Milliman v. Colvin
REPORT AND RECOMMENDATIONS re 10 MOTION for Summary Judgment Plaintiff's Motion for Summary Judgment filed by Barry Roland Milliman, 14 MOTION for Summary Judgment filed by Carolyn W. Colvin. Please note that when filing O bjections 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 9/25/2017. Signed by Judge Mary Pat Thynge on 9/7/17. (cak)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BARRY ROLAND MILLIMAN,
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
C.A. No. 16-1279-LPS-MPT
REPORT AND RECOMMENDATION
This action arises from the denial of plaintiff's claim for Social Security benefits.
On December 26, 2013, plaintiff filed an application for Social Security Disability
Insurance Benefits under Title II of the Social Security Act. 1 In his initial application,
plaintiff alleged that he was disabled due to several impairments including brittle
diabetes impairment, reflex sympathetic dystrophy, coronary artery disease ("CAD"),
hypertension cardiovascular disease, asthma, vertigo, acid reflux, and hiatal hernia as
well as other digestive and cardiovascular disorders. 2 Plaintiff's application was initially
denied on April 3, 2014, and upon reconsideration on August 22, 2014. 3 Plaintiff then
requested a hearing before the Administrative Law Judge ("ALJ"), who issued an
unfavorable decision on June 24, 2016. 4 Plaintiff requested that the agency's appeal
D.I. 6-2 at 33.
D.I. 6-3 at 91-92.
Id. at 30.
council review the ALJ 's decision on July 8, 2016. 5 However, the Appeals Council
denied review on October 21 , 2016. 6 On December 20 , 2016, plaintiff filed a timely
appeal with this court.7 Presently before the court are the parties' cross-motions for
summary judgment. For the reasons that follow, the court recommends that
defendant's motion for summary judgment be granted.
Plaintiff was born on October 24 , 1952. 8 He has a high school education and
previously worked as a customer service coordinator and invoice control clerk. 9 He
claimed that his disability onset date was November 15, 2013. 10 After working for the
same company for almost 30 years, plaintiff was fired in November 2013. 11 He then
visited multiple doctors who advised him to not seek new employment because of his
poor health. 12 Following the advice of his doctors, since November 2013 plaintiff has
not returned to any form of work. 13 To qualify for disability benefits, plaintiff must
demonstrate that he was disabled within the meaning of§§ 216(1 ), 223(d), and
1614(a)(3)(A) of the Act.
Plaintiff has experienced digestive, cardiovascular, and musculoskeletal issues
D. I. 11 at 1.
D.I. 6-2 at 54.
Id. at 54-56.
Id. at 33.
Id. at 55-56.
Id. at 58-59.
Id. at 59.
since at least November 2013 , although most of his conditions pre-date his alleged
disability period. Plaintiff had multiple cardiac stents inserted , and experienced chest
pain for many years. 14 On October 21 , 2013 , he visited his long-time cardiologist
Thomas Molloy, M.D., for a follow-up on his coronary heart disease and chest pain. 15
Dr. Molloy diagnosed plaintiff with coronary artery disease, diabetes mellitus Type II ,
hypertension, hyperlipidemia , dysmetabolic syndrome X, obesity, shortness of breath ,
and angina. 16 Plaintiff visited Dr. Molloy again on December 4, 2013. At that visit,
plaintiff reported his health issues improved since he was fired and he was worried his
health would worsen if he returned to work.17 He still experienced chest pains , though
less frequently. 18 His stress echocardiogram tests in March 2010 , February 2011 , and
March 2013 were normal with a resting ejection fraction of 60%. 19
On January 15, 2014, plaintiff visited Dr. Shoshana Feiner, an internal medicine
specialist, who prepared an lmpairm. nt Questionnaire and diagnosed Type II diabetes,
metabolic syndrome, angina/CAD/hyperlipidemia, gastroesophageal reflux disease, and
irritable bowel syndrome. 20 Dr. Feiner found that plaintiff could only sit for a total of two
hours and walk/stand for three hours in an eight-hour workday. 21 Plaintiff also would
need to move around every hour for at least five minutes. 22 In addition , his pain ,
D.I 6-8 at 297-98.
Id. at 322.
Id. at 313.
Id. at 308.
D.I. 6-7 at 289 , 295.
D.I. 6-12 at 695.
Id. at 697.
Id. at 697-98.
fatigue , or other symptoms would periodically interfere with his attention and
After visiting Dr. Feiner, plaintiff visited Dr. Molloy who completed a Cardiac
Impairment Questionnaire. 24 Dr. Molloy diagnosed plaintiff with CAD with class Ill
angina, as well as fatigue, shortness of breath, and weakness. 25 He stated plaintiff
could sit for an hour and stand/walk for an hour in an eight-hour work day and could not
lift even five pounds. 26 He further determined plaintiff's impairments and treatments
could result in absences from work over three times per month, and his symptoms
would frequently interfere with attention and concentration .27 He opined that plaintiff is
unable to perform any activity that requires physical activity or mental stress and did not
expect plaintiff's situation to improve. 28
Plaintiff routinely had normal physical examination findings during his physician's
visits throughout the alleged disability period .29 In August 2015, plaintiff was seen by
Dr. Molloy and explained that he was not exercising or dieting as recommended
because he had been caring for his wife who has Stage 4 Colon Cancer. 30 In
December 2015, plaintiff underwent a cardiac catheterization because of his increasing
cardiac symptoms and abnormal EKG .31 Plaintiff stated that he no longer had
Id. at 700 .
Id. at 704.
Id. at 706-07.
Id. at 707.
Id. at 710.
D.I. 6-8 at 310-11; Id. at 320 ; D.I. 6-15 at 882-83.
D.I. 6-15 at 894.
D.I. 6-14 at 855 .
shortness of breath and only had occasional chest pain. 32
In addition , plaintiff suffers from reflex sympathetic dystrophy in his left foot
which prevents him from standing or walking for an extended period of time. 33 From
February to September 2014, he was treated by podiatrist, Jacob Reinkraut, D.P.M. , to
address foot pain. 34 He was diagnosed with diabetic neuropathy, pain syndrome/RSD ,
and elongated mycotic nails.35 By April , his foot pain had lessened and Dr. Reinkraut
recommended pain management, but plaintiff declined .36
Plaintiff was diagnosed with diabetes in 2009 and was treated by Michael
Magnotti, M.D. , an endocrinologist, for this condition since 2012. 37 Dr. Magnotti's
findings have remained consistent with plaintiff having 5/5 muscle strength in his legs,
no edema in his extremities, and grossly nonfocal neurological examinations.38 On April
7, 2014, Dr. Magnotti completed a Diabetes Impairment Questionnaire. 39 He did not
opine about plaintiff's ability to sit, stand , wal k, or lift, his stress levels and ability to
concentrate during an 8-hour work day, because Dr. Magnotti felt he was unable to
assess these abilities. 40
Plaintiff has also visited chiropractors fo r musculoskeletal pain .41 Dr. Joseph
D.I. 6-12 at 725.
D. I. 6-13 at 755-57.
D.I. 6-12 at 722.
D. I. 6-13 at 756 .
D. I. 6-12 at 671 ; Id. at 648-94.
D.I. 6-13 at 732 ; Id. at 736-37 ; Id. at 740.
D. I. 6-12 at 71 1-16 .
Id. at 714-15.
See generally D.I. 6-10 .
Scarpelli , D.C. , a chiropractor, treated him for many years. 42 An MRI in 2008 revealed
bilateral pars defect at LS and a mild disc bulge at L4-5 with normal facet joints and no
canal or foraminal stenosis. 43 A cervical MRI in 2010 showed that there was left-sided
forminal stenosis at C5-6 and mild multilevel facet joint hypertrophy at C5-6, with no
disc herniation. 44 On August, 12, 2013, Dr. Scarpelli signed an application for a
disabled parking placard , stating plaintiff was severely limited in his ability to walk
because of an arthritic, neurological, or orthopedic condition and could not walk two
hundred feet without stopping to rest. 45
Plaintiff also suffers from asthma .46 In September 2013, he had mild restrictive
ventilatory defects;47 however, he has not related any asthma-related problems to his
treatment providers. 48
The state agency physicians performed two disability determination evaluations
of plaintiff dated March 29 , 2014 and August 21 , 2014. 49 In their reports, these
physicians considered the treating physician's opinions , and determined the following
regarding plaintiff's limitations. 50 Plaintiff can occasionally lift/carry twenty-five pounds,
frequently lift/carry ten pounds, stand/walk for a total of four hours, sit for a total of six
hours, and push/pull an unlimited amount except when limited by the weight
Id. at 535 .
Id. at 536 .
/d. at 530 .
D.I. 6-9 at 489.
Id. at 491-92.
D.I. 6-11 at 549-694.
See generally D.I. 6-3 at 97-108 ; see generally D.I . 6-3 at 110-19.
See id. at 104.
At the administrative hearing on June 13, 2016 , plaintiff testified about his
background , work history, and alleged disability. 52 He was born on October 24 , 1952.53
He is approximately five-foot-ten inches tall and weighs about 238 pounds.54 He has a
high school education. 55 He is married and cares for his wife who has Stage 4 colon
For almost 30 years, he worked for Mathias & Carr.57 He started as a facilities
manager, running the copy and print shops.58 He later worked in customer service .59 In
November 2013 , he was terminated because business was not doing well and he was
not writing any business.60 He has remained unemployed since then .61 Although in
2014 earnings of $11 ,000 were reported on plaintiff's tax return under self-employment,
this income was earned by his wife .62
After he was laid off, he was seen by his cardiologist, Dr. Molloy, his general
See generally D.I. 6-2.
Id. at 55.
Id. at 68 .
Id. at 55.
Id. at 55-56 .
Id. at 56.
Id. at 57.
practitioner, Dr. Feiner, and his foot doctor, Dr. Reinkraut. 63 Their advice was, due to
his poor health, plaintiff could not work. 64 He has had six stents inserted, and suffers
with angina, pains in his chest, COPD , asthma, musculoskeletal issues, and shortness
of breath. 65 He is relatively inactive, unable to climb stairs , and uses an inhaler daily. 66
If he lifts heavier than five or ten pounds, he experiences pins and needles up his arm
and pain radiating from his shoulder to his chest and sometimes into his back. 67 In
addition , he has reflex sympathetic dystrophy in his left foot which prevents him from
standing or walking more than twenty minutes. 68 He can only sit for a maximum of thirty
minutes because of pain in his back and hips. 69 He sees a chiropractor for his general
pain .70 Plaintiff can only sleep in hour-and-a-half increments because of leg and foot
pain .71 Moreover, his stomach issues have recently worsened. 72
After experiencing recurring symptoms in the Fall 2015 , he sought a cardiologist,
Dr. Roger Colletti , who performed a coronary catheterization and angioplasty. 73 Within
two weeks thereafter, because of chest pain , another stent was inserted, which
subsequently was required to be unblocked , but alleviated his chest pain. 74 His various
medications cause side effects such as dry mouth , bladder issues, and stomach
60 , 66.
Because of his wife's illness, he makes their meals and does the grocery
shopping; his grandchildren clean the house. 76 Both plaintiff and his wife do the
laundry. 77 When bathing, he has a seat in the shower and wears slip-on shoes
because he has difficulty bending down. 78 According to his testimony, no lifting was
required while he was employed in customer service and internal selling. 79
Vocational Expert's Testimony
During the hearing, vocational expert, Louie Schalosi, testified to plaintiff's
background , skills, limitations, and jobs available within plaintiff's restrictions. 80
Schalosi characterized plaintiff's work as a customer service coordinator as a skilled
light-exertion occupation. 81 Plaintiff's employment as an invoice control clerk is a
composite occupation classified as sedentary exertion, however Schalosi considered it
as light exertion since this job was performed in conjunction with the customer service
coordinator position. 82
The ALJ posed the following hypothetical individual of plaintiff's age, education ,
and work history who is capable of performing at the sedentary exertion level, can
occasionally climb ramps and stairs, but never ladders, ropes , and scaffolds ,
occasionally can balance, stoop, kneel , crouch , and crawl, with occasional exposure to
extreme cold , extreme heat, humidity, vibration , fumes , odors, dust, gas, poor
ventilation , and hazards.B3 In response , Schalosi testified that this individual could not
perform plaintiff's previous work.B
The ALJ further inquired whether there are skills from plaintiff's previous
employment that are transferable to positions at the sedentary level.B5 Schalosi testified
that there are transferable skills such as handling inventory, executive thinking, and
basic computer, sales, record keeping , and filing skills .B He then identified some of the
sedentary occupations that utilized these skills . The sedentary occupations utilizing
these skills include invoice control clerk, supervisor of order takers , and telephone
The ALJ posed a final hypothetical where the individual required frequent breaks
beyond the regular breaks , specifically two additional , thirty minute breaks, and whether
this would affect the individual's employability.BB Schalosi responded because the
added breaks would cause the individual to be off task by at least 10%, this would
preclude the aforementioned occupations. B
Plaintiff's attorney posed a question using the same individual, but who was
absent two to three times a month. 90 Schalosi testified that such absences would
typically preclude all employment. 91
The ALJ's Findings
Based on the medical evidence and testimony provided in the 2016 hearing, the
ALJ determined that plaintiff was not disabled and , therefore, ineligible for Social
Security Disability lnsurance. 92 The ALJ 's findings are summarized as follows:
The claimant meets the insured status requirements of the Social Security
Act through September 30 , 2018.
The claimant has not engaged in substantial gainful activity since
November 15, 2013 , the alleged onset date (20 C.F.R. §404.1571 et
The claimant has the following severe impairments: coronary artery
disease, asthma , and obesity (20 C.F.R. § 404.1520(c)).
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
404.1520(d), 404.1525 and 404.1526).
After careful consideration of the entire record , the undersigned finds that
the claimant has the residual functional capacity to perform sedentary
work as defined in 20 C.F.R. § 404.1567(a) except he can occasionally
climb ramps and stairs and never climb ladders, ropes , and scaffolds; can
occasionally balance , stoop , kneel , crouch , and crawl; and can have only
occasional exposure to extreme cold , extreme heat, humidity, vibration ,
fumes , odors , dust, gases, poor ventilation , and hazards.
The claimant is unable to perform any past relevant work (20 C.F.R. §
The claimant was born on October 24, 1952, and was 61 years old , which
is defined as an individual approaching retirement age, on the alleged
disability onset date (20 C.F.R. § 404.1563).
The claimant has at least a high school education and is able to
See generally D.I. 6-2.
communicate in English (20 C.F.R. § 404.1564).
Considering the claimant's age, education, work experience, and residual
functional capacity, the claimant has acquired work skills from past
relevant work that are transferable to other occupations with jobs existing
in significant numbers in the national economy (20 C.F.R. §§ 404.1569 ,
404.1569(a) and 404.1568(d)).
The claimant has acquired work skills from past relevant work (20 C.F.R.
The claimant has not been under a disability, as defined in the Social
Security Act, from November 15, 2013 , through June 24, 2016, the date of
this decision (20 C.F.R. § 404.1520)
STANDARD OF REVIEW
Motion for Summary Judgment
Both parties moved for summary judgment. 93 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 nonmoving party[,]' but [refraining from] weighing
the evidence or making credibility determinations."94 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. 95
This standard does not change merely because there are cross-motions for
summary judgment. 96 Cross-motions for summary judgment
are no more than a claim by each side that it alone is entitled to summary
judgment, and the making of such inherently contradictory claims does not
See generally 0.1. 10 (Plaintiff's motion for summary judgment); see generally
D.I. 14 (Defendant's motion for summary judgment).
Reeves v. Sanderson Plumbing, Prods. , Inc., 530 U.S. 133, 150 (2000).
Hill v. City of Scranton , 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R. C1v.
Appelmans v. City of Philadelphia , 826 F.2d 214, 216 (3d Cir. 1987).
constitute an agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist. 97
"The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party." 98
Court's Review of the ALJ's Findings
Section 405(g) sets forth the standard of review of the ALJ 's decision by the
district court. The court may reverse the Commissioner's fina l determination only if the
ALJ did not apply the proper legal standards , or the record did not include substantia l
evidence to support the ALJ 's decision. The Commissioner's factual decisions are
upheld if supported by substantial evidence. 99 Substantial evidence means less than a
preponderance of the evidence, but more than a mere scintilla of evidence. 100 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. "101
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 of record. 102 The court's review is limited to the
evidence that was actually presented to the ALJ. 103 The Third Circuit has explained that
Rains v. Cascade Indus. , Inc. , 402 F.2d 241 , 245 (3d Cir. 1968).
Krupa v. New Castle County, 732 F. Supp. 497 , 505 (D. Del. 1990).
42 U.S.C. §§ 405(g), 1383(c)(3); see a/so Monsour Medical Center v.
Heck/em , 806 F .2d 1185, 1190 (3d Cir. 1986).
Rutherford v. Barnhart, 399 F.3d 546 , 552 (3d Cir. 2005).
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
Monsour, 806 F.2d at 1190.
Matthews v. Apfel, 239 F.3d 589 , 593-95 (3d Cir. 2001)
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. 104
Thus, the inquiry is not whether the court would have made the same
determination, but rather, whether the Commissioner's conclusion was reasonable .105
Even if the court would have decided the case differently, it must defer to the ALJ and
affirm the Commissioner's decision so long as that decision is supported by substantial
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." 107 In Securities & Exchange Commission v. Chenery
Corp. ,108 the Supreme 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." 109 The Third Circuit has recognized the applicability of this finding in the Social
Kent v. Schweiker, 71 O F.2d 110, 114 (3d Cir. 1983).
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
Monsour, 806 F .2d at 1190-91.
Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.D. Pa. 2011 ).
Sec. & Exch. Comm 'n v. Chenery Corp. , 332 U.S. 194, 196 (1947).
Security disability context. 11 0 Thus, this court's review is limited to the four corners of
the ALJ's decision. 111
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. 112 A claimant - in order to establish SSI
eligibility - bears the burden of proving that he 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. "113 Moreover, "the physical or
mental impairment or impairments must be of such severity that the claimant is not only
unable to do his previous work but cannot, considering his age , education , and work
experience , engage in any other kind of substantial gainful work which exists in
significant numbers in the national economy. "114 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 .115
°Fargnoli v. Massanari, 247 F.3d 34, 44, n.7 (3d Cir. 2001 ).
Cefalu v. Barnhart, 387 F. Supp.2d 486, 491 (W.D. Pa. 2005).
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. 11 6
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. 117
If the ALJ determines that a claimant is disabled at any step in the sequence, the
analysis stops. 11 8
See 20 C.F.R. §416.920(a); see also Plummer v. 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. "119 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 clinica l and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence on record. 120
The ALJ must consider medical findings supporting the treating physician's
opinion that the claimant is disabled. 121 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
evidence." 122 If an opinion is rejected , then the ALJ must provide an explanation "of the
reason why probative evidence has been rejected" so a "reviewing court can determine
whether the reasons for rejection were improper."123 However, the explanation need not
be exhaustive, but rather "in most cases, a sentence or short paragraph would probably
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
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.
Cotter v. Harris, 642 F.2d 700 , 711 (3d Cir. 1981 ).
Cotter v. Harris , 650 F.2d 481 , 482 (3d Cir. 1981 ).
finding that is dispositive of the case. 125 Therefore , only the ALJ can make a disability
Evaluation of Subjective Accounts of Pain 126
Statements about the symptoms 127 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 meets
or medically equals one listed in 20 C.F.R. Part 404 , Subpart P, Appendix 1, because
the claimant is considered disabled per se.
See 20 C.F.R. § 416.927 (e)(1 ).
See 20 C.F.R §§ 416.928-29. See a/so SSR 96-?p.
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
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 , which requires determining the applicant's
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 and psychologists , and any other relevant
evidence in the record , such as the claimant's account of how the symptoms affect his
activities of daily living and ability to work. 129
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 applicants' 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
Credibility is the extent to which the statements can be believed and accepted
See 20 C.F.R. § 404.1529.
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
(vii ) Other factors concerning functional limitations and restrictions due to pain or
other symptoms. 130
Factors in Evaluating Credibility131
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
See 20 C.F.R. § 404.1529
See SSR 16-3p.
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
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 - provide sufficiently specific reasons based
on the record - to the claimant and any subsequent reviewers, 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 his testimony or statements. 132 A claimant's testimony is
accorded substantial credibility when he has a long work history, which demonstrates it
is unlikely that, absent pain , he would have ended employment. 133
See 20 C.F.R. § 404.1529(a)(3)
See Podedworny 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 Podedworny, the claimant worked for
thirty-two years as a crane operator for one company. He had a ninth grade education
Medical Expert Testimony
The onset date of disability is determined from the medical records and reports
and other similar evidence, which requires the ALJ to apply informed judgment. 134 "At
the hearing, the administrative law judge (ALJ) should call on the services of a medical
advisor when onset must be inferred." 135
Plaintiff argues that the ALJ failed to properly weigh the medical opinion
evidence and failed to properly determine his physical residual functional capacity. 136
He contends the ALJ failed to follow the Commissioner's Regulations which provide that
if a treating source's opinion is well-supported by medically accepted techniques and
not inconsistent with other evidence, then the Commissioner will give it controlling
weight. 137 Moreover, the ALJ may only afford the opinion no weight if the ALJ considers
certain factors including the opining sources' examining relationship, treatment
relationship , supportability, consistency, and specialization .138
Plaintiff also contends the ALJ failed to properly evaluate his testimony. 139 He
claims the ALJ failed to give great weight to his testimony despite the supporting
and left his employment after the company physicians determined that his symptoms of
dizziness and blurred vision prevented him from safely performing his job.
See SSR 83-20.
D.I. 11 at 12.
Id. at 13.
Id. at 17.
medical evidence. 140 Plaintiff argues the ALJ erred by finding him not credible because
he is able to engage in some activities of daily living and he ignored recommendations
to try to lose weight. 141 Thus , plaintiff maintains the ALJ's decision should be reversed
or remanded. 142
Alternatively, defendant contends the ALJ properly evaluated the medical opinion
evidence and substantial evidence supports his analysis. 143 The ALJ is not required to
uncritically accept any medical opinion, but must evaluate the applicable level of
controlling weight. 144 Here, the ALJ considered the medical evidence , explained the
weight afforded to each opinion , and provided reasons found in the record to support
his conclusions. 145
In addition , defendant argues there is substantial evidence in support of the
ALJ 's finding that plaintiff's subjective statements were not fully consistent with the
record. 146 Defendant posits the ALJ properly and carefully considered plaintiff's
testimony, articulated his reasons for finding plaintiff's statements were only partially
supported, and identified with specificity the evidence which supported his
conclusion .147 Therefore, defendant maintains there is no reversible error in the ALJ 's
analysis and plaintiff is attempting to re-weigh the evidence .148
Id. at 17-18.
Id. at 18.
Id. at 20.
D.I. 15 at 9.
Id. at 14.
Id. at 14-15.
Id. at 16.
Title II of the Social Security Act, 42 U.S.C. § 423(a)(l)(D), "provides for the
payment of insurance benefits" to those who contributed to the program and suffer from
a physical or mental disability.149 In order to qualify for DIB , a claimant must establish
that he was disabled prior to the date he was last insured. 150 A "disability" is defined as
the inability to do any substantial gainful activity because of any medically determinable
physical or mental impairment, which either could result in death or has lasted or can be
expected to last for a continuous period of at least 12 months. 151 To be disabled , the
severity of the impairment must prevent return to previous work, and considering age ,
education , and work experience, restrict "any other kind of substantial gainful work
which exists in the national economy." 152
As addressed previously, in determining whether a person is disabled , the
Commissioner is required to perform a five-step sequential analysis. 153 Should a finding
of disability or non-disability be made at any point in the sequential process , the
Commissioner will not review the claim further. 154
However, where claimant's impairment or its equivalent matches an impairment
in the list of impairments (the "listings") severe enough to preclude any gainful work, the
Bowen , 482 U.S. at 140.
20 C.F.R. § 404.131.
42 U.S.C. §§ 423(d)(l)(A), 1382(c)(a)(3).
42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422,427-28 (3d
20 C.F.R. § 404.1520(a)(4).
claimant is presumed disabled. 155 If not, then the analysis continues to steps four and
five. 156 At step four, the Commissioner determines whether the claimant retains the
RFC to perform his past relevant work. 157 A claimant's RFC is "that which an individual
is still able to do despite the limitations caused by [his] impairment(s)." 158 "The claimant
bears the burden of demonstrating an inability to return to [his] past relevant work." 159
Step five requires the Commissioner to determine whether the claimant's
impairments preclude adjusting to any other available work. 160 The burden rests with
the Commissioner to show the claimant is capable of performing other available work
existing in significant national numbers and consistent with the claimant's medical
impairments, age , education , past work experience, and RFC before denying disability
Weight Accorded to Medical Opinion Evidence
It is the exclusive responsibility of the ALJ to weigh the evidence in the record as
a whole in making a disability determination, a residual functional capacity finding, or
any other issue reserved to the Commissioner. 162 The evidence presented to the ALJ
may contain differing medical opinions from both treating and non-treating physicians ,
20 C.F.R. § 404.1520(a)(4)(iii).
20 C.F.R. § 404.1520(e).
20 C.F.R.. § 404.1520(a)(4)(iv); Plummer, 186 F.3d at 428.
Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir. 2001 ).
Plummer, 186 F.3d at 428.
20 C.F.R. § 404.1520(g) (mandating finding of non-disability when claimant
can adjust to other work); see a/so Plummer, 186 F.3d at 428.
See 20 C.F.R. § 404.1527(d)(1 ); see a/so 20 C.F.R. § 404.1527(d)(2).
as well as other testimony.163 Normally, the treating physician's evidence is given
controlling weight because this physician is usually most acquainted with the claimant's
However, when the treating physician's opinion is not consistent with the record
as a whole or is not well supported by "medically acceptable clinical and laboratory
diagnostic techniques," an ALJ may reasonably accord little weight to the treating
physician's opinion. 165 When the treating physician's opinion is not afforded controlling
weight, the ALJ applies various factors to determine the opinion's weight, including the
length of the treatment relationship and the frequency of examination , the nature and
extent of the treatment relationship , supportability, consistency, specialization , as well
as other factors that are brought to the ALJ's attention. 166 If an opinion is rejected , then
the ALJ must provide an explanation "of the reason why probative evidence has been
rejected" so a "reviewing court can determine whether the reasons for rejection were
improper." 167 However, the explanation need not be exhaustive , but rather "in most
cases, a sentence or short paragraph would probably suffice ." 168 Opinions from
examining sources generally are given more weight than ones from non-examining
See 20 C.F.R. § 404.1513.
See 20 C.F.R. § 404.1527(c).
See 20 C.F.R. § 404.1527(c)(2).
See 20 C.F.R. §§ 404.1527(c)(2)(i-ii)-(c)(6).
Cotter v. Harris , 642 F.2d 700 , 711 (3d Cir. 1981 ).
Cotter v. Harris, 650 F.2d 481 , 482 (3d Cir. 1981 ).
20 C.F.R. § 404.1527(c)(1 ).
The ALJ applied no weight to Dr. Feiner's opinion on plaintiff's ability to sit,
stand , and walk because of the absence of any objective medical evidence in
support. 170 Dr. Feiner's treatment notes document no difficulty in plaintiff's ability to sit,
stand , or walk and plaintiff had normal physical examination findings. 171 The ALJ
attributed some weight to the determination that plaintiff can lift up to 20 pounds , but,
due to his subjective complaints, the ALJ limited plaintiff to a sedentary level of lifting. 172
Therefore , the ALJ reasonably concluded Dr. Feiner's opinion in the multiple
impairment questionnaire from January 2014 should be given no weight because of
lack of support and inconsistency with the record.
The ALJ assigned no weight to Dr. Molloy's opinions in a cardiac impairment
questionnaire from March 2014 on plaintiff's ability to sit, walk, stand, concentrate, and
handle stress. 173 Dr. Molloy's notes from January 2014 did not mention any physical
restrictions, and affirmatively stated that plaintiff had no malaise or edema and had a
normal heart rate and rhythm. 174 Thus, Dr. Molloy's treatment records are inconsistent
with his opinions in the questionnaire. As a result, the ALJ concluded that there is no
evidence on the record as a whole to support Dr. Molloy's opinion regarding plaintiff's
ability to work, pay attention, or concentrate , and reasonably assigned no weight to Dr.
D.I. 6-2 at 39.
Id. at 40.
D.I. 6-13 at 791-92.
Molloy's opinions in the questionnaire because of lack of support and inconsistency with
the record. 175
The ALJ offered no weight to Dr. Reinkraut's opinions in a lower extremities
questionnaire from May 2014, which opined on plaintiff's ability to sit, stand , and walk
and ability to concentrate .176 The ALJ determined that Dr. Reinkraut, a podiatrist,
opined outside the scope of his expertise, especially regarding plaintiff's functional
limitations and diabetic neuropathy. 177 Moreover, Dr. Reinkraut's notes provided no
evidence to support the limitations and recommendations indicated .178 Rather, his
notes only show that plaintiff had +1 edema in his legs, normal muscle strength, and
decreased protective sensation in both feet. 179 Therefore , the ALJ reasonably
determined that no weight be given to Dr.Reinkraut's opinion because of lack of
support, inconsistency with his findings, and outside his specialization .
The ALJ assigned no weight to Dr. Coletti's opinions in a cardiac impairment
questionnaire except for the statement that plaintiff's diagnoses and limitations would
last at least 12 months.180 Dr. Coletti determined that he could not assess functional
limitations and did not know the effect of the symptoms on attention and
D.I. 6-2 at 40.
D.I. 6-12 at 720.
D.I. 6-2 at 40.
concentration. 181 Thus, the ALJ reasonably concluded no weight be afforded to Dr.
Colletti's opinion because he had only recently became plaintiff's cardiologist and did
not, in fact, provide an opinion concerning plaintiff's functional limitations.
The ALJ gave significant weight to Dr. Magnotti's opinions in a diabetes mellitus
impairment questionnaire from April 2014 .182 Dr. Magnotti determined that plaintiff had
no clinical findings or symptoms associated with his diabetes and no vascular or
neuropathic complications .183 He provided no opinion on plaintiff's functional
capacity.184 The ALJ found that this information was consistent with the other evidence
on the record. 185 Thus, the ALJ reasonably assigned significant weight to the opinion
because of consistency, support in the medical record, and the specialization of the
State Agency Physical Assessment
The ALJ afforded "significant some weight" [sic]1 86 to the state agency's disability
determination evaluations regarding plaintiff's ability to lift twenty-five pounds
occasionally, ten pounds frequently, and stand/walk for four hours and sit for six
D.I. 6-12 at 711-16.
Id. at 714-15.
D.I. 6-2 at 40.
Although this language appears in the ALJ 's decision, based on his
conclusion regarding the state agency physicians' assessment, it seems the ALJ
afforded some weight to their findings.
hours. 187 The ALJ also noted that the environmental limitations were consistent with the
record .188 However, he recognized that these findings were made before evidence was
received at the hearing level, which included plaintiff's testimony. 189 As a result, the ALJ
concluded that the hearing evidence supported "greater exertional limitations" and
postural restrictions than were found by the state agency physicians .190 While a nonexamining and non-treating physician's opinion generally is accorded less weight than
an examining and treating physician , the opinion must still be evaluated consistent with
the various factors . Thus, the ALJ reasonably afforded some weight to the disability
The ALJ 's RFC Finding
Plaintiff argues that the evidence on record does not support the ALJ 's RFC
assessment. 191 An RFC assesses an individual's ability to perform in a work setting
despite impairments and limitations.192 Although the ALJ may weigh the credibility of
the evidence , he must provide some indication of the evidence which he rejects and his
reasons for discounting such evidence. 193 This court finds that the ALJ properly applied
the standards under the Agency Regulations and that substantial evidence supports the
Id. at 41
D.I. 11 at 17.
20 C.F.R. § 404.1545.
See Plummer v. Apfel, 186 F.3d 422 , 429. (3d Cir. 1999).
The ALJ Properly Evaluated Medical Opinions
Plaintiff claims the ALJ failed to properly weigh the medical opinion evidence
because he did not assign the treating physicians' opinions controlling weight. 194 The
ALJ has a duty to evaluate medical opinions. 195 For an opinion to have controlling
weight, it must be "well supported by medically acceptable clinical and laboratory
diagnostic techniques" and not "inconsistent with the other substantial evidence" on the
record. 196 When it is determined not to have controlling weight, the ALJ evaluates the
opinion according to regulatory factors .197 If the ALJ finds that the opinion conflicts with
the record , the ALJ may decide to not assign it significant weight. 198
Here, the ALJ found that plaintiff's treating physicians' opinions did not merit
controlling weight because "they are not well supported by medically acceptable clinical
and laboratory techniques and are inconsistent with the other substantial evidence on
the record." 199 The ALJ explained the weight afforded to each opinion and the reasons
for that decision. 200 In determining weight, the ALJ applied the required factors and
provided explanations as to why the particular opinion did not satisfy the factors. 201
Thus, the ALJ reasonably evaluated the treating physicians' opinions and substantial
evidence supported his conclusions.
See D.I. 11at12.
20 C.F.R. § 404.1527.
20 C.F.R. § 404.1527(c)(2).
20 C.F.R. §§ 404.1526(c)(2)(i-ii)-(c)(6).
See Plummer, 186 F.3d at 429.
D.I. 6-2 at 39.
For the evaluations of each opinion see supra notes 173-98 and
The ALJ Properly Evaluated Plaintiff's Credibility
Plaintiff maintains that substantial evidence does not support the ALJ 's credibility
determination of his testimony. 202 In determining RFC, the ALJ considers whether
plaintiff's self-reported symptoms can "reasonably be accepted as consistent with the
objective medical evidence and other evidence ." 203 In evaluating subjective statements ,
the ALJ considers whether there is an impairment that could reasonably cause the
individual's symptoms. 204 Then , he evaluates the "intensity, persistence, and limiting
effects of the individual's symptoms" to decide the restrictions on the individual's ability
to perform basic activities. 205 In evaluating credibility, consistency with the record and
work history are important factors. 206 A claimant's testimony is afforded substantial
credibility when he has a long work history, which highlights that, absent pain, he would
not have ended employment. 207 In addition, the ALJ must provide in his decision
"specific reasons for the weight given to the individual's symptoms , be consistent with
and supported by the evidence , and be clearly articulated." 208
The ALJ determined that while plaintiff's impairments could reasonably be
expected to cause the alleged symptoms, plaintiff's statements about the intensity,
persistence, and limiting effects of these symptoms are not consistent with the medical
20 C.F.R. § 404.1529(a).
See SSR 16-3p.
See 20 C.F.R. § 404.1529(a)(3).
See Podedworny v. Harris, 745 F.2d 210 , 217 (3d Cir. 1984) citing Taybron v.
Harris, 667 F.2d 412 , 415 n.6 (3d Cir. 1981).
SSR 16-3p at 26.
and record evidence. 209 The ALJ noted the record evidence supporting his conclusion
includes that plaintiff has not been diagnosed with impairments related to neck, back, or
joint pain. 210 Moreover, plaintiff was able to drive four hours from southern Delaware to
New Jersey for podiatrist visits , despite some pain , and has cared for his ill wife during
the alleged disability period. 211 Further, despite plaintiff's extensive work history, his
employment ended because of a lay-off, indicating that he may have stopped working
for reasons other than his impairments. 212 Thus , the ALJ reasonably evaluated
plaintiff's subjective statements and substantial evidence supported his conclusion.
For the foregoing reasons , I recommend that:
(1) Plaintiff's motion for summary judgment (D.I. 10) be denied; and
(2) Defendant's motion for summary judgment (D.I. 14) 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
and Recommendation. Objections and responses are limited to ten (10) pages each .
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.
D.I. 6-2 at 37.
Id. at 38.
Id. at 38-39 .
Id. at 39.
Date: September 7, 2017
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