WEST v. COLVIN

Filing 25

MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE LINDA K. CARACAPPA ON 10/27/17. 10/27/17 ENTERED AND COPIES EMAILED TO COUNSEL.(jaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HEATHER MARIE WEST,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION

No. 17-00249

OPINION
LINDA K. CARACAPPA
UNITED STATES CHIEF MAGISTRATE JUDGE
Plaintiff, Heather Marie West, brought this action under 42 U.S.C. § 405(g), seeking
judicial review of the final decision of the Commissioner of Social Security (“Commissioner”)
denying plaintiff’s claims for disability insurance benefits (“DIB”) under Title II of the Social
Security Act (“Act”) and Supplemental Security Income (“SSI”) under Title XVI of the Act.
Presently before this court are plaintiff’s request for review, the Commissioner’s response, and
plaintiff’s reply. For the reasons set forth below, plaintiff’s request for review be denied.
I.

FACTUAL AND PROCEDURAL HISTORY
Plaintiff was born on January 19, 1977 and was thirty-five (35) years old on the

alleged disability onset date. (Tr. 31). Plaintiff completed high school and has past relevant work
experience as a construction worker, van driver, and security guard. (Tr. 30-31).
On September 25, 2012, plaintiff protectively filed applications for DIB and SSI,
alleging disability beginning on August 15, 2012. (Tr. 18). The applications were denied at the
state level on November 27, 2012. Id. Plaintiff subsequently requested a hearing before an
Administrative Law Judge (“ALJ”). Id.

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On April 2, 2014, ALJ Craig De Bernardis held a hearing and heard testimony
from an impartial vocational expert. (Tr. 18). The ALJ also ordered a consultative psychiatric
evaluation of the plaintiff. Id. On September 10, 2014, the ALJ held a hearing and heard
testimony from the plaintiff, who was represented by counsel. Id. Dr. Philip Braun, a medical
expert in psychology and an impartial vocational expert were also present, but did not testify. Id.
The ALJ ordered a consultative orthopedic examination of the plaintiff. On April 8, 2015, the
ALJ held a hearing and heard testimony from the plaintiff, Dr. Braun and an impartial vocational
expert. Id.
On June 2, 2015, the ALJ issued an opinion finding that plaintiff was not disabled
under the Act from August 15, 2012 through the date of the decision. (Tr. 18-32). Plaintiff filed
a request for review, which was denied by the Appeals Council on November 17, 2016, making
the ALJ’s decision the final decision of the Commissioner. (Tr. 1-5). Plaintiff appealed that
decision to this court. On August 24, 2017, the case was referred to the undersigned magistrate
judge for the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P.
73.
II.

LEGAL STANDARDS
Upon judicial review, this court’s role is to determine whether the ALJ’s decision

is supported by substantial evidence. 42 U.S.C. § 405(g); Pierce v. Underwood, 587 U.S. 552
(1988). “Substantial evidence is more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). It is
relevant evidence viewed objectively as adequate to support a decision. Richardson v. Perales,
402 U.S. 389, 401 (1971). In determining whether substantial evidence exists, the reviewing

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court may not weigh the evidence or substitute its own conclusion for that of the ALJ. Burns v.
Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). If the court determines the ALJ’s factual findings
are supported by substantial evidence, the court must accept the findings as conclusive.
Richardson, 402 U.S. at 390; Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). It is the
ALJ’s responsibility to resolve conflicts in the evidence and to determine credibility and the
relative weights to be given to the evidence. Richardson, 402 U.S. at 401. While the Third
Circuit Court of Appeals has made it clear that the ALJ must analyze all relevant evidence in the
record and provide an explanation for disregarding evidence, this requirement does not mandate
that the ALJ “use particular language or adhere to a particular format in conducting his analysis.”
Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). Rather, it is meant “to ensure that there is
sufficient development of the record and explanation of findings to permit meaningful review.”
Id. Moreover, apart from the substantial evidence inquiry, a reviewing court must also ensure
that the ALJ applied the proper legal standards. Coria v. Heckler, 750 F.2d 245 (3d Cir. 1984).
To establish a disability under the Act, a claimant must demonstrate there is some
“medically determinable basis for an impairment that prevents him from engaging in any
‘substantial gainful activity’ for a statutory twelve-month period.” Stunkard v. Sec’y of Health
and Human Servs., 841 F.2d 57 (3d Cir. 1988) (quotation omitted); 42 U.S.C. § 423(d)(1)
(1982). The claimant satisfies his burden by showing an inability to return to his past relevant
work. Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986); Rossi v. Califano, 602 F.2d 55, 57 (3d
Cir. 1979). Once this showing is made, the burden of proof shifts to the Commissioner to show
the claimant, given his age, education, and work experience, has the ability to perform specific
jobs that exist in the economy. 20 C.F.R. § 404.1520. See Rossi, 602 F.2d at 57.
As explained in the following agency regulation, each case is evaluated by the

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Commissioner according to a five-step process:
(i) At the first step, we consider your work activity if any. If you are doing
substantial gainful activity, we will find that you are not disabled.
(ii) At the second step, we consider the medical severity of your impairment(s). If
you do not have a severe medically determinable physical or mental impairment
that meets the duration requirement in § 404.1509, or a combination of
impairments that is severe and meets the duration requirement, we will find that
you are not disabled.
(iii) At the third step, we also consider the medical severity of your
impairment(s). If you have an impairment(s) that meets or equals one of our
listings in appendix 1 of this subpart and meets the duration requirement, we will
find that you are disabled.
(iv) At the fourth step, we consider our assessment of your residual functional
capacity and your past relevant work. If you can still do your past relevant work,
we will find that you are not disabled.
(v) At the fifth and last step, we consider our assessment of your residual
functional capacity and your age, education and work experience to see if you can
make an adjustment to other work. If you can make an adjustment to other work,
we will find that you are not disabled. If you cannot make an adjustment to other
work, we will find that you are disabled.
20 C.F.R. § 404.1520 (references to other regulations omitted).
III.

ADMINISTRATIVE LAW JUDGE’S DECISION
Pursuant to the five-step sequential evaluation process, the ALJ determined

plaintiff had not been under a “disability,” as defined by the Act from August 15, 2012 through
June 2, 2015, the date of the ALJ’s decision. (Tr. 18-32).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful
activity since August 15, 2012, the alleged onset date. (Tr. 20). At step two, the ALJ found that
plaintiff had the following severe impairment: disorder of the spine; affective disorder; anxietyrelated disorder. In making this determination, the ALJ relied on plaintiff’s medical records.

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The court has reviewed the medical records and finds that the ALJ’s summary of the medical
records is in depth and inclusive of all pertinent records. The ALJ’s summary is as follows:
DISORDER OF THE SPINE
On April 13, 2010, the [plaintiff] alleged that she had back pain, which “began
back in 2007.” (Exhibit 23F at 35). According to the [plaintiff], the pain
involved “her hips, legs, low back and even sometimes her neck.” (Id.) The
[plaintiff] took “one Percocet yesterday given to her by her friend….” (Id.) The
[plaintiff] “ambulates with a non-antalgic gait.” (Exhibit 23F at 36). She had
normal muscle strength in her upper and lower extremities. (Id.) The physician’s
assistant who examined the [plaintiff] ordered a magnetic resonance imaging
(hereinafter “MRI”) study. (Id.)
An MRI of the [plaintiff’s] lumbar spine performed on May 24, 2010, showed “no
disc herniation.” (Exhibit 9F at 11). There was also “no central or neural
foraminal stenosis.” (Id.) “There is a small to moderate central disc herniation at
the T10-11 level, which extends inferiorly along the posterior aspect of the upper
T11 vertebral body. This abuts the ventral aspect of the spinal cord without
significant central spinal stenosis or cord compression.” (Id.)
A pain management specialist gave the [plaintiff] injections in her thoracic spine
on October 8, 2010, and November 1, 2010. (Exhibit 23F at 27, 29, 33). The
[plaintiff] said that the injections provided “30% relief of her pain.” (Exhibit 23F
at 26). The pain management specialist also gave the [plaintiff] Vicodin for her
alleged pain. (Id.)
On November 23, 2010, the pain management specialist gave the [plaintiff] a
third epidural injection in her thoracic spine. (Exhibit 23F at 25). He renewed the
prescription of Vicodin. (Id.)
The [plaintiff] returned to see the pain management specialist on May 18, 2011.
(Exhibit 23F at 23). “She ran out of her medications a long time ago. She does
continue to work driving for Bucks County Transport, although she is no longer in
a bus. She is now in a minivan, which helps her with her pain issues. It is a
smoother drive. (Id.) The range of motion of the [plaintiff’s] lumbar spine was
“normal.” (Id.) There was no sign of lumbar radiculopathy. (Id.) The physician’s
assistant renewed the prescription of Vicodin and recommended that the
[plaintiff] undergo physical therapy. (Id.)
Dr. Sanjay Shah gave the [plaintiff] a lumbar epidural injection on June 1, 2011,
despite the fact that there was no evidence of disorder in her lumbar spine.
(Exhibit 23F at 21). “[Dr. Shah] [felt] that there [was] some inflammation in this
[lumbar] area that is contributing to [plaintiff’s] low back pain symptoms.” (Id.)

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On June 15, 2011, the [plaintiff] said that she had “50% relief of her lower lumbar
pain.” (Exhibit 23F at 19). In response to the [plaintiff’s] complaint of pain in her
thoracic spine, Dr. Shah gave [plaintiff] another epidural injection in that area.
(Id.)
When the [plaintiff] alleged on August 4, 2011, that the lumbar injection failed to
provide her with significant relief, Dr. Shah gave [plaintiff] “bilateral medial
branch blocks” in her lumbar spine. (Exhibit 23F at 16). On August 11, 2011, Dr.
Scott E. Rosenthal gave the [plaintiff] medial branch rhizotomies in her lumbar
spine. (Exhibit 23F at 15). “[Plaintiff] underwent her second rhizotomy on the left
low back on September 1, 2011.” (Ehxibit 23F at 14). The [plaintiff] said it
provided her with “50% improvement of her low back pain.” (Id.) [Plaintiff]
denied “any side effects” of her medications, which included Oxycodone and
other narcotics. (Exhibits 23F at 14, 13, 9). The range of motion in the [plaintiff’s]
lumbar spine was “almost normal.” (Exhibit 23F at 14). “She ambulates in a nonantalgic gait.” (Exhibit 3F at 14, 9). There was no weakness in the [plaintiff’s]
legs. (Exhibits 23F at 12).
The [plaintiff] continued to work as a driver on November 23, 2011. (Exhibit 23F
at 11, 10). [Plaintiff’s] pain medications “cut her pain in half and [allowed] her to
function.” (Exhibit 23F at 9; 9F at 10.) She walked without a limp. (Exhibit 23F
at 9; 9F at 10).
The [plaintiff] complained of increased pain on April 18, 2012. (Exhibit 23F at 8;
9F at 9). Muscle strength in her legs, however, was normal (Exhibit 23F at 8; 9F
at 9). There were no neurological deficits and no sign of radiculopathy. (Exhibit
23F at 8; 9F at 9). “[Plaintiff] [continued] on Oxycodone.” (Exhibit 23F at 8; 9F
at 9). In response to the [plaintiff’s] allegation of pain, Dr. Shah gave the
[plaintiff] a lumbar steroid injection on April 24, 2012. (Exhibit 23F at 6; 9F at 7).
[The injection] enabled [plaintiff] to continue working as a driver. (Exhibit 23F at
4, 5). [Plaintiff] was “also walking better” on May 15, 2012. (Exhibit 23F at 4, 5;
9F at 6). [Plaintiff’s] pain lessened and the [plaintiff] had “no side effects of
medications.” (Exhibit 23F at 4, 5; 9F at 6).
Dr. Shah gave the [plaintiff] lumbar steroid injections on July 19, 2012, and
October 5, 2012. (Exhibit 23F at 3; 14F at 12; 9F at 2, 4). “It helped about 40%,
but … only lasted about one week.” (Exhibit 14F at 12; 16F at 9). The physician’s
assistant prescribed MS Contin for the [plaintiff’s] alleged pain. (Id.) The
[plaintiff] said that MS Contin “does seem to help moderating her pain.” (Exhibit
14F at 11). “In particular, [plaintiff] states the morning that [plaintiff] takes her
Oxycodone and MS Contin together she is able to help get her children ready for
school and does not experience any side effects on the current regimen.” (Id.)
On February 4, 2013, in response to the [plaintiff’s] allegation of increased pain,
Dr. Rosenthal increased “the morphine MS Contin” and continued the
prescription of Oxycodone. (Exhibit 14F at 10). The [plaintiff] alleged that she
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spent most of the day in bed because of pain. (Id.) She was “ambulating with a
cane.” (Id.)
Increased morphine “helped” the [plaintiff] with her alleged pain, “in particular
during her more active period in the morning.” (Exhibit 14F at 9). Despite the
[plaintiff’s] complaint of “heartburn” and vomiting at night, Dr. Rosentahl
continued to prescribe Oxycodone. (Id.) Since the [plaintiff’s] insurance would
not pay for MS Contin, Dr. Rosentahl prescribed Kadian. (Id.) He advised the
[plaintiff] “to avoid eating late at night.” (Id.)
The [plaintiff] had no side effects of medications on March 18, 2013. (Exhibit
14F at 8). The [plaintiff] asked Dr. Shah for a lumbar steroid injection, which he
provided. (Id.) On April 4, 2013, the [plaintiff] said it “greatly improved her
pain.” (Exhibit 14F at 7). The [plaintiff] said that she “has been more active. She
believes the injection did help her to do that, and has been trying to resume her
old lifestyle. She denies side effects [of] her medication.” (Id.) Dr. Shah
continued the [plaintiff’s] medications. (Id.) “I did encourage her to get outside
and try to walk a little as tolerated. …” (Id.)
On May 2, 2013, the [plaintiff] was “doing well.” (Exhibit 14F at 6). “[Plaintiff]
feels a little better. She has been getting back to daily activities.” (Id.) The
[plaintiff] denied side effects of her medication. (Id.) Dr. Patrick Fall gave the
[plaintiff] a lumbar steroid injection. (Exhibit 14F at 5). The [plaintiff] said that
this injection provided her with “80% relief for two months.” (Exhibit 14F at 5).
The [plaintiff] continued to receive prescription of Kadian and Oxycodone on
November 4, 2013. (Exhibit 14F at 13; 35F at 21). [Plaintiff] asked for another
lumbar injection on November 27, 2013 which Dr. Shah gave her because of
“post laminectomy syndrome.” (Exhibit 14F at 4; 35F at 20). The [plaintiff] never
had a laminectomy. The [plaintiff] said that this injection gave her “70% relief,”
which continued as of January 7, 2014, when Dr. Shah gave her a left trochanteric
bursa injection.” (Exhibit 14F at 3; 35F at 19). He did so because the [plaintiff]
alleged that she had “some left hip and left trochanteric bursal pain.” (Exhibit 14F
at 3; 35F at 19).
There was no imaging study of the [plaintiff’s] hip. (Exhibit 26F at 4). One was
not done until February 2014, but was not reviewed as of March 12, 2014. (Id.)
In fact, when an x-ray of the [plaintiff’s] hips was finally reviewed on March 28,
201[4], there was “no evidence of osteoarthritis.” (Exhibit 26F at 3; 35F at 16).
Another study of the [plaintiff’s] left hip on February 28, 2014, was also within
normal limits. (Exhibit 38F at 3; 31F at 67). Nevertheless, when the [plaintiff]
asked for another hip injection on March 28, 2011, Dr. Shah gave her one.
(Exhibit 38F at 3; 31F at 67).
On February 11, 2014, the [plaintiff] said that the hip injection gave her “50%
relief” of her pain. (Exhibit 26F at 5; 35F at 18). She had no side effects of
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medication. (Exhibit 26F at 5; 35F at 18). She continued to receive prescription[s]
for Kadian and Oxycodone. (Id.) Her gait was “normal.” (Exhibit 26F at 5; 35F at
18).
The [plaintiff’s] gait was “normal” on March 12, 2014. (Exhibit 24F at 4; 35F at
17). The physician’s assistant gave the [plaintiff] a three-month supply of Kadian
and Oxycodone because of “post laminectomy syndrome.” (Exhibit 24F at 4; 35F
at 17).
The [plaintiff’s] gait continued [to be] “normal” on May 12, 2014. (Exhibit 24F at
2; 35F at 15). In response to the [plaintiff’s] complaint of lower back pain, the
physician’s assistant continued to prescribe Kadian and Oxycodone because of
“post laminectomy syndrome.” (Exhibit 24F at 2; 35F at 15). She did the same on
June 9, 2014. Exhibit 24F at 1; 35F at 14). The [plaintiff] never had a
laminectomy.
On August 27, 2014, Dr. Shah gave the [plaintiff] another lumbar injection based
upon his diagnosis of post laminectomy syndrome. (Exhibit 35F at 12). His
assistant allowed the [plaintiff] to have Oxycodone on October 6, 2014, for her
complaint of lower back pain. (Exhibit 25F at 11; 27F at 8). The [plaintiff’s] gait
was “normal.” (Id.) there was no weakness in [plaintiff’s] legs. (Id.) [Plaintiff]
had no vertigo or headaches. (Id.) The [plaintiff] had no side effects of
medication. (Id.)
The [plaintiff] obtained another lumbar steroid injection on October 28, 2014.
(Exhibit 35F at 9). She had “no unusual pain in muscles or joints,” and “no
paresthesias or numbness.” (Id.) There was no weakness or ataxia. (Id.) The
[plaintiff] had normal strength and sensation in her legs. (Id.) She had no
weakness or numbness in her lower extremities, no headaches, and no side effects
of medication. (Exhibit 37F at 8).
On December 3, 2014, the physician’s assistant increased the use of Fentanyl
because the [plaintiff] complained of “whole body pain.” (Exhibit 35F at 7, 8).
The [plaintiff] had no vertigo or headaches. (Exhibit 35F at 7). She had “no
unusual pain in muscles or joints.” (Id.) There was no ataxia, but the [plaintiff]
was using a cane. (Id.)
The [plaintiff] obtained another injection in her hip on December 18, 2014.
(Exhibit 35F at 5, 6). [Plaintiff alleged that she had pain in her hip with walking
or standing. (Exhibit 35F at 5). There was no ataxia or weakness in the
[plaintiff’s] legs. (Id.) She had “no unusual pain in muscles or joints.” (Id.)
On February 3, 2015, the [plaintiff] had no side effects of medication. (Exhibit
25F at 3; 37F at 3). [Plaintiff] had “30% relief “of pain in her hip. (Exhibit 25F at
3; 37F at 3). There was no ataxia. (Exhibit 25F at 3; 37F at 3). Dr. Shah said that
the [plaintiff] had “significant relief” of pain with lumbar injections. (Exhibit 35F
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at 2). On February 11, 2015, [Dr. Shah] gave the [plaintiff] another such injection.
(Id.)
POSSIBLE TRANSIENT ISCHEMIC ATTACK:
The [plaintiff] was in the hospital from July 31, 2014, until August 2, 2014.
(Exhibit 31F at 3). She “came into the hospital…because she experience triplopsis
(triple vision).” (Exhibit 31F at 11). The plaintiff had no eye pain. (Id.) The triple
vision “went away.” (Id.)
The [plaintiff] also alleged that she had “numbness in the arms chronically” and
“chronic headaches.” (Exhibit 31F at 11). When [Dr. Schneidman] learned that
[plaintiff] “[was] on morphine,” [he] attributed [plaintiff’s] sensory changes “to
drug [a]ffect.” (Id.)
By August 1, 2014, the [plaintiff] “is completely back to her usual self. She is
feeling well now.” (Exhibit 31F at 11). [Plaintiff’s] triple vision had resolved.
(Exhibit 31F at 13).
The [plaintiff] previously was in the hospital from August 20, 2012, until August
22, 2012, complaining of vertigo. (Exhibit 31F at 11; 2F at 2, 57; 8F at 24, 27).
[Plaintiff] complained of blurriness in her left eye. (Exhibit 8F at 29; 3F at 3).
“[Plaintiff] had dense left hemisensory deficit.” (Id.) An MRI of [plaintiff’s]
brain in 2012 showed a “tiny” aneurysm. (Exhibit 31F at 11; 16F at 12, 13, 15,
16; 2F at 112, 113). [Plaintiff’s] middle ear function was within normal limits.
(Exhibit 16F at 17; 7F at 13; 4F at 1). There was no stenosis of the [plaintiff’s]
carotid artery. (Exhibit 16F at 10; 2F at 115). Another MRI of [plaintiff’s] brain
during her hospitalization in 2014 showed “no change” in the aneurysm. (Exhibit
31F at 11, 69).
The discharge summary on August 2, 2014, stated that [plaintiff’s] primary
diagnosis was transient ischemic attack, but an imaging study of the [plaintiff’s]
brain showed “no evidence of mass hemorrhage, or acute infarction.” Exhibit 31F
at 5, 72; 16F at 14). Her motor strength, sensory ability, and speech were all
“normal.” (Exhibit 31F at 71). While a transient ischemic attack was “possible,”
there was also the possibility that the [plaintiff] had [a] viral syndrome or an
“ophthalmological problem.” (Exhibit 31F at 35).
Investigation of the [plaintiff’s] eyes provided no explanation for her allegation of
numbness on her left side, vertigo, headache, and loss of vision in her left eye.
(Exhibit 30F; 17F at 22). Dr. Mark L. Moster, an ophthalmologist, reported on
September 25, 2012, that “I do not find neuro-ophthalmologic cause for [the
plaintiff’s] visual blurring in the left eye.” (Exhibit5F at 3). Dr. Moster saw no
connection [between] [plaintiff’s] visual condition [and] the [plaintiff’s] alleged
left-sided numbness. (Id.)

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Dr. Raoul Biniaurishivili, a neurologist, examined the [plaintiff] on December 24,
2012, regarding her complaints of dizziness. (Exhibit 16F at 8). There was no
aphasia and no “comprehension deficit.” (Id.) Cranial nerve examination was
within normal limits. (Id.) The [plaintiff’s] muscle strength was normal. (Id.) Her
“sensory is intact to all primary modalities.” (Id.) “Concentration tests are
normal.” (Id.) Dr. Biniaurishvili made the same findings on June 6, 2013,
October 2, 2013, and February 24, 2014. (Exhibit 16F at 3, 4, 6).
An electroencephalogram on February 19, 2013, was “normal.” (Exhibit 16F at
7).
An imaging study of the [plaintiff’s] brain was “really quite normal and there
[were] no plaques or lesions seen,” which would indicate multiple sclerosis.
(Exhibit 17F at 23; 33F at 8). Dr. Anthony Rock, the [plaintiff’s] primary care
physician, suggested that [plaintiff] see a rheumatologist to determine whether she
had fibromyalgia syndrome. (Exhibit 17F at 9). There is no evidence that
[plaintiff] did so.
The [plaintiff] returned to the hospital on January 24, 2014, complaining of a
headache and double vision. (Exhibit 15F at 4). There was no change in her
aneurysm. (Exhibit 15F at 15). There was no evidence of “mass, hemorrhage, or
acute infarction” in the [plaintiff’s] brain. (Exhibit 15F at 18). The [plaintiff]
“denied neck pain and back pain.” (Exhibit 15F at 15). [Plaintiff] had no visual
changes or weakness. (Id.) The [plaintiff] had “normal motor, normal sensory,”
and “normal speech.” (Exhibit 15F at 16). [Plaintiff] had full range of motion in
her upper and lower extremities. (Exhibit 15F at 16).
The [plaintiff] saw a neurologist on February 25, 2015, with “multiple neurologic
and constitutional complaints.” (Exhibit 39F at 3). Specifically, the [plaintiff] told
the neurologist that she had “lower extremity numbness and weakness” and
“chronic headaches.” (Id.) [Plaintiff] also alleged that she had problems with her
vision. (Id.) “Things go black and fade and [plaintiff] needs to adjust her eyes to
see correctly.” (Id.) [Plaintiff’s] peripheral vision is allegedly “poor.” (Id.)
The neurologist noted that the [plaintiff’s] physical examination was “normal,”
“with the exception[] of some ‘functional components.’” (Exhibit 39F at 5).
“[Plaintiff’s] symptoms do not sound classic for multiple sclerosis.” (Id.)
Imaging studies of the [plaintiff’s] brain did not show white matter lesions,
indicative of multiple sclerosis. (Id.)
THE [PLAINTIFF’S] MENTAL CONDITION:
The [plaintiff] enrolled in outpatient mental health treatment on October 11, 2012.
(Exhibit 13F at 11; 10F at 4). [Plaintiff] had difficulties with her children.
(Exhibit 13F at 5). The [plaintiff] alleged that she had been molested as a child.
(Id.) The [plaintiff] was depressed and anxious. (Exhibit 13F at 8). [Plaintiff]
10

gave benign responses in mental status examination. (Exhibit 13F at 9). The
[plaintiff] had a history of substance abuse. (Exhibit 13F at 10; 28F at 29).
[Plaintiff] received a diagnosis of adjustment disorder with anxiety and
depression. (Exhibit 13F at 11; 34F at 2). [Her provider] rated the symptoms as
mild to moderate. (Id.)
On March 5, 2014, the [plaintiff] alleged that her energy level was “very low.”
(Exhibit 28F at 28; 19F; 18F). [Plaintiff] denied perceptual disturbances, but her
mood “frequently” shifted to the “hypermanic level.” (Id.)
On March 6, 2014, one day after the [plaintiff] had returned to mental health
therapy after an absence of over one year, her therapist, Joseph Donnelly,
“completed a mental capacity assessment for [the plaintiff’s] disability.” (Exhibit
28F at 25; 25F). He did so despite the psychiatrist’s holding that the [plaintiff]
had moderate symptoms of mental disorder. (Exhibit 28F at 31).
Despite certifying that the [plaintiff] had receptive communication delay and
difficulty concentrating, Mr. Donnelly noted the [plaintiff’s] problems with her
boyfriends and dislike of psychotropic medication on March 20, 2014. (Exhibit
28F at 23, 24). On March 27, 2014, the [plaintiff] was anxious “over upcoming
SSI case.” (Exhibit 28F at 22).
On April 10, 2014, Mr. Donnelly noted that the [plaintiff] was “dating Kevin
again” and “broke up with her ex-boyfriend.” (Exhibit 28F at 19). The [plaintiff]
continued to complain of depression and anxiety. (Id.)
The [plaintiff] told her psychiatrist on April 23, 2014, that she had “excessive
sedation while on Klonopin.” (Exhibit 28F at 15, 18; 27F at 5). [Plaintiff] alleged
that she had mood swings and olfactory hallucinations. (Id.)
Mr. Donnelly noted on May 23, 2014, that the [plaintiff’s] “relationship with her
boyfriend is going well.” (Exhibit 28F at 11, 15). The [plaintiff] complained to
the police “48 times in the past year or so” regarding her neighbor. (Exhibit 28F at
9). [Plaintiff] was still anxious regarding her request for disability benefits.
(Exhibit 28F at 9). The [plaintiff] continued to worry about this matter on June 18,
2014. (Exhibit 28F at 4). Mr. Donnelly rated the [plaintiff’s] depression as
“moderate.” (Id.)
On July 3, 2014, Mr. Donnelly “worked on emotional regulation and cognitive
reframing” with the [plaintiff]. (Exhibit 28F at 6). The [plaintiff] told her
psychiatrist on July 10, 2014, that she had non-Hodgkin’s lymphoma. (Exhibit
28F at 7; 27F at 1). In response, the psychiatrist discontinued treatment with
Tegretol. (Exhibit 28F at 7; 27F at 1). Mr. Donnelly was still working on
“reframing” the [plaintiff’s] “cognitive thought processes” on July 24, 2014.
(Exhibit 28F at 1).

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The [plaintiff] was “all right” on October 13, 2014. (Exhibit 34F at 5). Although
still depressed, the [plaintiff] complained of headaches. (Id.) [Plaintiff] received
diagnoses of bipolar mood disorder and post-traumatic stress syndrome. (Exhibit
28F at 31). [Plaintiff’s] psychiatrist rated her symptoms as moderate. (Id.)
On January 7, 2015, the [plaintiff] alleged that her anxiety and depression had
increased “due to family relational problems.” (Exhibit 34F at 4). Nevertheless,
her treating source continued to rate the [plaintiff’s] symptoms as moderate.
(Exhibit 24F at 2, 3).
Continuing with the five-step sequential evaluation, at step three, the ALJ found
plaintiff did not have an impairment that met or medically equaled one of the listed impairments
in 20 C.F.R., Part 404, Subpart P, Appendix 1. (Tr. 21).
At step four, the ALJ found plaintiff had the residual functional capacity to
perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b). (Tr. 22). The ALJ
added the following restrictions: plaintiff can stand or walk for a total of two hours in an eighthour workday; push or pull occasionally with her lower extremities; climb stairs or ramps
occasionally; never climb ladders, ropes, or scaffolding. Id. Plaintiff can balance with one cane;
stoop or knee occasionally; but, can never crouch or crawl. Id. Plaintiff can reach, handle, finger
or feel frequently and could withstand temperature extremes, heights, vibration, or hazardous
machinery, provided that she avoids concentrated exposure. Id. Plaintiff is unable to perform
complicated tasks and can only engage in simple decision-making. Id. Plaintiff requires a stable
work environment in which there are only occasional changes in work settings, tools and
procedures. Id. Finally, although plaintiff has the occasional ability to interact with supervisors,
co-workers and the public, she has occasional lapses in concentration, persistence, or pace. Id.
The ALJ expressed serious doubt regarding the intensity, persistence and limiting
effects of plaintiff’s symptoms for the reasons set out in the ALJ’s decision. (Tr. 28-29).

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Finally at step five, the ALJ determined plaintiff was unable to perform past
relevant work. (Tr. 30). However, the ALJ found that considering plaintiff’s age, education,
work experience, and residual functional capacity, plaintiff was capable of making a successful
adjustment to other work that existed in significant numbers in the national economy. (Tr. 3132). Thus, the ALJ determined that plaintiff had not been under a disability, as defined in the
Act, from August 15, 2012, through June 2, 2015, the date of this decision. (Tr. 32).
IV.

PLAINTIFF’S CONTENTIONS
Plaintiff argues: (1) the ALJ’s RFC determination is not supported by substantial

evidence; and (2) the ALJ’s determination at step five, is not supported by substantial evidence.
V.

DISCUSSION
The Commissioner’s findings must be affirmed if they are supported by

substantial evidence. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 401. The role of this court is
to determine whether substantial evidence supports the Commissioner’s decision. Williams v.
Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). After review of the record, plaintiff’s request for
review is denied.
A. Claim One: Whether the ALJ’s RFC Determination was Supported by Substantial
Evidence
Plaintiff argues that the ALJ’s RFC determination is not supported by substantial
evidence. Pl. Brief at 3-8. Specifically, plaintiff argues that the ALJ failed to weigh the opinions
of plaintiff’s treating psychiatrist, Dr. Oyefule, treating therapist, Joseph Donnelly, M.S., and the
state agency medical consultant, Dr. Marmar. Id. The plaintiff also argues that the ALJ erred in
giving no weight to the opinion of plaintiff’s physician, Dr. Rock, due to the fact that he
completed a checkmark form delineating plaintiff’s abilities. Id. In response, the Commissioner
argues that the ALJ was not required to give substantial weight to Mr. Donnelly’s opinion, as it
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was inconsistent with the medical evidence. Def. Resp. at 6-8. Further, the Commissioner
argues that the ALJ did not err in rejecting Dr. Marmar’s opinion due to the fact that Dr. Marmar
did not review the medical evidence and therefore lacked an understanding of plaintiff’s ability
to function. Def. Resp. at 9. Finally, the Commissioner argues that the ALJ was entitled to reject
Dr. Rock’s checklist based on long-settled case law in the Third Circuit. Def. Resp. at 8-9.
The regulations provide that an ALJ has the final responsibility in determining a
claimant’s residual functional capacity. 20 C.F.R. § 404.1546. The residual functional capacity
assessment is a function-by-function assessment based upon all of the relevant evidence of an
individual’s ability to do work-related activities despite the limitations caused by his or her
impairment(s). 20 C.F.R. § 404.1545(a); see also Burnett v. Comm’r of Soc. Sec., 220 F.3d 112,
121 (3d Cir. 2000). The ALJ must consider all the evidence of record, including medical signs
and laboratory findings, daily activities, medical source statements, and a claimant’s medical
history. SSR 96-8p; Mullin v. Apfel, 79 F. Supp. 2d 544, 548 (E.D. Pa. 2000). An ALJ’s
residual functional capacity findings must be supported by the medical evidence. Doak v.
Heckler, 790 F.2d 26, 29 (3d Cir. 1986). The ALJ is not bound by a treating physician’s opinion
of residual functional capacity and the ALJ is entitled to reject the opinion if there is a lack of
supporting data in the record or the opinion is contrary to the medical evidence. See Chandler,
667 F.3d at 361 (quoting Brown v. Astrue, 649 F.3d 193, 197 n. 2 (3d Cir. 2011)); see also
Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir. 1985).
The ALJ found plaintiff had the residual functional capacity to perform light work
as defined in 20 C.F.R. 404.1567(b) and 416.967(b). (Tr. 22). The ALJ added the following
restrictions: plaintiff can stand or walk for a total of two hours in an eight-hour workday; push or
pull occasionally with her lower extremities; climb stairs or ramps occasionally; never climb

14

ladders, ropes, or scaffolding. Id. Plaintiff can balance with one cane; stoop or kneel
occasionally; but, can never crouch or crawl. Id. Plaintiff can reach, handle, finger or feel
frequently and can withstand temperature extremes, heights, vibration, or hazardous machinery,
provided that she avoids concentrated exposure. Id. Plaintiff is unable to perform complicated
tasks and can only engage in simple decision-making. Id. Plaintiff requires a stable work
environment in which there are only occasional changes in work settings, tools and procedures.
Id. Finally, although plaintiff has the occasional ability to interact with supervisors, co-workers
and the public, she has occasional lapses in concentration, persistence, or pace. Id.
In determining plaintiff’s RFC, the ALJ is only required to include limitations
credibly established by medical evidence and not every limitation alleged. Rutherford, 399 F.3d
at 554. Here, the ALJ considered the medical evidence, physicians’ opinions, state agency
medical consultants, and plaintiff’s subjective complaints and made accommodations for them in
determining plaintiff’s residual functional capacity. The ALJ explained the reasons for giving
Mr. Donnelly, Dr. Oyefule, Dr. Marmar and Dr. Rock’s opinions little or no weight.
1. Dr. Oyefule
On April 23, 2014, Dr. Oyefule, plaintiff’s psychiatrist, drafted a letter in which
he stated that plaintiff’s “current stress factors in her life have made it impossible for her to
function at a normal level including physical health problems.” The ALJ rejected this opinion,
as it was “contrary to the psychiatrist’s contemporaneously recorded treatment notes.” (Tr. 30).
The ALJ cited the fact that Dr. Oyefule marked plaintiff’s impairments as moderate. Id.
Specifically, Dr. Oyefule gave plaintiff a global assessment function (GAF) score of 60 on a

15

March 5, 2014 adult psychiatric evaluation.1 A GAF score of 60 indicates moderate symptoms or
moderate difficulty in social, occupational or school functioning. While we recognize that
plaintiff’s GAF score was apparently 65 the prior year, indicating mild symptoms, an increase to
only moderate symptoms does contradict the severity of plaintiff’s symptoms and functional
ability as described by Dr. Oyefule in his correspondence less than two months later.2
Further, the GAF scores provided by Dr. Oyefule are consistent with other GAF
scores in the record. On October 11, 2012, Mr. Donnelly and his supervisor, Christine TorresMatrullo, completed an Initial Biopsychosocial Assessment and gave plaintiff a current GAF of
60 and a 70 for the past year. (Exhibit 10F at 4; Exhibit 13F at 11). In addition, a treatment plan
from Bucks County Mental Health dated January 7, 2015 indicated plaintiff’s GAF was 65,
indicating mild symptoms. (Exhibit 34F at 2-3).3
We also agree with the Commissioner’s argument that the state agency medical
consultant’s findings support a finding of moderate symptoms and limitations. (Exhibit 22F).
During a mental status examination, Marged Lindner, Ph.D. found that plaintiff displayed
appropriate eye contact, although her motor behavior was slightly restless. Id. Plaintiff’s voice
was clear and her expressive language was adequate. Id. Plaintiff demonstrated coherent and
goal directed thought process with no evidence of hallucinations, delusions or paranoia. Id.
Plaintiff also had full affect and appropriate thought content, although she expresses anxiety and
some anger at her current situation, along with frequent tearfulness when discussing her history
and current limitations. Id. Plaintiff’s mood was dysthymic, her sensorium was clear and
1 While the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013)
(“DSM–V”) has discontinued the use of GAF scores, GAF scores remain medical evidence. GAF scores were used
by “mental health clinicians and doctors to rate the social, occupational, and psychological functioning of adults.”
2 Although Dr. Oyefule indicated on the psychiatric evaluation that plaintiff’s GAF score went from a 65 the
previous year to a 60 in 2014, records from Dr. Oyefule that predated the March 5, 2014 psychiatric evaluation were
not provided.
3 The clinician’s signature is illegible. Although Mr. Donnelly and Dr. Oyefule are both providers at Bucks County
Mental Health, the clinician’s signature on the treatment plan do not match either of their signatures.

16

plaintiff was oriented. Id. Plaintiff’s attention and concentration were intact and her recent and
remote memory skills were only mildly impaired. Id. Finally, plaintiff’s cognitive functioning
was average, her insight was good and her judgment was fair. Id.
In light of the above evidence, we do not believe that the ALJ erred in rejecting
Dr. Oyefule’s opinion.
2. Joseph Donnelly, M.S.
The ALJ also found that Mr. Donnelly’s opinion was not supported by the treatment
notes. (Tr. 29). In making this determination, the ALJ relied on testimony from Dr. Braun, a
medical expert in psychology, and a review of the medical records. The ALJ explained that Mr.
Donnelly’s treatment notes and opinions did not correspond to Dr. Oyefule’s notes. Id.
Specifically, the ALJ noted that while Mr. Donnelly characterized plaintiff’s symptoms as
“extreme,” Dr. Oyefule found plaintiff’s symptoms were only moderate. Id. The ALJ also found
that “Mr. Donnelly’s assertion that the [plaintiff] ‘struggles’ with memory, concentration, and
receptive processing impairment was not observed by [Dr. Oyefule].” Id. We agree that Mr.
Donnelly’s treatment notes were not consistent with the treatment records as a whole and that the
ALJ was, therefore, free to reject Mr. Donnelly’s opinion.
The ALJ may choose whom to credit when faced with a conflict, however he
“cannot reject evidence for no reason or for the wrong reason.” Diaz v. Comm'r of Soc.
Security, 577 F.3d 500, 505 (3d Cir. 2009). Although, in general, “the opinions of a doctor who
has never examined a patient have less probative force as a general matter, than they would have
had if the doctor had treated or examined him,” Morales v. Apfel, 225 F.3d 310, 320 (3d Cir.
2000)(internal quotations omitted), where “the opinion of a treating physician conflicts with that
of a non-treating, non-examining physician, the ALJ may choose whom to credit.” Id. at 317,

17

see also Dula v. Barnhardt, 129 Fed. Appx. 715, 718-19 (3d Cir. 2005). In choosing to reject the
treating physician’s assessment, an ALJ may not make “speculative inferences from medical
reports” and may not reject a treating physician’s opinion “due to his or her own credibility
judgments, speculation or lay opinion.” Morales v. Apfel, 225 F.3d 310, 317-318 (3d Cir. 2000)
(quotations omitted). Further, when disregarding such an opinion, the ALJ must explain on the
record his reasons for doing so. Brewster v. Heckler, 786 F.2d 581, 585 (3d Cir. 1986). It
cannot be “for no reason or for the wrong reason.” Morales, 225 F.3d at 317 (internal quotation
marks omitted). At the end of the analysis, however, “[t]he ALJ—not treating or examining
physicians or State agency consultants—must make the ultimate disability and [residual
functional capacity] determinations.” Chandler, 667 F.3d at 359. “The law is clear . . . that the
opinion of a treating physician does not bind the ALJ on the issue of functional capacity.”
Brown, 649 F.3d at 197, n. 2.
As explained above, the ALJ reviewed Mr. Donnelly’s treatment notes and did not
find his opinions regarding plaintiff’s functionality and abilities to be credible in light of the
medical evidence as a whole. We find that the ALJ adequately explained his reasoning for
rejecting Mr. Donnelly’s opinion.
3. Joel Marmar, M.D.
The ALJ also rejected Dr. Marmar’s opinion due to inconsistencies between Dr.
Marmar’s physical examination of the plaintiff and his opinion regarding the plaintiff’s abilities,
and the fact that it appeared that Dr. Marmar did not review the objective medical evidence of
record. (Tr. 30). Specifically, the ALJ took issue with the fact that Dr. Marmar found that
plaintiff could never reach, handle, finger or feel, despite the fact that “[plaintiff] did not allow
examination of her ability to use her hands and fingers.” (Tr. 30). Further, the ALJ did not find

18

Dr. Marmar’s opinion credible, due to the fact that Dr. Marmar relied on plaintiff’s
representation that she had been diagnosed with a cerebral vascular accident and fibromyalgia,
without supporting medical evidence. Id. A 2012 MRI showed a “tiny” aneurysm (Exhibit 31F
at 11; 16F at 12, 13, 15, 16; 2F at 112, 113) and it was “possible” that plaintiff had a transient
ischemic attack in 2014 (Exhibit 31F at 35), however, subsequent neurological examinations,
diagnostic studies and a neuro-ophthalmologic examination were all normal. (Exhibit 5F at 3;
Exhibit 15F; Exhibit 16F; Exhibit 17F). We agree with the Commissioner’s argument that
plaintiff has failed to show that her impairment, the possible CVA, “resulted in disabling
limitations.” See Phillips v. Barnhart, 91 F. App’x 775, 780 (3d Cir. 2004).
With regard to the allegation that plaintiff suffers from fibromyalgia, plaintiff’s
counsel admits that “[t]here is no indication in the record concerning when she was diagnosed or
how.” Pl. Brief at 6. Further, we agree with the ALJ that “responses to trigger point testing by
[Dr. Marmar] on one occasion do not constitute sufficient evidence to support such a diagnosis
pursuant to Social Security Ruling 12-2p.”
Accordingly, the ALJ was entitled to reject Dr. Marmar’s opinion.
4. Anthony Rock, D.O.
Finally, plaintiff argues that the ALJ erred when he “gave no weight to [Dr.
Rock’s opinion] because it was a checkmark form and he did not review evidence.” Pl. Brief at
3. The ALJ determined that:
The certification of Dr. Anthony Rock that the [plaintiff] is permanently disabled
because of residual effects of cerebral vascular accident lacks substantial
probative value. (Exhibit 12F at 5; 36F). As we have seen, there is no evidence
that the [plaintiff] had a cerebral vascular accident and no evidence of residual
effects of the same. Dr. Rock did not bother to review the medical evidence. He
also did not bother to provide a reasoned explanation for the checkmarks he made
on a form prepared for him to recommend the [plaintiff] for welfare.

19

(Tr. 30). As discussed supra, we agree that plaintiff has failed to show that the cerebral vascular
accident has resulted in disabling limitations as required by Phillips v. Barnhart, 91 F. App’x
775, 780 (3d Cir. 2004).
Further, we agree with the Commissioner’s argument that in the Third Circuit,
“[f]orm reports in which a physician’s obligation is only to check a box or fill in a blank are
weak evidence at best” and that “where these so-called ‘reports are unaccompanied by thorough
written reports, their reliability is suspect.” Mason v. Shalala, 9945 F.2d 1058, 1056 (3d Cir.
1993); see also Schmidt v. Comm’r of Soc. Sec., 465 Fed. App’x 193, 197 (3d Cir. 2012);
Griffin v. Comm’r of Soc. Sec., 305 F. App’x 886, 890-91 (3d Cir. 2009); Drejka v. Comm’r of
Soc. Sec., 61 F. App’x 778, 782 (3d Cir. 2003); Acevedo v. Colvin, 2013 WL 6667797 4 (E.D.
Pa. Dec. 18, 2013).
Plaintiff has failed to satisfy the burden of showing that the ALJ’s decision to
reject the opinions of Dr. Oyefule, Mr. Donnelly, Dr. Marmar, and Dr. Rock was not supported
by substantial evidence. The ALJ reviewed the medical evidence of record and determined that
when taken as a whole, the treatment records did not support the providers’ opinions regarding
plaintiff’s disability. The ALJ adequately explained the reasons for giving no weight to the
opinions offered by Dr. Oyefule, Mr. Donnelly, Dr. Marmar and Dr. Rock. The ALJ was not
bound by the providers’ opinions by virtue of the fact that they were treating physicians. The
ALJ was required to make the ultimate disability and residual functional capacity determinations,
and the fact that the ALJ’s findings contradicted plaintiff’s providers’ opinions does not mean
that those findings lacked substantial support. As such, plaintiff’ request for review is denied as
to this issue.
B. Claim Two: Whether the ALJ’s Step Five Determination is Supported by Substantial
Evidence
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Plaintiff argues that the ALJ erred in the Step Five determination regarding
plaintiff’s ability to adjust to other work. Pl. Brief at 8-10. Specifically, plaintiff argues that her
mental impairments cause her to be off task for 30% of the workday, and that she is therefore,
unable to work. Id. Plaintiff points out that “occasional” as defined by the Social Security
Administration means “occurring from very little up to one-third of the time.” SSR 83-10.
Plaintiff encourages us to assume that occasional lapses in concentration occur 30% of the
time—the higher end of “occasional.” Further, plaintiff argues that the vocational expert
testified that given the limitation added to the RFC to account for plaintiff’s occasional lapses in
concentration, that there are no jobs in the national economy to which she could adjust. We
disagree with this characterization of the testimony. While the vocational expert initially testified
that there would be no jobs in the national economy to accommodate plaintiff’s lapses in
concentration, the ALJ appropriately clarified and corrected the vocational expert’s
understanding of the term “occasionally.”
[ALJ]: All right. So I’m going to give you the following hypothetical, which will
be hypothetical #2. Here, assume if you will, that someone can perform light
exertion, standing and walking for a total of two hours in an eight-hour day. Push
and pull would be limited to occasionally with the lower extremities. Climb stairs
and/or ramps, occasionally. Ladders, ropes, scaffolds, never. Balance,
occasionally with one cane. Stoop occasionally. Kneel occasionally. Crouch,
never. Crawl, never. Reach, handle, finger and feel would all be frequently. Must
avoid concentrated exposure to temperature extremes, heights, vibration and
hazardous machinery.
.
.
.
[ALJ]: …I’m also going to give you the following mental limitations. No
complicated tasks. Simple decision-making only. Requires a low, stable work
environment in which there are no more than occasional changes in work settings,
tools and procedures. Occasional ability to interact with supervisors, coworkers
and the public. And must avoid concentrated exposure, no, and occasional lapses
in concentration, persistence or pace. Do you have all those assumptions, Ms.
Shallo –Shullo, I’m sorry?
[VE]: Yes, Just to double check, standing and walking was only two hours?
21

[ALJ]: Correct.
[VE]: Was there a sitting limitation?
[ALJ]: No, well, in accordance with light exertion there would be six hours of
sitting out of eight. Anything else that you wish to know?
[VE]: Yes. Just to double check, standing and walking was only two hours?
[ALJ]: Correct.
[VE]: Was there a sitting limitation?
[ALJ]: No, well, in accordance with a light exertion there would be six hours of
sitting out of eight. Anything else that you wish to know?
[VE]: No, your honor.
.

.

.

[ALJ]: All right. So the question I have for you now, would there be any jobs that
could accommodate those assumptions?
[VE]: Your Honor, with those assumptions, the sitting six hours and the standing
and walking for two hours, this person will be restricted to sedentary work?
[ALJ]: Correct.
[VE]: And the occasional inability to maintain concentration and persistence and
pace, occasional will be in the form of 30% based on that the first [INAUDIBLE]
being off task at a month’s time, there will be no jobs in the national economy.
[ALJ]: But isn’t it correct that the Department of Labor defines occasional
specifically? Am I correct?
[VE]: Yes.
[ALJ]: And it defines it as intermittently up to one-third of a day. Is that correct?
[VE]: That is correct.
[ALJ]: In fact, the Department of Labor does not use 30%. People extrapolate that
from the fact that it says intermittently up to one-third of the day.
[VE]: That is correct.
[ALJ]: Okay. Well, with that clarification, would there be any jobs?
22

[VE]: At the sedentary exertional level the position as an adjuster. That is an
unskilled position, SVP of 2. National numbers are 60,000.
(Tr. 92-95). While we believe the testimony speaks for itself, following this exchange, the
vocational expert proceeded to identify additional jobs that would fit the hypothetical provided
by the ALJ, that the plaintiff, by extension, would be capable of performing. Therefore, we find
that when taken as a whole, the vocational expert’s testimony does not contradict the RFC as
determined by the ALJ. Accordingly, this claim is denied.
An order follows:

[Court Note: Heather MacGillivray, Esquire, significantly contributed to the research and preparation of
this Report and Recommendation.]

23