Virola v. Berryhill

Filing 24

MEMORANDUM AND ORDER re 20 Cross MOTION for Summary Judgment filed by Nancy A. Berryhill, 15 MOTION for Summary Judgment filed by Jose Virola. Signed by Judge Mary Pat Thynge on 12/10/18. (cak)

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

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C.A. No. 17-776-MPT

MEMORANDUM OPINION
I.

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

benefits. On November 14, 2012, plaintiff filed an application for Supplemental Security
Income (“SSI”) under Title XVI of the Social Security Act (the “Act”).1 In his application,
plaintiff alleged he was disabled, as of September 5, 1986, due to mental retardation,
anxiety, nervousness, speech problems, and poor communication.2 His claims were
denied initially and upon reconsideration.3 Thereafter, plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”), which was held on March 25, 2015.4 On
November 13, 2015, ALJ William Kurlander issued a decision denying plaintiff’s claims.5
Subsequently, on December 12, 2015, Plaintiff requested a review of the hearing

1

D.I. 16 at 2.
Id.
3
Id. at 1.
4
Id. at 2.
5
Id.
2

decision.6 The Appeals Council denied the review on April 13, 2017.7 He then filed a
timely appeal with this court. Presently before the court are the parties’ cross motions
for summary judgment. For the reasons that follow, the court will grant defendant’s
motion for summary judgment.
II.

BACKGROUND
Plaintiff was born in Puerto Rico on September 5, 1986, which plaintiff alleges as

the onset of his disability.8 He is a Spanish speaking United States citizen.9 He
attended high school in Ponce, Puerto Rico, where he completed an Individualized
Education Program (“IEP”) in 2004.10 Plaintiff alleges he was placed in a pre-vocational
program because he was unable to meet the requirements for regular curriculum
participation.11 He claims due to mental retardation, severe paranoia, and
schizoaffective disorder, he is unable to work.12 He has no past relevant work.13
A.

Evidence Presented

From 2006 to 2012, plaintiff was under the care of Dr. Migueline Grant
Gonzales.14 Dr. Gonzales diagnosed plaintiff with mild mental retardation, finding his
condition as permanent.15 Dr. Gonzales believed plaintiff was completely limited in his

6

Id. at 3.
Id.
8
D.I. 16 at 2, 3.
9
Id. at 3.
10
Id.
11
Id.
12
Id.
13
Id.
14
Id. at 4.
15
Id.
7

2

daily routine and incapable of physical and/or mental effort.16 From 2012-2014, plaintiff
saw Ms. Gloria Diaz, his primary care provider, for his impairments.17 In November
2012, Ms. Diaz noted plaintiff was fast paced, used loud speech, had an anxious and
euphoric mood, and his behavior was agitated and compulsive.18
On January 29, 2013, Dr. Frederick Kurz, a psychologist, performed a one-time
evaluation by administering the Test of Non-verbal Intelligence-Fourth Edition, a fifteenminute test.19 Plaintiff attained a raw score of 17 placing his nonverbal cognitive skills at
an IQ of 76, borderline range.20 Dr. Kurz diagnosed him with borderline intelligence.21
Dr. Kurz believed plaintiff would have “moderate” limitations relating to other people,
daily activities, carrying out instructions under ordinary supervision, sustaining work
performance, and coping with pressures of ordinary work.22 In February 2013, plaintiff
had the same persisting symptoms as noted in November 2012, and Ms. Diaz
recommended psychological counseling. Later, she referred him to a psychiatrist and
neurologist.23
From March 2013 to August 2013, plaintiff treated with Mr. Kurt Rodriguez of
Christiana Counseling.24 On March 7, 2013, Mr. Rodriguez conducted an initial exam
and noted plaintiff was withdrawn, picked at his fingers, and minimally verbal.25 Mr.
16

Id.
Id. at 8.
18
Id. at 9.
19
Id. at 11.
20
Id.
21
Id.
22
Id. at 12.
23
Id. at 9.
24
Id. at 4.
25
Id.
17

3

Rodriguez diagnosed plaintiff with moderate mental retardation and anxiety disorder.26
On March 16, 2013, Mr. Rodriguez tried to administer a mini mental exam, but plaintiff
was unfocused and unable to answer any questions.27 On April 15, 2013, Dr. Gloria
Crespo performed an initial exam and observed plaintiff had poor eye contact, smelled
his fingers, and played with his hands.28 Dr. Crespo recommended cognitive behavioral
therapy.29 After this exam, plaintiff attended multiple cognitive behavioral therapy
sessions with Dr. Crespo.30 Based upon her observations, Dr. Crespo opined plaintiff
was mentally retarded.31 After various visits, she concluded that plaintiff’s mental and
intellectual deficits were severe and limiting.32
In June 2014, plaintiff started treatment with Dr. Patricia Lifrak, a psychiatrist.33
During her exam, Dr. Lifrak noted that plaintiff’s judgment and insight was limited, and
he evidenced cognitive delays.34 Dr. Lifrak subsequently diagnosed plaintiff with a
mood disorder.35 On June 25, 2014, Dr. Crespo completed a mental impairment
questionnaire, finding him disabled from competitive employment.36 Subsequently, Dr.
Crespo diagnosed him with adjustment disorder with mixed features and mental
retardation.37 Dr. Crespo stated plaintiff was unable to meet competitive standards for
26

Id.
Id.
28
Id. at 5.
29
Id.
30
Id.
31
Id.
32
Id. at 6.
33
Id. at 7.
34
Id.
35
Id.
36
Id. at 10.
37
Id.
27

4

even unskilled work due to his intellectual, cognitive, and psychological impairments.38
She also determined that plaintiff would have severe difficulties interacting with the
public and maintaining socially appropriate behavior because he is highly suspicious of
others or displayed inappropriate behaviors that are child-like.39
Plaintiff was admitted to the Rockford Center from August 7, 2014 to August 18,
2014.40 He was transferred from Wilmington Hospital after a 24-hour commitment due
to paranoia and positive homicidal ideation towards many people.41 Upon admission,
Dr. Afzal, a psychiatrist at Rockford, diagnosed plaintiff with bipolar disorder and chronic
mental illness.42 Plaintiff was treated for ten days, placed on mental health medications,
and his symptoms improved.43 Upon discharge, Dr. Afzal diagnosed him with
schizophrenia.44 Plaintiff was discharged to follow up with Dr. Lifrak for care.45
On September 6, 2014, plaintiff was seen at Wilmington Hospital for altered
mental state and suicidal ideations.46 There was concern about physical aggression,
cognitive disability, and medication compliance.47 Thereafter, plaintiff was discharged to
follow up with his psychiatrist.48 On September 24, 2014, plaintiff saw Dr. Lifrak.49 After
an exam, plaintiff remained non-verbal, passively cooperated, had poor eye contact and
38

Id.
Id.
40
Id. at 6.
41
Id.
42
Id. at 7.
43
Id.
44
Id.
45
Id.
46
Id.
47
Id.
48
Id.
49
Id. at 8.
39

5

flat effect.50 Dr. Lifrak diagnosed plaintiff with schizoaffective disorder.51
In 2013, plaintiff’s claim for benefits was evaluated by state agency consultants,
Carlene Tucker-Okine, Ph.D. and Christopher King, Psy. D.52 Dr. Tucker-Okine
believed plaintiff was moderately limited in multiple areas, including the ability to
understand and remember detailed instructions, maintain attention and concentration,
complete a normal workday and work week without interruptions from psychologically
based symptoms and set realistic goals.53 She believed he was limited to simple tasks
for work. Dr. King affirmed the opinion of Dr. Tucker-Okine.54
B.

Hearing Testimony
1. Plaintiff’s Testimony

At the hearing on March 25, 2015, plaintiff provided no testimony.55 When
questioned, he did not cooperate or provide any verbal responses.56 Plaintiff stated,
during the hearing, that he did not understand.57 Plaintiff would not consent to the ALJ’s
use of a Spanish language interpreter.58 Counsel expressed concern over plaintiff’s
ability to testify.59 In lieu of plaintiff, his mother, Carolina Virola Ruiz, testified.60 She
testified plaintiff attended special education classes, entered the first grade at the age of

50

Id.
Id.
52
Id. at 12.
53
Id.
54
Id.
55
Id.
56
Id.
57
Id.
58
D.I. 21 at 2.
59
D.I. 16 at 12.
60
Id. at 13.
51

6

ten, remained in fifth grade until the age of fifteen, and did not graduate high school.61
Ms. Ruiz explained she and plaintiff had lived in the United States for two and a half
years.62 She further testified that her son never worked and could not work because he
was depressed and thought everybody was ready to attack him.63 Ms. Ruiz stated her
son did not carry his own wallet or handle money.64
She explained plaintiff suffered from depression, anxiety, and phobia and has no
friends nor socializes with family members.65 She testified he is unable to communicate
properly with a group of people, as well as his psychiatrist.66 He has problems with
anger and hears voices.67 Ms. Ruiz testified during the day, he spends his time
watching basketball on television, staying in his room, and listening to music.68 He does
not want to leave his room.69 Ms. Ruiz further noted that her son does not have a
driver’s license, is unable to use a computer, and cannot perform any chores.70 She
noted that he takes prolonged showers and must be prompted to stop.71

61

D.I. 21 at 2.
Id. at 3.
63
D.I. 16 at 13; D.I. 21 at 3.
64
D.I. 16 at 13.
65
Id.
66
Id.
67
Id.
68
Id.
69
Id.
70
Id.
71
Id.
62

7

2. Vocational Expert’s Testimony
Testimony was provided at the hearing by vocational expert, Christina Cody.72
The ALJ proposed hypothetical question limiting plaintiff to unskilled work, reasoning
level at one or two, no ability to speak and read or write in English, no more than
occasional interaction with co-workers and supervisors, no interaction with the general
public, and no exposure to moving machinery. Ms. Cody identified several occupations
existed for such an individual including hand packager at the medium exertional level,
laborer, and kitchen helper.73 In another hypothetical, the ALJ included an individual
who was unable to leave his home unaccompanied because of mental defect or mental
impairments. In response, Ms. Cody explained there was no competitive employment.74
Plaintiff’s counsel asked Ms. Cody several questions, specifically if an individual
had difficulty making independent judgment and remembering work-like procedures, the
impact these conditions would have on the person’s ability to work.75 Ms. Cody
responded it would be work preclusive.76 She further explained that the absence of one
day per month from work on a reoccurring basis would be considered excessive by
employers.77 Plaintiff’s counsel also asked if an individual had difficulty in all abilities
and aptitudes needed to do unskilled work, whether it would preclude him from doing
any type of unskilled work.78 Ms. Cody responded that it would preclude work.79
72

Id.
Id.
74
Id.
75
Id.
76
Id.
77
Id.
78
Id.
79
Id.
73

8

3. 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
from the 2015 hearing, the disability decision at issue, are summarized as follows:
1.

The claimant has not engaged in substantial gainful activity
since October 31, 2012, the application date (20 CFR 416.971
et seq.).

2.

The claimant has the following severe impairments:
borderline intelligence/borderline intellectual functioning,
depression and schizoaffective disorder (20 CFR 416.920(c)).

3.

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 416.920(d), 416.925 and 416.926).

4.

After careful consideration of the entire record, I find the
claimant has the residual functional capacity to perform a full
range of work at all exertional levels but with the following
nonexertional limitations: unskilled work, no more than
reasoning level two; no requirement to read, speak, or
understand English to perform the work; no work at exposed
heights; no working around moving machinery; no interaction
with the general public; and no more than occasional
interaction with coworkers and supervisors.

5.

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

6.

The claimant was born on September 5, 1986 and was 26
years old, which is defined as a younger individual age 18-49,
on the date the application was filed (20 CFR 416.963).

7.

The claimant is not able to communicate in English, and is
considered in the same way as an individual who is illiterate in
English (20 CFR 416.964).

8.

Transferability of job skills is not an issue because the
9

claimant does not have past relevant work (20 CFR 416.968).
9.

10.

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 416.969, and 416.969(a)).
The claimant has not been under a disability, as defined in the
Social Security Act, from October 31, 2012, the date the
application was filed (20 CFR 416.920(g)).80

STANDARD OF REVIEW
A.

Motion for Summary Judgment

Each party moved for summary judgment.81 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.”82 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.83
This standard does not change merely because there are cross-motions for
summary judgment.84 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
80

D.I. 8-2 at 23-34.
D.I. 10 (Plaintiff’s motion for summary judgment); D.I. 14 (Defendant’s motion
for summary judgment).
82
Reeves v. Sanderson Plumbing, Prods., Inc., 530 U.S. 133, 150 (2000).
83
Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R. CIV.
P. 56(c)).
84
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
81

10

determination whether genuine issues of material fact exist.85
“The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party.”86
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.87 Substantial evidence means less than a
preponderance of the evidence, but more than a mere scintilla of evidence.88 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."89
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.90 The court’s review is limited to the
evidence that was actually presented to the ALJ.91 The Third Circuit has explained that
a:
85

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).
87
42 U.S.C. §§ 405(g), 1383(c)(3); see also Monsour Medical Center v.
Heckle, 806 F .2d 1185, 1190 (3d Cir. 1986).
88
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
89
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
90
Monsour, 806 F.2d at 1190.
91
Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001)
86

11

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.92
Thus, the inquiry is not whether the court would have made the same
determination, but rather, whether the Commissioner’s conclusion was reasonable.93
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.94
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.”95 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.”96 The
Third Circuit has recognized the applicability of this finding in the Social Security
disability context.97 Thus, this court's review is limited to the four corners of the ALJ's

92

Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
94
Monsour, 806 F .2d at 1190-91.
95
Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.D. Pa. 2011).
96
Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947).
97
Fargnoli v. Massanari, 247 F.3d 34, 44, n.7 (3d Cir. 2001).
93

12

decision.98
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.99 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.”100 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.”101 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.102

98
99

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

100

42 U.S.C. § 423(d)(1)(A).
42 U.S.C. § 423(d)(2)(A).
102
42 U.S.C. § 423(d)(3).
101

13

1.

Five-Step Test.

The Social Security Administration uses a five-step sequential claim evaluation
process to determine whether an individual is disabled.103
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.104
If the ALJ determines that a claimant is disabled at any step in the sequence, the
analysis ends.105

103

1999).

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

104

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

105

14

2.

Weight Afforded Treating Physicians

“A cardinal principle guiding disability eligibility determinations is that the ALJ
accord treating physicians’ reports great weight.”106 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.107
The ALJ must consider medical findings supporting the treating physician’s
opinion that the claimant is disabled.108 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.”109 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.”110
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.111 Therefore, only the ALJ can make a disability
determination.

106

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)
Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001).
108
Morales, 225 F.3d at 317 (citing Plummer, 186 F.3d at 429).
109
Plummer, 186 F.3d at 429.
110
Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981).
111
See 20 C.F.R. § 416.927 (e)(1).
107

15

3.

Evaluation of Subjective Accounts of Pain112

Statements about the symptoms alone never establish the existence of any
impairment or disability.113 The Social Security Administration uses a two-step process
to evaluate existence and severity of symptoms.
a.

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.

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

112

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.
113

16

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.114
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 this 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

114

20 C.F.R. § 404.1529.
17

other symptoms.115
4.

Factors in Evaluating Credibility116

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

115
116

20 C.F.R. § 404.1529
SSR 16-3p.
18

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.117 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.118
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.119 “At

117

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.
119
SSR 83-20.
118

19

the hearing, the administrative law judge (ALJ) should call on the services of a medical
advisor when onset must be inferred.”120
IV.

DISCUSSION
A.

Parties’ Contentions

Plaintiff argues the ALJ erred in his analysis of whether plaintiff’s mental health
impairments met or medically equaled one of the listed impairments by ignoring relevant
medical evidence and failing to provide an adequate explanation for some of his
findings.121 Plaintiff maintains, in making his assessment, the ALJ ignored relevant
evidence that supported the severity of plaintiff’s schizoaffective disorder and cognitive
dysfunction.122 Plaintiff asserts the ALJ disregarded substantial amounts of evidence
that supported the marked severity of his mental impairments.123
The ALJ found plaintiff had moderate restrictions in his activities of daily living
(“ADLs”), but the plaintiff argues he had significant restrictions in his ability to perform
ADLs.124 Plaintiff contends the ALJ ignored significant portions of the evidence, which
revealed severe deficits in social functioning.125 Plaintiff further maintains there was
evidence in the record demonstrating he has significant concentration problems that
were marked in nature, and a significant portion of the evidence was not addressed by

120

Id.
D.I. 16 at 14.
122
Id. at 15.
123
Id.
124
Id. at 16.
125
Id. at 17.
121

20

the ALJ.126 Plaintiff argues the ALJ summarily concluded he did not have a current
history of one or more years of an inability to function outside a highly supportive living
arrangement, with a continued need for such arrangement, and the ALJ failed to provide
an explanation for this finding.127
Further, plaintiff contends the ALJ erred as a matter of law in failing to accord
adequate weight to the opinions and assessments of plaintiff’s treating psychologist, Dr.
Gloria Crespo.128 Plaintiff argues the ALJ disregarded repeated references of disabling
symptoms.129 Plaintiff contends Dr. Crespo’s opinion is consistent with three other
treating medical providers including Gloria Diaz, Kurt Rodriguez, LCSW, and Dr.
Migueline Grant Gonzalez, and the ALJ discredited their opinions based upon the onetime exam done by Mr. Kurz, who was not a treating provider.130
Alternatively, defendant contends substantial evidence supports the ALJ’s
decision.131 Defendant argues the ALJ properly evaluated the competing medical
opinion evidence.132 Defendant asserts the ALJ provided legitimate reasons to grant
little weight to Dr. Crespo’s opinions and substantial evidence supported his
determination.133 Defendant argues the reasons cited by the ALJ fully conformed to the
governing regulations, which provide more weight will be given to medical opinions

126

Id. at 18.
Id.
128
Id. at 19.
129
Id.
130
Id. at 20.
131
D.I. 21 at 4.
132
Id. at 5.
133
Id. at 6.
127

21

depending on the nature and length of the treatment relationship, the opinion’s
supportability, and its consistency with the record as a whole.134
Defendant further contends the ALJ did not err in concluding plaintiff’s
impairments did not meet or medically equal in severity the clinical requirements of
listings.135 Defendant asserts based on the evidence showing the effectiveness of
plaintiff’s treatment, the ALJ did not find plaintiff had marked or extreme difficulties in
this domain.136 Defendant argues that the ALJ did not err in his consideration of the
paragraph C criteria of Listings because the ALJ cited this criteria and found the
evidence failed to establish its presence.137 Defendant further argues the ALJ was
required to consider, and entitled to rely upon, the opinions of Drs. Tucker Okine and
King in formulating his RFC finding because such state agency consultants are highly
qualified psychologists who are experts in Social Security disability evaluation.138
Defendant contends the ALJ was not mandated by SSR 06-3p to explicitly weigh
the statements of the claimant’s mother, and does not require that ALJs explain weight
given to sources other than “acceptable medical sources” and “non-medical sources”
evaluating a claimant in their professional capacity.139 Defendant contends a review of
the entirety of the ALJ’s decision illustrates that the record supports his finding that
plaintiff’s impairments did not equal Listings 12.02, 12.03, 12.04, 12.05, or 12.06.140

134

Id. at 9.
Id. at 10.
136
Id. at 11.
137
Id. at 12.
138
Id. at 13.
139
Id.
140
Id. at 14.
135

22

Defendant argues the ALJ’s decision meets the test for meaningful judicial review and
substantive evidence supports the ALJ’s finding that plaintiff’s impairments were not
severe enough to equal the clinical requirements of any Listed Impairment.141
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.142 In order to qualify for disability insurance benefits, a
claimant must establish he was disabled prior to the date he was last insured.143 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.144
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.”145
As explained previously herein, in determining whether a person is disabled, the
Commissioner is required to perform a five-step sequential analysis.146 If a finding of
disability or non-disability can be made at any point in the sequential process, the

141

Id.
Bowen, 482 U.S. at 140.
143
20 C.F.R. § 404.131.
144
42 U.S.C. §§ 423(d)(I)(A), 1382(c)(a)(3).
145
42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
146
20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422,427-28 (3d
Cir. 1999).
142

23

Commissioner does not review the claim further.147 Initially, the Commissioner
determines whether the claimant is engaged in any substantial gainful activity, and if the
claimant is so engaged, a finding of non-disabled is required.148 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.149
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.150 When a claimant’s
impairment or its equivalent matches an impairment in the listing, the claimant is
presumed disabled.151 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.152
At step four, the Commissioner determines whether the claimant retains the RFC to
perform his past relevant work.153 A claimant’s RFC is “that which an individual is still
able to do despite the limitations caused by [his] impairment(s).”154 “The claimant bears
the burden of demonstrating an inability to return to [his] past relevant work.”155
If the claimant is unable to return to his past relevant work, step five requires the

147

20 C.F.R. § 404.1520(a)(4).
20 C.F.R. § 404.1520(a)(4)(i).
149
20 C.F.R. § 404.1520(a)(4)(ii).
150
20 C.F.R. § 404.1520(a)(4)(iii); see also Plummer, 186 F.3d at 428.
151
20 C.F.R. § 404.1520(a)(4)(iii).
152
20 C.F.R. § 404.1520(e).
153
20 C.F.R. § 404.1520(a)(4)(iv); see also Plummer, 186 F.3d at 428.
154
Fargnoli, 247 F.3d at 40.
155
Plummer, 186 F.3d at 428.
148

24

Commissioner to determine whether the claimant’s impairments preclude adjusting to
any other available work.156 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.157 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.158 The evidence presented to the ALJ may
contain differing medical opinions from both treating and non-treating physicians, as
well as other testimony.159 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.160 Plaintiff argues that
the ALJ failed to properly weigh the medical opinion from treating psychologist Dr.

156

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.
157
Id.
158
See 20 CFR 404.1527(e)(2).
159
See 20 CFR 404.1512.
160
See 20 CFR 404.1527(c).
25

Gloria Crespo. This court finds that the proper weight was given to Dr. Crespo’s medical
opinion, and the evidence supports this decision.
a.

Dr. Gloria Crespo and Dr. Migueline M. Grant Gonzalez

The ALJ assigned little weight to the opinion of treating psychologist Dr.
Crespo.161 Dr. Crespo concluded that plaintiff had “marked” limitations with respect to
ADLs, social functioning, and maintaining concentration, persistence, or pace.162 In her
medical judgment, plaintiff is unable to function outside of his home and/or a highly
supportive living environment.163 Plaintiff argues Dr. Crespo’s opinion is supported by
her treatment notes and the records of Dr. Lifrak and Gloria Diaz.164 The ALJ also
considered the opinion of the plaintiff’s previous treating physician, Dr. Migueline M.
Grant Gonzalez.165 Dr. Gonzalez stated that plaintiff is totally disabled to carry out ADLs
and completely limited in his daily routine.166 The ALJ also assigned little weight to Dr.
Gonzalez’s statements.167 Ultimately, the ALJ found that claimant had moderate
restrictions in ADLs.168
The ALJ noted that the claimant’s mother, Carolina Virola-Ruiz, completed a
function report in connection with his claim.169 In the report, his mother stated that she

161

D.I. 8-2 at 24.
Id.
163
Id.
164
D.I. 16 at 19.
165
D.I. 8-2 at 24.
166
Id.
167
Id.
168
Id. at 25.
169
Id.
162

26

helps claimant with grooming and prepares his meals.170 She also reported that the
claimant was “lazy.”171 During the day, she indicated that he watches television and
plays video games.172 While the claimant’s mother reported supervising all major ADLs
including transportation, finances, and health, the record reflects that he retains the
“[a]bility to manage checkbook.”173 The claimant also felt helpless about not being able
to help his mother obtain housing and wanted to “move to another state to see if he can
get better services.”174
In addition, the ALJ found that claimant had moderate difficulties in social
functioning.175 Although the ALJ considered claimant’s documented paranoia and
agitation, the medical evidence reveals improvement with medication176 Further, the
claimant was passively cooperative, had fair impulse control, and displayed no evidence
of agitation or manic symptoms upon examination.177 Other treatment providers
described the claimant as calm, cooperative, pleasant, friendly, and verbal.178
The ALJ also found that claimant had moderate difficulties in concentration,
persistence, and pace.179 The claimant’s mother reported that he can pay attention for
five minutes.180 However, the medical evidence reveals improvement with medication

170

Id.
Id.
172
Id.
173
Id.
174
Id.
175
Id.
176
Id.
177
Id.
178
Id.
179
Id.
180
Id.
171

27

with his memory intact and fair insight and judgement.181 Further, mental status
examination findings repeatedly describe the claimant as alert, oriented, and
cooperative.182
Accordingly, the ALJ noted Dr. Crespo’s conclusions are inconsistent with the
evidence in the record and plaintiff’s level of activity, and assigned little weight to Dr.
Gonzalez’s findings because they are conclusory, and unsupported by the medical
records.183
b.

Carlene Tucker-Okine, Ph. D., and Christopher King,
Psy.D.,

Plaintiff’s records were reviewed by state agency psychological consultants,
Carlene Tucker-Okine, Ph. D., and Christopher King, Psy.D.184 Dr. Tucker-Okine
opined that plaintiff was moderately limited in multiple areas, including his ability to
understand and remember detailed instructions, maintain attention and concentration,
complete a normal workday and work week without interruptions from psychologically
based symptoms and set realistic goals.185 Ultimately, Dr. Tucker-Okine concluded that
plaintiff has only mild limitations in ADLs and maintaining social function, and moderate
difficulties in concentration, persistence, or pace.186 Thereafter, Dr. King reviewed
plaintiff’s records and affirmed Dr. Tucker-Okine’s findings.187

181

Id.
Id.
183
D.I. 8-2 at 24.
184
D.I. 16 at 12.
185
Id.
186
D.I. 8-2 at 24.
187
D.I. 16 at 12.
182

28

The ALJ considered both consultants’ opinions and assigned some weight to
their opinions.188 The ALJ assigned partial weight to the opinions of the consultants
because their conclusions as to the claimant’s ability to answer questions, follow
directions, handle simple tasks, and handle one to two step commands are consistent
with the medical evidence in the record.189 This includes examination findings,
documented improvement with medication, and the results of intelligence testing.190
However, as discussed above, the record reflects that the claimant does have some
social limitations that have been appropriately accommodated for in the residual
functional capacity below.191 Accordingly, the consultants’ assessments were propoerly
assigned partial weight.192
2.

RFC Assessment

Plaintiff alleges the ALJ failed to properly assess his residual functional
capacity.193 An RFC is an individual’s ability to perform in a work setting despite
impairments and limitations.194 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.195

188

D.I. 8-2 at 24-5.
Id. at 32.
190
Id.
191
Id.
192
Id.
193
D.I. 16 at 21.
194
20 C.F.R. § 404.1545.
195
Plummer, 186 F.3d at 429.
189

29

In the current matter, the ALJ found that plaintiff possessed the residual
functioning capacity to perform a full range of work at all exertional levels.196 The ALJ,
however, noted the following nonexertional limitations: unskilled work, no more than
reasoning level two; no requirement to read, speak, or understand English to perform
the work; no work at exposed heights; no working around moving machinery; no
interaction with the general public; and no more than occasional interaction with
coworkers and supervisors.197 Furthermore, the ALJ specifically found plaintiff retains
the ability to perform work within the parameters of the above residual functional
capacity, which considered and accounted for his medically determinable
impairments.198
V.

CONCLUSION
Consistent with the findings contained herein:
1. Plaintiff’s motion for summary judgment (D.I. 15) is denied; and
2. Defendant’s motion for summary judgment (D.I. 20) is granted.
A Judgement Order shall follow.

Date: December 10, 2018

196

D.I. 8-2 at 27.
Id.
198
D.I. 8-2 at 33.
197

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
)
)
)
)
)
)
)
)
)
)
)

JOSE A. VIROLA,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

C.A. No. 17-776-MPT

JUDGMENT ORDER
At Wilmington this 10th day of December, 2018.
IT IS ORDERED and ADJUDGED THAT:
1. Plaintiff’s motion for summary judgment (D.I. 15 ) is DENIED.
2. Defendant’s motion for summary judgment (D.I. 20) is GRANTED.

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