Kenyon v. Astrue

Filing 15

MEMORANDUM (Order to follow as separate docket entry)In this case there is more than substantial evidence to support the Commissioners decision. Thus, we cannot and will not overrule the decision of the ALJ which in turn has become the decision of the Commissioner. An appropriate Order is entered simultaneously with this Memorandum. Signed by Honorable Richard P. Conaboy on 12/16/13. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHRISTOPHER S. KENYON,

:

Plaintiff,

:CIVIL ACTION NO. 3:12-CV-1812

v.

:

CAROLYN W. COLVIN,
Acting Commissioner
of Social Security,

:(Judge Richard P. Conaboy)
:

Defendant.

:

___________________________________________________________________
MEMORANDUM
This Memorandum addresses the appeal of Plaintiff (Claimant)
Christopher S. Kenyon seeking review, pursuant to 42 U.S.C. §§
405(g) and 1383(c)(30), of the Commissioner’s denial of Disability
Insurance Benefits under the Social Security Act.

The claimant

alleged in a hearing before an Administrative Law Judge (“ALJ”)
that he has been disabled since June 1, 2007, because of a variety
of back, leg, foot and arm pain and obsessive compulsive disorder,
depression, degenerative joint disease of his lumbar spine and
hips, and right knee pain.

On November 8, 2012, the ALJ issued his

decision which was eventually approved by the Commissioner,
concluding Plaintiff was not disabled because, based on the
testimony of the vocational expert, Plaintiff was able to perform
light work with limitations that existed in significant numbers in
the national economy.

(R. 21-26.)

1

With his appeal to this Court, Plaintiff argues essentially
three things: (1) that the ALJ was in error when he failed to
properly consider and explain why he was rejecting the treating
source testimony of Dr. Richard Husband and that he makes a factual
error regarding the Plaintiff’s pain medication; (2) that the ALJ
was in error when he failed to perform his affirmative obligation
to assist the claimant in developing the record; and (3) that the
ALJ failed to properly consider Plaintiff’s complaints of pain.
The Defendant Commissioner argues that this Court should
sustain the decision of the Commissioner denying benefits to the
claimant because the ALJ fully reviewed the record in this case and
properly considered all of the sources of testimony including that
of the treating doctor and the claimant’s own complaints of pain.
For the reasons cited herein, we find Plaintiff’s bases for
appeal without merit and affirm the decision of the Commissioner.
I. Authority
We are not without significant guidance in legislative,
statutory and case law as to how we should consider appeals such as
in this case and how this Court should and must review the record
in each case.
A Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

2

A reviewing court is

bound by the ALJ’s findings of fact “if they are supported by
substantial evidence in the record.”
422, 427 (3d Cir. 1999).
mere scintilla.

Plummer v. Apfel, 186 F.3d

Substantial evidence means “more than a

It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”

Richardson

v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842
(1971); Plummer, 186 F.3d at 427 (quoting Ventura v. Shalala, 55
F.3d 900, 901 (3d Cir. 1995)).

The ALJ’s findings of law, however,

are subject to plenary review.

See Wright v. Sullivan, 900 F.2d

675, 678 (3d Cir. 1990); Podedworny v. Harris, 745 F.2d 210, 221
n.8 (3d Cir. 1984).
Administrative law judges have the duty to develop a full and
fair record in social security cases.

See Brown v. Shalala, 44

F.3d 931, 934 (11th Cir. 1995); Smith v. Harris, 644 F.2d 985, 989
(3d Cir. 1981).

Accordingly, an ALJ must secure relevant

information regarding a claimant’s entitlement to social security
benefits.

Hess v. Secretary of Health, Education and Welfare, 497

F.2d 837, 841 (3d Cir. 1974).

In Hess, the Circuit Court reasoned

that “‘although the burden is upon the claimant to prove her
disability, due regard for the beneficent purposes of the
legislation requires that a more tolerant standard be used in the
administrative proceeding than is applicable in a typical suit in a
court of record where the adversary system prevails.’”

Ventura v.

Shalala, 55 F.3d 900, 902 (3d Cir. 1995) (quoting Hess, 497 F.2d at
3

840).
A hearing on a claim for social security benefits is not an
adversarial proceeding and the ALJ must assist a claimant in
establishing her claim.

Dobrowolsky v. Calilfano, 606 F.2d 403,

406-07 (3d Cir. 1979).
Rulings addressing the residual functional capacity
determination and the definition of light work are pertinent in
this case.

Social Security Ruling 96-8 provides a detailed method

for determining Residual Functional Capacity (RFC).

The ruling

states what evidence is to be considered in the RFC determination:
The RFC assessment must be based on all of
the relevant evidence in the case record,
such as:
-

-

SSR 96-8.

Medical history,
Medical signs and laboratory
findings,
The effects of treatment,
including limitations or
restrictions imposed by the
mechanics of treatment (e.g.,
frequency of treatment, duration,
disruption to routine, side
effects of medication),
Reports of daily activities,
Lay evidence,
Recorded observations,
Medical source statements,
Effects of symptoms, including
pain, that are reasonably
attributed to a medically
determinable impairment,
Evidence from attempts to work,
Need for a structured living
environment, and
Work evaluations, if available.

The ruling also provides narrative discussion
4

requirements.
The RFC assessment must include a
narrative discussion describing how the
evidence supports each conclusion, citing
specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g. daily
activities, observations). In assessing RFC,
the adjudicator must discuss the individual’s
ability to perform sustained work activities
in an ordinary work setting on a regular and
continuing basis, (i.e., 8 hours a day, for 5
days a week, or an equivalent work schedule),
and describe the maximum amount of each workrelated activity the individual can perform
based on the evidence available in the case
record. The adjudicator must also explain
how any material inconsistencies or
ambiguities in the evidence in the case
record were considered and resolved.
SSR 96-8.
Social Security Ruling 83-10 defines light work as follows:
The regulations define light work as 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 in a particular light job may
be very little, a job is in this category
when it requires a good deal of walking or
standing – the primary difference between
sedentary and most light jobs. A job also is
in this category when it involves sitting
most of the time but with some pushing and
pulling of arm-hand or leg-foot controls,
which require greater exertion than in
sedentary work; e.g., mattress sewing machine
operator, motor-grader operator, and roadroller operator (skilled and semiskilled jobs
in these particular instances). Relatively
few unskilled light jobs are performed in a
seated position.
‘Frequent’
two-thirds
lifting or
feet up to

means occurring from one-third to
of the time. Since frequent
carrying requires being on one’s
two-thirds of a workday, the full
5

range of light work requires standing or
walking, off and on, for a total of
approximately 6 hours of an 8-hour workday.
Sitting may occur intermittently during the
remaining time. The lifting requirement for
the majority of light jobs can be
accomplished with occasional, rather than
frequent, stooping. Many unskilled light
jobs are performed primarily in one location,
with the ability to stand being more critical
than the ability to walk. They require use
of arms and hands to grasp and to hold and
turn objects, and they generally do not
require use of the fingers for fine
activities to the extent required in much
sedentary work.
SSR 83-10 Glossary.
An ALJ must give an applicant’s subjective complaints serious
consideration and make specific findings of fact concerning his
credibility.
2002).

See Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir.

“Pain itself may constitute a disabling impairment.”

Smith

v. Califano, 637 F.2d 968, 972 (3d Cir. 1981); Ferguson v.
Schweiker, 765 F.2d 31, 37 (3d Cir. 1985).
Pain in itself may be a disabling condition.

The Third

Circuit Court of Appeals has stated that “even pain unaccompanied
by objectively observable symptoms which is nevertheless real to
the sufferer and is so intense as to be disabling will support a
claim for disability benefits.”
415 (3d Cir. 1981).

Taybron v. Harris, 667 F.2d 412,

When pain complaints are supported by medical

evidence, they should be given great weight and where a claimant’s
testimony as to pain is reasonably supported by medical evidence,
the administrative law judge may not discount claimant’s pain
6

without contrary medical evidence.

Ferguson v. Schweiker, 765 F.2d

31, 37 (3d Cir., 1985).
And finally, pertinent here, under applicable regulations and
the law of the Third Circuit, a treating doctor’s opinions are
generally entitled to controlling weight, or at least substantial
weight.

See, e.g., Fargnoli v. Halter, 247 F.3d 34, 43 (3d Cir.

2001) (citing 20 C.F.R. § 404.1527(d)(2); Cotter v. Harris, 642
F.2d 700, 704 (3d Cir. 1981)).

The “treating physician rule,” is

codified at 20 C.F.R. 404.1527(d)(2), and is widely accepted in the
Third Circuit.

Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993); see

also Dorf v. Brown, 794 F.2d 896 (3d Cir. 1986).

The regulation

addresses the weight to be given a treating physician’s opinion:
“If we find that a treating source’s opinion on the issue(s) of the
nature and severity of your impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in your
case, we will give it controlling weight.”
416.927(d)(2).1

1

20 C.F.R. §

“A cardinal principle guiding disability

20 C.F.R. § 404.1527(d)(2) states in relevant part:
Generally, we give more weight to opinions from your treating
sources, since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature and severity of your
7

eligibility determinations is that the ALJ accord treating
physicians’ reports great weight, especially when their opinions
reflect expert judgment based on continuing observation of the
patient’s condition over a prolonged period of time.”

Morales v.

Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citations omitted); see
also Brownawell v. Commissioner of Social Security, 554 F.3d 352,
355 (3d Cir. 2008).

In choosing to reject the treating physician’s

assessment, an ALJ may not make “speculative inferences from
medical reports and may reject a treating physician’s opinion
outright only on the basis of contradictory medical evidence and
not due to his or her own credibility judgments, speculation or lay
opinion.”

Morales, 225 F.3d at 317 (citing Plummer v. Apfel, 186

F.3d 422, 429 (3d Cir. 1999); Frankenfield v. Bowen, 861 F.2d 405,
408 (3d Cir. 1988)).
II. Discussion
As noted above, Plaintiff asserts three bases for his appeal:
(1) the ALJ did not give proper credit to the opinion of his
treating physician; (2) the ALJ failed to perform his affirmative
impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling
weight. When we do not give the treating source's opinion controlling
weight, we apply the factors listed in paragraphs (d)(2)(i) and (d)(2)(ii)
of this section, as well as the factors in paragraphs (d)(3) through
(d)(6) of this section in determining the weight to give the opinion. We
will always give good reasons in our notice of determination or
decision for the weight we give your treating source's opinion.
8

obligation to assist the claimant in developing the record; and (3)
the ALJ failed to properly consider Plaintiff’s complaint of pain.
We will address each in turn.
a.

Treating Physician’s Opinion
Plaintiff asserts the ALJ did not give proper deference to his

treating physician.

We conclude this assertion is without merit.

In this case, the ALJ used significant reference to the
opinions of Dr. Richard Husband, D.O., Plaintiff’s treating
physician, but found that most of the statements made by the doctor
were unsupported conclusions contradicted by all of the other
evidence in the case, including the evidence of the doctor’s own
records.

(R. 23.)

The ALJ aslo found that Dr. Husband’s

conclusory statement that Plaintiff’s “medical condition is causing
a state of medical disability or is preventing him from gainful
employment” is a statement on the ultimate issue of disability
reserved for the Commissioner which is not entitled to controlling
weight under the treating physician rule.

(R. 23.)

The ALJ illustrated the lack of support in the record with the
following statement:
For instance, at an initial office visit with
Dr. Richard Husband, D.O., on January 25,
2008, the claimant complained of multiple
arthralgias and chronic low back pain. The
physical examination found the claimant to be
within normal limits except for some dry
crepitance at the bases and scattered
expiratory rhonchi upon auscultion of the
claimant’s lungs. The claimant also had some
minimal tenderness in his right calf (Exhibit
9

4F/4). In a follow-up visit on July 16,
2008, the claimant complained of joint pain
in his knee, elbows, and low back for which
he takes ibuprofen, but not regularly. Blood
laboratory work revealed that the claimant
has a positive ANA of uncertain significance.
A physical examination was normal except for
decreased range of motion to flexion and
extension in his lumbar sacral spine.
(R. 23.)
While one must be careful in analyzing a treating physician’s
commentary on a plaintiff’s condition, as the relevant authority
set out above makes clear, nothing requires an ALJ to accept such
testimony when it is not in accord with other substantial evidence
in the file.
Indeed in this case, reference to Exhibit 4F of the record
(which contains some twenty (20) pages of Dr. Husband’s treatment
records) shows that the ALJ properly considered reports of the
treating physician which notes repeatedly in referring to the
claimant that “the patient seen and examined was a 36 year old male
in no acute distress.”

(See R. 249-68.)

These findings which are

referenced by the ALJ appear consistently in all of the reports of
the Plaintiff’s treating physician from June 25, 2008, through May
21, 2009, and show clearly that the ALJ gave appropriate and proper
consideration to the testimony and records of the treating
physician.2
2

With this asserted basis for relief, Plaintiff also argues remand is necessary because the
ALJ factually erred when he stated Plaintiff had not “‘been prescribed narcotic medication for
pain’”and this is error because Plaintiff has taken Tramadol through the entire period in question.
10

b.

Development of the Record
Plaintiff’s second basis for appeal is his assertion that the

ALJ failed to perform his affirmative obligation to assist the
claimant in developing the record.

We find this assertion to be

without merit.
While an ALJ is required to assist the claimant in developing
a full record, he or she has no such obligation to “make a case”
for every claimant.

Here the ALJ on a number of occasions did

diligently make repeated efforts to assist the claimant both in his
own testimony and in such things as the hypothetical questions and
discussions with the vocational expert.
c.

(R. 52-58.)

Subjective Complaints of Pain
Plaintiff’s final claimed error is that the ALJ failed to

properly consider Plaintiff’s complaint of pain.

Again, we find no

merit in this asserted basis for appeal.
The ALJ found Plaintiff’s testimony with regard to his
symptoms not to be fully credible because “it was overstated,
inconsistent with, and unsupported by, the great weight of the
documentary evidence.”

(R. 23.)

In addition to reviewing the

summary of visits with Dr. Husband quoted in our discussion of the
claimed treating physician error, the ALJ noted Plaintiff was not

(Doc. 11 at 15 (citing R. 24).) This is not factual error as Plaintiff himself states that “Tramadol is a
narcotic-like pain releiver.” (Doc. 11 at 15 (emphasis added).)
11

seen from July 16, 2008, until December 2008 when the treatment
notes indicate physical examination “only found mild tenderness at
T4-T8 and L1-L5.
negative.”

The claimant straight leg-raising test was

(R. 23.)

The ALJ further noted

[t]he evidence reflects the claimant’s
physical complaints are inconsistent. At
another follow-up visit with Dr. Husband on
January 15, 2009, the claimant denied having
any back pain and complained of severe pain
in the muscles of his legs especially around
his knees. The claimant’s physical
examination was normal (Exhibit 4F/8). In
June of 2009, Dr. Husband treated the
claimant with Tramadol and acetaminophen for
his subjective complaints of pain in his
hips, knees, ankles and right knee. The
claimant complained of seasonal allergies
“with working outside around fresh cut grass”
(Exhibits 4F/10 & 5F/38).
(R. 23.)
Plaintiff contends the ALJ makes generalized statements
regarding Plaintiff’s pain but disregards supporting evidence like
Dr. Husband’s statement that Plaintiff “‘has a chronic painful
condition in his legs, especially in his right knee, that precludes
him from keeping or seeking employment at this time.’”
19 (quoting R. 141).)

(Doc. 11 at

This is the only citation to the record

Plaintiff makes in support of his assertion that his chronic pain
“has been present for years and is evidenced by the record.”

(Doc.

11 at 19.)
With this argument and general reference to the record,
Plaintiff does not meet his burden of pointing to evidence which

12

undermines the ALJ’s decision.

For the reasons discussed above,

Dr. Husband’s opinion was not entitled to controlling or
substantial weight. Further, the ALJ’s cited inconsistencies and
record citations provide substantial evidence to support his
credibility decision.3
III. Conclusion
In this case there is more than substantial evidence to
support the Commissioner’s decision. Thus, we cannot and will not
overrule the decision of the ALJ which in turn has become the
decision of the Commissioner.

An appropriate Order is entered

simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: December 16, 2013

3

Plantiff identifies another issue in his supporting brief regarding hypothetical questions
posed to the vocational expert. (Doc. 11 at 21.) He states that “length restrictions prevent discussion
of this issue.” (Id.) Because Plaintiff did not properly develop this basis for appeal, we do not
consider it in this Memorandum.
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