Layfield v. Colvin

Filing 16

REPORT AND RECOMMENDATIONS- denying 11 Cross MOTION for Summary Judgment, granting 8 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 9/19/2016. Signed by Judge Sherry R. Fallon on 9/1/2016. (lih)

IN THE UNITED STA'J'ES DISTRICT COURT
FOR TiIE DISTRICT OF DELAWARE

JAYM. LAYFIELD.,

)

Plaintiff,

v.
CAROLYNW. COLVIN,
Commissioner of Social Security,
Defendant.

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)
)
)
)
)
)
)
)

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Civil Action No. 15-358-SLR-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Plaintiff Jay M. Layfield ("Layfield" or "Plaintiff') filed this action against defendant

Carolyn W. Colvin, Commissioner of the Social Security Administration (the "Commissioner"
or "Defendant") on May 5, 2015. (D.I. 1) Plaintiff seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of a decision on November 12, 2013, by Administrative Law Judge ("ALJ") Judith A.
Showalter, denying his claims for disability benefits ("DIB") under Title II.
Presently before the court are cross-motions for summary judgment filed by Plaintiff and
the Commissioner. (D.I. 8; D.I. 11) Plaintiff asks the court to enter an award of benefits or,
alternatively, to remand this case for further administrative proceedings. (D.I. 9 at 3) The
Commissioner requests that the court affirm the ALJ's decision. (D.I. 12 at 11) For the reasons
set forth below, I recommend that the court grant Plaintiffs motion for
deny the Commissioner's cross:-inotion for summary judgment.

summaryjud~ent and

II.

BACKGROUND
A.

Procedural History

On May 18, 2009, Plaintiff filed a claim for DIB benefits, 1 originally alleging that he has
been disabled since April 30, 2003 due to diabetes, gastroparesis, high blood pressure, and
depression. (D.I. 4, Tr. at 248-51; 284-85) Plaintiff subsequently amended the alleged onset
date to October 4, 2007. (Tr. at 39, 266) On September 25, 2009, Plaintiffs claims for DIB
benefits were denied. (Tr. at 151-54) Plaintiff submitted a request for reconsideration on
November 23, 2009, which was denied on December 23, 2009.

(Tr~

at 157; 159-163) On

January 29, 2010, Plaintiff filed a written request for a hearing before an ALJ. (Tr. at 165)
A hearing was initially scheduled before the ALJ on October 7, 2010, but was
rescheduled to January 7, 2011. (Tr. at 36-87; 174) On March 5, 2011, the ALJ issued a written
decision denying Plaintiffs claim for benefits. (Tr. at 122-135) The Appeals Council granted
Plaintiffs request for review on September 20, 2012 and remanded Plaintiffs claim to the ALJ.
(Tr. at 136) The ALJ held a remand hearing on October 23, 2013. (Tr. at 88-119) On
November 12, 2013, the ALJ issued a written decision, again finding that Plaintiff was not
disabled and denying Plaintiffs claim for DIB. (Tr. at 19-29) On December 3, 2013, Plaintiff
filed an appeal of the ALJ's opinion, which was denied by the Appeals Council on March 4,
2015, causing the November 12, 2013 decision to become final. (Tr. at 1-3; 14)
At issue in this case is Plaintiffs entitlement to an award ofDIB benefits from October 4,
2007, the alleged onset date of disability, to September 30, 2008, the date he was last insured.

1

Plaintiff also filed a claim for Supplemental Security Income (''SSI") on May 18, 2009.
Plaintiffs application for SSI was denied on May 25, 2009. (Tr. at 143-150) Plaintiff did not
pursue his claim for SSI benefits after the initial denial.
2

B.

Medical History2

Plaintiff, born in 1956, was fifty-one yeaJ.!S old at his alleged onset date. (Tr. at 129)
Plaintiff is considered a person closely approaching advanced age under 20 C.F.R. §
404.1563(d). He has a high sehool education and past relevant work experience as a retail
laborer, office manager, cashier, and self-employed consultant. (Tr. at 20) Plaintiff alleges
disability due to diabetes, gastroparesis, high blood pressure, and depression. (Tr. at 126)

1.

Diabetes Mellitus/Gastroparesis

Plaintiff began treating with primary care physician Jane Williams Moore, M.D., for
nausea and fatigue in February 2003. (Tr. at 757-758) Dr. Moore ordered Plaintiff to undergo
an abdominal sonogram, which revealed material in the gallbladder and a probable kidney stone,
as well as an abdominal MRI, which revealed no abnormalities. (Tr. at 789-92) She also
referred him to endocrinologist James M. Lenhard, M.D., who treated Plaintiff on March 21,
2003 and noted that his blood sugars were unstable and hard to control. (Tr. at 860-61)
On March 25, 2003, Plaintiff was· admitted to the emergency room for nausea, vomiting,
and abdominal pain and bleeding. (Tr. at 395-97) He underwent a CT scan and ultrasound of his
abdomen and pelvis, which revealed a gallstone in his gallbladder, mild splenomegaly, and a left
renal cyst, but no other abnormalities. (Tr. at 856-58) An upper endoscopy revealed gastritis
caused by his upper gastrointestinal bleeding. (Tr. at 407-08; 858-59) The gastrointestinal
bleeding stopped on its own, and he was discharged on March 31, 2003 with a prescription for
Reglan and instructions to follow up with Dr. Susan K. Jonas, a gastroenterologist, for a
gastrointestinal workup.· (Tr. at 397) On April 7, 2003, Dr. Jonas treated Plaintiff for nausea,

2

For purposes of the analysis, the relevant time period in this case is from the onset date of
October 4, 2007 to the date last insured of September 30, 2008. For background purposes, this
summary of Plaintiffs medical history contains information predating his alleged onset date.
3

and advised him to treat with Dr. Lenhard to get his diabetes under control. (Tr. at 834) Dr.
Jonas instructed Plaintiff on anti-reflux measures and ordered him to continue taking Reglan and
Prilosec. (Id.) She planned to screen him for a colonoscopy once his platelets reached normal
levels. (Id.)
On August 5, 2003, Plaintiff was admitted to the hospital for vomiting, and was
diagnosed with diabetic ketoac.idosis. (Tr. at 371-73) He underwent an endoscopy, which
showed gastritis and distal esophagitis consistent with gastroesophageal reflux disease and
gastroparesis. (Tr. at 378-79; 854-55) He also underwent a stomach biopsy, which confirmed
the diagnosis of gastritis. (Tr. at 382; 784; 853) His abdominal ultrasound revealed sludge in his
gallbladder, but no other abnormalities. (Tr. at 381; 852) He was discharged on August 8, 2003
with instructions to follow up wi~h his treating physicians. (Tr. at 373-74)
On September 8, 2003, Plaintiff followed up with Dr. Moore, who noted that Phenergan
had not helped Plaintiff's gastrointestinal symptoms, but he was feeling much better on Reglan.
(Tr. at 749-50) On September 16, 2003, Plaintiff saw Dr. Jonas, who advised Plaintiff to keep
tight control of his diabetes to alleviate his gastroparesis, and scheduled him to undergo a
colonoscopy on November 10, 2003. (Tr. at 831) Plaintiff's colonoscopy revealed no
abnormalities. (Tr. at 360; 770; 851)
Plaintiff continued to see Dr. Moore, who observed on October 26, 2004 that Plaintiff's
gastrointestinal symptoms had worsened after about a year of being stabilized. (Tr. at 743-44)
On April 20, 2005, Plaintiff was referred to the emergency room for acute gastroenteritis,
dehydration, and diabetes mellitus that was not well-controlled at the time. (Tr. at 668-81; 73940) Plaintiff followed up with Dr. Moore on April 28, 2005, who noted that his diabetic
gastroparesis had been exacerbated by a stomach virus, and he was diagnosed with gallstones,

4

but his digestive symptoms were improving. (Tr. at 737-38)
On May 16, 2005, Plaintiff treated with Dr. Jonas for severe gastroparesis. (Tr. at 828)
Radiological test results revealed that Plaintiffs gallbladder contained sludge or stones, but no
other abnormalities. (Tr. at 848-50) Dr. Jonas advised Plaintiff to continue strict anti-reflux
measures and to undergo an elective surgery to remove. his gallbladder when his diabetes was
.

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.

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under control~ (Tr. at 829-30) On August 12, 2005, Plaintiff underwent laparoscopic surgery to
remove his gallbladder in connection with treatment of his diabetes mellitus. (Tr. at 432-49;
780; 843-46) The surgery revealed chronic cholecystitis, or inflammation of the gallbladder, due
to gallstones. (Id.) He was discharged on August 13, 2005. (Tr. at 432) ·
Plaintiff returned to the hospital on March 5, 2006 for gastrointestinal symptoms which
were exacerbated by Plaintiff's consumption of greasy food. (Tr. at 535-42; 547-49) Plaintiff
underwent an upper gastrointestinal endoscopy with biopsies on March 7, 2006, which revealed
severe distal esophagitis from reflux disease. (Tr. at 543-44; 652-53; 841) He was discharged
on March 8, 2006, with instructions to follow up with his treating physicians and comply with
his medication regimen. (Tr. at 577-79)
On June 21, 2006, Plaintiff visited Dr. Moore, who observed that Plaintiff's diabetes was
unc_;ontrolled due to Plaintiff's failure to follow dietary restrictions, and Plaintiff requested
something stronger than the Reglan and Phenergan for his nausea and vomiting. (Tr. at 735-36)
Dr. Moore prescribed Zofran and Dilaudid. (Tr. at 736) On January 9,.2007, Plaintiff followed
up with Dr. Moote, who noted that Plaintiff had failed to follow his dietary restrictions, and
Plaintiff requested pain medication. (Tr. at 733) Dr. Moore recommended that Plaintiff visit the
emergency room if his symptoms persist or worsen. (Tr. at 734) Plaintiff returned to the
emergency room on January 10, 2007 with complaints ,of abdominal pain and vomiting. (Tr. at

5

·•

•.

522-24) He was diagnosed with abdominal pain and gastritis and was instructed to continue his
current medications prior to being discharged on the same day. (Id.)
Dr. Jonas last treated Plaintiffin January 2007 for nausea, vomiting, and abdominal pain,
which she partially attributed to his diet during the holidays. (Tr. at 824-27) Dr. Jonas observed
that Plaintiffs Dilaudid prescription was likely exacerbating his gastroparesis, and noted his
history of narcotic analgesic dependence. (Tr. at 824) Dr. Jonas concluded that Plaintiffs
diabetes mellitus was out of control, which aggravated his gastroparesis, and it was unclear
whether he was compliant with his treatment.

(T~.

at 826) Dr. Jonas advised Plaintiff to contact

I

Dr. Lenhard to get his diabetes under control, tak~ various anti-reflux measures to ease his reflux
I
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symptoms, and avoid taking Dilaudid. (Id.) On J~uary 22, 2007, Dr. Jonas performed an upper
gastrointestinal endoscopy, esophageal brush, an~ biopsy. (Tr. at 480-96; 515-16; 837-39) The
procedure confirmed that Plaintiff suffers from g~stroesophageal reflux, and Dr. Jonas
I

recommended that Plaintiff follow strict anti-refltix measures and continue his prescribed
.

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medications. (Tr. at 839)
In April 2007, Plaintiff followed up with :@r. Moore and stated that his gastroparesis was
!

under control, noting that he planned to travel to ~amaica for his wedding anniversary~ (Tr. at
i

729) On October 24, 2007, Plaintiff saw Dr. Modre for treatment of his depression and diabetes.
(Tr. at 727-28) During the visit, Plaintiff stated that he was applying for disability because he
could no longer hold a job due to his gastroparesis. (Tr. at 727) On December 11, 2007,
Plaintiff followed up with Dr. Moore for nausea and stomach pain resulting from Plaintiffs
consumption of greasy food. (Tr. at 725) Dr. Moore refilled Plaintiffs Dilaudid prescription to
treat his stomach pain, but cautioned him to use the narcotic sparingly and follow his dietary
restrictions. (Tr. at 725-26)

6

On February 29, 2008, Plaintiff treated with Dr. Moore, who noted that Plaintiff's
diabetes was stable, his depression was well-controlled with W ellbutrin, and he experienced
some vomiting resulting from his gastroparesis. (Tr. at 723-24) Dr. Moore recon:µnended that
he continue his current medications, remain hydrated, and maintain his diet carefully. (Tr. at
724) Plaintiff followed up with Dr. Moore regarding his gastroparesis on October 24, 2008, but
reported no abdominal symptoms during the visit. (Tr. at 717) Dr. Moore noted that Plaintiff
took Zofran occasionally to control his gastroparesis, but the condition was usually controlled
with diet and Phenergan as needed. (Id.)
On December 18, 2009, Dr. Moore completed a diabetes mellitus residual functional
capacity ("RFC") questionnaire, in which she opined that Plaintiff was incapable of maintaining
. a low stress job. (Tr. at 881-89) Dr. Moore indicated that Plaintiff was limited to about four
hours of standing and four hours of sitting per day, and would require unscheduled breaks lasting
approximately five minutes. (Tr. at 882-83) Dr. Moore stated that Plaintiff would experience
severe nausea and vomiting, fatigue, shortness of breath, and hypoglycemic episodes which
would affect his ability to work. (Tr. at 884)
Since May 2001, Plaintiff treated with Dr. M. James Lenhard, an endocrinologist, on a
quarterly basis for his diabetes mellitus. (Tr. at 984) On February 16, 2007, Dr. Lenhard
indicated that Plaintiff had good control of his diabetes, and his diabetic gastropathy was
improving. (Tr. at 935) On June 13, 2008, Dr. Lenhard reported that Plaintiff had one· episode
of severe hypoglycemia, but the episode was explainable and there were no recurrences. (Tr. at
815) Dr. Lenhard suspected that Plaintiff suffered from glaucoma, but had no critical
retinopathy related to his diabetes. (Id.) Dr. Lenhard completed a diabetes mellitus RFC
questionnaire on December 23, 2010, in which he indicated that Plaintiff is capable oflow stress

7

jobs and stated that Plaintiff has been disabled since at least September 30, 2008. (Tr. at 985-87)
On September 24, 2009, state agency medical consultant Gurcharan Singh performed a
physical residual functional capacity assessment of Plaintiff. (Tr. at 863-:69) Dr. Singh reviewed
Plaintiffs medical history and concluded that Plaintiff could stand· for afleast two hours in an
eight hour work day and sit for approximately six hours during an eight hour work day. (Tr. at
·864; 869) He found no manipulative, visual, communicative, or environmental limitations. (Tt.
at 866-67)

2.

Depression

On April 8, 2003, Plaintiff treated with Dr. Moore, who noted that Plaintiff suffered from
depression. (Tr. at 756) Plaintiff continued to cmµplain of depression during his May 8, 2003
•

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visit with Dr. Moore, who recommended that he b'.egin taking Celexa again. (Tr. at 754) During
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Plaintiffs June 9, 2003 visit with Dr. Moore, Dr. Moore noted that Plaintiff did not get his
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Celexa prescription filled due to his insurance, but complained of having difficulty getting out of
.

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bed approximately two times per month due to hi~ depression. (Tr. at 751) Dr. Moore
I

prescribed Wellbutrin in lieu of Celexa. (Tr. at 7~2) On September 8, 2003, Dr. Moore reported
I

that Plaintiffs depression improved with the W ellbutrin. (Tr. at 749-50) Dr. Moore reported that
!

.

Plaintiffs depression was stable in Dece~ber 2od3. (Tr. at 748)
Plaintiff visited Dr. Moore multiple times between 2004 and 2007, but it was not until
October 24, 2007, that Dr. Moore's medical records mentioned depression again. (Tr. at 727742) Dr. Moore prescribed Wellbutrin and recommended that Plaintiff seek counseling. 3 (Tr. at

i

3

Dr. Moore specifically recommended that Plaintiff seek counseling at Pathways, which
specializes in drug rehabilitation. (Tr. at 728)
'
8

728) During Plaintiffs visit on February 29, 2008;, Dr. Moore indicated that his depression was
well-controlled with Wellbutrin. (Tr. at 723-24)
On September 25, 2009, state agency medical consultant Hillel Raclaw, Ph.D., completed
a Psychiatric Review Technique for Plaintiff, concluding that Plaintiff had the symptoms, signs,
and laboratory findings to substantiate Plaintiffs depressive disorder, which caused mild
I

restrictions on his daily activities and his ability to. maintain concentration, persistence and pace.
I
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!

(Tr. at 873; 878) Dr. Raclaw concluded that Plaintiffs depressive disorder was non-severe and
well-controlled with his prescriptions. (Tr. at 880)

3.

Coronary artery disease :

Plaintiff has a history of coronary artery di~ease and underwent stenting in 2000 after
I

experiencing a myocardial infarction. (Tr. at 483;!932; 958-60) On January 31, 2003, Plaintiff
!

was admitted to the emergency room for chest paiii, and subsequently treated with Dr. Gilbert A.
Leidig, Jr., a cardiologist, who attributed his chestidiscomfort to physical exertion and
i

recommended that Plaintiff continue his medicatitjns at home. (Tr. at 684-85; 699; 950) On
I

April 16, 2003, Plaintiff followed up with Dr. Leiqig, who indicated that Plaintiff was doing well
I

from a cardiac standpoint but advised delaying his. stress test to give him time to recover from his
recent surgery. (Tr. at 948-49) He underwent a treadmill stress test and stress cardiolite test on
October 6, 2003, which revealed no abnormalities. (Tr. at 946-47)
On November 5, 2004, Plaintiff saw Dr. Anthony W. Clay, D.O., a cardiologist who gave
Plaintiff a treadmill stress test and a stress cardiolite test. (Tr. at 768-69) The tests revealed no
abnormalities. (Id.) On November 19, 2004, Plaintiff saw Dr. Leidig, who noted that Plaintiff
had no anginal chest discomfort or symptoms and !was able to actively care for his grandchildren.
I
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(Tr. at 942-43) Dr. Leidig recommended that Plaiptiff participate in more regimented exercise

9

for thirty minutes per day. (Id.) On August 3, 2005, Plaintiff saw Dr. Leidig for a preoperative
clearance prior to undergoing a cholecystectomy to remove his gallbladder. (Tr. at 766; 939-41)
Dr. Leidig stated that Plaintiff had not had any recurrent anginal symptoms. (Tr. at 767)
Plaintiff next saw Dr. Clay on February 24, 2006 for a treadmill stress test and a stress
cardiolite test. (Tr. at 498-99; 764-65; 937-38) Dr. Clay noted that the treadmill stress test was
terminated prematurely due to Plaintiffs shortness of breath, and stated that the test was nondiagnostic due to baseline ECG abnormalities but revealed no arrhythmias. (Tr. at 764) The
I

stress cardiolite test revealed that both rest and stress images of the left ventricular myocardium
were normal, and there was no evidence of exercise-induced ischemia. (Tr. at 765) On March
24, 2006, Plaintiff saw Dr. Leidig, who noted that Plaintiff was making good progress and
counseled him on smoking cessation, advising him to follow up again in one year. (Tr. at 50001; 762-63)
I

On April 23, 2007, Plaintiff followed up with Dr. Leidig, who noted that Plaintiff had
I
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been doing well and had not recently experienced hn.y cardiac symptoms. (Tr. at 933-34) Dr.
I

.

i

Leidig referred Plaintiff to Dr. Alan Micklin, M.Dl, a cardiologist, who performed an exercise
stress cardiolite test and a carotid artery duplex ul~asound on July 6, 2007, as well as an
abdominal aorta duplex ultrasound performed on iuly 17, 2007. (Tr. at 760-61) The exercise
stress cardiolite test was cut short due to Plaintiffs fatigue, but revealed no evidence of ischemia
or infarction. (Tr. at 761) The test results from the carotid artery duplex ultrasound were
consistent with mild stenosis of the right internal carotid artery and minimal stenosis of the left
internal carotid artery. (Tr. at 760) On June 3, 2008, Plaintiff saw Dr. Leidig, who indicated that
Plaintiff was doing "extremely well," and advised him to walk at least five days per week and
quit smoking. (Tr. at 818)

10

C.

Administrative Hearing
1.

Plaintiff's testimony

The ALJ held administrative hearings on January 7, 2011 and October 23, 2013. (Tr. at
36-119) Plaintiff appeared, represented by.counsel. (Id.) Plaintiff was born on June 16, 1956,
and was fifty-four years old at the time of the first hearing and fifty-seven years old at the time of
the second hearing. (Tr. at 46; 95) Plaintiff lives with his wife, daughter, grandchild, and
grandchild's stepfather. (Tr. at 47) He is abkto drive but has some difficulty with vision at
night. (Id.)
Plaintiff has not worked since April 2003. (Tr. at 52) From 1995 to 1999, Plaintiff
worked for Software IQ, a company run by Plaintiff and his wife that offered computer software,
training, and consulting. (Tr. at 51) Plaintiff handled scheduling and billing in this position.
(Id.) From 1999 to 2003, Plaintiff worked for K-Mart as an assistant electronics manager, but

was later transferred to a cashier position due to his inability to lift up to fifty pounds on a
I

regular basis. (Tr. at 47-50) Plaintiff also worked for a non-profit organization called
Community Systems from 2000 to 2001 as an office manager and assistant to the director. (Tr.
at 50)
Plaintiff testified that his gastroparesis impedes his life, causing him to suffer from
nausea and vomiting throughout the day. (Tr; at 53-54) During the relevant time period from
2007 to 2008, Plaintiff testified that he was being treated for gastroparesis by his primary care
physician, Dr. Moore, and an endocrinologist, Dr. Lenhard, who attempted to regulate his
medication to reduce his vomiting. (Tr. at 54) Plaintiff also suffered from diabetes and took two
types of insulin in addition to the Reglan for his gastroparesis and anti-depressants. (Tr. at 54)
Plaintiffs diabetes was made worse by his gastroparesis because he had difficulty controlling the

11

amount of food that would remain in his system. (Tr. at 101) When his blood sugar drops,
Plaintiff experiences heart palpitations, sweating, loss of focus, and confusion.. (Tr. at 102)
Plaintiffs visits to emergency rooms for dehydration stopped in 2007 following an
increase in the dosage of his nausea medication and the introduction of Zofran. (Tr. at 56)
However, Plaintiff testified that the gastroparesis prevents him from eating solid food more than
· · three or four times a week, and he continues to suffer from nausea and vomiting. (Tr. at 57) He
attributed his weight gain during that time period to his insulin medication. (Id.) Plaintiff has
been advised to avoid certain foods to prevent aggravation of his gastroparesis, and also follows
certain dietary restrictions due to his diabetes. (Tr. at 61-62)
Plaintiff has not undergone any procedures, for his coronary artery disease since 2000,
when he had a stent placement, but he visits a cardl.ologist biannually. (Tr. at 57-58) He
testified that he did not experience any significant symptoms during the 2007-2008 time period
1

and felt that his heart condition was the least ofhisI problems. (Tr. at 58) Plaintiff continues to
smoke about a half pack of cigarettes per day, des~ite efforts to quit including nicotine patches,
lozenges, gum, Chantix, and Wellbutrin. (Tr. at 59)
Plaintiff also testified that he suffered from severe depression, but had never treated with
a psychiatrist, psychologist, or therapist and was instead treated by his primary care physician.
(Tr. at 62; 100-01) Plaintiff was unable to reca11 which medications he took to treat his
depression during the relevant time period, but at the time of the January 7, 2011 hearing, he
took W ellbutrin and Trazodone. (Id.) Plaintiff indicated that his depression causes him to
experience suicidal thoughts and difficulty with concentration. (Tr. at 63)
According to Plaintiff, his medications made him dizzy and lethargic and reduced his
ability to concentrate during the relevant time period. (Tr. at 65; 102) ·He becomes fatigued and

12

lightheaded after walking the equivalent of a city block, and such a walk would take him fifteen
to twenty minutes to complete. (Id.) He cannot climb stairs and remains on the first floor of his
residence. (Tr. at 66) During the relevant time period, Plaintiff could stand for an hour to an
hour and a half at a time, had no limitations on sitting, and was capable of lifting about ten
pounds. (Tr: at 66-67) Plaintiff had no limitations on bending forward at the waist, kneeling,
stooping, or breathing. (Tr. at 69-70) He does not require assistance taking his own medications
or maintaining his personal hygiene, and was capable of sleeping a total of eight hours at night in
2007-2008. (Tr.· at 70-71) He began having difficulty preparing meals in 2007 due to his
nausea. (Tr. at 71) He completed household chores including loading the dishwasher, carrying
laundry, making the bed, and driving for simple errands. (Tr. at 72)
Plaintiff enjoys listening to music, but can no longer read books or travel extensively.
(Tr. at 73-74) He occasionally visits with childhood friends in Pennsylvania. (Tr. at 74) He
does not participate in any social clubs or groups. (Tr. at 75)
At the second hearing, Plaintiff stated that he could not perform his past work running a
computer software, training, and consulting business during the relevant time period because he
suffered from daily symptoms including nausea, vomiting, fatigue, difficulty concentrating, and
severe muscle spasms in his stomach. (Tr. at 96-99) Plaintiff anticipated that he would miss
work five to seven days a month, and would be unable to concentrate when he was at work. (Tr.
at 103)

2.

Vocational expert's testimony

At the first hearing, the VE testified that, according to Plaintiffs testimony, Plaintiff had
worked as an assistant electronics manager or store laborer, which is at a sedentary exertional
level, skilled with a special vocational preparation ("SVP") of seven. (Tr. at 68) The VE noted

13

..

that Plaintiff also worked as a cashier, which is a light duty, unskilled job with an SVP level of
two. (Tr. at 68-:69) The VE stated that Plaintiff next worked as a self-employed consultant for a
period of eight years, which is at a sedentary exertional level, skilled with an SVP of eight. (Tr.
at 69)
The ALJ posed the following hypothetical to the VE:
· This individual is approximately 51 years old, has a high school education, is able
to read, and write, and do at least simple math such as adding and subtracting.
There are certain underlying impairment's [sic] that place limitations on the
ability to do work related activities. In this particular hypothetical the lifting is at
a sedentary level of exertion,.posturally, all: the postural's are occasional, but this
individual should avoid climbing a ladder, a rope, or a scaffold. This individual
should avoid concentrated exposure to temperature extremes. Odors, dust, gases,
poor ventilation. In your opinion, with this hypothetical, having talked earlier
about the past relevant work, could such a person do any of the past relevant
work, in your opinion?
(Tr. at 82) The VE responded: "[T]hey could perform the past work as the - as the consultant
and then as the office manager as they are customarily performed or defined by Dictionary of
Occupational Titles and it appears that that's the way he actually performed them." (Tr. at 83)
On cross-examination, Plaintiffs attorney .asked whether a hypothetical individual who
suffered from frequent interference with attention .and concentration, the inability to perform
low-stress jobs, sit/stand limitations, the need to take unscheduled five-minute breaks every two
hours, the inability to lift, and the need to be absent from work more than four days per month
would be capable of sedentary work. (Tr. at 84-85) The VE stated that a hypothetical individual
with such limitations would be unable to perform any competitive work. (Tr. at 85)
At the second hearing on October 23, 2013; a different VE testified. The ALJ informed
the VE about the previous hypothetical posed to the first VE. (Tr. at 107-108) The VE indicated
that Plaintiff could perform past relevant work pursuant to the hypothetical, but noted that this
would not be the case if Plaintiff were limited to simple, unskilled work. (Tr. at 108) Plaintiffs
14

attorney then asked the VE "For the - the self-employment position ... If the person was doing
it on a part-time basis only and it wasn't a home setting, does - does that affect how they learn
the job, what skills they really gather from it, does that - does that play a role at all in what they
really, truly know from that type of a position?" (Tr. at 109) The VE responded:
The office manager position that was described by the judge, with the SVP of 7,
would basically also include jobs duties where the person would be supervising
other staff and I believe that that was why she had mentioned that the SVP would
be reduced. Because if the person is self-employed and they're not supervising
other people, then obviously it would remove those job duties from the
description. The other core job duties would be the same, so I would say that the
SVP would be reduced to perhaps a five . . . . But the essential tasks of the job
would still be the same.
(Tr. at 109) The VE further clarified that the skills acquired would depend on
The length oftime that the person did the job ... if they were able to learn the job
duties with the position that which would be skilled essentially, even with an SVP
of5. The person would need to do the job duties for the number of hours that
someone would typically do the job at full-time in order to be able to acquire
those skills. So basically what we would have to do is say okay, if the person did
it for three years and it was 15 hours a week, how much time would that be if the
person really would be working full-time. '
(Tr. at 113-14) Next, Plaintiffs attorney addressed the sedentary past relevant work positions,
I

asking the VE, "If the hypothetical individual was going to be - during the work day, they were
going to frequently experience pain and other symptoms severe enough to interfere with their
attention and concentration to perform even simple work tasks. And frequently defined as 34
percent, 66 percent of the work day, would they be able to· do their past relevant work?" (Tr. at
114) The VE responded that such a reduction in productivity would be work-preclusive, and
noted that, "[p]articularly with unskilled positions, if a person is having regular absences, even if
it is just one day per month, if that's occurring every month, then that would be work preclusive
if it was a pattern." (Tr. at 115) The VE also confirmed that the number of unscheduled breaks

15

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required would reduce productivity by fifteen to twenty percent or more, which would be workpreclusive. (Id.)

D.

ALJ's Findings

· Based on the factual evidence and the testimony of Plaintiff and the VE' s, the ALJ
determined that Plaintiff was not disabled during the relevant time. (Tr. at 19) The ALJ' s
findings are summarized as follows: 4
1. The claimant last met the insured status requirements of the Social
Security Act on September 30, 2008.
2. The claimant did not engage in substantial gainful activity during the
period from his alleged onset date of October 4, 2007 through his date last
•
I
msured of September 30, 2008 (20 C.F.R. §§ 404.1571 et seq.).
3. Through the date last insured, the c~aimant had the following severe
impairments: diabetes mellitus with gastroparesis; and coronary artery
disease (CAD) (20 C.F.R. § 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or 111edically equaled the severity of
one of the listed impairments in 20 C.F ~R. Part 404, Subpart P, Appendix
1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).
1

!

5. After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional
capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a)
except can occasional [sic] stoop, crouch, crawl, climb ramps/stairs, but no
climbing of a ladder, rope, or scaffold; and should avoid concentrated
exposure to temperature extremes, odors, dust, gases, and poor ventilation.
6. Through the date last insured, the claimant was capable of performing past
relevant work a [sic] self-employed consultant and office manager. This
work did not require the performance of work-related activities precluded
by the claimant's residual functional capacity (20 C.F.R. § 404.1565).
7. The claimant was not under a disability, as defined in the Social Security
Act, at any time from October 4, 2007, the alleged onset date, through
September 30, 2008, the date last insured (20 C.F.R. § 404.1520(£)).

4

The ALJ' s rationale, which was interspersed throughout the findings, is omitted from this
recitation.
16

(Tr. at 22-29)

III.

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

they are supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3). Judicial
review of the ALJ' s decision is limited to determining whether "substantial evidence" supports
the decision. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). In making
this determination, a reviewing court may not undertake a de novo review of the ALJ' s decision
and may not re-weigh the evidence of record. See id. In other words, even ifthe 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 ~
Substantial evidence is defined as less than a preponderance of the evidence, but more
than a mere scintilla of evidence. As the Supreme Court has explained, substantial evidence
"does not mean a large or significant amount of evidence, but rather such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487
U.S. 552, 565 (1988). The Supreme Court also has embraced this standard as the appropriate
I

standard for determining the availability of sumµlary judgment pursuant to Federal Rule of Civil
Procedure 56. "The inquiry performed is th_e 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 governing law,
there can be but one reasonable conclusion as to the verdict. If "reasonable minds could differ as
17

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 substantialitytest 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." Brewster v. Heckler, 786 F.2d 581,
584 (3d Cir. 1986) (quotingKentv. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). Where, for
example, the countervailing evidence consists primarily of the plaintiffs subjective complaints
of disabling pain, the ALJ "must consider the subjective pain and specify his reasons for
rejecting these claims and support his conclusion with medical evidence in the record." Matullo
v. Bowen, 926 F .2d 240, 245 (3d Cir. 1990).
"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." Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984).
IV.

DISCUSSION
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,

18

...

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 results 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 capacity5 to perform his past work. If the claimant cannot
. perform his 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)(l).
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).

5A

claimant's residual functional 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).
19

B.

Whether the ALJ's Decision is Supported by Substantial Evidence

On November 12, 2013, the ALJ found that Plaintiff was not under a disability within the
meaning of the Act during the relevant time period from the alleged onset date of October 4,
2007, to September 30, 2008. (Tr. at 20) The ALJ concluded that, despite Plaintiffs severe
. impairments of diabetes mellitus with gastroparesis and coronary artery disease, he had the
residual functional capacity to perform sedentary work including his past relevant work as a selfemployed consultant and office manager. (Tr. at 22-28)
Plaintiff contends that: ( 1) the ALJ erred in finding Plaintiff did not have a severe mental
impairment; (2) the ALJ erred in failing to accord adequate weight to the opitrions of Plaintiff's
treating physicians; (3) the ALJ improperly relied upon the VE's testimony, which failed to
consider all of Plaintiff's credibly established limitations. (D.I. 9)
1. Plaintiff's mental impairment

Plaintiff contends that the ALJ improperI y found his depression not severe even though
the medical evidence supports a finding that his depression caused more than a minimal effect on
his ability to sustain employment. (D.I. 9 at 14) Specifically, Plaintiff alleges that the ALJ erred
in failing to include limitations on concentration in the RFC assessment in combination with the
limitations imposed by Plaintiffs gastroparesis. (Id. at 16)
To reach her conclusion that Plaintiff does not have any severe mental impairment, the
ALJ.assessed functional limitations using the four broad functional areas set out in the disability
regulations for evaluating mental disorders. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C).
First, with respect to activities of daily living, the ALJ found that Plaintiff has a mild limitation. 6

6

According to the Social Security regulations, "activities of daily living include adaptive
activities such as cleaning, shopping, cooking, taking public transportation, paying bills,
20

...

(Tr. at 23) The ALJ based her finding primarily upon Plaintiffs own testimony and statements.
Plaintiff testified that he helped care for pets, completes his own personal care, prepares meals,
washes dishes, takes out the trash, carries laundry, mows the grass, drives for simple errands, and
shops for groceries. (Tr. at 23; 70-72; 306-08) The court finds that substantial evidence supports
the ALJ' s conclusion that Plaintiff did not exhibit marked restriction in activities of daily living.
Second, the ALJ found no limitation in social functioning. 7 Initiating social contact with
others, communicating clearly with others, or interacting and actively participating in group
activities are indicative of strength in social functioning. See 20 C.F.R. Pt. 404, Subpt. P, App.
1, § 12.00(C)(2). Plaintiff testified that he lived with his wife and enjoyed visiting with his
children on a weekly basis and talking to family on the telephone. (Tr. at 47; 309) The court
finds there is substantial evidence that supports the ALJ's finding that Plaintiffhad no restriction
in social functioning.
Third, the ALJ found that Plaintiff has only a mild limitation in the functional area of
concentration, persistence, or pace. 8 (Tr. at 23) Plaintiff testified that he had trouble with
memory and concentration, but previously reported no difficulty following written or spoken
instructions. (Tr. at 63; 310) The court finds that substantial evidence supports the ALJ' s
conclusion that Plaintiff did not exhibit marked restriction in concentration, persistence, or pace.
Fourth, the ALJ found no episodes of decompensation which have been of extended

maintaining a residence, caring appropriately for your grooming and hygiene, using telephones
and directories, and using a post office." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(l).
7
According to the Social Security regulations, "social functioning refers to your capacity to
interact independently, appropriately, effectively, and on a sustained basis with other
individuals." Id. at § 12.00(C)(2).
8
According to the Social Security regulations, "Concentration, persistence, or pace refers to the
ability to sustain focused attention and concentration sufficiently long to permit the timely and
appropriate completion of tasks commonly found in work settings." Id. at§ 12.00(C)(3).
21

duration. 9 (Tr. at 23) The ALJ noted there is no evidence of any episodes of decompensation or
inpatient mental health treatment during the relevant time period. (Id.)
Because Plaintiffs medically_ determinable depression caused no more than "mild"
limitations in any of the first three functional areas and no episodes of decompensation which
have been of extended duration in the fourth area, the ALJ properly found the condition
nonsevere. 20 C.F .R. § 404.1520a(d)(l ). The ALJ observed that Plaintiffs treatment for
depression remained limited to medication prescribed by his primary care physician, Dr. Moore,
and noted that Plaintiff never required inpatient treatment or treatment with a psychiatrist. (Tr. at
22) This is consistent with Dr. Moore's treatment notes, which reveal that Dr. Moore prescribed
Celexa and W ellbutrin to treat Plaintiffs depression, but Plaintiff never sought counseling and
responded well to the prescribed medication. (Tr. at 723-24; 727-28; 748-56) The ALJ afforded
the opinion of state agency psychological consultant Hillel Raclaw, Ph.D., great weight, because
she noted that Plaintiff responded positively to the medication prescribed by Dr. Moore. (Tr. at
22)

2. Weight of medical opinions and medical evidence
Plaintiff argues that the ALJ failed to properly weigh the medical opinions of Dr. Moore
and Dr. Lenhard. (D.I. 9 at 24-28) Plaintiff claims that the ALJ improperly rejected the opinions
of Dr. Moore and Dr. Lenhard, despite lab findings, diagnostic evidence, and the consistency of
the physicians' records. (Id. at 27-28)
Generally, the weight afforded to any medical opinion is dependent on a variety of

9

"Episodes of decompensation are exacerbations or temporary increases in symptoms or signs
accompanied by a loss of adaptive functioning, as manifested by difficulties in performing
activities of daily living, maintaining social relationships, or maintaining concentration,
persistence, or pace ... and ordinarily requires increased treatment or a less stressful situation (or
a combination of the two)." Id. at § 12.00(C)(4).
22

factors, including the degree to which the opinion is supported by relevant evidence and is
consistent with the record as a whole. 20 C.F.R. § 404.1527(c)(3)-(4). A treating physician's
opinion does not warrant controlling weight under the regulations unless it is well supported by
clinical and laboratory diagnostic findings and is consistent with other substantial evidence. See
20 C.F.R. § 404.1527(c)(2); Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001). The more a
treating source presents medical signs and laboratory findings to support his or her medical
opinion, the more weight it is given. Id. Likewise, the more consistent a treating physician's
opinion is with the record as a whole, the more weight it should be afforded. Id. An ALJ may
only reject a treating physician's assessment outright 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 at 318; Lyons-Timmons v. Barnhart, 147 F. App'x
313, 316 (3d Cir. 2005).
Even when the treating source opinion is not afforded controlling weight, it does not
follow that the opinion 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: (1) the treatment relationship, including the length of the
relationship and the nature and extent of the relationship; (2) supportability; (3) consistency; (4)
specialization; and (5) other factors. 20 C.F.R. § 404.1527( c)(2)-(6).
Considering this authority against the instant record, the court finds that the ALJ did not
err in affording the opinions of Dr. Moore and Dr. Lenhard little weight. (Tr. at 27-28) The ALJ
correctly found that the limitations identified in Drs. Moore and Lenhard's diabetes mellitus RFC
questionnaires were inconsistent with the limitations described in their own treatment notes.
Specifically, Dr. Moore's treatment notes from October 2007 through September 2008 showed

23

an improvement of Plaintiffs symptoms, describing Plaintiffs gastroparesis as stable with only
one incident ofworsening·symptoms in December 2007 related to Plaintiffs consumption of
greasy food. (Tr. at 723-28) The ALJ observedthat Dr. Moore continued to describe Plaintiffs
gastroparesis as stable in riotes from Plaintiffs October 2008 appointment. (Tr. at 717) Dr.
Lenhard's treatment notes from the relevant time period also suggested an improvement of
Plaintiffs symptoms, describing Plaintiffs gastroparesis as sporadic, intermittent, and
successfully treated with Phenergan. (Tr. at 28; 815) These notes are inconsistent with his
responses to the questionnaire, as Dr. Lenhard did not identify the specific symptoms that would
interfere with Plaintiffs attention and concentration and did not complete· the questionnaire. (Tr.
at 28; 985-87) Plaintiff did not require hospitalization for his symptoms during the relevant
period, and his condition was stable enough that he was able to vacation in Jamaica shortly prior
to the relevant period. (Tr. at 28; 729) The record demonstrates that Plaintiffs symptoms
improved with his medication and dietary restrictions.
Moreover, the opinions of Dr. Moore and Dr. Lenhard regarding Plaintiffs ability to
perform low stress jobs are not entitled to controlling weight. The Commissioner's regulations
explain that medical source opinions that a claimant is "disabled" or ''unable to work" are not
medical opinions and are not given special significance because opinions as to whether or not a
claimant is disabled are reserved for the Commissioner. 20 C.F.R. § 404.1527(d). The court
finds that substantial evidence supports the ALJ' s decision to assign less than controlling weight
to the opinions expressed in the RFC questionnaires by Dr. Moore and Dr. Lenhard, because
those opinions are inconsistent with the record as a whole and thus lack consistency and
supportability.

24

3.

Sufficiency of the RFC assessment

Finally, Plaintiff argues that the ALJ improperly failed to consider Plaintiffs nonexertional limitations in the hypothetical, including: (1) episodes of nausea and vomiting; (2)
depressive symptoms, which would prevent Plaintiff from being able to perform highly skilled
work; and (3) side effects from medication. (D.I. 9 at 19-21) Reliance_ on an expert's answer to
a hypothetical question will not constitute substantial evidence unless all credibly established
limitations are included; remand is required where the hypothetical question is deficient.

Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005); Anderson v. Astrue, 825 F. Supp. 2d
487, 498 (D. Del. 2011) (citations omitted). "A hypothetical question must reflect all of a
claimant's impairments that are supported by the record; otherwise the question is deficient and
the expert's answer to it cannot be considered substantial evidence." Chrupcala v. Heckler, 829
F.2d 1269, 1276 (3d Cir. 1987). Third Circuit case law and governing regulations have provided
guidance on whether a limitation is "credibly established:"
Limitations that are medically supported and otherwise uncontroverted in the
record, but that are not included in the hypothetical question posed to the expert,
preclude reliance on the expert's response. Relatedly, the ALJ may not substitute
his or her own expertise to refute such record evidence. Limitations that are
medically supported but are also contradicted by other evidence in the record may
or may not be found credible-The ALJ can choose to credit portions of the
existing evidence but cannot reject evidence for no reason or for the wrong
reason. Finally, limitations that are asserted by the claimant but that lack
objective medical support may possibly be considered nonetheless credible. In
that respect the ALJ can reject such a limitation if there is conflicting evidence in
the record, but should not reject a claimed symptom that is related to an
impairment and is consistent with the medical record simply because there is no
objective medical evidence to support it.

Ruthe1ford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005).
The ALJ appropriately considered Plaintiffs nausea and vomiting in determining which
credibly established limitations should be accounted for in the hypothetical and RFC assessment.

25

Specifically, the ALJ indicated that Plaintiffs symptoms were well~controlled with diet and
occasional use of medication, and treatment records from the relevant time period did not
support Plaintiffs claim of constant nausea and vomiting or indicate any weight loss which
would support Plaintiffs testimony. (Tr. at 26) The ALJ nevertheless accounted for Plaintiffs
complaints of stomach pain and nausea triggers by assigning sedentary work with occasional
postural limitations. (Tr. at 26-27) The ALJ appropriately concluded that Plaintiffs complaints
of chronic nausea and vomiting were not supported by the medical evidence of record and,
consequently, the ALJ was not obligated to include additional limitations in the hypothetical and
RFC assessment to account for them. See Rutherford, 399 F.3d at 554.
However, the ALJ failed to account for limitations resulting from Plaintiffs medically
determinable depression in the hypothetical posed to the VE and the RFC assessment. While
ultimately concluding that Plaintiffs depression was non-severe, the ALJ nonetheless
acknowledged that Plaintiff suffered from the "medically determinable mental impairment of
depression," which caused a "minimal limitation in [Plaintiffs] ability to perform basic mental
work activities." (Tr. at 22) The ALJ also afforded great weight to the opinion of the state
agency psychological consultant, who confirmed the validity of Plaintiffs mental health
diagnosis by concluding that Plaintiff's depression was a non-severe impairment responsive to
medication. (Id.) Additionally, the ALJ acknowledged that her severity finding at step two of
the sequential evaluation process required further explanation at steps four and five of the
analysis, including "itemizing various functions contained in the broad categories found in
paragraph B of the adult mental disorders listings" to incorporate them in the RFC assessment
for purposes of reflecting the degree oflimitation found. (Tr. at 23) However, the ALJ failed to
further explain, or even mention, the mild limitations resulting from Plaintiffs depression at

26

·•
..

steps four and five of the analysis. (Tr. at 24-28)
Having found that Plaintiffs non-severe depression was medically supported, and having
acknowledged that there were mild limitations associated therewith, the ALJ had a duty to
address those limitations in the RFC assessment and the hypothetical question posed to the VE.

See Harmon v. Astrue, 2012 WL 94617, at *2 (E.D. Pa. Jan. 11, 2012) (citing Washington v.
Astrue, 2009 WL 855893, at *1 (E.D. Pa. Mar. 31, 2009); Davis v. Astrue, 2007 WL 2248830, at
*3-4 (E.D. Pa. July 30, 2007); Thompson v. Barnhart, 2006 WL 709795, at *13-15 (E.D. Pa.
Mar. 15, 2006)). The ALJ's failure to analyze the effects of Plaintiff's mental limitations on
Plaintiff's ability to work at steps four and five was particularly important in view of the ALJ's
conclusion that Plaintiff could perform his skilled past relevant work as a self-employed
consultant and office manager. Courts have found that "even minimal deficits in these areas of
functioning could impact [a plaintiff's] ability to successfully perform the [skilled] occupation."

See Harmon, 2012 WL 94617, at *2. The ALJ's failure to include all of the limitations she
found to be associated with Plaintiff's medically determinable depression in her RFC assessment
and the hypothetical posed to the VE constitutes legal error. Consequently, this case must be
remanded to allow the ALJ to reconsider any such limitations stemming from Plaintiff's
medically determinable depression.
Plaintiff also testified that he suffered side effects from his medications which made him
dizzy, lethargic, drowsy, and reduced his ability to concentrate. (Tr. at 65; 102; 306) The ALJ
did not consider these side effects in the RFC assessment or incorporate them into the
hypothetical question posed to the VE. The Commissioner's regulations and Third Circuit
precedent require an ALJ to make findings regarding the effectiveness and side effects of
medications. Burnett v. Comm 'r of Soc. Sec. Admin., 220 F.3d 112, 122 n.3 (3d Cir. 2000)

27

(citing Stewart v. Secy ofHealth, Educ. & Welfare, 714 F.2d 287, 290 (3d Cir. 1983)); see also

Dougherty v. Astrue, 715 F. Supp. 2d 572, 585 (D. Del. 2010); 20 C.F.R. § 404.1529(c)(3)(iv);
SSR 96-7p, 1996 WL 374186. Under 20 C.F.R. § 404.1529(c)(3)(iv), in determining whether a
claimant is disabled, the Commissioner will consider the type, dosage, effectiveness, and side
effects of any medication the claimant takes or may have taken to alleviate pain or other
symptoms. Although the ALJ is not required to incorporate limitations relating to the side
effects of Plaintiffs medications if the medical record contains no evidence of physical
limitations resulting from those side effects, see Burns v. Barnhart, 312 F.3d 113, 130-31 (3d
Cir. 2002) and Dougherty v. Astrue, 715 F. Supp. 2d 572, 585

n~9

(D. Del. 2010), the ALJ is

required to consider those side effects. In the present case, the ALJ failed to do so, thus
warranting remand.
Plaintiff also contends that substantial evidence does not support the ALJ' s determination
that Plaintiff is able to perform his past relevant work as a consultant and office manager. (D.I. 9
at 21-24) Having concluded that remand is warranted to give the ALJ an opportunity to include
all credible limitations in the RFC assessment, the court need not reach a determination on
Plaintiff's ability to perform his past relevant work at this time. The court may conduct such an
analysis once the RFC assessment is no longer deficient.
With respect to Plaintiff's assertion that the ALJ improperly failed to rely upon the
medical vocational guidelines when determining whether work existed that Plaintiff could
perform, the court notes that the medical vocational guidelines apply when the claimant has only
exertional limitations, and do not apply in the present case because Plaintiff also had nonexertional limitations. See Sykes v. Apfel, 228 F.3d 259, 269 (3d Cir. 2000) ("The regulations do
not purport to establish jobs that exist in the national economy at the various functional levels

28

when a claimant has a nonexertional impairment.").

V.

CONCLUSION
For the foregoing reasons, I recommend that the court grant Plaintiffs motion for

summary judgment (D.I. 8) and deny the Commissioner's cross-motion for summary judgment
(D.I. 11). I further recommend that the court reverse the Commissioner's decision and remand
the case to the Commissioner with instructions to:
(1) Consider the limitations associated with Plaintiffs medically determinable mental
impairment of depression in combination with the limitations associated with
Plaintiffs impairments of gastroparesis, diabetes mellitus, and coronary artery
disease;
(2) Determine whether Plaintiff has limitations associated with the side effects of his
medications and, if any, consider such limitations in combination with the limitations
associated with all aforementioned impairments;
· (3) Address the foregoing limitations in the hypothetical question posed to the VE; and
(4) Re-assess Plaintiffs RFC and his ability to return to _past relevant work.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b )(1 )(B), Fed. R.
Civ. P. 72(b )(1 ), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to ten (10)
pages each. The failure of a party to object to legal conclusions may result in the loss of the right
to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. Appx. 924, 925 n.l
(3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).

29

The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded.uscourts.gov.
Dated: September_\_, 2016

30