Awad v. Colvin

Filing 20

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, we conclude Plaintiffs appeal is properly granted. This matter is remanded to the Acting Commissioner for further consideration consistent with this opinion. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 4/21/15. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SOUAD AWAD,

:
:CIVIL ACTION NO. 3:14-CV-1054
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
CAROLYN COLVIN,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Plaintiff’s appeal from the Commissioner’s
denial of Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act (“Act”).

(Doc. 1.)

Plaintiff claims

disability beginning on November 16, 2011 (R. 17), her Disability
Report listing cervical/lumbar spine pain as the condition that
limits her ability to work (R. 153).

The Administrative Law Judge

(“ALJ”) who evaluated the claim, Richard Zack, concluded in his
October 23, 2012, decision that Plaintiff had the severe
impairments of degenerative disc disease of her cervical spine and
degenerative disc disease of the lumbar spine.

(R. 19.)

He

determined that Plaintiff’s severe impairments did not meet or
equal the listings.

(R. 20.)

The ALJ also found that Plaintiff

had the residual functional capacity (“RFC”) to perform a range of
sedentary work with exertional and
21.)

nonexertional limitations.

After finding that Plaintiff was not capable of performing

(R.

past relevant work, the ALJ determined that there are jobs that

exist in significant numbers in the national economy that Plaintiff
can perform, and, therefore, had not been under a disability from
November 1, 2007, through the date of the decision.

(R. 24-26.)

With this action, Plaintiff argues that the decision of the
Social Security Administration is error for several reasons.
Plaintiff asserts the AlJ erred because his RFC assessment is not
supported by substantial evidence (Doc. 15 at 7), he did not
properly consider Plaintiff’s use of a cane (id. at 16), and the
Acting Commissioner did not sustain her burden of establishing that
there is other work in the national economy Plaintiff could perform
(id. at 18).

For the reasons discussed below, we conclude

Plaintiff’s appeal of the Acting Commissioner’s decision is
properly granted.
I. Background
A. Procedural Background
Plaintiff protectively filed a Title II application for DIB on
August 5, 2011, alleging disability beginning November 1, 2007. (R.
12.)

This claim was denied initially on November 16, 2011.

(Id.)

Plaintiff filed a written request for a hearing on December 27,
2011, and a hearing was held before ALJ Richard Zack on October 15,
2012.

(Id.)

Plaintiff was represented by counsel at the ALJ

hearing and a Vocational Expert also testified.

(Id.)

Plaintiff

testified with the assistance of a Moroccan Arabic interpreter.
(Id.)

In his October 23, 2012, decision, the ALJ concluded that
2

Plaintiff was not under a disability within the meaning of the
Social Security Act from November 1, 2007, through the date of the
decision.

(R. 26.)

As noted above, this determination was made at

step five where the ALJ concluded Plaintiff had the residual
functional capacity to perform jobs which exist in sufficient
numbers in the national economy.

(R. 25.)

On December 11, 2012, Plaintiff requested review of the ALJ’s
hearing decision.

(R. 13.)

The Appeals Council denied her request

for review on February 27, 2014.

(R. 5-9.)

In doing so, the ALJ’s

decision became the decision of the Acting Commissioner.

(R. 5.)

On May 31, 2014, Plaintiff filed the above-captioned matter in
this Court.

(Doc. 1.)

Defendant filed her Answer and the required

transcript on July 30, 2014.

(Docs. 7, 8.)

Because Plaintiff did

not timely file her supporting brief, the Court dismissed the case
on October 6, 2014.

(Doc. 9.)

After Plaintiff moved to reinstate

the action, the Court reopened the case on January 28, 2015.
(Docs. 12, 14.)

Plaintiff filed her supporting brief (Doc. 15) on

February 2, 2015, and Defendant filed her responsive brief (Doc.
12) on April 6, 2015.

With the filing of Plaintiff’s reply brief

(Doc. 19) on April 13, 2015, this case became ripe for disposition.
B.

Factual Background
Plaintiff was born on April 27, 1968, and was thirty-nine

years old on the alleged disability onset date.

(R. 24.)

She did

not engage in substantial gainful activity since the onset date.

3

(R. 19.)

Plaintiff has a limited education and is able to

communicate in English in only a rudimentary fashion.
Plaintiff last worked as a packer in a factory.
1.

(R. 24.)

(R. 154.)

Summary of Medical Evidence
Having received workers’ compensation for a back injury (R.

60), Plaintiff continued to treat for lower back pain (R. 203).

A

November 30, 2007, NEPA Imaging Center report concerning lumbar
spine MRI, records the following impression: “Disc bulges at L3-4,
L4-5, and L5-S1, the largest at L4-5 and L5-S1 with annular tears
as above with mild canal narrowing at L4-5 and L5-S1 and mild
neural foraminal narrowing as above.”

(R. 203.)

On August 15, 2008, Alex D. Perez, M.D., stated that Plaintiff
had a history of chronic low back pain secondary to occupational
injury.

(R. 201.)

He further stated that Plaintiff had a lumbar

epidural steroid block that provided relief for two days but
returned with intensity of seven out of ten, worsened by activity.
(Id.)

He reported that an August 12, 2008, MRI of the lumbar spine

showed “multilevel degenerative changes and broad-based L5/S1 disc
protrusion that appears improved Miami-based Balbina L3/4 and L4/5
and T10/11, facet hypertrophy at T10/11.”

(Id.)

Dr. Perez noted

that Plaintiff received some relief from her medications,
“meloxicam 15 mg. daily as needed and Flexeril 10 mg. nightly prn.”
(Id.)

His impression was “[c]hronic low back pain, predominantly

secondary to facet arthropathy, and he planned to continue her

4

medications and schedule a right-sided lumbar facet joint block.
(Id.)
On October 6, 2008, Plaintiff was seen at CHS Professional
Practice, Department of Physical Medicine and Rehabilitation, with
chief complaints of neck and arm pain.

(R. 208.)

Certified

Physician Assistant Jena Diviney saw and examined Plaintiff
“incident to” Steven Mazza, M.D.

(R. 209.)

PA Diviney noted that

Plaintiff was not working due to “a workman’s comp injury of the
lower back.”

(R. 208.)

Plaintiff had discomfort in side-to-side

rotation as well as extension, and her shoulder examination showed
painful range of motion in all planes, positive impingement sign,
and positive cross-over induction test.

(R. 209.)

Plaintiff was

set up for a nerve conduction study to help determine whether the
pain generator was the bulging disc in the neck or the left
shoulder.

(Id.)

She was also scheduled for a shoulder MRI and

started on a course of prednisone.

(Id.)

The October 10, 2008, nerve conduction study showed abnormal
results; mild right C2 hypofunction and radiculitis; hyperfunction
of right T1 suggesting probable irritation; and hyperfunction of
left T2 suggesting probable irritation.

(R. 210.)

date, Plaintiff had a left shoulder MRI.

(R. 214.)

On the same
Eiran

Mandelker, M.D., recorded the following impression: “1. Minimal
supraspinatus tendinopathy.

A Type II minimally low lying

laterally downsloping acromion is present.

5

Minimal

acromioclaviculur degenerative changes are present.
shoulder effusion.”

2. Small

(R. 215.)

Plaintiff saw Dr. Mazza on October 17, 2008.

(R. 216.)

Plaintiff did not have a significantly positive shoulder exam at
the time.

(Id.)

As a result of the recent testing, Dr. Mazza

concluded the likely source of the shoulder pain was the left-sided
disc herniation at C5-6.

(Id.)

His plan was for Plaintiff to have

C7-T1 interlaminar cervical epidural steroid injections and for her
to continue antiinflammatory medication.
injections on November 11, 2008.

(Id.)

Plaintiff had the

(R. 217.)

Dr. Mazza’s office notes of December 10, 2008, indicate that
the physician who had previously seen Plaintiff for her workrelated lumbar injury felt that Plaintiff had exhausted
conservative care and recommended an L5-S1 diskectomy.

(R. 219.)

Plaintiff did not follow through because of fear of surgery.

(Id.)

Dr. Mazza assessed Plaintiff to have low back pain, left lower
extremity radiculopathy, L5-S1 disk protrusion, and facet
arthropathy.

(R. 220.)

conservative care.

He did not believe Plaintiff had exhausted

(Id.)

Dr. Mazza also noted that he would “keep

her at sedentary capacity as she has been released by Dr. Naftulin
previously.”

(Id.)

nine out of ten.

Her pain level at the time was recorded at

(R. 221.)

Later that month, on December 22, 2008, Plaintiff was
scheduled for epidural steroid injections because of radiating

6

symptoms with an L5-S1 disc herniation.
continue on sedentary duty.

(R. 222.)

She was to

(Id.)

On January 9, 2009, Dr. Mazza recommended left L3–4-5 medial
branch blocks.

(R. 226.)

Though at first Plaintiff refused more

injections or surgery, she considered changing her mind.
She was to continue work restrictions.

(Id.)

(Id.)

On March 30, 2009, Plaintiff again saw Dr. Mazza with
complaints of cervical pain and bilateral shoulder pain.

(R. 281.)

He assessed Plaintiff to have cervical pain and degenerative disc
disease, cervical radiculitis, bilateral shoulder pain, and
bilateral rotator cuff tendinopathy.

(R. 281.)

He recommended

icing the area several times daily for fifteen to twenty minutes
and continuing on antiinflammatory medications.

(Id.)

In September 2010, Plaintiff saw Dr. Mazza for back and neck
pain, and pain down her arm.

(R. 265-66.)

She was using Lidoderm

patches, and Norflex, Tramadol and Nucynta for pain relief.
266.)

(R.

Dr. Mazza recorder Plaintiff’s gait to be normal, decreased

rotation, decreased flexion and extension during cervical range
motion, her motor strength was 5/5 in all muscle groups, and
Spurling’s test was positive on the left.

(Id.)

Acknowledging

that physical therapy had limited success in the past, Dr. Mazza
again recommended it.

(Id.)

He also reported that he again told

Plaintiff she was a surgical candidate but Plaintiff continued to
refuse surgery.

(Id.)

7

At Plaintiff’s next visit with Dr. Mazza on September 26,
2011, Plaintiff reported right knee pain in addition to her back
and neck pain.

(R. 262-63.)

She retained range of motion of the

right knee with slight effusion and tenderness to palpation noted.
(R. 263.)

Dr. Mazza reiterated that he felt surgery was her only

option regarding her neck and lower back pain and recorded that she
did not have insurance coverage so the medication routine would be
continued.

(Id.)

She was to follow up in six to twelve months or

sooner if she got insurance coverage and wanted to have surgery.
(R. 264.)
In November 2011, Plaintiff was referred by Matt Vergari,
M.D., for an EMG (electromyography) of both upper extremities and
cervical paraspinal muscles.

(R. 399.)

The report indicates the

ENMG (electroneuromyography) of the bilateral upper extremity was
abnormal and most consistent with the following: “[l]eft C6 root
irritation of acute nature[;] [b]ilateral median motor and sensory
peripheral neuropathy of primarily demyleninating in natrue across
both wrists, consistent with bilateral Carpal tunnel syndrome[;
and] [b]ilateral ulnar motor and sensory peripheral neuropathy
primarily demyelinating in nature across both wrists, consistent
with bilateral Guyon’s tunnel syndrome.”

(R. 399.)

In November 2011 Plaintiff was also referred for an EMG of
both lower extremities which was abnormal as to the left lower
extremity consistent with left L5 root irritation acute in nature.

8

(R. 396.)

Plaintiff also had an MRI of the lumbar spine which

showed the following: straightening of normal lordosis compatible
with spasm; L4-L5 mild broad-based disc bulge as well as mild
bilateral facet hypertrophy and mild stenosis of the lateral recess
and neural foramina, more left that right; L5-S1 broad-based disc
bulge and a central protrusion with an annular tear measuring 4 mm
abutting the nerve roots in the ventral central canal; and no
significant canal or foraminal stenosis.

(R. 391.)

Plaintiff saw Dr. Vergari on December 5, 2011, for a follow-up
visit.

(R. 381.)

Dr. Vergari recorded that Plaintiff continued to

have neck and back pain, the neck pain radiating to left arm and
should with left hand paresthesias.

(Id.)

He noted that Plaintiff

continued to complain of a stiff neck and at times she was unable
to move her left hand.

(Id.)

She also complained of low back pain

that radiates down both legs with paresthesias, and bilateral knee
pain with difficulty walking up and down stairs.

(Id.)

Following

examination, Dr. Vergari assessed the following: tear of the medial
cartilage or meniscus of the right knee; displacement of lumbar
intervertebral disc without myelopathy; carpal tunnel syndrome;
unspecified disorders of bursae and tendons in shoulder region;
intervertebral cervical disc disorder with myelopathy, cervical
region; and intervertebral thoracic disc disorder with myelopathy,
thoracic region.

(R. 383.)

The treatment plan consisted of

further diagnostic studies, physical therapy, medications, and

9

wrist splints at night and with repetitive motion.

(Id.)

A December 9, 2011, MRI of the right knee showed the
following: small joint effusion; oblique tear posterior horn of the
medial meniscus extending to the inferior articular surface and the
body; Grade 1 sprain anterior cruciate ligament; and mild
peritendinosis of the popliteus tendon.

(R. 394.)

Dr. Vergari again saw Plaintiff on January 24, 2012, for
complaints of knee pain, shoulder pain, neck pain and back pain.
(R. 378.)

Upon examination, Dr. Vergari recorded the following:

motor strength 5/5 in upper and lower extremity except left
anterior tibialis weakness at 4+; reflexes Tinel’s and Phalen’s
test positive (Carpal Tunnel); left shoulder tenderness, abduction
limited to 75 degrees, negative Hawkins test and negative Neer
impingement sign; cervical spine muscle spasm, limitation of neck
movement to both horizontal planes, cervical and trapezius muscle
spasm, left lateral rotation of 30 degrees, and right lateral
rotation 15 degrees; left knee showed moderate effusion, diffuse
soft tissue swelling and prepatellar swelling, medial and lateral
joint line tenderness, mild crepitus with motion, and all ligaments
appeared stable; right knee showed large effusion, diffuse soft
tissue swelling and prepatellar swelling, medial and lateral joint
line tenderness, mild crepitus with motion, and all ligaments
appeared stable; the thoracic spine showed muscle spasm and
tenderness; the lumbar spine showed lumbosacral paraspinal muscle

10

spasm and single leg raise bilaterally positive at 30 degrees.

Dr.

Vergari’s assessment was similar to that of December 5, 2011, and
his plan included steroid injections of the left shoulder and right
knee, as well as continuing on prescribed medications.

(R. 379-

80.)
Plaintiff had the right knee injection on February 1, 2012,
which resulted in her pain being reduced from ten out of ten to six
out of ten.

(R. 376.)

Plaintiff had the left shoulder injection

on March 14, 2012, which resulted in her pain being reduced from
eight out of ten to four out of ten.

(R. 374.)

At her March 27, 2012, visit with Dr. Vergari, Plaintiff again
reported neck, back, knee and shoulder pain.

(R. 371.)

Plaintiff

reported that the injections helped her knee and shoulder pain but
she still had left knee pain and difficulty walking up and down
stairs as well as neck and back pain that radiates into her upper
and lower extremities bilaterally with parasthesias, and difficulty
sleeping at night due to pain.

(Id.)

To his previous assessments,

Dr. Vergari added “unspecified internal derangement of knee” for
which he planned further testing.

(R. 372.)

Diagnostic testing of

the left knee showed mild degeneration of the medial and lateral
meniscal without tearing, heterogeneous marrow signal of the distal
femur likely related to marrow activity, and a small amount of
joint fluid and small popliteal cyst.

(R. 395.)

Plaintiff reported that her symptoms continued at her May 25,

11

2012, and September 4, 2012, office visits.

(R. 365, 368.)

Examinations and assessments were also similar to earlier visits
except at the September 4th visit, her left knee showed severe
crepitus with motion and limitation of flexion and extension to 75
degrees.

(R. 365-66, 368-69.)

Plaintiff had a steroid injection

of the left knee on September 17, 2012, which resulted in pain
reduction from ten out of ten to six out of ten.
2.

(R. 361.)

Medical Opinion Evidence
On August 19, 2008, an Evaluation of Physical Abilities signed

by a physician, evaluated Plaintiff’s ability to engage in certain
activities by strength level and frequency and duration.1
206.)

(R.

By strength level, all lifting abilities were restricted to

sedentary (one to ten pounds).

(Id.)

Carrying, pushing, and

pulling were restricted to light (eleven to twenty pounds).

(Id.)

The frequency and duration category indicates the following:
Plaintiff could never reach overhead, stoop, squat, crouch, or
balance; she could occasionally (1/3 of the time) reach to the
front, kneel, climb stairs, and engage in repetitive foot movement;
and she could frequently (1/3 to 2/3 of the time) walk, stand, sit,
handling right and left, and fingering right and left.

(Id.)

was also noted that Plaintiff had not achieved maximum medical
improvement.

(Id.)

On October 17, 2011, Dr. Mazza completed an Estimated

1

The signature on the form is not legible.
12

(R. 206.)

It

Functional Capacity Evaluation.

(R. 352-53.)

Dr. Mazza reported

the following limitations: Plaintiff could continuously lift and
carry up to ten pounds, occasionally up to twenty-four pounds, and
never above that; she could frequently push/pull while seated and
occasionally while standing; she could bend, squat, crawl and reach
above shoulder level occasionally; she could never climb; with
rests Plaintiff could sit for six hours, stand and walk for two
hours, and alternate sitting and standing for four hours; Plaintiff
could use her hands repetitively for simple and firm grasping and
fine manipulating; she could use her feet for repetitive movements;
Plaintiff had total restriction from unprotected heights, moderate
restriction from being around moving machinery, and no restrictions
regarding exposure to marked changes in temperature and humidity
and exposure to dust, fumes and gases.

(R. 352-53.)

Dr. Mazza did

not opine whether Plaintiff could return to her former job as the
job was unknown to him.

(R. 353.)

However, he noted that

Plaintiff could return to work on a part-time basis according to
the previously identified restrictions.

(Id.)

In the Disability Determination Explanation dated November 16,
2011, David Hutz, M.D., reviewed the evidence, including the
October 17, 2011, evaluation.2

(R. 82-90.)

He concluded that

Plaintiff had the medically determinable impairment of DDD

2

Dr. Hutz attributes the evaluation to “Steve Maoran.”

86.)
13

(R.

(“Disorders of the Back-Discogenic and Degenerative”) at the severe
level.

(R. 85.)

Regarding credibility, Dr. Hutz determined that

Plaintiff was partially credible: he found that Plaintiff’s
impairment could reasonably be expected to produce her symptoms but
her statements about the intensity, persistence, or functionally
limiting effects of the symptoms were not substantiated by the
objective medical evidence based on her activities of daily living
and her medication and treatment.

(R. 86.)

Dr. Hutz also

concluded that Dr. Mazza’s medical opinion was an overestimate of
Plaintiff’s physical limitations based on the evidence in the file.
(R. 86.)

Dr. Hutz determined that Plaintiff could climb ramps and

stairs, balance, stoop, kneel, crouch, and crawl occasionally but
she could never climb ladders, ropes, or scaffolds.

(R. 87.)

He

found she had no manipulative, visual, or communicative limitations
but she had environmental limitations concerning extreme cold,
wetness, and hazards such as machinery and heights.

(R. 87-88.)

He ultimately concluded Plaintiff was not disabled: she had the
capability of performing light work and appropriate jobs were
available in the national economy.

(R. 89-90.)

On October 5, 2012, Dr. Vergari completed a Physical Residual
Functional Capacity Questionnaire.

(R. 407-12.)

been treating Plaintiff since November 11, 2011.

14

Dr. Vergari had
(R. 407.)

He

diagnosed her with the following:3 1) 836.0--tear of the medial
cartilage or meniscus of knee, current; 2) 726.10–-disorder of the
bursae and tendons in shoulder region unspecified; 3) 722.71–intervertebral disc disorder with myelopathy, cervical region; 4)
722.72--intervertebral disc disorder with myelopathy, thoracic
region; 5) 722.10–-displacement of lumbar intervertebral disc
without myelopathy; 6) 717.9–-unspecified internal derangement of
knee; and 7) 354.0–-carpal tunnel syndrome.

(Id.)

He identified

her prognosis as guarded and listed her symptoms as neck pain, back
pain, shoulder pain and knee pain, all severe, persistent and
chronic in nature.

(Id.)

Clinical findings and objective signs

were recorded as “moderate spasm, limitation of movement, multilevel facet tenderness, joint tenderness, effusion, weakness.”
(Id.)

Dr. Vergari noted that Plaintiff had been treated with

pharmacotherapy, physical therapy, and injection therapy–-all with
minimal improvement.

(Id.)

He opined that the impairments lasted

or could be expected to last at least twelve months, Plaintiff was
not a malingerer, and her symptoms were affected by anxiety.
407-08.)

(R.

Dr. Vergari concluded that Plaintiff’s symptoms were

constantly severe enough to interfere with the attention and
concentration necessary to perform even simple work and she was
incapable of even low stress jobs because of severe pain, spasm,

3

Dr. Vergari identified diagnoses by number.
include the diagnosis description. See
http://www.icd9data.com/2014/Volume 1.
15

(R. 407.)

We

and limitation of movement.

(R. 408-09.)

He specifically found

that Plaintiff could walk less than one block without resting or
severe pain, could sit for fifteen minutes at a time, and stand for
ten minutes at a time.

(R. 409.)

She could sit, stand/walk for

less that two hours in an eight-hour workday and would need periods
of walking around approximately every fifteen minutes for five
minutes at a time.

(R. 409-10.)

She needs a job where she could

shift positions and take unscheduled breaks for about fifteen
minutes at a time.

(R. 410.)

Dr. Vergari noted that Plaintiff

would have to use a cane or other assistive device when engaging in
occasional standing/walking.

(Id.)

He opined that she could never

lift or carry, look up or down, twist, stoop, crouch, or climb
ladders; she could rarely turn her head to the left or right and
climb stairs and she could occasionally hold her head in a static
position; Plaintiff has significant limitations with reaching,
handling or fingering, with less than 10% ability to grasp, turn or
twist objects with her hands, finely manipulate with her fingers,
and reach with her arms.

(R. 410-11.)

Dr. Vergari

concluded that

Plaintiff’s impairments would produce good days and bad days,
resulting in her being absent from work more than four days per
month.

(R. 411.)

Finally, he opined that she was temporarily

disabled and unable to work full-time at any level of exertion.
(R. 412.)

16

3.

ALJ Decision
By decision of October 23, 2012, ALJ Zack determined that

Plaintiff was not disabled as defined in the Social Security Act.
(R. 26.)

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, 2014.

2.

The claimant has not engaged in
substantial gainful activity since
November 1, 2007, the alleged onset date
(20 CFR 404.1571 et seq.).

3.

The claimant has the following severe
impairments: degenerative disc disease
of the cervical spine and degenerative
disc disease of the lumbar spine (20 CFR
404.1520(c)).

4.

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

5.

After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform a range
of sedentary work as defined in 20 CFR
404.1567(a). She could lift up to 10
pounds occasionally, 2 or 3 pounds
frequently. The claimant, given normal
breaks and lunch periods, cumulatively,
over the course of a given workday,
could sit for at least 6 out of 8 hours.
She could be on her feet, either
standing or walking, for about 2 out of
8 hours cumulatively. To sustain a full
17

8-hour workday or the equivalent
thereof, the claimant could only walk
short distances, such as around
immediate workstation or no more than a
city block. When she is on her feet
standing, it would be for short periods
at a time, with standing activities not
exceeding 10-15 minutes at a time. The
claimant has restrictions in using her
arms for work above shoulder or head
level. She maintains full use of her
hands for grasping and manipulation.
The claimant should avoid any job that
requires her to climb, including ladders
and scaffolds. She should also avoid
any job that exposes her to hazards,
such as unprotected, dangerous machinery
and unprotected heights. The claimant
should not be exposed to constant
vibration as part of her job duties.
From a nonexertional standpoint, the
claimant should not be placed in any
work environment where she is exposed to
extremes of temperature or humidity, or
heavy concentrations of dusts, fumes,
odors, or gases.
6.

The claimant is unable to perform any
past relevant work (20 CFR 404.1565).

7.

The claimant was born on April 27, 1968
and was 39 years old, which is defined
as a younger individual age 18-44, on
the alleged disability onset date (20
CFR 404.1563).

8.

The claimant has a limited education and
is able to communicate in English in
only a limited rudimentary fashion (20
CFR 404.1564).

9.

Transferability of job skills is not an
issue in this case because the
claimant’s past relevant work is
unskilled (20 CFR 404.1568).

10.

Considering the claimant’s age,
education, work experience, and residual
18

functional capacity, there are jobs that
exist in significant numbers in the
national economy that the claimant can
perform (20 CFR 404.1569 and
404.1569(a)).
11.

The claimant has not been under a
disability, as defined in the Social
Security Act from November 1, 2007,
through the date of this decision (20
CFR 404.1520(g)).

(R. 19-26.)
The ALJ considered Plaintiff’s back and neck problems,
concluding the medically determinable impairments of degenerative
disc disease of the cervical and lumbar spine could reasonably be
expected to cause the alleged symptoms but Plaintiff’s statements
about the intensity, persistence and limiting effects of the
symptoms “are not credible to the extent they are inconsistent with
the above residual functional capacity assessment.”

(R. 22.)

The

ALJ noted that the record did not support Plaintiff’s alleged level
of incapacity.

(Id.)

Citing exhibits containing medical records from November 2007
through September 2012, the ALJ does not cite to specific documents
in support of his conclusions, including that “[o]bjective signs
and finding on physical examination are not particularly adverse,”
and “the claimant maintains good use of her hands.”

(R. 22 (citing

Exhibits 2F, 3F, 6F, and 7F).)
Regarding opinion evidence, the ALJ gave some weight to Dr.
Hutz’s opinion but found Plaintiff limited to sedentary work with

19

some limitations rather than the light work Dr. Hutz had concluded
appropriate.

(R. 23.)

ALJ Zack states that he gave “appropriate

weight” to Dr. Mazza’s opinion–-agreeing that Plaintiff would be
capable of performing a range of sedentary work with limitations
but disagreeing with Dr. Mazza’s opinion that Plaintiff is only
capable of part-time work.

(R. 24.)

Rejecting the opinions of Dr.

Vergari presented in the Residual Functional Capacity
Questionnaire, without citation to the record the ALJ supports his
conclusion on the basis that “it is inconsistent with the other
evidence of record, including findings upon examination and
diagnostic testing.”

(R. 24.)

ALJ Zack also notes that Dr.

Vergari’s opinion that Plaintiff is disabled is an issue reserved
to the Commissioner purusant to SSR 96-5p.

(Id.)

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

It is necessary for the

4

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less that 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
20

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).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.

Id.

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

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).
21

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 that Plaintiff was
capable of performing sedentary work that existed in sufficient
numbers in the national economy.

(R. 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).
means “more than a mere scintilla.

Substantial evidence

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); see

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–22

particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.

If she has not done so and has not

sufficiently explained the weight given to all probative exhibits,
“to say that [the] 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.”
1979).

Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.

In Cotter, 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.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
23

See, e.g., Knepp v.

“There is no requirement

that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Cir. 2004).

Hur v. Barnhart, 94 F. App’x 130, 133 (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).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.

Hartranft,

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

“However,

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

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

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.

See, e.g., Albury v.

Commissioner of Social Security, 116 F. App’x 328, 330 (3d Cir.
2004) (not precedential) (citing Burnett v. Commissioner, 220 F.3d
24

112 (3d Cir. 2000) (“[O]ur primary concern has always been the
ability to conduct meaningful judicial review.”).

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.
606 F.2d at 406.

See Dobrowolsky,

Social Security 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.
F.2d at 406.

Dobrowolsky, 606

Further, the court in Dobrowolsky noted “the cases

demonstrate that, consistent with the legislative purpose, courts
have mandated that leniency be shown in establishing the claimant’s
25

disability, and that the Secretary’s responsibility to rebut it be
strictly construed.”
B.

Id.

Plaintiff’s Alleged Errors
Plaintiff first asserts the decision of the Social Security

Administration is error because his RFC assessment is not supported
by substantial evidence for the following reasons: 1) the ALJ
failed to discuss and consider several of Plaintiff’s impairments
(Doc. 15 at 7); 2) the ALJ failed to give adequate weight to the
opinion of Plaintiff’s treating physician (id. at 8); 3) the ALJ
failed to properly consider 20 C.F.R. § 404.1527(d) in evaluating
the opinion of the treating physician (id. at 12); 4) the ALJ erred
in failing to contact Plaintiff’s treating physician (id. at 13);
and 5) the ALJ failed to include the required “function-byfunction” assessment (id. at 14).

Plaintiff also contends the ALJ

did not properly consider Plaintiff’s use of a cane: 1) he did not
consider the impact of the need for an assistive device on
Plaintiff’s ability to perform sedentary work; and 2) he did not
pose a hypothetical question which included the use of a cane.
(Id. at 16-17.)

Finally, Plaintiff maintains the Acting

Commissioner did not sustain her burden of establishing that there
is other work in the national economy Plaintiff could perform (id.
at 18).
1.

Consideration of All Impairments
In support of her argument that the RFC assessment is not
26

supported by substantial evidence, Plaintiff asserts that the ALJ
ignored several impairments diagnosed by Dr. Vergari including a
tear of the medial cartilage or meniscus of the knee, derangement
of the knee, carpal tunnel, bilateral shoulder pain, and rotator
cuff tendinopathy.

(Doc. 15 at 7 (citing R. 281, 379, 399).)

Defendant responds that the ALJ properly considered all of
Plaintiff’s relevant impairments.

(Doc. 18 at 13.)

After careful

consideration of the record, we conclude that the ALJ erred on this
basis and his error is cause for remand.
The record shows that Plaintiff complained of shoulder pain at
her visit with Dr. Mazza on October 6, 2008, and examination showed
“painful ROM in all planes[,] . . . positive impingement sign as
well as cross-over abduction test[, and] . . . positive empty the
can test.”

(R. 209.)

Dr. Mazza noted that Plaintiff’s strength

seemed to be intact although it was difficult to assess because of
pain.

(Id.)

He planned to do a nerve conduction study to

determine whether the pain was from the bulging disc in her neck or
originating in the left shoulder.

(Id.)

Following the nerve

conduction study (R. 210) and MRI of the shoulder (R. 214), Dr.
Mazza concluded that the cervical region was the likely origin of
the pain–-“specifically on the left sided disc herniation at C5-6
which seems to be essentially consistent with the patient’s left
upper extremity radicular complaints.”

(R. 216.)

Though Plaintiff was regularly treated for degenerative disc

27

disease of her cervical spine (see, e.g., R. 217, 263, 399, 403),
complaints of shoulder pain do not become a regular issue until
December of 2011.

On December 5, 2011, Dr. Vergari noted that

Plaintiff’s “neck pain radiates to her left arm and shoulder with
left hand paresthesias.

Patient complains of stiff neck and at

times is not able to move her left hand.”

(R. 381.)

Examination

of the left shoulder showed “tenderness at supraspinatus insertion.
ROM: abduction limited to 75 degrees.
test, negative Neer Impingement sign.”

Tests: negative Hawkin’s
(R. 382.)

He assessed

Plaintiff to have “[u]nspecified disorders of bursae and tendons in
shoulder region.”

(R. 383.)

The shoulder problem was noted, and examinations and
assessments were similar at Plaintiff’s office visits on January
24, 2012 (R. 378-79), March 27, 2012 (R. 371-72), May 25, 2012
(368-69), and September 4, 2012 (R. 365-66).

Plaintiff had an

injection in her shoulder on March 14, 2012 (R. 374), and
experienced some pain relief (R. 368, 371).

At the time of the

procedure, it was noted that Plaintiff’s pain decreased from eight
out of ten to four out of ten.

(R. 374.)

Similarly, Plaintiff’s knee problem is documented in the
record, as well as treatment for it and limitations which may be
associated.

(See R. 263, 365-66, 368-69, 371-72, 378-79, 381-83,

The knee problem complained of is supported by diagnostic testing.
(R. 394, 395.)

Plaintiff received an injection in her right knee

28

on February 1, 2012, which reduced her pain level from ten out of
ten to six out of ten.

(R. 376.)

Though pain improved in her

right knee, Plaintiff continued to have pain in her left knee and
difficulty walking up and down stairs, limitation of movement, and
severe crepitation.

(R. 365, 368.)

Plaintiff had a left knee

injection on September 17, 2012, with a reduction in pain noted
from 10 out of 10 to 6 out of 10.

(R. 361.)

Plaintiff’s carpal tunnel syndrome is also documented as shown
by diagnostic testing completed on November 22, 2011.

(R. 399.)

Thereafter, it was continually noted by Dr. Vergari upon
examination and in his assessment.

(See R. 366, 369, 372, 379,

382-83.)
All of these problems were reflected in the diagnoses listed
on the October 5, 2012, Physical Residual Functional Capacity form
completed by Dr. Vergari.

(R. 407-12.)

Plaintiff also testified

that she had shoulder and knee problems for which she received
treatment.

(R. 63.)

She also testified that these problems caused

pain and that she got relief from the injections and medication.
(Id.)
We have had occasion to consider the issue of an ALJ’s alleged
failure to adequately consider and/or discuss alleged
medical/mental health issues in two recent decisions, Martin v.
Coleman, Civ. A. No. 3:14-CV-1730, 2015 WL 1499874, at *13 (M.D.
Pa. Apr. 10, 2015), and Keys v. Colvin, Civ. A. No. 3:14-CV-191,

29

2015 WL 1275367, at *11 (M.D. Pa. Mar. 19, 2015).

Because the

Acting Secretary’s decision can only be deemed to be based on
substantial evidence where the ALJ’s analysis is sufficiently
thorough, see, e.g., Dobrowolsky, 606 F.2d at 406, an ALJ’s failure
to discuss medical problems documented and discussed by a
plaintiff’s treating physician falls short of the evidentiary
standard, see Martin, 2015 WL 1499874, at *13.
Defendant points to evidence allegedly supporting the ALJ’s
determination (Doc. 18 at 13-17), but we cannot conclude this
evidence provides the support suggested or satisfies the ALJ’s
obligation.

First, we cannot say that the ALJ fulfilled his duty,

not only to state the evidence considered which supports the
result, but also to indicate what evidence he rejected as he did
not explain the rejection of probative evidence related to
Plaintiff’s alleged shoulder and knee impairments, as well as her
carpal tunnel syndrome.

See Cotter, 642 F.2d at 706-07.

While we

have found that an alleged step two error may be harmless, Keys,
2015 WL 1275367, at *11, the situation here is analogous to Martin
where we found that remand was required.

In Keys and the cases

relied upon therein,5 the ALJ considered the symptoms and
5

Salles v. Commissioner of Social Security, 229 F. App’x
140, 145 n.2 (3d Cir. 2007) (not precedential) (citing Rutherford
v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)); Garcia v.
Commissioner of Social Security, 587 F. App’x 367, 370 (9th Cir.
2014) (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007));
Burnside v. Colvin, Civ. A. No. 3:13-CV-2554, 2015 WL 268791, at
*13 (M.D. Pa. Jan. 21, 2015); Lambert v. Astrue, Civ. A. No. 0830

functional limitations associated with the non-severe impairment in
his RFC analysis.

Id.

Because ALJ Zack did not acknowledge or

discuss numerous diagnoses (see R. 407), we have no basis to
conclude that he took into account allegedly associated symptoms
and functional limitations.

As set out in our review of the

evidence above, the record shows that both Plaintiff and Dr.
Vergari noted pain and other symptoms associated with shoulder and
knee conditions–-conditions verified by objective diagnostic
testing.

Furthermore, the chronology of when Plaintiff’s knee and

shoulder problems and carpal tunnel syndrome developed as
consistent problems undermines the ALJ’s reliance on the opinions
of Doctors Hutz and Mazza over that of Dr. Vergari: Dr. Vergari is
the only physician who regularly treated Plaintiff after these
conditions were diagnosed.

The relationship of these problems to

consideration of Plaintiff’s credibility also supports the need for
a thorough analysis of all impairments supported by the record.
Second, the rationale now provided by Defendant in support of
the ALJ on this issue is neither substantively sufficient nor
procedurally appropriate.

It is substantively deficient because

it does not address the problems previously noted.

It is

procedurally inappropriate because, as Plaintiff notes, Defendant
now “proffers a series of post hoc rationalizations in violation of
the Chenery doctrine.”

(Doc. 19 at 2 (citing SEC v. Chenery Corp.,

657, 2009 WL 425603, at *13 (W.D. Pa. Feb. 19, 2009).
31

318 U.S. 80 (1943) (hoding “[t]he grounds upon which an
administrative order must be judged are those upon which the record
discloses tht its action was based.”).

We agree that Defendant

cannot do at this stage of the proceedings what the ALJ should have
done.

It is the ALJ’s responsibility to explicitly provide reasons

for his decision and the analysis later provided by Defendant
cannot make up for the analysis lacking in the ALJ’s decision.
Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001); Dobrowolsky,
606 F.2d at 406-07.
For these reasons we conclude the ALJ’s error affected his RFC
analysis and cannot be deemed harmless.

Thus, this matter must be

remanded to the Acting Commissioner for further consideration.
Upon remand, all evidence relating to Plaintiff’s diagnosed
conditions must be evaluated pursuant to relevant regulations,
caselaw, and social security rulings.
Having determined that remand is required, we need not discuss
Plaintiff’s remaining arguments regarding whether substantial
evidence supports the ALJ’s RFC assessment.

However, we note that

an ALJ’s specific rather than general citation to a lengthy exhibit
of record in support of his RFC determination is important for the
reviewing court to determine if his decision is based on
substantial evidence–-while every tidbit of evidence and every
factor set out in rulings and regulations need not be specifically
discussed, substantial evidence cannot be established with
conclusory statements and broad reference to the record.

32

2.

Plaintiff’s Use of Assistive Device
Plaintiff avers that the ALJ’s RFC assessment is not supported

by substantial evidence given the uncontroverted evidence that she
uses a cane.

(Doc. 15 at 16.)

Specifically, she argues that: 1)

the ALJ did not consider the impact of the need for an assistive
device on her ability to perform sedentary work; and 2) he did not
pose a hypothetical question which included the use of a cane.
(Doc. 15 at 16-17.)
Because we have determined remand is required as discussed
above and that remand will encompass a reevaluation of Dr.
Vergari’s finding that Plaintiff needed to use a cane at times (R.
410), Plaintiff’s use of a cane will be addressed upon remand.
Therefore, further discussion of this issue is not required at this
time.
3.

Step Five Finding
Plaintiff maintains the Acting Commissioner did not sustain

her burden of establishing that there is other work in the national
economy Plaintiff could perform.

(Doc. 15 at 18.)

Defendant

responds that the ALJ properly relied on the VE’s testimony: even
if there was some erosion in the numbers of the jobs identified
because of varied levels of exertion, the ALJ was entitled to rely
on the VE’s testimony that sufficient numbers of jobs exist which
Plaintiff could perform.

(Doc. 18 at 23-26.)

Because remand is otherwise required for reconsideration of

33

earlier steps in the sequential process, further proceedings may
well lead to a determination that Plaintiff has limitations which
were not previously credited and/or considered.

Therefore,

additional VE testimony may be called for and a decision on this
issue is not required at this time.
V. Conclusion
For the reasons discussed above, we conclude Plaintiff’s
appeal is properly granted.

This matter is remanded to the Acting

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: April 21, 2015

34