Malik v. Berryhill

Filing 21

MEMORANDUM AND ORDER re 11 MOTION for Summary Judgment filed by Nazira Malik, 18 Cross MOTION for Summary Judgment filed by Nancy A. Berryhill. Signed by Judge Mary Pat Thynge on 12/10/18. (cak)

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

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C. A. No. 18-248-MPT

MEMORANDUM
I.

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

On April 23, 2014, plaintiff filed a Title II application for Social Security Disability
Insurance Benefits (“DIB”).1 In her applications, plaintiff alleged she became disabled
on October 11, 2013, due to back pain, connect tissue disease, elbow pain,
fibromyalgia, joint pain, leg pain, neck pain, and wrist pain.2 The claims were initially
denied on July 24, 2014, and upon reconsideration on October 9, 2014.3 Following
these denials, plaintiff requested a hearing before an Administrative Law Judge (“ALJ”)
and the video hearing occurred on December 2, 2016.4 At the hearing, testimony was
provided by plaintiff and an impartial vocational expert, Wayne Berger.5 On January 31,

1

D.I. 12 at 1.
D.I. 8 at 185.
3
Id. at 89, 98.
4
Id. at 32.
5
Id.
2

2017, the ALJ, Howard Prinsloo, issued a written decision denying plaintiff’s claims.6
Plaintiff requested a review of the ALJ’s decision by the Social Security Appeals
Council, which was denied on December 20, 2017.7 On February 13, 2018, plaintiff
filed a timely appeal with the court.8 Presently before the court are the parties’ crossmotions for summary judgment.9 For the reasons that follow, the court will grant the
defendant’s motion.
II.

BACKGROUND
Plaintiff was born on December 24, 1953.10 She has an associate’s degree and

past relevant work as a court clerk and judicial case processor for twenty-seven years.11
Her job responsibilities included inputting cases into the computer, processing old
cases, and preparing subpoenas.12 During a workday, plaintiff spent approximately
seven hours sitting and three hours walking and standing.13 The majority of her time
involved writing, typing, handling small objects or reaching.14 Her alleged disability
dates from October 11, 2013.15 In October 2013, plaintiff previously or was being
treated for back pain, carpal tunnel syndrome, cervical radiculopathy, connective tissue
disease, fibromyalgia, and lateral epicondylitis.16 Since 2013, plaintiff was treated for
carpal tunnel syndrome, connective tissue disease, degenerative disc disease,

6

Id. at 8-24.
Id. at 24.
8
D.I. 2
9
D.I. 11; D.I. 18.
10
D.I. 8 at 277.
11
Id. at 186.
12
Id. at 187.
13
Id.
14
Id.
15
Id. at 185.
16
Id. at 277-303, 626-31, 632-34, 637-39, 650-56, 799, 801-04, 895-931.
7

degenerative joint disease, depression, fibromyalgia, lateral epicondylitis, and pelvic
muscle spasms.17 She lived in an apartment with her granddaughter.18 To qualify for
disability benefits, plaintiff must demonstrate she is disabled within the meaning of
§ § 216(I), 223(d), and 1614(a)(3)(A) of the Social Security Act (the “Act”).
A.

Evidence Presented

1.

Musculoskletal impairments
a.

Degenerative Disc Disease

In January 2014, Nancy Kim, M.D. began treating plaintiff for lower back, pelvic,
and lower extremity pain that was not resolved with prior physical therapy.19 An MRI
revealed progressive degenerative disc disease.20 Plaintiff underwent physical therapy
for a few months and continued to follow up with Dr. Kim through September 2016.21
Treatment included nerve root blocks, aquatic physical therapy, medical branch blocks,
radio-frequency ablations, epidural injections, and home exercises.22 Dr. Kim
recommended she resume normal activities and avoid bed rest for any time greater
than four days.23
Plaintiff returned to Dr. Kim in February 2015, for increased bilateral neck pain
with radiation into the right shoulder and lower back pain.24 An MRI of plaintiff’s spine

17

Id. at 277, 280, 590, 656, 666, 673-74, 823-27, 964-66, 969-72, 1003-06,
1008-19, 1020-29, 1125-29, 1085.
18
Id. at 198.
19
Id. at 696-99.
20
Id. at 673-74.
21
Id. at 407-36, 484-568, 698-99.
22
Id. at 753-54, 848-49, 858, 1063-72.
23
Id. at 736.
24
Id. at 1077.
3

revealed prior total disc replacement surgery and disc protrusions.25 Dr. Kim prescribed
oxycodone, aquatic therapy, home exercises, and epidural injections.26 Dr. Kim and
other practitioners at the Christiana Spine Center advised she should resume normal
activities and avoid bed rest for greater than four days.27 An MRI of plaintiff’s shoulder
in 2016 for supraspinatus tendinosis revealed an underlying tear.28
b.

Connective Tissue Disease and Fibromyalgia

From at least December 17, 2012 to March 26, 2014, Susan L. Cowdery, M.D. a
rheumatologist, treated plaintiff for connective tissue disease and fibromyalgia with
methotrexate and Lyrica.29 Dr. Cowdery found that plaintiff was intact neurologically,
had stable ranges of motion and degenerative joint disease, no objective signs of
synovitis or inflamation, and no substantial tender points.30 Dr. Cowdery recommended
symptomatic treatment because plaintiff’s fibromyalgia had reached maximum medical
improvement with surgery, medications, and physical therapy.31 In October 2013, Dr.
Cowdery completed a Family and Medical Leave Act form for plaintiff wherein she listed
diagnoses of fibromyalgia, spondylosis, and connective tissue disease.32 She indicated
plaintiff would need short term to long term disability for fibromyalgia flare-ups, but
found plaintiff would not be prevented from performing job functions as a result of her

25

Id. at 1085.
Id. at 984-85, 1109-10, 1079, 1080, 1082.
27
Id. at 1084, 1100, 1104, 1114.
28
Id. at 1116.
29
Id. at 590, 656.
30
Id. at 616, 620, 867, 871.
31
Id. at 867-68.
32
Id. at 993-95.
26

4

conditions.33
In September 2015, plaintiff began treatment with Maryah Mansoor, M.B.B.S., a
rheumatologist, for connective tissue disease and fibromyalgia.34 Dr. Mansoor
prescribed plaquenil instead of methotrexate, physical therapy, and aquatic therapy.35
Dr. Mansoor’s assessment in December 2015 revealed tenderness in all joints and
puffiness in her second metacarpophalangeal (“MCP”) joints bilaterally.36 As a result,
Dr. Mansoor added advil, oxycodone, zoloft, pool therapy, and increased plaintiff’s
Lyrica dosage.37 In March 2016, Dr. Mansoor recommended plaintiff to see a
psychologist for depression.38 During a visit in July 2016, Dr. Mansoor noted that
plaintiff’s psychiatrist switched the Lyrica to Gabapentin.39
c.

Urogynecology

Dr. Babak Vakili, M.D., treated Plaintiff for urogynecologic issues and pelvic
pain.40 Dr. Vakili identified that pelvic muscle spasms could be treated with back
therapy, injections, and medicine, and if plaintiff’s symptoms were caused by interstitial
cystitis, or painful bladder syndrome, treatment would include Uribel, vaginal estrogen,
and diet modification.41 Dr. Vakili’s medical statement of plaintiff’s ability to perform
work-related activities dated November 4, 2016 noted no restrictions and that plaintiff
33

Id.
Id. at 964-66, 969-72, 1008-19.
35
Id.
36
Id. at 1011, 1013-15, 1018-19.
37
Id. at 1011.
38
Id. at 1014.
39
Id. at 1016.
40
Id. at 665-67.
41
Id. at 666-67. Uribal was not taken due to the side effect of dry mouth. Id. at
34

785.
5

could work a full eight hour workday.42
d.

Carpal Tunnel Syndrome and Lateral Epicondylitis

Randeep S. Kahlon, M.D., an orthopedic surgeon, treated plaintiff for elbow and
wrist pain from January 2013 to at least October 2016.43 His assessment in May 2013
revealed carpal tunnel syndrome in the right and left hands, for which Dr. Kahlon
administered a lidocaine injection, in each hand.44 The injections eased pain for several
months, but the symptoms returned.45 Dr. Kahlon and plaintiff decided that surgery was
the best option for the left carpal tunnel; surgery was subsequently performed in
February 2014.46 After the surgery, plaintiff was off work for eleven days and restricted
to lifting no more than ten pounds occasionally.47 In March 2014, Dr. Kahlon noted
plaintiff was off work on short term disability due to her fibromyalgia.48
Plaintiff saw Dr. Kahlon in July 2014, for bilateral hand and wrist pain.49 In
October 2014, plaintiff returned to Dr. Kahlon because of an x-ray finding in her right
hand which indicated a tear.50 Dr. Kahlon observed that there were no fractures,
dislocations, or other bone abnormalities and administered another lidocaine injection.51
Plaintiff advised that the injection relieved pain for two months, and then returned.52

42

Id. at 1130-31.
Id. at 277-339, 823-27, 1020-29, 1125-29.
44
Id. at 302.
45
Id. at 304.
46
Id. at 307.
47
Id. at 309.
48
Id. at 316.
49
Id. at 823.
50
Id. at 1021-23.
51
Id. at 1021.
52
Id.
43

6

Dr. Kahlon performed right elbow surgery in January 2015 for lateral
epicondylitis.53 Plaintiff followed up with Dr. Kahlon thereafter complaining of
tenderness.54 Dr. Kahlon prescribed Motrin and physical therapy, and restricted plaintiff
to only lifting two pounds.55 In April 2015, plaintiff underwent a pisotriquetral injection in
her right wrist for carpal tunnel symptoms.56 A year later in April 2016, she had another
pisotriquetral injection in her right wrist due to reoccurring pain.57
2.

Mental Health

Marsha Cornibe, a licensed professional counselor, treated plaintiff for
adjustment disorder with depressed mood from April 2016 to June 2016.58 Ms. Cornibe
found plaintiff’s affect appropriate and variable.59 They discussed how depression can
be secondary to medical conditions.60 During the assessment, plaintiff denied any
suicidal or homicidal thoughts.61 Ms. Cornibe also noted that plaintiff’s depression is
mainly problematic when she is irritable, but plaintiff functions adequately and does not
completely shut down.62 Ms. Cornibe concluded that plaintiff was doing well without
psychotropic medicine.63 Plaintiff learned breathing and meditation exercises to assist
in treating her adjustment disorder with depressed mood.64
53

Id. at 280.
Id. at 277-339.
55
Id. at 277-339, 823-27, 895-948, 1020-29, 1125-29.
56
Id. at 1024.
57
Id. at 1027.
58
Id. at 1002-1006.
59
Id. at 1004.
60
Id. at 1005.
61
Id. at 1004.
62
Id.
63
Id.
64
Id. at 1005.
54

7

3.

Primary Physicians

Dr. Nicolas Biasotto, D.O. was plaintiff’s primary care physician from 2009 to
2014 and treated her for various issues, such as, fibromyalgia and hand pain.65 A
residual functional capacity examination dated June 5, 2015 noted Dr. Biasotto’s
diagnosis of fibromyalgia and connective tissue disease.66 Dr. Biasotto concluded that
plaintiff could sit or stand for fifteen minutes each and would have to lie down and
elevate legs for thirty to sixty minutes in an eight hour work day.67 He estimated that
plaintiff could work for one hour a day and would be absent or unable to complete an
eight hour work day ten days a month.68 Although noting off and on depression, he
concluded emotional factors did not contribute to the severity of plaintiff’s symptoms or
functional capabilities.69
In 2015, Dr. Yezdani became plaintiff’s primary physician and treated her for
similar conditions including polyarthritis and fibromyalgia.70 A residual functional
capacity examination dated June 1, 2018 included Dr. Yezdani’s diagnosis of
fibromyalgia and connective tissue disease.71 Dr. Yezdani found that plaintiff could sit
or stand for fifteen minutes at a time and could remain at a workstation for a total thirty
minutes in an eight hour workday.72

65

Id. at 672, 675, 679-80, 683, 686, 815.
Id. at 963-64.
67
Id.
68
Id. at 962-63.
69
Id. at 963.
70
Id. at 1031-47.
71
Id. at 999.
72
Id.
66

8

4.

Consultative Examination

In July 2014, Dr. Irwin Lifrak, M.D. completed a physical consultative examination
with plaintiff.73 Plaintiff’s chief complaint was pain extending throughout the entire
vertebral column and into the upper and lower extremities.74 During the examination,
plaintiff stated that within a eight hour period she could sit and stand for three hours
each with customary breaks.75 She also felt that she could lift weights of no more than
two and a half pounds in each hand.76 During the physical examination, plaintiff was
able to perform gait and dexterity maneuvers, such as picking up coins and paperclips.77
Dr. Lifrak concluded that plaintiff could sit and stand for six hours each within a eight
hour work day with customary breaks and lift up to ten pounds in each hand.78
B.

Hearing Testimony

1.

Plaintiff’s Testimony

At the December 2, 2016 hearing, plaintiff testified about her background, work
history, and her alleged disability.79 She is single, has two children, and lives with her
seventeen year old granddaughter.80 She completed two years of college and received
an associate degree.81 Plaintiff stated she worked as a court clerk for the State of
Delaware, using a desk computer and telephone to mainly process paperwork.82 She
73

Id. at 816-22.
Id. at 818.
75
Id. at 819.
76
Id.
77
Id. at 820.
78
Id. at 821-22.
79
Id. at 34.
80
Id. at 37, 49.
81
Id. at 37-38.
82
Id. at 38.
74

9

estimated that she would lift case boxes weighing fifteen to twenty pounds.83 Plaintiff
described how she stopped working due to pain which prevented her from sitting for an
extended period of time without having to lay down and take a break.84 She further
stated that at work she could not take too many breaks and could not lay down.85
Plaintiff described how her symptoms restricted her ability to work, including
difficulty to complete work timely as she previously did.86 She could not type because
her fingers swell and her joints hurt with shooting pains.87 Her pain medicine caused
drowsiness.88 Although she enjoyed her job, it is very difficult completing tasks due to
pain.89 Combining sick and vacation days, she had approximately thirty days off from
her clerk job.90 Plaintiff identified that after her right elbow surgery in January 2013, she
had difficulty situating her hands properly to type and pain in her shoulder, neck, ear, as
well as severe earaches.91 She went on short term disability until it ran out in the end of
March 2014.92 Before going on short term disability, plaintiff’s doctor told her to stop
working due to her joint pain and arthritis.93
Plaintiff described undergoing wrist surgery with Dr. Kahlon after she stopped
working.94 She had reduced pain after she stopped working and typing, but had surgery
83

Id. at 38-39.
Id. at 39.
85
Id.
86
Id.
87
Id.
88
Id. at 48.
89
Id. at 46.
90
Id. at 47.
91
Id. at 41-42.
92
Id. at 53.
93
Id. at 53-54.
94
Id. at 43.
84

10

due to carpel tunnel syndrome.95 Plaintiff related that therapy did not help.96 She
testified receiving several injections from Drs. Kim and Kahlon which provided
temporary pain relief.97
Concerning her daily activities, plaintiff testified her granddaughter helps with
household chores, such as vacuuming, cooking, washing dishes, and wiping the table.98
Although she drives, it is painful to keep her arms elevated on the steering wheel
properly.99 Her granddaughter also assists with grocery shopping since plaintiff cannot
lift items.100 Plaintiff stated that she lays down for seven out of eight hours between nine
o’clock a.m. to five o’clock p.m.101 She further related problems holding items and drops
her tea cup.102
2.

The Vocational Expert’s Testimony

A Vocational Expert (“VE”), Wayne Berger, testified that plaintiff’s work
experience was classified as sedentary work (DOT 243.362-010).103 The ALJ and Gary
Linarducci, plaintiff’s attorney, posed several hypothetical scenarios to the VE.104 All
were based on a hypothetical fifty-nine year old woman at time of onset, currently sixtytwo, with an Associates degree and plaintiff’s past work history.105

95

Id.
Id. at 39.
97
Id. at 44-46.
98
Id. at 49.
99
Id. at 49-50.
100
Id.
101
Id. at 48-49.
102
Id. at 43-44.
103
Id. at 54-55.
104
Id. at 34, 54-55.
105
Id. at 55.
96

11

In the first hypothetical, the individual had a residual functional capacity for light
work limited to no climbing ladders, ropes, or scaffolds, and only occasional balancing,
stopping, kneeling, crouching, or crawling, and overhead reaching.106 The ALJ asked if
such individual would have been able to perform past work; the VE responded that the
hypothetical individual’s past work could have been performed.107
The second hypothetical had the same limitations as the first, but with the
additional restriction that the lifting limits would be for sedentary work.108 In response,
the VE testified that the past work could still be performed.109
The third hypothetical had the same limitations as the first, but with the additional
restriction of only occasional handling.110 The VE responded that past work could not
be performed.111 The VE also identified that, given those restrictions, there are not
transferrable skills to another lower skilled sedentary job and the restriction precludes
employment.112
The fourth hypothetical posed by Mr. Linarducci limited the individual to frequent
handling, reaching, and fingering.113 In response the VE stated that the past work could
not be performed.114
3.

The ALJ’s Findings

106

Id.
Id.
108
Id. at 56.
109
Id.
110
Id.
111
Id.
112
Id.
113
Id. at 57.
114
Id.
107

12

Based on the medical evidence and testimony, the ALJ determined plaintiff was
not disabled and, therefore, ineligible for Social Security Disability Insurance and
Supplemental Security Income.115 The ALJ’s findings are summarized as follows:
1.
2.

The claimant has not engaged in substantial gainful activity since
October 11, 2103, the alleged onset date (22 CFR 404.1571 et
seq.).

3.

The claimant has the following severe impairments: degenerative
disc disease, degenerative joint disease, carpal tunnel syndrome,
fibromyalgia, and connective tissue disease (20 CFR 404.1520©).

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
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) with the
following limitations: the claimant is limited to only occasional
balancing, stooping, kneeling, crouching, or crawling. Additionally,
she is limited to work that does not involve climbing of ladders,
ropes, or scaffolds as well as work that involves only occasional
overhead reaching.

6.

The claimant is capable of performing past relevant work as a court
clerk. This work does not require the performance of work-related
activities precluded by the claimant’s residual functional capacity
(20 CFR 404.1565).

7.

115

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2018.

The Claimant has not been under a disability, as defined in the
Social Security Act, from October 11, 2013 through the date of this
decision (20 CFR 404.1520(f)).

Id. at 8-31.
13

III.

STANDARD OF REVIEW
A.

Motion for Summary Judgment

Both parties move 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.”116 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.117 This standard does not change merely because there are
cross-motions for summary judgment.118 Cross-motions for summary judgment:
are no more than a claim by each side that it alone is entitled to
summary judgment, and the making of such inherently
contradictory claims does not constitute an agreement that if one is
rejected the other is necessarily justified or that the losing party
waives judicial consideration and determination whether genuine
issues of material fact exist.119
“The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party.”120
B.

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

116

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)
(citation omitted).
117
See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R.
CIV. P. 56(c)).
118
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
119
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
120
Krupa v. New Castle Cnty., 732 F. Supp. 497, 505 (D. Del. 1990).
14

proper legal standards, or the record did not contain substantial evidence to support the
decision. Factual findings are upheld if supported by substantial evidence.121 Substantial
evidence means less than a preponderance, but more than a mere scintilla
of evidence.122 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.”123
In determining whether substantial evidence supports the Commissioner’s
findings, the court may not undertake a de novo review of the decision nor re-weigh the
evidence of record.124 The court’s review is limited to the evidence that was actually
presented to the ALJ.125 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.126
Thus, the inquiry is not whether the court would have made the same determination, but
rather, whether the Commissioner’s conclusion was reasonable.127 Even if the court
would have decided the case differently, it must defer to and affirm the ALJ so long as
the decision is supported by substantial evidence.128
121

See 42 U.S.C. §§405(g); see also Monsour Med. Ctr. v. Heckle, 806 F.2d
1185, 1190 (3d Cir. 1986).
122
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
123
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
124
Monsour, 806 F.2d at 1190.
125
Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001).
126
Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
127
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
128
Monsour, 806 F.2d at 1190-91.
15

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.”129 In SEC 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.”130 “If those grounds are inadequate or improper,
the court is powerless to affirm the administrative action by substituting what it
considers to be a more adequate or proper basis.”131 The Third Circuit has recognized
the applicability of this finding in the Social Security disability context.132 This court's
review is limited to the four corners of the ALJ's decision.133 In Social Security cases,
the substantial evidence standard applies to motions for summary judgment brought
pursuant to FED. R. CIV. P. 56.134
IV.

DISCUSSION
A.

Parties’ Contention

In her appeal, plaintiff contends the ALJ failed to conduct a “full and fair inquiry”
of all relevant facts regarding her mental impairments.135 Plaintiff further argues the ALJ
improperly afforded great weight to the non-examining physicians opinions, while
affording little weight to the opinions of her treating physicians (Drs. Cowdery, Biasotto,
129

Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.D. Pa. 2011).
332 U.S. 194, 196 (1947).
131
Id.
132
Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001).
133
Cefalu v. Barnhart, 387 F. Supp. 2d 486, 491 (W.D. Pa. 2005).
134
See Woody v. Sec’y of the Dep’t of Health & Human Servs., 859 F.2d 1156,
1159 (3d Cir. 1988).
135
D.I. 12 at 4-5.
130

16

and Yezdani).136
The Commissioner counters: substantial evidence supports the ALJ’s
assessment regarding the plaintiff’s mental health, and the ALJ afforded proper weight
to the medical evidence of record.137
B.

Disability Analysis

Title II of the Act, 42 U.S.C. § 423(a)(I)(D), “provides for the payment of
insurance benefits to persons who have contributed to the program and who suffer from
a physical or mental disability.”138 To qualify for DIB, a claimant must establish disability
prior to the date she was last insured.139 A “disability” is defined as the inability to do
any substantial gainful activity because of any medically determinable physical or
mental impairment, which either could result in death or has lasted or can be expected
to last for a continuous period of at least 12 months.140 To be disabled, the severity of
the impairment must prevent return to previous work, and based on age, education, and
work experience, restrict “any other kind of substantial gainful work which exists in the
national economy.”141
In determining whether a person is disabled, the Commissioner is required to
perform a five-step sequential analysis.142 If a finding of disability or non-disability can

136

Id. at 9-15.
D.I. 19 at 14, 20.
138
Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
139
See 20 C.F.R. § 404.131.
140
42 U.S.C. §§ 423(d)(I)(A), 1382(c)(a)(3).
141
42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
142
20 C.F.R § 404.1520; see also Plummer v. Apfel, 186 F.3d 422, 427-28 (3d
Cir. 1999).
137

17

be made at any point in the sequential process, the review ends.143 At the first step, the
Commissioner must determine whether the claimant is engaged in any substantial
gainful activity, and if so, a finding of non-disabled is required.144 If the claimant is not
so engaged, step two requires the Commissioner to determine whether the claimant is
suffering from an impairment or a combination of impairments that is severe. If no
severe impairment or a combination thereof exists, a finding of non-disabled is
required.145
If the claimant’s impairments are severe, the Commissioner, at step three,
compares them to a list of impairments (“the listings”) that are presumed severe enough
to preclude any gainful work.146 When a claimant’s impairment or its equivalent
matches an impairment in the listing, the claimant is presumed disabled.147 If a
claimant’s impairment, either singularly or in combination, fails to meet or medically
equal any listing, the analysis continues to steps four and five.148 At step four, the
Commissioner determines whether the claimant retains the RFC to perform her past
relevant work.149 A claimant’s RFC is “that which an individual is still able to do despite
limitations caused by [her] impairment(s).”150 “The claimant bears the burden of
demonstrating an inability to return to [her] past relevant work.”151

143

20 C.F.R. § 404.1520(a)(4).
20 C.F.R. § 404.1520(a)(4)(I).
145
20 C.F.R. § 404.1520(a)(4)(ii).
146
20 C.F.R. § 404.1520(a)(4)(iii); Plummer, 186 F. 3d at 428.
147
20 C.F.R. § 404.1520(a)(4)(iii).
148
20 C.F.R. § 404.1520(e).
149
20 C.F.R. § 404.1520(a)(4)(iv); Plummer, 186 F.3d at 428.
150
Fargnoli, 247 F.3d at 40.
151
Plummer, 186 F.3d at 428.
144

18

If the claimant is unable to return to her past relevant work, step five requires the
Commissioner to determine whether the claimant’s impairments preclude adjusting to
any other available work.152 At this final step, the burden is on the Commissioner to
show the claimant is capable of performing other available work existing in significant
national numbers and consistent with the claimant’s medical impairments, age,
education, past work experience, and RFC before denying disability benefits.153 In
making this determination, the ALJ must analyze the cumulative effect of all the
claimant’s impairments and often seeks the assistance of a vocational expert.154
1.

Full and Fair Inquiry of Mental Impairments

Plaintiff argues the ALJ did not properly consider plaintiff’s mental impairments
when making a determination.155 Her contention is that proper procedure was not
followed because a qualified psychiatrist or psychologist was not consulted when the
ALJ reviewed plaintiff’s matter.156 Plaintiff refers to requirements in 20 C.F.R.
§ 404.1520a and 42 U.S.C. § 421(h), and also notes that “agency policy is that it must
make ‘every reasonable effort’ to have a qualified psychiatrist or psychologist review the
record”.157
20 C.F.R. § 404.1520a sets forth the process of evaluating mental impairments
referred to as a special technique.158 The statute provided the special technique helps

152

20 C.F.R. § 404.1520(g); Plummer, 186 F.3d at 427-28.
Plummer, 186 F.3d at 427-28.
154
Id.
155
D.I. 20 at 1.
156
D.I. 12 at 2-3.
157
D.I. 20 at 2.
158
20 C.F.R. § 404.1520a.
153

19

the ALJ to “identify the need for additional evidence to determine impairment
severity.”159 The special technique requires the ALJ to first determine whether a plaintiff
has a medically determinable impairment, then rate the degree of the functional
limitation resulting from the impairment and record the findings.160
Plaintiff argues that Agency policy of 20 C.F.R. § 404.1520a
unambiguously requires that a qualified psychiatrist or psychologist must review the
evidence and determine whether the mental impairment is severe, is an impairment at
step three, and is a work-related mental limitation.161 Plaintiff contends the ALJ
improperly relied on his lay opinion instead of enlisting an expert to make the
determination.162 There is, however, no explicit language within 20 C.F.R. § 404.1520a
that requires a qualified psychiatrist or psychologist to make the determination. Rather,
the statutory language provides that one purpose of the special technique is to identify
when additional evidence is needed.163 Furthermore, 20 C.F.R. § 404.1520a(e)(5) lists
the procedures for “if the administrative law judge requires the services of a medical
expert to assist in applying the technique,” indicating that a medical expert is not
automatically required.164
Plaintiff also relies on section 421(h) of the Social Security Act, which states
[r]equirement for medical review . . . . An initial
determination under subsection (a), (c), (g), or (I) shall not
be made until the Commissioner of Social Security has
159

20 C.F.R. § 404.1520a(a).
20 C.F.R. § 404.1520a(b).
161
D.I. 12 at 3.
162
Id.
163
20 C.F.R. § 404.1520a(a).
164
20 C.F.R. § 404.1520a(e)(5).
160

20

made every reasonable effort to ensure (1) in any case
where there is evidence which indicates the existence of
mental impairment, that a qualified psychiatrist or
psychologist has completed the medical portion of the case
review and any applicable residual functional capacity
assessment.165
Plaintiff’s claim, however, is against the ALJ determination regarding mental illness, not
the State Agency’s review.166 Plaintiff conceded that it might not have been reasonable
for the State Agency to examine Plaintiff’s mental impairments at the time of its
review.167 The Third Circuit has explained that section 421(h) does not apply to
decisions made by an ALJ.168 Therefore, a review by a qualified psychiatrist or
psychologist was not required for the ALJ to determine that plaintiff was not impaired by
her non-severe depression.
The ALJ utilized 20 C.F.R. § 404.1520a in the analysis and found that plaintiff
had a medically determinable mental impairment of depression that was not severe.169
In reaching this conclusion, the ALJ applied the four broad functional areas set out in
disability regulations for evaluating mental disorders identified in 20 C.F.R. §
404.1520a(a)(3) to determine that plaintiff had a mild limitation with regard to
understanding, remembering, or applying information and no limitation in interacting
with others, concentrating, persisting, or maintaining pace, and adapting or managing
165

42 U.S.C. § 421(h).
D.I. 12 at 6, n.4.
167
Id.
168
Plummer v. Apfel, 186 F.3d 422, 433 (3d Cir. 1999). “Because 42 U.S.C. §
421(d), which covers hearings before an ALJ, is excluded from § 421(h)'s purview, an
ALJ is not required to employ the assistance of a qualified psychiatrist or psychologist in
making an initial determination of mental impairment. Instead, the Commissioner's
regulations provide an ALJ with greater flexibility than other hearing officers.” Id.
169
D.I. 8 at 13-14.
166

21

oneself.170 The ALJ arrived at this conclusion by analyzing reports and representations
by plaintiff regarding her daily function.171 The record indicates that plaintiff’s
depression would “come and go,” with examinations showing no mood changes,
depression, nervousness, or anxiety.172 Furthermore, the ALJ acknowledged that
plaintiff received mental health counseling from Ms. Cornibe between April and June
2016.173 The record supports the ALJ’s reasonable determination that plaintiff’s mental
illness was not severe. During treatment with Ms. Cornibe, the record notes that when
plaintiff’s depression was at its worse, she could function adequately and does not
completely shut down.174 Therefore, the ALJ applied the proper legal standard in
analyzing plaintiff’s mental impairment consistent with the requirements of 20 C.F.R. §
404.1520a and the record contained substantial evidence to support that plaintiff’s
depression was non-severe .
2.

Weight Accorded to Opinion Evidence

Plaintiff asserts the ALJ erred by affording “little weight” to the opinions of
Drs. Cowdery, Biasotto, and Yezdani, while giving substantial weight to the opinions of
nonexamining medical consultants.175 A cardinal principle guiding disability eligibility
determinations is that the ALJ accord treating physicians’ reports great weight,
especially “when the opinions reflect expert judgment based on a continuing observation

170

Id.
Id.
172
Id. at 312, 316, 466, 469, 615, 619, 623, 698, 796, 825, 858, 869, 874, 1009,
1012, 1017, 1061, 1075, 1079, 1083, 1088, 1095, 1098, 1107, 1112, 1113, 1117, 1118.
173
Id. at 13-14.
174
Id. at 1004.
175
Id. at 9-15.
171

22

of the patient’s condition over a prolonged period of time.”176 Such reports will be
afforded controlling weight where a treating source’s opinion on the nature and severity
of a claimant’s impairment is well supported by medically acceptable clinical and
laboratory diagnostic techniques, and is not inconsistent with the other substantial
evidence on record.177
The ALJ must consider medical findings supporting the treating physician’s
opinion that the claimant is disabled.178 It is error, however, to apply controlling weight
to an opinion merely because it comes from a treating source if it is not well-supported
by the medical evidence, or inconsistent with other substantial evidence, medical or lay,
in the record.179 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.”180
Further, medical testimony from a doctor who has never examined the claimant should
not be given credit if it contradicts the testimony of the claimant’s treating physician.181
If the ALJ does not give a physician’s report controlling weight, he must examine
multiple factors.182 These factors include the “[e]xamining relationship,” the “[t]reatment
relationship” which considers the “[l]ength of the treatment relationship and the
frequency of examination,” the “[n]ature and extent of the treatment relationship,” the

176

Morales v. Apfel, 225 F. 3d 310, 317 (3d Cir. 2000).
Fargnoli, 247 F.3d at 43.
178
Morales, 225 F.3d at 317 (citing Plummer, 186 F.3d at 429).
179
SSR 96-2p, 1996 WL 374188 at *2.
180
Plummer, 186 F.3d at 429.
181
Dorf v. Bowen, 794 F.2d 896, 901 (3d Cir. 1986).
182
20 C.F.R. §404.1527(c).
177

23

degree and extent the relevant evidence supports a treating physician’s opinion, the
consistency of the opinion with the record as a whole, and the specialization of the
treating physician in relation to the medical issues involved.183 An ALJ must weigh all
the evidence in the record.184 Failure of an ALJ to examine and elaborate on these
factors is grounds for remand.185
a.

Dr. Cowdery

The ALJ assigned little weight to the opinions of Dr. Cowdery due to
inconsistencies in the record, her failure to indicate the frequency claimant suffered from
fibromyalgia flares that would result in absences, and her failure to provide record of
previous flare-ups.186 Dr. Cowdery opined plaintiff would be absent from work on a
short term disability basis, and possibly for the long term during fibromyalgia flare-ups,
but that plaintiff was capable of performing work duties.187 First, the ALJ distinguished
that the question of whether plaintiff was disabled or unable to work as an issue for the
Commissioner under 20 CFR 404.1527 and SSR 96-5p.188 Second, the ALJ identified
that Dr. Cowdery’s restrictions were temporary in nature, and as a result, do not provide
a proper analysis for the entire period of the disability.189 Third, the ALJ noted the
absence of any indication regarding frequency of flare-ups and the number of

183

Id.
Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000).
185
Solomon v. Colvin, C.A. No. 12-1406-RGA-MPT, 2013 WL 5720302, at *12
(D.Del. Oct. 22, 2013).
186
D.I. 8 at 21.
187
Id.
188
Id.
189
Id.
184

24

absences.190 In light of the insufficient information and evidence in this regard, the ALJ
reasonably concluded that Dr. Cowdery’s opinion should be given little weight.
b

Dr. Biasotto and Dr. Yezdani

The ALJ assigned little weight to the opinions of Drs. Biasotto and Yezdani because
their characterizations of plaintiff’s limitations were inconsistent with her medical record
and work history.191 The ALJ identified that the restrictions were based on subjective
complaints rather than objective testing.192 The ALJ referenced specific inconsistencies,
including a report that plaintiff could only lift two and a half pounds with each arm, while
a consultative examination and testing identified her as able to lift up to ten pounds.193
The limitations listed by Drs. Biasotto and Yezdani concerning ability to only stand
and/or walk fifteen minutes total, sit thirty minutes in an eight hour work day, and only
be able to work one hour per day, despite having a job that did not require lifting more
than five pounds, were not supported by her medical history.194 Another inconsistency
identified by the ALJ was that plaintiff as unable to return to previous work when she
had remained employed for a number of years with certain of the same impairments.195
The ALJ also gave less weight to the assessments of Drs. Biasotto and Yezdani
because they were primary physicians, not specialized physicians in rheumatology or
orthopedics.196 While plaintiff had been treated by Dr. Biasotto from 2009 to 2014 and

190

Id.
Id. at 22.
192
Id.
193
Id.
194
Id. at 21-22.
195
Id. at 22.
196
Id.
191

25

Dr. Yezdani starting in 2015, there is not an extensive medical record.197 Therefore, the
ALJ’s reasoning for assigning Dr. Biasotto and Dr. Yezdani’s opinions little weight is
supported by substantial evidence.
V.

CONCLUSION
Therefore, Plaintiff’s motion for summary judgment (D.I. 11) is denied; and

Defendant’s motion for summary judgment (D.I. 18) is granted. An order consistent with
the findings in this memorandum shall follow.

Dated: December 10, 2018

197

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

Id. at 22, 672, 675, 679-80, 683, 686, 815, 1031-47.
26

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

)
)
)
)
)
)
)
)
)
)
)

C. A. No. 18-248-MPT

ORDER
Consistent with the findings and conclusion made in the Memorandum issued on
the same date, IT IS ORDERED and ADJUDGED that Plaintiff’s Motion for Summary
Judgement (D.I. 11) is DENIED; and Defendant’s Motion for Summary Judgment (D.I.
18) is GRANTED.

Date: December 10, 2018

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