Padua v. Colvin

Filing 15

MEMORANDUM OPINION regarding motions for summary judgment (D.I. 12 , D.I. 13 ). Signed by Judge Richard G. Andrews on 3/2/2018. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WILFREDO LOPEZ PADUA,
Plaintiff,
: Civil Action No. 16-1027-RGA

v.

NANCY A. BERRYHILL, Acting
Commissioner of Social Security, :
Defendant.

MEMORANDUM OPINION

Wilfredo Lopez Padua, Middletown, Delaware; Pro Se Plaintiff.
Nora Koch, Acting Regional Chief Counsel Social Security Administration, and Patricia
Stewart, Assistant Regional Counsel, Office of the General Counsel, Philadelphia,
Pennsylvania; David C. Weiss, United States Attorney for the District of Delaware,
Wilmington, Delaware; Heather Benderson, Special Assistant United States Attorney,
Office of the General Counsel, Philadelphia, Pennsylvania, Attorneys for Defendant.

'Jr,

2018
March
Wilmington, Delaware

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Plaintiff, Wilfredo Lopez Padua, who appears prose, appeals the decision of
Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, denying his
application for disability insurance benefits under Title II of the Social Security Act.
42 U.S.C. §§ 401-434. Jurisdiction exists pursuant to 42 U.S.C. § 405(g).

See

Presently

pending before the Court are cross motions for summary judgment filed by Lopez and
the Commissioner. (D.I. 12, 13). Briefing is complete.

I.

BACKGROUND

A.

Procedural History

Lopez protectively filed for disability insurance benefits on July 13, 2013, alleging
disability as of March 5, 2012.

(D.I. 9-2 at 21 ).

His application was initially denied on

October 2, 2013, and upon reconsideration on December 27, 2013.

(Id.).

Two

administrative hearings were held before an Administrative Law Judge, the first on
November 14, 2014, and the second on April 15, 2015. 1 (Id. at 36-71).

Testimony

was provided by Lopez and a vocational expert during the second hearing. The ALJ
issued a decision on May 6, 2015, finding that Lopez was not disabled. (Id. at 21-31 ).
He sought review by the Appeals Council, submitted additional evidence, and his
request was denied on September 9, 2016, making the ALJ's decision the final decision

1

The first hearing explained how the review process works and advised Lopez of his
right to be represented by an attorney or non-attorney of his choice.

1

of the Commissioner. 2 (Id. at 2-4).

On November 4, 2016, Lopez filed the instant

action seeking review of the final decision.

B.

(0.1. 1).

Plaintiff's Testimony

Lopez was 34 years old when he testified at the April 2015 hearing.
41).

He is 5'10" and weighs 300 pounds.

wife and three children.

(Id.).

general equivalency degree.

(Id.).

He completed the

(Id. at 42).

Lopez is married and lives with his
9th

grade and later completed his

Spanish is his primary language, but he

speaks, reads, and writes "a little bit" of English.
construction and electricity.

(0.1. 9-2 at

(/d.).

He has vocational training in

(Id.).

Lopez last worked in 2010 as a crew leader for a cleaning company, and
currently receives welfare benefits and food stamps.
after he sustained a work related injury.

(Id. at 43).

He stopped working

(Id. at 43-44 ). Lopez unsuccessfully sought

light work that was not so painful on his back and legs.

(Id. at 44 ). Lopez explained

that he is unable to work due to herniated discs, pinched nerves, and arthritis in his
back.

(Id. at 44-45).

When Lopez makes a sudden movement or when he carries

something, the pain becomes severe to the extent that injections were required.
45).

Lifting anything more than ten pounds causes pain.

2

(Id. at

{Id.).

In Lopez's motion he states that on January 10, 2014, he requested a review of the
ALJ's decision by the Appeals Council, and on October 7, 2014, the Appeals Council
vacated the ALJ's hearing decision and remanded the case to the ALJ. (0.1. 12 at 1).
The record does not support this statement. Rather, the record reflects that on January
10, 2014, Lopez submitted a request for hearing by an ALJ (0.1. 9-4 at 13-14),
and on October 7, 2014, a notice of hearing issued advising Lopez that the hearing
would take place on November 14, 2014 (id. at 29-50).

2

Lopez is left handed. (Id. at 46).

He has a pinched nerve in the left shoulder

area, his hands swell, and the joints in his hands bother him.

(Id. at 45).

been told this could be arthritis and that he suffers from fibromyalgia.
The pain affects his ability to use his arms or hands. (Id. at 46).

Lopez has

(Id. at 45-46).

Lopez explained that

the left shoulder pain interferes with his ability to reach and he cannot freely move his
shoulder.

(Id. at 48-49).

He testified that he can no longer pick up tools or use tools

like he used to because his hands go numb and sometimes they "get kind of locked in
place." (Id. at 59).

Lopez's legs are very weak and he trips a lot. (Id. at 46).

He has

(Id.).

pain, arthritis in the left knee, joint pain all over, and radiant pain from his back.

Lopez rates his pain as seven (on a scale of one to ten), and testified that it
sometimes increases to ten.

(Id.).

He takes medication for the pain:

Ibuprofen daily,

a muscle relaxer at night, and Percocet as needed during the day. (Id. at 47).
takes Percocet for one or two weeks when the pain is severe.

(Id.).

headaches and frequent lightheadedness due to the pinched nerves.

Lopez has
(Id.).

not have a psychological impairment that interferes with his ability to work.
Lopez can walk no more than half a mile.

Lopez

He does
(Id.)

(Id. at 48). When he walks further

than that, his back "acts up", the pain increases, his legs get weak, and he starts to trip.
(Id.).

He can sit for one-half hour.

numb and his back hurts. (Id.).
to sit down.
ten steps.

(Id.).

When he sits longer than that his legs go

He can stand for ten or fifteen minutes and then has

(Id.) He is able to lift ten or fifteen pounds.

(Id. at 49).

3

(Id.) He can climb five to

Lopez tries to sleep during the day because he cannot sleep at night.
He does not do any household chores or yard work.
hobbies and he reads.
a lot of pain.

C.

(Id. at 50).

(Id. at 49-50).

(Id. at 49).

He has no

Lopez exercises from time to time when he is not in

(Id. at 50-51 ).

Plaintiff's Medical History, Condition, and Treatment

Lopez sustained a work related back injury in February 2012.

(D.I. 9-8 at 2).

A

few days after he was injured, Lopez presented to the emergency room upon his
employer's request for an assessment due to his continued complaints of pain.
An x-ray of the lumbar spine showed no abnormality.
diagnosed with lumbar back strain and shoulder strain.

(Id. at 6, 50).
(Id. at 3).

Lopez received chiropractic treatment and physical therapy.

(Id.).

Lopez was
Following the injury,

(Id. at 32-45). An MRI

taken on April 19, 2012, indicated well maintained disc height with slight desiccation of
the cervical discs from C2/3 through C5/6, slight narrowing with desiccation of the L5/S1
disc with a central and left paracentral disc herniation impinging the thecal sac without
stenosis. (Id. at 46, 52-53).
In late July 2013, Lopez presented to Westside Health to have disability forms
filled out. (Id. at 17). The records indicate his last clinic visit was one year prior to that

(i.e., 2012). (Id.) Nurse practitioner Paula Watson completed the form which indicates
Lopez's conditions of desiccation of intervertebral disc, disc bulge, and lumbosacral disc
herniation were expected to last six to twelve months and cause pain in the neck and
lower back, all of which causes limitations in activities including an inability to sit, stand,

4

or walk for prolonged periods.

(D.I. 9-8 at 29-30; D.I. 9-9 at 28-29, 38-39). A follow-up

was scheduled for four weeks or sooner as needed. (D.I. 9-9 at 23).
On September 25, 2013, Lopez underwent a consultative examination by Irwin L.
Lifrak, M.D.

(D.I. 9-8 at 63-69).

Upon examination Lopez had a slight limp and could

not heel/toe walk, but he retained normal grip strength and normal muscle tone and had
normal sensation. (Id. at 67).

Dr. Lifrak's diagnostic impression was degenerative

joint disease and possible disc damage that would account for Lopez's complaints of
pain. (Id. at 68).

Dr. Lifrak opined that within an 8-hour day, while taking usual and

customary breaks and without the aid of an assistive device, Lopez is able to perform
activities that may require him to walk either indoors or outdoors. (Id. at 68).

He

further opined that Lopez could climb stairs, sit and stand for 6 hours in an 8-hour day,
and lift as much as 10 pounds.

(Id. at 69).

When Lopez was seen at Westside Health on September 27, 2013, his condition
had not changed.

(D.I. 9-9 at 22).

Lopez was taking Ibuprofen for pain with very little

relief. (/d.).
On October 2, 2013, John Shane, M.D., a state agency physician, reviewed the
evidence and concluded that Lopez could perform a range of medium exertional work.
(D.I. 9-3 at 2-11).

On December 26, 2013, Vinod K. Kataria, M.D., also a state agency

physician, reviewed the evidence and Dr. Shane's assessment and affirmed the
assessment as written.

(Id. at 14-24).

5

On November 13, 2013, Lopez presented at Westside Health for a follow-up visit
regarding his complaints of back pain.

(D.I. 9-9 at 16). He reported that he continued

to experience back pain, had "decreased sensation on lateral thighs," but was not taking
anything for the pain. (Id.).

Lopez reported that Tramadol and Ibuprofen did not help

with the pain, and he was willing to try something else but was afraid of becoming
addicted to narcotics. (Id.).
pain. (Id.).

Lopez reported an inability to sleep or walk around due to

He requested a referral to a different orthopaedist.

(Id. at 18).

Lopez was seen by orthopaedist Stephen Malone, M.D., on December 2, 2013.
(D.I. 9-9 at 2-13).

Dr. Malone examined Lopez and reviewed his August 27, 2013

cervical and lumbar MRls.

(D.I. 9-8 at 25-27; D.I. 9-9 at 3-10, 42, 44, 52-53).

Dr.

Malone determined that Lopez's symptoms and presentation did not correlate with the
MRI studies.

(D.I. 9-9 at 9).

Dr. Malone advised Lopez that he did not think there was

any need for surgery and that Lopez was doing more harm than good by engaging in a
sedentary lifestyle. (Id. at 9).

Dr. Malone advised Lopez that he could resume his

normal activities, take his anti-inflammatory of choice, and taper the use of narcotics for
pain control.

(Id.).

He advised Lopez to continue on efforts towards weight loss,

opining that it may be a contributing factor to the back pain.

(Id.) Lopez was to return

to see Dr. Malone in two months. (Id.).
Jason Silversteen, M.D., of Christiana Care Neurology Specialists, examined
Lopez on January 23, 2014. (D.I. 9-10 at 12-15; D.I. 9-11 at 24-27).

Lopez

complained of worsening neck and low back pain, sensory symptoms, and subjective

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weakness of the left upper and lower extremities.

(Id.).

Repeat cervical and lumbar

spine MRls were ordered based upon the worsening of symptoms. (Id.) At Lopez's
follow-up visit on June 12, 2014, it was noted that EMG testing was normal and both
MRls revealed stable findings.

(D.I. 9-10 at 2, 7, 10-11 ).

Lopez reported having some

anxiety due to persistent pain, not sleeping well at night, having more low back spasms,
and taking Tramadol as needed. (Id. at 2).
Dr. Silversteen referred Lopez for evaluation of low back pain and neck pain.
(D.I. 9-10 at 16; D.I. 9-11 at 14). On July 29, 2014, Kartik Swaminathan, M.D, opined
that Lopez suffers from left C5-6 facet and stenosis.

(D.I. 9-10 at 16). Dr.

Swaminathan prescribed medication and planned to perform cervical facet/medial
branch injections to further diagnose and treat Lopez's condition.

(D.I. 9-10 at 16; D.I.

9-11 at 34 ). Lopez received sacroiliac joint injections on September 3, 2014, and a
lumbar transforaminal epidural steroid injection on October 1, 2014, but they did not
provide Lopez relief.

(D.I. 9-11 at 39-41, 47-48, 55-56, 59-63).

referred Lopez for a neurosurgical consult.

(Id. at 63).

Dr. Swaminathan

Dr. Swaminathan discussed

with Lopez a psychiatric visit "to consider functional causes of pain." (Id.).
Lopez presented to Gauray Mehta, M.D., on October 22, 2014, with complaints
of lumbar back pain and fecal incontinence.

(D.I. 9-9 at 54-57). The reason for the

visit was "cortisone shot in back causing issues, joint pain, burning sensation in L arm,
numbness in legs, pain in testicles." (Id. at 54).

Lopez was taken off Tramadol and

Cyclobenzaprine (used to treat muscle spasms) and prescribed Percocet.

7

(Id. at 57).

When Lopez was seen on October 27, 2014, he was advised to wean off Percocet.
at 6).

Records note he had an appointment with a neurosurgeon.

(Id.

(Id.).

Lopez presented to neurologist Pawan Rastogi, M.D., on October 29, 2014.
(D.I. 9-9 at 62-64; D.I. 9-10 at 18-20).

Dr. Rastogi assessed Lopez as having

significant lumbar radiculopathy related to a central disc protrusion at L5-S1.
at 64; D.I. 9-10 at 20).

(D.I. 9-9

Dr. Rastogi did not recommend surgery, but recommended that

Lopez continue to live with his symptoms for as long as possible, conservative
management with exercises, and pain management.

(Id.).

Throughout 2014, Lopez continued to be seen at Westside Health.
2-48).

(D.I. 9-12 at

In March, April, May, July, and October, Lopez complained of knee pain.

{Id.).

Lopez attended physical therapy, and underwent an MRI that revealed a ganglion cyst.

(Id. at 3-7, 11-12, 26-27, 39-40).

Lopez was seen by an orthopaedist on December 2,

2014 with complaints of left knee pain, moderate to severe.

(D.I. 9-9 at 79). The

orthopaedist diagnosed mild infra-patellar bursitis and patellar tendinopathy.

{Id.).

He

provided Lopez with a knee brace, recommended home exercises, and ice as needed.

(Id.)
On April 1, 2015, Lopez was seen by rheumatologist Eric M. Russell, D.O.
9-12 at 43-48 ).

(Id. at 43).

(D.I.

Lopez complained of joint pain for five months and ongoing back pain.

Dr. Russell identified multiple diffuse tender points suggestive of

fibromyalgia and prescribed Naproxen.

(Id. at 45-46).

When Lopez sought review by

the Appeals Council, he submitted as evidence a letter from Dr. Russell, dated July 24,

8

2015.

(D.I. 9-12 at 48).

Dr. Russell identified himself as Lopez's treating

rheumatologist, referred to a diagnosis of fibromyalgia, and indicated the condition was
being treated with medication. (Id.).

Dr. Russell stated that fibromyalgia "causes

diffuse muscle and joint pain that can limit functionality of the joints." (Id.).

D.

Vocational Expert's Testimony

A vocational expert testified at the administrative hearing.

(D.I. 9-2 at 51-55).

The VE characterized the work performed by Lopez during the last fifteen years as: light
semiskilled with a Specific Vocational Preparation ("SVP") 3 of 4; heavy semiskilled with
an SVP of 4; light skilled with an SVP of 6; and medium skilled with an SVP of 6.

(Id. at

52-53).
The VE was posed a hypothetical: could an individual of Lopez's age,
education, and work history who can perform work at the light exertional level, who can
occasionally climb ramps, stairs, ladders, ropes, and scaffolds, who can occasionally
balance, stoop, kneel, crouch, and crawl and who can have occasional exposure to
extreme cold, vibration, and unprotected heights, perform any of Lopez's past work.
(Id. at 53). The VE responded the individual could perform Lopez's past jobs of quality

3

"Specific Vocational Preparation is defined as the amount of lapsed time required by a
typical worker to learn the techniques, acquire the information, and develop the facility
needed for average performance in a specific job-worker situation." Conover v. Colvin,
2014 WL 7012502 n.16 (D.N.J. Dec. 12, 2014) (quoting Dictionary of Occupational
Titles, App'x C, 1991 WL 688702).

9

control and housekeeping supervisor.

(Id.).

The VE testified that at the light unskilled

level, the individual could also perform jobs as a preassembler for printed circuit boards,
garment folder, and housekeeper.

(Id. at 53-54).

When asked if the individual at the light level of exertion could perform Lopez's
past work when adding that the person could frequently reach with the dominant left
arm and could frequently handle and finger with both arms, the VE responded the
individual could perform past work as a housekeeping supervisor and quality control.
(Id. at 54 ).

Other jobs at this level that would accommodate the additional limitations

include housekeeper, inspector, and sorter.

(Id. at 55). The VE testified that if the

individual was limited to sedentary unskilled work he could perform work as a taper for
printed circuit boards and as a final assembler for bench work.

II.

(Id. at 54 ).

LEGAL STANDARD
The Court must uphold the Commissioner's factual decisions if they are

supported by "substantial evidence." See 42 U.S.C. § 405(g); see Brown v. Bowen,
845 F .2d 1211 , 1213 (3d Cir. 1988 ).
considerable amount of evidence.

Substantial evidence does not mean a large or a
Pierce v. Underwood, 487 U.S. 552, 565 (1988)

(citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
been defined as "more than a mere scintilla.
reasonable mind might accept as adequate."

It means such relevant evidence as a
Ventura v. Shala/a, 55 F.3d 900, 901 (3d

Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

10

Rather, it has

Credibility determinations are the province of the ALJ.

See Van Horn v.

Schweiker, 717 F.2d 871, 873 (3d Cir. 1983). They should be disturbed on review only
if they are not supported by substantial evidence.

Pysher v. Apfel, 2001 WL 793305, at

*3 (E.D. Pa. July 11, 2001 ).

Ill.

REGULATORY FRAMEWORK
Within the meaning of social security law, a "disability" is 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)(1 )(A). To be found disabled, an individual must have a "severe impairment"
which precludes the individual from performing previous work or any other "substantial
gainful activity which exists in the national economy."

See 20 C.F.R. § 404.1505. The

claimant bears the initial burden of proving disability.

See 20 C.F.R. § 404.1512(a);

Podeworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984). To qualify for disability
insurance benefits, the claimant must establish that he was disabled prior to the date he
was last insured.

See 20 C.F.R. § 404.131; Matullo v. Bowen, 926 F.2d 240, 244 (3d

Cir. 1990).
To determine disability, the Commissioner uses a five-step sequential analysis.

See 20 C.F.R. § 404.1520; Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir. 1999).
The claimant bears the burden of proof at steps one through four, and the
Commissioner bears the burden of proof at step five.

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Smith v. Commissioner of Soc.

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Sec., 631 F.3d 632, 634 (3d Cir. 2010).

If a finding of disability or non-disability can be

made at any point in the sequential process, the Commissioner will not review the claim
further.

See 20 C.F.R. § 404.1520(a)(4).

At step one, the Commissioner must

determine whether the claimant is engaged in any substantial gainful activity.

See 20

C.F.R. § 404.1520(a)(4)(i) (mandating a finding of non-disability when claimant is
engaged in substantial gainful activity).

If the claimant is not engaged in substantial

gainful activity, step two requires the Commissioner to determine whether the claimant
is suffering from a severe impairment or a combination of impairments that is severe.
See 20 C.F.R. § 404.1520(a)(4)(ii) (requiring finding of not disabled when claimant's

impairments are not severe).

If claimant's impairments are severe, at step three the

Commissioner compares the claimant's impairments to a list of impairments (the
"listings") that are presumed severe enough to preclude any gainful work. 4 See 20
C.F.R. § 404.1520(a)(4)(iii); Plummer, 186 F.3d at 428.

When a claimant's impairment

or its equivalent matches an impairment in the listings, the claimant is presumed
disabled.

See 20 C.F.R. § 404.1520(a)(4)(iii).

If a claimant's impairment, either singly

or in combination, fails to meet or medically equal any of the listings, the analysis
continues to steps four and five.

See 20 C.F.R. § 404.1520(d). 5

4

Additionally, at steps two and three, the claimant's impairments must meet the
twelve month duration requirement. See 20 C.F.R. § 404.1520(a)(4)(ii-iii).
5 Prior

to step four, the Commissioner must assess the claimant's RFC. See 20
C.F.R. § 404.1520(a)(4). A claimant's RFC is "that which an individual is still able to do
despite the limitations caused by his or her impairment[s]." Fargnoli v. Massanari, 247
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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) (stating a

claimant is not disabled if able to return to past relevant work).

"The claimant bears the

burden of demonstrating an inability to return to [his] past relevant work."
186 F.3d at 428.

Plummer,

If the claimant is unable to return to his past relevant work, step five

requires the Commissioner to determine whether the claimant's impairments preclude
him from adjusting to any other available work.

See 20 C.F.R. §§ 404.1520(g),

416.920(g) (mandating that a claimant is not disabled if the claimant can adjust to other
work); Plummer, 186 F.3d at 428. As previously stated, 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 id.

In other words, the Commissioner

must prove that "there are other jobs existing in significant numbers in the national
economy which the claimant can perform, consistent with his medical impairments, age,
education, past work experience, and [RFC.]" Id.

This determination requires the

Commissioner to consider the cumulative effect of the claimant's impairments, and a
vocational expert is usually consulted.
At step one, the ALJ found that Lopez met the insured status requirements of the
Act through June 30, 2017, and that he had not engaged in substantial gainful activity

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F.3d 34, 40 (3d Cir. 2001) (quoting Burnett v. Commissioner of Soc. Sec. Admin., 220
F.3d 112, 121 (3d Cir. 2000)).

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since March 5, 2012, the alleged onset date. (D.I. 9-2 at 23). At step two, the ALJ
found that Lopez has the following severe impairments: degenerative disc disease of
the lumbar spine and obesity.

(Id.).

At step three, the ALJ determined that Lopez's

impairments did not meet or equal the criteria of any of the impairments in the Listing of
Impairments. (Id. at 24). The ALJ found that Lopez has
the residual functional capacity to perform light work, 6 . . . except [he]
could occasionally climb ramps, stairs, ladders, ropes and scaffolds and
occasionally balance, stop, kneel, crouch and crawl. Additionally, the
claimant can have only occasional exposure to extreme cold, vibration and
unprotected heights.

(Id. at 25). At step four, the ALJ found that Lopez was able to perform his past relevant
work as a housekeeping supervisor and that this work does not require the performance
of work-related activities precluded by Lopez's RFC.

(Id. at 29).

In the alternative, at

step five, based on the VE's testimony, the ALJ determined there were other jobs that

6 "Light

work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be
very little, a job is in this category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing or pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities. If some can do light
work, we determine that he or she can also do sedentary work, unless there are
additional limiting factors such as loss of fine dexterity or inability to sit for long periods
of time." 20 C.F.R. § 404.1567(b). The Social Security Regulations define sedentary
work as follows: "Sedentary-work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job duties. Jobs are sedentary
if walking and standing are required occasionally and other sedentary criteria are met."
20 C.F.R. § 404.1567(a).
14

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exist in significant numbers in the national economy that Lopez is able to perform, and,
therefore, he was not under a disability from March 5, 2012 through the date of the May
6, 2015 decision.

IV.

(Id. at 29-30).

DISCUSSION
Lopez filed his Complaint prose.

Therefore, the Court must liberally construe

his pleadings, and "apply the applicable law, irrespective of whether he has mentioned it
by name." Holley v. Department of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir.
1999); see also Leventry v. Astrue, 2009 WL 3045675 (W.D. Pa. Sept. 22, 2009)
(applying same in the context of a social security appeal).
Lopez states that the purpose of his motion is so the Court "will consider all the
evidence and determine if [he] is granted disability." (0.1. 12 at p.2). The
Commissioner argues that Lopez is not disabled because he remains capable of
performing jobs that exist in the economy despite the limiting effect of his impairment.
The Commissioner further argues that:

(1) the evidence Lopez submitted to the

Appeals Council does not warrant remand, (2) Lopez has not attempted to
demonstrated this evidence meets the basic requirements necessary for review, (3) the
letter Lopez submitted to the Appeals Council does not contain any medical opinion
directly related to Lopez, and (4) remand for consideration of Lopez's Appeals Council
evidence is not warranted.

Finally, the Commissioner contends that substantial

evidence supports the ALJ's decision denying Lopez's application for disability benefits.

A.

.

Substantial Evidence

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The final responsibility for determining a claimant's residual functional capacity is
reserved to the Commissioner.

See Breen v. Commissioner of Soc. Sec., 504 F. App'x

96 (3d Cir. 2012) (citing 20 C.F.R § 404.1546(c)).

Here, the ALJ considered the effects

of Lopez's condition in relation to his ability to perform work.

The ALJ found that Lopez

has the severe impairments of degenerative disc disease of the lumbar spine and
obesity.
It is clear in reading the ALJ's decision that he thoroughly reviewed Lopez's
longitudinal treatment history.

(D.I. 9-2 at 21-31).

Lopez stated he was unable to work

due to back pain, high blood pressure, left knee problems, left wrist injury, left shoulder,
scoliosis and a herniated disc.

Lopez takes Ibuprofen, a muscle relaxer at night and

Percocet as needed, with no reported side effects.

Medical records indicate he has

only conservatively treated his back. An orthopedist advised Lopez to resume normal
activities. A neurosurgeon advised Lopez to pursue conservative management of his
back impairment.

In addition, objective studies, including MRls, nerve conduction

studies, and EMG studies do not support Lopez's alleged functional limitations. The
ALJ noted that Lopez had recently seen a rheumatologist who observed Lopez to have
multiple diffuse tender points in all his extremities "suggestive" of fibromyalgia.
In assessing Lopez's physical residual functional capacity, the ALJ afforded
significant weight to the opinion of State agency medical consultant Dr. Lifrak.

Dr.

Lifrak found Lopez could sit six hours out of an eight-hour workday, or could stand six
hours out of an eight-hour workday, and could lift ten pounds with either hand on a

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regular basis.

(D.I. 9-8 at 69). The ALJ noted, in particular, that Dr. Lifrak examined

Lopez personally and his opinion is consistent with the medical evidence as a whole
and consistent with his reported clinical findings.

While the assessment occurred prior

to finding that Lopez's condition was "suggestive of fibromyalgia," the ALJ did not
"elevate [his] own medical opinion over those of [reporting] physicians, but rather made
a finding based on all of the evidence in the record, including evidence not considered
by the ... state agency reviewing physician[s]."

See Callahan v. Colvin, 2014 WL

7408700, at *1 n.1 (W.D. Pa. 2014).
Finally, at the time of the ALJ's decision, Lopez had not been diagnosed with
fibromyalgia. That diagnosis did not appear until Lopez sought review by the Appeals
Counsel.

Regardless, in evaluating fibromyalgia, co·urts acknowledge that "the

symptoms of the disease are entirely subjective" and medical testing may not be able to
assess its severity.

Singleton v. Astrue, 542 F. Supp. 2d 367, 377 (D. Del. 2008).

Because of the subjectivity of the symptoms of fibromyalgia, the credibility of a
claimant's testimony is paramount when evaluating whether a claimant's fibromyalgia
impairment is disabling.

Singleton, 542 F. Supp. 2d at 378.

The ALJ's thorough assessment of Lopez's medical condition demonstrates his
understanding of his medical conditions.

The ALJ fully detailed Lopez's subjective

complaints of pain and his testimony regarding daily living activities, and then provided
a detailed explanation of why he found Lopez not entirely credible and his subjective
complaints not fully persuasive.

(D.I. 9-2 at 28).

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The substantial evidence of record supports the ALJ's residual functional
capacity assessment for light work with limiting factors such as: (1) occasional climbing
ramps, stairs, ladders, ropes, and scaffolds; (2) occasional balancing, stooping,
kneeling, crouching, and crawling; and (3) occasional exposure to extreme cold,
vibration, and unprotected heights. The ALJ thoroughly analyzed the medical
evidence, considered the medical opinions, and appropriately relied upon the testimony
of the VE. Accordingly, the Court finds that substantial evidence supports the ALJ's
ruling and his evaluation of Lopez's residual functional capacity.

B.

Sentence Six Remand

Plaintiff submitted additional evidence to the Appeals Council that was not before
the ALJ when he rendered his decision. While the Appeals Council considered the
evidence, it denied Lopez's request for review.
When a claimant submits evidence after the ALJ's decision, that evidence cannot
be used to challenge the ALJ's decision on the basis of substantial evidence.
Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001 ).

See

Pursuant to 42 U.S.C. § 405(g),

sentence six, this Court may order a remand based upon evidence submitted after the
ALJ's decision, but only if the evidence satisfies three prongs:

(1) the evidence is new;

(2) the evidence is material; and (3) there was good cause why it was not previously
presented to the ALJ.

Matthews, 239 F.3d at 593.

Lopez has not demonstrated that the evidence is new and/or material.

In

addition, Lopez provided no explanation, much less good cause, for his failure to
present the evidence to the ALJ.

The hearing was held April 15, 2015.
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Lopez saw Dr.

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Russell on April 1, 2015.

Regardless, Dr. Russell's letter lends no support to Lopez's

claim for disability benefits.

It explains the condition of fibromyalgia, but it does not

indicate how the condition affects Lopez.

Under 42 U.S.C. § 405(g), the Court's review

is limited to the evidence in the record at the time of the ALJ's 2015 decision. The
Court finds no basis to remand pursuant to the sixth sentence of 42 U.S.C. § 405(g). 7

V.

CONCLUSION
For the reasons discussed above, the Court will:

(1) deny Lopez's motion for

summary judgment (D.I. 12); and (2) grant the Commissioner's cross-motion for
summary judgment (D.I. 13).
A separate order will be entered.

7 Plaintiff

has available the option of filing a new application should he believe the
new evidence supports an award for disability insurance benefits. See 20 C.F.R. §
416.330(b).
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