Krykewycz v. Berryhill
Filing
13
REPORT AND RECOMMENDATIONS re 8 Cross MOTION for Summary Judgment filed by Nancy A. Berryhill 6 MOTION for Summary Judgment filed by Denise Krykewycz. Please note that when filing Objections pursuant to Federal Rule of Civil Pr ocedure 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 7/5/2018. Signed by Judge Mary Pat Thynge on 6/21/18. (cak)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DENISE KRYKEWYCZ,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant
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C.A. NO. 17-821-RGA-MPT
REPORT AND RECOMMENDATION
I.
INTRODUCTION
This action arises from the denial of Plaintiff’s claim for Social Security benefits.
On August 24, 2012, Plaintiff filed an application for Social Security Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Title II and Title XVI of
the Social Security Act (the “Act”).1 In her initial application and disability report, Plaintiff
alleged she became disabled on November 1, 2002 due to several physical
impairments, including arthritis, gout, bursitis, and heart problems.2 Her claims were
denied initially on March 16, 2013, and denied again upon reconsideration on June 9,
2013.3 On August 9, 2013, Plaintiff filed a request for a hearing before an
Administrative Law Judge (“ALJ”).4 Subsequently, the ALJ dismissed her request since
1
D.I. 7 at 1615.
D.I. 4-7 at 336.
3
D.I. 4-3 at 120, 143.
4
Id. at 160.
2
Plaintiff did not appear for the scheduled hearing.5 Plaintiff then filed a request for
review of the dismissal, and on December 17, 2014, the Appeals Council vacated the
dismissal and remanded the case to the ALJ.6 The remanded claim was heard on April
1, 2015 before ALJ William Kurlander.7 At the hearing, testimony was provided by
Plaintiff and a vocational expert, Christina Cody (hereinafter referred to as “Cody”).8
The ALJ found that Plaintiff did not qualify as “disabled” under either act and denied her
request for benefits in a decision dated December 18, 2015.9 Following the ALJ’s
unfavorable decision, Plaintiff filed a request for review, which the Appeals Council
subsequently denied.10 She then filed a timely appeal with this court on January 15,
2016.11 Presently before the court are the parties’ cross motions for summary
judgment. For the reasons that follow, it is recommended that Defendant’s motion be
granted.
II.
BACKGROUND
Plaintiff was born on August 30, 1956.12 She has a high school education and
past work experience as a telemarketer.13 She was 46-years-old at the onset of her
alleged disability, which dates from November 1, 2002.14 In 2012, she reported to the
5
Id.
Id. at 164.
7
D.I. 4-2 at 36.
8
Id.
9
Id. at 47.
10
Id. at 19.
11
Id. at 26.
12
Id. at 63.
13
Id. at 64-65.
14
Id. at 58.
6
2
state agency that she stopped working in 2002 due to multiple physical impairments.15
However, Plaintiff was incarcerated from 2002-2005 after being convicted of corrupting
the morals of a minor.16
On her initial disability report in 2012, Plaintiff stated she was unable to work due
to her physical impairments including arthritis, gout, bursitis, and heart problems.17 In
2013, she alleged no additional impairments at reconsideration.18 However, in 2015,
Plaintiff testified that she remained unable to work due to the physical problems, as well
as, psychological problems.19 While incarcerated, Plaintiff was prescribed medication
for depression and anxiety.20 In 2015, her therapist diagnosed acute stress and
personality disorder.21 Additionally, while in prison, Plaintiff reported neck, back, foot
and hand pain.22 In 2013, she initially sought treatment with a rheumatologist for
reported pain in her joints and back.23 She underwent shoulder surgery for a rotator cuff
tear in 2014.24 Plaintiff also has reoccurring issues with kidney stones and kidney stone
disease, urinary tract infections, and urinary incontinence, for which she underwent
surgery in 2010.25 Despite her prior vocational experience, Plaintiff claims she remains
disabled under the Acts.26 To be eligible, Plaintiff must demonstrate she is disabled
15
D.I. 4-7 at 337.
D.I. 4-2 at 66-67.
17
Id. at 41.
18
Id.
19
Id.
20
Id. at 42.
21
D.I. 4-19 at 1390.
22
D.I. 4-2 at 42.
23
Id.
24
Id.
25
D.I. 4-10 at 512-22.
26
D.I. 4-2 at 90.
16
3
within the Acts, which have the same standard, as discussed below.
A.
Evidence Presented
Plaintiff allegedly suffers from a myriad of issues, the combination of which is her
basis that she is unable to perform any substantial gainful activity. Plaintiff provided
records of extensive treatment notes from the prison infirmary where she complained of
various issues during her 4-year incarceration.27 Plaintiff had minimal consistent
treatment after her release in 2005. According to the record, Plaintiff complains of
various impairments on which she bases her claim; however, as noted by the ALJ, the
record lacks objective medical findings to support her assertions.28
1.
Physical Impairments
While incarcerated, Plaintiff was treated at the prison infirmary for complaints
including boils, colds, gynecological issues and injuries from alleged assaults by other
inmates.29 In January 2003, she reported pain in her left foot from a prior surgery, but
received no ongoing treatment.30 In August of that year, she complained of pain in her
right foot from a bunion.31
In July 2003, Plaintiff first reported pain in her neck and back from an alleged
prior injury.32 In May 2004, she again complained of neck and back pain. The nurse
practitioner, however, noted Plaintiff “may be malingering” because she was able to
27
D.I. 4-2 at 42.
Id.
29
Id.
30
D.I. 4-17 at 1162.
31
D.I. 4-16 at 1045.
32
Id. at 1055.
28
4
“stand and do a dance” after being upset about not getting her requested treatment.33
In 2005, she complained of hand pain, then later of pain in her left knee. X-rays of
these areas were normal.34
Following her release from prison, she followed up with a breast specialist for
mammograms for cysts in her left breast.35 In 2007, she had genetic testing that
revealed no mutation.36 Plaintiff underwent an excision of a mass on her left chest wall
in 2011.37 As noted by the ALJ, there is no additional documentation of any further
breast surgery, contrary to her claims that she had a mastectomy and surgical removal
of her milk glands.38
In 2013, Plaintiff started with a rheumatologist for pain in her joints and back.39
She was prescribed Prednisone and Neurontin for osteoarthritis and inflammatory
polyarthropathy.40 A spinal MRI revealed mild disc joint degeneration with no nerve root
involvement.41 X-rays showed mild facet arthritis, normal sacroiliac joints, degeneration
in the hands and normal knees.42 Examination findings from 2013 through 2014
revealed no joint swelling and normal motor function.43 Despite Plaintiff’s complaints of
disabling back and joint pain, she has not returned to her rheumatologist since 2014,
33
D.I. 4-18 at 1265.
D.I. 4-19 at 1328-42.
35
D.I. 4-2 at 42.
36
Id.
37
Id.
38
Id.
39
Id.
40
Id.
41
Id. at 44.
42
Id.
43
Id. at 42.
34
5
nor has she sought an evaluation with an orthopedist or surgeon for her back.44
Plaintiff saw a pulmonologist in 2013 for shortness of breath and coughing, which
was treated with Flonase and attributed to allergies after a normal pulmonary function
test and chest x-ray.45 A sleep study revealed mild obstructive sleep apnea and a
CPAP machine was recommended, but Plaintiff did not want it prescribed.46 Thus, the
records lack support for Plaintiff’s testimony that she falls asleep due to her “heart
condition.”47
In June 2014, Plaintiff underwent arthroscopic surgery on the right shoulder to
repair her rotator cuff.48 By September, despite her complaint of continuing pain, test
results showed full strength in the shoulder and right upper extremity.49 She was
advised to continue activities as tolerated with no specific restrictions.50
In March 2015, Steven Manifold, M.D. completed an RFC questionnaire,
particularly relevant since Plaintiff claims the ALJ erred by giving the report little weight
in his RFC determination.51 The questionnaire indicated that Plaintiff:
could sit, stand and walk eight hours each day and that she could lift and carry
up to 24 pounds occasionally, 19 pounds frequently, and 9 pounds
continuously . . . [and] occasionally push or pull arm controls with her right hand
and occasionally reach. [Plaintiff] has no limitations on bending and squatting,
but could only occasionally climb, push, pull or crawl.52
44
Id. at 45.
D.I. 4-2 at 43.
46
Id.
47
Id.
48
Id. at 43.
49
D.I. 4-20 at 1394-97.
50
Id.
51
D.I. 4-19 at 1385-86.
52
D.I. 4-2 at 46.
45
6
The last documented office visit occurred in December 2014, three months before Dr.
Manifold completed the questionnaire.53 At that time, Plaintiff had normal strength in her
right upper extremity and had no activity restrictions.54
2.
Mental Impairments
Documentation in the record regarding mental status findings or treatment is
minimal. Plaintiff was evaluated by a psychiatrist prior to her sentencing in 2000.55 The
doctor concluded that Plaintiff suffered from and needed treatment for Major Depressive
Disorder, Inadequate Personality Disorder, and Post Traumatic Stress Disorder related
to her seeing a dead body in 1997.56 He also opined that she was a high risk for suicide
completion.57
While incarcerated, Plaintiff was treated with Prozac and Vistaril for depression
and anxiety, although few symptoms or mental status findings are documented in the
prison medical records.58 Moreover, the prison records are highly inconsistent
regarding her mental impairments. Plaintiff’s self-reported “current problems” and the
medical history fluctuated greatly during her four year incarceration and included a
variety of undiagnosed psychological disorders.59
Plaintiff started seeing therapist Laura Wechsler L.D.C.S.W. in March 2010.60
Ms. Wechsler’s session notes provide little support evidencing any mental impairments.
53
Id.
Id.
55
D.I. 4-2 at 43.
56
D.I. 4-19 at 1365-6.
57
Id. at 1366.
58
D.I. 4-2 at 43.
59
See generally D.I. 4-15.
60
D.I. 4-2 at 43.
54
7
The notes are very emotional and relate more to Ms. Wechsler’s belief that Plaintiff was
wrongly convicted of a felony than her purported psychological issues.61 Few symptoms
and no mental status findings are documented. There is no indication how Plaintiff’s
mental impairments were addressed and no record of Ms. Wechsler treating Plaintiff
after 2012.62
In 2015, Ms. Wechsler completed a Diagnosis and Mental Residual Functional
Capacity Form in which she reported that Plaintiff’s diagnoses are acute stress disorder
and personality disorder not otherwise specified.63 She also completed a questionnaire
regarding Plaintiff’s ability to perform work activities and limitations to her potential work
performance.64
The questionnaire indicated that Plaintiff:
is not precluded from understanding, remembering, and carrying out simple
instructions, maintaining attention for two-hour periods, sustaining an ordinary
routine, and interacting appropriately with the general public, but that she is
limited in working with detailed tasks. . . . [Plaintiff’s] job performance is
precluded 10-15% of the workday in such areas as performing activities within a
schedule and maintaining regular attendance, working in coordination with
others, completing a normal workday and workweek without interruptions from
psychologically based symptoms, accepting instruction and responding
appropriately to criticism from supervisors, getting along with co-workers or
peers, and responding appropriately to changes in the work setting.65
Plaintiff contends that the ALJ’s decision to reject the part Ms. Wechsler’s assessment
about her limitations is error.66
61
See D.I. 4-21 at 1495-1504.
Id.
63
D.I. 4-19 at 1387-90.
64
Id.
65
D.I. 4-2 at 44.
66
Id. at 29.
62
8
The only other record regarding Plaintiff’s alleged mental impairments is a
discharge summary from Dover Behavioral Health in November 2012.67 Plaintiff
testified that she was hospitalized after a suicide attempt and “lived” there for awhile.68
According to the records, she was hospitalized for one week, followed by outpatient
treatment for “stress management” through the end of the month.69 The discharge
records contain no diagnosis, no reported symptoms, no mental status findings nor
Plaintiff’s functional status.70
3.
State Agency Assessment
After Plaintiff filed her initial disability report in 2012, the Agency concluded she
was not disabled.71 An assessment of Plaintiff’s impairments in the Disability
Determination Explanation is dated March 16, 2013.72 The Agency found Plaintiff had
some limitations in the performance of certain work activities, but that Plaintiff had the
RFC to perform her past relevant work as a telemarketer.73
Moreover, consistent with the ALJ’s findings, the Agency concluded that
Plaintiff’s statements about the intensity, persistence, and functionally limiting effects of
her symptoms were not sustained by the objective medical evidence alone, and
determined Plaintiff was capable of performing light work, noting her ability to perform
personal care, do light cooking, household chores, shop, and socialize with family.74
67
D.I. 4-19 at 1367-71.
D.I. 4-2 at 85.
69
Id. at 44.
70
Id.
71
See generally D.I. 4-3 at 109-121.
72
Id.
73
D.I. 4-3 at 119.
74
Id. at 117, 151.
68
9
The Agency also completed an RFC assessment, which concluded Plaintiff could
occasionally lift or carry 20 pounds, frequently lift or carry 10 pounds, and could stand or
walk with normal breaks for 6 hours during an 8 hour work day.75 She did not have any
exertional limitations in pushing and/or pulling.76
The Agency did not complete a mental assessment for Plaintiff because the
evidence was insufficient to establish a mental impairment at that time.77 In fact, the
report noted that Plaintiff did not allege any impairment related to any mental
condition.78 Further, she denied treatment for any mental or emotional condition and
reported that her condition did not affect her mental facilities.79
B.
Hearing Testimony
1.
Plaintiff’s Testimony
At the hearing on April 1, 2015, Plaintiff testified to her background, criminal
charges, work history, and alleged disability.80 Concerning her daily activities, Plaintiff
claimed to have no friends or social life.81 She lives with her husband, who works fulltime, and her 27 year-old son who is unemployed and suffers from agoraphobia.82
Plaintiff cooks dinner for her son, but testified her husband is the one who takes care of
him.83 Plaintiff cares for one dog and twenty cats that she rescued.84 Her son helps her
75
Id. at 130.
Id.
77
D.I. 4-2 at 46.
78
D.I. 4-3 at 115.
79
Id.
80
See generally D.I. 4-2 at 58-91.
81
D.I. 4-2 at 88.
82
Id. at 64.
83
Id. at 64, 88.
84
Id. at 73.
76
10
feed the cats and her husband helps with cleaning the litter boxes.85 Although her
husband does most of the driving, she sometimes drives to the grocery store where she
uses a motorized cart when shopping.86
Plaintiff last worked in 2002 at A&S Enclosures as a supervisor in the
telemarketing room.87 Although she admitted that she stopped working because she
was sent to prison, she also testified that she would have quit anyway because of an
issue she had with her supervisor.88 Moreover, she claimed that since being
incarcerated she could not have performed her past work as a telemarketer as she does
not “want to talk to people” and does not “want to do it anymore” because of the stress
related to her felony conviction.89 Additionally, Plaintiff testified that, absent her
incarceration, she was unable to work between 2002-2005 because any physical
movement was difficult, due to a bulging cartilage between two vertebrae in her spine
as a result of multiple motor vehicle accidents.90 She denied returning to work light duty
in July 2010 despite the record from Delaware Valley Urology.91
The primary basis for her disability claim is the severity of her psychological
impairments.92 These problems arose in 2000 when she was originally incarcerated for
her conviction of corrupting the morals of a minor, which resulted in prison time of over
85
Id. at 74, 88.
Id. at 70-71.
87
Id. at 65.
88
Id.
89
Id. at 90-91.
90
Id. at 66.
91
Id. at 75.
92
Id. at 105.
86
11
three years and she is now a registered sex offender.93 She maintained her innocence
throughout and believes that the jury was prejudiced against her.94 Plaintiff claims she
was assaulted by her Parole Officer, by guards, and by inmates while in prison.95 She
saw a psychiatrist once a week while incarcerated.96
Plaintiff saw her therapist, Ms. Wechsler, from 2006-2010.97 She purportedly
maintains contact with Ms. Wechsler via phone calls four to six times a month, but no
longer attends therapy sessions.98 Plaintiff alleged she was hospitalized on November
1, 2012 for attempted suicide and subsequently ended up “living at Dover Behavioral for
a couple of months.”99
Plaintiff testified regarding her difficulty with focusing and concentration that has
persisted since 2002.100 She is unable to read or watch television without falling asleep,
which she attributes to a heart condition.101 However, the ALJ noted such testimony
was inconsistent with the good recall she demonstrated during the hearing. Plaintiff
remembered dates and names, was aware of recent news stories, and remained alert
throughout the hearing.102
Regarding her physical impairments, Plaintiff alleged that she uses a cane to
93
Id. at 62-69.
Id. at 69, 78.
95
Id. at 73, 79, 83.
96
Id. at 79.
97
Id. at 81.
98
Id. at 82.
99
Id. at 85.
100
Id. at 86.
101
Id. at 86-87.
102
Id.
94
12
walk and has done so for years, although the cane was not prescribed by a doctor.103
She was diagnosed with breast cancer in 1998 and had related surgery the same
year.104 She claims a recent biopsy was done on her left breast.105 Additionally, she
testified that her milk glands were removed, which causes problems with raising her
arms and weakness in her shoulder muscles.106 She underwent surgery for a torn
rotator cuff that allegedly resulted from the assaults by guards and inmates while in
prison.107 Her shoulder continues to cause significant pain, despite surgery.108 She also
experiences extreme pain in her back from arthritis and bulging spinal cartilage.109
Plaintiff has also been treated periodically for chronic bronchitis she experiences from
previous exposure to mold.110
2.
Vocational Expert Testimony
During her testimony, the vocational expert, Cody, was asked to consider
multiple questions involving a hypothetical individual of Plaintiff’s age, education and
work history.111 First, she was asked to assume that the individual was limited to work
at the medium exertional level with the additional limitations of unskilled, reasoning level
one or two, only occasional interaction with coworkers and supervisors, and no
interaction with the general public.112 Although these limitations eliminate Plaintiff’s past
103
Id. at 70.
Id. at 82.
105
Id.
106
Id. at 83.
107
Id.
108
Id. at 84.
109
Id.
110
Id. at 95.
111
Id. at 92.
112
Id. at 93.
104
13
work as a telemarketer, the ALJ inquired whether other positions were available that the
hypothetical individual could perform.113 Cody testified that such jobs existed and
provided examples of positions, along with the estimated numbers of such positions
currently available in the national economy.114 Examples included a hand packager with
228,300 positions available in the national market, an order picker which has 111,300
positions available, and a clean up worker with 157,500 positions.115
The next hypothetical included the same limitations, with the additional limitation
of no exposed heights.116 Cody testified that the positions from the first hypothetical
would remain feasible with this additional limitation and there would be no reduction in
the number of available jobs.117 Additionally, none of these occupations would expose
an individual to more than occasional atmospheric irritants such as dust, fumes, odors,
and gases and would not effect the available positions.118
The ALJ then asked Cody to consider the same hypothetical individual, with all
limitations of the first two hypothetical questions, plus the additional limitations of
occasional overhead reaching, and light exertional level.119 Cody concluded that work
was available for the individual with these limitations.120
Cody was further requested to consider the same hypothetical individual, but with
severe psychological issues that would require a job involving no interaction with people
113
Id.
Id.
115
Id.14
116
Id.
117
Id. at 94.
118
Id. at 96.
119
Id. at 94.
120
Id.
114
14
80 percent of the time or more.121 Cody testified that there is not any competitive
employment available for such an individual.122 She confirmed, however, that only
occasional contact with coworkers or supervisors would not restrict any of the previously
listed jobs.123
Plaintiff’s attorney argued that an employee does not choose when to interact
with her supervisor.124 He asked Cody if a supervisor wanted to interact with an
employee when that employee did not due to emotional problems, whether this situation
would effectively preclude previous jobs.125 Cody advised that this limitation would
preclude any work.126
Plaintiff’s attorney then further questioned Cody in regard to the limitations from
Ms. Wechsler’s psychological evaluation of Plaintiff.127 Specifically:
[I]f we’re dealing with an individual who at least 15 percent of the time could not
perform activities within a schedule, maintain regular attendance and be punctual
within customary tolerances 15 percent of the work day . . . And if we were to
have the same degree of restriction, 15 percent or more where they could not
work in coordination with or in proximity to others without being distracted by
others would that interfere with that persons ability to do any of the jobs you
indicated?128
Cody testified that such restrictions would reduce productivity making work
preclusive.129 She specifically noted that these restrictions would interfere with the
121
Id. at 96.
Id. at 97.
123
Id.
124
Id. at 98.
125
Id.
126
Id.
127
Id. at 99.
128
Id.
129
Id.
122
15
individual’s ability to perform Plaintiff’s past work.130
C.
The ALJ’s Finding of Facts and Conclusions of Law
1.
Plaintiff meets the insured status requirements of the Social Security Act
through December 31, 2007.
2.
Plaintiff has not engaged in substantial gainful employment activity since
November 1, 2002, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.)
3.
Plaintiff has the following severe impairments: osteoarthritis, inflammatory
polyarthropathy, back pain, chronic pain syndrome, shoulder disorder,
bursitis, anxiety, posttraumatic stress disorder, and personality disorder
(20 CFR 404.1520(c) and 416.920(c))
4.
Plaintiff 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.
Plaintiff has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except she is limited to
unskilled work.
6.
Plaintiff is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).
7.
Plaintiff was born on August 30, 1956 and was 47 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset
date. Plaintiff subsequently changed age category to closely approaching
advanced age and advanced age (20 CFR 404.1563 and 416.963).
8.
Plaintiff has at least a high school education and is able to communicate in
English (20 CFR 404.1564 and 416.964).
9.
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that Plaintiff is “not disabled” whether or not Plaintiff has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).
130
Id.
16
10.
Considering Plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).
11.
Plaintiff has not been under a disability, as defined in the Social Security
Act, from November 1, 2002, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
Conclusively, “[b]ased on the application for a period of disability and disability
insurance benefits protectively filed on August 21, 2012, [Plaintiff] is not disabled under
sections 216(I) and 223(d) of the Social Security Act.” Furthermore, “[b]ased on the
application for supplemental security income protectively filed on August 21, 2012,
[Plaintiff] is not disabled under section 1614(a)(3)(A) of the Social Security Act.”
III.
STANDARD OF REVIEW
A.
Motion for Summary Judgment
Both parties moved for summary judgment. 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 non-moving party[,]’ but [refraining from] weighing
the evidence or making credibility determinations.”131 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.132
This standard does not change merely because there are cross-motions for
summary judgment.133 Cross-motions for summary judgment:
131
Reeves v. Sanderson Plumbing, Prods., Inc., 530 U.S. 133, 150 (2000).
Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005)(quoting Fed. R. Civ.
P. 56(c)).
133
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
132
17
are no more than a claim be each side that it alone is entitled to
summary judgment, and the making of such inherently contradictory
claims does not constitute and agreement that if one is rejected the
other necessarily justified or that the losing party waives judicial
consideration and determination whether genuine issues of material
fact exist.134
“The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party.”135
B.
Court’s Review of the ALJ’s Findings
Section 405(g) sets forth the standard of review of an ALJ’s decision. 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 contain substantial evidence to support the
decision. The Commissioner’s factual findings are upheld if supported by substantial
evidence.136 Substantial evidence means less than a preponderance of the evidence,
but more than a mere scintilla of evidence.137 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.”138
In determining whether substantial evidence supports the Commissioner’s
findings, the court may not undertake a de novo review of the decision nor may it re-
134
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).
136
42 U.S.C. §§ 405(g), 1383(c)(3); see also Monsour Medical Center v.
Hecklem, 806 F.2d 1185, 1190 (3d Cir. 1986).
137
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
138
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
135
18
weigh the evidence of record.139 The court’s review is limited to the evidence that was
actually presented to the ALJ.140 The Third Circuit has explained that a:
single piece of evidence will not satisfy the substantiality test if the
[Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence, particularly certain types of
evidence (e.g., evidence offered by treating physicians) or if it really
constitutes not evidence but mere conclusion.141
Thus, the inquiry is not whether the court would have made the same
determination, but rather, whether the Commissioner’s conclusion was reasonable.142
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 the decision is supported by substantial
evidence.143
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.”144 In Securities & Exchange Commission v. Chenery
Corp., the 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.”145 “If those
grounds are inadequate or improper, the court is powerless to affirm the administrative
139
Monsour, 806 F.2d at 1190.
Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001).
141
Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
142
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
143
Monsour, 806 F.2d at 1190-91.
144
Hansford v. Astrue, 805 F.Supp. 2d 140, 144-45 (W.D.Pa 2011).
145
Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947).
140
19
action by substituting what it considers to be a more adequate or proper basis.”146 The
Third Circuit has recognized the applicability of this finding in the Social Security
disability context.147 Accordingly, this court’s review is limited to the four corners of the
ALJ’s decision.148
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.149 In order to establish SSI eligibility, a
claimant 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.”150 Moreover, “the physical or
mental impairment or impairments must be of such severity that the claimant is not only
unable to do [her] previous work but cannot, considering [her] age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
significant numbers in the national economy.”151 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
146
Id.
Fargnoli v. Massanari, 247 F.3d 34, 44, n.7 (3d Cir. 2001).
148
Cefalu v. Barnhart, 387 F. Supp. 2d 486, 491 (W.D.Pa 2005).
149
See Sullivan v. Zebley, 493 U.S. 521, 524 (1990) (citing 42 U.S.C. § 1381
(1982 ed.)).
150
42 U.S.C. § 423(d)(1)(A).
151
42 U.S.C. § 423(d)(2)(A).
147
20
laboratory diagnostic techniques.152
1.
Five-Step Test
The Social Security Administration uses a five-step sequential claim evaluation
process to determine whether an individual is disabled.153
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.154
If the ALJ determines that a claimant is disabled at any step in the sequence, the
152
42 U.S.C. § 423(d)(3).
See 20 C.F.R. §416.920(a); see also Plummer v. Apfel, 186 F.3d 422 (3d Cir.
1999).
154
Plummer, 186 F.3d at 427.
153
21
analysis stops.155
2.
Weight Given to Treating Physicians
“A cardinal principle guiding disability eligibility determinations is that the ALJ
accord treating physicians’ reports great weight.”156 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 in the record.157
The ALJ must consider medical findings supporting the treating physician’s
opinion that the claimant is disabled.158 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.”159
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.160 Therefore, only the ALJ can make a disability
determination.
155
See 20 C.F.R § 404.1520(a)
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)
157
Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001).
158
Morales v. Apfel, 225 F.3d 310, 317 (citing Plummer v. Apfel, 186 F.3d 422,
429 (3d Cir. 1999)).
159
Plummer, 186 F.3d at 429.
160
See 20 C.F.R. § 416.927 (e)(1).
156
22
3.
Evaluation of Subjective Accounts of Pain161
Statements about the symptoms162 alone never establish the existence of any
impairment or disability. The Social Security Administration uses a two-step process to
evaluate existence and severity of symptoms.
4.
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 CFR Part 404, Subpart P, Appendix 1, because the
claimant is considered disabled per se.
5.
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. Therefore, he must determine the
161
162
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.
23
applicant’s credibility.163
At this step, the ALJ must consider the entire record, including medical signs,
laboratory findings, the claimant’s statements about symptoms, any other information
provided by treating or examining physicians, psychiatrists 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.164
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 applicant’s 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
163
Credibility is the extent to which the statements can be believed and accepted
as true.
164
See 20 C.F.R. § 404.1529.
24
(vii) Other factors concerning functional limitations and restrictions due to pain or
other symptoms.165
6.
Factors in Evaluating Credibility166
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
165
166
See 20 C.F.R. § 404.1529
See SSR 96-7p.
25
physicians and psychologists regarding the existence and severity of impairments and
symptoms, and opinions of non-examining physicians and psychologist are also part of
the analysis. Such opinions are not given controlling weight. However, the ALJ,
although not bound by such findings, may not ignore them and must explain the weight
afforded those opinions in his decision.
Credibility is one element in determining disability. The ALJ must apply his
finding on credibility in step two of the five-step disability determination process, and
may use it at each subsequent step.
The decision must clearly explain, that is, provide sufficiently specific reasons
based on the record, to the claimant and any subsequent reviewers, regarding 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.167 A claimant’s testimony is
accorded substantial credibility when she has a long work history, if it is unlikely that,
absent pain, she would have ended employment.168
7.
Medical Expert Testimony
The onset date of disability is determined from the medical records and reports
167
168
See 20 C.F.R. § 404.1529(a)(3)
See Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984) citing Taybron v.
Harris, 667 F.2d 412, 415 n.6 (3d Cir. 1981). In Podedworny, the claimant
worked for thirty-two years as a crane operator for one company. He had a
ninth grade education and left his employment after the company physicians
determined that his symptoms of dizziness and blurred vision prevented him
from safely performing his job.
26
and other similar evidence, which requires the ALJ to apply informed judgment.169 At
the hearing, the ALJ should call on the services of a medical advisor when onset must
be inferred.170
IV.
DISCUSSION
A.
Parties’ Contentions
Plaintiff maintains that the ALJ committed legal error in his determination of her
residual functional capacity (“RFC”) by failing to account for all of the functional
limitations imposed by her impairments.171 The ALJ found that Plaintiff suffers from
severe mental impairments and that she has moderate difficulties in concentration,
persistence, or pace.172 However, Plaintiff argues, the ALJ then erred by placing no
limitation on her ability to perform mental work activities.173 Although the ALJ did find
Plaintiff was limited to unskilled work, Plaintiff argues this is a vocational factor, and not
a mental limitation.174 Moreover, Plaintiff asserts that the ALJ’s determination that she
could do medium work is unsupported, and even contradicted, by all medical opinions in
the record regarding her physical impairments.175 Plaintiff argues that the ALJ’s RFC
assessment of unskilled, medium work lacked the necessary support of medical opinion
evidence, therefore making his decision legally defective.176
169
See SSR 83-20.
Id.
171
D.I. 7 at 1615.
172
D.I. 4-2 at 38-40.
173
Id. at 1615-16.
174
D.I. 7 at 1618.
175
Id. at 1616.
176
Id. at 1618.
170
27
Plaintiff further argues that in the presence of non-exertional limitations, the ALJ’s
reliance on the Medical-Vocational rules as a framework to find her not disabled is
expressly prohibited by the Agency’s regulations and Third Circuit precedent.177 Even
assuming that the ALJ rejected all non-exertional limitations, Plaintiff contends the ALJ
still erred by failing to properly explain this rejection, as is required by Circuit law.178
Alternatively, Defendant argues that substantial evidence supports the ALJ’s
decision.179 Defendant asserts that the ALJ’s assessment of Plaintiff’s RFC for medium
work, his decision not to include additional limitations, and his use of the MedicalVocational Rules as a framework, are all sufficiently supported by the evidence
presented.180
Defendant contends that a limitation of unskilled work can adequately account for
moderate limitations in concentration, persistence, or pace.181 Additionally, Defendant
argues that under the Social Security Administration’s (“SSA”) current regulations, the
ALJ is solely responsible for making the administrative finding regarding a claimant’s
RFC, based on the record evidence.182 Thus, Plaintiff’s claim that the ALJ erred by
failing to rely on medical opinion evidence in his RFC assessment is erroneous.183
177
Id. at 1621.
Id. at 1622.
179
D.I. 9 at 1634.
180
Id.
181
Id. at 1640.
182
Id. at 1644-45.
183
Id.
178
28
B.
Analysis - Appropriateness of the ALJ’s Assessment
The issue determined by the ALJ was whether Plaintiff is disabled under sections
216(I), 223(d), and 1614(a)(3)(A). The present issue for the court is whether the ALJ
properly applied the legal standards in making the determination: specifically, whether
“substantial evidence” supports the ALJ’s decision.184 If the substantial evidence
standard cannot be found, then this court may reverse the Commissioner’s final
determination that Plaintiff is not disabled under the Acts.185
Plaintiff’s overarching contentions are the following: (1) The ALJ erred by failing
to account in his RFC for all functional limitations stemming from her impairments, and
(2) the ALJ improperly relied on the Agency’s Medical-Vocational Rules. Therefore, this
court’s decision is based upon whether the ALJ’s analysis of the disability determination
was reasoned in a manner meeting the required standards.186
1.
The ALJ’s RFC Finding
Plaintiff alleges the ALJ’s RFC is not supported by substantial evidence. An RFC
establishes the most an individual can do in a work setting despite impairments and
limitations.187 In making this finding, the ALJ must consider all of the claimant’s
impairments, including those that are not severe. Although the ALJ may weigh the
credibility of the evidence, he must give some indication of the evidence which he
rejects and his reason(s) for discounting such evidence.188 Notwithstanding the fact that
184
See supra part III (B).
Id.
186
See supra part III (C).
187
20 C.F.R. § 404.1545
188
See Plummer, 186 F.3d at 429.
185
29
all evidence in the record must be considered, the ALJ has the exclusive responsibility
for determining an individual’s RFC.189
In the instant matter, the ALJ determined Plaintiff had the residual functional
capacity to perform medium work, with a limitation of unskilled work.190 The SSA
defines work as “medium” when it “involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds.”191 Moreover, the
SSA defines “unskilled work” as “work which needs little or no judgment to do simple
duties that can be learned on the job in a short period of time.”
This court finds that the ALJ properly applied the correct standards under the
Agency regulations, and substantial evidence supports the ALJ’s decision. In
determining Plaintiff’s RFC, the ALJ considered all of her symptoms and the extent to
which the symptoms could be considered consistent with the record evidence.
Additionally, he considered all opinion evidence.192 The ALJ properly considered the
entire record and sufficiently explained in his decision the weight afforded to each
source.
2.
Weight Accorded to Medical Opinion Evidence
Consistent with the regulations, the ALJ considered the record as a whole in
assessing Plaintiff’s RFC. Therefore, because the ALJ’s decision is supported by
substantial evidence, there was no error when determining Plaintiff’s RFC by excluding
189
20 C.F.R. § 404.1527(d)(2)
D.I. 4-2 at 41.
191
20 C.F.R. § 416.967(c)
192
D.I. 4-2 at 41.
190
30
certain limitations based on her alleged impairments. The ALJ found that Plaintiff’s
medically determinable impairments could reasonably be expected to cause the alleged
symptoms; however, he concluded that Plaintiff’s statements regarding the intensity,
persistence and limiting effects of the symptoms were not entirely credible.193 The ALJ
proceeded to list all of Plaintiff’s alleged symptoms and explained his reasoning for
rejecting limitations based on said symptoms by referencing specific medical evidence
in the record, or the lack thereof, as discussed below.
In support of his rejection of Plaintiff’s musculoskeletal complaints, the ALJ noted
her lack of ongoing treatment, normal x-rays, and the statement by the nurse
practitioner who evaluated Plaintiff and believed that she was malingering.194
Additionally, the ALJ concluded there was no support for Plaintiff’s testimony regarding
weakness in her shoulder and arm, because contrary to her testimony and statements
to multiple physicians, the record does not support that she underwent a mastectomy or
removal of her milk glands.195 Moreover, following the surgery on her rotator cuff,
Plaintiff had full strength in the shoulder and right upper extremity and was advised to
continue activities with no restrictions by September 2014, only three months after the
procedure.196
Although Plaintiff saw a rheumatologist in 2013 for purported disabling back and
joint pain, an examination found no joint swelling, normal motor function, and no
193
D.I. 4-2 at 42.
Id.
195
Id.
196
Id.
194
31
effusion, tenderness or crepitus in her knees.197 Plaintiff has never pursued consistent
treatment for her alleged impairments. She has not returned to her rheumatologist
since 2014, nor has she sought an evaluation with an orthopedist or surgeon for her
back.198
Although Plaintiff was examined by a pulmonologist for shortness of breath and
coughing, her pulmonary function test and stress test were normal, her chest x-ray was
negative, and her symptoms improved with Flonase and were attributed to allergies.199
While a sleep study revealed Plaintiff had mild obstructive sleep apnea, the ALJ noted
there was no support in the record from her pulmonologist or a cardiologist for Plaintiff’s
testimony that she falls asleep from a “heart condition.”200
Additionally, regarding Plaintiff’s mental impairments, the ALJ noted there was
minimal treatment in the record to support the intensity of symptoms she alleged.
Plaintiff was treated with Prozac and Vistaril for anxiety and depression while
incarcerated, but few symptoms or mental status findings are documented in the prison
records.201 Moreover, the ALJ commented on the nature of Plaintiff’s therapist Ms.
Wechsler’s session notes, which were unusually emotional and sympathetic to Plainiff’s
history and claims of innocence.202 The record shows that Plaintiff was only treated by
Ms. Wechsler from 2010 until 2012.203 As a result, the ALJ’s conclusion that the
197
Id. at 42-43.
Id. at 45.
199
Id. at 43.
200
Id.
201
Id.
202
Id.
203
Id.
198
32
absence of any documented symptoms, mental status findings, or any indication of how
Plaintiff’s mental impairments were being addressed is supported.
The ALJ concluded there was nothing in the record to support Ms. Wechsler’s
opinion about Plaintiff’s limitations in performing certain work activities from her March
2015 questionnaire.204 The ALJ reasoned that there was “no objective mental status
abnormalities documented to justify the severe limitations indicated.”205 Furthermore,
Plaintiff stopped working long before her treatment with Ms. Wechsler, and there is no
indication in the session notes that Plaintiff discussed her work history or difficulties on
the job.
The ALJ found that the record does not support Plaintiff’s testimony regarding
her problems with sleep apnea, concentration, or any alleged “disabling mental
impairments.”206 The absence of mental status abnormalities or neurological deficits in
the record supports the ALJ’s findings.
Further, Plaintiff was scheduled for consultative examinations (“CEs”) with a
psychiatrist and a psychologist after her hearing to rectify the lack of evidence of her
mental impairments.207 Plaintiff, however, failed to attend the scheduled CEs. Thus, the
ALJ concluded that the record does not support any additional limitations other than her
RFC for unskilled work.208
Lastly, the ALJ explained the weight he accorded the March 2015 RFC
204
See supra Part II (A)(2)
D.I. 4-2 at 44.
206
Id.
207
Id.
208
Id.
205
33
questionnaire by Dr. Manifold and the State Agency physical assessment.209 The ALJ
agreed with Dr. Manifold’s opinion about Plaintiff’s ability to sit, stand, and walk without
limitation; however, the ALJ found a limitation to six hours of combined standing and
walking would accommodate Plaintiff’s complaints.210 The ALJ found that the objective
medical evidence did not support Dr. Manifold’s opinion regarding lifting, carrying and
the manipulative and postural limitations.211 He noted that when Plaintiff last saw Dr.
Manifold, three months before the questionnaire was completed, she exhibited normal
strength and had no activity restrictions.212 Concerning the State Agency assessment,
the ALJ gave little weight to its determination that Plaintiff had the capacity for light
work, but agreed to the finding of her capacity for standing and walking six hours a day
with non-exertional limitations.213
In sum, the ALJ thoroughly explained the weight he accorded to the medical
opinion evidence and his reasons. Physician reports are afforded controlling weight
when the source’s opinion on an individual’s impairment is “well supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial record evidence.214 Here, the ALJ properly established that the
opinions he gave little weight to in his determination were unsupported by the objective
medical evidence. Therefore, the ALJ applied the correct legal standards and did not
err in his determination that Plaintiff retains the RFC to perform unskilled, medium work.
209
Id. at 46.
Id.
211
See supra Part II (A)(1).
212
D.I. 4-2 at 46.
213
See supra Part II (A)(3).
214
See supra Part III (C)(2)
210
34
3.
Factors in Evaluating Credibility
As required by the regulations, the ALJ’s decision clearly explained, and provided
sufficiently specific reasons based on the record, the weight afforded to Plaintiff’s
statements.215 The ALJ reasonably gave Plaintiff’s testimony little weight, as many of
her statements were contradicted by the objective record evidence. The record, as a
whole, supported his finding that Plaintiff was not credible.
The ALJ recognized that being a convicted sex offender, who had been
incarcerated, placed on supervised parole, and recently under house arrest, likely
interferes with her ability to find work and provides motivation for her to exaggerate her
symptoms.216 Plaintiff’s credibility was further damaged when she lied to agents of the
court regarding why she missed a Consultative Examination.217 The ALJ also
determined that she was untruthful as further evidenced by her unsupported allegations
of an assault by her parole officer, blaming a minor child for false accusations, and her
statement to her therapist that she was being “abused by the very departments that
claim to protect[.]”218
Regarding her alleged functional limitations, the ALJ noted several
inconsistencies in Plaintiff’s testimony and the record evidence. He found that her
claims of problems with concentration, persistence, and pace were contradicted by the
evidence showing she engages in daily bicycle riding, drives a car, and cares for 20
215
See supra Part III (C)(6)
D.I. 4-2 at 45.
217
Id.
218
Id. at 45.
216
35
stray cats.219 In addition, her ability to cook dinner and grocery shop evidence intact
social, mental and physical functioning.220
4.
The ALJ’s Reliance on the Medical-Vocational Grids
Plaintiff argues that the ALJ erred by relying on the Agency’s Medical-Vocational
Grids (“the grids”) in the presence of non-exertional limitations, contrary to the Agency’s
regulations and Third Circuit precedent.221 Alternatively, Plaintiff further contends that
even if the ALJ rejected all non-exertional limitations, he failed to sufficiently explain this
rejection, and therefore, his decision would still be defective.222 This court finds that the
ALJ’s use of the grids as a framework for determining that Plaintiff is not disabled is
supported by substantial evidence and did not violate the controlling regulations.
Plaintiff’s second argument is without merit because, as explained previously, the ALJ
sufficiently explained his basis for discounting any additional limitations.223
Plaintiff relies on the Third Circuit decision in Sykes v. Apfel224 for her argument
that the ALJ’s exclusive reliance on the grids was error.225 This argument is misplaced,
as the facts of that case are distinguishable from the instant matter. A careful reading of
Sykes indicates that in the present matter, the ALJ’s reliance on the grids was in fact
proper.
In Sykes, the court determined that the ALJ improperly relied on the grids to find
219
Id.
Id.
221
D.I. 7 at 1621.
222
Id.
223
See supra Part IV (B)(2)
224
Sykes v. Apfel,228 F.3d 259 (3d Cir. 2000)
225
D.I. 7 at 1621.
220
36
the plaintiff disabled.226 The ALJ made an independent determination, without relying
on VE testimony or other evidence, that Sykes’s non-exertional limitation of lack of
binocular vision did not significantly diminish his RFC.227 The court explained that “the
only facts established in the grids are of unskilled jobs in the national economy for
claimants with exertional impairments who fit the criteria of the rule at the various
functional levels.”228 Because Sykes had an additional non-exertional limitation, the
ALJ’s reliance on the grids was in error.229
In contrast, here, the ALJ found that Plaintiff was capable of performing medium
work, and limited to unskilled work. Thus, the ALJ reasonably concluded that Plaintiff
was not disabled by using the grids to find there are a significant number of unskilled
jobs that exist in the national economy which Plaintiff could perform based on her
vocational profile. Although, the ALJ did not reference the VE testimony in his decision,
this testimony and her opinions support the ALJ’s determination.230 Therefore,
substantial evidence supports the ALJ’s use of the grids as a framework for finding
Plaintiff not disabled.
V.
CONCLUSION
For the reasons contained herein, I recommend that:
1. Plaintiff’s motion for summary judgment (D.I. 6) be denied.
226
Sykes, 228 F.3d at 261.
Id. at 274.
228
Id. at 269 (emphasis added).
229
Id. at 261.
230
See supra Part II (B)(2)
227
37
2. Defendant’s motion for summary judgment (D.I. 8) 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, limited to ten 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
Date: June 21, 2018
/s/ Mary Pat Thynge
Chief U. S. Magistrate Judge
38
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