MARY PAT THYNGE, Magistrate Judge.
Plaintiff, Avis Nash ("plaintiff') appeals from a decision of Michael J. Astrue, the Commissioner of Social Security ("defendant"), denying her claim for ongoing Social Security Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act").
A district court has the jurisdiction to review an administrative law judge's ("All") decision in a Title II DIB case once it becomes the final decision of the Commissioner.
Here, the ALJ's decision is the final decision of the Commissioner because the Appeals Council denied plaintiff's request for appeal. Therefore, this court has jurisdiction to review the ALJ's decision.
Plaintiff applied for DIB on January 31, 2004, asserting a disability onset date of March 18, 2002 due to a back injury. Plaintiff's claim was initially denied by the Social Security Administration, and again denied upon reconsideration. Plaintiff then requested a hearing before an ALJ.
The ALJ held a video hearing on February 13, 2006 and plaintiff, represented by counsel, testified and amended her disability onset date to December 17, 2002. Additionally, a Vocational Expert ("VE"), Jan Howard Reed, testified. The ALJ allowed the record to remain open for two weeks for the submission of a witness statement and a closing statement.
On February 28, 2006, the ALJ directed plaintiff undergo a consultative exam with Dr. Yong Kim at Disability Determination Services ("DDS"), which occurred on May 9, 2006. Plaintiff requested a supplemental hearing, which was denied by the ALJ, who in turn directed interrogatories be submitted.
On October 14, 2006, the ALJ returned a partially favorable decision for plaintiff finding she was disabled from December 17, 2002 until January 1, 2006. However, the ALJ determined medical improvement occurred as of January 2, 2006 and denied ongoing DIB.
The ALJ's decision became final when the Appeals Council denied plaintiff's request for review on February 13, 2009.
Plaintiff was 39 years old at the time of the partially favorable ALJ decision. She has a twelfth grade education, and is able to read, write, and perform simple math problems. Her past relevant work consists of working as a bus and van driver.
Plaintiff was insured for disability benefits through December 31, 2005.
On March 19, 2002, plaintiff visited her primary care physician Dr. Burdick, who refilled her pain prescriptions and referred her to Dr. Sternberg of Delaware Back Pain and Sports Rehabilitation Center.
Dr. Sternberg's initial evaluation occurred on April 8, 2002. He noted plaintiff's inward flexion was limited to twenty degrees, had marked tenderness in her spine, with positive bilateral straight leg testing; however, his detailed muscle testing of the lower extremities showed strength of 5 out of 5. Dr. Sternberg recorded plaintiff received some relief from the medications and prescribed additional measures, heat, ultrasound and physical therapy. Plaintiff attended physical therapy from 2002 to 2003. Lastly, Dr. Sternberg placed plaintiff off work for the following two weeks.
An MRI on June 1, 2002 revealed plaintiff had degenerative disc disease at L4-L5 with anterior spondylosis and small posterior disc bulge associated with mild spinal stenosis. Plaintiff was continued on the pain medications and physical therapy and was released to light duty work on June 17, 2002.
Plaintiff was either unable to find suitable work, or unable to work due to her back pain and was returned to off work on December 12, 2002. Plaintiff's November exam showed flexion within normal limits and no pain during straight leg raising, however, there was tenderness in the spine. Previously, plaintiff received epidural steroid block injections from Dr. Devotta of Glasgow Medical Center, at the recommendation of Dr. Sternberg, on October 28, 2002 and November 25, 2002. On December 12, 2002, plaintiff was referred to Dr. Katz of First State Orthopedics for a surgical consultation.
Plaintiff initially consulted Dr. Katz on December 17, 2002. Dr. Katz diagnosed an internal disk derangement and recommended a diagnostic test. This procedure was performed by Dr. Falco on February 6, 2003, which revealed back pain of 10 out of 10 at L4-L5 and back pain of 8 out of 10 at L5-S1. Dr. Falco's impression was degenerative disease at both L4-L5 and L5-S1 with concordant low back pain.
Plaintiff was again seen by Dr. Katz on March 18, 2003. Dr. Katz opined a lumbar fusion should be the last resort and recommended Intradiscal Electrothermal Therapy ("IDET"), continue her weight loss program and to use a back brace after the IDET.
The IDET was performed by Dr. Katz on March 21, 2003. Attempts to conduct the procedure at the L4-L5 disc space were wholly unsuccessful. Administering the procedure at the L5-S1 disc space was initially successful, but was aborted after fifteen minutes due to increased leg pain.
Plaintiff noted slight improvement in her leg pain after the IDET, but still experienced severe low back pain which extended into her upper legs. As a result, Dr. Katz performed a lumbar fusion on September 15, 2003. Plaintiff saw Dr. Daniel Kim of the Mid-Atlantic Pain Institute on September 23, 2003, during which Dr. Kim noted plaintiff was recovering from surgery and placed her off work.
Plaintiff's pain showed improvement for six weeks following the lumbar fusion, but she then experienced increasing back pain. A second surgery was performed on November 24, 2003 to replace the right pedicle screws. X-rays confirmed good placement of the instrumentation.
In March 2004, plaintiff began aquatic therapy with Pro Physical Therapy and noted some improvement in her symptoms, although she continued to experience severe right leg pain. On April 27, 2004, a CT scan was performed which showed good alignment with minimal left spondylosis at L5-S1.
Although the fusion was a surgical success, because of continued pain, Dr. Falco, on May 5, 2004, recommended plaintiff undergo implantation of a spinal cord stimulator to reduce her leg pain. A trial spinal cord stimulator was inserted on June 25, 2004 with good results. Thereafter, a permanent stimulator was surgically implanted on August 6, 2004 by Dr. Falco. During a follow up exam, plaintiff reported a significant decrease in leg pain from the spinal cord stimulator, noting a pain level of 3 out of 10, while without the stimulator, her pain level was of 7 out of 10. Plaintiff discontinued one of her prescribed pain medications (Topamax) due to the relief in leg pain from the stimulator.
On August 25, 2004, plaintiff reported a 60-70% reduction in her remaining pain from the pain medications. However, only a few weeks later, on September 8, 2004, she was experiencing only 30-40% pain relief from the medications and 30-40% pain relief from the stimulator. Her low back pain level was of 7 to 8 out of 10. The September 8 exam also revealed diffuse tenderness of the spine, normal muscle strength in arms and legs, and intact sensation, with normal ambulation, without an assistance device. Plaintiff was continued on pain medications.
During an office visit on September 22, 2004, plaintiff's pain ranged from 7 to 10 out of 10. Plaintiff complained pain interfered with her ability to function. She was advised to have a PSIS block performed, and underwent this procedure on October 25, 2004.
Plaintiff's files from Mid-Atlantic Pain Institute and Mid-Atlantic Spine indicate no improvement in the severity of her pain from September 22, 2004 to January 12, 2006. She saw doctors on a regular basis and consistently reported pain averaging from 7 to 8 out of 10, which interfered with her ability to function.
According to her medical records, implantation of a peripheral nerve stimulator device, similar to the spinal cord stimulator, was recommended on three occasions to reduce her low back pain. On each instance, plaintiff declined to have the procedure performed. On July 28, 2005, her pain medication dosage was increased.
Treatment notes from February 9, 2006 to September 28, 2006 show a consistent pain level of 8 out of 10. During this time, medications were changed or increased, and hydrotherapy was prescribed. The medical record indicates on July 6, 2006, plaintiff agreed to insertion of the peripheral nerve stimulator and was awaiting the procedure.
After the hearing before the ALJ on February 13, 2006, a consultation exam with Dr. Yong Kim occurred. He reviewed plaintiff's treatment records and conducted a twenty minute examination. He found plaintiff's walking, sitting and standing were limited to three to five hours in an eight hour work day, and lifting limited to ten to twenty pounds. Dr. Yong Kim's report was submitted on May 9, 2006.
Dr. Daniel Kim, one of plaintiff's treating physicians, submitted a rebuttal report. He opined the limits in Dr. Yong Kim's report were the maximum plaintiff could do, and would decrease as the day transpired. Dr. Daniel Kim determined plaintiff's walking and standing was limited to less than two hours a day, and sitting four hours per day, with occasional lifting limited to ten pounds. Furthermore, he restricted plaintiff from climbing, balancing, kneeling, crouching, crawling, or stooping activities and working with heavy machinery or heights because of pain exacerbation and the risk of further injury. In preparing his report of July 6, 2006, Dr. Daniel Kim relied on plaintiff's prior treatment history. While he did not conduct an in person examination of plaintiff, he last examined plaintiff as recently as April 6, 2006. However, evidence of Dr. Daniel Kim's examinations of plaintiff after January 1. 2006 was not presented before the ALJ.
After the ALJ's determination, plaintiff appealed to the Appeals Council, and submitted additional medical records from Mid-Atlantic Spine for the time period between February 9, 2006 through September 28, 2006. In these documents, plaintiff continued to report a pain level of 7-8 out of 10, and interference with her ability to function of 8-10 out of 10.
After the ALJ ordered plaintiff undergo a consultative examination with DDS, plaintiff filed a response on March 16, 2006,
Dr. Borek, a DDS medical consultant, completed a Physical Residual Functional Capacity Assessment ("RFC") on May 3, 2004.
On September 2, 2005, Dr. Falco completed a Lumbar Spine Residual Functional Capacity Questionnaire ("FCQ").
On May 11, 2004, plaintiff underwent a Mental Residual Functional Capacity Assessment.
During her testimony before the ALJ via the video hearing on February 13, 2006, plaintiff amended the onset date of disability to December 17, 2002. Plaintiff testified she completed high school and can read, write and do simple math. Her previous employment consisted of working as a bus and van driver. Plaintiff claimed she can no longer perform this work due to an on the job back injury, incurred while trying to assist an obese patient, and stopped working on the advice of her doctor.
Plaintiff testified she has undergone several surgeries for her back, including implantation of a spinal cord stimulator in 2004. Plaintiff stated her pain level has either remained the same or worsened since the procedures. She described the pain level as 7.5 out of 10, despite surgeries and therapy, and starts at her belt line and radiates into her legs.
Plaintiff testified her pain medications include Morphine 100mgs, Oxycodone 30mgs and Methocarbamol 750mgs, which was recently increased. She asserted the medications had side effects including weight gain, sleepiness, mood swings, poor concentration, grogginess and forgetfulness. Her weight has caused additional problems, affecting use of the bathroom, sleeping and breathing.
Concerning her functional limitations, plaintiff stated she must rest after walking for eight minutes, can only stand for ten minutes at a time, can only sit for twenty to thirty minutes at a time, and had great difficulty bending, kneeling and stooping. Plaintiff also claimed she had difficulty lifting a gallon of milk, and climbing stairs, which is a long and painful process. She stated a port-a-potty was installed on the first floor of her residence to minimize use of the stairs.
Regarding her daily activities, plaintiff stated she only sleeps a maximum of four hours per night due to pain and spasms in her back and legs, despite the medications prescribed. She needs assistance getting out of bed, going to the bathroom, showering, getting in and out of the bathtub, brushing her teeth and hair, as well as with other personal hygiene, and getting dressed, including putting on her shoes. Plaintiff stated her family does most of the cooking, although she can use the microwave and make a sandwich. According to plaintiff, her family also handles household chores, including the grocery shopping. Plaintiff can drive for simple errands, including to the location for the hearing. Finally, plaintiff testified she does not have any hobbies, does not use a computer, and is unable to socialize, but attends church on occasion.
According to the VE, plaintiff's past employment was a semi-skilled position. Her prior jobs skills would be transferable to light driving and/or dispatching positions. During the VE's testimony, the All posited the following hypothetical individual: a thirty-four year old person, with a high school education, work history as a semi-skilled driver, several underlying impairments limiting work at a sedentary level of exertion, with occasional postural changes except never climbing a ladder, rope or scaffolding or crawling, avoiding all exposure to hazards due to medication, moderate exposure to extreme cold, and concentrated exposure to extreme heat, limited to simple, unskilled work, but not at production pace. Given this hypothetical person, the ALJ asked whether any work in the regional or national economy existed that such a person could perform. The VE answered affirmatively and provided examples of three jobs: a sedentary security guard with 300 jobs locally
Plaintiff's attorney posited another hypothetical person to the VE, based on the RFC Questionnaire
In her detailed decision regarding plaintiff's claim for DIB on October 14, 2006, the All concluded as follows:
Plaintiff asserts the ALJ violated the Hearing, Appeals and Litigation law Manual
Plaintiff further notes the ALJ improperly applied the medical improvement standard prior to summarily conclude there has been medical improvement. Plaintiff claims the ALJ improperly relied on, as part of her decision to deny ongoing DIB, the lack of medical evidence after January 1, 2006. Plaintiff posits there was no medical evidence after that date because the ALJ hearing was held on February 13, 2006, and the record was closed at that time. Plaintiff points out she supplied additional medical records to the Appeals Council for the time period after January 1, 2006, and this additional evidence supports her claim for on going disability by showing continued severe pain, no positive improvement in her symptoms, a negative change in her symptoms, and no significant improvement in her ability to function. Plaintiff claims her condition never stabilized which required increased pain medication. Furthermore, plaintiff argues her testimony did not show any medical improvement. Therefore, plaintiff asserts the ALJ's decision finding medical improvement was not supported by substantial evidence.
Finally, plaintiff contends the ALJ failed to obtain a supplemental report from plaintiff's treating physician who was qualified, equipped and willing to perform the additional examination or tests for the fee schedule payment. Additionally, plaintiff maintains the treating source is the preferred source, and the consultative exam was unnecessary. If additional information is needed or to resolve a conflict in the record, her treating physician was available to assist.
Defendant argues the ALJ's decision that plaintiff could perform sedentary occupations, as identified by the VE, after January 1, 2006 was fully supported by substantial evidence. Defendant points to plaintiff's report of significant relief in her leg pain and positive results from her pain medication. Defendant further claims the ALJ properly afforded greater weight to the consultation exam, rather than plaintiff's rebuttal report, even though it came from a treating source, because the consultant, in addition to reviewing plaintiff's medical history, conducted a in-person exam, while the rebuttal physician only relied on past medical history. Furthermore, the rebuttal physician did not point to any current evidence suggesting sedentary work was not appropriate. Additionally, defendant notes plaintiff was evaluated by state agency physicians who believed she was capable of sedentary work. Defendant further contends this court should not rely on any additional evidence presented by plaintiff, since its review should not be based on evidence not presented before the All.
Defendant next argues the ALJ's denial of plaintiff's request for a supplemental hearing did not violate either HALLEX, or plaintiff's due process rights. Defendant maintains HALLEX does not create any judicially enforceable rights. Even where HALLEX is found to be a guiding factor, it only provides a claimant be given an opportunity to examine the evidence prior to its admission into the record. Regarding due process, defendant argues the ALJ provided plaintiff with the essential requirements, that is, the right to confront and challenge evidence in a meaningful way, by allowing plaintiff to examine the consultation report, challenge the report through a rebuttal statement and serve interrogatories. Defendant asserts no showing has been made that a supplemental hearing was necessary, and plaintiff was required to do something more than just request a supplemental hearing. Defendant posits plaintiff needed to show the appearance of the consultant, and subsequent cross-examination were reasonably necessary for the full presentation of the case.
Finally, defendant maintains the ALJ was not required to select one of plaintiff's treating physicians to perform the consultative exam, since the decision on which consultant to use is within the ALJ's discretion. Furthermore, there is no indication the physician plaintiff wanted was currently treating her, and a medical source needs to be re-contacted only when the evidence is inadequate to determine whether the claimant is disabled, which was not the present situation.
Both parties filed motions for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). In determining the appropriateness of summary judgment, the court must "review the record taken as a whole . . . draw[ing] all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence."
This court's review is limited to determining whether the final decision of the Commissioner is supported by substantial evidence.
The Supreme Court has embraced a similar standard for determining summary judgment pursuant to Fed. R. Civ. P. 56:
Where, for example, countervailing evidence consists primarily of the claimant's subjective complaints of disabling pain, the All "must consider the subjective pain and specify his reasons for rejecting these claims and support his conclusion with medical evidence in the record."
Cross-motions for summary judgment are "no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist."
Moreover, "[t]he filing of cross-motions for summary judgment does not require the court to grant summary judgment for either party."
If the All determines a claimant is disabled at any step in the sequence, the analysis stops.
Neither party contests the ALJ's finding of disability from December 17, 2002 until January 1, 2006. Since there are no allegations that the ALJ misapplied any one of the five steps in reaching that decision, the court need not address that finding.
If disability is found, the Social Security Administration has developed an eight step test to determine if a claimant's disability will continue.
The two steps contested in the instant matter are steps three, medical improvement, and eight, work existing in the national economy which plaintiff could perform. These steps will be addressed herein.
The court's review is limited to the evidence actually presented to the ALJ.
The additional evidence submitted to the Appeals Council
Plaintiff argues the reason why this evidence was not submitted to the All was because the record actually closed on February 13, 2006, the day of the hearing. Although when the record closed is unclear, plaintiff's assertion that it closed on February 13 is clearly contrary to the evidence.
On February 13, 2006, the date on which plaintiff alleges the record closed, the ALJ stated the record would remain open for at least two more weeks to allow plaintiff to submit a written witness statement and a closing argument. On February 28, 2006, the ALJ informed plaintiff a consultative examination with DDS had been scheduled. Plaintiff responded to the ALJ's notification on March 16, 2006. The consultant's report was submitted on May 9, 2006. On May 25, 2006, the ALJ requested plaintiff to submit interrogatories to the VE, stating the record would close in ten days if plaintiff did not respond. Plaintiff submitted her interrogatories, along with a post hearing argument, witness statement and other documents to the All on June 5, 2006. Thereafter, plaintiff submitted the rebuttal report of Dr. Daniel Kim on July 6, 2006.
Plaintiff's argument that the record closed on February 13, 2006 is not persuasive. There are multiple examples, mentioned above, indicating the record remained open long after the hearing date. It was not until plaintiff received a partially unfavorable decision, and took an appeal, that plaintiff submitted new evidence. Therefore, plaintiff has not shown good cause for failing to submit this evidence to the ALJ.
An ALJ may order a consultative examination if the claimant's medical source "cannot or will not give [the ALJ] sufficient medial evidence" to determine disability.
Furthermore, claimant's treating source will be the "preferred source to [perform] the additional examination" when, in the ALJ's judgement, the treating source is "qualified, equipped, and wiling to perform the additional examination or tests . . . and generally furnishes complete and timely reports,"
20 C.F.R. § 404.1519h makes clear a claimant's treating source is the preferred source for consultative examinations. While the ALJ has the discretion to refer an examination to a non-treating source, as defendant argues, the ALJ must provide some reason for choosing the non-treating source over a treating source who is qualified, equipped and willing to perform the consultative exam. Section 404.1519h does not address the ALJ's discretion in referring the consultative exam to a non-treating source, but rather the determination whether the treating sources are qualified, equipped and willing to perform. Plaintiff informed the ALJ her treating physician was willing and able to perform the examination.
The defense cites the Third Circuit case Moody v. Barnhart
The question becomes whether the ALJ's error warrants remand for an explanation or if it is akin to harmless error,
Fink determined an ALJ's failure to use a treating physician for a consultative examination was harmless error where the plaintiffs were allowed to submit additional medical reports from their treating physicians, thus leaving their substantive rights unaffected.
This court agrees with the Fifth Circuit's reasoning. In the instant matter, plaintiff had ample opportunity to submit additional evidence to the ALJ, but failed to do so. However, plaintiff did obtain and submit, to the ALJ, a medical report from one of her treating physicians. Therefore, because plaintiff supplemented the record with a report from one of her treating physicians, the procedural error committed by the ALJ, not using a treating physician for the consultative examination, is harmless and did not affect plaintiff's substantial rights.
HALLEX does not carry the force of law.
Plaintiff cites Washington State Dep't of Soc. and Healths Servs. v. Keffeler
The United States Supreme Court has held a party is entitled to "conduct such cross-examination as may be required for a full and true disclosure of the facts."
Plaintiff argues both her rights to a supplemental hearing and due process were violated. Previously before the ALJ, plaintiff only cited two reasons for a supplemental hearing: the opportunity to provide additional live testimony from plaintiff and to crossexamine the VE.
Due process only requires notice and an opportunity to be heard. Plaintiff was give adequate notice that the ALJ intended to make Dr. Yong Kim's consultation part of the record. Furthermore, her opportunity to be heard and challenge Dr. Yong Kim's report was met when she submitted the report from Dr. Daniel Kim as direct rebuttal. Therefore, plaintiff's due process claim fails.
Plaintiff's claim of violation of her right to a supplemental hearing on a statutory basis fails as well. While plaintiff relies heavily on Wallace, the requirements set forth therein have been met. Under Wallace, written comments alone are insufficient, and cross-examination is required when an All, to render a decision, goes outside of the Circuit). evidence proffered at the hearing. Here, plaintiff was allowed to submit additional interrogatories to the VE, file a post-hearing argument, and most importantly, provide a rebuttal report from one of her treating physicians. These actions go beyond mere written comment and satisfy the requirements of Wallace.
Moreover, the facts of the present case and Wallace are distinguishable. In Wallace, the plaintiff objected at the hearing level to the consultative physician's report.
Having found plaintiff did not have a right to a supplemental hearing, the court will briefly address the issue of the right to subpoena. Defendant argues plaintiff may request the issuance of "subpoenas for the appearance and testimony of witnesses" "when it is reasonably necessary for the full presentation of the case,"
Unlike in Wallace, plaintiff in the instant matter did have an opportunity to confront and challenge Dr. Yong Kim's report through Dr. Daniel Kim's rebuttal. Therefore, the ALJ properly concluded, as noted herein, a supplemental hearing was not necessary, rendering plaintiff's right to a post-hearing subpoena immaterial.
"A cardinal principle guiding disability eligibility determinations is that the ALJ accord treating physicians' reports great weight."
The ALJ must consider medical findings supporting the treating physician's opinion that the claimant is disabled.
However, a statement by a treating source that a claimant is "disabled" is not a medical opinion: rather, it is an opinion on an issue reserved to the ALJ because it is an administrative finding that is dispositive of the case.
In the present matter, the ALJ did not give controlling weight to plaintiff's treating physician, Dr. Daniel Kim. For her reasoning, she cited lack of any significant treatment in 2005; he provided no supporting treatment records or findings since January 1, 2006; he had not examined plaintiff since 2004; and plaintiff had repeatedly refused a nerve stimulator, similar to the stimulator used for her leg pain. The same reasons were cited by the ALJ in giving Dr. Daniel Kim's post-hearing report less weight than the report of the consultant, Dr. Yong Kim.
The ALJ properly gave less weight to Dr. Daniel Kim's report and more weight to Dr. Yong Kim's report. Based on the evidence before her, the ALJ determined Dr. Yong Kim was the only physician to recently examine plaintiff.
Dr. Yong Kim, on the other hand, performed a physical examination of plaintiff. As an examining physician, his report is given more weight than if he had only reviewed plaintiff's medical history. Dr. Yong Kim's report was specific and provided evidence for his conclusions, unlike Dr. Daniel Kim's mere conclusory report. Therefore, in the absence of any significant treatment history, physical examination of plaintiff and evidentiary support for his conclusions, the ALJ properly accorded Dr. Daniel Kim's report less weight than the report of Dr. Yong Kim.
The relevant question in determining medical improvement is whether there "has been any medical improvement in [claimant's] impairments and, if so, whether this medical improvement is related to [claimant's] ability to work."
Plaintiff asserts the ALJ improperly found medical improvement. However, the court finds the ALJ's determination of medical improvement is supported by substantial evidence. The record fails to show plaintiff undergoing any significant treatment in 2005. While plaintiff continued to see her treating physicians, the treatment was generally conservative with an occasional modification to her medications. During this time, plaintiff refused a peripheral nerve stimulator implant to reduce her low back pain. This stimulator is similar to the one successfully implanted to reduce her leg pain in 2004. Absence of any explanation from plaintiff for refusing implantation, and based on the absence of any recent evidence regarding treatment, as well as the limited treatment between 2004 to 2006, led the All, and this court, to conclude her back pain was not as severe as claimed, or was under control with the aid of prescriptions.
As discussed herein, the ALJ properly applied greater weight to Dr. Yong Kim's May 9, 2006 report. His report noted plaintiff's range of motion ("ROM") in all extremities was within normal limits ("WNL") with no joint swelling or edema; her cervical spine ROM was WNL with moderate to severe tenderness in the lumbosacral junction; plaintiff could ambulate on heels and toes and her gait was slow, but WNL. Straight leg test elicited pain at forty-five degrees on the right and at seventy-five on the left. Plaintiff's strength was WNL except for some decreased grip strength. Dr. Yong Kim concluded plaintiff would be limited to walking, standing, and sitting for three to five hours during an eight hour day, due to chronic low back pain radiating to her lower extremities. He also found plaintiff could climb stairs and ladders occasionally, as well as balance, kneel, crouch, crawl and stoop occasionally. Lastly, his report stated plaintiff could lift twenty pounds occasionally and ten pounds frequently. The ALJ compared Dr. Yong Kim's findings with the findings from plaintiff's treating physician's September 2005 RFQ which found: reduced ROM in all planes, walking, sitting and standing limited to two hours in an eight hour day, lifting limited to ten pounds, bending, crouching and climbing ladders should be prohibited with twisting performed rarely and climbing stairs occasionally.
Based on a review of the record, and the her reasoning, the ALJ's decision to find medical improvement, allowing plaintiff to perform sedentary work, is supported by substantial evidence.
Since the All found plaintiff had medically improved, and was capable of sedentary work, the next issue for the ALJ to address was whether work existed in the national economy plaintiff could perform. To determine this issue, the ALJ relied on the testimony and expertise of Jan Reed, a VE. When positing questions to a VE, the "hypothetical question must reflect all of claimant's impairments that are supported by the record; otherwise the question is deficient and the expert's answer to it cannot be considered substantial evidence."
Plaintiff makes a single conclusory statement in her demand for relief that the VE be asked a complete question, but she does not advance any argument that the hypothetical posed to the VE was inadequate. As stated herein, the ALJ posed a hypothetical person, with all of plaintiff's impairments and characteristics, to the VE and asked if there was any work existing in the regional and national economy for such a person. In fact, the hypothetical person posited to the VE had more limitations than what Dr. Yong Kim found during his examination, such as no production pace, no crawling or climbing of ladders and limited to jobs that could accommodate a sit/stand option. The VE, who had been present for the entirety of plaintiff's testimony, attested there were at least three jobs existing in the regional and national economy within plaintiff's impairments and restrictions. Therefore, the ALJ's decision that work existed, which plaintiff could perform, is supported by substantial evidence.
Consistent with the findings contained in the Report and Recommendation of the same date, IT IS RECOMMENDED that
Pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D. Del. LR 72.1 any objections to the Report and Recommendation shall be filed withing fourteen (14) days limited to ten (10) pages after being served with the same. Any response shall be limited to ten (10) pages.
The parties are directed to the Court's standing order in Non-Pro Se matters for Objections Filed under Fed. R .Civ. P. 72, (dated November 16, 2009), a copy of which is available on the Court's website,
