Stugart v. Commissioner of Social Security

Filing 15

MEMORANDUM (Order to follow as separate docket entry)The Court, having examined the entire record in this case and having reviewed the ALJs decision, is not convinced that the outcome here is based upon substantial evidence of record that a reasonabl e mind accept as adequate to support a conclusion as required by Richardson v. Perales, supra. Thus, the Court will require that the Commissioner provide a revised decision that provides a clearer explanation of why claimants complaints of pain were deemed to be exaggerated and precisely what elements of the record provide the foundation for the ALJs determination of Plaintiffs residual functional capacity. In the alternative, the Commissioner may issue an opinion awarding the Plaintiff DIB benefits inasmuch as there is certainly substantial evidence of record supporting that outcome. An Order consistent with these determinations will be filed simultaneously herewith. BY THE COURTSigned by Honorable Richard P. Conaboy on 2/18/15. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JUSTIN STUGART

:

Plaintiff

: Case NO. 3:14-CV-1291

v.

:

Commissioner of Social Security

: (Honorable Richard P. Conaboy)

Defendant

:

___________________________________________________________________
Memorandum
We consider here Plaintiff’s Appeal of a denial of Disability
Insurance Benefits (“DIB”) under Title II of the Social Security
Act (“ACT”) 42 U.S.C. §§ 401-433 (Doc. 1).

The Administrative Law

Judge (“ALJ”) who evaluated the claim found that the Plaintiff had
the Residual Functional Capacity (“RFC”) to perform light work with
certain limitations and that such work was available to Plaintiff
(R.12-21).
(R.21).

Thus, the ALJ denied Plaintiff’s claim for DIB.

Plaintiff’s Appeal is based upon two assertions: (1) that

the ALJ erred in his assessment of Plaintiff’s RFC; and (2) that
the ALJ erred in giving insufficient weight to the Plaintiff’s
testimony regarding his level of pain and physical limitations.
(Doc. 12, 3-6).

For the reasons discussed below, we determine that

this case must be remanded for further clarification by the ALJ.
I.

Background.
A.

Procedural Background.

On November 17, 2011, Plaintiff filed an action for DIB
1

alleging an onset date of January 5, 2011.

(R.128-130).

In the

Disability Report, Plaintiff alleges that his disability stems from
back symptomology which keeps him in constant pain and limits his
flexibility and ability to move around. (R.173-178).

Plaintiff’s

claim was denied initially by the Pennsylvania Disability
Determination Service.

(R.95).

Plaintiff requested a hearing

before an ALJ and that hearing was held on September 13, 2012.
(R.12).

Present at the hearing were: ALJ Michelle Wolfe;

Plaintiff, Plaintiff’s Attorney, Norman M. Lubin, and, via
telephone, Vocational Expert Gerald W. Keating.

(Id).

issued an unfavorable decision on December 10, 2012.

The ALJ
(R.22).

On

February 13, 2013, Plaintiff filed a request for review by the
Appeals Council.

(R.7-8).

The Appeals Council denied Plaintiff’s

request on May 6, 2014 (R.1-5) thus confirming the ALJ’s decision
as that of the Acting Commissioner.
On July 3, 2014, Plaintiff filed an action with this Court
appealing from the Acting Commissioner’s decision (Doc. 1).
Defendant filed her answer and the Social Security Administration
transcript on September 3, 2014.

(Docs. 10 and 11).

Plaintiff

filed his brief on October 20, 2014 along with a Statement of
Medical Facts.

(Docs. 12 and 13).

November 13, 2014.

(Doc. 14).

Defendant filed her response on

Plaintiff has not filed a reply

brief, the time for doing so has run, and this matter is ripe for
disposition.

2

B.

Factual Background.

Plaintiff was born on June 5, 1982.
onset date of January 5, 2011.

(Id).

(R.48).

He alleges an

Plaintiff completed the

eleventh grade and subsequently obtained a GED.

(R.48-49).

He

last worked as a sawyer at a job where he performed no lifting, was
allowed to work in a seated position, and basically operated a set
of levers.

(R.69-71). Plaintiff left this last employment due to

various back symptoms that necessitated two separate surgical
interventions, a lumbar laminectomy and microdiskectomy at L5 in
March 2011 and a right L4-L5 laminectomy, foraminotomy and
diskectomy on April 25, 2011 (R.16-17).

On August 14, 2012 a

surgeon advised Plaintiff that a surgical fusion at L4-L5 “may help
your back pain” but also advised that the success rate for such
surgery is about 60 to 70%”.

(R.493). Plaintiff has not undergone

the fusion at the time the record was closed.
C.

Physical Impairment Evidence.

The medical evidence of record indicates that Plaintiff has a
history of low back pain and lower extremity radiculopathy dating
back, at a minimum, to January 5, 2011, the date on which he “felt
a pop and pain at left low back and left buttock pain” while in the
course of pushing a heavy object.

(R.221).

Dr. David Kahler

evaluated Plaintiff at Muncey Valley Hospital on January 7, 2011
and diagnosed an acute low back strain with left sciatica and acute
low back pain.

(R.226).

Dr. Kahler prescribed a muscle relaxant

3

and pain medication, directed Plaintiff to follow up with his
family physician, and suggested he make an appointment with an
orthopedic surgeon.

(Id).

On January 13, 2011, Plaintiff underwent an MRI of the lumbar
spine that was interpreted by Dr. David Quintana to indicate
herniations from L3-4 through L5-S1 with the largest at L4-5.
(R.235).

On February 2, 2011, Dr. Shelly Timmons, a neurosurgeon,

examined Plaintiff and reviewed his MRI film and reached
essentially the same conclusions as Dr. Quintana but advised
Plaintiff to have additional diagnostic testing “to offer him the
least amount of surgery to correct his problem.”

(R.244-45).

Dr.

Timmons prescribed Vicodin and Carisoprodol to alleviate
Plaintiff’s low back pain.

(R.246).

On March 14, 2011, Plaintiff was admitted to the Williamsport
Hospital and Medical Center where he was operated on by Dr. Hani J.
Tuffaha.

(R.47).

Dr. Tuffaha performed a left L3-L4 laminectomy,

foraminotomy, and diskectomy along with a left L4-L5 laminectomy
and foraminotomy with decompression of the left L5 nerve root.
(Id).

Dr. Tuffaha reevaluated Plaintiff during an office visit

conducted March 23, 2011 and found he was doing extremely well and
released him to return to sedentary work effective March 28, 2011.
(R.43).

However, Dr. Tuffaha noted in his office notes of April

15, 2011 that, on March 30, 2011, Plaintiff experienced “a sudden
onset of new severe right leg pain involving the groin and the

4

lateral aspect of the foot and toes.”

(R.40).

Dr. Tuffaha’s

impression of Plaintiff’s condition on April 15, 2011 was “new disc
extrusion L4-L5, central and right with intractable severe right L5
radiculopathy.” (Id).

Plaintiff was prescribed Percocet for his

pain until a second surgery could be scheduled.

(R.40) Plaintiff’s

second surgery, another laminectomy, foraminotomoy, and diskectomy
at L4-5, was performed on April 25, 2011 by Dr. Tuffaha.

(R.478,

480).
Between August 8, 2011 and June 13, 2012, Plaintiff visited
the Susquehanna Community Health and Dental Clinic on at least nine
occasions.

(R.436-454).

On each of these occasions he was

assessed to be experiencing persistent low back pain, lumber
vertebral syndrome, and/or severe low back pain. (Id).

Nurse

Practitioner Karen Peterman, working in consultation with
Christopher Wagner, M.D., noted that claimant’s pain worsened with
back flexion and twisting movements and that the pain was
aggravated by lifting, bending over and getting up from a sitting
or lying position.

(R.451).

During this time he was prescribed

various pain inhibiting medications and received a lumbar epidural
injection on March 26, 2012. (Id).
The Pennsylvania Bureau of Disability Determination sent
Plaintiff for an evaluation by Dr. R. C. Nielsen in December of
2011. (R.413).

Dr. Nielsen noted persistent low back, pelvic, and

groin pain of “unclear ediology”.

(R.418).

5

Dr. Nielsen concluded

that Plaintiff’s prognosis was “fair to good” and opined that
Plaintiff had no limitations with respect to bending, kneeling,
stooping, crouching, balancing, climbing, and that he had no
limitations with respect to standing, walking or sitting; and that
he could lift and carry up to 100 pounds.

(R.418-420).

Despite Dr. Nielsen’s rosy assessment of Plaintiff’s physical
status, a subsequent consult with Dr. G. Timothy Reiter, Associate
Professor of Neurology at the Milton S. Hershey Medical Center in
March of 2012, caused Dr. Reiter to opine that an additional
surgery - - a fusion at L4-L5 - - may help Plaintiff’s back pain.
(R.492-487).

Dr. Reiter also indicated, however, that the success

rate for surgery of this type is only 60-70%.

(R.493).

The record

contains no indication whether Plaintiff continues to contemplate
this additional surgery.
D.

ALJ Hearing Testimony.

In the SSA’s “Function Report-Adult” (R.173-182), Plaintiff
stated, in response to the question of how his injuries and
conditions limited his ability to work, “Not able to move, lift or
get around.
position”.

To(sic) much pain constant - - never can find a good
(R.173).

Plaintiff also related that he was not able

to get comfortable and would wake up in pain throughout the night.
(R.174).

He acknowledged that he could prepare frozen dinners for

himself but that he could not stand long enough to prepare complete
meals. (R.175).

He indicated that he could not handle household

6

chores like cleaning, ironing, laundry, or yard work.

(Id).

He

stated that he was not able to do yard work because he was in too
much pain.

(Id).

him 15-20 minutes.

He shops weekly for basic things and this takes
(Id).

With respect to his interests and social

activities he stated that he could no longer go out and do the
activities he formerly liked due to his pain.

(R.177-78).

He

indicated that he can walk up to 50 yards on a good day but that he
would then have to sit and rest for 10-15 minutes before
continuing.

(R.178).

In response to a question asking him to

identify “unusual behaviors or fears”, he stated that he has a
“fear of movement not knowing when or what is going to happen”.
(R.179).

He related that he was in pain for some years before the

onset date of January 5, 2011, that his pain is concentrated in his
vertebrae and spreads down his legs and numbs his feet and that the
pain, while worst in the morning, is constant.

(R.181).

He stated

that activities such as lifting, squatting, bending, standing,
reaching, walking, sitting, kneeling and stair climbing affect his
pain level.

(R.178).

At the hearing before the ALJ in September of 2012, Plaintiff
testified that he has moved in with his father and that his bedroom
is on the first floor.

(R.48).

He stated that he had gained

thirty pounds since his onset date and that he never drives. (Id).
He testified that his original injury predated his onset date and
that he does not receive worker’s compensation.

7

(R.51).

His only

income, as of the date of the hearing, is $550.00 in unemployment
compensation that he receives bi-weekly.

(R.50).

He testified

that he filed for unemployment benefits at his employer’s
direction.

(Id).

After describing the two back surgeries he had endured,
Plaintiff testified that he saw a “disability physician guy”.
(R.53).

Plaintiff related that this disability physician had him
1

lay on a table and manipulated his legs like bicycles”.

(Id).

Plaintiff stated that he felt worse after his encounter with the
disability physician and sought the opinion of a second surgeon in
Hershey.

(Id).

His interpretation of that surgeon’s advice was

that he requires a fusion at L4-L5.

(R.54).

Plaintiff testified further that he takes Oxycodone for pain
and another medication for inflammation.

(R.58).

He states that

it takes him 35-40 minutes to get out of bed each morning and that
it is his right side that gives him the most trouble.

(R.58-59).

He also stated that both sides of his body hurt and that he has
pain in the groin area.

(Id).

Finally, he testified that the

first two toes on his right foot are totally numb.

(Id).

Plaintiff testified that he formerly could cut his father’s
grass with a self-propelled mower in thirty minutes.

(R.60).

the same job reportedly takes him 4-5 times as long.

(Id).

Now
He

stated that even to do dishes, which he does on a regular basis, he

1

The Court presumes that the “disability physician” is the aforementioned Dr. Nielsen.
8

must alternately sit and stand to complete the task.

(Id).

He

indicated that he had an extra handle added to the shower area
because, at times, it feels like his right leg is giving out.
(Id).
Plaintiff indicated: that he can walk 2-3 blocks without
stopping; that when he stands he finds it necessary to hunch due to
groin pain; that he can sit for no more than 15-20 minutes before
needing to stand; that he carries nothing heavier than a towel; and
that he had been incapable of carrying a gallon of milk without
feeling as though he was falling forward about a month before the
hearing.

(R.61-62).

Upon questioning by his counsel, Plaintiff stated: that he
must sleep in the fetal position but, even then, he does not get
more than 2-3 hours of uninterrupted sleep; that he needs to rest
often during the day; that even after his employer modified his
last job so that he could work seated and change his position as
often as necessary, he would experience pain so severe that he
would be in tears and would need to shut the machine down; and that
he does not believe he is capable of performing a sedentary or
light duty job on a sustained basis.

(R.63-64).

Plaintiff also

indicated that the pain medications make him drowsy, that he tries
to take as few of them as possible and that he has a high pain
tolerance.

(R.65).

Testimony was also provided by Gerald Keating, a vocational

9

expert.

Mr. Keating testified that he had reviewed Plaintiff’s

work history prior to the hearing and recounted that history in his
testimony.

(R.66).

He then asked Plaintiff for detail regarding

the nature of his duties at each of his prior places of employment.
(R.66-72).

In response to a hypothetical question from the ALJ,

Mr. Keating stated that Plaintiff would be unable to perform any of
the jobs he had previously performed.

(R.73-74).

The hypothetical

question to which Mr. Keating responded asked him to “assume an
individual who has the same age, education, and work experience as
the claimant, and has the residual functional capacity to perform
work at a light exertional level as defined by the regulations but
subject to the following limitations.

The individual is limited to

no pushing or pulling with the lower extremities; occasional
balancing, stooping, crouching, crawling, kneeling and climbing,
but never on ladders, ropes, or scaffolds.

The individual would

need to avoid concentrated exposure to temperature extremes of
cold, wetness, vibrations, and hazards such as moving machinery and
unprotected heights.”

(Id). Mr. Keating stated that there were

various sedentary jobs (e.g., production assembler, packer,
benchworker, telephone receptionist, data entry, etc.) which
Plaintiff could perform given the hypothetical limitations imposed
by the ALJ.
E.

(R.74-76).

ALJ Decision.

The ALJ determined that Plaintiff had not been under a

10

disability between January 5, 2011 and the date of her decision,
December 10, 2012.

She 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,
2015.

2.

The claimant has not engaged in substantial gainful
activity since January 5, 2011, the alleged onset
date.

(20 CFR 404.1571 et sec., and 416.071 et

sec.).
3.

The claimant has the following severe impairments:
degenerative disc disease with herniated nucleus
pulposus, status-post laminectomy and foraminotomy
and radiculopathy (20 CFR 404.1520(c) and
416.920(c)).

4.

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

5.

After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform less than

11

the full range of sedentary work as defined in 20
CFR 404.1567(a) and 416.967(a).

He would be limited

to no pushing and pulling with the lower
extremities.

He could occasionally balance, stoop,

crouch, crawl, kneel and climb but never on ladders,
ropes, or scaffolds.

He should avoid concentrated

exposure to temperature extremes of cold, wetness,
vibrations, and hazzards, such as moving machinery
and unprotected heights.

He would require a

sit/stand option at will but would not be off task
with transferring.
6.

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

7.

The claimant was born on June 5, 1982 and was 28
years old, which is defined as a younger individual
age 18-44, on the alleged disability onset date. (20
CFR 404.1563 and 416.963).

8.

The claimant has a limited education and is able to
communicate in English (20 CFR 404.1564 and
416.964).

9.

Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether

12

or not the claimant has transferable job skills.
(See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).
10.

Considering the claimants age, education, work
experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the claimant can perform.

(20

CFR 404.1569 404.1569(a), 416.969, and 416.969(a)).
11.

The claimant has not been under a disability as
defined in the Social Security Act, from January 5,
2011, through the date of this decision.

(20 CFR

404.1520(g) and 416.920(g)).
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.2

It is necessary for the

2

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

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

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

The initial burden rests with the claimant to demonstrate

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

If the claimant satisfies this burden, then the Commissioner

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

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

As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found there are jobs that
exist in the national economy that Plaintiff is able to perform.
(R.19).
III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to

14

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–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,
15

“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).

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.
16

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
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,

17

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

Id.

Plaintiff’s Alleged Errors.

Plaintiff alleges that the ALJ erred in two respects: (1) that
she failed to give proper weight to the Plaintiff’s testimony
regarding his level of pain; and (2) that her assessment of the
Plaintiff’s RFC is unsupported by substantial evidence of record.
These arguments do merge because the degree of Plaintiff’s pain and
his RFC are inextricably intertwined.
18

Nevertheless, we shall

review both assignments of error independently.

Our review of the

record has persuaded the Court that the Plaintiff’s assignments of
error are well-supported enough to require a remand of this case.
1.

Plaintiff’s Allegations of Pain.

The record in this case well establishes that Plaintiff is
experiencing severe and chronic pain.

This pain has been

documented at various points in time by three treating physicians - Drs. Kahler, Tuffaha, and Reiter, two of whom, Tuffaha and
Reiter, are neurosurgeons.

(See pages 3-6 ante).

Indeed, the ALJ

acknowledges in her decision that the claimant has severe
impairments including degenerative disc disease, herniated nucleus
pulposus, status-post laminectomy, and foraminotomy and
radiculopathy.

(R.14).

The ALJ also found that “the claimant’s

medically determinable impairments could reasonably be expected to
cause the alleged symptoms”.

(R.18).

Yet, the ALJ concludes that

this well-documented severe and chronic pain is not severe enough
to render Plaintiff disabled.

(Id).

The ALJ’s decision to

partially discredit Plaintiff’s testimony regarding the persistence
and intensity of his pain is founded principally upon Dr. Nielsen’s
observation that he found it “interesting” that Plaintiff had been
prescribed pain medication two days prior to his consult and that
Plaintiff had not yet obtained that medication.”

(R.18).

This

Court finds it similarly interesting that the Plaintiff has
testified that these medications make him drowsy, that he tries to

19

limit his consumption of them, and that he has a high tolerance for
pain.

(R.65).

3

The record also indicates that these medications

have not always alleviated Plaintiff’s pain.

(R.65 and 444).

In

light of these consideration, the Court does not view Dr. Nielsen’s
observation about Plaintiff’s delay in picking up his medication as
particularly probative of the proposition that his pain is less
severe than he indicates.
The ALJ states that “the claimant’s statements concerning the
intensity, persistence, and limiting effects of the symptoms are
not credible to the extent they are inconsistent” with Dr.
Nielsen’s RFC assessment.

The Court is skeptical of this seemingly

cavalier dismissal of Plaintiff’s pain level when the record is
redolent of objective evidence of structural problems in
Plaintiff’s back that, by the ALJ’s own assessment, “could
reasonably be expected to cause the alleged symptoms”.

(R.18).

In

our circuit, it has been held that pain alone can result in
disability and that “testimony of subjective pain and inability to
perform even light work is entitled to great weight, particularly
when...it is supported by competent medical evidence”.
v. Califano, supra, at 409.

Dobrowolsky

Here, it appears that the claimant’s

testimony, which is supported by copious objective evidence of
impairments which could be expected to produce great pain, was
3

The Court also notes that the medical records document that Plaintiff has taken, at various
times since January 5, 2011, Vicodin, Carisoprodol, Percocet, Oxycodone, Robaxin, and Tramodol
as well as receiving at least one epidural injection in an effort to combat his back pain.
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apparently given very little weight.

Thus, the Court will require

a more comprehensive explanation why claimant’s testimony was not
given “great” weight as required by Dobrowolsky.
B.

Plaintiff’s Allegations Regarding the ALJ’s Determination
of his RFC.

The only support in the record for the ALJ’s hypothetical
question to the vocational expert, which asked him to assume, inter
alia, that Plaintiff could perform light work involving “occasional
balancing, stooping, crouching, crawling, kneeling and climbing”,
finds scant basis in the record.

Here again, it appears that the

ALJ relied upon Dr. Nielsen in determining the Plaintiff’s RFC.
The ALJ stated cryptically:
In a medical source statement, Dr. Neilsen found no
limitations whatsoever.

While great weight is given

to Dr. Neilsen’s findings on examination, no weight
is given to his opinion in the medical source
statement.

(emphasis supplied) (R.18).

The Court is struck by the fact that Dr. Nielsen’s finding of “no
limitations whatsoever” was given no weight, yet the only evidence
in the record that could conceivably support the ALJ’s hypothetical
assessment of the Plaintiff’s limitations was necessarily derived
from another aspect of Dr. Neilsen’s report (R.413, 422).

The

apparent contradiction of according no weight to one aspect of Dr.
Nielsen’s findings and great weight to another must be explained.

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Thus, it appears to the Court that the hypothetical assumptions
that the vocational expert was asked to make were based upon a
tenuous foundation.4 Because it appears that the evidence relied
upon by the ALJ is both inherently suspect and also contradicts the
objective findings of treating physicians, the Court will require a
more detailed explanation regarding how the ALJ determined the
limitations that served as the framework of her hypothetical
question to the vocational expert.

See Kent v. Schweiker, supra at

114.
C.

Conclusion.

The Court, having examined the entire record in this case and
having reviewed the ALJ’s decision, is not convinced that the
outcome here is based upon “substantial evidence of record” that a
reasonable mind accept as adequate to support a conclusion as
required by Richardson v. Perales, supra.

Thus, the Court will

require that the Commissioner provide a revised decision that
provides a clearer explanation of why claimant’s complaints of pain
were deemed to be exaggerated and precisely what elements of the
record provide the foundation for the ALJ’s determination of
Plaintiff’s residual functional capacity.

4

In the alternative, the

Particularly striking is Dr. Nielsen’s conclusion that this man, who had undergone two low
back surgeries in the preceding nine months, could lift and carry up to 100 pounds and stand, walk,
push and pull without limitation. (R.420). This conclusion strains credulity to the extent that the
Court is confounded that any aspect of Dr. Nielsen’s Report would be relied upon by the ALJ for any
purpose.
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Commissioner may issue an opinion awarding the Plaintiff DIB
benefits inasmuch as there is certainly substantial evidence of
record supporting that outcome.

An Order consistent with these

determinations will be filed simultaneously herewith.

BY THE COURT

S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court
Dated: February 18, 2015

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