Gardner v. Colvin

Filing 21

MEMORANDUM OPINION re pending motions. Signed by Judge Leonard P. Stark on 9/14/17. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KIMBERLY ANN GARDNER,
Plaintiff,
v.

Civ. No. 16-73-LPS

NANCY A. BERRYHILL1
Acting Commissioner of Social Security,
Defendant.
Vanessa L. Kassab, DOROSH OW, PASQUALE, KRAWITZ, SIEGEL & BHAYA, Wilmington,
,
DE.
Attorney for Plaintiff.

David C. Weiss, Acting United States Attorney, and Heather Benderson, Special Assistant
United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Wilmington, DE.
Of Counsel: Nora Koch, Acting Regional Chief Counsel, Region III, and Stephen M. Ball,
Assistant Regional Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, PA.
Attorneys for Defendant.

MEMORANDUM OPINION

September 14, 2017
Wilmington, Delaware

1

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

U.S. District Judge:
I.

INTRODUCTION
Plaintiff Kimberly Ann Gardner ("Plaintiff' or "Gardner") appeals the decision of

Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security ("the Commissioner"
or "Defendant"), denying Gardner's application for a period of disability and disability insurance
benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. 2 The Court has
jurisdiction pursuant to 42 U.S.C. § 405(g).
Pending before the Court are the parties' cross-motions for summary judgment. (D.I. 16,
19) Plaintiff seeks reversal and remand, either with instructions to award DIB or for further
proceedings, as well as attorney's fees. (D.I. 17 at 2) The Commissioner requests that the Court
affirm the decision denying Plaintiffs claim for DIB. (D.I. 20)
For the reasons stated below, the Court will deny Plaintiffs motion for summary
judgment and will grant Defendant's motion.

II.

Background
A.

Procedural History

On May 25, 2011, Gardner protectively filed a Title II application for a period of
disability and DIB, alleging a disability onset date of April 13, 2010. (D.I. 7 ("Transcript" and
hereinafter "Tr.") at 152-61) Gardner's claim was denied on August 31, 2011, and again upon

2

While Plaintiffs Complaint (D.I. 2) alleges that Plaintiff filed a claim for Supplemental
Security Income (''S SI") under Title XVI of the Social Security Act, Plaintiffs May 25, 2011
application to the Social Security Administration states, "I do not want to file for SSI," and
Plaintiffs Opening Brief in Support of Plaintiffs Motion for Summary Judgment (D.I. 17) does
not reference SSL (See Tr. at 154, 159; D.I. 17) Accordingly, the Court, like the parties,
addresses only Plaintiffs claim for DIB.
1

reconsideration on April 5, 2012. (Tr. at 83-86, 90-95) Following these denials, Gardner
requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. at 97) Gardner's hearing
took place on February 18, 2014, and both Gardner, who was represented by counsel, and an
impartial vocational expert ("VE") testified. (Tr. at 35-57, 57-60) On March 24, 2015, the ALJ
issued a decision in the case, finding that Gardner had two severe impairments - fibromyalgia
and a mood disorder - but was not disabled within the meaning of the Social Security Act and
could perform jobs that exist in significant numbers in the national economy. (Tr. at 18, 21, 26)
Gardner filed a request for review by the Appeals Council, which was denied on December 10,
2015, making the ALJ's decision the final decision of the Commissioner.· (Tr. at 1)
On February 10, 2016, Gardner filed a Complaint seeking judicial review of the
Commissioner's denial of benefits. (D.I. 2) Gardner moved for summary judgment on May 12,
2017. (D.I. 16) The Commissioner filed a cross-motion for summary judgment on June 12,
2017. (D.I. 19)

B.

Factual History

At the time of her alleged onset of disability, Gardner was 39 years old and defined as a
"younger individual" under 20 C.F.R. § 416.963. (Tr. at 26) She has a high school education
and past relevant work experience as an administrative assistant, data entry clerk, proofer, and
manager. (Tr. at 26) In seeking DIB, Gardner asserted she is unable to work because of bipolar
disorder, attention deficit disorder (ADD), and fibromyalgia- but not lumbar and cervical
discogenic disease (the "discogenic disease"). 3 (Tr. at 199)
3

Lumbar discogenic disease "refers to the gradual deterioration of the discs that separate
the large vertebrae in the lumbar spine (lower back)." Lumbar Discogenic Disease, Laser Spine
Institute (2017), https://www.laserspineinstitute.com/back_problems/spinal_anatomy/lumbar/.
2

1.

Medical History, Treatment, and Conditions
a.

Physical Health Evaluations and Treatment

From 2010 to 2013, Gardner received treatment for her discogenic disease and resulting
neck and back pain from multiple doctors. On September 1, 2010, Dr. Laura Manfield,
Gardner's primary care physician, determined Gardner had lumbar radiculopathy. 4 (Tr. at 342)
Gardner continued to see Dr. Manfield for this condition through 2011. (Tr. at 340, 339) During
her January 8, 2011 visit, Gardner was referred by Dr. Manfield to Dr. Eric Ratner. (Tr. at 338)
On March 8, 2011, after completing a comprehensive consultation, Dr. Ratner found Gardner
suffered from lower back and cervical neck pain and recommended epidural steroid injunctions.
(Tr. at 306-07)
Gardner's discogenic disease-related care then shifted to Dr. Randy C. Robinson.
Gardner began treatment with Dr. Robinson on May 13, 2011, at which time Dr. Robinson
diagnosed her with "significant" cervical arid thoracic disc disease and lumbar disc disease, but
noted that "medications do help her alleviate approximately 70% to 80% of the pain." (Tr. at
329) Gardner continued to visit Dr. Robinson regularly until April 27, 2012. (See Tr. at 329,
334-35, 910-11, 906-.07, 902, 899-900, 896-97) At each visit, Gardner's treatment plan remained
largely unaltered because Gardner reported "the medications ... helped] to get her through [the]

Similarly, cervical discogenic disease "describes the degeneration of the discs in your spine,
specifically in the cervical (upper) region." Cervical Discogenic Disease-An Overview, Laser
Spine Institute (2017),
https://www.laserspineins.titute.com/back_problems/spinal_anatomy/cervical/.
4

Radiculopathy is an "irritation of or injury to a nerve root (as from being compressed)
that typically causes pain, numbness, or weakness in the part of the body which is supplied with
nerves from that root." Radiculopathy, Merriam-Webster, https://www.merriamwebster.com/medical/radiculopathy.
3

activities of daily living." (Tr. at 330, 332, 911, 907, 903) In particular, during a June 22, 2012
visit, Dr. Robinson indicated Gardner experienced 50-60% relief from pain under her current
treatment plan. (Tr. at 893)
On March 6, 2012, Dr. Irwin Lifrak examined Gardner at the request of Disability
Determination Services. (Tr. at 425) Gardner reported experiencing "[pJain extending
throughout the entire vertebral column" that "var[ied] from relatively mild to quite severe." (Tr.
at 425) Dr. Lifrak diagnosed Gardner with"[ d]egenerative joint disease and possible disc
damage." (Tr. at 428)
Beginning in August 2012, Dr. Simon Galapo began treating Gardner for her discogenic
disease. Like Dr. Robinson, Dr. Galapo saw Gardner approximately every two months from
August 2012 to June 7, 2013. (See Tr. at 890, 887-88, 883, 878, 865, 860) At each visit, Dr.
Galapo continued Gardner on Roxicodone for her pain because Gardner expressed that the
medicine "helped] to a significant degree, without side effect or aberrant behavior." (Tr. at 890,
888, 883-84, 879, 866, 861) In particular, on February 15, 2013, Gardner told Dr. Galapo "the
medication continues to work quite well for her pain, allowing her to do her activities of daily
living." (Tr. at 878)
On April 4, 2013, Dr. Lisa Lescheck-Gelman of Christiana Care Neurology Specialists
found Gardner had "constant" but "stable" cervicalgia. (Tr. at 779-80)
Over the course of her treatment, Gardner underwent a number of diagnostic tests. An
MRI of her cervical spine from October 4, 2010 revealed "very early degenerative disc disease
throughout but no single focal level of significant damage." (Tr. at 295) An MRI from June 22,
2010 showed "degenerative cervical spondylosis," but no spinal narrowing or disc herniation.

4

(Tr at. 286) On September 10, 2010, Gardner's lumbar spine MRI demonstrated a "straightening
of the normal lordotic curvature, compatible with muscle spasm" and "broad-based disk bulges"
at two locations. (Tr. at 289) A November 8, 2010 cervical spin CT scan revealed "osteophyte
and disc protrusion" at two locations as well as degenerative arthritis. (Tr. at 291) Finally, an
October 13, 2012 cervical spine MRI showed "mild degenerative discogenic disease of the
cervical spine." (Tr. at 754)

b.

Mental Health Evaluations and Treatment

In April 2010, Gardner left her long-time position at the Yellow Book Company and
immediately entered inpatient psychiatric treatment programs at Dover Behavioral Health and
Fairmount Institute, followed by an outpatient treatment program at MeadowWood. (Tr. at 41,
243, 248, 277) In early 2012, Gardner was admitted to Rockford Center for a one-day
hospitalization. (Tr. at 446)
Gardner's most consistent mental health treatment has been with Drs. Cindy Elko and
Kimberly Valentine. (See Tr. 442-44, 453-553, 581-746, 788-825) On May 21, 2013, Dr. Elko
diagnosed Gardner with bipolar disorder and generalized anxiety. (Tr. at 443-44) On August 8,
2012, Dr. Elko conducted a psychiatric diagnostic interview exam. (Tr. at 441-54) Dr. Elko
uniformly marked Gardner as "unable to meet competitive standards" in all categories related to
unskilled, semi-skilled, or skilled work. (Tr. at 743-44) She also indicated Gardner had
"marked" limitations in many categories of functional living and expected Gardner's
impairments would cause her to be absent from work four days per month (the highest option
given). (Tr. at 745-46)
Throughout 2013, Drs. Elko and Valentine's treatment notes indicate Gardner struggled
5

with bipolar disorder, anxiety, and, at times, hallucinations. (See, e.g., Tr. at 661, 687-88, 734)
However, the progress notes also state Gardner was "alert," "presented herself in a neatly dressed
and well-groomed fashion," had good eye contact, and was "cooperative and interested~" (Tr. at
582, 586, 590, 593, 599, 601, 608, 613, 617, 626, 630, 634, 638, 651, 655, 667) Similar progress
notes were made into the winter of 2014. (Tr. at 723, 736-38)

2.

The Administrative Hearing
a.

Gardner's Testimony

At the hearing, Gardner testified about her education and work history. (Tr. at 36-38)
She testified that she stopped working, in part, due to her declining mental health and has not
recently applied for work. (Tr. at 39-41) She also testified that she can sit for 20-30 minutes at a
time and can lift 30 pounds, citing picking up her 8-year-old daughter as an example of her
ability to lift. (Tr. at 50-51)
Gardner testified that she lives in an apartment with her 8-year-old daughter and 41-yearold sister. (Tr. at 35-36) Gardner does chores around the house and takes care of her daughter
with the help of her sister. (Tr. at 47) Gardner testified that she drives at least once a day,
primarily to the methadone clinic, as well as to doctors' appointments, the grocery store, and
church. (Tr. at 4 7) Plaintiff testified that she socializes with her family multiple times a week
and sees people at church, hut has no hobbies or friends. (Tr. at 47-48, 52-53)
As to her mental health, Gardner testified that she has difficulty with short-term memory
and anger management. (Tr. at 41) She further testified that she has bipolar disorder and
. experiences panic attacks, hallucinations, and severe mood swings. (Tr. at 41-42, 54-55) She
testified that she struggles to pay attention and lacks motivation for self-hygiene. (Tr. at 56-57)

6

Finally, Gardner testified that has been in therapy with Dr. Elko for a number of years, sees Dr.
Valentine as her psychiatrist, and .offered a list of her current medications. (Tr. at 43, 45-46)
As to her physical health, Gardner testified that she experiences tremors, has difficulty
gripping items, and struggles to sleep. (Tr. at 55-56) Gardner did not bring up-nor did her
attorney question her about - any back or neck pain.

b.

Vocational Expert's Testimony

Samuel Edelmann, a VE, testified that Gardner's past relevant work experience included
"sedentary and skilled," "sedentary and semi-skilled," and "light and skilled" work. (Tr. at 58)
The ALJ asked the VE to "[a]ssume that [Gardner is] able to perform the full range of
light work with the following additional limitations:" "postural activity would be occasional
only," "frequent but not constant or repetitive handling, fingering, and feeling," "limited to
unskilled workat the SVP 1 to 2 levels," "no more than superficial contract with the public and
co-workers," and a "stable" work environment. (Tr. at 58-59)
Based on that hypothetical, the VE testified Gardner would not be able to perform any of
her past relevant work. (Tr. at 59) However, the VE testified that there would be a"limited
range of cashiering work," as well as work as a toll collector and parking lot attendant, available
for a person with the listed limitations. (Tr. at 59) Finally, the VE testified that an inability to
maintain regular attendance at work due to psychiatric symptoms would preclude all work. (Tr.
at 59) Upon cross-examination by Gardner's attorney, the VE testified that there would be no
jobs available for a person who is unable to remember and carry out simple instructions for 20%
or more of the workday. (Tr. at 60)

3.

The ALJ's Findings
7

On March 24, 2014, the ALJ issued the following findings:
1.

The claimant meets the insured status requirements
of the Social Security Act through December 31,
201S (Exhibits 3D, lE, 4E, and 6E).

2.

The claimant has not engaged in substantial gainful
activity since April 13, 2010, the alleged onset date
(Exhibits 3D, 4D, SD, 6D, 7D, 8D, 2E, SE, 7E, and
hearing testimony) (20 CFR 404.1S71 et seq.).

3.

The claimant has the following severe impairments:
fibromyalgia (FMS) (Exhibit 32F); and mood
disorder (Exhibit 22F) (20 CFR 404.1S20(c)). 5

4.

The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 404.1S20(d), 404.1S2S and 404.1S26).

S.

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform the full range of light
work as defined 20 C.F.R. 404.1S67(b), except for
the following: the claimant can perform only
occasional postural activities; the claimant needs to
be limited to unskilled work at the specific
vocational profile (SVP) levels 1 to 2, with only
superficial contact with the public and coworkers, in
. a stable work environment, where there are only
occasional changes in the workplace; and the
claimant can perform :frequent, not constant or
repetitive, handling I fingering I feeling.

Q.

The claimant is unable to perform any past relevant
work (20 CFR 404.1 S6S).

7.

The claimant was born on October lS, 1970, and the
claimant was 39 years old, which is defined as a

5

Accordingly, the ALJ found that "all other impairments alleged and found in the record
are nonsevere." (Tr. at 18)
8

younger individual age 18-49, on April 13, 2010,
the alleged disability onset date (Exhibit 1E) (20
CPR 404.1563).
8.

The claimant has a least a high school· education
(12th grade, regular classes), and the claimant is
able to communicate in English (Exhibit 2E) (20
CPR 404.1564).

9.

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

10.

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

11.

The claimant has not been under a disability, as
defined by the Social Security Act, from April 13,
2010, through the date of this decision (20 CPR
404.1520(g) ).

(Tr. at 18-27)

III.

Legal Standards
A.

Motion for Summary Judgment

"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
n. 10 (1986). A party asserting that a fact cannot be - or, alternatively, is - genuinely disputed

9

must support its assertion either by citing to "particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for the purposes of the motions only), admissions, interrogatory answers,
or other materials," or by "showing that the materials cited do not establish the absence or
. presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact." Fed. R. Civ. P. 56(c)(l)(A)-(B). If the moving party has carried its burden, the
nonmovant must then "come forward with specific facts showing that there is a genuine issue for
trial." Matsushita, 475 U.S. at 587 (internal quotations omitted). The Court will "draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000).
To defeat a motion for summary judgment, the non-moving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586-87; see also Podobnik v. U.S. Postal Service, 409 F.3d 584, 594 (3d Cir. 2005)
(stating that party opposing summary judgment "must present more than just bare assertions,
conclusory allegations or suspicions to show the existence of a genuine issue") (internal
quotations omitted). However, the "mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment;" a factual
dispute is genuine only where "the evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "If the
evidence is merely colorable, or is not significantly probative, summary judgment may be
granted." Id. at 249-50 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S.
10

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

B.

Review of the ALJ's Findings

The Court must uphold the Commissioner's factual decisions if they are supported by
"substantial evidence." See 42 U.S.C. §§ 405(g), 1383(c)(3); see also Monsour Med. Ctr. v.

Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). "Substantial evidence" means less than a
preponderance of the evidence but more than a mere scintilla of evidence. See Rutherford v.

Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). As the United States Supreme Court has noted,
substantial evidence "does not mean a large or significant amount of evidence, but rather such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Pierce v. Underwood, 487 U.S. 552, 565 (1988).
In determining whether substantial evidence supports the Commissioner's findings, the

Court may not undertake a de novo review of the Commissioner's decision and may not re-weigh
the evidence ofrecord. See Monsour, 806 F.2d at 1190-91. The Court's review is limited to the.
evidence that was actually presented to the ALJ. See Matthews v. Apfel, 239 F.3d 589, 593...;95
(3d Cir. 2001). However, evidence that was not submitted to the ALJ can be considered by the
Appeals Council or the District Court as a basis for remanding the matter to the Commissioner
for further proceedings, pursuant to the sixth sentence of 42 U.S.C. § 405(g). See· Matthews, 239
F.3d at 592 .. "Credibility determinations are the province of the ALJ and only should be
disturbed on review if not supported by substantial evidence." Gonzalez v. Astrue, 537 F. Supp.
2d 644, 657 (D. Del. 2008) (internal quotations omitted).

11

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., that offered by treating physicians) - or if it really
constitutes not evidence but mere conclusion." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.
1983). Thus, the inquiry is not whether the Court would have made the same determination but,
rather, whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d
1211, 1213 (3d Cir. 1988). Even ifthe reviewing Court would have decided the case differently,
it must give deference to the ALJ and affirm the Commissioner's decision if it is supported by
substantial evidence. See Monsour, 806 F.2d at 1190-91.
IV.

DISCUSSION

A.

Disability Determination Process

Title II of the Social Security Act, 42 U.S.C. § 423(a)(l)(D), "provides for the payment of
insurance benefits to persons who have contributed to the program and who suffer from a
physical or mental disability." Bowen v. Yuckert, 482 U.S. 137, 140 (1987). A "disability" is
defined for purposes of DIB as the inability to do any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12 months.

See 42 U.S.C. § 423(d)(l)(A). A claimant is disabled "only if his physical or mental impairment
or impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial

12

gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); see also

Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
In determining whether a person is disabled, the Commis.sioner is required to perform a

five-step sequential analysis. See 20 C.F.R. §§ 404.1520, 416.920; Plummer v. Apfel, 186 F.3d
422, 427-28 (3d Cir. 1999). If a finding of disability or nondisability can be made at any point in
the sequential process, the Commissioner will not review the claim further. See 20 C.F .R.
§§ 404.1520(a)(4), 416.920(a)(4).
At step one, the Commissioner must determine whether the claimant is engaged in any
substantial gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I) (mandating
finding of nondisability when claimant is engaged in substantial gainful activity). If the claimant
is not engaged in substantial gainful activity, step two requires the Commissioner to determine
whether the claimant is suffering from a severe impairment or a combination of impairments that
is severe. See 20 C.F.R. §§ 404.1520(a)(4)(ii) (mandating finding ofnondisabilitywhen
claimant's impairments are not severe), 416.920(a)(4)(ii). If the claimant's impairments are
severe, the Commissioner, at step three, compares the claimant's impairments to a list of
impairments that are presumed severe enough to preclude any gainful work. See 20 C.F .R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Plummer, 186 F.3d at 428. When a claimant's
impairment or its equivalent matches an impairment in the listing, the claimant is presumed
disabled. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If a claimant's impairment,
either singly or in combination, fails to meet or medically equal any listing, the analysis
continues to steps four and five. See 20C.F.R. §§ 404.1520(e), 416.920(e).

13

At step four, the Commissioner determines whether the claimant retains the residual
functional capacity ("RFC") to perform his past relevant work. See 20 .C.F .R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv) (stating that claimant is not disabled if claimant is able to
return to past relevant work); Plummer, 186 F.3d at 428. A claimant's RFC is "that which [the]
individual is still able to do despite the limitations caused by his or her impairment(s)." Fargnoli
v.. Halter, 247 F.3d 34, 40 (3d Cir. 2001). "The claimant bears the burden of demonstrating an

inability to return to her past relevant work.'' Plummer, 186 F.3d at 428.
If the claimant is unable to return to her past relevant work, step five requires the

Commissioner to determine whether the claimant's impairments preclude her from adjusting to
any other available work. See 20 C.F.R. §§ 404.1520(g), 416.920(g) (mandating finding of
nondisabilitywhen claimant can adjust to other work); Plummer, 186 F.3d at 428. At this last
step, the burden is on the Commissioner to show that the claimant is capable of performing other
available work before denying disability benefits. See Plummer, 186 F.3d at 428. In other
words, the Commissioner must prove that "there are other jobs existing in significant numbers in
the national economy which the claimant can perform, consistent with her medical impairments,
age, education, past work experience, and [RFC]." Id. In making this determination, the ALJ
must analyze the cumulative effect of all of the claimant's impairments. See id. At this step, the
ALJ often seeks the assistance of a VE. See id.
B.

Issues Raised on Appeal

Gardner raises three arguments on appeal: (1) the ALJ improperly classified Gardner's
discogenic disease as non-severe and failed to consider the effect of this disease on Gardner's
RFC; (2) the ALJ erred by making two contradictory findings concerning Plaintiffs RFC; and
14

(3) the Commissioner failed to meet her burden to identify jobs in the national economy that
Plaintiff can perform.
1.

Severity of Gardner's Lumbar and Cervical Discogenic Disease

Gardner contends that the ALJ committed legal error by not classifying her discogenic
disea~e

as a severe impairment and not considering this impairment in finding Plaintiff non-

disabled. (D.I 17 at 13) Specifically, Gardner argues that her multi-year diagnostic and
treatment history for discogenic disease shows the ALJ erred by "summarily" finding "all other
impairments alleged and found in the record [to be] nonsevere." (D.I. 17 at 11-12) The Court
disagrees. 6
While Plaintiff is correct that the record is "replete" with references to her discogenic
disease, those references, which the ALJ considered, indicate that Gardner's pain from the
discogenic disease was alleviated and managed by medication. (Tr. at 22-23; see also Tr. at 330,
332, 911, 907, 903 (repeatedly stating Gardner's medication would remain unchanged because
Gardner stated it helped her perform activities of daily life); Tr. at 890, 888, 883-84, 879, 866,
861) Specifically, the ALJ considered the treatment records of Dr. Robinson and Dr. Galapo, the
doctors who most consistently treated Gardner for her discogenic disease, for a combined total of
three years. (See Tr. at 22-23) The ALJ was permitted to conclude that these records indicate
Gardner continued on her prescribed medication because she found "the medication does help to
a significant degree, without side effect or aberrant behavior." (Tr. at 22-23) Nor is the Court
6

The Commissioner is correct that, in her brief, Plaintiff "neglects to mention that she has
never alleged a cervical or lumbar spinal impairment - not in her DIB application, not in any of
her contacts with Agency representatives, and not even at her hearing .... " (D.I. 20 at 9)
Nonetheless, just as the Commissioner has done, the Court will address Plaintiff's argument as to
whether her discogenic disease is severe.
15

persuaded that the ALJ rejected Dr. Lifrak' s diagnosis, as the ALJ repeatedly referenced
Gardner's discogenic disease in his decision. (Tr. at 22-23) In short, substantial evidence exists
to support the ALJ' s finding that Gardner's discogenic disease is not a severe impairment.
Gardner further

co~tends

that the ALJ erred by failing to consider the effects het

discogenic disease on her abilityto work. (D.I. 17 at 13) Pursuant to 20 C.F.R. §§ 404.1529 and
416.929, the Commissioner must consider all "symptoms, including pain" in the disability
determination. Statements of pain alone are not enough to establish a disability; the claimant
must also present objective medical evidence to show that the medical impairment "could
reasonably be expected to produce the pain or other symptoms alleged." 20 C.F.R. §§
404.1529(a); 416.929(a); SSR 96-7p. Once the Commissioner has determined that is the case,
then the Commissioner must evaluate the intensity, persistence, and limiting effects of the
plaintiffs symptoms to determine how the pain inhibits the claimant's capacity for work. See 20
C.F.R. §§ 404.1529(c)(l), 416.929(c)(l); SSR 96-7p.

In determining the limits on the claimant's capacity for work, the Commissioner will
consider the entire case record, including evidence from the. treating, examining, and consulting
physicians, observations from agency employees, and other factors such as the claimant's daily
activities, descriptions of the pain, precipitating and aggravating factors, type, dosage,
effectiveness, and side effects of medications, treatment other than medication, and other
measures used to relieve the pain. See 20 C.F.R. §§ 404.1529(c), 416.929(c); SSR 96-7p.
Plaintiffs contention that the ALJ failed to consider the effect of her discogenic disease is
not supported by the record. As Plaintiff herself notes, the ALJ "specifically references Ms.
Gardner's diagnosis oflumbar and cervical discogenic disease seven times in the 12-page

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decision." (D.I. 17 at 12) As explained above, the ALJ referenced Drs. Robinson and Galapo's.
treatment notes, which uniformly report that Plaintiffs pain was responsive to medication,
allowing Plaintiff to carry on the activities of daily living without side effects. (Tr. at 22-23)
The ALJ further considered medical records demonstrating Gardner presented with "significant
discogenic disease" -records that also stated she experienced 50-60% relief through medication.
(Tr. at 22-23) Accordingly, the ALJ did consider the effects of Plaintiffs discogenic disease and
substantial evidence exists to support the ALJ' s evaluation of Plaintiffs capacity for work.

2.

RFC Findings

Next, Gardner argues that the ALJ committed legal error at step 5 of the disability
determination by making two contradictory findings concerning Gardner's RFC: (i) that Gardner
"has the residual functional capacity to perform the full range of light work as defined in 20 CFR
404.1567(b)," and (ii) that there would be limitations on Gardner's ability to perform light work.
(D.I. 17 at 2) (emphasis added) According to Gardner, these contradictory statements "cannot be
reconciled" and compel a remand. (D.I. 17 at 2)
Plaintiffs characterization of the ALJ' s finding is incorrect. 7 In reality, the ALJ made
only one pertinent finding: that Gardner "has the residual functional capacity to perform the full
range oflight work as defined in 20 CFR 404.1567(b), except for the following" limitations. (Tr.
at 21) (emphasis added) This finding is not contradictory, and requires no guessing as to what
the ALJ meant. It is also supported by substantial evidence. Therefore, Plaintiffs second
challenge fails.

7

It is not entirely clear whether Plaintiffs second argument pertains to the ALJ' s findings
in his decision or the hypothetical he posed to the VE. Insofar as Plaintiffs argument is based on
the ALJ's hypothetical to the VE, Plaintiffs challenge is taken up below.

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3.

Establishing the Availability of Other Work in the National Economy

Finally, Gardner argues that the Commissioner failed to meet her burden of identifying
jobs Gardner can perform that exist in significant numbers in the national economy. She
contends that the hypothetical posed to the VE did not incorporate Gardner's discogenic disease
and included the ALJ's "contradictory findings" discussed above. (D.I. 17 at 14) Hence, in
Gardner's view, the VE' s response to the flawed hypothetical cannot constitute substantial
evidence.
"Limitations that are medically supported and otherwise uncontroverted in the record, but
that are not included in the hypothetical question posed to the expert, preclude reliance on the
expert's response." Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005) (internal citations
omitted). However, "[l]imitations that are medically supported but are also contradicted by other
evidence in the record may or may not be found credible - the ALJ can choose to credit portions
of the existing evidence, but cannot reject evidence for no reason or for the wrong reason." Id.
(internal quotations omitted).
Here, Gardner's diagnosis of discogenic disease is medically-supported, but any
limitation based on that disease is contradicted by other evidence in the record. As has been
repeatedly noted, both by this Court and the ALJ, Gardner's treating physicians found Gardner's
discogenic disease to respond well to medication, which allowed Gardner to carry on the
activities of daily life. (Tr. at 22-23; see also Tr. at 330, 332, 911, 907, 903, 890, 888, 883-84,
879, 866, 861) Again, Gardner did not testify that her neck and back pain limit her abilities, and
her treatment history, while making clear that she has discogenic disease, makes equally clear
that her resulting pain can be managed with medication .. Therefore, substantial evidence exists to

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support the ALJ' s determination to discount any limitation based on Gardner's discogenic
disease in the hypothetical posed to the VE. Accordingly, the VE' s testimony constituted
substantial evidence on which the ALJ could rely in making his determination that jobs exist in
significant numbers in the national economy that Gardner can perform.
The Court further disagrees with Plaintiffs contention that the ALJ' s hypothetical
contained contradictory statements. The ALJ asked the VE to "[a]ssume that [Gardner is] able to
perform the full range of light work with the following additional limitations." (Tr. at 58)
(emphasis added) The ALJ then went on to list the limitations he wanted the VE to consider.
(Tr. at 58-59) The ALJ's statement, like his finding in the decision, was qualified, not
contradictory. Additionally, there is no evidence that the VE was confused by the ALJ's question
or otherwise struggled to understand the limitations he was to consider in answering the question.

See Haward v. Colvin, 2015 WL 3794 773, at *10 (D. Del. 2015) (rejecting plaintiffs challenge
to adequacy of ALJ's hypothetical where there was no evidence of VE confusion).

V.

CONCLUSION
For the foregoing reasons, neither an award ofDIB nor a remand is warranted. The Court

will grant Defendant's motion for summary judgment and deny Plaintiffs motion for summary
judgment. An appropriate Order follows.

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