Francis v. Colvin

Filing 15

REPORT AND RECOMMENDATIONS re 10 MOTION for Summary Judgment with Proposed Order filed by Christopher A. Francis, 12 Cross MOTION for Summary Judgment filed by Carolyn W. Colvin. Please note that when filing Objections pursuant to Fede ral 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 4/16/2019. Signed by Judge Mary Pat Thynge on 4/2/19. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

CHRISTOPHER A. FRANCIS,
Plaintiff,
v.
CAROLYN W. COLVIN
Acting Commissioner of
Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

C. A. No. 15-936-CFC/MPT

REPORT AND RECOMMENDATION
I.

INTRODUCTION
This action arises from the denial of plaintiff’s claim for Social Security benefits.

On December 28, 2011, plaintiff filed an application for Social Security Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”).1 Plaintiff
alleged disability as of June 30, 2009, the last date of his employment with the New
York Police Department (“NYPD”).2 In his application and disability report, plaintiff listed
several medical conditions affecting his ability to work, among them hypertension,
diabetes mellitus, back pain and related impairments of the spine, cardiovascular
disease, acid reflux, and high cholesterol.3
Plaintiff’s Title II application was initially denied on March 15, 2012, and denied
again upon reconsideration on October 5, 2012. On October 18, 2012, Plaintif f
1

D.I. 7-2 at 52.
Id. at 54-55.
3
D.I. 7-6 at 154.
2

requested a review of his application before an Administrative Law Judge (“ALJ”) and
on April 17, 2014, a hearing occurred before ALJ Irving A. Pianin.4 At the hearing,
testimony was given by plaintiff and an impartial vocational expert, Samuel Edelmann
(hereafter referred to as “Edelmann”).5 On May 14, 2014, the ALJ issued a written
decision denying plaintiff’s claims for a third time.6 Plaintiff sought review of the ALJ’s
decision by the Social Security Appeals Council, but his request was denied on August
24, 2015. 7 Plaintiff then filed a timely appeal with this court on October 15, 2015. 8
Presently before the court are the parties’ cross-motions for summary judgment. For
the reasons that follow, it is recommended that defendant’s motion be granted.
II.

BACKGROUND
Plaintiff was born May 20, 1964. 9 He has a high school education and two years

of college.10 He was employed for almost twenty years as a police officer with the
NYPD before retiring in June 2009 due to a disqualifying heart condition. 11 At the time
of his retirement, plaintiff was forty-five years old. Plaintiff is now fifty-five years old and
has not been employed in any capacity since June 30, 2009. 12
Plaintiff presently lives in Bear, Delaware with his girlfriend.13 As a retiree, he
receives a pension from the city of New York in a monthly amount in excess of
4

D.I. 7-2 at 50.
Id. at 53, 70.
6
Id. at 23-34.
7
D.I. 7-6 at 224; D.I. 11 at 1.
8
D.I. 1.
9
D.I. 7-2 at 32.
10
Id. at 53.
11
Id. at 55, 72.
12
Id. at 54.
13
D.I. 7-2 at 53.
5

2

$5,700.14
A.

Evidence Presented

While plaintiff cited a number of medical conditions as reason for his alleged
disability, he focuses his appeal on his back pain and spine impairments. He contends
that the ALJ’s evaluation of these impairments in the overall disability analysis was
flawed. Plaintiff specifically objects to the evidentiary weight afforded to non-treating
physicians’ medical opinions and the ALJ’s assessment of plaintiff’s credibility regarding
how these impairments affect his activities of daily living (“ADL”). Therefore, the court
will address only the record evidence relevant to plaintiff’s musculoskeletal
impairments.
1.

Medical Record Evidence

On July 14, 2009, plaintiff sought treatment for his left shoulder at Westmed
Medical Group Physical Medicine and Rehabilitation Clinic (“Westmed”) in Yonkers,
NY.15 There, he was seen by Sherri Kunjbehari, P.A. and prescribed oxycodone for
pain related to a tendon tear in his left shoulder (for which he had previously undergone
surgery) and severe thoracic kyphosis, as noted in the physical assessment.16 Plaintiff
rated his pain a 6.5 out of 10 without medication and reported pain radiated into his
right leg.17 Subsequent visits through May 2010 reflected no change in his condition;
plaintiff was continued on his regimen of pain medication.18

14

Id. at 54; Plaintiff identified it as an “Article 2 . . . Heart Bill” pension.
D.I. 7-10 at 650.
16
Id. at 650-51.
17
Id.
18
Id. at 623-49.
15

3

On June 3, 2010, plaintiff was seen by Dr. Yuting Xiong, an orthopedist at
Westmed.19 Plaintiff then rated his pain a 10 out of 10.20 He related he had intermittent
numbness in his thighs, but denied any radiating pain or weakness in either limb.21 He
described the pain as “aching and throbbing”, which was only somewhat relieved by his
previously-prescribed pain medication.22 He tried heat application, trigger point
injections, and physical therapy to no avail in the past.23 Plaintiff further stated that the
pain interfered with sleep.24
On examination, Dr. Xiong observed limitations in plaintiff’s lumbar spine flexion
with lateral bending and extension of 30% and 50% respectively.25 He noted that
plaintiff’s left SLR and left FABER test aggravated his lower back pain and that plaintiff
experienced tenderness over his left buttock upon palpation. 26
However, the examination also revealed normal tendon reflexes, normal motor
strength, normal sensation in both upper and lower limbs, normal lumbar spine rotation,
no muscle atrophy or loss of tone, no evidence of joint instability or laxity, and no

19

D.I. 7-10 at 619.
Id.
21
Id.
22
Id.
23
D.I. 7-10 at 619.
24
Id.
25
The court notes some discrepancy in Dr. Xiong’s reports as to these figures. A
portion of the “Focused Lumbar” section of the report is duplicated – the
added paragraph contains slightly different figures than those in the
paragraphs above it. However, the numbers applied herein are consistent with
Dr. Blanco’s subsequent lumbar assessments over the course of three years.
Plaintiff would otherwise have the court rely on Dr. Blanco’s medical
assessment, so it will.
26
D.I. 7-10 at 621.
20

4

aggravating lower back pain during lumbar range of motion.27 Furthermore, plaintiff
exhibited no pain behaviors, a nonantalgic gait, and normal respiratory effort.28 He was
pleasant, cooperative, alert and oriented, and could walk on his heels and toes without
difficulty or aggravating lower back pain.29
Dr. Xiong diagnosed thoracic spondylosis, low back pain syndrome, and thoracic
spine pain.30 Joint injections were discussed, but plaintiff desired to continue with pain
medication instead. 31 A follow-up appointment on July 29, 2010 offered no new
findings, despite plaintiff reporting new pain in his hands and fingers.32
On August 31, 2010, plaintiff was referred to Dr. Cy Blanco, a pain management
specialist at Westmed, for further assistance with his back pain. 33 Plaintiff’s condition
remained unchanged; he described feeling generally “uncomfortable” from the cervical
area of his spine to the lumbar region.34 Although “multiple injections” in the past had
afforded only limited relief, plaintiff represented that his current medical treatment
“improved his quality of life.”35 He further stated that he was exercising to the best of
his ability, despite muscular aches when he stood. 36
The physical examination yielded the same results as the prior month’s visit with
Dr. Xiong – Dr. Blanco noted the same limitations of the spine in flexion, bending, and
27

Id.
Id.
29
Id.
30
D.I. 7-10. at 622.
31
Id.
32
Id. at 615-18.
33
Id. at 611.
34
D.I. 7-10 at 611.
35
Id.
36
Id.
28

5

extension, the same SLR and FABER test results, and the same tenderness upon
palpitation.37 Moreover, Dr. Blanco also made the same normal findings as to plaintiff’s
range of motion, tendon reflexes, muscle tone, joint stability, motor strength, sensation,
lack of pain behavior, mood/affect, and ambulation.38 He assessed total spinal pain
secondary to kyphoscoliosis and, noting that plaintiff was “medically managed,”
continued his current medication regimen.39
Dr. Blanco’s findings remained unchanged in subsequent monthly visits from
September 2010 to November 2013. In October 2010, Dr. Blanco added long-acting
Oxycontin to plaintiff’s medications after he indicated experiencing increased pain. 40
However, plaintiff found the initial dosage “too strong” and reduced it from twice daily to
once at bedtime, which allowed him to sleep without pain.41 Like his colleague before
him, Dr. Blanco discussed the possibility of joint injections, but plaintiff opted again to
continue with pain medication.42
While on pain medication, plaintiff was active with his “home PT and his ADLs,”
which Dr. Blanco noted in a September 2011 visit.43 With increased activity came
reports of increased pain. 44 In April 2011, plaintiff reported non-radiating coccygeal
pain caused by a stationary bike.45 Dr. Blanco did not note any pain behavior or

37

Id. at 613.
D.I. 7-10 at 613.
39
Id.
40
Id. at 603, 606.
41
Id. at 599.
42
D.I. 7-10 at 609.
43
Id. at 568.
44
Id. at 587.
45
Id. at 583.
38

6

antalgia, and plaintiff could walk on his heels and toes without pain.46 Plaintiff was
advised to use a sacral donut and to continue his m edication, on which he reported
doing well.47 In June 2011, plaintiff described feeling sore after exercising, but was
otherwise “stable on current meds” and had no new complaints.48 In a December 2011
visit to a different Westmed provider for increased back pain, plaintiff described getting
“a cardio workout” washing his car and walking two miles before exacerbating pain in
his buttocks and legs.49 In January 2012, plaintiff stated his current regimen provided
“adequate pain relief” and that he would continue exercising within his limits.50
At several points throughout his treatment with Dr. Blanco, plaintiff decreased or
even ceased regular usage of his pain medication. In the same January 2012 visit,
plaintiff agreed he would be “cutting back on oxycontin as tolerated.” 51 In May and
August 2012, plaintiff reported not taking his Oxycontin regularly.52 At both visits, Dr.
Blanco determined that plaintiff’s “low back pain [was] stable on current medication
regimen.”53 In March 2013, Dr. Blanco added a pain patch to plaintif f’s medications;
plaintiff described that it was “better than Oxycontin.”54 In May 2013, plaintiff reported
using less of his oxycodone as a result of the patch.55 The comment in Dr. Blanco’s

46

D.I. 7-10 at 584.
Id. at 585.
48
Id. at 576.
49
Id. at 556.
50
D.I. 7-10 at 552.
51
Id. at 554.
52
Id. at 536, 548.
53
Id. at 538, 550.
54
D.I. 7-11 at 706.
55
Id. at 702.
47

7

office notes of “[d]oing better with Patch” continued in subsequent visits.56
Plaintiff routinely denied experiencing any side effects, weakness or incontinence
during his treatment with Dr. Blanco.57 Dr. Blanco’s findings as to plaintiff’s physical
impairments, pain behavior, mood/affect, and ambulation never changed.58 Plaintiff
remained stable on medications through November 2013, his last visit to Dr. Blanco in
the record.59
On December 7, 2012, Dr. Blanco completed a “Spinal Impairment
Questionnaire” provided to him by plaintiff’s counsel.60 In it, he noted plaintiff suffered
from “low back pain syndrome,” “thoracic spondylosis,” and “coccygeal pain.”61 He cited
a number of positive clinical findings in support, including those already in the record
(i.e. limitations on lumbar extension and lateral bending/flexion, positive SLR test,
tenderness) and others not recorded in his appointm ent notes, such as lumbar
paraspinal muscle spasms, bilateral lower extremity muscle weakness, and trigger
points at the lumbar paraspinal muscles.62 Plaintiff’s primary symptoms, according to
the questionnaire, were “weakness in lower extremities” and “back pain with limited
range of motion.”63 Dr. Blanco described plaintiff’s pain as constant, frequently severe
enough to interfere with attention and concentration, and brought on by “walking,

56

Id. at 682, 706, 702.
D.I. 7-10 at ; D.I. 7-11 at .
58
D.I. 7-10 at ; D.I. 7-11 at
59
D.I. 7-11. at 679.
60
D.I. 7-10 at 529-35.
61
Id. at 529.
62
Id. at 529-30.
63
Id. at 531.
57

8

prolonged standing/sitting.”64 He noted, however, that he had been able to “completely
relieve [plaintiff’s] pain with medication without unacceptable side effects.”65 Despite
this, he represented that plaintiff could only perform less than sedentary work due to the
impairments listed.66
On April 3, 2014, Dr. Blanco completed a second “Spinal Impairment
Questionnaire” with updated responses. 67 He diagnosed plaintiff with “thoracic
spondylosis” and “low back pain,” and supplemented his previous findings of
tenderness and muscle spasms with new findings of bilateral reflex changes in the
knees.68 While he no longer noted any trigger points or muscle weakness, Dr. Blanco
included left shoulder pain in his diagnosis, citing an MRI from 2008 showing a “partial
rotator cuff tear.”69 Plaintiff’s primary symptoms were changed to reflect “mid & low
back pain with radiation to his bilateral legs” and “subjective weakness.”70 Dr. Blanco
again described plaintiff’s pain as constant and brought on by activity and prolonged
sitting/standing, but now “constantly” interfered with plaintiff’s attention and
concentration.71 Furthermore, Dr. Blanco denied being able to completely relieve
plaintiff’s pain through medication without unacceptable side effects.72 Rather, Dr.
Blanco opined plaintiff could not work because he “would need to be taken off all

64

D.I. 7-10 at 531-33.
Id. at 532.
66
Id. 532-24.
67
D.I. 7-11 at 663-69.
68
Id. at 663-64.
69
Id. at 664.
70
Id. at 665.
71
D.I. 7-11 at 665-67.
72
Id. at 666.
65

9

medications . . . to perform an occupation,” which plaintiff could not tolerate. 73
In both questionnaires, Dr. Blanco cites August 31, 2010 as the “earliest date
that the description of symptoms and limitations applies,” a date identified as plaintiff’s
first visit to his office.74
2.

State Agency RFC Assessment

Non-treating medical experts for the Agency reviewed plaintiff’s medical record
on two separate occasions – initially on the filing of plaintiff’s Title II application and
again upon reconsideration of the Agency’s denial of benefits.
Dr. Vinod K. Kataria completed the first residual functional capacity (“RFC”)
assessment on March 15, 2012. 75 After reviewing all the medical evidence in the record
at that time, Dr. Kataria determined plaintiff’s alleged functional limitations were not
supported by physical exam findings.76 While Dr. Kataria found some postural and
environmental limitations, he concluded that plaintiff had the RFC to perform “light
work.”77
Plaintiff’s file was reviewed again on October 3, 2012 by Dr. Jose Acuna.78
Plaintiff alleged his conditions worsened since his last disability report and he
experienced difficulty walking, standing, and breathing.79 Dr. Acuna determined,
however, that a significant worsening of plaintiff’s underlying condition was

73

Id. at 669.
D.I. 7-10 at 535; D.I. 7-11 at 669.
75
D.I. 7-7 at 376.
76
Id. at 378.
77
Id. 378-80.
78
D.I. 7-8. at 393.
79
Id.
74

10

uncorroborated by the total medical evidence, including additional records provided by
plaintiff since Dr. Kataria’s initial assessment.80 Dr. Acuna specifically referenced Dr.
Blanco’s findings regarding plaintiff’s motor strength, range of motion, muscle tone, and
stability on medication as noted in an office visit as recently as August 2012.81 He
concurred with Dr. Kataria’s RFC of “light work.”82
B.

Hearing Testimony
1.

Plaintiff’s Testimony

At the hearing on April 17, 2014, plaintiff testified to his background, education,
work history, and his alleged disability.83 He completed high school and two years of
college.84 He lives in Bear, Delaware with his girlfriend.85 His girlfriend does not work
and is not disabled. 86
Plaintiff was last employed in June 2009 as a police officer with the NYPD.87 He
retired from the force after a “clogged artery” in his heart required placement of a stent
in December 2009.88 Plaintiff testified that this heart condition “automatically
disqualified” him from working as an officer.89 He receives a monthly pension from New
York in the amount of “$5,700 and change” as part of his Article 2 Heart Bill.90 He

80

Id.
Id.
82
D.I. 7-8 at 393.
83
See generally D.I. 7-2 at 50-76.
84
D.I. 7-2 at 53.
85
Id.
86
Id.
87
Id. at 54-55.
88
D.I. 7-2 at 55.
89
Id.
90
Id. at 54.
81

11

testified he has not performed nor sought any work since June 2009. 91
The primary bases for plaintiff’s disability claim are his heart condition and his
back pain and spine impairments. At the hearing, plaintiff described his heart condition
as “pretty good thank God.” 92 He only sees his cardiologist twice a year for “basic
routine follow-ups” and generally does not experience symptoms.93 The bulk of his
testimony focused on the severity of his back pain and spine impairments.
Plaintiff testified seeing Dr. Blanco for his back pain “once a month” since 2010. 94
He uses pain medication as prescribed by Dr. Blanco, namely a Fentanyl patch and
“Oxycodone as needed.” 95 Apart from the medications, he receives no other treatment
for his back pain.96 Specifically, plaintiff denied undergoing any surgery and maintained
he last received epidural injections in “2005, 2006 maybe," while he still employed with
the NYPD.97 After further questioning on this point from the ALJ, plaintiff confirmed that
before his disqualifying heart condition in 2009, he worked despite the back pain. 98
Plaintiff claimed to suffer several significant physical limitations as a result of
back pain.99 He “used to be so strong,” but is now only able to lift and carry about 10-20
pounds total. 100 He professed profound difficulty sitting, standing, and walking.101

91

Id. at 54-55.
D.I. 7-2. at 59.
93
Id. at 56, 59.
94
Id. at 59-60.
95
Id. at 60.
96
D.I. 7-2 at 60.
97
Id. at 60-61.
98
Id. at 61.
99
Id. at 62-63.
100
D.I. 7-2 at 62, 66.
101
Id. at 62.
92

12

When pressed by the ALJ for details, plaintiff testified that he could only sit for 15-20
minutes and stand for 5-10 minutes at a time.102 As a result, he can only walk about
half a city block before requiring “a little break.”103 During his testimony, plaintiff twice
requested permission to change positions from sitting to standing.104
Despite these limitations, plaintiff testified on the advice of his doctors, he
remains as active as possible, because if he does not “use it,” he will “lose it.”105
Although he usually exercises at home, he recently joined the YMCA, where he walks
on the treadmill for 5 minutes at a time.106 He emphasized that if he “overdo[es]”
physical activity, he “will pay for it dearly that evening.”107 Apart from light anaerobic
exercise, plaintiff does a variety of household activities, such as cleaning, laundry,
some cooking, and washing dishes.108 He further testified to driving, food shopping,
and going to the movies “maybe once a week” with his girlfriend. He is able to “make it
through [the movie] okay,” despite having to move around and potentially “distract[]”
other moviegoers.109 He enjoys reading, listening to music, walking “in small doses,”
and laying tracks for his model trains.110
During subsequent questioning by his attorney, plaintiff clarified some of his
previous answers.111 He described the pain he experiences if he overdoes the treadmill

102

Id.
Id.
104
D.I. 7-2 at 62, 68
105
Id. at 63.
106
Id.
107
Id.
108
D.I. 7-2 at 65.
109
Id.
110
Id.
111
Id. at 66.
103

13

as “very uncomfortable, extremely so.”112 He stated he sometimes “feels like” his spine
is filling with fluid and becoming inflamed, a phenomenon his doctor cannot explain.113
He checks his model trains once a day, just to watch them go around the track for a few
minutes; if they require maintenance, he will “plan something and then do it another
day.”114 Plaintiff stated that he sleeps only sporadically because of pain and must lie
down during the day “for a couple of hours” if he “walk[s] a little more than five minutes
. . . at the gym.”115 Similarly, if plaintiff shops, he has to “go home and rest.”116 He has
trouble concentrating when the pain is “really getting to [him],” but his pain medication
makes it “better . . . manageable,” even when pain does not subside completely.117
Finally, plaintiff testified “other than the pain and discomfort,” there is nothing else
preventing him from working.118
2.

Vocational Expert’s Testimony

During the hearing, the vocational expert, Edelmann, was asked to consider
several hypothetical situations involving a hypothetical individual of plaintiff’s age,
education, and past work history.119 Initially, he was asked to assume that the individual
was functionally capable of light work, provided the work did not require more than
occasional postural activities, climbing, or exposure to heights or hazards.120 After

112

D.I. 7-2 at 67.
Id.
114
Id. at 68.
115
Id. at 69.
116
D.I. 7-2 at 69.
117
Id.
118
Id. at 70.
119
Id. at 72
120
D.I. 7-2 at 72.
113

14

Edelmann confirmed this profile would not support plaintiff’s former work as a New York
City police officer, the ALJ asked whether there existed any light, unskilled work in the
job market matching the individual’s capability and limitations. Edelmann testified such
jobs existed and provided examples of positions, along with the estimated numbers for
these positions available in the national economy.121 His first suggestion was an
electrical accessories assembler, with approximately 5,000 jobs available nationally.122
He then listed the positions of sales attendant and retail maker, with 100,000 and
52,000 jobs available respectively.123
Next, Edelmann was asked to consider the same individual, who also required
as many as three hours of rest most days, per plaintiff’s testimony.124 If the ALJ
credited that testimony, Edelmann testified that no full-time work at any exertional level
would be available.125 Similarly, Edelmann testified that if the ALJ accepted Dr.
Blanco’s assessment regarding plaintiff’s inability to sit, stand, or walk for a combined
period of about three hours out of an eight hour work day, no work was available.126
Plaintiff’s attorney asked whether an individual likely to be absent from work
more than three times a month (as Dr. Blanco so indicated) would be able to work.127
Edelmann testified absences of that frequency would be “unacceptable” and
accordingly, there are no jobs such an individual could perform.128

121

Id.
Id.
123
Id. at 73.
124
D.I. 7-2 at 73.
125
Id.
126
Id.
127
Id. at 74.
128
D.I. 7-2. at 74.
122

15

Plaintiff’s attorney further pressed Edelmann to clarify whether any of the light,
unskilled positions he mentioned would allow for “a sit/stand option at the person’s own
discretion.”129 Edelmann stated that two of the three jobs – retail marker and assembler
– would so allow, although at a reduction in productivity of 50% and 30% respectively.130
Plaintiff’s attorney then asked whether productivity would be reduced “too much” by an
individual needing to “move around every 30 minutes for 10 minutes,” another limitation
noted by Dr. Blanco.131 Edelmann testified generally that if for any reason the
individual’s production rate fell 15% below the rate of an average worker, he “would not
be able to maintain the job.” 132
3.

The ALJ’s Findings

Based on the record evidence and testimony presented, the ALJ determined
plaintiff was not disabled and, thus, ineligible for DIB.133 The ALJ’s findings are
summarized as follows:
1. Plaintiff meets the insured status requirements of the Social
Security Act through December 31, 2015.
2. Plaintiff has not engaged in substantial gainful activity since
June 30, 2009, the alleged onset date (20 CFR 404.1571 et seq.).
3. Plaintiff has the following severe impairments: cardiac disorder,
status post stent, back disorder, and diabetes m ellitus (20 CFR
404.1520(c)).
4. Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the

129

Id.
Id. at 74-75.
131
Id. at 75.
132
D.I. 7-2 at 75.
133
Id. at 23.
130

16

listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5. Plaintiff has the residual functional capacity to perform light work
as define in 20 CFR 404.1567(b), except he can perform no more than
occasional postural activity and no climbing or exposure to heights or
hazards.
6. Plaintiff is unable to perform any past relevant work (20 CFR
404.1565).
7. Plaintiff was born on May 20, 1964 and was 45 years old, which
is defined as a younger individual age 18-49, on the alleged disability
onset date (20 CFR 404.1563).
8. Plaintiff 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 plaintiff is “not disabled,” whether or not plaintiff
has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart
P, Appendix 2).
10. Considering plaintiff’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that plaintiff can perform (20 CFR
404.1569 and 404.1569(a)).
11. Plaintiff has not been under a disability, as defined in the
Social Security Act, from June 30, 2009, through the date of decision (20
CFR 404.1520(g)).
Conclusively, the ALJ determined “based on the application for a period of
disability and disability benefits filed on December 28, 2011, [plaintiff] is not disabled
under sections 216(i) and 223(d) of the Social Security Act.”134

134

Id. at 34.
17

III.

STANDARD OF REVIEW
A.

Motion 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 nonmoving
party[,]’ but [refraining from] weighing the evidence or making credibility
determinations.”135 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. 136
This standard does not change merely because there are cross-motions for
summary judgment.137 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.138
“The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party.”139
B.

Review of ALJ’s Findings

Section 405(g) sets forth the standard of review of the ALJ’s decision by the
district court. 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 include substantial
evidence to support the ALJ’s decision. The Commissioner’s factual decisions are

135

Reeves v. Sanderson Plumbing, Prods., Inc., 530 U.S. 133, 150 (2000).
Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R. CIV.
P. 56(c)).
137
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
138
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
139
Krupa v. New Castle County, 732 F. Supp. 497, 505 (D. Del. 1990).
136

18

upheld if supported by substantial evidence.140 Substantial evidence means less than a
preponderance of the evidence, but more than a mere scintilla of evidence.141 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." 142
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.143 The court’s review is limited to the
evidence that was actually presented to the ALJ. 144 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 mere conclusion." 145 Thus, the inquiry is not whether the court would have
made the same determination, but rather, whether the Commissioner’s conclusion was
reasonable.146 Even if the court would have decided the case differently, it must defer
to the ALJ and affirm the Commissioner’s decision so long as that decision is supported

140

42 U.S.C. §§ 405(g), 1383(c)(3); see also Monsour Medical Center v.
Hecklem, 806 F .2d 1185, 1190 (3d Cir. 1986).
141
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
142
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
143
Monsour, 806 F.2d at 1190.
144
Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001)
145
Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983) .
146
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
19

by substantial evidence.147
In an action in which 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.148 In Securities & Exchange Commission v.
Chenery Corp.,149 the Supreme 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. 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.”150 The Third Circuit has recognized the applicability of this finding in the Social
Security disability context.151 Thus, this court's review is limited to the four corners of
the ALJ's decision. 152
C.

ALJ’s Disability Determination Standard

The Supplemental Social Security Income (SSI) program was enacted in 1972 to
assist “individuals who have attained the age of 65 or are blind or disabled” by setting a
minimum income level for qualified individuals.153 In order to establish SSI eligibility, a
claimant bears the burden of proving that he is unable to “engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment

147

Monsour, 806 F .2d at 1190-91.
Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W .D. Pa. 2011).
149
Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947).
150
Id.
151
Fargnoli v. Massanari, 247 F.3d 34, 44, n.7 (3d Cir. 2001).
152
Cefalu v. Barnhart, 387 F. Supp.2d 486, 491 (W .D. Pa. 2005).
153
See Sullivan v. Zebley, 493 U.S. 521, 524 (1990) (citing 42 U.S.C. § 1381
(1982 ed.)).
148

20

which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of or not less than twelve months.”154 Moreover, “the physical or
mental impairment or impairments must be of such severity that the claimant 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
significant numbers in the national economy.”155 Furthermore, a “physical or mental
impairment” is an impairment that results from anatomical, physiological, or
psychological abnormalities which are evidenced by medically acceptable clinical and
laboratory diagnostic techniques.156
1.

Five-Step Test

The Social Security Administration uses a five-step sequential claim evaluation
process to determine whether an individual is disabled.157
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful activity. If a claimant
is found to be engaged in substantial activity, the disability claim will be
denied.
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment. If the claimant fails to
show that her impairments are ‘severe’, she is ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence of the
claimant's impairment to a list of impairments presumed severe enough to
preclude any gainful work. If a claimant does not suffer from a listed
impairment or its equivalent, the analysis proceeds to steps four and five.
Step four requires the ALJ to consider whether the claimant retains the
residual functional capacity to perform her past relevant work. The
claimant bears the burden of demonstrating an inability to return to her
154

42 U.S.C. § 423(d)(1)(A).
42 U.S.C. § 423(d)(2)(A).
156
42 U.S.C. § 423(d)(3).
157
See 20 C.F.R. §416.920(a); see also Plummer v. Apfel, 186 F.3d 422 (3d Cir.
1999).
155

21

past relevant work. If the claimant is unable to resume her former
occupation, the evaluation moves to the final step.
At this stage, the burden of production shifts to the Commissioner,
who must demonstrate the claimant is capable of performing other
available work in order to deny a claim of disability. The ALJ must show
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 residual
functional capacity. The ALJ must analyze the cumulative effect of all the
claimant's impairments in determining whether she is capable of
performing work and is not disabled. The ALJ will often seek the
assistance of a vocational expert at this fifth step.158
If the ALJ determines that a claimant is disabled at any step in the sequence, the
analysis stops.159
2.

Weight Given to Treating Physicians

“A cardinal principle guiding disability eligibility determinations is that the ALJ
accord treating physicians’ reports great weight.”160 Yet such reports are only given
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 in the
record.161 After considering all the evidence, the ALJ “may afford a treating physician’s
opinion more or less weight,” provided he “give some reason for discounting the
evidence [he] rejects.” 162

158

Plummer, 186 F.3d at 427.
See 20 C.F.R § 404.1520(a)
160
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)
161
Fargnoli, 247 F.3d at 43.
162
Plummer, 186 F.3d 422 at 429; see also Burnett v. Comm’r of Soc. Sec.
Admin, 220 F.3d 112 (3d Cir. 2000).
159

22

However, a statement by a treating source that a claimant is “disabled” is not a
medical opinion; rather, it is an opinion on an issue reserved to the ALJ because it is a
finding that is dispositive of the case.163 Therefore, only the ALJ can make a disability
determination.
3.

Evaluation of Subjective Accounts of Pain164

Statements about the symptoms165 alone never establish the existence of any
impairment or disability. The Social Security Administration uses a two-step process to
evaluate existence and severity of symptoms.
i.

Existence of Pain

First, the ALJ must find a medically determinable impairment – proven with
medically acceptable clinical and laboratory diagnostic data – that could reasonably be
expected to produce the claimant’s symptoms. Otherwise, the ALJ cannot find the
applicant disabled, no matter how genuine the symptoms appear to be.
This step does not consider the intensity, persistence and limiting effects of the
symptoms on the claimant: it only verifies whether a medical condition exists that could
objectively cause the existence of the symptom.
Analysis stops at this step where the objectively determinable impairment meets
or medically equals one listed in 20 CFR Part 404, Subpart P, Appendix 1, because the

163

See 20 C.F.R. § 416.927 (e)(1).
See 20 C.F.R §§ 416.928-29. See also SSR 96-7p.
165
A symptom is an individual’s own description of physical or mental
impairments such as pain, fatigue, shortness of breath and other complaints.
See SSR 96-7p.
164

23

claimant is considered disabled per se.
ii.

Severity of Pain

At step two, the ALJ must determine the extent to which the symptoms limit the
claimant’s ability to do basic work activities. Therefore, he must determine the
applicant’s credibility.166
At this step, the ALJ must consider the entire record, including medical signs,
laboratory findings, the claimant’s statements about symptoms, any other information
provided by treating or examining physicians, psychiatrists and psychologists, and any
other relevant evidence in the record, such as the claimant’s account of how the
symptoms affect his activities of daily living and ability to work.167
Where more information is needed to assess a claimant’s credibility, the ALJ
must make every reasonable effort to obtain available information that would shed light
on that issue. Therefore, the ALJ must consider the following factors relevant to
symptoms, only when such additional information is needed:
(i) The applicant’s account of daily activities;
(ii) The location, duration, frequency, and intensity of pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication the
applicant takes or has taken to alleviate pain or other symptoms;

166

Credibility is the extent to which the statements can be believed and accepted
as true.
167
See 20 C.F.R. § 404.1529.
24

(v) Treatment, other than medication, the applicant receives or has received for
relief of pain or other symptoms;
(vi) Any measures the applicant uses or has used to relieve pain or other
symptoms (e.g., lying flat, standing for 15 to 20 minutes every hour, sleeping on
a board, etc.); and
(vii) Other factors concerning functional limitations and restrictions due to pain or
other symptoms.168
4.

Factors in Evaluating Credibility169

A claimant’s statements and reports from medical sources and other persons
with regard to the seven factors, noted above, along with any other relevant information
in the record, provide the ALJ with an overview of the subjective complaints, and are
elements to the determination of credibility.
Consistency with the record, particularly medical findings, supports a claimant’s
credibility. Since the effects of symptoms can often be clinically observed, when
present, they tend to lend credibility to a claimant’s allegations. Therefore, the
adjudicator should review and consider any available objective medical evidence
concerning the intensity and persistence of pain or other symptoms in evaluating the
claimant’s statements.
Persistent attempts to obtain pain relief, increasing medications, trials of different
types of treatment, referrals to specialists, or changing treatment sources may indicate

168
169

See 20 C.F.R. § 404.1529
See SSR 96-7p.
25

that the symptoms are a source of distress and generally support a claimant’s
allegations. An applicant’s claims, however, may be less credible if the level or
frequency of treatment is inconsistent with the level of complaints, or if the medical
reports or records show noncompliance with prescribed treatment.
Findings of fact by state agency medical and psychological consultants and other
physicians and psychologists regarding the existence and severity of impairments and
symptoms, and opinions of non-examining physicians and psychologist are also part of
the analysis. Such opinions are not given controlling weight. However, the ALJ,
although not bound by such findings, may not ignore them and must explain the weight
afforded those opinions in his decision.
Credibility is one element in determining disability. The ALJ must apply his
finding on credibility in step two of the five-step disability determination process, and
may use it at each subsequent step.
The decision must clearly explain, that is, provide sufficiently specific reasons
based on the record, to the claimant and any subsequent reviewers, regarding the
weight afforded to the claimant’s statements and the reasons therefore.
The law recognizes that the claimant’s work history should be considered when
evaluating the credibility of her testimony or statements.170 A claimant’s testimony is
accorded substantial credibility when he has a long work history, if it is unlikely that,
absent pain, he would have ended employment.171
170
171

See 20 C.F.R. § 404.1529(a)(3)
See Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984) citing Taybron v.
Harris, 667 F.2d 412, 415 n.6 (3d Cir. 1981). In Podedworny, the claimant
26

5.

Medical Expert Testimony

The onset date of disability is determined from the medical records and reports
and other similar evidence, which requires the ALJ to apply informed judgment.172 At
the hearing, the ALJ should call on the services of a medical advisor when onset must
be inferred.173
IV.

DISCUSSION
A.

Parties’ Contentions

On appeal, plaintiff asserts the ALJ failed to properly weigh the medical opinion
evidence.174 Specifically, plaintiff claims that the ALJ ran afoul of the “treating physician
rule” in giving more evidentiary weight to the opinion of two non-treating agency
physicians than that of plaintiff’s treating physician, Dr. Blanco.175 Even if Dr. Blanco’s
opinion could not be afforded controlling weight, plaintiff argues it was still entitled to
“greatest weight” under the factors provided in 20 CFR §§ 404.1527, 416.927. 176
Plaintiff also alleges the ALJ failed to evaluate the credibility of his statements
about the severity of his symptoms and his resulting functional limitations.177 According

worked for thirty-two years as a crane operator for one company. He had a
ninth grade education and left his employment after the company physicians
determined that his symptoms of dizziness and blurred vision prevented him
from safely performing his job.
172
See SSR 83-20.
173
Id.
174
D.I. 11 at 1.
175
Id. at 11-12 (citing Jones v. Astrue, No. 12-579-GMS, 2015 WL 4404890, *7
(D. Del. July 20, 2015) for explanation of this rule).
176
Id. at 15 (citing SSR 96-2p).
177
Id. at 1.
27

to plaintiff, the ALJ’s credibility assessment was improperly based on “[the ALJ’s] lay
interpretation” of the relevant medical evidence and the same “faulty reasoning” applied
in his consideration of Dr. Blanco’s opinion evidence.178 Plaintiff maintains that due to
the diagnostic difficulty posed by his symptoms, a credibility assessment cannot be
made “solely” on a lack of objective medical evidence.179
In response, defendant contends the ALJ was correct to afford less weight to Dr.
Blanco’s opinion because the severity and scope of the limitations noted therein were
inconsistent with the medical evidence as a whole.180 This includes inconsistencies
reflected in plaintiff’s testimony, Dr. Blanco’s own physical examinations in the months
before and after the disability application, and several other physicians with whom
plaintiff discussed his back pain. 181 As a result, defendant argues the ALJ’s decision to
discount Dr. Blanco’s opinion and credit the agency medical experts’ opinion instead
was supported by substantial evidence.182
Defendant further asserts the ALJ’s credibility assessment was well-supported
by plaintiff’s testimony, treatment history, his ADL, and opinion evidence, in addition to
the objective medical evidence in the record. 183 The ALJ considered this evidence as a
whole and concluded that it did not support plaintif f’s subjective statements.184
Defendant, however, emphasizes the ALJ “did not reject [p]laintiff’s allegations outright”

178

D.I. 11 at 16-17.
Id.
180
D.I. 13 at 8-9.
181
Id.
182
Id. at 11 (citing Brown v. Astrue, 643 F.3D 193, 196 (3d Cir. 2011)).
183
Id. at 13-14; See also D.I. 7-2 at 27.
184
D.I.13 at 14; See also D.I. 7-2 at 27.
179

28

and instead reasonably credited his testimony to the extent they were supported by the
record.185 Therefore, defendant maintains that the ALJ’s credibility assessment is
supported by substantial evidence and should be affirmed.186
B.

Disability Analysis

The ALJ determined that plaintiff was not disabled under sections 216(i) and
223(d). This court must decide whether the ALJ properly applied the relevant legal
standards in making his determination – specifically, whether “substantial evidence”
supports his decision. If this standard is not met, then this court may reverse the
Commissioner’s final determination that plaintiff is not disabled under the Act.
Plaintiff’s main contentions are the following: (1) the ALJ failed to properly weigh
the medical opinion evidence, and (2) the ALJ failed to properly evaluate plaintiff’s
credibility. Therefore, this court’s decision is based upon whether the ALJ’s analysis of
these assertions within the entire disability determination was reasoned in a manner
meeting the required standards.
1.

Weight Accorded to Opinion Evidence

In weighing medical opinion evidence, the ALJ considers the entire evidentiary
record as whole. If a treating source’s medical opinion is well-supported by “medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence” in the record, it will be given controlling weight.187 If not

185

D.I. 13 at 15-16.
Id. at 13.
187
See supra Part III (C)(2).
186

29

given controlling weight, the ALJ must explain his reasons for the weight given to the
medical opinion evidence.188
Here, the ALJ gave “little evidentiary weight” to Dr. Blanco’s statements in the
Spinal Impairment Questionnaires for two reasons: (1) the level of incapacity described
was unsupported by the objective findings on record, “including the absence of disc
herniation or neurological deficits,” and (2) the opinion was inconsistent with plaintiff’s
history of conservative treatment and his “wide range of daily activities.”189
Plaintiff argues that the ALJ’s assessment of Dr. Blanco’s opinion is essentially
based on the ALJ’s “‘own speculation and lay opinion.’”190 Plaintiff further contends that
the ALJ “failed to cite to any medical or legal authority” that would contradict Dr.
Blanco’s opinion. 191 However, because the ALJ’s decision is properly supported by
substantial evidence after a consideration of the record as a whole, there is no error in
the weight accorded to the opinion evidence.
Rather than relying on speculation or lay opinion as plaintiff alleges, the ALJ
noted the specific and substantial inconsistences between Dr. Blanco’s opinion and the
record evidence as a whole, including the objective findings made during plaintiff’s
office visits with him from 2010 through 2013.192 The ALJ pointed out that the findings
included a physical and focused lumbar examination which consistently revealed
normal motor and sensory function, normal muscle tone, and normal joint stability; a

188

See supra Part III (C)(2).
D.I. 7-2 at 31.
190
D.I. 11 at 13 (citing Morales, 225 F.3d 310, 317-318).
191
Id. at 12.
192
D.I. 7-2 at 30-31.
189

30

range of motion within normal limits; a lack of pain behavior or antalgia; an ability to
heel-toe walk without pain or difficulty; and appropriate mood and affect.193 These
findings are repeated in several visits of other treating physicians, including Dr. Xiong
and Patricia Pugni, NP, associates of Dr. Blanco at Westmed.194
Observing that plaintiff’s treatment by Dr. Blanco remained “routine” and
“conservative,” the ALJ found such a history of treatment to belie the level of incapacity
described by Dr. Blanco.195 Plaintiff testified that since the onset of his alleged
disability, he had not received nor had he sought any injections or surgical relief for his
back and spine. 196 Indeed, plaintiff twice refused injections during the relevant period.197
The ALJ noted how through pain medication alone, plaintiff was able to increase his
physical activities and overall quality of life without experiencing any adverse side
effects.198
The ALJ found this increase in physical activity significant, given the extreme
limitations on plaintiff’s physical activity described by Dr. Blanco.199 At points during his
treatment, plaintiff was bicycling for twenty minutes once or twice a week and walking
two miles before exacerbating his back pain.200 During the hearing, plaintiff recounted
going to the movies, working out at the gym, grocery shopping, and driving.201 While

193

Id.
Id. at 30-31.
195
Id. at 28, 31.
196
D.I. 7-2 at 60-61.
197
D.I. 7-10. at 609, 622.
198
D.I. 7-2 at 28, 30; See also D.I. 7-10 at 611.
199
D.I. 7-2 at 31.
200
Id. at 30.
201
Id. at 63-65.
194

31

reports of increased pain sometimes accompanied increased activity, the resulting pain
was always well-managed by the medication – to the point that plaintiff decreased or
discontinued his pain medication on several occasions.202 The ALJ found the
submission of nearly a year’s worth of additional pain management records after the
hearing only reinforced plaintiff’s stability on medication.203 Furthermore, the lack of
new examination findings in these records did not support a worsening of plaintiff’s
condition.204
In sum, the ALJ thoroughly explained how the objective findings, treatment
history, and scope of daily activities were inconsistent with Dr. Blanco’s assertion that
plaintiff was incapable of even less than sedentary work on a sustained basis. 205 As
noted previously, a treating physician’s medical opinion is only afforded controlling
weight when the opinion of an individual’s impairment is “well supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial record evidence.”206 Taken together, the objective findings, history of
conservative treatment, and range of ADL reflected in the record reasonably rebut the
level of incapacity described by Dr. Blanco in his Spinal Questionnaires. For this
reason, the ALJ applied the correct legal standards and did not err in affording Dr.
Blanco’s opinion less weight.

202

Id. at 28, 30-31, 69.
D.I. 7-2 at 31.
204
Id. at 31.
205
Id. at 31.
206
See supra Part III (C)(2).
203

32

2.

Credibility Assessment

The ALJ assesses a claimant’s subjective account of pain in a two-part analysis.
The first part requires the ALJ to find “a medically determinable impairment – proven
with medically acceptable clinical and laboratory diagnostic data – that could
reasonably be expected to produce the claimant’s symptoms.”207 The second part
requires the ALJ to “determine the extent to which the symptoms limit the claimant’s
ability to do basic work activities.”208 The credibility of the claimant is thus an important
part of the overall disability analysis. In assessing credibility, the ALJ considers the
entire record, including a variety of factors, such as the character of the symptoms, the
type of treatment, the response to treatment, and a claimant’s daily activities.209
Here, the ALJ acknowledged the existence of medically determinable
impairments, but maintained doubts regarding “the intensity, persistence, and limiting
effects” the symptoms produced.210 Ultimately, the ALJ found plaintiff’s subjective
account of the effect of his impairments to “far outweigh the objective and clinical
findings.”211 While the ALJ did find some limitation in plaintiff’s ability to work, the
limitations were simply “not to the degree alleged.”212
Plaintiff objects to the credibility assessment on the basis that the ALJ relied on a
lay understanding of the objective medical evidence, instead of relying on the opinion of

207

Id.
Id.
209
See supra Part III (C)(3)(ii) and Part III (C)(4).
210
D.I. 7-2 at 27.
211
Id. at 28.
212
Id. at 27.
208

33

a treating physician like Dr. Blanco.213 At the same time, plaintiff claims the ALJ placed
too much emphasis on the objective medical evidence, as some symptoms “cannot be
measured objectively through clinical or diagnostic techniques.”214 However, because
the ALJ’s decision is supported by substantial evidence upon consideration of the entire
record, there is no error in his credibility assessment.
Much of the same evidence that discounted Dr. Blanco’s opinion operated to
weaken the plaintiff’s credibility. The number of significant inconsistencies between
plaintiff’s subjective complaints and the objective medical findings of record were
crucial.215 Specifically, the ALJ indicated the lack of “disc herniation, nerve root
compression, or significant neurological deficit,” and a long history of normal physical
exam findings, including notes on plaintiff’s lack of pain behavior and appropriate mood
and affect.216 As the ALJ emphasized, there was no evidence in the record that
plaintiff’s gait, stance, balance, or coordination are significantly disturbed.217 Plaintiff
has not been prescribed an assistive device for ambulation and he does not use any
orthotic brace or device.218 Despite testifying to the severity of pain he suffers if he
overdoes even five minutes of physical activity, the ALJ noted that plaintiff has not
required hospitalization, surgical intervention, or frequent emergency medical care for
his pain.219 Furthermore, the ALJ found nothing in the record to support the allegation

213

D.I. 11 at 16.
D.I. 11 at 17.
215
See D.I. 7-2 at 28.
216
Id. at 28 and 30.
217
Id.
218
Id.
219
Id. at 28, 62, 67.
214

34

that plaintiff’s pain “is so severe that it impacts his attention, memory, or
concentration.”220 Instead, he found the pain to be “mild to moderate . . . at most,”
subject to only routine conservative treatment, and well-managed by the prescribed
medications.221
Plaintiff’s testimony compounded these inconsistencies. The ALJ found the
plaintiff’s wide-range of activities, including “walking, using the treadmill, going for
drives, going to the movies once a week . . . working with model trains” and “household
cleaning, cooking, doing laundry, washing dishes, and grocery shopping,” to
“contraindicate severe pain and other symptoms.”222 Ultimately, the ALJ asserted that
while plaintiff’s pain may prevent him from “heavy exertional tasks,” there was nothing
to suggest plaintiff could not perform “less strenuous tasks” or complete “non-strenuous
daily activities with little difficulty.”223
The ALJ’s findings are not improper lay interpretations or inferences, but rather
well-reasoned conclusions supported by the record. As the ALJ detailed in his decision
and defendant correctly points out, where plaintiff’s representations are not
substantiated by the objective medical evidence, the ALJ is entitled to make a finding
based on a consideration of the entire record. Having done so, the ALJ’s credibility
assessment is supported by substantial evidence and is therefore not in error.

220

D.I. 7-2 at 28.
Id.
222
Id.
223
Id.
221

35

V.

CONCLUSION

For the reasons contained herein, I recommend that:
1. Plaintiff’s motion for summary judgment (D.I. 10) be DENIED.
2. Defendant’s cross-motion for summary judgment (D.I. 12) be GRANTED.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), F ED. R. CIV. P. 72 (b), and D. DEL.
LR 72.1, any objections to this Report and Recommendation shall be filed within
fourteen (14) days limited to ten (10) pages after being served with the same. Any
response shall be limited to ten (10) pages and filed within fourteen (14) days
thereafter.
The parties are directed to the Court’s Standing Order in Non-Pro Se Matters for
Objections Filed under F ED. R. CIV. P. 72 dated October 9, 2013, a copy of which is
found on the Court’s website (www.ded.uscourts.gov.).
Date: April 2, 2019

/s/ Mary Pat Thynge
Chief U.S. Magistrate Judge

36