Keller v. Astrue

Filing 15

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TONYA L. KELLER,
Plaintiff
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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CIVIL No. 3:12-CV-01502
Hon. John E. Jones III

MEMORANDUM
February 20,2014
BACKGROUND
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Tonya L. Keller’s claim for social security
disability insurance benefits.
Keller protectively filed1 her application for disability
insurance benefits on May 18, 2009. Tr.

10, 24, 115-118, 128 and

141.2 The application was initially denied by the Bureau of

1

Protective filing is a term for the first time an individual
contacts the Social Security Administration to file a claim for
benefits. A protective filing date allows an individual to have an
earlier application date than the date the application is actually
signed.
2

References to “Tr. ” are to pages of the administrative
record filed by the Defendant as part of the Answer on October 11,
2012.

Disability Determination3 on September 3, 2009. Tr. 10, 52-53 and
54-58.

On November 3, 2009, Keller requested a hearing before an

administrative law judge. Tr. 10 and 59-60.

After about 11 months

had passed, a hearing was held on October 6, 2010, before an
administrative law judge. Tr. 10 and 22-51. Keller was represented
by

counsel

at

administrative

the
law

hearing.
judge

application. Tr. 10-17.

Id.

issued

On
a

October

decision

22,

2010,

denying

the

Keller’s

As will be explained in more detail infra

the administrative law judge found that Keller had the capacity to
perform

a

limited

range

of

light

work4

and

identified

two

3

The Bureau of Disability Determination is an agency of the
state which initially evaluates applications for disability
insurance benefits on behalf of the Social Security Administration.
Tr. 55.
4

The terms sedentary, light, medium and heavy work are defined
in the regulations of the Social Security Administration as
follows:
(a) Sedentary work. Sedentary work involves lifting no
more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which
involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.
(b) Light work. Light work involves lifting no more
than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is
in this category when it requires a good deal of
walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a
full or wide range of light work, you must have the
2

positions,

an

injection

molding

machine

tender

and

a

toll

collector, which Keller could perform. Tr. 13, 17 and 48. On
November 22, 2010, Keller filed a request for review with the
Appeals Council and after over 17 months had elapsed the Appeals
Council on June 29, 2012, concluded that there was no basis upon
which to grant Keller’s request for review. Tr. 1-6.
Keller then filed a complaint in this court on August 2,
2012.

Supporting and opposing briefs were submitted and the

appeal5 became ripe for disposition on February 13, 2013, when
Keller filed a reply brief.
Disability insurance benefits are paid to an individual if

ability to do substantially all of these activities.
If someone can do light work, we determine that he or
she can also do sedentary work, unless there are
additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
(c) Medium work. Medium work involves lifting no more
than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she
can do sedentary and light work.
(d) Heavy work. Heavy work involves lifting no more
than 100 pounds at a time with frequent lifting or
carrying of objects weighing up to 50 pounds. If
someone can do heavy work, we determine that he or she
can also do medium, light, and sedentary work.
20 C.F.R. § 404.1567.
5

Under the Local Rules of Court “[a] civil action brought to
review a decision of the Social Security Administration denying a
claim for social security disability benefits” is “adjudicated as
an appeal.” M.D.Pa. Local Rule 83.40.1.
3

that individual is disabled and “insured,” that is, the individual
has worked long enough and paid social security taxes. The last
date that a claimant meets the requirements of being insured is
commonly referred to as the “date last insured.”

It is undisputed

that Keller met the insured status requirements of the Social
Security Act through March 31, 2007.

Tr. 10, 12 and 24.

In order

to establish entitlement to disability insurance benefits Keller
was required to establish that she suffered from a disability on
or before that date. 42 U.S.C. § 423(a)(1)(A), (c)(1)(B); 20 C.F.R.
§404.131(a)(2008); see Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir.
1990).
Keller, who was born on November 11, 1964,6 graduated from
high school in 1982 and can read, write, speak and understand the
English

language

and

perform

basic

mathematical

functions,

including counting change, handling a savings account and using a
checkbook and money orders.

Tr. 27, 30, 115, 144, 151 and 160.

During her elementary and secondary schooling, Keller attended
regular education classes. Tr. 29 and 151. After graduating from
high school, Keller successfully completed a one-year nursing
program and became a licensed practical nurse in 1986. Tr. 30 and

6

At the time of the administrative hearing held in this case
Keller was 45 years of age and considered a “younger individual”
whose age would not seriously impact her ability to adjust to other
work. 20 C.F.R. § 404.1563(c). The Social Security regulations
state that “[t]he term younger individual is used to denote an
individual 18 through 49.” 20 C.F.R., Part 404, Subpart P,
Appendix 2, § 201(h)(1).
4

151.
Keller’s work history covers 22 years and at least 6
different employers. Tr. 129-136, 170 and 196. The records of the
Social Security Administration reveal that Keller had earnings in
the years 1980 through 1989 and 1991 through 2002. 129.

Keller’s

annual earnings range from a low of $253.75 in 1983 to a high of
$32,414.29 in 2000. Id.

Keller’s total earnings during those 22

years were $269,205.86. Id.
A vocational expert described Keller’s past relevant
employment history7 as follows: (1) a licensed practical nurse,
skilled, medium work; and (2) a warehouse worker, unskilled, medium
work as customarily performed and light work as actually performed
by Keller. Tr. 16, 44-45 and 194.
Keller initially claimed that she became disabled on
November 23, 2001, because of the pain associated with a back
injury. Tr. 115 and 145. The pain was noted to be in the low back
and radiated to the lower extremities. Tr. 183.

The impetus for

the pain was a work-related incident in April, 2001, where she was
lifting a patient and she felt a popping sensation in her back. Tr.
294 and 363. A claim by Keller under the Pennsylvania Workers’

7

Past relevant employment in the present case means work
performed by Keller during the 15 years prior to the date her claim
for disability was adjudicated by the Commissioner. 20 C.F.R. §§
404.1560 and 404.1565. To be considered past relevant work, the
work must also amount to substantial gainful activity. Pursuant to
Federal Regulations a person’s earnings have to rise to a certain
level to be considered substantial gainful activity.
5

Compensation Act was settled in December, 2009, in favor of Keller
in the amount of $120,000. Tr. 28 and 137-140.
At the administrative hearing, Keller amended the alleged
disability onset date to February 1, 2005. Tr. 24. The reason given
for the amendment was that a treating neurosurgeon, Arnold G.
Salotto, M.D., indicated that Keller on February 1, 2005, was no
longer capable of sustaining full time work activity. Tr. 27. The
administrative law judge accepted the amendment of the alleged
onset date and noted that the hearing would focus on the period
February 1, 2005 through March 31, 2007, the date last insured.8
Tr. 24 and 26.
The disabling impairments alleged at the administrative
hearing by Keller were “lumbar degenerative disc disease status
post total disc replacement at L4/L5"9 and chronic low back pain

8

If an individual establishes disability on or before the date
last insured, the ALJ is required to determine whether that
disability continued through the date of the administrative
hearing. This statement by the ALJ that the hearing would be
limited to the period of time from the amended disability onset
date to the date last insured is troublesome because it presupposes
that Keller would fail to prove that she was disabled on or before
the date last insured.
9

The spine (vertebral column) from the head to the tailbone is
divided into five regions: the cervical (consisting of 7 vertebrae,
C1-C7 in descending order), the thoracic (12 vertebrae, T1-T12 in
descending order), the lumbar (5 vertebrae, L1-L5 in descending
order), the sacrum (5 fused vertebrae, S1-S5 in descending order)
and the coccyx (4 fused vertebrae). Other than the first two
vertebrae of the cervical spine (C1 and C2), the vertebrae of the
cervical, thoracic and lumbar regions are similarly shaped.
A vertebra consists of several elements, including the
vertebral body (which is the anterior portion of the vertebra),
6

with radiculopathy.10 Tr. 24-25.

Keller testified that prior to

pedicles, laminae and the transverse processes. The vertebral body
is the largest part of the vertebra and is somewhat oval shaped.
The endplates are the top and bottom portions of a vertebral body
that come in direct contact with the intervertebral discs.
The intervertebral discs (made of cartilage) are the cushions
(shock absorbers) between the bony vertebral bodies that make up
the spinal column. Each disc is made of a tough outer layer and an
inner core composed of a gelatin-like substance. The outer layer of
an intervertebral disc is called the annulus fibrosus and the inner
core the nucleus pulposus. Jill PG Urban and Sally Roberts,
Degeneration of the intervertebral disc, PublicMedCentral,http:
//www.ncbi.nlm.nih.gov/pmc/articles/PMC165040/(Last accessed
February 18, 2014); see also Herniated Intervertebral Disc Disease,
Columbia University Medical Center, Department of Neurology,
http://www.columbianeurosurgery.org/conditions/herniated-interverte
bral-disc-disease/ (Last accessed February 18, 2014).
Degenerative disc disease is the wear and tear and breakdown
of the intervertebral discs as a person grows older. It is a
process that can result from the dehydration of the discs as well
as an injury to the spine. The breakdown of the intervertebral
discs can result in discs bulging, protruding or herniating as well
as the inner gelatin-like core of the disc extruding outside the
annulus fibrosus. These conditions sometimes obstruct the openings
(foramen) along the spine through which nerve roots exit. This
condition is known as neural foraminal stenosis. They can also
result in a narrowing of the spinal canal or spinal stenosis. Such
bulges, protrusions and herniations if they contact nerve tissue
can cause pain.
Degenerative joint disease (or osteoarthritis) is a breakdown
of the cartilage between joints. In the spine there are facet
joints which are in the back of the spine and act like hinges.
There are two superior (top) and two inferior (bottom) portions to
each facet joint called the superior and inferior articular
processes. These joints are covered with cartilage and the wear and
tear of these joint is known as facet arthropathy (arthritis). This
wear and tear of the facet joints result in loss of cartilage and
can cause pain.
10

Radiculopathy is a condition where one or more nerves or
nerve roots are affected and do not work properly. The nerve roots
are branches of the spinal cord. They carry signals to the rest of
the body at each level along the spine. The nerve roots exit
through holes (foramen) in the bone of spine on the left and the
right. Radiculopathy can be the result of a disc herniation or an
injury causing foraminal impingement of an exiting nerve (the
7

the date last insured of March 31, 2007, she had “mid-back pain
radiating down [her] right buttock to the front of [her] leg the
whole way down to [her] foot, numbness in [her] feet” and radiation
of pain to the left buttock but “not as much” as the right. Tr. 34.
Keller further stated that she stumbles on her feet because of lack
sensation in them. Id.

Keller reported falling because of lack of

feeling in her lower extremities. Tr. 39. During the administration
hearing which lasted 38 minutes Keller had to change from a sitting
to a standing position on several occasions purportedly to relieve
her pain. Tr. 30 and 49.
In a “Function Report - Adult” Keller indicated that she
engages in some activities of daily living, including cooking
simple meals but with the assistance of others. Tr. 157-164.

She

further indicated that she has difficulty engaging in personal
care, including dressing and bathing. Tr. 158. When asked to check
items which are affected by her illnesses or conditions Keller
checked

the

following:

lifting,

bending,

standing,

reaching,

walking, sitting, kneeling, stair climbing, memory, completing
tasks, concentration, following instructions and getting along with
others. Tr. 162.

Keller also stated in documents and testified

at the hearing that because of her pain for a large portion of each
day she is laying on her side with a pillow between her legs and

narrowing of the channel through which a nerve root passes). See,
generally, Radiculopathy, MedicineNet.com, http://www.medicinenet.
com/radiculopathy/article.htm (Last accessed February 18, 2014).
8

that she has side-effects, including drowsiness, confusion and
problems with concentration caused by the narcotic pain medications
which she takes. Tr. 37-39 and 183.
For the reasons set forth below we will remand the case to
the Commissioner for further proceedings.
STANDARD OF REVIEW
When considering a social security appeal, we have plenary
review of all legal issues decided by the Commissioner. See Poulos
v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007);
Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431
(3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir.
1995).

However, our review of the Commissioner’s findings of fact

pursuant to 42 U.S.C. § 405(g) is to determine whether those
findings are supported by "substantial evidence."

Id.; Brown v.

Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994
F.2d 1058, 1064 (3d Cir. 1993).

Factual findings which are

supported

must

§405(g);

by

substantial

Fargnoli

2001)(“Where

the

v.

evidence

Massanari,

ALJ’s

findings

be

upheld.

42

U.S.C.

247

F.3d

34,

38

(3d

of

fact

are

supported

Cir.
by

substantial evidence, we are bound by those findings, even if we
would have decided the factual inquiry differently.”); Cotter v.
Harris, 642 F.2d 700, 704 (3d Cir. 1981)(“Findings of fact by the
Secretary must be accepted as conclusive by a reviewing court if
supported by substantial evidence.”);

9

Keefe v. Shalala, 71 F.3d

1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001);

Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11

(11th Cir. 1990).
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)(quoting
Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938));
Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d
Cir. 2008);

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

Substantial evidence has been described as more than a mere
scintilla of evidence but less than a preponderance.
F.2d

at

1213.

In

an

adequately

developed

Brown, 845

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 an administrative
agency's finding from being supported by substantial evidence."
Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).
Substantial evidence exists only "in relationship to all
the other evidence in the record," Cotter, 642 F.2d at 706, and
"must take into account whatever in the record fairly detracts from
its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488
(1971).

A single piece of evidence is not substantial evidence if

the Commissioner ignores countervailing evidence or fails to

10

resolve a conflict created by the evidence.

Mason, 994 F.2d at

1064. The Commissioner must indicate which evidence was accepted,
which evidence was rejected, and the reasons for rejecting certain
evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707.
Therefore, a court reviewing the decision of the Commissioner must
scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968,
970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d
Cir. 1979).
SEQUENTIAL EVALUATION PROCESS
To

receive

disability

benefits,

the

plaintiff

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 12 months.”

42 U.S.C. § 432(d)(1)(A).

Furthermore,

[a]n individual shall be determined to be under a
disability 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.
For purposes of the
preceding sentence (with respect to any individual), “work
which exists in the national economy” means work which
exists in significant numbers either in the region where
such individual lives or in several regions of the
country.
42 U.S.C. § 423(d)(2)(A).

11

The

Commissioner

utilizes

a

five-step

process

in

evaluating disability insurance and supplemental security income
claims.

See 20 C.F.R. §404.1520; Poulos, 474 F.3d at 91-92.

This

process requires the Commissioner to consider, in sequence, whether
a claimant (1) is engaging in substantial gainful activity,11 (2)
has an impairment that is severe or a combination of impairments
that

is

severe,12

(3)

has

an

impairment

or

combination

of

impairments that meets or equals the requirements of a listed

11

If the claimant is engaging in substantial gainful activity,
the claimant is not disabled and the sequential evaluation proceeds
no further. Substantial gainful activity is work that “involves
doing significant and productive physical or mental duties” and “is
done (or intended) for pay or profit.” 20 C.F.R. § 404.1510.
12

The determination of whether a claimant has any severe
impairments, at step two of the sequential evaluation process, is a
threshold test. 20 C.F.R. § 404.1520(c). If a claimant has no
impairment or combination of impairments which significantly limits
the claimant’s physical or mental abilities to perform basic work
activities, the claimant is “not disabled” and the evaluation
process ends at step two. Id. If a claimant has any severe
impairments, the evaluation process continues. 20 C.F.R. §
404.1520(d)-(g). Furthermore, all medically determinable
impairments, severe and non-severe, are considered in the
subsequent steps of the sequential evaluation process. 20 C.F.R. §§
404.1523 and 404.1545(a)(2). An impairment significantly limits a
claimant’s physical or mental abilities when its effect on the
claimant to perform basic work activities is more than slight or
minimal. Basic work activities include the ability to walk, stand,
sit, lift, carry, push, pull, reach, climb, crawl, and handle. 20
C.F.R. § 404.1545(b). An individual’s basic mental or nonexertional abilities include the ability to understand, carry out
and remember simple instructions, and respond appropriately to
supervision, coworkers and work pressures. 20 C.F.R. § 1545(c).
12

impairment,13 (4) has the residual functional capacity to return to
his or her past work and (5) if not, whether he or she can perform
other work in the national economy. Id.

As part of step four the

administrative law judge must determine the claimant’s residual
functional capacity. Id.14
Residual functional capacity is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis.

See Social

Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996).

A

regular and continuing basis contemplates full-time employment and
is defined as eight hours a day, five days per week or other
similar schedule. The residual functional capacity assessment must
include a discussion of the individual’s abilities. Id; 20 C.F.R.
§ 404.1545; Hartranft, 181 F.3d at 359 n.1 (“‘Residual functional
capacity’ is defined as that which an individual is still able to
do despite the limitations caused by his or her impairment(s).”).
Medical Records
Before we address the administrative law judge’s decision
and the arguments of counsel, we will review some of Keller’s

13

If the claimant has an impairment or combination of
impairments that meets or equals a listed impairment, the claimant
is disabled. If the claimant does not have an impairment or
combination of impairments that meets or equals a listed
impairment, the sequential evaluation process proceeds to the next
step.
14

If the claimant has the residual functional capacity to do
his or her past relevant work, the claimant is not disabled.
13

medical records.
Keller’s primary care physician from early 2001 through
the date last insured was William A. Kramer, M.D., of Franklin
Family Practice located in Chambersburg, Pennsylvania.

Tr. 237-

238, 262 and 621.
On May 18, 2001, at the request of Charles C. Morris,
M.D., Keller had an MRI of the lumbar spine performed at the
Chambersburg Hospital. Tr. 237-238 and 291.

A copy of the report

of the MRI was provided to Dr. Kramer.15 Id.

The clinical reason

for requesting the MRI was that Keller complained of “lower back
pain radiating down the right leg.” Tr. 237.

The MRI revealed

“[m]inimal generalized bulging of the L4-L5 annulus [] without
focal

herniated

nucleus

pulposus”

but

“associated

with

mild

degenerative disc change,” a “slight focal disc protrusion [at the
L3-L4

level]

extending

into

the

right

neural

foramen

and

compressing the right nerve root slightly,” and “[m]ild to moderate
facet arthropathy [] at [the] L3-L4, L4-L5 and L5-S1 levels[] with
borderline central spinal stenosis at L3-L4.” Id.
Dr. Kramer’s treatment notes are handwritten and only
partially legible.
April

through

The first notes that we encounter are from

November,

2001,

which

reveal

that

Keller

was

complaining of back pain and that Dr. Kramer prescribed narcotic

15

The record does not reveal the professional relationship
between Dr. Kramer and Dr. Morris. We suspect that they may have
been associated in the same medical practice.
14

pain medications, including Percocet and Darvocet, and the muscle
relaxant Skelaxin. Tr. 621-622.

A physical examination performed

in November by Dr. Kramer revealed spasms in the right paraspinal
muscles and decreased range of motion in all planes as well as a
positive straight leg raising test at 60 degrees.16 Id.

Dr. Kramer

indicated that Keller had a follow-up appointment scheduled with
Richard J. Boal, M.D., of the Orthopedic Institute of Pennsylvania
on December 4, 2001. Id.
Dr.

Boal

at

that

follow-up

appointment

performed

a

physical examination which did not reveal any adverse findings
other than in Keller’s right leg she had a diminished knee reflex
and sensation loss in the thigh and down the anterior medial aspect
of the tibia and slight muscle weakness in the right foot.

Tr.

215. Dr. Boal noted that Keller had good range of motion of the
lumbar spine. Id.
spine, Dr.
L3-4

After reviewing Keller’s MRI of the lumbar

Boal stated that it revealed “a bulging disc at [the]

[level]

symptoms.” Id.

on

the

right

which

[was]

consistent

with

her

Dr. Boal’s diagnostic impression was that Keller

suffered from a “[h]erniated disc, L3-4 on the right.” Id.

16

Dr.

The straight leg raise test is done to determine whether a
patient with low back pain has an underlying herniated disc. The
patient, either lying or sitting with the knee straight, has his or
her leg lifted. The test is positive if pain is produced between
30 and 70 degrees. Niccola V. Hawkinson, DNP, RN, Testing for
Herniated Discs: Straight Leg Raise, SpineUniverse,
http://www.spineuniverse.com/experts/testing-herniated
-discs-straight-leg-raise (Last accessed February 18, 2014).
15

Boal recommended a series of epidural steroid injections before
Keller opted for surgery. Id.
On December 5, 2001, Keller received an epidural steroid
injection

at

the

L4-5

level

of

the

lumbar

spine

which

was

administered by Timothy J. Sempowski, D.O., at the Chambersburg
Hospital. Tr. 294-295. Prior to the injection, Dr. Sempowski
performed

a

clinical

interview

and

physical

reviewed the MRI of Keller’s lumbar spine. Id.

examination

and

He also reviewed

the report of an electromyography (EMG) which revealed that Keller
suffered from chronic L4 radiculopathy on the right. Id.
On January 2, 2002, Keller had an appointment with Dr.
Boal

who

after

performing

a

clinical

interview

and

physical

examination informed Keller that it was his opinion that she
suffered from a herniated disc at the L3-L4 level of the lumbar
spine. Tr. 214.

The physical examination findings reported by Dr.

Boal, however, were essentially normal, including normal range of
motion in the lumbar spine and a negative straight leg raising
test. Id.

Dr. Boal recommend that Keller have a repeat MRI of the

lumbar spine and referred her to a pain management specialist,
Malik M. Momin, M.D. Id. The MRI was performed on January 8, 2002,
and revealed a “[s]mall disc bulge as well as a small broad based
central disc herniation at L4-5" but which did not “cause any
significant spinal stenosis or definite nerve root compression” and
“[c]ompared to [her] previous MRI dated 5/18/2001, there [was] no

16

evidence of right foraminal disc herniation at L3-4.” Tr. 274.
Also, “[t]he findings at L4-5 [were] about the same as [the]
previous MRI.” Id.
Keller had an appointment with Dr. Momin on January 10,
2002, at which Dr. Momin administered an epidural steroid injection
at the L4-L5 level of Keller’s lumbar spine. Tr. 363-364 and 384385.

Prior to administering the epidural steroid injection, Dr.

Momin performed a physical examination which revealed that Keller
had

“diffuse

tenderness

over

the

lumbosacral

paravertebral

muscles,” a positive straight leg raising test on the right, and
limited lumbar range of motion. Tr. 364.

On February 5, 2002, Dr.

Momin performed lumbar discography (a lumbar discogram) at the L3L4, L4-L5 and L5-S1 levels of Keller’s spine. Tr. 380-382.

This

procedure revealed pain at the L3-L4 and L4-L5 levels but no pain
at the L5-S1 level.17 Id.
Dr. Kramer’s notes reveal that during December, 2001, and
through January, 2003, he continued to treat Keller’s low back pain
with narcotic pain medications and muscle relaxants, including
Oxycontin and Flexeril. Tr. 615-620. Also, during 2002 and through
January 16, 2003, Keller had several appointments with Steven B.
Wolf, M.D., at the Orthopedic Institute of Pennsylvania. Tr. 207-

17

Discography is an invasive pain provocative procedure to
confirm which discs are responsible for an individual’s pain.
Needles are inserted and pressurized fluid injected into the
suspected discs and the pain response recorded. The procedure is
fairly definitive and can be used to detect exaggerated symptoms.
17

212.

In June, 2002, Dr. Wolf noted that the MRI from January did

not “look that bad as far as stenosis” but he ordered a repeat MRI
because Keller’s condition had worsened since January. Tr. 210.
On June 23, 2002, Keller had the third MRI of the lumbar spine at
the Chambersburg Hospital which revealed a disc herniation at the
L4-L5 level on the left which did not appear to produce significant
neural foraminal compromise and a disc bulge at the L3-L4 level
which also did not appear to produce significant neural foraminal
compromise or stenosis. Tr. 276.
On January 16, 2003, after performing a clinical interview
and

a

physical

examination

of

Keller,

Dr.

Wolf’s

diagnostic

impression was that Keller suffered from “[p]ersistent discogenic
pain in the lumbar spine” and stated that Keller “could be a
candidate for an artificial disc replacement[.]” Tr. 207. Dr. Wolf
further noted that Keller had “not been able to increase her
function enough to go back to work.” Id.
Keller continued to receive treatment during 2003 and 2004
from several physicians, including Dr. Kramer.
378-379,

409,

413-420,

and

604-614.

Dr.

Tr. 206, 361-362,

Kramer

continued

to

prescribe narcotic pain medications, including Avinza (morphine).
Id.

The treatment during this period also included lumbar facet

joint injections on the right side at L3-4, L4-5 and L5-S1 levels
by Dr. Momin. Tr. 378-379.
In May and August, 2004, Keller had additional MRIs of the

18

lumbar spine performed at the Chambersburg Hospital. Tr. 278 and
280.

The MRI in May revealed “[l]eft lateral disc bulges at the

L3-4 and L4-5 levels producing mild neural foraminal compromise
bilaterally” and a “[r]ight lateral disc bulge or protrusion at the
L2-3 level producing moderate neural foraminal compromise.” Tr.
278. The MRI in August revealed a “[m]inimal right sided disc
protrusion at L2-3 extending into the foramen” which appeared
similar to the prior study of May, 2004, and a “[m]ild disc bulge
at L4-5 eccentric to the left[.]” Tr. 280.
On

February

discography

which

7,

2005,

revealed

Dr.

“an

Momin

intense

performed
concordant

a

second

back

pain

response on injection of both the L3-4 and L4-5 discs” and “[n]o
pain was acknowledge on injection of the L5-S1 disc despite
achieving maximum disc pressure of 124 PSI.” Tr. 375.

After this

discography Keller had an appointment with Arnold G. Salotto, M.D.,
regarding artificial disc replacement surgery. Tr. 410-411.

Dr.

Salotto ordered a repeat MRI which was performed on February 18,
2005, and revealed a “[s]mall right lateral [herniated nucleus
pulposus]

at

L2-3

extending

into

the

neural

foramen”

and

a

“[b]road-based protrusion, eccentric to the left side at L4-5,
flattening the anterior margin of the thecal sac.”18 Tr. 233.

18

The thecal sac is an elongated tube that extends from the
brain to the end of the spine in which the spinal cord and nerve
roots run. It is a covering (membrane) that surrounds the spinal
cord and contains cerebral spinal fluid. Herniated discs which
impinge the thecal sac may or may not cause pain symptoms.
19

Keller had a follow-up visit with Dr. Salotto on February 28, 2005,
at which Dr. Salotto reviewed the results of the MRI with Keller
and discussed artificial disc replacement surgery. Tr. 408.

The

disc replacement surgery was performed on March 1, 2005, by Dr.
Salotto and two other physicians. Tr. 406-407.
Post-operatively Keller did well but continued to receive
narcotic pain medications, including Avinza, from Dr. Kramer. Tr.
453 and 601.

Two months after the surgery Dr. Salotto reported

that Keller’s incision was well healed; she ambulated normally; and
she had good strength in her extremities. Tr. 453. Keller told Dr.
Salotto that her preoperative back pain had significantly improved
although she had some residual soreness in the abdominal muscles.
Id.

From April through the end of 2005 and into January 2006,

Keller continued to receive narcotic pain medications from Dr.
Kramer. Tr. 591-596 and 599-600.

X-rays of the lumbar spine in

May, 2005, revealed “[s]table appearing post surgical changes in
the lumbar spine.” Tr. 452. In June, 2005, Keller told Dr. Salotto
that she was pleased with the improvement. Tr. 459.

In August of

2005, Keller commenced physical therapy and attended such therapy
for 4 sessions. Tr. 461 and 488.
In January, 2006, Keller at an appointment with Dr.
Salotto reported an exacerbation of back pain after performing
physical therapy. Tr. 480. Keller indicated that the pain was in
the lower back and radiated towards the buttocks. Id.

20

She further

reported

cramping

in

her

thighs

and

progressed over the past month or so. Id.

that

the

symptoms

had

A physical examination

performed by Dr. Salotto revealed mild diffuse tenderness in the
lumbar spine and a decrease in pinprick sensation in the right leg
and foot as compared to the left side. Id. Dr. Salotto recommended
a repeat MRI of the lumbar spine. Id. The MRI was performed on
January 10, 2006, and revealed “[m]ild right posterolateral and
foraminal disc protrusion at L2-3[.]” Tr. 269.
During 2006 and through March 31, 2007, the date last
insured, Keller continued to have appointments with Dr. Kramer who
continued to prescribe narcotic pain medications for Keller’s back
pain. Tr. 559-560 and 583-590.

Also, on January 26, 2006, and

February 12 and March 2, 2007, Keller was administered lumbar
epidural steroid injections by Dr. Momin. Tr. 368-373.
On October 27, 2006, Keller had an MRI of the lumbar spine
which revealed a “[s]mall right lateral disc protrusion at the L2-3
and L3-4 levels” which “produce mild, right-sided neural foraminal
compromise[.]” Tr. 502.
Dr. Salotto examined Keller on May 26, 2006, and noted
that Keller had limited flexion and extension of the lumbar spine
associated with pain. Tr. 507.
At

an

appointment

on

October

25,

2006,

Dr.

Salotto

observed that a straight leg raising test produced some pain in the
right side more than the left; Keller had mild tenderness in the

21

lumbar spine; Keller had decreased pinprick sensation in the right
lower leg and foot as compared to the left side; and she had
decreased reflexes at the right ankle and knee. Tr. 405
Dr. Salotto examined Keller on February 6, 2007, and noted
that Keller had muscle spasms and tenderness in the back and
decreased range of motion. Tr. 403.
During 2002, Keller was evaluated by Walter C. Peppelman,
D.O., of the Pennsylvania Spine Institute, in conjunction with her
claim

for

Workers’

Compensation

benefits.

Tr.

427-434.

Dr.

Peppelman concluded that Keller suffered from chronic low back pain
and lumbar radiculopathy

but he would not recommend surgery. Tr.

429-430. Dr. Peppelman did not specify Keller’s work-related
functional abilities. Id. Dr. Peppelman also apparently again
examined Keller on April 17, 2003, because on June 16, 2003 he
wrote a letter to the Workers’ Compensation Department mentioning
that examination and further stated as follows: “The patient, when
seen at the examination, had no evidence of any objective findings
except for subjective complaints which were significant for signs
of

symptom

magnification

and

inappropriate

illness

behavior.

Review of multiple MRI’s failed to reveal any extrinsic pathology
and I was unable to identify any other significant pathology. . .
. I do not feel this patient has any significant impairment to base
her subjective complaints. . .

I feel this patient should be

considered fully recovered from her lumbar strain and sprain, and

22

should be physically capable to perform her pre-injury job without
restrictions.” Tr. 657.

We did not discern in the administrative

record the actual report of the April 17, 2003, evaluation.

Dr.

Peppelman also examined Keller on December 8, 2005, but in his
report of this examination did not specify Keller work-related
functional

capacity

but

merely

indicated

that

“a

functional

capacity evaluation would be beneficial to identify what this
patient’s true capabilities are.” Tr. 485.

Dr. Peppelman stated

that Keller had “made a full recovery from her work related injury”
and he did not feel that the disc replacement was related to her
injury in April of 2001. Id.
On December 6, 2006, David C. Baker, M.D., examined Keller
in conjunction with her Workers’ Compensation claim. Tr. 522-527.
Dr.

Baker

after

interviewing

Keller,

performing

a

physical

examination and reviewing her medical records concluded that she
suffered from “[b]ack pain with persistent right anterior thigh
pain

and

patella

reflex

diminution

consistent

with

an

L4

radiculopathy.” Tr. 525. With respect to functional abilities Dr.
Baker stated that Keller could perform “sedentary to light duty
where she is able to alternate like sit, stand, and walk and
lifting [] limited to 15 to 20 pounds on a less than one hour a day
total basis.” Tr. 526.
On June 17, 2010, Dr. Salotto completed on behalf of
Keller a document entitled “Lumbar Spine Medical Source Statement.”

23

Tr. 649-652.

In the document Dr. Salotto stated that Keller had

complaints of back pain, bilateral leg pain (right greater than
left), chronic numbness in her right leg and foot, muscle cramps,
and difficulty walking. Id.
lower back. Id.

Keller’s pain was centered in her

The pain was worse with sitting or standing for

periods of time or bending or flexing her back.

Id.

Dr. Salotto

reported positive objective findings of reduced range of motion in
Keller’s lumbar spine, as well as sensory loss, muscle spasm, and
impaired sleep. Id.

He stated that she would only be able to walk

one city block without resting; sit for thirty minutes at a time
for a total of less than two hours in an 8-hour workday; and stand
for thirty minutes at a time for a total of two hours in an 8-hour
workday. Id.

If Keller were to work, she would need to be able to

shift positions at will between sitting, standing, and/or walking;
and she would require frequent unscheduled breaks of at least ten
minutes each throughout the day. Id.

Keller would be restricted

to occasionally lifting and/or carrying up to ten pounds. Id.

Dr.

Salotto opined that Keller’s pain or fatigue would interfere with
her attention and concentration on a frequent basis and Keller’s
impairments would likely produce “good” days and “bad” days and
that she would likely be absent from work more than four days a
month as a result of her impairments. Id. In the final portion of
the document Dr. Salotto stated that Keller’s impairments have
lasted at least twelve months and the symptoms and limitations

24

described in the document were extent as early as February, 2005.
Id.
The vocational expert who testified at the administrative
hearing stated that if Dr. Salotto’s limitations were accepted
Keller could not perform any substantial gainful employment.
DISCUSSION
The administrative law judge at step one of the sequential
evaluation process found that Keller had not engaged in substantial
gainful work activity from her amended alleged onset date of
February 1, 2005, through her date last insured of March 31, 2007.
Tr. 12.
At step two of the sequential evaluation process, the
administrative law judge found that Keller had the following severe
impairments: “lumbar degenerative disc disease, status post surgery
on March 1, 2005[.]” Id.

The administrative law judge did not

address the issue of whether or not Keller suffered from a lower
extremity radiculopathy. Id.
At step three of the sequential evaluation process the
administrative law judge found that Keller’s impairments did not
individually or in combination meet or equal a listed impairment.
Tr. 12-13.
At step four of the sequential evaluation process the
administrative law judge found that Keller could not perform her
past relevant work which as noted earlier was skilled, medium work

25

as a licensed practical nurse and unskilled, light to medium work
as a warehouse worker but that she could perform a limited range
of light work where Keller could “occasionally climb stairs, stoop,
kneel and crouch or squat, but she [could] never climb ropes,
ladders, scaffolding or poles or crawl.

She must avoid working in

high exposed places, working around fast moving machinery on the
ground, working around or with sharp objects or working around or
with toxic or caustic chemicals.” Tr. 13 and 16.

In her decision

the administrative law judge did not provide Keller with the option
to alternate between sitting and standing. Id.
In

setting

the

residual

functional

capacity,

the

administrative law judge purportedly relied on the opinion of Dr.
Peppelman who as noted earlier did not specify any work-related
functional

abilities

and

evaluation

would

beneficial

be

noted

that
to

a

functional

identify

capacity

Keller’s

“true

capabilities.” Tr. 15 and 485. The ALJ rejected the opinion of Dr.
Baker that Keller was limited to “sedentary to light work with a
sit/stand option and a lifting restriction of 15 to 20 pounds for
up to one hour a day.” Tr. 15.

Furthermore, the ALJ stated that

Dr. Kramer “felt that [Keller] could go back to work.” Tr. 14.
However,

our

review

of

Dr.

Kramer’s

only

partially

legible

treatment notes did not reveal any such statement by him during the
relevant time period of February 1, 2005 through March 31, 2007.
Finally,

the

ALJ

did

not

address

26

the

functional

assessment

completed by Dr. Salotto on June 17, 2010, but merely referred to
a treatment note of May 9, 2007, where Dr. Salotto indicated that
Keller must avoid any type of repetitive bending, twisting or
lifting and rejected that opinion “as not consistent with his own
records and . . . not consistent with or supported by any imaging
or other objective evidence.” Tr. 15.
At step five, the administrative law judge based on the
above

residual

functional

capacity

and

the

testimony

of

a

vocational expert found that Keller had the ability to perform
work

as

an

injection

molding

machine

tender

and

as

a

toll

collector, and that there were a significant number of such jobs
in the local, regional and national economies. Tr. 17.
Keller

basically

argues

that

the

ALJ

erred

in

her

consideration of the treating physicians’ medical records and
assessment of Keller’s functional abilities and that the residual
functional capacity set by the ALJ in her decision is not supported
by substantial evidence but the product of the ALJ’s lay analysis
of the medical records. We have thoroughly reviewed the record in
this case which consists of 701 pages and find substantial merit
in Keller’s arguments.
Step two of the sequential evaluation process is the first
point where the administrative law judge erred. The administrative
judge did not make a definitive determination as to whether or not
Keller suffered from lower extremity radiculopathy.

27

The Social

Security regulations contemplate the administrative law judge
considering

whether

there

are

any

medically

determinable

impairments and then when setting a claimant’s residual functional
capacity considering the symptoms of both medically determinable
severe and non-severe impairments. 20 C.F.R. § 404.1529.

The

determination of whether a claimant has any severe impairments, at
step two of the sequential evaluation process, is a threshold test.
20 C.F.R. § 404.1520(c). If a claimant has no impairment or
combination of impairments which significantly limit the claimant’s
physical or mental abilities to perform basic work activities, the
claimant is “not disabled” and the evaluation process ends at step
two. Id.

If a claimant has any severe impairments, the evaluation

process continues. 20 C.F.R. § 404.1520(d)-(g). A failure to find
a medical condition severe at step two will not render a decision
defective if some other medical condition was found severe at step
two.

However, all of the medically determinable impairments both

severe and non-severe must be considered at step two and then at
step four when setting the residual functional capacity.

The

social security regulations mandate such consideration and this
court has repeatedly so indicated. See, e.g., Christenson v.
Astrue, Civil No. 10-1192, slip op. at 12 (M.D. Pa. May 18,
2011)(Muir, J.); Little v. Astrue, Civil No. 10-1626, slip op. at
19-21 (M.D.Pa. September 14, 2011)(Kosik, J.); Crayton v. Astrue,
Civil No. 10-1265, slip op. at 32-35 (M.D.Pa. September 27,

28

2011)(Caputo, J.); Shannon v. Astrue, Civil No. 11-289, slip op.
at 39-41 (M.D.Pa. April 11, 2012)(Rambo, J.); Bell v. Colvin, Civil
No. 12-634, slip op. at 23-24 (M.D.Pa. Dec. 23, 2013)(Nealon, J.);
20 C.F.R. §§ 404.1523 and 404.1545(a)(2).
The failure of the administrative law judge to find the
above

referenced

condition

-

radiculopathy

-

as

a

medically

determinable impairment, or to give an adequate explanation for
discounting it, makes the administrative law judge’s decisions at
steps two and four of the sequential evaluation process defective.
The error at step two of the sequential evaluation process draws
into question the ALJ’s RFC assessment and the assessment of
Keller’s credibility.

The administrative law judge found that

Keller’s medically determinable impairments could reasonably cause
Keller’s alleged symptoms but that Keller’s statements concerning
the intensity, persistence and limiting effects of those symptoms
were not credible.

This determination by the administrative law

judge was based on an incomplete and faulty analysis of all of
Keller’s medically determinable impairments.
The administrative law judge rejected the opinion of a
treating physician regarding the physical functional abilities of
Keller.

The preference for the treating physician’s opinion has

been recognized by the Court of Appeals for the Third Circuit and
by all of the federal circuits. See, e.g., Morales v. Apfel, 225
F.3d 310, 316-18 (3d Cir. 2000).

29

When the treating physician's

opinion conflicts with a non-treating, non-examining physician's
opinion, the administrative law judge may choose whom to credit in
his or her analysis, but “cannot reject evidence for no reason or
for the wrong reason.”

Id.

In choosing to reject the evaluation

of a treating physician, an administrative law judge may not make
speculative inferences from medical reports and may reject treating
physician's opinions outright only on the basis of contradictory
medical evidence. Id.

An administrative law judge may not reject

a written medical opinion of a treating physician based on his or
her own credibility judgments, speculation or lay opinion. Id.

An

administrative law judge may not disregard the medical opinion of
a treating physician based solely on his or her own “amorphous
impressions, gleaned from the record and from his evaluation of the
[claimant]’s credibility.” Id.

As one court has stated, “Judges,

including

judges

administrative

law

of

the

Social

Security

Administration, must be careful not to succumb to the temptation
to play doctor” because “lay intuitions about medical phenomena are
often wrong.”

Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir

1990).
In

this

case

the

ALJ

did

not

address

Dr.

Salotto’s

functional assessment and did not point to an assessment by a
treating or examining physician specifying Keller’s work-related
functional abilities, such as sitting, standing, walking, lifting,
and carrying, but engaged in her own lay analysis of the bare

30

medical records. There is a lack of substantial evidence supporting
the

administrative

law

judge’s

residual

functional

capacity

assessment and the ALJ erred by failing to address Dr. Salotto’s
functional assessment.
We

recognize

that

the

residual

functional

capacity

assessment must be based on a consideration of all the evidence in
the record, including the testimony of the claimant regarding her
activities of daily living,

medical records, lay evidence and

evidence of pain. See Burnett v. Commissioner of Social Sec.
Admin., 220 F.3d 112, 121-122 (3d Cir 2000).

However, rarely can

a decision be made regarding a claimant’s residual functional
capacity without an assessment from a physician regarding the
functional abilities of the claimant. See Doak v. Heckler, 790 F.2d
26, 29 (3d Cir.1986)(“No physician suggested that the activity Doak
could perform was consistent with the definition of light work set
forth in the regulations, and therefore the ALJ’s conclusion that
he could is not supported by substantial evidence.”);
§ 404.1545(a).

20 C.F.R.

As two commentators have explained:

Sometimes administrative law judges assert that they and not physicians - have the right to make residual
functional capacity determinations. In fact, it can
reasonably be asserted that the ALJ has the right
to determine whether a claimant can engage in
sedentary, light, medium, or heavy work. The ALJ
should not assume that physicians know the Social
Security Administration’s definitions of those
terms. Even though the RFC assessment draws from
medical sources for support, it is ultimately an
administrative determination based on those
administrative definitions and is reserved to the
31

Commissioner. However, the underlying determination
is a medical determination, i.e., that the claimant can
lift five, 20, 50, or 100 pounds, and can stand for
30 minutes, two hours, six hours, or eight hours.
That determination must be made by a doctor. Once
the doctor has determined how long the claimant can
sit, stand or walk, and how much weight the claimant
can lift and carry, then the ALJ, with the aid of a
vocational expert if necessary, can translate that
medical determination into a residual functional
capacity determination. Of course, in such a situation
a residual functional capacity determination is merely
a mechanical determination, because the regulations
clearly and explicitly define the various types of
work that can be performed by claimants, based upon
their physical capacities. Thus, while agency regulations
provide the ultimate issues such as disability and RFC
are reserved to the agency, it may not reject a
physician’s medical findings that determine the various
components and requirements of RFC.
Carolyn A. Kubitschek & Jon C. Dubin, Social Security Disability
Law and Procedure in Federal Courts, 344-345 (2014)(emphasis
added); see also Woodford v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y.
2000)(“An

ALJ

commits

legal

error

when

he

makes

a

residual

functional capacity determination based on medical reports that do
not specifically explain the scope of claimant’s work-related
capabilities.”); Zorilla v. Chater, 915 F.Supp. 662, 667 (S.D.N.Y.
1996)(“The lay evaluation of an ALJ is not sufficient evidence of
the claimant’s work capacity; an explanation of the claimant’s
functional

capacity

from

a

doctor

is

required.”).

The

administrative law judge cannot speculate as to a claimant’s
residual functional capacity but must have medical evidence, and
generally a medical opinion regarding the functional capabilities
of the claimant, supporting his determination. Id.
32

In this case there was no assessment of the functional
capabilities

of

Keller

from

a

physician

which

supported

the

administrative law judge’s residual functional capacity assessment
and the bare medical records and other non-medical evidence were
insufficient for the administrative law judge to conclude that
Keller had the residual functional capacity to engage in a limited
range of light work.19
Our review of the administrative record reveals that the
decision of the Commissioner is not supported by substantial
evidence.

We will, therefore, pursuant to 42 U.S.C. § 405(g)

vacate the decision of the Commissioner and remand the case to the
Commissioner for further proceedings.
An appropriate order will be entered.

19

The administrative record did contain an RFC assessment from
a non-medical state agency adjudicator. Tr. 623-629. This court
has repeatedly stated that reliance on such a statement is
inappropriate and the ALJ in this case did not rely on that
statement. See, e.g., Ulrich v. Astrue, Civil No. 09-803, slip op.
at 17-18 (M.D.Pa. December 9, 2009)(Muir, J.); Spancake v. Astrue,
Civil No. 10-662, slip op. at 15 (M.D. Pa. December 23, 2010)(Muir,
J.); Gonzalez v. Astrue, Civil No. 10-839, slip op. at 16 (M.D.Pa.
January 11, 2011)(Muir, J.); Peak v. Astrue, Civil No. 10-889,
slip op. at 25 (M.D.Pa. January 24, 2011)(Muir, J.); see also
Dutton v. Astrue, Civil No. 10-2594, slip op. at 22 n. 32(M.D.Pa.
January 31, 2012)(Munley, J.); Demace v. Astrue, Civil No. 11-1960,
slip op. at 36-37(M.D.Pa. April 25, 2013)(Munley, J.).
33