McDonald v. Colvin

Filing 22

MEMORANDUM ORDER: The Report and Recommendation (D.I. 17 ) is ADOPTED in part and REJECTED in part. Plaintiff's motion for summary judgment (D.I. 9 ) is GRANTED. Defendant's motion for summary judgment (D.I. 14 ) is DENIED. The case is REMANDED to the Commissioner for further consideration consistent with this Memorandum Order. Signed by Judge Richard G. Andrews on 9/1/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MICHELLE D. MCDONALD,

Plaintiff,
Civil Action No. 16-611-RGA

v.

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM ORDER

Plaintiff, Michelle D. McDonald, appeals the decision of Defendant, Nancy A. Berryhill,
the Acting Commissioner (the "Commissioner") of the Social Security Administration, which
denied Ms. McDonald's application for Social Security disability insurance benefits ("DIB") or
Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social
Security Act. 42 U.S.C. §§ 401-34, 1381-1383f. This Court has jurisdiction pursuant to 42
U.S.C. § 405(g), which grants original jurisdiction to the District Courts to review a final
decision of the Commissioner.
Presently pending before the Court are cross-motions for summary judgment filed by Ms.
McDonald and the Commissioner. (D.I. 9, D.I. 14).
The motions were referred to the United States Magistrate Judge (D.I. 11 ), who issued a
Report and Recommendation recommending that Ms. McDonald's motion be denied, and the

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Commissioner's motion be granted. (D.I. 17). Ms. McDonald filed objections (D.I. 18) to which
the Commissioner has responded. (D.I. 20). I review the objections to the Report and
Recommendation de nova. See Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).
Ms. McDonald has requested that the Court reverse the decision of the Commissioner and
find her disabled, or in the alternative, remand this matter for further administrative proceedings.
(D.1. 18 at 4). For the reasons set forth below, the Court sustains Plaintiffs objection with
regards to the credibility of her treating physician and requires that a new hearing be granted
consistent with this order.
I.

BACKGROUND
a. Procedural History
Ms. McDonald filed for DIB, and later for SSI, alleging disability beginning on

November 15, 2011 due to severe physical ailments, including degenerative disc disease of the
cervical spine and carpal tunnel syndrome. (D.I. 7-6 at 382, 384). A hearing was held before an
ALJ on September 10, 2014. (Id. at 382). The ALJ subsequently found that Ms. McDonald did
not qualify as "disabled" under the Act and denied her request for benefits. After the ALJ's
denial, Plaintiff requested review by the Social Security Appeals Council, but was denied. She
then filed a timely appeal to this Court.

b. Plaintiff's Medical History, Condition, and Treatment
At the time of her alleged disability, Ms. McDonald was 46 years old, which is defined as
a younger individual under 20 CFR § 404.1563 (c). (D.1. 7-6 at 390). Ms. McDonald has past
relevant work as a sales representative and possesses a high school education. (Id. at 389-90).
Ms. McDonald's detailed medical history is contained in the record, but the Court will
provide a brief summary. On November 15, 2011, McDonald stopped working. She said it

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was"because of [her] condition(s) [and] other reasons." (D.1. 7-11 at 569). She elaborated: "The
main reason was due to lay-off. I'm finding it hard [to] find work as I had limitations. The work
I was performing prior to lay-off was worsening my medical conditions." (Id.). Since that time,
Ms. McDonald 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. (D.I. 7-6 at 387-89). Ms. McDonald has also experienced
gastrointestinal issues and associated chest pain, which began in November 2013. (D.1. 7-7 at
409). She has also had numerous endoscopies, saw various specialists, and had gallbladder
surgery in January 2014. (Id.). Ms. McDonald is currently taking Linzess for bowel issues,
which forces her to remain close to a bathroom for most of the day. (Id. at 410).
Ms. McDonald has been treated by Dr. James Kirkland Beebe, M.D. since November,
2011. (D.I. 7-21 at 1185). Six months after beginning treatment with Dr. Beebe, Ms. McDonald
complained of difficulty sleeping and problems related to arthritis in both of her shoulders. (D.I.
7-12 at 692). X-rays of the cervical spine showed significant arthritic changes. (Id. at 708). She
also complained of increased neck pain on July 2, 2012 and Dr. Beebe diagnosed osteoarthritis
of the cervical spine and prescribed Aleve and Tylenol. (Id. at 690). In September 2012, she
complained of right hand numbness and was diagnosed with right carpal tunnel syndrome. (Id.
at 750). X-rays of the spine and knees have also shown significant damage in these areas. (Id. at
907).
On November 20, 2012, Dr. Beebe completed a Doctor's Certificate for the Delaware
Department of Labor, where he diagnosed cervical radiculopathy and bilateral carpal tunnel
syndrome, concluding that Ms. McDonald was "disabled from all work indefinitely." (D.I. 7-16
at 928). In an assessment of Ms. McDonald noted in a Multiple Impairment Questionnaire dated

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July 2, 2013, Dr. Beebe diagnosed "cervical degenerative disc disease, osteoarthritis with
bilateral cervical radiculopathy, bilateral carpal tunnel syndrome, and cubital tunnel syndrome."
(D.1. 7-19 at 1105) Dr. Beebe estimated that Ms. McDonald's 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). (Id. at 1107). In Dr. Beebe's July opinion, Ms. McDonald could not stand/walk
continuously, must stand and move around for a period of20 minutes each 15-20 minute interval
if sitting, could not lift any weight, and could not carry more than five pounds and then only
occasionally. (Id. at 1108)
Dr. Beebe examined Ms. McDonald again on August 15, 2013 and noted: generalized
osteoarthritis, cervical spondylosis without myelopathy, lumbosacral neuritis/radiculitis, and
carpal tunnel syndrome. (D.I. 7-20 at 1122). A month later on September 17, 2013, he
completed a second Multiple Impairment Questionnaire. (D.1. 7-21 at 1185). In this
submission, his opinions were that she could only sit for shorter periods, and that she could not
lift more than ten pounds occasionally. (Id. at 1187-88).
Dr. Beebe noted "severe pain in the right wrist" on November 5, 2013. (D.1. 7-20 at
1129).
On February 18, 2014, Dr. Beebe wrote a summary to Plaintiffs attorneys, in which he
concluded that Ms. McDonald was "disabled by her cervical and lumbar osteoarthritis,
degenerative disc disease, bilateral carpal tunnel and bilateral cubital tunnel syndromes [which]
have unfortunately not responded to surgical therapy and/or steroid injections. She also failed
physical therapy, which she attended for at least eighteen months." (D.1. 7-16 at 962). He added
that she was "very unlikely to be able to return to the workforce" because he did not expect her
to improve. (Id.).

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c. ALJ Decision
The ALJ found that Ms. McDonald had the severe impairments of degenerative disc
disease of the cervical spine, carpal tunnel syndrome, and asthma. (D.I. 7-6 at 384). The ALJ
further found that while Ms. McDonald's impairments did not meet a Listing, they limited her to
a reduced range oflight work. (Id. at 386-87). Therefore, Ms. McDonald could not perform past
relevant work, but could perform light work as defined in 20 CFR § 404.1567(b) and 416.967(b),
such as working as a final inspector, order caller, or redemption clerk. (Id. at 386-90). The ALJ
provided "no weight to the opinions provided by Dr. Beebe." (Id. at 389). Accordingly, the ALJ
concluded that Ms. McDonald was not disabled within the meaning of the Social Security Act.

(Id. at 391).
II. LEGALSTANDARD

a. Standard of Review
As noted, I undertake de nova review of the recommendations to which the objections
were made. This review requires the Court to re-examine all the relevant evidence in deciding
whether to uphold or reverse the Commissioner's decision. The Court must uphold the
Commissioner's factual determinations if they are supported by "substantial evidence." See 42
U.S.C. §§ 405(g), 1383(c)(3); Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986).
"Substantial evidence" means less than a preponderance of the evidence but more than a mere
scintilla of evidence. See Rutherford v. Barnhart, 399 F.3d 546, 552 (2d Cir. 2005). As the United
States Supreme Court has noted, substantial evidence "does not mean a large or significant
amount of evidence, but rather such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citing

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

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In determining whether substantial evidence supports the Commissioner's findings, the
Court may not undertake a de nova review of the Commissioner's decision and may not re-weigh
the evidence ofrecord. See Monsour, 806 F.2d at 1190. The Court's review is limited to the
evidence that was actually presented to the ALJ. See Matthews v. Apfel, 239 F.3d 589, 593-95 (3d
Cir. 2011 ). "Credibility determinations are the province of the ALJ and only should be disturbed
on review if not supported by substantial evidence." Pysher v. Apfel, 2001 WL 793305, at *3
(E.D. Pa. July 11, 2011).
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.

Kent v. Schweiker, 710 F.2d 110, 143 (3d Cir. 1983). Even ifthe reviewing Court would have
decided the case differently, it must give deference to the ALJ and affirm the Commissioner's
decision if it is supported by substantial evidence. See Monsour, 806 F.2d at 1190-91.

b. Analysis
Plaintiff makes two arguments in support ofher contention that theALJ's decision should
be reconsidered. First, Plaintiff argues that the ALJ failed to properly weigh the medical
opinions of her treating physician. (D.I. 18 at 1). Second, Plaintiff argues that the ALJ failed to
properly weigh Plaintiff's credibility. (Id.).

i. The AL! Did Not Set Forth Sufficient Reasons to Reject Dr. Beebe's
Opinions
Plaintiff argues that the ALJ failed to properly weigh the medical opinion evidence from
the Plaintiff's treating physician. The ALJ gave no weight to Dr. Beebe's opinions for three

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stated reasons: (1) Plaintiff sat for 45 minutes at the hearing and did not get up and move around
(D.I. 7-6 at 389), which was inconsistent with Dr. Beebe's questionnaire responses that Plaintiff
had to get up and move around every 15-20 minutes (D.I. 7-19 at 1107) or every 10 minutes (D.1.
7-21 at 1187); (2) Dr. Beebe's medical records do not "indicate[] these extreme limitations or
place[] these restrictions on [Plaintiff]; and (3) a recent office visit on June 4, 2014, had indicated
"normal ambulation and normal motor strength and tone." (D.I. 7-6 at 389, citing D.I. 7-22 at
1212).
An ALJ "may not reject [a physician's findings] unless he first weighs them against other

relevant evidence and explains why certain evidence has been accepted and why other evidence
has been rejected." Mason v. Shala/a, 994 F.2d 1058, 1067 (3d Cr. 1993).

Further, the ALJ

"may reject a treating physician's opinion outright only on the basis of contradictory medical
evidence and not due to his or her own credibility judgments, speculation, or lay opinion."
Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000)(citing multiple Third Circuit cases). In
Morales, the Court noted that "an ALJ may consider his own observations of the claimant and
[the Court] cannot second-guess the ALJ's credibility judgments, [but] they alone do not carry
the day and override the medical opinion of a treating physician that is supported by the record."
Id. at 318. Plaintiff objects to the ALJ rejecting credible medical evidence on the basis of
observation during a hearing, and argues that the Third Circuit has rejected the so called "sit and
squirm" test to determine credibility. See Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir.
1983). I note that Van Horn is a more extreme case, in that theALJ was evaluating the
claimant's mental state, that is, acting as a psychiatrist.
Here, the ALJ explained why he rejected Dr. Beebe's opinions. So let's look at the
reasons given.
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As to the first reason, the ALJ's observations of Plaintiff cannot form the basis for
rejecting Dr. Beebe's opinions. The ALJ's observations are not medical evidence. Further, what
the ALJ sees at a 45 minute hearing does not actually contradict the opinions that Dr. Beebe gave
in the "Multiple Impairment Questionnaires." The ALJ saw the behavior of a litigant sitting in
front of a judge for a single 45 minute session. Dr. Beebe was asked to opine on Plaintiff's
limitations "in a normal COMPETITIVE FIVE DAY A WEEK WORK ENVIRONMENT ON A
SUSTAINED BASIS [with] an eight-hour day." (E.g., D.I. 7-19 at 1107 (emphasis in original)).

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In that context, he was asked, "Would it be necessary or medically recommended for your patient
not to sit continuously in a work setting," to which he answered, "Yes." The question the ALJ
found to be inconsistent with Plaintiff's behavior at the hearing then followed: "How frequently
must your patient get up and move around?" It is not, "Could your patient one-off sit for 45
minutes without getting up?" It is not even close to that. See Brownawell v. Comm 'r, 554 F.3d
352, 356 (3d Cir. 2008) (noting that examination assessment and workplace setting assessment
are different). The ALJ's observations provided no weight for the ALJ's decision to reject Dr.
Beebe's opinions outright.
As to the second reason, the absence of description of workplace limitations in medical
records is not a basis to reject a treating physician's opinions. The Third Circuit "has
admonished ALJ s who have used such reasoning, noting the distinction between a doctor's notes
for purposes of treatment and that doctor's ultimate opinion on the claimant's ability to work."
Id. The second reason is therefore insufficient.

As to the third reason, unlike the first two, it is based on medical evidence. Let's
consider the context. Plaintiff claims disability since November 2011. Dr. Beebe's "Multiple
Impairment Questionnaires" are dated July 2, 2013 (D .I. 7-19 at 1110) and September 17, 2013
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(D.I. 7-21at1192). The "contradictory medical evidence" is an office visit on June4, 2014.
Plaintiff's hearing was on September 10, 2014. The June 4 office visit described "normal
ambulation and motor strength." Dr. Beebe's opinions were that Plaintiff suffered from cervical
degenerative disc disease with radiculopathy and bilateral carpal tunnel syndrome. His
questionnaires generally describe numbness and pain in her hands, wrists, and neck. It does not
appear to be the case that he has ever said that she had anything other than normal ambulation.
There is nothing which suggests that ability or inability to walk was relevant to Dr. Beebe's
opinions. Further, the Commissioner cites nothing as to why "normal motor strength" is
inconsistent with Dr. Beebe's opinions about pain and accompanying limitations arising from
degenerative disc disease and the effects of carpal tunnel syndrome.
In her response to the objections (D.I. 20) and in the underlying briefing (D.I. 15 pp. 10-

12), Defendant did not completely abandon the ALJ's stated reasons for rejecting Dr. Beebe's
opinions, although neither did Defendant do much more than repeat them. Rather, Defendant
primarily argued that his opinions were "unsupported by medical findings and inconsistent with
the record as a whole." (D.I. 20 at 2; D.I. 15, p.12). I note that most of the cited evidence is
Plaintiff's activities of daily living, with some reference to the opinions of the state agency
doctors. As to the former, it is not medical evidence; as to the latter, I do not express any opinion
what weight such evidence should be given in deciding whether to reject Dr. Beebe's opinions.
Explaining the reasons for rejecting Dr. Beebe's opinions is something that, in the first instance,
the ALJ must do. The ALJ decided to reject the opinions for improper reasons and/or irrelevant
reasons; the Commissioner cannot now justify the ALJ's action based on reasons on which the
ALJ did not rely.

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I do not think that the ALJ has cited any reasons that are legally permissible or based on
substantial evidence for rejecting Dr. Beebe's opinions outright. Thus, it will be necessary to
remand this case to the Commissioner for further proceedings consistent with this Memorandum
Order.
n. The AL.J Properly Evaluated Plaintiff's Credibility
Plaintiff asserts that the ALJ erred in failing to properly evaluate her credibility. (D.I. 18
at 3). "An ALJ must give great weight to a claimant's subjective testimony of the inability to
perform even light or sedentary work when this testimony is supported by competent medical
evidence." Shaudeck v. Com 'r., 181 F.3d 429, 433 (3d Cir. 1999). When making credibility
findings, the ALJ must indicate which evidence he rejects and which he relies upon as the basis
for his findings. See id. The ALJ's decision need only be specific enough to allow a reviewing
court to determine the weight given to the claimant's statements and the reasons for the weight.
See id.

Here, after evaluating the evidence, the ALJ determined that Plaintiff's impairments
could reasonably be expected to cause the alleged symptoms. (D.I. 7-6 at 388). However, the
ALJ found Plaintiff's statements regarding the intensity, persistence, and limiting effects of these
symptoms were not credible for reasons explained in his decision. (Id.). Courts ordinarily defer
to an ALJ' s credibility judgments so long as they are supported by substantial evidence. See
Brank v. Astrue, 636 F.Supp.2d 335, 344 (D.Del 2009).

The ALJ explained the reasons for his determination. (D.1. 7-6 at 388-89). Other than
the reference to Plaintiff not getting up and moving around at the hearing as "undermin[ing] her
entire testimony on the severity of her impairments," the ALJ's stated reasons provide a basis for

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his conclusion. That is sufficient. Since the case is going to be remanded in any event, the ALJ
should reconsider Plaintiff's credibility without relying upon her physical actions or inactions at
the hearing.

III. CONCLUSION
For the reasons discussed above, the Report and Recommendation (D.I. 17) is
ADOPTED in part and REJECTED in part. Plaintiffs motion for summary judgment (D.I. 9)

is GRANTED; Defendant's motion for summary judgment (D.I. 14) is DENIED. The case is
REMANDED to the Commissioner for further consideration consistent with this Memorandum

Order.
Entered this

j_ day of September 2017.

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