Franklin v. Colvin

Filing 11

MEMORANDUM re. request for adminsitative hearing (Order to follow as separate docket entry)Signed by Magistrate Judge Martin C. Carlson on 8/9/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HADJA FRANKLIN,
Plaintiff,
v.
CAROLYN W. COLVIN
Acting Commissioner of Social
Security,
Defendant.

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Civil No. 1:16-CV-977

(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

Introduction
Social Security appeals frequently entail review of an Administrative Law

Judge’s assessment of competing medical opinion evidence. So it is in this case.
In the instant case we are called upon to review a decision by a Social Security
Administrative Law Judge (ALJ) that engaged in a fundamental form of legal and
factual analysis that is commonplace in Social Security appeals: the weighing of
competing medical opinion evidence. In this case, the ALJ reviewed the medical
opinions of two treating physicians, both of whom concluded that Ms. Franklin
was disabled, in large part because she was severely limited in the use of her right,
dominant, hand for overhead reaching. (Tr. 471-78, 489-93.) The conclusions of
these two treating physicians were echoed by a consulting, examining doctor, who
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also concluded that Franklin could never use her right hand for reaching overhead
or otherwise. (Tr. 400-05.) Thus, every medical professional who treated or
examined Franklin concluded that she was severely impaired in terms of the use of
her right, dominant hand to reach overhead.
This was a significant medical finding in this case since the vocational
expert who testified at Franklin’s administrative hearing, stated that if Franklin
could not reach overhead with her right dominant hand she would be unable to
perform any of the jobs which the expert had identified in the national economy.
(Tr. 87-8.)

Thus, the vocational expert’s testimony made this particular

impairment work preclusive on this record.
Confronted with this unanimity of opinions among the physicians who had
actually treated and examined Franklin, the ALJ discounted all of these opinions in
favor of the views expressed by a non-examining medical source. (Tr. 90-98.)
That non-examining source opined that Franklin was not disabled, while
acknowledging that she had some limitations in the use of her right arm. The nonexamining source did not discuss these right, dominant hand limitations, and did
not address the findings of Franklin’s treating and examining medical sources,
since this initial opinion preceded at least one of the more thorough analyses

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conducted by treating and examining physicians and was rendered without the
benefit of all of these subsequent examinations and treating source analyses.
On these facts we find that the ALJ has not adequately explained why the
opinion of a non-treating, non-examining source which did not take into account
the material fact that every doctor who has examined Franklin concluded that she
faced severe right dominant hand limitations is entitled to greater weight that these
more fully-informed opinions based upon treatment and examination of the
plaintiff. Therefore, we will order this cased remanded to the Commissioner for
further consideration of this matter in light of this opinion.
II.

Statement of Facts and of the Case
Hadja Franklin applied for Social Security Disability Insurance Benefits on

May 12, 2014, alleging disability since November 29, 2012. Franklin, who was 43
years old at the time of the alleged onset of her disability, had a college education,
(Tr. 48-49.), was previously employed as a surgical technologist, and reported that
she was unable to work after November 29, 2012, when she suffered a shoulder
injury during a mishap in the operating room. (Id.)
A pivotal issue in the course of this disability adjudication was the degree to
which Franklin’s injuries restricted her use of her dominant right hand. On this
score, the medical record seemed to reveal a near unanimity of opinion supporting
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the view that Franklin’s dominant right hand use was severely impaired due to her
injury.

These opinions came from both treating, and independent examining

sources.
At the outset, Dr. Ainsworth Allen, Franklin’s treating orthopedic surgeon
opined that she was very limited in the use of her right hand based upon nearly two
years of treatment and examination of the plaintiff. This treatment began on
February 5, 2013, when Franklin presented to Dr. Allen on with complaints of
right shoulder pain following her November 2012 work-related injury. Since that
injury Franklin had experienced persistent pain and stiffness in her right upper
extremity which she rated at a level of 9 out of 10. Two months of physical
therapy had not significantly improved her symptoms and examination revealed
positive impingement signs. (Tr. 264.) MRI scans showed evidence of a torn
superior labrum and thickening of the inferior capsule.

Based upon his

examination and treatment Dr. Allen opined that most of Franklin’s symptoms
were coming from adhesive capsulitis status post labral tear and recommended
surgery which was performed on April 18, 2013. (Tr. 265, 272-273.)
Post-operatively, Franklin continued to experience pain, stiffness and
limitations in the use of her right arm. In June 2014, Dr. Robert Griffin, Franklin’s
pain management specialist, who treated her extensively between 2012 and 2014,
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opined that Franklin’s “persistent unremitting” right shoulder pain was
predominantly associated with myofascial spasm and observed that Franklin
“continues to exhibit marked limitation in the use of right shoulder that is limiting
of her routine activities.” (Tr. 333.)
On June 24, 2014, Dr. Allen completed a Upper Extremity Assessment
form which described his clinical findings concerns Franklin’s limitations in the
use of her right, dominant arm. (Tr. 471-78.) Dr. Allen explained that Franklin
had “a frozen right shoulder and she has restricted movement in the right
shoulder.” (Tr. 477.) According to Dr. Allen, in an eight-hour workday, Franklin
could never or rarely lift and carry objects as light as five pounds and could never
or rarely use her right hand and arm to handle objects, perform fine manipulations,
push or pull, or reach overhead or laterally. (Tr. 476.) Dr. Allen also stated that
Franklin’s impairments were expected to last 12 months, and found that she was
not a malingerer.

Dr. Allen further opined that Franklin’s symptoms would

increase if she was placed in a competitive work environment.

(Tr. 477.)

According to Dr. Allen, during an eight-hour workday, Franklin would need to rest
for at least 15 minutes every hour and would be likely to be absent from work two
to three days a month. (Id.)

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Dr. Allen’s opinions regarding the severity of Franklin’s right arm
limitations were echoed by a second treating source, Dr. Elizabeth KarazimHorchos. Franklin began treating with Dr. Horchos on June 18, 2015, when she
saw the doctor for treatment of complaints of cervical, neck and right shoulder pain
following her November 2012 injury. Franklin sought advice about diminishing
her pain and improving her function and reported that, despite surgery, 12 weeks of
physical therapy, multiple trigger point injections, and medication, she still
experienced a great deal of posterior scapular and shoulder area pain with
occasional numbness/tingling into her arm. Her pain was 4-8/10 and worse with
lifting, bending, and driving and she reported that she needed assistance for
dressing, bathing, cleaning, and driving. (Tr. 502-503.)
Dr. Karazim-Horchos continued to examine and treat Franklin through the
Summer and Fall of 2015, documenting medical complications with her right
shoulder including: cervicalgia; brachial radiculitis; spasm; CTS; and a shoulder
disorder. (Tr. 503-504.) Consequently, on an assessment form dated October 21,
2015, Dr. Karazim-Horchos stated that she has been treating Franklin since June
2015 for pain in her right shoulder joint, spasm, torsion dystonia, bursae and
tendon disorders, calcifying shoulder, tendinitis, cervicalgia, and adhesive
capsulitis. The doctor, who reviewed the notes/records of Franklin’s other treating
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doctors, opined that her impairments were expected to last at least 12 months and
that she was not a malingerer. (Tr. 489, 493.) Dr. Karazim-Horchos further
opined that Franklin could not lift even five pounds with her right arm and she
could sit and stand or walk for a total of less than one hour each in an eight-hour
workday. According to the doctor, Franklin could frequently use her left nondominant hand for reaching performing fine manipulations and grasping, turning or
twisting objects. While the doctor felt that Franklin could occasionally use her
right hand to grasp, turn and twist objects and perform fine manipulations, the
doctor concluded that she could never use her right arm and hand for reaching,
including overhead reaching, and found that Franklin’s symptoms would be likely
to increase if she was placed in a competitive work environment. (Tr. 491-492.)
In addition it was Dr. Karazim-Horchos’ opinion that Franklin would be likely to
be absent from work more than three times a month. (Tr. 493.)
These treating source conclusions regarding the severity of Franklin’s right
arm impairments were further corroborated by an consulting examining physician,
Dr. Jay Willner, who examined Franklin on August 18, 2014. (Tr. 400-405.)
While Dr. Willner’s examination led him to reach some conclusions that differed
from Franklin’s treating sources, on the question of whether Franklin could use her
right, dominant arm to reach, there was unanimity among the physicians who
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actually saw, treated or examined Franklin, with Dr. Willner finding based upon
his examination that she could never use her dominant arm to reach. (Tr. 402.)
Arrayed against this body of treating and examining source evidence was a
single thin reed, a non-examining medical source opinion rendered by Dr. Gerald
Gryczko on August 18, 2014. (Tr. 90-98.) Although Dr. Gryzcko never treated or
examined Franklin, he opined that she could perform light work. (Id.) While Dr.
Gryzcko reached this conclusion, the doctor never specifically addressed the
multiple contrary medical findings of severe impairment of Franklin’s right arm
beyond noting, without explanation, that Franklin experienced “impingements[] of
rt. shoulder (dominant side)”, (Tr. 96.), and observing that Franklin was “limited in
upper extremities Right.” (Tr. 95.)
It was against this medical and factual backdrop that the ALJ conducted a
hearing considering Franklin’s disability application on November 5, 2015.
(Tr.36-89.) At this hearing. Ms. Franklin and a vocational expert appeared and
testified. (Id.) The testimony of this vocational expert cast in sharp relief the
importance of any findings relating to Franklin’s right arm impairments. During
the vocational expert’s testimony, the expert identified a number of sedentary jobs
which Franklin might be able to perform, but candidly acknowledged that none of
those positions would be available to Franklin if she was unable to reach with her
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right, dominant hand. (Tr. 87-8.) Thus, the vocational expert’s testimony would
seem to support a finding of disability if Franklin’s right arm limitations were as
severe as every treating and examining medical source stated.
Following this hearing, on December 21, 2015, the ALJ issued a decision
denying Franklin’s application for disability benefits. (Tr. 20-34.) In this decision,
the ALJ first found that Franklin met the insured requirements of the Act, (Tr.25.),
and then at Step 2 of the five step sequential analysis process that applies to Social
Security disability claims concluded that Franklin experienced the following severe
impairments:

right shoulder disorder, including rotator cuff tear, status post-

surgical repair. (Tr. 24.) At Steps 3 and 4 of this sequential analysis, the ALJ
concluded that none of Franklin’s impairments met a listing which would define
her as per se disabled, (Tr. 26.), but also found that she could not return to her past
employment due to these impairments. (Tr. 30.)
With the issue of Franklin’s disability squarely focused on the degree of her
right arm impairment, the ALJ then rejected in a cursory fashion all of the opinions
of the treating and examining sources, who had uniformly found that Franklin was
highly restricted in the use of her dominant arm to reach. (Tr. 29.) With respect to
the treating sources, the ALJ simply and summarily stated that these opinions were
not well-supported by the evidence. Likewise, the ALJ wholly discounted the
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finding of Dr. Wellner, the examining consulting physician, on this score, noting
that the doctor’s opinion was based only upon his examination and did not reflect a
long-term evaluation of Franklin’s case. (Id.) Thus, the ALJ discounted both the
medical opinions of treating sources, opinions based upon a long-term evaluation
of Franklin’s condition, as well as the opinion of the only non-treating examining
source, Dr. Wellner, citing the lack of a long-term evaluation as the grounds for
rejecting that final opinion.
Instead, the ALJ embraced the opinion of the only physician who never
treated or examined Franklin, Dr. Gryzcko, and afforded that opinion substantial
weight. (Id.) The ALJ reached this conclusion even though Dr. Gryzcko’s opinion
bore less empirical support than the opinions of these other treating and examining
sources. Further, the ALJ gave this opinion substantial weight despite the fact that
the doctor never specifically addressed the multiple findings of severe impairment
of Franklin’s right arm beyond noting, without explanation, that Franklin
experienced “impingements[] of rt. shoulder (dominant side)”, (Tr. 96.), and
observing that Franklin was “limited in upper extremities Right.” (Tr. 95.)
Having reached this conclusion at Step 5 of this sequential analysis, where
the Commissioner bears the burden of proof, the ALJ found that there were
significant jobs in the national economy which Franklin could perform. The ALJ
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reached this conclusion even though the vocational expert whose testimony formed
the basis of this conclusion candidly acknowledged that Franklin was not
employable if she suffered from significant dominant arm restrictions. (Tr. 30.)
The ALJ then denied Franklin’s application for disability benefits. (Id.)
This appeal followed. (Doc. 1.) On appeal, Franklin attacks the ALJ’s
weighing of this medical opinion evidence, which gave the greatest weight to the
opinion of the medical source who never saw Franklin while rejecting the opinions
of multiple treating and examining medical sources. The parties have fully briefed
this issue and this case is ripe for resolution. For the reasons set forth below, we
find that the ALJ has not adequately explained the basis for the decision to reject
the unanimous view of every treating, and examining source in favor of a nontreating non-examining doctor’s opinion. Therefore, we will remand this case to
the Commissioner for further proceedings consistent with this opinion.
III.

Discussion
A. Substantial Evidence Review – the Role of the Administrative
Law Judge and the Court
Resolution of the instant social security appeal involves an informed

consideration of the respective roles of two adjudicators–the Administrative Law
Judge (ALJ) and this Court. At the outset, it is the responsibility of the ALJ in the
first instance to determine whether a claimant has met the statutory prerequisites
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for entitlement to benefits. To receive benefits under the Social Security Act by
reason of 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 can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. §1382c(a)(3)(A); see also 20 C.F.R. §416.905(a).

To satisfy this

requirement, a claimant must have a severe physical or mental impairment that
makes it impossible to do his or her previous work or any other substantial gainful
activity that exists in the national economy. 42 U.S.C. §1382c(a)(3)(B); 20 C.F.R.
§416.905(a).
In making this determination at the administrative level, the ALJ follows a
five-step sequential evaluation process.

20 C.F.R. §416.920(a).

Under this

process, the ALJ must sequentially determine: (1) whether the claimant is engaged
in substantial gainful activity; (2) whether the claimant has a severe impairment;
(3) whether the claimant’s impairment meets or equals a listed impairment; (4)
whether the claimant is able to do his or her past relevant work; and (5) whether
the claimant is able to do any other work, considering his or her age, education,
work experience and residual functional capacity (“RFC”).
§416.920(a)(4).
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20 C.F.R.

Between steps three and four, the ALJ must also assess a claimant’s RFC.
RFC is defined as “that which an individual is still able to do despite the
limitations caused by his or her impairment(s).” Burnett v. Comm’r of Soc. Sec.,
220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R.
§§416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of
the claimant’s medically determinable impairments, including any non-severe
impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R.
§416.945(a)(2).
At steps one through four, the claimant bears the initial burden of
demonstrating the existence of a medically determinable impairment that prevents
him or her in engaging in any of his or her past relevant work.

42 U.S.C.

§1382c(a)(3)(H)(i)(incorporating 42 U.S.C. §423(d)(5) by reference); 20 C.F.R.
§416.912; Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
Once this burden has been met by the claimant, it shifts to the Commissioner
at step five to show that jobs exist in significant number in the national economy
that the claimant could perform that are consistent with the claimant’s age,
education, work experience and RFC. 20 C.F.R. §416.912(f); Mason, 994 F.2d at
1064.

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Once the ALJ has made a disability determination, it is then the
responsibility of this Court to independently review that finding. In undertaking
this task, this Court applies a specific, well-settled and carefully articulated
standard of review. In an action under 42 U.S.C. § 405(g) to review the decision
of the Commissioner of Social Security denying plaintiff’s claim for disability
benefits, Congress has specifically provided that the “findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive[.]” 42 U.S.C. § 405(g). Thus, when reviewing the
Commissioner’s final decision denying a claimant’s application for benefits, this
Court’s review is limited to the question of whether the findings of the final
decision-maker are supported by substantial evidence in the record. See 42 U.S.C.
§405(g); 42 U.S.C. §1383(c)(3); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198,
200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D.Pa. 2012).
Substantial evidence “does not mean a large or considerable amount of evidence,
but rather such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”

Pierce v. Underwood, 487 U.S. 552, 565 (1988).

Substantial evidence is less than a preponderance of the evidence but more than a
mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of
evidence is not substantial evidence if the ALJ ignores countervailing evidence or
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fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d
1058, 1064 (3d Cir. 1993).
But in an adequately developed factual record, substantial evidence may be
“something less than the weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent [the ALJ’s decision]
from being supported by substantial evidence.”
Comm’n, 383 U.S. 607, 620 (1966).

Consolo v. Fed. Maritime

“In determining if the Commissioner’s

decision is supported by substantial evidence the court must scrutinize the record
as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D.Pa. 2003). The
question before this Court, therefore, is not whether a plaintiff is disabled, but
whether the Commissioner’s finding that she is not disabled is supported by
substantial evidence and was reached based upon a correct application of the
relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1
(M.D.Pa. Mar. 11, 2014)(“[I]t has been held that an ALJ’s errors of law denote a
lack of substantial evidence.”)(alterations omitted); Burton v. Schweiker, 512
F.Supp. 913, 914 (W.D.Pa. 1981)(“The Secretary’s determination as to the status
of a claim requires the correct application of the law to the facts.”); see also Wright
v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990)(noting that the scope of review on

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legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary
review of all legal issues . . . .”).
The ALJ’s disability determination must also meet certain basic substantive
requisites. Most significant among these legal benchmarks is a requirement that
the ALJ adequately explain the legal and factual basis for this disability
determination.

Thus, in order to facilitate review of the decision under the

substantial evidence standard, the ALJ's decision must be accompanied by "a clear
and satisfactory explication of the basis on which it rests." Cotter v. Harris, 642
F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the
ALJ must indicate which evidence was accepted, which evidence was rejected, and
the reasons for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ
must indicate in his decision which evidence he has rejected and which he is
relying on as the basis for his finding.” Schaudeck v. Comm’r of Soc. Sec., 181 F.
3d 429, 433 (3d Cir. 1999). Moreover, in conducting this review we are cautioned
that “an ALJ's findings based on the credibility of the applicant are to be accorded
great weight and deference, particularly since an ALJ is charged with the duty of
observing a witness's demeanor and credibility.’ Walters v. Commissioner of
Social Sec., 127 F.3d 525, 531 (6th Cir.1997); see also Casias v. Secretary of
Health & Human Servs., 933 F.2d 799, 801 (10th Cir.1991) (‘We defer to the ALJ
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as trier of fact, the individual optimally positioned to observe and assess witness
credibility.’).” Frazier v. Apfel, No. 99-715, 2000 WL 288246, *9 (E.D. Pa.
March 7, 2000). Furthermore, in determining if the ALJ's decision is supported by
substantial evidence the court may not parse the record but rather must scrutinize
the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).
B. Legal Benchmarks for the ALJ’s Assessment of Medical Opinion
Evidence
As in this case, Social Security appeals frequently entail review of an
Administrative Law Judge’s assessment and evaluation of competing medical
evidence.
benchmarks.

This evaluation is conducted pursuant to clearly defined legal
The Commissioner’s regulations define medical opinions as

“statements from physicians and psychologists or other acceptable medical sources
that reflect judgments about the nature and severity of [a claimant’s]
impairment(s), including [a claimant’s] symptoms, diagnosis and prognosis, what
[a claimant] can still do despite impairments(s), and [a claimant’s] physical or
mental restrictions. 20 C.F.R. §404.1527(a)(2). Regardless of its source, the ALJ
is required to evaluate every medical opinion received. 20 C.F.R. §404.1527(c).
In deciding what weight to accord to competing medical opinions, the ALJ is
guided by factors outlined in 20 C.F.R. §404.1527(c). “The regulations provide
progressively more rigorous tests for weighing opinions as the ties between the
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source of the opinion and the individual become weaker.” SSR 96-6p, 1996 WL
374180 at *2. Treating sources have the closest ties to the claimant, and, therefore,
their

opinions

generally

entitled

to

more

weight.

See

20

C.F.R.

§404.1527(c)(2)(“Generally, we give more weight to opinions from your treating
sources...”); 20 C.F.R. §404.1502 (defining treating source).

Under some

circumstances, the medical opinion of a treating source may even be entitled to
controlling weight. 20 C.F.R. §§04.1527(c)(2); see also SSR 96-2p, 1996 WL
374188 (explaining that controlling weight may be given to a treating source’s
medical opinion only where it is well-supported by medically acceptable clinical
and laboratory diagnostic techniques, and it is not inconsistent with the other
substantial evidence in the case record).
Where no medical source opinion is entitled to controlling weight, the
Commissioner’s regulations direct the ALJ to consider the following factors, where
applicable, in deciding the weight given to any non-controlling medical opinions:
length of the treatment relationship and frequency of examination; nature and
extent of the treatment relationship; the extent to which the source presented
relevant evidence to support his or her medical opinion, and the extent to which the
basis for the source’s conclusions were explained; the extent to which the source’s
opinion is consistent with the record as a whole; whether the source is a specialist;
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and, any other factors brought to the ALJ’s attention. 20 C.F.R. §404.1527(c).
Many of these factors, which focus on the extent and nature of the doctor–patient
relationship, call for greater attention to be given to treating and examining source
opinions in making a disability evaluation.
At the initial level of administrative review, State agency medical and
psychological consultants may act as adjudicators. See SSR 96-5p, 1996 WL
374183 at *4. As such, they do not express opinions; they make findings of fact
that become part of the determination. Id. However, 20 C.F.R. §404.1527(e)
provides that at the ALJ and Appeals Council levels of the administrative review
process, findings by nonexamining State agency medical and psychological
consultants should be evaluated as medical opinion evidence. As such, ALJs must
consider these opinions as expert opinion evidence by nonexamining physicians
and must address these opinions in their decisions. SSR 96-5p, 1996 WL 374183
at *6. Opinions by State agency consultants can be given weight “only insofar as
they are supported by evidence in the case record.” SSR 96-6p, 1996 WL 374180
at *2. In appropriate circumstances, opinions from nonexamining State agency
medical consultants may be entitled to greater weight than the opinions of treating
or examining sources. Id. at *3.

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Oftentimes, as in this case, an ALJ must evaluate a number of medical
opinions tendered by both treating and non-treating sources. Judicial review of this
aspect of ALJ decision-making is guided by several settled legal tenets. First,
when presented with a disputed factual record, it is well-established that “[t]he ALJ
– not treating or examining physicians or State agency consultants – must make the
ultimate disability and RFC determinations.” Chandler v. Comm’r of Soc. Sec.,
667 F.3d 356, 361 (3d Cir. 2011). Yet, it is also well-settled that, “[w]here, . . . ,
the opinion of a treating physician conflicts with that of a non-treating, nonexamining physician, the ALJ may choose whom to credit but ‘cannot reject
evidence for no reason or for the wrong reason.’ ” Morales v. Apfel, 225 F.3d 310,
317 (3d Cir. 2000). Further, there is a necessary corollary to these guiding legal
principles.

When a non-examining non-treating source offers an opinion on

disability which does not adequately address or account for other countervailing
medical evidence, and conflicts with treating source opinions, that opinion
typically does not carry the requisite degree of weight to sustain the
Commissioner’s burden of proof. See e.g., Minner v. Astrue, Com'r, Soc. Sec.
Admin., 741 F. Supp. 2d 591 (D. Del. 2010); Dougherty v. Astrue, 715 F. Supp. 2d
572 (D. Del. 2010); Gonzalez v. Astrue, 537 F. Supp. 2d 644, 647 (D. Del. 2008).

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C. A Remand is Necessary Here to Further Evaluate the Decision to
Reject All Treating and Examining Source Opinions
Judged by these legal benchmarks we find that a remand is necessary here.
In this case we are presented with a striking circumstance. It appears that every
treating and examining source that considered Franklin’s case found that she
suffered from severe right arm impairments. Furthermore, the vocational expert
who testified in this matter stated that, if these impairments were as restrictive as
the treating and examining sources described them to be, Franklin could not work.
Yet, Franklin’s disability application has been denied based upon an opinion from
a non-examining, non-treating source who has never seen Franklin, and who
acknowledges her right arm impairment without analyzing it or addressing the
multiple medical opinions which indicate that this impairment may be disabling.
Further, in choosing to give significant weight to this less informed opinion, the
ALJ summarily discounted the more thorough and factually grounded views of
both the treating and examining doctors.

The ALJ also did not address, or

acknowledge, the fact that this non-treating and non-examining physician did not
analyze the conflicting medical opinions in this case. The ALJ’s reliance on this
non-treating, and non-examining source also neglected to address the fact that this
medical source, which the ALJ afforded substantial weight, seemed to
acknowledge, but not assess, Franklin’s right arm impairment stating, without
21

explanation, that Franklin experienced “impingements[] of rt. shoulder (dominant
side)”, (Tr. 96.), and observing that Franklin was “limited in upper extremities
Right.” (Tr. 95.)
More is needed here before we can conclude that this decision is supported
by substantial evidence. Recognizing that “[w]here, . . . , the opinion of a treating
physician conflicts with that of a non-treating, non-examining physician, the ALJ
may choose whom to credit but ‘cannot reject evidence for no reason or for the
wrong reason,’ ” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000), we find that
the ALJ’s cursory treatment of these treating and examining medical opinions does
not provide an adequate explanation for the ALJ’s decision to reject the opinion of
every doctor who actually treated or examined Franklin. Furthermore, mindful of
the fact that when a non-examining non-treating source offers an opinion on
disability which does not adequately address or account for other countervailing
medical evidence, and conflicts with treating source opinions, that opinion
typically does not provide the requisite degree of proof to sustain a decision
denying benefits; see e.g., Minner v. Astrue, Com'r, Soc. Sec. Admin., 741 F.
Supp. 2d 591 (D. Del. 2010); Dougherty v. Astrue, 715 F. Supp. 2d 572 (D. Del.
2010); Gonzalez v. Astrue, 537 F. Supp. 2d 644, 647 (D. Del. 2008), we find that

22

this non-treating, non-examining source opinion rendered in this case is
insufficient to carry the Commissioner’s burden of proof.
In our view, this non-treating, non-examining source opinion is flawed in
several regards.

First, that opinion does not address or acknowledge the

countervailing medical opinion evidence supporting Franklin’s claimed physical
limitations, something that we believe should be done before the non-treating
source opinion maybe given substantial weight. Further, that non-treating, nonexamining source opinion seems flawed and incomplete in another material
respect. That opinion acknowledges, without any meaningful analysis Franklin’s
right arm impairment stating, without explanation, that Franklin experienced
“impingements[] of rt. shoulder (dominant side)”, (Tr. 96.), and observing that
Franklin was “limited in upper extremities Right.” (Tr. 95.) Thus, the opinion
confirms the existence of any impairment that other doctors find to be severe but
provides no informed assessment of that impairment. Finally, this August 2014
non-treating source opinion necessarily cannot and does not address the subsequent
material findings of severe right arm impairment made in the Fall of 2015 by
Franklin’s treating physician, Dr. Karazim-Horchos.

The opinion, which was

rendered on August 18, 2014, also cannot be viewed as reflecting any fully-

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informed consideration of Dr. Wellner’s examination findings, since those
examination findings were also made on August 18, 2014.
Taken together, these shortcomings in the analysis of the medical evidence
compel us to conclude that a remand is necessary in order to permit a more
fulsome treatment of this medical evidence. Yet, while case law calls for a remand
and further proceedings by the ALJ in this case assessing this claim and these
medical opinions, nothing in our opinion should be construed as suggesting what
the outcome of that final and full analysis should be. Rather, that final assessment
of the evidence must await a thorough consideration and development of this
evidence on remand by an ALJ. Therefore, nothing in this opinion should be
deemed as expressing an opinion on what the ultimate outcome of any
reassessment of this evidence should be. Rather, that task should remain the duty
and province of the ALJ on remand.
IV.

Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED that the plaintiff’s

request for a new administrative hearing is GRANTED, the final decision of the
Commissioner denying this claim should be vacated, and this case should be
remanded to the Commissioner to conduct a new administrative hearing pursuant

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to 42 U.S.C. §405(g). IT IS FURTHER ORDERED that final judgment should be
entered in favor of the plaintiff and against the Commissioner of Social Security.
An appropriate form of order follows.
So ordered this 9th day of August, 2017.

s/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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