Rickabaugh v. Colvin

Filing 16

MEMORANDUM OPINION re pending motions. Signed by Judge Leonard P. Stark on 9/22/17. (ntl)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KEITH D. RICKABAUGH,
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Plaintiff,

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v.

fiv. No. 16-225-LPS

NANCY A. BERRYHILL1
Acting Commissioner of Social Security,
Defendant.

Oderah C. Nwaeze, DUANE MORRIS LLP, Wilmitjgton, DE
Of Counsel: Eddy Pierre Pierre, LAW OFFICES OF HARRY J. BINDER AND CHARLES E.
BINDER, P.C., New York, NY
Attorneys for Plaintiff

David C. Weiss, Acting United States Attorney, and Heather Benderson, Special Assistant
United States Attorney, UNITED STATES ATTOIDNEY'S OFFICE, Wilmington, DE
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Of Counsel: Nora Koch,. Acting Regional Chief Counsel, Region III and Margaret Reed,
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Assistant Regional Counsel, of the Social Security Administration, Philadelphia, PA
Attorneys for Defendant

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MEMORANDUM OPINION

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September 22, 2017
Wilmington, Delaware
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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
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Federal Rule of Civil Procedure 25(d), Nancy A. Beitcyhill is substituted for former
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Commissioner Carolyn W. Colvin as defendant in th~s suit.

I.

INTRODUCTION
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Plaintiff Keith Rickabaugh ("Plaintiff' or "Rickabaugh") appeals the decision of
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Defendant Nancy A. Berryhill, the Acting Commissipner of Social Security ("Defendant" or "the
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Commissioner"), denying his claim for Social Sec4ty disability insurance benefits ("DIB") and
supplemental security income ("SSI") under Title. II kd Title XVI, respectively, of the Social
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Security Act, 42 U.S.C. §§ 401-403, 1381-1383f. Tqe Court has jurisdiction pursuant to 42
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u.s.c. § 405(g).

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. Before the Court are the parties'

cross-motio~s for summary judgment.

(D.I. 12, 14)

Rickabaugh seeks reversal of the Commissioner's d+ision or remand to the Commissioner for
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proper consideration of the record. (D .I. 13 at 25) The Commissioner requests that the Court
affirm the decision denying Rickabaugh's claim for DIB and SSL (D.I. 15 at 17)
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For the reasons stated below, the Court will qeny Plaintiffs motion for summary
judgment and grant Defendant's motion.
II.

BACKGROUND

A.

Procedural History

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On September, 7, 2010 and September 22, 2010, Rickabaugh filed Title II and Title XVI
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applications for DIB and SSI, respectively, alleging <!lisability starting on July 12, 2010. (D.I. 6
("Transcript" and hereinafter "Tr.") at 342, 344) Ridkabaugh's claims were denied on December
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7, 2010 and again denied upon reconsideration on Jtjly 13, 2011. (Tr. at 230, 238) Rickabaugh
then requested a hearing before the Administrative Law Judge ("ALJ" ), pursuant to 20 C.F.R.

§ 416.1429. (Tr. at 244) The hearing was held on J~ly 25, 2012, and included testimony from
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Rickabaugh and a vocational expert ("VE"). (Tr. at 62-63) On August 22, 2012, the ALJ found
that Rickabaugh had severe impairments of obesity, 1,Ilild lumbar spine degenerative disc disease,
alcoholism, depression, anxiety, and schizophrenia blt was not disabled within the meaning of
the Social Security Act and retained residual fiinctioL capacity ("RFC'') to perform light work.
(Tr. at 206, 208) Rickabaugh requested a review oqb.e decision on September 7, 2012, and the
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Appeals Council remanded the case back to the ALJ :On September 12, 2013. (Tr. at 224, 288)
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Another hearing was held on May 6, 2014, again involving testimony from Rickabaugh and a
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VE. (Tr. at 104-05) On August 8, 2014, the ALJ isshed a decision with the same findings as had
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been reached after the previous hearing. (Tr. at 37, ~3, 45) Rickabaugh requested another
review of the decision on September 4, 2014, which ~as denied on February 4, 2016, making the
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ALJ's decision the final decision of the Commissioner. (Tr. at 1, 34)
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On April 4, 2016, Rickabaugh filed suit in

th~ District of Delaware seeking judicial

review of the Commissioner's denial of benefits. (Ske D.I. 1) The parties completed briefing on
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their cross-motions for summary judgment on Noverhber 29, 2016. (See D.I. 13, 15)

B.

Factual History

When he applied for DIB and SSI, Rickabaugh was 33 years-old, had experienced the
onset of his purported disability at age 32, and was defined as a younger individual under 20
C.F .R. § 416.963. (Tr. at 144) He has a ninth grade Ieducation and worked for short periods as a
fast food worker, a cashier, a dishwasher, a store lab9rer/stocker, a pizza deliverer, a laundry
laborer, a fork lift driver, an overhead crane operatoi, and a material handler. (Tr. at 110, 133)
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Rickabaugh asserted he is unable to work because of mental illness and a back injury. 2 (Tr. at
41)
1.

Mental Health History, Evaluations, and Treatment

On July 22, 2010, Rickabaugh saw Toni Ballas-Rowe, L.C.S.W., for his mental health
problems. (Tr. at 474) At the initial visit, Ballas-Rojwe observed that Rickabaugh was
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cooperative; made eye contact; had auditory and visual hallucinations, delusions, impaired
concentration and judgment; and appeared anxious, agitated, and paranoid. (Tr. at 4 78-79) She
diagnosed Rickabaugh with paranoid schizophrenia fnd rated his Global Assessment Functioning
("GAF") score at 30, indicating severe symptoms. (Tr. at 4 79)
On August 3, 2010, Rickabaugh started seeing nurse practitioner Heather Martin for
treatment of his mental illness. (Tr. at 450) She determined that Rickabaugh was alert,
cooperative, had normal eye contact, suffered from h;allucinations and delusions, and had
. impaired concentration, judgment, impulse control, memory, and insight. (Tr. at 454) Nurse
Martin diagnosed Rickabaugh with paranoid schizophrenia and rated his GAF score at 60,
indicating mild to moderate symptoms. (Tr. at 455) ·She prescribed Zyprexa and Prozac for his
schizophrenia. (Tr. at 455)
Rickabaugh continued treatment with Nurse Martin throughout the rest of2010. (Tr. at
448-49) From September to December 2010, Nurse Martin noted that Rickabaugh experienced
fewer auditory and visual hallucinations and that his mood, insight, and judgment gradually
improved to an average state. (Tr. at 448) Around the same time, Rickabaugh also continued

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Rickabaugh does not dispute the ALJ' s finding that his back injury does not amount to a
disability under the Social Security Act. (Tr. at 43; I>.I. 13 at 2 n.4)
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meeting with Ballas-Rowe. (Tr. at 514-20) Ballas-Rowe likewise observed in September and
October 2010 that Rickabaugh showed better concentration, better motivation, and seemed to be
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managing his delusions and hallucinations. (Tr. at 4~4-85) By December 2010, Rickabaugh's
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hallucinations were controlled although he continued to drink alcohol daily and to have delusions
and anxiety. (Tr. at 519)
On January 3, 2011, however, Nurse Martin qbserved that Rickabaugh had depression,
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auditory hallucinations, and paranoia (Tr. at 540) Jallas-Rowe noted the same. (Tr. at 552)
On February 2, 2011, Ballas-Rowe completed a meJal impairment evaluation form for
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Rickabaugh, recorded a GAF score of 30, and opined that he was moderately limited in his

ability to remember locations, carry out work-like prLedures and simple one or two step
instructions, interact with the general public, be awje of hazards and take precautions, and travel
to unfamiliar places or use public transportation. (TJ. at 525-27) She also opined that

Rickabaugh was markedly limited in his ability to Jderstand and remember detailed

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instructions, maintain attention and concentration foJ extended periods, sustain an ordinary
.routine without supervision, work with or near othJ without being distracted by them, make
simple work related decisiolls, accept criticism and rbspond appropriately to supervisors, get
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ong with coworkers without d.
1stractmg them, mamtam appropnate socia1 behav1or, respond

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appropriately to changes in the work setting, and set tealistic goals or make plans independently.
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(Tr. at 525-27, 582-83)

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In March 2011, Ballas-Rowe observed that despite the ongoing hallucinations and
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delusions, medication made Rickabaugh calmer and [ess anxious. (Tr. at 554) Nurse Martin
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. continued treatment with Zyprexa, and in April 20111, although Rickabaugh still exhibited

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impaired insight and judgment, his hallucinations we~e controlled and he reported he felt better
than he had in a long time. (Tr. at 539)
On April 12, 2011, Nurse Martin completed a mental impairment evaluation for
Rickabaugh, diagnosing him with paranoid schizopJenia and assigning him a GAF score of 55.
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(Tr. at 530) She opined that Rickabaugh was markedly limited in the following: ability to sustain
an ordinary routine without supervision, work with ol near others without being distracted by
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them, make simple work-related decisions, complete Ia normal workweek without psychological

symptoms, appropriately interact with the general public, accept criticism and-respond
appropriately to supervisors, get along with coworkjs without distracting them, respond
appropriately to changes in the work setting, maintj socially appropriate behavior, be aware of
hazards and take precautions, travel to unfamiliar plLs or use public transportation, and set
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realistic goals or make plans independently. (Tr. at 133-35) He was moderately limited in:

ability to remember locations and work-like procedures, understand and remember detailed

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mstruct10ns, mamtam attent10n and concentrat10n ioli extended peno ds, per1orm with' a
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schedule, maintain punctuality and attendance, and

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simple questions or request assistance.

(Tr. at 533-35) Nurse Martin assessed mild limitatils in ability to understand, remember, and
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carry out one or two step or detailed instructions. (Tt. at 533-35)
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On May 9, 2011, Nurse Martin continued tre'ittment, noting that Rickabaugh was alert,
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calm, and cooperative with normal mood, affect, instght, and judgment. (Tr. at 53 8) In June
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2011, however, Nurse Martin observed that Rickabaugh complained of ongoing hallucinations.
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(Tr. at 559) Ballas-Rowe also noted that Rickabaugn had hallucinations and that they prevented
him from working. (Tr. at 556) In July 2011

thoug~, she noted that treatment controlled the
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· ·hallucinations. (Tr. at 578) By September 2011, Rickabaugh reported to Ballas-Rowe that he
was having hallucinations and delusions only once o~ twice a month. (Tr. at 578)

In March 2012, Rickabaugh reported to BallJ-Rowe that he was depressed, and in April
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2012, he reported auditory hallucinations when he missed his treatment. (Tr. at 587, 589) By the
next month, however, Rickabaugh's depression arid Jnxiety again improved and he denied
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having hallucinations. (Tr. at 608)

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On May 3, 2012, Nurse Martin and David KaJlkstein, M.D., Nurse Martin's supervisor,
signed a letter, agreeing with Nurse .Martin's April
(Tr. at 590-91)

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2011 mental impairment evaluation form.

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Throughout the rest of2012, Rickabaugh continued seeing Ballas-Rowe. (Tr. at 608-11,

618~19) In October 2012, she noted that Rickabau~ was less depressed, drinking less alcohol, .
and showed improved concentration. (Tr. at 616) Still, in November 2012, Ballas-Rowe
recorded that Rickabaugh' s delusions, hallucinationsl, paranoia, depression, and anxiety
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prevented him from working. (Tr. at 617)
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From January 2013 to April 2013, Rickabaugh reported to Ballas-Rowe that he continued
to experience occasional hallucinations but was mosly stable with his sleep, anxiety, and
depression. (Tr. at 620-22) In June 2013, Rickabaulh stopped taking his medications. (Tr. at
623) By November 2013, his psychotic symptoms rLed. (Tr. at 624) Ballas-Rowe then
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referred Rickabaugh to nurse practitioner Ilmoma C~uks. (Tr. at 636)
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On November 21, 2013, Rickabaugh establis~ed care with Nurse Chuks. (Tr. at 636)
She evaluated Rickabaugh and found he had an anxilus mood, blunt affect, poor insight, and
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hallucinations, diagnosing him with schizophrenia. (Tr. at 640-41) She assessed his GAF score
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at 60 and prescribed Abilify for treatment. (Tr. at 64:1)
On January 16, 2014, Nurse Chuks noted that Rickabaugh was feeling much better but
still occasionally had hallucinations. (Tr. at

63~) ol January 27, 2014, Ballas-Rowe wrote that
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Rickabaugh's hallucinations and delusions were under control. (Tr. at 626) Similarly, Nurse
Chuks noted the improvement in Rickabaugh (with fewer episodes of hallucinations, until May
2014). (Tr. at 629-32)
In May 2014, Rickabaugh stopped his medication, and Nurse Chuks observed that

Rickabaugh again had depression, anxiety, no motiJtion, paranoia, and hallucinations. (Tr. at
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629)

2.

Medical Source Opinions
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a.

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Examining Consultant
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Donna Lentine, Ph.D., conducted a consultat~ve mental health evaluation at the request of
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the Social Security Administration on November 11,:2010. (Tr. at 498) Dr. Lentine noted that
Rickabaugh had poor eye contact; irrational

though~; hallucinations; poorsleep; anxiety;
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tangential thought process with poor concentration and focus; mild restlessness; feelings of anger
and annoyance; negativity; and social isolation. (Tr. :at 498-500) She assigned a GAF score of
3 5 and diagnosed him with paranoid schizophrenia, intermittent explosive disorder, and
alcoholism in partial remission. (Tr. at 502) She coL!uded that Rickabaugh's ability to cope

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with ordinary work pressure was severely impaired; is ability to relate to others, carry out
instructions under ordinary supervision, and sustain performance and attendance in a normal
work setting was moderately to severely impaired; aJ?.d his ability to perform routine, repetitive
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tasks under ordinary supervision, and understand siniple instructions, was moderately impaired.
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(Tr. at 501-03)

b.

Non-examining Cons*1tants

Carlene Tucker-Okine, Ph.D., reviewed Rick~baugh's file on November 30, 2010. (Tr. at
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155) She concluded that Rickabaugh could handle simple, routine tasks in a low social work
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environment. (Tr. at 155) She concluded that while Rickabaugh was limited in focusing and
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concentrating on detailed tasks and in interacting with others, he was capable of performing
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simple instructions and routine work. (Tr. at 154)

Dr Tucker-Okine noted that Rickabaugh

presented himself to Dr. Lentine as significantly wor~e off than progress notes indicated and that
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Rickabaugh failed to report to Dr. Lentine that medication improved his symptoms. (Tr. at 155)
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Christopher King, Psy.D., reviewed Rickabaugh's file on June 30, 2011. (Tr. at 181) He
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reached the same conclusion as Dr. Tucker-Okine: t~at Rickabaugh was capable of performing
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simple, routine tasks in a low social work environment. (Tr. at 181)

3.

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The Administrative Hearing~

The ALJ conducted two administrative hearings. (Tr. at 62-63, 104-05) The first took
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place on July 25, 2012 and included testimony from Rickabaugh and an impartial VE, Mitchell
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Schmidt. (Tr. at 62) The second hearing, on remand, took place on May 6, 2014, at which
Rickabaugh and a different impartial VE, Ennis Hanis, testified. (Tr. at 104)
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a.

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Rickabaugh's Testimrny
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At the. July 2012 hearing, Rickabaugh testifietl that in July 2010, out of nowhere, he "fell
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apart inside" while working and became paranoid, anxious, and jumpy. (Tr. at 74) Before that,
Rickabaugh did not have any niental health problems. (Tr. at 74) He stated that he was
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continuing therapy with Ballas-Rowe and receiving treatment from Nurse Martin. (Tr. at 80)

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However, the medications only helped a little with his racing thoughts and not at all for his
hallucinations. (Tr. at 83-84) Rickabaugh testified t~at he had difficulties in communicating and
socializing with others, suicidal thoughts (but never tped harming himself), paranoid thoughts,
and trouble sleeping and eating. (Tr. at 81-84) He s~id he also had problems with his short-term
memory and experienced panic attacks a couple times a week. (Tr. at 85)
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Rickabaugh testified that he could not return

io work because he could not concentrate.

(Tr. at 76) Rickabaugh admitted to excessive alcohol consumption but claimed he had stopped
drinking two months before the hearing. (Tr. at 77,

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As to his daily activities, Rickabaugh

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needed his mother to wake him up but dressed himsdf, showered, brushed his teeth, cooked,
washed the dishes, vacuumed, changed the bed sheets, and shopped for groceries with his _
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mother. (Tr. at 91) Rickabaugh stated he spent most of his days watching television, listening to
music, reading books, and occasionally doing some house chores. (Tr. at 94)
At the remand hearing in May 2014, Rickabaµgh testified that he was continuing therapy
with Ballas-Rowe and had started receiving a different medication from Nurse Chuks. (Tr. at
111-12) However, he felt the medication was ineffective in stoppi:p_g the hallucinations, although
medications he had taken in the past had worked. (Tr. at 113, 122-23) Rickabaugh explained
that he was still suffering from the same mental heal~h problems that he testified to in the
previous hearing. (Tr. at 116, 120, 122) He now claimed that he had tried to harm himself in
2010, felt irritation at invisible people, and had panic attacks twice a month. (Tr. at 119-20, 122)
He also testified that he continued drinking alcohol (about four beers every two weeks) because
he enjoyed it and he did not hallucinate when he drank. (Tr. at 114-15, 130) Rickabaugh
testified that he gets along with his mother, who he lived with, but otherwise did not participate

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in social activities with anyone. (Tr. at 118) He statL 1hat his short-terin memory was so poor
that he had forgotten the directions to the hearing that day. (Tr. at 132)
With respect to daily activities, Rickabaugh describedthe same capabilities as he had in
July 2012, although he added he needed his mother tb keep him motivated to do those activities.
(Tr. at 124, 131) He still read as a hobby; however, he had difficulty understanding what he was
reading. (Tr. at 130)

b.

Vocational Experts' Testimony

VE Mitchell Schmidt ("Schmidt") testified J t Rickabaugh's prior work experience
included light to heavy, semi-skilled to unskilled woJk to which he would be unable to return,
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due to his current RFC, because he would be unable to deal with people. (Tr. at 96-99) Schmidt
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testified that a hypothetical person ofRickabaugh's tjnset age, education, work experience, and
limitations on contact with coworkers and supervision could still work in some light and/or
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sedentary jobs. (Tr. at 98-99) For light jobs, Schmidt recommended garment sorter positions
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(approximately 500 of which are available in Delaware) and housekeeping cleaner positions
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(2,000 positions in Delaware). (Tr. at 99) For sedentary jobs, Schmidt recommended edible nut
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sorter positions (250 positions in Delaware) and cuffI folder positions (200 positions in
Delaware). (Tr. at 99)
On cross-examination by Rickabaugh's attorn.ey, Schmidt testified that ifthe hypothetical
person could not make simple, work-related decisioJs and complete a normal workweek without
interruption, he could not perform 1he work in 1he politions Schmidt listed. (Tr. at 101-02)
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At the remand hearing, VE Ennis Harris

("H~rris")

agreed with Schmidt's testimony and

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assessment of jobs. (Tr. at 134-35) On cross-examiili.ation, Harris likewise admitted that if the
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hypothetical person could not cope with the ordinary pressures of work and/or sustain work
performance and attendance (missing more than three days of work a month), the person could
not perform competitive employment. (Tr. at 13 7-40)

C.

The ALJ's Findings

On August 22, 2012, the ALJ issued the following findings:
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2014.

2.

The claimant has not engaged in substantial gainful activity since
July 12, 2010, the alleged onst?t date (20 C.F.R. 404.1572 et seq.,
and 416.971 et seq.).
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3.

The claimant has the following severe impairments: obesity, mild
lumbar spine degenerative disc disease, alcoholism, depression,
anxiety, and schizophrenia (20 C.F .R. 404.1520( c) and
416.920(c)).

4.

The claimant does not have ml] impairment or combination of
impairments that meets or mec;lically equals the severity of one of
the listed impairments in 20 C~F .R. Part 404, Subpart P, Appendix
1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).

5.

After careful consideration of the entire record, the undersigned
finds that the claimant has the .residual function capacity to perform
light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b),
with frequent postural activities, except no climbing of ladders,
ropes, or scaffolds. The claim:ant has to avoid concentrated
exposure to hazards. The clai*1ant could perform work that is
simple and unskilled, with only occasional contact with coworkers
and the general public, work t~at is essentially isolated, with only
occasional supervision, and work that is not at a production pace,
meaning paid by the piece or 6n an assembly line.

6..

The claimant is unable to perform any past relevant work (20
C.F.R. 404.1565 and 416.965).

7.

The claimant was born on August 2, 1977 and was 32 years old,
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which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 C.F.R. 404. 1563 and 416.963).
8.

The claimant has a limited edjcation and is able to cominunicate in
English (20 C.F.R. 404.1564 ahd 416.964).

9.

Transferability of job skills is not material to the determination of
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disability because under the Medical-Vocational Rules as a ·
framework supports a finding that the claimant is "not disabled,"
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whether or not the claimant has transferable job skills (See S.S.R.
.82-41and20 C.F.R. Part 404,ISubpart P, Appendix 2).

10.

Considering the claimant's ag~, education work experience, and
residual functional capacity, tHere are jobs that exist in significant
numbers in the national econofny that the claimant can perform (20
C.F.R. 404.1569, 404.1569(a)~I 416.969, and 416.969(a)).

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The claimant has not been un~er a disability, as defined in the
Social Security Act, from July! 12, 2010, through the date of this
decision (20 C.F.R. 404.1520(g) and 416.920(g)).

(Tr. at 42-54)

III.

LEGAL STANDARDS
A.

Motion for Summary Judgment

"The court shall grant summary judgment if t~e movant shows that there is no genuine
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dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R.
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Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine
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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 bet or, alternatively, is - genuinely disputed
must support its assertion either by citing to

"particu~ar

depositions, documents, electronically stored

parts of materials in the record, including

inform~tion, affidavits or declarations, stipulations

(including those made for the purposes of the motiol only), admissions,

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int~ogatory answers,

or other materials," or by "showing that the materials; cited do not establish the absence or
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presence of a genuine dispute, or that an adverse pa~ cannot produce admissible evidence to
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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 quotation marks omitted). The Court will "draw
all reasonable inferences in favor of the nonmoving :Rarty, and it may not make credibility
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determinations or weigh the evidence." Reeves v. Sa~derson Plumbing Prods., Inc., 530 U.S.
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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)
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(stating that party opposing summary judgment "must present more than just bare assertions,
conclusory allegations or suspicions to show the existence of a genuine issue") (internal
quotation marks omitted). However, the "mere existence of some alleged factual dispute
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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
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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, 4 77 U.S. 317, 322 (1986) (stating entry of sLary judgment is mandated "against a
party who fails to make a showing sufficient to establish the existence of an element essential to
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that party's case, and on which that party will bear the burden of proof at trial").
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B.

Review of the ALJ' s Findings
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The Court must uphold the Commissioner's (actual· decisions if they are supported by
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"substantial evidence." See 42 U.S.C. §§ 405(g), 1383(c)(3); see also Monsour Med. Ctr. v.
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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.
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Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). As the United States Supreme Court has noted,
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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

~upports

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 1lb0-91. The Court's review is limited to the
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evidence that was actually presented to the ALJ. See; Matthews v. Apfel, 239 F.3d 589, 593-95
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(3d Cir. 2001). However, evidence that was not subihitted to the ALJ can be considered by the
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Appeals Council or the District Court as a basis for rbmanding the matter to the Commissioner
for further proceedings, pursuant to the sixth

sentenc~ 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 Jidence." Gonzalez v. Astrue, 537 F. Supp.
2d 644, 657 (D. Del. 2008) (internal quotation marks omitted).
The Third Circuit has explained that a "singl~ 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,
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parlicularly certain types of evidence (e.g., that offejd 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 wJuld have made the same determination but,
rather, whether the Commissioner's conclusion was !easonable. See Brown v. Bowen, 845 F .2d
1211, 1213 (3d Cir. 1988). Even ifthe reviewing Cqurt would have decided the case differently,
it must give deference to the ALJ and affirm the Conlmissioner' s decision if it is supported by
I
I

substantial evidence. See Monsour, 806 F.2d at 1190-91.

IV.

DISCUSSION

A.

Disability Determination Process

Title XVI of the Social Security Act provides, for the payment of disability benefits to
indigent persons under the SSI program. 42 U.S.C. § 1382(a). A "disability" is defined for
purposes of SSI 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), 1382c(a)(3)(A). A claimant is disabled "only if his physical or mental
impairment or impairments are of such severity that 'e is not only unable to do his previous work
I

but cannot, considering his age, education, and work experience, engage in any other kind of

f

substantial gainful work which exists in the national conomy." 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B); see also Barnhart v. Thomas, 540 uJs. 20, 21-22 (2003).
In determining whether a person is disabled, the Commissioner· is required to perform a

five-step sequential analysis. See 20 C.F.R. §§ 404.11520, 416.920; Plummer v. Apfel, 186 F.3d
.

I

.

i

422, 427 ~28 (3d Cir. 1999). If a finding of disability or nondisability can be made at any point in

15

I

the sequential process, the Commissioner will not retiew the claim further. See 20 C.F .R.
§§ 404.1520(a)(4), 416.920(a)(4).
At step one, the Commissioner must determitle whether the claimant is engaged in any
I
I

.

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 twb 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)(J)(ii). If the claimant's impairments are
severe, the Commissioner, at step three, compares th~ 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 20 C.F.R. §§ 404.1520(e), 416.920(e).
At step four, the Commissioner determines whether the claimant retains the 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 reti.im to past relevant work); Plummer, 186
F.3d at 428. A claimant's RFC is "that which [the] ipdividual is still able io do despite the
limitations caused by his or her impairment(s)." Fa)gnoli 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
16

;

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
nondisability when 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
I

the national economy which the claimant can perfof11.1, 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 claitjant's impairments. See id. At this step, the
I

ALJ often seeks the assistance of a VE. See id.

B.

Issues Raised on Appeal

On appeal, in seeking reversal or remand, Rickabaugh presses two issues: (1) the ALJ
improperly weighed the opinions of treating nurse and physician Nurse Martin and Dr. Kalkstein,
treating therapist Ballas-Rowe, examining consultant Dr. Lentine, and non-examining
I
consultants Dr. Tucker-Okine and Dr. King; and (2) the ALJ improperly evaluated Rickabaugh's
credibility. (D.I. 13 at 16, 24) The Court concludes ,that neither argument establishes that
I

Rickabaugh should obtain the relief he seeks.

1.

Weight of Medical Opinions;

Rickabaugh argues that the ALJ improperly weighed the opinions of Nurse Martin and
Dr. Kalkstein, Ballas-Rowe, and Dr. Lentine, as well as the non-examining consultants, Dr.

17

Tucker-Okine and Dr. King. (D.L 13 at 16) In reviewing the ALJ's analysis, it is not for the
Court to re-weigh the medical opinions in the record.: See Gonzalez, 53 7 F. Supp. 2d at 659.
I

Rather, the Court must determine whether substantial evidence.exists to support the ALJ's
weighing of those opinions. See id.
I

In evaluating Rickabaugh' s mental condition,! the ALJ weighed opinions and medical
evidence from Nurse Martin and Dr. Kalkstein, Ballas-Rowe, Dr. Lentine, Nurse Chuks, and the
I

two non-examining consultants. (Tr. 51-53) The A~J considered findings that Rickabaugh had a
normal thought process, intact concentration and memory, fair judgment, and few hallucinations
I

when compliant with medication and contrasted them with findings that Rickabaugh had
paranoia, anxiety, poor focus and concentration, and bngoing hallucinations. (Tr. 47-53)

a.

Nurse Practitioner Martin and Dr. Kalkstein

As a nurse practitioner, Nurse Martin is not an "acceptable medical source" that can
"establish ... a medically determinable

impairment.'~

20 C.F.R. §§ 404.1513(a). However,

I

evidence from nurse practitioners may be used to sh~w "the severity of [an] impairment[] and
I

how it affects [a claimant's] ability to work." 20 C.F.R. § 404.1513(d). In evaluating such
I

evidence, factors to be considered include how long ~he practitioner has known the claimant and
how frequently the practitioner has seen the claimant; how consistent the opinion is with other
evidence; the degree to which the claimant presents nelevant evidence to support an opinion; how
.

I

.

well the source explains the opinion; whether the sotlrce has a specialty related to the individual's
-

I

impairments; and any other factors that support or refute the opinion. See 20 C.F .R.
§ 404.1527(c); Roache v. Colvin, 170 F. Supp. 3d 65[s, 672 (D. Del. 2016).
I

First, Rickabaugh contends that the ALJ sho-qld have considered Nurse Martin's opinion
!
I

18

as a treating physician's opinion because Nurse Martin and Dr. Kalkstein co-signed the opinion
and Dr. Kalkstein is an acceptable medical source. (D.I. 13 at 17) When atreating source's
opinion on the severity and nature of the impairment l"is well-supported by medically acceptable
I

clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
I

evidence in [the] record," it should be given controll~ng weight. 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). If the record contains conflicting evidence, "the ALJ may choose whom to credit
but cannot reject evidence for no reason or for the

~ong

reason." Plummer, 186 F.3d at 429

(internal quotation marks omitted). The ALJ may reject a treating source's opinion when there is
contradictory medical evidence but cannot base rejection on "his or her own credibility
judgments, speculation or lay opinion." Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000).
,

I

Courts in the Third Circuit have considered the opinions of treating sources that are not
acceptable medical sources to be the opinions of treating physicians when the opinion is given in
I

I
;

tandem to the treating physician's. See, e.g., Esposito v. Colvin, 2015 WL 867887, at *9 (W.D.
Pa. Feb. 27, 2015); Knaub v. Astrue, 2009 WL 89435, at *12 (M.D. Pa. Jan. 13, 2009). Here,
Rickabaugh points out that Nurse Martin's supervising physician co-signed the opinion with her.
(D.I. 13 at 17) However, the ALJ's decision not to view the relationship between Rickabaugh
and Dr. Kalkstein like that which is existed in Knaub - where the physician was an active part of
I

the claimant's treatment (he treated the claimant for seven years, sat in on therapy sessions, and
spoke to him before and after sessions) - is well-grounded in the record, as the facts presented
there were quite different. See Knaub, 2009 WL 89435, at *12. The Court finds no error in the
I

ALJ' s decisions not to treat Dr. Kalkstein. as a treating physician and not to extend treating
physician status to Nurse Martin's opinion.

19

I

Second, Rickabaugh contends that the ALJ gdve too little weight to Dr. Kalkstein's
opinion and Nurse Martin's opinion. (DJ. 13 at 16) for similar reasons as stated above, the ALJ
I

I

did not have to

gi~e

controlling weight to Dr.

Kalkst~in's

opinion, as there was no indication that

I

he was a treating physician who had an ongoing treatinent relationship with Rickabaugh. Even if
the ALJ should have considered Dr. Kalkstein as a treating physician, the ALJ properly afforded
!
I

Dr. Kalkstein's opinion limited weight based on sub~tantial evidence that it was inconsistent with
the record as a whole. (Tr. at 52) Dr. Kalkstein, in his evaluation with Nurse Martin, wrote that
Rickabaugh had limited social function, concentratiol and mental functioning; in contrast, Nurse
-

I

-

Martin's treatment notes stated that Rickbaugh' s con~entration and judgment improved to
average when he was on medication. (Tr. at 448, 59Q) Additionally, Dr. Kalkstein's opinion
-

I
I

conflicted with Nurse Martin's assessment ofRickabaugh's GAF scores of 60 and 55, which
i

indicated mild to moderate symptoms. (Tr. at 455, 530) The ALJ also gave limited weight to
I
Nurse Martin's opinion because it was inconsistent
Martin's own treatment notes. (Tr. at 52)

~th the record, which included Nurse
I

I
!

Rickabaugh contends that Nurse Martin and IDr. Kalkstein's opinion is not inconsistent
with the record because observations that Rickabaugh was stable with medication do not
contradict the physician's determination that Rickabaugh was disabled. (D.I. 13 at 19) To
support his argument, Rickabaugh points out that courts have recognized that someone who
i

responds to treatment.is not necessarily one who is aple to work. See Scott v. Astrue, 647 F.3d
I

.

734, 739-40 (7th Cir. 2011); Morales, 225 F.3d at 31!9. However, in the cases Rickabaugh cites,
the claimant showed some improvement but still had frequent and severe symptoms. See Scott,
i

647 F.3d at 740 (responding well to treatment was n~t inconsistent with physician's opinion that
I

20

claimant was unable to work when claimant continued to experience frequent bouts of crying and
paranoia due to her bipolar disorder). When there is ~ubstantial evidence of improvement in the
claimant's condition showing that he is able to work, opinions from physicians about the
individual's inability to work may be inconsistent with the record. See Torres v. Barnhart, 139
I

F. App'x 411, 414-15 (3d Cir. 2005) (limiting physician's opinion because it was inconsistent
I

.

.

with record showing substantial evidence that claimant experienced dramatic, continuous
improvement in levels of social functioning and decrease in psychotic symptoms after taking
medication); Drejka v. Comm 'r of Soc. Sec., 61 F.

A~p'x 778, 782 (3d Cir. 2003). Here,
i
1

throughout Rickabaugh's treatment notes with Nurse Martin, Ballas-Rowe, and Nurse Chuks,
I
I

Rickabaugh showed constant improvement in his mo;od, insight, judgment, concentration, and
I

motivation when medicated. (Tr. at 448, 484-85, 538-39, 554, 608, 616, 620-22, 633) Even
I

though Rickabaugh continued to have hallucinations~ the treatment notes indicate that his ·
i

hallucinations consistently decreased in frequency while on medication and reduced to occurring
only a few times a month. (Tr. at 448, 484-85, 519, 539, 578, 608, 620-22, 626, 629-33) There
I

is substantial evidence in the record from which the ~LJ could conclude that Rickabaugh had
substantial improvement in his mental functioning when complaint with his medication and that,
because of that improvement, Nurse Martin and Dr. Kalkstein's opinion was inconsistent with
the record.
Rickabaugh also contends that Nurse Martin and Dr. Kalkstein's opinion is consistent
I

with the record based on his GAF scores. (D .I. 13 at 19) Even so, the ALJ did not rely
exclusively on GAF scores when she decided to givi limited weight to Nurse Martin and Dr.
Kalkstein's opinion. (Tr. at 479, 522) As discussed above, the ALJ considered the totality of the
,

21

I

evidence, including all GAF scores, the non-examining consultants' opinions, and the treatment
notes showing improvement in Rickabaugh's condition, to determine the weight given to Nurse
Martin and Dr. Kalkstein' s opinion.
Therefore, the Court finds that substantial evidence supports the ALJ' s determination to
give little weight to Nurse Martin and Dr. Kalkstein's opinion.
I

b.

Ballas-Rowe

As a licensed clinical social worker, Ballas-Rowe is not an acceptable medical source.
See 20 C.F.R. § 404.1513(a). Her opinion is entitled; to consideration however, see 20 C.F.K
i

§§ 404.1513(d), 416.913(d), and the ALJ accepted h~r opinion- but chose to give it little weight
because it was inconsistent with substantial evidence; in the record showing that Rickabaugh's
condition significantly improved when he was complaint with his medication. (Tr. at 52)
Rickabaugh argues that the ALJ was incorrect for the same reasons he gave with rnspect to Nurse
Martin and Dr. Kalkstein's opinion. (D.I. 13 at 22) However, as Ballas-Rowe herself- as well
'

'

as Nurse Martin and Nurse Chuks - noted marked improvements in Rickabaugh' s mental
condition when he was on medication, the ALJ had substantial evidence to find that BallasRowe's opinion that Rickabaugh had marked limitations in most areas of mental functioning was
inconsistent with the record as awhole. (Tr. at 448, 484-52, 518-21, 525-27, 538-39, 554, 55860,578-79,608,616,618,620-22,626,629-33)

c.

Examining Consultant, Dr. Lentine

Rickabaugh argues that the ALJ gave too little weight to Dr. Lentine's opinion. (D.I. 13
at 22) The ALJ found that Dr. Lentine's opinion wa~ entitled to little weight because it was
inconsistent with and unsupported by the record. (Tr. at 51-52)
22

Social Security regulations provide that "the opinions of State agency medical ...
consultants and other program physicians ... can be given weight only insofar as they are
supported by evidence in the case record," including "the consistency of the opinion with the
record as a whole, including other medical opinions, and any explanation for the opinion
provided by the State agency medical ... consultant or other program physician." S.S.R. 96-6p,
1996 WL 374180, at *2 (July 2, 1996).
Rickabaugh contends that Dr. Lentine's opinion is not inconsistent·with the record for the
same reasons as he did with respect to Nurse Martin and Dr. Kalkstein's opinion. (D.I. 13 at 22)
For the same reasons given above, the Court conclud'es there is substantial evidence to support
the ALJ's decision with respect to Dr. Lentine's opinion.

d.

Non-examining

Cons~ltants, Dr. Tucker-Okine and Dr. King

The ALJ gave significant weight to the opinions of the two non-examining consultants,
Dr. Tucker-Okine and Dr. King. (Tr. at 53) Generally, opinions from non-examining sources are
not entitled to significant weight when contradicted by well-supported opinions from treating
physicians. See 20 C.F.R. §404.1527(c); Brownawell v. Comm 'r of Soc. Sec., 554 F.3d 352, 357
(3d Cir. 2008). Here, the ALJ had substantial evidence, based on the treatment notes from Nurse
Martin, Ballas-Rowe, and Nurse Chucks, from which to conclude that the opinions of the treating
sources were not well-supported and were inconsistent with the record. Hence, the ALJ was free
to give greater weight to the non-examining consultants, whose opinions were consistent with the
record.
Rickabaugh argues that the weight placed on Dr. Tucker-Okine's and Dr. King's opinions
was unwarranted, as they reviewed his file on Nove~ber 30, 2010 and June 30, 2011,
23

respectively, which was three years prior to the ALJ's decision on August 8, 2014. (D.I. 13 at
21) After their review, Rickabaugh had further treatment notes as well as the opinion Dr.
Kalkstein signed with Nurse Martin. Because "the Social Security regulations impose no limit
.

!

on how much time may pass between a report and the ALJ' s decision in reliance on it," whether
the time lapse matters depends on whether the ALJ believes that intervening evidence would
have changed the consultant's findings. See

Chandl~r

v. Comm 'r of Soc. Sec., 667 F.3d 356, 361

(3d Cir. 2011). Here, the ALJ found the additional medical records following Dr. King's review
I

of the record to be consistent with the previous medibal records. (Tr. at 53) Additionally, Dr.
I
i

Kalkstein' s opinion was the same as the previous opinions Nurse Martin had given, directly
I

i

referring to Nurse Martin's evaluation on April 12, 2p11, so it was unlikely to affect Dr. TuckerOkine's or Dr. King's opinions. (Tr. at 590-91)
Therefore, substantial evidence supports the fJ's decision to give significant weight to
the non-examining consultants' opinions.

2.

'

Rickabaugh's Credibility
I

Rickabaugh next contends that the ALJ failed to evaluate the credibility of his testimony
I
I

properly. (D .I. 13 at 23) Specifically, Rickabaugh atgues that the ALJ provided a conclusory
I

finding that his testimony was "not entirely credible.:' (Id. at 24) The Commissioner contends
that the ALJ provided specific reasons for her credibility determination, mainly that she found
!

Rickabaugh's testimony to be inconsistent. (D.I. 15 at 15-16)
An ALJ' s credibility determination is entitled to deference and should not be discarded
i
I

lightly, particularly given the ALJ's opportunity to observe an individual's demeanor. See Reefer
I

I

v. Barnhart, 326-F.3d 376, 380 (3d Cir. 2003). The f\LJ must, however, explain her reasons for

24

the credibility determination. See Burnett v. Comm 'r of Soc. Sec., 220 F.3d 112, 122 (3d Cir.
2000). When there are inconsistencies in a claimant'.s testimony or daily activities, the ALJ may
i

conclude that some or all of the claimant's testimony is not fully credible. See Burns v.
I

I

Barnhart, 312 F.3d 113, 130 (3d Cir. 2002). A claimant's allegations of pain or other subjective
.
I
symptoms must be supported by objective medical evidence. See 20 C.F.R. § 404.1529;
.

I

I

Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999).!

Here,. the ALJ found that Rickabaugh's "medically determinable impairments could
I

.

reasonably be expected to cause the alleged symptoms" but that "[Rickabaugh' s] statements
I
I

concerning the intensity, persistence and limiting effects of those symptoms were not entirely
I

credible." (Tr. at 46). As part of her findings, the AI},J then discussed Rickabaugh's medical
records as well as her observations during hearing. (Tr. at 47-51) The ALJ's reasons for her
credibility assessment may, as :Q.ere, be sufficiently clear based on her discussion of the medical
I

evidence in the record. See Pistor v. Thompson, 258 F. App'x 452, 454 (3d Cir. 2007).
1

There is no basis in the record to conclude, despite Rickabaugh's contentions, that the

AU based her credibility determination solely on hj lay observation of Rickabaiigh at the

.

hearing. (D .I. 13 at 25) The ALJ noted that, at the h~aring, Rickabaugh claimed that his
medication (Abilify) did not work but then cited Nur~e Chuk's treatment notes indicating that the
I

I

medication reduced Rickabaugh's hallucinations. (fr. at 46, 51) The ALJ also referred to
I

Rickabaugh's testimony that he had several other symptoms like anxiety, depression, racing
I

.

I

thoughts, irritated mood, panic attacks, and difficulti¢s eating and sleeping. (Tr. at 46) However,
.

I
I

the ALJ then detailed Rickabaugh's medical records~I the totality of which indicated that those
I

symptoms improved with medication. (Tr. at 4 7-51 )I In sum, the ALJ adequately explained her
I

25

I

I

credibility determination and there is substantial evidence to support her findings.

V.

CONCLUSION
Given the substantial evidence that supports the ALJ' s weighing of the medical opinions

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

26