Tate v. Colvin

Filing 21

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
AMYD.TATE,
Plaintiff,
v.
C.A. No. 15-604-LPS
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant. 1
Vanessa L. Kassab, DOROSHOW, PASQUALE, KRAWITZ & BRAYA, Wilmington, DE.
Attorney for Plaintiff.

David C. Weiss, Acting United States.Attorney, United State's Attorney's 9ffice, Wilmington,
Delaware.
Heather Benderson, Special Assistant United States Attorney, OFFICE OF THE GENERAL
COUNSEL, Philadelphia, PA.
Attorneys for Defendant.

MEMORANDUM OPINION

March 28, 2017
Wilmington, Delaware

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for former
Commissioner Carolyn W. Colvin.

I.

INTRODUCTION
Plaintiff Amy D. Tate appeals from the decision of Nancy A. Berryhill, the Acting

Commissioner of the Social Security Administration ("the Commissioner" or "Defendant"),
denying her claims for disability insurance benefits and supplemental security income under Title
II, 42 U.S.C. §§ 401-434 ("Title II") and Title XVI, 42 U.S.C. §§ 1381-1383 ("Title XVI") of the
Social Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g) and § 1383(c)(3).
Before the Court are cross-motions for summary judgment filed by Plaintiff and the
Commissioner. (D .I. 14, 17) Plaintiff asks that the Court reverse the Commissioner's decision. ·
and remand with instructions to award benefits or, in the alternative, remand for further
proceedings before the Commissioner. (D.I. lS at 4) The Commissioner requests that the Court
affirm the decisions denying Plaintiffs·application for benefits. (D.I. 18 at 2) For the reasons set
forth below, the Court will deny Plaintiffs motion for summary judgment and grant Defendant's
motion for summary judgment.
II.

BACKGROUND
A.

Procedural History

On November 22, 2010, Plaintiff filed an application for disability insurance benefits and
supplemental security income. (D.I. 7 ("Tr.") at 176, 183) Plaintiffs applications were denie.d at
the initial level of administrative review on April 29, 2011 (id. at 122), and they were denied on
reconsideration on June 22, 2012, after additional consultative examinations (id. at 129) .. After a
hearing before an Administrative Law Judge ("ALJ") on January 17, 2014, the ALJ issued a
decision on March 19, 2014, finding that Plaintiff did not have a disability within the meaning of

1

the Social Security Act. (Id. at 17-28) Plaintiff filed a request for review of the ALJ's decision,
which was denied on May 13, 2015, resulting in a final decision of the Commissioner of Social
Security. (Id. at 1)
On July 16, 2015, Plaintiff filed suit in the District of Delaware, seekingjudicial review
of the Commissioner's denial of benefits. (D.I. 2) The parties completed briefing on their crossmotions for summary judgment on September 7, 2016. (See D.I. 15, 18, 20)
B.

Factual History

Plaintiff was 37 years old at the onset of her alleged disability. (Tr. at 26) She has a high
school education and has previously worked as a customer service representative and loan
processor. (Id. at _27, 41) Plaintiff contends that she cannot work due to back, leg, and neck
problems, as well as depression. (Id. at 220)
1.

Plaintiff's Testimony

On January 17, 2014, Plaintiff testified before the ALJ in support of her petition for
·benefits. (Id. at 35-71) She testified that her back and hip pain started in 2007 after she was in a
car accident. (Id. at 58) She said that she left her job in 2010 after receiving an injection for
migraines that left her with brain swelling and blurry vision. (Id. at 44) Plaintiff testified that
she experiences blurred vision, and has a prescription for Topamax to treat migraines. (Id. at 45)
She testified that she has back pain and cannot walk or sit for long periods. (Id. at 46-4 7) She
also testified that she has difficulty remembering things. (Id. at 4 7) Plaintiff stated that she stays
in the house most of the time, has difficulty going up and down stairs, and spends six nonsleeping hours a day laying on her left side. (Id. at 51-52, 61)

2

2.

Dr. Xing's Opinion

Plaintiffbegan seeing Dr. Xing, a pain management specialist, in early 2011. (See Tr. at
346-51) Dr. Xing provided epidural and other injections, as well as pain medications. (See, e.g.
id. at 394, 437, 524, 537) Dr. Xing's notes indicate that Plaintiffs pain responded well to

treatment, with 50% pain relief (using medications) by July 2011. (Id. at 404) By 2013, Dr.
Xing' s records consistently show that Plaintiff showed at least .70% improvement with
medication (see, e.g., id. at 541, 543, 551, 553), and that Plaintiff told Dr. Xing hermedications
were "working well" (id. at 525, 529). During this same period, Dr. Xing's notes also show that
Plaintiff experienced increased function and mobility as a result ofher treatments. (See, e.g., id.
at 523, 525, 527, 529) Further, Dr. Xing noted that Plaintiff was working as a waitress during
late 2012 and early 2013. (Id. at 547, 549, 551)
In a patient questionnaire completed on January 14, 2014, in support of Plaintiffs benefits
application, Dr. Xing opined that Plaintiff could sit for about four hours and stand or walk for
less than two hours during an eight-hour workday; occasionally lift and carry less than ten
pounds, and reach overhead for 5% of an 8-hour workday. (Id. at 520-21) She also stated that
Plaintiff would require hourly 15-minute unscheduled breaks during the workday; could sit for 30
minutes at a time, stand only 15 minutes at a time, and was likely to miss more than fours days of
work per month. (Id. at 520-22) Dr. Xing also indicated that Plaintiff could tolerate moderate
levels of stress. (Id. at 522)

C.

The ALJ's Findings

Plaintiff appeals the ALJ's March 19, 2014 decision, which made the following findings:
1.

The claimant meets the insured status requirements of the Social Security
3

Act through December 31, 2012.
2.

The claimant has not engaged in substantial gainful activity since O~tober 1,
2010, the amended alleged onset date (20 CPR 404.1571 et seq., and 20 CPR
416.971 et seq.).

3.

The claimant has the following severe impairments: Degenerative Disc
Disease of the Lumbar and Cervical Spine, Migraines, and Depression (20
CPR 404.1520(c) and 416.920(c)).

4.

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

5.

After careful consideration of the entire record, [the ALJ] finds the claimant has
the residual functional capacity to perform light work as defined in 20 CPR
404.15~7(b) with the ability to lift and carry as much as tweritypounds
occasionally and ten pounds frequently; can stand and/or walk three or more hours
in a given workday but less than six; can sit up to six hours in a workday, but
needs·a sit/stand option. She can only occasionally, stoop; crouch, crawl, kneel,
balance, or climb stairs; should not have to work around ladders, dangerous
heights, or.dangerous machinery. The claimant can engage in no more than
occasional overhead reaching with the right, dominant upper extremity; should not
have to work in concentrated exposure to heat, cold, dust, fumes, gases, or
vibrations. She retains the capacity to understand, remember, and carry out
simple instructions: simple work; can concentrate and pay attention at that level of
complexity; She can perform within a work schedule, be on time, produce an
adequate amount of work, and limit break times to permitted times. In both
instances, it takes extra effort on her part, but she retains the capacity to
concentrate and perform within a work schedule, albeit limited to simple, entrylevel, unskilled, low stress work. She is further limited to occasional interaction
with the general public to reduce stress from the social aspects of work; and ...
with the ability to read, write, and use numbers within the context ofsimple,
unskilled work.

6.

7.

· The claimant is unable to perform any past relevant work (20 CPR
404.1565 and 416.965).
The claimant was born on December 11, 1973 and was 37 years old, which
is defined as a younger individual age 18-49, on the amended alleged
disability onset date (20 ·CPR 404.1563 and 416.963).

4

8.

The claimant has at least a high school education and is able to communicate in .
.English (20 CFR 404.1564 and 416.964).

· 9.

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

10.

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

11.

The claimant has not been under a disability, as defined in the Social Security Act,
from October 1, 2010, through the date of this decision (20 CFR 404.1520(g) and
416.920(g)).

. (Id. at 17-28)

In making these findings, the ALJ afforded Dr. Xing's opinion "only some weight." (Id.
at 25) The ALJ noted that "Dr. Xing's opinion is not fully consistent with her own medical
records that demonstrate good response to treatment and a full range of motion throughout the
musculoskeletal system." (Id.) The ALJ also stated that "the claimant has demonstrated the
ability to perform tasks in excess of the functional capacity suggested by Dr. Xing.'' (Id.)

III.

LEGAL STANDARDS
A.

Motion for Summary Judgment

"The court shall grant summary judgment ifthe niovant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R.
Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 415 U.S. 574, 586
n.10 (1986). A party asserting that a fact cannot be - or, alternatively, is - genuinely disputed.

5

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

6

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

B.

Review of the ALJ's Findings

The Court must uphold the Commissioner's factual decisions if they are supported by
"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 le.ss 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). 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 suf>port 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

7

substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence,
particularly certain types of evidence (e.g., that offered by treating physicians) - or if it really
constitutes not evidence but mere conclusion." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.
1983). Thus, the inquiry is not whether the Court would have made the same determination but,
rather, whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F .2d
1211, 1213 (3d Cir. 1983). Even if the reviewing Court would have decided the case differently,
it must give deference to the ALJ and affirm the Commissioner's decision if it is supported by
substantial evidence. See Monsour, 806 F.2d at 1190-91.
IV.

DISCUSSION
Plaintiff contends that the ALJ: (1) failed to give adequate weight to the opinion of Dr.

Xing; (2) erred as a matter of law in finding that she could perform sustained work by using
"extra effort;" and (3) failed.to hold the government to its burden of establishing that she could
perform other work in the national economy. (D.I. 15 at 3) The Commissioner argues that the
ALJ's determinations were· supported by substantial evidence, and the decision should be
affirmed. (See D.I. 18 at 17)
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

8

the inability "to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected' to last for a continuous period of not less than 12 months." 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).
In determining whether a person is disabled, the Commissioner is required to perform a

five-step sequential analysis. See 20 CPR§ 416.920; see also Russo v. Astrue, 421 P. App'x
184, 188 (3d Cir. Mar..21, 2011). If a finding of disability or non-disability can· be made at any
point in the sequential process, the Commissioner will not review the claim further. See 20
C.P.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.P.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 ~s suffering from a severe impairment or a combination of impairments that is
severe. See 20 CPR§ 416.920(a)(4)(ii) (mandating finding of non-disability when claimant's
impairments are not severe). If the claimant's impainnents 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.P.R. § 416.920(a)(4)(iii). When a claimant's
9

impairment or its equivalent matches an impairment in the listing, the claimant is presumed
disableq. 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 capacityto perform her past relevant work. See 20 C.F.R. § 416.920(a)(4)(iv) (stating
claimant is not d~sabled if able to return to past relevant work). A claimant's residual functional
capacity is "that which an individual is still. able to do despite the limitations caused by his or her
impairment(s)." Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir. 2001). "The claimant bears the
burden of demonstrating an inability to return to her past relevant work." Plummer v. Apfel, 186
· F.3d 422, 428 (3d Cir. 1999) (internal citation omitted).

If the claimant is unable to return to her past relevant work, step five requires the
Commissioner to determine whether the claimant's impairments preclude her from 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 mup.bers in the national economy
which the claimant can perform, consistent with [her] medical impairments, age, education, past
work experience, and residual functional capacity." Id. In making this determination, the ALJ
· must analyze the cum:ulative 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.

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B.

ALJ's Consideration of Dr. Xing's Opinion

Plaintiff argues that the ALJ improperly failed to give controlling weight to the opinion of
her treating physician, Dr. Xing. (D.I. 15 at 12-15) Defendant responds that the ALJ reasonably
assigned little weight to Dr. Xing's opinion because her opinion was inconsistent with substantial
evidence in the record. (D .I. 18 at 9-15)
Treating physician opinions are assessed according to 20 C.F.R. §§ 404.1527, 416.927.
Controlling weight is afforded to a treating physician opinion when it is well-supported by
medically-acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in the record. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c); see

also Fargnoli, 247 F.3d at 43. Substantial evidence is "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Adorno v. Shalala, 40 F.3d 43, 46 (3d.
Cir. 1994) (internal quotation marks omitted).

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

Plummer, 186 F.3d at 429 (internal citation omitted). Thus, "in many cases, a treating source's

11

medical opinion will be entitled to the greatest weight and should be adopt~d even if it does not
meet the test for controlling weight." Social Security Rule 96-2P.
An ALJ may reject a treating physician's opinion "only on the basis of contradictory
medical evidence." Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000) (internal quotation marks
omitted).· It follows that an ALJ cannot reject a treating physician's opinion "for no reason or for
the wrong reason." Id. at 317 (internal quotation marks omitted). More specifically, an ALJ
"cannot disregard the opinion of a treating physician without referencing objective medical
evidence conflicting with the treating physician's opinion and explain[ing] the reasoning for
rejecting the opinions of the treating physician." Dass v. Barnhart, 386 F. Supp. 2d 568, 576 (D.
Del. 2005). When an ALJ' s decision is to deny benefits, the notice of the determination
generally must contain specific. reasons for the weight given to the treating source's medical
opinion, along with support from substantial evidence in the case record. See Social Security
Rule 96-2P. The determination should make clear to'any subsequent reviewers the weight the
adjudicator gave the treating source's medical opinion and the reasons for that weight. See id. In
reviewing an ALJ's determination, it is not for the Court to re-weigh the medical opinions in the
record but, rather, to determine if there is substantial evidence to support the ALJ' s weighing of
those opinions. See Monsour, 806 F.2d at 1190-91.
Here, the ALJ declined to give controlling weight to the opinion of Plaintiffs treating
physician, Dr. Xing. (Tr. at 25) The ALJ cited two reasons for this conclusion: (1) "Dr. Xing's
opinion is not fully consistent with her own medical records that demonstrate good response to
treatment and a full range of motion throughout the musculoskeletal system," and (2) Plaintiff
"has demonstrated the ability to perform tasks in excess of the functional capacity suggested by
12

Dr. Xing." (Id.) The ALJ, therefore, gave Dr. Xing's opinion only some weight. (Id.)
As the ALJ recognized, Dr. Xing's notes show that although Plaintiff suffers from chronic
low back and right hip pain, Plaintiffs pain improved with medication and physical therapy.
(See id. at 23) (citing id. at 441) Further, the ALJ identified Dr. Xing's records as revealing that
Plaintiff worked as a waitress at least in late 2012 and early 2013. (See id. at 25) (citing id. at
547) Additionally, the ALJ cited a number of objective.medical records showing that Plaintiff
exhibited a normal range of motion. (See, e.g., id. at 23) Substantial evidence supports the
ALJ's determination that Dr. Xing's own records, as well as other objective medical records, are
inconsistent with her opinion. See Hock v. Comm 'r Soc. Sec., 646 F. App'x 171, 174 (3d Cir.
2016). Accordingly, the ALJ was entitled to decline to give Dr. Xing's opinion controlling
weight, and the ALJ sufficiently described her reasons for doing so. (See Tr. at 25)
Plaintiff further arglies that the ALJ failed to adequately explain what weight was
assigned to Dr. Xing's opinion. Defendant asserts it is clear that the ALJ accepted that Plaintiff
is limited in many of the ways Dr. Xing suggested, but not to the same degree. In declining to
give controlling_ weight to a treating source's ~edical opinion, the ALJ."must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source's medical opinion." See Social Security Rule 96-2P. Here, the ALJ provided sufficient ·
explanation to enable judicial review. In particular, the ALJ found that "the claimant's medically
determinable impairments could reasonably be expected to cause the alleged symptoms;
however, the claimant's statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely credible for the reasons explained in this decision." (Tr. at 23)
The ALJ then provided a detailed explanation of Plaintiffs limitations, citing to objective

13

medical evidence of record. (Id. at 23~25) The ALJ accepted the types of limitations proposed
by Dr. Xing but found that "the objective medical ev.idence of record does not support the degree
of limitation alleged by the claimant." (Id. at 24) (emphasis added) Accordingly, the Court
determines that the ALJ fulfilled her obligation to explain why she did not give controlling
-weight to the Dr. Xing's opinion, in light of substantial evidence in the record. See Cotter v.
Harris, 642 F.2d 700, 704-05 (3d Cir. 1981).

C.

ALJ's "Extra Effort" Determination

Plaintiff argues that the ALJ erred as a matter of law in finding that she could perform
sustained work by using "extra effort." (D.I. 15 at 15) In describing Plaintiffs residual
functional capacity, the ALJ stated: "She retains the capacity to understand, remember, and carry
out simple instructions: simple work; can concentrate and pay attention at that level of
complexity. She can perform within a work schedule, be on time, produce an adequate amount
of work, and limit break times to permitted times. In both instances, it take~ extra effort on her
part, but she retains the capacity to concentrate and perform within a work schedule, albeit
limited to simple, entry level, unskilled, low stress work." (Tr. at 22) Plaintiff contends that the
ALJ applied a vague standard of "extra effort," and argues that the ALJ failed "to find that either
Ms. Tate retains the residual functional capacity to perform sustained work activities, or she does
not." (D.I. 15 at 15)
It is clear that the ALJ made a finding that Plaintiff does retain the residual function

capacity to perform sustained work activities. The ALJ explicitly stated that "she retains the
capacity to concentrate and perforin within a work schedule," subject to some limitations. (Tr. at
22) Later, the ALJ reiterates the finding: "Based upon the claimant's actual activities and

14

hearing testimony, the undersigned finds her mental impairment limits her to the performance of
SVP 1 and SVP 2 work involving only simple, instructions and one- or two-step entry level
instructions." (Tr. at'25) Further, contrary to Plaintiffs argument, there is no indication that the
vocational expert was confused by the ALJ's description of a hypothetical individual. (Tr. at 6366) Accordingly, the Court finds no reversible error.

D.

ALJ's Finding that Plaintiff Can Perform Work in the National Economy

Because the ALJ found that Plaintiff is unable to perform any past relevant work (Tr. at
26), the burden shifted to the Commissioner to "demonstrate the claimant is capable of
performing other available work." Plummer, 186 F.3d at 428. "The ALJ will often seek the
assistance of a vocational expert at this ...

s~ep,"

id., asking the vocational expert hypothetical

questions regarding "whether, given certain assumptions about the claimant's physical capability,
the claimant can perform certain types of jobs, and the extent to which such jobs exist in the
national economy," Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). "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).
Plaintiff contends that, in assessing whether there is available work, the ALJ relied on a
hypothetical question that "was deficient as a matter of law, as it did not comprehensively
describe all of [Plaintiff]'s impairments." (D.I. 15at16) _Plaintiff identifies two alleged
deficiencies: (1) "theALJ should have afforded controlling weight to the opinions of Dr. Xing"
or "explain[ed] what weight she was giving" to the opinion (id.), and (2) given the vague "extra
effort" standard used by the ALJ, "the vocational expert could not testify to whether that standard

15

· of 'extra effort' was compatible with sustained, competitive work activities" (id. at 17). Having
concluded that the ALJ did not err in her consideration of Dr. Xing's opinion or use of the "extra
effort" language, the Court also concludes that the hypothetical question posed to the vocational
expert was not deficient on those bases. Accordingly, the Court determines that substantial .
evidence supports the Commissioner's finding that there is work in the national economy that
Plaintiff can perform.

V.

CONCLUSION
Given the substantial evidence supporting the ALJ' s findings, the Court concludes that

neither an award of benefits nor a remand is warranted. Accordingly, the Court will grant
Defendant's motion for summary judgment and deny Plaintiffs ~otion for summary judgment.
An appropriate Order follows.

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