Allen-Young v. Berryhill

Filing 18

MEMORANDUM OPINION. Signed by Judge Sherry R. Fallon on 3/15/2019. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
VALERIE ALLEN-YOUNG,
Plaintiff,
v.

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

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Civil Action No. 17-1248-SRF

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff Valerie Allen-Young ("Allen-Young") filed this action on August 31, 2017

against the defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security
Administration (the "Commissioner"). Allen-Young seeks judicial review pursuant to 42 U.S.C.

§ 405(g) of the Commissioner's July 3, 2017 final decision, denying Allen-Young's claim for
disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act"), 42
U.S.C. §§ 401-434 and§§ 1381-1383[. The court has jurisdiction over the matter pursuant to 42
U.S.C. § 405(g).
Currently before the court are cross-motions for summary judgment filed by AllenYoung and the Commissioner. 1 (D.I. 13; D.I. 15) Allen-Young asks the court for an immediate
award of benefits or, alternatively, to remand her case for further administrative proceedings.
(D.1. 14 at 2, 19) The Commissioner requests the court affirm the ALJ's decision. (D.I. 16 at 1-2)

1

Allen-Young's opening brief in support of her motion for summary judgment is D.I. 14, the
Commissioner's combined opening brief in support of her motion for summary judgment and
answering brief is D.I. 16, and Allen-Young's combined answering and reply brief is D.I. 17.

For the reasons set forth below, Allen-Young's motion for summary judgment is denied (D.I.
13), and the Commissioner's cross-motion for summary judgment is granted (D.I. 15). 2

II.

BACKGROUND
A.

Procedural History

Allen-Young filed a DIB application on October 31, 2014, 3 claiming a disability onset
date of September 25, 2014. (Tr. at 198-199) Her claim was initially denied on December 29,
2014, and denied again after reconsideration on July 27, 2015. (Id. at 116-120, 123-128) Allenyoung then filed a request for a hearing, which occurred on September 21, 2016. (Id. at 49-87)
Administrative Law Judge, Jennifer M. Lash (the "ALJ''), issued an unfavorable decision,
finding that Allen-Young was not disabled under the Act on February 6, 2017. (Id. at 25-41)
The Appeals Council subsequently denied Allen-Young's request for review on July 3, 2017,
rendering the ALJ' s decision the final decision of the Commissioner. (Id. at 1-6)
On August 31, 2017, Allen-Young brought a civil action in this court challenging the
ALJ's decision. (D.I. 2) On April 16, 2018, Allen-Young filed a motion for summary judgment,
and on June 14, 2018, the Commissioner filed a cross-motion for summary judgment. (D.I. 13;
D.I. 15)

B.

Medical History

Allen-Young was born on September 12, 1961, and was 53 years old on her alleged onset
date. (Tr. at 51, 55) Allen-Young graduated high school and completed approximately one year
of college. (Id. at 56, 220) Allen-Young worked in customer service at Laurel Linen Services in

2

The parties consented to the jurisdiction of a magistrate judge to conduct all proceedings in this
matter through final judgment and the case was assigned to the undersigned judicial officer on
October 18, 2017. (D.I. 7)
3
The ALJ noted that Allen-Young filed her DIB application on October 30, 2014, but the
application is dated October 31, 2014. ( Compare Tr. at 25 with Tr. at 198)
2

2001 and as a customer service representative for Quest Diagnostics from 2001 to 2004. (Id at
59-60, 241) Allen-Young had a temporary position at Kelly Services in 2005, followed by
another temporary position at Empyrean Management Group. (Id at 61) She worked as a
church clerk at Alpha Worship Center from June 2006 to October 2006. (Id at 61-62, 241) She
returned to work at Empyrean Management Group from October 2006 to January 2007 and then
worked at Aerotek from November 2007 to January 2008. (Id at 62,241) Finally, she returned
to Alpha Worship Center, where she worked part-time as a church clerk from February 2008 to
September 2014. (Id at 62, 241) At the hearing, Allen-Young testified that she had trouble
gaining employment since 2014, when she was fired from Alpha Worship Center for being
excessively absent and late from work. (Id at 53, 290) The ALJ determined that Allen-Young
meets the insured status requirements of the Social Security Act through December 31, 2019.
(Id at 27)

The ALJ concluded that Allen-Young has the following severe impairments: a right knee
disorder, disorders of the back, retinopathy with cataracts, congestive heart failure, kidney
disease with hyperkalemia, anemia, diabetes mellitus with neuropathy, and morbid obesity. (Id
at 27) The court notes that Allen-Young's medical history is not in dispute.
1.

Right Knee Disorder

On February 28, 2014, Allen-Young saw Dr. Fletcher, complaining of pains in her left
knee after an incident at work where she fell and twisted her left knee when attempting to stand
back up. (Id at 510-511) Dr. Fletcher prescribed an elastic knee brace for her left knee and xrays of the left knee. (Id at 511) On July 9, 2014, Allen-Young visited First State Orthopaedics
for bilateral knee pain, and Dr. Johnson observed that Allen-Young experienced pain below the
patella in her right knee. (Id at 404) Furthermore, this pain was reportedly worse when

3

bending, moving, sitting, walking, or standing. (Id.) Allen-Young was diagnosed with arthritis
in her knees. (Id. at 446)
Knee pain persisted into 2015 and, in April 2015, Dr. Kalman noted that Allen-Young
had osteoarthritis in her right knee. (Id. at 717) He suggested physical therapy, weight loss, and
viscosupplementation to alleviate the persistent knee pain. (Id.) Allen-Young started taking
Synvisc injections on May 1, 2015. (Id. at 716) By May 8, 2015, she reported more comfortable
walking and received her second injection. (Id. at 715) However, by May 13, 2015, she reported
knee pain and a "giving way sensation" when walking and climbing stairs. (Id. at 720) She
received her third injection on May 22, 2015. (Id. at 714) Dr. Kalman stressed the importance
of weight loss and physical therapy for continued improvement. (Id.) He also noted that as long
as the injections provide relief, she may continue to receive them every six months. (Id.)

2.

Disorder of the Back

In March 2014, Allen-Young visited Nephrology Associates following a hospitalization
with a urinary tract infection and pyelonephritis. (Id. at 417) Dr. Torregiani noted that AllenYoung had improved, but had "a bit of back pain." (Id.) In February 2016, Allen-Young had an
x-ray of her back, which indicated minimal degenerative change at L4-L5 but prominent
aortoiliac arteriosclerotic calcifications. (Id. at 15 5)

3.

Retinopathy with Cataracts

On January 2, 2015, Allen-Young visited Eye Physicians & Surgeons, PA, and denied
flashers or floaters, but had an instance of a red spot in her vision, which reportedly went away
after a few minutes. (Id. at 787) Dr. Glazer-Hockstein recommended that Allen-Young proceed

4

with anti-VEGF injections4 to prevent vision loss. (Id. at 789) On February 13, 2015, AllenYoung reported more instances ofred floaters, and Dr. Glazer-Hockstein noted that she would
proceed with Eylea injections. (Id. at 783, 785) By February 24, 2015, she reported stable
vision without flashes or floaters. (Id. at 780) This improved vision continued throughout 2015,
and Dr. Glazer-Hockstein repeatedly stressed the importance of controlling blood sugar, blood
pressure, and cholesterol. (Id. at 776-778, 773-775, 770-772, 766-769, 762-765) On May 19,
2015, after routinely applying anti-VEGF injections, Allen-Young was able to stop injections
due to an improved edema. (Id. at 768) On September 15, 2015, Dr. Glazer-Hockstein noted
that Allen-Young's diabetic macular edema had resolved, but still suffered with moderate to
severe nonproliferative diabetic retinopathy. (Id. at 764-765) On December 15, 2015, AllenYoung reported slightly blurred vision, but no significant change in her vision. (Id. at 760)
On April 26, 2016, Allen-Young reported seeing a blood spot in her right eye. (Id. at
748) She denied flashers, floaters, or eye trauma. (Id.) Dr. Glazer-Hockstein recommended
intravitreal Avastin to prevent vision loss and again reminded Allen-Young that control of her
blood sugar is the most effective way to prevent diabetes changes within the eye. (Id. at 756)
By August 2016, Dr. Glazer-Hockstein noted Allen-Young's retinopathy was moderately severe
but stable. (Id. at 750) Furthermore, Dr. Glazer-Hockstein recommended PRP laser treatment to
prevent vision loss. (Id. at 752)

4

Intravitreal anti-vascular endothelial growth factor injections (or "Anti-VEGF injections") are
injected into the vitreous of the eye, and are oftentimes used in treatment for diabetic retinopathy
and retinopathy of prematurity. Diabetic Retinopathy, MAYO CLINIC,
https ://www.mayoclinic.org/diseases-conditions/diabetic-retinopathyI diagnosis-treatment/drc20371617; Anti-VEGF Therapy for Age-Related Macular Degeneration Yield Improved Acuity
for Eyes with VMID, MA YO CLINIC, https://www.mayoclinic.org/medicalprofessionals/ophthalmology/news/anti-vegf-therapy-for-age-related-macular-degenerationyields-improved-acuity-for-eyes-with-vmid/MAC-20429414.
5

4.

Congestive Heart Failure

On October 16, 2013, Allen-Young visited Cardiology Physicians P.A. for a follow-up on
a recent hospitalization on September 11, 2013, for left upper chest pain. (Id. at 309, 396) Dr.
Leidig stated that Allen-Young had been compliant with medication, had an unremarkable stress
test, no further discomfort, and no shortness of breath. (Id. at 309) He recommended that AllenYoung lose weight and monitor her blood pressure. (Id. at 470) At a follow-up appointment on
April 14, 2014, Dr. Leidig found that her carotid arteries were stable and that there was no
evidence ofischemia or congestive heart failure. (Id. at 312-316)
On December 31, 2014, Allen-Young visited Cardiology Physicians and indicated
dyspnea and chest discomfort with exertion, particularly when climbing stairs. (Id. at 673) She
experienced left-sided chest pain that radiated down her left arm and chest pressure that lasted a
few minutes. (Id.) Her exam showed normal jugular pulses and she was diagnosed with
unstable angina. (Id. at 673-675) Jacqueline Warner ("Ms. Warner"), a physician assistant,
referred Allen-Young for cardiac catheterization with additional intravenous fluid required postcatheterization. (Id. at 675) Ms. Warner noted that the recorded blood pressure suggested "less
than ideal control." (Id.) Ms. Warner stressed the importance of compliance with the prescribed
medical therapy, losing weight, and restricting sodium intake. (Id.)
On January 8, 2015, Allen-Young visited the emergency room for chest pain. (Id. at 925)
On February 2, 2015, Allen-Young visited the emergency room again for worsening shortness of
breath. (Id. at 592-599) Allen-Young was diagnosed with chronic heart failure, bilateral edema,
and morbid obesity. (Id.) An x-ray performed on February 2, 2015 documented central vascular
congestion with mild background pulmonary edema. (Id. at 598) On February 17, 2015, Dr.
Leidig reported that Allen-Young denied having any chest pains and that there was no evidence

6

of heart attack. (Id. at 670-671) On April 1, 2015, Allen-Young denied orthopnea, chest pain,
palpitations, near syncope or syncope, but felt fatigued. (Id. at 667-669) Her blood pressure was
very close to her goal pressure. (Id. at 669)
On April 19, 2016, Allen-Young denied chest pains and Dr. Leidig found no evidence of
congestive heart failure or active ischemia. (Id. at 910) However, on April 30, 2016, AllenYoung reported a nagging, burning chest pain and was hospitalized. (Id. at 876) Dr. Subbiah
noted this was an atypical chest pain. (Id. at 884) Allen-Young continued to report chest pains
during and after her hospitalization. (Id. at 1253, 1278) At a follow-up appointment on May 11,
2016, Dr. Witt assessed Allen-Young for congestive heart failure. (Id. at 1305-1306)

5.

Kidney Disease with Hyperkalemia

On February 18, 2014, Dr. Fletcher noted that Allen-Young had stage III chronic kidney
disease with minimal proteinuria and hypothesized that this was not related to her diabetes. (Id.
at 552) On February 19, 2014, Dr. Cicone confirmed Dr. Fletcher's assessment and also did not
believe that Allen-Young's kidney disease was due to her diabetes. (Id. at 389) A CAT scan of
her abdomen revealed right asymmetric perirenal and proximal periureteral stranding. (Id.) On
February 24, 2014, Allen-Young visited Dr. Fletcher with complaints of abdominal pain. (Id. at
513-514) On March 18, 2014, Dr. Frick recorded Allen-Young's report of a lump in her
stomach, and noted abdominal pain in the right upper quadrant. (Id. at 503-504) Dr. Leidig also
noted Allen-Young's intermittent abdominal pain, and recommended an abdominal exploration.
(Id. at 312) On April 24, 2014, Dr. Cardenas performed a surgical excision of the mass in her

stomach. (Id. at 1243-1244) On October 28, 2014, Dr. Fletcher noted mild to moderate
epigastric tenderness in her abdomen. (Id. at 582)

7

On February 16, 2015, Allen-Young visited Tamara J. Newell, CGNP ("Ms. Newell") for
a follow-up on her chronic kidney disease. (Id. at 612) Ms. Newell noted that Allen-Young's
renal function was stable to slowly progressive. (Id. at 614) Allen-Young was informed of the
importance of sugar control to prevent the progression of her renal disease and was encouraged
to implement a low sodium diet. (Id.) On March 12, 2015, Allen-Young's creatinine levels were
reportedly stable. (Id. at 627) On March 30, 2015, Allen-Young visited Ms. Newell, who noted
that her renal function as stable to slowly progressive. (Id. at 618) They had a lengthy
discussion regarding "slowing the progression of kidney disease, focusing on blood pressure,
blood sugar, weight loss and proteinuric control." (Id.) On May 15, 2015, Allen-Young visited
Dr. Torregiani and recounted that she was losing weight with her husband and had a period of
worsened edema that had since improved. (Id. at 711) Her renal function was stable to slowly
progressive and her creatinine level was close to her baseline. (Id. at 712)
On August 26, 2015, Dr. Witt analyzed Allen-Young's renal sonography and noted left
simple renal cysts, but otherwise was within normal limits. (Id. at 737) On October 26, 2015,
Allen-Young continued to report abdominal pain but denied shortness of breath. (Id. at 724) On
April 4, 2016, Dr. Goral opined that Allen-Young was not a suitable kidney transplant candidate
because her BMI was over 40. (Id. at 742) They discussed her BMI in detail and the preference
of transplantation over dialysis. (Id. at 743) On April 5, 2016, Dr. Witt noted that Allen-Young
needed to lose sixty pounds before being placed on the kidney transplant list. (Id. at 1308)
6.

Anemia

On September 11, 2013, Dr. Kharidi noted that Allen-Young had normocrytic anemia
"likely secondary to her chronic kidney disease and chronic disease in general." (Id. at 399) By
November 21, 2014, Dr. Torregiani noted that her anemia was controlled. (Id. at 430) On

8

March 30, 2015, Ms. Newell observed that Allen-Young had a history of iron deficiency and
recommended checking anemia indices at her next visit. (Id. at 618) On May 15, 2015, Dr.
Torregiani noted that while Allen-Young had a history of iron deficiency, her hemoglobin was
slowly decreasing and her iron stores were pending. (Id at 712)
7.

Morbid Obesity

At the time of application, Allen-Young was 5 feet, 8 inches tall and weighed 315
pounds. (Id at 33) She therefore had a body mass index ("BMI") of 47.9. 5 (Id) Allen-Young,
despite losing weight since 2016, has a BMI over 30. (Id)
In February 2014, Dr. Gnanaguruparan advised Allen-Young to be compliant with a strict
diabetic diet and reduce her weight. (Id at 391) In connection with her obesity and her other
medical conditions, several of her doctors urged Allen-Young to control her blood sugar, blood
pressure, and cholesterol, and lose weight between 2014 and 2016. (See e.g., id at 518, 1231,
451,789,614) In June 2015, Allen-Young started discussing bariatric surgery with Dr. Witt.
(Id. at 730) At her August 26, 2015 appointment with Dr. Witt, Allen-Young stated she was

working with a surgeon for possible gastric sleeve procedure. (Id. at 727)
On April 5, 2016, Allen-Young visited Dr. Witt, who noted that she was in the process of
obtaining approvals for a bariatric procedure. (Id. at 1308) On April 19, 2016, she reiterated her
desire to proceed with the gastric sleeve surgery. (Id. at 908) Dr. Leidig opined that she could
proceed at low risk for gastric sleeve surgery, but noted that it had not yet been scheduled. (Id. at
910)

5

According to the Clinical Guidelines issued by the National Institutes of Health, an individual
is considered obese if their BMI is above 30. (Tr. at 33)
9

C.

Hearing Before ALJ Lash
1.

Allen-Young's Testimony

Allen-Young testified at the hearing on September 21, 2016 that she was 55 years old and
married. (Id at 5 5) She testified that she was 5' 7" and 298 pounds. (Id) Allen-Young has not
earned an income since September 2014. (Id at 56) Allen-Young had health insurance through
her husband's employer, but he lost his job in July 2016. (Id) She testified that finding
affordable health insurance was difficult. (Id at 57-58) Allen-Young lives with her husband and
adult niece in a ranch-style home. (Id at 58)
Allen-Young stated that she is unable to sit for long periods of time, cannot walk, sit, or
bend much, has limited concentration, and is always tired. (Id at 62) She spends the majority of
her day at home sleeping, reportedly napping about twice daily for two or three hours. (Id at 6567) She watches TV and goes out occasionally, including driving to the store or church a couple
times per week. (Id at 56, 65-66) Allen-Young testified that she does some cooking and
cleaning, but her husband does more of the housework now that she has become increasingly
fatigued. (Id at 66) Allen-Young can get dressed and shower by herself, but it "takes ... longer
time than what it used to." (Id)
Allen-Young testified that her legs are swollen, heavy, and achy. (Id at 68) She gets bad
charley horses and will feel sensations of numbness and tingling if she sits for long periods of
time. (Id) She experiences pain in her back and knees and an achiness in her arms occasionally.
(Id)

Allen-Young also testified that she experiences floaters and blurriness in her eyes, which
is improved when she wears glasses or reading glasses. (Id at 68-69) However, looking at a

10

computer screen for more than five to ten minutes can also make her vision blurry, rendering her
unable to see. (Id)
2.

Vocational expert testimony before the ALJ

The ALJ posed the following hypothetical to the vocational expert ("The VE"):
I'd like you to assume a hypothetical individual of the same age, education, and
work experience as the Claimant. Assume this hypothetical individual can
perform sedentary exertional work; and can occasionally balance, stoop, crouch,
and climb ramps and stairs; never kneel, crawl, or climb ladders, ropes, or
scaffolds; and must avoid frequent exposure to extreme cold, extreme heat,
humidity, vibration, and hazards, including moving machinery and unprotected
heights. Would such an individual be able to perform the Claimant's past work
either as performed or as generally performed?
(Id at 75) The VE testified that such an individual could perform the sedentary position of

customer service as actually performed. (Id at 75-78) However, customer service at the light
exertional level was not possible. (Id at 75) A church clerk position was considered sedentary
as generally performed, but at the light exertional level as actually performed. (Id at 75-77)
Therefore, the hypothetical individual could only perform that job as generally performed, not as
actually performed. (Id at 75-76)
On cross-examination, Allen-Young asked the VE if a person who would miss two or
more days per month on a consistent basis would be able to sustain competitive employment.
(Id at 82) The VE responded that such an individual would not be able to sustain competitive

employment. (Id) The VE also testified that an individual who needed to lie down for one hour
in addition to standard breaks would not be able to sustain competitive employment. (Id. at 83)
Furthermore, the VE testified that a person who lacked sufficient attention and concentration to
perform semiskilled and skilled work but could perform unskilled work would not be able to
perform Allen-Young's past relevant work because such work was skilled or semiskilled. (Id. at

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84) Finally, the VE testified that she had seen these jobs performed and computers are used in
these jobs approximately eighty percent of the time. (Id. at 85)
D.

The ALJ's findings

Based on the factual evidence in the record and the testimony of Allen-Young and the
VE, the ALJ determined that Allen-Young was not disabled under the Act for the relevant time
period from September 25, 2014 through February 6, 2017, the date of the ALJ's decision. (Id.
at 25-41) The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2019.
2. The claimant has not engaged in substantial gainful activity since September
25, 2014, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: a right knee disorder,
disorders of the back, retinopathy with cataracts, congestive heart failure,
kidney disease with hyperkalemia, anemia, diabetes mellitus with neuropathy,
and morbid obesity (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and
404.1526).
5. After careful consideration of the entire record, [the undersigned] find[s] that
the claimant has the residual functional capacity to perform sedentary
exertional work as defined in 20 CFR 404.1567(a) except can occasionally
balance, stoop, crouch and climb ramps and stairs. The claimant can never
kneel, crawl or climb ladders, ropes or scaffolds. The claimant must avoid
frequent exposure to extreme cold, extreme heat, humidity, vibration and
hazards, including moving machinery and unprotected heights.
6. The claimant is capable of performing past relevant work as a customer
service clerk and an office clerk. This work does not require the performance
of work-related activities precluded by the claimant's residual functional
capacity. The claimant can perform her PRW as a customer service clerk as
she performed it at Quest and an office clerk as normally performed in the
national general economy (20 CFR 404.1565).

12

7. The claimant has not been under a disability, as defined in the Social Security
Act, from September 25, 2014 through the date of this decision (20 CFR
404.1520(£)).
(Id. at 27-40)

III.

STANDARD OF REVIEW
Findings of fact made by the ALJ, as adopted by the Appeals Council, are conclusive if

they are supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3) (2015).
Judicial review of the ALJ's decision is limited to determining whether "substantial evidence"
supports the decision. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986).
In making this determination, a reviewing court may not undertake a de novo review of the
ALJ's decision and may not re-weigh the evidence ofrecord. See id. In other words, even if the
reviewing court would have decided the case differently, the court must affirm the ALJ's
decision if it is supported by substantial evidence. See id. at 1190-91.
Substantial evidence is defined as less than a preponderance of the evidence, but more
than a mere scintilla of evidence. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (quoting
Jesurum v. Secy of the United States Dep 't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir.
1995)). As the United States Supreme Court has explained, 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." Pierce v. Underwood, 487 U.S. 552, 565
(1988). The Supreme Court also has embraced this standard as the appropriate standard for
determining the availability of summary judgment pursuant to Federal Rule of Civil Procedure
56. "The inquiry performed is the threshold inquiry of determining whether there is the need for
a trial-whether, in other words, there are any genuine factual issues that properly can be

13

resolved only by a finder of fact because they may reasonably be resolved in favor of either
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,250 (1986).
This standard mirrors the standard for a directed verdict under Federal Rule of Civil
Procedure 50( a), which is that the trial judge must direct a verdict if, under the governing law,
there can be but one reasonable conclusion as to the verdict. If "reasonable minds could differ as
to the import of the evidence, however, a verdict should not be directed." See id at 250-51
(internal citations omitted). Thus, in the context of judicial review under § 405(g):
[a] single piece of evidence will not satisfy the substantiality test if [the ALJ]
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., that offered by treating physicians)-or if it really
constitutes not evidence but mere conclusion.
Brewster v. Heckler, 786 F.2d 581,584 (3d Cir. 1986) (quoting Kent v. Schweiker, 710 F.2d 110,

114 (3d Cir. 1983)). Where, for example, the countervailing evidence consists primarily of a
claimant's subjective complaints of disabling pain, the ALJ "must consider the subjective pain
and specify his reasons for rejecting these claims and support his conclusion with medical
evidence in the record." Matullo v. Bowen, 826 F.2d 240,245 (3d Cir. 1990).
"Despite the deference due to administrative decisions in disability benefit cases,
'appellate courts retain a responsibility to scrutinize the entire record and to reverse or remand if
the [Commissioner]' s decision is not supported by substantial evidence."' Morales v. Apfel, 225
F.3d 310, 317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)). "A
district court, after reviewing the decision of the [Commissioner] may, under 42 U.S.C. § 405(g)
affirm, modify, or reverse the [Commissioner]'s decision with or without remand to the
[Commissioner] for rehearing." Podedworny v. Harris, 745 F.2d 210,221 (3d Cir. 1984).

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IV.

DISCUSSION
A.

Disability Determination Process

The core issue in this case is whether Allen-Young was disabled within the meaning of
the Act at any time from September 25, 2014, the alleged onset date, through the date of the
ALJ's decision, February 6, 2017. (Tr. at 40) Title II of the Act affords insurance benefits "to
persons who have contributed to the program and who suffer from a physical or mental
disability." Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (citing 42 U.S.C. § 423(a)(l)(D)
(2015)). A disability is the "inability 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 not less than 12
months." 42 U.S.C. § 423(d)(l)(A). A claimant is only disabled if his impairments are so severe
that he is unable to do his previous work or engage in any other kind of substantial gainful work
existing in the national economy. Id.§ 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22
(2003). To qualify for disability insurance benefits, a claimant must establish that he was
disabled prior to the date he was last insured. 20 C.F .R. § 404.131 (2016); Matullo v. Bowen,
826 F.2d 240,244 (3d Cir. 1990).
The Commissioner must perform a five-step analysis to determine whether a person is
disabled. See 20 C.F.R. §§ 404.1520, 416.920; Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir.
1999). If the Commissioner makes a finding of disability or non-disability at any point in the
sequential process, the Commissioner will not review the claim further. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4)(i). At step one, the Commissioner determines whether the
claimant is engaged in any substantial gainful activity. See id. §§ 404.1520(a)(4)(i),
416.920(a)(4)(i) (mandating finding of non-disability when claimant is engaged in substantial

15

gainful activity). If the claimant is not engaged in substantial gainful activity, step two requires
the Commissioner to determine whether the claimant is suffering from a severe impairment or a
severe combination of impairments. See id.§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (mandating
finding of non-disability when claimant's impairments are not severe). If the claimant's
impairments are severe, at step three, the Commissioner compares the claimant's impairments to
a list of impairments that are presumed severe enough to preclude any gainful work. See id.§§
404.1520(a)(4)(iii), 416.920(a)(4)(iii); Plummer, 186 F.3d at 428. When a claimant's
impairment or its equivalent matches a listed impairment, the claimant is presumed disabled. See
20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If a claimant's impairment, either singly or
in combination, fails to meet or medically equal any listing, the analysis continues to step four
and five. See id. §§ 404.1520(e), 416.920(e).
At step four, the ALJ considers whether the claimant retains the residual functional
capacity (the "RFC") to perform his past relevant work. See id.§§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv) (stating claimant is not disabled if able to return to past relevant work);

Plummer, 186 F.3d at 428. A claimant's RFC is "that which an individual is still able to do
despite the limitations caused by his or her impairment(s)." Fargnoli v. Halter, 247 F.3d 34, 40
(3d Cir. 2001). The claimant bears the burden of demonstrating the inability to return to past
relevant work. See Plummer, 186 F.3d at 428.
If the claimant is unable to return to past relevant work, at step five, the Commissioner

must demonstrate that the claimant's impairments do not preclude him from adjusting to any
other available work. See 20 C.F.R. §§ 404.1520(g), 416.920(g) (mandating finding of nondisability when claimant can adjust to other work); Plummer, 186 F.3d at 428. In other words,
the Commissioner must prove that "there are other jobs existing in significant numbers in the

16

national economy which the claimant can perform, consistent with his medical impairments, age,
education, past work experience, and [RFC]." Plummer, 186 F.3d at 428. The ALJ must
analyze the cumulative effect of all the claimant's impairments in determining whether he or she
is capable of performing work and is not disabled. See id. The ALJ often seeks the VE's
assistance in making this finding. See id.

B.

Whether the ALJ's Decision is Supported by Substantial Evidence

On February 6, 2017, the ALJ found that Allen-Young was not disabled from the alleged
onset date of September 24, 2014 through the date of the ALJ's decision. (Tr. at 40) The ALJ
concluded that, despite Allen-Young's severe impairments (right knee disorder, disorders of the
back, retinopathy with cataracts, congestive heart failure, kidney disease with hyperkalemia,
anemia, diabetes mellitus with neuropathy, and morbid obesity), she had the RFC to perform past
relevant work as a customer service clerk and an office clerk as normally performed in the
national economy. (Id. at 40) Allen-Young asserts four main arguments on appeal: (1) the ALJ
did not conduct the proper analyses when considering her noncompliance with prescribed
treatment, (2) the ALJ improperly commented on her obesity instead of considering her other
impairments, (3) the ALJ failed to consider her impairments in combination, and (4) new
evidence warrants remand. (See D.I. 14)
1.

The Commissioner reasonably considered plaintiff's noncompliance

At steps two and three, the Commissioner is required to determine whether the claimant
is suffering from a severe impairment or a severe combination of impairments that are severe
enough to preclude any gainful work, in which the claimant is presumed disabled. See 20 C.F .R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

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a.

The ALJ did not make a finding based on SSR 82-59

Allen-Young first argues that the ALJ failed to follow the guidelines under Social
Security Ruling ("SSR") 82-59. (D.I. 14 at 11) Under SSR 82-59, an individual has failed to
follow prescribed treatment only when: (1) the evidence establishes that the individual's
impairment precludes engaging in substantial gainful activity, (2) impairment has lasted or is
expected to last twelve continuous months from onset of disability or is expected to result in
death, (3) treatment which is clearly expected to restore capacity to engage in substantial gainful
activity has been prescribed by a treating source, and (4) evidence of record discloses that there
has been a refusal to follow prescribed treatment. See SSR 82-59, 1982 WL 31384.
Here, the ALJ considered Allen-Young's noncompliance as a factor in assessing her
credibility and not to determine whether such non-compliance was justified under a SSR 82-59
analysis. The ALJ stated, "[a]fter careful consideration of the evidence, I find that ... the
claimant's statements concerning the intensity, persistence, and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence in the
record." (Tr. at 35) The ALJ then carefully analyzed Allen-Young's statements regarding her
alleged impairments and considered her noncompliance in this context. (Id. at 37-39) Like the
plaintiff in Vega v. Comm 'r ofSoc. Sec., 358 F. App'x 372 (3d Cir. 2009), Allen-Young argues
that this consideration was improper under SSR 82-59. However, "it was not [Allen-Young's]
noncompliance with her treatment that was the basis for the denial of benefits; rather, it was her
residual functional capacity to return to sedentary work." Vega, 358 F. App'x at 375.
Consideration of noncompliance within the context of credibility determinations is proper. See
id. ("Viewed in the context of the ALJ's findings as a whole, his reference to [plaintiffs]

noncompliance shows that he treated it as a factor in analyzing the credibility of [her] testimony.

18

Because an ALJ may consider a claimant less credible if the individual fails to follow the
prescribed treatment plan without good reason, this was not improper.") (internal citation
omitted); see also Coleman v. Berryhill, C.A. No. 17-2-RGA-MPT, 2017 WL 4772747, at *10
(D. Del. Oct. 23, 2017) ("An applicant's claims, however, may be less credible ... if the medical
reports or records show non-compliance with prescribed treatment."); Showell v. Colvin, 2016
WL 3599569, at *7 (E.D. Pa. July 1, 2016). SSR 82-59 is inapplicable in this case and the ALJ
properly did not make any finding based on this regulation. Therefore, the Commissioner's
motion for summary judgment with respect to the ALJ's consideration of Allen-Young's
noncompliance should be granted.
b.

The ALJ did not improperly fail to conduct an analysis under
SSR 02-lp

Allen-Young argues that the ALJ failed to consider SSR 02-1 p with respect to her failure
to follow prescribed treatment. (D.I. 14 at 12) Similar to SSR 82-59, SSR 02-lp includes
exceptions for an individual's noncompliance with prescribed treatment after they have been
found disabled. See SSR 02-1 p, 2002 WL 34686281. SSR 02-1 p is distinguishable from SSR
82-59 in that it is only applicable for individuals who are disabled because of obesity - either
alone or in combination with other impairments. Id "Before failure to follow prescribed
treatment for obesity can become an issue in a case, we must first find that the individual is
disabled because of obesity or a combination of obesity and another impairment(s)." Id Allenyoung highlights the regulation's understanding that treatment for obesity is "often ineffective."

Id
At the time of application, Allen-Young weighed 315 pounds with a BMI of 4 7.9. (Tr. at
33) Since then, Allen-Young has lost weight but still has a BMI exceeding 30. (Id) The ALJ
found that Allen-Young's physical exams showed a normal gait despite her obesity. (Id) Allen-

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Young concedes that the threshold requirement under SSR 02-1 p, the ALJ' s conclusion that
Allen-Young is disabled because of her obesity, alone or in combination with another
impairment, is not met. (D.I. 14 at 12-13) However, Allen-Young still argues that the ALJ
improperly failed to follow SSR 02-lp. (Id.) Allen-Young's argument is misplaced because the
ALJ did not conclude that she was disabled because of obesity or a combination of obesity and
another impairment. Even if the court assumed that the threshold requirement was met, the ALJ
did not discuss if Allen-Young was noncompliant with treatment for her obesity, but rather noted
her noncompliance with prescribed treatment for her diabetes. (Tr. at 36-37) Additionally, the
ALJ did not rely on Allen-Young's noncompliance with prescribed treatment for denying
benefits based on disability. (Id.) Instead, the ALJ considered the noncompliance in the context
of Allen-Young's credibility of reported symptoms. (Id.) See also Showell v. Colvin, 2016 WL
3599569 at *7. Therefore, the Commissioner's motion for summary judgment with respect to
the ALJ' s consideration of Allen-Young's noncompliance should be granted.

c.

The ALJ adequately considered plaintiff's financial
hardships

Allen-Young argues that the ALJ failed to consider her lack of insurance and financial
resources in three incidents of noncompliance. (D.I. 14 at 13) Neither Allen-Young nor the
Commissioner cite any legal authority to support their arguments regarding this issue. SSR 967p6 states that "the adjudicator must not draw any inferences about an individual's symptoms and

6 SSR 16-3p rescinded and superseded SSR 96-7p. (See SSR 16-3p, 2017 WL 5180304)
SSR 16-3p is similar to SSR 96-7p in that it states:
We will not find an individual's symptoms inconsistent with the
evidence in the record on [the basis of failing to follow prescribed
treatment] without considering possible reasons he or she may not
comply with treatment or seek treatment consistent with the degree
of his or her complaints. We may need to contact the individual
20

their functional effects from a failure to seek or pursue regular medical treatment without first
considering any explanations that the individual may provide, or other information in the case
record, that may explain infrequent or irregular medical visits or failure to seek medical
treatment." SSR 96-7p, 1996 WL 374186, at *7.
First, Allen-Young claims she was hospitalized after she was unable to take her insulin
due to insurance problems. (D.I. 14 at 13) The ALJ did not characterize this instance as
noncompliance. (Tr. at 37) However, the ALJ cited other general statements regarding Allenyoung' s history of routinely refraining from eating and failing to take her insulin to conclude
that Allen-Young was noncompliant. (Tr. at 39) Second, Allen-Young did not purchase
compression stockings because she could not afford them, but claimed she was compliant by
making an effort to elevate her legs more. (D.I. 14 at 13). The ALJ determined that AllenYoung's decision not to purchase the stockings was noncompliant. (Tr. at 38) Even though the
ALJ recognized this noncompliance, her assessment of Allen-Young's credibility as to the
intensity, persistence, and limiting effects of her symptoms was not significantly influenced by
this factor. See Casey v. Colvin, 2014 WL 4258716, at *11 & n.14 (M.D. Pa. Aug. 27, 2014)
("This notation about the lack of treatment is part of the ALJ' s total analysis of the record and it
is clear that her credibility determination was not based on this single factor."). The ALJ
considered several additional factors, which included: "[t]he objective testing, clinical
findings/physical exams, and the claimant's adequate activities of daily living." (Tr. at 39)

regarding the lack of treatment or, at an administrative proceeding,
ask why he or she has not complied with or sought treatment in a
manner consistent with his or her complaints.

(See id.). SSR 16-3p further notes that an ALJ can consider the individual's ability to perform
work-related activities, in addition to the individual's inability to afford treatment or access free
or low-cost medical services. (See id.).
21

Third, Dr. Witt noted that Allen-Young could not afford a test relating to plaque in her aorta.
(D.I. 14 at 13; Tr. at 1308) However, the ALJ does not mention this instance in her opinion and,
as a result, did not categorize this as noncompliance.
The ALJ recognized financial hardships or insurance problems that would result in
noncompliance, but such references to noncompliance did not significantly influence the ALJ's
credibility determination. See Casey, 2014 WL 4258716, at *11 & n.14. Furthermore, the ALJ's
credibility determination was supported by substantial evidence and, thus, the court affords this
finding "great deference." Schoengarth v. Barnhart, 416 F. Supp. 2d 260,268 (D. Del. 2006).
Therefore, the Commissioner's motion for summary judgment with respect to the ALJ' s
consideration of Allen-Young's noncompliance should be granted.

2.

The ALJ's comment regarding the relationship between plaintiff's
obesity and claims of fatigue is not harmful error

The Third Circuit has held that an ALJ must consider all medical findings supporting a
treating physician's opinion that a claimant is disabled. Morales v. Apfel, 225 F .3d 310, 319 (3d
Cir. 2000). If an ALJ chooses to reject the treating physician's assessment, they may do so only
on the "basis of contradictory medical evidence" not because of his or her "own credibility
judgments, speculation or lay opinion." Id. at 317 (citing Plummer v. Apfel, 186 F.3d 422,429
(3d Cir. 1990); Frankenfield v. Bowen, 861 F .2d 405, 408 (3d Cir. 1988); Kent v. Schweiker, 710
F.2d 110, 115 (3d Cir. 1983)). Further, "an ALJ may consider his own observations of the
claimant and this Court cannot second-guess the ALJ's credibility judgments," but that does not
"override the medical opinion of a treating physician that is supported by the record." Id. at 318.
The ALJ evaluated Allen-Young's treatment and recounted Allen-Young's ineligibility
for a kidney transplant to help her fatigue, due to her BMI of 48. (Tr. at 38) The ALJ continued:

"I must acknowledge the obvious, the claimant is very obese (even after losing 40 pounds since

22

2015) which could cause fatigue." (Id.) Allen-Young claims that this statement illustrates that
"the ALJ largely failed to consider [her] other impairments, which could reasonably produce the
symptom of fatigue, in evaluating the severity of that condition." (D.I. 14 at 15) Specifically,
Allen-Young contends that the ALJ' s comment indicates her failure to consider her other
medical conditions that contribute to her fatigue and were documented in various medical reports
from November 2014 through April 2016. (D.I. 14 at 14-15)
The statement at issue here differs from the ALJ's discussion in Morales, where the ALJ
rejected an examining physician's opinion based on his personal observations and lay opinion.

Morales, 225 F .3d at 317. Here, the ALJ did not discredit a physician's opinion and replace it
with her own lay opinion. The ALJ's statement reflects her observation of Allen-Young. The
ALJ followed this statement with a thorough recounting of how Allen-Young's other medical
conditions cause fatigue, and analyzes each of the medical reports that Allen-Young contends are
not considered. (Tr. at 34, 39) For example, although Allen-Young offers her 2015 function
report as an example of fatigue that she claims the ALJ did not consider, the ALJ did
acknowledge this function report in her decision. (Tr. at 34; D.I. 14 at 15; D.I. 16 at 15)
Allen-Young alternatively argues that if her fatigue is due to her obesity, obesity is
considered a medically determinable impairment and therefore the ALJ should have considered
fatigue in assessing her substantial gainful activity. (D.I. 14 at 15) The ALJ considered AllenYoung's physical examination, activities of daily living, and treatment in corning to her
conclusion that Allen-Young failed to evince disabling fatigue. (Tr. at 33-40) Specifically, the
ALJ cited Allen-Young's sporadic complaints of fatigue in combination with her physical
examinations, which showed normal gait, station, strength, and tone. (Tr. at 36-39) The ALJ
also found that Allen-Young's daily activities (preparing meals, cleaning, doing laundry, driving

23

a car, shopping, and going to church regularly) were inconsistent with her allegations of
disabling fatigue. (Tr. at 34-35) Furthermore, the ALJ considered Allen-Young's treatment
quite routine and conservative, which was inconsistent with her allegations of disabling fatigue.
(Tr. at 28-33, 39)
Therefore, the ALJ's comment regarding Allen-Young's obesity does not present a
harmful error and the Commissioner's motion for summary judgment should be granted.
3.

The Commissioner adequately considered plaintiff's impairments in
combination

Allen-Young states that she suffers from many serious impairments that, in combination,
prevent her from sustaining work on a regular and continuing basis. (D.I. 14 at 15-17) The ALJ
found that although Allen-Young's medically determinable impairments could reasonably be
expected to cause the alleged symptoms, her "statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely consistent with the medical evidence and
other evidence in the record." (Tr. at 35) The ALJ evaluated each impairment individually, and
collectively, which demonstrates that the ALJ considered the impairments in combination. (Tr.
at 28-39)
Allen-Young argues that her testimony that she takes two naps of approximately two to
four hours each daily paired with the VE's testimony that the need for such extensive breaks
would be work-preclusive does not support the ALJ's finding. (D.1. 14 at 16-17) Therefore,
Allen-Young concludes that the ALJ' s conclusion is not supported by substantial evidence. (Id.)
However, as previously discussed, the ALJ evaluated the medical record collectively and her
conclusion regarding Allen-Young's fatigue is supported by substantial evidence. For example,
the ALJ noted that while there have been some sporadic complaints of fatigue in the record, the
medical evidence does not support the severity of the alleged fatigue. (Tr. at 39)

24

Plaintiff argues in the alternative that Medical-Vocational Rule 201.14 entitles her to an
award of benefits because she was 53 years old on the alleged onset date and the ALJ found that
she was limited to sedentary work. (D.I. 14 at 17) However, Allen-Young's argument "diverts
attention from the relevant issue at step five of the analysis, that is, whether 'there is a significant
number of jobs (in one or more occupations) having requirements which [the claimant is] able to
meet with [her] physical or mental abilities and vocational qualifications.'" Henry v. Barnhart,
127 F. App'x 605,607 (3d Cir. 2005) (quoting 20 C.F.R. § 404.1566(b)). Moreover, the VE's
testimony remains unchallenged and the ALJ' s decision was supported by substantial evidence.

Id. (See also D.I. 14) Therefore, the Commissioner's motion for summary judgment with
respect to the ALJ' s consideration of Allen-Young's impairments in combination should be
granted.
4.

Claimant does not qualify for a Sentence 6 remand

A reviewing court may only disturb the ALJ' s decision and remand based on evidence
that was not before the ALJ if the plaintiff establishes the evidence is "new and material and if
there was good cause why it was not previously presented to the ALJ." Matthews v. Apfel, 239
F.3d 589, 593-94 (3d Cir. 2001). To be considered "new," the evidence "must not be merely
cumulative of what is already in the record." Shuter v. Astrue, 537 F. Supp. 2d 752, 757 (E.D.
Pa. 2008)(citing Szubak v. Sec'y of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984)).
The Third Circuit has sometimes considered "'corroborating' evidence to constitute new
evidence, while at other times holding that 'clarifying' evidence does not." Id. (internal citations
omitted) (citing Szubak, 745 F.2d at 834; Fouch, 80 F. App'x 181, 187 (3d Cir. 2003)).
Evidence is considered material if there is a reasonable possibility that the new evidence would
change the outcome. Newhouse v. Heckler, 753 F.2d 283,287 (3d Cir. 1985) (citing Szubak, 745

25

F.2d at 833). The burden to prove that evidence is new and material is more than a minimal
showing but less than a preponderance test, which requires a "reasonable possibility." Id
Finally, good cause must exist for the claimant's failure to timely present the evidence, otherwise
it may "open the door for claimants to withhold evidence from the ALJ in order to preserve a
reason for remand." Matthews, 239 F.3d at 595. The Third Circuit has held that a claimant who
provides new information after his or her hearing, without any explanation as to why it was not
acquired before the hearing is sufficient to deny good cause shown. Scatorchia v. Comm 'r of
Soc. Sec., 137 F. App'x 468,472 (3d Cir. 2005).

Allen-Young claims that two new documents warrant remand: (1) a statement by Dr.
Witt dated March 1, 2017 and (2) an endocrinology progress note by Dr. Ripu Hundal, dated
February 23, 2017. (D.I. 14 at 17-18) Dr. Witt "regularly treated the claimant during the period
at issue" but the medical source statement "was not available at the time of the hearing." (D.I.
14 at 18) The note by Dr. Hundal is a new patient evaluation and Allen-Young provides no
explanation as to why she did not visit Dr. Hundal prior to her hearing before the ALJ. (Tr. at 9;
D.I. 14 at 18) At issue here is the element of good cause.
Allen-Young does not attempt to explain the good cause requirement for a remand but
instead argues that there is no strict deadline for submitting records that came in after the
hearing. (D.I. 14 at 17-19; D.I. 17 at 7) During the hearing before the ALJ, the ALJ indicated
that the court would update its records and invited Allen-Young to provide updates as well. (Tr.
at 86) However, both of the proffered documents postdate the ALJ's decision and Allen-Young
has failed to provide explanations as to why Dr. Witt's report was not available earlier or why
she did not visit Dr. Hundal earlier. (D.I. 14 at 17-19) See Chandler v, Comm 'r ofSoc. Sec., 667
F.3d 356,360 (3d Cir. 2011) (finding remand inappropriate where claimant failed to establish

26

why evaluations were not obtained before the ALJ's consideration); Martinez v. Comm 'r Soc.
Sec., 663 F. App'x 191, 194 (3d Cir. 2016) (concluding remand was inappropriate because
claimant did not satisfy good cause when he failed to explain why he did not provide documents
that postdate the ALJ's decision earlier, after the ALJ invited claimant to provide any additional
documents after the hearing). Therefore, the Commissioner's motion for summary judgment
should be granted.

V.

CONCLUSION
For the foregoing reasons, Allen-Young's motion for summary judgment is denied (D.I.

13), the Commissioner's cross-motion for summary judgment is granted (D.I. 15). An Order
consistent with this Memorandum Opinion shall issue.

Dated: March 15, 2019

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