GROFF v. SAUL

Filing 16

MEMORANDUM AND/OR OPINION SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 11/17/22. 11/18/22 ENTERED AND COPIES E-MAILED.(bw)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LORRIE K. GROFF
Plaintiff,
v.
KILOLO KIJAKAZI,1 Comm. of
Social Security,
Defendant.

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CIVIL ACTION

NO. 20-cv-06040-RAL

RICHARD A. LLORET
U.S. MAGISTRATE JUDGE

November 17, 2022

MEMORANDUM OPINION
The Commissioner of Social Security, through the decision of an Administrative
Law Judge (“ALJ”), denied Ms. Groff’s application for disability insurance benefits
(“DIB”). Because I find no error, I will affirm the ALJ’s decision.
PROCEDURAL HISTORY
On January 3, 2018, Plaintiff filed an application for DIB, alleging disability
beginning June 19, 2017, due to impairments including asthma, arthritis, fibromyalgia,
carpal tunnel syndrome, and depression. R. 52, 137. The state agency denied the
application. R. 51-60. Ms. Groff requested and received an administrative hearing, held
September 19, 2019, at which Ms. Groff (represented by counsel) and a vocational
expert testified. R. 32-50. The ALJ issued a decision finding that Ms. Groff retained the
residual functional capacity (“RFC”) to perform light work, with some further
qualifications, including the freedom to alternate between sitting and standing every

Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021 and is therefore
substituted for Andrew Saul as Defendant pursuant Federal Rule of Civil Procedure 25(d). 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).
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thirty minutes as needed, never climbing ladders, kneeling, or crawling, only
occasionally climbing stairs, and frequently (but no more often) feeling and
manipulating bilaterally. R. 20-24. Relying on the vocational expert’s testimony, R. 4748, the ALJ determined that Ms. Groff was unable to perform any of her past relevant
work but based on the vocational expert’s testimony determined that she could perform
other jobs that existed in significant numbers in the national economy, among them
bakery worker, cashier, and small parts assembler. R. 24-25, 48-49. Accordingly, the
ALJ concluded that Ms. Groff was not disabled. R. 25-26. Ms. Groff appealed, but the
Appeals Council affirmed the ALJ’s decision. R. 1-6. Ms. Groff then timely filed a request
for review in this court. Doc. No. 1.
FACTUAL BACKGROUND
A. The Claimant’s Background
Ms. Groff was 47 years old on the date of her alleged disability onset, making her
a “younger person” under the regulations. R. 24. She graduated from high school and
can communicate in English. Id.; R. 35-36. Ms. Groff had past relevant work as a front
desk clerk, a hospital cleaner, and an industrial cleaner, which qualified as substantial
gainful activity. R. 24.
B. The ALJ’s Decision
The ALJ found that Ms. Groff was not eligible for DBI because she has not been
under a disability, as defined by the Social Security Act. R. 25. In reaching this decision,
the ALJ made the following findings of fact and conclusions of law pursuant
to Social Security's five-step sequential evaluation process.2
An ALJ evaluates each case using a sequential process until a finding of “disabled” or “not disabled” is
reached. The sequence requires an ALJ to assess whether a claimant: (1) is engaging in substantial gainful
activity; (2) has a severe “medically determinable” physical or mental impairment or combination of
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At step one, the ALJ concluded that Ms. Groff had not engaged in substantial
gainful activity (“SGA”) since June 19, 2017, the alleged onset date. R. 17. At step two,
the ALJ determined that Ms. Groff had the following severe impairments: obesity,
degenerative disc disease of the lumbar spine, fibromyalgia, carpal tunnel syndrome,
right knee arthritis, and obstructive sleep apnea. Id. The ALJ noted that other
conditions found in the record do not qualify as “severe.” Id. Ms. Groff does not dispute
the ALJ’s analysis at steps one and two. At step three, the ALJ compared Ms. Groff's
impediments to those contained in the Social Security Listing of Impairments
(“listing”).3 The ALJ found that Ms. Groff did not meet any listing criteria, R. 19.
Prior to undertaking his step four analysis, the ALJ assessed Ms. Groff's residual
functional capacity (“RFC”), or “the most [Ms. Groff] can still do despite [her]
limitations.” 20 C.F.R. §§ 404.1545(a)(1). The ALJ found that Ms. Groff had the RFC to
perform light work, as defined in 20 C.F.R. 404.1567(b),4 except that she must be free to

impairments; (3) has an impairment or combination of impairments that meet or equal the criteria listed
in the social security regulations and mandate a finding of disability; (4) has the residual functional
capacity to perform the requirements of her past relevant work, if any; and (5) is able to perform any
other work in the national economy, taking into consideration her residual functional capacity, age,
education, and work experience. See 20 C.F.R. §§ 404.1520(a)(4)(i)–(v).
The regulations contain a series of “listings” that describe symptomology related to various
impairments. See 20 C.F.R. Pt. 404, Subpt. P., App. 1. If a claimant's documented symptoms meet or
equal one of the impairments, “the claimant is conclusively presumed to be disabled.” Bowen v. Yuckert,
482 U.S. 137, 141 (1987). If not, the sequential evaluation continues to step four, where the ALJ
determines whether the impairments assessed at step two preclude the claimant from performing any
relevant work the claimant may have performed in the past. Id.
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Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of
light work, you must have the ability to do substantially all of these activities. If someone can do light
work, we determine that he or she can also do sedentary work, unless there are additional limiting factors
such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. § 404.1567(b). See also
SSR 83-10.
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alternate between sitting and standing every thirty minutes as needed; she could never
climb ladders, kneel, or crawl; she could only occasionally climb stairs; and she is
limited to frequent bilateral fine manipulation and feeling. R. 20-24. At step four, the
ALJ found that Ms. Groff does not have the RFC to perform relevant past work. R. 24. At
step five, based on the RFC and testimony from a vocational expert, the ALJ determined
that Ms. Groff would be able to perform the requirements of representative occupations
such as bakery worker cashier, and small products assembler. R. 25. Because these jobs
exist in significant numbers in the national economy, the ALJ concluded that Ms. Groff
was not disabled. Id.
Ms. Groff contends the ALJ erred by not applying the listings to find that she was
disabled, by finding that she could perform light work, rather than applying the
“medical-vocational grids,” Rule 201.12, to find she was disabled. Plaintiff’s Brief (“Pl.
Br.”) at 9.
STANDARDS OF REVIEW
My review of the ALJ’s decision is deferential. I am bound by his findings of fact
to the extent those findings are supported by substantial evidence in the record. Knepp
v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000) (citing Plummer v. Apfel, 186 F.3d 422, 427 (3d
Cir. 1999)). Accordingly, my review of the ALJ’s findings of fact is limited to
determining whether substantial evidence supports the ALJ’s decision. Hartranft v.
Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)). If the ALJ’s decision
is supported by substantial evidence, her disability determination must be
upheld. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005); see also 42 U.S.C. §
405(g).

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Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial
evidence “is more than a mere scintilla but may be less than a preponderance.” Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). I must rely on the record developed during
the administrative proceedings along with the pleadings in making my
determination. See 42 U.S.C. § 405(g). I may not weigh the evidence or substitute my
own conclusions for those of the ALJ. Chandler v. Comm'r of Soc. Sec., 667 F.3d 356,
359 (3d Cir. 2011).
The ALJ’s legal conclusions and application of legal principles are subject to
plenary review. See Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). I must
determine whether the ALJ applied the proper legal standards in reaching the
decision. See Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984). Accordingly, I can
overturn an ALJ’s decision based on an incorrect application of a legal standard even
where I find that the decision otherwise is supported by substantial evidence. Payton v.
Barnhart, 416 F. Supp. 2d 385, 387 (E.D. Pa. 2006) (citing Friedberg v. Schweiker, 721
F.2d 445, 447 (3d Cir. 1983)).
DISCUSSION
A. The ALJ did not err by deciding that Ms. Groff did not qualify as
disabled under a listing.
Ms. Groff claims the ALJ should have found her disabled under Listing 1.035 or a
combination of listings. Pl. Br. at 9. I disagree. Ms. Groff’s brief lacks an explanation

In the conclusion to her brief, Ms. Groff argues that the ALJ should have “explored” Listing 1.02. Pl. Br.
at 15. I assume this is a typo, and she meant to say Listing 1.03.
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from the record of why Listing 1.03 – or some other, unspecified listing - might be
satisfied in her case. The brief merely asserts that this is so. Pl. Br. 9-10.
It is not enough to simply allege that the ALJ should have considered a listing. A
plaintiff must “identify specific avenues for meeting or equaling specific listings that the
ALJ should have considered but did not” and offer an “explanation of how further
analysis could have affected the outcome” of the decision. Holloman v. Comm’r Soc.
Sec., 639 F. App’x 810, 814 (3d Cir. 2016).
That did not happen here. Instead, Ms. Groff “complains in vague terms that
certain impairments were not properly compared, separately and in combination, to the
listings.” Id. The sum of Ms. Groff’s argument about Listing 1.03 consists of this: “[i]t is
submitted that the Administrative Law Judge should have also evaluated this Claimant
using the Medical Listing at 1.03, related to reconstructive surgery with inability to
ambulate effectively and return to ambulation did not occur within twelve (12) months
of onset.” Pl. Br. at 9. There is no analysis of Listing 1.03’s requirements, and no
identification by citation to the record of the evidence that might meet the listing’s
requirements.
The requirement that a plaintiff explain specifically how and why a listing applies
arises from the requirement that a plaintiff demonstrate that a supposed error is
harmful. See Shinseki v. Sanders, 556 U.S. 396, 413 (2009) (plaintiff must explain how
the error “to which he points could have made any difference.”). As in Hollman, the
plaintiff here has supplied “no reason to conclude that the deficiency in analysis was
harmful to [plaintiff’s] claim.” Hollman, 639 F. App’x at 814; see Rutherford v.
Barnhart, 399 F.3d 546, 553 (3d Cir.2005) (“Rutherford has not specified how that
factor would affect the five-step analysis undertaken by the ALJ”); see also Woodson v.
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Comm’r Soc. Sec., 661 F. App’x 762, 766 (3d Cir. 2016) (“Woodson only says in very
vague terms that an actual discussion of his impairments would lead to the conclusion
that he was disabled at step three. This is unconvincing.”). The absence in Ms. Groff’s
brief of page references to the record is fatal to her claim. See, e.g., Pl. Br. at 8-12, which
as far as I can tell is utterly bereft of any page references to the record.
Without aid I have reviewed Listing 1.036 and the record before me and find that
there is evidence, which if credited, could support a finding by the ALJ that Listing 1.03
(now 1.17) applies and provides a basis for a disability determination.
Listing 1.03 (now 1.17) has three elements that must be proven by a claimant such
as Ms. Groff:
A. History of reconstructive surgery or surgical arthrodesis of a major weightbearing joint.
AND
B. Impairment-related physical limitation of musculoskeletal functioning that
has lasted, or is expected to last, for a continuous period of at least 12 months.
AND
C. A documented medical need (see 1.00C6a) for a walker, bilateral canes, or
bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device
involving the use of both hands (see 1.00C6e(i)).
https://www.federalregister.gov/documents/2020/12/03/2020-25250/revisedmedical-criteria-for-evaluating-musculoskeletal-disorders
Dr. William Bear reported on September 10, 2019, that Ms. Groff had her right
knee replaced on June 20, 2018, which constituted reconstructive surgery of a major

“Effective April 2, 2021, the Social Security Administration revised the listings for evaluating
musculoskeletal disorders. Listing 1.02 is now Listing 1.18, while Listing 1.03 is now Listing 1.17. Revised
Medical Criteria for Evaluating Musculoskeletal Disorders, FED. REG. (Dec. 3, 2020),
https://www.govinfo.gov/content/pkg/FR-2020-12-03/pdf/2020-25250.pdf.” Charles K. v. Kijakazi,
2022 WL 855008, at *4 n.3 (S.D. Ind. 2022).
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weight bearing joint. R. 1151. This appears to satisfy part “A” of Listing 1.03. Dr. Bear
reported that Ms. Groff was unable to ambulate effectively, that is, she was unable to
walk a block at a reasonable pace on rough or uneven surfaces, unable to use public
transportation, such as a bus, unable to carry out routine ambulatory activities including
grocery and clothes shopping, and unable to climb several stairs at a reasonable pace
with the use of only a single handrail. Id. This appears to satisfy part “B” of Listing 1.03.
Dr. Bear also reported that Ms. Groff needed a “cane/rolling walker/or sometimes a
wheelchair, for long distances.” Id. This might satisfy part “C” of the Listing 1.03. Dr.
Bear’s treatment notes explain that he has followed Ms. Groff for some time, and that
her post-surgical condition worsened after a car accident July 16, 2019. R. 1153.
Dr. Bear’s report is evidence from which the ALJ might conclude that Ms. Groff’s
condition meets the three elements of Listing 1.17 (formerly 1.03). But the ALJ
explained his reasons for discounting Dr. Bear’s report, elsewhere in the ALJ’s opinion:
William Bear and Dr. Mark Mason provided an opinion on September 10, 2019
(Exhibit 21F). Dr. Mason7 opined the claimant could not walk a block at a
reasonable place, use public transport, go grocery shopping or climb several
stairs. Additionally, the claimant requires use of a cane, rolling walker or
sometimes a wheelchair for long distances. This opinion is not supported or
persuasive as the record shows that the claimant was advised to use conservative
measures with ice over the knee and on July 29, 2019 the claimant’s symptoms
were opined to resolve over the next few weeks (Exhibit 21F, page 4).
Additionally, the claimant did have some tenderness but only minimal effusion
which is not consistent with the extreme limitations assessed in this opinion.
R. 24. I find that the ALJ’s assessment of Dr. Bear’s opinion is reasonable. In her
testimony Ms. Groff stated she could walk upstairs, walk a mile before needing to sit
down, and stand in one position for 30 minutes before sitting down. R. 39-40. There

The ALJ refers to the report as coming from Dr. Mason. R. 24. Drs. Bear and Mason are apparently in
practice together. R. 1152. Dr. Bear signed the report of September 10, 2019, on behalf of the practice.
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was no mention at all of her using a cane, a crutch, a walker, or a wheelchair. R. 39-46.
Because the ALJ reasonably explained the lack of weight he gave Dr. Bear’s report, the
failure to consider Listing 1.03 was harmless, if it was error at all.
Ms. Groff’s discussion of other listings is not helpful. She merely says that
It is submitted that the combined effects of the Claimant’s osteoarthritis,
rheumatoid arthritis, degenerative disc disease, fibromyalgia, obesity, and carpal
tunnel syndrome had a significant impact on the Claimant’s ability to work.
Claimant contends that the cumulative effect of all these musculoskeletal systems
produced a combination of medical issues which should be considered to meet or
equal a 1.00 listing.
Pl. Br. at 10-11. But the ALJ considered and rejected a variety of section 1.00 listings –
1.02, 1.04 and 1.08. R. 19-20. The ALJ also considered the impact of Ms. Groff’s obesity
when evaluating whether a listing might apply. Id. at 20. Without more guidance from
Ms. Groff on what the ALJ’s error might have been, I discern no error, and certainly no
harmful error.
B. The ALJ did not err by determining that Ms. Groff could perform
light work.
The ALJ determined that Ms. Groff retained the residual functional capacity to

perform light work, with further qualifications: alternate between sitting and standing
every thirty minutes as needed; never climb ladders, kneel, or crawl; only occasionally
climb stairs; and frequently (but no more often) feel and manipulate bilaterally. R. 2024. The vocational expert testified that there were jobs in the national economy that
would accommodate this RFC.8 R. 48-49.
Ms. Groff contends that there was no substantial evidence supporting the ALJ’s
determination that she could perform light work, with additional limitations. Pl. Br. at
The Commissioner argues that the hypothetical question was correct. Comm. Resp. at 12-13. I agree that
it accurately reflected the RFC and that there was no error in the RFC. Consequently, I need not address
the hypothetical question separately.
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11. Ms. Groff fails to cite to a single piece of evidence from the record to support her
argument. Id. at 11-12. Instead, she quotes the definition of light work and asserts it was
not met. Id. at 12. Ms. Groff argues that she should have been limited to sedentary work,
which under Medical-Vocational Guidelines, Rule 201.12, would have resulted in a
disability determination, given her age, education, and previous work experience. Pl. Br.
at 11-12; see Appendix 2 to Subpart P of 20 C.F.R 404, Table 1: Medical-Vocational
Guidelines, at https://www.ssa.gov/OP Home/cfr20/404/404-app-p02.htm.
It is necessary to demonstrate, not just assert, that the ALJ erred. Demonstration
calls for careful citation to the evidence, not just a conclusory assertion that leaves the
judge to search through 1,000 pages of records to see if the assertion is so. See United
States v. Shulick, 18 F.4th 91, 113 (3d Cir. 2021) (“Judges are not like
pigs, hunting for truffles buried in the record.”) (quoting Doeblers' Pa. Hybrids, Inc. v.
Doebler, 442 F.3d 812, 820 n.8 (3d Cir. 2006) (internal quotation marks and citation
omitted)). I have reviewed the record and find no error.
I am satisfied that the ALJ properly considered the evidence when determining
the RFC. He thoroughly reviewed the medical record, considered the evidence from
various health care providers, considered the testimony and other evidence of record,
and explained his reasons for the RFC, which accounted for Ms. Groff’s impairments. R.
20-24. The Commissioner recounts the record evidence that supports the ALJ’s
decision. Comm. Resp. at 8-12. It is substantial.

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CONCLUSION
Because I find no error, I will affirm the decision of the ALJ and dismiss the
appeal. I will enter an Order and Judgment accordingly.

BY THE COURT:

_s/Richard A. Lloret
____________
RICHARD A. LLORET
UNITED STATES MAGISTRATE JUDGE

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