Watkins v. Astrue

Filing 18

MEMORANDUM Magistrate Judges Report and Recommendation (Doc. 15). Plaintiffs appeal of the Commissioners denial of benefits (Doc. 1) is granted, and the case is remanded for further consideration consistent with this Memorandum. An appropriate Order is entered simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 5/8/13. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHELLE WATKINS,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,1
Defendant.

:
:CIVIL ACTION NO. 3:11-CV-1635
:
:(JUDGE CONABOY)
:(Magistrate Judge Carlson)
:
:
:
:
:
:

___________________________________________________________________
MEMORANDUM
Here we consider an appeal from the Commissioner’s denial of
Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under Titles II and XVI of the Social Security Act
(“Act”), 42 U.S.C. §§ 401-433, 1381-1383f.

(Doc. 1.)

The matter

was referred to Magistrate Judge Martin C. Carlson who issued a
Report and Recommendation on March 21, 2013, recommending the
Commissioner’s decision be upheld.

(Doc. 15 at 29.)

For the

reasons discussed below, we conclude this matter is properly
remanded to the Commissioner for further consideration.
I. Background
A. Procedural Background
Plaintiff applied protectively for DIB and SSI on July 2,

1

As noted by Defendant, Carolyn W. Colvin became the Acting
Commissioner of Social Security on February 14, 2013. (Doc. 17 at
1 n.1.) Substitution of Carolyn W. Colvin for Michael J. Astrue is
appropriate pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure and the last sentence of 42 U.S.C. § 405(g). (Id.)

2008.

(R. 51, 155-70.)

She reported that she had become disabled

within the meaning of the Act on December 1, 2005.

(R. 165.)

Plaintiff listed her impairments as “[s]everal herniated disks,
arthritis, fibromyalgia, depression.”

(R. 156.)

In a Notice of

Disapproved Claim, the Social Security Administration stated
Plaintiff did not qualify for benefits because she was not disabled
under applicable rules.

(R. 94.)

Plaintiff requested a hearing

before an administrative law judge (“ALJ”) (R. 116), and a hearing
was held before ALJ David A. Gerard on January 25, 2010 (R. 64).
Plaintiff, who was represented by counsel, appeared and testified
at the hearing.

(R. 64-86.)

The ALJ found Plaintiff was not

disabled under the Act and denied her application.

(R. 51-58.)

A

timely appeal was taken to the Appeals Council, and on July 21,
2011, the Appeals Council denied Plaintiff’s request for review,
making the ALJ’s decision the decision of the Commissioner.

(R.

1.)
On November 6, 2011, Plaintiff filed a Complaint with this
Court objecting to the Commissioner’s final decision and requesting
remand to the Commissioner.
on November 4, 2011.

(Doc. 1.)

(Doc. 7.)

Defendant filed an answer

Pursuant to Local Rules 83.40.4

and 83.40.5 Plaintiff filed her brief in support of her appeal of
the denial of her claim on December 29, 2011 (Doc. 11) and
Defendant filed her brief on February 1, 2012 (Doc. 12).
filed a reply brief on February 10, 2012. (Doc. 13.)

2

Plaintiff

As noted

above, the matter was referred to Magistrate Judge Martin C.
Carlson who issued a Report and Recommendation on March 21, 2013,
recommending the Commissioner’s decision be upheld.
29.)

(Doc. 15 at

Plaintiff filed objections to the Report and Recommendation

on April 1, 2013.

(Doc. 16.)

objections on April 11, 2013.

Defendant filed a response to the
(Doc. 17.)

Plaintiff has not filed

a reply brief and the time for doing so has passed.

Therefore,

this matter is ripe for disposition.
B. Factual Background
Plaintiff was born in July 28, 1971.

(R. 169.)

She graduated

from high school, attended two years of college, and had training
in medical transcription.

(R. 189.)

Her work background included

jobs as a cleaner, kindergarten teacher, chiropractic assistant,
data entry operator, office assistant, and secretary.

(R. 185.)

The job she had the longest was that of kindergarten teacher, a
position she held from August of 1994 to May of 2001.

(R. 185.)

Her work record reflected consistent earnings from 1990 through the
year she became disabled with the exception of 2002.

(R. 172-179.)

As noted above, the impairments listed in Plaintiff’s
application were “[s]everal herniated disks, arthritis,
fibromyalgia, depression.”

(R. 156.)

She also alleges that she

suffered from a chronic abdominal pain disorder following multiple
abdominal surgeries.

(Doc. 11 at 2.)

3

1.

Chronic Abdominal Pain2
Plaintiff states that her chronic abdominal pain began after

surgery for an ovarian cyst in 2005.

(Id. (citing R. 261, 273).)

Plaintiff had surgery in March 2006 for endometriosis, but she
states this did not relieve her pain.
326-50, 353-56).)

Plaintiff required hospital admission in

February 2007 due to pelvic pain.
68).)

(Id. at 3 (citing R. 312-16,

(Doc. 11 at 3 (citing R. 365-

After reporting worsening pelvic pain to her physicians in

April 2008, Plaintiff received additional evaluation and treatment
and eventually saw Diana Wallace, M.D., in September of 2008.
(Doc. 11 at 3 (citing R. 217-20, 232-33, 238-39, 241, 243, 247,
261, 264).)
Dr. Wallace performed a laparoscopy on September 18, 2008, and
reported a postoperative diagnosis of extensive abdominopelvic
adhesions.

(R. 262.)

At a September 24, 2008, visit, Dr. Wallace

noted Plaintiff was doing well but, though improved, she still had
left lower quadrant (“LLQ”) pain.

(R. 259.)

Dr. Wallace further

noted that this is the area where the largest cone of adhesions was
located.

(Id.)

continued. (Id.)

Plaintiff asked about a plan if the pelvic pain
Dr. Wallace noted she would consider three

possibilities: surgical referral, GI referral, and chronic (pelvic)
pain clinic referral.

(Id.)

2

In setting out evidence related to specific impairments, we
focus on the evidence of record referenced in the parties’ briefs
and the ALJ’s Decision.
4

On September 30, 2008, Plaintiff reported to Dr. Wallace that
she was “in great pain,” mostly in the LLQ.

(R. 259.)

Dr. Wallace

noted that Plaintiff said she was taking oxycontin and motrin,
neither of which Dr. Wallce had prescribed).

(Id.)

Based on

Plaintiff’s reports, Dr. Wallace noted that she was inclined to
refer Plaintiff to the pain clinic for chronic pain management.
(Id.)

Dr. Wallace further noted that Plaintiff’s pain might be due

to the adhesive disease she had, but other causes should be
explored.

(Id.)

Thomas Celello, M.D., conducted a consultative examination on
November 7, 2008.3

(R. 273.)

In his physical examination of

Plaintiff’s abdomen, he noted there was tenderness on palpation
along the course of the left colon with no masses or organomegaly
detected, and active bowel sounds.

(R. 275.)

His assessment

included a finding of “[c]hronic abdominal pain.
yet to be elucidated.”

Full etiology has

(Id.)

On January 4, 2010, Douglas Brenneman, D.O., Plaintiff’s
treating physician, reported that subjectively Plaintiff “presents
with c/o Abdominal pain Cont with abdominal pain on the left side
that is severe with activity.
(R. 381.)

Lying down seems to help symptoms.”

Objectively, he summarized his examination of the

abdomen: “soft, non-distended, bowel sounds present, tender LLZ, no

3

This is the only evidence cited by Defendant regarding
Plaintiff’s chronic pelvic pain in the Brief of Defendant. (Doc.
12 at 5.)
5

rebound, no guarding, no rigidity.”

(R. 381.)

In his analysis of Plaintiff’s abdominal pain, the ALJ notes
that “claimant presents with very limited medical findings.”
55.)

(R.

Acknowledging that Plaintiff “eventually underwent

laparoscopy and hysterectomy for her pain,” specific evidence of
record cited is a 2007 colonoscopy which was normal, 2008 hip and
pelvic x-rays which were normal “with no signs of pelvic masses
despite the claimant’s ongoing complaints of pelvic pain,” and an
April 2008 examination where it was recorded that “she was noted to
be in no acute distress and was told that her pain was of a
questionable etiology.

(R. 55 (citing Exhibits 1F and 11F).)

The

ALJ also, without citation, refers to an August 2008 report showing
that “the claimant’s CT angiogram and ultrasound of the abdomen
were completely unremarkable, and that she had no edema of her
lower extremities and a soft, obese abdomen with tenderness focally
in the left lower quadrant to palpation with positive bowel
sounds.”
findings.

(R. 55.)

The ALJ cites Dr. Celello’s November 2008

(R. 55 (citing Ex. 6F).)

He also cites Dr. Brenneman’s

January 4, 2010, progress note which shows that
the claimant presented with ongoing abdominal
pain on the left side but denied change in
bowel habits, diarrhea, nausea, rectal
bleeding, vomiting or weight loss, had no
rebound, guarding or rigidity of the abdomen
despite complaints of tenderness, normal
extremity range of motion with no edema, and
that her abdominal pain continued to be of an
unknown etiology.
(R. 55 (citing Ex. 13F (R. 381)).)
6

2.

Fibromyalgia
Plaintiff identifies fibromyalgia as an additional physical

impairment.

(Doc. 11 at 4 (citing R. 231, 238, 261, 275, 282, 312,

363, 365).)

Most of these citations refer to fibromyalgia as a

“past medical history” condition and many include it in the
“assessment” portion of the report or treatment notes.
R. 238, 275.)

(See, e.g.,

In his November 7, 2008, consultative examination,

Dr. Celello reports that “Ms. Watkins states that she was diagnosed
as having fibromyalgia four to five years ago when she had
complaints of diffuse joint pain and fatigue.”

(R. 274.)

The

Physical Residual Functional Capacity Assessment lists history of
fibromyalgia as an alleged impairment and states that “[t]he
medical evidence establishes medically determinable impairments of
Chronic Abdominal Pain, Chronic Back Pain Lumbar DDD, h/o
Fibromyalgia, Obesity.”

(R. 282.)

Plaintiff testified her physician at the time, Lance Sweeney,
had performed the trigger point assessments but she could not
remember how many active trigger points she had.

(R. 77.)

She

stated “I know it’s in the back of my neck and my lower back, and
my legs and my knees. . . . And my arms. . . . Well I have all over
joint pain.”

(R. 77.)

She testified that Dr. Brenneman (Douglas

Brenneman, D.O.) was treating her for the condition and that he was
treating her with ibuprofen because she does not have insurance to
cover other medicine offered.

(R. 77-78.)

7

Defendant merely mentions the impairment and associates it
with the chronic pain/joint pain discussed by the ALJ.

(See Doc.

12 at 9; Doc. 17 at 2-3.)
The ALJ found Plaintiff to have the severe impairment of
“chronic pain disorder” and noted that Plaintiff testified that
“she has constant joint and back pain.”

(R. 54.)

No specific

citations accompany these statements.
3.

Degenerative Spine Disease
Plaintiff identifies degenerative spine disease as an

additional physical impairment.

(Doc. 11 at 4.)

On April 29,

2008, Plaintiff was seen at the York Hospital Orthopedic Clinic for
left hip and groin pain.

(R. 247.)

Plaintiff reported she had

problems with her back in the past for which she received physical
therapy.

(Id.)

Objectively, Plaintiff was found to be

a pleasant 36-year-old female, no acute
distress, sitting comfortably in a chair.
Abdomen - she is obese. Musculoskeletal she has full range of motion with flexion and
extension as well as internal and external
rotation in the hip. She has no tenderness
with palpation over the groin or any specific
area over the hip. Trochanteric bursa is not
painful. She has no deformities noted.
Hip x-ray shows no acute pathology and
review of the spinal x-ray from September
shows she does have some degenerative joint
disease in the spine.
(R. 247.)

The Assessment states that the left hip and groin pain

was likely referred pain from some degenerative changes in her
back.

(Id.)

The “plan” for treatment included consultation with a
8

physical therapist for strengthening exercises and referral to the
pain clinic for consideration for epidural injections into the back
to help improve the pain.

(Id.)

Plaintiff visited the Orthopedic Clinic again on May 22, 2008,
after she had an MRI examination of her lumbar spine.

(R. 243.)

Plaintiff’s chief complaints were low back and left hip pain.
(Id.)

Objective findings reported that
[t]he patient is an obese 36-year-old female
who is in no apparent distress. She has
tenderness to palpation over her left lumbar
spine. She has equivocal straight-leg-raise
signs bilateral lower extremities. She has
5/5 muscle strength with dorsiflexion,
plantar flexion, great toe extension, knee
flexion and knee extension, hip flexion and
bilateral lower extremities. Sensation is
slightly decreased over her L5 dermatone on
the left. The remainder of her sensory exam
to light touch is within normal limits.

(R. 243.)

Under the heading “Diagnostic Studies,” the report

indicates that
X-rays of her thoracolumbar spine were
reviewed. She has a mild levoscoliosis with
apex at the L2 to the left. She has some
degenerative changes throughout her
thoracolumbar spine. There does not appear
to be any evidence of a spondylosis or
spondylolisthesis at this time, however,
these are supine films and not standing.
MRI of her lumbar spine was also
reviewed. She has diffuse degenerative
changes throughout with some facet
hypertrophy at the levels of L4-5 and L5-S1.
She has broad-based disk bulge on the left at
L2-3 as well as a bulge on the left of the
L3-4 and L4-5. She does have some L4-5
foraminal stenosis on the left as well.
9

(R. 243.)

The “Assessment” states “[d]egenerative disk disease of

lumbar spine with degenerative joint disease of the facets
throughout her lumbar spine.”

(Id.)

The “Plan” consists of the

following:
1.

2.

3.

4.
5.

6.

At this time, the patient was given a
prescription for a Medrol Dosepak and
Valium 5 mg to use as a muscle relaxer.
She was also given a prescription for
tramadol.
She is already scheduled for epidural
injections for her lumbar spine on July
2, 2008. She should follow up with
orthopedic clinic after her epidural
steroid injections.
If she fails to have any relief, she
should have standing flexion-extension
films of her lumbar spine to see if shes
has any sort of instability.
The patient also may benefit from a
diskogram.
The patient was also instructed that she
should mention to her family doctor
about the swelling in her left lower
quadrant area and she was told that this
is most likely not related to her back
or hip area.
She should also consider being followed
up by her general surgeon and/or her
obstetrics/gynecologist to be evaluated
for possible hernia, possible absess as
I do not know what else this could be.

(R. 244.)
On January 4, 2010, Douglas Brenneman, D.O., reported that
Plaintiff’s extremities were within normal range of motion with no
edema.
4.

(R. 381.)

Mental Impairment
In support of her mental impairment, Plaintiff points to

10

evidence of record which supports a finding that her mental
impairment is severe.

(Doc. 11 at 8 (citing R. 76, 188, 208, 212,

261, 264, 274, 284-85, 363, 365, 381-82).)
At the time of the ALJ hearing, January 2010, Plaintiff was
taking forty milligrams of Prozac daily for depression and
melatonin to help her sleep.

(R. 76.)

She was taking Fluoxetine

for depression when a Disability Report was completed in August
2008.

(R. 188.)

In a Function Report completed on September 1,

2008, Plaintiff indicated she had been taking the Fluoxetine since
2006.

(R. 208.)

Plaintiff reported depression and sleep

disturbance as well as taking Fluoxetine in the patient history
completed on September 3, 2008, in the office of Diana Wallace,
M.D.

(R. 264.)

At her consultative appointment with Thomas

Celello, M.D., on November 7, 2008, Plaintiff was noted to
experience anxiety and depression which was treated with 40
milligrams of Fluoxetine daily and Diazepam, 5 milligrams every six
hours as needed.

(R. 274.)

In the course of a clinical

psychological examination and review of documents performed by
Anthony J. Fischetto, Ed. D., on December 22, 2008, comments
include the observation that Plaintiff drove to the appointment
accompanied by a neighbor and she was able to smile and joke
around.

(R. 284.)

Plaintiff reported that “she gets depressed a

little bit from the physical conditions, gets angry at times,” she
had no psychiatric hospitalizations, she had been on Prozac for the

11

last three years which “helps a little bit,” and she was getting
counseling on a Christian counseling center.

(Id.)

Dr. Fischetto

reported that when Plaintiff was asked “why she cannot work now,
she said because of her pain in the left side and not because of
any psychiatric or psychological problems.”

(R. 285.) His

diagnosis included “adjustment disorder with depressed mood at
times due to pain,” and “stress from the pain.”

(R. 287.)

In the

“Effect of Impairment on Function” portion of the Report, Dr.
Fischetto found that Plaintiff was able to drive except when she
had pain, she was unable to shop because of pain, she can cook once
a week, and she does not keep up with housework because of pain.”
(R. 287.)

He concluded that Plaintiff had “[a]djustment disorder

with depressed mood at times due to physical problems . . . with no
impairment on her work, she says.”

(R. 288.)

In January of 2010,

Dr. Brenneman noted that her mood was depressed but she denied
thoughts of hurting herself.

(R. 381.)

He assessed that she had

depressive disorder, generalized anxiety disorder and insomnia.
(R. 382.)

The depressive disorder was to be treated with

Fluoxetine and the insomnia with over-the-counter melatonin.

(Id.)

The ALJ noted that the a State Agency psychological consultant
concluded Plaintiff’s mental impairment was not severe.

(R. 56

(citing Ex. 9F (December 30, 2008, Psychiatric Review Technique)).)
However, the ALJ found that reports dated subsequent to the
December 2008 opinion “establish sufficient symptomology to make a

12

finding that the claimant’s depression is a severe impairment.
Therefore, this opinion is given little weight.”

(R. 56.)

The ALJ

does not specifically cite to the reports upon which he relies.
5.

Other Evidence
Plaintiff points to evidence showing that she had a roommate

that helped her during the year before her hearing, received help
from her neighbor, and had to lie down repeatedly to relieve pain
after doing any activities.

(Doc. 11 (citing R. 70-72, 232-33,

239).)
II.

Disability Determination Process

The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.4

It is necessary for the

Commissioner to ascertain: 1) whether the applicant is engaged in a

4

“Disability” is defined as the “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 that 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
13

substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her past relevant
work.

If the claimant satisfies this burden, then the Commissioner

must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
can perform.

Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).

The instant decision was initially decided at the fourth
step of the process.

(R. 56.)

The ALJ found Plaintiff could

perform her past relevant work as a receptionist.

(Id.)

In the alternative, the ALJ, “assuming the claimant was not
capable of performing any past work,” proceeded to the fifth step.
(R. 56.)

At the fifth step, the ALJ also determined that Plaintiff

had not been under a disability during the relevant time period–December 1, 2005, through the date of the decision, February 19,

14

2010.

(R. 56-58.)

In his decision issued on February 19, 2010, the ALJ
identified the following specific findings of fact and conclusions
of law:
1.

The claimant meets the insured status
requirements of the Social Security Act
through September 20, 2009.

2.

The claimant has not engaged in
substantial gainful activity since
December 1, 2005, the alleged onset date
(20 CFR 404.1571 et seq., and 416.971 et
seq.).

3.

The claimant has the following severe
impairments: chronic pain disorder and a
history of abdominal surgeries times
three (20CFR 404.1520(c) and
416.920(c)).

4.

The claimant does not have an impairment
or combination of impairments that meets
or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925
and 416.926).

5.

After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a)
and 416.967(a) except the claimant is
limited to standing and walking no more
than 15 minutes at a time and for 2
hours in an 8-hour workday, and needs to
alternate positions at will. In
addition, the claimant can push and pull
up to 5 pounds occasionally stoop,
crouch and kneel, and should avoid
climbing, balancing and crawling, and
working near unprotected heights and
vibrating objects. The claimant should
15

also avoid high paced production piece
work.
6.

The claimant is capable of performing
her past relevant work as a receptionist
(20 CFR 404.1565 and 416.965).

7.

The claimant was born on July 28, 1971
and was 34 years old, which is defined
as a younger individual age 18-44, on
the alleged disability onset date (20
CFR 404.1563 and 416.963).

8.

The claimant has at least a high school
education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not
material to the determination of
disability because using the MedicalVocational Rules as a framework supports
finding that the claimant is “not
disabled,” whether or not the claimant
has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P,
Appendix 2).

10.

Considering the claimant’s age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
national economy that the claimant can
perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)).

11.

The claimant has not been under a
disability, as defined in the Social
Security Act, from December 1, 2005
through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

(R. 53-58.)
III. Standard of Review
A.

Objections to a Report and Recommendation
When a plaintiff files objections to a magistrate judge’s
16

report, the reviewing court conducts a de novo review of those
portions of the report to which objection is made.
636(b)(1).

To warrant de novo review, the objections must be both

timely and specific.
1984).

28 U.S.C. §

Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir.

Local Rule 72.3 of the Local Rules of Court of the Middle

District of Pennsylvania requires the objecting party to
“specifically identify the portions of the proposed findings,
recommendations or report to which objection is made and the basis
for such objections.”

The court may accept, reject or modify, in

whole or in part, the findings made by the magistrate judge.
U.S.C. § 636(b)(1).

28

Uncontested portions of the report are

reviewed for clear error.

Cruz v. Chater, 990 F. Supp. 375, 376-77

(M.D. Pa. 1998).
B.

Review of the Commissioner’s Decision
This Court’s review of the Commissioner’s final decision is

limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

A reviewing court is

“bound by the ALJ’s findings of fact if they are supported by
substantial evidence in the record.”
422, 427 (3d Cir. 1999).
mere scintilla.

Plummer v. Apfel, 186 F.3d

Substantial evidence means “more than a

It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”

Richardson

v. Perales, 402 U.S. 389, 401 (1971); Plummer, 186 F.3d at 427

17

(quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)); see
also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir.
2011).

Therefore, we will not set aside the Commissioner’s final

decision if it is supported by substantial evidence, even if we
would have reached different factual conclusions.

Hartranft, 181

F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d

Cir. 1983) (internal quotation omitted).

An ALJ’s decision can

only be reviewed by a court based on the evidence that was before
the ALJ at the time he or she made his or her decision.

Matthews

v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
IV. Discussion
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
Califano, 606 F.2d 403, 406 (3d Cir. 1979).
18

See Dobrowolsky v.

These proceedings are

not strictly adversarial, but rather the Social Security
Administration provides an applicant with assistance to prove his
claim.

Id.

“These proceedings are extremely important to the

claimants, who are in real need in most instances and who claim not
charity but that which is rightfully due as provided for in Chapter
7, Subchapter II, of the Social Security Act.”

Hess v. Secretary

of Health, Education and Welfare, 497 F. 2d 837, 840 (3d Cir.
1974).

As such, the agency must take extra care in developing an

administrative record and in explicitly weighing all evidence.
Dobrowolsky, 606 F.2d at 406.

Further, the court in Dobrowolsky

noted “the cases demonstrate that, consistent with the legislative
purpose, courts have mandated that leniency be shown in
establishing the claimant’s disability, and that the Secretary’s
responsibility to rebut it be strictly construed.”

Id.

Finally, the Third Circuit has recognized that it is necessary
for the Secretary to analyze all evidence.

If he has not done so

and has not sufficiently explained the weight he has given to all
probative exhibits, “to say that his decision is supported by
substantial evidence approaches an abdication of the court’s duty
to scrutinize the record as a whole to determine whether the
conclusions reached are rational.”

Dobrowolsky, 606 F.2d at 407.

In Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981), the Circuit
Court clarified that the ALJ must not only state the evidence
considered which supports the result but also indicate what

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evidence was rejected.

“Since it is apparent that the ALJ cannot

reject evidence for no reason or the wrong reason, an explanation
from the ALJ of the reason why probative evidence has been rejected
is required so that a reviewing court can determine whether the
reasons for rejection were improper.”

Id. at 706-07.

However, the

ALJ need not undertake an exhaustive discussion of all the
evidence.
2000).

See, e.g., Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.

“There is no requirement that the ALJ discuss in its

opinion every tidbit of evidence included in the record.”
Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004).

Hur v.

Only where the ALJ

rejects conflicting probative evidence must he fully explain his
reasons for doing so.

See, e.g., Walker v. Comm’r of Soc. Sec., 61

F. App’x 787, 788-89 (3d Cir. 2003) (citing Kent v. Schweiker, 710
F.2d110, 114 (3d Cir. 1983)).

Further, the ALJ does not need to

use particular language or adhere to a particular format in
conducting his analysis.
Cir. 2004).

Jones v. Barnhart, 364 F.3d 501, 505 (3d

“[W]here [a reviewing court] can determine that there

is substantial evidence supporting the Commissioner’s decision, . .
.

the Cotter doctrine is not implicated.”

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
Here, the Magistrate Judge determined the ALJ’s decision is
supported by substantial evidence and recommends denial of
Plaintiff’s appeal.

(Doc. 15.)

For the reasons discussed below,

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we disagree with the Magistrate Judge’s recommended disposition.
B.

Plaintiff’s Objections
Plaintiff raises three objections to the Report and

Recommendation: 1) the ALJ did not properly assess all medically
determinable impairments shown by the record (Doc. 16 at 2); 2) the
ALJ did not address relevant evidence that supported her disability
claim (id. at 4); and 3) the ALJ did not follow the Commissioner’s
procedure for evaluating Plaintiff’s mental impairment (id. at 6).
We will discuss each in turn.
1) Assessment of Medically Determinable Impairments
Plaintiff’s first objection addresses the ALJ’s failure to
acknowledge that she suffers from fibromyalgia and he did not
include her degenerative disc disease as a medically determinable
impairment.

(Doc. 16 at 2.)

We agree the ALJ did not properly

consider all of Plaintiff’s impairments.
Defendant does not assert that the ALJ directly considered
fibromyalgia as a disorder or degenerative disc disease as a severe
impairment.

Rather, she argues that both of these conditions are

pain disorders and the ALJ found that Plaintiff had chronic pain as
a severe impairment.

(Doc. 17 at 2-3.)

Defendant also asserts

that remand is not justified for evaluation of an impairment where
the plaintiff fails to establish that any functional limitations
precluded the performance of work which the ALJ found the plaintiff
capable of performing.

(Doc. 17 at 3.)

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The ALJ’s statement that Plaintiff has the severe impairment
of chronic pain disorder is unaccompanied by any explanation.
53.)

(R.

Thus, the Court can only guess at what considerations went

into arriving at the assessment.

This is just the type of

conclusory statement that is “beyond meaningful judicial review.”
Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir.
2000).
This is particularly so because many courts have determined
that a disability case involving a diagnosis of fibromyalgia
presents a particular need for a close examination of the evidence
due to the nature of the disease.

See Henderson v. Astrue, 887 F.

Supp. 2d 617, 636 (W.D. Pa. 2012) (citing Lintz v. Astrue, Civil
Action No. 08-424, 2009 WL 1310646 (W.D. Pa. May 11, 2009)); see
also Perl v. Barnhart, Civil Action No. 03-4580, 2005 WL 579879
(E.D. Pa. Mar. 10, 2005).

Some courts have found error where the

ALJ relied on the lack of objective evidence in making the
determination that the claimant was not disabled.

Id.

“Symptoms

associated with fibromyalgia include pain all over, fatigue,
disturbed sleep, stiffness, and tenderness occurring at eleven of
eighteen focal points.”

Lintz, 2009 WL 1310646, at *7 (citing

Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)).

Particularly

because “fibromyalgia patients often manifest normal muscle
strength and neurological reactions and have a full range of
motion,” Lintz, 2009 WL 1310646, at *7 (quoting Rogers v. Comm’r of

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Soc. Sec., 486 F.3d 234, 244 (6th Cir. 2007) (internal quotation
omitted)), an ALJ must be cautions in relying on objective findings
and undermining subjective ones.

Lintz, 2009 WL 1310646, at *8-11;

Rogers, 486 F.3d at 244-46.
Here Plaintiff has testified that she has been diagnosed with
fibromyalgia, the record reveals a history of fibromyalgia, and
Plaintiff’s complaints include widespread pain, fatigue, and sleep
problems.

Given the symptoms of the disease and Plaintiff’s

objective complaints, “chronic pain disorder” arguably does not
address the array of symptoms that may be associated with
Plaintiff’s fibromyalgia.

Furthermore, although Defendant argues

that remand for consideration of this impairment is not justified
because Plaintiff failed to establish any functional limitations
precluding the performance of sedentary work as described by the
ALJ (Doc. 17 at 3), Plaintiff testified she had limitations which
the vocational expert concluded would preclude her from working if
her testimony were found credible.

(R. 85.)

Similarly, identification of the specific impairments
considered is important because the step two determination of
whether the claimant has a medically determinable impairment that
is severe or a combination of impairments that is severe is based
upon the limitations on an individual’s ability to perform basic
work activities.

“Chronic pain disorder” does not identify the

basis of the pain and, therefore, such a generic identification may

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not accurately reflect the limitations which may be associated with
a specific diagnosis/impairment.

This identification is also

important because incomplete information at step two impacts the
remainder of the evaluation process.

Thus, specific consideration

of Plaintiff’s underlying conditions (which include degenerative
disc disease, fibromyalgia, and chronic abdominal pain) is
preferable to consideration of “chronic pain disorder.”
Because the ALJ did not properly consider all of Plaintiff’s
impairments and because the record contains some evidence of
functional limitations which differ from those established by the
ALJ, we conclude remand is necessary for further consideration
consistent with this opinion.

With this conclusion, we make no

determination as to whether those conditions not considered by the
ALJ are “severe” either alone or in combination with other
impairments.

We further note that we make no determination that

the limitations suggested by Plaintiff (R. 70-74) and her treating
physician (R. 226-229, R. 375-378) are accurate or attributable to
the conditions not specifically considered by the ALJ.
2) Assessment of Evidence Supporting Disability Claim
With this objection, Plaintiff asserts that the ALJ did not
acknowledge her fibromyalgia impairment, did not identify the
weight he accorded her work record, misstated evidence regarding
her living situation and certain activities of daily living, and
did not acknowledge some objective findings related to her

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abdominal pain.

(Doc. 16 at 5.)

Defendant does not dispute Plaintiff’s assessment of the ALJ’s
consideration of the matters noted.

(Doc. 17.)

Rather, Defendant

asserts it was not necessary for the ALJ to specifically
acknowledge/discuss fibromyalgia, Plaintiff’s work record was not
such that it required consideration, and the ALJ adequately
addressed Plaintiff’s daily living activities.

(Doc. 17 at 3-5.)

Because we have determined remand is necessary, we need not
discuss this objection in detail.

In general, a thorough

examination of the record and explanation of decision should
include discussion of these matters.

Of particular note is the the

ALJ’s assessment of Plaintiff’s daily living activities/abilities.
The decision states that “[t]he undersigned also notes for the
record that the claimant lives alone and is generally capable of
caring for herself and her dog, . . . and has not reported being
dependent on others for her needs.”

(R. 55.)

This assessment is

not an accurate reflection of Plaintiff’s hearing testimony
regarding her living situation and reliance upon others.

(R. 71-

73.)

(R. 72.)

Plaintiff does not live alone; she has a roommate.

Plaintiff reported that her roommate washes the dishes and does the
laundry when she cannot do those things.

(Id.)

She further

reported that a neighbor comes over to take her dog out when she is
not able to go down the stairs.

(Id.)

3) Evaluation of Mental Health Impairment
With this objection, Plaintiff asserts the ALJ found she “had
25

a ‘severe’ mental health impairment, depression, but did not adhere
to the Commissioner’s procedure for evaluating it.”
6.)

(Doc. 16 at

Because we find that remand of this case is required, and

because the ALJ’s consideration of Plaintiff’s mental health
impairment is somewhat confusing (e.g., it is not listed at step
two as a “severe” impairment (R. 53), but is noted to be found a
severe impairment later in the ALJ’s discussion of the RFC at step
four (R. 54)), more thorough consideration and explanation of this
issue is directed.
V. Conclusion
For the reasons discussed above, we do not adopt the
Magistrate Judge’s Report and Recommendation (Doc. 15).
Plaintiff’s appeal of the Commissioner’s denial of benefits (Doc.
1) is granted, and the case is remanded for further consideration
consistent with this Memorandum.

An appropriate Order is entered

simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: May 8, 2013 _______________________

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