Hippensteel v. Colvin

Filing 16

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable William J. Nealon on 04/14/15. (ep)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
FRANK BERKLEY HIPPENSTEEL, Jr.,
Plaintiff
vs.
CAROLYN W. COLVIN, Acting
Comissioner of Social Security,
Defendant

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No. 3:14-CV-1345
(Judge Nealon)

MEMORANDUM
On July 14, 2014, Plaintiff, Frank Berkley Hippensteel, Jr., filed this instant
appeal1 under 42 U.S.C. § 405(g) for review of the decision of the Commissioner
of the Social Security Administration (“SSA”) denying his applications for
disability benefits (“DIB”) and supplemental security income (“SSI”)2 under
Titles II and XVI, respectively, of the Social Security Act, 42 U.S.C. §§ 401 et
seq., 1381 et seq. (Doc. 1). The parties have fully briefed the appeal. For the
reasons set forth below, the decision of the Commissioner denying Plaintiff’s
applications for DIB and SSI will be vacated.
1. 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.
2. Supplemental security income is a needs-based program, and eligibility is not

limited based on an applicant’s date last insured.

BACKGROUND
Plaintiff protectively filed3 his first set of applications for DIB and SSI on
August 4, 2009, alleging disability since November 1, 2005. (Tr. 260-270).4
These claims were initially denied by the Bureau of Disability Determination
(“BDD”).5 (Tr. 138-145). On December 28, 2009, Plaintiff filed a written request
for a hearing before an administrative law judge. (Tr. 146-148). On March 29,
2010, Plaintiff filed second applications for DIB and SSI, with an alleged onset
date of December 4, 2009. (Tr. 282-283, 293-299). Regarding the first set of
applications, a hearing was held on October 29, 2010, before administrative law
judge Sharon Zanotto (“ALJ”), at which Plaintiff and a vocational expert, Sheryl
Bustin, testified. (Tr. 30). On November 19, 2010, in regards to the first set of
applications, the ALJ found Plaintiff not disabled. (Tr. 106-120). One (1) day
later, on November 20, 2010, Plaintiff’s second applications for DIB and SSI were

3. 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.
4. References to “(Tr. )” are to pages of the administrative record transcript filed

by Defendant as part of the Answer on October 16, 2014. (Doc. 9).
5. 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.
2

granted, he was found disabled as of the date of the decision, and he was awarded
DIB and SSI. (Tr. 202-205). On December 2, 2010, Plaintiff requested that the
Appeals Council review the November 19, 2010 decision, in which the ALJ
denied his first set of applications for DIB and SSI. (Tr. 198).
On June 1, 2012, the Appeals Council vacated the ALJ’s decision rendered
on November 19, 2010 for Plaintiff’s first set of applications, consolidated
Plaintiff’s first and second applications for DIB and SSI, reopened the second
claim in which benefits were granted, and remanded the case for a second hearing
and re-adjudication of the entire period at issue for both the first and second set of
applications for DIB and SSI. (Tr. 66-67, 132-136). On October 12, 2012, a
second hearing was held before the ALJ, at which Plaintiff and vocational expert
Paul Anderson, testified. (Tr. 60).
On November 8, 2012, the ALJ issued a decision denying Plaintiff’s claims,
and effectively reversing the prior award of benefits from the grant of the second
applications, because, as will be explained in more detail infra, Plaintiff could
perform a less than the full range of light work with occasional lifting and carrying
of twenty (20) pounds, frequent lifting and carrying of up to ten (10) pounds,
standing or walking for one (1) hour, and sitting for eight (8) hours in an eight (8)
hour workday. (Tr. 15-16).
3

On December 3, 2012, Plaintiff filed a request for review with the Appeals
Council. (Tr. 7). On May 16, 2014, the Appeals Council concluded that there was
no basis upon which to grant Plaintiff’s request for review. (Tr. 1-3). Thus, the
ALJ’s decision stood as the final decision of the Commissioner.
Plaintiff filed the instant complaint on July 14, 2014. (Doc. 1). On October
16, 2014, Defendant filed an answer and transcript from the SSA proceedings.
(Docs. 8 and 9). Plaintiff filed a brief in support of his complaint on November
25, 2014. (Doc. 12). Defendant filed a brief in opposition on January 29, 2015.
(Doc. 15). Plaintiff did not file a reply brief.
Plaintiff was born in the United States on June 25, 1960, and at all times
relevant to this matter was considered an “younger individual”6 whose age would
not seriously impact his ability to adjust to other work. 20 C.F.R. § 404.1563(c);
(Tr. 300).
Plaintiff can communicate in English, and has an eleventh grade education.
(Tr. 44, 321). His employment records indicate that he previously worked in
6. 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). “Younger person. If you are a younger person (under age 50), we
generally do not consider that your age will seriously affect your ability to adjust
to other work. However, in some circumstances, we consider that persons age 4549 are more limited in their ability to adjust to other work than persons who have
not attained age 45.” 20 C.F.R. §§ 404.1563( c), citing Rule 201.17 in appendix 2.
4

construction, masonry, and landscaping. (Tr. 303, 323). The records of the SSA
reveal that Plaintiff had earnings in the years 1975 to 2006. (Tr. 273). His annual
earnings range from a low of no earnings in 1977, 1993 and 2003, and from 2005
to 2011, to a high of twenty-six thousand three hundred fourteen dollars and
fourteen cents ($26,314.14) in 2001. (Tr. 273).
Plaintiff’s amended alleged disability onset date is December 4, 2009. (Tr.
13, 36-37, 277). The impetus for his claimed disability is a combination of leftsided weakness post cerebrovascular (“CVA”) event, lumbar degenerative disc
disease, emphysema, substance abuse, and chronic obstructive pulmonary disease
(“COPD”). (Tr. 14).
In a document entitled “Function Report - Adult” filed with the SSA in
September of 2009, Plaintiff indicated that he lived in a house with his family.
(Tr. 311). He noted that he did not take care of any other people or animals,
stayed at home from the time he woke up until he went to bed, was able to take
care of his personal needs, did not have sleep problems, prepared his own meals
daily, and did the laundry and mowed the lawn for an hour once a week. (Tr. 311313). He also indicated that he went outside twice a day, could walk a quarter of a
mile with a five (5) to ten (10) minute rest before resuming walking, and could go
out alone, but that he did not drive a car or go shopping. (Tr. 313-314, 316).
5

When asked to check items which his “illnesses, injuries, or conditions affect,”
Plaintiff did not check squatting, bending, standing, reaching, walking, sitting,
kneeling, talking, hearing, stair climbing, seeing, memory, completing tasks,
concentration, understanding, following instructions, using hands, or getting along
with others. (Tr. 316).
Regarding his concentration and memory, Plaintiff did not need reminders
to take care of his personal needs or to take his medicine. (Tr. 312). He was able
to pay bills, count change, handle a savings account, and use a checkbook. (Tr.
314). He stated he was able to pay attention for a “long time,” could follow
written and spoken instructions “good,” and was able to finish what he started.
(Tr. 316).
Socially, Plaintiff watched television and fished, and was able to do these
things “good.” (Tr. 315). He reported that he got along “good” with others,
including authority figures. (Tr. 316-317). He stated that he handled stress and
change “good.” (Tr. 317).
In the Supplemental Function Questionnaire also filled out in September of
2009, Plaintiff stated that his pain began in 1988, and included lower back pain
and shortness of breath. (Tr. 319). He indicated that his pain did not spread
anywhere else, but that it occurred often, and on and off all day. (Tr. 319). His
6

pain and breathing problems had not changed his eating habits nor did it cause
weight fluctuations. (Tr. 320). He had not been taking pain medication, using
assistive devices, or attending physical therapy at the time he filled out the
questionnaire. (Tr. 320).
On April 16, 2011, Plaintiff filled out another Adult Function Report. (Tr.
368). He stated that from the time he woke up until he went to bed, he would take
his medicine, watch television, shower, brush his teeth, have breakfast and lunch,
walk one (1) block to see his friend, come home, watch more television, have
dinner, and then sit outside if the weather was nice. (Tr. 368). He indicated that
he did not care for any other people or animals, that he was unable to do yard work
or fish since his stroke in December of 2009, and that his left leg pain would wake
him up. (Tr. 368-369, 372). He was able to take care of his personal care needs,
and did not need reminders to do so or to take his medicine. (Tr. 370). He was
able to prepare sandwiches, but his brother-in-law would make his dinner because
he could not “cook a full course meal.” (Tr. 370). He was able to mow the lawn
by using a riding mower for about one (1) hour with a break. (Tr. 370). He was
able to go out alone and walk about half a block with a ten (10) minute break
needed before resuming walking, but that he did not go anywhere on a daily basis
because his “legs [were] always giving out on [him].” (Tr. 371, 373). He
7

indicated that he did not shop. (Tr. 371). He was able to county change, handle a
savings account, and use a checkbook, but did not pay bills because he did not
have any money to do so. (Tr. 371). When asked to check the items that his
“illnesses, injuries, or conditions affect,” Plaintiff did not check standing,
reaching, sitting, talking, hearing, seeing, memory, completing tasks,
concentration, understanding, following instructions, using hands, or getting along
with others. (Tr. 373). He indicated that he was able to follow written and spoken
instructions and changes in routine “well,” but that he only moderately handles
stress. (Tr. 374). When asked to provide additional information he did not
provide in earlier parts of the form, Plaintiff stated:
Cannot do anything I use[d] to be able to do due to my stroke.
I use[d] to do a lot of fishing, garden work, yard work, [and]
help neighbors [,but] now I can’t do any of these things
because my legs give out on me or it all hurts, [including] my
back. My arms are not as strong as they were before my stroke.
(Tr. 375).
Plaintiff also filled out a Supplemental Function Questionnaire in April of
2011. (Tr. 376). Plaintiff stated that his pain began on December 4, 2009 due to a
stroke, and that his legs hurt all the time, mainly on his left side which was
affected by the stroke. (Tr. 376). He stated the nature of his pain had changed
since it began because his legs would give out more often and his left arm was

8

hurting more. (Tr. 376). The pain spread down his legs, arms, and back, and
bending, walking, pushing, and pulling made the pain worse. (Tr. 376). His pain
occurred when walking and using his arms, that necessitated breaks. (Tr. 376).
When asked how long his pain lasted, he responded that it lasted until he took a
break. (Tr. 376). He was taking Tylenol for the pain, which helped for about two
(2) hours after taking it. (Tr. 377).
At his October 12, 2012 hearing7, Plaintiff was attempting to recover
benefits for the time period of December 4, 2009 through November 19, 2010
because benefits were granted in the Plaintiff’s second application for DIB and
SSI from November 20, 2010 to the date of the ALJ’s decision. (Tr. 66). The ALJ
explained that she read the decision issued by the Appeals Council that remanded
the case back to her to mean that both the first and second applications for DIB
and SSI were consolidated and the matter was remanded to her for her to decide
both the first and second applications, which would null and void the grant of
benefits Plaintiff received from the grant of the second applications for DIB and
SSI. (Tr. 66-68).
At this hearing, Plaintiff alleged that the following combination of physical
7. Because Plaintiff’s first and second applications for DIB and SSI were

consolidated and remanded, this Court will only be reviewing the relevant hearing
held on October 12, 2012 to adjudicate both sets of applications.
9

impairments prevented him from being able to work since December of 2009:
emphysema, COPD, left-sided weakness as a result of a stroke, mild mid to lower
lumbar fact arthritis, non-severe hypertension, and substance abuse. (Tr. 71, 73).
He testified that he had not worked since December 4, 2009, because his left side
and leg would “go[] out on [him,]” he could not walk far, and he was “lucky” if he
could lift ten (10) to fifteen (15) pounds. (Tr. 72). He testified that he got his
license back after losing it in 1980 due to three (3) DUI’s, but that he did not drive
because he did not prefer to. (Tr. 73). With regards to Plaintiff’s COPD, he
testified that dust, fumes, odors, chemicals, and gases did not cause him any
problems, but that extreme temperatures did. (Tr. 74-75). He was still smoking at
the time of the hearing, in the amount of ten (10) to fifteen (15) cigarettes a day.
(Tr. 75). He was using inhalers every day to manage his breathing problems, and
they caused him to be able to breathe “a lot better.” (Tr. 77). His main complaint
with regards to his breathing issues was that he felt he had to gasp for air, which
was exacerbated by lying down, moving around, and being outside when it was
windy. (Tr. 77). However, he testified that he did not have allergies that would
exacerbate his COPD. (Tr. 77). When he would gasp for air, the problem would
last usually about two (2) minutes until he could get his lungs “back full of air.”
(Tr. 78). He testified that he experienced lower back pain after stooping five (5) to
10

six (6) times. (Tr. 79). He did not have a problem with crouching when using his
knees to do so, but did experience back pain when crouching with just his back.
(Tr. 80). He did not have difficulty balancing, reaching, using his hands and arms
to move things like a tissue box or groceries, using his fingers to pick up fine
objects like a coin, pushing or pulling with his arms or legs, or kneeling. (Tr. 80,
83). He experienced pain after using the stairs multiple times a day, which caused
him to stay mainly downstairs. (Tr. 80-81). Regarding his left side, Plaintiff
testified that his calves would stiffen after walking half a block, which required
him to stop and take a five (5) to ten (10) minute rest, and that his left hand would
give out on him “quite a bit.” (Tr. 81). An example he gave was that a soda can
would sometimes slide out of his left hand. (Tr. 81). He testified that he did not
have a problem standing, and that the heaviest thing he had lifted since February
of 2009 was about ten (10) to fifteen (15) pounds, including a cinder block. (Tr.
84). He was able to carry groceries and the laundry. (Tr. 84).
MEDICAL RECORDS
Plaintiff’s relevant medical records will now be reviewed. Because the ALJ
considered evidence from October 6, 2009 in evaluating Plaintiff’s applications
for DIB and SSI, this Court will review this medical evidence, even though it
predates the alleged onset date of December 4, 2009, the date Plaintiff had a
11

stroke.
On October 6, 2009, Ronald Vandergriff, D.O. performed a consultative
examination on Plaintiff. (Tr. 415). Plaintiff reported that his lower back
bothered him all the time, but that he had not seen a specialist or his family doctor
for this problem nor had he been taking any medications. (Tr. 415). It was noted
that Plaintiff smoked a pack of cigarettes a day, and drank twelve (12) beers daily.
(Tr. 416). He reported that he stopped working because he had been unable to lift
anymore. (Tr. 416). A lumbar spine x-ray revealed vertebral body endplate
osteophytes and facet arthritic change in his lower back. (Tr. 416, 423). Plaintiff
was able to get on and off the exam table on his own, and was able to ambulate
and speak in complete sentences without any shortness of breath or difficulty. (Tr.
417). His back exam showed no deformities, erythema, or swelling, that his back
was not tender, and that his range of motion (“ROM”) was normal. (Tr. 417, 422423). Dr. Vandergriff recommended that Plaintiff have a complete work-up done
by a family physician, and that he undergo a physical therapy evaluation for his
lower back. (Tr. 417-418). Dr. Vandergriff also recommended that Plaintiff quit
smoking. (Tr. 418). Dr. Vandergriff opined that Plaintiff could frequently lift and
carry up to ten (10) pounds, could occasionally lift and carry up to twenty (20)
pounds, could stand and walk for four (4) hours in an eight (8) hour workday,
12

could sit for eight (8) hours, was unlimited in pushing and pulling, could
occasionally bend and kneel, could never stoop, crouch, balance, or climb, and
was not able to engage in activity that involved heights. (Tr. 419-420).
On December 4, 2009, Plaintiff presented to the emergency room (“ER”) at
Carlisle Regional Medical Center (“CRMC”) after “attempting to climb a flight of
stairs when he ‘blacked out and fell down’” which resulted in head trauma and
left-sided weakness. (Tr. 427-428). His work-up revealed mild atherosclerotic
plaquing bilaterally in his carotid artery and chronic vascular changes and a
subacute right pontine infarct in his brain, for which Plaintiff was placed on
aspirin and Plavix. (Tr. 428, 437). Plaintiff was diagnosed with a
cerebrovascular accident (“CVA”), otherwise known as a stroke. (Tr. 427-428,
437). An exam performed by Dr. Ismail revealed that Plaintiff had left-sided
weakness that improved to the point where he did not need ambulatory assistance,
some mild to moderate residual weakness in his upper left extremity that improved
after undergoing physical therapy in the hospital, and a left facial droop, decreased
sensation on the left side of his face due to several damaged cranial nerves, a
tongue drift to the right, clear speech, and clear, unlabored breathing and breath
sounds. (Tr. 429, 432, 443). His motor strength test resulted in a five (5) out of
five (5) in his upper and lower right extremities, but a three (3) out of five (5) in
13

his left upper and lower extremities. (Tr. 432). He was found to be “too high
functioning for additional rehabilitation in the inpatient rehab unit,” but was
instructed to attend outpatient physical therapy. (Tr. 429). Plaintiff also
experienced alcohol withdrawal, and was counseled on the “need for abstinence
from alcohol and tobacco products.” (Tr. 429). Plaintiff admitted that he had
COPD and emphysema, which caused shortness of breath when he walked, but
that he was not taking any maintenance medications. (Tr. 431). He also admitted
that he smoked one (1) pack of cigarettes a day and consumed approximately six
(6) to twelve (12) beer daily. (Tr. 431). He was discharged on December 14, 2009
with diagnoses including acute right pontine infarct (a stroke), acute alcohol
withdrawal, and hypertension, and was instructed to follow-up with a primary care
physician. (Tr. 428-429).
On December 14, 2009, Dr. David Albright opined that Plaintiff was
temporarily disabled for a period of twelve (12) months or more when completing
a Pennsylvania Department of Public Welfare Employment Assessment Form due
to a CVA and hypertension. (Tr. 424-425). His assessment was based on a
physical examination, a review of Plaintiff’s medical records, and a review of his
clinical history. (Tr. 425).
On December 16, 2009, Plaintiff had an appointment with Mary Catharine
14

Sneider as a follow-up after his December 4, 2009 stroke was diagnosed at the ER.
(Tr. 467). Plaintiff reported that he had not been drinking alcohol, but was still
smoking cigarettes. (Tr. 467). He reported continued left-sided weakness. (Tr.
467). His exam revealed a decreased sensation on the left side of his forehead, a
slight, left-sided facial droop, a decreased grip strength in his left hand, a
decreased strength in his lower left extremity at a four (4) out of five (5), and a
slight gait dysfunction. (Tr. 468). Dr. Sneider encouraged smoking cessation, and
prescribed Lopressor. (Tr. 468).
On January 15, 2010, Plaintiff had a follow-up appointment with Dr.
Sneider. (Tr. 469). Plaintiff reported that he was walking better, doing light
exercises at home, did not have anymore falls, felt a slight imbalance problem, was
able to wake at night to put wood into the stove, still had some slurring of his
speech and a decreased sensation in his face, and improved overall without being
back to his former self. (Tr. 469). He had abstained from alcohol use, but was
still smoking about three quarters of a pack of cigarettes daily. (Tr. 469-470). His
exam revealed a decreased sensation on the left side of his forehead, a slight, leftsided facial droop, a decreased grip strength in his left hand, a decreased strength
in his lower left extremity at a four (4) out of five (5), and a slight gait
dysfunction. (Tr. 470). He was instructed to engage in a smoking cessation
15

program, and to continue taking Lopressor. (Tr. 470).
On April 15, 2010, Plaintiff had a follow-up appointment with Dr. Sneider.
(Tr. 472). Plaintiff reported that he had been smoking three quarters of a pack of
cigarettes a day, and had not been exercising. (Tr. 473). His exam revealed a
decreased sensation on the left side of his forehead, a slight, left-sided facial
droop, a decreased grip strength in his left hand, a decreased strength in his lower
left extremity at a four (4) out of five (5), and a slight gait dysfunction. (Tr. 473).
His hypertension was noted as poorly controlled, and Dr. Sneider prescribed
Lopressor and Lisinopril as a result. (Tr. 473). He was encouraged to engage in a
smoking cessation program, and was referred to Dr. Mira for bilateral wrist pain.
(Tr. 473-474).
On May 12, 2010, Dr. Sneider wrote a letter concerning Plaintiff’s visit to
her on December 16, 2009 for a follow-up after the acute stroke he was diagnosed
with during his visit to the ER on December 4, 2009. (Tr. 465). In this letter, Dr.
Sneider stated that Plaintiff was under her care for hypertension, stable back pain,
and emphysema. (Tr. 465). She listed the following medications Plaintiff was
taking: Aspirin, Lopressor, and Lisinopril-HCTZ. (Tr. 465). She opined that it
was not likely that Plaintiff would fully recover his left-sided strength, but that his
facial droop and speech improved since the CVA in December of 2009. (Tr. 465).
16

She opined that he was not able to perform his job as a mason laborer, and she
recommended a full functional assessment exam to determine his exact degree of
impairment and the extent of his limitations to perform job duties. (Tr. 465).
On May 28, 2010, Allan Mira, M.D. performed a drainage of ganglion cysts
from Plaintiff’s left wrist. (Tr. 505). The surgery was performed without incident.
(Tr. 505).
On August 13, 2010, Plaintiff had an appointment with Dr. Sneider.
Plaintiff reported that he generally was well and his wrist had been doing well, but
that he had been experiencing body aches from his hips down. (Tr. 560). It was
noted that his blood pressure had improved, but that the Lisinopril caused a minor
cough and that he had still been experiencing left-sided weakness. (Tr. 560). His
exam revealed a decreased sensation on the left side of his forehead, a slight facial
droop on the left side, a decreased grip strength in his left hand, decreased strength
in his lower left extremity at a four (4) out of five (5), and slight gait dysfunction.
(Tr. 561). He was encouraged to quit smoking, and was prescribed Lopressor and
Lisinopril. (Tr. 562).
On October 8, 2010 and November 5, 2010, Plaintiff had follow-up
appointments with Dr. Sneider. (Tr. 509). The notes from these visits are largely
illegible. (Tr. 508-512). What can be gleaned from these visits is that Plaintiff
17

had a “CVA bruit.” (Tr. 511). On October 12, 2010, Plaintiff underwent a carotid
duplex study performed by Dr. Christopher Ladd, which showed an intimal
irregularity bilaterally in his carotid. (Tr. 512). The impression states, “there has
been no interval change. Findings are again consistent with a less than 40%
diameter reducing stenosis of both carotid arteries.” (Tr. 512).
On November 15, 2010, Plaintiff had an appointment with Dr. Gbadouwey
at Lung, Asthma, and Sleep Associates, P.C. (Tr. 550). Plaintiff reported that he
had a history of smoking at least one (1) pack of cigarettes a day since age thirteen
(13), and that he continued to smoke, despite being advised to quit. (Tr. 550). He
also admitted to alcohol consumption at the rate of two (2) to three (3) beers on the
weekend. (Tr. 550). He was unwilling to try the nicotine patch because he could
not afford it. (Tr. 550). He reported that he experienced a non-productive cough.
(Tr. 550). His medications list included Aspirin, Metoprolol, Prinzied, and Zocor.
(Tr. 550). An exam revealed that his cranial nerves two (2) through twelve (12)
were normal, his lungs were clear, and he had no joint swelling or tenderness. (Tr.
551). His assessment included diagnoses of hypertension, COPD,
hypercholesterolemia, and stroke syndrome. (Tr. 551). Plaintiff was scheduled
for several tests and was instructed to follow-up with Dr. Gbadouwey in three (3)
weeks. (Tr. 551).
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On November 19, 2010, Plaintiff underwent a high resolution CT scan of
the thorax, which revealed scarring in the base of his left lung, with an otherwise
negative exam. (Tr. 555).
On December 9, 2010, Plaintiff underwent pulmonary function tests. (Tr.
556). These tests revealed that there was a moderate obstructive ventilatory
defect, no restrictive ventilatory defect, and a mild reduction in diffusion capacity,
uncorrected for the hemoglobin. (Tr. 556). Plaintiff then underwent a Six Minute
Walk Study. (Tr. 557). This test revealed that Plaintiff’s oxygen saturation
remained within normal limits during the test, and that no oxygen was needed at
rest or with activity. (Tr. 557).
On December 16, 2010, Plaintiff had a follow-up appointment with Dr.
Gbadouwey. (Tr. 547). It was noted that Plaintiff had continued to smoke
cigarettes, despite being advised to quit. (Tr. 547). Plaintiff reported that his
breathing had improved with use of the Albuterol, Spiriva, and Advair inhalers.
(Tr. 547). An exam revealed that his cranial nerves two (2) through twelve (12)
were normal, his lungs were clear, and he had no joint swelling or tenderness. (Tr.
548). His medications list included Aspirin, Metoprolol, Prinzide, and Zocor. (Tr.
547). His assessment included diagnoses of hypertension, COPD,
hypercholesterolemia, and stroke syndrome. (Tr. 548). Plaintiff was prescribed
19

Ventolin, was given samples of Spiriva and Advair, and was scheduled to followup with Dr. Gbadouwey in six (6) weeks. (Tr. 548-549).
On December 20, 2010, Plaintiff had an appointment with physical therapist
Kristin Zwemer for left-sided weakness he experienced as a result of his December
2009 stroke. (Tr. 607). Plaintiff stated that because he did not have insurance, he
did not have much therapy after the stroke occurred. (Tr. 607). His past medical
history was significant for arthritis, CVA, high blood pressure, and emphysema.
(Tr. 607). His medications list included Aspirin, Lisinopril, Lopressor, Zocor,
Spiriva, and Advair. (Tr. 607). His exam noted that he had decreased left knee
control and stance, trouble grading his movement, and limited coordination of his
left side, but that he was otherwise within normal limits. (Tr. 607). His left lower
extremity strength was a three (3) out of five (5), his right lower extremity was a
four (4) out of five (5), and he was able to ambulate. (Tr. 607-608). Her plan was
to see Plaintiff two (2) to three (3) times a week to improve ambulation up and
down stairs and to improve his strength. (Tr. 608).
On January 27, 2011, Plaintiff had an appointment with Dr. Gbadouwey for
follow-up of his moderate COPD. (Tr. 545). It was noted that Plaintiff had
continued to smoke cigarettes, despite being advised to quit. (Tr. 545). Plaintiff
reported that his breathing had improved with use of the Albuterol, Spiriva, and
20

Advair inhalers. (Tr. 545). An exam revealed that his cranial nerves two (2)
through twelve (12) were normal, his lungs were clear, and he had no joint
swelling or tenderness. (Tr. 546). His medications list included Aspirin,
Metoprolol, Prinzide, Zocor, and Ventolin. (Tr. 545). His assessment included
diagnoses of hypertension, COPD, and hypercholesterolemia. (Tr. 546). Plaintiff
was given samples Spiriva and Advair. (Tr. 546).
On April 27, 2011, Plaintiff had an appointment with Dr. Gbadouwey. (Tr.
542). It was noted that Plaintiff had continued to smoke cigarettes, despite being
advised to quit. (Tr. 542). Plaintiff reported that his breathing had improved with
use of the Albuterol, Spiriva, and Advair inhalers. (Tr. 542). An exam revealed
that his cranial nerves two (2) through twelve (12) were normal, his lungs were
clear, and he had no joint swelling or tenderness. (Tr. 543). His medications list
included Aspirin, Metoprolol, Prinzide, Zocor, and Ventolin. (Tr. 542). His
assessment included diagnoses of hypertension, COPD, hypercholesterolemia, and
stroke syndrome. (Tr. 543). Plaintiff was prescribed Spiriva and Advair, and was
scheduled to follow-up with Dr. Gbadouwey in three (3) months. (Tr. 543).
On May 10, 2011, Jerry Brenner, D.O., a non-examining state agency
physician, filled out an Residual Functional Capacity (“RFC”) form. (Tr. 124127). In this form, after looking over Plaintiff’s medical records up to that date,
21

Dr. Brenner found Plaintiff had the following functional limitations in relation to a
competitive, eight (8) hour day, five (5) day a week workweek: (1) Plaintiff could
occasionally lift and/ or carry up to twenty (20) pounds and frequently lift and/ or
carry up to ten (10) pounds; (2) Plaintiff could stand and/ or walk for up to four (4)
hours and sit with normal breaks for up to six (6) hours; (3) Plaintiff was unlimited
in pushing and pulling within the aforementioned weight limits; (4) Plaintiff could
occasionally climb ramps and stairs, balance, stoop, kneel, and craw; (5) Plaintiff
could never climb ladders, ropes, or scaffolds; (6) Plaintiff was limited in
fingering with his left hand; and (7) Plaintiff did not have any visual,
communicative, or environmental limitations. (Tr. 125-127).
On July 13, 2011, Plaintiff had a follow-up appointment with Dr.
Gbadouwey for his moderate COPD. (Tr. 539). Plaintiff reported that he had
continued to smoke, and that his breathing had improved with use of the
Albuterol, Spiriva, and Advair inhalers. (Tr. 539). An exam revealed that his
cranial nerves two (2) through twelve (12) were normal, his lungs were clear, and
he had no joint swelling or tenderness. (Tr. 540). His medications list included
Aspirin, Metoprolol, Lisinopril, Simvastat, Ventolin, Spiriva, and Advair. (Tr.
541). Plaintiff was instructed to continue taking his medications, and was
scheduled to follow-up with Dr. Gbadouwey in three (3) months.
22

On October 10, 2011, Plaintiff had a follow-up appointment with Dr.
Gbadouwey. (Tr. 536). Plaintiff denied coughing, a fever, chills, night sweats,
and dyspnea, and reported an improvement in his breathing due to Albuterol,
Spiriva, and Advair inhalers. (Tr. 536). He was noted as being at a “baseline level
of functioning.” (Tr. 536). Plaintiff reported that he had been drinking alcohol, at
the rate of two (2) to three (3) beers on the weekend, and admitted he had
continued smoking cigarettes. (Tr. 536). His medications list included Aspirin,
Metoprolol, Lisinopril, Simvastat, Ventolin, Spiriva, and Advair. (Tr. 536). An
exam revealed that his cranial nerves two (2) through twelve (12) were normal, his
lungs were clear, and he had no joint swelling or tenderness. (Tr. 537). His
assessment noted that he had hypertension and COPD, and he was instructed to
keep taking his medications and follow up with Dr. Sneider in six (6) months. (Tr.
537).
On April 11, 2012, Plaintiff had an appointment with Dr. Gbadouwey for
his COPD. (Tr. 599). Plaintiff continued to smoke, despite being advised to quit,
and reported that his symptoms improved with the use of inhalers. (Tr. 599). His
medications list included Aspirin, Metoprolol, Lisinopril, Simvastat, Ventolin,
Spiriva, and Advair. (Tr. 599). An exam revealed that his cranial nerves two (2)
through twelve (12) were normal, his lungs were clear, and he had no joint
23

swelling or tenderness. (Tr. 600). His assessment noted that he had hypertension,
COPD, hypercholesterolemia, and stroke syndrome. (Tr. 600). Plaintiff was
instructed to keep taking his medications, and follow up with Dr. Sneider in six (6)
months. (Tr. 600-601).
On May 12, 2012, Dr. Sneider filled out a form for Plaintiff regarding his
impairments and limitations. (Tr. 567-574). Dr. Sneider diagnosed Plaintiff with
a CVA/ stroke, and gave him a fair prognosis. (Tr. 567). The clinical findings
that support this diagnosis were a facial droop, left-sided weakness, and gait
dysfunction, and the laboratory and diagnostic test results that support this
diagnosis included an MRI of the brain and a CT scan of the head. (Tr. 567-568).
Dr. Sneider stated that Plaintiff’s symptoms and functional limitations were
reasonably consistent with his physical impairments as described. (Tr. 568). Dr.
Sneider stated Plaintiff did not have pain. (Tr. 568). Dr. Sneider opined that
Plaintiff could sit for up to one (1) hour and stand or walk for up to one (1) hour in
an eight (8) hour work day in a competitive five (5) day a week workweek. (Tr.
569). Dr. Sneider also opined that is would be necessary or medically
recommended that Plaintiff not sit, stand, or walk continuously in a work setting.
(Tr. 569-570). Dr. Sneider opined Plaintiff could occasionally lift and/ or carry up
to twenty (20) pounds, but never lift and/ or carry anything over twenty (20)
24

pounds. (Tr. 570). She also opined that Plaintiff had significant limitations in
doing repetitive reaching, handling, fingering or lifting because repetitive
movements worsened Plaintiff’s left-side weakness. (Tr. 570). In terms of the
degree of limitation Plaintiff would have in a competitive eight (8) hour workday,
Dr. Sneider opined Plaintiff could engage in minimal grasping, turning or twisting
objects bilaterally, minimal use of fingers and hands for fine manipulations
bilaterally, and minimal use of arms for reaching, including overhead, bilaterally.
(Tr. 570-571). Dr. Sneider stated that Plaintiff had reached his maximum
therapeutic benefit from physical therapy and occupational therapy. (Tr. 571). Dr.
Sneider stated that Plaintiff’s pain, fatigue and other symptoms were never to
seldom severe enough to interfere with attention or concentration, but that he was
incapable of even low stress work. (Tr. 572). Dr. Sneider opined that Plaintiff’s
impairments were ongoing and would last at least twelve (12) months. (Tr. 572).
Dr. Sneider stated that Plaintiff’s impairments were not likely to produce “good
days” and “bad days.” (Tr. 573). Lastly, Dr. Sneider stated that Plaintiff not
engage in pushing, pulling, kneeling, bending, or stooping. (Tr. 573).
On May 17, 2012, Plaintiff had an appointment with Dr. Gbadouwey for a
follow-up of his COPD and to have Dr. Gbadouwey fill out a pulmonary
impairment questionnaire. (Tr. 596). Plaintiff reported that he continued to
25

smoke cigarettes and drank about two (2) to three (3) beers on the weekend, but
that he had improvement with his inhalers. (Tr. 596). His medications list
included Aspirin, Metoprolol, Lisinopril, Simvastatin, Ventolin, Spiriva, and
Advair. (Tr. 596-597). His exam revealed that his cranial nerves two (2) through
twelve (12) were normal, and that his lungs were clear. (Tr. 597). His diagnoses
included hypertension, COPD, and stroke syndrome. (Tr. 598). Plaintiff was
scheduled for more pulmonary function tests, a six minute walk study, and a
follow-up in three (3) months. (Tr. 598). At this appointment, Dr. Gbadouwey
filled out a Pulmonary Impairment Questionnaire, identifying Plaintiff’s medical
condition as COPD and his prognosis as fair. (Tr. 589-595). The clinical finding
that supported his diagnosis was shortness of breath, and the laboratory and
diagnostic test results that supported his diagnosis were pulmonary function tests
and a six minute walk study that were performed in December of 2010. (Tr. 590591). Dr. Gbadouwey indicated that cold air, a change in the weather, and upper
respiratory infections exacerbated Plaintiff’s COPD, and that the nature and
severity of the COPD was episodic lasting, on average, two (2) to three (3) weeks.
(Tr. 591). He stated that Plaintiff’s symptoms and functional limitations were
reasonably consistent with the COPD. (Tr. 592). He opined that, in an eight (8)
hour workday, Plaintiff could sit for eight (8) hours and stand or walk for one (1)
26

hour. (Tr. 592). He also opined that Plaintiff could frequently lift and carry up to
ten (10) pounds, occasionally lift and carry up to twenty (20) pounds, and never
lift or carry anything over twenty (20) pounds. (Tr. 592). Dr. Gbadouwey opined
that Plaintiff’s symptoms were seldom severe enough to interfere with attention
and concentration, and that he expected Plaintiff’s impairments to last at least
twelve (12) months. (Tr. 594). He opined that Plaintiff would need to be able to
take unscheduled breaks to rest once every hour during an eight (8) hour workday
for ten (10) to fifteen (15) minutes at a time, and that he needed to avoid extreme
temperatures. (Tr. 594). He opined that Plaintiff’s COPD was likely to produce
“good days” and “bad days,” and that it would likely cause him to be absent from
work about two (2) to three (3) times a month. (Tr. 594).
On July 14, 2012, Plaintiff underwent pulmonary function tests. (Tr. 602).
These tests revealed a moderate obstructive ventilatory defect, air trapping, no
restrictive ventilatory defect, and a mild reduction in diffusion capacity,
uncorrected for Plaintiff’s hemoglobin. (Tr. 602).
On September 10, 2012, Dr. Sneider wrote a letter, which gave the
background of her treatment of Plaintiff after he experienced a stroke in December
of 2009. (Tr. 616). She stated that Plaintiff continued to have problems with leftsided weakness, poor balance, decreased strength, and an abnormal gait pattern,
27

but that physical therapy improved his strength and endurance. (Tr. 616). Dr.
Sneider opined that Plaintiff’s condition was likely to exceed twelve (12) months,
most likely for the next year. (Tr. 616). Dr. Sneider stated that Plaintiff’s
diagnosis was post stroke syndrome, and that his medications included Aspirin,
Lisinopril, Simvastatin, Lopressor, Advair, Spiriva, and Ventolin. (Tr. 616).
STANDARD OF REVIEW
When considering a social security appeal, the court has 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, the court’s 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.; Mason v. Shalala, 994 F.2d
1058, 1064 (3d Cir. 1993); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
Factual findings which are supported by substantial evidence must be upheld. 42
U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where
the ALJ’s findings of fact are supported 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
28

Secretary must be accepted as conclusive by a reviewing court if supported by
substantial evidence.”); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001); Keefe
v. Shalala, 71 F.3d 1060, 1062 (2d Cir. 1995); 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. Brown, 845 F.2d at 1213. In an adequately developed 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
29

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 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 706-07. 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 DIB and SSI, the plaintiff must demonstrate he/she is “unable 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 twelve
months.” 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905 (defining disability).
Further,
an 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
30

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), 1382c(a)(3)(B).
The Commissioner uses a five-step process in evaluating disability and
claims for disability insurance benefits. See 20 C.F.R. § 416.920. This process
requires the Commissioner to consider, in sequence, whether a claimant (1) is
engaging in substantial gainful activity, (2) has an impairment that is severe8 or a
combination of impairments that is severe, (3) has an impairment or combination
of impairments that meets or equals the requirements of a listed impairment, (4)
has the RFC to return to his or her past work and (5) if not, whether he or she can
adjust to other work in the national economy. Id. “The claimant bears the
ultimate burden of establishing steps one through four.” Poulos, 474 F.3d at 92,
8. An impairment is severe if it significantly limits an individual’s physical or

mental ability to do basic work activities. 20 C.F.R. § 416.920. Basic work
activities are the abilities and aptitudes necessary to do most jobs, such as
“walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling;” “seeing, hearing, and speaking;” [u]nderstanding, carrying out, and
remembering simple instructions;” “[u]se of judgment;” “[r]esponding
appropriately to supervision, co-workers and usual work situations;” and
“[d]ealing with changes in a routine work setting.” 20 C.F.R. § 416.921.
31

citing Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004).
As part of step four, when a claimant’s impairment does not meet or equal a
listed impairment, the Commissioner will assess the RFC. See 20 C.F.R. §
416.920. RFC 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 RFC assessment must
include a discussion of the individual’s abilities. Id.; 20 C.F.R. §§ 404.1545 and
416.945; Hartranft, 181 F.3d at 359 n.1 (“‘[RFC]’ is defined as that which an
individual is still able to do despite the limitations caused by his or her
impairment(s).”).
Using the RFC assessment, the Commissioner will determine whether the
claimant can still perform past relevant work, or can make an adjustment to other
work. Id. If so, the claimant is not disabled; and if not, he is disabled. Id. “At
step five, the burden of proof shifts to the Social Security Administration to show
that the claimant is capable of performing other jobs existing in significant
numbers in the national economy, considering the claimant’s age, education, work
experience, and [RFC]. ” Id.
32

ALJ DECISION
Initially, the ALJ found that Plaintiff met the insured status requirements of
the Social Security Act through December 31, 2010. (Tr. 14). At step one, the
ALJ found that Plaintiff had not engaged in substantial gainful work activity from
his onset date of December 4, 2009. (Tr. 14).
At step two, the ALJ determined that Plaintiff suffered from the severe
impairment of a “left-sided weakness post cerebrovascular accident, lumbar
degenerative disc disease, emphysema, substance abuse, and chronic obstructive
pulmonary disease (20 C.F.R. 404.1520(c) and 416.920(c)).” (Tr. 14).
At step three of the sequential evaluation process, the ALJ found that
Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926). (Tr. 15).
At step four, the ALJ determined that Plaintiff had RFC to perform less
thank a full range light work as defined in 20 CFR § 404.1567(b) and 416.967(b)
with the following limitations:
[Plaintiff] is capable of occasionally lifting and carrying 20
pounds and frequently lifting and carrying up to 10 pounds.
[Plaintiff] is capable of standing or walking for one hour, and
33

sitting for eight hours, in an eight-hour workday.
(Tr. 16). In consideration of Plaintiff’s RFC, the ALJ determined Plaintiff was
unable to perform any past relevant work. (Tr. 20).
At step five, the ALJ found that given Plaintiff’s age, education, work
experience, and RFC, there were jobs that existed “in significant numbers in the
national economy that Plaintiff could perform (20 C.F.R. 404.1569, 404.1569(a),
416.969, and 416.969(a)).” (Tr. 20).
The ALJ concluded that Plaintiff was not under a disability as defined in the
Social Security Act at any time between the onset date of December 4, 2009, and
the date of the ALJ’s decision. (Tr. 21).
DISCUSSION
On appeal, Plaintiff challenges the ALJ’s decision on the following
grounds: (1) the ALJ failed to properly weigh the medical evidence; and (2) the
ALJ erred to properly evaluate Plaintiff’s credibility. (Doc. 12, p. 11). Defendant
disputes these contentions. (Doc. 15, pp. 16-26).
1.

Medical Opinion Weight

Plaintiff asserts that the ALJ erred in assigning minimal weight to the
opinion of Plaintiff’s treating physician, Dr. Sneider, moderate weight to the
opinions of Dr. Vandergriff, Dr. Gbadouwey, and the state agency medical
34

consultant, and significant weight to the opinions of Dr. Albright, Dr. Ladd, and
Dr. Zwemer. (Doc. 12, pp. 12-13). More specifically, Plaintiff argues that the
ALJ erred in its reasoning of giving minimal weight to Dr. Sneider’s opinion,
which was that it was inconsistent with what Plaintiff himself testified he was
capable of doing. (Id. at 13-14). Plaintiff asserts that this reason was not
sufficient enough to give Dr. Sneider’s opinion minimal weight because the
Plaintiff was testifying as to what he could do while at home, not in a competitive,
five (5) day a week work environment on a sustained basis. (Id.). Plaintiff
upholds this argument with case law from the United States District Court for the
Eastern District of New York, which held that “the ALJ erred by failing to
recognize the physician assessed Plaintiff’s work capacity in the context of a five
day work week, as here, and instead assumed the capacity would leave the
claimant “bed-bound,” which was not otherwise supported by the record.” (Id.).
Plaintiff also asserts that the ALJ did not question the severity or validity of the
clinical or diagnostic findings of Dr. Sneider that supported the facial droop, leftsided weakness, and gait dysfunction Plaintiff experienced and that were
consistent with the record. (Id. at 14).
Plaintiff further argues that the ALJ improperly gave significant weight to
the following opinions: (1) Dr. Ladd because he simply interpreted x-ray results of
35

Plaintiff’s spine and did not offer an opinion as to Plaintiff’s functional
limitations; (2) Dr. Zwemer because she was not a medical doctor, but in fact was
a physical therapist, which is not a profession that is considered to be an
acceptable medical source, and because she did not offer an opinion as to
Plaintiff’s functional limitations; and (3) Dr. Albright because he opined that
Plaintiff was disabled for a period of twelve (12) or more months, which does not
support the ALJ’s conclusion that Plaintiff could less than a full range of light
work. (Doc. 12, pp. 14-15).
With regards to the moderate weight given to several medical opinions,
Plaintiff asserts that: (1) the opinion of Dr. Gbadouwey does not support the ALJ’s
RFC finding because Dr. Gbadouwey opined that Plaintiff needed to rest once
every hour for ten (10) to fifteen (15) minutes; (2) the opinion of Dr. Vandegriff
does not support the ALJ’s RFC determination because the ALJ improperly
excluded the part of this opinion that stated Plaintiff could only occasionally bend
or kneel, and never stoop, crouch, balance, or climb ; and (3) the ALJ relied too
heavily on the opinion of the non-examining state agency consultant Dr. Brenner
because the Third Circuit Court of Appeals has cautioned against relying on such
an opinion in the presence of well-supported contradictory evidence. (Doc. 12, p.
17). Thus, Plaintiff contends that none of the evidence from these other medical
36

sources contradicted the opinion of Dr. Sneider, and, as a result, Dr. Sneider’s
opinion should not have been given minimal weight. (Id. at 16).
The preference for the treating physician’s opinion has been recognized by
the Third Circuit Court of Appeals and by all of the federal circuits. See, e.g.,
Morales v. Apfel, 225 F.3d 310, 316-18 (3d Cir. 2000). This is especially true
when the treating physician’s opinion “reflects expert judgment based on a
continuing observation of the patient’s condition over a prolonged time.”
Morales, 225 F.3d at 317; Plummer, 186 F.3d at 429; see also 20 CFR §
416.927(d)(2)(i)(1999) (“Generally, the longer a treating source has treated you
and the more times you have been seen by a treating source, the more weight we
will give to the source’s medical opinion.”). If a “treating source’s opinion on the
issue(s) of the nature and severity of [Plaintiff’s] impairment(s) is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [Plaintiff’s] case record, [the
Commissioner] will give it controlling weight.” 20 C.F.R. §§ 404.1527( c)(2) and
416.927( c)(2).
However, when the treating physician’s opinion conflicts with a nontreating, non-examining physician’s opinion, the ALJ may choose whom to credit
in his or her analysis, but “cannot reject evidence for no reason or for the wrong
37

reason.” Morales, 225 F.3d 316-18. It is within the ALJ’s authority to determine
which medical opinions he rejects and accepts, and the weight to be given to each
opinion. 20 C.F.R. § 416.927. The ALJ is permitted to give great weight to a
medical expert’s opinion if the assessment is well-supported by the medical
evidence of record. See Sassone v. Comm’r of Soc. Sec., 165 F. App’x 954, 961
(3d Cir. 2006) (holding that there was substantial evidence to support the ALJ’s
RFC determination that the plaintiff could perform light work, even though this
determination was based largely on the opinion of one (1) medical expert, because
the medical expert’s opinion was supported by the medical evidence of record);
Baker v. Astrue, 2008 U.S. Dist. LEXIS 62258 (E.D. Pa. Aug. 13, 2008).
However, the ALJ cannot base the rejection of a treating physician’s opinion
based on “his or her own credibility judgments, speculation or lay opinion.”
Morales, 225 F.3d at 317-18.
Regardless, the ALJ has the duty to adequately explain the evidence that he
rejects or to which he affords lesser weight. Diaz v. Comm’r of Soc. Sec., 577
F.3d 500, 505-06 (3d Cir. 2009) (holding that because the ALJ did not provide an
adequate explanation for the weight he gave to several medical opinions, remand
was warranted). “The ALJ’s explanation must be sufficient enough to permit the
court to conduct a meaningful review.” In re Moore v. Comm’r of Soc. Sec., 2012
38

U.S. Dist. LEXIS 100625, *5-8 (D.N.J. July 19, 2012) (citing Burnett v. Comm’r
of Soc. Sec., 220 F.3d 112, 119-20 (3d Cir. 2000)).
With regards to the medical opinion evidence, the ALJ stated the following:
The undersigned gives significant weight to the medical
opinions of Dr. Albright, Dr. Ladd, and Dr. Zwemer, whose
opinions correspond with [Plaintiff’s] testimony regarding his
retained ability to walk, stand, stoop, crouch, balance, and
breathe without difficulty. In the light of [Plaintiff’s]
admissions, the undersigned gives moderate weight to the more
restrictive medical opinions of the State agency medical
consultant, Dr. Gbadouwey, and Dr. Vandergriff. Finally,
minimal weight is given to the opinions of Dr. Sneider, who
found [Plaintiff] incapable of pushing, pulling, kneeling,
bending, and stooping, and also noted that [Plaintiff] was
incapable of standing, walking, or sitting for more than one
hour in an eight-hour workday because [Plaintiff] credibly
testified that he is able to perform those activities, does not
have days when he doesn’t get out of bed and only every once
in a while he may nap in the afternoon for a maximum of 20
minutes to a half hour. The State agency single decision
maker’s determination regarding [Plaintiff’s] impairments is
given little weight, as she is not an acceptable medical source.
(Tr. 19-20).
Upon review of this determination issued by the ALJ, while the ALJ was
correct that Plaintiff’s testimony as to what he was able to do discredited and was
inconsistent with some portions of the opinions rendered by the aforementioned
medical sources, it is determined that the ALJ erred in the weight she afforded to
the aforementioned medical sources. The ALJ erred in the significant weight she
39

afforded to three (3) opinions. First, she erred in assigning significant weight to
Dr. Ladd’s “opinion” because he did not render an opinion as to Plaintiff’s
functional limitations, but rather interpreted an x-ray. (Tr. 512). Secondly, she
erred in assigning significant weight to the opinion of “Dr. Zwemer” because she
is in fact a physical therapist, and thus not an acceptable medical source9 whose
opinion can be taken into consideration by the ALJ in determining Plaintiff’s RFC.
See 20 C.F.R. § 404.1527(a)(2).10 (Tr. 605-608). Moreover, she did not offer an

9.

(a) Sources who can provide evidence to establish an
impairment. We need evidence from acceptable medical
sources to establish either you have a medically determinable
impairment(s). See § 404.1508. Acceptable medical sources
are - (1) Licensed physicians (medical or osteopathic doctors);
(2) Licensed or certified psychologists. [];
(3) Licensed optometrists . . . [];
(4) Licensed podiatrists . . . []; and
(5) Qualified speech-language pathologists . . . []
20 C.F.R. § 404.1513(a)(1-5)
10.

Evidence that you submit or that we obtain may contain
medical opinions. Medical opinions are statements from
physicians and psychologists or other acceptable medical
40

opinion as to Plaintiff’s functional limitations. (Tr. 605-608). Lastly, the ALJ
erred in giving significant weight to Dr. Albright’s opinion because he provided
medical evidence regarding Plaintiff’s impairments, but did not render an opinion
as to the functional limitations Plaintiff experienced as a result of these
impairments aside from the Department of Public Welfare form on which he stated
Plaintiff was disabled for at least twelve (12) months.11 (Tr. 425).
The ALJ also erred in affording moderate weight to the following opinions:
(1) Dr. Vandergriff’s opinion because it was rendered in October of 2009, before
Plaintiff’s amended alleged onset date of December 4, 2009, the date on which

sources that reflect judgments about the nature and severity of
your impairment(s), including you symptoms, diagnosis and
prognosis, what you can still do despite your impairment(s),
and your physical or mental restrictions.
20 U.S.C. § 404.1527(a)(2).
11. It is acknowledged that the ALJ did not have to find Plaintiff disabled based

on Dr. Albright’s opinion pursuant to the following Social Security Regulation:
Opinions that you are disabled. We are responsible for making
the determination about whether you meet the statutory
definition of disability. In doing so, we review all of the
medical findings and other evidence that support a medical
source’s statement that you are disabled. A statement by a
medical source that you are “disabled” or “unable to work”
does not mean that we will determine that you are disabled.
20 C.F.R. § 404.1527(d)(1).
41

Plaintiff experienced a stroke that caused residual left-sided weakness supported
by the record; and (2) the opinions of Dr. Gbadouwey and Dr. Brenner because it
appears the ALJ “cherry picked”12 limitations from this opinion in order to support
her RFC determination. Dr. Gbadouwey opined that Plaintiff required breaks once
an hour for ten (10) to fifteen (15) minutes at a time, and Dr. Brenner opined that
Plaintiff was only capable of standing and/ or walking for up to only four (4) hours
and sitting for up to only six (6) hours. (Tr. 125-127, 594). These functional
limitations as opined do not support the ALJ’s RFC determination that Plaintiff
could stand and/ or walk for one (1) hour without mention of the need for a break
and sit for eight (8) hours in an eight (8) hour workday. (Tr. 16). Furthermore,
Dr. Brenner’s RFC assessment was not based on Plaintiff’s entire medical record
as Plaintiff had several appointments after Dr. Brenner rendered his opinion in
May of 2011. (Tr. 536, 539, 567, 596, 599, 602, 616); See Sassone, 165 F. App’x
954, 961 (3d Cir. 2006) (holding that in order for the ALJ to properly give any
weight to a medical opinion, the entire medical record must have been available
for and reviewed by the non-examining, non-treating physician).
Moreover, the ALJ erred in giving minimal weight to Plaintiff’s treating
12. The Third Circuit Court of Appeals has held that an ALJ may not exclude

certain parts of a medical opinion and rely only on “the pieces of the examination
reports that support his determination.” Morales, 225 F.2d at 318.
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physician, Dr. Sneider, because, upon review of the record, Dr. Sneider’s opinion
was supported by the medical record, including clinical and diagnostic records,
and was consistent with the objective medical evidence. (Tr. 125-127, 424-425,
431-432, 465, 468, 470, 473, 560, 567-574, 590-591, 594, 607-608, 616). While
the ALJ is correct that Plaintiff’s testimony contradicts some of the functional
limitations as opined by the aforementioned physicians, the fact remains that the
ALJ erred in the assignment of weight to the medical opinions because: (1) she
assigned significant weight to an unacceptable medical source and to physicians
who did not actually render medical opinions as to Plaintiff’s functional
limitations, aside from Dr. Albright’s opinion that Plaintiff was, in fact, disabled;
(2) she assigned moderate weight to an opinion that predated Plaintiff’s amended
alleged onset date and to opinions from which she “cherry-picked” limitations to
support her determination; and (3) she failed to point to evidence that contradicted
Dr. Sneider’s opinion. As such, it is determined that the ALJ’s RFC determination
is not supported by substantial evidence.
CONCLUSION
The Court’s review of the administrative record reveals that the decision of
the Commissioner is not supported by substantial evidence. Therefore, pursuant to
42 U.S.C. § 405(g), Plaintiff’s appeal will be granted, the decision of the
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Commissioner will be vacated, and the case will be remanded to the
Commissioner for further proceedings.
A separate Order will be issued.
Date: April 14, 2015
/s/ William J. Nealon
United States District Judge

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