Fell v. Astrue

Filing 15

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, this case must be remanded to the Commissioner for further consideration consistent with this opinion. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 11/25/13. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TERI FELL,

:
:CIVIL ACTION NO. 3:12-CV-275
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
MICHAEL J. ASTRUE,
:
COMMISSIONEROF SOCIAL
:
SECURITY,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Plaintiff’s 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 Administrative Law Judge (“ALJ”) who originally evaluated the
claim found that Plaintiff had the residual functional capacity to
perform sedentary work with certain limitations and so denied
Plaintiff’s claim for benefits.

(R. 17, 24-25.)

With this action,

Plaintiff argues that the determination of the Social Security
Administration is error for three reasons: 1) the ALJ’s
determination that Plaintiff’s severe impairments are limited to
her lumbar spine is not supported by substantial evidence; 2) the
ALJ’s conclusion that Plaintiff did not meet or equal impairment
listing 1.04A is not based on substantial evidence; and 3) the
ALJ’s conclusion that Plaintiff retains the residual functional
capacity to do sedentary type work is not based on substantial

evidence.

(Doc. 12 at 4-5.)

For the reasons discussed below, we conclude remand to the
Commissioner is required.
I. Background
On August 18, 2008, Plaintiff protectively filed applications
for Title XVI Supplemental Security Income (R. 106) and Title II
Disability Insurance benefits (R. 109).

Plaintiff, whose date of

birth is September 22, 1982, claimed disability beginning on June
5, 2008.

(R. 106.)

Plaintiff listed the illnesses, injuries, or

conditions that limited her ability to work as “back injury with
bulging disc, arthritis, depression and bipolar disorder.”
129.)

(R.

She added that she could not sit or stand for long periods,

could not turn her body, and was very limited on what she could do.
(Id.)
Plaintiff had past work as a fast food worker and manager,
concession stand clerk, and bus clerk.
134.)

(R. 25, 55, 73-74, 106,

Plaintiff, who obtained a general education diploma in 2002,

is a single mother of two children, ages seven and four in January
2010.

(R. 54-55.)

The Social Security Administration denied Plaintiff’s
application by decision dated December 23, 2008.

(R. 82-91.)

On

February 23, 2009, Plaintiff filed a timely Request for Hearing
before an Administrative Law Judge.

(R. 93.)

On January 8, 2010,

ALJ Paul McAdam held a hearing at which Plaintiff and a vocational

2

expert (“VE”) testified.

(R. 48-78.)

In response to the question of why she was unable to work,
Plaintiff testified that it was the pain: that it hurt to stand
more than 10 to 15 minutes, hurt to walk and bend over.
stated “[i]t hurts to do pretty much anything.
anything.”

(R. 57-58.)

Plaintiff

I can’t lift

She reported the pain to be in her lower,

mid, and upper back, but primarily in the lower back.

Plaintiff

described the pain as “feel[ing] like there’s something digging
into my lower back and twisting and the pain radiates down my right
leg. And my middle and upper back are very stiff and feels like
there’s constantly pressure, constant muscle spasms that are very
painful.”

(R. 58.)

At the time of the hearing, Plaintiff was taking Vicodin,
Flexeril, and Mobic for pain.

(R. 59.)

Plaintiff noted that

treating physician, Leroy Pelicci, M.D., had discussed surgery with
her but he wanted to see what else he could do.

(R. 60-61.)

Plaintiff said whe was seeing Dr. Pelicci on a monthly basis and
was in the process of being scheduled for additional physical
therapy.

(R. 60.)

Plaintiff reported that there are days she cannot get out of
bed, get up the stairs, and tend to her children because of the
pain, that medication relieves some pain and the effectiveness of
the medication varies.
five to ten pounds.

(R. 58-59.)

(R. 61.)

Plaintiff stated she can lift

When questioned about walking,

3

Plaintiff testified that she tries not to because it hurts but she
could probably go up to a city block on a good day.

(R. 61.)

She

noted that she has to switch positions or lie down after sitting
for twenty minutes.

(R. 62.)

Plaintiff avoids bending and her

right hand goes numb about two to three times per week for thirty
to forty-five minutes.

(R. 62.)

Plaintiff is able to bathe and

dress herself and do housework.

(R. 62.)

She tries to be involved

with her children’s activities.

(R. 62.)

Plaintiff indicated that

she lies down periodically during the day, generally using a
heating pad, for half hour to an hour to let the pain in her back
ease up.

(R. 64-65, 68.)

Plaintiff stated that about three times

a week she can’t do much of anything but lie down.
those days she gets help from others.

(R. 71.)

On

(R. 71.)

Following Plaintiff’s testimony, the ALJ asked the VE
questions assuming a hypothetical claimant with the same age,
education and work experience as Plaintiff who could occasionally
lift twenty pounds, frequently lift ten pounds, and could stand or
walk about six hours in an eight-hour day.

(R. 74.)

The

hypothetical claimant could occasionally balance, stoop, kneel,
crouch, crawl, use ramps and climb stairs but should never climb
ladders, ropes or scaffolds.

(R. 74.)

The VE stated that the

hypothetical claimant could perform Plaintiff’s past relevant work
as a cashier eroded by fifty percent because approximately fifty
percent of cashiers are offered the opportunity to have a stool.

4

(R. 75.)
The ALJ then added limitations: the hypothetical claimant
could lift and carry up to ten pounds and would be limited to
occupations that require no more than occasional fine fingering
with her right hand and no more than occasional gross handling,
overhead reaching, pushing and pulling with the upper and lower
extremities to include the operation of hand levers and pedals and
overhead work.

(R. 75.)

The VE testified that the hypothetical

claimant could not perform Plaintiff’s past work.

(R. 75.)

The VE

further testified that jobs existed in the local, regional or
national economy that the hypothetical claimant could perform:
video monitor, information clerk and telephone answering service.
(R. 75-76.)

After the ALJ added a sit/stand at will option to this

hypothetical claimant, the VE stated there would be no erosion.
Finally, the ALJ added that the hypothetical claimant would be
absent from work three to five days per month as a result of
symptomatology.

(R. 76.)

for such a claimant.

The VE testified there would be no jobs

(R. 76.)

Plaintiff’s attorney followed up with a question regarding
whether Plaintiff’s testimony about her need to lie down
periodically throughout a typical day would eliminate any
competitive employment.

(R. 77.)

The VE stated that it would.

(R. 77.)
By decision of March 5, 2010, ALJ McAdam found that Plaintiff

5

was not disabled within the meaning of the Social Security Act.
(R. 25.)

He made the following findings of fact and conclusions of

law:
1.

The claimant meets the insured status
requirements of the Social Security Act
through December 31, 2009.

2.

The claimant has not engaged in
substantial gainful activity since June
5, 2008, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).

3.

The claimant has the following severe
impairment: disorders of the back
(discogenic and degenerative)(20 CFR
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, I find that the claimant
has the residual functional capacity to
perform sedentary work as defined in 20
CFR 404.1567(a) and 416.967(a) further
limited as follows: the claimant can
occasionally lift and carry up to 10
pounds; stand, walk and/or sit for 6
hours in an 8 hour workday with an at
will sit/stand option; occasionally use
ramps and stairs but never climb
ladders, ropes or scaffolds, and
occasionally balance, stoop, kneel,
crouch, and crawl; and is limited to
occupations which require no more than
occasional fine fingering with the right
hand and no more than occasional gross
handling, overhead reaching, and pushing
and pulling with the upper and lower
extremities to include the operation of
6

hand levers and pedals and overhead
work.
6.

The claimant is unable to perform any
past relevant work (20 CRF 404.1565 and
416.965).

7.

The claimant was born on September 22,
1982 and was 25 years old, which is
defined as a younger individual age 1844, 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
a 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 June 5, 2008 through
the date of this decision (20 CFR
404.1520(g) and 416.920(g)).

(R. 14-25.)
In explanation of his residual functional capacity
determination, the ALJ stated that he found
the claimant’s medically determinable
7

impairments could reasonably be expected to
cause the alleged symptoms; however, the
claimant’s statements concerning the
intensity, persistence and limiting effects
of these symptoms are not credible to the
extent they are inconsistent with the above
residual functional capacity assessment. The
record evidence simply fails to corroborate
the claimant’s alleged degree of incapacity.
Initially I note that the claimant has
extensive activities of daily living and her
self-reported level of functioning is far
greater than one would expect in the face of
such alleged symptomatology. While I have no
doubt the claimant experiences pain, her
activities of daily living as self-reported
in her function report (Exhibit 4E) and
mirrored in her hearing testimony, suggest
greater capabilities then [sic] her alleged
symptomatology would permit and are far too
substantial to overlook. By her own
consistent reports, the claimant remains able
to provide for her own personal care, cares
for 2 young children which includes getting
them ready for school, walking one to the bus
stop, reading to them, assisting with
homework, playing with them, cooks, cleans,
shops, drives, and handles her finances.
(Exhibit 4E, Hearing Testimony)
(R. 19-20.)
The ALJ then extensively reviewed Plaintiff’s medical records.
Citing numerous diagnostic studies, the ALJ concluded that,
although they “confirm the presence of degenerative disc disease
and radiculopathy, [they] do not disclose findings so severe that
they corroborate the claimant’s alleged degree of incapacity or
support a finding of total disability.”

(R. 20.)

He noted that

the findings of a March 2009 MRI of the lumbar spine did not
“reflect a severe deterioration in the claimant’s condition from
8

previous studies.”

(R. 20.)

The ALJ further found that “objective signs and findings on
physical examinations by various treating or examining physicians
as well as the claimant’s course of treatment and medication
regimen and its effect on her condition are not suggestive of total
disability.”

(R. 20.)

Reviewing the records of treating physicians Emmanuel Jacob,
M.D., and Leroy Pelicci, M.D., the ALJ pointed to record evidence
showing improved function and treatment effectiveness.

(R. 21-22.)

The ALJ noted Plaintiff reported no relief from the steroid blocks
administered by Joseph Paz, D.O.

(R. 22.)

The ALJ also reviewed the October 22, 2008, report of
consultative examiner Toni Jo Parmelee, D.O.

(R. 10.)

Finally, the ALJ reviewed opinion evidence, citing opinions
rendered by Drs. Jacob, Pelicci, Parmelee, State Agency medical
consultant Elizabeth Kanemar, M.D., and the State Workers’
Compensation decision.

(R. 22-23.)

The ALJ accorded little weight

to the opinions of Drs. Jacob and Pelicci that Plaintiff was unable
to work for the following reasons: they address issues which are
reserved to the Commissioner; and “the opinions are inconsistent
with the record evidence as a whole . . . as well as the claimant’s
own activities of daily living and quite simply unfounded.”

(R.

23.)
Finding the opinion of consultative examiner Dr. Parmelee to

9

be “pretty consistent” with the medical evidence of record, the ALJ
concluded her finding that Plaintiff retained the residual
functional capacity for a range of light work with postural
limitations to be a “slight overstatement” of Plaintiff’s lifting
and carrying abilities.

(R. 23.)

Similarly, he accorded “some

weight” to Dr. Kamenar’s opinion that Plaintiff had the residual
functional capacity to perform light work with postural
limitations.

(R. 23.)

The ALJ accorded no weight to the State Workers’ Compensation
decision that Plaintiff was entitled to benefits on the basis that
“[d]eterminations by other government agencies that an individual
is disabled are not binding on the Social Security Administration.”
(R. 23 (citing 20 C.F.R. §§ 404.1504, 416.904).)
As noted above, the ALJ ultimately decided that Plaintiff had
the residual functional capacity to perform sedentary work with
limitations (R. 17) and that jobs exist in the national economy
that Plaintiff can perform (R. 24).

Thus, he determined that

Plaintiff had not been under a disability as defined in the Social
Security Act from June 5, 2008, through the date of his decision,
March 5, 2010.

(R. 25.)

On or about March 23, 2010, Plaintiff filed a timely request
with the Social Security Administrations Appeals Council for
review.

(R. 7.)

In an Order dated December 15, 2011, the Appeals

Council denied Plaintiff’s Request for Review (R. 1), making the

10

ALJ’s decision the decision of the Commissioner.
Plaintiff filed this action on February 10, 2012.

(Doc. 1.)

She filed her brief in support of the appeal on August 4, 2012, in
which she asserts the bases for relief noted above:

1) the ALJ’s

determination that Plaintiff’s severe impairments are limited to
her lumbar spine is not supported by substantial evidence; 2) the
ALJ’s conclusion that Plaintiff did not meet or equal impairment
listing 1.04A is not based on substantial evidence; and 3) the
ALJ’s conclusion that Plaintiff retains the residual functional
capacity to do sedentary type work is not based on substantial
evidence.

(Doc. 12 at 4-5.)

on September 5, 2012.

Defendant filed his opposition brief

(Doc. 13.)

With the filing of Plaintiff’s

reply brief (Doc. 14) on September 19, 2012, this matter became
ripe for disposition.
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.1

It is necessary for the

1

“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
impairments
only unable
considering
experience,

physical or mental impairment or
are of such severity that he is not
to do his previous work but cannot,
his age, education, and work
engage in any other kind of
11

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

As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found there are jobs that

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).
12

exist in the national economy that Plaintiff is able perform.

(R.

24-25.)
III. Standard of Review
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
(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,
13

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).

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
14

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
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
15

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).
B.

Plaintiff’s Alleged Errors
As set out above, Plaintiff asserts the ALJ erred on three

bases:

1) failing to properly consider all of Plaintiff’s spinal

impairments; 2) finding Plaintiff did not meet or equal impairment
listing 1.04A; and 3) concluding Plaintiff retains the residual
functional capacity to do sedentary type work.
1.

(Doc. 12 at 4-5.)

Limitation of Severe Impairments
Plaintiff asserts the ALJ’s determination that Plaintiff’s

severe impairments are limited to her lumbar spine is not supported
by substantial evidence.

(Doc. 12 at 5.)

In support of this

assertion she states “[i]t is evident the Judge only considered the
Plaintiff’s lumbar spine impairment and did not take into
consideration the severe impairments affecting her cervical spine.”
(Doc. 12 at 5.)

Defendant responds that the ALJ’s determination at
16

step two of the sequential evaluation process considered
involvement of her cervical spine.

(Doc. 13 at 12.)

not address Defendant’s response in her reply brief.

Plaintiff did
(Doc. 14.)

We conclude Plaintiff has not met her burden of showing that
the ALJ erred on this basis.

He found that Plaintiff had the

severe impairment of “disorders of the back (discogenic and
degenerative).”

(R. 14.)

The ALJ’s discussion of the medical

evidence includes review of studies, examination and evaluation of
the cervical spine.

(R. 20-22.)

Thus, on the basis of the record

before us, we cannot conclude the ALJ did not consider Plaintiff’s
cervical spine impairment.
2.

Listing Impairment 1.04A
Plaintiff maintains the ALJ’s conclusion that she did not meet

or equal impairment listing 1.04A is not based on substantial
evidence.

(Doc. 12 at 5.)

In support of this assertion Plaintiff

points to Dr. Pelicci’s examination notes and opinions and the
support of consistent reports from other physicians as well as
consistent diagnostic studies.

(Doc. 12 at 7-8.)

Defendant

responds that Plaintiff did not meet her burden of showing that she
had an impairment of listing-level severity–-although she asserts
she meets listing 1.04A, she does not connect supporting evidence
to each required element.

(Doc. 13 at 16.)

Plaintiff replies that

her impairments equal listing 1.04A in that the findings from at
least three of her doctors and objective testing “document severe

17

impairments of both the cervical and lumbar spine” (Doc. 14 at 3)
and it is evident from the ALJ’s analysis of the issue that he
focused exclusively on the lumbar impairment with no attention
given to the cervical impairment (id. at 4).
We conclude that although Plaintiff may not have initially met
her burden on this issue, she is accurate that the ALJ’s analysis
at this step addressed only her lumbar spine impairment.
17.)

(See R.

Because we conclude remand is required on another basis, see

infra, we direct the Commissioner to review this issue on remand.
This determination is based in part on the ALJ’s reported
consideration of the State Agency medical consultant’s opinions
coupled with the ALJ’s notation that “[s]ince the determination was
made, there has been no additional medical evidence submitted that
would support presumptive disability in this matter.”

(Id.)

State Agency consultant’s opinion is dated December 15, 2008.

The
Dr.

Pelicci’s treatment of Plaintiff began in February 2009 and
included examination and diagnostic study with observation and
findings as to all areas of the spine.

(See R. 439-455.)

Of

additional significance is the fact that Dr. Pelicci testified that
Plaintiff’s condition is progressively worsening and evolving over
time.
3.

(R. 394-96.)

Residual Functional Capacity Determination
Finally, Plaintiff contends the ALJ’s conclusion that

Plaintiff retains the residual functional capacity to do sedentary
18

type work is not based on substantial evidence.

(Doc. 12 at 5.)

In support of her argument, Plaintiff points to the reports of her
treating physicians and the ALJ’s lack of deference to these
opinions.

(Doc. 12 at 9-10.)

Defendant asserts that the ALJ

properly considered the treating physicians’ reports and the
treating physicians’ opinions are not entitled to controlling
weight.

(Doc. 13 at 19-22.)

Plaintiff replies that the ALJ’s

inadequate consideration of the record regarding evidence
supporting disability and Plaintiff’s daily activities render the
decision erroneous.

(Doc. 14 at 4-8.)

Upon consideration of the record and relevant legal authority,
we conclude remand is required for reconsideration of the ALJ’s
residual functional capacity determination.
At the outset of our discussion of the issues raised by
Plaintiff’s claimed error, we recognize the Third Circuit Court of
Appeals has specifically acknowledged that “[c]omplaints of
disabling back pain are the most difficult types of claims to
resolve with any degree of certainty.”
412, 415 (3d Cir. 1981).

Taybron v. Harris, 667 F.2d

“This is because the inability to sustain

employment is attributable to symptoms that are often incapable of
objective measurement.”

Cruz v. Chater, 990 F. Supp. 375, 378 n.4

(M.D. Pa. 1998) (citing Taybron, 667 F.2d at 415).

After

discussing the difficulty in resolving such claims at the
administrative level, Taybron noted the similar difficulty in

19

reviewing these claims and set out a reviewing court’s
responsibility.

Taybron, 667 F.2d at 415.

“[I]n order to perform

our function responsibly and in order to insure that the claimant
gets thorough consideration of his claim to which he is entitled,
we believe every effort should be made to secure any medical
evidence that would help resolve doubts about the outcome of the
claim.”

Id.

The “treating physician rule,” is codified at 20 C.F.R.
404.1527(d)(2), and is widely accepted in the Third Circuit.
Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993); see also Dorf v.
Brown, 794 F.2d 896 (3d Cir. 1986).

The regulation addresses the

weight to be given a treating physician’s opinion: “If we find that
a treating source’s opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case, we
will give it controlling weight.”
2

20 C.F.R. § 416.927(d)(2).2

20 C.F.R. § 404.1527(d)(2) states in relevant part:
Generally, we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most
able to provide a detailed, longitudinal
picture of your medical impairment(s) and may
bring a unique perspective to the medical
evidence that cannot be obtained from the
objective medical findings alone or from
reports of individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature
20

“A

cardinal principle guiding disability eligibility determinations is
that the ALJ accord treating physicians’ reports great weight,
especially when their opinions reflect expert judgment based on
continuing observation of the patient’s condition over a prolonged
period of time.”

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.

2000) (citations omitted); see also Brownawell v. Commissioner of
Social Security, 554 F.3d 352, 355 (3d Cir. 2008).

In choosing to

reject the treating physician’s assessment, an ALJ may not make
“speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.”

Morales, 225

F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).
Here the ALJ essentially rejected the opinions of Drs. Jacob

and severity of your impairment(s) is wellsupported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial
evidence in your case record, we will give it
controlling weight. When we do not give the
treating source's opinion controlling weight,
we apply the factors listed in paragraphs
(d)(2)(i) and (d)(2)(ii) of this section, as
well as the factors in paragraphs (d)(3)
through (d)(6) of this section in determining
the weight to give the opinion. We will always
give good reasons in our notice of
determination or decision for the weight we
give your treating source's opinion.
21

and Pelicci that Plaintiff was unable to work, concluding the
opinions address issues reserved to the Commissioner and finding
them to be “inconsistent with the record evidence as a whole as
previously discussed as well as the claimant’s own activities of
daily living and quite simply unfounded.”

(R. 23.)

The problem with this conclusion and the ALJ’s assessment of
related evidence is at least threefold: 1) a treating physician’s
conclusion regarding a claimant’s ability to work should not be
disregarded on the basis that it can be construed as addressing the
ultimate issue of disability reserved to the Commissioner; 2) the
ALJ’s findings regarding Plaintiff’s credibility do not comport
with relevant guidance; and 3) in his review of the record, the ALJ
highlights certain aspects of some reports out of context.
First, we conclude the ALJ improperly rejected the opinions of
Drs. Jacob and Pelicci on the basis that they addressed an issue
reserved for the Commissioner.

In his deposition testimony, Dr.

Pelicci testified “given the amount of symptoms, I don’t think
she’s able to work.”

(R. 400.)

Before expressing his opinion, Dr.

Pelicci explained Plaintiff’s worsening condition (R. 394-96) and
the origin of some of her pain (R. 395), noted that his treatment
provided only temporary relief and she remained quite symptomatic
(R. 396-97), and that he was considering referring her to a
neurosurgeon (R. 397).

Dr. Jacob explained he believed Plaintiff

was unable to engage in any kind of employment because she tried to

22

return to work and this increased her pain and symptoms (R. 307-08)
and, although treatment provided some relief to allow her to
function, the pain intensifies with increased activity (R. 315).
Furthermore, these physicians correlated Plaintiff’s symptoms with
clinical and diagnostic findings.

(See, e.g., R. 314, 395.)

The Third Circuit Court of Appeals has found this type of
treating physician opinion acceptable.
355.

See Brownawell, 554 F.3d at

Our Circuit Court has rejected an ALJ’s discounting of a

treating physician’s indication that a plaintiff is “disabled,”
noting that “[r]ather than focusing on the doctor’s choice of
words, the ALJ was obligated to examine the substantive evidence on
which the physician’s conclusion was based.”

Masher v. Astrue, 354

F. App’x 623, 627-28 (3d Cir. 2009) (not precedential).

With this

guidance, we conclude the ALJ should not have rejected the treating
physicians’ opinions on the basis that they addressed an issue
reserved to the Commissioner.
We now turn to the ALJ’s exclusion of certain evidence on
which the treating physicians’ opinions were based, i.e., their
“inconsist[ency] with record evidence as a whole and the claimant’s
own activities of daily living.”

(R. 23.)

Both doctors’ opinions

were based on evaluation of diagnositic studies, clinical findings
and Plaintiff’s subjective reporting of her pain and limitations.
Because part of the rejection of the treating physicians’ opinions
was based on Plaintiff’s credibility, we will first address the

23

proper consideration of a claimant’s credibility and subjective
reports of pain.
Generally, “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) (citation omitted).
The Social Security Regulations provide a framework under which a
claimant’s subjective complaints are to be considered.
404.1529.

20 C.F.R. §

First, symptoms, such as pain, shortness or breath,

fatigue, et cetera, will only be considered to affect a claimant’s
ability to perform work activities if such symptoms result from an
underlying physical or mental impairment that has been demonstrated
to exist by medical signs or laboratory findings.
404.1529(b).

20 C.F.R. §

Once a medically determinable impairment which

results in such symptoms is found to exist, the Commissioner must
evaluate the intensity and persistence of such symptoms to
determine their impact on the claimant’s ability to work. 20 C.F.R.
§ 404.1529(b).

In so doing, the medical evidence of record is

considered along with the claimant’s statements. 20 C.F.R. §
404.1529(b).

Social Security Ruling 96-7p gives the following

instructions in evaluating the credibility of the claimant’s
statements regarding his or her symptoms:
In general, the extent to which an
individual's statements about symptoms can be
24

relied upon as probative evidence in
determining whether the individual is
disabled depends on the credibility of the
statements. In basic terms, the credibility
of an individual's statements about pain or
other symptoms and their functional effects
is the degree to which the statements can be
believed and accepted as true. When
evaluating the credibility of an individual's
statements, the adjudicator must consider the
entire case record and give specific reasons
for the weight given to the individual's
statements.
SSR 96-7p.
Here there is evidence that Plaintiff’s treating physicians
consider her symptoms consistent with their examinations and
diagnostic findings.

(See, e.g., R. 183-99, 390-96, 439-55.)

As

set out above, the ALJ provides the following reasons for
discounting Plaintiff’s subjective statements about the limitations
of her impairments:
I find the claimant’s medically determinable
impairments could reasonably be expected to
cause the alleged symptoms; however, the
claimant’s statements concerning the
intensity, persistence and limiting effects
of these symptoms are not credible to the
extent they are inconsistent with the above
residual functional capacity assessment. The
record evidence simply fails to corroborate
the claimant’s alleged degree of incapacity.
Initially I note that the claimant has
extensive activities of daily living and her
self-reported level of functioning is far
greater than one would expect in the face of
such alleged symptomatology. While I have no
doubt the claimant experiences pain, her
activities of daily living as self-reported
in her function report (Exhibit 4E) and
mirrored in her hearing testimony, suggest
25

greater capabilities then [sic] her alleged
symptomatology would permit and are far too
substantial to overlook. By her own
consistent reports, the claimant remains able
to provide for her own personal care, cares
for 2 young children which includes getting
them ready for school, walking one to the bus
stop, reading to them, assisting with
homework, playing with them, cooks, cleans,
shops, drives, and handles her finances.
(Exhibit 4E, Hearing Testimony)
(R. 19-20.)
First, we note the ALJ’s statement that Plaintiff’s reports
concerning “the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are not
consistent” with his RFC determination (R. 26) may be a statement
of his assessment of Plaintiff’s subjective reporting, but it does
not provide a valid reason for discounting the alleged symptoms.
Moreover, the ALJ does not mention limitations about which
Plaintiff testified: Plaintiff indicated there were days she could
not do much of anything except lie down and this occurred about
three times per week and on these occasions she gets help from
others to care for her children.

(R. 71.)

As noted in Payton v.

Shalala, 25 F. 3d 684 (8th Cir. 1994),
a claimant need not prove that he or she is
bedridden or completely helpless to be found
disabled. In order to find that a claimant
has the RFC to perform a certain type of
work, the claimant must have the ability to
perform the requisite acts day in and day
out, in the sometimes competitive and
stressful conditions in which people work in
the real world.

26

25 F.3d at 684 (internal quotations and citations omitted).
Here we conclude the ALJ’s limited review of Plaintiff’s
testimony and circular reasoning in discounting her subjective
complaints render his credibility finding without substantial
evidence.

In turn this affects his RFC determination because the

VE, when given a hypothetical which included all of Plaintiff’s
alleged limitations, testified that such a claimant could not be a
productive member of the workforce.

(R. 76-77.)

We also conclude that the ALJ’s review of the record
improperly highlights certain aspects of some reports out of
context.

In addition to the Plaintiff’s credibility considerations

discussed above, the ALJ points to evidence that Plaintiff improved
with treatment and experienced improved functioning.3
R. 21, 22.)

(See, e.g.,

He does not balance these observations with

information in the same report that Plaintiff “has ongoing
symptomology of pain in the cervical, mid and low back area.

She

has significant stiffness in these areas with inflexibility.

It

has been something she continues to struggle with daily.”
441.)

(R.

Similarly, where the ALJ points to effectiveness of

treatment in Dr. Pelicci’s reports (R. 22), he does not note her
significant ongoing problems.

(R. 445, 450, 451, 453, 454, 455.)

3

Our Circuit Court has noted that “a doctor’s observations
that a patient is stable and well controlled with medication during
treatment does not necessarily support the medical conclusion that
the patient can return to work.” Brownawell, 554 F.3d at 356
(internal quotation omitted).
27

Additionally, in his deposition testimony, Dr. Pelicci testified
that relief from trigger point injections is temporary and that she
is still very symptomatic.

(R. 396-97.)

This review of the record indicates the ALJ did not properly
consider evidence which calls into question his reasons for
rejecting Plaintiff’s treating physicians’ opinions.

Therefore, we

cannot say the ALJ afforded proper weight to the opinions of Drs.
Jacob and Pelicci.

Where we cannot say an ALJ has afforded

sufficient weight to a treating physician’s opinion, we cannot say
the ALJ’s decision is supported by substantial evidence and the
case must be remanded.

See, e.g., Brownawell, 554 F.3d at 355; see

also Bryan v. Commissioner of Social Security, 383 F. App’x 140,
150 (3d Cir. 2010) (not precedential); Masher v. Commissioner of
Social Security, 354 F. App’x 623, 628 (3d Cir. 2009) (not
precedential).
V. Conclusion
For the reasons discussed above, this case must be remanded to
the Commissioner for further consideration consistent with this
opinion.

An appropriate Order is filed simultaneously with this

Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: November 25, 2013
28