GAINES v. COMMISSIONER OF SOCIAL SECURITY
Filing
18
OPINION and ORDER filed. Signed by Magistrate Judge Norah McCann King (OHSD) on 5/6/2022. (DS, )
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DARRYLENA G.,
Plaintiff,
Case No. 1:20-cv-19984
Magistrate Judge Norah McCann King
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.
OPINION AND ORDER
This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,
as amended, 42 U.S.C. § 405(g), regarding the application of Plaintiff Darrylena G. for Disability
Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. Plaintiff
appeals from the final decision of the Commissioner of Social Security denying that application. 1
After careful consideration of the entire record, including the entire administrative record, the
Court decides this matter pursuant to Rule 78(b) of the Federal Rules of Civil Procedure and
Local Civil Rule 9.1(f). For the reasons that follow, the Court reverses the Commissioner’s
decision and remands the action for further proceedings.
I.
PROCEDURAL HISTORY
On November 14, 2017, Plaintiff filed her application for benefits, alleging that she has
been disabled since October 1, 2017. R. 82, 98, 165–82. The application was denied initially and
upon reconsideration. R. 101–06, 109–11. Plaintiff sought a de novo hearing before an
Kilolo Kijakazi, the Acting Commissioner of Social Security, is substituted as Defendant in her
official capacity. See Fed. R. Civ. P. 25(d).
1
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administrative law judge. R. 112–15. Administrative Law Judge (“ALJ”) Nancy Lisewski held a
hearing on February 11, 2020, at which Plaintiff, who was represented by counsel, testified, as
did a vocational expert. R. 39–64. In a decision dated April 8, 2020, the ALJ concluded that
Plaintiff was not disabled within the meaning of the Social Security Act from October 1, 2017,
her alleged disability onset date, through the date of that decision. R. 16–33. That decision
became the final decision of the Acting Commissioner of Social Security when the Appeals
Council declined review on October 29, 2020. R. 1–6. Plaintiff timely filed this appeal pursuant
to 42 U.S.C. § 405(g). ECF No. 1. On April 21, 2021, Plaintiff consented to disposition of the
matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Rule 73 of the
Federal Rules of Civil Procedure. ECF No. 8.2 On the same day, the case was reassigned to the
undersigned. ECF No. 9. The matter is ripe for disposition.
II.
LEGAL STANDARD
A.
Standard of Review
In reviewing applications for Social Security disability benefits, this Court has the
authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204
F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to
determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000); see also 42 U.S.C. §§ 405(g), 1383(c)(3). The United States Supreme Court has
explained this standard as follows:
Under the substantial-evidence standard, a court looks to an existing administrative
record and asks whether it contains sufficien[t] evidence to support the agency’s
factual determinations. And whatever the meaning of substantial in other contexts,
the threshold for such evidentiary sufficiency is not high. Substantial evidence, this
2
The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases
seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot
Project (D.N.J. Apr. 2, 2018).
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Court has said, is more than a mere scintilla. It means – and means only – such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.
Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations and quotation marks
omitted); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citation and internal
quotations omitted); Bailey v. Comm’r of Soc. Sec., 354 F. App’x 613, 616 (3d Cir. 2009)
(citations and quotations omitted); K.K. ex rel. K.S. v. Comm’r of Soc. Sec., No. 17-2309, 2018
WL 1509091, at *4 (D.N.J. Mar. 27, 2018).
The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot
be set aside merely because the Court “acting de novo might have reached a different
conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli
v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ’s findings of fact are supported
by substantial evidence, we are bound by those findings, even if we would have decided the
factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,
2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992)).
Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic
or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)
(“The search for substantial evidence is thus a qualitative exercise without which our review of
social security disability cases ceases to be merely deferential and becomes instead a sham.”);
see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,
2016). The Court has a duty to “review the evidence in its totality” and “take into account
whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting
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Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));
see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists
only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is
overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or
“ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of
Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114); see
K.K., 2018 WL 1509091, at *4. The ALJ’s decision thus must be set aside if it “did not take into
account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.
at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
Although an ALJ is not required “to use particular language or adhere to a particular
format in conducting [the] analysis,” the decision must contain “sufficient development of the
record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d
501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.
2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an
expression of the evidence s/he considered which supports the result, but also some indication of
the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121
(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication
of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing
Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a
comprehensive explanation for the rejection of evidence; in most cases, a sentence or short
paragraph would probably suffice.” Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981). Absent
such articulation, the Court “cannot tell if significant probative evidence was not credited or
simply ignored.” Id. at 705. As the Third Circuit explains:
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Unless the [ALJ] has analyzed all evidence and has sufficiently explained the
weight [s/]he has given to obviously probative exhibits, to say that [the] decision is
supported by substantial 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, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.
Following review of the entire record on appeal from a denial of benefits, the Court can
enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the
record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or
contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210,
221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a
complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see
A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016). A decision to “award
benefits should be made only when the administrative record of the case has been fully
developed and when substantial evidence on the record as a whole indicates that the claimant is
disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22 (citation and quotation
omitted); see A.B., 166 F. Supp.3d at 518.
B.
Sequential Evaluation Process
The Social Security Act establishes a five-step sequential evaluation process for
determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). “The claimant bears the burden of proof at steps one through
four, and the Commissioner bears the burden of proof at step five.” Smith v. Comm’r of Soc.
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Sec., 631 F.3d 632, 634 (3d Cir. 2010) (citing Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92
(3d Cir. 2007)).
At step one, the ALJ determines whether the plaintiff is currently engaged in substantial
gainful activity. 20 C.F.R. § 404.1520(b). If so, then the inquiry ends because the plaintiff is not
disabled.
At step two, the ALJ decides whether the plaintiff has a “severe impairment” or
combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability
to do basic work activities[.]” 20 C.F.R. § 404.1520(c). If the plaintiff does not have a severe
impairment or combination of impairments, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to step three.
At step three, the ALJ decides whether the plaintiff’s impairment or combination of
impairments “meets” or “medically equals” the severity of an impairment in the Listing of
Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §
404.1520(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination
of impairments has lasted or is expected to last for a continuous period of at least 12 months. Id.
at § 404.1509. Otherwise, the ALJ proceeds to step four.
At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)
and determine whether the plaintiff can perform past relevant work. 20 C.F.R. § 404.1520(e), (f).
If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to the final step.
At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,
age, education, and work experience, can perform other jobs that exist in significant numbers in
the national economy. 20 C.F.R. § 404.1520(g). If the ALJ determines that the plaintiff can do
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so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the
impairment or combination of impairments has lasted or is expected to last for a continuous
period of at least twelve months.
III.
ALJ DECISION AND APPELLATE ISSUES
The Plaintiff was 42 years old on her alleged disability onset date. R. 32. Plaintiff meets
the insured status requirements of the Social Security Act through December 31, 2022. R. 19.
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity between
October 1, 2017, her alleged disability onset date, and the date of the decision. Id.
At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
status post labral repair of the left shoulder, lumbar degenerative disc disease, chronic intractable
lower back pain and neck pain, and cervical spondylosis. Id. The ALJ also found that Plaintiff’s
diagnosed obesity, hypertension, breast reduction, and depression and/or reactive depression
were not severe. R. 19–22.
At step three, the ALJ found that Plaintiff did not suffer an impairment or combination of
impairments that met or medically equaled the severity of any Listing. R. 22–23.
At step four, the ALJ found that Plaintiff had the RFC to perform light work subject to
various additional limitations. R. 23–32. The ALJ also found that this RFC did not permit the
performance of Plaintiff’s past relevant work as a cashier and stock clerk, grocery management
trainee, and cosmetic and toiletries salesperson. R. 32.
At step five, the ALJ found that a significant number of jobs—i.e., approximately 11,000
jobs as a school bus monitor; and approximately 6,000 jobs as an usher—existed in the national
economy and could be performed by an individual with Plaintiff’s vocational profile and RFC.
R. 33. The ALJ therefore concluded that Plaintiff was not disabled within the meaning of the
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Social Security Act from October 1, 2017, her alleged disability onset date, through the date of
the decision. Id.
Plaintiff disagrees with the ALJ’s findings at step four and asks that the decision of the
Acting Commissioner be reversed and remanded with directions for the granting of benefits or,
alternatively, for further proceedings. Plaintiff’s Memorandum of Law, ECF No. 15; Plaintiff’s
Reply Brief, ECF No. 17. The Acting Commissioner takes the position that her decision should
be affirmed in its entirety because the ALJ’s decision correctly applied the governing legal
standards, reflected consideration of the entire record, and was supported by sufficient
explanation and substantial evidence. Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF
No. 16.
IV.
SUMMARY OF RELEVANT MEDICAL EVIDENCE
A.
James H. Rushmore, P.T.
On October 12, 2017, physical therapist James H. Rushmore, P.T., administered a
physical work capacity screening and provided work capability / tolerance recommendations. R.
469–75 3 (copy of seven-page functional task assessment and recommendations dated October
12, 2017), 1337–43 (duplicate), 1345–51 (duplicate), 1336 (copy of one-page functional task
summary and recommendations dated October 12, 2017). Mr. Rushmore began by explaining
Plaintiff’s assessment as follows: “The PHYSICAL THERAPY - PHYSICAL WORK
CAPACITY SCREENING utilizes functional and work sample activities to provide the referral
source with objective data regarding an individual’s safe physical capabilities, functional
tolerances and limitations as they relate to required and/or essential work demands, recreation
For ease of reference, the Court will refer to only the pages in the first copy of the seven-page
functional task assessment and recommendations rather than citing to all three copies of this
assessment.
8
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and/or activities of daily living.” R. 469 (emphasis added). He further explained that, “in terms
of an 8-hour workday, the following guides are utilized when making work capability/tolerance
recommendations. (Occasional 1-33%/day Frequent 34-66%/day Continuous 67-100%/day)[.]”
Id.
Mr. Rushmore administered sixteen task simulations designed to test or to measure
Plaintiff’s ability to perform the following: sitting, standing, walking, stair/step climbing,
bending/stooping, squatting, crouching, kneeling, crawling, overhead reaching, repetitive foot
motions, balance – dynamic, balance – static, hand strength, material handling, and dexterity /
handling / manipulation. R. 470–75. For example, to test Plaintiff’s material handling, Mr.
Rushmore detailed the task simulation and Plaintiff’s performance as compared to the female
population:
TASK 15. Material Handling
Task Simulation: The physical capacity assessment system measures static lifting
ability utilizing a maximum of six positions. The results of this test can give
indication of performance deficiencies, degree of disability or injury and help to
formulate appropriate goals for rehabilitation success [footnote omitted].
According to ergonomic work principles, the 25th percentile is considered a safe
level of performance (75 percent of the population could adequately and
safely function related to occupational standards).
The normative data was provided by the National Institute for Occupational Safety
and Health (NIOSH) for Physical Capacity Tests [footnote omitted].
Task Performance: MAXIMAL ISOMETRIC STRENGTH - OCCASIONAL
FREQUENCY
Test Result
Arm Lift
Torso Lift
Leg Lift
High Far Lift
24 lbs
Unable to assume test position
Unable to assume test position
8 lbs
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Floor Lift
High Near
Unable to assume test position
13 lbs.
MAXIMAL VOLUNTARY ISOMETRIC STRENGTH (pounds) –
Normative Data
Lift
Male
Population Percentile
10 25 50 75 90
1. Arm
2. Torso
3. Leg
4. High Far
5. Floor
6. High Near
Female
Population Percentile
10 25 50 75 90
65 77 90 102 114
64 77 95 118 142
108 152 201 238 271
35 42 51 62 75
130 163 201 238 271
77 97 121 146 168
39
46
33
20
71
35
48
55
60
21
97
49
58 69 78
68 83 100
88 117 141
29 35 42
123 152 176
64 79 93
Limiting Factors/Performance Limitations: Struggled to perform the lifting
activities requested due to poor balance, decreased standing tolerance, and pain.
Did not achieve the 25th percentile in any lift performed.
WORK PERFORMANCE RECCOMENDATIONS [sic]: Not at all
R. 474.
In order to test Plaintiff’s dexterity, handling, and manipulation capabilities, Mr.
Rushmore administered the Purdue Pegboard test:
TASK 16. DEXTERITY/HANDLING/MANIPULATION:
TASK SIMULATION: Purdue Pegboard Test
This is a test to see how quickly and accurately you can work with your hands.
Right/left hand each hand is tested separately in 30-second durations placing pegs
in holes. Both hands are tested working together 30 seconds placing pegs [i]n holes.
Both hands are timed for 60 seconds assembling pegs washers and collars.
TASK PERFORMANCE:
Right: 9 pegs
Left: 8 pegs
[B]oth: 7/7 pairs = 14
Assembly: 16 parts
Male & Female General Factory Work: Poor
Average
Right
12-13
16-18
Left
11-12
15-17
R+L+B= 10
13-15
Assembly 22-30
37-42
10
Excellent
21-22
20-21
16-18
49-56
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LIMITING FACTORS/PERFORMANCE LIMITATIONS: Demonstrated a stiff
forward-bent sitting posture. Some difficulty grasping parts and with sequencing
for bilateral and multi-step instructions.
WORK PERFORMANCE RECCOMENDATIONS [sic]: Tested in the poor
level in all areas.
R. 474–75; see also R. 470 (recommending occasional sitting because Plaintiff was able to
complete 25 minutes of 30 minutes scheduled sitting; recommending occasional standing (with
upper extremity assist) because Plaintiff was able to complete 5 minutes out of 30 minutes
scheduled standing while completing other tasks; recommending occasional (short distance)
walking because Plaintiff was able to complete 4:40 minutes of 10 minutes scheduled continuous
walking on level surface – treadmill 1.5 mph; recommending occasional stair/step climbing
because Plaintiff was able to complete 15 step up and down a 6-inch step of 50 requested stairs).
Mr. Rushmore went on to explain the meaning of the results and Plaintiff’s efforts during
the assessment, as follows:
The results of this Assessment can be considered representative of Darrlyena[’s]
[] minimal physical work capabilities and tolerances based on the results to this
Assessment. Darrlyena demonstrated consistent effort throughout the assessment.
Her responses to dynamic and repetitive activities and her reported responses
were proportional [to] her effort.
R. 475.
Mr. Rushmore also provided the following functional task summary and
recommendations:
FUNCTIONAL ACTIVTIES - STATIC
SITTING: Limited by pain to 25 minute duration
STANDING: Limited by pain to 4 minute durations with upper extremity assist
FUNCTIONAL ACTIVITIES - DYNAMIC
WALKING: Limited by pain and poor balance to short distances
REPETITIVE BENDING/STOPPING: Not at all limited by pain and balance
SQUATTING: Not at all limited by pain and balance
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CROUCHING: Not at all
KNEELING: Not at all
CRAWLING: Not at all
OVERHEAD REACHING:
REPETITIVE FOOT: RIGHT: Occasional
LEFT: Not at all
BALANCE: Not at all limited by pain and balance – dynamic, Static – Not at all
limited by pain and balance
SIMPLE/FIRM/SUSTAINED GRASP: Right – yes
Left – yes
MATERIAL HANDLING ACTIVITIES (OCCASIONAL)
GRIP STRENGTH: RIGHT 40.0 lbs
LEFT 31.4 lbs
ARM LIFT: 24 lbs
TORSO LIFT: Unable to assume test position
LEG LIFT: Unable to assume test position
HIGH FAR LIFT: 8 lbs
FLOOR LIFT: Unable to assume test position
HIGH NEAR LIFT: 13 lbs
DEXTERITY/HANDLING/MANIPULATION
RIGHT – poor
LEFT – poor
BILATERAL – poor
ASSEMBLY – poor
COMMENT: Darrlyena’s performance demonstrated inter-activity consistency.
She demonstrated significant limitations in sitting, manual dexterity, standing,
walking, stair climbing, kneeling, squatting, and reaching. Her performance is not
consistent with employment at a sedentary level.
R. 1336 (emphasis added).
B.
Juan Carlos Cornejo, D.O.
On August 3, 2018, Juan Carlos Cornejo, D.O., conducted a consultative examination of
Plaintiff at the request of the state agency. R. 676–83. Dr. Cornejo observed that Plaintiff was in
no acute distress, “was able to get on and off the examining table. She was able to dress herself.
She was comfortable in the seated position during the interview.” R. 678. Dr. Cornego’s findings
on examination were as follows:
UPPER EXTREMITY EXAMINATION
Examination of the upper extremities showed no evidence of joint deformity or
instability. The upper extremities reveal no warmth. There was no swelling. Range
of motion of the left shoulder was 150 degrees in flexion and abduction. There was
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no significant tenderness to direct palpation of the right and left upper extremities.
Biceps, triceps, and brachioradialis deep tendon reflexes were 2+ bilaterally
symmetric. There was no sensory deficit to light touch and pinprick of the upper
extremities bilaterally. Pinch strength and grip strength were 5/5 bilaterally. Muscle
strength of the left rotator cuff muscles was 4/5. The claimant was able to extend
the fingers, make a fist, and oppose the thumbs bilaterally. There is a positive
Neer’s and Hawkins test of the left.
LOWER EXTREMITY EXAMINATION
Examination of the lower extremities showed no evidence of joint deformity or
instability. The lower extremities reveal no warmth. There was no swelling. Hips,
knees, and ankles showed normal range of motion. There is tenderness of the medial
and lateral joint lines of the left knee. Patella and Achilles deep tendon reflexes
were 2+ bilaterally symmetric. There was no sensory deficit to light touch and
pinprick of the lower extremities bilaterally. Muscle strength was graded at 5/5
bilaterally in the muscle groups of the lower extremities, including the hip flexors,
knee flexors, knee extensors, foot dorsiflexors, foot plantar flexors, and extensor
hallucis longus.
CERVICAL SPINE EXAMINATION
An examination of the cervical spine showed a normal lordotic curve. There were
no scars along the cervical spine. Range of motion of the cervical spine was
decreased in flexion at 30 degrees when evaluated; however, when distracted she
was able to rotate her neck to 80 degrees. There was no spasm or tenderness to
direct palpation of the trapezius, cervical paraspinal muscles, or along the spinous
process of the cervical spine. Spurling’s Test was negative bilaterally.
THORACIC SPINE EXAMINATION
An examination of the thoracic spine showed a normal kyphotic curve. There were
no scars along the thoracic spine. There was normal range of motion bilaterally in
flexion, extension, rotation, and side bending. There was no spasm and tenderness
to direct palpation of the medial scapula, parathoracic, middle trapezius muscle
areas, or along the spinous process of the thoracic spine. No winging of the scapula
was observed.
LUMBOSACRAL SPINE EXAMINATION
An examination of the lumbar spine showed a normal lordotic curve. There were
no scars along the lumbosacral spine. Range of motion of the lumbar spine was
decreased in flexion at 30 degrees and extension at 20 degrees. There is tenderness
of the para-lumbar musculature. There was no lower back pain or radicular
symptoms on sitting straight leg raising maneuver test. There was no lower back
pain or radicular symptoms on supine straight leg raising maneuver test.
GAIT
The examinee was able to walk with a normal physiologic gait. She did not require
the use of an ambulation aide. The examinee was able to heel walk, toe walk, and
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squat without difficulty. Hand-eye coordination was good.
R. 678–79. Dr. Cornejo diagnosed chronic left shoulder pain, status post left labral repair,
history of chronic right foot pain, bilateral knee osteoarthritis, chronic neck pain, cervical
degenerative disc disease, chronic back pain, and lumbar degenerative disc disease. R. 679. Dr.
Cornejo summarized his findings and concluded as follows:
SUMMARY
In regard to her foot pain, she has had right foot pain since a slip and fall at work
in 2015. On exam, there is no tenderness of the right foot. There is no evidence of
swelling or effusion. She does have good mobility of the bilateral feet and ankles.
She was able to ambulate without the use of a cane or crutch.
In regard to her spine, she has had neck and back pain since 2015. On exam, she
does have better mobility of the cervical spine when distracted versus when
evaluated. She does have decreased mobility of the lumbar spine; however, she was
able to sit in 90 degrees inflexion during the evaluation.
In regard to her left shoulder pain, she has had left shoulder pain since a work injury.
On exam, she has less mobility of the left shoulder versus the right. She has
decreased strength of the left rotator cuff muscles versus the right; however, she
does have good functionality of her bilateral hands. She was able to take off her
shoe by herself. She was able to write on the intake form.
CONCLUSION
She would have difficulty with frequently bending and turning her neck and back.
She would be able to walk and stand for a reasonable amount of time with needed
breaks. She would be able to sit for a reasonable amount time with needed breaks.
No significant balance limitations were observed during the evaluation. She would
have difficulty with overhead lifting the left shoulder; however, she would be able
to do sedentary activity with needed breaks. She has good functionality of her right
and left hands. She would be able to handle fine and small sized objects. She has
no significant limitations to fingering such as picking and pinching objects. She
would be limited from physically exerting activity and heavy lifting.
R. 679–80 (emphasis added).
Dr. Cornejo also completed a two-page, check-the-box, and fill-in-the-blank form
entitled, “Passive Range of Motion Chart” on August 3, 2018. R. 681–82. Dr. Cornejo noted,
inter alia, that Plaintiff could fully extend and make a fist with both hands. R. 681. Plaintiff
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could oppose fingers with both hands. Id. Each of Plaintiff’s hands had a 5/5 grip strength and
5/5 pinch strength. Id. Dr. Cornejo left blank the spaces reflecting dorsiflexion, palmar flexion,
radial deviation, and ulnar deviation of Plaintiff’s right and left wrists. Id. Dr. Cornejo also left
blank two questions asking whether Plaintiff could separate papers or button buttons. Id.
V.
DISCUSSION
Plaintiff raises a number of challenges to the ALJ’s decision, including, inter alia, that
the ALJ utterly failed to consider the opinion of the physical therapist, resulting in a flawed RFC
determination. Plaintiff’s Memorandum of Law, ECF No. 15, p. 22. For the reasons that follow,
this Court concludes that the ALJ’s RFC determination is not supported by substantial evidence,
but for reasons different than those raised by Plaintiff. Cf. Jennings o/b/o Thomas v. Saul, No.
CV 20-1953, 2021 WL 601097, at *2-3 (E.D. Pa. Feb. 16, 2021), reconsideration denied sub
nom. Jennings o/b/o Thomas v. Saul, No. CV 20-1953, 2021 WL 1175134 (E.D. Pa. Mar. 29,
2021) (“This unexplained mistake is a clear, reversible error that this court has addressed sua
sponte.”) (citations omitted); McNeal v. Comm’r of Soc. Sec., No. CIV.A. 10-318-J, 2012 WL
1038898, at *3 (W.D. Pa. Mar. 28, 2012) (“The Court does not reach any of the issues raised by
Plaintiff but finds that remand is warranted on grounds not raised by the parties.”).
The ALJ must evaluate all record evidence in making a disability determination.
Plummer, 186 F.3d at 433; Cotter, 642 F.2d at 704. The ALJ’s decision must include “a clear
and satisfactory explication of the basis on which it rests” sufficient to enable a reviewing court
“to perform its statutory function of judicial review.” See Cotter, 642 F.2d at 704–05.
Specifically, the ALJ must discuss the evidence that supports the decision, and the evidence that
the ALJ rejected, and explain why the ALJ accepted some evidence but rejected other evidence.
Id. at 705–06; Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 505–06 (3d Cir. 2009); Fargnoli v.
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Massanari, 247 F.3d 34, 42 (3d Cir. 2001) (“Although we do not expect the ALJ to make
reference to every relevant treatment note in a case . . . 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.”). Without this explanation, “the reviewing court cannot tell
if significant probative evidence was not credited or simply ignored.” Cotter, 642 F.2d at 705;
see also Burnett, 220 F.3d at 121 (citing Cotter, 642 F.2d at 705).
For claims filed after March 27, 2017,4 the regulations eliminated the hierarchy of
medical source opinions that gave preference to treating sources. Compare 20 C.F.R. § 404.1527
with 20 C.F.R. § 404.1520c(a) (providing, inter alia, that the Commissioner will no longer “defer
or give any specific evidentiary weight, including controlling weight, to any medical opinion(s)
or prior administrative medical finding(s), including those from [the claimant’s] medical
sources”). Instead, the Commissioner will consider the following factors when considering all
medical opinions: (1) supportability; (2) consistency; (3) relationship with the claimant,
including the length of the treating examination, the frequency of examinations, and the purpose
of the treatment relationship; (4) the medical source’s specialization; and (5) other factors,
including, but not limited to, “evidence showing a medical source has familiarity with the other
evidence in the claim or an understanding of our disability program's policies and evidentiary
requirements.” 20 C.F.R. § 404.1520c(c).
The regulations emphasize that “the most important factors [that the ALJ and
Commissioner] consider when [] evaluat[ing] the persuasiveness of medical opinions and prior
administrative medical findings are supportability (paragraph (c)(1) of this section) and
consistency (paragraph (c)(2) of this section).” Id. at § 404.1520c(a). As to the supportability
4
As previously noted, Plaintiff’s claim was filed on November 14, 2017.
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factor, the regulations provide that “[t]he more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his or her medical
opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions
or prior administrative medical finding(s) will be.” Id. § 404.1520c(c)(1). As to the consistency
factor, the regulations provide that “[t]he more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources and
nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be.” Id. § 404.1520c(c)(2).
The applicable regulations further require the ALJ to articulate her “consideration of
medical opinions and prior administrative medical findings” and articulate in the “determination
or decision how persuasive [she] find[s] all of the medical opinions and all of the prior
administrative medical findings in [the claimant’s] case record.” Id. at § 404.1520c(b).
“Specifically, the ALJ must explain how [she] considered the ‘supportability’ and ‘consistency’
factors for a medical source’s opinion. . . . The ALJ may—but is not required to—explain how
[she] considered the remaining factors.” Michelle K. v. Comm’r of Soc. Sec., No. 1:19-CV01567, 2021 WL 1044262, at *4 (W.D.N.Y. Mar. 19, 2021) (citing 20 C.F.R. §§
404.1520c(b)(2), 416.920c(b)(2)).
In this case, at step four of the sequential evaluation process, the ALJ found that Plaintiff
had the RFC to perform light work “except all posturals are occasional. No ladders, ropes,
scaffolds and no crawling. Occasional reaching with the left nondominant arm, no overhead
reaching with the left nondominant arm.” R. 23. In reaching this determination, the ALJ
considered Mr. Rushmore’s assessment and findings as follows:
The undersigned has considered the physical/occupational therapy records from
Rushmore Physical Therapy, and the functional test summary and
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recommendations completed by James H Rushmore, P.T. in October 2017
(Exhibits 4F/65-71, 28F). In reviewing some of the testing results, it seems to be
more restrictive than the objective testing referenced in the evidence of record. For
example, the physical examination performed by the consultative examiner [Dr.
Cornejo] in August 2018, indicates the claimant has good functionality in her right
and left hands. She would be able to handle fine and small sized objects. She has
no significant limitations to fingering such as picking and pinching objects (Exhibit
11F/5).5 Whereas Mr. Rushmore’s report references the claimant as “work
5
The ALJ was “partially persuaded” by Dr. Cornejo’s opinion, reasoning as follows:
On August 3, 2018, Juan Carlos Cornejo, D.O., conducted a consultative exam at
the request of the Disability Determination Services. (Exhibit 11F). The doctor’s
conclusion references the following: She would have difficulty with frequently
bending and turning her neck and back. She would be able to walk and stand for a
reasonable amount of time with needed breaks. She would be able to sit for a
reasonable amount time with needed breaks. No significant balance limitations
were observed during the evaluation. She would have difficulty with overhead
lifting the left shoulder; however, she would be able to do sedentary activity with
needed breaks. She has good functionality of her right and left hands. She would
be able to handle fine and small sized objects. She has no significant limitations to
fingering such as picking and picking objects. She would be limited from physically
exerting activity and heavy lifting.” (Exhibit 11F/5). The doctor does not address
his opinion in vocational terms, as he does not describe with specificity the amount
the claimant can walk, stand or carry, etc. He references the claimant is able to do
sedentary activity with needed breaks but he does not provide a rationale for
limiting the claimant to sedentary work based upon his objective findings in his
exam. Furthermore, his finding and limiting the claimant to sedentary work does
not appear to be consistent with his observations, as he reported the claimant was
able to get on and off the exam table, and dress herself; she was comfortable in a
seated position during the interview. In addition, the objective findings overall are
not supportive of the sedentary exertional level. For example, his physical
examination of the claimant, in part he references the claimant’s muscle strength
was graded at 5/5 bilaterally in the muscle groups of the lower extremities,
including the hip flexors, knee flexors, knee extensors, foot dorsiflexors, foot
planter flexors and extensor halluces longus (Exhibit 11F/3). With respect to the
claimant’s thoracic spine, he indicated there was normal range of motion bilaterally
(Exhibit 11F/4). Although the claimant’s range of motion in the lumbar spine was
decreased inflection of 30 degrees and extension at 20 degrees, there was no low
back pain or radiation symptoms on sitting straight leg raising maneuver and there
was no lower back pain or radicular symptoms on the supine straight leg raising
maneuver test. Thus, the undersigned does not accept his opinion limiting the
claimant to the sedentary exertional level as it is not supported by his observations
or by the objective testing as well as he provides no rationale or basis for his opinion
in this regard. The undersigned accepts his opinion that the claimant would have
difficulty with overhead lifting of the left shoulder, but he does not reference a
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performance recommendations” with respect to her right and left fine grasping as
well as her right and left simple grasping. (Exhibit 28F/6).
R. 30. The Acting Commissioner contends that this consideration is “plainly contrary to
Plaintiff’s contention” that the ALJ completely failed to consider Mr. Rushmore’s findings and
opinion. Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 16, p. 20 n.3. The Acting
Commissioner further argues that “[t]he ALJ explained that she found the testing results to be
more restrictive than the objective testing referenced in the evidence of record (Tr 30). There was
no error.” Id.
While this Court agrees with the Acting Commissioner that Plaintiff erred in contending
that the ALJ utterly failed to analyze Mr. Rushmore’s opinion, the Court cannot agree that the
ALJ did not err when considering that opinion. Under the regulations governing claims filed
before March 27, 2017, the opinion of Mr. Rushmore, a physical therapist, would not have
constituted a “medical opinion” because physical therapists were not “acceptable medical
sources.” 20 C.F.R. §§ 404.1527(a)(1) (limiting “medical opinions” to “statements from
acceptable medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions”) (emphasis added), 404.1513(a) (listing
acceptable medical sources, which excludes physical therapists) (eff. Sept. 3, 2013 to Mar. 26,
2017). However, under the current regulations, a “medical opinion” is “a statement from a
limitation in vocational terms. The undersigned accepts his opinion that she has
good functionality of her right and left hands, she is able to handle fine and small
sized objects and she is no significant limitations in fingering such as picking and
pinching objects. Therefore, the undersigned is partially persuaded by his
assessment.
R. 29.
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medical source about what [a claimant] can still do despite [her] impairment(s) and whether [the
claimant has] one or more impairment-related limitations or restrictions” in certain work-related
activities and abilities. 20 C.F.R. § 404.1513(a)(2)(i)–(iv) (2017). A “medical source” is, inter
alios, “an individual who is licensed as a healthcare worker by a State and working within the
scope of practice permitted under State or Federal law[.]” 20 C.F.R. § 404.1502(d) (2017). Mr.
Rushmore appears to have met these requirements, a fact that the Acting Commissioner does not
challenge. See R. 475 (reflecting Mr. Rushmore’s physical therapy license number,
40QA00262900), 470–75 (reflecting Mr. Rushmore’s opinions regarding Plaintiff’s functional
limitations and abilities), 1336 (same); Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF
No. 16, p. 20 n.3. Accordingly, because Mr. Rushmore’s opinion constitutes a “medical
opinion,” the applicable regulations required the ALJ to articulate her consideration of this
medical opinion, including an explanation of how she considered the supportability and
consistency of the opinion. 20 C.F.R. § 404.1520c(b), (c); Michelle K., 2021 WL 1044262, at *4.
In this case, the ALJ addressed neither the consistency nor the supportability of Mr.
Rushmore’s opinion. R. 30. Instead, the ALJ vaguely observed that Mr. Rushmore’s opinion
“seems to be more restrictive than the objective testing” performed by Dr. Cornejo, comparing
the functional findings of Plaintiff’s hands and fingers by this consultative examiner and Mr.
Rushmore. Id. Even if the Court were to construe this discussion as consideration of the
consistency of Mr. Rushmore’s opinion, this discussion would nevertheless be deficient because
the ALJ does not explain—nor is it apparent to the Court—why she discounted Mr. Rushmore’s
opinion in this regard. R. 30, 469–75. As previously detailed, Mr. Rushmore administered, inter
alia, the Purdue Pegboard test when assessing Plaintiff’s dexterity, handling, and ability to
manipulate items, R. 474–75, while Dr. Cornejo left blank questions asking whether Plaintiff
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was able to separate papers or button buttons, R. 681. See also R. 469 (reflecting Mr.
Rushmore’s explanation that the assessment provides “objective data regarding an individual’s
safe physical capabilities, functional tolerances and limitations as they relate to required and/or
essential work demands, recreation and/or activities of daily living”); Kala S. v. Berryhill, No.
1:18-CV-00934-YY, 2019 WL 4015884, at *7 (D. Or. Aug. 26, 2019) (referring to the Purdue
Pegboard test as “objective”); Romero v. Berryhill, No. 17-CV-02527-CMA, 2018 WL 3471072,
at *4 (D. Colo. July 19, 2018) (same). Moreover, to the extent that the ALJ’s finding that Mr.
Rushmore’s opinion “seems to be more restrictive[,]” than Dr. Cornejo’s opinion, the ALJ
limited her discussion to Plaintiff’s functionality of her hands and fingers without explaining
why the remainder of Mr. Rushmore’s opinion regarding, inter alia, Plaintiff’s functional
limitations in sitting, standing, walking, stair climbing, squatting, crouching, kneeling, crawling,
balancing, etc., R. 470–75, 1336, was not persuasive because it was inconsistent with other
record evidence. R. 30. In any event, the ALJ’s limited discussion in this regard is not sufficient
to satisfy the supportability factor of the new regulations: The ALJ’s decision is silent as to
whether, or in what way, Mr. Rushmore’s opinion was not supported by his own findings or
other record evidence. Id.; see also 20 C.F.R. § 404.1520c(c)(1); Nicole L. v. Kijakazi, No. 6:20CV-01576, 2022 WL 160274, at *8 (N.D.N.Y. Jan. 18, 2022) (“But without some clear
discussion of the supportability factor the Court is left to guess at the ALJ’s reasoning, which
frustrates meaningful review.”); cf. Matthew J. S. v. Comm’r of Soc. Sec., No. 6:20-CV-1606
(GLS), 2022 WL 957974, at *3 (N.D.N.Y. Mar. 30, 2022) (remanding action where “not only
did the ALJ fail to articulate the supportability and consistency factors of [a physical therapist’s
opinion, he appears to have excluded it from consideration”).
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“The new regulations promulgated by the Social Security Administration set forth a
‘minimum level of articulation’ to be provided in determinations and decisions, in order to
‘provide sufficient rationale for a reviewing adjudicator or court.’” Warren I. v. Comm’r of Soc.
Sec., No. 5:20-CV-495, 2021 WL 860506, at *8 (N.D.N.Y. Mar. 8, 2021) (quoting 82 FR 584401, and citing 20 C.F.R. §§ 404.1520c(b) and 416.920c(b)). As set forth above, “the ALJ’s
failure in this case to meet these minimum levels of articulation frustrates this court’s ability to
determine whether [this] disability determination was supported by substantial evidence.” Id.;
see also Brownsberger v. Kijakazi, No. 3:20-CV-01426, 2022 WL 178819, at *6–7 (M.D. Pa.
Jan. 18, 2022) (finding that substantial evidence did not support the ALJ’s assessment of medical
opinions where the ALJ “makes no effort to compare or support their opinions with the record. . .
. The ALJ does not provide any citations to specific evidence on the record to explain his
reasoning and does not explain how he evaluated the opinions regarding the supportability and
consistency factors”); Jaleesa H. v. Comm’r of Soc. Sec., No. 1:20-CV-01180 EAW, 2022 WL
174337, at *5–6 (W.D.N.Y. Jan. 18, 2022) (stating that, under the new regulations, the ALJ “is
still required to articulate how he considered the medical opinion, including explaining how he
considered the ‘supportability’ and ‘consistency’ factors” and that the ALJ in that case “did not
explain anything—instead, he made a conclusory statement that Dr. Fabiano’s opinion was
‘generally consistent and supportive,’ without any explanation of how he assessed the opinion in
connection with the consistency and supportability factors which, as explained above, is required
by the new regulations”); Nicole L., 2022 WL 160274, at *8.
Furthermore, the Court cannot conclude that the ALJ’s failure articulate why Mr.
Rushmore’s opinion was not persuasive is harmless. Mr. Rushmore opined, inter alia, that
Plaintiff was limited to sitting for 25-minute durations and was limited to standing for 4-minute
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durations with upper extremity assist, had poor bilateral hand dexterity/handling/manipulation,
and that Plaintiff’s ability “is not consistent with employment at a sedentary level.” R. 474–
75,1336. However, the ALJ’s RFC determination does not reflect these limitations. R. 23.
Accordingly, this Court concludes that remand of the matter for further consideration is
appropriate even if, upon further examination of Mr. Rushmore’s opinion and the RFC
determination, the ALJ again concludes that Plaintiff is not entitled to benefits. Cf. Zuschlag v.
Comm’r of Soc. Sec. Admin., No. 18-CV-1949, 2020 WL 5525578, at *8 (D.N.J. Sept. 15, 2020)
(“On remand, the ALJ may reach the same conclusion, but it must be based on a proper
foundation.”); Jiminez v. Comm’r of Soc. Sec., No. CV 19-12662, 2020 WL 5105232, at *4
(D.N.J. Aug. 28, 2020) (“Once more, the ALJ did not provide an adequate explanation that
would enable meaningful review, and the Court once more cannot determine what role lay
speculation played in the ALJ’s rejection of this detailed functional assessment from Dr.
Marks.”); Cassidy v. Colvin, No. 2:13-1203, 2014 WL 2041734, at *10 n.3 (W.D. Pa. May 16,
2014) (“Nevertheless, that the ALJ may have misinterpreted or misunderstood Dr. Kaplan’s
findings with regard to Plaintiff's postural activities does not absolve her of her error. Rather, it
highlights the need for an ALJ to fully explain her findings. Otherwise, the district court is left to
engage in this sort of speculation about how an ALJ arrived at her decision.”). The Court
therefore concludes that the decision of the Commissioner must be reversed, and the matter must
be remanded to the Commissioner for further consideration of these issues. 6
Plaintiff asserts a number of other errors in the Commissioner’s final decision. Because the
Court concludes that the matter must be remanded for further consideration of Mr. Rushmore’s
opinion and the RFC determination, the Court does not consider those claims.
23
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VI.
CONCLUSION
For these reasons, Court REVERSES the Commissioner’s decision and REMANDS the
matter for further proceedings consistent with this Opinion and Order.
The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42
U.S.C. § 405(g).
IT IS SO ORDERED.
Date: May 6, 2022
s/Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE
24
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