Coleman v. Colvin

Filing 17

REPORT AND RECOMMENDATIONS re 13 Cross MOTION for Summary Judgment filed by Nancy A. Berryhill, 9 MOTION for Summary Judgment filed by Deidra Romaine Coleman. Please note that when filing Objections pursuant to Federal Rule of Civil P rocedure 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 11/9/2017. Signed by Judge Mary Pat Thynge on 10/23/17. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DEIDRA ROMAINE COLEMAN,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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C.A. No. 17-2-RGA-MPT

REPORT AND RECOMMENDATION
I.

INTRODUCTION
This action arises from the denial of plaintiff’s claim for Social Security benefits.

On April 17, 2013, plaintiff filed applications for Social Security Disability benefits
(“SSD”)1 under Title II and Supplemental Security Income benefits (“SSI”)2 under Title
XVI of the Social Security Act (“the Act”).3 In her applications, plaintiff alleged she was
disabled due to a number of physical and mental impairments, with a disability onset of
June 1, 2010.4 The claims were denied initially on May 21, 2013, and upon
reconsideration on August 12, 2013.5 Following the denials, plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”), which occurred on May 11, 2015,
in New Castle, Delaware. At the hearing, testimony was provided by plaintiff and an

1

D.I. 10 at 1.
Id.
3
Id.
4
Id.
5
D.I 6-2 at 21.
2

impartial vocational expert, Christina Cody.6 On June 24, 2015, ALJ Jack Penca,
issued a decision denying plaintiff’s claims.7 Plaintiff requested a review of the decision
by the Appeals Council, which denied the review on November 4, 2016.8 She then filed
a timely appeal with this court.9 Presently before the court are the parties’ cross
motions for summary judgment.10 For the reasons that follow, the court will grant
defendant’s motion for summary judgment.
II.

BACKGROUND
Plaintiff was born on December 20, 1963.11 She has a high school education and

has not worked full time since 2010.12 She last worked as a general worker/cafeteria
aide at Concord High School during the school year.13 Her job consisted of preparing
and serving food, cleaning the kitchen, and lifting heavy items.14 After 2010, plaintiff
worked part time for a janitorial service for roughly 3 months.15 She claims that she
stopped working due to pain in her back, legs, hands, muscle spasms, and carpal
tunnel syndrome.16 The ALJ found that plaintiff has no relevant previous work
experience.17
Plaintiff alleged her disability onset date was June 1, 2010. She has since
6

Id.
D.I. 10 at 1.
8
Id.
9
D.I. 9 at 1.
10
D.I. 9 and D.I. 13.
11
D.I 10 at 2.
12
Id.
13
D.I. 6-6 at 243.
14
Id.
15
D.I. 6-2 at 44.
16
D.I. 10 at 11.
17
Id. at 2.
7

2

continued to suffer from a combination of both physical and mental impairments that
include; a herniated disc, lumbar radiculopathy, anxiety and depression.18 Plaintiff
contends that these impairments place her function where she is unable to perform at
the substantial gainful activity level.19 Plaintiff alleges she is disabled under the Act. To
be eligible for disability benefits, plaintiff must not only demonstrate she is disabled
within the meaning of §§ 216(i), 223(d), and 1614(a)(3)(A), but additionally, that she
meets the insured status requirements of §§ 216(i) and 223. Plaintiff has sufficiently
met the requirements for coverage under §§ 216(i) and 223, and is covered through
September 30, 2015. The remaining issue, is whether plaintiff is disabled under the
Act.20
A.

Evidence Presented

Plaintiff has experienced lower back pain dating back to at least February 25,
2000.21 Her back pain was mild until 2007, which she managed by nonsteroidal
anti-inflammatory drugs and muscle relaxants.22 From March 2006 to October 2009,
plaintiff made numerous trips to St. Francis Hospital for treatment for chronic back
pain.23 She complained of lumbosacral pain brought on by heavy lifting at work.24
On June 29, 2010, a physical examination performed by plaintiff’s family
practitioner, Dr. Clement Ogunwande, revealed tenderness in the lumbar spine and

18

D.I. 6-2 at 42.
Id.
20
D.I. 6-2 at 21.
21
D.I. 10 at 2.
22
D.I. 7-6, Ex. 14 F at 744.
23
D.I. 6-7, Ex. 1 F at 258-329.
24
D.I. 7-6, Ex. 14 F at 744.
19

3

paraspinal muscle spasms.25 Dr. Ogunwande referred her to physical therapy and
prescribed Percocet.26 On August 17, 2010, plaintiff reported that she had ongoing pain
and numbness, despite physical therapy, and was prescribed Percocet and Neurontin.27
Throughout the following months, plaintiff experienced varying levels of pain. At an
October visit, she stated that her pain had somewhat improved, but later in December
2010, she complained of “terrible” pain in her back and right lower extremity, muscle
tightness, accompanied with numbness and tingling.28 On February 15, 2011, plaintiff
reported to Dr. Ogunwande that she had increased back and lower right extremity pain
in cold weather and during periods of prolonged standing.29
On May 3, 2011, plaintiff was examined by neurosurgeon Hagop L. Der
Krikorian, M.D. He diagnosed L5 and S1 radiculopathy on the right side, secondary to a
herniated L5-S1 disc.30
At a follow up visit on December 1, 2011, Dr. Ogunwande’s physical examination
revealed minimal tenderness on palpation and paraspinal muscle tension in the lumbar
spine.31 As a result, he prescribed Oxycodone and Motrin and advised plaintiff to return
to Dr. Krikorian.32 On April 2, 2012, plaintiff claimed the back and neck pain persisted,
resulting in Dr. Ogunwande’s continued prescription of Percocet. He also referred

25

D.I. 10 at 2.
Id.
27
Id.
28
Id. at 3.
29
Id. at 3.
30
Id.
31
Id. at 4.
32
Id. at 4.
26

4

plaintiff to pain management.33 In August 2012, she was examined by board certified
neurologist, Dr. Grossinger.34 His examination revealed restricted range of lumbar
motion with forward flexion and weakness on extension of the right knee and right ankle
on dorsiflexion.35 He administered an EMG/NCS, that showed evidence of right L5
radiculopathy.
During a follow up visit with Dr. Grossinger on August 27, plaintiff underwent
lumbar epidural steroid injections for the first time.36 In the following months, plaintiff
continued to receive these injections.37
Dr. Grossinger, in a spinal impairment questionnaire completed on September
17, 2013, reported that plaintiff’s primary symptom was chronic back pain, which began
in the lower back and radiated to the right leg, and was caused by exertion or prolonged
sitting or standing.38 He concluded that in an eight hour work day, plaintiff could sit and
stand for a total of three hours each, but must move around for about a half hour before
returning to a seated position.39 She could also lift five pounds frequently and ten to
twenty pounds occasionally.40
On October 24, 2013, Dr. Ogunwande reported plaintiff could perform sedentary
work only, with standing and walking as needed.41 During plaintiff’s June 2014 visits,

33

Id.
Id. at 6.
35
Id.
36
Id.
37
D.I. 6-13 at 647-668.
38
D.I. 7-5, Ex. 12 F at 729-735.
39
Id. at 732-734
40
Id. at 732-733
41
D.I. 10 at 5.
34

5

Dr. Ogunwande diagnosed chronic lower back pain and lumbar spine radiculopathy,
with an MRI showing progressive degenerative changes at L5-S1.42
On July 2, 2014, plaintiff was evaluated by Richard Jaskewich, PA-C at Concord
Medical Chiropractic Neurology, for complaints of lower back pain and stiffness,
accompanied with radicular pain in the right leg.43 As a result of his examination, Dr.
Jaskewich diagnosed cervicalgia, carpal tunnel syndrome, thoracic spine pain,
lumbago/low back pain, and sacroiliitis. She was treated with a right sciatic nerve block
injection.44 A week later, plaintiff returned for lumbar/gluteal trigger point injections with
Dr. Jaskewich, who also prescribed a lumbar brace.45 In the months that followed, Dr.
Jaskewich performed multiple nerve block, joint, or trigger point injections on the
plaintiff.46 On January 4, 2015, he diagnosed sciatica, osteoarthritis of the
pelvis/hip/thigh, lower leg pain, hip pain, sacroiliitis, and lumbalgia, and continued the
injection series.47
From 2010 to 2014, plaintiff was prescribed Percocet, Gabapentin, Flexeril,
Oxycodone, Motrin, Promethazine, and Baclofen by Dr. Ogunwande, and Mirtazapine
and Buspirone by Dr. Hasan.48 In addition to medication, she underwent lumbar
epidural steroid injections, bilateral lumbar facet medial branch injections at L3-4, L4-5,
and L5-S1 by Dr. Grossinger. She also was treated by Dr. Jaskewich with right sciatic

42

Id. at 5.
Id. at 8.
44
Id.
45
Id.
46
Id.
47
Id.
48
D.I. 6-6, Ex. 12 E at 245-250.
43

6

nerve block injections, bilateral lumbar trigger point injections, joint cortisone injections,
a series of additional trigger point injections and was prescribed a lumbar brace. In a
letter to the National Social Security Disability Advocates dated June 12, 2015, Dr.
Ogunwande stated that he saw plaintiff on December 31, 2014 for her chronic back
pain.49 Throughout this treatment, plaintiff maintained the back pain with radiation to
lower extremities along with paresthesia, continued unimproved.50 As a result, Dr.
Ogunwande noted that plaintiff could not tolerate any sedentary work situations.51
Coupled with her physical impairments, plaintiff attends sessions with her
psychiatrist Fawzia Hasan M.D. According to his therapy notes, plaintiff received
treatment for a cannabis dependency, mood disorder, cocaine abuse, anxiety, and
depression.52
Dr. Hasan performed a number of tests through mental status examinations and
assessments. He describes plaintiff as suffering from depressed mood, as dysphoric
and tearful, with normal psychomotor activity movements.53 His findings include that
plaintiff possesses concrete thinking, has poor judgment, has the ability to maintain
focus and attention, and seeks immediate gratification.54
Plaintiff also has previous and continued drug usage against medical advice.
She has used crack cocaine off and on for the past seventeen years, with the last use
allegedly in 2010. Plaintiff, however, has smoked marijuana on a daily basis for the
49

D.I. 7-16, Ex. 21 F at 1040.
Id.
51
D.I. 7-16, Ex. 21 F at 1040.
52
See generally, D.I. 7-5, Ex. 11 F at 718-728 and D.I. 6-11, Ex. 5 F at 530-553.
53
Id.
54
D.I. 7-5, Ex. 11 F at 727.
50

7

past twenty-three years and occasionally drinks alcohol.55
Plaintiff’s records were reviewed by non-treating state medical consultants
Michael H. Borek D.O., and later by Vinod K. Kataria M.D.56 Both medical consultants
determined plaintiff’s subjective statements as not fully credible. Noted in Dr. Borek’s
findings, plaintiff alleges disability on the basis of physical impairments and also
complains of memory problems. Plaintiff is receiving mental health treatment for
depression. The records illustrate a history of substance abuse and outpatient mental
health treatment for a mood disorder.57 The progress notes revealed a favorable
response to treatment, and indicate that her condition has remained stable over time.
Overall, Drs. Borek and Kataria found her mental condition and concentration
skills intact. Her social skills are unimpaired, and in contrast to her subjective
complaints, there is no evidence of any memory impairment.58 They concluded her
subjective comments are not fully supported, since she reports no difficulty with
personal care needs and she cares for her granddaughter.59
B.

Hearing Testimony
1. Plaintiff’s Testimony

At the administrative hearing on May 11, 2015, plaintiff testified to her
background, work history, and alleged disability.60 Plaintiff has custody of her five year

55

D.I. 6-11 Ex. 5 F at 530.
See generally, D.I. 6-3, Ex. 1 A-8 A at 61-112.
57
D.I 6-3, E.x. 5 A at 107.
58
Id.
59
Id.
60
D.I. 6-2 at 40.
56

8

old granddaughter and raises her with the assistance of her daughter.61 Plaintiff’s
daughter also assists with cleaning, cooking, laundry and shopping. Plaintiff testified
she can comfortably lift and carry items weighing up to fifteen pounds and do light
laundry, but claimed that climbing stairs is difficult.62
Plaintiff has a high school education and last worked full time in 2010 as a
general worker.63 She testified that in the previous 15 years, she was employed as a
cafeteria aide doing similar work.64 Plaintiff has not sought full time employment since
2010, but she worked part time on two separate occasions.65 Plaintiff reasoned that she
stopped working as a dietary aide due to a slipped disc in her back, which causes pain
in her back, legs, and hands.66 She maintained that this pain prevented her from
performing her job and is the reason she has not sought subsequent employment.
Plaintiff claimed that the pain she experiences is sharp, similar to being stuck
with needles.67 The pain in her neck and shoulders varies throughout the day, but the
back pain is persistent. Although plaintiff denied taking medication for pain, she
undergoes pain management where she receives injections.68 Plaintiff testified that the
pain injections typically last between three to four days.69 During her testimony, plaintiff
requested to stand due to pain in her back and legs. She described pain occurs when

61

Id. at 46.
Id. at 50.
63
Id. at 43.
64
Id. at 44.
65
Id.
66
Id. 6-2 at 45.
67
Id. at 48.
68
Id. at 49.
69
Id.
62

9

she sits for roughly twenty minutes, which requires her to stand to stretch her legs.70
Plaintiff, however, further claimed that she loses balance after standing for ten to fifteen
minutes.71
Plaintiff testified she is only able to walk half a block before she must rest. Since
2010, the pain has increased requiring her to lie down for about a half an hour every
day. She has difficulty sleeping through the night and only sleeps about four hours.
Night sweats due to menopause also interfere with her sleep.72 Plaintiff claims she is
depressed and has crying episodes because of her son’s incarceration and dealing with
her mother’s depression.73 She takes medication for depression, which helps with her
mood swings.74
Plaintiff admitted using crack cocaine in 2013, because she was “at a depression
mode” in her life.75 She confirmed using marijuana to deal with her muscle pain and
muscle spasms. Additionally, plaintiff testified that she suffers from other cognitive
difficulties, primarily with memory and concentration. Finally, plaintiff asserted that she
has breathing problems due to life-long bronchitis, which has worsened since 2010.
2. Vocational Expert’s Testimony
Testimony was provided at the hearing by vocational expert, Christina Cody.76
Ms. Cody has been a Senior Vocational Rehabilitation Counselor for the Delaware

70

Id.
Id. at 50.
72
Id. at 52.
73
Id. at 51.
74
Id. at 52.
75
Id. at 54.
76
Id. at 55.
71

10

Division of Vocational Rehabilitation since 1998.77 She provides coordinative and
rehabilitative services for physically and mentally disabled clients seeking employment.
Ms. Cody characterized plaintiff’s past work history at the medium exertional level, with
a specific vocational preparation level of 2.78 She addressed hypothetical situations
posed by the ALJ.
The ALJ asked whether an individual of plaintiff’s age, education and work
history, could perform work at a light exertional level, and whether that same individual
was capable of:
occasionally climbing ramps and stairs but never ladders, ropes and
scaffolds, who can occasionally balance, stoop, kneel, crouch and crawl,
who can have occasional exposure to extreme cold, vibration and hazards
and who can perform simple, routine and repetitive tasks with no fast pace
or strict production requirements, and with occasional interaction with
coworkers and the public.79
Ms. Cody testified that an individual with these limitations would be able to
perform jobs at the light level of exertion. Those positions include a folder, a final
inspector, or an inserter.80 These three unskilled positions are all categorized under the
light level of exertion, and account for at least 300,500 jobs in the national economy.81
C.

The ALJ’s Findings

Based on the medical evidence and testimony provided in the 2015 hearing, the
ALJ determined plaintiff was not disabled, and therefore, ineligible for Social Security
Disability Insurance benefits and Supplemental Security Income. The ALJ’s findings
77

D.I. 6-6 at 251.
D.I. 6-2 at 56.
79
Id. at 56-57.
80
Id. at 58.
81
Id. at 31.
78

11

from the 2015 hearing, the disability decision at issue, are summarized as follows:
1.

The claimant meets the insured status requirements of the
Social Security Act through September 30, 2015.

2.

The claimant has not engaged in substantial gainful activity
since June 1, 2010, the alleged onset date (20 CFR 404.1571
et seq., and 416.971 et seq.).

3.

The claimant has the following severe impairments:
degenerative lumbar disc disease and depressive disorder (20
CFR 404.1520(c) and 416.920(c)).

4.

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 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).

5.

After careful consideration of the entire record, I find the
claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b)
except that she cannot climb ropes, ladders or scaffolds, and
she can only occasionally climb ramps or stairs. She can
occasionally balance, stoop, kneel, crouch, and crawl. She
can tolerate occasional exposure to extreme cold, vibration,
and hazards. She can perform simple routine repetitive tasks
in a setting where she does not have to work at a fast pace
and is not subject to strict production requirements. She can
occasionally interact with coworkers and the public.

6.

The claimant has no past relevant work (20 CFR 404.1565
and 416.965).

7.

The claimant was born on December 20, 1963, and was 46
years old, which is defined as a younger individual age 18-49,
on the alleged disability onset date. The claimant
subsequently changed age category to closely approaching
advanced age (20 CFR 404.1563 and 416.963).

8.

The claimant has a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.968).

9.

Transferability of job skills is not an issue because the
claimant does not have past relevant work (20 CFR 404.1568
12

and 416.968).
10.

11.

III.

Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant
can perform (20 CFR 404.1569, 404.1569(a), 416.969, and
416.969(a)).
The claimant has not been under a disability, as defined in the
Social Security Act, from June 1, 2010, through the date of
this decision (20 CFR 404.1520(g) and 416.920(g)).82

STANDARD OF REVIEW
A.

Motion for Summary Judgment

Each party moved for summary judgment.83 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.”84 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.85
This standard does not change merely because there are cross-motions for
summary judgment.86 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
constitute an agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial consideration and
82

D.I. 6-2 at 23-31.
D.I. 10 (Plaintiff’s motion for summary judgment); D.I. 14 (Defendant’s motion
for summary judgment).
84
Reeves v. Sanderson Plumbing, Prods., Inc., 530 U.S. 133, 150 (2000).
85
Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R. CIV.
P. 56(c)).
86
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
83

13

determination whether genuine issues of material fact exist.87
“The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party.”88
B.

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 final determination only if the
ALJ did not apply the proper legal standards, or the record did not include substantial
evidence to support the ALJ’s decision. The Commissioner’s factual decisions are
upheld if supported by substantial evidence.89 Substantial evidence means less than a
preponderance of the evidence, but more than a mere scintilla of evidence.90 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."91
In determining whether substantial evidence supports the Commissioner’s
findings, the court may not undertake a de novo review of the Commissioner’s decision
and may not re-weigh the evidence of record.92 The court’s review is limited to the
evidence that was actually presented to the ALJ.93 The Third Circuit has explained that
a:
87

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).
89
42 U.S.C. §§ 405(g), 1383(c)(3); see also Monsour Medical Center v.
Heckle, 806 F .2d 1185, 1190 (3d Cir. 1986).
90
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
91
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
92
Monsour, 806 F.2d at 1190.
93
Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001)
88

14

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.94
Thus, the inquiry is not whether the court would have made the same
determination, but rather, whether the Commissioner’s conclusion was reasonable.95
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
evidence.96
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.”97 In Securities & Exchange Commission v. Chenery
Corp., 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.”98 The
Third Circuit has recognized the applicability of this finding in the Social Security
disability context.99 Thus, this court's review is limited to the four corners of the ALJ's

94

Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
96
Monsour, 806 F .2d at 1190-91.
97
Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.D. Pa. 2011).
98
Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947).
99
Fargnoli v. Massanari, 247 F.3d 34, 44, n.7 (3d Cir. 2001).
95

15

decision.100
C.

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.101 A claimant – in order to establish SSI
eligibility – bears the burden of proving that she is unable to “engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of or not less than twelve months.”102 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.”103 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.104
1.

Five-Step Test.

The Social Security Administration uses a five-step sequential claim evaluation

100
101

ed.)).

Cefalu v. Barnhart, 387 F. Supp.2d 486, 491 (W.D. Pa. 2005).
Sullivan v. Zebley, 493 U.S. 521, 524 (1990) (citing 42 U.S.C. § 1381 (1982

102

42 U.S.C. § 423(d)(1)(A).
42 U.S.C. § 423(d)(2)(A).
104
42 U.S.C. § 423(d)(3).
103

16

process to determine whether an individual is disabled.105
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
denied.
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.106
If the ALJ determines that a claimant is disabled at any step in the sequence, the
analysis ends.107
2.

Weight Afforded Treating Physicians

“A cardinal principle guiding disability eligibility determinations is that the ALJ

105

1999).

20 C.F.R. §416.920(a); see also Plummer v. Apfel, 186 F.3d 422 (3d Cir.

106

Plummer, 186 F.3d at 427.
20 C.F.R § 404.1520(a)

107

17

accord treating physicians’ reports great weight.”108 Moreover, such reports will be
given controlling weight where a treating source’s opinion on the nature and severity of
a claimant’s impairment is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence on record.109
The ALJ must consider medical findings supporting the treating physician’s
opinion that the claimant is disabled.110 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.”111 If an opinion is rejected, then the ALJ must provide an explanation for the
rejection. However, the explanation need not be exhaustive, but rather “in most cases,
a sentence or short paragraph would probably suffice.”112
However, a statement by a treating source that a claimant is “disabled” is not a
medical opinion; rather, it is an opinion on an issue reserved to the ALJ because it is a
finding that is dispositive of the case.113 Therefore, only the ALJ can make a disability
determination.

108

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)
Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001).
110
Morales, 225 F.3d at 317 (citing Plummer, 186 F.3d at 429).
111
Plummer, 186 F.3d at 429.
112
Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981).
113
See 20 C.F.R. § 416.927 (e)(1).
109

18

3.

Evaluation of Subjective Accounts of Pain114

Statements about the symptoms alone never establish the existence of any
impairment or disability.115 The Social Security Administration uses a two-step process
to evaluate existence and severity of symptoms.
a.

Step One, 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.
b.

Step Two, 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. At this step, the ALJ must consider the

114

See 20 C.F.R §§ 416.928-29; see also SSR 96-7p.
A symptom is an individual’s own description of physical or mental
impairments such as pain, fatigue, shortness of breath and other complaints. see SSR
96-7p.
115

19

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 her activities of daily living and ability to
work.116
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
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

116

20 C.F.R. § 404.1529.
20

other symptoms.117
4.

Factors in Evaluating Credibility118

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
claimant’s statements.
Persistent attempts to obtain pain relief, increasing medications, trials of different
types of treatment, referrals to specialists, or changing treatment sources may indicate
that the symptoms are a source of distress and generally support a claimant’s
allegations. An applicant’s claims, however, may be less credible if the level or
frequency of treatment is inconsistent with the level of complaints, or if the medical
reports or records show noncompliance with prescribed treatment.
Findings of fact by state agency medical and psychological consultants and other
physicians and psychologists regarding the existence and severity of impairments and

117
118

20 C.F.R. § 404.1529
SSR 16-3p.
21

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 her testimony or statements.119 A claimant’s testimony is
accorded substantial credibility when she has a long work history, which demonstrates it
is unlikely that, absent pain, she would have ended employment.120
5.

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.121 “At

119

20 C.F.R. § 404.1529(a)(3)
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
and left his employment after the company physicians determined that his symptoms of
dizziness and blurred vision prevented him from safely performing his job.
121
SSR 83-20.
120

22

the hearing, the administrative law judge (ALJ) should call on the services of a medical
advisor when onset must be inferred.”122
IV.

DISCUSSION
A.

Parties’ Contentions

In her appeal, plaintiff argues the ALJ failed to properly weigh the medical
opinion evidence provided by treating physicians, Drs. Ogunwande and Grossinger.
She contends that the ALJ’s conclusory findings were based on her subjective
statements, rather than the medical findings.123 Furthermore, plaintiff claims the ALJ
failed to properly determine her residual functional capacity (“RFC”). She argues that
there is no medical evidence of record showing she has been able to perform light
exertional work, and the ALJ’s decision was a deviation from the non-examining state
agencies.124 Plaintiff further urges the ALJ failed to properly evaluate her credibility.
She refutes the ALJ’s findings, arguing his determination is fatally flawed.125 Plaintiff
contends that the ALJ relied on his own “lay interpretation” of the record, rather than the
opinions of the physicians on the record.126
Alternatively, defendant contends the ALJ reasonably concluded that plaintiff was
not disabled under the stringent requirements of the Act and Regulations. Defendant
argues that the ALJ appropriately applied the sequential evaluation process in his

122

Id.
D.I. 10 at 14.
124
Id. at 16.
125
Id.
126
Id.
123

23

determination at step five of the evaluation process, that plaintiff could perform other
work that existed in significant numbers in the national economy.127 Defendant further
counters that the ALJ appropriately culled the record and crafted the RFC and his
findings are amply supported by the record. Defendant points out that the ALJ
meticulously analyzed all medical evidence and followed the regulations precisely.128
Furthermore, defendant maintains that the ALJ appropriately evaluated plaintiff’s
subjective complaints in light of the record evidence. Defendant notes that the ALJ
credited many of plaintiff’s allegations by assessing a limited range of light work, with
postural, environmental, and mental restrictions, that do not rise to the level of work
preclusive limitations, and the ALJ’s multi-factored assessment of plaintiff was greatly
supported by the record.129
B.

Disability Analysis

Title II of the Social Security Act, 42 U.S.C. § 423(a)(I)(D), “provides for the
payment of insurance benefits” to those who contributed to the program and suffer from
a physical or mental disability.130 In order to qualify for disability insurance benefits, a
claimant must establish she was disabled prior to the date she was last insured.131 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

127

D.I. 14 at 10.
Id.
129
Id. at 19.
130
Bowen, 482 U.S. at 140.
131
20 C.F.R. § 404.131.
128

24

or has lasted or can be expected to last for a continuous period of at least 12 months.132
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.”133
In determining whether a person is disabled, the Commissioner is required to
perform a five-step sequential analysis.134 If a finding of disability or non-disability can
be made at any point in the sequential process, the Commissioner does not review the
claim further.135 At the first step, the Commissioner must determine whether the
claimant is engaged in any substantial gainful activity. If the claimant is so engaged, a
finding of non-disabled is required.136 If the claimant is not so engaged, step two
requires the Commissioner to determine whether the claimant is suffering from a severe
impairment or a combination of impairments that is severe. If the claimant is not
suffering from either, a finding of non-disabled is required.137
If the claimant’s impairments are severe, the Commissioner, at the third step.
compares the claimant’s impairments to a list of impairments (the “listings”) that are
presumed severe enough to preclude any gainful work.138 When a claimant’s
impairment or its equivalent matches an impairment in the listing, the claimants is

132

42 U.S.C. §§ 423(d)(I)(A), 1382(c)(a)(3).
42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
134
20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422,427-28 (3d
Cir. 1999).
135
20 C.F.R. § 404.1520(a)(4).
136
20 C.F.R. § 404.1520(a)(4)(i).
137
20 C.F.R. § 404.1520(a)(4)(ii).
138
20 C.F.R. § 404.1520(a)(4)(iii); see also Plummer, 186 F.3d at 428.
133

25

presumed disabled.139 If a claimant’s impairments, either singularly or in combination,
fail to meet or medically equal any listing, the analysis continues to step four and five.140
At step four, the Commissioner determines whether the claimant retains the RFC to
perform her past relevant work.141 A claimant’s RFC is “that which an individual is still
able to do despite the limitations caused by [her] impairment(s).”142 “The claimant bears
the burden of demonstrating an inability to return to [her] past relevant work.”143
If the claimant is unable to return to her past relevant work, step five requires the
Commissioner to determine whether the claimant’s impairments preclude adjusting to
any other available work.144 At this final step, the burden is on 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 benefits.145 In
making this determination, the ALJ must analyze the cumulative effect of all the
claimant’s impairments and often seeks the assistance of a vocational expert.
1.

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 decision.146 The evidence presented to the ALJ may
139

20 C.F.R. § 404.1520(a)(4)(iii).
20 C.F.R. § 404.1520(e).
141
20 C.F.R. § 404.1520(a)(4)(iv); see also Plummer, 186 F.3d at 428.
142
Fargnoli, 247 F.3d at 40.
143
Plummer, 186 F.3d at 428.
144
20 C.F.R. § 404.1520(g) (mandating finding of non-disability when claimant
can adjust to other work); see also Plummer, 186 F.3d at 428.
145
Id.
146
See 20 CFR 404.1527(e)(2).
140

26

contain differing medical opinions from both treating and non-treating physicians, as
well as other testimony.147 Normally, the evidence presented by the treating physician is
given controlling weight as that individual may be most acquainted with the medical
history of the claimant. However, in circumstances where 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.148 Plaintiff argues that
the ALJ failed to properly weigh the medical opinion from treating physicians Dr.
Ogunwande and neurologist, Dr. Grossinger. This court finds that the proper weight
was given to both medical opinions, and the evidence supports this decision.
a.

Dr. Ogunwande

The ALJ assigned little weight to the opinion of treating physician Dr.
Ogunwande. Dr. Ogunwande determined that plaintiff’s prognosis was good in the
absence of any major back injury, and despite not being pain free, she would only
experience levels of mild back pain.149 In his medical judgment, she is probably not
capable of any job involving heavy lifting, but is certainly capable of sedentary work with
time allotted for standing and walking if needed.150 Plaintiff argues, since Dr.
Ogunwande’s opinions are based on appropriate medical findings and are
uncontradicted by other substantial evidence, his assessment should have been

147

See 20 CFR 404.1512.
See 20 CFR 404.1527(c).
149
D.I. 7-6, Ex. 14 F at 746.
150
Id.
148

27

granted controlling weight.151
The ALJ accepted Dr. Ogunwande’s findings that plaintiff was capable of
occasional lifting and carrying up to twenty pounds, and also accepted his assessment
that plaintiff is able to use her upper extremities without any limitations, refuting her
claims regarding carpal tunnel syndrome in her right hand. However, the ALJ gave little
weight to Dr. Ogunwande’s lack of support or explanation for why intermittent pain
would keep plaintiff from standing and walking for more than two hours in a single
workday, or limit her to a total of six hours of daily activity. The ALJ concluded Dr.
Ogunwande heavily relied on plaintiff’s subjective symptoms, and saw no medically
determinable impairment that would prevent plaintiff from regular attendance at a job
that falls within her residual functional capacity level.152 The ALJ noted that the opinion
of Dr. Ogunwande lacked support within his own record, and that he provided
contradicting opinions throughout his reports.153 The ALJ afforded appropriate weight to
Dr. Oguwande’s findings.
b.

Dr. Grossinger

The ALJ assigned little or no weight to the opinions of treating neurologist, Dr.
Grossinger. In the spinal impairment questionnaire, a form report provided by plaintiff’s
counsel, Dr. Grossinger noted that plaintiff has lumbar radiculopathy and suffers from
chronic pain despite treatment.154 He stated that she would need unscheduled breaks

151

D.I 10 at 16.
D.I. 6-2 at 29.
153
D.I. 14 at 13.
154
D.I. 6-2 at 29..
152

28

throughout the work day and would miss work several times a month. Additionally, she
would be limited to three hours of sitting and walking in a single workday and also prone
to lose concentration during work because of her pain. Plaintiff maintains that Dr.
Grossinger’s opinions should have also been assigned controlling weight.155
The ALJ appropriately afforded little or no weight to Dr. Grossinger’s opinions.156
In his determination, the only abnormal findings that Dr. Grossinger reported were: mild
to moderate limitation of motion, positive straight leg raising sign, and MRI and
electrodiagnostic studies showing disc disease with radiculopathy.157 The ALJ gave Dr.
Grossinger’s assessment of plaintiff no probative weight for his failure to explain why
these abnormal findings would prevent plaintiff from performing any non-physically
demanding work. Furthermore, he failed to explain why these findings, unaccompanied
by gait abnormality or significant motor weakness, would keep plaintiff from work that is
not physically demanding.158
c.

Drs. Borek and Kataria

Plaintiff’s records were reviewed by state agency physicians, Drs. Borek, and
Kataria. Dr. Borek assessed that plaintiff could occasionally lift and/or carry twenty
pounds; frequently lift and/or carry ten pounds; sit about six hours in an eight hour
workday; and stand and/or walk about three hours in an eight hour workday. He noted
that the medical evidence of record did not appear to corroborate plaintiff’s need for

155

D.I. 10 at 16.
D.I. 14 at 14.
157
D.I. 6-2 at 29.
158
Id.
156

29

ambulatory assistance as she alleged. Upon reconsideration, Dr. Kataria reviewed
plaintiff’s records and affirmed Dr. Borek’s findings. The ALJ considered the opinions
from the non-examining state physicians, and found the residual functional capacity was
generally consistent with the most recent evaluation for her physical ability, but
disagreed with the consultant’s ruling of a nonsevere mental disorder. The ALJ found
that the record did not support a psychological disability, but plaintiff’s continued low
mood supported that she would need work that is not mentally nor emotionally
challenging.159 The ALJ further disagreed with the consultants that plaintiff was limited
to sedentary exertion, due to conflicting testimony by plaintiff and Dr. Ogunwande.
d.

Dr. Hasan

The ALJ assigned no weight to Dr. Hasan’s responses to a form from the
Division of Social Services, because it failed to specify what work functions plaintiff can
and cannot perform, and provided no link between the assessed disability and actual
abnormal findings on plaintiff’s mental status.160 The ALJ determined that Dr. Hasan’s
findings were “at best, . . . a conclusory assessment on the issue of disability, which is
reserved to the Commissioner of Social Security.”161
2.

RFC Assessment

Plaintiff alleges the ALJ failed to properly assess her residual functional capacity.
An RFC is an individual’s ability to perform in a work setting despite impairments and

159

Id. at 30.
Id. at 29.
161
Id. at 30.
160

30

limitations.162 In making this finding, the ALJ must consider all of the claimant’s
impairments, including those that are non-severe. Although the ALJ may weigh the
credibility of the evidence, he must indicate the evidence which he rejects and his
reason(s) for discounting such evidence.163
In the current matter, the ALJ found that plaintiff possessed the residual
functional capacity to perform light work with some additional limitations. The Act
defines light work when it:
involves lifting no more than twenty pounds at a time with frequent or
carrying of objects weighing up to ten 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 and pulling of arm or leg controls. To be considered
capable of performing a full or wide range or light work, you must have the
ability to do substantially all of these activities.164
Furthermore, the ALJ specifically found plaintiff could work at a level consistent
with the regular and continuing performance of substantial gainful activity. Moreover, he
determined her residual functional capacity as generally consistent with the most recent
evaluation by state agency medical consultants regarding plaintiff’s physical ability.
3.

Plaintiff’s Credibility

Plaintiff additionally claims the ALJ failed to properly evaluate her credibility. The
ALJ administers a two-step process in which it must first be determined whether an
underlying medically determinable physical or mental impairment could reasonably

162

20 C.F.R. § 404.1545.
Plummer, 186 F.3d at 429.
164
20 C.F.R. § 404.1567(b).
163

31

produce the plaintiff’s pain or other symptoms.165 The ALJ stated that plaintiff’s spinal
disorder and depressive disorder are capable of producing symptoms of the type the
she alleges.166
Once the record confirms the impairments that could reasonably produce a
plaintiff’s pain or other symptoms, the ALJ addresses the second step of the process.
Here, he must evaluate the intensity, persistence, and limiting effects of a plaintiff’s
symptoms to determine the extent to which they limit her functioning.167 In the instant
matter, the ALJ did not accept plaintiff’s statements concerning the intensity,
persistence, and limiting effects of her symptoms and found her symptoms failed to
overcome the RFC assessment. Because of the lack of clinical evidence of severely
limiting disc disease, there was no showing of a loss of motion in the lumbar spine or
anywhere else.168
With plaintiff’s absence of a substantial work history prior to the alleged onset
date, the ALJ did not assume that her long absence was attributable solely to her
medical issues.169 Her daily use of marijuana against medical advise was viewed as a
deterring factor to seeking employment, as was caring for her granddaughter. The ALJ
stated that given these factors, it is not apparent that plaintiff would be working now,
even if she did not have any medically determinable impairments.170 The absence of

165

D.I. 6-2 at 27.
Id.
167
Id.
168
D.I. 6-2 at 28.
169
Id. at 27.
170
Id.
166

32

evidence demonstrating disuse atrophy, marked reduction of activities of daily living,
significant weight change, or symptoms requiring increasingly aggressive medical or
surgical management, led the ALJ to the appropriate conclusion, that plaintiff’s
allegations were insufficient to prove an inability to perform light work.171 The ALJ also
credited a number of plaintiff’s allegations, by determining that she was capable of
doing light work with the additional limitations specified in his opinion.172
Therefore, the court determines the ALJ based his assessment upon substantial
evidence presented in the record.
V.

Conclusion
For the foregoing reasons, I recommend that:
(1) Plaintiff’s motion for summary judgment (D.I. 9) be denied; and
(2) Defendant’s motion for summary judgment (D.I. 13) 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.

171
172

Id.
Id. at 30
33

Date: October 23, 2017

/s/ Mary Pat Thynge
Chief U.S. Magistrate Judge

34