CAVILEER v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Jerome B. Simandle on 2/1/2019. (rss, )

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

MARIA DIANA CAVILEER,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 18-1341 (JBS)

COMMISSIONER OF SOCIAL
SECURITY,
OPINION
Defendant.

APPEARANCES:
Alan H. Polonsky, Esq.
POLONSKY AND POLONSKY
512 S. White Horse Pike
Audubon, NJ 08106
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 Commissioner of Social Security
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

Maria

Diana

Cavileer

(hereinafter “Plaintiff”) for disability benefits under Title II

of the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff,
who suffers from degenerative disc disease, thrombocytosis status
post partial amputations of the right index and long fingers,
obesity, carpal tunnel syndrome, sleep apnea, asthma, thyroid
impairment, and affective disorder was denied benefits for the
period beginning on August 25, 2013, the alleged onset date of
disability, to October 18, 2016, the date on which Administrative
Law Judge Paul R. Armstrong (hereinafter “ALJ Armstrong” or “the
ALJ”) issued his written decision.
In

the

decision

pending

must

be

appeal,

reversed

Plaintiff

and

remanded

argues
on

that

the

numerous

ALJ’s

grounds,

including that the ALJ erred by: finding that Plaintiff’s sleep
apnea

and

mental

problems

were

not

“severe”

impairments;

improperly determining Plaintiff’s “Residual Functional Capacity”
(“RFC”); and finding that Plaintiff is able to perform past work
activity

and

alternative

work

activity.

Defendant

opposes

Plaintiff’s appeal. (See Def.’s Opp’n [Docket Item 10].) The Court
will remand the ALJ’s decision, because the ALJ failed to consider
significant,
treatments

perhaps
(including

dispositive,
surgeries),

medical
and

conditions,

opinions

physicians during the alleged period of disability.

2

of

pain,

treating

BACKGROUND
A.

Procedural History

Plaintiff

filed

her

application

for

Social

Security

disability benefits on April 29, 2014, alleging a disability onset
date of August 25, 2013. (Administrative Record (hereinafter “R.”)
[Docket Item 5], 24.) Plaintiff’s claim was denied by the Social
Security Administration on September 17, 2014. (Id.) Plaintiff’s
claim was again denied upon reconsideration on January 7, 2015.
(Id.) Plaintiff next testified before ALJ Armstrong by way of a
video hearing on August 16, 2016. (Id.) ALJ Armstrong issued his
opinion on October 18, 2016, denying Plaintiff benefits. (Id. at
24-34.)

On

December

20,

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 degenerative disc disease,
thrombocytosis status post partial amputations of the right index
and long fingers, obesity, carpal tunnel syndrome, sleep apnea,
asthma, thyroid impairment, and affective disorder. (Id. at 2628.)

Plaintiff

has

undergone

multiple

surgeries

to

amputate

portions of two of her fingers. As reported to Dr. Stephen Soloway,
M.D., Plaintiff’s rheumatologist, these surgeries began at least
in 1988, with the amputation of the tip of her right index finger.
(Id. at 592.) As a result of poor blood flow (ischemia) and

3

thrombosis,

between

August

2013

and

December

2013,

Plaintiff

developed dry gangrene in her right index and middle fingers. (Id.
at 403-04, 413-15, 447-50, 473-77.) Plaintiff contends that she
was “hospitalized with thrombocytosis and ultimately underwent
amputations of the last joint of the right [index] finger and
middle finger” in February 2014. (Pl.’s Br. [Docket Item 9], 8.)
Plaintiff’s brief does not cite to any specific medical records
that

document

the

alleged

surgery

in

February

2014,

however

Defendant does not dispute that such a surgery took place.1 (Pl.’s
Br. [Docket Item 9], 8; Def.’s Opp’n [Docket Item 10], 8.)
Beginning in April 2015, Plaintiff began seeing Dr. Stanley
Marczyk, M.D., an orthopedic specialist, who diagnosed Plaintiff
with bilateral carpal tunnel, bilateral cubital tunnel, cervical
radiculopathy, and clotting disorder. (R. at 1404-05.) At a followup appointment in May 2015, Dr. Marczyk discussed the potential
risks and benefits of surgery to relieve some of Plaintiff’s
symptoms. (Id. at 1402-03.) In July of 2015, Dr. Marczyk saw
Plaintiff again and Plaintiff complained of increased arm and wrist
pain as a result of increased lifting. (Id. at 1398-99.) In August
2015, Dr. Marczyk saw Plaintiff once again and recommended that
she continue to wear a wrist brace and receive cervical spinal

1

Additionally, the ALJ’s decision notes that Plaintiff has
undergone partial finger amputations due to thrombocytosis, but
does not cite to any medical records of such a procedure. (R. at
26, 29.)
4

injections; Dr. Marczyk also discussed the need for surgery in the
future, if symptoms worsen. (Id. at 1392-93.) Plaintiff presented
again at Dr. Marczyk in January 2016, complaining of tingling and
numbness in her hands; Dr. Marczyk provided Plaintiff with an
injection, which seemed to alleviate her symptoms, ordered a new
EMG nerve test, and discussed with Plaintiff the potential future
need for surgery. (Id. at 1386-87.) The EMG nerve study ordered by
Dr. Marczyk, and undertaken by Dr. Wei Xu, M.D., later indicated
bilateral carpal tunnel syndrome. (Id. at 1429-32.) In April 2016,
Plaintiff again saw Dr. Marczyk, where Plaintiff indicated that
she was interested in proceeding with surgical interventions to
relieve the symptoms of her carpal tunnel syndrome; Dr. Marczyk
informed Plaintiff that the surgeries may not completely relieve
Plaintiff’s symptoms. (Id. at 1382-83.) On May 10 and June 21,
2016, Dr. Marczyk operated on Plaintiff in order to address her
carpal tunnel syndrome in her right and left hands, respectively.
(Id. at 1372, 1376; Pl.’s Br. [Docket Item 9], 8; Def.’s Opp’n
[Docket Item 10], 16.)
On June 24, 2016, following Plaintiff’s two carpal tunnel
surgeries, Plaintiff’s primary care provider, Dr. Rafat Choudhry,
M.D., noted that Plaintiff denied experiencing any joint pain,
swelling, or weakness. (R. at 1246-49.) Nevertheless, Plaintiff
testified at the August 16, 2016 hearing, less than two months
after her second carpal tunnel surgery, that she was experiencing

5

continued pain in her hands and stiffness in her finger joints as
a

result

of

additional

carpal

tunnel

treatment

from

syndrome
her

and

physicians

that
for

she

is

such

seeking

pain

and

stiffness. (Id. at 58.)
Meanwhile, Plaintiff received treatments for significant neck
and back pain throughout the period of alleged disability. During
Plaintiff’s neurological consultation with Dr. Maria Carta, M.D.,
on April 22, 2014, Plaintiff complained of lower back pain, which
radiates

to

“both

buttocks

and

posterior

dermatomes”

and

is

exacerbated by sitting or standing, which began approximately 20
years earlier. (Id. at 711.) During this visit, Dr. Carta diagnosed
Plaintiff with cervical disc displacement with myelopathy as well
as cervical root lesions. (Id. at 714.)
On orders of Plaintiff’s neurologist, Dr. Keith V. Preis,
M.D., Plaintiff underwent MRIs of her cervical and lumbar spinal
regions on October 10, 2014. (Id. at 889-92.) Those MRIs revealed
that

Plaintiff

suffers

from

“multilevel

disc

bulging/herniation . . . with associated nerve root compromise” in
both regions, as well as a possible “right paracentral disc
herniation with annular tear at the T12-L1 level.” (Id.) Further
EMG studies undertaken by Dr. Preis on November 5 and 19, 2014
showed that Plaintiff exhibits “a right L5-S1 radiculitis, as well
as a proximal nerve legion on the left side at the L5, S1 levels”
and “a left C5, [C]6 radiculitis,” (Id. at 901, 922.) At a follow-

6

up appointment on January 27, 2015, with her pain specialist, Dr.
Abdul Qadir, M.D., Plaintiff reported that the majority of the
pain she experienced was “located in the low back and neck,” though
Plaintiff

also

indicated

that

the

reported

pain

was

“being

controlled adequately” with medication. (Id. at 1018.) At another
follow-up

appointment

with

Dr.

Qadir

on

February

24,

2015,

Plaintiff reported pain “located in the buttocks, left shoulder,
left thigh, neck and right thigh,” though Plaintiff again indicated
that the reported pain was “being controlled adequately” with
medication. (Id. at 1014.) During a neurosurgical consultation on
March 25, 2015 with Dr. Andrew Glass, M.D., the physician’s
examination of Plaintiff revealed that she exhibited “[c]ervialgia
with bilateral radiculopathy, herniated nucleus pulposus C4-5,
bulging disc annuli C2-3, C3-4, C5-6, C6-7, C7-T1, thoracic back
pain, low back pain with bilateral lombar radiculopathy, herniated
nucleus pulposus with annular tear T12-L1, bulging disc annulus
L1-2, L2-3, herniation L3-4, herniation with annular tear L4-5 and
L5-S1.” (Id. at 1037.) In that appointment, Dr. Glass indicated
that Plaintiff wished to pursue non-surgical treatment for her
spinal

conditions,

though

Dr.

Glass

counseled

Plaintiff

that

surgical interventions may be necessary in the future to care for
her cervical and/or lumbar spine. (Id. at 1036.) On April 1, 2015,
Plaintiff returned for a follow-up evaluation with Dr. Preis,
indicating that Plaintiff had received “lumbar facet injections”

7

from Dr. Qadir, but that those injections only resulted in pain
relief for “about two to three days and then the pain returned.”
(Id. at 1116.) Dr. Preis also indicated that Plaintiff
still has neck and low back pain that is worse
with any activity and causing more spasms.
Prolonged standing or walking causes increased
pain as well. [Plaintiff] has not been doing
as much. She has to constantly change
positions due to pain in the hip area and pain
in the arms. [Plaintiff] has more pain in the
right hip recently[,] but she has more pain
and numbness down the left upper and lower
extremities, more with any activity.
(Id.) As a result, Dr. Preis recommended that Plaintiff continue
her pain management regimen and consult a neurosurgeon. (Id. at
1119.) During a subsequent follow-up appointment with Dr. Glass,
on April 23, 2015, the physician’s examination of Plaintiff’s spine
revealed “moderate restriction of range of motion” in the cervical
spine as well as multiple regions of “point tenderness” in the
cervical

and

thoracic

spine.

(Id.

at

1171.)

Physical

exams

undertaken by Dr. Choudhry in October, November, and December of
2015 and January though June of 2016 indicated that Plaintiff had
a normal range of motion in all areas and no indications of
tenderness. (Id. at 1248, 1252, 1256, 1260, 1264, 1268, 1272, 1276,
1280, 1284, 1288.) However, a physical exam undertaken on January
20, 2016 by Dr. Xu, prior to the EMG nerve study ordered by Dr.
Marczyk, revealed that Plaintiff’s “[c]ervical spine range-ofmotion

is

decreased

with

flexion

8

and

extension,”

and

that

“[t]enderness is noticed at the bilateral cervical paraspinal
muscles.” (Id. at 1429.) Additionally, at follow-up appointments
with Dr. Qadir in January, March, April, May, and June of 2016,
Dr. Qadir noted that Plaintiff reported chronic pain, lower back
pain, mid-back pain, muscle pain, muscle spasms, and neck pain.
(Id. at 1227, 1231, 1235, 1239, 1243.)
In addition to treating conditions in her hands, wrists, neck,
and lower spine, Plaintiff was treated for significant mental
health issues, including depression. On August 15, 2014, Plaintiff
met with Dr. Marie Hasson, M.D., seeking a prescription for
Cymbalta, in order to treat Plaintiff’s depression. (Id. at 966.)
Plaintiff reported that she had previously received a prescription
for Cymbalta from her primary care physician in order to treat
Plaintiff’s

pain

symptoms.

(Id.)

Plaintiff

reported

that

her

depression was being exacerbated by a recent death in the family
as well as her pending divorce. (Id.) Plaintiff also reported manic
episodes, as well as anxiety. (Id.) Dr. Hasson provided Plaintiff
with a renewed prescription for Cymbalta. (Id. at 993.) On August
19, 2014, Plaintiff met with Dr. Victoria Miller, Ph.D., to discuss
her mental health status; Plaintiff indicated to Dr. Miller that
she has had “psychiatric problems since she was a teenager” and
that “since 2010 [Plaintiff] has been treated with Cymbalta for
management of dysphoria.” (Id. at 874.) Additionally, Plaintiff
reported that “she has had anxiety associated with depression.”

9

(Id.) Plaintiff has experienced psychiatric problems since her
teens

or

early-20s

and

previously

engaged

in

self-injurious

behavior. (Id. at 874, 966-67.) Plaintiff also reported that she
abused alcohol from ages 9-21, but that she has refrained from
alcohol

since

age

21.

(Id.

at

875.)

Ultimately,

Dr.

Miller

diagnosed Plaintiff with “[m]ajor depressive disorder with anxious
distress” and “[a]lcohol use disorder, in sustained remission.”
(Id. at 876.) During follow-up appointments in September and
October 2014 with Dr. Hasson, both Plaintiff and Dr. Hasson
believed that Plaintiff’s symptoms had lessened somewhat. (Id. at
1000, 1007-08.) During a follow-up appointment in February 2015
with Dr. Hasson, both Plaintiff and Dr. Hasson again believed that
Plaintiff’s symptoms had continued to lessen. (Id. at 1107.)
However, in her March 2015 follow-up, both Plaintiff and Dr. Hasson
believed that Plaintiff’s symptoms had worsened, and it appears
that Dr. Hasson prescribed Seroquel on a trial basis. (Id. at 10991103.) After that point, at follow-up appointments in May, June,
August, and November 2015, and in January 2016, both Plaintiff and
Dr. Hasson again believed that Plaintiff’s condition had continued
to improve. (Id. at 1072, 1079, 1087, 1092, 1097.) However, in
April 2016, Plaintiff reported that she was feeling more depressed,
more anxious, and more irritable, with difficulty falling asleep
and increased sensitivity to sound. (Id. at 1059.) As a result,
both Plaintiff and Dr. Hasson believed that Plaintiff’s symptoms

10

had once again worsened, and therefore Dr. Hasson complied with
Plaintiff’s request for an increase in her dose of Seroquel. (Id.
at 1059-66.) In May of 2016, Plaintiff presented to Dr. Hasson as
still anxious, and both Plaintiff and Dr. Hasson believed that
Plaintiff’s

condition

had

been

unchanged

since

her

April

appointment. (Id. at 1051-58.)
C.

ALJ Decision

In a written decision dated October 18, 2016, ALJ Armstrong
determined that Plaintiff was not disabled within the meaning of
the Social Security Act at any time from August 25, 2013, the
alleged disability onset date, through October 18, 2016, the date
of the ALJ’s decision. (Id. at 24-34.)
Using the five-step sequential evaluation process, the ALJ
determined at step one that Plaintiff had not engaged in any
substantial gainful activity since August 25, 2013, the alleged
onset date of disability. (Id. at 26.)
At

step

impairments

two,

due

to

the

ALJ

found

degenerative

that

disc

Plaintiff

disease,

had

severe

thrombocytosis

status post partial amputations of right index and long fingers,
obesity, and carpal tunnel syndrome. (Id. at 26-28.) Notably, the
ALJ

determined

that

Plaintiff’s

sleep

apnea,

asthma,

thyroid

impairment, and affective disorder were not severe. (Id.)
Next, at step three, the ALJ found that none of Plaintiff’s
impairments, alone or in combination, meet the severity of one of

11

the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1.
(Id. at 28.) Specifically, in considering whether Plaintiff’s
impairments reached the severity level of a listed Major Joint
Dysfunction, Listing 1.02, the ALJ noted that “there is no evidence
that [Plaintiff] is unable to ambulate effectively.” (Id.) The ALJ
further found that Plaintiff’s spine disorders were not severe
enough to meet the requirements of Listing 1.04. (Id. at 28-29.)
In considering the severity of Plaintiff’s finger amputations, the
ALJ determined that they were not severe enough to meet the
requirements of Listing 1.05 (Id. at 29.) The ALJ additionally
found that Plaintiff’s “venous thrombosis and clotting disease
[do] not meet [L]isting 7.08 for coagulation defects.” (Id.) With
regards to Plaintiff’s neuropathy, the ALJ found that it does not
meet or medically equal the criteria of Listing 11.14. (Id.) With
respect to Plaintiff’s obesity, the ALJ found that “[t]here is no
evidence in the record . . . that [Plaintiff’s] obese physique
aggravates the other impairments so much as to result in listinglevel severity. (Id.)
Between steps three and four, the ALJ needed to determine
Plaintiff’s RFC. The ALJ found that Plaintiff had the RFC to
perform “light work . . . where [Plaintiff] lifts or carries 20
pounds occasionally and 10 pounds frequently, stands or walks for
six of eight hours during the workday, and sits for six of eight
hours during the workday,” except “no forceful gripping with

12

[Plaintiff’s]

right

(dominant)

hand.”

(Id.)

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. at
30.) The ALJ largely discounted the medical opinion of Plaintiff’s
treating physician, Dr. Maria Carta, M.D., finding her opinion to
be “very vague and [that it] does not specify how [Plaintiff’s]
obesity limits her ability to work.” (Id. at 31.) The ALJ granted
“little weight” to the opinions of Dr. Abdul Qadir, M.D., Nancy
To, APN, “an unknown representative from Regional Internal Medical
Associates, and an unknown representative from the State of New
Jersey

Division

of

Family

Development”

that

Plaintiff

“is

disabled, unable to work, or incapable of a level of sedentary
work,”

because,

“contradicted
strength”

and

by

according
tests
“by

to

that

the
showed

[Plaintiff’s]

ALJ,

these

normal
apparent

opinions

walking
normal

and

are
full

physical

functioning during the hearing.” (Id. at 31-32.) Finally, the ALJ
stated that his RFC assessment was “supported by evidence of the
claimant recovering well from amputation surgery, and otherwise
functioning in a stable manner in terms of her motor functioning.”
(Id. at 32.)
Based on Plaintiff’s RFC and testimony from a vocational
expert, the ALJ found, at step four, that Plaintiff was “capable
of performing past relevant work as a sales representative.” (Id.)

13

Finally, in the alternative, at step five, the ALJ found that
“there

are

other

jobs

existing

in

the

national

economy

that

[Plaintiff] is also able to perform,” including those of children’s
attendant

(35,000

jobs

nationally),

usher

(33,300

jobs

nationally), and furniture rental clerk (157,000 jobs nationally).
(Id. at 32-33.) Accordingly, the ALJ found that Plaintiff was not
disabled. (Id. at 34.)
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

14

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.2 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)).
DISCUSSION
Plaintiff is pursuing three theories in support of her request
to overturn the ALJ’s decision. The Court addresses each of them
in turn.
A.

Alleged Lack of Substantial Evidence to Support ALJ’s
Finding that Plaintiff’s Sleep Apnea and Mental Problems
were not “Severe” Impairments at Step Two

Plaintiff alleges that the ALJ’s finding that Plaintiff’s
sleep apnea and mental problems are not “severe” impairments is

2

The administrative record in this case is enormous, consisting
of 1,679 pages. [Docket Item 5.] I cannot remember reviewing a
longer one in many years. It is probably not possible to capture
all relevant entries in the “Medical History” summary appearing in
Part II. B, supra. By the same token, the Court acknowledges that
the ALJ, confronting such an elaborate record, faced the formidable
task, aided by the parties, of locating, synthesizing, and
considering the most pertinent parts of the record and then issuing
a determination that met the decisional requirements. Indeed, the
ALJ is not required to acknowledge and analyze every aspect of the
record in the final decision. But if pertinent evidence, material
to deciding the disability claim, is not mentioned in the ALJ’s
determination, as in the present case, then the law of judicial
review requires remand for further consideration and explanation
of the material omitted evidence.
15

not supported by substantial evidence. (Pl.’s Br. [Docket Item 9],
21-24.)

Specifically,

Plaintiff

asserts

that

the

ALJ

inappropriately relied upon a pulmonary function test to determine
that Plaintiff’s sleep apnea was not severe. (Id. at 22; Pl.’s
Reply [Docket Item 11], 6-7.) However, the record also includes
documentation

from

Plaintiff’s

pulmonary

doctor,

Dr.

Salm,

indicating that Plaintiff’s sleep apnea has been treated with a
“CPAP” machine and a nasal pillow system, and that Plaintiff’s
symptoms were effectively managed with these two interventions.
(R. at 1182-97; Def.’s Opp’n [Docket Item 10], 3-4.) Therefore,
the Court finds the ALJ’s finding that Plaintiff’s sleep apnea is
not severe is supported by substantial evidence on the record.
With regard to Plaintiff’s mental impairments, the ALJ found
that Plaintiff’s “medically determinable medical impairments cause
no more than ‘mild’ limitation” in the functional areas of (1)
daily

living,

(2)

social

functioning,

and

(3)

concentration,

persistence, or pace, and that Plaintiff’s impairments have caused
zero episodes of extended decompensation. (R. at 27.) Plaintiff
asserts that the ALJ made his determinations based on “factors
that [were] either irrelevant or contrary to the evidence of
record.” (Pl.’s Br. [Docket Item 9], 23-24.) With respect to the
functional area of “daily living,” Plaintiff argues that the ALJ
ignored evidence that Plaintiff “depends on her children for
assistance.” (Id. at 23.) However, even Plaintiff’s brief admits

16

that

this

assistance

was

required

“because

[Plaintiff]

is

physically unable to manage for herself” and that her need for
assistance was “more due to physical problems,” rather than due to
Plaintiff’s

mental

impairments.

(Id.

(emphasis

added).)

Additionally, substantial documentation in the record, including
Plaintiff’s own statements, supports the conclusion that Plaintiff
may have physical impairments that hinder her “daily living,” but
that her mental impairments cause no more than a “mild” limitation.
(See R. at 875-76.) With regards to “social functioning,” Plaintiff
challenges

the

ALJ’s

determination

as

“contrary

to”

certain

testimony and statements on the record. (Pl.’s Br. [Docket Item
9], 23.) However, the ALJ’s determination is consistent with
certain evidence on the record showing that Plaintiff has regular
social interactions with her children, her mother, and certain
close friends. (R. at 27 (citing R. at 875-76).) With regard to
“concentration, persistence, and pace,” Plaintiff appears to admit
in her brief that Plaintiff “perform[ed] adequately on routine
testing of rudimentary calculations and memory for repeating at
least some objects.” (Pl.’s Br. [Docket Item 9], 23.) Plaintiff’s
brief does not make clear why Plaintiff takes issue with the ALJ’s
determination relative to Plaintiff’s “concentration, persistence,
and pace.” (See Pl.’s Br. [Docket Item 9], 23-24 (“Lastly, the
Administrative Law Judge says there are no problems in regards to
concentration,

persistence,

and

17

pace

based

on

Dr.

Miller’s

findings which showed only the ability to perform adequately on
routine

testing

of

rudimentary

calculations

and

memory

for

repeating at least some objects, and based on her having a college
degree. Again, these explanations are not consistent with even the
evidence cited by the Administrative Law Judge. We submit that the
basis for these conclusions”).)3
The Court finds that there is substantial evidence on the
record to support the ALJ’s finding relative to Plaintiff’s mental
impairments.
B.

Alleged Lack of Substantial Evidence to Support ALJ’s
Finding as to Plaintiff’s RFC

Plaintiff further alleges that the ALJ’s findings regarding
Plaintiff’s RFC were not supported by substantial evidence. (Pl.’s
Br. [Docket Item 9], 25-29.) In particular, Plaintiff asserts that
the ALJ’s RFC does not take proper consideration of her hand
condition, which includes amputations of parts of two fingers and
continuing

difficulties

with

carpal

tunnel

syndrome.

(Id.)

Defendant’s response to this allegation includes a summary of
Plaintiff’s medical records with respect to her hand conditions.
(Def.’s Opp’n [Docket Item 10], 7-16.) The ALJ’s opinion states
that he reached his decision as to the Plaintiff’s RFC in part
because “the record shows full strength [and] normal sensations.”
(R. at 31.) However, Defendant’s own brief draws the Court’s

3

The quotation is accurate and ends in Pl.’s Br. at 24, as shown.
18

attention to treating physicians whose opinions regarding the
severity and duration of Plaintiff’s ailments were not addressed
by

the

ALJ.

(See

Def.’s

Opp’n

[Docket

Item

10],

7-16.)

Specifically, Defendant’s brief cites at length to the treatment
notes of Dr. Preis and Dr. Marczyk, whose treatment of Plaintiff
was more fully detailed, supra. (Id. at 10-12 (citing R. at 90205,

941-43,

includes

1114-45),

quoting

Dr.

13-16

(citing

Preis’

notes,

R.

at

that

1381-1426).)
he

believed

This
“that

Plaintiff’s ‘injuries are permanent and will not heal completely
to normal even with continued care and treatment.’” (Id. at 12
(quoting R. at 1142).) Defendant’s brief additionally cites to a
document in which Dr. Marczyk cautioned that Plaintiff’s carpal
tunnel syndrome surgeries, which were done shortly before the ALJ
hearing,

may

not

relieve

all

of

her

carpal

tunnel

syndrome

symptoms. (Id. at 15 (citing R. at 1382).) While the ALJ’s opinion
notes one statement made by Plaintiff to Dr. Preis as well as a
brief mention of the carpal tunnel surgeries undertaken by Dr.
Marczyk, it appears that the ALJ took neither Dr. Preis’ nor Dr.
Marczyk’s medical opinions into account, nor did the ALJ assign
either Dr. Preis’ or Dr. Marczyk’s opinions a weight in determining
Plaintiff’s RFC. In addition, Defendant’s brief cites at length to
the records of Plaintiff’s primary care physician, Dr. Choudhry,
in order to support the ALJ’s determination that Plaintiff is not
disabled, (id. at 8-9, 11, 14-18), however, the ALJ’s decision

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does not appear to make a single reference to any of Dr. Choudhry’s
notes or opinions, much less assign a weight to those opinions.
(R. at 24-34.) We cannot tell from the ALJ’s decision whether he
actually considered the significant hand impairments, pain, and
permanent limitations reflected in Dr. Preis’ and Dr. Marczyk’s
treatment records, or whether he considered the significant volume
of records provided by Dr. Choudhry. This omission is material
because Plaintiff’s significant hand impairments and pain lasted
for almost the entire time of the period of alleged disability,
even if one assumes that the carpal tunnel surgery alleviated them
somewhat two months before the ALJ hearing. Additionally, the
omission of consideration of Dr. Preis’ opinions is material
because they related to Plaintiff’s spinal conditions, including
her degenerative disc disease, which the ALJ found to be severe,
and which Plaintiff appears to have been suffering from for the
majority of the alleged disability period.
Additionally,

the

ALJ

states

that

“during

the

hearing

[Plaintiff] did not present with significant handling or other
physical limitations.” (Id. at 31.) Plaintiff is highly critical
of the ALJ’s observation of her ability to “handle” anything at
the hearing and certainly she has had no opportunity to rebut what
the ALJ believed he was witnessing. Further, the ALJ’s decision
does not appear to take into consideration that Plaintiff underwent
multiple surgeries over the course of the alleged period of

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disability, (see Def.’s Opp’n [Docket Item 10], 16)), and that it
is possible that Plaintiff’s condition was more severe at certain
points in that period prior to the hearing date. It is possible,
due to the significant surgeries that Plaintiff undertook during
her period of alleged disability, that there were portions of time
during that period where she was disabled and other periods where
she was not. However, the ALJ does not take account of this
possibility, or describe why his determination is equally valid
both before and after Plaintiff’s surgeries.
Therefore, the Court finds that the ALJ’s RFC determination
did

not

give

sufficient

consideration

to

the

records

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: August 25, 2013 to
October 18, 2016. Accordingly, the ALJ’s decision shall be remanded
for further consideration.
C.

Alleged Lack of Substantial Evidence or Adequate
Rationale to Support ALJ’s Findings as to Plaintiff’s
Ability to Perform Either Past Work Activity at Step
Four or Alternative Work Activity at Step Five

Plaintiff finally alleges that the ALJ’s determinations at
steps four and five were inappropriate due to the RFC having been
improperly calculated. (Pl.’s Br. [Docket Item 9], 29-30.) As the
Court will remand this case for determination of a new RFC, the
Court need not address this argument at this time.

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CONCLUSION
For these reasons set forth above, the Court finds that the
case should be remanded to ensure that the ALJ properly weighs the
medical

opinions

of

Plaintiff’s

treating

physicians,

as

appropriate, in determining Plaintiff’s RFC throughout the period
of alleged disability, including the possibility that Plaintiff
was disabled for the earlier portion of this period and not
disabled following surgeries and other medical interventions as
discussed above. An accompanying Order will be entered.

February 1, 2019
Date

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

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