Marquette v. Commissioner of Social Security

Filing 13

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable William J. Nealon on 10/18/17. (ep)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM MARQUETTE,
Plaintiff
vs.
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security,
Defendant

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No. 3:16-CV-0215
(Judge Nealon)

MEMORANDUM
On February 8, 2016, Plaintiff, William Marquette, filed this instant appeal2
under 42 U.S.C. § 405(g) for review of the decision of the Commissioner of the
Social Security Administration, (“SSA”), denying his application for Disability
Insurance Benefits, (“DIB”), under Title II of the Social Security Act, 42 U.S.C.

1. Nancy A. Berryhill became the new Acting Commissioner of Social Security on

January 23, 2017. See http://blog.ssa.gov/meet-our-new-acting-commissioner/.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill
should be substituted for former Acting Commissioner, Carolyn W. Colvin, as the
defendant in this suit. No further action needs to be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).
2. 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.

§ 1461, et seq., and his application for Supplemental Security Income, (“SSI”),3
under Title XVI of the Social Security Act, 42 U.S.C. § 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 affirmed.
BACKGROUND
Plaintiff protectively filed4 his applications for DIB and SSI on June 15,
2012, alleging disability beginning on January 1, 2010,5 due to a combination of
back and neck pain, Depression, Bipolar Disorder, and Barrett’s Disease. (Tr. 42,
65, 90, 72-73, 77-81).6 These claims were initially denied by the Bureau of
Disability Determination (“BDD”)7 on October 19, 2012. (Tr. 42). On November
3. Supplemental security income is a needs-based program, and eligibility is not

limited based on an applicant’s date last insured.
4. 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.
5. This Court takes notice that Plaintiff’s original alleged onset date was June 10,

2009, and that he amended his onset date at the hearing. (Tr. 42, 65).
6. References to “(Tr. )” are to pages of the administrative record filed by

Defendant as part of the Answer on May 4, 2016. (Doc. 8).
7. The Bureau of Disability Determination is an agency of the state which initially

evaluates applications for disability insurance benefits on behalf of the Social
2

8, 2012, Plaintiff filed a request for an oral hearing. (Tr. 42). On January 7, 2014,
a hearing was held before administrative law judge Sharon Zanotto, (“ALJ”), at
which Plaintiff and impartial vocational expert Andrew Caporale, (“VE”),
testified. (Tr. 42). On April 14, 2014, the ALJ issued a decision denying
Plaintiff’s applications for DIB and SSI. (Tr. 42-51). On May 29, 2014, Plaintiff
filed a request for review with the Appeals Council. (Tr. 36). On December 15,
2015, the Appeals Council denied Plaintiff’s appeal, thus making the decision of
the ALJ final. (Tr. 1-7).
Plaintiff filed the instant complaint on February 8, 2016. (Doc. 1). On May
4, 2016, Defendant filed an answer and transcript from the SSA proceedings.
(Docs. 7 and 8). Plaintiff filed a brief in support of his complaint on June 17,
2016. (Doc. 9). Defendant filed a brief in opposition on August 15, 2016. (Doc.
12). Plaintiff did not file a reply brief.
Plaintiff was born in the United States on June 25, 1977, and at all times
relevant to this matter was considered a “younger individual.”8 (Tr. 261). Plaintiff

Security Administration.
8. 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 453

completed the eleventh grade in 1995, attended special education classes, and can
communicate in English. (Tr. 263, 265). His employment records indicate that he
previously worked as a broker for a trucking company. (Tr. 267).
In a document entitled “Function Report - Adult” filed with the SSA on July
12, 2012, Plaintiff indicated that he lived in a house with his boyfriend. (Tr. 278).
He had some problems with personal care tasks such as dressing and using the
toilet due to bleeding and mobility issues, did not prepare meals, and ironed and
folded the laundry “not that often.” (Tr. 280-282). He could walk about a block
or so before needing to rest for a few minutes. (Tr. 286). When asked to check
items which his “illnesses, injuries, or conditions affect,” Plaintiff did not check
reaching, talking, using hands or getting along with others. (Tr. 286).
Regarding concentration and memory, Plaintiff needed special reminders to
take care of his personal needs, to go places, and to take his medicine. (Tr. 282,
284). With help, he could pay bills, use a checkbook, count change, and handle a
savings account. (Tr. 283). He could pay attention for “not long,” his ability to
follow written instructions depended on the amount of detail, his ability to follow
spoken instruction was “not to[o] good cause [he] forgot things pretty quick[ly,”

49 are more limited in their ability to adjust to other work than persons who have
not attained age 45. See Rule 201.17 in appendix 2.” 20 C.F.R. §§ 404.1563(c).
4

he was not able to finish what he started, did not handle stress well, and had the
same routine for “at least the last 6 months.” (Tr. 286-287).
Socially, Plaintiff left the house for doctor’s appointments and to go to
shopping about once a month. (Tr. 283). He indicated that when he went out, he
was able to do so alone “as long as [he was not] bleeding or in to[o] much pain,”
and was able to walk and sometimes drive a car. (Tr. 283). His hobbies included
reading comic books, watching television, and spending time with his family and
pets. (Tr. 284). He indicated he got along “fine” with others. (Tr. 288).
At his hearing on January 7, 2014, Plaintiff testified that he left his job at a
trucking company because he was “having a lot of problems as far as with [his]
back, [and his] health,” such as “Barrett’s with [his] intestinal tract” that would
cause him to bleed and constant back pain. (Tr. 72-73). He indicated that his back
pain was aggravated by “anything physical,” that it worsened after surgery in
2009, and that he was in constant pain, whereas before the surgery, his pain was
not entirely constant. (Tr. 77-81). He stated that medications gave him slight
relief from the pain, and had the side effects of making him feel “goofy” and
drowsy. (Tr. 84). He testified that radiofrequency ablations did not give him
relief. (Tr. 88-89). Regarding the bleeding that occurred from Barrett’s Disease,
Plaintiff stated it occurred a “few times a year,” lasted anywhere from a few hours
5

to two (2) days, and required a visit to the hospital. (Tr. 89). Regarding
Depression, Plaintiff indicated that he reached a point where he felt like he was
having a nervous breakdown “a lot”and that he was suicidal. (Tr. 90). Plaintiff
testified that his typical day involved waking up at six o-clock in the morning
(6:00 AM), sitting in a recliner and watching television with frequent change of
positions, showering, eating once a day, and using the computer or phone. (Tr.
99-100). He indicated that he could stand for “maybe” twenty (20) minutes and
could sit for up to one (1) hour, could walk for about fifty (50) yards, hard trouble
reaching overhead, had difficulty hearing and using stairs, and could lift about ten
(10) pounds. (Tr. 101-104).
MEDICAL RECORDS
A.

Medical Evidence
1.

Argires, Becker and Westphal Brain, Orthopedic, Sports
Medicine and Spine Care

On March 15, 2010, Plaintiff had an appointment with Perry Argires, M.D.,
for low back pain. It was noted that Plaintiff was doing “well” following his
cervical arthroplasty procedure, that he had undergone multiple conservative
treatments for his back pain, and that, due to his increased symptomology, he was
considering surgical options to fix the herniated disc and disc deterioration at the

6

L5-S1 level. (Tr. 558). His physical examination revealed: alertness and
orientation; clear and fluent speech; 5/5 motor strength in the upper and lower
extremities; diminished and symmetric reflexes throughout; and a steady gait. (Tr.
558). Dr. Argires recommended Plaintiff undergo an anterior discectomy with
arthroplasty. (Tr. 559).
On June 18, 2010, Plaintiff had an appointment with Rienna Fulmer, PA-C,
after he felt “something pop in the right side of his neck” when he lifted a basket
of laundry onto the dryer that also caused pain in his scapula and over towards his
deltoid with occasional radiation into the ulnar distribution of his fingers into his
right hand. (Tr. 560). It was noted Plaintiff also had chronic back pain that was
being “worked up.” (Tr. 560). A physical examination revealed Plaintiff: was
alert and oriented; had limited flexion and extension secondary to pain; had
significant pain with rotation over the right side of the shoulder; had two small
palpable areas of muscle spasm in the cervical spine and occipital region that were
extremely tender to touch; had good strength with resistance of muscle testing in
the biceps, triceps, and deltoid on the right side; and had exacerbation of
symptoms throughout his exam in the area of the cubital tunnel and into his right
fourth and fifth fingers. (Tr. 560). Plaintiff was diagnosed as having post cervical
disc replacement with recent exacerbation and radiculitis. (Tr. 560). He was
7

referred to pain management, and Dr. Argires ordered a “myo block” to decrease
inflammation in the cervical spine. (Tr. 560).
On July 1, 2010, Plaintiff had an appointment with Trevin Thyrman, M.D.
for neck pain. (Tr. 562). A physical examination revealed: 5/5 strength in the
bilateral upper and lower extremities; tight cervical paraspinals at the C5-C6 level
with decreased rotation to the left; and negative Hoffmann’s and Spurling’s tests
bilaterally. (Tr. 562). Plaintiff was diagnosed with cervical radiculitis. (Tr. 562).
Dr. Thurman recommended epidural steroid injections to treat the acute onset of
symptoms and a repeat cervical MRI if these injections failed. (Tr. 563).
On September 3, 2010, Plaintiff had an appointment with Dr. Argires for
follow-up of the neck pain on the right side in the suboccipital area. (Tr. 566).
Dr. Argires ordered a bone scan to assess Plaintiff’s facet joints. (Tr. 566).
On October 5, 2010, Plaintiff had a follow-up appointment with Dr. Argires.
(Tr. 567). Dr. Argires suggested Plaintiff undergo diagnostic facet blocks at C3C4 and C4-C5 and a possible epidural steroid injection at the L5-S1 level. (Tr.
567).
On October 8, 2010, Plaintiff had a follow-up appointment with Dr.
Thurman for persistent pain on the right side of his neck most notable in the
middle of his right neck with some radiation down to the right shoulder that was
8

“somewhat improved after the epidural steroid injections.” (Tr. 568). It was noted
Plaintiff continued to have back pain “at the belt line” that was most significant on
his right side and was accompanied by numbness and paresthesias, which radiated
on the lateral aspect of his thigh and anterior aspect of his shin and foot on the
right side. (Tr. 568). A physical examination revealed Plaintiff had: 5/5 strength
bilaterally in the upper and lower extremities; a C4-C5 facet joint that was slightly
tender to palpation; a C5-C6 facet joint that was moderately tender to palpation;
and increased low back pain with lumbar flexion to sixty (60) degrees. (Tr. 568).
The impression was that Plaintiff had right L5 radiculopathy with an annular tear
at the L5-S1 disc and facet degeneration and pain at the right C4-C5 and C5-C6
facets. (Tr. 568). Dr. Thurman recommended lumbar epidural steroid injections
for his lumbar pain and medial branch blocks for his neck pain follow by
radiofrequency ablation. (Tr. 569).
On April 26, 2011, Plaintiff had a follow-up appointment with PA Fulmer
for ongoing low back and right leg pain. (Tr. 601). Plaintiff reported his pain had
gotten increasing worse over the last several weeks and that it was intractable and
consistent. (Tr. 601). Plaintiff was assessed as having chronic low back pain and
right leg radiculopathy. (Tr. 601). Plaintiff was given a corset brace for his back
and PA Fulmer ordered a new MRI of his lumbosacral spine. (Tr. 601).
9

On May 5, 2011, Plaintiff had an appointment with Ogden Gorham, PA-C,
after falling fourteen (14) to sixteen (16) feet from an upper stair landing at his
home and landing on the top of his head a week prior. (Tr. 599). His physical
examination revealed: a normal gait; grossly intact cranial nerves with no focal
deficits; good strength of bilateral upper extremities; well-preserved range of
motion in his neck; trapezius tenderness; posterior cervical tenderness from
muscle spasm; and good positioning of his prestige cervical disc at C4-C5 with no
evidence of malposition or migration and good preserved disc space at adjacent
levels. (Tr. 599-600). PA Gorham recommended Plaintiff undergo an MRI of his
brain. (Tr. 600).
On May 17, 2011, Plaintiff had an appointment with PA Fulmer for low
back and right leg pain. (Tr. 597). It was noted that the injections Plaintiff had
received had not provided significant relief and that his pain increased since April
2011. (Tr. 597). Plaintiff indicated that he was using a back brace given to him at
his last visit with mild relief, and that he had trouble doing any type of activities,
standing, or sitting for any long period of time. (Tr. 597). His physical
examination revealed: alertness and orientation; pain over the right posterior
buttock radiating anteriorly to encompass the quad; spasm in his mid-right calf;
ambulation without any significant discomfort; a positive straight leg test,
10

bilaterally; and good strength with testing of plantar and dorsiflexion exercises.
(Tr. 598). It was noted that Dr. Argires recommended anterior lumbar interbody
fusion at the L5-S1 segment with a posterior interspinous stabilization with fusion.
(Tr. 598).
On June 20, 2011, Plaintiff had a post-operative appointment with PA
Fulmer. (Tr. 603). It was noted that Plaintiff reported he was “getting better
everyday,” but also that he had developed anterior right hip pain. (Tr. 603-604).
He was ambulating without a cane and was wearing a back brace. (Tr. 604). His
physical examination revealed: well-healed incisions; neuro-vascularly intact
distal extremities; 5/5 strength with testing of the ankle plantar and with
dorsiflexion exercises; and ambulation without any significant disturbance. (Tr.
604). PA Fulmer indicated Plaintiff was doing “very well” post-operatively. (Tr.
604).
On July 12, 2011, Plaintiff had a post-operative visit with Esther Schlegel,
PA-C. (Tr. 605-606). Plaintiff rated his pain at a four (4) out of ten (10),
continued to have some right hip pain, and was doing exercises at home. (Tr.
605). His physical examination revealed: a well-healed incision; good ambulation
without assistance; full strength in his bilateral lower extremities; and reflexes and
sensation within normal limits. (Tr. 606). An x-ray of the lumbar spine showed
11

stable post-operative status post L5-S1 “ALIF” and interspinous process fusion.
(Tr. 606).
On September 6, 2011, Plaintiff had a post-operative follow-up appointment
with Dr. Argires. (Tr. 607-608). Plaintiff reported that his pain was worse when
sleeping at night, that he had persistent pain that caused difficulty with walking
and sleeping, and that he was unable to proceed with physical therapy due to
financial issues. (Tr. 607).
On November 29, 2011, Plaintiff had a follow-up appointment with Dr.
Argires for axial back pain. (Tr. 759). It was noted he seemed to be “somewhat
improved on his antidepressant medication by his report.” (Tr. 759).
On December 9, 2011, Plaintiff had an appointment with Dr. Argires for
axial back pain. (Tr. 760). Plaintiff complained of some intermittent right leg
pain, but was “neurologically stable by exam.” (Tr. 760). Dr. Argires
discontinued the OxyContin and placed him on Nucynta, and was concerned that
his pain may be related to Crohn’s Disease. (Tr. 760).
On January 3, 2012, Plaintiff had an appointment with Dr. Argires for his
back pain. (Tr. 761). It was noted he was “doing well” and that pain control was
much better with Nucynta. (Tr. 761). It was also noted that a recent MRI of the
lumbar spine revealed a small bulging disc at L4-L5 with no evidence of ongoing
12

neural compression and an interbody fusion at L5-S1. (Tr. 761).
On March 27, 2012, Plaintiff had a follow-up appointment with Dr. Argires
for his back pain. (Tr. 762). It was noted that Plaintiff was “unchanged” from the
last visit. (Tr. 762). Dr. Argired noted that Plaintiff reached maximum medical
recovery following his surgery and that follow-up could be arranged on an asneeded basis. (Tr. 762).
2.

Twin Rose Primary Health

On February 3, 2010, Plaintiff had an appointment with Eric Hussar, M.D.,
for follow-up of his anxiety and back pain. (Tr. 695). His examination revealed a
normal mood and affect. (Tr. 695). He was assessed as having Obsessive
Compulsive Disorder, Depression, and a herniated lumbar intervertebral disc. (Tr.
695).
On March 8, 2010, Plaintiff had a follow-up appointment with Scott
Schucker, M.D., for anxiety. (Tr. 691). It was noted he felt “fine anxiety wise”
and that he was “stable on dose [of Xanax] for approx[imately] 2 years now.” (Tr.
691). A physical examination was normal. (Tr. 691). Plaintiff was instructed to
follow-up with Dr. Schucker in two (2) months. (Tr. 692).
On May 7, 2010, Plaintiff had an appointment with Dr. Schucker for followup of “chronic intermittent panic attacks” and “burning in his back.” (Tr. 687). It
13

was noted that Plaintiff was able to decrease his dose of Xanax to “often twice a
day but sometimes even just 1 a day.” (Tr. 687). His physical examination
revealed he was pleasant, talkative, and in no acute distress. (Tr. 687). His Xanax
prescription was refilled and he was instructed to follow-up in two (2) months.
(Tr. 688).
On July 6, 2010, Plaintiff had a follow-up appointment with Dr. Schucker
for chronic anxiety and neck pain. (Tr. 683). It was noted that Plaintiff’s anxiety
was “stable on Xanax for several years” and that, although he had a recent surgery
for neck pain, he had been getting “new pain.” (Tr. 683). His physical
examination was normal. (Tr. 684). Plaintiff was instructed to schedule a followup appointment to return in about two (2) months. (Tr. 684).
On September 3, 2010, Plaintiff had an appointment with Dr. Schucker for
follow-up of chronic anxiety and chronic pain issues. (Tr. 679). It was noted
Plaintiff was “very stable” on the Xanax and felt it helped with his anxiety. (Tr.
680). His examination revealed he was pleasant, talkative, and in no acute
distress. (Tr. 680). He was instructed to keep taking Xanax and to continue to
follow with his neurosurgeon for his chronic neck pain. (Tr. 680).
On January 1, 2011, Plaintiff had a follow-up visit with Dr. Schucker for a
cough, chest congestion, and Panic Disorder. (Tr. 670). Plaintiff’s examination
14

revealed mild diffuse wheezing. (Tr. 671). He was instructed to continue taking
Xanax and was prescribed a Prednisone burst for wheezing. (Tr. 671).
On March 1, 2011, Plaintiff had a follow-up visit with Dr. Schucker for
chronic anxiety. (Tr. 666). There were “no new concerns” at this visit. (Tr. 666).
His examination revealed: a normal mood and affect; normal behavior; and normal
thought content and judgment. (Tr. 666-667). Dr. Schucker instructed Plaintiff to
continue taking Xanax. (Tr. 667).
On April 22, 2011, Plaintiff had an appointment with Dr. Schucker for chest
pain worse with movement of his arm and worse with a cough or sneeze for the
two (2) weeks prior to this appointment. (Tr. 662). Dr. Schucker reassured
Plaintiff the chest pain was muscular in nature. (Tr. 663). The medications he
was taking at this appointment included Albuterol, Alprazolam, Amrix, Flovent,
Lidocaine, Oxycodone, Oxycontin, Pantoprazole, Sertraline, and Zantac. (Tr. 663664).
On August 18, 2011, Plaintiff had a follow-up appointment with Dr.
Schucker for asthma and reported he had vomited blood. (Tr. 651). His physical
examination was normal. (Tr. 652). The medications he was taking at this
appointment included Albuterol, Alprazolam, Amrix, Flovent, Lidocaine,
Oxycodone, Oxycontin, Pantoprazole, Sertraline, and Zantac. (Tr. 653-654). Dr.
15

Shucker referred Plaintiff to Gastroenterology. (Tr. 652).
On October 7, 2011, Plaintiff had a follow-up appointment with Dr.
Schucker due to a complaint of an on-going cough for the past three (3) weeks.
(Tr. 634). His physical examination revealed: a normal range of motion in the
neck; a well-developed and well-nourished appearance; and a minimal diffuse
wheeze without rales or rhonchi. (Tr. 635). The medications he was taking at this
appointment included Albuterol, Alprazolam, Amrix, Flovent, Lidocaine,
Oxycodone, Oxycontin, Pantoprazole, Sertraline, and Zantac. (Tr. 637-638).
Plaintiff’s diagnoses included Panic Disorder, Depression, GERD, herniated
lumbar intevertebral disc, Irritable Bowel Syndrome, Lumbosacral Spondylosis
without myelopathy, Lumbago, and Asthma, and Dr. Schucker ordered blookwork
to check Plaintiff’s cholesterol and to check for HIV. (Tr. 634-637). Dr. Shucker
prescribed Prednisone for the cough. (Tr. 637).
On December 7, 2011, Plaintiff had an appointment with Dr. Shucker for
follow-up of his anxiety and back pain. (Tr. 779). A physical examination
revealed Plaintiff: was well-developed and well-nourished; had normal range of
motion in his neck; and exhibited no edema in his musculoskeletal system. (Tr.
782). Plaintiff was assessed as having Panic Disorder, GERD, Hematemesis, and
Lumbago, and his Xanax prescription was refilled. (Tr. 782).
16

On January 31, 2012, Plaintiff had a follow-up appointment with Dr.
Schucker for his ongoing anxiety and back pain. (Tr. 784). His physical
examination revealed Plaintiff had a normal mood, affect, behavior, judgment, and
thought content. (Tr. 789). It was noted that Plaintiff would be getting a
colonoscopy for rectal bleeding, vomiting, and pain. (Tr. 788). Dr. Shucker
refilled Plaintiff’s Xanax prescription and noted he had “been stable on same dose
for years [without an] increase.” (Tr. 789).
On March 27, 2012, Plaintiff had a follow-up appointment with Dr.
Schucker for his ongoing anxiety and back pain. (Tr. 792). It was noted his back
pain was stable and that Plaintiff was “doing ok” with his anxiety. (Tr. 797). His
physical examination revealed Plaintiff had a normal mood, affect, behavior,
judgment, and thought content. (Tr. 797). Dr. Shucker refilled Plaintiff’s Xanax
prescription, noting he had “been stable on same dose for years,” and instructed
Plaintiff to follow-up in two (2) months. (Tr. 797).
On June 11, 2012, Plaintiff had an appointment with Dr. Shucker for asthma
exacerbation and for follow-up after an emergency room visit for falling out bed
and hitting his head, which caused neck pain. (Tr. 819, 824). His physical
examination was normal. (Tr. 826). Plaintiff was assessed as having GERD, a
herniated lumbar intervertebral disc, Panic Disorder, and Depression, and was
17

prescribed an increased dose of Zoloft. (Tr. 826).
On July 9, 2012, Plaintiff had an appointment with Dr. Schuckerfor chronic
anxiety and back pain. (Tr. 1000). It was noted that Plaintiff felt the Xanax was
not working as well because he was more stressed and depressed. (Tr. 1000). A
physical examination was normal. (Tr. 1002). Plaintiff’s pain medications were
refilled, he was advised to continue on the same dose of Xanax, and he was
instructed to follow-up in one (1) month. (Tr. 1002).
On August 2, 2012, Plaintiff had a follow-up appointment with Dr. Shucker
for his chronic anxiety and back pain, both of which were listed as “stable.” (Tr.
1011). A physical examination was normal. (Tr. 1011). Plaintiff was instructed
to continue on his same medications and to follow-up in one (1) month. (Tr.
1011).
On August 31, 2012, Plaintiff had a follow-up appointment for ongoing,
chronic anxiety and back pain. (Tr. 1020). It was noted that Plaintiff was
“swallowing ok from recent Nissen,” that his GERD was stable, and that his
Xanax dose was stable. (Tr. 1020, 1022). A physical examination was normal.
(Tr. 1022). Plaintiff was instructed to follow-up in one (1) month. (Tr. 1022).
On September 28, 2012, Plaintiff had an appointment with Dr. Shucker for
follow-up of his chronic problems. (Tr. 1036). It was noted that Plaintiff admitted
18

to recently abusing Xanax and Opiates. (Tr. 1036). A physical examination was
normal. (Tr. 1038). Plaintiff was assessed as having Depression, Polysubstance
Abuse, Panic Disorder, and a herniated lumbar intervertebral disc. (Tr. 1038).
Plaintiff was switched to Klonopin with the plan to continue to “wean off benzo’s
completely,” had his pain medications refilled, and was scheduled for a follow-up
in one (1) month. (Tr. 1038).
On October 12, 2012, Plaintiff had a follow-up appointment with Dr.
Schucker after an emergency room visit due to being “slightly light-headed.” (Tr.
1041). It was noted his blood work was “all normal” and that he was withdrawing
off the Xanax he had been abusing. (Tr. 1046). A physical examination was
normal. (Tr. 1046). Plaintiff was scheduled for a follow-up appointment in two
(2) weeks. (Tr. 1047).
On October 26, 2012, Plaintiff had a follow-up appointment with Dr.
Schucker for abuse of Xanax. (Tr. 1054). It was noted that Plaintiff felt
“surprisingly well” and requested non-addictive medicine for anxiety. (Tr. 1054).
A physical examination was normal. (Tr. 1056). Plaintiff was instructed to start
Seroquel and to wean off Klonopin over the next two (2) weeks, with a follow-up
scheduled in one (1) month. (Tr. 1056).
On November 26, 2012, Plaintiff had a follow-up appointment with Dr.
19

Schucker for chronic anxiety, depression, and recent substance abuse of
prescription medications. (Tr. 1067). Plaintiff reported that the depression was
still a struggle, but that Seroquel had been slightly helpful so far. (Tr. 1067).
Plaintiff noted that discontinuing Xanax was “remarkably easy.” (Tr. 1067). A
physical examination was normal. (Tr. 1069). Plaintiff was instructed to follow
up in four (4) weeks. (Tr. 1070).
On December 21, 2012, Plaintiff had a follow-up appointment with Dr.
Schucker. (Tr. 1072). Plaintiff reported he felt “ok,” that Seroquel was “working
well for him,” and that the pain in his back was “stable.” (Tr. 1077). A physical
examination was normal. (Tr. 1079). Plaintiff’s pain medications were refilled,
and his GERD and Depression were listed as stable with medications. (Tr. 1079).
Plaintiff was instructed to follow-up in one (1) month. (Tr. 1079).
On January 8, 2013, Plaintiff had a follow-up appointment with Dr.
Shucker. (Tr. 1087). It was noted that the Seroquel was “doing well for him” and
that he needed new pain medications because his insurance would no longer cover
his OxyContin prescription. (Tr. 1087). A physical examination was normal. (Tr.
1089). Plaintiff was switched to Opana for pain, his depression was listed as
stable, and he was instructed to follow-up in one (1) month. (Tr. 1090).
On February 6, 2013, Plaintiff had an appointment with Dr. Shucker for
20

rectal bleeding with diarrhea. (Tr. 1097). Plaintiff reported the Opana helped his
pain, but not as much as the Oxycontin, and that he felt he was “doing ok” with the
current medications for depression. (Tr. 1097). Plaintiff’s examination was
normal. (Tr. 1099). Plaintiff’s Opana dose was increased, he was listed as stable
on Seroquel for depression, and he was instructed to follow-up in one (1) month.
(Tr. 1100).
On March 6, 2013, Plaintiff had an appointment with Dr. Schucker for
follow-up of his depression. (Tr. 1107). It was noted that Plaintiff’s lower back
pain and depression were stable on medications. (Tr. 1107). Plaintiff’s
examination was normal. (Tr. 1109). Plaintiff was instructed to continue his
medications and follow-up in one (1) month. (Tr. 1109).
On March 26, 2013, Plaintiff had an appointment with Dr. Schucker for
vomiting blood, which he stated started that morning and had been “going on for
years,” and rectal bleeding. (Tr. 1118). It was noted he was unaccompanied to
this appointment. (Tr. 1119). His physical examination was normal. (Tr. 1119).
Dr. Schucker ordered a CBC with differential and referred Plaintiff to Lancaster
Gastroenterology. (Tr. 1119). He also instructed Plaintiff to resume daily
protonix and to go to the emergency room if the bleeding continued. (Tr. 1119).
On April 23, 2013, Plaintiff had an appointment with Dr. Schucker for back
21

pain, chronic anxiety and depression, and follow-up of his rectal bleeding. (Tr.
1129). It was noted that Plaintiff admitted to being more depressed than usual, but
had no suicidal or homicidal ideations. (Tr. 1129). A physical examination was
normal. (Tr. 1131). Dr. Schucker’s plan was for Plaintiff to continue on the same
narcotic pain medications with a plan to stop Oxycodone next month and increase
Opana, to stop Zoloft and start Cymbalta, and to follow-up in five (5) weeks. (Tr.
1132).
On May 24, 2013, Plaintiff had an appointment with Dr. Schucker for
follow-up of his medical problems. (Tr. 1140). It was noted that Plaintiff
attended this appointment unaccompanied. (Tr. 1143). Plaintiff reported that his
lower back pain was slightly worse, he was having more radicular pain in the right
leg, he felt weak, felt more anxiety and stress, and he felt like his mental health
medications were not working too well. (Tr. 1140). A physical examination was
normal. (Tr. 1142). Plaintiff was assessed as having Lumbago, Depression, Panic
Disorder, GERD, and a herniated lumber intervertebral disc. (Tr. 1142). The plan
was to discontinue all of Plaintiff’s short-acting medications, increase Opana
slightly, increase Seroquel, and follow-up in one (1) month. (Tr. 1142).
On June 24, 2013, Plaintiff had an appointment with Dr. Schucker for
follow-up of his medical problems. (Tr. 1140). Plaintiff reported that he was
22

experiencing more anxiety and stopped taking Cymbalta because he did not like to
swallow capsules. (Tr. 1188). A physical examination was normal. (Tr. 1190).
Plaintiff was assessed as having Lumbago, Depression, Barrett’s Esophagus,
GERD, and a herniated lumber intervertebral disc. (Tr. 1190). Plaintiff received a
refill for Opana and was instructed to follow-up in one (1) month. (Tr. 1191).
On July 22, 2013, Plaintiff had an appointment with Dr. Schucker for
follow-up of his medical problems. (Tr. 1200). It was noted that Plaintiff felt
“ok,” and that he was on probation for attacking an off-duty police officer. (Tr.
1200). A physical examination was normal. (Tr. 1203). Plaintiff was assessed as
having a history of Polysubstance Abuse and a herniated lumber intervertebral
disc. (Tr. 1203). Plaintiff received a refill for Opana and was instructed to followup in one (1) month. (Tr. 1203).
On August 20, 2013, Plaintiff had an appointment with Dr. Schucker for
follow-up of his medical problems. (Tr. 1210). It was noted that Plaintiff
attended the appointment unaccompanied and that he was having no problems
with his current medications. (Tr. 1210). A physical examination was normal.
(Tr. 1212). Plaintiff was assessed as having a herniated lumber intervertebral disc,
Depression, OCD, and intermittent Asthma. (Tr. 1213). Plaintiff received a refill
for Opana and was instructed to follow-up in one (1) month. (Tr. 1213). Plaintiff
23

was also instructed to quit smoking. (Tr. 1213).
On September 11, 2013, Plaintiff had an appointment with Dr. Schucker for
follow-up of his medical problems. (Tr. 1220). It was noted that Plaintiff was
unaccompanied and had abdominal pain without bleeding. (Tr. 1220). A physical
examination was normal. (Tr. 1221). Plaintiff was assessed as having
constipation. (Tr. 1221). Plaintiff was instructed to take Miralax. (Tr. 1221).
On September 20, 2013, Plaintiff had an appointment with Dr. Schucker for
back pain and depression. (Tr. 1227). It was noted that Plaintiff was
unaccompanied and “overall [felt] stable.” (Tr. 1227). A physical examination
was normal. (Tr. 1229). Plaintiff’s Seroquel dosage was increased and he was
instructed to follow-up in one (1) month. (Tr. 1230).
On October 15, 2013, Plaintiff had an appointment with Dr. Schucker for a
medication check. (Tr. 1239). It was noted that Plaintiff was unaccompanied and
that he felt “overall ok.” (Tr. 1239). A physical examination was normal. (Tr.
1241). Plaintiff was assessed as having lumbar radiculopathy, Depression, and a
history of Polysubstance Abuse. (Tr. 1241). Plaintiff was instructed to take
follow-up in one (1) month. (Tr. 1242).
On November 15, 2013, Plaintiff had an appointment with Dr. Schucker for
follow-up of his chronic back pain and depression. (Tr. 1250). A physical
24

examination was normal. (Tr. 1254). Plaintiff was assessed as having lumbar
radiculopathy, Panic Disorder, Depression, and rectal bleeding. (Tr. 1254).
Plaintiff’s Opana prescription was refilled, a trial of Atarax was ordered for his
anxiety, and he was instructed to take follow-up in one (1) month. (Tr. 1254).
3.

Gastroenterology Associates of York

On September 9, 2011, Plaintiff had an appointment with Roland Friedrich,
M.D., after a sudden onset of vomiting blood two (2) weeks earlier and rectal
bleeding on a daily basis. (Tr. 610). His physical examination revealed Plaintiff:
was well developed; had normal eyes, a normal neck, and a normal respiratory
exam; had mild tenderness to palpation in the epigastrium and right upper
quandrant; had a normal affect and normal gait; and was oriented to time, space,
and person . (Tr. 611-612). Dr. Friedrich noted Plaintiff had a history of Barrett’s
Esophagus, Gastroesophageal Reflux, Hematochezia, and colonic polyps. (Tr.
612). Dr. Friedrich ordered an upper endoscopy with Barrett’s biopsies to rule out
erosive esophagitis and peptic ulcer disease. (612).
4.

Premier Medical Center Memorial Hospital

On June 9, 2012, Plaintiff presented to the emergency room after developing
neck pain and bilateral upper extremity tingling after falling out of bed early in the
morning. (Tr. 766-767). Plaintiff denied vomiting or visual problems. (Tr. 767).
25

A physical examination revealed Plaintiff: was well-nourished, alert, and oriented;
had full range of motion in his neck and no spasms with moderate pain in the left
lateral area; had clear speech, a normal affect, and appropriate responses to
questions; had no back tenderness; was neurologically intact; had 5/5 strength in
all extremities without swelling or tenderness; had equal grip strength, bilaterally;
and had intact upper extremity reflexes. (Tr. 766-767). X-rays were negative for a
fracture and dislocation, and Plaintiff was placed on Prednisone for a diagnosis of
cervical strain. (Tr. 768, 771).
B.

Tests and Procedures
1.

Bone Scan of the Cervical Spine

On September 17, 2010, Plaintiff underwent a bone scan of the cervical
spine. (Tr. 490). The impression was that “[t]here is focal increased uptake in the
midcervical spine at the C4-C5 level which corresponds to the postsurgical
changes and is nonspecific in nature within 1 year after surgery as described
above.” (Tr. 490).
2.

MRI of the Lumbar Spine

On April 29, 2011, Plaintiff underwent an MRI of her lumbar spine due to
right-sided low back pain after a fall a day prior that caused pain to radiate into the
right leg with numbness and tingling in the toes. (Tr. 494). The MRI revealed the
26

following: a hemangioma in the L5 vertebral body; mild disc space narrowing and
dessiccation at L5-S1; a minimal broad-based protrusion centrally without
significant canal or foraminal narrowing at the L5-S1 level; and mild degenerative
discogenic changes at L5-S1 [that were] “grossly stable when compared to prior
study.” (Tr. 494).
On December 16, 2011, Plaintiff underwent another MRI of the lumbar
spine after the L5-S1 surgical fusion. (Tr. 531). The impression from this MRI
was that Plaintiff had: (1) no disc herniation or canal stenosis at any level in the
lumbar spine; and (2) a new slight central disc protrusion at L4-L5 that did not
affect adjacent structures. (Tr. 532).
3.

MRI of the Brain

On May 17, 2011, Plaintiff underwent an MRI of the brain for headaches
and visual disturbances. (Tr. 495). The impression from this test is that Plaintiff
had a “[n]ormal brain.” (Tr. 495).
4.

Epidurals, Medial Branch Blocks, and Radiofrequency
Ablations

On July 9, 2010, Dr. Thurman gave Plaintiff an epidural injection into the
C7-T1 intralaminar for cervical sponylosis and right cervical radiculopathy. (Tr.
564). On July 23, 2010, Dr. Thurman gave Plaintiff an epidural injection into the

27

T1-2 intralaminar for neck pain, cervical spondylosis, and cervical radiculopathy.
(Tr. 565). On October 13, 2010, Plaintiff underwent an L5-S1 interlaminar
epidural steroid injection for low back pain and lumbar spondylosis. (Tr. 570).
On October 27, 2010, Plaintiff underwent a right C4, C5 and C6 medial branch
block for neck pain, cervical spondylosis, and right C4-C5 and C5-C6 facet
arthropathy. (Tr. 571). On November 4, 2010, Plaintiff underwent an L5-S1
interlaminar epidural steroid injection for low back pain and lumbar spondylosis.
(Tr. 572). On November 18, 2010, Plaintiff underwent a medial branch block at
the right C3, C4, C5 and C6 levels for neck pain, cervical spondylosis, and facet
pain at the right C3-C4, C4-C5, and C5-C6 levels. (Tr. 591). On November 29,
2010, Plaintiff underwent a medial branch radiofrequency ablation at the right C3,
C4, C5, and C6 levels for neck pain, cervical spondylosis, and right C3-C4, C4C5, and C5-C6 facet arthropathy. (Tr. 573). On January 26, 2011, Plaintiff
underwent a medial branch block at the bilateral L3 and L4 levels and a bilateral
L5 primary dorsal ramus block for low back pain, lumbar spondylosis, and
bilateral facet arthropathy at L4-L5 and L5-S1. (Tr. 594-595). On February 14,
2011, Plaintiff underwent bilateral L3 and L4 medial branch and bilateral L5
dorsal ramus radiofrequency ablation for low back pain, lumbar spondylosis, and
bilateral L4-L5 and L5-S1 arthropathy. (Tr. 575).
28

5.

Anterior Lumbar Interbody Fusion at L5-S1

From June 9, 2011 to June 11, 2011, Plaintiff was admitted to Lancaster
General Hospital to undergo an elective anterior lumbar interbody fusion with a
posterior interspinous stabilization for low back pain related to degenerative disc
disease and instability at L5-S1. (Tr. 500). It was noted that Plaintiff did “very
well” post-operatively, that his pain was controlled, and that he felt stable for
discharge. (Tr. 500).
6.

Upper Endoscopies

On September 14, 2011, Plaintiff underwent an upper endoscopy performed
by Dr. Friedrich. (Tr. 623-624). The impression from this test was that Plaintiff
had: (1) mucosa suggestive of Barrett’s esophagus; (2) a hiatal hernia; (3) antral
gastritis; and (4) no signs of ulcers of bleeding lesions. (Tr. 624). Plaintiff was
instructed to take anti-reflux measures, continue current medications, and followup in three (3) years if Barrett’s is present. (Tr. 624). The biopsy from this
endoscopy found gastritis and distal esophagus in an irregular “z-line.” (Tr. 625).
On July 25, 2013, Plaintiff underwent another Upper Endoscopy performed
by Steven Chen, M.D., for Hematemesis and a follow-up of Barrett’s Esophagitis.
(Tr. 1262). The impression was that Plaintiff had: Grade A reflux esophagitis;
chronic gastritis; and chronic duodenitis. (Tr. 1262).
29

7.

Laparoscopic Nissen Fundoplication

On July 27, 2012, Plaintiff underwent a Laparoscopic Nissen
Fundoplication performed by Ignacio Prats, M.D., to repair a hiatal hernia that was
causing GERD and chronic reflux esophagitis. (Tr. 843, 846, 850). Plaintiff was
instructed to follow-up in four (4) weeks after doing well post surgery. (Tr. 869).
C.

Medical Opinions
1.

Jonathan Rightmyer, Ph.D.- State Agency Physician

On October 21, 2011, Dr. Rightmyer completed a “Psychiatric Review
Technique” form for Plaintiff based on his medical records up to that date. (Tr.
119-120). He opined Plaintiff did not meet the “B” Criteria for Impairment
Listing 12.04, Affective Disorders, because Plaintiff had: (1) mild restriction of
activities of daily living; (2) mild difficulties in maintaining social functioning; (3)
mild difficulties in maintaining concentration, persistence, or pace; and (4) no
repeated episodes of decompensation. (Tr. 119). He also opined Plaintiff did not
meet the “C” criteria for this Listing. (Tr. 119).

30

2.

Jason Richards, SDM

On October 21, 2011, Single Decision Maker, (“SDM”),9 Jason Richards
completed a “Physical Residual Functional Capacity” form. (Tr. 121-122). He
opined that Plaintiff: (1) could occasionally lift and/ or carry up to twenty (20)
pounds; (2) could frequently lift and/ or carry up to ten (10) pounds; (3) could
stand, walk, and/ or sit for up to six (6) hours in an eight (8) hour workday; and (4)
could engage in unlimited pushing and pulling within the aforementioned weight
restrictions. (Tr. 121).
3.

Shruti Dhorajia, D.O.- Consultative Examiner

On October 9, 2012, Plaintiff underwent a consultative examination
performed by Dr. Dhorajia. (Tr. 879-891). It was noted that Plaintiff’s medical
problems included the following: heart murmur; dizziness; migraine; cephalgia;
stroke; Barrett’s Esophagus; colon polyp; constipation; Crohn’s Disease; diarrhea;
GERD; hemorrhoids; hiatal hernia; Irritable Bowel Syndrome; chronic back pain;
Degenerative Disc Disease; osteoarthritis; anxiety; depression; Bipolar Disease;
tuberculosis; Asthma; pneumonia; and “MI.” (Tr. 880). Plaintiff reported he
9. An “SDM” is an abbreviation for “Single Decision Maker.”

http://nls.org/Disability/VocationalRehabilitation/BenefitsManagementManual200
9Version/Chapter1. After an extensive review of the record and other cites, there
is no evidence that Paula Vanscoy is a medical doctor, doctor of osteopathic
medicine, or any other title in the medical profession.
31

experienced: chronic back pain that radiated down the right leg into his big toe
with only moderate relief provided by pain pills; hemorrhaging of his rectum;
resolved hermatemesis post-fundoplication; and withdrawal symptoms from
discontinuation of Xanax. (Tr. 880). A physical examination revealed Plaintiff:
was alert, awake, oriented, in no apparent distress, anxious, and coherent; had a
normal gait; could stand on his heels and toes, but could not walk on his heels;
could not sit on or get up from a low step; had 5/5 muscle strength in all
extremities; had a positive straight leg test in the supine position on the right side;
and had good and equal grip strength. (Tr. 881-882). Dr. Dhorajia opined, “per
patient,” that Plaintiff: could occasionally lift and/ or carry up to five (5) pounds;
could stand and/ or walk for up to twenty (20) minutes and sit for up to thirty (30)
minutes in an eight (8) hour workday; was limited in pushing and pulling in all
extremities; could occasionally bend, kneel, stoop, crouch, balance, and climb; had
no problems reaching, handling, fingering, feeling, speaking, tasting, or smelling;
and should avoid cold temperatures. (Tr. 881, 885-886).
4.

Juan B. Mari-Mayans, M.D.

On October 17, 2012, Dr. Mari-Mayans completed a “Physical Residual
Functional Capacity” form based on Plaintiff’s records up to that date. (Tr. 141142). He opined that Plaintiff: (1) could occasionally lift and/ or carry up to
32

twenty (20) pounds; (2) could frequently lift and/ or carry up to ten (10) pounds;
(3) could stand, walk, and/ or sit for up to six (6) hours in an eight (8) hour
workday; and (4) could engage in unlimited pushing and pulling within the
aforementioned weight restrictions. (Tr. 141-142).
5.

James Vizza, Ph.D.

On October 18, 2012, Dr. Vizza completed a “Psychiatric Review
Technique” form for Plaintiff based on his medical records up to that date. (Tr.
140-141). He opined Plaintiff did not meet the “B” Criteria for Impairment
Listing 12.04, Affective Disorders, of for Impairment Listing 12.06, Anxiety
Disorders, because Plaintiff had: (1) mild restriction of activities of daily living;
(2) mild difficulties in maintaining social functioning; (3) mild difficulties in
maintaining concentration, persistence, or pace; and (4) no repeated episodes of
decompensation. (Tr. 140). He also opined Plaintiff did not meet the “C” criteria
for this Listing. (Tr. 140).
6.

Scott Shucker, M.D.- Treating Physician

On August 17, 2012, Dr. Shucker completed a check-box form for the
Pennsylvania Department of Welfare. (Tr. 1025-1028). Dr. Shucker opined
Plaintiff was temporarily disable from August 12, 2012 to August 18, 2013 due to
chronic lower back pain. (Tr. 1027).
33

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
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
34

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
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
35

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 disability benefits, the plaintiff must demonstrate an “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 432(d)(1)(A). Further,
[a]n individual shall be determined to be under a disability only
if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such
work exists in the immediate area in which he lives, or whether
a specific job vacancy exists for him, or whether he would be
hired if he applied for work. For purposes of the preceding
sentence (with respect to any individual), “work which exists in
the national economy” means work which exists in significant
numbers either in the region where such individual lives or in
several regions of the country.
42 U.S.C. § 423(d)(2)(A).
The Commissioner uses a five-step process in evaluating disability and
36

claims for disability insurance benefits. See 20 C.F.R. § 404.1520; Poulos, 474
F.3d at 91-92. This process requires the Commissioner to consider, in sequence,
whether a claimant (1) is engaging in substantial gainful activity, (2) has an
impairment that is severe 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 residual functional capacity to
return to his or her past work and (5) if not, whether he or she can perform other
work in the national economy. Id. As part of step four, the Commissioner must
determine the claimant’s residual functional capacity. Id. If the claimant has the
residual functional capacity to do his or her past relevant work, the claimant is not
disabled. Id. “The claimant bears the ultimate burden of establishing steps one
through four.” Residual functional capacity is the individual’s maximum
remaining ability to do sustained work activities in an ordinary work setting on a
regular and continuing basis. See Social Security Ruling 96-8p, 61 Fed. Reg.
34475 (July 2, 1996). A regular and continuing basis contemplates full-time
employment and is defined as eight hours a day, five days per week or other
similar schedule. The residual functional capacity assessment must include a
discussion of the individual’s abilities. Id.; 20 C.F.R. §§ 404.1545 and 416.945;
Hartranft, 181 F.3d at 359 n.1 (“‘Residual functional capacity’ is defined as that
37

which an individual is still able to do despite the limitations caused by his or her
impairment(s).”).
“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 residual functional capacity. ”
Poulos, 474 F.3d at 92, citing Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir.
2004).
ALJ DECISION
Initially, the ALJ determined that Plaintiff met the insured status
requirements of the Social Security Act through the date last insured of December
31, 2012. (Tr. 44). At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful work activity from his amended alleged onset date of January
1, 2010. (Tr. 44).
At step two, the ALJ determined that Plaintiff suffered from the severe10
10. An impairment is “severe” if it significantly limits an individual’s ability to

perform basic work activities. 20 C.F.R. § 404.921. Basic work activities are the
abilities and aptitudes necessary to do most jobs, such as walking, standing,
sitting, lifting, pushing, seeing, hearing, speaking, and remembering. Id. An
impairment or combination of impairments is “not severe” when medical and other
evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s
38

combination of impairments of the following: “degenerative disc disease of the
cervical and lumbar spine; and asthma (20 C.F.R. 404.1520(c) and 416.920 (c)).”
(Tr. 44-46).
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. 46).
At step four, the ALJ determined that Plaintiff had the RFC to perform
sedentary work with limitations. (Tr. 46-49). Specifically, the ALJ stated the
following:
After careful consideration of the entire record, the undersigned
finds that, through the date last insured, [Plaintiff] has the
[RFC] to perform sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) except he must be able to alternate
between sitting and standing at will. [Plaintiff] is limited to
occasional overhead bilateral reaching. He is limited to
occasional crouching, squatting, kneeling, stooping, bending,
and climbing of ramps and stairs. [Plaintiff] should never climb
ladders, ropes or scaffolds. Furthermore, he is precluded from
concentrated exposure to cold.
(Tr. 46).
ability to work. 20 C.F.R. § 416.921; Social Security Rulings 85-28, 96-3p and
96-4p.
39

The ALJ then determined that Plaintiff is capable of performing past
relevant work as a dispatcher, “motor vehicles, DOT# 249.167-014, light as
actually performed and sedentary as generally performed, SVP 5. This work does
not require the performance of work-related activities precluded by [Plaintiff]’s
[RFC] (20 CFR 404.1565 and 416.965).” (Tr. 49-50).
Thus, the ALJ concluded that Plaintiff was not under a disability as defined
in the Social Security Act at any time between January 1, 2010, the amended
alleged onset date, and the date of the ALJ’s decision. (Tr. 50).
DISCUSSION
On appeal, Plaintiff asserts that: (1) his spinal disorder and depression meet
or medically equal Impairment Listings; and (2) he is disabled under the Medical
Vocational Rules. (Doc. 9, pp. ). Defendant disputes these contentions. (Doc. 12,
pp. 10-19).
1.

Step Three Analysis- Impairment Listing 1.04(C)

Plaintiff asserts that the ALJ erred in determining that Plaintiff did not meet
Impairments Listing 1.04(c), Spinal Disorders, because the medical records and
his own testimony prove that he meets this Listing. (Doc. 9, pp. 3-7).11 Plaintiff
11. While Plaintiff initially states that the ALJ erred in concluding his depression

did not meet or medically equal a Listing Impairment, because Plaintiff failed to
support this contention asserted in his brief in support and did not even make
40

also argues that not only did his back impairments meetListing 1.04(C), but also
that the ALJ failed to provide an explanation as to why Plaintiff did not meet this
Listing.
With regard to the latter assertion that the ALJ failed to provide, in the step
three discussion section, an explanation as to why Plaintiff did not meet Listing
1.04, it is determined that Plaintiff’s argument is unfounded because the ALJ
discussed all relevant medical evidence in relation to Listing 1.04(C) in the RFC
section of her opinion. In Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112,
119-120 (3d Cir. 2000), the United States Court of Appeals for the Third Circuit

reference to a respective Listing for this impairment, this argument has been
waived and is not proper for consideration by this Court. See Harris v. Dow
Chemical Co., 2014 WL 4801275 (3d Cir. Sept. 29, 2014) (holding that an
argument is waived and abandoned if briefly mentioned in the summary of the
argument, but not otherwise briefed); Laborers’ Int’l Union of N. America, AFLCIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is
waived unless a party raises it . . . and . . . ‘a passing reference to an issue . . . will
not suffice to bring that issue before this court.’”) (citing Frey v. Grubine’s RV,
2010 WL 4718750, at *8 (M.D. Pa. Nov. 15, 2010)); Karchnak v. Swatara Twp.,
2009 WL 2139280, at *21 (M.D. Pa. July 10, 2009) (“A party waives an issues if
it fails to brief it in its opening brief; the same is true for a party who merely
makes a passing reference to an issue without elaboration.”) (citing Gorum v.
Sessions, 561 F.3d 179, 185 n.4 (3d Cir. 2009)). As such, because Plaintiff has
failed to brief this assertion by providing an Impairment Listing, but rather only
made a passing reference in his brief, Plaintiff has waived his contention that the
ALJ erred in finding that his Depression did not meet the respective Listing
requirements.
41

held that an administrate law judge is required to set forth the reasons for his/her
decision, and that a bare conclusory statement that an impairment did not match,
or is not equivalent to, a listed impairment is insufficient. However, the Third
Circuit Court of Appeals further explained the holding in Burnett:
Burnett does not require the ALJ to use particular language or
adhere to a particular format in conducting his analysis.
Rather, the function of Burnett is to ensure that there is
sufficient development of the record and explanation of finding
to permit meaningful review. In this case, the ALJ’s decision,
read as a whole, illustrates that the ALJ considered the
appropriate factors in reaching the conclusion that [the
plaintiff] did not meet the requirements for any listing,
including Listing 3.02(A). The ALJ’s opinion discusses the
evidence pertaining to chronic obstructive and restrictive lung
disease, specifically referencing ‘pulmonary function studies . .
. consistent with moderately severe obstructive and restrictive
defects,’ but pointing to the lack of pulmonary complications,
and a finding that claimant’s lungs were clear. Also, the ALJ
noted that claimant’s medical history showed no frequent
hospitalization or emergency treatments. Tr. At 13-14. This
discussion satisfies Burnett’s requirement that there be
sufficient explanation to provide meaningful review of the step
three determination.
Jones v. Barnhart, 364 F.3d, 501, 505; See Rivera v. Commissioner of Social
Security, 164 F.App’x 260, 263 (3d. Cir. 2006) (holding that an ALJ’s failure to
explain a determination that a plaintiff does not meet a Listing is harmless error if
“. . . in reviewing the voluminous medical evidence available to us, we found
abundant evidence supporting the position taken by the ALJ, and comparatively
42

little contradictory evidence” and thus does not warrant remand.).
In the case at hand, the ALJ sufficiently developed the record, and, in the
RFC discussion section, explained her finding that Plaintiff’s back impairments
did not meet Listing 1.04(C) in a manner sufficient enough to permit meaningful
review of this conclusion. (Tr. 44-48). It is concluded that, in accordance with
Burnett, “the ALJ’s decision, read as a whole, illustrates that the ALJ considered
the appropriate factors in reaching the conclusion that [the plaintiff] did not meet
the requirements for any listing, including Listing [1.04(C)].” Therefore, we will
not disturb the ALJ’s decision at step three based on this assertion.
Moreover, even if it were determined that the ALJ erred in not explaining at
step three why Plaintiff’s back impairments did not meet Listing 1.04(C), it
remains that such an error was harmless due to the abundant evidence supporting
her position that Plaintiff did not meet all of the criteria in Listing 1.04(C) as
discussed by the ALJ throughout her decision. (Tr. 44-48). A claimant bears the
burden of showing that her impairment meets or equals a listed impairment, and
that she is thus presumptively disabled. Burnett, 220 F.3d at 120 n.2 (citing
Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992)). A plaintiff must meet
all of the specified requirements of a Listing in order to be considered
presumptively disabled. Sullivan v. Zebley, 493 U.S. 521, 532 (1990); 20 C.F.R.
43

§ 404.1525(a); 20 C.F.R. pt. 404, subpt. P, app. 1. “For a claimant to show his
impairment matches a listing, it must meet all of the specified medical criteria. An
impairment that manifests only some of those criteria, no matter how severely,
does not qualify.” Jones, 364 F.3d at 504 (citation omitted) (emphasis in original).
A claimant meets Listing 1.04(C) if he or she can prove the following:
Disorders of the spine (e.g., herniated nucleus pulpous, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture), resulting in
compromise of a nerve root (including the cauda equina) or the
spinal cord. With:
.......................................................................................................
C. Lumbar spinal stenosis resulting in
pseudoclaudication, established by findings on appropriate
medically acceptable imaging, manifested by chronic
nonradicular pain and weakness, and resulting in inability to
ambulate effectively, as defined in 1.00B2b.
20 C.F.R. pt 404, subpt. P, app. 1, § 1.04(C). “Neurogenic claudication is
synonymous with pseudoclaudication.” Holland v. Comm’r Soc. Sec. Admin.,
2014 U.S. Dist. LEXIS 76164, at *2, n.2 (D. Md. June 3, 2014) (citing Thomas N.
Byrne et al., Diseases of the Spine and Spinal Cord 148 (2000)); see also Naegele
v. Barnhart, 433 F. Supp. 2d 319, 323 (W.D.N.Y. 2006) (“Pseudoclaudication, or
neurogenic claudication, means intermittent limping caused by lumbar spinal
stenosis”) (citing Stedman’s Medical Dictionary 360 (27th ed. 2000)).
In the case at hand, the ALJ repeatedly cites the medical records that
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support her finding that Plaintiff did not meet his burden of proving his back
impairments met all the criteria for Listing 1.04(C). The ALJ discusses that
Plaintiff’s physical examinations were largely unremarkable because he had intact
5/5 muscle strength in all extremities, normal gait, good grip strength, and intact
sensation. (Tr. 44-48). Thus, the criteria of Listing 1.04(C) that Plaintiff’s
condition result in pseudoclaudication and an inability to ambulate effectively was
not met.
Furthermore, as noted by the ALJ, diagnostic studies do not mention a
definite compromise of a nerve root or the spinal cord because two separate MRIs
of Plaintiff’s spine showed that he did not have the requisite neural foraminal
narrowing or spinal stenosis. (Tr. 47). Despite Plaintiff’s allegations of disabling
pain and radiculopathy, “[a] conceivable possibility of intermittent nerve root
impingement does not establish a compromise of a nerve root.” Ragsdale v.
Astrue, 2012 WL 5289635, at *7 (W.D. Mo. Oct. 23, 2012) (internal quotations
omitted); accord Bogart v. Colvin, 2013 WL 5937041, at *2-3 (W.D. Ark. Nov. 6,
2013). As such, the potential for nerve root impingement for Listing 1.04(C) has
also not been met.
Accordingly, substantial evidence supports the ALJ’s reasoning that
Plaintiff was able to ambulate effectively with a normal gait and did not have a
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comprise of nerve roots or his spinal cord. Thus, Plaintiff did not meet his burden
of proving his back impairments met all the criteria for Listing 1.04(C). As such,
the ALJ’s decision at step three that Plaintiff’s back impairments did not meet
Listing 1.04(C) will not be disturbed on appeal.
2.

Residual Functional Capacity Determination and the Vocational
Expert’s Testimony

Plaintiff asserts that the ALJ erred in the RFC determination and the
resulting hypotheticals posed to the VE, which Plaintiff contends resulted in a
faulty determination that Plaintiff could perform past relevant work. (Doc. 9, pp.
8-11). In support of these arguments, Plaintiff asserts that the ALJ: (1) failed to
consider his attendance of special education classes, which he argued would limit
him to unskilled work; (2) failed to consider his depression that would limit his
ability to concentrate and remember simple tasks; (3) did not take into account his
description of pain in his legs, that allegedly left him more limited with sitting,
standing, and walking than provided for in the RFC; (4) improperly disregarded
the portion of Dr. Dhorijia’s opinion that Plaintiff could lift five (5) to six (6)
pounds occasionally, which would mean he could not perform sedentary work,
which requires occasional lifting and/ or carrying of up to ten (10) pounds; and (5)
improperly relied on the VE’s testimony as it was “inconsistent with the

46

Dictionary of Occupational Titles (DOT).” (Id. at 8-11).
The responsibility for deciding a claimant’s RFC rests with the
administrative law judge. See 20 C.F.R. § 404.1546. The Court recognizes that
the residual functional capacity assessment must be based on a consideration of all
the evidence in the record, including the testimony of the claimant regarding her
activities of daily living, medical records, lay evidence and evidence of pain. See
Burnett v. Commissioner of Social Sec. Admin., 220 F.3d 112, 121-122 (3d Cir
2000). The Commissioner's regulations define medical opinions as “statements
from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of [a claimant’s] impairment(s), including
[a claimant’s] symptoms, diagnosis and prognosis, what [a claimant] can still do
despite impairments(s), and [a claimant's] physical or mental restrictions.” See 20
C.F.R. §404.1527(a)(2). Regardless of its source, the ALJ is required to evaluate
every medical opinion received. See 20 C.F.R. §404.1527(c).
In the case at hand, ALJ concluded that Plaintiff had the RFC to perform
sedentary work with a range of limitations, including: a sit/stand option at will;
only occasional overhead bilateral reaching; occasional crouching, squatting,
kneeling, stooping, bending, and climbing of ramps and stairs; no climbing of
ladders, ropes, or scaffolds; and no concentrated exposure to the cold. (Tr. 46).
47

Upon review of the record, it is determined that the ALJ’s RFC determination is
supported by substantial evidence because, in determining the RFC, the ALJ relied
not only the medical opinions and medical evidence, but also on Plaintiff’s
testimony as to what he could do. (Tr. 44-48). In formulating the RFC, the ALJ:
(1) discussed the medical evidence that noted Plaintiff was neurologically stable,
had only intermittent right leg pain, had low back pain that was listed as stable on
medications, consistently had 5/5 muscle strength in his bilateral upper and lower
extremities, consistently had good grip strength, had a normal gait, and was doing
“well” post surgery; (2) relied on Plaintiff’s own testimony that he was able to
drive, take care of his personal hygiene, do the laundry, pay bills, grocery shop,
spend time with others, watch television, use the computer, reach, talk, use his
hands, get along with others, and lift about ten (10) pounds; and (3) relied on the
medical opinion of Dr. Dorhijia. (Tr. 44-48, 101-104, 283-290, 885-886). While
Plaintiff argues Dr. Dhorijia limited Plaintiff to lifting only up to six (6) pounds, it
was noted in this limitations in this form were “per patient,” meaning the
limitations were based on Plaintiff’s self-reported limitations. (Tr. 885-886).
Furthermore, Plaintiff testified at his hearing that he was able to lift up to ten (10)
pounds. (Tr. 101-104). Regarding Plaintiff’s assertions that he should have been
limited to unskilled work due to the fact that he attended special education classes
48

and had depression, the medical records do not support this contention because it
does not state anywhere in the medical records that Plaintiff had difficulty
concentrating or remembering things due to these conditions. Regarding
Plaintiff’s argument that the ALJ did not take into account his description of pain
in his legs, that allegedly left him more limited with sitting, standing, and walking
than provided for in the RFC, the ALJ most certainly accounted for these
limitations by providing a sit/stand option at will in the RFC. (Tr. 46, 107-108.
As such, the ALJ’s RFC determination is supported by substantial evidence.
Based on this properly determined RFC, the ALJ posed hypotheticals to the
VE that included all the RFC limitations. (Tr. 107-108). A hypothetical question
posed by the administrative law judge to the vocational expert must include all of
a claimant’s functional limitations which are supported by the record. Ramirez v.
Barnhart, 372 F.3d 546, 553-55 (3d Cir. 2004); Chrupcala v. Heckler, 829 F.2d
1269, 1276 (3d Cir. 1987); Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.
1984). A hypothetical that omits limitations is defective, and the answer thereto
cannot constitute substantial evidence to support denial of a claim. Id. However,
“[w]e do not require an ALJ to submit to the vocational expert every impairment
alleged by a claimant.” Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005)
(emphasis in original). When an ALJ’s hypothetical question to a vocational
49

expert sets forth the Plaintiff’s limitations, as supported by the record, the
vocational expert’s response may be accepted as substantial evidence in support of
the ALJ’s determination that the Plaintiff is not disabled. See Chrupcala,
829 F.2d at 1276.
Furthermore, the administrative law judge has a duty to develop the record
and flesh out any inconsistencies. Social Security Regulation 00-4p states:
Occupational evidence provided by a [VE] generally should be
consistent with the occupational information supplied by the
DOT. When there is an apparent unresolved conflict between
[VE] evidence and the DOT, the adjudicator must elicit a
reasonable explanation for the conflict before relying on the
[VE] evidence to support a determination or decision about
whether the claimant is disabled. At the hearings level, as part
of the adjudicator’s duty to fully develop the record, the
adjudicator will inquire, on the record, as to whether or not
there is such consistency.
SSR 00-4p, *2; SSR LEXIS 8, *4. Regarding an inconsistency between the DOT
and the sit/stand option at will as presented by the ALJ in the RFC, Judge Richard
P. Conaboy of this Court stated:
In general terms, the VE’s observation that these positions
allow change of position at will, is appropriately viewed as a
vocational expert’s application of her expertise, her
“knowledge, experience, and observations” in the words of the
ALJ. [] Her reduction in the number of positions based on the
conflict is similarly appropriate.
Viewed in this context, the ALJ does not run afoul of SSR 0050

4p, 2000 SSR LEXIS 8 regarding [these] positions because he
was not presented with an “apparent unresolved conflict.”
Rather, a fair reading of the colloquy here is that the ALJ was
presented with a conflict (made apparent by the VE’s
testimony) and the VE resolved the conflict to the ALJ’s
satisfaction in the course of her testimony. In this context, the
ALJ would be under no obligation to elicit further testimony
from the VE on the sit/stand issue for the [positions] for which
the VE testified a reduction in numbers would be appropriate
based on this limitation. . . . Importantly, the ALJ
acknowledges in his decision that the VE’s testimony is
inconsistent with the DOT. . .
Minichino v. Colvin, 955 F. Supp. 2d 366, 381 (M.D. Pa. 2013) (Conaboy, J.).
In the case at hand, the VE specifically stated, in response to the ALJ’s
hypothetical, the following: “. . . as it is customarily performed in the average
workplace, a dispatcher does have a sit-stand option and it’s sedentary; does not
require overhead reaching, and it doesn’t require more than occasional postural
and does not typically expose anyone to the cold.” (Tr. 108). The VE also stated
that the RFC “was not inconsistent at all with the DOT, with the exception, of
course, of the sit-stand option . . .” (Tr. 111). The VE’s response indicates that
she implicitly acknowledged that the relevant DOT sections were silent regarding
a sit/stand option. (Tr. 108-111). Additionally, the ALJ was aware of and
acknowledged the conflict because he stated that the VE’s testimony was
consistent with the DOT with the exception of the sit/stand option, but that there

51

was a reasonable explanation for this discrepancy. (Tr. 50).
In accordance with the rationale above and the facts of this case, the conflict
was implicitly acknowledged by the VE in his response to the hypotheticals, and
was acknowledged and understood by the ALJ in arriving at his RFC
determination. Therefore, it is determined that substantial evidence supports the
ALJ’s reliance on the VE’s testimony because it included all the limitations
discussed in the RFC determination and because there was no “apparent
unresolved conflict” between the VE’s testimony and the DOT in violation of SSR
00-4p.
As such, the ALJ’s RFC determination and the VE’s responses to the
hypothetical are supported by substantial evidence, and these determinations will
not be disturbed on appeal based on Plaintiff’s assertions.
CONCLUSION
Based upon a thorough review of the evidence of record, it is determined
that the Commissioner’s decision is supported by substantial evidence. Therefore,
pursuant to 42 U.S.C. § 405(g), the appeal will be denied, the decision of the
Commissioner will be affirmed, judgment will be entered in favor of Defendant
and against Plaintiff, and the Clerk of Court will be directed to close this matter.
A separate Order will be issued.

Date: October 13, 2017
/s/ William J. Nealon
United States District Judge
52