Guzman v. Colvin
REPORT AND RECOMMENDATIONS re 13 Cross MOTION for Summary Judgment filed by Carolyn W. Colvin, 11 MOTION for Summary Judgment filed by Gladys Guzman. 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 6/20/2016. Signed by Judge Mary Pat Thynge on 6/2/16. (cak)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
C.A. No. 15-841-RGA-MPT
REPORT AND RECOMMENDATION
This action arises from the denial of plaintiff’s claim for Social Security benefits.
On November 2, 2011, plaintiff filed a Title II application for Social Security Disability
Insurance Benefits (“DIB”).1 Plaintiff also filed an application on November 3, 2011 for
Supplemental Security Income under Title XVI of the Social Security Act (the “Act”).2 In
her applications and disability report, plaintiff alleged she became disabled on May 20,
2011, due to multilevel degenerative disc disease, degenerative joint disease,
fibromyalgia, polyarthritis, chronic asthma, major depression, and posttraumatic stress
disorder (“PTSD”).3 The claims were denied initially on June 22, 2012, and upon
reconsideration on December 5, 2012.4 Following these denials, plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”) and the video hearing occurred on
D.I. 7 at 28.
May 22, 2014.5 At the hearing, testimony was provided by plaintiff and an impartial
vocational expert, Linda Augins.6 On June 17, 2014, the ALJ, Irving Pianin, issued a
written decision denying her claims.7 Plaintiff requested a review of the ALJ’s decision
by the Social Security Appeals Council, which was denied on July 22, 2015.8 On
September 21, 2015, she filed a timely appeal with the court.9 Presently before the
court are the parties’ cross-motions for summary judgment.10 For the reasons that
follow, the court will grant the defendant’s motion.
Plaintiff was born on April 25, 1959.11 She has a GED and past relevant work as
a housekeeper, dishwasher, newspaper inserter, and packer.12 Her alleged disability
dates from May 20, 2011.13 In May 2011, she was released from her job as a packer
because her physical impairments, including sciatica and back pain, left her unable to
keep up with the demands of the job.14 After working as a housekeeper, plaintiff was
incarcerated for ten years for drug conspiracy.15 She denies smoking or drinking in
recent years.16 Since 2011, plaintiff has developed asthma, stiffness in her joints,
Id. at 54.
Id. at 36-47.
Id. at 1.
D.I. 11; D.I. 13.
D.I. 7 at 382.
Id. at 75-76.
Id. at 36.
Id. at 59-60.
Id. at 62.
Id. at 63.
difficulty moving and mental health problems including depression, anxiety, and PTSD.17
Despite her prior vocational experience, plaintiff claims she remains disabled under the
Act.18 To be eligible, plaintiff must demonstrate she is disabled within the meaning of §§
216(i), 223(d), and 1614(a)(3)(A) of the Act.
Plaintiff has had degenerative disc disease since January 2010, but the
exacerbation of her joint and back pain began around 2011.19 A physical exam done in
June 2011 recorded worsening joint pain and right arm and right knee pain that
increased with movement.20 The following month, plaintiff was evaluated by John
Sullivan, P.A., who noted her increasing joint pain, osteoarthritis, degenerative changes
in the spine, and complaints of back pains.21 An assessment in October 2011 by Dr.
DuShuttle revealed her left knee was swollen, weak, painful, and stiff.22 By November
2011, Drs. DuShuttle and Arian’s reports suggest she was unable to fully extend her
knee, had pain in her cervical and lumbar spine, and scoliosis in her lumbar spine.23
Plaintiff returned to Dr. Arian later in November 2011.24 During this visit, she
complained about lower back pain and upper shoulder pain in addition to a shooting
Id. at 28.
D.I. 7 at 43, 461.
Id. at 461.
Id. at 411-416.
Id. at 667.
Id. at 657, 741-742.
Id. at 801.
pain into her buttocks and down her legs.25 In January 2012, plaintiff alleged flank and
lower back pain, but her primary care physician, Dr. Tankala, deemed her back pain
under fair control.26 In a monthly assessment at the end of January with Dr. Adrian, she
still reported pain in her lower back, shoulders, and radiating down her legs.27 In
February 2012, Dr. Tankala administered an epidural steroid injection for the low back
pain.28 Despite treatment with Drs. Tankala and DuShuttle, the stiffness and pain in her
left knee persisted through May 2012 and was aggravated by motion, especially when
walking long distances and ascending stairs.29
Plaintiff sustained a fall at the end of 2011, which resulted in a meniscus tear in
her left knee that was diagnosed in March 2012.30 In another monthly pain
management assessment with Dr. Adrian in April 2012, plaintiff described continued
shooting pain from the back radiating down her leg and foot, as well as pain in her wrist
and fingers.31 Dr. DuShuttle performed a left lateral menisectomy on May 18, 2012.32
Plaintiff returned to Dr. DuShuttle after this surgery, advising of pain on movement of
the knee, stiffness, and muscle spasms.33 She was examined by Dr. Tamesis regarding
continued pain in her lower back, wrists, fingers, and knees and morning stiffness in
August 2012.34 Dr. Tamesis diagnosed degenerative joint disease, inflammatory
Id. at 562, 643.
Id. at 796.
Id. at 628.
Id. at 649, 662-663.
Id. at 663, 673.
Id. at 777.
Id. at 671.
Id. at 857.
Id. at 716.
polyarthropathy, and back pain.35
Plaintiff was in a car accident on November 26, 2012 that caused neck and back
pain exacerbated by lifting.36 The pain and stiffness in her knee continued through
2012.37 Although she struggled with a decreased range of motion following the
accident, Dr. DuShuttle reported only mild to moderate shoulder pain by the end of
Plaintiff visited Dr. Cemerlic for the first time in April 2013.39 An impairment
questionnaire dated March 11, 2014 indicated his diagnosis of myalgia, myositis,
lumbago, cervicalgia, sciatica, and chronic left knee pain.40 He cited her primary
symptoms as pain in the upper and lower back that ran down both hips and in her neck
and right shoulder.41 Dr. Cemerlic counseled plaintiff could sit or stand for one hour or
less in an eight hour work day, would require a shift of position every ten to fifteen
minutes in a work setting, and could occasionally carry or lift no more than ten pounds.42
Plaintiff has suffered with asthma for over twenty years.43 In September 2011,
she sought treatment at Kent General Hospital for wheezing and exacerbation of this
condition.44 Dr. Tankala diagnosed the asthma and shortly thereafter, she was
Id. at 718.
Id. at 859.
Id. at 857.
Id. at 857-859.
Id. at 971.
Id. at 972.
Id. at 973.
Id. at 722.
Id. at 423-424.
evaluated in the emergency room for shortness of breath and asthma.45 In November
2011, she showed no respiratory symptoms, but a ‘mild exacerbation’ of her asthma.46
After an emergency room examination in December 2011 revealed wheezing, plaintiff
was diagnosed with asthma and chronic lower back pain.47 That same month, she was
prescribed a ten day course of steroids for a persistent cough with wheezing and
shortness of breath.48 In February 2012, plaintiff was evaluated again in the emergency
room for an asthma attack.49 The resulting examination showed mild distress and
wheezing in her lung fields.50 She was diagnosed with asthma and acute bronchitis.51
Plaintiff continued to show symptoms of acute bronchitis and shortness of breath in
Dr. Walsh, a pulmonologist, started treating plaintiff in April 2012 for asthma,
nasal allergies, chronic bronchitis, and occupational asthma.53 She showed
improvement with the asthma in April, May, and July 2012.54 Dr. Walsh summarized
plaintiff’s symptoms and conditions in January 2013 as follows: shortness of breath,
chest tightness, wheezing, episodic acute asthma and acute bronchitis, and coughing.55
Additionally, Dr. Walsh found she would be able to sit or stand for one hour and would
Id. at 424, 636.
Id. at 641.
Id. at 585-586.
Id. at 584.
Id. at 546.
Id. at 546.
Id. at 547.
Id. at 549, 555.
Id. at 889-890.
Id. at 682-683, 721.
Id. at 889-895.
require one or two breaks of fifteen to thirty minutes every eight hour workday.56
Following this report, plaintiff complained of wheezing and congestion during
subsequent visits with Dr. Walsh in November 2013 and April 2014.57
Mental Health Problems
In September 2011, plaintiff was evaluated and started treatment for depression
and anxiety.58 She complained of difficulty sleeping, and was diagnosed with major
depressive disorder by Ihuoma Chuks, A.P.N.-N.P. at the Mind and Body Consortium.59
An assessment from that month indicates plaintiff was coherent, alert, orientated, and
able to concentrate.60 Additionally, the assessment shows she had a decent memory,
satisfactory judgment, and insight without hallucinations or delusions.61 Her Global
Assessment Function (“GAF”) score62 was 58.63 The following month Chuks noted
plaintiff’s sleep had improved, but she remained depressed.64 Her GAF score increased
to a range of 60-65, indicating mild symptoms or functional difficulties, and insomnia
was diagnosed.65 Plaintiff reported her medications improved her depression in
Id. at 892-894.
Id. at 1007-1008.
Id. at 479-482.
Id. at 480-481.
Id. at 480-481.
The GAF scale ranges from 0-100. A score of 51-60 denotes moderate
symptoms, while a score of 61-70 indicates mild symptoms or functional difficulties. A
score of 31-40 indicates (1) some impairment in reality testing or communication or (2)
major impairment in several areas, such as work or school, family relations, judgment,
thinking, or mood. D.I. 12 at 8; D.I. 14 at 8.
Id. at 482.
Id. at 473.
Id. at 478.
In January 2012, she was first admitted into Connections, Community Support
Programs and started seeing Dr. Nancy Cleary, who became her mental healthcare
doctor.67 An ensuing mental status exam concluded plaintiff was well organized, alert,
had decent memory and recollection, and had good insight and judgment.68
Connections staff recorded her GAF score as 55 in January 2012.69 She reported
nightmares and depression related to her physical pain in the following month.70 A
report completed by Dr. Frye at the Mind and Body Consortium noted her memory,
speech, thought process, and mood were all considered normal.71 She was proscribed
Cymbalta and Trazodone, which improved her depression and anxiety by March 2012.72
However, in April 2012, plaintiff discontinued the Cymbalta because of weight gain and
its affect on her physical pain.73 Her depression and anxiety worsened.74 Her dose of
Trazodone consequently increased and Zoloft was substituted for Cymbalta.75
Plaintiff began seeing Dr. Sacre in September 2012.76 She related in October
2012 that the medication helped.77 By January 2013, Dr. Sacre noted improvement in
Id. at 471.
Id. at 67, 950.
Id. at 701.
Id. at 702.
Id. at 687.
Id. at 685.
Id. at 685, 687.
Id. at 683.
Id. at 900.
Id. at 695.
her mental health.78 The following month, Dr. Sacre completed an
psychiatric/psychological impairment questionnaire and diagnosed major depression
and PTSD.79 He noted her past and present GAF was 35.80 He found she was
moderately limited in remembering locations and work-like procedures, understanding
and remembering simple instructions, and maintaining attention for extended periods of
time.81 Furthermore, he concluded she was markedly limited in working in coordination
with others without being distracted.82
In April 2013, a mental status exam by Dr. Cleary stated plaintiff had racing
thoughts, a depressed and irritable mood, occasional paranoia, hallucinations, and
forgetfulness.83 She was diagnosed with major depressive disorder, generalized anxiety
disorder, and cocaine and alcohol dependence that was in remission.84 In July 2013,
plaintiff was discharged from Connections because she was unresponsive to attempts
to reengage her in treatment.85 Dr. Cleary noted plaintiff’s GAF score was 58 in April
2013.86 In December 2013, her GAF score was 60 and she still had anxiety and
depression.87 Her memory, attention, thought processes, and intellect were all
considered good.88 After her brother’s death in February 2014, her memory, reasoning,
Id. at 970.
Id. at 900.
Id. at 903.
Id. at 947-948.
Id. at 948.
Id. at 950.
Id. at 933, 1036.
Id. at 934.
impulse control, judgment, and thought processes remained stable.89 However, in April
2014, her anxiety and depression worsened.90
At the May 22, 2014 video hearing, plaintiff testified about her background, work
history, and her alleged disability.91 She is approximately five-foot-four inches tall and
weighs about 168 pounds.92 She is single and lives with her 81-year-old mother and her
mentally disabled brother.93 She has not worked since May 2011.94 She completed her
GED in 2010.95
Plaintiff stated she worked as a housekeeper for a few years before developing
chronic asthma from an allergic reaction to cleaning chemicals.96 After working as a
housekeeper, she was incarcerated for conspiracy for drug distribution for ten years.97
She denied using cocaine for approximately the past twenty years.98 Upon being
released, she started working as a dishwasher for about three to four months.99 She
then worked as a newspaper inserter until the company was sold, when she was hired
as a packer.100 She estimated as a newspaper inserter, she was required to lift and
Id. at 1038.
Id. at 1040.
Id. at 58-74.
Id. at 59.
Id. at 62.
Id. at 63.
Id. at 61.
Id. at 60-61.
carry about fifteen to twenty pounds while standing.101 As a packer, she had to carry
approximately ten to twelve pounds on a regular basis, push and pull boxes, and stand
on the job.102 Plaintiff was let go from her packing job because she was “slowing down”
on the job due to her back ache and painful sciatic nerves.103
Concerning her daily activities, plaintiff testified she handles her personal
hygienic needs (though she cannot tie her shoes), can change the bedding, wash
dishes, and do food shopping.104 She can put clothes in the washer, but cannot remove
them or vacuum.105 Plaintiff related her daily routine includes sitting on the bed with
pillows tucked under her knees and back and taking occasional walks outside.106 She
reads, does crossword puzzles, and enjoys movies and television.107 She can no longer
crochet due to rheumatoid arthritis in her wrist.108
Plaintiff described how her symptoms restricted her ability to work.109 Because of
stiffness in her back, arms, and knees, she is unable to perform her previous
employment.110 The pain medication causes drowsiness and dizziness, and interferes
with work.111 She can lift and carry about four to five pounds, but is unable to lift a
gallon of milk.112 Plaintiff stated she is able to sit for about ten to fifteen minutes and
Id. at 61.
Id. at 60.
Id. at 70, 74.
Id. at 71.
Id. at 63.
Id. at 65.
Id. at 67.
stand for about twenty minutes at a time.113 She uses a cane when walking114 and can
walk less than half of a block.115 She started using a cane due to sciatica, which causes
a stabbing pain from her back, into her buttocks, feet and ankles.116 Her sciatica
occasionally causes her left leg to drag.117 Plaintiff has chronic asthma that “comes onand-off” for which she has a nebulizer.118 The asthma causes loss of breath or
choking.119 She has never been hospitalized for any acute or emotional mental health
problems, but reasoned mental health issues would affect employment120 because she
sometimes has difficulty sleeping, despite taking medication.121 On average, she sleeps
four to five hours a night, and takes hour long naps daily.122 Plaintiff also suffers from
Regarding treatment, plaintiff related she has not undergone neck or back
surgery, but has received physical therapy and cortisone injections, which have not
helped.124 Her current medications for her back and neck include oxycodone and
methadone.125 She also takes medication for her rheumatoid arthritis.126 The
Id. at 67-68.
Use of a cane is recommended, but not prescribed by a physician. Id. at 68.
Id. at 68, 73.
Id. at 65.
Id. at 66.
Plaintiff claimed she often feels like someone is following her. Id. at 67.
Id. at 72.
Id. at 74.
Id. at 63.
Id. at 64.
medications cause anxiety, hearing things, and decreased appetite.127 While her left
knee surgery occurred in May 2012, she has had no significant knee treatment since
then.128 If her knee becomes symptomatic, she has an injection approximately every six
or seven months that helps alleviate the pain.129
The Vocational Expert’s Testimony
The vocational expert, Linda Augins, testified about plaintiff’s background, skills,
and limitations, and the jobs available within her restrictions.130 Augins classified
plaintiff’s work experience as a housekeeper as unskilled with light exertion, dishwasher
and newspaper inserter as unskilled with medium exertion, and packer as unskilled with
medium exertion, but light exertion as performed.131
During the hearing, the ALJ and Jennifer Walker, plaintiff’s attorney, posed
several hypothetical situations.132 All were based on a hypothetical 55-year-old woman
with a high school education and plaintiff’s past work history.133
In the first hypothetical, the individual could perform light work, provided the work
did not require more than occasional postural activities and only simple repetitive
tasks.134 The hypothetical person would not be exposed to excessive dust, fumes,
odors, or gases.135 In response, Augins testified plaintiff’s work as an inserter and
Id. at 72.
Id. at 64.
Id. at 75-80.
Id at 75.
Id. at 76-80.
Id. at 76.
packer would conform to the hypothetical.136 In addition, she testified three unskilled
light jobs would also fit the hypothetical: cashier, dining room attendant, and garment
The second hypothetical had the same limitations as the first, but with the
additional restriction that the individual would be absent from work about two or three
times per month.138 Augins testified such a restriction would preclude employment.139
The third hypothetical posed by Walker limited the hypothetical individual to lifting
only up to ten pounds occasionally and standing or walking up to one hour in an eight
hour work day.140 Augins testified such a restriction and limited standing would result in
In the fourth hypothetical, Walker limited standing and walking up to one hour in
an eight hour work day and sitting to six to seven hours in an eight hour work day in
addition to the restriction of lifting up to ten pounds occasionally.142 Augins testified
such limitations and restriction would result in less than sedentary exertion.143
In the final hypothetical, Walker posed the hypothetical individual needed to
stand and move every ten to fifteen minutes for ten minutes.144 Augins concluded such
limitation would preclude employment.145
Id. at 77.
Id. at 78.
Id. at 79.
Id. at 79-80.
Id. at 80.
The ALJ’s Findings
Based on the medical evidence and testimony, the ALJ determined plaintiff was
not disabled and, therefore, ineligible for Social Secuirty Disability Insurance and
Supplemental Security Income.146 The ALJ’s findings are summarized as follows:
The claimant has not engaged in substantial gainful
activity since May 20, 2011, the alleged onset date
(20 CFR 404.1571 et seq., and 416.971 et seq.).
The claimant has the following severe impairments:
back disorder, neck disorder, left knee disorder
(status post surgery), asthma, fibromylagia,
polyarthritis, and mood disorder (20 CFR 404.1520(c)
The claimant does not have any impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments in
20 CFR Part 202, Subpart P, Appendix 1 (20 FCFR
404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b), except she can
perform no more than occasional postural activities,
with no climbing. She cannot be exposed to
excessive environmental conditions such as dust,
fumes, odors, and/or gases. She can perform no
more than simple, routine, repetitive tasks, due to
limitations in concentration, persistence, or pace.
The claimant meets the insured status requirements
of the Social Security Act through December 31,
The claimant is capable of performing past relevant
work as a newspaper inserter and packer. This work
Id. at 46-47.
does not require the performance of work-related
activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565 and 416.965).
The claimant has not been under a disability, as
defined in the Social Security Act, from May 20,2011,
through the date of this decision (20 CFR 404.1520(f)
STANDARD OF REVIEW
Motion for Summary Judgment
Both parties move for summary judgment. In determining the appropriateness of
summary judgment, the court must “review the record as a whole, ‘draw[ing] all
reasonable inferences in favor of the non-moving party[,]’ but [refraining from] weighing
the evidence or making credibility determinations.”148 If “there is no genuine issue as to
any material fact” and the movant is entitled to judgment as a matter of law, summary
judgment is appropriate.149
This standard does not change merely because there are cross-motions for
summary judgment.150 Cross-motions for summary judgment:
are no more than a claim by each side that it alone is entitled to summary
judgment, and the making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist.151
“The filing of cross-motions for summary judgment does not require the court to grant
Id. at 38-46.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)
See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R.
CIV. P. 56(c)).
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
summary judgment for either party.”152
B. Review of the ALJ’s Findings
Section 405(g) sets forth the standard of review of an ALJ’s decision. The court
may reverse the Commissioner’s final determination only if the ALJ did not apply the
proper legal standards, or the record did not contain substantial evidence to support the
decision. Factual findings are upheld if supported by substantial evidence.153
Substantial evidence means less than a preponderance, but more than a mere scintilla
of evidence.154 As the United States Supreme Court has found, 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."155
In determining whether substantial evidence supports the Commissioner’s
findings, the court may not undertake a de novo review of the decision nor re-weigh the
evidence of record.156 The court’s review is limited to the evidence that was actually
presented to the ALJ.157 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, particularly certain types of evidence (e.g., evidence
offered by treating physicians) or if it really constitutes not evidence but
Krupa v. New Castle Cnty., 732 F. Supp. 497, 505 (D. Del. 1990).
See 42 U.S.C. §§405(g); see also Monsour Med. Ctr. v. Heckle, 806 F.2d
1185, 1190 (3d Cir. 1986).
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
Monsour, 806 F.2d at 1190.
Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001).
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.159 Even if the court
would have decided the case differently, it must defer to and affirm the ALJ so long as
the decision is supported by substantial evidence.160
Where “review of an administrative determination is sought, the agency's
decision cannot be affirmed on a ground other than that actually relied upon by the
agency in making its decision.”161 In SEC v. Chenery Corp., the Court found that a
“reviewing court, in dealing with a determination or judgment which an administrative
agency alone is authorized to make, must judge the propriety of such action solely by
the grounds invoked by the agency.”162 “If those grounds are inadequate or improper,
the court is powerless to affirm the administrative action by substituting what it
considers to be a more adequate or proper basis.”163 The Third Circuit has recognized
the applicability of this finding in the Social Security disability context.164 This court's
review is limited to the four corners of the ALJ's decision.165 In Social Security cases,
the substantial evidence standard applies to motions for summary judgment brought
pursuant to FED. R. CIV. P. 56.166
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
Monsour, 806 F.2d at 1190-91.
Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.D. Pa. 2011).
332 U.S. 194, 196 (1947).
Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001).
Cefalu v. Barnhart, 387 F. Supp. 2d 486, 491 (W.D. Pa. 2005).
See Woody v. Sec’y of the Dep’t of Health & Human Servs., 859 F.2d 1156,
1159 (3d Cir. 1988).
In her appeal, plaintiff contends the ALJ improperly afforded great weight to the
non-examining physicians’ opinions, while affording little weight to the opinions of her
treating physicians (Drs. Cemerlic, Walsh, and Sacre).167 Plaintiff further argues the
ALJ failed to properly evaluate her credibility.168 Finally, she maintains the ALJ relied on
flawed vocational expert testimony due to deficient hypothetical questioning.169
The Commissioner counters: the ALJ afforded proper weight to the medical
evidence of record, and substantial evidence supports both the ALJ’s credibility analysis
and the ALJ’s Residual Functional Capacity (RFC) assessment.170
Title II of the Act, 42 U.S.C. § 423(a)(I)(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.”171 To qualify for DIB, a claimant must establish disability
prior to the date she was last insured.172 A “disability” is defined as the inability to do
any substantial gainful activity because of any medically determinable physical or
mental impairment, which either could result in death or has lasted or can be expected
to last for a continuous period of at least 12 months.173 To be disabled, the severity of
D.I. 12 at 1.
D.I. 14 at 1.
Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
See 20 C.F.R. § 404.131.
42 U.S.C. §§ 423(d)(I)(A), 1382(c)(a)(3).
the impairment must prevent return to previous work, and based on age, education, and
work experience, restrict “any other kind of substantial gainful work which exists in the
In determining whether a person is disabled, the Commissioner is required to
perform a five-step sequential analysis.175 If a finding of disability or non-disability can
be made at any point in the sequential process, the review ends.176 At the first step, the
Commissioner must determine whether the claimant is engaged in any substantial
gainful activity, and if so, a finding of non-disabled is required.177 If the claimant is not
so engaged, step two requires the Commissioner to determine whether the claimant is
suffering from an impairment or a combination of impairments that is severe. If no
severe impairment or a combination thereof exists, a finding of non-disabled is
If the claimant’s impairments are severe, the Commissioner, at step three,
compares them to a list of impairments (“the listings”) that are presumed severe enough
to preclude any gainful work.179 When a claimant’s impairment or its equivalent
matches an impairment in the listing, the claimant is presumed disabled.180 If a
claimant’s impairment, either singularly or in combination, fails to meet or medically
42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
20 C.F.R § 404.1520; see also Plummer v. Apfel, 186 F.3d 422, 427-28 (3d
20 C.F.R. § 404.1520(a)(4).
20 C.F.R. § 404.1520(a)(4)(I).
20 C.F.R. § 404.1520(a)(4)(ii).
20 C.F.R. § 404.1520(a)(4)(iii); Plummer, 186 F. 3d at 428.
20 C.F.R. § 404.1520(a)(4)(iii).
equal any listing, the analysis continues to steps four and five.181 At step four, the
Commissioner determines whether the claimant retains the RFC to perform her past
relevant work.182 A claimant’s RFC is “that which an individual is still able to do despite
limitations caused by [her] impairment(s).”183 “The claimant bears the burden of
demonstrating an inability to return to [her] past relevant work.”184
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 adjusting to
any other available work.185 At this final step, the burden is on the Commissioner to
show the claimant is capable of performing other available work existing in significant
national numbers and consistent with the claimant’s medical impairments, age,
education, past work experience, and RFC before denying disability benefits.186 In
making this determination, the ALJ must analyze the cumulative effect of all the
claimant’s impairments and often seeks the assistance of a vocational expert.187
Weight Accorded to Opinion Evidence
Plaintiff asserts the ALJ erred by affording “little weight” to the opinions of Drs.
Cemerlic, Walsh, and Sacre, while giving substantial weight to the opinions of nonexamining medical consultants.188 A cardinal principle guiding disability eligibility
determinations is that the ALJ accord treating physicians’ reports great weight,
20 C.F.R. § 404.1520(e).
20 C.F.R. § 404.1520(a)(4)(iv); Plummer, 186 F.3d at 428.
Fargnoli, 247 F.3d at 40.
Plummer, 186 F.3d at 428.
20 C.F.R. § 404.1520(g); Plummer, 186 F.3d at 427-28.
Plummer, 186 F.3d at 427-28.
D.I. 12 at 16.
especially “when the opinions reflect expert judgment based on a continuing observation
of the patient’s condition over a prolonged period of time.”189 Such reports will be
afforded controlling weight where a treating source’s opinion on the nature and severity
of a claimant’s impairment is well supported by medically acceptable clinical and
laboratory diagnostic techniques, and is not inconsistent with the other substantial
evidence on record.190
The ALJ must consider medical findings supporting the treating physician’s
opinion that the claimant is disabled.191 It is error, however, to apply controlling weight
to an opinion merely because it comes from a treating source if it is not well-supported
by the medical evidence, or inconsistent with other substantial evidence, medical or lay,
in the record.192 If the ALJ rejects the treating physician’s assessment, he may not
make “speculative inferences from medical reports,” and may reject “a treating
physician’s opinion outright only on the basis of contradictory medical evidence.”193
Further, medical testimony from a doctor who has never examined the claimant should
not be given credit if it contradicts the testimony of the claimant’s treating physician.194
If the ALJ does not give a physician’s report controlling weight, he must examine
multiple factors.195 These factors include the “[e]xamining relationship,” the “[t]reatment
relationship” which considers the “[l]ength of the treatment relationship and the
Morales v. Apfel, 225 F. 3d 310, 317 (3d Cir. 2000).
Fargnoli, 247 F.3d at 43.
Morales, 225 F.3d at 317 (citing Plummer, 186 F.3d at 429).
SSR 96-2p, 1996 WL 374188 at *2.
Plummer, 186 F.3d at 429.
Dorf v. Bowen, 794 F.2d 896, 901 (3d Cir. 1986).
20 C.F.R. §404.1527(c).
frequency of examination,” the “[n]ature and extent of the treatment relationship,” the
degree and extent the relevant evidence supports a treating physician’s opinion, the
consistency of the opinion with the record as a whole, and the specialization of the
treating physician in relation to the medical issues involved.196 An ALJ must weigh all
the evidence in the record.197 Failure of an ALJ to examine and elaborate on these
factors is grounds for remand.198
Weight Accorded to Dr. Cemerlic
The ALJ assigned “little weight” to Dr. Cemerlic’s opinion due to its inconsistency
with mixed objective evidence, plaintiff’s activities of daily living, and her conservative
treatment history.199 Dr. Cemerlic’s opinion is based on clinical exams and MRI
findings.200 The ALJ points to mixed, sometimes benign objective evidence in the
record, including: “normal ambulation, normal extremity range of motion, normal
cervical range of motion, good grip strength, no motor of sensory deficit, normal
reflexes, and negative straight leg raising.”201 Plaintiff received conservative treatment
for her neck and back pain through steroidal injections and pain medications.202
Further, while the ALJ’s observation of the claimant alone cannot serve as the sole
determining factor of the claimant’s impairment, her activities of daily living contradict
Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000).
Solomon v. Colvin, C.A. No. 12-1406-RGA-MPT, 2013 WL 5720302, at *12
(D.Del. Oct. 22, 2013).
D.I. 7 at 44.
Id. at 439, 971-972.
Compare Id. at 42-43, with Id. at 971-978.
Id. at 628, 1009-1028.
Dr. Cemerlic’s description of her physical impairments.203 Based on this medical
evidence and plaintiff’s activities of daily living, the ALJ reasonably concluded that Dr.
Cemerlic’s opinion should be given little weight.
Weight Accorded to Dr. Walsh
The ALJ properly weighed the medical findings of Dr. Walsh. The ALJ assigned
“little weight” to Dr. Walsh because his characterization of plaintiff’s asthma was
inconsistent with the medical records.204 The ALJ appropriately examined the holistic
record and elaborated upon the elements of 20 C.F.R. § 404.1527(c).
Dr. Walsh treated plaintiff approximately every three months since April 2012.205
His opinions were based on his exams, pulmonary function testing, clinical evidence of
her symptoms, and her frequent visits to the emergency room.206 The ALJ found
plaintiff’s recent pulmonary function test showed “only mild restrictive ventilatory defect,
and significant improvement with bronchodilator therapy.”207 Further, the ALJ noted
though her emergency room visits were frequent, plaintiff never had related inpatient
hospitalizations.208 Plaintiff asserts hospitalization is not a prerequisite to consider a
condition severe.209 However, Dr. Walsh’s characterization of plaintiff’s condition210
does not comport with the medical records that suggest a less severe case of asthma:
Compare Id. at 68-71, with Id. at 971-978. See Frankenfield v. Bowens, 861
F.2d 405 (3d Cir. 1998).
Id. at 44.
Id. at 889.
Id. at 889-891.
Id. at 44.
D.I. 12 at 17-18.
D.I. 7 at 889-895.
one with symptoms that were never so severe that they warranted her admittance to the
hospital for treatment. The ALJ’s reasoning for assigning Dr. Walsh’s opinion little
weight is therefore supported by substantial evidence.
Weight Accorded to Dr. Sacre
Here, the ALJ properly weighed the opinion of Dr. Sacre. The ALJ afforded “little
weight” to Dr. Sacre’s opinion because it was largely inconsistent with the other mental
status evidence on the record, which showed plaintiff’s behavior and cognition to be
normal.211 The ALJ also noted Dr. Sacre’s opinion was inconsistent with plaintiff’s
conservative mental health treatment and the extent of her activities of daily living.212
The other evidence on the record comes primarily from Dr. Cleary, whose assessments
differed greatly both before and after Dr. Sacre’s psychological impairment
questionnaire.213 While plaintiff had been treated by Dr. Sacre since September 2012,
Dr. Cleary was her mental healthcare doctor for a comparable period of time. Though
some of the symptoms he noted are consistent with other medical records, Dr. Sacre’s
analysis of plaintiff’s GAF score wildly differed from both GAF scores on record before
and after his assessment.
Plaintiff argues the ALJ erred in evaluating the credibility of her subjective
complaints.214 The ALJ must follow a two-step process for evaluating symptoms.215
Compare Id. at 45, with Id. at 900-907.
Id. at 45, 702, 933, 950.
D.I. 12 at 25.
SSR 96-7p (S.S.A.), 1996 WL 374186, at *2.
First, the ALJ “must consider whether there is an underlying medically determinable
physical or mental impairment . . . that could reasonably be expected to produce the
individual’s pain or other symptoms.”216 Second, the ALJ must “evaluate the intensity,
persistence, and limiting effects of the individual’s symptoms to determine the extent to
which the symptoms limit the individual’s ability to do basic work activities.”217 Under
this evaluation, a variety of factors are considered, such as: (1) “objective medical
evidence,” (2) “daily activities,” (3) “location, duration, frequency, and intensity,” (4)
“type, dosage, effectiveness, and side effects of any medication,” (5) treatment (other
than medication), (6) and “other factors” concerning plaintiff’s limitations.218
In general, the extent to which an individual’s statements about symptoms can be
relied upon as probative evidence depends on his/her credibility.219 When evaluating a
claimant’s credibility, the ALJ must consider the entire case record and give specific
reasons for the weight given to the individual’s statements.220 A strong indication of
credibility is consistency, including the consistency of an individual’s own statements,
and with other information in the record.221 Additionally, an individual’s statements may
be less credible if the record shows the individual did not follow the treatment as
prescribed.222 In making a finding about the credibility of a claimant’s statements, the
adjudicator need not totally accept or reject them, and may find some statements to be
20 C.F.R. § 404.1529(c).
SSR 96-7p, at *4.
Id. at *5.
Id. at *7.
Here, the ALJ found plaintiff’s credibility diminished due to normal objective
findings mixed with abnormal signs on multiple occasions, conservative treatment, her
daily activities, incarceration for a drug offense, and observed lack of reliance on her
cane.224 The ALJ noted plaintiff exhibited both abnormal signs and normal findings
during physical and mental examinations.225 For example, based on physical
examinations, she exhibited tenderness and swelling in her left knee, but had full range
of motion and no instability.226 With regards to her asthma, the record shows abnormal
findings such as wheezing, labored respiration, and diminished air entry, while also
indicating normal respiration on several occasions and significant improvement with
bronchodilator therapy.227 Further, the record shows mood and affect abnormalities, but
most frequently, her examinations revealed normalcy in a host of categories, including
thought content, speech, attention, and concentration.228
Plaintiff is independent in the majority of daily living activities, and the ALJ noted
these activities are not as limited to the extent expected, given her complaints.229 She
participates in activities requiring concentration: reading, crossword puzzles, and
watching movies and television.230 The ALJ also noted plaintiff was seen walking into
Id. at *4.
D.I. 7 at 43-44.
Id. at 42.
Id. at 43.
Id. at 44.
Id. at 44, 71.
the hearing with a cane, but she was “observed to not be relying on it for ambulation.”231
Furthermore, her mental impairments have not warranted hospitalization since the
disability onset and both physical and mental impairments have been treated
conservatively.232 The ALJ’s decision to view plaintiff’s testimony with diminished
credibility should be upheld because it is supported by sufficient evidence.
Vocational Expert Testimony
Finally, plaintiff argues the ALJ relied on flawed vocational expert testimony due
to the construction of the hypothetical questioning.233
“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.”234 “‘[G]reat specificity’ is required when an
ALJ incorporates a claimant’s mental or physical limitations into a hypothetical.”235
“Where there exists in the record medically undisputed evidence of specific impairments
not included in a hypothetical question to a vocational expert, the expert’s response is
not considered substantial evidence.”236
Plaintiff relies on Ramirez v. Barnhart to argue when a hypothetical question
does not accurately describe all of her mental and physical limitations, the opinion of the
vocational expert is not supported by substantial evidence.237 In Ramirez, the Third
Id. at 43-44.
D.I. 12 at 27.
Crupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987).
Ramirez v. Barnhart, 372 F.3d 546, 554-555 (3d Cir. 2004) (quoting Burns v.
Barnhart, 312 F.3d 113, 122 (3d Cir. 2002)).
Burns, 312 F.3d at 123.
D.I. 12 at 27.
Circuit found error when an ALJ relied on hypothetical questioning which was
inconsistent with the ALJ’s own finding that the claimant often suffered from deficiencies
in concentration, persistence, or pace.238 However, Ramirez also acknowledged the
omission from a hypothetical could be reasonable and valid if “the deficiency in pace
was so minimal or negligible that . . . it would not limit her ability to perform simple tasks
under a production quota.”239 In line with this finding, the ALJ accepted the vocational
expert’s opinion that the claimant could perform work that would have daily production
quotas - provided it was limited to simple tasks.240 The omission of claimant’s mental
limitations in the ALJ’s hypothetical questioning regarding how a claimant that often
suffers from pace deficiencies could perform work with daily production quotas was
appropriate, and not fatal to the ALJ’s analysis and conclusion.
Here, the ALJ’s hypothetical questioning of the vocational expert included
plaintiff’s physical limitations, and omitted her mental limitations.241 The ALJ described
her mental limitations as having moderate difficulties with regards to concentration,
persistence, or pace.242 Furthermore, the ALJ cited mental status examinations
showing benign findings for concentration, persistence, and pace.243 Any purported
mental limitations are well-documented in the record and suggest these limitations are
minimal or negligible, such that it would not inhibit her ability to perform simple tasks.244
Ramirez, 372 F.3d at 554.
Id. at 555.
D.I. 7 at 40.
Id. at 76.
Id. at 40.
Id. at 40, 45.
The ALJ’s determination that plaintiff has the RFC to perform “simple, routine, repetitive
tasks” is supported by substantial evidence.245 Therefore, the ALJ’s omission of
plaintiff’s mental limitations in his hypothetical questioning was appropriate and does not
render the vocational expert’s testimony deficient.
For the foregoing reasons, I recommend that:
(1) Plaintiff’s motion for summary judgment (DI 11) be denied; and
(2) Defendant’s motion for summary judgment (DI 13) be granted.
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 ten (10) days after being served with a copy of this Report and
The parties are directed to the Court’s Standing Order in Non-Pro Se matters for
Objections Filed under FED. R. CIV. P. 72, dated October 9, 2013, a copy of which is
available on the Court’s website, www.ded.uscourts.gov.
Date: June 2, 2016
/s/ Mary Pat Thynge
United States Magistrate Judge
Id. at 46.
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