Garrett, Sr. v. Colvin
MEMORANDUM re: motions for summary jgm. Signed by Judge Malachy E. Mannion on 2/8/18. (Sempa, Barbe)
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
DAVID J. GARRETT, SR.,
: Civil Action No. 1:15-01189
NANCY BERRYHILL ,
Acting Commissioner of
The above-captioned action is one seeking review of a decision of the
Acting Commissioner of Social Security (“Commissioner”), denying plaintiff
David J. Garrett’s application for Social Security Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§401-433. The
court has jurisdiction pursuant to 42 U.S.C. §405(g). Currently before the
court are the parties’ cross-motions for summary judgment. (Doc. 16, Doc.
18). For the reasons set forth below, plaintiff’s motion will be denied and
defendant’s motion will be granted. Thus, the Court will affirm the
Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
substituted for Carolyn W. Colvin, Acting Commissioner of Social Security as
the defendant in this suit.
Disability insurance benefits are paid to an individual if that individual is
disabled and “insured,” that is, the individual has worked long enough and
paid social security taxes. The last date that a claimant meets the
requirements of being insured is commonly referred to as the “date last
insured.” It is undisputed that plaintiff met the insured status requirements of
the Social Security Act through December 31, 2014. (Tr. 25).3 In order to
establish entitlement to disability insurance benefits, plaintiff was required to
establish that he suffered from a disability on or before that date. 42 U.S.C.
§423(a)(1)(A), (c)(1)(B); 20 C.F.R. §404.131(a); see Matullo v. Bowen, 926
F.2d 240, 244 (3d Cir. 1990).
Plaintiff was born on December 9, 1966. (Tr. 225). He was a younger
individual when the Administrative Law Judge (“ALJ”) rendered his decision
in this case. Plaintiff has an 11th grade education and, he attended special
education classes. (Tr. 240, 365-367). His past work included a batch
The court notes that since the ALJ fully developed the record and since
the ALJ, (Doc. 8-2 at 25-40), as well as the parties have stated the full
medical history of plaintiff in their respective filings, the court will not fully
repeat it herein. Rather, the court discusses below plaintiff’s medical history
to the extent it is relevant to plaintiff’s instant issues raised in this appeal. See
Durden v. Colvin, 191 F.Supp.3d 429, 449 (M.D.Pa. 2016)(“In the social
security context, the ALJ must develop the record and provide an explanation
for how evidence in the record is treated.”). In this case, neither party
contends that the ALJ failed to fully develop the record.
References to “Tr. __” are to pages of the administrative record filed by
the defendant along with the Answer (Doc. 8).
blender, furniture installer and technician, plant worker, and truck unloader.
(Tr. 37, 227-232). Plaintiff stopped working in October 2009 when he was laid
off. Plaintiff alleges that on May 1, 2011, he became disabled and was unable
Plaintiff filed a claim for DIB on May 11, 2011, alleging disability
commencing on May 1, 2011. He was 44 years old at the time. (Tr. 214). He
alleged that he was disabled due to several conditions, to wit: asthma; poor
sleep; bilateral ulnar neuropathy; bilateral carpal tunnel syndrome; muscle
wasting in arms and hands; bilateral loss of dexterity in hands with numbness
and tingling; muscle cramps, spasms and fasciculation in the whole body;
arthritis; weakness in the hands, arms and legs; severe pain and fatigue;
learning disabilities; and auditory problems. (Tr. 239, 252). The agency denied
plaintiff’s application on March 23, 2012. (Tr. 176). Plaintiff filed a request for
reconsideration and, on September 19, 2012, the agency denied his request.
(Tr. 183). Plaintiff then requested a hearing before an ALJ, which was held on
June 10, 2014. (Tr. 46).
The ALJ issued a decision on August 7, 2014. The ALJ found that
plaintiff was not disabled within the meaning of the Social Security Act from
May 1, 2011 through the date of his decision. (Doc. 8-2, Tr. 25-39). Plaintiff
filed a request for review.
On October 22, 2015, the Appeals Council denied plaintiff’s request for
review, making the ALJ's decision the final decision of the Commissioner. (Tr.
1). Since plaintiff exhausted his administrative remedies, he initiated the
present action on December 22, 2015, appealing the final decision of
defendant. (Doc. 1).
Plaintiff appeals the ALJ’s determination on three grounds: 1. Whether
the ALJ erred in his credibility findings regarding plaintiff’s testimony: 2.
Whether the ALJ erred in evaluating the opinions of plaintiff’s treating
physicians; 3. Whether the ALJ erred in his Residual Functional Capacity
(“RFC”) findings in determining that there was other work that plaintiff could
perform, i.e., substantial evidence does not support the ALJ’s RFC
As relief, plaintiff seeks the court to reverse the Commissioner’s
decision and remand with instructions to award benefits, or in the alternative,
to remand his case to the Commissioner for further proceedings.
STANDARD OF REVIEW
When reviewing the denial of disability benefits, the court must
determine whether the denial is supported by substantial evidence. Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of
Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence “does not
mean a large or considerable amount of evidence, but rather such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Pierce v. Underwood, 487 U.S. 552 (1988); Hartranft v. Apfel,
181 F.3d 358, 360. (3d Cir. 1999), Johnson, 529 F.3d at 200. It is less than
a preponderance of the evidence but more than a mere scintilla. Richardson
v. Perales, 402 U.S. 389, 401 (1971).
To receive disability benefits, the plaintiff must demonstrate an “inability
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §432(d)(1)(A). Furthermore,
[a]n individual shall be determined to be under a disability only if
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists
in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied
for work. For purposes of the preceding sentence (with respect to
any individual), ‘work which exists in the national economy’ means
work which exists in significant numbers either in the region
where such individual lives or in several regions of the country.
42 U.S.C. §423(d)(2)(A).
In the present case, there are cross-motions for summary judgment. “In
Social Security cases, the substantial evidence standard applies to motions
for summary judgment brought pursuant to Federal Rule of Civil Procedure
56(c).” Antoniolo v. Colvin, 208 F.Supp.3d 587, 595 (D.Del. 2016) (citing
Woody v. Sec’y of the Dep't of Health & Human Servs., 859 F.2d 1156, 1159
DISABILITY EVALUATION PROCESS
The plaintiff must establish that there is some “medically determinable
basis for an impairment that prevents him from engaging in any substantial
gainful activity for a statutory twelve-month period.” Fargnoli v. Massanari, 247
F.3d 34, 38-39 (3d Cir. 2001) (quoting Plummer v. Apfel, 186 F.3d 422, 427
(3d Cir. 1999) (internal quotations omitted). “A claimant is considered unable
to engage in any substantial gainful activity ‘only if his physical or mental
impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists
in the national economy . . . .’” Fargnoli, 247 F.3d at 39 (quoting 42 U.S.C.
A five-step evaluation process is used to determine if a person is eligible
for disability benefits. See 20 C.F.R. §404.1520. See also Plummer , 186 F.3d
at 428. If the Commissioner finds that a plaintiff is disabled or not disabled at
any point in the sequence, review does not proceed any further. See 20
C.F.R. §404.1520. The Commissioner must sequentially determine: (1)
whether the claimant is engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment; (3) whether the claimant’s impairment
meets or equals a listed impairment; (4) whether the claimant’s impairment
prevents the claimant from doing past relevant work; and (5) whether the
claimant’s impairment prevents the claimant from doing any other work. See
20 C.F.R. §404.1520.
Here, the ALJ proceeded through each step of the sequential evaluation
process to conclude that the plaintiff was not disabled within the meaning of
the Act. The ALJ found that plaintiff has not engaged in substantial gainful
activity since May 1, 2011, the alleged onset date. Next, the ALJ determined
that plaintiff suffered from severe impairments, including the following:
obesity; bilateral carpal tunnel syndrome; degenerative disc disease of the
cervical and lumbar spines; ulnar neuropathies of the elbows; left wrist ulnar
neuropathy; right elbow osteoarthritis; right shoulder impairment; migraines;
fasciculation disorder; hypertension; hyperlipidemia; hypothyroidism; sleep
apnea; learning disorder; anxiety disorder; and depression. (Tr. 27). The ALJ
also determined that the plaintiff’s allergic rhinitis, mild left ventricular
hypertrophy; subependymoma; and auditory problems were non-severe
impairments. (Tr. 27-28).
The ALJ then found that plaintiff does not have an impairment or
combination of impairments that meets or medically equals the severity of one
of the listed impairments. (Tr. 28).
The ALJ found that plaintiff had the RFC to perform less than full range
of sedentary work with restrictions, namely: no climbing activities; no work at
unprotected heights or dangerous machinery; no work overhead; limited to
occasional stooping or squatting; no crawling; cannot engage in frequent
reaching or handling as required on an assembly line; and limited to simple
repetitive job tasks.4 (Tr. 31).
The ALJ found that plaintiff was unable to perform any of his past
relevant work which all was at the heavy exertional level and semi-skilled. He
indicated that plaintiff was a younger individual (i.e., 44) at his alleged
disability onset date. (Tr. 37-38).
Additionally, the ALJ afforded limited weight to the medical opinions,
including the state agency consultants’ opinions that plaintiff could perform
work at the light exertional level with limitations, as well as the opinions of
plaintiff’s treating physicians, Dr. Bryan Simmons, Dr. Lee P. Dresser, Dr.
John Ashby, Dr. Jason Silversteen, and Dr. Charles Esham. The ALJ
recognized that Dr. Simmons, Dr. Dresser, Dr. Ashby, and Dr. Silversteen
opined that plaintiff could not work on a full-time basis and was disabled for
periods of time. The plaintiff testified at the hearing, and the ALJ found that
his allegations regarding his symptoms and limitations were not entirely
credible. (Tr. 35-37).
Also, at the hearing, the ALJ posed a hypothetical question to a
vocational expert (“VE”) that was based on a person who could perform
Sedentary work is defined as “lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers, and small
tools.” 20 C.F.R. §416.967(a). Even though a sedentary job is one which
involves sitting, a certain amount of walking and standing is frequently
necessary to perform the job duties. Thus, jobs are still considered sedentary
if walking and standing are required occasionally and other sedentary criteria
are met. See SSR 83-10.
sedentary work with additional restrictions including no climbing activities, no
work at unprotected heights or dangerous machinery, no overhead work,
occasional stooping or squatting, no crawling, enjoys gross use of hands,
should not engage in frequent reaching or handling, and limited to simple
repetitive job tasks. The VE testified that such a person would be able to
perform work as a call center operator and surveillance monitor. (Tr. 69-70).
The ALJ then determined that based on plaintiff’s age, education, work
experience and RFC, plaintiff was capable of performing other work in the
national economy that existed in significant numbers, namely, a call center
operator and surveillance monitor. (Tr. 38).
A. Plaintiff’s Credibility
As his first claim that the ALJ erred, plaintiff contends that the ALJ’s
credibility finding that his statements regarding his severe pain were not
entirely credible was not supported by substantial evidence. In particular,
plaintiff contends that the ALJ failed to adequately assess all aspects of his
pain from his multiple impairments in his credibility findings pursuant to SSR
96-7p. Plaintiff argues that his treatment notes, exam findings and diagnostic
testing show that he suffered from severe disabling pain due to his conditions,
including cervical disc disease, lumbar disc disease and radiculitis, bilateral
carpal tunnel and ulnar neuropathy and right shoulder rotator cuff tear.
Specifically, plaintiff states that the ALJ’s credibility finding: (1) contained
contradictions; (2) ignored significant diagnostic testing; and (3) greatly
minimized the multitude of positive findings on exam. Plaintiff maintains that”
[t]he ALJ focused on other exam findings that were normal while not
appreciating the signs the symptoms of severe, unrelenting nerve, discogenic
and muscle pain.” (Doc. 17 at 19, Doc. 21 at 4).
“[A]n ALJ’s findings based on the credibility of the applicant are to be
accorded great weight and deference, particularly since an ALJ is charged
with the duty of observing a witness’s demeanor and credibility.’ Walters v.
Commissioner of Social Sec., 127 F.3d 525, 531 (6th Cir.1997); see also
Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 801 (10th
Cir.1991) (‘We defer to the ALJ as trier of fact, the individual optimally
positioned to observe and assess witness credibility.’).” Frazier v. Apfel, 2000
WL 288246 (E.D. Pa. March 7, 2000).
When considering a plaintiff’s subjective complaints of pain, the ALJ
must engage in a two-step analysis. First, the ALJ must determine if the
alleged disabling pain could reasonably result from the medically
determinable impairment; and second, the ALJ must consider the intensity
and persistence of the claimant’s disabling pain, and the extent to which it
affects his ability to work. See Diaz v. Commissioner of Social Security, 39
Fed. App’x 713, 714 (3d Cir. June 12, 2002).
“[A]n ALJ must give serious consideration to a claimant’s subjective
complaints of pain, even where those complaints are not supported by
objective evidence.” Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985).
Where in fact “medical evidence does support a claimant’s complaints of pain,
the complaints should then be given ‘great weight’ and may not be
disregarded unless there exists contrary medical evidence.” Mason, 994 F.2d
at 1067–68 (citing Carter v. Railroad Retirement Bd., 834 F.2d 62, 65 (3d
Cir.1987); Ferguson, 765 F.2d at 37).
Although, the ALJ is charged with the responsibility of determining a
claimant’s credibility, see Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir.
1974), the ALJ’s decision “must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual’s statements and
the reason for that weight.” SSR 96-7p. “Credibility determinations are the
province of the ALJ and should only be disturbed on review if not supported
by substantial evidence.” Pysher v. Apfel, 2001 WL 793305 at *3 (E.D. Pa.
July 11, 2001) (citing Van Horn v. Schwieker, 717 F.2d 871, 873 (3d Cir.
1983); Zirnsak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014) (an ALJ’s credibility
determination is entitled to great deference). An ALJ is not required to
specifically mention relevant Social Security Rulings. See Holiday v. Barnhart,
76 F. App’x 479, 482 (3d Cir. 2003). It is enough that the ALJ’s analysis by
and large comports with relevant provisions. Id.
The ALJ stated that plaintiff’s impairments could reasonably cause his
alleged symptoms, but that plaintiff’s statements regarding the intensity,
persistence and limiting effects of his symptoms were not entirely credible.
The ALJ provided a detailed explanation, based on the entire record, to
support his determination that plaintiff’s allegations regarding his symptoms
and limitations were not entirely credible. (Tr. 33-37). The ALJ did in fact
credit some of plaintiff’s allegations regarding his physical and mental
impairments in his RFC determination, and explained that “diagnostic testing
has indicated abnormalities pertaining to the cervical spine, lumbar spine, and
right elbow” and, “[has shown] findings consistent with neuropathies, elbows,
wrists, and acute and chronic left S1 radiculopathy.” (Tr. 33). Thus, the ALJ
limited plaintiff to a range of sedentary work with postural and manipulative
restrictions, and limited plaintiff to work that involves only simple repetitive
The ALJ also thoroughly reviewed the medical evidence of record, and
he relied upon these records and objective medical tests, all of which were
discussed in great detail in his decision, as well as the plaintiff’s daily
activities. In particular, the ALJ considered several examination notes of
plaintiff’s physicians which showed “normal strength in [plaintiff’s] upper and
lower extremities, full range of motion in all joints, a negative Romberg test,
normal sensation in his lower extremities, coordination and reflexes within
normal limits, normal sensation in his lower extremities, normal vibratory
sensation in the upper and lower extremities, normal sensation to light touch
in lower and upper extremities, good full supination and pronation of his left
upper extremity, normal cranial nerve testing, a normal gait, station, and
tandem walk, and no muscle atrophy.” (Tr. 33).
The ALJ considered the opinions of state agency expert physicians that
plaintiff could perform a range of light work, but he gave limited weight to
these opinions. (Tr. 36). Indeed, the ALJ stated that he provided plaintiff with
an RFC determination that “afford[ed] the claimant[ ] maximum credibility
regarding his subjective complaints” which was consistent with the medical
records. (Tr. 36).
Plaintiff argues that the ALJ noted a normal EMG of the lower
extremities from August 2012 and failed to “reconcile why he discounted a
subsequent EMG done in May 2013 which showed acute and chronic S1
radiculitis …” (Doc. 17, at 19). In his decision, the ALJ found that diagnostic
testing showed that plaintiff had “neuropathies, elbows, wrists, and acute and
chronic left S1 radiculopathy” as well as limited range of motion in his cervical
and lumbar spines, and right elbow and shoulder. The ALJ also indicated that
“[a]n EMG of [plaintiff’s] lower extremities was [ ] interpreted as normal.” (Tr.
33). The ALJ concluded that the “collective evidence” was not consistent with
the degree of symptoms and limitations to which plaintiff stated he
experienced. (Tr. 33).
Plaintiff also contends that the ALJ rejected his limitations on manual
dexterity without a proper basis. (Doc. 17 at 19). The ALJ found that there
“[were] no persistently, abnormal clinical examination findings suggestive of
manual dexterity limitations.” (Tr. 33). However, the ALJ only made this finding
after he considered objective testing that showed plaintiff had neuropathies
and diminished sensation in the fingers of his right hand along with thenar
muscle atrophy of the hands. (Tr. 33). The ALJ also acknowledged that
plaintiff had some dexterity limitation and in his RFC he accounted for this by
precluding plaintiff from jobs that require any frequent reaching and handling
or any overhead work. (Tr. 31).
Further, as defendant points out, (Doc. 19 at 15), “after surgical
procedures, by January 2012, Plaintiff exhibited a full range of motion [of the
shoulder], elbow, wrist and fingers despite a mild persistent hypothenar
weakness and some decreased sensation, which would take longer to
improve.” (Tr. 542). And that “[i]n May of 2012, the orthopedist reported that
Plaintiff was ‘back to most of his activities’” and stated that “he is doing well.”
Plaintiff also contends that the ALJ erred by not finding his attention and
concentration abilities were so severe that he could not perform any work.
The ALJ found that plaintiff’s medical records were “replete with evidence [ ]
[showing that he was] persistently being assessed as alert and oriented and
having normal attention and concentration.” (Tr. 35). The ALJ also properly
included limitations for plaintiff due to attention and concentration problems
in his RFC by limiting him to simple repetitive job tasks. (Tr. 31). Moreover, as
the ALJ indicated, the record showed that plaintiff’s “mental status
examinations have been essentially normal”, and that plaintiff’s clinical exam
findings regarding his concentration were “routinely noted to be normal” (Tr.
Further, plaintiff contends that the ALJ erred by failing to accept his
allegation that he could not concentrate or maintain attention due to pain that
was reflected in his psychiatrist’s notes. (Doc. 17 at 19-20). However, as
defendant indicates, (Doc. 19 at 16), and as the ALJ recognized, plaintiff’s
“psychiatric treatment notes confirms that [his] attention and concentration
remained intact.” The notes also reflect that plaintiff’s judgment, insight, and
memory were in tact despite his depressed mood. (Tr. 684, 692, 701, 715,
Finally, plaintiff argues that the ALJ erred regarding his unemployment
status when he filed his DIB claim and seemingly suggests that the ALJ was
looking unfavorably upon him for receiving unemployment benefits when he
claimed to be disabled. While the ALJ noted that plaintiff indicated in his
disability report that he stopped working since he was laid off and not due to
his conditions, the ALJ’s point was that despite plaintiff’s long history of
having several conditions, he did not stop working because of these
conditions. (Tr. 35).
Thus, the ALJ’s assessment and the medical record belies plaintiff’s
credibility arguments. The ALJ explained in much detail why he was finding
plaintiff not entirely credibility, including with respect to his complaints of pain,
and cited many bases for his findings. The ALJ properly concluded that
plaintiff’s complaints were not consistently supported by medical treatment
records. In light of these conflicts in the evidence, the ALJ as fact-finder, was
entitled to give greater weight to the objective medical evidence which did not
support plaintiff’s claims. Recognizing that the “substantial evidence” standard
of review prescribed by statute is a deferential standard of review, which is
met by less than a preponderance of evidence but more than a mere scintilla
of proof, the court concludes that the ALJ’s decisions assessing plaintiff’s
credibility, including his alleged ability to function due to his impairments, was
supported by substantial evidence.
B. Credibility of Plaintiff’s Treating Physicians
As his next assignment of error, plaintiffs claims that the ALJ did not
properly evaluate the opinions of his treating physicians. Specifically, plaintiff
argues that the ALJ did not properly assess the medical opinions of Dr.
Silversteen and Dr. Esham, two of his treating physicians, by assigning them
only limited weight. (Tr. 36-37).
The regulations set forth at 20 C.F.R. §404.1527(a)(2) and
§416.927(a)(2), define medical opinions as “statements from physicians and
psychologists or other acceptable medical sources that reflect judgments
about the nature and severity of [a claimant’s] impairment(s), including [a
claimant’s] symptoms, diagnosis and prognosis, what [a claimant] can still do
despite impairment(s), and [a claimant’s] physical or mental restrictions.”
Regardless of its source, the ALJ is required to evaluate every medical
opinion received. 20 C.F.R §404.1527(c) and §416.927(c).
Where the ALJ finds that no treating source opinion is entitled to
controlling weight, as in the instant case, the regulations provide that the
weight of all non-controlling opinions by treating, non-treating, and nonexamining medical sources should be evaluated based on certain factors.
Those factors include the examining relationship, the length of the treatment
relationship and frequency of visits, nature and extent of the treatment
relationship, whether the medical source supports the opinion with medical
evidence, whether the opinion is consistent with the record as a whole, and
the medical source’s specialization. 20 C.F.R. §404.1527(c)(1-5). In addition,
the ALJ should consider any other factors that tend to support or contradict
the opinion that were brought to his attention, including “the extent to which
an acceptable medical source is familiar with the other information in [the]
case record.” 20 C.F.R. §404.1527(c)(6). See Markoch v. Colvin, 2015 WL
2374260, at *6 (M.D.Pa. May 18, 2015).
Additionally, the ALJ must consider all of the relevant evidence and give
a clear explanation to support his findings.” Fargnoli, 247 F.3d at 40-41
(quoting Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir.
2000)). If the ALJ discounts certain evidence, he must give some indication
of the reasons for discounting that evidence. ” Fargnoli, 247 F.3d at 43. While
the ALJ may choose whom to credit in his analysis, he “cannot reject
evidence for no reason or for the wrong reason.” Morales v. Apfel, 225 F.3d
310, 316-18 (3d Cir. 2000). The ALJ has the duty to adequately explain the
evidence that he rejects or to which he affords lesser weight. Diaz v. Comm’r
of Soc. Sec., 577 F.3d 500, 505-06 (3d Cir. 2009) (holding that because the
ALJ did not provide an adequate explanation for the weight he gave to several
medical opinions, remand was warranted). “The ALJ's explanation must be
sufficient enough to permit the court to conduct a meaningful review.” Morales
v. Colvin, 2016 WL 907743, at *8–9 (M.D. Pa. Mar. 2, 2016) (quoting In re
Moore v. Comm’r of Soc. Sec., Civ. No. 11-3611, 2012 WL 2958243, at *2
(D.N.J. July 19, 2012) (citing Burnette v. Comm’r of Soc. Sec., 202 F.3d 112,
119-20 (3d Cir. 2000)).
Initially, the temporary disability check-box forms completed by plaintiff’s
physicians with respect to plaintiff’s Delaware State welfare benefits are not
determinative. In particular, Dr. Simmons, Dr. Dresser, Dr. Ashby, and Dr.
Silversteen opined that plaintiff could not work on a full-time basis and was
disabled for various periods of time. These forms are found in the record as
follows: Dr. Simmons (Tr. 310); Dr. Dresser (Tr. 437, 438); Dr. Silversteen (Tr.
644, 889); and Dr. Ashby (Tr. 884).
No doubt that the opinions of plaintiff’s treating physician are generally
entitled to significant weight. The Third Circuit has “long accepted” that the
findings of a treating physician “must [be] give[n] greater weight ... than ... the
findings of a physician who has examined the claimant only once or not at all.”
Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993) (citations omitted). The
regulations as well as courts require the ALJ “give good reasons for the
amount of weight given to a treating physician’s opinion.” Fargnoli, 247 F.3d
42-44; see also 20 C.F.R. §404.1527(d)(2). A treating physician’s opinion can
be rejected by the ALJ based on contradictory medical evidence. See
Frankenfield, 861 F.2d at 408. The ALJ discussed the stated forms. Here, the
ALJ afforded proper weight to the opinions. He gave them limited weight since
he noted that they were form opinions “that cited to no specific clinical
examination findings or provided any specific work related functional
limitations that provide the basis for these opinions.” (Tr. 36). Additionally,
“[t]he ALJ–not treating or examining physicians or State agency
consultants–must make the ultimate disability and RFC determinations.”
Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011).
The ALJ also discussed the other medical opinions offered by treating
physicians and he explained the reasons for the weight he afforded these
opinions. The ALJ considered Dr. Silversteen’s June 22, 2014 report in which
he found plaintiff’s limitations prevented him from sitting for two hours, total,
over a workday, required him to use a cane to walk and, prevented him from
sitting or standing for more than five minutes per hour at a time. (Tr. 964-67).
The ALJ gave limited weight to Dr. Silversteen’s opinion and found that he
overestimated the degree of plaintiff’s limitations by greatly relying upon
plaintiff’s subjective complaints. An ALJ “may discredit a physician’s opinion
on disability that was premised largely on the claimant’s own accounts of her
symptoms and limitations when the claimant’s complaints are properly
discounted.” Morris v. Barnhart, 78 Fed.Appx. 820, 824–25 (3d Cir. 2003).
The ALJ also found that the doctor’s opinion was contrary to plaintiff’s medical
records which did not support such a degree of limitations since the records
did not contain “any persistently abnormal clinical examination findings” that
reflected such limitations. (Tr. 36). Further, as defendant points out, (Doc. 19
at 21), Dr. Silversteen’s own treatments notes contradicted some of his
limitation findings since his records found that “plaintiff’s MRIs of the cervical
and lumbar spine, along with EMG testing, were all ‘unremarkable’”, (Tr. 930),
Dr. Silversteen’s exam of plaintiff showed that he “had full motor strength [5/5
throughout] despite an antalgic gait, grossly intact sensory function, and no
evidence of fasciculations”, (Tr. 932), and that Dr. Silversteen noted that
plaintiff’s lower back pain and his claims of extremity cramping and pain and
stiffness had “unclear etiology.” (Tr. 932). “[A]n ALJ may give little weight to
a physician’s opinion that is inconsistent with the medical evidence of record
and with her own examination findings.” Antoniolo v. Colvin, 208 F.Supp.3d
587, 596 (D.Del. 2016) (citing Jones v. Sullivan, 954 F.2d 125, 129 (3d
Cir.1991) (holding that an unsupported diagnosis is not entitled to significant
Thus, the ALJ gave reasons why he did not give controlling weight to Dr.
Silversteen’s opinions and substantial evidence supports the weight which the
ALJ afforded these opinions.
The ALJ also considered Dr. Esham’s June 2014 statement, authored
after only treating plaintiff for four months, (i.e., since February 2014), finding
that plaintiff had significant limitations, including that he could not sit for more
than 15 minutes at a time, could not stand for more than 15 minutes at a time,
or sit for two hours in total during a workday. Dr. Esham also indicated that
plaintiff would need to elevate his legs 95% with prolonged sitting, take
unscheduled breaks, shift his position at will, required a cane, and would be
off task 25% or more at work. (Tr. 1008-1009). The ALJ gave limited weight
to Dr. Esham’s opinions since he found that the doctor overestimated the
degree of plaintiff’s limitations by greatly relying upon plaintiff’s subjective
complaints and his limitations which were not entirely credible. Also, as
discussed above, despite the doctor’s finding that plaintiff’s concentration was
limited due to pain, plaintiff’s exams showed that his concentration was
normal. Further, the ALJ found that the doctor’s opinion was inconsistent with
plaintiff’s “medical records on a longitudinal basis” which showed “normal
strength in the upper and lower extremities, no evidence of muscle atrophy,
no persistent spasms or fasciculation, a lack of an abnormal gait on a
persistent basis, and the lack of any persistently documented lower extremity
swelling.” (Tr. 36-37). The limitations which Dr. Esham found regarding
plaintiff’s hands were also accounted for in the ALJ’s RFC determination.
Thus, the ALJ specified how Dr. Esham’s opinions were not supported by
plaintiff’s medical records. Indeed,“[t]he decision to deny great weight to a
treating source opinion must be supported by objective medical evidence.”
Griffies v. Astrue, 855 F.Supp.2d 257, 274 (D.Del. 2012). Also, the ALJ
properly rejected Dr. Esham’s opinions based on contradictory medical
evidence. See Frankenfield, 861 F.2d at 408.
As such, the ALJ gave precise reasons why he did not give controlling
weight to Dr. Esham’s opinions and substantial evidence supports the weight
which the ALJ afforded these opinions.
C. The ALJ’s RFC Findings
Finally, plaintiff contends that the ALJ erred in his RFC findings by
determining that there was other work in the national economy that he could
perform. The crux of plaintiff’s argument is that the ALJ should have accepted
his treating physician’s opinions as well as his own statements, and that he
should have included the limitations stated therein in his RFC findings and in
the hypothetical he posed to the VE. Plaintiff states that if the ALJ included
the stated limitations, then the VE would have found plaintiff could not perform
any jobs, and the ALJ would have had to find him disabled.
Plaintiff states that five of his treating physicians issued opinions that he
was unable to work for various amounts of times during 2011 to 2014. (citing
Tr. 310, 437-438, 644, 883, 884, 889). He states, as discussed above, that
“Drs. Silversteen and Esham both issued more detailed Medical Statements
in 2014 stating that [he] would not be able to perform a full range of sedentary
work and would have limitations in sitting, standing and walking”, and that
“[b]oth physicians believed that [he] would be off task 25% [or more] of the
work day due to his pain. (Doc. 17 at 24) (citing Tr. 967, 1010 & Tr. 964-965,
No doubt that the VE admitted that if plaintiff missed two days per
month of unscheduled time at work due to illness, it would not be accepted by
an employer and would result in his termination. The VE also stated that if an
individual was off task 25% or more during a workday, there would be no jobs
that such a person could perform. She also indicated that a 15% reduction in
productivity due to impairments by a person would preclude that person from
working. (Tr. 71).
As the court in Antoniolo, 208 F.Supp.3d at 597, explained:
A hypothetical question must include all of the claimant’s “credibly
established limitations.” Rutherford v. Barnhart, 399 F.3d 546, 554
(3d Cir. 2005). Accordingly, a limitation that is supported by
medical evidence, and “otherwise uncontroverted in the record,”
must be included in the hypothetical. Zirnsak v. Colvin, 777 F.3d
607, 614 (3d Cir.2014). “However, where a limitation is supported
by medical evidence, but is opposed by other evidence in the
record, the ALJ has discretion to choose whether to include that
limitation in the hypothetical.” Id.
Residual functional capacity is the individual’s maximum remaining
ability to do sustained work activities in an ordinary work setting on a “regular
and continuing basis.” See Social Security Ruling 96–8p, 61 Fed.Reg. 34475.
A “regular and continuing basis” contemplates full-time employment and is
defined as eight hours a day, five days per week or other similar schedule.
The residual functional capacity assessment must include a discussion of the
individual’s abilities. Id.; 20 C.F.R. §404.1545; Hartranft, 181 F.3d at 359 n.1
(“‘Residual functional capacity’ is defined as that which an individual is still
able to do despite the limitations caused by his or her impairment(s).”).
In determining a plaintiff’s RFC, the ALJ must consider all relevant
evidence, including the medical evidence of record and the plaintiff’s
subjective complaints. 20 C.F.R. §404.1545(a). Also, the responsibility for
determining a plaintiff’s residual functional capacity at the hearing level is
reserved for the ALJ. 20 C.F.R. §404.1546. The final responsibility for
determining the RFC is reserved for the Commissioner, who will not give any
special significance to the source of another opinion on this issue. 20 C.F.R.
The “ALJ generally must accept evidence from a vocational expert, who,
based on the claimant’s age, education, work experience, and RFC, testifies
whether there are jobs for such a person in the national economy.” Morgan
v. Barnhart, 142 Fed.Appx. 716, 720-21 (4th Cir. 2005).
At first blush, as discussed above, substantial evidence supported the
ALJ’s evaluations regarding the credibility of plaintiff as well as the weight he
afforded the opinions of plaintiff’s treating physicians. Thus, the ALJ was not
required to accept the degrees of limitations stated by plaintiff and by his
treating physicians and, he was not required to rely on the VE’s testimony that
plaintiff was precluded from working if he had these limitations. As such
plaintiff’s final argument fails on this basis alone. See Antoniolo, 208
F.Supp.3d at 597 (“Because the ALJ did not err in giving little weight to the
opinions of plaintiff’s treating physicians, for the reasons explained above, the
hypothetical questions were not deficient for the reasons plaintiff claims.”)
Moreover, SSR 96-8p guides on how to properly assess a claimant’s
RFC, which is the claimant’s “ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis.” SSR 968p. The Ruling provides that the ALJ’s RFC determination requires “a
function-by-function assessment based upon all of the relevant evidence of
an individual’s ability to do work-related activities. By properly examining the
claimant’s specific functional abilities, the ALJ determines whether a claimant
can perform his past relevant work, what a claimant’s appropriate exertional
level is, and whether a claimant is capable of doing the full range of work at
the exertional level the ALJ finds he can perform.
The court finds that the ALJ thoroughly considered plaintiff’s statement
and testimony regarding his activities, his limitations, his pain and his
symptoms, as well as his medical records, the evaluations and opinions of
medical providers who examined him, in arriving at his RFC finding. (Tr. 31).
The ALJ consider the totality of plaintiff’s conditions and then adopted the
limitations he found supported by the entire record in his RFC finding and
applied them in his hypothetical question posed to the VE. The hypothetical
question which an ALJ poses to a VE is required to accurately reflect the
claimant’s impairments that are supported by the record. See Chrupcala v.
Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). Also, it is the ALJ’s sole
responsibility to determine a claimant’s RFC. See generally SSR 96-5p. The
Court concludes that the ALJ’s decisions assessing plaintiff’s ability to
function despite his various claimed impairments was supported by
For the reasons stated above, the court finds that the decision of the
Commissioner denying plaintiff’s application for DIB is supported by
substantial evidence. Thus, plaintiff's motion for summary judgment, (Doc.
16), is DENIED, and the defendant Commissioner’s motion for summary
judgment, (Doc. 18), is GRANTED. Accordingly, pursuant to 42 U.S.C.
§405(g), the decision of the Commissioner will be AFFIRMED and, plaintiff’s
APPEAL, (Doc. 1), will be DENIED. An appropriate order will be issued.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: February 8, 2018
O:\Mannion\shared\MEMORANDA - Delaware Cases\15-1189-01.wpd
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