RHODES v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION. Signed by Judge Jerome B. Simandle on 3/5/2019. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

GEORGE M. RHODES, III,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 18-0678 (JBS)

COMMISSIONER OF SOCIAL
SECURITY,
OPINION
Defendant.

APPEARANCES:
Daniel Sylvester Jones
LAW OFFICES OF HARRY J. BINDER & CHARLES E. BINDER
485 Madison Avenue, Suite 501
New York, NY 10022
Attorney for Plaintiff
Rachel E. Licausi
Special Assistant U.S. Attorney
Social Security Administration
Office of the General Counsel
300 Spring Garden Street
Philadelphia, PA 19123
Attorney for Defendant
SIMANDLE, District Judge:
INTRODUCTION
This matter comes before the Court pursuant to 42 U.S.C.
§ 405(g) for review of the final decision of Defendant Commissioner
of the Social Security Administration (hereinafter “Defendant”)
denying

the

application

of

Plaintiff

George

M.

Rhodes,

III

(hereinafter “Plaintiff”) for disability benefits under Title II
of the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff,

who suffers from lumbar disc disease, status-post lumbar fusion
surgery

and

spinal

cord

implantation

procedure,

lumbar

radiculopathy, and anxiety, was denied benefits for the period
beginning

on

November

20,

2012,

the

alleged

onset

date

of

disability, to October 5, 2016, the date on which Administrative
Law Judge Marguerite Toland (hereinafter “ALJ Toland” or “the ALJ”)
issued her written decision.
In
decision

the

pending

must

be

appeal,

reversed

Plaintiff

and

argues

remanded

on

that

the

numerous

ALJ’s

grounds,

including that the ALJ erred by failing to properly weigh the
medical evidence, specifically by giving greater weight to the
non-treating

physician’s

opinion

that

was

based

only

on

Plaintiff’s medical record as it existed in November 2013, and by
failing to properly evaluate Plaintiff’s testimony at the ALJ
hearing,

in

particular

by

improperly

discounting

Plaintiff’s

statements regarding his spinal conditions and by suggesting that
the severity of Plaintiff’s conditions are contradicted by a gap
in his treatments without questioning Plaintiff about the alleged
gap in treatment during the hearing.
BACKGROUND
A.

Procedural History

Plaintiff

filed

his

application

for

Social

Security

disability benefits on June 3, 2013, alleging a disability onset
date of November 20, 2012. (Administrative Record (hereinafter

2

“R.”) [Docket Item 7], 43.) Plaintiff’s claim was denied by the
Social

Security

Plaintiff’s

Administration

claim

was

again

on

November

denied

upon

25,

2013.

(Id.)

reconsideration

on

February 28, 2014. (Id.) Plaintiff next testified before ALJ Toland
at a hearing on May 24, 2016. (Id.) ALJ Toland issued her opinion
on October 5, 2016, denying Plaintiff benefits. (Id. at 43-52.) On
November 14, 2017, the Appeals Council denied Plaintiff’s request
for review. (Id. at 1-4.) This appeal timely follows.
B.

Medical History

Plaintiff

has

been

diagnosed

with

lumbar

disc

disease,

status-post lumbar fusion surgery and spinal cord implantation
procedure, lumbar radiculopathy, and anxiety. (Id. at 45.) In 2002,
Plaintiff had a lumbar fusion surgery and, after recurring back
pain, he underwent a surgery in 2004 to remove hardware from the
earlier surgery. (Id. at 244-53.)
Subsequently, at least as early as the autumn of 2012,
Plaintiff began receiving treatment for severe back pain from his
primary care physician, Dr. Joseph Cavallaro, D.O., (id. at 408),
from his orthopedic surgeon, Dr. Steven J. Valentino, D.O., (id.
at 273-88), from his pain management specialist, Dr. Youssef
Josephson, D.O., (id. at 318-20), and from his neurologist, Dr.
Robert A. Sammartino, D.O. (Id. at 264-71.) Due to the severity of
the

pain

Plaintiff

was

experiencing,

his

treatment

included

providing Plaintiff with prescription painkillers. On October 4,

3

2012, Dr. Valentino wrote Plaintiff a prescription for Percocet.1
(Id. at 287.) On December 2, 2012, Dr. Josephson determined that
Percocet was insufficient to treat Plaintiff’s pain, and therefore
he prescribed Cymbalta.2 (Id. at 318-20.) After his physicians
determined that treating Plaintiff’s pain with medication alone
was insufficient, Plaintiff later underwent multiple surgeries to

1

Percocet is a brand name for a pharmaceutical consisting of a
combination of oxycodone hydrochloride and acetaminophen. (See
Dorland’s Illustrated Medical Dictionary 1409 (32d ed. 2012).) At
some points, the record indicates that Plaintiff was prescribed
“oxycodone-acetaminophen,” (see, e.g., R. at 331), which the Court
interprets to be the same medication. For the ease of reading, the
Court shall refer to this medication as “Percocet,” though
Plaintiff may have been taking a generic version of this medicine
at certain points in his treatment.
2

Cymbalta is a brand name for a pharmaceutical consisting of
duloxetine hydrochloride. (See Dorland’s Illustrated Medical
Dictionary 457 (32d ed. 2012).) For the ease of reading, the Court
shall refer to this medication as “Cymbalta,” though Plaintiff may
have been taking a generic version of this medicine at certain
points in his treatment.
Plaintiff would later also be prescribed Neurontin. (R. at 331.)
Neurontin is a brand name for certain preparations of the
pharmaceutical known generically as “gabapentin,” which is an
anticonvulsant, used to treat partial seizures. (See Dorland’s
Illustrated Medical Dictionary 753, 1268 (32d ed. 2012).) At some
points, the record indicates that Plaintiff was prescribed
gabapentin, (see, e.g., R. at 334), which the Court interprets to
be the same medication. For the ease of reading, the Court shall
refer to this medication as “Neurontin,” though Plaintiff may have
been taking a generic version of this medicine at certain points
in his treatment.
At various points in 2014 and 2015, Plaintiff was also prescribed
Valium, Flexeril, and Skelaxin, all of which appear to have been
provided to Plaintiff in order to relieve muscle spasms. (R. at
369-90.)
4

mitigate the pain caused by his various back/spine conditions,
including the implantation of multiple spinal cord stimulators on
December 27, 2012 and on January 17, 2013. (Id. at 293-98, 32327.)
Initially, Plaintiff stated that the implanted spinal cord
stimulators were helpful in reducing his back pain. (Id. at 31011.) However, by the summer of 2013, Plaintiff indicated to his
doctors that the pain had returned and that the spinal cord
stimulator was “sputtering” and not working correctly. (Id. at
305-07, 402-11.) Dr. Cavallaro’s notes from September 17, 2013
indicate that
there were 2 broken leads [on Plaintiff’s
spinal cord stimulator], [Plaintiff] had it
adjusted and the problem still continued, [in
August
2013]
it
stopped
working,
now
[Plaintiff’s] pain has progressed[.] Now there
are 5 broken leads and it was reprogrammed[.]
He is not getting [relief.]
(Id. at 402.)
On September 30, 2013, Plaintiff met with Dr. Valentino, who
noted that Plaintiff continues to complain of back pain, that the
spinal

cord

stimulator

was

not

fully

functioning,

and

that

Plaintiff may require another procedure to properly reinstall or
replace

the

stimulator.

(Id.

at

330.)

On

October

14,

2013,

Plaintiff returned to see Dr. Cavallaro, and he reported that he
was still experiencing back and leg pain, that the spinal cord
stimulator was not functioning properly; Dr. Cavallaro also noted

5

that Plaintiff exhibited a decreased range of motion and weakness
in his legs. (Id. at 399-401.)
In the meantime, the records in Plaintiff’s case as of the
fall of 2013 were evaluated by a consultant, Dr. Andrew Przybyla,
M.D.,3 on November 22, 2013. (Id. at 108-16.) Dr. Przybyla did not
examine Plaintiff, nor did he mention reviewing any medical record
dated after October 25, 2013. (Id. at 109.) Dr. Przybyla further
noted that, by that point in time, he was aware of no opinion
evidence from any source regarding disability (Id. at 114.) Dr.
Przybyla’s explanation for finding no disability will be addressed
in more detail, below.
On November 13, 2013, Plaintiff had a consultation with Dr.
Ashwini D. Sharan, M.D., a neurologist. (Id. at 351-52.) Dr. Sharan
indicated

that

Plaintiff’s

spinal

cord

stimulator

was

not

functioning and that it was likely that Plaintiff would have to
undergo

another

surgery

in

order

to

place

a

new,

stronger

stimulator. (Id.) The medical record appears to indicate that Dr.
Sharan later surgically placed a new stimulator with “paddle”
leads,4 (id. at 350, 359-363, 383-86), and that the new stimulator

3

The Court notes that Dr. Przybyla’s surname has been incorrectly
rendered as “Pryzblya” by the ALJ, (see R. 50-51), and as
“Pryzbla,” “Pryzblya, and “Ryzblya” by Defendant’s counsel. (See
Def.’s Br. [Docket Item 11], ii, 17-18.)
4

Defendant asserts that “Plaintiff’s spinal cord stimulator was
replaced in January 2014.” (Def.’s Br. [Docket Item 11], 8.)
However, in support of that assertion, Defendant cites to a
6

provided greater pain relief. (Id. at 350.) However, by summer of
2014, Plaintiff indicated to Dr. Cavallaro that he was still
experiencing lower back, hip, and leg pain. (Id. at 379-86.)
On November 14, 2014, Dr. Cavallaro produced an opinion
regarding Plaintiff’s ongoing medical conditions and Plaintiff’s
ability to work as a result of those conditions. (Id. at 333-37.)
In that opinion, Dr. Cavallaro indicated that, in addition to the
new spinal cord stimulator that had been installed by Dr. Sharan,
Plaintiff was still using the medications Percocet, Cymbalta, and
Neurontin to manage his back pain. (Id.) Dr. Cavallaro further
opined that, even with the combination of the three medications
and the spinal cord stimulator, Plaintiff could not sit any more
than 20 minutes at a time, could never carry more than 20 pounds,
that Plaintiff’s pain or other symptoms would interfere with his
ability to concentrate for between one-third and two-thirds of an
8-hour workday. (Id.) In addition, Dr. Cavallaro indicated that he
expected Plaintiff’s medical conditions would cause Plaintiff to
be absent from work more than three days per month. (Id.)
Plaintiff’s

complaints

of

back

pain

to

Dr.

Cavallaro

continued through 2014, 2015, and 2016. (Id. at 364-75, 387-90.)

document that only references the removal of Plaintiff’s old
stimulator on January 21, 2014. (R. at 375-58.) There is no
explicit indication that Dr. Sharan placed Plaintiff’s new
stimulator on this same day, though it is a reasonable inference
to draw from the record.
7

During various portions of that time, Plaintiff was prescribed
Valium, Flexeril, Skelaxin, and Baclofen, all of which appear to
have been provided to Plaintiff in order to relieve muscle spasms.5
(Id. at 364-90.) Additionally, on May 28, 2015, Dr. Cavallaro noted
that Plaintiff’s new spinal cord stimulator was not sufficiently
controlling his back spasms and would need to be adjusted; during
that visit Dr. Cavallaro also noted that Plaintiff was in need of
a new pain management regime to control his lower back pain,
presumably because the existing combination of medications and
spinal cord stimulation was insufficient. (Id. at 372-74.)
On April 11, 2016, Plaintiff met with Dr. Cavallaro to discuss
an injury to his knee caused while doing yardwork, (id. at 34042,

366-68),

and

on

May

18,

2016

Plaintiff

returned

to

Dr.

Cavallaro complaining of back, elbow, and shoulder pain, resulting
from an alleged physical assault.6 (Id. at 364-65.) On May 27,
2016, Plaintiff saw Dr. Andrew Medvedovsky, M.D., a neurologist
specializing in pain medicine, at which time Plaintiff continued
to complain of lower back pain and noted that the pain had spread

5

There is some indication in the record that Plaintiff was also
prescribed Valium in order to manage his anxiety, (see R. at 367),
but numerous references exist in the record that at least part of
the justification for prescribing Valium was to manage Plaintiff’s
muscle spasms. (R. at 364-90.)
6 While it appears that these complaints did not originate from
Plaintiff’s underlying conditions, it is unclear from the record
whether
these
injuries
exacerbated
Plaintiff’s
underlying
conditions or whether they were only temporary conditions. (Id. at
340-42, 364-68)
8

to his upper back and shoulder region. (Id. at 359-63.) Dr.
Medvedovsky assessed Plaintiff’s “usual pain level” as 8 on a scale
of 10. (Id. at 359.)
C.

ALJ Decision

In a written decision dated October 5, 2016, ALJ Toland
determined that Plaintiff was not disabled within the meaning of
the Social Security Act at any time from November 20, 2013, the
alleged disability onset date, through October 5, 2016, the date
of the ALJ’s decision. (Id. at 43-52.)
Using the five-step sequential evaluation process, the ALJ
determined at step one that Plaintiff had not engaged in any
substantial gainful activity since November 20, 2013, the alleged
onset date of disability. (Id. at 45.)
At

step

two,

the

ALJ

found

that

Plaintiff

had

severe

impairments due to lumbar disc disease, status-post lumbar fusion
surgery

and

spinal

cord

implantation

procedure,

lumbar

radiculopathy, and anxiety. (Id. at 45-46.) The ALJ determined
that Plaintiff’s alleged “GERD”7 is not severe and his potential
irritable bowel syndrome has never been definitively diagnosed nor
treated, and therefore “is not considered a medically determinable
impairment.” (Id.)

7

The Court interprets this to be a reference to “gastroesphageal
reflux disease.”
9

Next, at step three, the ALJ found that none of Plaintiff’s
impairments, alone or in combination, meet the severity of one of
the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1.
(Id. at 46.) Specifically, the ALJ found that Plaintiff’s spine
disorders were not severe enough to meet the requirements of
Listing 1.04, because:
Under listing 1.04 (disorders of the spine)
the evidence must establish herniated nucleus
pulposus,
spinal
arachnoiditis,
spinal
stenosis, osteoarthritis, degenerative disc
disease,
facet
arthritis,
or
vertebral
fracture resulting in compromise of a nerve
root (including cauda equina) or spinal cord
with evidence of nerve root compression
characterized by neuroanatomic distribution
of pain, limitation of motion of the spine,
motor loss (muscle weakness, or atrophy with
associated muscle weakness), accompanied by
sensory or reflex loss; and if there is
involvement of the lower back, positive
straight leg raising tests (sitting and
supine)... Or lumbar spinal stenosis resulting
in pseudoclaudication established by findings
on appropriate medically acceptable imaging,
manifested by chronic non-radicular pain and
weakness, and resulting in an inability to
ambulate
effectively
(as
defined
under
paragraph 1.00B2b.).
(Id.) Subsequently, ALJ Toland found “that the evidence of record
fails to document all of these specific criteria.” (Id.) With
regards to Plaintiff’s mental impairments, the ALJ found that they
do not meet or medically equal the criteria of Listings 12.04 or
12.06, in part because Plaintiff’s condition does not meet the
requirements of “paragraph B” or “paragraph C.” (Id. at 46-48.)

10

Between steps three and four, the ALJ needed to determine
Plaintiff’s RFC. The ALJ found that Plaintiff had the RFC to
perform
sedentary
work . . . except
as
follows:
[Plaintiff] can sit for a total of 6 hours
total per 8-hour workday, but no more than 1
hour at a time, after which he would need to
stand/shift positions for up to 10 minutes per
hour while remaining on task. [Plaintiff] can
occasionally
climb
ramps
and
stairs.
[Plaintiff]
can
occasionally
stoop.
[Plaintiff] is limited to low stress work,
defined as routine, unskilled, work having no
fast production rate pace or strict production
quotas. Finally, [Plaintiff] would be off-task
5% of the day, in addition to normal breaks,
due to physical and mental symptoms.
(Id. at 48.) In determining Plaintiff’s RFC, the ALJ “considered
all symptoms and the extent to which these symptoms can reasonably
be accepted as consistent with the objective medical evidence and
other evidence.” (Id.) The ALJ only gave “partial weight” to the
medical opinion of Plaintiff’s treating primary care physician,
Dr. Cavallaro, finding his opinion “place[s] excessive reliance on
[Plaintiff’s]

subjective

allegations

and

is

not

adequately

supported by the medical record as a whole.” (Id. at 50.) The ALJ’s
Opinion summarized Dr. Cavallaro’s opinion thusly:
[Plaintiff] is limited to sitting, standing,
and walking less than one hour in an eighthour day, precluded from lifting and carrying
more than 20 pounds occasionally and [Dr.
Cavallaro] noted that [Plaintiff’s] symptoms
of pain would “frequently” interfere with his
ability
to
maintain
attention
and
concentration.
Dr.
Cavallaro
further

11

indicated that [Plaintiff] would require
unscheduled breaks at unpredictable intervals
during [the] workday, would need to alternate
between sitting and standing positions, and
stated that [Plaintiff] would miss work more
than three times per month.
(Id.) The ALJ granted “significant weight” to the opinions of
Defendant’s non-examining medical consultant, Dr. Przybyla, who
the ALJ stated found that Plaintiff “can lift and carry 10 pounds
occasionally, stand and walk two hours, and sit six hours, in [an]
8-hour day, and can occasionally perform postural activities such
as stooping and climbing stairs.” (Id. at 50-51.) Based on the
weights given to those two doctors’ opinions, the ALJ found that
Plaintiff had the RFC as quoted, supra.
Based on the RFC assigned by the ALJ and testimony from a
vocational expert, the ALJ found, at step four, that Plaintiff was
“unable to perform any past relevant work.” (Id. at 51.)
Finally, at step five, the ALJ found that “there are jobs
that exist in significant numbers in the national economy that
[Plaintiff] can perform,” including those of telephone information
clerk

(900,000

jobs

nationally),

charge-accounting

clerk

(1,200,000 jobs nationally), and addressing clerk (500,000 jobs
nationally). (Id. at 51-52.) Accordingly, the ALJ found that
Plaintiff was not disabled from November 20, 2012 through the date
of the ALJ’s opinion: October 5, 2016. (Id. at 52.)

12

STANDARD OF REVIEW
This Court reviews the Commissioner’s decision pursuant to 42
U.S.C.

§

405(g).

Commissioner’s
Commissioner’s

The

Court’s

decision,
factual

review

and

the

findings

is

deferential

Court

where

they

to

the

must

uphold

the

are

supported

by

“substantial evidence.” 42 U.S.C. § 405(g); Fargnoli v. Massanari,
247 F.3d 34, 38 (3d Cir. 2001); Cunningham v. Comm’r of Soc. Sec.,
507 F. App’x 111, 114 (3d Cir. 2012). Substantial evidence is
defined as “more than a mere scintilla,” meaning “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 400 (1971);
Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012)
(using the same language as Richardson). Therefore, if the ALJ’s
findings

of

fact

are

supported

by

substantial

evidence,

the

reviewing court is bound by those findings, whether or not it would
have made the same determination. Fargnoli, 247 F.3d at 38. The
Court may not weigh the evidence or substitute its own conclusions
for those of the ALJ. Chandler v. Comm’r of Soc. Sec., 667 F.3d
356, 359 (3d Cir. 2011). Where the ALJ’s decision appears to have
overlooked significant medical evidence that may be probative of
a

finding

of

disability,

the

reviewing

court

may

remand

for

consideration. Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121–
22 (3d Cir. 2000) (citing Adorno v. Shalala, 40 F.3d 43, 48 (3d
Cir. 1994); Cotter v. Harris, 642 F.2d 700, 705-07 (3d Cir. 1981)).

13

DISCUSSION
Plaintiff is pursuing two theories in support of his request
to overturn the ALJ’s decision. The Court addresses each of them
in turn.
A.

Alleged Failure of the ALJ to Properly Weigh the Medical
Evidence

Plaintiff first asserts that the ALJ failed to properly weigh
the medical evidence in the record. (Pl.’s Br. [Docket Item 10],
12-18.) Specifically, Plaintiff argues that the ALJ improperly
gave

greater

weight

to

Defendant’s

non-examining,

consulting

physician, Dr. Przybyla, than to Plaintiff’s treating physician,
Dr. Cavallaro, even though Dr. Przybyla’s analysis was only based
on Plaintiff’s medical records as they stood in September 2013,
while Dr. Cavallaro treated Plaintiff for years. (Id.) Therefore,
Plaintiff argues that Dr. Przybyla’s opinion cannot take into
account the significant changes in Plaintiff’s medical condition
that took place after November 2013, and that his opinion is
therefore not due the “significant weight” that the ALJ gave it.
(Id.)
Dr.

Przybyla

produced

an

opinion

regarding

Plaintiff’s

medical conditions and a proposed RFC on November 22, 2013, based
on

the

medical

records

available

through

September

2013,

as

detailed, supra. (R. at 108-16.) In her opinion, the ALJ found
that Dr. Przybyla’s opinion “is based on a thorough review of the

14

medical record, a knowledge of Social Security’s adjudicative
process, and is generally consistent with the record as a whole,”
and therefore Dr. Przybyla’s opinion “is entitled to significant
weight.” (Id. at 51.)
Plaintiff argues that the “significant weight” that the ALJ
granted Dr. Przybyla’s opinion is improper, because the Third
Circuit

has

stated

that

treating

physicians’

opinions

should

typically be granted greater weight than those of a consulting
physician, especially when the consulting physician’s opinions are
not accompanied with an examination of the claimant8 or are based
on a misunderstanding of the claimant’s medical record. (Pl.’s Br.
[Docket Item 10], 15 (citing Brownawell v. Comm’r of Soc. Sec.,
554 F.3d 352, 357 (3d Cir. 2008); Dorf v. Bowen, 794 F.2d 896,
901–02 (3d Cir. 1986); Brewster v. Heckler, 786 F.2d 581, 585 (3d
Cir. 1986).) In Brownawell, the Third Circuit stated that it “has
‘consistently held that it is improper for an ALJ to credit the
testimony of a consulting physician who has not examined the
claimant when such testimony conflicts with testimony of the
claimant’s

treating

physician.’”

Brownawell,

554

F.3d

at

357

(quoting Dorf, 794 F.2d at 901).) Therefore, Plaintiff argues that
it was improper for the ALJ to give greater weight to Defendant’s
non-examining,

8

consulting

physician,

Dr.

Przybyla,

than

to

It is not in dispute that Dr. Przybyla never examined Plaintiff.
15

Plaintiff’s treating physician, Dr. Cavallaro. (Pl.’s Br. [Docket
Item 10], 12-17.)
Defendant responds that the ALJ’s weighting of the opinions
of Drs. Przybyla and Cavallaro was permissible because: an ALJ is
not required to accept a treating physician’s opinions where they
are

contradicted

by

those

of

a

non-examining,

consulting

physician; the ALJ permissibly discounted Dr. Cavallaro’s opinion
because

it

contradicted

Plaintiff’s

medical

record;

and

Dr.

Przybyla’s opinion was consistent with Plaintiff’s medical record.
(Def.’s Br. [Docket Item 11], 13-18.)
Plaintiff’s

medical

history,

which

is

detailed,

supra,

indicates that his medical conditions have changed significantly
for

the

worse

since

Dr.

Przybyla

reviewed

Plaintiff’s

pre-

September 2013 medical records. Specifically, since September
2013, Plaintiff has complained of a malfunctioning spinal cord
stimulator,

had

the

offending

unit

surgically

removed

and

subsequently had a new spinal cord stimulator surgically implanted
by Dr. Sharan. This new stimulator was effective for a time, though
by the summer of 2014, Plaintiff reported that it was no longer
providing substantial relief from his symptoms. Additionally, by
the summer of 2014, Plaintiff’s lower back pain had spread to his
hips and legs. By 2016, the pain had continued to spread to
Plaintiff’s

upper

back

and

shoulders.

This

indicates

that,

contrary to the ALJ’s opinion, Dr. Przybyla’s opinion is not “based

16

on a thorough review of the medical record,” but rather it is based
only on a review of the medical record as it stood in September
2013, over three years prior to the ALJ hearing, and that such
opinion fails to consider the significant changes that took place
in

Plaintiff’s

Meanwhile,

Dr.

medical

conditions

Cavallaro’s

in

the

treatment

intervening

and

years.

documentation

of

Plaintiff’s conditions continued.
Additionally,

Plaintiff

argues

that

the

ALJ

improperly

discounted Dr. Cavallaro’s opinion of November 2014, by stating
that such opinions were primarily based on Plaintiff’s subjective
complaints.

(Pl.’s

Br.

[Docket

Item

10],

13-14.)

Plaintiff

contends that the record is clear that Dr. Cavallaro’s opinions
were based on clinical examinations and medical imagery. (Id.)
Plaintiff also argues that the ALJ’s statement that Dr. Cavallaro’s
opinion

is

in

contradiction

with

evidence

that

Plaintiff’s

condition improved after the implantation of the spinal cord
stimulator

inappropriately

focuses

on

a

brief

period

of

improvement rather than on the record as a whole, as Plaintiff’s
pain inevitably recurred. (Id.)
Defendant responds that the ALJ correctly discounted Dr.
Cavallaro’s opinion, because it is not supported by Plaintiff’s
medical record. (Def.’s Br. [Docket Item 11], 15.) In making this
assertion, Defendant relies upon “physical examination findings in
the record” that Defendant contends “do not correlate to the degree

17

of

severity

Specifically,

suggested

by

Dr.

Defendant

argues

Cavallaro’s
that

opinion.”

“Plaintiff’s

deep

(Id.)
tendon

reflexes were intact and his motor and sensory examinations, gait,
station, coordination, muscle strength, and tone were normal.”
(Id. (citing R. at 266, 273, 275, 278, 280, 283, 299, 300).)
However, in discounting Dr. Cavallaro’s opinion, the ALJ does not
reference any of these factors, but it only appears to reference
records

showing

that

Plaintiff

experienced

pain

relief

after

implantation of a spinal cord stimulator.9 (R. at 50.) The Court
is only permitted to consider the ALJ’s decision based on the
rationale contained in that decision; the Court is not to consider
hypothetical rationales, which may justify the ALJ’s decision, but
which were not in fact underlying the opinion in question. See
Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 204 (1947).
Therefore, the Court shall disregard this argument.10

9

The Court notes that this portion of the ALJ’s opinion only
appears to reference the installation of a single spinal cord
stimulator, while the record clearly indicates that Plaintiff has
had at least three separate devices installed, as described, supra.
10

Defendant also cites to portions of the record indicating that
Plaintiff is able to engage in some everyday activities that
require some amount of physical exertion, such as feeding his
daughter, taking out the trash, and gardening. (Def.’s Br. [Docket
Item 11], 17.) The ALJ does not note any of these examples in
supporting her decision to only grant partial weight to Dr.
Cavallaro’s opinion, (see R. at 50), therefore the Court shall
disregard this argument as well. See Chenery, 332 U.S. at 204. The
Court also notes that the record is not clear as to the frequency
or intensity with which Plaintiff has engaged in these activities;
therefore, the Court expresses no opinion as to whether Plaintiff’s
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The

only

specific

rationale

that

the

ALJ

provides

for

discounting Dr. Cavallaro’s opinion is that Plaintiff “experienced
significant pain-relief following his spinal cord implantation
procedure.” (R. at 50.) As noted, supra, the ALJ only seems to
acknowledge

one

of

Plaintiff’s

three

spinal

cord

stimulator

implantation procedures, though it is unclear from the ALJ’s
opinion to which of these procedures she is referring. (Id.)
Furthermore, the ALJ’s opinion does not acknowledge, and perhaps
inadvertently overlooks, that while the record does show that
Plaintiff’s pain has been significantly reduced after each of his
spinal cord stimulators was implanted, the record, as described
supra, also shows that Plaintiff’s symptoms returned in each
instance only a few months later. Indeed, the record appears to
show that Plaintiff’s pain has also expanded to new regions,
including his hips, legs, upper back, and shoulders.
The Court finds that the ALJ’s substantial reliance upon Dr.
Przybyla’s opinion over Dr. Cavallaro’s opinion indicates that the
ALJ may have overlooked or inadvertently given lesser weight to
the significant changes in Plaintiff’s medical condition, the
necessity of multiple invasive procedures in the attempts to
alleviate his pain, and the need for numerous, strong medications
for partial pain relief during this time, as documented in the

ability to engage in these activities contradicts or calls into
question Dr. Cavallaro’s opinions regarding Plaintiff’s abilities.
19

record, that took place after Dr. Przybyla’s opinion was written.
Specifically, Dr. Przybyla’s opinion does not take into account
that Plaintiff’s spinal cord stimulator was replaced and that such
replacement is still not reliably reducing Plaintiff’s back pain.
Additionally, Dr. Przybyla’s opinion does not take into account
that

Plaintiff’s

lower

back

pain

has

subsequently

spread

to

Plaintiff’s hips, legs, upper back, and shoulders.
Therefore, the Court finds that the ALJ’s RFC determination
did not give sufficient consideration to the records and opinions
from Plaintiff’s treating physicians, nor does it sufficiently
account for the well-documented changes in Plaintiff’s condition
over the course of the alleged period of disability: November 20,
2012 through the date of the ALJ’s decision. Accordingly, the ALJ’s
decision shall be remanded for further consideration.
B.

Alleged Failure of the
Plaintiff’s Testimony

ALJ

to

Properly

Evaluate

Plaintiff further alleges that the ALJ erred in discounting
Plaintiff’s testimony at the ALJ hearing regarding his conditions
and symptoms. (Pl.’s Br. [Docket Item 10], 18-21.) As a part of
this critique, Plaintiff asserts that the ALJ improperly suggested
that

Plaintiff’s

testimony

regarding

the

severity

of

his

conditions was undermined by gaps in his treatment record, without
questioning Plaintiff about the reason for those gaps during his
testimony at the ALJ hearing. (Id. at 20-21.)

20

As the Court will remand this case for the reasons stated,
supra, the parties will have the opportunity to address these
alleged shortcomings on remand and the Court need not address this
argument at this time.
CONCLUSION
For these reasons set forth above, the Court finds that the
case should be remanded to the ALJ for further proceedings. An
accompanying Order will be entered.

March 5, 2019
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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