McDonald v. Colvin
REPORT AND RECOMMENDATIONS re 14 GRANTING the Cross MOTION for Summary Judgment filed by Carolyn W. Colvin, 9 DENYING the MOTION for Summary Judgment filed by Michelle D. McDonald. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 6/9/2017. Signed by Judge Mary Pat Thynge on 5/23/17. (kjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MICHELLE D. MCDONALD,
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
REPORT AND RECOMMENDATION
This action arises from the denial of Plaintiff's claim for Social Security benefits.
On July 5, 2012, Plaintiff filed an application for Social Security Disability Insurance
benefits ("DIB") under Title II ofthe Social Security Act. 1 Plaintiff also filed an
application for Supplemental Security Income under Title XVI of the Social Security Act
(the "Act") on September 19, 2013. 2 In her applications and disability report, Plaintiff
alleged she became disabled on November 15, 2011 due to severe physical
impairments, including degenerative disk disease of the cervical spine and carpal tunnel
syndrome. 3 Her claims were initially denied on September 11, 2012, and denied again
upon reconsideration on April 21, 2013. 4 Following the denials, Plaintiff requested a
hearing before an Administrative Law Judge ("ALJ"), which occurred on September 10,
D.I. 7-6 at 382
~ ld:at 382, 384.
Id. at 382.
2014. 5 Atthe hearing, testimony was provided by plaintiff and a vocational expert,
Christina L. Beatty-Cody. 6 ALJ Jack Penca found that Plaintiffdid not qualify as
"disabled" under either act and denied her request for benefits on November 3, 2014. 7
After denial by the ALJ, Plaintiff requested review by the Social Security Appeals
Council, but was denied. 8 She then filed a timely appeal. 9 Presently before the court
are the parties' cross motions for summary judgement. For the reasons that follow, the
court will grant Defendant's motion.
Plaintiff was born on February 12, 1965. 10 She has a high school education and
worked in the past as a sales representative. 11 She was 46-years-old at the onset of
her alleged disability, which dates from November 15, 2011. 12 In November 2011, she
was released from her job because her physical impairments left her unable to keep up
with its demands. 13 Since then, she has developed increased neck and back pain,
worsening arthritic changes in the cervical spine, and worsening carpal tunnel .
syndrome; for which she has undergone two surgeries on the right hand to date. 14
Plaintiff also experiences gastrointestinal issues and associated chest pain, which
0.1. 7-6 at 382.
0.1. 7-6 at 387.
0.1. 7-6 at 387-89.
started in November 2013. 15 She has had numerous endoscopies, saw a phonetic
specialist, and had gallbladder surgery in January 2014. 16 She is currently taking
Linsas and has associated issues, forcing her to remain very close to a bathroom for
most of the day. 17 Despite her prior vocational experience, Plaintiff claims she remains
disabled under the Acts. 18 To be eligible, Plaintiff must demonstrate she is disabled
within the Acts, which both have the same standard, as discussed below.
Plaintiff allegedly suffers from a "myriad of issues," including:
degenerative disease of the cervical spine in particular, as well as severe
carpal tunnel syndrome, which she's had three procedures done on her
. dominant hand, the right hand. There's also recent developments of
gastrointestinal disorders which are also causing her to experience
extreme symptoms ... bilateral manual dexterity issue [which] would
eliminate pretty much all work .... 19
The combination of the impairments is plaintiff's basis for concluding she is
unable to perform any substantial gainful activity. 20 Plaintiff provided accounts of
treatment from four separate medical doctors and treating facilities. 21 Records of
treatment from Dr. Beebe, Plaintiff's primary treating physician, are particularly relevant
to the present matters under consideration, because she contends that the ALJ's
decision to afford no weight to the opinion of Dr. Beebe is in error. 22
D.I. 7-7 at 409.
D.I. 10 at 1.
D.I. 7-7 at 402-03.
Id. at 402.
Id. at 400-07.
D.I. 10 at 1.
Dr. J. Kirkland Beebe, M.D. (hereinafter referred to as "Dr. Beebe") has been
treating Plaintiff since November 28, 2011. 23 About six months later, on May 20, 2012,
Plaintiff reported difficulty sleeping and problems related to arthritis in both shoulders. 24
X-rays of the cervical spine suggested significant arthritic changes. 25 Plaintiff also
reported increased neck pain on July 2, 2012, and Dr. Beebe diagnosed osteoarthritis
of the cervical spine and prescribed Aleve and Tylenol. 26
Plaintiff's arthritic pain traveled to her extremities and increased in her back over
the next few years. 27 On September 10, 2012, she complained of right hand numbness
and was diagnosed with right carpal tunnel syndrome. 28 X-rays of the lumbar spine and
bilateral knee x-rays showed significant arthritic changes, and Plaintiff's complaints of
pain during visits with Dr. Beebe were consistent with these findings. 29 For example,
she reported neck, shoulder, and knee pain on September 27, 2012. 30
Most significantly, Dr. Beebe completed a Doctor's Certificate for the Delaware
Department of Labor on November 20, 2012, wherein he diagnosed cervical
radiculopathy and bilateral carpal tunnel syndrome, and concluded that Plaintiff was
"disabled from all work indefinitely." 31 During follow-up appointments between
December 5, 2012 and May 14, 2013, the following symptoms, prescriptions, and test
D.I. 10 at 2.
Id. at 3.
results were performed and noted: twelve therapy sessions for continued arthritic pain;
aqua therapy, an MRI of the cervical spine, and Tramadol for decreased range of
motion in the cervical spine; degenerative changes in the spinal canal with "moderately
severe" narrowing of right neural foramen; right carpel tunnel syndrome and right ulnar
nerve pain. 32
In an assessment of Plaintiff noted in a Multiple Impairment Questionnaire dated
July 2, 2013, Dr. Beebe diagnosed cervical degenerative disc disease, osteoarthritis
with bilateral cervical radiculopathy, bilateral carpal tunnel syndrome, and cubital carpal
tunnel syndrome. 33 The clinical findings, including numbness and pain in the hands
evidenced by a nerve conduction study, a cervical MRI, and x-rays supported the
assessment. 34 He also estimated that her level of pain "varied from moderate to
moderately severe (5-8 on a scale of 10) and her level of fatigue was moderately
severe (7 on a scale of 10)."35 He further opined that she "could not sit and stand/walk
up to a total of one hour each during an 8-hour work day," could not stand/walk
continuously, must stand and move around for a period of 20 minutes each 15-20
interval if sitting, and could lift no more than five pounds, and could only do so
Dr. Beebe examined Plaintiff again on August 15, 2013. 37 In summary, the
findings on that day concluded overall the same or worsening symptoms after steroid
D.I. 10 at 3.
Id~ at 4.
D.I. 10 at 4.
injections months beforehand. He diagnosed "generalized osteoarthritis, cervical
spondylosis without myelopathy, lumbosacral neuritis /radiculitis, and carpal tunnel
syndrome." 38 Upon examination a month later on September 17, 2013, he documented
similar findings in a second Multiple Impairment Questionnaire. Additionally, on
November 5, 2013, he reported "severe pain in the right wrist." 39
Most significant to the issues at hand, Dr. Beebe wrote a "narrative report," dated
February 18, 2014, concluding Plaintiff was "disabled due to her cervical and lumbar
osteoarthritis, degenerative disk disease, bilateral carpal tunnel and bilateral cubital
tunnel syndromes that have not responded to surgery, steroid injections, or physical
therapy." 40 He added that she was "very unlikely to be able to return to the workforce"
because he did not expect her symptoms to improve. 41
At the hearing on September 10, 2014, Plaintiff testified to her background, work
history, and alleged disability. 42 Plaintiff worked as a sales representative for years at
Walmart, Kmart, and Target, and at certain stores performed cleaning and set-up duties
for cosmetic and hair care stations. 43 Her employment involved considerable walking
and lifting, which required her to occasionally rest every twenty to thirty minutes to
0.1. 10 at 4.
Id. at 5.
See generally 0.1. 7-7.
0.1. 7-7 at 416.
stretch. 44 She was laid off in November 2011. 45 During the time she was working, she
related to Dr. Beebe "the toll it was taking on [her] body."46 She did not seek work after
being laid off, but received unemployment compensation for a "sick claim," which was
supported by Dr. Beebe, and did not require her to search for other jobs. 47 After two
years, her unemployment benefits ceased in December 2013. 48
Concerning her daily activities, Plaintiff describes difficulty standing or sitting for
more than twenty to thirty minutes at a time. 49 She claims that she must stand and
stretch, do exercise therapy movements for about ten minutes at a time, or use hot or
cold compresses to ease pain. 50 Neck movements or quick movements are difficult due
to "pinching and burning sensations."51 Intense pain also travels from her back, down
her legs, into her "big toe," causing numbness. 52 She cannot feel the front of either
calf. 53 Her upward reach is limited, requiring the use of a step-stool for high
cupboards. 54 She can only lift a maximum of five pounds without pain, and must move
very slowly to pick up articles from the ground. 55 She underwent physical therapy for
her back and neck for about a year from August 2012 to July/August 2013, but stopped
D.I. 7-7 at 416.
D.I. 7-7 at 403.
Id. at 404.
Id. at 403-04.
D.I. 7-7 at 403-04.
Id. at 411.
because of her first hand surgery. 56
Plaintiff also experiences daily headaches, that radiate from the back of her neck
to the top of her head. According to plaintiff, "[t]ylenol doesn't touch it," and she uses a
TENS unit, 57 and hot or cold compresses for relief. As of the date of the hearing,
Plaintiff was instructed by her doctor to walk for 15 minutes, 3 times a week. Since this
advice was only provided a few days before the hearing, Plaintiff had not begun this
Plaintiff describes constant burning and stinging sensation to her right palm and
right wrist, which radiates to the right elbow into the fingers. 59 Her finger mobility is
limited, making it difficult to write, open water bottles, and other similar hand
movements. 60 Plaintiff is right-hand-dominant, but frequently needs assistance from her
non-dominant left hand, because the fingers in her right hand "just stop working" after
five to ten minutes. 61 She also experiences pain, discomfort, numbness, and tingling of
the left hand. Although .she uses hot/cold compresses, physical therapy exercises, and
D.I. 7-7 at 417.
"TENS stands for (Transcutaneous Electrical Nerve Stimulation). [These] are
predominately used for nerve related pain conditions (acute and chronic conditions).
TENS machines work by sending stimulating pulses across the surface of the skin
and along the nerve strands ... [to] help stimulate your body to produce higher levels of
its own natural painkillers .... " The Original TENS Unit, (http://www.tensunits.com/)
(last viewed on May 19, 2017). Plaintiff uses the TENS unit no more than 10 minutes a
day, per directions from her therapist. She places it on her neck and lower back to
stimulate the nerves, but has not been able to· use it on her hand since the second
surgery. D.I. 7-7 at 408.
D.I. 7-7 at 408.
Id. at 406.
oral medications for her right hand, relief is limited from these modalities. 62 She feels
her right hand is getting worse. 63 The initial surgery on her right hand, a right carpal
tunnel release, occurred on January 16, 2013, 64 and was later followed by a second
procedure, a right cubital tunnel release, on September 18, 2013. 65 In light of her prior
surgeries, plaintiff does not presently feel that surgery on her left hand is a viable
Additionally, plaintiff experiences gastrointestinal issues, which began in
November 2013. 67 She regurgitates food 68 with associated chest pain. 69
Treatment for these symptoms involved numerous endoscopies, a referral to a
phonetic specialist, 70 and gallbladder surgery in January 2014, which left her
"basically bedridden," vomiting, and in excruciating pain for several months, and
required assistance from family members. 71 She currently takes Linsas, does
two colon preps a week, and attends therapy sessions at Seaside Castro. 72 The
side effects from the Linsas includes severe diarrhea and abdominal pains. 73
She has also undergone physical therapy since June to help her abdorninal
muscles and sphincter release waste properly; however, she is unable to
D.I. 7-7 at 406-14.
D. I. 10 at 6.
Id. at 7.
D.I. 7-7 at 407.
Id. at 409.
D.I. 7-7 at 419.
Id. at 409.
Id. at 410.
evacuate her bowels without medication. 74
Plaintiff testified that she requires assistance with household tasks,
including vacuuming, mopping floors and cleaning bathrooms. 75 Presently, her
niece helps with cleaning and takes her grocery shopping. 76 Plaintiff is only able
to do one "less than full" load of laundry a week. Due to her pain and lack of
mobility of her hands, she described some difficulty bathing, washing her hair,
and dressing. 77 Because her finger dexterity is limited, tying her shoes is very
difficult. She takes about an hour nap, twice daily. 78 Plaintiff has difficulty
standing for long periods, so her meal preparation is usually limited to making
sandwiches, soup, or other "easy things."79
Plaintiff testified that sitting or standing at a desk all day and moving her
head is very difficult. In fact, she complained during the hearing of a large
amount of pain with a "headache starting, [and] pressure" due to sitting, and
verbalized the need to stand and move around: 80
Vocational Expert's Testimony
During her testimony, the vocational expert, Beatty-Cody, was asked to
consider a hypothetical individual of Plaintiff's age, education, and work history
who could perform work at a "light exertional level," occasionally climb ladders,
D.l. 7-7 at 410.
Id. at 413-14.
D.I. 7-7 at 414.
Id. at 415.
ropes, and scaffolds, occasionally crawl, frequently reach overhead with both
arms, and was subject to frequent exposure to extreme cold and heat, humidity,
vi~ration, fumes, odors, dust, gases, and poor ventilation. 81 Beatty-Cody
concluded such a hypothetical individual could perform plaintiff's past work. 82
Beatty-Cody was further requested to consider other versions of the
hypothetical individual involving certain limitations. Regarding the limitation of
difficulty reaching overhead, she concluded Plaintiff could perform her past
work. 83 However, with the limitation of only occasionally being able to handle,
finger, and feel with both hands, the expert stated that the restriction would
preclude past work, including a position as a type copy examiner. 84
Beatty-Cody also considered the same hypothetical individual who
needed to alternate standing and sitting every thirty minutes, specifically to stand
ten minutes after sitting for thirty minutes, while remaining "on task," 85 as
opposed to being on a break. 86 She testified that employment for such a person
was feasible. However, if the same limitation cause the individual to be "on a
break," then any work would be precluded because the restriction would affect
productivity, and result in excessive breaks. 87
For the same individual working at a sedentary level, the expert concluded
D.I. 7-7 at 421-24.
"On task" means the employee is not taking a break. Id.
D.I. 7-7 at 423.
Id. at 424.
Plaintiff's past employment would be precluded, but the individual could be·a
"surveillance system monitor and telephone quotation clerk .... "88 The type
copy examiner position would be excluded as well.
When asked to consider an individual at the light exertional level that was
unable to reach overhead bilaterally, grasp/turn/twist objects, and use fingers
and hands for fine manipulations, Beatty-Cody testified these limitations would
preclude any type of work. 9 Further, if only use of the dominant hand was
excluded for such these tasks, any type of work would still be precluded. She
additionally opined that if a hypothetical individual with the same age, education,
and work history as Plaintiff was expected to miss work more than three times a
month due to any impairment, pain, symptom, or treatment, employers would
consider such absences excessive and work preclusive. 91
ALJ's Finding of Facts and Conclusions of Law
Plaintiff meets the insured status requirements of the Social
Security Actthrough December 31, 2017.
Plaintiff has not engaged in substantial gainful activity since
November 15, 2011, the alleged onset date.
Plaintiff has the following severe impairments: degenerative disk
disease of the cervical spine, carpal tunnel syndrome, and asthma.
Plaintiff does not have an impairment, or combination, that meets
or medically equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, and 416.926).
0.1. 7-7 at 424.
Id. at 425.
Plaintiff has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except that she can
occasionally climb ladders, ropes or scaffolds; can occasionally
crawl, can occasionally reach overhead with both upper
extremities; can occasionally handle, finger, and feel with her
bilateral upper extremities; and can have frequent exposure to
extreme cold, extreme heat, humidity, vibration, and fumes, odors,
dust, gas, and poor ventilation.
Plaintiff is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
Plaintiff was born February 12, 1965, making her 46 years old,
which characterizes her as a younger individual (ages 18-49), on
the alleged disability onset date (20 CFR 404.1563 and 416.963).
Plaintiff has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
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 Plaintiff has transferable job skills (SSR 82-41; 20
CFR Part 404, Subpart P, Appendix 2).
Considering Plaintiff's age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform (20
CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
Plaintiff has not been under a disability, as defined in the Social
Security Act, from November 15, 2011, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
Conclusively, "[b]ased on the application for a period of disability and disability
insurance benefits protectively filed on July 3, 2012, [Plaintiff] is not disabled under
sections 216(i) and 223(d) of the Social Security Act." Further "[b]ased on the
application for supplemental security income filed on September 27, 2013, [Plaintiff] is
not disabled under section 1614(a)(3)(A) of the Social Security Act."
STANDARD OF REVIEW
Motion for Summary Judgment
Both parties move for summary judgement. In determining the appropriateness
of summary judgment, the court must "review the record as a whole, 'draw[ing] all
reasonable inferences in favor of the non-moving party[,]' but [refraining from] weighing
the evidence or making credibility determinations." If "there is no genuine issue as to
any material fact" and the movant is entitled to judgment as a matter of law, summary
judgment is appropriate.
This standard does not change merely because there are cross-motions for
summary judgment. Cross-motions for summary judgment:
are no more than a claim be each side that it alone is entitled to
summary judgment, and the making of such inherently contradictory
claims does not constitute and agreement that if one is rejected th.e
other necessarily justified or that the losing party waives judicial
consideration and determination whether genuine issues of material
"The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party."
Court's Review of the ALJ's Findings
Section 405(g) sets forth the standard of review of an ALJ's decision. The court
may reverse the Commissioner's final determination only if the ALJ did not apply the
proper legal standards, or the record did not contain substantial evidence to support the
decision. Factual findings are upheld if supported by substantial evidence. Substantial
evidence means less than a preponderance, but more than a mere scintilla of evidence.
As the United States Supreme Court has found, substantial evidence "does not mean a
large or significant amount of evidence, but rather such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
In determining whether substantial evidence supports the Commissioner's
findings, the court may not undertake a de novo review of the decision nor re-weigh the
evidence of record. The court's review is limited to the evidence that was actually
presented to the ALJ. The Third Circuit has explained that a:
single piece of evidence will not satisfy the substantiality test if the
[Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence, particularly certain types of evidence
(e.g., evidence offered by treating physicians) or if it really constitutes
not evidence but mere conclusion.
Thus, the inquiry is not whether the court would have made the same
determination, but rather, whether the Commissioner's conclusion was reasonable.
Even if the court would have decided the case differently, it must defer to and affirm the
ALJ, so long as the decision is supported by substantial evidence.
Where "review of an administrative determination is sought, the agency's
decision cannot be affirmed on a ground other than that actually relied upon by the
agency in making its decision." In SEC v. Chenery Corp., the Court found that a
"reviewing court, in dealing with a determination or judgment which an administrative
agency alone is authorized to make, must judge the propriety of such action solely by
the grounds invoked by the agency." "If those grounds are inadequate or improper, the
court is powerless to affirm the administrative action by substituting what it considers to
be a more adequate or proper basis." The Third Circuit has recognized the applicability
of this finding in the Social Security disability context. This court's review is limited to
the four corners of the ALJ's decision. In Social Security cases, the substantial
evidence standard applies to motions for summary judgment brought pursuant to FED.
R. C1v. P. 56.
ALJ's Disability Determination Standard
The Supplemental Social Security Income (SSI) program was enacted in 1972 to
assist "individuals who have attained the age of 65 or are blind or disabled" by setting a
minimum income level for qualified individuals. 92 In order to establish SSI eligibility, a
claimant bears the burden of proving that she is unable 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 or not less than twelve months." 93 Moreover, "the physical or
mental impairment or impairments must be of such severity that the claimant is not only
unable to do [her] previous work but cannot, considering [her] age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
significant numbers in the national economy."94 Furthermore, a "physical or mental
impairment" is an impairment that results from anatomical, physiological, or
psychological abnormalities which are evidenced by medically acceptable clinical and
laboratory diagnostic techniques. 95
See Sullivan v. Zebley, 493 U.S. 521, 524 (1990) (citing 42 U.S.C. § 1381
42 U.S.C. § 423(d)(1 )(A).
42 U.S.C. § 423(d)(2)(A).
42 U.S.C. § 423(d)(3).
The Social Security Administration uses a five-step sequential claim evaluation
process to determine whether an individual is disabled. 96
In step one; the Commissioner must determine whether the
claimant is currently engaging in substantial gainful activity. If a claimant
is found to be engaged in substantial activity, the disability claim will be
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment. If the claimant fails to
show that her impairments are 'severe', she is ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence of the
claimant's impairment to a list of impairments presumed severe enough to
preclude any gainful work. If a claimant does not suffer from a listed
impairment or its equivalent, the analysis proceeds to steps four and five.
Step four requires the ALJ to consider whether the claimant retains the
residual functional capacity to perform her past relevant work. The
claimant bears the burden of demonstrating an inability to return to her
past relevant work. If the claimant is unable to resume her former
occupation, the evaluation moves to the final step.
At this stage, the burden of production shifts to the Commissioner,
who must demonstrate the claimant is capable of performing other
available work in order to deny a claim of disability. The ALJ must show
there are other jobs existing in significant numbers in the national
economy which the claimant can perform, consistent with her medical
impairments, age, education, past work experience, and residual
functional capacity. The ALJ must analyze the cumulative effect of all the
claimant's impairments in determining whether she is capable of
performing work and is not disabled. The ALJ will often seek the
assistance of a vocational expert at this fifth step. 97 _
If the ALJ determines that a claimant is disabled at any step in the sequence, the
analysis stops. 98
See 20 C.F.R. §416.920(a); see also Plummerv. Apfel, 186 F.3d 422 (3d Cir.
Plummer, 186 F .3d at 427.
See 20 C.F.R § 404.1520(a)
Weight Given to Treating Physicians
"A cardinal principle guiding disability eligibility determinations is that the ALJ
accord treating physicians' reports great weight." 99 Moreover, such reports will be given
controlling weight where a treating source's opinion on the nature and severity of a
claimant's impairment is well supported by medically acceptable clinical and laboratory
diagnostic techniques, and is not inconsistent with the other substantial evidence in the
The ALJ must consider medical findings supporting the treating physician's
opinion that the claimant is disabled. 101 If the ALJ rejects the treating physician's
assessment, he may not make "speculative inferences from medical reports," and may
reject "a treating physician's opinion outright only on the basis of contradictory medical
However, a statement by a treating source that a claimant is "disabled" is not a
medical opinion: rather, it is an opinion on an issue reserved to the ALJ because it is a
finding that is dispositive of the case. 103 Therefore, only the ALJ can make a disability
Morales v. Apfel, 225 F .3d 310, 317 (3d Cir. 2000)
Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001 ).
Morales v. Apfel, 225 F.3d 310, 317 (citing Plummer v. Apfel, 186 F.3d 422,
429 (3d Cir. 1999)).
Plummer, 186 F.3d at 429.
See 20 C.F.R. § 416.927 (e)(1).
Evaluation of Subjective Accounts of Pain 104
Statements about the symptoms 105 alone never establish the existence of any
impairment or disability. The Social Security Administration uses a two-step process to
evaluate existence and severity of symptoms.
Existence of Pain
First, the ALJ must find a medically determinable impairment - proven with
medically acceptable clinical and laboratory diagnostic data - that could reasonably be
expected to produce the claimant's symptoms. Otherwise, the ALJ cannot find the
applicant disabled, no matter how genuine the symptoms appear to be.
This step does not consider the intensity, persistence and limiting effects of the
symptoms on the claimant: it only verifies whether a medical condition exists that could
objectively cause the existence of the symptom.
Analysis stops at this step where the objectively determinable impairment m_eets
or medically equals one listed in 20 CFR Part 404, Subpart P, Appendix 1, because the
claimant is considered disabled per se.
Severity of Pain
At step two, the ALJ must determine the extent to which the symptoms limit the
claimant's ability to do basic work activities. Therefore, he must determine the
See 20 C.F.R §§ 416.928-29. See also SSR 96-7p.
A symptom is an individual's own description of physical or mental
impairments such as pain, fatigue, shortness of breath and other complaints.· See SSR
applicant's credibility .106
At this step, the ALJ must consider the entire record, including medical signs,
laboratory findings, the claimant's statements about symptoms, any other information
provided by treating or examining physicians, psychiatrists and psychologists, and any
other relevant evidence in the record, such as the claimant's account of how the
sympto.ms affect her activities of daily living and ability to work. 107
Where more information is needed to assess a claimant's credibility, the ALJ
must make every reasonable effort to obtain available information that would shed light
on that issue. Therefore, the ALJ must consider the following factors relevant to
symptoms, only when such additional information is needed:
(i) The applicant's account of daily activities;
(ii) The location, duration, frequency, and intensity of pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication the
applicant takes or has taken to alleviate pain or other symptoms;
(v) Treatment, other than medication, the applicant receives or has received for
relief of pain or other symptoms;
(vi) Any measures the applicant uses or has used to relieve pain or other
symptoms (e.g., lying flat, standing for 15 to 20 minutes every hour, sleeping on
a board, etc.); and
Credibility is the extent to which the statements can be believed and accepted
See 20 C.F.R. § 404.1529.
(vii) Other factors concerning functional limitations and restrictions due to pain or
other symptoms. 108
Factors in Evaluating Credibility109
A claimant's statements and reports from medical sources and other persons
with regard to the seven factors, noted above, along with any other relevant information
in the record, provide the ALJ with an overview of the subjective complaints, and are
elements to the determination of credibility.
Consistency with the record, particularly medical findings, supports a claimant's
credibility. Since the effects of symptoms can often be clinically observed, when
present, they tend to lend credibility to a claimant's allegations. Therefore, the
adjudicator should review and consider any available objective medical evidence
concerning the intensity and persistence of pain or other symptoms in evaluating the
Persistent attempts to obtain pain relief, increasing medications, trials of different
types of treatment, referrals to specialists, or changing treatment sources may indicate
that the symptoms are a source of distress and generally support a claimant's
allegations. An applicant's claims, however, may be less credible if the level or
frequency of treatment is inconsistent with the level of complaints, or if the medical
reports or records show noncompliance with prescribed treatment.
Findings of fact by state agency medical and psychological consultants and other
See 20 C. F. R. § 404.1529
See SSR 96-?p.
physicians and psychologists regarding the existence and severity of impairments and
symptoms, and opinions of non-examining physicians and psychologist are also part of
the analysis. Such opinions are not given controlling weight. However, the ALJ,
although not bound by such findings, may not ignore them and must explain the weight
afforded those opinions in his decision.
Credibility is one element in determining disability. The ALJ must apply his
finding on credibility in step two of the five-step disability determination process, and
may use it at each subsequent step.
The decision must clearly explain, that is, provide sufficiently specific reasons
based on the record, to the claimant and any subsequent reviewers, regarding the
weight afforded to the claimant's statements and the reasons therefore.
The law recognizes that the claimant's work history should be considered when
evaluating the credibility of her testimony or statements. 110 A claimant's testimony is
accorded substantial credibility when she has a long work history, if it is unlikely that,
absent pain, she would have ended employment. 111
Medical Expert Testimony
The onset date of disability is determined from the medical records and reports
See 20 C.F.R. § 404.1529(a)(3)
See Podedwomy v. Harris, 745 F.2d 210, 217 (3d Cir. 1984) citing Taybron v.
Harris, 667 F.2d 412, 415 n.6 (3d Cir. 1981 ). In Podedwomy, the claimant worked for
thirty-two years as a crane operator for one company. He had a ninth grade education
and left his employment after the company physicians determined that his symptoms of
dizziness and blurred vision prevented him from safely performing his job.
and other similar evidence, which requires the ALJ to apply informed judgment. 112 "At
the hearing, the administrative law judge (ALJ) employ the services of a medical advisor
when onset must be inferred." 113
Plaintiff argues the ALJ failed to properly weigh the medical opinion evidence
and evaluate her credibility. She contends the ALJ erred by giving no weight to the
limitations described by her treating physician, Dr. Beebe, and by giving significant
weight to opinions from non-examining consultants. 114 Instead, according to Plaintiff,
Dr. Beebe's opinions should have been given controlling weight. She also contends the
ALJ mischaracterized the record by finding both Dr. Beebe and Plaintiff's opinions not
credible. 115 She further argues that the ALJ's failure to consider all relevant factors was
not harmless error, and his credibility determination is not supported by substantial
To the contrary, Defendant maintains that substantial evidence supports the
ALJ's evaluation of the medical source opinions, including appropriately giving no
weight to an opinion of Dr. Beebe. 117 Defendant also contends that theALJ properly
evaluated Plaintiff's credibility as to subjective complaints of pain and limitations in
See SSR 83-20.
D.I. 10 at 11-17.
Id. at 11-19.
D.1.15 at 3.
combination with evidence of her symptoms, by finding Plaintiff not fully credible. 118
Analysis - Appropriateness of the ALJ's Assessment
The issue determined by the ALJ was whether Plaintiff is disabled under sections
216(1), 223(d), and 1614(a)(3)(A). The present issue for the court is whether the ALJ
properly applied the legal standards in making the determination; more specifically,
whether "substantial evidence" supports the ALJ's decision. 119 If the substantial
evidence standard cannot be found, characterized as "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion," then this court
may reverse the Commissioner's final determination that Plaintiff is not disabled under
the Acts. 120
As discussed throughout this opinion, Plaintiff's overarching contentions are the
following: (1) the ALJ erred by giving no weight to the limitations described by her
treating physician, and giving significant weight to opinions from non-examining
consultants; and (2) the ALJ mischaracterized the record by finding both Dr. Beebe and
Plaintiff's opinions not credible. Therefore, this court's decision is based upon whether
the ALJ's analyses of the disability determination standards, under the headings
"Weight Given to Treating Physicians" and "Factors in Evaluating Credibility," were
reasoned in a manner meeting the required standard. 121
ALJ's Reasoned Assessment finding Plaintiff not disabled.
D.1.15 at 3.
See supra part Ill (8).
See supra part Ill (C).
Applying the aforementioned standards of procedure, although the ALJ finds
Plaintiff's impairments do cause significant limitations, he concludes that such
limitations do not constitute a disability under the Acts in question. He considered all of
Plaintiff's symptoms, and the "extent to which they could reasonably be accepted as
consistent with the objective medical evidence and other evidence, based on the
requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 96-7p ... [and]
opinion evidence in accordance with the requirements of 20 CFR 404.1527 and
416.927 and SSRs 96-2p, 96-6p and 06-3p." 122
Some of the impairments presented via medical documents and testimony are
considered non-severe and cannot be found, even in combination with other
impairments, to cause inability to do basic work. The gastrointestinal impairments are
"stable," meaning they do not require ongoing treatment; therefore, they do not cause
functional restrictions, and thus, are not "severe pursuant to SSR 96-4p." 123 The
clinically determined mild depression and anxiety "do not cause more than minimal
limitation do basic work, and therefore also not severe." 124
After considering four broad functional areas set out in the disability regulations
attributable to a determination of mental health of claimants, the ALJ made the
following conclusions. In the first area, activities of daily living, Plaintiff has no limitation
because she lives alone, performs personal care, and completes household chores. As
to the second area, social functioning, Plaintiff has no limitation. Regarding the third
D.I. 7-:6 at 387.
Id. at 385.
element, concentration, Plaintiff has mild limitation because her concentration is
affected by pain. Significantly, the ALJ observed that, "Dr. Beebe consistently notes
normal memory in his records." 125 Considering the fourth aspect, episodes of
decompensation, Plaintiff has not experienced any episodes of extended duration. In
total, the ALJ found that Plaintiff's mental health limitations are non-severe. 126
Upon assessment of Plaintiff's residual functional capacity, the ALJ concluded
that Plaintiff does not have an impairment or combination thereof that is equivalent in
severity to an accepted disability listed in the applicable regulation. In summary,
Plaintiff's spinal impairments fail to meet testing criteria to indicate a compromise or
compression of nerve roots or the spinal cord, or inability to ambulate. Her symptoms
of asthma do not meet clinical criteria that would indicate severity to the level of an
accepted disability under the Acts. Further, her problems with motor functioning of the
upper extremities do not meet the definition of peripheral neuropathy, the neurological
impairment listed in the regulation .127
After considering the entire record, the ALJ concluded that Plaintiff maintains the
residual functional capacity to perform light work, with the exception of the following:
she can only occasionally climb ladders, ropes or scaffolds, occasionally crawl,
occasionally reach overhead with the bilateral upper- extremities; occasionally handle,
finger, and feel with her bilateral upper extremities; but may have frequent exposure to
extreme cold, extreme heat, humidity, vibration, fumes, odors, dust, gas, and poor
D.I. 7-6 at 389.
Id. at 390.
Weight Given to Treating Physicians
Although a treating physician's medical opinion should be given controlling
weight, after considering all evidence of record in conjunction with his observations of
Plaintiff and testimony at the hearing, the ALJ afforded no weight to the opinion of her
treating physician, Dr. Beebe. The ALJ's decision regarding weight did not turn on
whether the nature and severity of her impairments were well supported by medically
acceptable clinical and laboratory diagnostic techniques, but rather on whether the
opinion was inconsistent with the other substantial evidence in the record. This court
agrees with the ALJ that Dr. Beebe's opinion was inconsistent with other substantial
Specifically, no weight was given to either Dr. Beebe's written opinion that
Plaintiff is disabled and is "very unlikely to be able to return to the workforce" or his
opinion set forth in two Multiple Impairment Questionnaires, which appear inconsistent
in the determination of the severity of Plaintiff's conditions. 128 The ALJ found
contradictions among Dr. Beebe's various medical opinions and in relation to other
medical evidence of record. Spe9ifically, the ALJ noted, "[i]n his treatment notes, Dr.
Beebe never indicates  extreme limitations or places [such] restrictions on the
claimant and a recent office record from Dr. Beebe indicates normal ambulation and
normal motor strength and tone." 129 Further, the ALJ found that the movement
D.I. 10 at 5.
D.I. 7-6 at 389.
restrictions in Dr. Beebe's opinions and Plaintiff's testimony were "not borne out by her
actions at the hearing." 130
The ALJ considered, as he must, the medical findings supporting Dr. Beebe's
opinion that Plaintiff is disabled. His consideration was clearly indicated in the ALJ's
November 3, 2014 decision, in which he pointed to specific inconsistences within Dr.
Beebe's opinion and the record as a whole. For example, the ALJ noted that two
separate Multiple Impairment Questionr:iaires indicate different severities of Plaintiff's
condition. The ALJ rejected the treating physician's assessment, but did not make
speculative inferences from medical reports; rather, his rejection was on the basis of
contradictory medical evidence, including the vocational expert's testimony and medical
reports of other physicians who treated and evaluated Plaintiff.
Notably, under the disability determination standard, a statement by a treating
source that a claimant is disabled is not a medical opinion. 131 The ALJ is the only one
with authority to decide whether plaintiff is disabled. In other words, a finding of
"disabled" by a treating physician does not equate to the definition of disabled under the
Acts. Therefore, Dr. Beebe's written opinion that Plaintiff is disabled is not dispositive,
and the ALJ did not err in rejecting it as a medical opinion.
Factors in Evaluating Credibility
As stated above, a claimant's statements and reports from medical sources and
other persons, along with any other relevant information in the record, provide the ALJ
D.I. 7-6 at 389.
See20 C.F.R. § 416.927 (e)(1).
with an overview of the subjective complaints, and are elements to the determination of
credibility. However, the key component in the assessment of Plaintiff's credibility is
consistency between her testimony and the record. Plaintiff's claims may be less
credible if the level or frequency of treatment is inconsistent with the degree of her
complaints, or if the medical reports or records show noncompliance with prescribed
The ALJ concluded Plaintiff's testimony was not credible due to its inconsistency
with other evidence in the record. For example, the ALJ states: "[a]lthough the
claimant testified she continues to experience severe right upper extremity limitations,
the record indicates improvement with exercises and ability to go on a vacation less
than a month post-surgery." 132 The ALJ considered the record in comparison to
Plaintiff's testimony and concluded her "medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however ... [her] statements
concerning the intensity, persistence, and limiting effects of these symptoms are not
entirely credible .... "133 The ALJ did not observe during the hearing, the severity of
she claimed finding her testimony and Dr. Beebe's opinion not credible. The ALJ
specifically noted in his decision, "the hearing lasted for forty-five minutes without the
claimant having to get up and move around. This undermines her entire testimony on
the severity of her impairments." 134
Further, proper application of the credibility standard requires the ALJ's decision
0.1. 7-6 at 388-89.
Id. at 388.
Id. at 389.
to clearly explain the weight afforded to the claimant's statements and his reasoning, by
including sufficiently specific reasons from the record. The examples cited herein of his
reasoning, clearly delineated in his decision, suffice.
Plaintiff argues that the opinions of state agency medical consultants should not
have been afforded great weight. However, findings of fact by state agency medical
and psychological consultants, other psychologists and physicians, and the opinions of
non-examining physicians regarding the existence and severity of impairments and
symptoms are part of the analysis. The ALJ considered the vocational expert's
testimony, and also added limitations in Plaintiff's favor to that assessment, in making
the final determination of disability. The ALJ did not give the vocational expert's opinion
controlling weight, and therefore, did not err.
Summary Judgement Application
As stated above, in determining the appropriateness of summary judgment, the
court is required to review the entire record and draw all reasonable inferences in favor
of the non-moving party, but cannot weigh the evidence or make credibility
determinations. 135 In the absence of any genuine issue of material fact, then summary
judgment is appropriate for the movant. 136
This court, consistent with the finding by the ALJ, determines that Dr. Beebe's
opinion was inconsistent with other substantial evidence: therefore, the ALJ did not err
See supra part Ill (A).
by affording no weight to his opinion regarding disability. Moreover, under the disability
determination standard, a comment by a treating source that a claimant is disabled is
not a medical opinion, and only the ALJ is authorized to decide the issue of disability,
as when supported by substantial evidence in the record. Thus, this court has no
bases to reverse or remand the ALJ's decision, since there is no indication that the ALJ
acted beyond his regulatory authority.
The same analysis applies to the ALJ's conclusion that Plaintiff lacked credibility.
The ALJ found her testimony inconsistent with other evidence in the record, which was
thoroughly explained throughout his written decision. For example, the ALJ noted that
despite Plaintiff's testimony of continued severe right upper extremity limitations, the
record contradicts her testimony and indicates improvement with exercises, with
Plaintiff going on vacation within a month post-surgery. 137 As explained in the decision,
his personal observations of Plaintiff's condition during the hearing were inconsistent
with her allegations of severity.
Previously, in this decision, this court analyzed the propriety of the ALJ's decision
based solely on the grounds applied by the ALJ, 138 finding his determination proper and
consistent with the record. Therefore, Defendants' motion for summary judgment is
Plaintiff not only sought reversal of the final decision of the Commissioner
See supra part Ill (A).
denying her disability benefits. but alternatively, requests this matter be remanded for a
new hearing on the issue of whether she is disabled. Because the his findings that Dr.
Beebe's opinion was inconsistent with other substantial evidence are appropriately
supported by the record, the ALJ did not err by affording no weight to Dr. Beebe's
determination regarding disability. Since the ALJ applied the correct standards and
properly evaluated the facts, which are supported by substantial evidence in the record,
Plaintiffs motion for summary judgment is denied.
For the reasons contained herein, I recommend that:
1. Plaintiff's motion for summary judgement be denied.
2. Defendant's motion for summary judgement be granted.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1 )(B),
FED. R. CIV. P. 72(b)(1 ), and D. DEL. LR 72.1. The parties may serve and file specific
written objections within fourteen (14) days after being served with a copy of this Report
The parties are directed to the Court's Standing Order in Non-Pro Se matters for
Objections Filed under FED. R. CIV. P. 72, dated October 9, 2013, a copy of which is
available on the Court's website, www.ded.uscourts.gov.
/s/ Mary Pat Thynge
Date: May 23, 2017
United States Magistrate Judge
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