Fuller v. Colvin

Filing 13

MEMORANDUM OPINION re cross-motions for summary judgment. Signed by Judge Leonard P. Stark on 3/28/17. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARTIN BENJAMIN FULLER,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER, OF
SOCIAL SECURITY, 1
Defendant.

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C.A. No. 15-538-LPS

Gary C. Linarducci, JasonL Thompson, LINARDUCCI & BUTLER, New Castle, DE.
Attorneys for Plaintiff.

David C. Weiss, Acting United States Attorney, and Patricia A. Stewart, .special Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wilmington, DE.
Nora Koch, Acting Regional Chief Counsel, Region III, and Evelyn Rose Marie Protano,
Assistant Regional Counsel, SOCIAL SECURITY ADMINISTRATION - REGION III OFFICE
OF GENERAL COUNSEL, Philadelphia, PA.
Attorneys for Defendant.

MEMORANDUM OPINION

March 28, 2017
Wilmington, Delaware
1

Nancy A; Berryhill is now Acting Commission of Social Security. Pursuant to Federal
Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for former Commissioner
Carolyn W. Colvin as defendant in this suit.

I.

INTRODUCTION

Plaintiff Martin Benjamin Fuller ("Fuller".or "Plaintiff') appeals from a decision of
Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration ("the
Commissioner" or "Defendant"), denying his claims for disability insurance benefits ("DIB")
under Title II, 42 U.S.C. §§ 401-434, of the Social Security Act. The Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). Before the Court are cross-motions for summary judgment filed
by Plaintiff and the Commissioner. (See D.I. 8, 10)
Plaintiff seeks DIB from October 31,2010 through the present (see D.I. 9at1) or, in the
alternative, asks for remand and further proceedi~gs before the Commissioner (see id. at 18).
The Commis'sioner requests that the Court affirm ·the decision denying Plaintiffs application for
benefits. (See

D~I.

11 at 20)

For the reasons set forth below, the Court will grant in part and deny in part Plaintiffs
,and Defendant's motions for summary judgment.
II.

BACKGROUND

A.

Procedural History

On April 1, 2011,. Plaintiff filed a Title II application for disability insurance benefits.
(See D.I. 5 ("Tr.") at 159) Plaintiffs application was denied at the initial level of administrative

review on April 26, 2012 (see id. atlOl) and was denied on reconsideration on July 18, 2012.
.

I

(See id. at 108) After a hearing before an Administrative Law Judge ("ALJ") on February 18,

2014 (see id. at 29), the ALJ issued a decision on March 7, 2014, finding that Plaintiff did not
have a disability within the meaning of the Social Security Act because his alleged conditions

1

were not severe enough to prevent him from working. (See id. at 25) Plaintiff filed

arequest for

review of the hearing decision and order, which was denied. (See id. at 1) Thus, the ALJ' s
decision of March 7, 2014 became the Commissioner's final decision. (See id.)
On June 25, 2015, Plaintiff filed suit in the District of Delaware, seeking judicial review
of the Commissioner's denial of benefits. (See D .I. 1) The parties completed briefing on their
cross-motions for summary judgment on December 23, 2015. (See D.l. 12)

B.

Factual History

Plaintiff was 48 years old at the onset ofhis alleged disability. (See Tr. at 32) He has a
GED and previously worked as a K-9 police officer. (See id. at 35-36) Plaintiff contends that he
cannot work becaus~ he has right shoulder problems, including capsulitis, tendonitis, and
degenerative disc disease. (See id. at 33, 42)
Plaintiffs last insured date for purposes ofDIB was December 31, 2011. (See id. at3233)

1.

Plaintiff's Testimony

On February 18, 2014, Plaintiff testified before the ALJ in support of his petition for
- benefits. (See id. at 33-57) Plaintiff said that he took disability retirement from his job as a K-9
police officer because he was injured in the neck and right shoulder. (See id. at 38, 42) He
testified that he could not lift anything with his right hand because of numbness in his fingers.
(See id. at 50) To manage his pain, Plaintiff takes over-the-counter pain relievers and uses ice,
heat, and hot tub therapy. (See id. at 45, 61) Plaintiffs daily activities include watching
television and performing light household chores. (See id. at 55) Plaintiff also rests during the
daytime to alleviate his pain. (See id. at 56) Since injuring his neck and right shoulder, Plaintiff

2

has developed anxiety and depression. (See id. at 53) Plaintiff takes medications for anxiety and
depression, but his depression has "gotten worse." (Id. at 59)

2.

Doctors·' reports
a.

Dr. Edward R. Stankiewicz

Plaintiff began seeing Dr. Stankiewicz in February 2010 for pain in his right ·shoulder due
to his work injury and continued to see him for the same condition through March 2011. (Id. at
238-73) Upon examining Plaintiff on multiple occasions, Dr. Stankiewicz found that Plaintiff's
neck was "supple," but found "right shoulder tenderness." (E.g., id. at 259, 261, 263, 265, 267)
During his visits with Dr. Stankiewicz in 2010, Plaintiff complained of "pain and loss of full
function in the right shoulder" (id. at 259) and a lack of"full range of motion" in his right
shoulder (id. at 255). In response to such concerns, Dr. Stankiewicz prescribed Plaintiff several
medications during this period, including Cipro, Nexium, Flagyl, Hydrocortisone, Percocet, and
Lexapro. (See id. at 256, 258, 260)

b.

Dr. Mark Case

Plaintiff began seeing Dr. Case in January 2011. (See id. at 286) Dr. Case characterized
the severity of Plaintiff's neck pain as "moderate" and the severity of his shoulder pain as "mild."
(Id. at 288) According to Dr. Case, Plaintiff had a "decreased range of motion" due to his neck

pain and a "loss of function" due to his shoulder pain. (Id.) On February 3, 2011, Plaintiff
underwent an MRI of the cervical spine. The MRI results indicated that Plaintiff had a "bilateral
uncovertebral spur, contributing to mild foraminal narrowing" at C3-C4 and had a "right
uncovertebral spur, contributing to right foraminal narrowing" at C4-C5. (Id. at 282)
Additionally, Plaintiff had a "mild posterior disc bulge with small central disc protrusions with

3

annular tear" at both C5-C6 and C6-C7. (Id.) While reviewing the results of the MRI, Dr. Case
noted that Plaintiffs neck pain and shoulder pain were "worsening" and referred him to physical
therapy. (Id. at 296-97) Dr. Case also prescribed Lexapro, Nexium, and Zithromax. (Id. at 295)
During Plaintiffs last follow-up visit in 2011, Dr. Case again noted that Plaintiffs neck pain and
shoulder pain were "worsening" (id. at 307-08) and prescribed Lidoderm in addition to Lexapro,
Nexium, and Zithromax (see id. at 306).
Dr. Case completed a Medical Source Statement of Ability to Do Work-Related
Activities (Physical) on June 27, 2013. (Id. at 382-88) Dr. Case indicated that Plaintiff could
continuously lift up to 10 pounds and occasionally lift up to 50 pounds, but could never lift above
51 pounds.

(Se~

id. at 382) He noted that Plaintiff could sit, stand, andwalk for up to one hour

each during an eight-hour workday and "altemat[e]" between the three during the remaining five
hours. (Id. at 383) Additionally, Dr. Case noted that Plaintiff could never reach, handle, feel,
push, or pull with his right hand, but could occasionally perform all those tasks with his left_hand
and could occasionally finger with both hands. (See id. at 384) According to Dr. Case, Plaintiff
could occasionally climb stairs and ramps, but never climb ladders or scaffolds, balance, kneel,
stoop, crouch, or crawl. (See id. at 385) Dr. Case concluded that Plaintiffs pain was
"incapacitating" and that medications would "severely limit [Plaintiffs] effectiveness in the
workplace due to distraction, inattention, drowsiness, etc." (Id. at 388)

c.

Residual Functional Capacity ("RFC") Assessments

The ALJ utilized the findings of three experts in making his RFC determination: Dr.
Vinod Kataria; state agency consultant Dr. Dianne Bingham; and the vocational expert, Samuel
Eldleman. Drs. Kataria and Bingham assessed Plaintiff in April and March 2012, respectively, as
4

part of the initial review of Plaintiffs application. (See id. at 82, 86) The vocational expert
testified at the hearing before the ALJ on February 18, 2014. (See id. at 67)
Dr. Kataria found that Plaintiff had exertional limitations. (See id. at 82) Despite such
limitations, Dr. Kataria noted that Plaintiff could occasionally lift up to 20 pounds and frequently
lift up to 10 pounds. (See id. at 83) Dr. Kataria also found that Plaintiff had postural limitations,
but could sit, stand, or walk, with normal breaks, for "[a]bout [six] hours in an [eight-hour]
workday." (Id.) Lastly, Dr. Kataria concluded that Plaintiff had certain manipulative limitations:
Plaintiffs "[r]ight [o]verhead" reaching was limited, although Plaintiffs handling and fingering
were without limitations. (Id.)
Dr. Bingham stated that Plaintiffs depression and anxiety were "due to [hisl physical
impairments." (Id. at 81) Nevertheless, Dr. Birigham found that Plaintiffs affective· and
anxiety-related disorders did not satisfy any diagnostic criteria. (See id.) Therefore, according to
Dr. Bingham, Plaintiffs limitations due to depression and anxiety were "non-severe." (Id.)
At Plaintiffs hearing on February 18, 2014, the ALJ asked the vocational expert t.o
consider a hypothetical person similar to Plaintiff in age, education, work history, and physical
and workplace capabilities. (See id. at 68-70) Specifically, the hypothetical individual was one
with the following restrictions: "[n]o climbing ofladders, ropes, or scaffolds;" "no crawling;"
and "occasio~al" postural activities. (Id. at 68) The hypothetical individual also had restrictions
with respect to his or her "right domina[nt] upper extremity" and could not engage in overhead
reaching, pushing or pulling. (Id.) The individual, however, could occasionally engage in
"handling, fingering, and feeling with that right domina[nt] upper extremity." (Id.) The expert
determined that such a person could perform the occupat~ons of a cashier, toll collector, and
5

parking lot attendant. (See id. at 69-70)

C.

The ALJ's Findings

Plaintiff appeals the ALJ's March 7, 2014 decision, which made the following findings:
1.

The claimant last met the insured status requirements of the Social Security Act
· on December 31, 2011.

2.

The claimant did not engage in substantial gainful activity during the period from
his alleged onset date of October 31, 2010 through his date of last insured of
December 31, 2011 (20 CFR 404.,1571 et seq.).

3.

Through the date last insured, the claimant had the following severe
impairments: degenerative disc disease of the cervical spine, right shoulder
encapsulitis, anemia, gastritis, depressio~, and anxiety (20 CFR
404.1520(c)).

4.

Through the date last insured, the claimantdid nothave an impairment or
combination of impairments that met or medically equaled the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526).

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 light work as defined in 20 CFR 404.1567(b) except
the claimant cannot climb ladders/ropes/scaffolds or crawling, but he can
perform crouching, climbing ramps/stairs, stooping, kneeling, and
balancing occasionally; as to the right upper extremity, the claimant cannot
perform oyerhead reaching, pushing, or pulling, and can perform only
occasionally handling, fingering, and feeling with the extremity; the
claimant cannot work where he would be exposed to extreme cold
temperatures, vibration, or hazards; his work must consist of simple,
routine, repetitive tasks with only superficial contact with the public and
co-workers; the claimant must work in a stable environment with only
occasional change in the work process from day to day.

6.

Through the date last insured, the claimant was unable to perform any past
relevant work (20 CFR 404.1565).

7.

The claimant was born on August 15, 1962 and was 49 years old, which is
defined as a younger individual 18-49, on the date last insured (20 CFR
404.1563).
6

8.

The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564).

9.

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

10.

Through the date last insured, considering the claimant's age, education, work
experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the claimant could have
performed (20 CFR 404.1569 and 404.1569(a)).

11.

The claimant was not under a disability, as defined through the Social
Security Act~ at any time from October 31, 2010, the alleged onset date,
through December 31, 2011, the date last insured (20 CFR 404.1520(g)).

(Id. at 17-25)

III.

LEGAL STANDARDS
A.

Motion for Summary Judgment

"The court shall grant summary judgment ifthe movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). In determining the appropriateness of summary judgment, the Court must

"review the record taken as a whole ... draw[ing] all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves

v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000) (internal quotation marks omitted). If
the Court is able to determine that there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law, summary judgment is appropriate. See Hill v.

City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005).

7

B.

Review of the ALJ's Findings

The Court must uphold the Commissioner's factual decisions if they are supported by
"substantial evidence." See 42 U.S.C. §§ 405(g), 1383(c)(3); see also Monsour Med. Ctr. v.
Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). "Substantial evidence" means less than a
preponderance of the evidence but more than a mere scintilla of evidence. See Rutherford v.
Barnhart, 399 F .3d 546, 552 (3d Cir. 2005). As the United States Supreme Court has noted,
substantial evidence "does not mean a large or significant amount of evidence, but rather such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
In determining whether substantial evidence supports the Commissioner's findings, the

· Court may not undertake a de novo review of the Commissioner's decision and may not re-weigh
the evidence of record. See Monsour, 806 F.2d at 1190-91. The Court's review is limited to the
evidence that was actually presented to the ALJ. See Matthews v. Apfel, 239 F.3d 589, 593-95
(3d Cir. 2001); However, evidence that was not submitted to the ALJ can be considered by the ·
Appeals Council or the District Court as a basis for remanding the_matter to the Commissioner
for further proceedings, pursuant to the sixth sentence of 42 U.S.C. § 405(g). See Matthews, 239
F.3d at 592. "Credibility determinations are the province of the ALJ and only should be
disturbed on review if not supported by substantial evidence." Gonzalez v. Astrue, 537 F. Supp.
2d 644, 657 (D. Del. 2008) (internal quotation marks omitted).
The Third Circuit has explained that a "single piece of evidence will not satisfy the
substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence,
8

particularly certain types of evidence (e.g., that offered by treating physicians) - or if it really
constitutes not evidence but mere conclusion." Kent v. Schweiker, 710 F.2d 110; 114 (3d Cir.
1983). Thus, the inquiry is not whether the Court would have made the same determination but,
rather, whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d
1211, 1213 (3d Cir. 1983). Even ifthe reviewing Court would have decided the case differently,·
it must give deference to the ALJ and affirm the Commissioner's decision if it is supported by
substantial evidence. See Monsour, 806 F.2d at .1190-91.

IV.

DISCUSSION

A.

Disability Determination Process

Title II of the Social Security Act, 42 U.S.C. § 423(a)(l)(D), "provides for the payment of
insurance benefits to persons who have contributed to the program and who suffer· from a
physical or mental

disability~"

Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Title XVI of the

Social Security Act provides for the payment of disability benefits to indigent persons under the
SSI program. See 42 U.S.C. § 1382(a). A "disability" is defined for purposes of SSI and DIB as
the

inabil~ty

"to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months." See 42.
U.S.C. § 1382c(a)(3). A claimant is disabled "only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy." -42 U.S.C. § 1382c(a)(l)(B); see also

Barnhart v. Thomas, 540 U.S. 20, 21-23 (2003).

9

In determining whether a person is disabled, the Commissioner is required to perform a
five-step sequential analysis. See 20 CFR § 416.920; see also Russo v. Astrue, 421 F. App'x
184, 188 (3d Cir. Mar. 21, 2011). If a finding of disability or non-disability can qe made at any
point in the sequential process, the Commissioner will not review the claim further. See 20
C.F.R. § 416.920(a)(4).
At step one, the Commissioner must determine whether the claimant is engaged in any
substantial gainful activity. See 20 C.F.R. § 416.920(a)(4)(I) (mandating finding of
non-disability when claimant is engaged in substantial gainful activity). If the claimant is not
engaged in substantial gainful activity, step two requires the Commissioner to determine whether
the claimant is suffering from a severe impairment or a combination of impairments that is
severe. See 20 CFR § 416.920(a)(4)(ii) (mandating finding of non-disability when claimant's
impairments are not severe). If the claimant's impairments are severe, the Commissioner, at step
three, compares the claimant's impairments to a list of impairments that are presumed severe
enough to preclude any gainful work. See 20 C.F.R. § 416.920(a)(4)(iii). When a claimant's
impairment or its equivalent matches an impairment in the listing, the claimant is presumed
disabled. See id. If a claimant's impairment, either singly or in combination, fails to meet or
medically equal any listing, the analysis continues to steps four and five. See 20 C.F .R.

§ 416.920(e).
At step four, the Commissioner determines whether the claimant retains the residual
functional capacity ("RFC") to perform her past relevant work. See 20 C.F .R.
§ 416.920(a)(4)(iv) (stating claimant is not disabled if able to return to past relevant work). A
claimant's RFC is ''that which an individual is still able to do despite the limitations caused by

10

his or her impairment(s)." Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir. 2001). "The
claimant bears the burden of demonstrating an inability to return to her past relevant work."

Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999) (internal citation omitted).

If the claimant is unable to return to her past relevant work, step five requires the
Commissioner to determine whether the claimant's impairments preclude her from adjusting to
any other available work. See 20 C.F.R. § 416.920(a)(4)(v) (mandating finding of non-disability
when claimant can adjust to other work); see also Plummer, 186 F.3d at 428. At this last step,
the burden is on the Commissioner to show that the claimant is capable of performing other
available work before denying disability benefits. See id. In other words, the Commissioner
must prove that '~there are other jobs existing in significant numbers in the national economy
which the claimant can perform, consistent with [her] medical ·impairments, age, education, past
work experience, and [RFC]." Id. In making this determination, the ALJ must analyze the
cumulative effect of all of the claimant's impairments. See id.· At this step, the ALJ often seeks
the assistance of a vocational expert See id.

B.

Arguments on Appeal

Plaintiff contends that the ALJ: (1) "committed reversible error by improperly rejecting
the well-supported opinion of Plaintiffs treating physician;" (2) "erred by finding Plaintiff not
disabled while relying upon Vocational Expert testimony which was wholly inconsistent with his
hypothetical question;" and (3) "erred by relying upon an incomplete hypothetical question."
(D.I. 9 at 1) In response, the Commissioner argues that the ALJ's findings were supported by
substantial evidence and that the ALJ's decision should be affirmed.· (See D.I. 11 at 1-2) The
Court addresses the parties' disputes below.

11

1.

Treating Physician Opinion

Plaintiff argues that the ALJ failed to give adequate weight to the opinion of his treating
physician, Dr. Case. 2 (See D.I. 9 at 9) Defendant responds that the ALJ reasonably assigned
little weight to Dr. Case's opinion because it was inconsistent with substantial evidence in the
record and because Dr. Case's.opinion did not relate back to the date last insured. (See D.I. 11 at
11, 13)
The Third Circuit subscribes to the "treating physician doctrine." See Mason v. Shala/a,
994 F.2d 1058, 1067 (3d Cir. 1993). According to this rule, a treating physician's opinion is
accorded "controlling weight" if it is "well-supported by medically acceptable clinical and
laboratory diagnostic techniques and it is not inconsistent with the other substantial evidence in
the record." Fargnoli, 247 F.3d at 43. "A cardinal principle guiding disability eligibility
determinations is that the ALJ accord treating physicians' reports great weight, especially when
their opinions reflect expert judgment based on a continuing observation of the patient's
condition over a prolonged period of time." Plummer, 186 F.3d at 429 (internal citation
omitted).
When there is medical evidence contradicting the treating physician's view, the ALJ must
carefully evaluate how much weight to accord the treating physician. See Gonzalez, 53 7 F. Supp.
2d at 660. Ad~itionally, ifthe treating physician's opinion does not relate to the period between
the alleged onset date and the date last insured, the ALJ may find that the treating physician's
opinion "lack[s] probative value" and accord it less weight. Beety-Monticelli v. Comm 'r, 343 F.

2

Piaintiff actually argues that the ALJ "reject[ed]" Dr. Case's opinion (D.I. 9 at 9), but
the record .shows that the ALJ in fact gave the opinion "little weight" (Tr. at 22).
12

· App'x 743, 746 (3d Cir. Aug. 28, 2009). A decision not to give controlling weight to the opinion
of a treating physician does not automatically result in giving no weight whatsoever to that
opinion. See Gonzalez, 537 F. Supp. 2d at 660. In determining how much weight to accord to a
treating physician's opinion, an ALJ must weigh all the evidence and resolve all material
conflicts. See Barnhill v. Astrue, 794 F. Supp. 2d 503, 515 (D. Del. 2011) .

. If a treating physician's opinion is not given controlling weight, the ALJ should consider
various factors in determining the weight to give it, including: the length, nature, and extent of
the treatment relationship; the frequency of examination; the amount of medical evidence offered
in support of the opinion; the consistency of the opinion with the record as a whole; and the
specialization of the treating physician. See 20 C.F.R. §§ 416.1527(c)(2)-(6). Further, when an

ALJ' s decision is to deny benefits, the notice of the determination must "contain specific reasons
for the weight given to the treating source's medical opinion, supported by substantial evidence
in the case record." S.S.R. 96-2p, 1996 WL 374188, at 5. The ALJ's notice of the determination
"must [also] be sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave the treating source's medical opinion and the reasons for that weight." Id.
In evaluating this evidence, the ALJ should be mindful that "non-examining state agency
medical and psychological consultants are 'highly qualified' physicians and psychologists and
'experts in the evaluation of the medical issues in disability claims under the Social Security Act
(the 'Act'),' [and] their opinions on [a] claimant's residual functional capacity are entitled to
weight." Jopson v. Astrue, 517 F. Supp. 2d 689, 702 (D. Del. 2007) (citing 20 C.F.R.
§§ 404.1527(e)(2)(I), 416.927(e)(2)(I)); see also Chandler v. Comm 'r ofSoc. Sec., 667 F.3d 356,
361 (3d Cir. 2011) ("[S]tate agency opinions merit significant consideration."); Coleman v.

13

Comm 'r ofSoc. Sec., 494 F. App'x 252, 254 (3d Cir. July 13, 2012).
If the ALJ considers the opinions of non-treating physicians, such opinions must be
examined for whether, and how well, they take into account other evidence in the record,
including the view of treating physicians. See 20 CFR § 416.927(c)(3). "[B]ecause
nonexamining sources have no examining or treating relationship with [the patient], the weight
[given to] their opinions will depend on the degree to which they provide supporting
explanations for their opinions." Id.
In reviewing the ALJ's analysis, it is not for the Court to re-weigh the medical opinions in
the record. See Gonzalez, 53 7 F. Supp. 2d at 659. Rather, the Court must determine whether
substantial evidence exists to support the ALJ' s weighing of those opinions. See id.
Here, the ALJ gave limited weight to the opinion of Plaintiffs treating physician, Dr.
Case. (Tr. at 22) The ALJ found that the opinion was contradicted by Dr. Case's own "treating
notes and the remainder of the objective medical evidence, ... which d[id] not support a finding
of disability." (Id.)
Substantial evidence may support this conclusion. An ALJ "d[ oes] not err in assigning
limited weight" to treating physicians' opinions if such opinions are inconsistent with objective
medical evidence and other medical assessments. Hudson v. Comm 'r, 93 F. App'x 428, 431 (3d
Cir. Apr. 2, 2004); see also Leibig v. Barnhart, 243 F. App'x 699, 701 (3d Cir. June 19, 2007)
(holding that ALJ did not err in giving limited weight to treating physician's opinion when that
opinion was inconsistent with other medical assessments). Dr. Case opined that Plaintiffs pain
was "incapacitating" (Tr. at 388), but Dr. Case's treating notes characterized Plaintiffs shoulder
pain as "mild" and noted that Plaintiffs right shoulder was within normal limits (id. at 288). Dr.

14

Case's notes further indicated that Plaintiffs neck was "supple" and that Plaintiffs shoulder was
of normal strength. (Id. at 311)
Given the arguable contradictions between the Dr. Case's opinion and his medical
records, it is possible that substantial evidence supports the ALJ' s determination to give little
weight to Dr. Case's opinion. However, there is sufficient ambiguity in the record to warrant a
remand. This is principally because the ALJ also found that Dr. Case's opinion did not relate to
the period between the alleged onset date and the date last insured (See Tr. at 23)- but that
finding may be incorrect.
Dr. Case completed his questionnaire in June 2013, but Plaintiffs date last insured was
December 31, 2011. (See id.) The parties dispute whether, when Dr. Case was completing the
form, he was giving his opinion as to Plaintiffs condition in· December 2011 (which would be
relevant) or instead his opinion as to Plaintiffs condition at the later (uninsured and irrelevant)
date of June 2013. (See D.I. 9 at 12; D.I. 11 at 11-12)3 The words written and typed on the form
itself- including a note Plaintiffs counsel indicates was added by counsel, directing Dr. Case to
give an opinion as to December 2011, and a standard preprinted note on the form, which suggests
the opinion being given was for the "present," i.e., the date on which the form is being completed
- are ambiguous. (See Tr. at 382, 387; D.I. 11 at 12; D.I. 9 at 12)
The Court will remand to allow the ALJ to make a determination as to whether Dr.
Case's opinion is for December 2011 or for June 2013. The record is unclear on this point. Yet·
the ALJ's finding that the opinion was directed to the irrelevant June 2013 date may have

3

A physician's opinion lacks probative value if it "d[ oes] not relate back to the period for
which Plaintiff [was] insured for benefits." Jones v. Barnhart, 2005 WL 2033383, at *6 (E.D.
Pa. Aug. 23, 2005).
15

impacted the ALJ' s assessment of the weight to be given to that opinion.

2.

Vocational Expert Testimony

Pfaintiff ai:gues that the ALJ erred in relying on the vocational expert's ("VE") testimony
because the ALJ did not ask whether the jobs identified by the VE were consistent with the
Dictionary of Occupational Titles ("DOT"). (See D.I. 9 at 16) Because of allegedly unresolved
conflicts between the DOT and the VE' s testimony, Plaintiff further argues that someone with
Plaintiffs limitations cannot perform the jobs identified by the VE. (See id.) The Commissioner
responds that the ALJ did ask the required question, and "there were no apparent unresolved
conflicts between the VE's testimony and the DOT." (D.I. 11 at 16) The Commissioner further
claims, that, "[ e]ven if a conflict[] existed, any error was harmless b~cause the VE accounted
for" Plaintiffs limitations·. (Id.)
"As a general rule, occupational evidence provided by a VE should be consistent with the
oc_cupational evidence presented in the DOT." Zirnsak v. Colvin, 777 F.3d 607, 617 (3d Cir.
Dec. 9, 2014). However, "the presence of inconsistencies does not mandate remand, so long as
substantial evidence exists in other portions of the record that can form an appropriate basis to
support the result." Id. (emphasis and internal quotation marks omitted). Nevertheless, if
"[P]laintiff is essentially precluded from performing ... [any] job[] identified by the VE" on the
basis of the ALJ' s residual functional capacity formulation, then "the court cannot conclude that
the ALJ's decision ... is supported by substantial evidence." Davis v. Astrue, 741 F. Supp. 2d
582, 590-91 (D. Del. 2010) (finding that "distinction [betWeen frequent and occasional use] is
not inconsequential, particularly when it pertains to limitations on one's ability to use one's
hands"). In such cases, courts may "remand th[e] matter to the ALJ for further findings and/or
16

proceedings." Id. at 591.
The Court will remand. The three jobs the VE identified that Plaintiff would be capable
of performing - cashier, toll collector, and parking lot attendant (see Tr. at 69-70) - require
frequent reaching, handling, and fingering, or frequent reaching and handling (see D .I. 9-1 Ex. 1
at 3; D.I. 9-2 Ex. 2 at 3; D.I. 9-3 Ex. 3 at 3). The ALJ's RFC determination, which provided the
basis for the ALJ' s hypothetical posed to the VE, provided that Plaintiff could "perform only
occasional[] handling [and] fingering." (Tr. at 19) (emphasis added) '"Occasional[]' means

occurring from very little up to one-third of the time," SSR 83-10, 1983 WL 31251, at *5 (Jan.
1, 1983), while "'frequent means occurring from one-third to two-thirds of the time," id. at *6.
Therefore, the ALJ' s conclusion that Plaintiff could "perform only occasional[] handling [and]
fingering" (Tr. at 19) seems to "preclude{] [P]laintiff from being capable of performing any of
the jobs identified by the VE." Davis, 741 F. Supp. at 591.
While the record shows the ALJ asked the VE whether there were any conflicts between
the VE's opinion and the DOT, the VE's response is recorded as partially inaudible. (See Tr. at
70) Moreover, the record is devoid of any recognition- by the ALJ, the VE, or even Plaintiffs
counsel - of the apparent conflict between the "occasional" limitation of Plaintiffs RFC and the
"frequent" requirement of the jobs the ALJ found Plaintiff could perform. Hence, the Court
concludes that the proper outcome is to remand to allow the Commissioner to determine if there
is a conflict, and if so, to explain how (if at all) it may be resolved. The Court is not :prepared to
conclude on the basis of the current record that error, ifthere was any, was harmless. 4

4

The ALJ did not address whether Plaintiff could engage in non-overhead reaching. (See
Tr. at 19) All three jobs identified by the VE require frequent reaching. (See D.I. 9-1 Ex. 1 at 3;
D.I. 9-2 Ex. 2 at 3; D.I. 9-3 Ex. 3 at 3) On remand, the ALJ may need to explore this potential
17

3.

Hypothetical Question

Finally, Plaintiff argues that the ALJ relied on flawed vocational expert testimony
because the ALJ failed to describe accurately all of Plaintiffs limitations. (See D.I. 9 at 17)
Specifically, Plaintiff argues that the ALJ's hypothetical question "omit[ted] credibly established
limitations" put forth by Dr. Case and, thus, did not "constitute substantial evidence." (Id.) The
Commissioner responds that "it [was] within the ALJ' s discretion whether to submit [a]
limitation" that "is supported by some medical evidence but controverted by other evidence in
the record." (D.I. 11 at 19)
An ALJ is not required to "submit to the [VE] every impairment alleged by a claimant."
Rutherford v.13arnhart, 399 F.3d 546, 554 (3d Cir. 2005) (emphasis omitted). Instead, the ALJ

need only "convey ... all of a claimant's credibly established limitations." Id. (emphasis
omitted). "[L]imitations 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 [the] evidence for no reason or for the wrong reason." Id.
(internal quotation marks omitted).
Resolution of this issue turns on the same considerations as resolution of the first issue on
appeal: the weight given to Dr. Case's opinion. Accordingly, on remand, any hypothetical to a
VE will have to reflect all limitations the ALJ finds are credibly established, and only such
limitations.

inconsistency as well.
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V.

CONCLUSION
For the foregoing reasons, the Court will grant in part and deny in part Defendant's and

Plaintiffs motions for summary judgment. An appropriate Order follows.

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