Quildon v. Astrue

Filing 9

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 04/08/14. (ma)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH L. QUILDON, JR.,
Plaintiff
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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No. 1:12-CV-2325
(Judge Caldwell)

MEMORANDUM AND ORDER
BACKGROUND
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Joseph L. Quildon, Jr.’s claim for social
security disability insurance benefits and supplemental security
income benefits.
Disability insurance benefits are paid to an individual
if that individual is disabled and “insured,” that is, the
individual has worked long enough and paid social security taxes.
The last date that a claimant meets the requirements of being
insured is commonly referred to as the “date last insured.”

It is

undisputed that Quildon met the insured status requirements of the
Social Security Act through December 31, 2012. Tr. 19, 21 and
125.1
Supplemental security income is a federal income
supplement program funded by general tax revenues (not social
1. References to “Tr.___” are to pages of the administrative
record filed by the Defendant on January 22, 2013.

security taxes).

It is designed to help aged, blind or other

disabled individuals who have little or no income.

Insured status

is irrelevant in determining a claimant’s eligibility for
supplemental security income benefits.
Quildon protectively filed2 an application for
disability insurance benefits on December 4, 2008, and an
application for supplemental security income benefits on December
30, 2008. Tr. 19, 85-86, 125 and 110-124.

On May 26, 2009, the

Bureau of Disability Determination3 denied Quildon’s applications.
Tr. 19 and 89-97. On June 3, 2009, Quildon requested a hearing
before an administrative law judge. Tr. 19 and 98-99.

After about

11 months had passed, a hearing was held on May 7, 2010. Tr. 3465.

On June 22, 2010, the administrative law judge issued a

decision denying Quildon’s applications. Tr. 19-30. As will be
explained in more detail infra the administrative law judge found
that Quildon had the capacity to perform a limited range of
sedentary work4 and identified three positions, a visual

2. Protective filing is a term for the first time an individual
contacts the Social Security Administration to file a claim for
benefits. A protective filing date allows an individual to have
an earlier application date than the date the application is
actually signed.
3. The Bureau of Disability Determination is an agency of the
state which initially evaluates applications for disability
insurance benefits and supplemental security income benefits on
behalf of the Social Security Administration. Tr. 89 and 93.
4. The terms sedentary, light, medium and heavy work are defined
in the regulations of the Social Security Administration as
(continued...)
2

inspector, bench assembler and surveillance monitor, which Quildon
could perform. Tr. 29. On August 17, 2010, Quildon requested that
the Appeals Council review the administrative law judge’s decision
and after about 25 months had elapsed the Appeals Council on
4. (...continued)
follows:
(a) Sedentary work. Sedentary work involves lifting no
more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are
met.
(b) Light work. Light work involves lifting no more
than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is
in this category when it requires a good deal of
walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a
full or wide range of light work, you must have the
ability to do substantially all of these activities.
If someone can do light work, we determine that he or
she can also do sedentary work, unless there are
additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
(c) Medium work. Medium work involves lifting no more
than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she
can do sedentary and light work.
(d) Heavy work. Heavy work involves lifting no more
than 100 pounds at a time with frequent lifting or
carrying of objects weighing up to 50 pounds. If
someone can do heavy work, we determine that he or she
can also do medium, light, and sedentary work.
20 C.F.R. §§ 404.1567 and 416.967.
3

September 27, 2012, concluded that there was no basis upon which
to grant Quildon’s request for review.

Tr. 1-5 and 13-15.

Quildon then filed a complaint in this court on November
20, 2012.

Supporting and opposing briefs were submitted and the

appeal5 became ripe for disposition on April 23, 2013, when
Quildon filed a reply brief.
Quildon was born in the United States on December 8,
1965, and at all times relevant to this matter was considered a
“younger individual”6 whose age would not seriously impact his
ability to adjust to other work. 20 C.F.R. §§ 404.1563(c) and
416.963(c); Tr. 41, 85-86 and 117.
Quildon, who graduated from high school and then
completed two years of college in February, 1987, can read, write,
speak and understand the English language and perform basic
mathematical functions.

Tr. 142, 148 and 162.

During his

elementary and secondary schooling, Quildon attended regular
education classes. Tr. 148.
Quildon has past relevant employment as a bus driver for
the New York City Transit Authority which was described as semi-

5. Under the Local Rules of Court “[a] civil action brought to
review a decision of the Social Security Administration denying a
claim for social security disability benefits” is “adjudicated as
an appeal.” M.D.Pa. Local Rule 83.40.1.
6. The Social Security regulations state that “[t]he term
younger individual is used to denote an individual 18 through
49.” 20 C.F.R., Part 404, Subpart P, Appendix 2, § 201(h)(1). At
the time of the administrative hearing and the administrative law
judge’s decision Quildon was 44 years old.
4

skilled, medium work by a vocational expert.7

Tr. 28, 58, 144 and

130-132.
Records of the Social Security Administration reveal
that Quildon had earnings in the years 1982 through 1983 and 1985
through 2008, a total of 26 years. Tr. 106. Quildon’s average
earnings during those years were $34,449.70. Id.

Quildon’s

earnings ranged from a low of $247.85 in 2008 to a high of
$63,425.97 in 2001. Id.
$895,692.34. Id.

Quildon’s total earnings were

However, Quildon’s reported earnings in 2007

($9642.33) and 2008 were from accrued sick leave, vacation time
and withdrawal of funds from a 401K retirement plan. Tr. 38.
Quildon contends that he became disable on December 29,
2006, because of both physical and mental impairments. Tr. 110,
117 and 143.

Quildon identified depression as his mental health

impairment and the pain associated with arthritis and a back and
ankle injury as his physical impairment. Tr. 38-39, 143 and 172.
Quildon claims that he is unable to stand, walk or sit for long
periods of time; he cannot carry heavy objects; and he suffers

7. Past relevant employment in the present case means work
performed by Quildon during the 15 years prior to the date his
claim for disability was adjudicated by the Commissioner. 20
C.F.R. §§ 404.1560 and 404.1565. The vocational expert also
testified that Quildon had past relevant work as a mail carrier
for the United States Postal Service which was described as semiskilled medium work and the administrative law judge so found.
Tr. 28 and 58. However, the record reveals that Quildon last
worked for the U.S. Postal Service in 1990 which is not within
the 15-year period for consideration as past relevant work. Tr.
130, 144 and 151. This error is of no significance because both
positions are classified as semi-skilled, medium work.
5

from constant pain which causes him to be depressed. Tr. 143.

The

impetus for Quildon’s alleged disabling impairments was a motor
vehicle accident that occurred on December 29, 2006, which also
aggravated some pre-existing conditions sustained in a 2005 motorvehicle accident. Tr. 38-39, 143 and 195.

Quildon last worked on

December 28, 2006. Tr. 143.
The record reveals that Quildon is 6'5" tall and weighs
over 400 pounds.

Tr. 37 and 142. The record further reveals that

his weight was over 400 pounds well prior to his 2006 motor
vehicle accident. Tr. 194.

A person of such height and weight is

considered morbidly obese.

Quildon at the administrative hearing

admitted that the ankle fracture which he sustained in the 2006
motor vehicle accident had healed and that his main problems were
residual ankle stiffness, back pain, periodic numbness down the
inner thigh of the right leg into the knee, left hip pain, and
depression.

Tr. 39, 50-51 and 53. Quildon also testified that the

pain medications only take the “edge off” of his pain and they
make him “very drowsy” and he sometimes passes out. Tr. 45.

When

asked why he could not perform a sedentary job where he could sit
and stand at will, he testified that he has constant pain and that
he has to periodically lay down to relieve his pain. Tr. 57.
In documents filed with the Social Security
Administration as well as during his testimony at the
administrative hearing Quildon stated that he lives in a house
with his mother who suffers from advanced Alzheimer’s disease. Tr.
6

41 and 159-160.

Quildon stated that he was the primary care giver

for his mother, including preparing meals and cleaning for her.
Tr. 41-42 and 160.

Quildon stated that he had no problems with

personal care, including bathing, shaving, feeding himself, and
using the toilet, except difficulty putting on socks. Tr. 160.
Quildon needs no reminders to take care of personal items or take
medicines. Tr. 161.

Quildon is able to engage in shopping,

housecleaning, cooking and driving short distances. Tr. 161-162.
Quildon’s hobbies include watching TV, chess and playing cards.
Tr. 163.

Quildon admitted that he socializes with other

individuals, including sometimes playing cards, drinking and
talking with others in person and by way of a computer. Id.

When

asked to identify items on a disability form which were affected
by his illnesses or conditions, Quildon checked lifting,
squatting, bending, standing, reaching, walking, sitting, kneeling
and stair climbing but did not check talking, hearing, seeing,
memory, completing tasks, concentration, understanding, following
instructions, using his hands, and getting along with others. Tr.
164. Quildon at the administrative hearing testified that he used
a cane for stability and to minimize his back pain. Tr. 52.
Quildon in his appeal brief has mentioned that the
Commissioner with respect to a subsequent application for
disability insurance benefits awarded him benefits commencing on
June 23, 2010, one day after the adverse decision by the
administrative law judge which is the subject of the present
7

appeal. The issue in this appeal is whether or not substantial
evidence supports the decision of the administrative law judge
that Quildon had the ability to engage in a limited range of
sedentary work at the time of the administrative hearing and prior
thereto.
For the reasons set forth below we will affirm the
decision of the Commissioner.
STANDARD OF REVIEW
When considering a social security appeal, we have
plenary review of all legal issues decided by the Commissioner.
See Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d
Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin.,

181

F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d
857, 858 (3d Cir. 1995).

However, our review of the

Commissioner’s findings of fact pursuant to 42 U.S.C. § 405(g) is
to determine whether those findings are supported by "substantial
evidence."

Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.

1988); Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
Factual findings which are supported by substantial evidence must
be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001)(“Where the ALJ’s findings of fact are supported
by substantial evidence, we are bound by those findings, even if
we would have decided the factual inquiry differently.”); Cotter
v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)(“Findings of fact by
the Secretary must be accepted as conclusive by a reviewing court
8

if supported by substantial evidence.”);

Keefe v. Shalala, 71

F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176
(4th Cir. 2001);

Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529

n.11 (11th Cir. 1990).
Substantial evidence “does not mean a large or
considerable 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)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197,
229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d
198, 200 (3d Cir. 2008);
(3d Cir. 1999).

Hartranft v. Apfel, 181 F.3d 358, 360

Substantial evidence has been described as more

than a mere scintilla of evidence but less than a preponderance.
Brown, 845 F.2d at 1213.

In an adequately developed factual

record substantial evidence may be "something less than the weight
of the evidence, and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative
agency's finding from being supported by substantial evidence."
Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).
Substantial evidence exists only "in relationship to all
the other evidence in the record," Cotter, 642 F.2d at 706, and
"must take into account whatever in the record fairly detracts
from its weight."
474, 488 (1971).

Universal Camera Corp. v. N.L.R.B., 340 U.S.
A single piece of evidence is not substantial

evidence if the Commissioner ignores countervailing evidence or
9

fails to resolve a conflict created by the evidence.
F.2d at 1064.

Mason, 994

The Commissioner must indicate which evidence was

accepted, which evidence was rejected, and the reasons for
rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642
F.2d at 706-707.

Therefore, a court reviewing the decision of the

Commissioner must scrutinize the record as a whole.

Smith v.

Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v.
Califano, 606 F.2d 403, 407 (3d Cir. 1979).
SEQUENTIAL EVALUATION PROCESS
To receive disability benefits, the plaintiff must
demonstrate an “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. § 432(d)(1)(A).

Furthermore,
[a]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in which
he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for
work. For purposes of the preceding sentence (with
respect to any individual), “work which exists in the
national economy” means work which exists in significant
numbers either in the region where such individual
lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A).
10

The Commissioner utilizes a five-step process in
evaluating disability insurance and supplemental security income
claims.

See 20 C.F.R. §404.1520 and 20 C.F.R. § 416.920; Poulos,

474 F.3d at 91-92.

This process requires the Commissioner to

consider, in sequence, whether a claimant (1) is engaging in
substantial gainful activity,8 (2) has an impairment that is
severe or a combination of impairments that is severe,9 (3) has an
impairment or combination of impairments that meets or equals the
8. If the claimant is engaging in substantial gainful activity,
the claimant is not disabled and the sequential evaluation
proceeds no further. Substantial gainful activity is work that
“involves doing significant and productive physical or mental
duties” and “is done (or intended) for pay or profit.” 20 C.F.R.
§ 404.1510 and 20 C.F.R. § 416.910.
9.
The determination of whether a claimant has any severe
impairments, at step two of the sequential evaluation process, is
a threshold test. 20 C.F.R. §§ 404.1520(c) and 416.920(c). If a
claimant has no impairment or combination of impairments which
significantly limits the claimant’s physical or mental abilities
to perform basic work activities, the claimant is “not disabled”
and the evaluation process ends at step two. Id. If a claimant
has any severe impairments, the evaluation process continues. 20
C.F.R. §§ 404.1520(d)-(g) and 416.920(d)-(g). Furthermore, all
medically determinable impairments, severe and non-severe, are
considered in the subsequent steps of the sequential evaluation
process. 20 C.F.R. §§ 404.1523, 404.1545(a)(2), 416.923 and
416.945(a)(2). An impairment significantly limits a claimant’s
physical or mental abilities when its effect on the claimant to
perform basic work activities is more than slight or minimal.
Basic work activities include the ability to walk, stand, sit,
lift, carry, push, pull, reach, climb, crawl, and handle. 20
C.F.R. § 404.1545(b). An individual’s basic mental or nonexertional abilities include the ability to understand, carry out
and remember simple instructions, and respond appropriately to
supervision, coworkers and work pressures. 20 C.F.R. § 1545(c).
11

requirements of a listed impairment,10 (4) has the residual
functional capacity to return to his or her past work and (5) if
not, whether he or she can perform other work in the national
economy. Id.

As part of step four the administrative law judge

must determine the claimant’s residual functional capacity. Id.11
Residual functional capacity is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis.

See Social

Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A
regular and continuing basis contemplates full-time employment and
is defined as eight hours a day, five days per week or other
similar schedule. The residual functional capacity assessment must
include a discussion of the individual’s abilities.

Id; 20 C.F.R.

§§ 404.1545 and 416.945; Hartranft, 181 F.3d at 359 n.1
10. If the claimant has an impairment or combination of
impairments that meets or equals a listed impairment, the
claimant is disabled. If the claimant does not have an impairment
or combination of impairments that meets or equals a listed
impairment, the sequential evaluation process proceeds to the
next step. 20 C.F.R. § 404.1525 explains that the listing of
impairments “describes for each of the major body systems
impairments that [are] consider[ed] to be severe enough to
prevent an individual from doing any gainful activity, regardless
of his or her age, education, or work experience.” Section
404.1525 also explains that if an impairment does not meet or
medically equal the criteria of a listing an applicant for
benefits may still be found disabled at a later step in the
sequential evaluation process.
11. If the claimant has the residual functional capacity to do
his or her past relevant work, the claimant is not disabled.
12

(“‘Residual functional capacity’ is defined as that which an
individual is still able to do despite the limitations caused by
his or her impairment(s).”).
MEDICAL RECORDS
Before we address the administrative law judge’s
decision and the arguments of counsel, we will review some of the
medical records.

We will commence with Quildon’s medical records

that predate December 29, 2006, the date Quildon alleges that he
became disabled.
The record reveals that Quildon received chiropractic
care from Concetta A. Butera, D.C., of Brooklyn, New York, on
April 26 and 30, 2003, a year in which Quildon earned $61,177.39,
working as a bus driver. Tr. 126 and 222.

The record of these two

appointments is barely legible but we can discern that Quildon at
that time was complaining of neck and low back pain, stiffness and
soreness and muscle spasms. Tr. 222.

After those two chiropractic

treatments we do not encounter any other records from Dr. Butera
until early 2005. Tr. 221.

From March 16, 2005 and up until

December 22, 2006, Quildon had at least 60 appointments with Dr.
Butera. Tr. 186-187, 194 and 203-221.

The records from Dr. Butera

are mostly illegible but it is clear that Quildon was complaining
of neck and low back pain and was being treated for those
conditions.
13

In 2005, Quildon earned $34,299.59, and in 2006 he earned
$35,827.04 working as a bus driver. Tr. 126.
On or about March 25, 2005, Dr. Butera referred Quildon
for a series of x-rays of the lumbar spine and pelvis. Tr. 201202. The x-rays of the lumbar spine revealed minimal degenerative
changes of the thoracolumbar spine and slight narrowing of the
intervertebral spaces at the T12-L1 and L1-L2 levels. Tr. 201.
The x-rays of the pelvis revealed a benign bone lesion
(osteochondroma) located on the right iliac crest.12 Tr. 202.
On August 26, 2006, Quildon underwent a series of x-rays
of the cervical, thoracic and lumbar spines based on an order from
Dr. Butera.

The x-rays of the cervical spine were reported as

normal. Tr. 191. The thoracic spine x-rays revealed multilevel
degenerative changes involving anterior bone spurs, osteophytes,
and no evidence of acute fracture or dislocation of the mid or
lower thoracic spine but it was noted that the study was limited
because of Quildon’s body habitus. Tr. 192.

The lumbar spine x-

rays revealed mild degenerative changes and no acute findings. Tr.
193. Again it was noted that the study was limited because of
Quildon’s body habitus. Id.

12. The iliac crest is a curved ridge along the top of the
largest hip bone, the ileum.
14

A chiropractic treatment note dated August 8, 2005, from
Dr. Butera reveals that Quildon weighed 435 pounds and that he was
involved in a work-related motor vehicle accident on August 1,
2005. Tr. 195.

As a result of injuries sustained in that accident

Quildon on or about September 14, 2006, was awarded 10.6 weeks of
workers’ compensation benefits by the Workers’ Compensation Board
of the State of New York covering the period March 24, 2006 to
June 7, 2006. Tr. 233. The total amount of the award was $4240.00.
Id.
Chiropractic examination notes from Dr. Butera dated
October 20, 2005, and February 9, 2006, reveal that Quildon
weighed 435 pounds. Tr. 186-187.

In a letter to Transamerica

Insurance Company on November 9, 2005, Dr. Butera stated that he
diagnosed Quildon as suffering from the following 14 conditions:
(1) status post cervical strain or sprain injury; (2) cervical
vertebral dysfunction; (3) cervical radiculopathy; (4) cervical
paravertebral muscle spasm; (5) straightening of cervical
lordosis; (6) status post thoracic strain or sprain injury; (7)
thoracic vertebral dysfunction; (8) thoracic radiculopathy; (9)
status post lumbosacral strain or sprain injury; (10) thoracic and
lumbosacral paravertebral muscle spasm and splinting; (11)
lumbosacral vertebral dysfunction; (12) bulging disc and disc
dessication of L3-L4 with flattening of the thecal sac; (13)
15

herniated disc and disc dessication at L5-S1 abutting the
descending nerve root; and (14) instability of the lumbosacral
spine.13 Tr. 223.
On September 8 and December 27, 2005, and January 5 and
May 8, 2006, Quildon had appointments with Fred Montas, M.D.,
located in Brooklyn, New York. Tr. 182-184. The treatment notes of
these appointments are totally illegible other than we can discern
that Quildon on September 8, 2005, complained of headaches, neck
pain, middle and lower back pain and numbness in the right leg.
Tr. 182.
On September 22, 2005, Quildon underwent an MRI of the
cervical spine which revealed straightening of the cervical
lordosis (the normal curvature of the cervical spine) possibly
reflecting the presence of muscle spasm or possibly related to
Quildon’s large body habitus. Tr. 188.

The cervical discs were

normal in height and contour without bulging or herniation. Id.
There was no evidence of fracture, dislocation or subluxation. Id.

13. A chiropractor is not an “acceptable medical source” under
the Social Security regulations “to establish whether [a
claimant] has a medically determinable impairment.” 20 C.F.R. §
404.1513(a). A chiropractor may be considered an “other source[]
to show the severity of [a claimant’s] impairment(s) and how it
affects [the claimant’s] ability to work.” 20 C.F.R. §
404.1513(d). Dr. Butera did not provide a functional assessment
at any point regarding Quildon’s work-related functional ability,
including his ability to sit, stand, walk, and lift or carry
items.
16

Also, on September 22, 2005, Quildon underwent and MRI of the
lumbar spine which revealed dessication and mild bulging of the
L3-L4 disc associated with minimal flattening of the thecal sac;14
and dessication and a right posterolateral disc herniation at the
L5-S1 level abutting the descending nerve root. Tr. 190-191.
On December 30, 2006, after the alleged disability onset
date, Quildon was transported by way of ambulance to the Pocono
Medical Center Emergency Department after he was involved in a
motor vehicle accident. Tr. 247-253.

Quildon allegedly fell

asleep at the wheel, ran off the road and crashed into a tree. Tr.
247.

Upon arrival at the emergency department it was reported

that Quildon was involved in the accident 1 hour prior to arrival,
he was the driver of the vehicle and he was not wearing his safety
belt. Id.

Also, there was an odor of alcoholic beverage on his

breath.15 Id.

Quildon denied any pain other than some discomfort

in his left ankle and some chest pain on the right side. Tr. 248250.

Quildon had full range of motion of the neck; he denied

paresthesias (pins, needs, tingling) and extremity weakness; he

14. The thecal sac is an elongated tube that extends from the
brain to the end of the spine in which the spinal cord and nerve
roots run. It is a covering (membrane) that surrounds the spinal
cord and contains cerebral spinal fluid. Herniated discs which
impinge the thecal sac may or may not cause pain symptoms.
15. Subsequent laboratory tests revealed that Quildon had a
alcohol level of 0.17%, twice the legal limit. Tr. 252. The
legal limit in Pennsylvania is .08 percent. 75 Pa.C.S.A. § 3731.
17

had no obvious signs of trauma to the back; he rated his pain as a
3 on scale of 1 to 10; he had full range of motion of the upper
extremities and his sensation was intact; he had a small abrasion
to the left wrist but denied pain and there was no deformity; he
had full range of motion of the lower extremities; and he denied
depression. Tr. 248-252. The results of a physical examination
were essentially normal other than some diffuse tenderness over
the right side of the chest and tenderness over the medial
malleolus of the left lower extremity(the bony prominence on the
inner side of the ankle). Tr. 251-252. It was reported that
Quildon was oriented to person, place and time and had a normal
affect. Tr. 252.

Various diagnostic tests were ordered, including

x-rays of the left ankle. Tr. 248 and 252. The x-rays of the left
ankle revealed an “oblique minimally displaced fracture of the
medial malleolus.” Tr. 255. After the physical examination and xrays, the diagnostic assessment was that Quildon suffered from a
fracture of the left ankle. Tr. 252.

A splint was applied to

Quildon’s left ankle; he was advised to take ibuprofen over the
counter, and he was given a prescription for Percocet 1-2 tablets
every 4-6 hours as needed. Tr. 252.

At discharge from the

hospital, he was also advised to follow-up with an orthopedic
physician within 1 week. Id.

18

On January 8, 2007, Quildon had an appointment with
Christopher DiPasquale, D.O., an orthopedist with Mountain Valley
Orthopedics, P.C., located in East Stroudsburg, Pennsylvania. Tr.
431-430.

Quildon told Dr. DiPasquale “he was a restrained

passenger” in the vehicle but oddly it is than reported Quildon
stated that he “fell asleep and struck a tree.” Tr. 431. Quildon
told Dr. DiPasquale that his pain in the ankle was presently
“mild.” Id. When Dr. DiPasquale reviewed Quildon’s systems,
Quildon reported “recent body aches, constant bothersome cough,
pain, tightness or pressure in the front or back of the chest,
back/neck pain, [and] weight loss.” Id.
negative. Id.

All other systems were

It was noted that Quildon had a prior medical

history of asthma. Id.

Quildon’s current medications included

oxycondone and albuterol. Id.

A physical examination of Quildon

by Dr. DiPasquale revealed that Quildon was “well-developed, wellnourished, awake, alert and oriented.” Id.

Quildon was wearing a

U-splint on the left ankle and using a cane. Id. He weighed 424
pounds. Id. There was tenderness along the medial aspect of the
left ankle. Id. However, there was no swelling and he had intact
pulses and sensation to light touch in the lower extremities. Id.
Dr. DiPasquale reviewed recent x-rays of Quildon’s ankle and noted
that he had “a mildly displaced medial malleolus fracture.” Id.
His diagnostic assessment was “[l]eft ankle medial malleolus

19

fracture.” Id.

Dr. DiPasquale ordered a CT scan of the left ankle

to further evaluate the fracture and determine whether or not
Quildon needed surgery. Tr. 430. However, Dr. DiPasquale in the
same document refers to ordering a CT scan and than inconsistently
states that he will see Quildon in a follow-up appointment after
he receives the results of an MRI. Id.

Quildon was placed in a

splint with instructions to remain absolutely non weight bearing
and he was given a prescription for crutches. Id.
After reviewing a CT study of Quildon’s left ankle, Dr.
DiPasquale had a telephone conversation with Quildon on January
10, 2007, and recommended surgery because of the amount of
displacement of the medial malleolus fracture. Tr. 428-429.

Dr.

DiPasquale then performed a complete physical of Quildon on
January 11, 2007, and again recommended surgery. Id.

Quildon

agreed initially to have the surgery performed and it was
scheduled for January 12, 2007, at the Pocono Medical Center. Id.
Quildon, however, on January 12, 2007, contacted the Pocono Medial
Center and reported that he did not have transportation. Tr. 428.
Consequently, the surgery was cancelled and an appointment
scheduled with Dr. DiPasquale for January 16, 2007. Id.
At the appointment on January 16, 2007, x-rays were
obtained which “demonstrate[d] minimal further displacement of the
fracture” and Quildon reported that he ambulated on the ankle and
20

he was “not having much pain.” Tr. 427. A physical examination
revealed that Quildon ambulated with crutches and was able to bear
weight on the left side. Id.

Dr. DiPasquale told Quildon that he

could “make [the fracture] better with surgery” but Quildon
declined surgery and opted for the use of an ankle boot where he
would remain non weight bearing. Id.

Dr. DiPasquale warned

Quildon that if it failed to heal or healed in an unacceptable
position, Quildon might have to have “surgery in the long run.”
Id. Quildon voiced understanding and proceeded with the nonoperative treatment. Id.
An x-ray performed on or about January 23, 2007,
revealed “early callus formation at the fracture without further
displacement.” Tr. 426.

After performing a physical examination

and reviewing an x-ray on February 6, 2007, Dr. DiPasquale stated
that Quildon’s fracture was healing. Tr. 425.

On March 13, 2007,

Dr. DiPasquale converted Quildon to an air splint, and informed
Quildon that he could “weight-bear as tolerated” on his left foot
when wearing the splint. Tr. 424. On April 10, 2007, Quildon
reported bearing weight on his left ankle and reported only
occasional pain along the medial aspect of his ankle. Tr. 423. Dr.
DiPasquale assessed Quildon’s gait as normal. Id.
A CT scan of Quildon’s ankle performed on or about April
30, 2007, revealed that the fracture was healing but not

21

completely healed. Tr. 422. At an appointment on June 26, 2007,
Quildon had a normal gait and only “mild tenderness over the
medial ligamentous complex.” Tr. 421. X-rays revealed a healed
fracture and Dr. DiPasquale’s reported that the fracture was
healed. Id. Dr. DiPasquale recommended that Quildon undergo a
course of physical therapy and follow-up with a physicians
assistant in 3 weeks. Id.

Furthermore, Dr. DiPasquale indicated

that Quildon would likely be able to return to work at that time.
Id.
Quildon followed up with Dr. DiPasquale’s physicians
assistant, Jennifer Pendersen, on July 20, 2007. Tr. 418. Quildon
reported that he was unable to walk without his air splint because
of pain, and presented using a single-point cane. Id.

He also for

the first time complained of low back pain. Tr. 420. Quildon
stated that his low back pain began approximately three weeks
prior to the appointment and radiated into his right side, but
denied any numbness or tingling. Id.

Ms. Pendersen observed that

Quildon walked with an antalgic gait favoring his left lower
extremity. Id.

She also observed that Quildon was awake, alert

and oriented to person, place and time and had an appropriate mood
and affect. Id.

Quildon weighed 422 pounds. Tr. 418. Quildon had

mild tenderness diffusely along the lumbar spine; no tenderness in
the paraspinal musculature; negative straight leg raising tests in

22

both lower extremities; normal and symmetric reflexes in the lower
extremities; and normal sensation, good pedal pulses and no
redness, swelling or bruising in the lower extremities. Tr. 419420.

Ms. Pendersen assessed Quildon with a healed left ankle

medial malleolus fracture and low back pain. Tr. 418-419. She
recommended physical therapy and a short course of Celebrex to
treat the low back pain. Tr. 419.

She also recommended an MRI to

further evaluate his low back pain. Id.

With respect to the

healed ankle fracture, she encouraged Quildon to wean himself off
of the air splint. Tr. 418. After consulting with Dr. DiPasquale,
Ms. Pendersen informed Quildon that they would defer to a
functional capacity evaluation to assess his ability to return to
work. Id.
On August 6, 2007, Quildon had an appointment with Dr.
DiPasquale at Mountain Valley Orthopedics.16 Tr. 416-417.

Quildon

reported that he felt that his ankle was getting better. Id.

He

complained of low back pain but denied radicular symptoms. Id.

A

physical examination revealed that Quildon walked with an antalgic
gait favoring the left side and had bilateral paralumbar muscle
tenderness. Id.

Dr. DiPasquale reported that the MRI of Quildon’s

16. The medical records contained in the administrative were
frequently out of order. The first page of the record of the
August 6th appointment was at Tr. 417 and the second page at Tr.
416.
23

lumbar spine showed that he had mild degenerative changes,
including a small herniation at L5-S1 with mild nerve root
displacement, a small foraminal disc protrusion at L3-L4 and mild
spinal stenosis at L3-L4 and L4-L5. Id.

Dr. DiPasquale’s

diagnostic impression was that Quildon had a healed left ankle
fracture, left ankle pain and a lumbosacral sprain. Id.

Dr.

DiPasquale recommended continued physical therapy for the left
ankle and low back and scheduled a functional capacity evaluation.
Tr. 416.
On October 2, 2007, Quildon had an appointment with Dr.
DiPasquale at which Quildon continued to complain of pain in the
left ankle and low back. Tr. 415. A physical examination revealed
that Quildon weighed 422 pounds, walked with an antalgic gait
favoring the left side and had decreased motion in the lumbar
spine.17 Id.

It was further observed that Quildon was oriented to

person, place and time and had an appropriate mood and affect. Id.
Dr. DiPasquale’s diagnostic impression was that Quildon suffered
from “[c]hronic lumbosacral sprain/left ankle pain/left ankle
medial malleolus fracture.” Id.

Dr. DiPasquale indicated that

Quildon would continue with pain management for his back and that
a follow-up appointment would be conducted after a functional
capacity evaluation. Id.

17.

The degree of decrease in range of motion was not specified.
24

A functional capacity evaluation was performed at St.
Luke’s Neuroscience Center on October 4, 2007. Tr. 262-273. During
that evaluation Quildon reported that during a 24 hour period he
would sleep or be in a prone position for 14 hours, stand or walk
for 2 hours and sit for 8 hours. Tr. 263.

Quildon also stated

that he had a driver’s license and could drive or ride in a car
for 2 hours before needing a rest. Id.

Quildon reported ankle

pain which radiated up his ankle. Id. The evaluator, Louise
Kreider, a registered and licensed occupational therapist,
observed that Quildon when standing placed most of his weight on
his right foot. Id.

Ms. Kreider after administering multiply

tests, some of which Quildon declined to perform, found with
respect to Quildon’s Validity Profile that because of Quildon’s
“very poor” test effort, the results were invalid.18

18.

Tr. 273.

Ms. Kreider in her report explained that
the Validity Profile is comprised of a cohort of
individual tests that collectively help determine
whether or not the patient is exerting their best
effort during all of the FCE tests. Effort is
defined as the physical ability and motivation to
complete a task within the individual pain tolerance.
A significant increase in pain is not required. If the
patient exerts effort up to the point of a barely
perceptible pain increase, or slightly below that
level so that there is no pain increase at all, they
will pass the overall Validity Profile. If the patient
does not pass the overall Validity Profile, then
they have not exerted their best effort. The patient
cannot assert that they were not able to exert their
(continued...)
25

On October 12, 2007, Quildon had an appointment with Dr.
DiPasquale at which he continued to complain of left ankle and low
back pain. Tr. 413-414.
were limited. Id.

Objective physical examination findings

Quildon weighed 422 pounds; he walked with an

antalgic gait favoring the left lower extremity; and he had
tenderness over the medial malleolus of the left ankle. Tr. 413.
Quildon was oriented to person, place and time and he had an
appropriate mood and affect. Tr. 414. The diagnostic impression
was left ankle and low back pain. Tr. 413.

A CT scan of the ankle

was ordered by Dr. DiPasquale. Id.
The CT scan was performed on November 2, 2007, and
revealed no evidence of nonunion of the ankle fracture. Tr. 276.
On November 13, 2007, Dr. DiPasquale after examining Quildon and
reviewing the CT scan found that the left ankle fracture was
healed. Tr. 411.

18.

Also, because Quildon was still complaining of

(...continued)
best effort due to pain since they are not asked to
tolerate any pain increase at all, or at least no
more than a barely perceptible increase, which
everyone can perceive. And since the patient is not
asked to perform tasks for which they do not have the
physical ability, or if they do not have the physical
ability, the test data should reveal that, then the
only reason for not passing the overall Validity
Profile is that the patient was not motivated to
cooperate with the evaluation process and exert their
best effort.

Tr. 271-272.
26

ankle pain Dr. DiPasquale administered a steroid injection to the
ankle and gave Quildon a prescription for Darvocet for steroid
flare.19 Id.

A follow-up appointment was scheduled in 4 weeks and

an MRI of the ankle ordered. Id.
The MRI was performed on November 21, 2007, and revealed
a healed ankle fracture and degenerative joint disease. Tr. 288
and 409.

At an appointment with Dr. DiPasquale on December 18,

2007, Quildon continued to complain of ankle pain and Dr.
DiPasquale recommended that he see a foot and ankle surgeon for a
second opinion. Tr. 409-410.
On February 12, 2008, Quildon had an appointment with
Jason Rudolph, M.D., of Eastern Orthopaedic Group, located in
Bethlehem, Pennsylvania for the second opinion. Tr. 294-295.
After conducting a physical examination and reviewing x-rays and a
recent MRI, Dr. Rudolph recommend a further CT scan of the left
ankle to rule out the possibility of a nonunion of the fracture.
Tr. 295.

Based on that recommendation Dr. DiPasquale on March 4,

2008, ordered a CT scan of Quildon’s left ankle which was
performed on April 2, 2008. Tr. 275 and 408.

19. One side effect of a steroid injection can be pain at the
injection site. This is known as a steroid flare and usually only
a temporary reaction. It is thought that a small amount of the
steroid crystallizes and cause additional pain. See, generally,
Jonathan Cluett, M.D., What is a Cortisone Flare? Orthopedics,
About.com, http://orthopedics.about.com/od/injectio2/f/cortisone
flare.htm (Last accessed April 5, 2014).
27

On April 14, 2008, after examining Quildon Dr. Rudolph
concluded that Quildon appeared to have chronic medial ankle pain
with a healed medial malleolar fracture. Tr. 290.

Dr. Rudolph did

not recommend surgery but offered to administer a cortisone
injection to Quildon’s ankle but Quildon refused. Tr. 290-291.
Quildon returned to Dr. DiPasquale on April 29, 2008.
Tr. 406-407. Quildon reported ankle pain and back pain with
paresthesias going down his legs. Tr. 407. Dr. DiPasquale offered
Quildon an injection for his ankle but Quildon refused. Tr. 406.
Dr. Dipasquale reported that Quildon had a normal gait and was
oriented to person, place and time and had an appropriate mood and
affect. Id.

Dr. DiPasquale opined that Quildon had reached

maximum medical improvement and deferred the issue of his ability
to work to the functional capacity evaluation.

Tr. 406.

Dr.

DiPasquale referred Quildon to a neurosurgeon, Allister Williams,
M.D., for an evaluation of his back pain. Id.
On July 25, 2008, Quildon returned to Dr. DiPasquale
alleging that he was unable to work because of ankle and low back
pain. Tr. 405. Dr. DiPasquale noted that Quildon arrived at the
appointment using a cane with a mildly antalgic gait favoring the
left lower extremity. Tr. 404.

Dr. DiPasquale reviewed x-rays of

the left ankle and noted that the fracture was well healed with
excellent position and alignment. Id. Dr. DiPasquale again

28

informed Quildon that his ankle had reached maximum medical
improvement. Id.

Dr. DiPasquale told Quildon to see Dr. Williams

for his back pain, noting that Quildon never followed through with
his prior referral. Id.
On September 12, 2008, Quildon had an appointment with
Dr. Williams. Tr. 400-402. Quildon reported that most of his back
pain was localized at the lumbosacral junction. Tr. 402. A
physical examination was performed which revealed that Quildon
weighed 422 pounds; he had tenderness on palpation of the lumbar
spine; he had full muscle strength in the lower extremities; he
had normal sensation and reflexes in the lower extremities; he had
negative straight leg raising tests in both lower extremities; and
he had a normal, non-antalgic gait. Tr. 401. Dr. William stated
that the greatest benefit for Quildon would be to lose weight. Id.
On September 24, 2008, Leo P. Potera, M.D., reviewed
Quildon’s medical records on behalf of the Bureau of Disability
determination and concluded that Quildon had the ability to engage
in a limited range of light work. Tr. 391-396.

Dr. Potera stated

that Quildon could occasionally lift and carry 20 pounds;
frequently lift and carry 10 pounds; stand and/or walk about 6
hours in an 8-hour workday; sit about 6 hours in an 8-hour
workday; and had an ability to push or pull with the lower
extremities (other than limited to the weight designated for

29

lifting and carrying). Tr. 392.

Quildon also could occasionally

use ramps and climb stairs but never climb ladders, ropes or
scaffolds; he could occasionally balance, stoop, kneel, crouch and
crawl; he had no manipulative, visual or communicative
limitations; and with respect to environmental limitations he had
to avoid concentrated exposure to extreme heat, humidity, fumes,
odors, dusts, gases, poor ventilation and hazards (such as
machinery and heights). Tr. 393-394.
Quildon underwent an MRI of the lumbar spine on
September 25, 2008, which revealed mild degenerative disc disease
at the L3-L4, L4-L5 and L5-S1 levels; small disc protrusions at
the L3-L4 level causing moderate right foraminal narrowing; and a
small disc protrusion at the L5-S1 level abutting and slightly
displacing the right S1 nerve. Tr. 442.
Quildon had a follow-up appointment with Dr. Williams on
October 27, 2008, at which Quildon reported back and neck pain,
but denied any numbness, weakness or tingling. Tr. 398-399.

A

physical examination revealed that Quildon weighed 422 pounds; he
had tenderness on palpation of the lumbar spine; he had full
muscle strength in the lower extremities; he had normal reflexes
and sensation; and he had a non-antalgic gait. Tr. 398. Quildon
was oriented to person, place and time and had an appropriate mood
and affect. Id.

Dr. Williams stated that the MRI of the lumbar

30

spine revealed “multilevel spondylosis and disk space narrowing
with mild stenosis.”20 Id.

Dr. Williams did not recommend

surgery, and referred Quildon for facet block injections. Id.
On December 26, 2008, Alex Perez, M.D., administered a lumbar
epidural steroid block after which Quildon did not seek medical
treatment until April, 2010. Tr. 438.
On April 23, 2009 Quildon was examined by Joyce Vrabec,
D.O.,

on behalf of the Bureau of Disability Determination. Tr.

443-449. Dr. Vrabec examined Quildon on one occasion, and did not
review any of Quildon’s treatment records or diagnostic studies.
Tr. 443-446. Dr. Vrabec noted that Quildon came to the appointment
using a cane, but appeared to have a normal ability to walk. Tr.
445. Although Dr. Vrabec noted gait issues, she could not
determine whether they were associated with Quildon’s weight or
pain. Tr. 443.

Dr. Vrabec documented a “questionably positive”

straight leg raise test. Tr. 445. Dr. Vrabec opined that Quildon
could carry twenty pounds occasionally, could sit for less than
six hours, and could stand and walk for less than one hour. Tr.

20. Degeneration of the vertebrae and intervertebral discs is
medically referred to as spondylosis. Spondylosis can be noted on
x-ray tests or MRI scanning of the spine as a narrowing of the
normal "disc space" between the adjacent vertebrae. The term is
frequently used to describe osteoarthritis of the spine. Stenosis
can refer to the narrowing of the neural foramen (the openings
along each side of the spine through which nerve roots exit) and
also the spinal canal.
31

447-448.

A vocational expert testified that if Dr. Vrabec’s

assessment relating to Quildon’s ability to stand, walk and sit
was accepted Quildon would not be able to engage in full-time
employment. Tr. 62-63.
On May 11, 2009, Gerald A. Gryczko, M.D., reviewed
Quildon’s medical records and Dr. Vrabec’s report on behalf of the
Bureau of Disability determination and concluded that Quildon had
the ability to engage in a limited range of light work. Tr. 451457.

Dr. Gryczko stated that Quildon could occasionally lift and

carry 20 pounds; frequently lift and carry 10 pounds; stand and/or
walk at least 2 hours in an 8-hour workday; sit about 6 hours in
an 8 hour workday; and had an ability to push or pull with the
extremities (other than limited to the weight designated for
lifting and carrying). Tr. 452.

Quildon could occasionally use

ramps and climb stairs but never climb ladders, ropes or
scaffolds; he could occasionally, balance, stoop, and kneel but
never crouch or crawl; he had no manipulative, visual or
communicative limitations; and with respect to environmental
limitations he had to avoid concentrated exposure to extreme cold,
wetness, humidity, fumes, odors, dusts, gases, poor ventilation
and hazards (such as machinery and heights). Tr. 453-454.
On May 20, 2009, Francis Murphy, Ph.D., a psychologist,
reviewed Quildon’s medical records on behalf of the Bureau of

32

Disability determination and concluded that Quildon did not suffer
from a medically determinable severe mental impairment. Tr. 458470. Dr. Murphy indicated that Quildon suffered from depressive
symptoms but he could not determine whether they were caused by
the pain medications Quildon was taking or a depressive disorder.
Tr. 461. Dr. Murphy stated that Quildon had mild restrictions with
respect to activities of daily living; no difficulties maintaining
social functioning; no difficulties maintaining concentration,
persistence or pace; and no repeated episodes of decompensation,
each of an extended duration. Tr. 468. He further stated that
Quildon had no history of inpatient or outpatient psychiatric
treatment; Quildon was on no psychiatric medications and an
earlier assessment at the Pocono Medical Center in 2007 revealed
no previous psychiatric history, no depression, no psychosis and
no suicidal or homicidal ideations. Tr. 470.
After the administrative law judge issued his decision,
Quildon submitted additional medical evidence to the Appeals
Council. Tr. 475-541.

Those records reveal examinations of and

treatment administered to Quildon before and after the ALJ’s
decision.

Specifically, Quildon underwent physical therapy from

April through October, 2010. Id.

Quildon presented to Steven

Mazza, M.D., of CHC Professional Practice, P.C., on April 14,
2010, stating he “soon [was] being reevaluated for disability so

33

his attorney recommended [that he] restart] medical treatment and
get reevaluated,” and that he had not sought any treatment for
over a year. Tr. 537.

Quildon reported that his neck and back

pain were an “8" on a scale of 1 to 10, but that he was not taking
any pain medication. Id.

Dr. Mazza observed that although Quildon

moaned and grimaced during the range of motion examination, and
even when performing simple movements, Quildon had full muscle
strength, intact sensation, and a negative straight leg raise
test. Tr. 539. Dr. Mazza refused to prescribe oxycodone, and
recommended that Quildon stretch and exercise and referred him to
physical therapy. Id.

Dr. Mazza informed Quildon that he could

not offer any opinion regarding Quildon’s ability to work. Id.
Dr. Mazza told Quildon he would continue to treat him, but would
need his prior medical records and diagnostic studies. Id.
Quildon had follow-up appointments with Joseph Lee, M.D., one of
Dr. Mazza’s associates, on May 13, July 22 and August 19, 2010.
Tr. 522-523, 527-528 and 532-534.

The records of these

appointments do not reveal any substantial change in the objective
physical examination findings. Id.

However, on August 19th

Quildon reported that his neck was no longer bothering him and
that the physical therapy was “helping him with his left hip but
not as much with his low back.” Tr. 522.

34

DISCUSSION
The administrative law judge at step one of the
sequential evaluation process found that Quildon had not engaged
in substantial gainful activity since December 29, 2006, the
alleged onset date. Tr. 21.
At step two, the administrative law judge found that
Quildon suffered from the following severe impairments:
“degenerative disc disease of the lumbar spines, status post left
medial ankle fracture, asthma and morbid obesity.” Id.
At step three of the sequential evaluation process the
administrative law judge found that Quildon’s impairments did not
individually or in combination meet or equal a listed impairment.
Tr. 22.
In addressing step four of the sequential evaluation
process in his decision, the administrative law judge found that
Quildon could not perform his past semi-skilled, medium work as a
bus driver and mail carrier but that he could perform a limited
range of sedentary work. Tr. 22 and 28.

Specifically, the

administrative law judge found that Quildon could perform
sedentary work as defined in the regulations except he would be
limited to occasional balancing, stooping, kneeling, and climbing
ladders, scaffolds, ropes, ramps, and stairs; he would have
significant difficulty crouching; he would have to avoid exposure

35

to cold, extreme damp/wet and humid environments other than on a
moderate basis; he had to avoid any concentrated exposure to
respiratory irritants such as fumes, odors, dust and gases and
poorly ventilated work settings; he had to avoid working at
unprotected heights and around hazardous machinery; he should not
work in a high volume or high intensity pace work environment; and
he had to have a sit/stand option at will or on a self-directed
basis. Tr. 22 and 58-59.

In arriving at this residual functional

capacity the administrative law judge found that Quildon’s
statements about his pain and functional limitations were not
credible. Tr. 28.

The administrative law judge also rejected the

opinion of Dr. Vrabec to the extent that Dr. Vrabec indicated that
Quildon was limited to less than the requirements for full-time
work with respect to sitting, standing and walking. Tr. 27. The
ALJ also did not accept completely the opinion of the state agency
medical consultants who found that Quildon could perform light
work but gave Quildon the benefit of the doubt based on the
medical records and his testimony and reduced his residual
functional capacity to the sedentary level. Id.
At step five, the administrative law judge based on the
above residual functional capacity and the testimony of a
vocational expert found that Quildon had the ability to perform
work such as a visual inspector, bench assembler and surveillance

36

monitor, and that there were a significant number of such jobs in
the regional, state and national economies. Tr. 29.
The administrative record in this case is 541 pages in
length and we have thoroughly reviewed that record.

The

administrative law judge did an adequate job of reviewing
Quildon’s medical history and vocational background in his
decision. Tr. 19-302.

Furthermore, the brief submitted by the

Commissioner sufficiently reviews the medical and vocational
evidence in this case. Doc. 7, Brief of Defendant.
Quildon argues that the administrative law judge erred
by (1) rejecting the opinion of Dr. Vrabec, and (2) failing to
properly assess his credibility.

Based on our review of the

record, we find no merit in Quildon’s arguments.
No treating physician indicated that Quildon was
incapable from a physical standpoint of engaging in the limited
range of sedentary work set by the administrative law judge on a
full-time basis.

No treating physician after the alleged

disability onset date of December 29, 2006, provided a functional
assessment of Quildon’s ability to sit, stand and walk.

Quildon’s

reliance on the assessment of Dr. Vrabec is misplaced. The ALJ was
not required to accept the opinion of Dr. Vrabec, a non-treating
physician who examined Quildon on one occasion.

The ALJ

appropriately rejected Dr. Vrabec’s restrictive opinion.

37

There is

substantial evidence in the record supporting the ALJ’s residual
functional capacity assessment, i.e., the opinions of Dr. Potera
and Dr. Gryczko.

The administrative law judge’s partial reliance

on those opinions was appropriate. See Chandler v. Commissioner of
Soc. Sec., 667 F.3d. 356, 362 (3d Cir. 2011)(“Having found that
the [state agency physician’s] report was properly considered by
the ALJ, we readily conclude that the ALJ’s decision was supported
by substantial evidence[.]”).

As stated above, the ALJ gave

Quildon the benefit of the doubt and reduced Quildon’s functional
ability to the sedentary level.
Quildon argues that the administrative law judge
inappropriately judged his credibility, including his complaints
of pain.

The administrative law judge stated that Quildon’s

statements concerning the intensity, persistence and limiting
effects of his symptoms were not credible to the extent that they
were inconsistent with the ability to perform a limited range of
sedentary work. The administrative law judge was not required to
accept Quildon’s claims regarding his limitations. See Van Horn v.
Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)(providing that
credibility determinations as to a claimant’s testimony regarding
the claimant’s limitations are for the administrative law judge to
make).

It is well-established that “an [administrative law

judge’s] findings based on the credibility of the applicant are to

38

be accorded great weight and deference, particularly since [the
administrative law judge] is charged with the duty of observing a
witness’s demeanor . . . .”

Walters v. Commissioner of Social

Sec., 127 f.3d 525, 531 (6th Cir. 1997); see also Casias v.
Secretary of Health & Human Servs., 933 F.2d 799, 801 (10th Cir.
1991)(“We defer to the ALJ as trier of fact, the individual
optimally positioned to observe and assess the witness
credibility.”).

Because the administrative law judge observed

Quildon when he testified at the hearing on May 7, 2010, the
administrative law judge is the one best suited to assess the
credibility of Quildon.
The ALJ was well aware of Quildon’s work history from
documents admitted into the record at the administrative hearing
as well as from Quildon’s testimony at that hearing. Also, it is
clear that the ALJ was aware of the Functional Capacity Assessment
of Quildon performed at St. Luke’s Neuroscience Center on October
4, 2007, which revealed that Quildon put forth a very poor effort.
Tr. 24.

Furthermore, the ALJ noted the inconsistency of Quildon

caring for his mother who suffered from Alzheimer’s disease and
Quildon’s claim that he was totally disabled. Tr. 28.

We see no

reason to question the ALJ’s credibility determination.
Finally, the evidence submitted by Quildon to the
Appeals Council after the ALJ’s decision is not a basis to reverse

39

the ALJ’s decision or remand for further proceedings. Evidence
submitted after the administrative law judge’s decision cannot be
used to argue that the administrative law judge’s decision is not
supported by substantial evidence.
589, 594-595 (3d Cir. 2001).

Matthews v. Apfel, 239 F.3d

The only purpose for which such

evidence can be considered is to determine whether it provides a
basis for remand under sentence 6 of section 405(g), 42 U.S.C.
Szubak v. Secretary of Health and Human Servs., 745 F.2d 831, 833
(3d Cir. 1984).

Under sentence 6 of section 405(g) the evidence

must be “new” and “material” and a claimant must show “good cause”
for not having incorporated the evidence into the administrative
record. Id. The Court of Appeals for the Third Circuit explained
that to be material “the new evidence [must] relate to the time
period for which benefits were denied, and that it not concern
evidence of a later-acquired disability or of the subsequent
deterioration of the previously non-disabling condition.” Id.
Quildon has not established “good cause” for not having
incorporated the evidence into the administrative record.
Furthermore, most of the records related to a time after the ALJ
issued his decision and, consequently, are not material.
Our review of the administrative record reveals that the
decision of the Commissioner is supported by substantial evidence.

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We will, therefore, pursuant to 42 U.S.C. § 405(g) affirm the
decision of the Commissioner.
An appropriate order will be entered.

/s/ William W. Caldwell
WILLIAM W. CALDWELL
United States District Judge
Dated: April 8, 2014

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