PERRY v. COLVIN

Filing 18

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 7/19/17. 7/19/17 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAWN PERRY,
Plaintiff,

CIVIL ACTION
NO. 15-4225

v.
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security
Defendant.
PAPPERT, J.

July 19, 2017
MEMORANDUM

Dawn Perry, pursuant to 42 U.S.C. § 405(g), seeks judicial review of a decision
by the Commissioner of Social Security denying her claim for Disability Insurance
Benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. Perry
contends the decision was erroneous because the Administrative Law Judge failed to
adequately address her obesity, rejected medical opinion evidence without explanation,
failed to adequately explain his credibility determination and based his decision on
vocational expert testimony elicited by an improper hypothetical question. The ALJ’s
decision was upheld by the Appeals Council, and Magistrate Judge Lynne Sitarski
subsequently recommended that Perry’s request for review be denied. For the reasons
below, the Court overrules Perry’s objections to Magistrate Judge Sitarski’s Report and
Recommendation and grants judgment in favor of the Commissioner.

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
Pursuant to Federal Rule of Civil Procedure 25(d), Ms. Berryhill should be substituted for the former
Acting Commissioner, Carolyn Colvin, as the defendant in this action. See FED. R. CIV. P. 25(d).
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I.
Perry filed for Disability Insurance Benefits on June 15, 2012, claiming
disability, effective May 20, 2011, due to osteoarthritis in both knees. (R. 51, 118, ECF
No. 4.)2 Her claim was initially denied on August 15, 2012. (R. 63–66.) On August 22,
2012, Perry requested a hearing before an Administrative Law Judge (“ALJ”), (R. 67),
which was held on November 15, 2013, (R. 26–46). Perry, represented by counsel,
testified at the hearing, as did an impartial vocational expert. (Id.) On March 18,
2014, the ALJ denied Perry’s claim. (R. 10–25.) Perry filed a request for review with
the Appeals Council on May 4, 2014. (R. 7–9.) The Council denied Perry’s request on
May 29, 2015, rendering the ALJ’s decision the final decision of the Commissioner. (R.
1–3.) Perry filed this action on July 31, 2015, seeking judicial review of the ALJ’s
decision. (ECF Nos. 1 & 8.) On February 24, 2017, the magistrate judge issued a
report recommending that Perry’s request for review be denied. (ECF No. 14.) Perry
filed her objections to the magistrate judge’s recommendation on March 13, 2017. (ECF
No. 15).
II.
The Court has reviewed the administrative record in its entirety and
summarizes here the evidence relevant to Perry’s request for review.
A.
Perry, born on February 21, 1964, was forty-seven years old on May 20, 2011, the
alleged onset date of her disability. (R. 20.) She received a high school equivalency
certificate and worked as a medical assistant from 1996 to 2011. (R. 20, 110.) In May
The record, consisting of 512 numbered pages, was uploaded to ECF in piecemeal fashion.
See (ECF Nos. 4-2–4-11). The Court will cite to the record page numbers rather than the specific
ECF document identifiers.
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2011, Perry complained of pain, instability, stiffness, weakness and locking in her left
thigh, knee and calf. (R. 17, 200.) She treated with orthopedic surgeon Andrew
Frankel, M.D. on May 10 and May 13, 2011. (R. 17, 183–84, 188–93, 200–08.) Upon
examination, Dr. Frankel found moderate swelling and effusion with marked
tenderness in the left knee. (R. 17, 203.) He noted a history of a meniscus tear and an
ACL repair to the right knee. (R. 202.) X-rays showed severe degenerative joint
disease (DJD) in the right knee, no significant DJD in the left knee and mild DJD in
the patellofemoral joints of both knees. (R. 203.) An MRI of the left knee showed a
complex medical meniscus tear, moderate joint effusion and moderate degenerative
changes of the medial femoral condyle. (R. 17, 200.) Dr. Frankel diagnosed left knee
joint effusion, medial meniscus tear and DJD in the patellofemoral joint. (R. 200.) He
performed a left knee arthroscopy with a partial medial meniscectomy on May 23, 2011.
(R. 17, 181–82.) In a series of post-operative visits, Perry complained of uncontrolled
pain. (R. 194–98.) Dr. Frankel reported nearly normalized range of motion and
improved strength. (Id.) On July 24, 2012, Dr. Frankel wrote that he was unable to
complete a Medical Source Statement delineating Perry’s functional capacity, stating:
“Unable to assess. Have not seen patient since 7/14/2011 when she left practice to see
another surgeon.” (R. 156–57.)
B.
On September 20, 2011, orthopedic surgeon Jonathan P. Garino replaced both of
Perry’s knees at Paoli Hospital. (R. 28–29, 210–13, 407–08.)3 On September 25, 2011,

Though the Paoli Hospital medical records from the September 20 surgery were
inadvertently omitted from the record, the record contains Paoli Hospital records from Perry’s
subsequent treatment on September 25, November 30, December 19, 2011 and March 20, 2012, and
the September 20 bilateral knee replacement procedure is reflected in those records. (R. 209–58.)
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Perry went to the Paoli Hospital emergency room complaining of pain and swelling in
both knees. (R. 209–23.) She described the pain as “dull” and of moderate severity but
constant. (R. 210.) She was diagnosed with post-operative pain and swelling of both
legs and discharged with instructions to elevate her legs above chest level. (R. 212,
216.) She was cleared to walk and bear weight as tolerated. (R. 212.)
Dr. Garino referred Perry to Elizabeth Todd for physical therapy, which Perry
attended semi-regularly from October 2011 to June 2012 to address mild edema, pain,
decreased range of motion and decreased strength. (R. 361–97.) On October 17, 2011,
Todd noted: “Pain is 3/10 at rest mostly in the left lower extremity but can increase to
6/10.” (R. 394.) On October 24, 2011, Perry told Todd that her knees continued to feel
really stiff and that she was “wiped-out from her weekend.” (R. 391.) On October 27,
2011, Todd noted that Perry had fallen the day before and landed on both knees but
denied any increase in pain, swelling or bruising. (Id.) On October 31, 2011, Perry
reported that “she was very active over the weekend and noted increased swelling and
stiffness” in her knees. (R. 392.) Todd noted that she added a weight machine into
Perry’s curriculum, which Perry performed successfully. Todd wrote: “Patient
continues to demonstrate good range of motion and is demonstrating improved strength
bilaterally.” (Id.) On November 3, 2011, Perry stated that her legs felt “normal.”
(R. 389.) Todd noted that Perry “continue[d] to demonstrate slight Trendelenburg gain
with ambulation but overall is improving well, able to reciprocally ascend and descend
stairs.” (Id.)

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C.
In November 2011, while on vacation at Disney World in Florida, Perry went to
the emergency room complaining of swelling in her left leg. (R. 386, 388, 435.) An MRI
was negative for Deep Vein Thrombosis. (R. 386, 435.) Upon returning home, she saw
Dr. Garino, who told her that “she was doing too much activity.” (R. 386, 390.) One
week later, Perry fell over her dog, landed on her knees and heard her “right knee pop.”
(R. 224, 275–76, 386, 390.) Dr. Garino examined her, diagnosed her with a dislocated
right knee and directed her to the Paoli Hospital ER for “sedation and manipulation.”
(R. 224–31, 235, 275, 386, 390.) The procedure successfully popped her knee back into
place and she was discharged on November 30, 2011 in “stable condition with weight
bearing as tolerated.” (R. 235.)
On December 6, 2011, Perry returned to physical therapy. She reported
“significant relief” after the relocation of her right knee and an ability to “walk
normally.” (R. 386.) She noted recurring swelling and stiffness and ranked her pain
level as 1/10 at rest with increases up to 5/10. (Id.) In particular, she experienced
“sharp pain in the right medial knee with overpressure” and “lacked eccentric control
for the right knee.” (Id.) On December 13, 2011, Perry stated that “her knees felt very
good after the reevaluation” and “denied any sharp pain in right knee with passive
range of motion,” demonstrating “improved range of motion.” (R. 384.)
On December 19, 2011, however, Perry returned to Dr. Garino with severe pain
in her right knee. (R. 18, 239.) He determined that she had again dislocated the knee
and directed her to the ER for another relocation procedure. (R. 238–46.) After the
December 19 procedure, Perry reported decreased pain—from 10/10 to 2/10. (R. 242.)

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On January 24, 2012, upon returning to physical therapy, Perry reported general laxity
in her right knee and “tenderness over her left patellar tendon and her right lateral
joint line.” (R. 379.) She ranked her pain as 3/10 at rest with increases to 6/10. (Id.)
She noted difficulty with stairs and stated she had been limited with her walking
capabilities. (Id.) Notwithstanding these limitations, Perry reported that “recently she
has been helping to take care of her mother-in-law which includes prolonged standing
and going up and down stairs multiple times of the day.” (Id.) On January 26, 2012,
Perry reported increased pain at a level of 6/10. (R. 374.) On February 7, 2012, Perry
stated that her knees were feeling better and that she was not experiencing any pain in
her right knee. (R. 374–75.) On February 9, Perry stated that her right knee was
bothering her and she “continues to not have time to rest at home.” (R. 373.) On
February 21, she reported that her right knee was again dislocated. (R. 376.) Dr.
Garino recommended a right knee revision. (R. 425–27.)
On March 2, 2012, Perry went to the Paoli Hospital ER complaining of back pain
after she “strained her lower back” while “attempting to move her mother.” (R. 249–
59.) She did not report pain in her lower extremities. (Id.) She ambulated without
difficulty and exhibited normal range of motion in her extremities, which were noted as
“nontender.” (R. 250.) She was released in stable condition. (Id.)
D.
On March 20, 2012, Perry was admitted to Paoli Hospital for an “elective
revision” total right knee replacement. (R. 18, 29, 261–77.) According to hospital
records, Perry had “a failed knee replacement secondary to lateral instability which she
developed after falling over her dog in the early postoperative period back in November

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or December 2011. She has now dislocated her knee on numerous occasions and she is
indicated for revision of total knee.” (R. 275.) Perry’s pain was well-controlled after the
procedure and she was discharged with instructions for medication and physical
therapy. (R. 18, 263.) Upon discharge, Dr. Garino diagnosed failed total knee
replacement, right side and status post revision knee replacement. (R. 18, 275.)
Perry continued attending physical therapy with Todd. On April 24, 2012, Perry
stated that she had been assisting her mother-in-law and her legs had been “more
achy.” (R. 369.) On May 10, she reported increased pain in her left knee and pain in
her back and hips. (R. 367.) On May 15, she stated that both of her knees had been
really bothering her, the left in particular. (R. 367–68.) On May 17, Todd wrote:
“Patient still feels that her knees are so much better. Patient notes that her mother-inlaw is in the hospital so she has not been doing the heavy lifting. Patient is no longer
reporting significant sensitivity to touch on the lower leg. Patient also notes that the
tape has really helped the left knee.” (R. 364.) On May 29, 2012, however, Perry
reported that her knees had been bothering her more lately and ranked her pain level
at 9/10. (R. 364.) The same day, Todd noted that Perry “ha[d] been making fair
progress” and demonstrated increased strength and range of motion. (R. 366.)
On June 1, 2012, Todd noted that Perry was “frustrated by persistent pain” and
continued to have lateral knee pain on the right with pinpoint tenderness and sharp
discomfort. (R. 363.) On June 12, Todd noted that Perry “ha[d] not been very diligent
about doing the exercises at home.” (R. 362.) Perry nevertheless stated that her
shooting pains had ceased and that her “knees have been feeling better lately.”
(R. 362.) On June 19, Perry again reported that her knees were feeling better and she

7

was “planning on going to the shore this weekend, where she will be doing a lot more
walking.” (R. 361.) Though she continued to report some pain in her right knee, she
demonstrated improved gait with decreased compensations. (Id.) On June 26, 2012,
Perry again stated that her knees felt great and though she felt some “tightness,” she
was “doing a lot of walking on the sand and denied any knee pain.” (Id.) Todd noted
“improved range of motion and improved strength.” (Id.) Perry apparently ceased
attending physical therapy at this point.4
On July 20, 2012, Dr. Garino completed a Physical Capabilities Questionnaire in
conjunction with Perry’s claim for continued long-term disability benefits. (R. 440–45.)
He found her able to work at a light exertional level defined as exerting up to twenty
pounds of force occasionally, ten pounds of force frequently or a negligible amount of
force constantly. He limited her to no squatting, climbing ladders or stairs, kneeling or
crawling; occasional sitting, standing, walking and bending at her waist; frequent use
of foot controls and driving; and no limitations on the use of her upper extremities.
(R. 441.) Dr. Garino did not, however, complete a Social Security Medical Source
Statement delineating Perry’s functional capacity.
E.
Several months later, Perry consulted with another orthopedic surgeon, Gregory
Deirmengian, M.D. (R. 18, 407, 424.) Dr. Deirmengian examined Perry on October 4,
2012 and described her as “well-appearing, in no acute distress.” (R. 408.) He noted
her complaints of bilateral knee pain, right worse than left. (R. 18, 407.) Perry
reported that her knees were “worse than before surgery,” “sore all the time” and
The final entry, on June 26, 2012, notes that Perry planned to return to physical therapy on
June 28 and then go out of town for two weeks. (R. 361.) It appears Perry did not return for any
additional sessions.
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caused “sharp pain.” (Id.) Dr. Deirmengian’s examination of her knees showed normal
alignment, full extension and no instability. (Id.) Though he noted mild effusions and
some joint tenderness, Dr. Deirmengian stated that he was unable to identify a
mechanical issue to explain Perry’s pain. (R. 18, 407–08.) He noted that x-rays of her
knees showed “well-aligned and well-fixed knee replacement, the right side is a stem
revision and the left side is a primary knee replacement.” (R. 408.) He wrote: “She
really does not have any instability, loosening, malalignment, patellofemoral tracking,
or any other mechanical issue that would explain her pain.” (R. 408.) He recommended
pain management, physical therapy and a follow-up with Dr. Garino.
On October 17, 2012, Dr. Garino examined Perry’s knees and noted that both
were “[n]eurovascularly intact” and exhibited “satisfactory range of motion and normal
strength and tone.” (R. 18, 418–20.) He diagnosed her with stiff knee joints and
referred her to pain management. (R. 18, 419–20.)
On November 6, 2012, Perry had an initial evaluation with pain management
specialist Brian Pierson, M.D. (R. 18, 485–86.) She reported that pain had returned in
both knees after initially doing “extremely well” following her knee replacements.
(R. 485.) She stated that climbing stairs was particularly painful. (Id.) Dr. Pierson
noted Perry’s long history of degenerative joint disease. He observed that her knee
replacements were “mechanically doing well” and, notwithstanding a little “popping on
the left,” did not exhibit instability. (Id.) He further noted “routine postoperative
appearance,” mildly antalgic gait, full extension in both knees, tenderness in both
incisions and “decreased sharp/dull discrimination bilaterally, lateral to the incisions.”

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(R. 486.) He diagnosed probable neuromas,5 DJD of knees bilaterally, status post
bilateral total knee arthroplasty, gastroesophageal reflux disease, obesity and wellcontrolled depression. (R. 18, 486.) He referred Perry to Dr. Nestor Veitia and then
wrote: “Given the pain she is experiencing and lack of response to medication, I think it
will be essentially impossible for [Perry] to return to work at this time.”6 (Id.)
On December 4, 2012, Dr. Veitia examined Perry and indicated that he would
“attempt exploration of left knee scar for possible neuroma.” (R. 489, 18, 488–91, 493–
94.) In an unsigned note dated January 17, 2013, Dr. Veitia stated that Perry “will be
under [his] care for surgery and follow up care, and will be able to return to work on a
date which will be determined at a post-operative evaluation. Restrictions will also be
determined, at that time.” (R. 495.) On March 20, 2013, Dr. Veitia performed the
surgical procedure on Perry’s left leg and reported “possible left leg neuroma.”
(R. 18, 29, 497.) He identified some “small structures” in the mid lateral knee calf area
that “may have represented small neuromas” and successfully cut and cauterized them
back into the soft tissue. (Id.) In post-operative visits on April 2 and April 9, 2013,
Perry reported “significant improvement” in her symptoms and that she “no longer
ha[d] pain over the sensitive area” in her left knee. (R. 19, 498–501.)

A neuroma is “a benign neoplasm composed chiefly of neurons and nerve fibers, usually
arising from a nerve tissue.” Neuroma, Mosby’s Medical Dictionary (8th ed. 2009). Retrieved July
18, 2017 from http://medical-dictionary.thefreedictionary.com/neuroma.
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Dr. Pierson did not complete a Social Security Medical Source Statement or identify any
functional limitations related to Perry’s impairments. On January 4, 2013, he wrote: “Due to
persistent pain, [Perry] is unable to return to work in any capacity [at] this time. We hope this will
change [with] upcoming surgery for neuromas.” (R. 482–83.)
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F.
On August 5, 2013, Perry returned to Dr. Pierson complaining of knee pain.7 (R.
18–19, 502–09.) Upon examination, Dr. Pierson noted a slow but not antalgic gait, full
extension of both knees, a nicely healing incision, and “decreased sharp/dull
discrimination bilaterally.” (Id.) On September 5, 2013, notwithstanding Perry’s
continued complaints of pain, Dr. Pierson noted normal affect, normal conversation,
normal gait, healthy incisions, no effusions, no swelling and full range of motion. (R.
509.) He continued Perry on her narcotic medication and provided cortisone injections
that provided “excellent initial relief.” (R. 506.) In subsequent visits, Perry reported
that her knee pain returned after each injection and increased significantly. (R. 504–
09.) On October 4, 2013, Dr. Pierson stated: “The current complaints of increased
symptoms a full week following the injections are very difficult for me to explain.
[Perry] is looking for other solutions to her pain and at this point I really have none to
offer, particularly inasmuch as I have a hard time explaining the residual pain.” (R.
506.) He continued her medication and ordered an electromyogram (“EMG”).8
(R. 19, 511.)
The November 14, 2013 EMG of Perry’s lower extremities was “unremarkable.”
(R. 19, 511–12.) Dr. Jeffrey J. Citara, who performed the EMG, wrote: “I did not find
any measurable neurologic cause on today’s study to explain her symptoms,
Dr. Pierson noted a gap in treatment between February and August 2013 due to Perry’s
incarceration related to a “DUI.” (R. 502.) At the time of her August 5, 2013 visit to Dr. Pierson,
Perry reported that she was on “house arrest and following with the parole officer.” (Id.)
7

An EMG, which records the electrical activity of muscles, is used to detect abnormal
electrical muscle activity that can result from, inter alia, muscular dystrophy, muscular
inflammation, pinched nerves or peripheral nerve damage (in the arms and legs). See William C.
Shiel Jr., MD, Electromyogram (EMG), MEDICINENET.COM (Sep. 1, 2016),
http://www.medicinenet.com/electromyogram/article.htm.
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particularly on the right side. I do not believe the left side appeared to be neurologic as
much as the right did, but based on her history and physical examination, I believe
there is an element of complex regional pain syndrome (CRPS) on the right.” (R. 512.)
G.
Perry testified at the November 15, 2013 hearing before the ALJ that she had
severe pain in both knees, with pain radiating down her right leg causing tingling and
numbness in her right foot. (R. 17, 35, 37.) She stated she was very limited in her
ability to go up and down stairs and could only walk for one block and around the house
for thirty to forty minutes. (R. 32–35.) Perry testified that her legs would throb after
sitting for forty minutes but that the throbbing subsided after she elevated her legs for
five to eight minutes. (R. 35–36.) She stated that other than elevating her legs and
changing positions, nothing helped her pain. (Id.) Perry testified that she was able to
care for her young son and, according to physical therapy notes, described herself as
“very active” in his care. (R. 370.) She was also able to prepare meals, do laundry with
assistance, drive, grocery shop, handle her own finances, socialize with family and
friends, attend family events and swim three times a week, though it caused her pain
afterwards. (R. 249, 298, 369, 377.)
III.
The Social Security Administration (“SSA”) has promulgated a five-step process
for evaluating disability claims. First, the Commissioner considers whether the
claimant is currently engaged in substantial gainful activity. Woodson v. Comm’r Soc.
Sec., 661 F. App’x 762, 765 (3d Cir. 2016) (citing Sykes v. Apfel, 228 F.3d 259, 262–63
(3d Cir. 2000)). If she is not, then the Commissioner considers in the second step

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whether the claimant has a ‘severe impairment’ that significantly limits her physical or
mental ability to perform basic work activities. Id. If the claimant suffers a severe
impairment, the third inquiry is whether, based on the medical evidence, the
impairment meets the criteria of an impairment included in the ‘listing of
impairments,’ which result in a presumption of disability, or whether the claimant
retains the capacity to work. Id. If the impairment does not meet the criteria for a
listed impairment, then the Commissioner assesses in the fourth step whether, despite
the severe impairment, the claimant has the residual functional capacity (“RFC”)9 to
perform her past work. If the claimant cannot perform her past work, then the final
step is to determine whether there is other work in the national economy that the
claimant can perform. Id. The claimant bears the burden of proof for steps one, two,
three and four of this test. The Commissioner bears the burden of proof for the last
step. Id.; see also 20 C.F.R. § 404.1520(a)(4)(i)–(v).
In a March 18, 2014 decision, the ALJ applied the SSA’s five-step sequential
evaluation and determined that Perry was not disabled as defined by the Social
Security Act. (R. 15–21.) At step one, the ALJ found that Perry had not engaged in
gainful employment since the alleged onset date of May 20, 2011. (R. 15.) At step two,
the ALJ found that Perry suffers from the severe impairment of bilateral knee pain.
(R. 15–16.) At step three, he found that Perry’s knee impairment, either alone or in
combination with other impairments, did not met the severity of one of the listed
impairments in 20 C.F.R. pt. 404, Subpt. P, App. 1. (R. 16.) At step four, he
Residual functional capacity (“RFC”) is “what an individual can still do despite his or her
limitations. RFC is an administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms, such as pain, may cause physical or
mental limitations or restrictions that may affect his or her capacity to do work- related physical and
mental activities.” 20 C.F.R. § 404.1545(a)(1).
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determined that Perry had the RFC to “perform the light work as defined in
20 C.F.R. § 404.1567(b) except she needs a sit/stand option. She needs to elevate both
of her legs to waist level for 8 minutes, as needed, up to 4 times a day.” (Id.) Given his
RFC assessment, the ALJ determined that Perry could not perform her past relevant
work. (R. 20.) Considering Perry’s age, education, work experience and RFC, and the
testimony of a vocational expert, the ALJ determined at step five that jobs exist in
significant numbers in the national economy that Perry could perform including
security guard, locker room attendant or non-postal mail clerk. (R. 20–21.) He
accordingly found that Perry was not disabled under the Act. (R. 21.)
IV.
The Court reviews de novo those portions of the Report and Recommendation to
which Perry has objected. See 28 U.S.C. § 636(b)(1); see also Cont’l Cas. Co. v. Dominick
D'Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998). The Court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C). In reviewing the ALJ’s decision, the Court is not
permitted to weigh the evidence or substitute its own conclusions for those reached by
the ALJ. See Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). Rather, the Court
reviews the ALJ’s findings to determine whether they were supported by substantial
evidence. See 42 U.S.C. § 405(g); Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.
2005).
Substantial evidence is evidence that a “reasonable mind might accept as
adequate to support a conclusion.” Rutherford, 399 F.3d at 552 (internal quotations
omitted). “It is ‘more than a mere scintilla but may be somewhat less than a

14

preponderance of the evidence.’” Id. (quoting Ginsburg v. Richardson, 436 F.2d 1146,
1148 (3d Cir. 1971)). If the decision of the ALJ is supported by substantial evidence,
the Court may not set it aside “even if [the Court] would have decided the factual
inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)). The ALJ’s
decision “must therefore present a sufficient explanation of the final determination in
order to provide the reviewing court with the benefit of the factual basis underlying the
ultimate disability finding.” D’angelo v. Colvin, No. 14-6594, 2016 WL 930690, at *1
(E.D. Pa. Mar. 11, 2016) (citing Cotter v. Harris, 642 F.2d 700, 704–05 (3d Cir. 1981)).
The decision need only discuss the most relevant evidence concerning a claimant’s
disability, “but it must provide sufficient discussion to allow the reviewing Court to
determine whether its rejection of potentially significant evidence was proper.” Id.
(citing Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 203–04 (3d Cir. 2008)).
V.
A.
First, Perry contends the ALJ erred by failing to adequately consider and
address her obesity. (Pl.’s Obj., at 1–5, ECF No. 15.) She claims he erroneously failed
to find that she has the medically determinable impairment of obesity, failed to
adequately consider the combined effect of her obesity and joint problems in assessing
her RFC and improperly characterized her physical examination results as “within
normal limits” when, in fact, her obesity and Body Mass Index (“BMI”) were not within
normal limits. (Id. at 2–5.)
Two Third Circuit decisions provide guidance on this issue. In Rutherford v.
Barnhart, 399 F.3d 546 (3d Cir. 2005), the plaintiff similarly argued that the ALJ had

15

erred by failing to explicitly consider her weight throughout the disability
determination. Id. at 552. The Court of Appeals noted that the plaintiff, who alleged
disability due to back and arm impairments, had never mentioned obesity as a
condition that contributed to her inability to work and had not specified how that factor
would affect the analysis beyond a generalized assertion that her weight made it more
difficult for her to stand, walk and manipulate her hands and fingers. Id. The court
further noted that although the ALJ had not explicitly mentioned the plaintiff’s obesity,
he adopted the limitations suggested by specialists and reviewing doctors, who were
aware of her obesity. Id. Thus, because the plaintiff’s doctors “must also be viewed as
aware of [the plaintiff’s] obvious obesity, [the court found] that the ALJ’s adoption of
their conclusions constitutes a satisfactory if indirect consideration of that condition.”
Id. The court concluded that the plaintiff’s generalized assertion regarding the effects
of her obesity was “insufficient to require remand, particularly when the administrative
record indicates clearly that the ALJ relied on the voluminous medical evidence as a
basis for his findings regarding her limitations and impairments.” Id.
In Diaz v. Comm’r of Soc. Sec., 577 F.3d 500 (3d Cir. 2009), the ALJ determined
at step two that the plaintiff’s obesity constituted a “severe impairment.” Id. at 504. At
step three, however, he failed to consider her obesity’s impact in combination with her
other impairments, including joint disease, on her ability to perform work functions, as
instructed by Social Security Ruling (“SSR”) 02-1p.10 Id. The District Court upheld the
ALJ’s decision, relying on Rutherford. The Court of Appeals, however, reversed and
The Ruling instructs adjudicators “to consider the effects of obesity not only under the
listings but also when assessing a claim at other steps of the sequential evaluation process, including
when assessing an individual’s residual functional capacity,” and reminds them to consider “the
combined effects of obesity with other impairments” when making disability determinations. SSR
02-1P, 2002 WL 34686281, at *1 (Sep. 12, 2002).
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held that the ALJ had erred, noting that “an ALJ must clearly set forth the reasons for
his decision” and “conclusory statements that a condition does not constitute the
medical equivalent of a listed impairment are insufficient.” Id. (citations omitted). The
court distinguished Rutherford, noting that in that case, the plaintiff had not asserted
obesity as an impairment or argued that it impacted her job performance. Id. The
court then stated:
Here, by contrast, Diaz asserted—and the ALJ specifically determined—that
Diaz’s obesity constituted a severe impairment. Further, we cannot conclude,
as we did in Rutherford, that Diaz’s obesity had no impact, alone or in
combination with her other impairments, on her workplace performance. To
the contrary, Diaz’s morbid obesity would seem to have exacerbated her joint
dysfunction as a matter of common sense, if not medical diagnosis. Although in
Rutherford we expressed some willingness to view the reference to the reports
of the claimant’s examining physicians as constituting adequate, implicit
treatment of the issue by the ALJ, we decline to do so here, where Diaz’s
obesity was urged, and acknowledged by the ALJ, as a severe impairment that
was required to be considered alone and in combination with her other
impairments at step three.
Id. The Court of Appeals stated that “[w]ere there any discussion of the combined effect
of Diaz’s impairments, we might agree with the District Court. However, absent
analysis of the cumulative impact of Diaz’s obesity and other impairments on her
functional capabilities, we are at a loss in our reviewing function.” Id. Thus, the court
remanded because “the ALJ, having recognized obesity as an impairment, should
determine in the first instance whether, and to what extent, Diaz’s obesity, in
combination with her asthma, diabetes, arthritis, back pain, and hypertension,
impacted her workplace performance.” Id. at 505.
Here, as in Rutherford, Perry neither alleged obesity as a basis for her disability
nor testified that it limits her ability to engage in work-related activities. Nor did the

17

ALJ list obesity as a severe impairment at step two. 11 The ALJ nevertheless noted
Perry’s obesity on several occasions: when discussing tenderness and sensation in
Perry’s right knee, he noted that she weighed 212 pounds; when analyzing pain and
range of motion issues, he cited her weight of 210 pounds; and he specifically mentioned
a diagnosis of obesity by pain management physician, Dr. Pierson. (R. 18–19.) He also
noted the records of Drs. Frankel, Garino, Deirmengian and Veitia, all of which
documented Perry’s weight. (R. 17–19.)
Moreover, all of the medical evidence on which the ALJ relied was supplied by
doctors who were clearly aware of Perry’s obesity, and to the extent Perry’s obesity
contributed to the limitations of her knees or the pain she experienced, those effects
would have been captured and reflected in her doctors’ assessments of the same, which
the ALJ considered in depth. Thus, as in Rutherford, the ALJ “relied on the
voluminous medical evidence as a basis for his findings regarding her limitations and
impairments,” and adequately considered her obesity in assessing her limitations,
albeit indirectly. See Rutherford, 399 F.3d at 553; see also Martin v. Comm’r of Soc.
Sec., 369 F. App’x 411, 414–15 (3d Cir. 2010) (ALJ adequately considered obesity by
Perry contends that her case is more analogous to Diaz than Rutherford and argues it is of
no import that (1) Perry did not allege obesity as a disability or testify about its effects and (2) the
ALJ did not explicitly recognize obesity as a severe impairment. See (Pl.’s Objections, at 1–3). She
claims that “reading Rutherford and Diaz as establishing a bright-line rule produces an undesirable
result.” (Id. at 3.) The Court does not read these cases as establishing a bright-line rule. However,
the Diaz court relied heavily on these distinctions, see Diaz, 577 F.3d at 404–405, and Third Circuit
decisions make clear that these differences can be significant in the analysis. See Cooper v. Comm’r
of Soc. Sec., 268 F. App’x 152, 155–56 (3d Cir. 2008) (ALJ erred by failing to consider combined
effects of obesity where ALJ found obesity to be a severe impairment at step two and plaintiff
specifically requested consideration of his obesity in conjunction with his musculoskeletal condition);
Jones v. Comm’r of Soc. Sec., 275 F. App’x 166, 168 (3d Cir. 2008) (ALJ’s indirect consideration of
plaintiff’s obesity via medical evidence was sufficient where plaintiff did not allege obesity as an
impairment or identify any functional limitations related to obesity, the ALJ did not classify it as an
impairment at step two and the medical evidence did not specify that obesity contributed to any
impairment); Sassone v. Comm’r of Soc. Sec., 165 F. App’x 954, 958 (3d Cir. 2006) (ALJ’s indirect
consideration of plaintiff’s obesity was sufficient where plaintiff did not allege obesity as an
impairment).
11

18

considering opinions of doctors who were aware of the claimant’s obesity); Jones, 275 F.
App’x at 168 (district court correctly determined ALJ did not err by failing to explicitly
consider plaintiff’s obesity because medical evidence of plaintiff’s limitations
encompassed those effects and the ALJ thus considered the plaintiff’s obesity
indirectly).
Contrary to Perry’s contentions, the ALJ did not err in failing to draw further
conclusions about the effects or combined effects of Perry’s obesity on her ability to
work. For one, Perry did not even mention her obesity at the hearing, much less testify
that it limited her ability to work, and the ALJ did not consider her obesity to be a
severe impairment. More significantly, none of Perry’s physicians referred to her
weight in connection with functional limitations or pain in her knees. Thus, even if the
ALJ had listed obesity as an impairment at step two, there was no record evidence from
which he could have drawn conclusions about its effects or combined effects on her
ability to work at steps three and four. See SSR 02-1p (“[W]e will not make
assumptions about the severity or functional effects of obesity combined with other
impairments. Obesity in combination with another impairment may or may not
increase the severity or functional limitations of the other impairment. We will
evaluate each case based on the information in the case record.”); see also id. (“As with
any other medical condition, we will find that obesity is a ‘severe’ impairment when,
alone or in combination with another medically determinable physical or mental
impairment(s), it significantly limits an individual’s physical or mental ability to do
basic work activities.”). Thus, as in Rutherford, remand is not required because neither
Perry’s own testimony nor the medical evidence indicated that her obesity contributed

19

to her inability to work. See Rutherford, 377 F.3d at 552–53; see also Woodson, 661 F.
App’x at 765–66 (ALJ did not commit reversible error where plaintiff did not point to
specific medical evidence demonstrating that his obesity, in combination with other
impairment, was sufficiently disabling); Sassone, 165 F. App’x at 958 (ALJ did not err
by failing to classify the plaintiff’s obesity as an impairment or otherwise discuss it
where the record contained no objective medical evidence of the plaintiff’s weight in
relation to any resulting disability).
Lastly, Perry contends the ALJ erred by characterizing Perry’s physical
examinations as “within normal limits” and relying on the same to explain his rejection
of Perry’s testimony regarding her knee limitations and pain. According to Perry, this
was error because those examinations noted her weight and her BMI, which, due to her
obesity, are “markedly abnormal.” (Pl.’s Obj., at 3–4.) She claims the ALJ “could not
have satisfactorily considered obesity without recognizing that a BMI of 39.7 is not
within normal limits.” (Id. at 4.) Perry therefore argues that “[i]n view of the ALJ’s
reliance on allegedly normal examination results to reject Plaintiff’s claim, his failure to
address obesity is error, and the error is not harmless.” (Id.)
The portion of the ALJ’s analysis to which Perry refers centered on her alleged
disability—bilateral knee pain and the attendant limitations. In the context of
explaining why Perry’s “statements concerning the intensity, persistence and limiting
effects of” her alleged knee injuries were not entirely credible, the ALJ summarized the
medical evidence that appeared to conflict with her testimony about her knees’
limitations and pain. He stated: “Physical examinations have been within normal
limits (Exhibits 10F, 14F and 15F). There is no evidence of significant neurological

20

deficits. There are no objective findings to support a diagnosis of a complex regional
pain syndrome.” (R. at 19.) He then went on to discuss the lack of muscle atrophy in
Perry’s legs, her doctors’ inability to explain her knee pain and the “unremarkable”
EMG results. (Id.)
Read in context, the ALJ’s characterization of the physical examinations as
“within normal limits” refers to the findings relevant to Perry’s knees and their
functionality, rather than to every single body-related statistic, including her weight
and BMI, noted in the physical exams. More specifically, Exhibit 10F noted that
Perry’s gait was normal and both of her knees were “[n]eurovascularly intact” and
exhibited “satisfactory range of motion and normal strength and tone.” (R. 419.) The
physical examination assessment in Exhibit 14F states, inter alia: “Affect is normal.
Conversation is normal. Gait is slow rather than antalgic. Bilateral knees are status
post total knee arthroplasty, incision has healed nicely without any keloid formation.
She has full extension of both knees and flexion to slightly past 90 degrees bilaterally.”
(R. 502.) And Exhibit 15F’s physical examination noted “some degree of dysesthesias
on the right medial to the midline knee incision” and “some tenderness” on the left side
although “[s]ensations below the left knee are relatively intact.” (R. 504.) To be sure,
all of the physical exams also noted Perry’s weight and BMI, which would likely not fall
within normal limits. See (R. 421, 430, 437, 493, 504–05). However, in the context of
discussing inconsistencies between the examination results and Perry’s allegations
related to her knees, the ALJ was clearly referencing the portion of the exam results
most relevant to this inquiry: that related to Perry’s knees. The ALJ’s statement that
the exam results were “within normal limits” in this respect is fair and supported by

21

substantial evidence, and his reliance on this evidence in rejecting Perry’s testimony
was not error.
B.
Perry next contends that the ALJ erred by implicitly rejecting medical opinion
evidence “without good reason or adequate explanation.” (Pl.’s Obj., at 5.) Specifically,
Perry objects to the ALJ’s failure to consider and specifically reference three isolated
statements made by two treating physicians: (1) Dr. Pierson’s November 6, 2012
statement that “[g]iven the pain [Perry] is experiencing and lack of response to
medication, I think it will be essentially impossible for her to return to work at this
time,” (R. 486); (2) Dr. Pierson’s January 4, 2013 statement that “[d]ue to persistent
pain, [Perry] is unable to return to work in any capacity [at] this time. We hope this
will change [with] upcoming surgery for neuromas,” (R. 482–83); and (3) Dr. Veitia’s
unsigned January 17, 2013 statement that Perry “will be under [his] care for surgery
and follow-up care, and will be able to return to work on a date which will be
determined at a post-operative evaluation. Restrictions will also be determined, at that
time.” (R. 495.)
While Perry is correct that the ALJ did not specifically mention these
statements, his failure to do so does not warrant remand. An ALJ “has a duty to hear
and evaluate all relevant evidence in order to determine whether an applicant is
entitled to disability benefits. The ALJ’s decision must be in writing and contain
findings of fact and a statement of reasons in support thereof.” Cotter, 642 F.2d at 704.
The ALJ must not only state the evidence considered which supports the result
reached, but also indicate what evidence was rejected. Id. at 705. An ALJ’s failure to

22

address evidence in direct conflict with his findings or to reject uncontradicted evidence
without a clear statement of the reasoning is erroneous. Id. at 707; see also Fargnoli v.
Massanari, 247 F.3d 34, 41–42 (3d Cir. 2001); Burnett v. Comm’r of Soc. Sec., 220 F.3d
112, 119–21 (3d Cir. 2000).
However, “[a] written evaluation of every piece of evidence is not required, as
long as the ALJ articulates at some minimum level [his] analysis of a particular line of
evidence.” Phillips v. Barnhart, 91 F. App’x 775, 780 (3d Cir. 2004) (citing Green v.
Shalala, 51 F.3d 96, 101 (7th Cir. 1995)). “Moreover, the ALJ’s mere failure to cite
specific evidence does not establish that the ALJ failed to consider it.” Id. (citing Black
v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)).
Here, the ALJ considered all of the medical opinion evidence, including that
submitted by Dr. Pierson and Dr. Veitia. See (R. 18–19, 482–91, 493–512). The ALJ
discussed Dr. Pierson’s diagnosis of Perry, the recommended treatment and his
ultimate inability to explain Perry’s complaints of residual pain. (R. 18–19 (citing to R.
482–86, 504–12).) Though Perry contends that the ALJ did not consider Dr. Pierson’s
November 6, 2012 statement, the ALJ discussed the November 6, 2012 visit and the
accompanying records at length, devoting an entire paragraph to Dr. Pierson’s
November 6, 2012 observations and diagnoses. (R. 18.) The ALJ provided similar
discussion of Dr. Veitia’s examination, evaluation and treatment of Perry, including but
not limited to the March 2013 surgery to excise a left leg neuroma. (R. 18 (citing to R.
487–91, 493–503).) This is not a situation where “the reviewing court cannot tell if
significant probative evidence was not credited or simply ignored,” Cotter, 642 F.2d at
705; the ALJ clearly considered the evidence submitted by both Dr. Pierson and Dr.

23

Veitia, including the three statements above, consistent with his duty to consider all
relevant evidence. See Phillips, 91 F. App’x at 780 (“[T]he ALJ’s mere failure to cite
specific evidence does not establish that the ALJ failed to consider it.” (citing Black, 143
F.3d at 386)).
Perry also contends that by finding she was not disabled, the ALJ “implicitly”
rejected the physicians’ statements and therefore erred by failing to articulate his
reasons for doing so. (Pl.’s Obj., at 5). Though Dr. Pierson noted on November 6, 2012
and January 4, 2013 that Perry was temporarily unable to return to work due to
persistent pain, these statements were based on Perry’s subjective statements of pain
and merely reflected Perry’s temporary inability to work at a fixed period of time, prior
to her March 2013 surgery. Likewise, Dr. Veitia’s January 17, 2013 “statement” is
actually an unsigned standard form acknowledging that Perry would be under his care
for surgery and that her future restrictions and the date she could return to work would
be determined at a post-operative evaluation. Neither Dr. Pierson nor Dr. Veitia
completed a Medical Source Statement or opined on Perry’s functional limitations, and
neither physician opined that Perry’s inability to work was expected to last for an
extended or indefinite period of time. These statements—ascribing to Perry a
temporary inability to work before her surgery based entirely on her subjective
complaints of pain—are in no way inconsistent with the ALJ’s characterization of the
medical evidence, the other medical evidence on which he ultimately relied or his
ultimate determination that Perry is not permanently disabled. He thus cannot be said
to have “implicitly” rejected this evidence. See Landeta v. Comm’r of Soc. Sec., 191 F.
App’x 105, 110 (3d Cir. 2006) (ALJ did not err by failing to specifically mention doctor’s

24

findings of moderate limitations where it did not conflict with other medical evidence or
ALJ’s ultimate findings); Garcia v. Comm’r of Soc. Sec., 94 F. App’x 935, 937–38 (3d
Cir. 2004) (ALJ did not err by failing to specifically reference test results where he
considered the physician reports containing them and they were not inconsistent with
his ultimate conclusion); Cf. Cotter, 642 F.2d at 705 (an ALJ’s failure to address
evidence in direct conflict with his findings without a clear statement of reasoning is
erroneous (emphasis added)).
Moreover, due to the statements’ limited temporal scope, and the fact that Perry
subsequently underwent surgery, their relevance was necessarily somewhat limited.
Indeed, Perry reported significant improvement in her symptoms after the March 2013
surgery. (R. 19, 498–501.) And Dr. Pierson ultimately opined, after an October 2013
visit, that he was unable to explain Perry’s residual complaints of pain. (R. 19, 506.)
Particularly here, where the statements were of limited relevance, did not directly
contradict other medical evidence or dictate a different end result and were considered
by the ALJ, it was not error for the ALJ to emphasize other, more relevant aspects of
the doctors’ assessments in his opinion. See Quaglia v. Comm’r of Soc. Sec., 42 F. App’x
543, 546 (3d Cir. 2002) (ALJ did not fail to explain rejection of evidence where he
clearly considered all of the doctor’s assessments but emphasized only certain aspects
in his opinion); see also Hernandez v. Comm’r of Soc. Sec., 89 F. App’x 771, 773–74 (3d
Cir. 2004) (“The Commissioner need not undertake an exhaustive discussion of all the
evidence. And where we can determine that there is substantial evidence supporting
the Commissioner’s decision, as we determine here, the Cotter doctrine is not
implicated.” (internal citation omitted)).

25

C.
Perry next argues that the ALJ “rejected [her] testimony without good reason or
adequate explanation.” (Pl.’s Obj., at 8.) Pursuant to the regulations, the ALJ uses a
two pronged analysis to make a credibility determination. See 20 C.F.R. § 416.929. The
ALJ must first determine if there is an underlying medically determinable impairment
that could reasonably be expected to produce the alleged symptoms.
See 20 C.F.R. § 416.929(c)(1). If the ALJ finds that such an underlying condition exists,
the ALJ must then decide to what extent the symptoms actually limit the claimant’s
ability to work, see id., which requires the ALJ “to determine the extent to which a
claimant is accurately stating the degree of pain or the extent to which he or she is
disabled by it,” Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir.1999) (citing 20 C.F .R. §
404.1529(c)).
“Credibility determinations are the province of the ALJ and only should be
disturbed on review if not supported by substantial evidence.” Pysher v. Apfel, No. 001309, 2001 WL 793305, at *3 (E.D. Pa. July 11, 2001) (citing Van Horn v. Schweiker,
717 F.2d 871, 973 (3d Cir. 1983)). Moreover, such determinations are entitled to
deference. See Hoyman v. Colvin, 606 F. App’x 678, 681 (3d Cir. 2015); Zirnsak v.
Colvin, 777 F.3d 607, 612 (3d Cir. 2014). An ALJ “may reject a claimant’s subjective
testimony if [he] does not find it credible so long as [he] explains why [he] is rejecting
the testimony.” See Hall v. Comm’r of Soc. Sec., 218 F. App’x 212, 215 (3d Cir. 2007).
Allegations of pain must be supported by objective medical evidence. See 20 C.F.R. §
404.1529(c). “If the symptoms suggest a greater functional restriction than is
demonstrated by the objective evidence alone, the Commissioner considers evidence

26

such as the claimant’s statements, daily activities, duration and frequency of pain,
medication, and treatment. The Commissioner has discretion to evaluate the
credibility of the complaints and draw a conclusion based upon medical findings and
other available information.” Landeta, 191 F. App’x at 111 (citing 20 C.F.R. §§
404.1529(c)(3), 416.929(c)(3)). “Although allegations of pain and other subjective
symptoms must be consistent with objective evidence . . . the ALJ must still explain
why he is rejecting the testimony.” Burnett, 220 F.3d at 122 (citations omitted).
Here, the ALJ found that Perry had an underlying medically determinable
impairment that could reasonably be expected to produce her alleged symptoms but,
“[a]fter careful consideration of the evidence,” concluded that Perry’s “statements
concerning the intensity, persistence and limiting effects of these symptoms [were] not
entirely credible.” (R. at 19.) The ALJ considered the medical records from Drs.
Frankel, Garino, Deirmengian, Pierson and Veitia that contradicted Perry’s subjective
complaints of pain. See (R. 17–19, 156–259, 261–78, 361–402, 405–91, 493–512). More
specifically, the ALJ relied on the normal EMG report from November 2013 and
numerous physical examinations that reflected “neurovascularly intact knees” with
“satisfactory range of motion,” no muscle atrophy and “normal strength and tone.”
(R. 17–19, 203, 408, 419–20, 422, 424, 498–99, 502–03.) He also considered the
relatively conservative treatment recommended by her treating physicians and the fact
that several of Perry’s treating physicians were ultimately unable to identify a
“mechanical issue” or other reason to explain her continued complaints of pain.
(R. 18, 407–08, 424, 506, 512.) Finally, the ALJ considered Perry’s reported activities of
daily living, which included actively caring for her young child and mother-in-law,

27

doing household chores, driving, grocery shopping and swimming multiple times a
week. (R. 19.)
The ALJ considered Perry’s testimony and did not reject her allegations
completely. He nevertheless noted that both the objective medical evidence and other
portions of Perry’s testimony, namely that related to the number and type of activities
she engages in, seemed to belie her assertion that her pain was completely disabling.
This was not error; substantial evidence in the record supports the ALJ’s determination
that Perry’s complaints were not entirely credible, and the ALJ adequately explained
the basis for his finding. See, e.g., Garibay v. Comm’r Of Soc. Sec., 336 F. App’x 152,
157 (3d Cir. 2009) (ALJ properly evaluated plaintiff’s subjective complaints of pain
where he rejected them as not fully credible based on objective medical evidence, the
plaintiff’s treatment plan and her daily activities); Salles v. Comm’r of Soc. Sec., 229 F.
App’x 140, 146 (3d Cir. 2007) (“Inconsistencies in a claimant’s testimony or daily
activities permit an ALJ to conclude that some or all of the claimant’s testimony about
her limitations or symptoms is less than fully credible.”); Garcia, 94 F. App’x at 939–40
(ALJ did not err in rejecting plaintiff’s subjective complaints of pain where medical
evidence suggested no basis for that pain).
Perry also takes issue with the ALJ’s description of her knee replacements as
“successful.” (Pl.’s Obj., at 9–10.) She claims that this description is “egregiously”
erroneous because the record contains the entry “failed knee replacement” in eight
places, though she did not provide any citations. (Id. at 9.) This claim lacks merit.
Though Dr. Garino diagnosed Perry with “failed total knee replacement” after her right
knee became dislocated on several occasions, he subsequently performed a “revision,

28

total knee replacement” operation on her right knee in March 2012. (R. 275.) The
record contains no indications that the revision was unsuccessful. In fact, nearly all of
the objective medical evidence since the March 2012 surgery supports the conclusion
that Perry’s knee replacements were mechanically sound.
When Perry returned to Dr. Garino complaining of pain in June 2012, x-rays
demonstrated “satisfactory position of her knee replacements without evidence of
loosening or wear.” (R. 424.) Dr. Garino wrote: “[Perry] with some pain still in spite of
well healed wounds and no obvious abnormalities.” (Id.) In October 2012, Dr.
Deirmengian noted that x-rays of Perry’s knees showed “well-aligned and well-fixed
knee replacement” and stated that he was unable to identify a mechanical issue to
explain Perry’s pain. (R. 18, 407–08.) Also in October 2012, Dr. Garino noted that both
of Perry’s knees were “[n]eurovascularly intact” and exhibited “satisfactory range of
motion and normal strength and tone.” (R. 18, 418–20.) He diagnosed her not with
failed knee replacement but with “stiff knee joints.” (R. 18, 419.) In November 2012,
Dr. Pierson observed that both of Perry’s knee replacements were “mechanically doing
well” and did not exhibit instability. (R. 485.) Because she complained of persistent
pain, which she described as sharp and “not the same sort of pain that she had prior to
the surgeries,” he diagnosed her with probable neuromas in her left leg and referred
her to Dr. Veitia. (R. 485–86.)
Dr. Veitia operated on Perry’s possible neuromas on March 20, 2013, after which
Perry reported improvement of her symptoms. (R. 497–98.) Though Perry returned to
Dr. Pierson complaining of knee pain in August, September and October 2013, Dr.
Pierson consistently noted that her knees exhibited “normal affect, normal

29

conversation, normal gait, healthy incisions, no effusions, no swelling and full range of
motion.” (R. 502–509.) Mechanically, he was unable to explain her residual knee pain.
(R. 506.) Likewise, Dr. Citara, after performing an EMG on November 14, 2013, noted
that the results were unremarkable and that he “did not find any measurable
neurological cause on today’s study to explain her symptoms, particularly on the right
side.” (R. 512.)
In sum, although Perry was initially diagnosed with “failed total knee
replacement” on the right side after dislocating her right knee several times, the
problem was surgically corrected. Following the March 2012 surgery, her treating
physicians consistently noted that both of her knee replacements were mechanically
sound and exhibited normal range of motion and strength. (R. 419, 422, 424, 506, 512.)
That Perry continued to experience some level of pain or subsequently underwent
surgery for an unrelated problem—possible nerve damage in her left leg—does not
mean that her right knee replacement was not ultimately “successful,” particularly in
this context, where success could be defined and measured in a number of ways. Given
this, and Perry’s physicians’ consistent characterizations of her knee replacements as
mechanically sound, the ALJ’s characterization of her knee replacements as
“successful” was not clearly erroneous.12
D.
Finally, Perry contends the ALJ erred by basing his disability determination on
“vocational expert testimony elicited by an improper hypothetical question.” (Pl.’s Obj.,
at 10.)
Even if the ALJ’s description of her knee replacements as “successful” was arguably
erroneous, remand would not be required because, in any event, substantial other evidence in the
record supports the ALJ’s credibility determination.
12

30

Before moving to steps four and five of the disability evaluation, an ALJ must
make an RFC assessment. See 20 C.F.R. § 404.1520(a)(4); Chandler v. Comm’r of Soc.
Sec., 667 F.3d 356, 361 (3d Cir. 2011). The regulations delineate five RFC
classifications—sedentary, light, medium, heavy or very heavy—and exertional criteria
for each. See 20 C.F.R. §§ 404.1567 and 416.967. In some instances, however, an
individual’s exertional RFC does not coincide exactly with the exertional criteria of any
one of the classifications. For example, here, the ALJ determined that Perry had “the
RFC to perform the light work as defined in 20 C.F.R. § 404.1567(b) except she needs a
sit/stand option. She needs to elevate both of her legs to waist level for 8 minutes, as
needed, up to 4 times a day.” (R. 16.)
At step five, the ALJ typically refers to the Medical-Vocational Guidelines, a grid
contained in the regulations that directs conclusions of “disabled” or “not disabled”
based on a claimant’s vocational factors (age, education and work experience) and
exertional RFC (sedentary, light, medium, heavy or very heavy). See 20 C.F.R. pt. 404,
subpt. P, app. 2 § 200.00(a); see also Martin, 240 F. App’x at 944. However, where an
individual’s RFC does not coincide with one of the defined exertional ranges of work,
strict application of the grid is not possible. SSR 83-12 provides the framework for
adjudicating such claims. See SSR 83-12, 1983 WL 31253 (Jan 1, 1983); see also
Martin, 240 F. App’x at 944; Henderson v. Soc. Sec. Admin., 87 F. App’x 248, 251 (3d
Cir. 2004); Boone v. Barnhart, 353 F.3d 203, 206 (3d Cir. 2003).

31

SSR 83-12 instructs the ALJ to consider and assess the extent to which the
claimant’s additional restrictions would erode the relevant occupational base.13 See
SSR 83-12. SSR 83-12 recognizes that the degree of such erosion will vary depending
on the nature and significance of the claimant’s additional restrictions and instructs
that “[w]here the extent of erosion of the occupational base is not clear, the adjudicator
will need to consult a vocational resource.” Id.
SSR 83-12 also specifically discusses “Special Situations,” analogous to Perry’s,
where a claimant must be able to alternate sitting and standing while at work. The
pertinent section provides:
In some disability claims, the medical facts lead to an assessment of RFC
which is compatible with the performance of either sedentary or light work
except that the person must alternate periods of sitting and standing. The
individual may be able to sit for time, but must then get up and stand or walk
for awhile before returning to sitting. Such an individual is not functionally
capable of doing either the prolonged sitting contemplated in the definition of
sedentary work (and for the relatively few light jobs which are performed
primarily in a seated position) or the prolonged standing or walking
contemplated for most light work. (Persons who can adjust to any need to vary
sitting and standing by doing so at breaks, lunch periods, etc., would still be
able to perform a defined range of work.)
There are some jobs in the national economy -- typically professional and
managerial ones -- in which a person can sit or stand with a degree of choice. If
an individual had such a job and is still capable of performing it, or is capable
of transferring work skills to such jobs, he or she would not be found disabled.
However, most jobs have ongoing work processes which demand that a worker
be in a certain place or posture for at least a certain length of time to
accomplish a certain task. Unskilled types of jobs are particularly structured
so that a person cannot ordinarily sit or stand at will. In cases of unusual
limitation of ability to sit or stand, a VS should be consulted to clarify the
implications for the occupational base.

SSR 83-10 defines “occupational base” as “[t]he number of occupations, as represented by
RFC [residual functional capacity], that an individual is capable of performing. These ‘base’
occupations are unskilled in terms of complexity. The regulations take notice of approximately 2,500
medium, light, and sedentary occupations; 1,600 light and sedentary occupations; and 200 sedentary
occupations. Each occupation represents numerous jobs in the national economy.” SSR 83-10, 1983
WL 31251, at *7 (Jan. 1, 1983).
13

32

Id.
Testimony from a vocational expert (“VE”) or vocational specialist (“VS”)
“typically includes, and often centers upon, one or more hypothetical questions posed by
the ALJ. . . . The ALJ will normally ask the expert whether, given certain assumptions
about the claimant’s physical capability, the claimant can perform certain types of jobs,
and the extent to which such jobs exist in the national economy. While the ALJ may
proffer a variety of assumptions to the expert, the vocational expert’s testimony
concerning a claimant’s ability to perform alternative employment may only be
considered for purposes of determining disability if the question accurately portrays the
claimant’s individual physical and mental impairments.” Id.; see also Chrupcala v.
Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987) (A hypothetical question posed to a
vocational expert “must reflect all of a claimant’s impairments.”).
Perry contends that the ALJ erred by relying on the VE’s testimony because his
hypothetical to the VE did not specify the frequency with which she must alternate
sitting and standing. In essence, she claims that due to the lack of specificity regarding
the sit/stand option, the VE was unable to clarify, and the ALJ was unable to
adequately assess, the degree to which her additional limitations would erode the
occupational base of those otherwise capable of light work. This claim lacks merit.
At the hearing, Perry testified that her “knees start to throb after sitting for 40
minutes, maybe, tops,” after which she needs to stand to make herself more
comfortable. See (R. 34). She then stated that “after standing for half an hour . . . an
hour, tops,” she would need to sit down and elevate her legs. (R. 34–35.) The ALJ then
solicited testimony from the VE based on these limitations. Specifically, the ALJ asked

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the VE about the availability of jobs assuming a capacity for light work, lifting 20
pounds occasionally and 10 pounds frequently, standing and walking two out of eight
hours and sitting six of eight hours, with a sit/stand option. (R. 42.) The VE identified
several jobs consistent with those limitations, including security guard; locker room,
coat room or dressing room attendant; and a non-postal mail clerk. (R. 43–44.) The
ALJ then referenced the additional limitation that Perry must elevate her legs for up to
eight minutes at a time as needed and asked the VE to estimate the extent to which
that would further erode her occupational base. (R. 40, 44–45.) The VE estimated that
this would reduce the base of jobs by 80 percent. (R. 44.)
The ALJ followed the mandates of SSR 83-12. “SSR 83-12 does not
automatically dictate a finding of disability where an individual is limited by a sit/stand
option. Rather, SSR 83-12 indicates that a VE should be consulted, and here, one was.”
Martin, 240 F. App’x at 945. After finding that Perry could perform a limited range of
light work, the ALJ properly consulted a VE and accurately conveyed all of Perry’s
limitations in soliciting her testimony. Moreover, the VE’s testimony adequately
addressed the equitable considerations underlying SSR 83-12. The Ruling explains
that VE testimony is necessary to clarify the effects on the occupational base in this
context specifically because a claimant who needs a sit/stand option may not be
“functionally capable of doing either the prolonged sitting contemplated in the
definition of sedentary work (and for the relatively few light jobs which are performed
primarily in the seated position) or the prolonged standing and walking contemplated
for most light work.” SSR 83-12. Here, the ALJ not only specified that Perry could only
perform light work with a sit/stand option but also provided the VE with the precise

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number of hours per day that Perry was capable of sitting and standing, respectively.
(R. 42.) Finally, the ALJ solicited and considered VE testimony regarding the extent to
which Perry’s occupational base would be eroded by her need to sit and elevate her legs
at will, a limitation that requires the same kind of flexibility and autonomy to dictate
one’s position as would an at-will sit/stand option. (R. 44–45.) Based on the VE’s
testimony, the ALJ found that though Perry’s additional limitations render her capable
of performing only a limited range of light work, there is nonetheless a significant
number of jobs in the economy which she can perform.
The VE’s testimony was specifically directed to the effects that Perry’s unique
limitations would have on her occupational base, and the ALJ did not err by relying on
it. See Martin, 240 F. App’x at 944–46 (ALJ complied with SSR 83-12 by consulting a
VE where the claimant was limited by a sit/stand option); Leech v. Barnhart, 177 F.
App’x 225, 228 (3d Cir. 2006) (same); Henderson, 87 F. App’x at 251 (ALJ’s decision was
supported by substantial evidence “where he specifically consulted a VE to determine
the available number of jobs in light of the fact that [the claimant] did not fall within a
single category because of limitations on his ability to sit or stand for prolonged
periods.” ); Boone, 353 F.3d at 210 (“[W]e shall not interpret SSR 83-12 to mandate
reversal whenever the ALJ does not set out specific findings concerning the erosion of
the occupational base if, as here, the ALJ has received the assistance of a VE in
considering the more precise question whether there are a significant number of jobs in
the economy that the claimant can perform.”); cf. Boone, 353 F.3d at 209–10 (reversing
ALJ’s decision where he neither articulated, nor solicited VE testimony regarding the
effect that the claimant’s sit/stand limitation would have on his occupational base).

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VI.
For the above reasons, the Court overrules Perry’s objections, approves and adopts
the magistrate judge’s Report and Recommendation finding that the ALJ’s disability
determination is supported by substantial evidence and grants judgment in favor of the
Commissioner.
An appropriate order follows.
BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

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