Moulton v. Colvin

Filing 20

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 8/31/2016. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MARYE. MOULTON,

)
)

Plaintiff,

)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security,)

Civ. No. 15-293-SLR

)

Defendant.

)

Karen Yvette Vicks, Esquire of the Law Office of Karen Y. Vicks, LLC, Dover, Delaware.
Counsel for Plaintiff.
Charles M. Oberly 111, United States Attorney, Wilmington, Delaware, and Dina White
Griffin and Heather Benderson, Special Assistant United States Attorney, Office of the
General Counsel Social Security Administration, Philadelphia, Pennsylvania. Counsel
for Defendant. Of Counsel: Nora Koch, Esquire, Acting Regional Chief Counsel,
Region Ill of the Office of the General Counsel Social Security Administration,
Philadelphia, Pennsylvania.

MEMORANDUM OPINION

Dated: August..;\, 2016
Wilmington, Delaware

I. INTRODUCTION

Mary Moulton ("plaintiff'') appeals from a decision of Carolyn W. Colvin, Acting
Commissioner of Social Security ("defendant"), denying her application for Disability
Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and
XVI, respectively, of the Social Security Act (the "Act") prior to August 1, 2012. See 42
U.S.C. §§ 401-434, 1381-1383f. Presently before the court are the parties' crossmotions for summary judgment. (D.I. 15, 17) The court has jurisdiction pursuant to 42
U.S.C. § 405(g). 1

II. BACKGROUND
A. Procedural History

Plaintiff filed an application for DIB and SSI on April 19, 2009, alleging disability
beginning on February 20, 2009. (D.I. 10-5 at 2-3) 2 Plaintiff's claim was initially denied
on July 15, 2009, and after reconsideration on September 4, 2009. (D.I. 10-3 at 2-5;
D.I. 10-4 at 2-5, 10-14) On September 14, 2010, after a hearing on July 29, 2010, the
ALJ issued an unfavorable decision, finding plaintiff was not disabled under the Act for
the relevant time period from February 20, 2009 through the date of the decision. (0.1.
10-3 at 6-22) Plaintiff then filed a request for Appeals Council review on September 24,
2010. (D.I. 10-4 at 55-56) On August 30, 2012, 3 the Appeals Council granted plaintiff's

1

Under § 405(g), [a]ny individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party ... may obtain a review of such
decision by a civil action commenced within sixty days after the mailing to him of notice
of such decision .... Such action shall be brought in the district court of the United
States for the judicial district in which the plaintiff resides .... 42 U.S.C. § 405(g).
2
The court cites to page numbers assigned by ECF.
3
After plaintiff requested that the U.S. Senator's office intervene.

request and remanded the matter back to the ALJ for further administrative
proceedings. (D.I. 10-5 at 40-52; D.I. 10-3 at 23-28) On May 10, 2013, plaintiff
voluntarily amended her alleged onset of disability to October 14, 2009. (D.I. 10-5 at
100) The ALJ held a second hearing on May 21, 2013. (D.I. 10-2 at 72-95) On July
25, 2013, the ALJ again issued an unfavorable decision, finding plaintiff was not
disabled from October 14, 2009 through the date of the decision. (Id. at 12-35) After an
unsuccessful appeal to the Appeals Council, plaintiff filed the instant appeal. (Id. at 2-6)
B. Medical History
1. Health history prior to the relevant period
On September 26, 2007, neurologist Dr. Robert J. Varipapa 4 ("Dr. Varipapa")
evaluated plaintiff. Plaintiff reported that her sharp pain, numbness, balance difficulties,
and paresthesia 5 had become more intolerable in the last two months. Plaintiff also
reported starting to use a CPAP machine for her obstructive sleep apnea the night
before. Plaintiff weighed 245 pounds. Dr. Varipapa's impressions were diabetes
mellitus, peripheral neuropathy, obstructive sleep apnea, hypertension,
hypercholesterolemia, and chronic low back pain. Dr. Varipapa suggested starting a
course of Cymbalta 6 and discontinuing Neurontin 7 in an attempt to help plaintiff lose
weight. (D.I. 11-1 at 55-58) On October 25, 2007, plaintiff reported to Dr. Varipapa that

4

With CNMRI: Neurology, Sleep Medicine, MRI.
"A sensation of pricking, tingling, or creeping on the skin having no objective cause
and usually associated with injury or irritation of a sensory nerve or nerve root."
Merriam-Webster Unabridged (2016).
6 Cymbalta is used to treat major depressive disorder in adults. It is also used to treat
pain caused by nerve damage in adults with diabetes (diabetic neuropathy). See
https://www.drugs.com/cymbalta.html (last visited August 10, 2016).
7 Neurontin is used in adults to treat nerve pain. See
https://www.drugs.com/neurontin.html (last visited August 10, 2016).
5

2

the pain, tingling, and itching had resolved, but she continued to have numbness in both
feet. She was taking Cymbalta and had discontinued Neurontin. Dr. Varipapa
prescribed Lyrica. 8 (D.I. 11-1 at 53-54) On February 27, 2008, plaintiff returned to
Stephanie Behrens, PA-C 9 ("Behrens") for a recheck of cough. Behrens assessed
plaintiff with lower-extremity edema. (D.I. 11-1 at 6-7) On March 20, 2008, plaintiff
reported severe leg swelling in both legs to Dr. Sharad Patel 10 ("Dr. Patel"). Dr. Patel
increased plaintiff's dosage of Lasix. 11 Plaintiff also presented with a cough and
wheezing, for which Dr. Patel prescribed Entex PSE. 12 (D.I. 11-1 at 4-5) On April 23,
2008, plaintiff weighed 268 pounds. 13 Dr. Patel rated plaintiff's lower extremity edema
as 2+. (D.I. 11 at 148-49)
On June 12, 2008, plaintiff went to the emergency room at Bayhealth Medical
Center after feeling unwell the previous day and feeling disoriented in the morning. The
care providers found that plaintiff's blood sugar was elevated and diagnosed that
plaintiff's diabetes was "out of control." (D.I. 11 at 28-40) On June 16, 2008, plaintiff

8

Lyrica (pregabalin) affects chemicals in the brain that send pain signals across the
nervous system. It is used to treat pain caused by nerve damage in people with
diabetes (diabetic neuropathy). See https://www.drugs.com/lasix.html (last visited
August 10, 2016).
9 With Dover Family Physicians.
10 With Dover Family Physicians.
11 Lasix is used to treat fluid retention (edema). See https://www.drugs.com/lasix.html
(last visited August 10, 2016).
12 Entex is used to relieve congestion, cough, and throat and airway irritation due to
colds, flu, or hay fever. See https://www.drugs.com/cdi/entex-pse-sustained-releasetablets.html (last visited August 10, 2016).
13 Plaintiff's highest recorded weight. Plaintiff has been classified as obese to morbidly
obese. (See e.g., D.I. 11-2 at 32, 48) Plaintiff's medical records reflect her height as 5
feet 4 inches, however, at a consultative examination on October 25, 2012, plaintiff's
height was recorded as 5 feet 1 inch tall and she weighed 234 pounds. (D.I. 11-1 at 97)

3

followed up with Dr. Jerome Abrams 14 ("Dr. Abrams") and reported high glucose
readings. Plaintiff was prescribed Glucotrol. 15 (D.I. 11 at 141-42) On June 25, 2008,
plaintiff followed up with Dr. Patel and reported that her blood sugar readings were
much improved. (D.I. 11 at 139-40) On September 29, 2008, plaintiff went to the
emergency room at Bayhealth Medical Center reporting that her left arm was heavy and
numb and she had chest pain. The care providers diagnosed hypokalemia (low
potassium) and gave plaintiff an "intravenous Krider," which promptly resolved her
symptoms. Plaintiff was told to increase her potassium intake. (D. I. 11 at 10-27) On
October 1, 2008, plaintiff followed up with Dr. Patel and was much improved. Plaintiff
was prescribed Amitriptyline HCl 16 for her neuropathy. Plaintiff requested a referral to
an endocrinologist. (D.I. 11at137-38)
In 2009, plaintiff continued to receive care for her foot pain complaints. On
February 18, 2009, Dr. Patel noted plaintiff was compliant with dietary changes, but not
with exercise. Plaintiff reported that she had no side effects from her medications; felt
well and had only minor complaints; had no complaints related to her hypertension and
hyperlipidemia; and denied muscle cramps or muscle weakness. Plaintiff was advised
to consider lap band surgery for weight loss. (D.I. 11 at 114-15) On March 25, 2009,
plaintiff reported to Dr. Varipapa increasing pain and numbness of her feet; difficulty
walking for a distance or standing for long periods of time; and lower back pain. Dr.
Varipapa noted that plaintiff had lost 35 pounds since her last visit, which plaintiff

14

With Dover Family Physicians.
Glucotrol is used together with diet and exercise to treat type 2 diabetes. See
https://www.drugs.com/glucotrol.html (last visited August 10, 2016).
16
Amitriptyline is used to treat symptoms of depression and may also be used for other
purposes. See https://www.drugs.com/amitriptyline.html (last visited August 10, 2016).
15

4

credited to discontinuing Lyrica. In discussing Dr. Varipapa's previous
recommendations, plaintiff indicated she would not pursue lap band surgery, consult a
podiatrist, or restart Lyrica with appropriate food controls. Plaintiff agreed to continue
Cymbalta. (D.I. 11 at 5-7) On June 20, 2009, plaintiff consulted Dr. Blanca OcampoLim 17 ("Dr. Blanca") for her diabetes. Plaintiff reported weight gain. Dr. Blanca noted
that plaintiff's diabetes was improving and plaintiff consented to insulin therapy. (D.I. 11
at 65-68)
On July 13, 2009, Dr. K Swami 18 ("Dr. Swami") performed a physical residual
functional capacity ("RFC") assessment. Dr. Swami found that plaintiff was capable of
occasionally or frequently lifting and carrying up to 10 pounds; standing and/or walking
for at least 2 hours in an eight-hour workday, and sitting for about 6 hours in an 8-hour
workday; unlimited pushing and/or pulling; occasionally climbing ramps, stairs, ladders,
or scaffolds, balancing, stooping, kneeling, crouching, or crawling. Plaintiff had no
manipulative, visual, communicative, or environmental limitations. Dr. Swami found
plaintiff partially credible. He attributed the specified limitations to her lower back pain,
deteriorating disk in her lower back, diabetes (with some end organ damage), neuritis in
the feet, high blood pressure, and high cholesterol. He also noted her obesity with a
body mass index as high as 44 and sleep apnea. He explained in a vocational analysis
that plaintiff has physical restrictions, cannot return to her past work, and has no
transferable skills. Dr. Swami found that plaintiff was capable of sedentary work and
listed three occupations with an SVP 19 of 2. (D.I. 11 at 72-81)

17

With Smyrna Internal Medicine & Endocrinology.
A non-examining agency physician.
19
Specific Vocational Preparation.

18

5

On July 29, 2009, plaintiff consulted with Behrens for depression and ankle pain.
Behrens reported that the ankle has lateral joint line tenderness with localized swelling.
Plaintiff had full range of motion and a normal gait. Behrens prescribed Xanax 20 for
depression and Naprosyn 21 for ankle pain. (D.I. 11 at 82-84) On August 6, 2009,
plaintiff followed up with Dr. Varipapa for her pain, numbness, and tingling in feet,
obstructive sleep apnea, and headaches. Plaintiff indicated she was trying to quit
smoking. Dr. Varipapa found that plaintiff's cranial nerves were grossly intact and she
had no gross motor deficits, with a normal gait and balance. He ordered an MRI and
prescribed Topamax22 and Trazodone. 23 (D.I. 11 at 91-92) On August 13, 2009, Dr.
Varipapa reported that plaintiff's MRI showed "disk herniation seen as mild disk
protrusion to the right suggested at C5/6. Clinical correlation for associated
radiculopathy suggested." (D.I. 11 at 93-97) At plaintiff's request, Dr. Varipapa
completed a form for the Delaware Health and Social Services Division of Social
Services on August 20, 2009. He opined that plaintiff suffered from peripheral
neuropathy with burning dysesthesia in the lower extremities, obstructive sleep apnea,
migraine headaches, and chronic lower back pain. He indicated that plaintiff could not
work at her usual occupation for a period of 6-12 months and could not work full-time.
Plaintiff could participate in classroom training. (D.I. 11 at 99)

20

Xanax is used to treat anxiety disorders, panic disorders, and anxiety caused by
depression. See https://www.drugs.com/xanax.html (last visited August 10, 2016).
21 Naprosyn is used to treat pain or inflammation. See
https://www.drugs.com/naprosyn.html (last visited August 10, 2016).
22 Topamax is used to prevent migraine headaches in adults. See
https://www.drugs.com/topamax.html (last visited August 10, 2016).
23
Trazodone is an antidepressant medicine. See
https://www.drugs.com/trazodone.html (last visited August 10, 2016).

6

On September 16, 2009, plaintiff underwent an overnight polysomnogram, which
revealed an insignificant sleep disorder and mild snoring. (D.I. 11-1 at 37-46) On
September 24, 2009, Dr. Varipapa reported that Gabapentin 24 helped plaintiff's pain
symptoms, which worsened when plaintiff ran out of the medication. Dr. Varipapa noted
that plaintiff would voluntarily continue using the CPAP machine as plaintiff believes that
she sleeps better with it and gets headaches without it. Plaintiff reported that she was
trying to get disability as she cannot stand or sit for any period of time. (D.I. 11-1 at 3546)

2. Health history during the relevant period
On October 14, 2009, Dr. Varipapa reviewed the results of plaintiff's nerve
conduction studies to evaluate for peripheral compression neuropathy, which revealed
prolonged latencies consistent with median neuropathy in plaintiff's right wrist, as well
as peripheral neuropathy. Dr. Varipapa's impressions were right carpal tunnel
syndrome and peripheral neuropathy. (D.I. 11-1 at 33-34, 59-60) On October 28, 2009,
plaintiff reported to Dr. Varipapa that she had constant numbness and tingling in her
hands and was wearing bilateral wrist splints. Dr. Varipapa reported a normal gait and
balance, grossly intact cranial nerves, and mild decreased sensation to vibration in the
toes bilaterally. (D.I. 11-1 at 31-32) On January 26, 2010, plaintiff reported to Dr.
Stephen Penny25 ("Dr. Penny") that the wrist braces worsened her symptoms and that
she was having trouble gripping and tended to drop things. Dr. Penny found "midline
lower lumbar tenderness and bilateral lumbar paraspinal tenderness." He noted that

24

Gabapentin is used in adults to treat nerve pain. See
https://www.drugs.com/gabapentin.html (last visited August 10, 2016).
25
With CNMRI: Neurology, Sleep Medicine, MRI.

7

her straight leg raise was negative; her Tinel's sign 26 was negative at both wrists; and
her gait was antalgic. He ordered an MRI and told plaintiff to discontinue use of the
wrist braces. On February 10, 2010, plaintiff underwent an MRI, which showed
"[i]ncreased epidural fat at L4-5 and L5-S1 associated with mild to moderate central
spinal stenos is at both of these levels, worse at L5-S 1" and "[d]egenerative disk disease
at L3-4 and L4-5 without evidence of disk herniation, nerve root canal stenosis or
central spinal stenosis." On February 15, 2010, Dr. Penny followed up with plaintiff,
who reported a limited ability to walk 27 and worsening pain when standing for 1-2 hours.
Dr. Penny opined that he did not feel plaintiff was a candidate for spinal surgery, but
referred plaintiff "in view of the severe refractory nature of her pain." Dr. Penny
observed negative Tinel's sign at both wrists, normal upper and lower extremity
strength, and posterior thigh pain bilaterally at 45 degrees from a straight leg test. He
recommended weight loss, including surgical options. He prescribed Ultram 28 for pain.
(D.I. 11-1 at 25-30)
On February 23, 2010, Dr. Eric Schwartz 29 ("Dr. Schwartz") evaluated plaintiff's
wrist and hand pain. For plaintiff's right wrist, Dr. Schwartz found that:
The patient has some wrist pain. The wrist range of motion is mildly
limited in in dorsiflexion and volar flexion. She is able to make a full fist
but it is painful. There are no palpable nodules at the base of the thumb
or fingers and no triggering demonstrated. The patient has no pain with
basilar grind. There is no Finkelstein's test. Tinel's testing and direct
compression test is negative. The patient has numbness in the entire
26

A tingling sensation felt in the distal portion of a limb upon percussion of the skin over
a regenerating nerve in the limb. Merriam-Webster Medical Dictionary (2016).
27 She stated she could currently walk halfway through the mall before needing to sit
down.
28
Ultram (tramadol) is a narcotic-like pain reliever, used to treat moderate to severe
pain. See https://www.drugs.com/ultram.html (last visited August 10, 2016).
29
With Delaware Orthopaedics & Sports Medicine, PA.

8

hand. She has no thenar atrophy. The radial pulse is palpable. There is
no neck pain and neck range of motion is normal. There is no evidence
on exam of any radicular symptoms producing any hand numbness.
For plaintiff's left wrist, Dr. Schwartz found the same, with the exception that plaintiff
was able to make a full fist. Dr. Schwartz noted that plaintiff tried bracing and was not
interested in physical therapy. He opined that he was not convinced plaintiff's major
problem was resulting from carpal tunnel syndrome. He recommended (and plaintiff
proceeded with) a cortisone injection in the right wrist. (D.I. 11-1 at 63-66)
On April 14, 2010, Dr. Bhavin Dave 30 ("Dr. Dave") evaluated plaintiff for
abdominal pain, diarrhea, and difficulty swallowing. He prescribed Omeprazole. 31 (D.I.
11-1 at 23-24) On April 20, 2010, plaintiff underwent an exercise myocardial perfusion
which found no stress induced myocardial ischemia. Dr. Patel noted that plaintiff had
poor exercise tolerance, but normal blood pressure and heart rate response with no
exercise-induced chest pain. (D. I. 11-1 at 80) After continued treatment with her
various care providers, on July 23, 2010, plaintiff followed up with Dr. Dave and
reported that her dysphagia had resolved. She still had four to five bowel movements
per day with occasional gas, bloating, and indigestion. (D.I. 11-2 at 25) On October 21,
2010, Dr. Patel noted that plaintiff was complying with dietary changes, but not with
exercise in the management of her diabetes. He also reported that plaintiff described
her numbness in the feet as moderate and plaintiff's gait and station were normal. (D.I.
11-1 at 145-48) Plaintiff's care providers continued to counsel her on weight loss and

30

With GI Consultants Dover.
Omeprazole (Prilosec, Zegerid) decreases the amount of acid produced in the
stomach and is used to treat symptoms of gastroesophageal reflux disease and other
conditions caused by excess stomach acid. See
https://www.drugs.com/omeprazole.html (last visited August 10, 2016).
31

9

smoking cessation. (See, e.g., D.I. 11-2 at 3-4, D.I. 11-1at139-44) On January 5,
2011, Dr. Dave followed up with plaintiff and noted that her diabetes was "out of
control." (D.I. 11-2 at 22-24) On January 19, 2011, Dr. Patel again noted that plaintiff
was not complying with exercising, but had a normal gait and station. (D.I. 11-2 at 99102) On February 16, 2011, Dr. Dave reviewed plaintiff's diet and asked her to avoid
certain foods that she was eating to help with her bloating. (D. I. 11-2 at 14-16) On
February 28, 2011, Dr. Patel followed up with plaintiff regarding her hypertension,
hyperlipidemia, diabetes, and lower back pain. Plaintiff continued to report low back
pain radiating to her thighs and relieved by heat. Dr. Patel noted normal gait and station
and adjusted certain of plaintiff's medication. (D. I. 11-2 at 95-98)
On March 14, 2011, plaintiff underwent right carpal tunnel release surgery by Dr.
Glen Rowe. 32 (D.I. 11-1 at 83) She began physical therapy in April 2011 and on May 9,
2011, plaintiff reported 50% improvement, but her wrist burned with a lot of use. (D.I.
11-1at116-18) On September6, 2011, plaintiff's care provider noted that her
perceived improvements were 75% since beginning physical therapy. (D.I. 11-1 at 87)
On April 4, 2011, plaintiff reported to Dr. Patel that she had vertigo for six hours
and lightheadedness precipitated by position change, head turning, and standing
suddenly. Dr. Patel opined that the symptoms were likely secondary to hypotension.
He recommended that plaintiff discontinue Vasotec33 and increasing fluids. (D.I. 11-2 at
86-88) On April 20, 2011, plaintiff reported that her symptoms were decreasing. (D.I.
11-2 at 84-85)

32

With Bayhealth Medical Group Orthopaedic Surgery.
Vasotec is used to treat high blood pressure (hypertension) in adults. See
https://www.drugs.com/vasotec.html (last visited August 10, 2016).

33

10

On April 29, 2011, plaintiff returned to Dr. Penny complaining of numbness in the
lower legs and a loss of sensation circumferentially from the midcalf distally with
symptoms worsening at night. Dr. Penny found the strength in plaintiff's legs normal,
with normal muscle tone, but the vibration sensation diminished in both feet. Plaintiff's
gait was antalgic. Plaintiff had no pain with range of motion of the hips, knees, or
ankles. Dr. Penny assessed plaintiff with paresthesia and listed potential causes as
peripheral neuropathy or lumbar spinal stenosis, previously demonstrated on plaintiff's
lumbar spine MRI and related to increased epidural fat. Dr. (D.I. 11-1 at 91-93) On
May 6, 2011, Dr. Penny reported that plaintiff had undergone an incomplete nerve
conduction study as plaintiff requested that the study be terminated early as she could
not tolerate it. He noted that the limited findings "suggest the presence of at least a
sensory neuropathy." (D.I. 11-1 at 90) Plaintiff returned to Dr. Patel on June 24, 2011,
who noted that plaintiff had a normal gait and station. Plaintiff complained of allergic
rhinitis, with congestion and cough. Dr. Patel recommended plaintiff continue
Loratadine and Pseudoephedrine. 34 (D.I. 11-2 at 80-83)
In August and September 2011, plaintiff consulted with Bayhealth Medical Group
Orthopaedic Surgery and received a prescription for physical therapy post carpal tunnel
surgery and for Norco. 35 (D.I. 11-1 at 117-18, 129-130) Dr. Jonathan Kates ("Dr.
Kates") completed a physical residual functional capacity questionnaire after he met

34

Loratadine and pseudoephedrine is a combination medicine used to treat sneezing,
runny or stuffy nose, and other symptoms of allergies and the common cold. See
https://www.drugs.com/mtm/loratadine-and-pseudoephedrine.html (last visited August
10, 2016).
35 Norco contains a combination of acetaminophen and hydrocodone. It is used to
relieve moderate to moderately severe pain. See
https://www.drugs.com/mtm/norco.html (last visited August 10, 2016).
11

with plaintiff on September 29, 2011 and she "mentioned her back." Dr. Kates
diagnosed plaintiff with lumbar radiculopathy and neuropathy causing pain, limited
flexion and extension, and difficulty ambulating. He characterized the pain as lower
back pain with radiation to both lower extremities and noted that plaintiff was tender to
palpitation over the right lower lumbar area. As to side effects from medications, Dr.
Kates noted "Norco - drowsiness." Dr. Kates concluded that plaintiff's impairments were
reasonably consistent with her symptoms and functional limitations. Plaintiff's pain or
other symptoms seldom interfere with attention and concentration. Plaintiff was capable
of low stress jobs, as physical stress exacerbates her back condition. Plaintiff could
walk less than one block without resting or severe pain. Plaintiff could continuously sit
for 1 hour; stand for 10 minutes at one time. In an 8 hour work day, plaintiff could sit for
at least 5 hours, stand/walk for less than 2 hours, and would need 7 minute walking
breaks every 60 minutes. Dr. Kates further concluded that plaintiff did not need a job
permitting shifting positons at will from sitting, standing, or walking. She would need to
take unscheduled breaks twice for 5-7 minutes during an 8 hour work day. She did not
need her legs elevated during prolonged sitting. Plaintiff needed a cane or other
assistive device for occasional standing/walking. Plaintiff could occasionally lift and
carry less than 10 pounds. She had no significant limitation in doing repetitive reaching,
handling or fingering. She could never stoop or crouch. Dr. Kates estimated that
plaintiff would be absent about once a month because of her impairments. (D.I. 11-1 at
131-134)
On October 14, 2011, Dr. Patel noted that plaintiff's intermittent dizziness over
the last weeks was associated with an ear infection, headache and nausea. As to

12

plaintiff's diabetes, Dr. Patel reported that plaintiff was not compliant with exercise or
diet. He noted normal gait and station. (D.I. 11-2 at 73-76) On October 21, 2011, Dr.
Varipapa reported that plaintiff's brain MRI showed several areas of increased signal
that were nonspecific in nature. (D. I. 11-1 at 89) Plaintiff returned to Dr. Penny on
October 28, 2011, reporting difficulty walking as of three months ago. Plaintiff was
using a cane and denied any falls. Dr. Penny found normal coordination and movement
without difficulty. Dr. Penny recommended an aerobic exercise program at home to
help with lower back pain and that plaintiff consider physical therapy in the future. (D.I.
11-2 at 148-52) On December 30, 2011, plaintiff reported that her walking difficulties
were getting worse and she was using a cane. Dr. Varipapa found plaintiff's strength
intact. The care providers advised plaintiff to start a regular walking program. (D.I. 11-2
at 143-47)
On February 16, 2012, Dr. Patel noted that plaintiff's diabetes self-management
included dietary modification with home glucose testing three times daily. Plaintiff
reported numbness located in the right foot, right upper extremity, left foot, and left
hand. (D.I. 11-2 at 65-67) On February 28, 2012, Dr. Patel completed a physical
residual functional capacity questionnaire, diagnosing plaintiff with neuropathy, back
pain, and carpal tunnel syndrome, causing chronic pain and numbness in her hands
and feet. He characterized plaintiff's pain as severe burning pain to her feet, and
decreased sensation in her hands. He stated that plaintiff had "pain to feet on exam,
back." Moreover, her medications caused fatigue and dizziness. He opined that
plaintiff's pain and other symptoms would frequently interfere with attention and
concentration. Dr. Patel concluded that plaintiff could walk less than a block without

13

resting or severe pain. She could continuously sit for 45 minutes and continuously
stand for 20 minutes. In an 8 hour work day, plaintiff could sit for less than 2 hours and
stand/walk for less than 2 hours. She would need to include periods of walking every
30 minutes for 10 minutes. She would need a job which permits shifting positions at will
from sitting, standing, or walking. She would need unscheduled breaks every 10 to 15
minutes and would need to rest for 20 to 30 minutes before returning to work. With
prolonged sitting, plaintiff would need to elevate her legs more than 50% of the time at a
level higher than her waist. Plaintiff does not need a cane or other assistive device for
occasional standing and walking. She can occasionally lift and carry up to 10 pounds.
Plaintiff has significant limitation in doing repetitive reaching, handling, or fingering; can
use her hands to grasp, twist, and turn objects 10% of the time; use her fingers for fine
manipulation 10% of the time; and use her arms for reaching only 10% of the time. She
can stoop and crouch 5% of the time. Dr. Patel estimated that, on average, plaintiff
would miss more than 4 days a month from work because of her impairments. (D.I. 112 at 103-106)
Plaintiff reported continuing symptoms of headaches, gait difficulties and low
back pain to Dr. Patel and Dr. Varipapa in April, May, and August 2012. (D.I. 11-2 at
60-62, 133, 138-42) On August 21, 2012, plaintiff described that her diabetes was
improving. Dr. Patel noted that plaintiff had "normal strength in all extremities and
normal range of motion, abnormal gait (slow, with cane)." (D.I. 11-2 at 54-56) On
September 25, 2012, plaintiff underwent a neuromuscular exam revealing "normal
motor tone, decreased bulk and strength, with right [side] greater than left. Pulses and
[deep tendon reflexes] are intact and symmetric. There was positive Tinel's on the

14

right." The care providers noted right carpal tunnel syndrome and peripheral
neuropathy secondary to diabetes. (D.I. 11-2 at 131-37)
On October 25, 2012, consultative physician Dr. William Barrish ("Dr. Barrish")
completed a range of motion chart and provided the following statement: 36
Range of motion is limited in the lumbar spine as well as the ankles.
Strength is limited in the hands as well as the distal lower extremities. At
this time, I feel the patient could sit for 6 to 8 hours per day although
frequent position changes would be helpful. Standing and walking could
be done less than 1 hour per day. Lifting and carrying could be done with
0 pounds frequently and 5 pounds occasionally. Grasping and handling
could be done occasionally with limitations in the right hand due to carpal
tunnel syndrome and residual symptoms status post carpal tunnel release.
Bending, crawling, crouching and stooping should be avoided. Gait is
significantly slowed with a shuffling gait pattern and ataxia secondary to
neuropathy. The claimant is able to drive but is limited in terms of
distance due to recurrence of back pain.
(D.I. 11-1at94-103) Dr. Barrish completed a medical source statement form on
November 1, 2012, indicating that plaintiff needed a cane to ambulate, that it was
medically necessary, and she could walk less than 10 feet without using it. Dr. Barrish
concluded that plaintiff could lift and carry only up to 5 pounds occasionally because of
her lower back pain and neuropathy. She could stand or walk for 5 minutes and sit for
30 minutes at one time. She could sit for 8 hours and stand or walk for 30 minutes each
in an 8 hour work day. He reported that she could only use her right hand occasionally
for reaching overhead, handling, fingering, feeling, pushing, and pulling because of her
carpal tunnel syndrome. Likewise, she could only use her feet occasionally for
operation of foot controls because of neuropathy. Dr. Barrish concluded that plaintiff
could never climb stairs, ramps, ladders, or scaffolds, stoop, kneel, crouch, or crawl and

36

He indicated that he was not provided a medical source form.
15

could occasionally balance because of lower back pain and neuropathy. He noted
certain environmental limitations - no exposure to unprotected heights, occasional
exposure to moving mechanical parts, and occasional operation of a motor vehicle. He
indicated that the limitations he found had been present for 2 years. (D.I. 11-1 at 11925)
On October 26, 2012, Joseph Keyes, Ph.D. ("Dr. Keyes") completed a physical
functioning assessment and clinical psychological evaluation. Dr. Keyes concluded that
plaintiff has an adjustment disorder, with depressed mood and learning disorder. More
specifically,
[p]laintiff is able to understand, remember and carry out simple
instructions and tasks. She has difficulty with complex instructions and
tasks because of her limited abstract thinking and learning disorder. She
is capable of responding appropriately and adequately to coworkers,
supervisors and the public. She can follow simple standard/usual work
situations (attendance, safety, basic procedures). She has difficulty with
complex work routines and situations because of her learning disorder and
concrete thinking. Plaintiff can deal with typical and usual type changes in
basic work routines.
Dr. Keyes assessed plaintiff with a Global Assessment of Functioning ("GAF") 37 at 60.
He also indicated that plaintiff had been using a cane to walk for approximately 6
months and walked with a slow gait. (D.I. 11-1 at 104-15)

37

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. American Psychiatric Association,
Diagnostic & Statistical Manual of Mental Disorders (Text Revision, 4th ed. 2000) (DSMIV-TR). A GAF of 31-40 indicates "[s]ome 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 ... )." A GAF of 41-50 indicates "[s]erious 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)." A GAF of
16

On November 2, 2012, plaintiff consulted Dr. Varipapa for an urgent appointment
due to a headache. She received an injection, which gave her complete relief within 10
minutes. Plaintiff had a normal gait and was able to stand without difficulty. (D.I. 11-2
at 119-125) On November 29, 2012, plaintiff reported to Dr. Patel's colleague that her
"asthma has been worsening" and she was short of breath. (D.I. 11-2 at 47-50) Plaintiff
continued to report symptoms including dizziness and trouble sleeping to Dr. Patel in
December 2012. On December 13, 2012, plaintiff weighed 220 pounds. (D.I. 11-2 at
41-46) On February 21, 2013, plaintiff consulted Jeffrey Barton, DPM ("Dr. Barton")
regarding a black line on her toe that started about one month before. She also
reported constant pain in her feet and ankles. Dr. Barton noted plaintiff's vibratory
sensation was absent below the ankles. Plaintiff had normal range of motion and
muscle strength. He diagnosed diabetic neuropathy and discussed foot care with
plaintiff. (D. I. 11-2 at 28-29) On March 6, 2013, Dr. Patel followed up with plaintiff and
noted that she had not been compliant with exercise or diet changes. Plaintiff had
normal strength in all extremities and normal range of motion, however, her gait was
abnormal (slow, with cane). Dr. Patel classified plaintiff's long-term asthma as "mild
persistent," and counseled plaintiff on quitting smoking. (D. I. 11-2 at 30-33)

C. Administrative Hearing
1. Plaintiff's testimony

51-60 indicates "[m]oderate 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 "[s]ome 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.
17

Administrative hearings were held on July 29, 2010, and May 21, 2013. Plaintiff
appeared (represented by counsel) and testified as follows. 38 (D. I. 10-2 at 36-95)
Plaintiff was born on September 13, 1962, and was forty-seven and fifty 39 at the time of
the hearings, respectively. (Id. at 39-40, 76) Plaintiff is 5'4" tall and weighed 260 lbs in
2010 and 243 in 2013. (Id. at 40, 76) She is right-handed. (Id. at 40) She divorced in
1986-87 and has one child over eighteen who does not live with her. (Id. at 40-41, 51)
She has a driver's license, but drives only as she needs to. (Id. at 41) She completed
high school. (Id. at 41) She lives with her boyfriend, who works as a machine operator
and does not have any children. (Id. at 40-41, 54)
Plaintiff drew unemployment in 1980. (Id. at 54) She worked as a mail clerk
opening mail at Client Logic from 1998-2004. The working hours varied depending on
the work load. (Id. at 42-43, 59) She worked at Royal Farms as a deli clerk from the
summer of 2004 to 2006. (Id. at 42) She worked part time at the Dollar Tree as a
cashier for almost three years, from 2006 to 2009. She worked five hours, three to four
days a week. She was fired for "giving merchandise away." (Id. at 41-42) She only
worked part time in 2009 because that is all that was available and that is "all [she]
could stand." (Id. at 51-52) She testified that she would not have been able to work full
time because of her back. She described having problems with a deteriorating disk in
her lower spine and having received a "shot with silicone and a bunch of needles, and
[the doctor] packed [her] disk." She had back labor with her daughter in 1988, but has
not injured her back or had surgery. (Id. at 52) Plaintiff has not worked since February

38

To the extent plaintiff's testimony is duplicative, the court cites to the first hearing
transcript.
39 Plaintiff testified she was fifty-one.
18

2009, because of "neuropathy of the feet and hands," as well as "lower back problems."
She alleges that she cannot sit or stand. Plaintiff had an "ongoing back problem," which
got worse. She testified that her "feet stay numb," and she "can't feel [her] feet at all."
She also cannot feel her hands and cannot tell "how hot water is." (Id. at 43) In 2013,
she testified that she has rheumatoid arthritis in her spine (diagnosed four or five years
ago), which causes pain in her lower back. (Id. at 82)
She takes a number of medications40 and reports being very tired in the
afternoon as a side effect. (Id. at 44-45) In 2013, plaintiff testified that she did not have
any side effects from her medicines. (Id. at 85) Plaintiff has sleep apnea and uses a
CPAP machine. (Id. at 44) She is "up and down all night long." (Id. at 50) She uses
the CPAP machine every night, but it does not take care of the sleep apnea. (Id. at 53)
Her high blood pressure is controlled. (Id. at 54) When asked if she recalled taking a
stress test in February 2010, plaintiff responded that it had been several years and she
did not recall. (Id. at 54) She has been taking a water pill for her swelling for several
years, but it does not help. Her doctor keeps increasing it. The swelling is from walking
around all day and occurs when she goes to bed. She sleeps with her feet elevated.

(Id. at 55)
Plaintiff is being treated with medication from her primary care doctor for her
depression. She does not know what she takes for depression, but has been taking it
for about eight months and it helps. She described her condition as "get[ting] upset ...

40

Gabapentin, Tramadol, aspirin for pain; Loratadine for allergies; Enalapril for high
blood pressure; Fortamet and Glimepiride for diabetes; Ibuprofen for headaches;
Vastatin for high cholesterol; Furosemide for fluid retention; Klor-Con for potassium;
Skelaxin for muscle relaxation; and Alprozalam for her stomach. In 2013, plaintiff
testified that she did not take a pill for her blood pressure. (D.I. 10-2 at 83)
19

[a]bout things in general," like having no money and not being able to do anything. She
is worried about her bills as she cannot work. Her "fiance throws it ... in [her] face
every day." (Id. at 56) In 2013, plaintiff testified that she takes Cymbalta for her
depression, which also helps with her neuropathy. She does not see any mental health
doctors. She described her symptoms as occasionally sitting and crying. (Id. at 85-86)
Plaintiff is also under the care of a gastroenterologist for diverticular disease,
which plaintiff refers to as "cancer of the colon." She states that she is constantly
nauseous and suffers from ongoing diarrhea. Plaintiff is under the care of an
endocrinologist for her diabetes. (Id. at 45) She was hospitalized in 2008 for her sugar.
When asked if she recalled that she was told that she had "peripheral neuropathies and
... hypokalemia and ... other related problems to ... diabetes," she agreed that Dr.
Varipapa, a neurologist, diagnosed her with peripheral neuropathy in March of 2009.
(Id. at 44) She has gone to the emergency room once or twice for her sugar in the last

year or two, but did not stay overnight. (Id. at 54-55) In 2013, plaintiff testified that she
had not been hospitalized overnight since the first hearing. (Id. at 86)
Plaintiff was diagnosed with diabetes about a year or two years ago. She has
always been heavy. She diets, but still has problems with her sugar. She takes two
pills in the morning, an insulin shot in the afternoon, and two pills at night. She has
been on insulin for about two months, but is still having trouble with her sugar. Her
father had diabetes when he had cancer. (Id. at 52-53) In 2013, plaintiff testified that
she takes pills for her diabetes, but is not on insulin as she no longer has the strength to
push the needle. Her doctor, therefore, increased her pills. (Id. at 78-79) Plaintiff
smokes; when stressed out, she smokes about half-a-pack a day. She does not drink

20

and has not since she was young. Plaintiff also diets and likes to eat salads, which has
helped her diabetes. Her weight goes up and down. (Id. at 84-86)
Regarding her "neuropathies," she has problems with her hands and feet and
uses a cane at the suggestion of her doctor as she "cannot hold [her] balance." (Id. at
46-47) In 2013, plaintiff testified that she needs the cane to balance and walk. Dr.
Patel prescribed her cane about a year ago. She can only walk for about five minutes
at a time. (Id. at 78-79, 85) Her hands are numb and at nighttime, she gets "real sharp
shooting pains." (Id. at 48) She cannot open a jar or sit and write a letter by hand. (Id.
at 48-49) In 2013, plaintiff testified that her neuropathy "has now moved from [her] feet
to [her] hand," and is very painful on a daily basis. She had carpal tunnel surgery in
2011 and her right hand is worse than it was before the surgery. She is unable to hold
anything and drops everything with any kind of weight. She also has tremors in her
hand as well as the neuropathy. She cannot type or write for any period of time. She
also stated that her neurologist treats her neuropathy and migraine headaches. Plaintiff
further testified that her foot doctor does her toenails and checks her feet for redness.
(Id. at 77-79)
Plaintiff can walk continuously or stand for "maybe an hour" before needing a

break. Her lower back bothers her sitting and she can sit continuously for "an hour or
two." (Id. at 47-48) After sitting for such time, she "move[s] a little bit" and then lays on
her side for about an hour, before she can sit upright again. (Id. at 48) In 2013, plaintiff
testified that she could walk "maybe like five minutes" with the cane. The ALJ asked the
plaintiff: "[W]hat about standing still? Is that about the same? Is that better?" Plaintiff
responded, "[y]es." She can only sit for about five minutes, after which she needs to lay

21

down or lean to the side. (Id. at 79-80) She testified that to work she would need the
cane and could not use her hands. (Id. at 81)
She is able to dress and do her hair, because she has a simple hairdo and uses
a large brush. Her doctors have not placed a lifting restriction on her. She testified that
she uses a shopping cart to carry a gallon of milk to her car - putting it from the shelf
into the cart and then from the cart into the car. (Id. at 49-50) In 2013, plaintiff testified
that she cannot lift anything. (Id. at 80)
Plaintiff currently does all the housework, but it takes her all day to clean, as she
does a little and then has to rest. (Id. at 50) In 2013, plaintiff testified that she does
what household work she can, which is not very much, and her boyfriend does the rest.
(Id. at 80) She visits with her mother and sister. (Id. at 50) In 2013, plaintiff testified

that she visits her boyfriend's cousin. She does not socialize or go to church. She gets
along well with her boyfriend. (Id. at 81, 86) Her typical day consists of waking, taking
her medications, taking her boyfriend to work, coming home, taking a nap because she
is exhausted, getting up, doing the laundry, and hanging the clothes out. She is home
all day because of her diabetes and insulin dependence. (Id. at 50-51) In 2013, plaintiff
testified that she just stayed home. (Id. at 81) She receives general assistance and her

boyfriend pays most of their bills. (Id. at 51) In 2013, plaintiff testified that she receives
about $90 per month in general assistance. She also receives food stamps. Her
boyfriend is buying the house in which they are living for $65,000 and putting her name
on it. He put down $25,000 and the mortgage is $300 per month. (Id. at 81-82)
2. VE's testimony

22

At the first hearing, the ALJ asked the VE, "you heard Ms. Moulton speak of her
past work and you have seen the file. Can you tell me what she did, generally?" The
VE responded:
Yes, she has held three jobs, basically, three, four jobs. Cashier, sort of
customer service stock clerk .... Cashier is 221.462-010, and that's light
work with an SVP of 2, which is unskilled work .... Stock clerk ....
299.367-014, and that is heavy work with an SVP of 4. . . . Customer
service helper [is 637.684-010] and it's basically what she did, and it was
heavy work, and with an SVP of 4.
The ALJ asked the VE if there were any transferrable skills. The VE responded: "Yes.
. . . Basically, operating cash register, making change, dealing with customers. Selling
things and obtaining cash or credit cards." After some discussion regarding plaintiff's
work as a mailroom clerk, the VE concluded that the work was "substantial. . . . So, it's
mail order clerk, and the DOT is 249.362-026. . . . And it's with an SVP of 4, and it's
sedentary work." After some discussion regarding plaintiff's work as a deli clerk, the VE
testified that: "The DOT number is 331.374-014, it's light work, with an SVP of 3. The
claimant described it as heavy work, because she had to carry 80-pound boxes of
chicken." (D.I. 10-2 at 57-61)
The ALJ then posed the following question:
I'd like for you to assume, if you would, a person who is 46 years of
age on her alleged onset date, has a 12th grade education, right handed
by nature, past relevant work as just indicated. Suffering from various
impairments, including degenerative disk disease [in the lower back].
And she was diagnosed with diabetes several years ago. Recently
started taking insulin, has high blood pressure that is controlled by her
medication. She has obesity. Today she weighs 260 pounds and some
sleep apnea and some mild depression, sees no doctors for, but takes
medication.
She does have pain and discomfort associated with her conditions,
mild depression with neuropathy. And some edema on occasion.
Somewhat relieved by her medications, however, without significant side
23

effects, but she indicates she gets tired at the end of the day from one or a
combination, and if I find she needs to have simple, routine, unskilled jobs,
Ms. Rosen, SVP-1 or 2, low concentration, low memory, is mildly limited in
her ability to perform her ADLs and to interact socially and to maintain her
concentration, persistence and pace. And if I find she can lift 10 pounds
frequently, 20 on occasion, can stand for 30 minutes, sit for 30 minutes
consistently.
However, on an alternate basis, eight hours a day, five days a
week, she would have to avoid heights and hazardous machinery. She
uses a cane to ambulate. Temperature and humidity extremes, stair
climbing, ropes and ladders and jobs that would not require fine dexterity
and manipulation due to some numbness that she incurs in her hands on
occasion.
She's been diagnosed as having some neuropathy. Jobs that
would require little writing ability, but would seem to be able to do some
sedentary and light work activities. With those limitations, can you give
me jobs or not with those limitations?

(Id. at 61-62) The VE responded and the ALJ posed further questions as follows:
A. There are some jobs, Your Honor, except for the medication issue, if
that would be - Q. She indicates she gets tired at the end of the day.

A. Yeah. Okay. There are some - - there's surveillance system monitor.
Q. At light?

A. That's sedentary.
Q. Sedentary.

A. With an SVP of 2. And order clerk, food/beverage, sedentary with an
SVP of 2. Mail order clerk, sedentary with an SVP of 4. But she did it
already. She did it in the past. There's some - - also some light jobs,
dispatcher.
Q. [D]o you have any numbers for those jobs?

A. Yes. Okay. The mail order clerk is the same one I gave before, 249 - Q. You say that has an SVP rating of 4?

A. Of 4, but she did this before.

24

Q. I know, but if she can't - -

A. It's the same - Q. - - do it now [inaudible] SVP, we couldn't use that number.

A. Okay. So, the others, order clerk, food/beverage, is 209 - - the DOT - 567-014. It's sedentary with an SVP of 2. There are 1,010 in the
Delaware area and nationwide, 248,030. The surveillance monitor is - the DOT is 379.367-010, and there are 50 in the Delaware area and 9, 100
nationwide.

Q. All right. What about another job at the sedentary level with those

limitations if you can come up with it.

A. Addresser, envelope.
Q. Is there much writing associated with that or not?

A. No. There is, basically, addressing envelopes and it's usually with
labels.
Q. All right.

A. And 209.587-010. It's sedentary, with an SVP of 2. There are 2 - there's 80 in Dover, 270 in Delaware and 128,010 nationwide.
Q. Any light jobs?

A. Yeah. Marker retail.
A. 209.587-034. It's light with an SVP of 2[and would take u]p to 30 days
[to learn]. . . . From simple demonstration to 30 days. . . . [l]n the
Delaware area, there are 6, 190. And nationwide, 1,873,390.
Q. Any other light jobs?

A Did I say dispatcher? . . . Maintenance, and that's - - the DOT is
239.367-014. That's the SVP is 3. And in the Delaware area, it's 660, and
nationwide, 193,210.
Q. And would all those jobs allow her to sit/stand on a basis that I

indicated?

25

A. Pretty much. It would - - she could change positions.
Q. And would the sit/stand, exertional skill level of all those jobs, it will be
in line with the - - what we know to be the Dictionary of Occupational Titles
or not?

A. That's correct. This is all the information is from the Dictionary of
Occupational Titles.
Q. Does it allow for a sit/stand option in the Dictionary of Occupational
Titles?

A. Of this - - I'm sorry.
Q. Do those jobs allow for the sit/stand in the - -

A. It doesn't specify.
Q. Okay.
A. But usually sedentary jobs are, you know, up to like two hours sitting,
standing.
Q. So, you are giving me that by your vast experiences of a vocational
expert?

A. That is correct.
Q. And would she be able to do any of her past work in your opinion or

not?
A. The mail clerk room is a possibility.
Q. What is the SVP rating of that?

A. I said 4. Yeah.
Q. But she can only do a 3 or 2. She wouldn't be able to do that job.

A. Yeah. Then she couldn't do that.
Q. Okay. The assessments you made of [her] past work, do you see any

conflicts as she performed it? You indicate that one of them, the deli
clerk, that she may have done it at the heavy level rather at the light.
A. That is correct.

26

Q. Is that the only conflict you saw?

A. Pretty much, yes. Yeah. Everything else seems to go with what's in
the Dictionary of Occupational Titles.
(Id. at 63-67)
On cross-examination, plaintiff's counsel asked the VE to describe the
"addresser job" further. After some discussion, the VE agreed that the job required
"fingering," and would not survive the limitations imposed by the ALJ. The ALJ then
inquired if there were another job that "doesn't require too much fine manipulation and
dexterity." The VE responded: "Information clerk[, DOT 237.367-018]. It's light, SVP-2 .
. . . And in the Delaware area there is - - well, in the Dover area, there's 440. And
nationwide, 1,097,61 O." Plaintiff's counsel then asked:
Q. And [if] a person were limited, say, to sedentary work activity, and they
had a restriction of no fine manipulation, and they need a cane for
balance. Would they be able to do any of the jobs that you mentioned or
any other type of work?

A. The surveillance system monitor probably.
Q. Okay. But the other jobs you are saying would be eliminated?

A. Yeah. If you use that. That would eliminate - Q. Okay. Now, going back to the hypothetical that was given to you
where there was a 30 - - there was a sit/stand option, so, every 30
minutes this person - - we [a]re not talking about your regular lunch break
in the morning and afternoon break.
We are talking about, 30 minutes
you are sitting, 30 minutes you are standing. You are alternating between
the two. And the purpose of needing to alternate is because of the
condition that you suffer from. So, you are alternating basically due to
pain. So, in between the alternation, say, you need like a five or a tenminute break where you are going to be off task because of pain. Would a
person - - would such a person be able to work, in your opinion?

A. How many breaks?

27

Q. That's the sit/stand option, every half-hour.

A. Every half-hour. No, that would be a problem. Usually, there are two
breaks. One in the morning, and one in the afternoon, plus lunch breaks.
If there are excessive breaks, that might be a problem.

(Id. at 67-71)
At the second hearing, the ALJ asked the VE: "You heard Ms. Moulton kind of
speak of her past work and those two jobs. Can you tell us what she did?" The VE
responded:
Yes, Your Honor. According to the record, she was a cashier in the retail
industry. The DOT number is 211.462-010, the SVP number is 2, it's
unskilled, exertional level light. Although, according to the record, the
claimant performed it at medium. The record also indicates that she was
a deli clerk. According to the DOT, that's called a deli cutter/slicer. The
DOT number is 316.684-014, with an SVP number 2, it is unskilled,
exertional level light. Although, according to the record, the claimant
performed the position at heavy. The last position in the record, Your
Honor, she was a mailroom clerk for a distribution company. The DOT
number is 209.687-026, with an SVP Number 2, unskilled, exertional level
light. However, according to the record, the claimant performed the
position at sedentary.
The ALJ asked if there were "[a]ny transferrable skills" and the VE responded "[n]o,
Your Honor, they are all unskilled." (Id. at 87-88)
The ALJ then posed the following question:
[A] person, who is 46 years of age on her onset date, has a 12th
grade, past relevant work as indicated. Right handed by nature, suffering
from various impairments, including degenerative disk disease due to
arthritis and some diabetes. It is fairly well controlled by her meds. And
she has high blood pressure that is controlled, sleep apnea. She uses a
CPAP machine and some depression, but she sees no doctor for her
depression, takes some medicine for it. And all of these things are
somewhat relieved by her medications without significant side effects.
She also has some obesity, weighs 243 pounds, without any side
effects from her medication. And I find that she needs to have simple,
routine, unskilled jobs. SVP 1 or 2. Is able to attend tasks and complete
schedules. Low stress, low concentration, low memory level jobs, and by
that, I mean, no pace work, production pace work or only two-step tasks.
28

Jobs that have little decision making or changes in a work setting or
judgments to do the work.
And if I find she can lift ten pounds frequently, twenty on occasion,
can stand for 15, 20, 30 minutes, sit for 30 minutes consistently on an
alternate basis, however, 8/5 or at will. Need[s] to avoid heights and
hazardous machinery, and due to her carpal tunnel syndrome, jobs that
would not require fine dexterity or manipulation except on an occasional
basis in that right upper extremity. And jobs that have little writing and
reading ability.
Stair climbing, avoid stair climbing, but would be able to do some
light work activities. Can you give me jobs such a person could do?
The VE responded that:
The first position is called a laundry folder. . .. And one can sit/stand at
will. The DOT number is 369.687-018. The SVP number, it is 2,
unskilled, exertional level light. On a national level, there are 210,000
positions, and on a local level, there are 200. The next position, Your
Honor, is called a retail marker, ... The DOT number is 209.587-034,
with the SVP number 2. It is unskilled, exertional level light. On a national
level, there are 1,780,000 positions. And on a local level, there are 300.
The next position, Your Honor, is called an information clerk. The DOT
number is 237.367-018. The SVP number is 2, unskilled, exertional level
light. On a national level, there are 109,000 positions and on a local level,
there are 300. And all these positions are sit/stand at will.
The ALJ questioned the VE further as follows.
Q And would the sit/stand exertional skill level with all those jobs you

enumerated line up with the criteria in the DOT?
A Well, the DOT does not address the sit/stand option, but that is based
on my professional background as a vocational expert, Your Honor.
Q And with those limitations and your opinion, would she be able to do
any of her past work?

A Well, with the cashier, one could do that. It is an SVP-2. It is light.
Yes, Your Honor.
Q And you've already indicated she may have done some of that past

work a little differently than it's done in the national economy?
A Yes, according to the claimant, according to the record, she performed
the cashier position at a medium exertional level, but according to the
DOT, that's usually performed at light.
29

(Id. at 88-91)
On cross-examination, plaintiff's counsel asked the VE for "the manipulative
requirements for" "the cashier position that you were saying would have been with the
limits of the first hypothetical." The VE responded that "the reaching, handling and
fingering, that is frequently." Plaintiff's counsel stated that she "understood the
hypothetical to say no fine dexterity or manipulation, and it said only occasional use of
the right upper extremity." The VE agreed and stated that "the cashier [position], with
the handling, because that is frequently. Some cashier positions, they differ, but the
number that I'm given you with the DOT, that is frequent." The VE agreed that plaintiff
could no longer perform that job. (Id. at 91-92)
Referring to the consultative examination with Dr. Barrish, plaintiff's counsel
questioned the VE regarding whether "a person with such limitations would be limited to
a limited range of sedentary work activity." The VE responded that "it's less than full
time, so that would not - a person would not be able to do sedentary work with these
conditions .... Your Honor, because it's - according to the record, she could only do
the job less than full time. Therefore, it would preclude any type of sedentary positions."
Referring to the evaluation by Dr. Patel, plaintiff's counsel asked "[i]f one had limits as
specified in that evaluation, would you say that person could work?" The VE responded
that "the person could not work. I'm looking at 15-C, the person could only sit less than
two hours within an eight-hour day, and stand less than two hours in an eight-hour day.
Therefore, that would preclude any type of employment, because it's less than part
time." Plaintiff's counsel then asked:

30

[W]hat would you say if the person was, say, limited to lifting and carrying
about five pounds. They could only stand and walk for about two hours in
an eight-hour workday, total, whether it's alternating or not. . . . But total,
and then six hours maybe sitting if they were able to. But say they were
only able to occasionally use their hands for handling and fingering.
The VE responded that "the person couldn't do any work. Again, it would be less than
full time. It's even less than part-time employment." Plaintiff's counsel then asked:
Q No, I said two hours total standing and walking, six hours sitting.

A Within an eight-hour day.
Q Yes.
A So, that would be less than a full day work, so it would be less than full
time. Therefore, the person could not perform any type of work.
Q Okay. All right.
(D.I. 10-2 at 92-95)

D. The ALJ's Findings
Based on the factual evidence and the testimony of plaintiff and the VEs, the ALJ
determined plaintiff was not disabled during the relevant time. The ALJ's findings are
summarized as follows: 41
1. Plaintiff meets the insured status requirements of the Social Security
Act through March 31, 2013.
2. Plaintiff has not engaged in substantial gainful activity since the alleged
onset date of October 14, 2009 (20 C.F.R. §§ 404.1571 et seq.).
3. Plaintiff has the following severe impairments: Degenerative disc
disease, right carpal tunnel syndrome, diabetes, and depression (20
C.F.R. 404.1520(c)).
4. Plaintiff 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 C.F.R. §§
404.1520(d), 404.1525 and 404.1526).

41

The ALJ's rationale, which was interspersed throughout the findings, is omitted from
this recitation.
31

5. After careful consideration of the entire record, plaintiff has the residual
functional capacity to perform a range of light work as defined in 20 CFR
404.1567(b) with the ability to lift 10 pounds frequently and 20 pounds
occasionally, stand for 15-30 minutes and sit for 30 minutes, or at will,
consistently, on an alternate basis, eight hours per day, five days per
week. Plaintiff needs to avoid heights and hazardous machinery and stair
climbing. She can perform jobs that do not require more than occasional
fine dexterity or fine manipulation in the right upper extremity. Plaintiff
could perform simple, routine, unskilled jobs, SVP 1 or 2 level, with little
writing or reading. Plaintiff is able to attend tasks and complete
schedules. Plaintiff requires jobs that are low stress, low concentration,
and low memory, meaning no production pace work and jobs with no more
than two-step tasks, with little decision-making, changes in the work
setting, or judgment to do the work.
6. Plaintiff is unable to perform any past relevant work (20 C.F.R. §§
404.1565 and 416.965).
7. Plaintiff was born on September 13, 1962 and was 47 years old, which
is defined as a younger individual age 18-49, on the alleged disability
onset date. Plaintiff subsequently changed age category to closely
approaching advanced age (20 C.F.R. §§ 404.1563 and 416.963).
8. Plaintiff has at least a high school education and is able to
communicate in English (20 C.F.R. §§ 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 plaintiff is "not disabled," whether or not the
claimant has transferable job skills (see SSR 82-41 and 20 C.F.R. part
404, subpart P, appendix 2).
10. Considering plaintiff's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that plaintiff can perform (20 C.F.R. §§ 404.1569,
404.1569(a), 416.969, and 416.969(a)).
11. Plaintiff has not been under a disability, as defined in the Social
Security Act, from October 14, 2009, through the date of this decision (20
C.F.R. §§ 404.1520(g) and 416.920(g)).
(D.I. 10-2 at 17-27)
Ill. STANDARD OF REVIEW

32

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 ALJ's decision must be affirmed if it is supported by substantial
evidence. See id. at 1190-91.
The term "substantial evidence" is defined as less than a preponderance of the
evidence, but more than a mere scintilla of evidence. 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).
The Supreme Court also has embraced this standard as the appropriate standard for
determining the availability of summary judgment pursuant to Federal Rule of Civil
Procedure 56. "The inquiry performed is the threshold inquiry of determining whether
there is the need for a trial-whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986).
This standard mirrors the standard for a directed verdict under Federal Rule of
Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the

33

governing law, there can be but one reasonable conclusion as to the verdict. If
"reasonable minds could differ as to the import of the evidence, however, a verdict
should not be directed." See id. at 250-51 (internal citations omitted). 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." See 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 the plaintiff'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." Matul/o v. Bowen, 926 F.2d 240, 245
(3d Cir. 1990).
"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 [Commissioner]'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
[Commissioner]'s decision with or without a remand to the [Commissioner] for
rehearing." Podedwomy v. Harris, 745 F.2d 210, 221 (3d Cir. 1984).

IV. DISCUSSION

34

A. Disability Determination Process

Social Security Administration regulations incorporate a sequential evaluation
process for determining whether a claimant is under a disability. 20 C.F.R. § 404.1520.
The ALJ first considers whether the claimant is currently engaged in substantial gainful
activity. If he is not, then the ALJ considers in the second step whether the claimant
has a "severe impairment" that significantly limits his physical or mental ability to
perform basic work activities. If the claimant suffers a severe impairment, the third
inquiry is whether, based on the medical evidence, the impairment meets the criteria of
an impairment listed in the "listing of impairments," 20 C.F.R. Pt. 404, Subpt. P, App. 1
(1999), which result in a presumption of disability, or whether the claimant retains the
capacity to work. If the impairment does not meet the criteria for a listed impairment,
then the ALJ assesses in the fourth step whether, despite the severe impairment, the
claimant has the residual functional capacity42 to perform his past work. If the claimant
cannot perform her past work, then step five is to determine whether there is other work
in the national economy that the claimant can perform. Sykes v. Apfel, 228 F.3d 259,
262-63 (3d Cir. 2000) (citing 20 C.F.R. § 404.1520). If the ALJ finds that a claimant is
disabled or not disabled at any point in the sequence, review does not proceed to the
next step. 20 C. F. R. § 404.1520(a). It is within the ALJ's sole discretion to determine
whether an individual is disabled or "unable to work" under the statutory definition. 20
C.F.R. § 404.1527(e)(1 ).

42

A claimant's residual function capacity ("RFC") is "that which an individual is able to
do despite the limitations caused by his or her impairment(s)." Fargnoli v. Massanari,
247 F.3d 34, 40 (3d. Cir. 2001 ).
35

The ALJ is required to evaluate all of the medical findings and other evidence
that supports a physician's statement that an individual is disabled. The opinion of a
treating or primary physician is generally given controlling weight when evaluating the
nature and severity of an individual's impairments. However, no special significance is
given to the source of an opinion on other issues which are reserved to the ALJ, such
as the ultimate determination of disablement. 20 C.F.R. §§ 404.1527(e)(2), (3). The
ALJ has the discretion to weigh any conflicting evidence in the case record and make a
determination. 20 C.F.R. §§ 404.1527(c)(2).

8. Arguments on Appeal
On appeal, plaintiff contends that the ALJ's decision is not supported by
substantial evidence because the ALJ: (1) improperly found that plaintiff had an RFC
for a range of light work; (2) failed to afford proper weight to the opinions of treating
physicians and the agency's consultative physicians; (3) failed to adequately assess
plaintiff's credibility as to her complaints of disabling pain, numbness, and need to use a
cane; and (4) improperly concluded that plaintiff could perform certain jobs. (0.1. 16;

0.1. 19) Defendant counters that substantial evidence supports the ALJ's analysis of
plaintiff's RFC, the opinion evidence, credibility assessment, and plaintiff's ability to
perform certain jobs. (D. I. 18)

1. RFC determination
Plaintiff contends that the ALJ's determination that she can perform "a range of
light work" is improper and the ALJ should have found that she was limited to sedentary
work. Specifically, plaintiff contends that the medical opinions do not reflect that she is
able to do the standing and walking required of light exertional work.

36

According to the regulations:
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out
job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567.
"Occasionally" means occurring from very little up to one-third of the time.
Since being on one's feet is required "occasionally" at the sedentary level
of exertion, periods of standing or walking should generally total no more
than about 2 hours of an 8-hour workday, and sitting should generally total
approximately 6 hours of an 8-hour workday. Work processes in specific
jobs will dictate how often and how long a person will need to be on his or
her feet to obtain or return small articles.
Sedentary work is "work performed primarily in a seated position [and] entails no
significant stooping. Most unskilled sedentary jobs require good use of the hands and
fingers for repetitive hand-finger actions." SSR 83-10, 1983 WL 31251.
Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a
good deal of walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567.
"Frequent" means occurring from one-third to two-thirds of the time. Since
frequent lifting or carrying requires being on one's feet up to two-thirds of a
workday, the full range of light work requires standing or walking, off and
on, for a total of approximately 6 hours of an 8-hour workday. Sitting may
occur intermittently during the remaining time. The lifting requirement for
the majority of light jobs can be accomplished with occasional, rather than
frequent, stooping. Many unskilled light jobs are performed primarily in
one location, with the ability to stand being more critical than the ability to
37

walk. They require use of arms and hands to grasp and to hold and turn
objects, and they generally do not require use of the fingers for fine
activities to the extent required in much sedentary work.
The primary difference between sedentary and most light jobs is the requirement of "a
good deal of walking or standing." Light work requires "greater exertion" than sedentary
work; "e.g., mattress sewing machine operator, motor-grader operator, and road-roller
operator (skilled and semiskilled jobs in these particular instances). Relatively few
unskilled light jobs are performed in a seated position." SSR 83-10, 1983 WL 31251.
In determining which of the RFC categories applies if plaintiff must "alternate
periods of sitting and standing," "[s]uch an individual is not functionally capable of doing
either the prolonged sitting contemplated in the definition of sedentary work (and for the
relatively few light jobs which are performed primarily in a seated position) or the
prolonged standing or walking contemplated for most light work." In such "cases of
unusual limitation of ability to sit or stand, a [VE] should be consulted to clarify the
implications for the occupational base." SSR 83-12, 1983 WL 31253.
According to plaintiff, if the ALJ had accepted the medical opinions of her treating
physicians 43 and found that plaintiff had an RFC limiting her to sedentary work, plaintiff
would be disabled as a matter of law pursuant to the Medical-Vocational Guidelines
("grids"). The grids set out various combinations of age, education, work experience
and RFC and direct a finding of disabled or not disabled for each combination. See 20
C.F.R. Pt. 404, Subpt. P, App. 2. The court has carefully reviewed the ALJ's RFC
determination in light of the proffered medical opinions and evidence. In particular, the
RFC analyses provided by Dr. Patel, Dr. Kates, and Dr. Barrish are unduly restrictive in

43

A point addressed further below.
38

comparison to the objective evidence of record. For instance, both Ors. Varipapa and
Patel (the physicians treating plaintiff most regularly) found on numerous occasions that
plaintiff had full range of motion, a normal gait, and no gross motor deficits. In February
2012, Dr. Patel found that plaintiff could walk less than a block without resting or severe
pain, but did not need a cane to ambulate. In October 2012, Dr. Barrish noted that
plaintiff needed a cane and she could walk less than 10 feet without using it. There is
no notation in the medical records of a prescription for a cane. Ors. Kates and Barrish
completed their evaluations after consulting once with plaintiff. While it is true that an
individual of plaintiff's age, education and work experience with a residual functional
capacity for sedentary work would be disabled as a matter of law under grid rule 201.12,
the evidence at bar44 supports the ALJ's finding that plaintiff could perform light work
with restrictions. The ALJ properly adjusted his hypothetical to reflect plaintiff's
limitations, including her need to alternate between sitting and standing. Accordingly,
grid rule 201.12 is inapplicable.

2. Weight of medical opinions and evidence
A treating physician's opinion is afforded "controlling weight," if it is "wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [claimant's] case record."
Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001 ); 20 C.F.R. § 404.1527(c)(2). The
more a treating source presents medical signs and laboratory findings to support his/her
medical opinion, the more weight it is given. Likewise, the more consistent a treating
physician's opinion is with the record as a whole, the more weight it should be afforded.

44

Discussed further below.

39

20 C.F.R. §§ 404.1527(c)(3-4). An ALJ may only outrightly reject a treating physician's
assessment based on contradictory medical evidence or a lack of clinical data
supporting it, not due to his or her own credibility judgments, speculation or lay opinion.
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000); Lyons-Timmons v. Barnhart, 147
Fed. Appx. 313, 316 (3d Cir. 2005). Even when the treating source opinion is not
afforded controlling weight, it does not follow that it deserves zero weight. Instead, the
ALJ must apply several factors in determining how much weight to assign it. Gonzalez
v. Astrue, 537 F. Supp. 2d 644, 662 (D. Del. 2008). These factors include the nature
and extent of the treatment relationship, the length of the treatment relationship, the
frequency of examination, supportability of the opinion afforded by the medical
evidence, consistency of the opinion with the record as a whole, and the specialization
of the treating source. Id.; see 20 C.F.R. § 404.1527(d)(2)-(6); see a/so 20 C.F.R. §
416.927. If an ALJ does not conduct this analysis, a reviewing court cannot determine
whether the ALJ actually considered all the relevant evidence, and the ALJ's decision
cannot stand. Gonzalez, 537 F. Supp. 2d at 661 (citation omitted). To that end, if a
reviewing court is denied this opportunity, the claim must be remanded or reversed and
all evidence must be addressed. Id. (citation omitted).
Plaintiff argues that the ALJ rejected the expert medical source opinions and
substituted his own opinion regarding plaintiff's functional abilities and limitations
(especially in reaching the RFC finding). Plaintiff argues that the ALJ did not weigh all
probative evidence and did not apply the factors in determining the weight to assign to
the various medical opinions. Plaintiff asserts that the ALJ ignored her hand symptoms
when assessing her ability to use her hands for lifting, carrying, and manipulating

40

objects. Finally, plaintiff argues that the ALJ did not perform his duty of developing the
record.
At bar, the ALJ discussed the objective medical findings regarding plaintiff's
lower extremity complaints, noting the many "normal" findings in the record. The ALJ
then analyzed each of the three RFC evaluations. As to Dr. Patel's opinion, the ALJ
concluded that it should not be given controlling weight as it was not supported by the
medical and laboratory evidence or the treating records as a whole. Dr. Patel opined
that plaintiff's medication caused fatigue and dizziness, but plaintiff denied any side
effects from her medication. The ALJ did not give controlling or significant weight to Dr.
Kates' opinion, noting that Dr. Kates did not treat plaintiff regularly and his opinion was
not supported by the record as a whole. The ALJ also analyzed Dr. Barrish's opinion
and concluded that it should be given limited weight as it was disproportionately
restrictive, when compared to the objective and clinical findings in the record. The ALJ
gave significant weight to Dr. Barrish's opinion that plaintiff is able to use her right upper
extremity occasionally as such opinion was consistent with the record evidence,
including that plaintiff had full range of motion in the wrists and hands. The ALJ
discussed the opinions of the physicians at CNMRI, which include the opinions of Dr.
Varipapa. 45
Both Ors. Patel and Varipapa diagnosed plaintiff with diabetic neuropathy. On
numerous occasions, Dr. Patel noted plaintiff's lack of cooperation with diet and

45

Plaintiff complains that the ALJ did not specifically discuss Dr. Varipapa's one page
form opinion completed on August 20, 2009 finding that plaintiff could not work at her
usual occupation for a period of 6-12 months and could not work full-time. Such opinion
predates the alleged onset date of disability of October 14, 2009 and contains no
remarks or specific functional limitations.
41

exercise in treating her diabetes. Moreover, plaintiff continued to smoke contrary to the
advice of her care providers. See 20 C.F.R. § 416.930(a) (requiring as a prerequisite to
a benefits award that claimant comply with treatment that can restore ability to work,
unless there is good reason for non-compliance). Based on the evidence of record, the
ALJ considered all the relevant evidence and consistently compared the objective
medical findings to the disproportionately limiting assessments provided. The court
cannot conclude that the ALJ's opinions (including the RFC assessment) are deficient
or unsupported by substantial evidence. See Monsour Med. Ctr., 806 F.2d at 1190.

3. Plaintiff's credibility
When making determinations as to a claimant's credibility, an ALJ must
"determine the extent to which a claimant is accurately stating the degree of pain or the
extent to which he or she is disabled by it." Hartranft v. Apfel, 181 F.3d 358, 362 (3d
Cir. 1999); 20 C.F.R. § 404.1529(c). Plaintiff argues that the ALJ's conclusion that
"there is no indication that a cane is medically necessary" is unsupported by the medical
opinion evidence of record. As discussed above, in February 2012, Dr. Patel found that
plaintiff could walk less than a block without resting or severe pain, but did not need a
cane to ambulate. In October 2012, consulting physician Dr. Barrish noted that plaintiff
needed a cane and she could walk less than 10 feet without using it. On November 2,
2012, Dr. Varipapa noted that plaintiff had a normal gait and was able to stand without
difficulty. The ALJ's opinion considered the medical evidence of record, which indicated
normal strength and range of motion. There is no notation in the medical records of a
prescription for a cane.

42

As to plaintiff's subjective complaints of pain and headaches, the ALJ cites to
plaintiff's testimony regarding her pain and symptoms. He concluded that although
plaintiff's "medically determinable impairments" could reasonably cause plaintiff's
symptoms, plaintiff's statements "concerning the intensity, persistence and limiting
effects" of her symptoms are not entirely credible. The ALJ's reasoning as to the extent
of plaintiff's symptoms, particularly her peripheral neuropathy, is supported by record
evidence and the court finds no reason to disturb the findings. 46 See Metz v. Federal
Mine Safety and Health Review Com'n, 532 Fed. Appx. 309, 312 (3d Cir. 2013)
("Overturning an ALJ's credibility determination is an 'extraordinary step,' as credibility
determinations are entitled to a great deal of deference.") (citation omitted).

4. Plaintiff's ability to perform certain jobs
Plaintiff argues that her medical limitations prohibit her from performing the jobs
suggested by the VE. Essentially, plaintiff's arguments reiterate that the ALJ erred in
his determination of the appropriate RFC, particularly as to her manual dexterity. For
the reasons discussed above, the ALJ's determination of the appropriate RFC is
supported by substantial evidence.
V. CONCLUSION

For the foregoing reasons, defendant's motion for summary judgment will be
granted and plaintiff's motion for summary judgment will be denied. An appropriate
order shall issue.

46

Plaintiff's headaches are not included as a diagnosis in the RFC evaluation provided
by the three physicians. The medical records reflect treatment for headaches, including
an instance of receiving an injection and experiencing complete relief after 10 minutes.
That the ALJ did not specifically discuss plaintiff's headaches does not negate his
credibility assessment of plaintiff's pain as a whole.
43