BOUCHARD v. COMMISSIONER OF SOCIAL SECURITY

Filing 21

OPINION. Signed by Judge Renee Marie Bumb on 12/11/2014. (drw)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

LISA NANCY BOUCHARD,
Plaintiff,

Civil No. 13-5283 (RMB)

v.

OPINION

CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.
APPEARANCES:
Jason L. Thompson
Leventhal Sutton & Gornstein
3800 Horizon Blvd., Ste. 101
Trevose, PA 19053
Attorney for Plaintiff
Paul J. Fishman
Jeremy A. Linden
United States Attorney’s Office
c/o Social Security Administration
26 Federal Plaza, Room 3904
New York, NY 10278
Attorneys for Defendant
BUMB, UNITED STATES DISTRICT JUDGE:
Plaintiff Lisa Nancy Bouchard (the “Plaintiff”) seeks
judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3)
of the final decision of the Acting Commissioner of Social
Security (the “Commissioner”) denying her application for a
period of disability and Disability Insurance Benefits (“DIB”).

For the reasons set forth below, the Court will vacate the
decision and remand for further proceedings consistent with this
Opinion.
I.

Background
a. Procedural Background
On January 29, 2010, Plaintiff filed an application for a

period of disability and DIB, alleging a disability onset date
of June 25, 2005. (Administrative Record “R.” 29.) Her claim was
denied initially on May 24, 2010 (id.) and upon reconsideration
on June 23, 2010. (Id.) Thereafter, a written request for a
hearing before an Administrative Law Judge (“ALJ”) was filed on
August 17, 2010. (Id.)
On October 4, 2011, Plaintiff, represented by attorney
Nancy Becer, appeared at the hearing held before Honorable Judge
Mark G. Barrett. (Id.) On October 21, 2011, the ALJ issued a
decision denying Plaintiff’s application (Id. at 29-35), which
became the final judgment of the Commissioner of Social Security
after the Appeals Council denied Plaintiff’s request for review
on April 26, 2013. (Plaintiff’s Brief “Pl.’s Br.” at 2.)
Subsequently, Plaintiff commenced this action, requesting
judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
(Pl.’s Br. at 1.)
b. The ALJ’s Decision

2

Applying the requisite five-step analysis, the ALJ
concluded that Plaintiff met the insured status requirements of
sections 216(i) and 223 1 of the Social Security Act through June
30, 2005 (the “date last insured”), and that Plaintiff has not
engaged in substantial gainful activity since the alleged onset
date, June 25, 2005 through her date last insured, June 30,
2005. (R. 29, 31.) The ALJ also found that Plaintiff had a
severe impairment, lumbar disc disease, and that she also
alleged diverticulitis and depression during that time period.
(Id. at 31.) As to these two impairments, however, the ALJ
concluded that “they did not appear to last for more than 12
months or there is no evidence that they more than minimally
impacted the claimant’s ability to perform basic work activities
during that period at issue.” (Id. at 32.) In evaluating her
depression, the ALJ concluded that she had no limitation in the
functional areas of daily living, social functioning, and
concentration, persistence or pace, and she experienced no
episodes of decompensation of extended duration. (Id.)
Accordingly, he found it was a nonsevere impairment. As to her
diverticulitis, the ALJ noted that the record contained some

1

Sections 216(i) and 223(d), of the Social Security Act define
“disability” as the 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 twelve months.”

3

evidence of diverticulitis and abdominal pain but ultimately
concluded it was not a severe impairment that lasted or could be
expected to last longer than 12 months. (Id. at 31-32.)
The ALJ next determined that Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, App. 1. (Id. at 32.) Furthermore,
based on his findings, the ALJ determined that Plaintiff had the
residual functional capacity to perform “the full range of light
work except she is limited to standing or walking for 2 hours in
an 8 hour day as defined in 20 CFR 404.1567(b).” (Id. at 32-33.)
In making these findings, the ALJ stated that Plaintiff’s
“medically determinable impairments could reasonably be expected
to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they
are inconsistent with the medical evidence of record.” (Id. at
33.) In so holding, the ALJ noted the lack of treating source
opinions relevant to the period at issue. (Id. at 34.)
After performing the RFC assessment, the ALJ determined
that Plaintiff was unable to perform her past relevant work as
an EKG technician. (Id.) Furthermore, the ALJ concluded that
Plaintiff was a “younger individual” as of the date last
insured, had at least a high school education and was able to

4

communicate in English. He further determined that
transferability of job skills was immaterial to his
determination under the Medical-Vocational Rules. (Id. at 34.)
Then, considering Plaintiff’s age (42 years old as of the date
last insured (id. at 29)), education, work experience, and RFC
as determined, the ALJ found that there were jobs that existed
in significant numbers in the national economy that Plaintiff
could have performed. (Id. at 35.) He then applied MedicalVocational Rule 201.21 and found Plaintiff was not under a
disability at any time from June 25, 2005, the alleged onset
date, through June 30, 2005, the date last insured. (Id.) Thus,
Plaintiff’s application for DIB was denied. 2
II.

Standard of Review
A reviewing court must uphold the Commissioner of Social

Security’s factual findings if they are supported by
“substantial evidence,” even if the court would have decided the
inquiry differently. 42 U.S.C. §§ 405(g), 1383(c)(3); Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000); Fargnoli v. Massanari,
247 F.3d 34, 38 (3d Cir. 2001). “Substantial evidence” means
“‘more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a

2

In order to be entitled to DIB, a claimant must establish that
she became disabled prior to the expiration of her insured
status. 42 U.S.C. § 423(a)(1)(A),(c)(1).

5

conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Cons. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Where the
evidence is susceptible to “more than one rational
interpretation, the Commissioner’s conclusion must be upheld.”
Ahearn v. Comm’r, 165 F. App’x 212, 215 (3d Cir. 2006) (citing
Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984); Monsour Med.
Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986)).
If faced with conflicting evidence, however, the
Commissioner “must adequately explain in the record his reason
for rejecting or discrediting competent evidence.” Ogden v.
Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v.
Heckler, 786 F.2d 581 (3d Cir. 1986)). Stated differently,
[U]nless the [Commissioner] has analyzed all evidence and
has sufficiently explained the weight he has given to
obviously probative exhibits, to say that his decision is
supported by evidence approaches an abdication of the
court’s duty to scrutinize the record as a whole to
determine whether the conclusions reached are rational.
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978) (quoting
Arnold v. Sec’y of Health, Ed. & Welfare, 567 F.2d 258, 259 (4th
Cir. 1977)) (internal quotations omitted); see also Guerrero v.
Comm’r, No. 05-1709, 2006 WL 1722356, at *3 (D.N.J. June 19,
2006) (“The ALJ’s responsibility is to analyze all the evidence
and to provide adequate explanations when disregarding portions
of it.”), aff’d, 249 F. App’x 289 (3d Cir. 2007).

6

While the Commissioner’s decision need not discuss “every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App’x 130, 133 (3d Cir. 2004), it must consider all pertinent
medical and non-medical evidence and “explain [any]
conciliations and rejections,” Burnett v. Comm’r, 220 F.3d 112,
122 (3d Cir. 2000). See also Fargnoli, 247 F.3d at 42 (“Although
we do not expect the [administrative law judge] to make
reference to every relevant treatment note in a case where the
claimant . . . has voluminous medical records, we do expect the
ALJ, as the factfinder, to consider and evaluate the medical
evidence in the record consistent with his responsibilities
under the regulations and case law.”).
In addition to the “substantial evidence” inquiry, the
reviewing court must also determine whether the ALJ applied the
correct legal standards. See Friedberg v. Schweiker, 721 F.2d
445, 447 (3d Cir. 1983); Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000). The court’s review of legal issues is plenary.
Sykes, 228 F.3d at 262 (citing Schaudeck v. Comm’r, 181 F.3d
429, 431 (3d Cir. 1999)).
“Disability” Defined
The Social Security Act defines “disability” as the
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

7

lasted or can be expected to last for a continuous period of not
less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Act
further states,
[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.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step, sequential
analysis for evaluating a claimant's disability, as outlined in
20 C.F.R. § 404.1520(a)(4)(i-v). In Plummer, 186 F.3d at 428,
the Third Circuit described the Commissioner’s inquiry at each
step of this analysis:
In step one, the Commissioner must determine whether
the claimant is currently engaging in substantial
gainful activity. 20 C.F.R. § 1520(a). If a claimant
is found to be engaged in substantial activity, the
disability claim will be denied. Bowen v. Yuckert, 482
U.S. 137, 140 (1987).
In step two, the Commissioner must determine whether
the claimant is suffering from a severe impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show
that [his] impairments are “severe,” [he] is
ineligible for disability benefits.
In step three, the Commissioner compares the medical
evidence of the claimant's impairment to a list of
impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant

8

does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and
five.
Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to
perform [his] past relevant work. 20 C.F.R.
§ 404.1520(d). The claimant bears the burden of
demonstrating an inability to return to [his] past
relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994). If the claimant is unable to resume [his]
former occupation, the evaluation moves to the final
step.
At this [fifth] stage, the burden of production shifts
to the Commissioner, who must demonstrate the claimant
is capable of performing other available work in order
to deny a claim of disability. 20 C.F.R.
§ 404.1520(f). The ALJ must show there are other jobs
existing in significant numbers in the national
economy which the claimant can perform, consistent
with [his] medical impairments, age, education, past
work experience, and residual functional capacity. The
ALJ must analyze the cumulative effect of all the
claimant's impairments in determining whether [he] is
capable of performing work and is not disabled. See 20
C.F.R. § 404.1523. The ALJ will often seek the
assistance of a vocational expert at this fifth step.
See Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.
1984).
III. Analysis
Plaintiff argues that the ALJ (1) erred at Step Two in
failing to find that Plaintiff’s diverticulitis was a severe
impairment; (2) erred in calculating Plaintiff’s RFC; and
(3) erred by failing to consider Plaintiff’s husband’s statement
as to Plaintiff’s functional capabilities. The Court addresses
each in turn.

9

a. The ALJ Did Not Err in Finding Plaintiff’s
Diverticulitis Was Not a Severe Impairment
Plaintiff first argues that the ALJ erred in failing to
find that Plaintiff’s diverticulitis was a severe impairment. At
Step Two of the sequential analysis, the ALJ found that, while
there was some of evidence of Plaintiff’s diverticulitis prior
to the date last insured, June 30, 2005, there was insufficient
evidence to conclude that it either lasted for more than 12
months or that it more than minimally impacted the claimant’s
ability to perform basic work activities. (R. 31-32.) Plaintiff
contends that the ALJ’s finding regarding the duration was
erroneous as a matter of law, and is not supported by
substantial evidence. Plaintiff is incorrect.
At Step Two, an ALJ is directed to assess whether Plaintiff
suffers from any medically determinable impairments, or
combination thereof, which severely impair Plaintiff. 20 C.F.R.
§ 404.1520(c). In effect, the inquiry at Step Two functions as a
de minimus screening device to dismiss unfounded claims. See
Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003).
A medically determinable impairment is one that,
result[s] from anatomical, physiological, or
psychological abnormalities which can be shown by
medically acceptable clinical and laboratory
diagnostic techniques. A physical or mental
impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory
findings, not only by [Plaintiff’s] statement of
symptoms . . . .

10

20 C.F.R. §§ 404.1508, 416.908. According to the Commissioner’s
regulations, “an impairment is not severe if it does not
significantly limit [the claimant’s] physical ability to do
basic work activities.” Newell, 347 F.3d at 546 (citations
omitted); 20 C.F.R. §§ 404.1520(c), 404.1521(a). Basic work
activities are “abilities and aptitudes necessary to do most
jobs,” including, walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying or handling.” 20 C.F.R.
§ 140.1521(b)(1).
Furthermore, and contrary to Plaintiff’s contention,
Plaintiff’s medically determinable impairment, or combination of
impairments, must have “lasted or [could] be expected to last
for a continuous period of not less than twelve months” in order
for her to be considered disabled. 42 U.S.C. § 1382c(a)(3)(A).
Unrelated yet severe impairments that do not individually meet
the durational requirement of twelve months cannot be tacked on
to reach the Act’s durational requirement. 3 20 C.F.R.
§§ 404.1522(a), 416.922(a).

3

20 C.F.R. §§ 404.1522(a) provides in relevant part: “We cannot
combine two or more unrelated severe impairments to meet the 12month duration test. If you have a severe impairment(s) and
then develop another unrelated severe impairment(s) but neither
one is expected to last for 12 months, we cannot find you
disabled, even though the two impairments in combination last
for 12 months.”

11

Because Plaintiff must only demonstrate more than a “slight
abnormality” to satisfy the severity requirement at Step Two, an
ALJ’s decision to deny disability benefits at this step “should
be reviewed with close scrutiny.” McCrea v. Comm'r of Soc. Sec.,
370 F.3d 357, 360 (3d Cir. 2004); see also Newell, 347 F.3d at
546 (“Only those claimants with slight abnormalities that do not
significantly limit any ‘basic work activity’ can be denied
benefits at step two.”) (citation omitted). If there exists a
reasonable doubt as to the severity of Plaintiff’s impairments,
it is “to be resolved in favor of the claimant.” Id. (footnote
omitted).
Here, however, the ALJ did not deny benefits at Step Two.
Rather, he concluded that the record contained insufficient
evidence to classify Plaintiff’s alleged diverticulitis 4 as a
severe impairment that lasted, or would be expected to last, at
least twelve months. This conclusion is supported by substantial
evidence in the record. As the ALJ noted, the record contains
some evidence of Plaintiff’s diverticulitis, as well as a
history of complaints of abdominal pain, going back to 2001.
(See R. 31 (citing Ex. 1F, 7F).) For example, on February 5,

4

“Diverticulitis refers to ‘small, bulging sacs or pouches of
the inner lining of the intestine (diverticulosis) that become
inflamed or infected. Most often, these pouches are in the large
intestine (colon).’” Sprowls v. Astrue, No. 11-0698, 2012 WL
832891, at *2 n.5 (W.D. Pa. March 12, 2012) (citation omitted).

12

2002, a CT was performed and revealed “several scattered sigmoid
diverticula” suggestive of “very mild sigmoid diverticulitis.”
(Id. at 311.) However, the CT findings also found “no evidence
of a peridiverticular collection,” bowel obstruction, or free
fluid. (Id.) Over a year later, on February 13, 2003,
Plaintiff’s treating physician, Dr. Andrea Hulse, recorded
Plaintiff’s complaints of stomach pain and diarrhea, but noted a
little more than a week later that Plaintiff’s “mild”
diverticulitis was “resolved.” (Id. at 352, 354.) Similarly,
Plaintiff experienced intermittent abdominal pain for a few days
in February 2004, but there is no evidence of any complaints or
diagnoses of diverticulitis between February 2004 and June 2005.
(Id. at 353; see also id. 347-48, 351, 353, 572-73.)
After more than a year without evidence of any
diverticulitis complaints, on June 20, 2005, a few days prior to
Plaintiff’s alleged onset date, a CT showed “diverticulosis coli
but no evidence for diverticulitis at this time.” (Id. at 416.)
The following day, Dr. Hulse reported that Plaintiff’s
diverticulitis was “stable.” (Id. at 349.) Because Plaintiff’s
CT scan showed a fatty liver associated with abnormal liver
tests, she was referred to Dr. Lee deLacy who saw Plaintiff on
August 1, 2005. (See id. at 378.) Dr. deLacy noted that in July,
Plaintiff had experienced a bout of severe abdominal pain and
had been treated for presumptive diverticulitis and slowly

13

improved. (Id.) She was then hospitalized from October 2-8,
2005, and was diagnosed with diverticulitis, among other things.
(Id. 375-76.) In January 2006, Plaintiff experienced another
bout of abdominal pain and was referred for a surgical consult.
(Id. at 345.)
Plaintiff testified that her problems with the
diverticulitis ended with her bowel resection, which occurred in
March 2006. 5 (See R. 74; see also id. at 219.) Although she
learned that her “diverticula came back” in 2011, she testified
that she had not been treated because she had not suffered any
“flare-ups.” (Id.) 6 Accordingly, while the medical evidence
reflects a few diagnoses of diverticulosis or diverticulitis
prior to the date last insured, the medical evidence reflects no
bouts of diverticulitis from February 2004 to June 2005 and
Plaintiff testified that her March 2006 surgery resolved her
diverticulitis at least until 2011.

5

Plaintiff testified that her diverticulitis did not clear up
until 2007, but she later clarified that the 2007 surgery was to
repair a hernia that was a complication of her 2006 surgery.
(See R. 75.)
6

Thus, while Plaintiff also argues that the ALJ’s failure to
consider her diverticulitis as a severe impairment is
particularly harmful because he later fails to address any
associated impairments, her own testimony reflects that she
experienced symptoms only during flare-ups and that her 2006
surgery resolved any associated problems.

14

Regardless, even if the ALJ erred in concluding that
Plaintiff’s diverticulitis did not constitute a severe
impairment, any such error is harmless because the ALJ concluded
that Plaintiff’s lumbar disc disease was a severe impairment.
See Rosa v. Comm’r of Soc. Sec., No. 12–5176, 2013 WL 5322711,
at *7 (D.N.J. Sept. 20, 2013) (“The Third Circuit has indicated
that an ALJ’s erroneous finding that some of a claimant’s
impairments are not severe at step two is harmless if the ALJ
finds that the claimant has other severe impairments.”). For
this reason, remand would not be required.
b. The ALJ Erred in Calculating Plaintiff’s RFC
The ALJ concluded that Plaintiff had the RFC to perform the
full range of light work except she is limited to standing or
walking for two hours in an eight-hour day. Plaintiff contends
that the ALJ erred in calculating her RFC because (i) he failed
to accord appropriate weight to the opinion of Plaintiff’s
treating physician, Dr. Hulse; 7 (ii) he made a mistake of fact in
interpreting the medical records of Plaintiff’s physical
therapist, Michael Reynolds (“PT Reynolds”); and (iii) his

7

This Court construes Plaintiff's arguments regarding the ALJ's
determinations with respect to her treating physician as a
challenge to the ALJ's step four finding of Residual Functional
Capacity. See Johnson v. Comm'r, 529 F.3d 198, 201 (3d Cir.
2008) (construing arguments regarding treating physician's
opinions as a challenge to the ALJ's step four finding).

15

conclusion that Plaintiff could perform the full range of light
work is contradicted by his finding that Plaintiff was limited
to standing or walking for two hours in an eight-hour day.
A plaintiff’s RFC is her maximum remaining ability to do
sustained work activities in an ordinary work setting on a
regular and continuing basis. See Social Security Ruling (“SSR”)
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 another
similar schedule. The RFC assessment must include a discussion
of the individual's abilities. Id.; 20 C.F.R. §§ 404.1545 and
416.945; Hartranft v. Apfel, 181 F.3d 358, 359 n. 1 (3d Cir.
1999) (“‘[RFC]’ is defined as that which an individual is still
able to do despite the limitations caused by his or her
impairment(s).”). Ultimately, the final responsibility for
determining a claimant’s RFC is reserved to the Commissioner. 20
C.F.R. §§ 404.1527(e), 416.927(e).
First, Plaintiff argues that the ALJ failed to give
appropriate weight to the opinion of Plaintiff’s treating
physician, Dr. Hulse. Plaintiff correctly notes that an ALJ must
accord “[t]reating physicians’ reports . . . great weight,
especially when their opinions reflect expert judgment based on
a continuing observation of the patient’s condition over a
prolonged period of time.” Plummer, 186 F.3d at 429 (internal

16

citations omitted). Here, Dr. Hulse submitted a letter in
support of Plaintiff’s appeal of the denial of DBI, in which Dr.
Hulse summarized her treatment of Plaintiff’s “many medical
conditions” since October 1999. (R. 572-73.) Dr. Hulse’s
treatment records were also submitted to the ALJ, who considered
them in rendering his decision. (See, e.g., id. at 31 (citing
Ex. 7F).) After summarizing her treatment notes, Dr. Hulse
states that “[s]ubjectively, the patient relates a long history
of recurrent medical problems as outlined above which prohibit
her from working. She relates a repeating pattern of taking a
job only to find herself experiencing flare-ups of her back pain
and/or a flare-up of her chronic abdominal pain requiring her to
quit or risk being fired for medical reasons.” (Id. at 573.)
This letter, however, cannot be viewed as an opinion of
Plaintiff’s treating physician concerning her functional
capabilities during the relevant time period. At best, it is a
recitation of Dr. Hulse’s treatment notes and relates
Plaintiff’s own complaints regarding her inability to work –
evidence the ALJ considered in rendering his decision. Even if
the Court were to construe this letter as reflecting Dr. Hulse’s
opinion that Plaintiff is unable to engage in sustained work on
a regular and continuing basis, such an opinion is on an issue
reserved to the Commissioner and, as such, cannot be afforded
controlling weight. See, e.g., 20 C.F.R. § 404.1527(d)(1)

17

(“Opinions on some issues, such as the examples that follow, are
not medical opinions, as described in paragraph (a)(2) of this
section, but are, instead, opinions on issues reserved to the
Commissioner because they are administrative findings that are
dispositive of a case; i.e., that would direct the determination
or decision of disability. (1) Opinions that you are
disabled. . . . A statement by a medical source that you are
‘disabled’ or ‘unable to work’ does not mean that we will
determine that you are disabled.”). Because the ALJ addressed
the medical evidence of record, including evidence from Dr.
Hulse’s treatment notes, he did not err in failing to
specifically address or give controlling weight to Dr. Hulse’s
July 23, 2010 letter.
Second, Plaintiff contends that the ALJ made a mistake of
fact in interpreting the treatment notes of Plaintiff’s physical
therapist, PT Reynolds. In determining Plaintiff’s RFC, the ALJ
noted that
“the claimant’s treating physical therapist stated
that the claimant has had no functional limitations
and that she was able to bend, garden, sit for more
than 1 hour and lift or hold her nephew and a laundry
basket (Exhibit 2F, page 9). He found ‘no functional
deficits’ and described [] her back condition at that
time as a ‘flare up.’”
(R. 34.) The Court agrees with Plaintiff that the ALJ’s
interpretation appears to be contradicted by PT Reynolds’ notes.
On July 11, 2005, Plaintiff saw PT Reynolds, complaining of a

18

recent flare-up of unknown origin in her back pain. (Id. at
260.) PT Reynolds recorded Plaintiff’s chief complaints as
“can’t bend, sit[,] difficulty holding nephew/lifting,
gardening/carrying laundry.” (Id.) He also noted that her
symptoms were exacerbated by prolonged sitting. In examining
her, PT Reynolds noted no limitation in extension, but flexion
of 27 cm, right lateral flex of 54 cm, and left lateral flex of
48 cm with associated “mild pain.” (Id.) He further noted
painful palpitation of lumbar paraspinals and piriformis. (Id.
at 261.)
Of particular importance, PT Reynolds’ notes contain a
section titled “Functional Abilities,” which permits the PT to
record the current “Status” of various listed activities as well
as the “Functional Goal/Time Frame.” PT Reynolds recorded
limitations in the areas of gardening, sitting, lifting, and
carrying but no limitations in the areas of standing and
sleeping. In providing further explanation, PT Reynolds wrote:
“able to bend to ground to garden [without increased pain]”;
“able to sit >1 hour to use computer, watch TV [without
increased pain]”; “able to lift and hold nephew [without
increased pain]”; and “able to carry laundry basket [without
increased pain].” (Id.) These explanations start in the “Status”
column and continue into the “Functional Goal/Time Frame” column
of the form, with no distinction. Then, in the comments section

19

below this table, he wrote “PTI, no functional deficits, but has
been careful during ‘flareups.’” 8 (Id.)
It appears from the ALJ’s decision that he may have
considered PT Reynolds’ explanations as setting forth
Plaintiff’s current functional status. However, a review of the
entire form suggests that PT Reynolds recorded only the
therapeutic goals on page two because he had already noted
Plaintiff’s functional abilities on the previous page of his
treatment notes. Indeed, the notes that begin in the status
column of page 2 directly contradict the chief complaints
recorded on page 1, which suggests that the ALJ erred in
interpreting PT Reynolds’ treatment notes. (Compare R. 260, with
id. at 261.) This conclusion is further supported by PT
Reynolds’ discharge report in which he writes that her primary
goals of treatment are to bend to garden, sit for more than an
hour, lift and hold her nephew, and carry the laundry. (Id. at
259.)

8

The parties dispute the meaning of “PTI”; Plaintiff contends
that it stands for prior to injury, while Defendant argues that
it could mean physical therapist impression. The ALJ’s opinion
provides no explanation or interpretation of this acronym.
Because the Court is remanding the matter for further
consideration, the ALJ may address this issue at that time. It
appears, however, that even if the ALJ adopts Plaintiff’s
interpretation of PTI, PT Reynolds’ notes reflect that Plaintiff
had nearly recovered from her injury within only a few weeks.
(See R. 259.)

20

The impact of this apparent mistake of fact is clear. If
the PT’s comments reflect Plaintiff’s functional status at the
relevant time, they would not be inconsistent with the RFC that
the ALJ ultimately assigned. If, however, as Plaintiff argues,
these explanations were actually intended to describe
Plaintiff’s physical therapy goals (not her status), then they
seem to suggest that Plaintiff was unable to complete those
activities and thus the evidence contradicts the ALJ’s assigned
RFC. In the latter case, the ALJ must provide an explanation of
his rejection of this seemingly contradictory probative
evidence. See Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir.
2001) (“Where there is conflicting probative evidence in the
record, we recognize a particularly acute need for an
explanation of the reasoning behind the ALJ’s conclusions, and
will vacate or remand a case where such an explanation is not
provided.”) (citation omitted). This mistake of fact also
impacts the ALJ’s credibility determination. The ALJ held that
“the claimant’s statements concerning the intensity, persistence
and limiting effects of [her] symptoms are not credible to the
extent they are inconsistent with the medical evidence of
record.” (R. 33.) If the ALJ mistakenly interpreted the medical
evidence, however,

such a mistake of fact could have affected

his assessment of Plaintiff’s subjective complaints of pain and
her associated subjective limitations. Accordingly, this matter

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must be remanded to the ALJ for further consideration of PT
Reynolds’ notes.
The Court notes that the ALJ is free to reach the same
conclusion regarding Plaintiff’s RFC on remand. Plaintiff
described her back injury as resulting in “intermittent
[symptoms] that flareup at times” and seems to have explained
that she needed to be “careful” during those flare-ups. (R. 26061.) PT Reynolds noted that she exhibited “mild pain” with
certain movements, but he opined that her rehabilitation
potential was good with only six weeks of treatment. (Id.) The
medical evidence suggests that Plaintiff attended physical
therapy for only a few weeks before she missed appointments due
to a death in the family. (Id. (showing a date of last visit in
August 2005).) Even so, PT Reynolds recorded that, while no
formal reassessment was possible due to Plaintiff’s missed
appointments, Plaintiff’s treatment goals had been nearly
achieved within that short time frame. (Id.) 9

9

Thus, the ALJ may

Because the Court is remanding this matter to allow the ALJ to
reconsider the opinion of PT Reynolds, as well as its impact on
the ALJ’s credibility findings, the Court need not address
Plaintiff’s third argument regarding the ALJ’s inconsistent RFC
findings. The Court notes, however, that even if the ALJ erred
in finding that Plaintiff could perform the full range of light
work and instead should have found Plaintiff capable of
performing sedentary work, Medical-Vocational Rule 201.21 still
directs a finding of not disabled. 20 C.F.R. Part 404, Subpart
P, App. 2; see also SSR 96-9p (“Jobs are sedentary if walking
and standing are required occasionally and other sedentary
criteria are met. ‘Occasionally’ means occurring from very
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still conclude that the medical evidence does not support
further functional limitations.
c. The ALJ Did Not Err In Failing to Specifically
Address the Statement of Plaintiff’s Husband
Finally, Plaintiff argues that the ALJ erred in failing to
assess the August 27, 2011 statement of Plaintiff’s husband. Mr.
Bouchard submitted a letter summarizing Plaintiff’s medical
conditions and related treatments from 1999 to 2011. (R. 21920.) In particular, he referenced her stomach and back pain
during the relevant period. He further explained that over the
last 13 years, “her quality of life greatly reduced” to the
point that she is “now” dependent upon Mr. Bouchard for even
simple tasks. He described at great length Plaintiff’s
functional abilities in 2011: for example, she was unable to
lift herself out of bed, stand or sit for long periods, and
needed help with getting out of bed or the car and with walking
up stairs. She was also unable to go shopping without
assistance, do laundry, or walk her dogs. Mr. Bouchard noted in

little up to one- third of the time, and would generally total
no more than about 2 hours of an 8-hour workday. Sitting would
generally total about 6 hours of an 8-hour workday.”); SSR 83-10
(“In addition, RFC generally represents an exertional work
capability for all work at any functional level(s) below that
used in the table under consideration.”); 20 C.F.R.
§ 404.1567(b) (“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.”).

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closing that her pain management program was not “currently”
reducing her pain. (Id. at 220.)
As noted by the Commissioner, this letter sheds little
light on Plaintiff’s functional abilities during the relevant
time period. Indeed, the portion of Mr. Bouchard’s letter
addressing the relevant time period merely parrots the medical
records that the ALJ addressed and notes that Plaintiff
experienced back and stomach pain, which is not disputed. But
Mr. Bouchard’s statement does not conflict with the ALJ’s
analysis. While the ALJ must “explicitly” weigh all relevant,
probative and available evidence, Dobrowolsky v. Califano, 606
F.2d 403, 407 (3d Cir. 1979), it is clear that the ALJ need not
discuss “every tidbit of evidence included in the record,” Hur
v. Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004). Only where the
ALJ rejects conflicting probative evidence must the ALJ explain
his findings and the reasoning for his conclusions. Walker v.
Comm'r of Soc. Sec., 61 F. App’x 787, 788–89 (3d Cir. 2003).
Because Mr. Bouchard’s letter provides no description of
Plaintiff’s functional capacity during the relevant time, the
ALJ did not err in failing to explicitly address it. See, e.g.,
Davis v. Colvin, No. 12-4039, 2014 WL 641350, at *10-11 (E.D.
Pa. Feb. 19, 2014) (finding no error where husband’s testimony
was “superfluous” and the ALJ adequately addressed the medical
evidence as well as plaintiff’s own testimony); cf. Ding v.

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Colvin, No. 12-1835, 2014 WL 1315386, at *23 (M.D. Pa. March 28,
2014) (finding ALJ erred in failing to consider corroborating
statements submitted by plaintiff’s mother).
IV.

Conclusion
In sum, because there remains a material question as to

whether the ALJ made a mistake of fact in interpreting the
treatment notes of Plaintiff’s physical therapist, which may
ultimately impact the validity of the RFC as well as the ALJ’s
credibility determination, this matter must be remanded for
further proceedings.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: December 11, 2014

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