CAPERS v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 06/04/2024. 06/04/2024 ENTERED AND COPIES E-MAILED.(nd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KEYSHA MARIE C.1
v.
MARTIN O’MALLEY,
Commissioner of Social Security2

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CIVIL ACTION

NO. 22-3939

MEMORANDUM AND ORDER
ELIZABETH T. HEY, U.S.M.J.

June 4, 2024

Plaintiff seeks review of the Commissioner’s decision denying her application for
disability insurance benefits (“DIB”). For the reasons that follow, I conclude that the
decision of the Administrative Law Judge (“ALJ”) is not supported by substantial
evidence. Therefore, I remand the case for further proceedings pursuant to sentence four
of 42 U.S.C. § 405(g).
I.

PROCEDURAL HISTORY
Plaintiff protectively filed an application for DIB on August 11, 2020, alleging

disability beginning on February 3, 2020,3 as a result of osteoarthritis of the knees,

1

To protect the privacy interests of plaintiffs in social security cases, I have
adopted the recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States that judicial opinions should
refer to plaintiffs in such cases by their first name and last initial.
Martin O’Malley became the Commissioner of Social Security on December 20,
2023. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Commissioner
O’Malley should be substituted for Kilolo Kijakazi as the defendant in this action. No
further action need be taken to continue this suit by reason of the last sentence of section
205(g) of the Social Security Act, 42 U.S.C. § 405(g).
2

3

To be entitled to DIB, Plaintiff must establish that she became disabled on or
before her date last insured (“DLI”). 20 C.F.R. § 404.131(b). The ALJ found and the

bilateral carpel tunnel syndrome, cervical herniated disc, cervical degenerative disc,
depression, and low back pain with degeneration.4 Tr. at 78, 198, 216. Her application
was denied initially and on reconsideration. Id. at 100-03, 110-12. At her request, id. at
121-22, an administrative hearing was held before an ALJ on June 15, 2021. Id. at 33-58.
On July 1, 2021, the ALJ issued an unfavorable decision, finding that Plaintiff was not
disabled. Id. at 13-28. The Appeals Council denied Plaintiff’s request for review on
August 8, 2022, id. at 1-4, making the ALJ’s July 1, 2021 decision the final decision of
the Commissioner. 20 C.F.R. § 404.981.
Plaintiff commenced this action in federal court on October 4, 2022. Doc. 1. The
matter is now fully briefed and ripe for review. Docs. 11-13.5
II.

LEGAL STANDARD
The court’s role on judicial review is to determine whether the Commissioner’s

decision is supported by substantial evidence. 42 U.S.C. § 405(g); Schaudeck v. Comm’r
of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). Therefore, the issue in this case is
whether there is substantial evidence to support the Commissioner’s conclusions that
Plaintiff is not disabled. Substantial evidence is “such relevant evidence as a reasonable

Certified Earnings Record confirms that Plaintiff was insured through December 31,
2025. Tr. at 15, 209. I note that the Initial Disability Report erroneously indicates that
Plaintiff’s DLI is December 31, 2024. Id. at 79.
After Plaintiff’s application, she was also diagnosed with a lumbar disc injury.
Tr. at 797.
4

5

The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C.
§ 636(c). See Standing Order – In Re: Direct Assignment of Social Security Appeals to
Magistrate Judges – Extension of Pilot Program (E.D. Pa. Nov. 27, 2020); Doc. 7.
2

mind might accept as adequate to support a conclusion,” and must be “more than a mere
scintilla.” Zirnsak v. Colvin, 777 F.2d 607, 610 (3d Cir. 2014) (quoting Rutherford v.
Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). The court has plenary review of legal
issues. Schaudeck, 181 F.3d at 431.
To prove disability, a claimant must demonstrate an “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for . . . not less than twelve
months.” 42 U.S.C. § 423(d)(1). The Commissioner employs a five-step process,
evaluating:
1.
Whether the claimant is currently engaged in
substantial gainful activity;
2.
If not, whether the claimant has a “severe
impairment” that significantly limits her physical or mental
ability to perform basic work activities;
3.
If so, whether based on the medical evidence,
the impairment meets or equals the criteria of an impairment
listed in the listing of impairments (“Listings”), 20 C.F.R. pt.
404, subpt. P, app. 1, which results in a presumption of
disability;
4.
If the impairment does not meet or equal the
criteria for a listed impairment, whether, despite the severe
impairment, the claimant has the residual functional capacity
(“RFC”) to perform her past work; and
5.
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.
See Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014); see also 20 C.F.R.
§ 404.1520(a)(4). Plaintiff bears the burden of proof at steps one through four, while the
3

burden shifts to the Commissioner at the fifth step to establish that the claimant is capable
of performing other jobs in the local and national economies, in light of her age,
education, work experience, and RFC. See Poulos v. Comm’r of Soc. Sec., 474 F.3d 88,
92 (3d Cir. 2007); see also Biestek v. Berryhill, 587 U.S. __, 139 S. Ct. 1148, 1154
(2019) (substantial evidence “means only – ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion’”) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). The court has plenary review of legal issues.
Schaudeck, 181 F.3d at 431.
III.

DISCUSSION
A.

ALJ’s Findings and Plaintiff’s Claims

In the July 1, 2021 decision under review, the ALJ found at step one that Plaintiff
has not engaged in substantial gainful activity since the alleged disability onset date of
February 3, 2020. Tr. at 15. At step two, the ALJ found that Plaintiff suffers from the
severe impairments of traumatic rupture of the left intervertebral disc of the lumbar spine
– status/post surgery, traumatic injury to the cervical spine, generalized anxiety disorder
(“GAD”), bipolar disorder with depression, and bilateral osteoarthritis of the knees. 6 Id.
The ALJ found Plaintiff’s carpal tunnel syndrome and obesity to be non-severe. Id. at 16.
At step three, the ALJ found that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the Listings. Id.

Where appropriate, Plaintiff’s impairments will be defined in the medical
evidence summary.
6

4

The ALJ determined that Plaintiff retains the RFC to perform sedentary work
except she can frequently lift and carry less than 10 pounds; occasionally climb ramps
and stairs; never climb ladders, ropes or scaffolds; occasionally stoop, crouch, kneel and
crawl; occasionally reach overhead bilaterally; avoid concentrated exposure to extreme
heat or cold, wetness or humidity, and vibrations; no exposure to driving vehicles,
unprotected heights, and moving machinery; occasionally interact with supervisors, the
general public, and co-workers; no work involving shared tasks with coworkers; work in
a low stress job, defined as having only occasional decision making; only occasional
changes in the work setting; can perform unskilled simple work of a routine, repetitive
nature at a consistent pace, but not at a production rate pace where each task must be
completed within a strict time deadline. Tr. at 18-19. Based on the testimony of a
vocational expert (“VE”), the ALJ found that Plaintiff is unable to perform her past
relevant work, but can perform other jobs that exist in significant numbers in the national
economy. Id. at 26-27. As a result, the ALJ concluded that Plaintiff is not disabled. Id.
at 28.
Plaintiff argues that the ALJ’s RFC determination is not supported by substantial
evidence because the ALJ failed to properly consider and evaluate (1) the treating
physician’s opinion evidence, and (2) Plaintiff’s credibility. Doc. 11 at 2-16; Doc. 13.
Defendant responds that the ALJ’s evaluation of the opinion evidence and of Plaintiff’s
subjective complaints is supported by substantial evidence. Doc. 12 at 4-12.

5

B.

Plaintiff’s Claimed Limitations and Testimony at the Hearing7

Plaintiff was born on January 13, 1976, and thus was 44 years of age at the time of
her alleged disability onset date (February 3, 2020) and 45 at the time of the ALJ’s
decision (July 1, 2021). Tr. at 198. She is five feet, four inches tall, and weighs
approximately 177 pounds. Id. at 216. Plaintiff completed high school and has an
associate’s degree in business. Id. at 51, 217. She worked as a bus driver for Septa from
2006 or 2007 through 2020. Id.
At the administrative hearing, Plaintiff testified that she cannot work due to
numbness and pain on her right side. Tr. at 41-42. She described pain in her right foot
and ankle that “feels like . . . electricity.” Id. at 42. Plaintiff said the pain was a 9 or 10
on a 10-point scale and nothing helped when she experienced the pain. Id. at 42-43. The
pain is exacerbated by sitting or standing for long periods. Id. at 43. She also
complained of neck spasms throughout the day 3 or 4 times a week which cause pain and
swelling in her shoulders. Id. at 42-43. Plaintiff also suffers from pain in both knees
when she walks and sometimes her knees buckle, causing her to fall. Id. at 44. Although
she can drive, Plaintiff testified that her husband does the driving because her “right foot
gives out.” Id. at 48.

Plaintiff’s claims focus on her physical impairments rather than her mental health
treatment. Therefore, I will focus my review on Plaintiff’s testimony and treatment
regarding her physical impairments.
7

6

Plaintiff testified that Nirav Shah, M.D., prescribed a cane for her a few weeks
prior to the administrative hearing for stability and balance. Tr. at 44-45.8 Plaintiff
testified that she can stand for 10-15 minutes with the cane and about 5 minutes without
the cane. Id. at 46. She testified that she can sit for 10-15 minutes before having to
change position, and can walk for a block with the cane and half a block without the
cane. Id. Plaintiff estimated she can lift 5 pounds and if she lifts anything heavier, her
back and knees would be in pain. Id. Plaintiff also testified to trouble focusing due to
her pain, and that she does not socialize with others. Id. at 47. She also complained that
her medications made her drowsy. Id.
Plaintiff testified that she needs help with daily activities. Tr. at 48. For example,
when grocery shopping, Plaintiff’s husband accompanies her and she uses a scooter. Id.
at 48-49. She is unable to lift the grocery bags. Id. at 49. She has difficulty with stairs
so her husband and children do the laundry “the majority of the time.” Id.
At the hearing, a VE classified Plaintiff’s job as a bus driver as medium, semiskilled work. Tr. at 52. Based on the hypothetical posed by the ALJ, which is identical
to the ALJ’s RFC assessment, see supra at 5 (describing RFC), the VE testified that such
an individual would not be able to perform Plaintiff’s past relevant work, but could
perform other work and provided three examples -- suture gauger, dowel inspector, and

Although the transcript states that “Dr. Shaw” prescribed the cane, tr. at 44, it is
clear after reviewing the record that Plaintiff was referring to her neurosurgeon Nirav
Shah, M.D.
8

7

lens inserter. Id. at 53.9 When asked by the ALJ if the use of a cane would affect the
availability of these jobs, the VE said that it would not. Id. at 54-55. However, if the
person would be late, leave early, or be absent four times a month, the VE said that there
would be no jobs available. Id. at 55. The VE also testified that an unskilled employee
could be off task for 20% of the time, including normal breaks, but anything over that
would not be tolerated. Id. at 55-56.
B.

Medical Evidence Summary

Plaintiff has a history of knee pain. On July 21, 2017, Plaintiff slipped in a wet
bathroom and injured her left knee. Tr. at 644. On July 27, 2017, Plaintiff saw William
C. Hamilton, M.D., and based on his examination and x-rays, he diagnosed degenerative
joint disease of the left knee aggravated by the fall. Id. A corticosteroid injection did not
help the pain and Dr. Hamilton prescribed Relafen.10 Id. at 643.
Plaintiff was involved in an accident on May 21, 2018, when a van struck the
Septa bus she was driving. Tr. at 610. She was seen at Temple University Hospital’s
emergency department complaining of neck, back, and left shoulder pain. Id. A CT scan
of Plaintiff’s cervical spine revealed no fracture or subluxation. Id. at 616. On May 22,
Sedentary work “involves lifting no more than 10 pounds at a time.” 20 C.F.R.
§ 404.1567(a). When the ALJ asked about the specific lifting and carrying requirements
for each position the VE identified, the VE testified that the suture gauger lifts no more
than 2 pounds, the lens inserter no more than 3 pounds, and the toy stuffer (rather than
dowel inspector) lifts no more than 2 pounds. Id. This discrepancy is not material to my
decision.
9

Relafen is a non-steroidal anti-inflammatory drug (“NSAID”) used to relieve the
symptoms of rheumatoid and osteoarthritis. See https://www.drugs.com/relafen.html
(last visited May 15, 2024).
10

8

2018, Susan Kuruvilla, M.D., noted that Plaintiff had full range of motion in the neck and
back and a straight leg raising test was negative.11 Id. at 999. Plaintiff was treated with
naproxen,12 acetaminophen, and ibuprofen, and released. Id. at 611, 614. An MRI of the
cervical spine performed on June 20, 2018, revealed disc desiccation with a 2 millimeter
disc protrusion at C2-C3, disc desiccation with a 2 millimeter broad-based midline/left
paramedian disc protrusion at C3-C4, and a 6.5 millimeter broad-based midline disc
herniation displacing the cervical spinal cord at C4-C5. Id. at 1038; see also id. at 1005.
On July 12, 2018, Plaintiff was seen by Bong-Soo Kim, M.D., a neurosurgeon, on
referral from Dr. Kuruvilla. Tr. at 597. Plaintiff complained of left side neck pain
radiating down the left shoulder, with intermittent paresthesia in the left arm and fingers,
and weakness in her left arm and hand. Id. She also complained of low back pain with
intermittent pain radiating down both legs (left greater than right) with spasms and
weakness. Id. An MRI showed “a large herniated disc with cord compression at C4-5,”
and Dr. Kim recommended surgery. Id. at 599. On July 18, 2018, Dr. Kim prescribed
oxycodone and increased Plaintiff’s dosage of Flexeril.13 Id. at 596. On July 30, 2018,

11

The straight leg-raising test checks for impingement of the nerves in the lower
back by determining whether there is pain when “the symptomatic leg is lifted with the
knee fully extended; pain in the lower extremity between 30 and 90 degrees of elevation
indicates lumbar radiculopathy, with the distribution of the path indicating the nerve root
involved.” Dorland’s Illustrated Medical Dictionary, 32nd ed. (2012), at 1900.
12

Naproxen is an NSAID. See https://www.drugs.com/naproxen.html (last visited
May 15, 2024).
13

Oxycodone is an opioid pain medication used to treat moderate to severe pain.
See https://www.drugs.com/oxycodone.html (last visited May 15, 2024). Flexeril is a
muscle relaxant used with rest and physical therapy to treat skeletal muscle conditions,
9

Dr. Kim performed an anterior cervical discectomy and fusion with instrumentation at
C4-5. Id. at 554. On August 1, 2018, Plaintiff was discharged from the hospital with
prescriptions for Bactrim, Valium, and oxycodone.14 Id. at 563.
At Plaintiff’s first post-operative visit to Dr. Kim, on August 22, 2018, the doctor
noted the incision was healing well, but Plaintiff continued to have neck and low back
pain. Tr. at 593. Dr. Kim told Plaintiff to wean off oxycodone and continue with the
muscle relaxant to ease shoulder discomfort. Id. At her second post-operative visit on
November 21, 2018, Plaintiff continued to complain of neck pain, tingling in her left
hand, and low back pain. Id. at 590. The doctor continued Plaintiff on oxycodone and
Valium. Id. at 592.
Plaintiff returned to work in February 2019 with ongoing neck, back, and shoulder
pain, but in April 2019, had a resurgence of more severe pain in her neck although she
continued to work. See tr. at 655. From November 2019 through February 2020,
Plaintiff was placed out of work on bereavement leave, and then underwent a
hysterectomy. See id. In May 2020, Plaintiff had a recurrence of the neck pain and
weakness in her upper extremities. See id.

such a pain, injury, or spasms. See https://www.drugs.com/flexeril.html (last visited May
15, 2024).
14

Bactrim is a combination of sulfamethoxazole and trimethoprim, both
antibiotics. See https://www.drugs.com/bactrim.html (last visited May 15, 2024).
Valium is a benzodiazepine used to treat anxiety disorders or used with other medications
to treat muscle spasms, stiffness, or seizures. See https://www.drugs.com/valium.html
(last visited May 15, 2024).
10

Plaintiff returned to Dr. Hamilton on May 13, 2020, complaining of bilateral knee
pain and bilateral elbow to hand numbness and pain. Tr. at 646. The doctor referred
Plaintiff to physical therapy for the left knee pain attributable to osteoarthritis, ordered an
x-ray of the right knee and an EMG for Plaintiff’s arm and hand symptoms, and
prescribed splints for Plaintiff’s wrists. Id. at 647. The doctor suggested
viscosupplementation for her knees.15 Id. When Plaintiff returned on June 16, 2020, Dr.
Hamilton noted that the EMG showed “[n]o significant carpal tunnel findings.” Id. at
653. The doctor was waiting for the viscosupplementation agent to be available. Id.
Plaintiff began treatment at Pinnacle Pain Management on August 4, 2020. Tr. at
655-59. Ronald Lincow, D.O., noted cervical and lumbar spasm and reduced range of
cervical motion on examination. Id. at 657. The doctor noted that prior CT scans
showed multilevel cervical and lumbar degenerative disc disease. Id. He prescribed
tramadol, Celebrex and diclofenac gel, an infrared heating pad, an electrical and muscle
stimulator unit, and was considering cervical interlaminar epidural steroid injections.16
“During viscosupplementation treatment for arthritis, your healthcare provider
injects hyaluronic acid into your joint. This thick fluid may help reduce pain and selling
in your arthritic joint (most commonly, your knee). . . . This works like a lubricant and
shock absorber in your joint.” See https://www.hopkinsmedicine.org/health/conditionsand-diseases/arthritis/viscosupplementation-treatment-forarthritis#:~:text=During%20viscosupplementation%20treatment%20for%20arthritis,of%
20cartilage%20on%20their%20ends. (last visited May 15, 2024).
15

16

Tramadol is a synthetic opioid and acts in the brain and spine to reduce the
amount of pain you feel.” See https://www.drugs.com/tramadol.html (last visited May
15, 2024). Celebrex is an NSAID. See https://www.drugs.com/celebrex.html (last
visited May 15, 2024). Diclofenac gel is an NSAID used to treat mild to moderate pain,
or signs and symptoms of osteoarthritis or rheumatoid arthritis. See
https://www.drugs.com/diclofenac.html (last visited May 15, 2024).
11

Id. at 658. On August 21, 2020, during a telehealth visit, Plaintiff reported stopping
tramadol and Celebrex as ineffective. Id. at 660. Dr. Lincow prescribed tizanidine and
Lyrica.17 Id. at 661. On September 1, 2020, Plaintiff reported no relief with the new
medications and the doctor increased the dosage of each and Plaintiff declined trigger
point injections. Id. at 664.
A cervical MRI performed on September 11, 2020, showed postsurgical changes
at C4-5, and suggested a “posterior broad-based left-sided disc protrusion which is
potentially artifactual but if real is causing asymmetric compression of the thecal sac,”
and a moderate-sized posterior and slightly more right-sided disc herniation causing cord
compression at C5-6. Tr. at 758, 864, 1047. On October 13, 2020, Dr. Lincow noted
muscle spasm in the lumbar and cervical spine and a positive straight leg raise test on the
right, with reduced range of motion in both the cervical and lumbar spine. Id. at 808. He
ordered a lumbar MRI. Id. at 809. The October 17, 2020 lumbar MRI showed a mild
disc bulge at L4-5 and a moderate diffuse disc bulge with moderate spinal canal,
moderate right and severe left foraminal stenosis at L5-S1. Id. at 799, 863, 1049. On
November 6, 2020, Dr. Lincow noted that Plaintiff was continuing to experience lumbar
pain rated at 9/10 radiating into her right thigh and calf, and neck pain radiating into her
upper extremities. Id. at 805-06. The doctor also noted Plaintiff’s complaints of daily

17

Tizanidine is a short-acting muscle relaxer. See
https://www.drugs.com/tizanidine.html (last visited May 15, 2024). Lyrica is used to
treat pain caused by fibromyalgia, or nerve pain in people with diabetic neuropathy, postherpetic neuralgia, or spinal cord injury. See https://www.drugs.com/lyrica.html (last
visited May 15, 2024).
12

headaches since her injury and prescribed Topamax.18 Id. He also ordered an EMG of
Plaintiff’s lower extremity, continued tramadol and Celebrex, and referred Plaintiff to
neurosurgeon Nirav Shah, M.D. Id. at 806.
Plaintiff participated in physical therapy at the Spinal Rehab Network with various
chiropractors and physical therapists from July 28 to October 13, 2020. N.T. at 671-749.
On July 28, 2020, Sean B. Mandel, D.C., noted decreased range of cervical motion in
flexion, extension, left and right lateral flexion, and left and right rotation. Id. at 730. On
August 6, 2020, physical therapist Maryanne Cardelli also noted decreased range of
cervical motion. Id. at 694. On October 13, 2020, chiropractor Mandel noted moderate
tenderness in Plaintiff’s shoulders, moderate to severe tenderness in her thoracic spine,
severe tenderness in her cervical spine, moderate to severe spasm/hypertonicity in her
shoulder and back muscles, and severe spasm in her neck. Id. at 695.
The record also contains treatment notes from Elite Medical and Rehabilitation
where Plaintiff saw Loretta Brown, M.D., beginning on November 11, 2020.19 Tr. at
1065-67. Dr. Brown prescribed naproxyn, gabapentin,20 and Flexeril, id. at 1067, and

18

Topamax is used to prevent migraine headaches. It will only prevent migraine
headaches or reduce the number of attacks. It will not treat a headache that has already
begun. See https://www.drugs.com/topamax.html (last visited May 15, 2024).
19

The earliest treatment records from Elite Medical are dated November 11, 2020.
Tr. at 1065-67. However, those notes are entitled “Established Patient Encounter.” Id. at
1065. Thus, it is unclear when Plaintiff began treatment with Elite Medical and Dr.
Brown.
20

Gabapentin is used to treat nerve pain from shingles. See
https://www.drugs.com/gabapentin.html (last visited May 15, 2024).
13

saw Plaintiff monthly through March 3, 2021, continuing the same medications. Id. at
1051-64 (12/8/20, 1/6/21, 2/5/21, 3/3/21).
On November 27, 2020, Plaintiff began treatment with Dr. Shah of Princeton
Brain & Spine. Tr. at 795-98. The doctor noted Plaintiff’s complaints of pain in the
neck, mid and low back which radiated to the bilateral arms and legs, right greater than
left. Id. at 795. The doctor noted tenderness, decreased range of motion in the neck and
spasm and tenderness in the trapezius muscles, lower back tenderness, a positive straight
leg raising test, and decreased range of motion in the lumbar spine. Id. at 796-97. Dr.
Shah diagnosed a traumatic rupture of a lumbar intervertebral disc, cervicalgia, injury to
the lower back, and radiculopathy of the cervical and lumbar region. Id. at 797. He
recommended L5-S1 decompression surgery, without fusion considering Plaintiff’s age.
Id.
Plaintiff returned to Dr. Lincow on December 18, 2020, who noted that an EMG
performed on December 16, 2020, confirmed L5-S1 radiculopathy. Tr. at 803. The
doctor noted that Dr. Shah recommended lumbar spine surgery, but Plaintiff declined at
that time due to Covid-19. Id. The doctor also indicated that Plaintiff had begun
treatment with Dr. Brown, who prescribed oxycodone, gabapentin, and Flexeril. Id. Dr.
Lincow advised Plaintiff to stop taking his prescriptions (for tramadol and muscle
relaxers). Id. When Plaintiff saw Dr. Lincow on February 26, 2021, she was preparing
for a lumbar discectomy scheduled by Dr. Shah for March 5, 2021. Id. at 802.
On March 5, 2021, James Barrese, M.D., performed right L5-S1 decompression
surgery consisting of a lumbar laminectomy with microdiscectomy. Tr. at 859-60, 1096.
14

At her first post-operative visit on March 15, 2021, Plaintiff complained of new thigh and
buttock numbness, but stated that her preoperative symptoms had improved slightly. Id.
at 848. Physicians’ assistant (“PA”) Susan J. Beckman noted that Plaintiff was able to
toe and heel walk on the left, but not the right and she had decreased lumbar range of
motion. Id. PA Beckman recommended she avoid bending and twisting, no lifting over
15 pounds, and “[s]he can return to driving after tapered off narcotics and has normal
strength and good range of motion.” Id. at 849. PA Beckman noted that Plaintiff would
follow up with Dr. Shah in 6 weeks. Id.
On May 17, 2021, Dr. Shah completed a Medical Source Statement indicating that
Plaintiff suffered from lumbar and cervical radiculopathy. Tr. at 915-16.21 The doctor
opined that Plaintiff could sit for 0-2 hours in 10-minute intervals,22 walk for 10 minutes,
and stand for 15-20 minutes, could rarely lift less than 10 pounds, never push or pull with
any extremity, and never reach, handle, finger, or feel. Id. The doctor noted that Plaintiff
suffers from gait dysfunction and requires the use of a cane for walking, and opined that
Plaintiff was not a candidate for sedentary work because she is unable to sit more than 10
minutes without pain. Id. at 916.

21

A duplicate of the report appears at pages 917-18.

22

Dr. Shah checked the box indicating Plaintiff could sit for 0-2 hours, and then
wrote “10 minutes” next to the question. Tr. at 915. He then stated that Plaintiff had to
alternate between sitting and standing and indicated 10-minute intervals for sitting. Id. I
interpret this to mean that Plaintiff could sit for 0-2 hours in an 8-hour day in 10 minute
intervals. For standing/walking, the doctor just wrote “standing 15-20 minutes” and
“walking 10 minutes.” Id.
15

On December 7, 2020, at the initial consideration stage, prior to Plaintiff’s lumbar
surgery, Robert Czwalina, D.O., found, based on his review of the record, that Plaintiff
could lift/carry 20 pounds occasionally and 10 pounds frequently, stand/walk 2 hours in
an 8-hour workday and sit for 6 hours in an 8-hour workday. Tr. at 67-68. The doctor
also found that Plaintiff’s ability to push or pull with the left upper extremity was limited
and that Plaintiff could never climb ladders, ropes or scaffolds, and could occasionally
climb ramps or stairs, balance, stoop, kneel, crouch, or crawl. Id. at 68-69.
On reconsideration on February 12, 2021, which was also prior to Plaintiff’s
surgery, Charles Joseph Hubbard, Jr., M.D., found the same sitting, standing, and
walking limitations as had been found at the initial consideration stage, but noted that
Plaintiff could only occasionally lift 10 pounds and frequently lift less than 10 pounds.
Tr. at 88. The doctor also found that Plaintiff was limited in the use of her upper left
extremity to push and pull. Id.
C.

Plaintiff’s Claims

Plaintiff presents two primary claims challenging the ALJ’s consideration of
(1) Dr. Shah’s opinion and (2) Plaintiff’s subjective complaints. Because I find that the
ALJ misinterpreted the evidence of record in considering both, and because that error was
not harmless, I will remand the case for further consideration.
First, Plaintiff claims that the ALJ failed to properly evaluate Dr. Shah’s opinion.
Doc. 11 at 7-12; Doc. 13. Defendant concedes that the ALJ misconstrued evidence in
evaluating Dr. Shah’s opinion, Doc. 12 at 7, but argues that the misinterpretation is
harmless. Doc. 12 at 7-9.
16

The ALJ’s consideration of medical opinion evidence is governed by regulations
which focus on the persuasiveness of each medical opinion.
We will not defer or give any specific evidentiary weight,
including controlling weight, to any medical opinion(s) or
prior administrative medical finding(s), including those from
your medical sources.
20 C.F.R. § 404.1520c(a).23 The regulations list the factors to be utilized in considering
medical opinions: supportability, consistency, treatment relationship including the length
and purpose of the treatment and frequency of examinations, specialization, and other
factor including familiarity with other evidence in the record or an understanding of the
disability program. Id. § 404.1520c(c). The most important of these factors are
supportability and consistency, and the regulations require the ALJ to explain these
factors, but do not require discussion of the others. Id. § 404.1520c(b)(2). The
regulations explain 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) . . . , the more persuasive the medical opinions . . . will be.” Id.
§ 404.1520c(c)(1). In addition, “[t]he more consistent a medical opinion(s) . . . is with
the evidence from other medical sources and nonmedical sources . . . , the more
persuasive the medical opinion(s) . . . will be.” Id. § 404.1520c(c)(2).
The change in the regulations did not change the basic rule that “[t]he ALJ must
consider all the evidence and give some reason for discounting the evidence she rejects.”
23

In contrast, the regulations governing applications filed prior to March 17, 2017,
spoke in terms of the weight to be given each opinion, including controlling weight for
the opinions of certain treating sources. 20 C.F.R. § 404.1527.
17

Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (citing Stewart v. Sec’y HEW, 714
F.2d 287, 290 (3d Cir. 1983)). When there is a conflict in the evidence, the ALJ may
choose which evidence to credit and which evidence not to credit, so long as she does not
“reject evidence for no reason or the wrong reason.” Rutherford v. Barnhart, 399 F.3d
546, 554 (3d Cir. 2005); see also Plummer, 186 F.3d at 429 (quoting Mason v. Shalala,
994 F.2d 1058, 1066 (3d Cir. 1993)).
Here, the ALJ found the opinion of Plaintiff’s treating neurosurgeon partially
persuasive.
The undersigned considered the May 2021 opinion of
[Plaintiff’s] treating neurosurgeon, Dr. Nirav Shah, who
opined [Plaintiff] could sit 10 minutes, stand 15-20 and walk
10 minutes, needing to alternate after 10 minutes for sitting
and 15-20 otherwise. She could rarely lift 10 pounds, never
more, or push and pull with her upper or lower extremities.
She could not reach in any direction and it was noted she
dropped objects. He stated [Plaintiff] had gait dysfunction
and would be using a cane to assist with walking. She was in
physical therapy 2-3 times a week and not a candidate for
sedentary work due to her inability to sit. He stated she was
unable to work ([tr. at 915-16, 917-18]). This opinion is only
partially persuasive; it is overly restrictive and not supported
by [Plaintiff’s] Princeton Brain and Spine treatment notes, or
the record as a whole. As for the use of a cane, this
conclusion is not supported by any of the objective medical
findings; the record documents a normal gait without the need
for any assistive devices. At her March 2021 post-surgical
follow-up, [Plaintiff] was noted as having good range of
motion and normal strength. While she was told to avoid
bending, twisting and lifting over 15 pounds, the only
impediment to driving was taking narcotic medication ([id. at
847-74]). Further, the statement that [Plaintiff] was unable to
work is a conclusory statement on an issue reserved for the
Commissioner.
Tr. at 25.
18

Plaintiff alleges and Defendant concedes that the ALJ mischaracterized the
treatment notes from Plaintiff’s post-surgical follow up in March 2021. Doc. 11 at 7-8;
Doc. 12 at 6-7. In interpreting the treatment note from Plaintiff’s first post-operative visit
at Princeton Brain & Spine after her lumbar laminectomy, the ALJ found that Plaintiff
had “good range of motion and normal strength.” Tr. at 25. When that portion of the
treatment note is read in context, however, it is clear that PA Beckman was referring to
conditions necessary for Plaintiff to drive. “She can return to driving after tapered off
narcotics and has normal strength and good range of motion.” Id. at 849. The PA was
not commenting on Plaintiff’s condition, but rather stating improvement that must occur
before Plaintiff could drive again. In fact, on examination (via telemedicine) at that time,
PA Beckman noted decreased lumbar range of motion and an inability to toe and heel
walk on the right. Id. at 848. She indicated that Plaintiff would follow up with Dr. Shah
in six weeks. Id.24
Defendant contends that the ALJ’s misinterpretation of this treatment note “did
not change the outcome of this case” because PA Beckman still found that Plaintiff was
able to lift up to 15 pounds, which is consistent with the ALJ’s finding that Plaintiff could
perform sedentary work. Doc. 12 at 7. The problem with Defendant’s argument is that it
overlooks other limitations Dr. Shah found in his Medical Source Statement -- most
importantly, limitations in Plaintiff’s abilities to sit, stand, and walk. Tr. at 915.
Unfortunately, the only record from Dr. Shah post-dating PA Beckman’s initial
post-operative treatment note is Dr. Shah’s Medical Source Statement. Thus, it is unclear
how Plaintiff presented to Dr. Shah 6 weeks later.
24

19

Sedentary work requires prolonged sitting with walking and standing required
occasionally. 20 C.F.R. § 404.1567 (“Although a sedentary job is defined as one which
involves sitting, a certain amount of walking and standing is often necessary.”); see also
Social Security Ruling 83-12, “Titles II and XVI: Capability to Do Other Work-The
Medical Vocational Rules as a Framework for Evaluating Exertional Limitations within a
Range of Work or Between Ranges of Work,” 1983 WL 31253, at *4 (1983) (“prolonged
sitting [is] contemplated in the definition of sedentary work”). Such a requirement is
inconsistent with Dr. Shah’s finding that Plaintiff could sit only 0-2 hours in a workday.
See tr. at 915.25
This error is compounded because the ALJ found the agency reviewing doctors’
opinions on initial consideration and reconsideration “generally persuasive,” and
“persuasive,” respectively, despite the fact that neither had the benefit of Dr. Shah’s
assessment following Plaintiff’s lumbar surgery. At the initial consideration stage,
without the benefit of any evidence from Dr. Shah, Dr. Czwalina reviewed the records
and rendered his opinion on December 7, 2020, 10 days after Dr. Shah diagnosed
Plaintiff with a “[t]raumatic rupture of the lumbar intervertebral disc,” and prior to
Plaintiff’s lumbar surgery. See tr. at 77 (initial consideration decision); 60-62 (list of
medical records reviewed at initial determination does not include Dr. Shah’s), 797 (Dr.

Later in his brief, Defendant argues that Plaintiff’s need for a cane “is largely
irrelevant because the use of a cane does not significantly impact the ability to perform
sedentary work.” Doc 12 at 7-8. This proves Plaintiff’s point that Dr. Shah’s limitation
regarding Plaintiff’s ability to sit for prolonged periods is critical to the ALJ’s
determination that Plaintiff can perform sedentary work.
25

20

Shah’s diagnosis on 11/27/20).26 Although the ALJ acknowledged that Plaintiff’s recent
lumbar spine surgery require greater exertional limitations than noted by Dr. Czwalina,
she found the doctor’s opinion “generally persuasive.” Id. at 24. On reconsideration,
Dr. Hubbard rendered his opinion on February 12, 2021, prior to Dr. Shah completing his
Medical Source Statement. Id. at 92. Although Dr. Hubbard received records from Dr.
Shah and acknowledged that the doctor planned lumbar decompression surgery, id. at 87,
91, he failed to reference Dr. Shah’s diagnosis, acknowledge the MRI from October 17,
2020, indicating disc bulges at L4-5 and L5-S1, and failed to consider the lumbar related
evidence (other than noting “[p]ositive lumbar spasm”) in assessing Plaintiff’s postural
limitations. Id. at 89. The ALJ found Dr. Hubbard’s opinion persuasive. Id. at 25.
In short, the ALJ found Dr. Shah’s assessment only partially persuasive, in part
based on a misinterpretation of the treatment notes following Plaintiff’s lumbar surgery.
Thus, the ALJ rejected Dr. Shah’s opinion for the wrong reason. Rutherford, 399 F.3d at
554. At the same time, the ALJ found the opinions of the record reviewers “generally
persuasive” and “persuasive” despite the fact that neither had the benefit of the surgical
notes nor mentioned the MRI evidencing the two lumbar disc bulges. Therefore, I will
remand the case for further consideration of Plaintiff’s lumbar impairment.

26

The lumbar MRI establishing the disc bulges at L4-5 and L5-S1 was performed
on October 17, 2020, but was contained in the records provided by Dr. Shah, tr. at 799,
863, and 1049, which were not provided to Dr. Czwalina. Id. at 60-62 (records reviewed
for initial determination). Thus, it does not appear that Dr. Czwalina had any objective
evidence regarding Plaintiff’s lumbar impairment.
21

Plaintiff also complains that the ALJ failed to properly consider Dr. Shah’s
opinion that she required the use of a cane for walking post-lumbar surgery. Doc. 11 at
12. Defendant responds that “this point is largely irrelevant because the use of a cane
does not significantly impact the ability to perform sedentary work.” Doc. 12 at 7-8.
Because I have already determined that the case must be remanded for further
consideration of Plaintiff’s lumbar impairment, Defendant should also reevaluate
Plaintiff’s need for a cane and recontact her treatment providers if necessary to obtain
clarification in this regard.
Finally, Plaintiff contends that the ALJ failed to properly consider her subjective
complaints, including failing to take into account her demonstrated work history. Doc.
11 at 14-16.27 Defendant faults Plaintiff for relying “sole[ly]” on the ALJ’s failure “to
explicitly consider” her work history, Doc. 12 at 11, and maintains that the ALJ properly
considered Plaintiff’s subjective complaints. Id. at 9-12. Because I have already
determined that the case must be remanded, I discuss this claim only briefly.
If Plaintiff’s challenge were limited to the ALJ’s failure to consider her work
history in assessing her subjective complaints, I would be inclined to reject the argument.
“Work history ‘is only one of many factors an ALJ may consider in assessing a
claimant’s subjective complaints.’” Sanborn v. Colvin, Civ. No. 13-224, 2014 WL
3900878, at *16 (E.D. Pa. Aug. 11, 2014) (quoting Thompson v. Astrue, Civ. No. 09-

Although Plaintiff presented this as a claim challenging the ALJ’s assessment of
her credibility, she acknowledges that the Administration has eliminated the term
“credibility” from the regulations applicable to the assessment of a claimant’s subjective
complaints. Doc. 11 at 14 n.20.
27

22

519, 2010 WL 3661530, at *4 (W.D. Pa. Sept. 20, 2010) (citing 20 C.F.R.
§ 404.1529(c)(3))), aff’d 613 F. App’x 171 (3d Cir. 2015) “Indeed a claimant’s work
history alone is not dispositive of the question of . . . credibility, and an ALJ is not
required to equate a long work history with enhanced credibility.” Id. (quoting
Thompson, 2010 WL 3661530, at *4). In affirming the district court in Sanborn, the
Third Circuit concluded that the ALJ’s failure to consider the claimant’s substantial work
history did not require remand because the ALJ explained her reasoning and Plaintiff’s
testimony of more restrictive abilities was belied by the medical evidence and evidence
of a more active lifestyle. 613 F. App’x at 177.
Here, however, Plaintiff also contends that the ALJ’s assessment of Plaintiff’s
complaints was tainted by her misinterpretation of the post-surgical treatment note. Doc.
11 at 14-15. The ALJ rejected Plaintiff’s subjective complaints: “As for [Plaintiff’s]
statements about the intensity, persistence, and limiting effects of his or her symptoms,
they are inconsistent because the evidence in the record does not support the severity of
the symptoms alleged.” Tr. at 20. The problem is that in citing the record evidence with
which Plaintiff’s complaints were allegedly inconsistent, the ALJ twice relied on the
same misinterpretation of the post-lumbar surgery treatment note. Id. at 22 (“she was
told after tapering narcotics she could return to driving as she had normal strength and
good range of motion”), 23 (“While she required surgical intervention for her lumbar
spine disorder, at her post-surgical follow-up, [Plaintiff] was noted as having good range
of motion and normal strength.”). As previously discussed, this was a misinterpretation
of the record because the note referenced establishes that Plaintiff had decreased lumbar
23

range of motion and was unable to toe and heel walk on the right. Id. at 848. On remand,
Defendant shall reconsider Plaintiff’s subjective complaints after having reconsidered
Plaintiff’s lumbar impairment and, if determined to be relevant, should consider
Plaintiff’s work history in considering Plaintiff’s subjective complaints.
IV.

CONCLUSION
The ALJ’s consideration of the opinion of treating neurosurgeon Dr. Shah was

flawed because the ALJ misinterpreted post-surgical treatment notes. This
misinterpretation was not harmless, and it also tainted the ALJ’s consideration of the
opinions offered by the state agency record reviewing physicians and the ALJ’s
consideration of Plaintiff’s subjective complaints. Thus, the ALJ’s decision is not
supported by substantial evidence.
An appropriate Order follows.

24