Norton v. Colvin

Filing 33

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, I conclude that remand of this matter is necessary for further consideration in accordance with this Memorandum. An appropriate Order is filed simultaneously with this Memorandum. Signed by Honorable Richard P. Conaboy on 10/26/15. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TASHA DELISHEI NORTON,
Plaintiff,

:
:CIVIL ACTION NO. 3:15-CV-701
:
:(JUDGE CONABOY)
:
:
:
:
:
:
:

v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

___________________________________________________________________
MEMORANDUM
Here the Court considers Plaintiff’s appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the
Social Security Act.

(Doc. 1.)

Plaintiff filed for benefits in

June 2012 alleging disability beginning on May 6, 2011.

(R. 51.)

A June 7, 2012, Disability Report indicates that Plaintiff claimed
her ability to work was limited by psoriatic arthritis, psoriasis,
IBS, GERD, spina bifida occulta, scoliosis, asthma, and depression.
(R. 219.)
The Administrative Law Judge (“ALJ”) who evaluated the claim,
Michele Stolls, concluded the Plaintiff’s severe impairments of
psoriatic arthritis, spina bifida, osteoarthritis of the back,
recurrent hypersomnia, cystic denomatoid right lower lobe and
status post resection, migraines/post-traumatic headache, asthma,
narcolepsy without cataplexy, major depressive disorder, and
attention deficit hyperactivity disorder did not alone or in

combination with other impairments meet or equal the listings.
54-56.)

(R.

The ALJ found that Plaintiff had the residual functional

capacity (“RFC”) to perform sedentary work with certain
nonexertional limitations and that she was capable of performing
jobs that existed in significant numbers in the national economy.
(R. 56-60.)

The ALJ therefore found Plaintiff was not disabled

under the Act.

(R. 61.)

With this action, Plaintiff argues that the decision of the
Social Security Administration is error for the following reasons:
1) the ALJ erred in applying Acquiescence Ruling AR 00-1(4)
regarding treatment of another ALJ’s decision on a prior period of
disability; 2) the ALJ did not properly consider evidence from a
prior decision or explain her consideration of such evidence; 3)
the ALJ did not properly consider medical evidence regarding
Plaintiff’s narcolepsy and did not include its effects in her RFC
evaluation; 4) the ALJ erred in her evaluation in the treating
physician’s opinion; and 5) the ALJ erred in her evaluation of
Plaintiff’s mother’s statement.

(Doc. 31 at 20-21.)

After careful

consideration of the administrative record and the parties’
filings, I conclude Plaintiff’s appeal is properly granted.
I. Background
A.

Procedural Background
Plaintiff filed this action on April 9, 2015.

(Doc. 1.)

She

appeals the denial of benefits made final by the February 11, 2015,

2

Appeals Council denial of her request for review of the ALJ’s
decision.

(R. 1.)

With its decision, the Appeals Council

indicated that it had reviewed additional evidence filed and it
found that the information did not provide a basis for changing the
ALJ’s decision.

(R. 1-2.)

Specifically the Appeals Council stated

that it looked at medical records from Geisinger Medical Center
dated May 13, 2014, through May 16, 2014, and concluded the
information was about a time after the ALJ’s September 16, 2013,
decision and, therefore, it did not affect the decision about
whether Plaintiff was disabled beginning on or before September 16,
2013–-consideration of disability for the later period would need
to be raised in a new application.

(R. 2.)

Defendant filed her answer and the Social Security
Administration transcript on May 7, 2015.

(Docs. 11-24.)

Plaintiff filed her supporting brief on September 10, 2015. (Doc.
31.)

Defendant filed her opposition brief on October 9, 2015.

(Doc. 32.)
B.

Plaintiff has not filed a reply brief.

Factual Background
Plaintiff was born on October 15, 1991, and was nineteen years

old on the alleged disability onset date.

(R. 60.)

She has a high

school education and does not have past relevant work.
1.

(Id.)

Impairment Evidence
Plaintiff states in her supporting brief that her “allegations

of error, with respect to the ALJ’s evaluation of specific medical

3

conditions, are restricted to one specific condition: [her]
narcolepsy.”

(Doc. 31 at 8.)

Because of this, Plaintiff provides

a general background medical history and focuses review of the
medical evidence on her narcolepsy condition.

(Id.)

The following

review will focus primarily on evidence related to Plaintiff’s
narcolepsy.
As set out by Plaintiff, the medical records begin in 2008 and
document a number of impairments which the ALJ has assessed to be
of varying severity.

(Doc. 31 at 8; R. 54-56.)

The first

reference to sleep disorder problems was in October 2010.

(Doc. 31

at 11.)
Pediatric Neurology Outpatient Notes dated October 27, 2010,
indicate that Plaintiff was seen by Glenn A. Stayer, M.D., for
evaluation of headaches.

(R. 1086.)

In addition to the headache

history, Dr. Stayer noted that Plaintiff reported difficulty
sleeping at night–-she woke up several times, took a drink of water
and went back to bed.

(R. 1086-87.)

He recorded the following

medical history:
She indicated that she had a “spastic
bladder” which interrupted her sleep at
night. Mother indicates today that this
problem has now resolved. Tasha has a
history of scoliosis and congenital cystic
adenomatoid malformation of the right lung
possible coagulopathy. Problems with ADHD,
GE reflux disease, irritable bowel syndrome,
and spina bifida occulta have been noted.
Tasha had a cyst removed under her left
breast 1 year ago by Dr. Kim. Tasha
completed her GED 05/26/10. She would like
4

to becmoe an author or a journalist in the
future. She indicates that she had a job for
2 months but missed work secondary to her
irritable bowel syndrome, GE reflux disease,
and was fired. Tasha indicates that her
headaches have improved and now occur only 2
or 3 times per month. When her headaches
occur, she takes an Axert tablet which seems
to help. She indicates that triggers for her
headaches are not as clear as in the past.
She suspects that weather changes may
contribute to her headache. On a routine
night, she goes to bed at 9:30 PM and asleep
by midnight. She awakens at 7:30 AM. She
indicates that she had been on Abilify for
the last month, prescribed by Dr. Tenenbaum
(Psychiatry, Wilkes-Barre) for chronic
anxiety, depression, and possible bipolar
disorder. . . . Her primary care physician is
Dr. Joseph Anistranksi.
Mother has concerns that Tasha is having
spells in which she seems to be in a daze. .
. . Mother has noted that these episodes
occur once or twice a day for the last 2
weeks.
(R. 1087.)

Dr. Stayer’s Assessment included “[s]pells, rule out

seizures” and “[d]ifficulty maintaining sleep.”

(R. 1088.)

He

requested that Plaintiff have an EEG to assess cerebral activity.
(R. 1089.)

He also strongly encouraged followup with Dr. Tenenbaum

in psychiatry, vigilant monitoring of symptoms, followup with
primary care physician and return to the neurology clinic in six
months.

(R. 1089.)

Plaintiff’s November 17, 2010, electroencephalogram was
“borderline normal” and clinical correlation was recommended.
1104.)
On February 22, 2012, Plaintiff was seen by Angela M.
5

(R.

DeAntonia, M.D., in the Sleep Disorder department at Geisinger
South in Wilkes-Barre for followup of her hypersomnia.

(R. 2023.)

She had been referred for excessive daytime sleepiness and
initially had an “Epworth Sleepiness Scale” of 11/24.

(Id.)

At

the February visit, Plaintiff’s score was 6/24: she would never
doze when sitting and reading (score 0); there was a slight chance
of dozing when watching TV (score 1); there was a slight chance of
dozing when sitting inactive in a public space (score 1); there was
a moderate chance of dozing when a passenger in a car for an hour
without a break (score 2); there was a moderate chance of dozing
when lying down to rest in the afternoon when circumstances permit
(score 2); she would never doze when sitting and talking with
someone (score 0); she would never doze when sitting quietly after
lunch without alcohol (score 0); and she would never doze in a car
while stopped for a few minutes in the traffic (score 0).
2029.)

(R.

Dr. DeAntonio reviewed Plaintiff’s sleep hygiene and noted

that it was improved.

(R. 2024.)

She also noted that Plaintiff

reported that she felt much better but occasionally felt tired and
she was going to work.

(R. 2024.)

Dr. DeAntonio recorded that

Plaintiff’s headaches had decreased in frequency and that she felt
overall a “marked improvement in her sense of well being.”

(Id.)

The Assessment and Plan stated that Plaintiff’s excessive daytime
sleepiness or hypersomnia was markedly improved, her bipolar
disease and major depression were under much better control with

6

marked improvement in her daytime symptoms, she was encouraged to
continue with good sleep hygiene and continuance of medications,
and she would be seen for followup in six months but should call if
she had any problems sooner.

(R. 2024-25.)

On May 5, 2012, John J. Della Rosa, Jr., M.D., stated in the
Sleep Medicine Outpatient Notes that Plaintiff was referred by Dr.
Joseph Anistranski for evaluation of excessive sleepiness.
2058.)

(R.

Plaintiff reported that she had severe excessive sleepiness

since March which included falling asleep in conversations with
friends, she did not drive for fear of falling asleep, and her
mother reported that she had been a bundle of energy but at that
time was always sleepy.

(Id.)

Dr. Della Rosa noted that other

doctors had thought the sleepiness was medication or depression
related but the depression was under control and she had stopped
taking some of the sedating medications.

(R. 2058-59.)

He noted

that Plaintiff continued to take some sedating medications
including PRN Zofran and PRN Neurontin for control of migraine
headaches.

(R. 2059.)

Plaintiff reported that she was unemployed.

(R. 2059.)

In his Review of Systems, Dr. Della Rosa recorded that

Plaintiff denied sleep paralysis but complained of weak episodes
during the day where she could hardly move and the episodes could
happen anytime.

(Id.)

His Impression was severe daytime

drowsiness of uncertain cause–-it could be related to medication,
narcolepsy was a consideration as was drug-induced hypersomnia or

7

idiopathic hypersomnia with long sleep.

(R. 2060.)

Dr. Della

Rosa’s plan was for polysomnography followed by a multiple sleep
latency testing.

(R. 2061.)

return in two weeks.

Plaintiff was to undergo testing and

(R. 2062.)

Plaintiff’s May 10, 2012, Epworth Sleepiness Scale score was
9/24: there was a slight chance of dozing when sitting and reading
(score 1); there was a slight chance of dozing when watching TV
(score 1); she would never doze when sitting inactive in a public
space (score 0); there was a high chance of dozing when a passenger
in a car for an hour without a break (score 3); there was a
moderate chance of dozing when lying down to rest in the afternoon
when circumstances permit (score 2); she would never doze when
sitting and talking with someone (score 0); she would never doze
when sitting quietly after lunch without alcohol (score 0); and
there was a moderate chance of dozing when in a car while stopped
for a few minutes in the traffic (score 2).

(R. 2067.)

On July 16, 2012, Plaintiff underwent testing at the Geisinger
Sleep Disorder Center.

(R. 2556.)

Measurement of Plaintiff’s

“propensity to fall asleep (sleepiness) was abnormal, with sleep in
all 5 naps, with a mean sleep latency of 4.2 minutes.

This

indicates severe drowsiness. . . . This study supports the
diagnosis of narcolepsy, with 3 sleep onset REM episodes.”
2556.)

(R.

The Recommendations were that Plaintiff “not drive, operate

heavy machinery, or engage in activities that require full

8

attention if feeling sleepy, drowsy, or otherwise impaired.”

(Id.)

Dr. Della Rosa reviewed these findings at Plaintiff’s July 25,
2012, office visit, recorded his impression as “[n]arcolepsy
without cataplexy,” and started Plaintiff on Modafinil 200 mg.
2568.)

(R.

He noted that he informed Plaintiff of the potential side

effects including anxiety, panic disorder, mood swings, headache,
dizziness, allergic reaction, rash, nausea, and other side effects.
(Id.)

Plaintiff and her mother were given educational materials on

narcolepsy, including the symptoms and the fact that there is no
cure for narcolepsy.

(Id.)

Dr. Della Rosa

Plaintiff in two to three months.

(Id.)

planned to see

On the date of the visit,

Plaintiff’s Epworth score was 5/24: she would never doze when
sitting and reading (score 0); there was a slight chance of dozing
when watching TV (score 1); she would never doze when sitting
inactive in a public space (score 0); there was a moderate chance
of dozing when a passenger in a car for an hour without a break
(score 2); there was a moderate chance of dozing when lying down to
rest in the afternoon when circumstances permit (score 2); she
would never doze when sitting and talking with someone (score 0);
she would never doze when sitting quietly after lunch without
alcohol (score 0); and she would never doze when in a car while
stopped for a few minutes in the traffic (score 0).

(R. 2573.)

At her visit on October 12, 2012, Plaintiff reported some
benefit from Modafinil–-she was still tired but she was socializing

9

and getting out more often, was not as prone to napping, and had no
associated side effects.

(R. 2661.)

Dr. Della Roas planned to

increase the Modafinil to 400 mg. a day, the maximum dose.
2664.)

(R.

Her Epworth score was 14/24: there was a high chance of

dozing when sitting and reading (score 3); there was a high chance
of dozing when watching TV (score 3); there was a moderate chance
of dozing when sitting inactive in a public space (score 0); she
would never doze when a passenger in a car for an hour without a
break (score 0); there was a high chance of dozing when lying down
to rest in the afternoon when circumstances permit (score 3); there
was a moderate chance of dozing when sitting and talking with
someone (score 2); there was a slight chance of dozing when sitting
quietly after lunch without alcohol (score 1); and she would never
doze when in a car while stopped for a few minutes in the traffic
(score 0).

(R. 2669.)

On January 18, 2013, Plaintiff again saw Dr. Della Rosa.
2672.)

(R.

Clinic notes indicate that Plaintiff reported she was still

tired and fatigued and her symptoms were worse although she was on
the maximum dose of modafinil.

(Id.)

Plaintiff said she was more

tired than she had ever been, she was sleeping twelve hours at
night then got up, took her modafinil, and went back to bed for a
one to three hour nap.
information.

(Id.)

(Id.)

Plaintiff’s mother corroborated this

Dr. Della Rosa noted that Plaintiff and her

mother asked about other medications and he discussed Nuvigil which

10

he thought may provide some benefit.

(Id.)

His plan was to

discontinue modafinil in favor of Nuvigil 250 mg., the maximum
dose.

(Id.)

He added that he may need to go to other stimulant

medication in the future.

(Id.)

Plaintiff’s Epworth score was

15/24: there was a moderate chance of dozing when sitting and
reading (score 2); there was a high chance of dozing when watching
TV (score 3); there was a moderate chance of dozing when sitting
inactive in a public space (score 2); there was a high chance of
dozing when a passenger in a car for an hour without a break (score
3); there was a high chance of dozing when lying down to rest in
the afternoon when circumstances permit (score 3); she would never
doze when sitting and talking with someone (score 0); there was a
slight chance of dozing when sitting quietly after lunch without
alcohol (score 1); and there was a slight chance of dozing when in
a car while stopped for a few minutes in the traffic (score 1).
(R. 2680.)
On April 1, 2013, Dr. Della Rosa noted in the “Social History
Narrative” portion of his office visit notes that Plaintiff was
disabled due to severe narcolepsy. (R. 2686.)

He recorded the

following Impression: “Narcolepsy without cataplexy, confirmed by
multiple sleep latency testing.

Provigil [modafinil] ineffective,

and Nuvagil could not be used because of insurance denial.

She is

not a candidate for Adderall, Dexadrine, or Ritalin, due to the
potential for psychiatric side effects, and the same goes for

11

Xyrem.”

(R. 2686.)

Dr. Della Rosa set out the following Plan: “No

treatment at the present time.

The patient does not drive a motor

vehicle, and she should not be doing so, given her severe
narcolepsy which remains untreated right now.
clinic in 6 months.”

(Id.)

Followup in sleep

At this visit, Plaintiff’s Epworth

score was 17/24: there was a moderate chance of dozing when sitting
and reading (score 2); there was a high chance of dozing when
watching TV (score 3); there was a slight chance of dozing when
sitting inactive in a public space (score 1); there was a high
chance of dozing when a passenger in a car for an hour without a
break (score 3); there was a high chance of dozing when lying down
to rest in the afternoon when circumstances permit (score 3); there
was a slight chance of dozing when sitting and talking with someone
(score 1); there was a moderate chance of dozing when sitting
quietly after lunch without alcohol (score 2); and there was a
moderate chance of dozing when in a car while stopped for a few
minutes in the traffic (score 1).
2.

(R. 2691.)

Opinion Evidence
On October 15, 2012, Dr. Della Roso opined in a welfare

disability form that Plaintiff was temporarily disabled for twelve
months or more: he noted the disability began on October 12, 2012,
and he expected it to last until October 12, 2013.

(R. 2381.)

Della Rosa’s diagnosis was narcolepsy and he noted that his
assessment was based on physical examination, review of medical

12

Dr.

records, clinical history, and appropriate tests and diagnostic
procedures.1

(Id.)

At a Geisinger Comprehensive Weight Management Clinic
Consultation on March 27, 2013, Jennifer E. Francoschelli, D.O.,
stated in the Social History Narrative portion of her report
“[d]isabled due to narcolepsy.”

(R. 2686.)

At the visit,

Plaintiff’s mother reported that Plaintiff was on Provigil but it
did not work well.

(R. 3002.)

Dr. Francoschelli recorded that

Plaintiff was up for about two to four hours during the day “at
best,” she sleeps the rest of the day and is up during the
nighttime watching tv.

(Id.)

The Social History Narrative portion of Dr. Della Rosa’s April
1, 2013, office notes, states “[d]isabled due to narcolepsy.”

(R.

2686.)
3.

Third Party Function Report
Plaintiff’s mother, Teresa A. Breustedt, completed a Function

Report - Adult - Third Party on June 21, 2012.

(R. 234-41.)

Her

mother stated that Plaintiff slept most of the time but she did not
relate this to narcolepsy.
4.

(R. 235, 238.)

Hearing Testimony
Plaintiff testified on June 6, 2013, that she stopped working

in March 2012 because she was “getting sexually harassed.”

1

The form provided a check-the-box assessment basis.

2381.)
13

(R.

(R.

98.)

She stated that since that time she has looked for work at

nursing homes and fast-food restaurants but no one called her back.
(R. 100.)

When asked by the ALJ whether she thought she could work

at one of these places, Plaintiff responded “I think I might be
able to.”

(Id.)

Plaintiff testified that she had adjusted her

sleep patterns during the preceding month and she found this was
better for her.
5.

(R. 103-04.)

ALJ Decision
By decision of September 16, 2013, ALJ Stolls determined that

Plaintiff was not disabled as defined in the Social Security Act
from the alleged onset date of May 6, 2011, through the date of the
decision.

(R. 61.)

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 June 30, 2013.

2.

The claimant engaged in substantial
gainful activity (SGA) during the
following periods: October 2011 through
December 2011 (20 CFR 404.1520(b),
404.1571 et seq. 416.920(b) and 416.971
et seq.).

3.

However, there has been a continuous 12month period(s) during which the
claimant did not engage in substantial
gainful activity. The remaining
findings address the period(s) the
claimant did not engage in substantial
gainful activity.

4.

The claimant has the following severe
impairments; psoriatic arthritis; spina
bifida; osteoarthritis of the back;
14

recurrent hypersomnia; cystic
adenomatoid right lower lobe and status
post resection; migraines/post-traumatic
headache; asthma; narcolepsy without
cataplexy; major depressive disorder;
generalized anxiety disorder; attention
deficit hyperactivity disorder (20 CFR
404.1520(c) and 416.920(c)).
5.

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

6.

After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a)
and 416.967(a) except the claimant would
be additionally limited to occupations
requiring no more than occasional
postural maneuvers such as balancing,
stooping, kneeling, crouching, and
climbing ramps and stairs, but she must
avoid occupations that require climbing
on ladders, ropes, and scaffolds or
crawling. She is limited to occupations
requiring no more than occasional
pushing or pulling with the upper and
lower extremities, to include the
operation of hand levers and pedals.
She must avoid concentrated prolonged
exposure to fumes, odors, dusts, gases,
environments with poor ventilation, and
temperature extremes or extreme dampness
and humidity. She would be limited to
occupations that do not require exposure
to hazards such as dangerous machinery
and unprotected heights. She is limited
to occupations requiring no more than
simple routine tasks, not performed in a
fast-paced production environment,
involving only simple work related
decisions and, in general, relatively
15

few workplace changes.
7.

The claimant has no past relevant work
(20 CFR 404.1565 and 416.965).

8.

The claimant was born on October 15,
1991 and was 19 years old, which is
defined as a younger individual age 1844, on the alleged disability onset date
(20 404.1563 and 416.963).

9.

The claimant has at least a high school
education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

10.

Transferability of job skills is not an
issue because the claimant does not have
past relevant work (20 CFR 404.1568 and
416.968).

11.

Considering the claimant’s age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
national economy that the claimant can
perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)).

12.

The claimant has not been under a
disability, as defined in the Social
Security Act, from May 6, 2011, through
the date of this decision (20 CFR
404.1520(g) and 416.910(g)).

(R. 54-61.)
Regarding Plaintiff’s narcolepsy, ALJ Stolls noted that
Plaintiff was not taking any medication for narcolepsy.
However, ALJ Stolls also states that Plaintiff
is prescribed modafinil 200mg once in the
morning and reports that she is still tired,
she is socializing and getting out of the
house more often. She is not as prone to
napping and feels the medication is
beneficial. A follow up in early 2013 found
16

(R. 57.)

the claimant stopped taking her medications
and was sleeping more (Exhibit B27F/27).
(R. 58.)
ALJ Stolls afforded little weight to opinion evidence related
to narcolepsy.

She noted that Dr. Della Rosa’s welfare disability

form suggested temporary disability, did not contain a full
functional analysis and the records do not support disability.
59.)

(R.

Dr. Francoschelli’s opinion that Plaintiff was disabled due

to narcolepsy was afforded little weight “because the evidence
regarding the claimant’s narcolepsy does not support this level of
severity” and “the claimant testified that her sleeping habits have
improved.”

(R. 59.)

Concerning Plaintiff’s mother’s third party function report,
the ALJ did not give it significant weight because she was not
medically trained and could not be considered a disinterested third
party.

(R. 59.)
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
17

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

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

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

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

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).
18

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. 60-61.)
III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.

Substantial evidence

It means such relevant evidence

as a reasonable mind might accept as adequate to support a
conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971); see

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

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
19

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.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.

If she has not done so and has not

sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

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

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an
20

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.

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.
21

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,
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
22

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
As set out above, Plaintiff argues that the decision of the

Social Security Administration is error for the following reasons:
1) the ALJ erred in applying Acquiescence Ruling AR 00-1(4)
regarding treatment of another ALJ’s decision on a prior period of
disability; 2) the ALJ did not properly consider evidence from a
prior decision or explain her consideration of such evidence; 3)
the ALJ did not properly consider medical evidence regarding
Plaintiff’s narcolepsy and did not include its effects in her RFC
evaluation; 4) the ALJ erred in her evaluation in the treating
physician’s opinion; and 5) the ALJ erred in her evaluation of
Plaintiff’s mother’s statement.

(Doc. 31 at 20-21.)

Because I

conclude the ALJ’s consideration of Plaintiff’s narcolepsy is
lacking, I will first address the claimed errors related to this
issue.
1.

Consideration of Medical Evidence Related to Narcolepsy
Plaintiff claims the ALJ erred in her consideration of medical

evidence related to narcolepsy.

(Doc. 31 at 28.) First, she claims

the ALJ’s opinion is misleading with respect to the severity of the
condition.

(Id.)

I conclude that the ALJ did not properly

23

consider evidence related to Plaintiff’s narcolepsy because she did
not analyze certain probative evidence.
As set out in Kent, 710 F.2d at 114, and explained above, it
is necessary for the Secretary to analyze all probative evidence.
If she has not done so and has not sufficiently explained the
weight given to all probative exhibits, “to say that [the] decision
is supported by substantial evidence approaches an abdication of
the court’s duty to scrutinize the record as a whole to determine
whether the conclusions reached are rational.”
F.2d at 406.

Dobrowolsky, 606

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.

Although the ALJ need not undertake an exhaustive discussion
of all the evidence, Knepp, 204 F.3d at 83, here the ALJ did not
discuss, or discussed out of context, probative evidence related to
Plaintiff’s narcolepsy and its effects on her functioning.
Stolls devoted a paragraph to consideration of this severe
impairment:
The claimant’s narcolepsy was diagnosed
later in 2012. At a sleep disorder clinic
she was diagnosed with narcolepsy without
cataplexy with a mean sleep latency of 4.2
24

ALJ

minutes with 3 sleep onset REM episodes
(Exhibit B27F/2). She reported that she gets
at least 8 hours of sleep per night.
However, she is prescribed modafinil 200mg.
once in the morning and reports that although
she is still tired, she is socializing more
and getting out of the house more often. She
is not as prone to napping and feels the
medication is beneficial. A follow up in
early 2013 found the claimant stopped taking
her medications and was sleeping more
(Exhibit B27F/27).
(R. 57-58.)
The incompleteness of ALJ Stolls’ review of narcolepsy
evidence is demonstrated by a review of the evidence omitted from
this brief discussion.

Exhibit B27F/2 refers to Plaintiff’s visit

with Dr. Della Rosa on October 12, 2014.

(R. 2661.)

The ALJ does

not acknowledge that Dr. Della Rosa determined that Plaintiff had a
partial benefit from modafinil 200mg and he planned to increase it
to 400mg a day, the maximum dose.

(R. 2664.)

More importantly,

the ALJ does not review evidence from Plaintiff’s January 18, 2013,
visit with Dr. Della Rosa where Plaintiff reported that she was
worse and her mother corroborated this, including the fact that she
was sleeping twelve hours per night, getting up briefly and then
going back to bed for a one to three hour nap.

(R. 2672.)

Dr.

Della Rosa determined that modafinil was “no longer effective.”
(R. 2675.)

He discontinued it in favor of Nuvigil and noted that

Plaintiff might need to go to other stimulant medication in the
future.

(Id.)

Most importantly, the ALJ’s portrayal of

Plaintiff’s next visit with Dr. Della Rosa is woefully incomplete.
25

ALJ Stolls’ reference to an early 2013 followup relates to
Plaintiff’s April 1, 2013, visit with Dr. Della Rosa.
2686.)

(R. 58,

While it is true that Plaintiff “stopped taking her

medications,” Dr. Della Rosa recorded that she did so because
“Provigil [modafinil] ineffective, and Nuvigil could not be used
because of insurance denial.”

(Id.)

He added that Plaintiff was

not a candidate for other medications because of the potential for
psychiatric side effects, and he had no plan for treatment “at the
present time.”

(R. 2686.)

He characterized Plaintiff’s narcolepsy

as “severe” and in the “Social History Narrative” portion of the
report, he notes “[d]isabled due to narcolepsy.”

(Id.)

Thus,

while the ALJ portrays a claimant who stopped taking medication for
no reason, the records show that there was no medication available
to Plaintiff for her severe condition confirmed by sleep latency
testing which her treating specialist deemed disabling at the time.
(R. 58, 2686.)
This review of evidence related to Plaintiff’s narcolepsy
indicates that the ALJ failed to analyze probative evidence.

It

cannot be determined in the circumstances presented here that her
failure to do so is harmless error.

Therefore, remand is required

for proper consideration of evidence related to Plaintiff’s
narcolepsy and the effects of this severe impairment on her ability
to sustain gainful employment.
I also note that the ALJ did not err in assigning little

26

weight to Dr. Della Rosa’s check-the-box Pennsylvania Department of
Public Welfare form opinion in that “[f]orm reports in which a
physician’s obligation is only to check a box or fill in a blank
are weak evidence at best.”
Cir. 1993).

Mason v. Shalala, 994 F.2d 1058 (3rd

However, because remand is required for further

consideration of Plaintiff’s narcolepsy, the ALJ should revisit her
reasons for discounting the opinion in that it was rendered in
October 2012--before Plaintiff’s condition worsened and no
treatment was available for what Dr. Della Rosa considered a
severe, disabling condition as recorded in his April 1, 2013,
treatment notes.

(R. 2686.)

Furthermore, because the ALJ must

analyze all evidence and reconsider the limiting effects of
Plaintiff’s narcolepsy clarification and further development of the
record may be required and her statement that “the records do not
support disability” is subject to reassessment.
2.

Remaining Errors
Because I have determined that remand is required, I will just

briefly discuss Plaintiff’s remaining claimed errors.
Regarding her first claimed error, the harm specifically noted
as a result of the ALJ’s alleged failure to provide a de novo
review by giving significant weight to a prior ALJ decision is that
the narcolepsy diagnosis occurred after the previous decision dated
June 10, 2010.

(Doc. 31 at 22.)

Because remand is required for

consideration of evidence related to narcolepsy, the harm cited
will be addressed.
Regarding her second claimed error that the ALJ did not comply
with HALLEX I-2-6-58, I agree with Defendant that compliance with
27

HALLEX, a Social Security internal guidance tool, “is not
judicially enforceable or binding” on the Social Security
administration, and Plaintiff has not shown that she suffered harm
as a result of claimed noncompliance.

(Doc. 32 at 16.)

Regarding her fifth claimed error, Plaintiff’s criticism of
the ALJ’s consideration of her mother’s function report is valid in
part: although Plaintiff’s mother is not medically trained her lay
observation of Plaintiff’s symptoms should not be discounted
without further explanation as to how the information provided is
inconsistent with medical reports.

(See R. 59.)

This is

particularly so because Plaintiff lives with her mother, her mother
accompanies her to most medical visits, and her observations about
sleepiness made in June 2012 may be relevant to and consistent with
Plaintiff’s narcolepsy diagnosis confirmed by Dr. Della Rosa in
July 2012.

(R. 235, 238, 2556.)
V. Conclusion

For the reasons discussed above, I conclude that remand of
this matter is necessary for further consideration in accordance
with this Memorandum.

An appropriate Order is filed simultaneously

with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

DATED: October 26, 2015

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