DIB on June 9, 2011, alleging disability due to attention
deficit disorder, illiteracy, arthritis, and dyslexia. (Tr. 136-39). His claim was denied initially and

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on reconsideration. (Tr. 54, 61 ). Woznicki then requested a hearing before an Administrative Law
Judge ("ALJ"), which was held on April 18, 2013. (Tr. 29-50). On May 3, 2013, the ALJ issued
a decision finding that the ALJ issued a decision finding that there were numerous jobs in the
national economy that Woznicki could perform and, therefore, he was not disabled. (Tr. 22-23).
The Appeals Council denied Woznicki's request for review on July 15, 2014, making the ALJ's
decision the final decision of the Commissioner. (Tr. 1-5). Having exhausted his administrative
remedies, Woznicki filed this action. (D.I. 1).
B.

Medical History

Plaintiff was born in June 24, 1961, making him 49 years old as of the alleged onset date
of June 9, 2011. (Tr. 22). But he was 51 years old at the time of the date last insured (December
31, 2012), the date of the administrative hearing (April 18, 2013), and the date of the ALJ's
decision (May 3, 2013). (Tr. 13, 23, 147). Woznicki has a sixth-grade education and past work
experience as a carpet installer for multiple employers. (Tr. 33-35, 142-44). He was employed
for 22 consecutive years from 1985 to 2006. (D.I. 10 at 12). It is unclear why there is 3 year gap
in earnings from 2006 to 2010. (Id.). Following is a summary of evidence relevant to the issues
raised on appeal.
Woznicki has received treatment for chronic bilateral knee pain since March 2006, when
he tripped and landed on his right knee. (Tr. 340-47). An April 12, 2006 right knee MRI revealed
retropatellar chondromalacia, and x-rays performed on July 10, 2009 revealed bilateral
degenerative disease. (Tr. 350-52). On April 27, 2010, Woznicki presented to Dr. Rowe with
reports of bilateral knee pain more severe on the left. (Tr. 209). An examination revealed grade
1 effusion and audible. crepitus of the left knee. Dr. Rowe administered a cortisone injection to the
knee. (Id.). On May 6, 2010, Woznicki returned with complaints of right knee pain. Dr. Rowe

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noted right knee crepitus, grade 1 effusion, and pain at the patellofemoral joint with extension.
(Tr. 208). He diagnosed Woznicki with bilateral retropatellar chondromalacia, administered a
cortisone injection to the right knee, and prescribed Voltaren 75 mg. (Id.).
On July 18, 2012, Woznicki presented to Bayhealth Medical Group with reports of bilateral
knee pain and swelling. An examination revealed tenderness to palpation of the anterior knees,
worse on the right, and a positive standing athlete's test on the right. X-rays depicted bilateral joint
space narrowing. (Tr. 305). Woznicki received cortisone injections to both knees. (Tr. 306). On
February 7, 2013, he returned to Bayhealth Medical Group with continued knee pain and
"crunching" in the knees with walking. Upon examination, he demonstrated tenderness primarily
over the anterior aspect of both knees, lateral joint line tenderness of the right knee, and palpable
crepitus bilaterally. A standing Apley's test produced pain in both knees. Kristen McLaughlin,
PA-C, recommended physical therapy and over the counter anti-inflammatories. (Tr. 333).

C.

Medical Opinions
1.

Opinion of Consultative Examiner Dr. Ayoola.

On August 23, 2011, Ephraim Ayoola, M.D., performed a consultative examination of
Woznicki. Upon examination, Dr. Ayoola reported that Woznicki's gait is normal, motor power
is 5/5 in all limbs, sensations are intact, straight leg raising is negative. (Tr. 241-43). There was
no tenderness or deformity of the joints and no peripheral edema or atrophy. (Id.). Dr. Ayoola's
diagnostic assessment was bilateral knee pain secondary to degenerative joint disease and
chondromalacia and osteoarthritis of the hand joints. (Id.).
According to Dr. Ayoola, Woznicki had the residual functional capacity to lift/carry ten to
fifteen pounds; stand for at least one hour; and sit for three hours. (Tr. 241-42).

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Dr. Ayoola

opined that there was no significant obstacle to Woznicki being able to work 30-40 hours per week
with usual breaks provided it was at a sedentary level of exertion. (Id.).
2.

State Agency Opinions

On September 2, 2011, Michael Borek, D.O., completed a Physical Residual Functional
Capacity Assessment of Woznicki. (Tr. 251-56). Upon reviewing Woznicki's entire medical
record, Dr. Borek found that Woznicki could occasionally lift and/or carry 50 pounds and could
frequently lift and/or carry 25 pounds. (Tr. 252). Woznicki could stand and/or walk and sit for a
total of six hours during an eight-hour workday. (Tr. 252). Dr. Borek opined that Woznicki was
limited in his ability to push and/or pull with his lower extremities. (Tr. 252). Due to his knee
impairment, Dr. Borek concluded that Woznicki could frequently balance and stoop, and
occasionally climb, kneel, crouch, and crawl. (Tr. 253). Dr. Borek assessed no manipulative,
visual, or communicative limitations, but concluded that Woznicki should avoid concentrated
exposure to extreme cold and vibration because it could increase his pain. (Tr. 253-54). In support
of his conclusion, Dr. Borek explained that Woznicki had retropatellar chondromalacia associated
with years of laying carpet, but his alleged inability to perform any physical activity was not
supported by the objective medical findings, including the essentially normal consultative
examination findings. (Tr. 256). On December 5, 2011, Jose Acuna, M.D., affirmed Dr. Borek's
opinion and physical RFC assessment. (Tr. 265).
D.

The ALJ's Findings and Conclusions

The ALJ decided Woznicki's case pursuant to the five-step sequential evaluation process
described in Social Security's regulations. (Tr. 23-31). At step one, the ALJ found that Woznicki
had not performed substantial gainful activity between the alleged onset date of February 1, 2011
and the date last insured of December 31, 2012. (Tr. 15). At steps two and three, the ALJ found

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that Woznicki had the severe impairments of borderline intellectual functioning, due in part to
dyslexia, and degenerative joint disease in bilateral knees, but he did not meet or medically equal
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 15-18). The ALJ
proceeded to step four, where he found that Woznicki retained the residual functional capacity
("RFC") to perform light work, except that he was limited to unskilled jobs with an SVP of one or
two defined as being low stress, with low concentration or memory requirements; involve one to
two step tasks; no production rate pace work and little or no decision making or changes in work
setting or judgment. Woznicki could lift ten pounds frequently, twenty pounds occasionally; stand
or sit for one hour consistently on an alternate basis; needs to avoid heights, hazardous machinery
and temperature extremes and must avoid ladders, ropes, and scaffolds. Additionally, Woznicki
could do work that does not require reading or writing ability on more than an infrequent basis;
can drive an automobile and has a driver's license; and can count change. (Tr. 18). The ALJ
determined that Woznicki could not perform his past relevant work, but found at step five that
Woznicki was capable of making a vocational adjustment to other work that exists in significant
numbers in the national economy. (Tr. 21-22). Therefore, the ALJ determined that Woznicki was
not disabled. (Tr. 31 ).

II.

STANDARDOFREVIEW
A reviewing court will reverse the ALJ' s decision only if the ALJ did not apply the proper

legal standards or if the decision was not supported by "substantial evidence" in the record. 42
U.S.C. § 405(g); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). If the ALJ's findings
of fact are supported by substantial evidence, the court is bound by those findings even if it would
have decided the case differently. Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001).
Evidence is considered "substantial" if it is less than a preponderance but more than a mere

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scintilla. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). Substantial evidence means
"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)). In determining whether substantial evidence supports the ALJ's findings, the
court may not undertake a de novo review of the decision, nor may it re-weigh the evidence of
record. Monsour Med Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). In Social Security
cases, the substantial evidence standard applies to motions for summary judgment brought
pursuant to Federal Rule of Civil Procedure 56(c). See Woody v. Sec'y of the Dep't of Health &
Human Servs., 859 F.2d 1156, 1159 (3d Cir. 1988).

III.

DISCUSSION
Woznicki makes several arguments in support of his motion for summary judgment. First,

according to Woznicki, the ALJ erred in assigning little weight to the opinion of the consultative
examiner. This error was not harmless because Woznicki was closely approaching advanced age.
Second, the ALJ failed to include in his RFC all of the postural limitations opined by the state
agency non-examining physicians, even though the ALJ otherwise gave those opinions
"considerable weight." Finally, Woznicki's testimony was entitled to substantial credibility due
to his long work history with a single employer. Before addressing each of these arguments, the
court will address an error in the ALJ' s opinion with respect to Woznicki' s age.
A.

Closely Approaching Advanced Age

Generally, a claimant's age is determined at the time of the decision, not at the time of the
application or the hearing. Varley v. Sec'y ofHealth & Human Servs., 820 F.2d 777, 780 (6th Cir.
1987); Kumanchik v. Astrue, 2012 WL 875448, at *2 (W.D. Pa. Mar. 14, 2012) ("For the purposes
of determining age under the grids, the claimant's age as of the time of the decision governs.").

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Some cases have distinguished that rule when a claimant's date last insured occurs before the date
of the decision. In those cases, the "claimant's age on the date last insured generally governs."

Van Der Maas v. Comm 'r of Soc. Sec., 198 Fed. App'x 521, 527 (6th Cir. 2006); Kappler v.
Comm'ro/Soc. Sec., 2010 WL 503033, at *6 (D.N.J. Feb. 8, 2010) (finding thattheALJ correctly
applied the date last insured rather than the later date of the hearing to determine claimant's age
for DIB).
Here, it does not matter whether the court considers the date of the decision (May 3, 2013),
the date of the hearing (April 18, 2013), or the date last insured (December 31, 2012). (Tr. 13, 23,
147). On all of these dates, Woznicki was 51 years old, and therefore, considered under the
regulations to be a person "closely approaching advanced age." 20 C.F.R. § 404.1563. It appears
that the ALJ made an error by noting that Woznicki was "51 years old," but then concluding that
he was "a younger individual age 18-49 on the date last insured." (Tr. 22). This error is not
harmless, because in seeking testimony from the vocational expert, the ALJ only posited that the
hypothetical individual was 49 years old, and thus a younger individual. (Tr. 46). In addition, this
error could impact how the ALJ applied the Medical Vocational Guidelines.

According to

Woznicki, ifthe ALJ properly credited Dr. Ayoola's opinion thathe was limited to sedentary work,
then the Medical Vocational Guidelines require a finding of disabled. Thus, the court remands for
the ALJ to obtain new evidence from the vocational expert, and reconsider any other evidence in
the record as needed, in light of the fact that Woznicki was an individual closely approaching
advanced age.
B.

Medical Opinions

Woznicki argues that the ALJ impermissibly relied on his own lay analysis in giving the
opinion of Dr. Ayoola "little" weight. (D.I. 10 at 8). It is well established that an ALJ may not

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reject a medical opinion based only on his own lay interpretation of medical evidence. See, e.g.,
Burns v. Colvin, 2016 WL 147269, at *1 (M.D. Pa. Jan. 13, 2016); Ferguson v. Schweiker, 765

F.2d 31, 37 (3d Cir. 1985) ("By independently reviewing and interpreting the laboratory reports,
the ALJ impermissibly substituted his own judgment for that of a physician."); Morales v. Apfel,
225 F.3d 310, 317-18 (3d Cir. 2000) (explaining that an ALJ may not outright reject a medical
opinion due to his own "credibility judgments, speculation or lay opinion").
An ALJ may, however, give little weight to a doctor's opinion that is inconsistent with the

medical evidence of record and with his own examination findings. Jones v. Sullivan, 954 F.2d
125, 129 (3d Cir. 1991) (holding that an unsupported diagnosis is not entitled to significant
weight). Hall v. Comm 'r of Soc. Sec., 218 F.App'x 212, 215 (3d Cir. 2007) (affirming an ALJ's
decision to give little weight to a treating physician's opinion where there were "internal
inconsistencies in the various reports and treatment notes").
The ALJ here gave "little" weight to Dr. Ayoola's opinion, because it was not supported
by his "clinical observations or the medical evidence ofrecord." (Tr. 21). Specifically, Dr. Ayoola
found that Woznicki "had essentially a normal physical examination ... with intact sensations, full
motor power in all limbs, a normal gait without the use of an assistive device, normal range of
motion in each and every joint tested, no tenderness or deformity of joints and no peripheral
edema." (Tr. 21). The ALJ also considered Dr. Ayoola's opinion to be inconsistent with diagnostic
imaging from 2006 and 2012 showing only mild retropateller chondromalacia and no significant
joint space narrowing. (Id.). The court also notes that Michael H. Borek, D.O., and Jose Acuna,
M.D., who reviewed the medical evidence for the state agency, opined that Woznicki could
perform work at the light level of exertion. (Id.). Accordingly, the court cannot conclude that the
ALJ relied solely on his own lay interpretation in giving Dr. Ayoola's opinion "little" weight.

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C.

RFC

Woznicki argues that the ALJ was required to adopt all of the postural limitations found
by Dr. Borek, because the ALJ accorded Dr. Borek's opinion "considerable weight." (D.I. 10 at
9-11). However, "no rule or regulation compels an ALJ to incorporate into an RFC every finding
made by a medical source simply because the ALJ gives the source's opinion as a whole
'significant' weight." Wilkinson v. Comm 'r ofSoc. Sec., 558 Fed. App'x 254 *2 (3d Cir. 2014).
More important, Woznicki has not addressed how the ALJ' s conclusions would change
even if the ALJ included those additional postural limitations in the RFC. Dr. Borek opined that
Woznicki was limited in his ability to push and/or pull with his lower extremities, and that he could
occasionally climb, kneel, crouch, and crawl. (Tr. 252-53). It appears, however, that the jobs
identified by the ALJ do not require an individual to be capable of performing those functions.
See DICOT 920.687-018, 1991 WL 687965 (stating that climbing, kneeling, crouching, and

crawling are not present in job as garment bagger); DICOT 920.687-026, 1991WL687967 (stating
that climbing, kneeling, crouching, and crawling are not present in job as table assembler with
paper goods); DICOT 780.687-046M 1991 WL 680820 (stating that climbing, kneeling,
crouching, crawling not present in job as hand stuffer). Accordingly, even ifthe ALJ was required
to incorporate these additional postural limitations in his RFC, which he was not, it was harmless
error for him to exclude these limitations.

D.

Credibility

Woznicki argues that the ALJ never explicitly acknowledged the length of Woznicki' work
history in evaluating the credibility of his subjective complaints. (D.I. 10 at 12). When a claimant
has a lengthy history of continuous work with the same employer, his or her testimony may be
entitled to "substantial credibility." Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979).

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Work history, however, "is only one of many factors an ALJ may consider in assessing a claimant's
subjective complaints." Thompson v. Astrue, 2010 WL 3661530, at *4 (W.D. Pa. Sept. 20, 2010);
Rujjley v. Colvin, 2014 WL 807953, at *14 (W.D. Pa. Feb. 28, 2014). "Indeed, a claimant's work

history alone is not dispositive of the question of his credibility, and an ALJ is not required to
equate a long work history with enhanced credibility." Thompson, 2010 WL 3661530, at *4.
Here, Woznicki has not demonstrated he is entitled to enhanced credibility. He admits that
there is a three year gap in earnings from 2006 to 2010. Also, unlike in Dobrowolsky, the seminal
case establishing such enhanced credibility, Woznicki has not worked for the same employer.
Finally, Woznicki does not address why the court should find error in the ALJ's reasons for
discounting Woznicki's credibility.

Ultimately, an ALJ may reject a claimant's subjective

testimony that is found not credible so long as there is an explanation for the rejection of the
testimony. S.S.R. 96-7p. The court cannot find that an ALJ erred based solely on the weight given
to a claimant's work history without taking into account all of the factors that went into a credibility
determination. See Corley v. Barnhart, 102 F. App'x 752 at *2 (3d Cir. 2004) (stating that a
plaintiffs work history does not bolster his subjective complaints when the other evidence of
record is inconsistent with those complaints).

IV.

CONCLUSION

For the foregoing reasons, (1) Woznicki's motion for summary judgment (D.I. 9) is
granted-in-part and denied-in-part; and (2) the Commissioner's motion for summary judgment
(D.I. 12) is denied-in-part and granted-in-part. The matter is remanded for further findings and
proceedings consistent with this Memorandum.
Dated: May !'L , 2016

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