Velikas v. Colvin

Filing 10

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable William J. Nealon on 10/13/2017. (rm)

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

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No. 3:16-CV-0233
(Judge Nealon)

MEMORANDUM
On February 10, 2016, Plaintiff, Diane Velikas, 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 her application for Disability
Insurance Benefits, (“DIB”), under Title II of the Social Security Act, 42 U.S.C. §
1461, et seq. (Doc. 1). The parties have fully briefed the appeal. For the reasons

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.

set forth below, the decision of the Commissioner denying Plaintiff’s application
for DIB will be vacated.
BACKGROUND
Plaintiff protectively filed3 her application for DIB on December 10, 2010,
alleging disability beginning on October 24, 2009, due to a combination of
“complications from neck surgery, neck pain, and herniated discs.” (Tr. 246,
249).4 After this claim was initially denied by the Bureau of Disability
Determination, (“BDD”),5 a hearing was requested by Plaintiff, which was held on
April 2, 2012, before administrative law judge Michelle Wolfe, (“ALJ”), at which
Plaintiff and impartial vocational expert, Mr. Keating, testified. (Tr. 80). On June
19, 2012, the ALJ granted Plaintiff’s disability application for the period of March
12, 2010 through December 22, 2011. (Tr. 140). On October 17, 2013, the matter
was remanded by the Appeals Council with the instruction for the ALJ to consider

3. Protective filing is a term for the first time an individual contacts the Social

Security Administration to file a claim for benefits. A protective filing date allows
an individual to have an earlier application date than the date the application is
actually signed.
4. References to “(Tr. )” are to pages of the administrative record filed by

Defendant as part of the Answer on April 13, 2016. (Doc. 5).
5. The Bureau of Disability Determination is an agency of the state which initially

evaluates applications for disability insurance benefits on behalf of the Social
Security Administration.
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additional evidence submitted for the period after December 22, 2011. (Tr. 150152). On April 9, 2014, a remand hearing was before the ALJ, at which Plaintiff
and impartial vocational expert Michelle Giorgio, (“VE”), testified. (Tr. 58). On
April 25, 2014, the ALJ issued a second decision denying Plaintiff’s application
for DIB for the time period of December 22, 2011 through the date of the ALJ’s
decision. (Tr. 19-34). On December 17, 2015, the Appeals Council denied
Plaintiff’s appeal, thus making the decision of the ALJ final. (Tr. 2-7).
Plaintiff filed the instant complaint on February 10, 2016. (Doc. 1). On
April 13, 2016, Defendant filed an answer and transcript from the SSA
proceedings. (Docs. 4 and 5). Plaintiff filed a brief in support of her complaint on
June 14, 2016. (Doc. 8). Defendant filed a brief in opposition on July 14, 2016.
(Doc. 9). Plaintiff did not file a reply brief.
Plaintiff was born in the United States on September 27, 1959, and at all
times relevant to this matter was considered an “individual closely approaching
advanced age.”6 (Tr. 246). Plaintiff graduated from high school in 1977, and can
communicate in English. (Tr. 248, 250). Her employment records indicate that

6. “Person closely approaching advanced age. If you are closely approaching

advanced age (age 50-54), we will consider that your age along with a severe
impairment(s) and limited work experience may seriously affect your ability to
adjust to other work.” 20 C.F.R. § 404.1563(d).
3

she previously worked as a caterer, a customer service representative, and a
realtor. (Tr. 250).
In a document entitled “Function Report - Adult” filed with the SSA,
Plaintiff indicated that she lived in a house with her husband. (Tr. 282). From the
time she woke up to the time she went to bed, Plaintiff took her medications,
tended to the dishwasher, sat in a recliner with a heating pad, and performed
“menial” tasks such as taking the dog outside and checking the mail. (Tr. 282).
She had no problems with personal care tasks such as dressing and bathing,
prepared meals such as sandwiches daily for thirty (30) minutes maximum,
performed light dusting for thirty (30) minutes before needing to rest, and shopped
in stores for groceries for “twice as long as [] normal . . . using the cart for
support.” (Tr. 283-285). She was able to walk for up to fifteen (15) minutes
before needing to rest for thirty (30) minutes before resuming walking. (Tr. 287).
When asked to check items which her “illnesses, injuries, or conditions affect,”
Plaintiff did not check talking, hearing, seeing, memory, understanding, or
following instructions. (Tr. 287).
Regarding concentration and memory, Plaintiff did not need special
reminders to take care of her personal needs, to go places, or to take her medicine.
(Tr. 284, 286). She could pay bills, use a checkbook, count change, and handle a
4

savings account, but noted that “[b]ills are paid late once or twice a month [due to]
pain and depression [that] prevent [her] from being on time.” (Tr. 285-286). She
stated that “pain and medications” prevented her from paying attention, she could
follow written and spoken instructions, she was not able to finish what she started,
and she had worsened depression, anxiety, and blood pressure with changes in
stress and routine. (Tr. 287-288).
Socially, Plaintiff rarely left her home because she would “get too depressed
because of [her] restrictions.” (Tr. 285). When she did leave the house, she noted
she would have to “deprive [her]self of pain medication to go safely to the drug
store or [do] menial errands.” (Tr. 285). She noted she did not spend time with
others because of depression. (Tr. 286). Her hobbies included reading for fifteen
(15) minutes at a time and watching television, and she indicated that she could no
longer engage in former hobbies of gardening or home decorating due to her
illnesses, injuries, or conditions. (Tr. 286).
At her remand oral hearing on April 9, 2014, Plaintiff testified that, since
her last hearing, she was diagnosed with Rheumatoid Arthritis, Polyarthritis, and
Osteoid Osteoma. (Tr. 67). She stated that the arthritis caused severe neck pain
and weakness and numbness in her hands. (Tr. 72). She indicated that her hand
numbness would occur “right away almost” when using a computer keyboard.
5

(Tr. 73). She was prescribed steroids for these condition, and indicated the
steroids caused a tumor in her leg that caused leg cramps and an inability to walk
quickly, made her have to stop walking after fifty (50) feet to rest or lean on
something before resuming walking again, and caused a feeling like her leg was
falling asleep while sitting. (Tr. 67-68). Plaintiff also indicated that, since her last
hearing, she had been prescribed and was using a Fentanyl patch for pain that
made her “extremely tired,” effected her motor skills, and caused difficulty in
concentrating. (Tr. 64). She stated that she still needed to have more surgery in
her neck. (Tr. 72). She testified that, regarding household chores, she was only
able to do light chores, and that an activity such as emptying the dishwasher could
“sometimes trigger an onslaught of muscle spasms” that caused her to have to rest
in a recliner with a heating pad and take a muscle relaxer, something she testified
she had to do about ten (10) times a day for a half hour to an hour and a half. (Tr.
65, 67, 70). She indicated that she could no longer vacuum, scrub the windows, or
crochet due to her impairments. (Tr. 71, 73). She testified that she performed
very minimal work on the computer and did not read as much as she would like to
because she could not concentrate, indicating that she would stop reading when
she found herself concentrating more on ignoring the pain than what she was
reading, which usually was about fifteen (15) minutes into reading. (Tr. 65-66,
6

69). She stated that her husband accompanied her to the grocery store. (Tr. 66).
She also stated that her mental health impairments caused difficulty with focusing,
which made her not go to church like she wanted to. (Tr. 74).
MEDICAL RECORDS
A.

Medical Evidence
1.

Wyoming Valley Medical Center

On December 22, 2011, Plaintiff had an appointment with Alan R. Vannan,
PA-C, (“PA Vannan”), at Wyoming Valley Medical Center for a routine postoperative visit. (Tr. 474). It was noted that Plaintiff was doing extremely well,
was happy with the outcome of the surgery, had sixty (60) to seventy (70) percent
improvement in her pre-operative symptoms, had no difficulty with swallowing,
breathing, or speaking, and had some right upper extremity pain at times, but with
much improvement. (Tr. 474). Her physical examination revealed: clear speech;
swallowing without difficulty; a non-tender back without spasms; 5/5 bilateral
upper and lower extremity strength; sensation intact to soft touch; a normal gait;
and independent ambulation. (Tr. 474). The medications she was taking at the
time of this appointment were listed as follows: Ativan; Methadone; Diazepam;
Gabapentin; Docusate Sodium; Magnesium Aspartate; Mucinex; Celexa; and
Metoprolol. (Tr. 474). Plaintiff was instructed by PA Vannan that she: could lift
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up to ten (10) pounds and increase by ten (10) pounds a month as tolerated; should
not bend, twist, run, jump, or do sit-ups or exercise; and could walk and use stairs
as tolerated. (Tr. 475). She was scheduled for a follow-up in three (3) months.
(Tr. 475).
On July 18, 2012, Plaintiff had a routine eight (8) month post-operative visit
with Kara L. Sharp, PA-C, (“PA Sharp”). (Tr. 846). Plaintiff reported that: her
right upper extremity pain had resolved, but that her posterior cervicalgia
remained the same; her neck pain was intermittent, exacerbated with activity, and
improved with ice and rest; the paresthesias of her bilateral hands and fingers
remained the same as “pre-op:” she had diffuse muscular and joint pain in her
trapezius area, shoulders, wrists, knees, and ankles; she had worsening chronic
mid-back pain for a month that was becoming progressively worse; she had not
seen a Rheumatologist due to financial concerns and stopped all medications due
to cost; and she denied radicular pain, paresthesias, or weakness of her bilateral
extremities. (Tr. 846). A physical examination revealed: tenderness to palpation
of the cervical spine and paraspinal musculature; clear speech; swallowing without
difficulty; 5/5 strength throughout the bilateral upper and lower extremities; a
normal gait; and independent mobility. (Tr. 846). Plaintiff was assessed as having
an acute exacerbation of chronic mid-back pain and diffuse muscular and joint
8

pain “highly suspicious of Fibromyalgia.” (Tr. 847). Plaintiff was instructed by
PA Sharp: to continue increasing activity and lift as tolerated; to not sit bolt
upright for greater than forty (40) minutes for four (4) times a day; to not to run,
jump, do sit-ups, or perform excessive exercise; and to continue to walk and use
stairs as tolerated. (Tr. 847). Plaintiff was scheduled for a follow-up with Dr.
Schlifka in three (3) months. (Tr. 847).
2.

InterMountain Medical Group

On December 27, 2011, February 16, 2012, February 22, 2012, March 8,
2012, July 25, 2012, and August 8, 2012, Plaintiff had an appointments with John
Menio, M.D. due for a follow-up of her “active problems,” which included
Chronic Pain Syndrome, Depressive Disorder, cervical pain, and pre-diabetes.
(Tr. 712, 716, 720, 727, 889, 894). Plaintiff’s self-reported symptoms included
edema, muscle and bone aches, insomnia, clavicle symptoms, muscle spasms, back
pain, knee pain, bilateral foot pain, and diffuse pain localized to her joints. (Tr.
714, 720, 727, 729, 889, 894). Her physical examination revealed: a well
nourished and developed appearance with no acute distress; tenderness with
palpation and movement in her bilateral shoulders and knees and cervical spine in
the trapezius area; normal motor strength, deep tendon reflexes, and sensation;
paracervical spasm in her back; an impaired and anxious thought process;
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decreased range of motion in the cervical spine; and no tenderness on palpation of
the legs. (Tr. 714, 719, 723, 891, 898). Dr. Menio diagnosed Plaintiff with
Hypertension, Hyperlipidemia, Chronic Pain Sydrome, Generalized Anxiety
Disorder, Edema, and Polyarthritis of multiple sites, and referred Plaintiff to
Rheumatology. (Tr. 714-715, 719, 723, 892, 898).
On May 9, 2012, Plaintiff had an appointment with Mary Jo Bishop, CRNP,
of InterMountain Medical Group for evaluation and treatment of polyarthralgias.
(Tr. 706). Plaintiff’s self-reported symptoms included: pain and swelling in her
lower legs; a constant burning in her shoulders; malaise; headaches twice a month;
neck pain and stiffness; stiffness and pain in her joints, wrists, hands, and ankles;
muscle aches and spasms in her shoulders; anxiety; sleep disturbances; depression;
and dry skin. (Tr. 706). A physical examination revealed Plaintiff: was well
nourished and developed and in no acute distress; had edema in her lower legs;
had normal range of motion in all joints; had swelling and tenderness on palpation
in her bilateral fingers; had tenderness on palpation in her bilateral wrists and
shoulders; had decreased grip strength in her bilateral hands; had a normal
appearance and no tenderness or spasms of all areas of her spine; had tenderness
on palpation of her bilateral hips and knees; had a normal gait, stance, balance,
reflexes, and sensation; had a pleasant mood; and had dry skin. (Tr. 708-709).
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Plaintiff was assessed as having arthralgias in multiple sites and myalgia and
myositis. (Tr. 709). It was noted that Dr. Blidner reviewed the data and examined
Plaintiff and assisted in the formulation of the plan for Plaintiff. Plaintiff was
given Prednisone for a week-long trial period, was scheduled for a follow-up in
two (2) weeks, and was to undergo x-rays of her bilateral hands and wrists due to
suspicion of inflammatory arthritic disease. (Tr. 710).
3.

Arthritis Center

On July 23, 2012, and August 20, 2012, Plaintiff had appointments at the
Arthritis Center for diffuse pain in her bilateral shoulders, knees, and feet. (Tr.
904-905). A physical examination revealed joint tenderness and moderate pain on
range of the shoulders with mild limitation and no swelling in the knees or feet.
(Tr. 904-905). Plaintiff was assessed as having Diffuse Polyarthritis, Chronic Pain
Syndrome, and abnormality of the right femur, and was given a prescription for
Prednisone. (Tr. 904-905). Imaging of her right femur was ordered.
B.

Medical Testing
1.

X-rays of Bilateral Hands and Wrists

On May 9, 2012, Plaintiff underwent x-rays of her bilateral hands and
wrists. (Tr. 786). The x-rays revealed changes in the right hand that are
degenerative in nature with possible erosion at the second “MCP” and mild
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degenerative changes at the carpal metacarpal joint in the left wrist and hand. (Tr.
786).
2.

X-rays of Cervical Spine

On July 18, 2012, Plaintiff underwent x-rays of her cervical spine due to left
arm pain and spasms “radiating down,” mid-back pain, and status post anterior
cervical diskectomy and fusion. (Tr. 860). The x-rays revealed stable postoperative and degenerative changes at the C4-C5 level with minimal endplate
osteophyte at the C3-C4 level. (Tr. 860).
3.

X-rays of Thoracolumbar Spine

On July 30, 2012, Plaintiff underwent x-rays of her thoracolumbar spine for
back pain. (Tr. 861). The x-rays revealed moderate degenerative disease at L1-L2
and L5-S1 with mild degenerative disc disease at other levels. (Tr. 861).
4.

Whole Body Bone Scintigraphy

On July 30, 2012, Plaintiff underwent a whole body bone scintigraphy for
generalized pain and polyarthritis. (Tr. 862). This scan revealed a nonspecific,
subtle focus of increased tracer uptake in the mid-right femur. (Tr. 862).
5.

X-rays of Right Femur

On August 13, 2012, Plaintiff underwent x-rays of her right femur for pain
in her joint. (Tr. 863). The x-rays revealed focal cortical thickening/ periosteal
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bone formation of the femoral middiaphysis laterally with central lucency, which
indicated possible diagnoses of stress changes, sequela of bisphosphonate use,
chronic osteomyelitis, or osteoid osteoma, with the latter being less likely “given
Plaintiff’s age.” (Tr. 863).
6.

CT Scan of the Right Femur

On August 21, 2012, Plaintiff underwent a CT scan of her right femur for
history of osteomyelitis. (Tr. 864). The impression was that Plaintiff had dense
periosteal reaction in the lateral cortex of the mid femoral shaft consistent with a
diagnosis of osteoid osteoma. (Tr. 864).
C.

Medical Opinions
1.

John Menio, M.D.

On January 15, 2012, Dr. John Menio completed a “Physical Impairment
Questionnaire” for Plaintiff. (Tr. 467-468). Dr. Menio noted Plaintiff’s diagnoses
included Chronic Pain Syndrome, Peripheral Edema, and Cervical and Lumbar
Disc Disease. (Tr. 467). He noted that Plaintiff ‘s symptoms included chronic,
constant pain and leg swelling, and that the medications she took for her diagnoses
caused fatigue, drowsiness, and dizziness. (Tr. 467). He opined that Plaintiff’s
impairments were severe enough to constantly interfere with the attention and
concentration require to perform simple, work-related tasks. (Tr. 467). He further
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opined that Plaintiff: (1) would need to recline or lie down in excess of the typical
fifteen (15) minute breaks in both the morning and afternoon and a thirty (30) to
sixty (60) minute lunch during an eight (8) hour workday ; (2) could walk one (1)
city block without rest or significant pain; (3) could sit for thirty (30) minutes at a
time and up to three (3) hours in an eight (8) hour workday; (4) could stand and/ or
walk for twenty (20) minutes at a time and up to one (1) hour in an eight (8) hour
workday; (5) would need to be able to shift positions at will from sitting, standing,
or walking; (6) would need unscheduled breaks hourly for twenty (20) minutes at
a time during an eight (8) hour workday; (7) could occasionally lift less no more
than (10) pounds; (8) could never lift anything over ten (10) pounds; (9) was
limited in bilateral use of her hands, fingers, and arms to twenty percent (20%) of
the time of an eight (8) hour workday; and (10) was not capable of working an
eight (8) hour day, five (5) days a week on a sustained basis. (Tr. 467-468).
2.

Anthony Galdieri, Ph.D.

On January 26, 2011, Dr. Galdieri completed a “Psychiatric Review
Technique” for Plaintiff’s mental health impairments based on a review of her
record. (Tr. 110-111). He opined that, for the “B” criteria of Impairment Listing
12.06, Anxiety Disorders, Plaintiff had: (1) mild restriction of activities of daily
living; (2) mild difficulties in maintaining social functioning; (3) mild difficulties
14

in maintaining concentration, persistence, or pace; and (4) no repeated episodes of
decompensation. (Tr. 111).
3.

Paula K. Vanscoy, SDM

On February 10, 2011, Paula Vanscoy, Single Decision Maker, (“SDM”),7
opined 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 sit, stand,
and/ or walk for six (6) hours in an eight (8) hour workday; (4) could engage in
limited pushing and pulling of the upper extremities within the aforementioned
weight restrictions; and (5) was limited in reaching overhead on the left. (Tr. 112113).
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
7. 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.
15

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
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
16

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
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
17

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
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
18

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
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. ”
19

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, 2014. (Tr. 25). At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful work activity from the period at issue on remand of December
22, 2011. (Tr. 25).
At step two, the ALJ determined that Plaintiff suffered from the severe8
combination of impairments of the following: “obesity, chronic pain syndrome;
cervical radiculopathy, status post anterior cervical discectomy and fusion
(ACDF); and as of 07/11, cervical sponylosis with nerve root lesion, status post
ACDF; as of 06/ 02/10, left shoulder arthritis; and as of 07/12, polyarthritis (20
C.F.R. 404.1520(c) and 416.920 (c)).” (Tr. 25).
8. 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
ability to work. 20 C.F.R. § 416.921; Social Security Rulings 85-28, 96-3p and
96-4p.
20

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. 26-27).
At step four, the ALJ determined that Plaintiff had the RFC to perform
sedentary work with limitations. (Tr. 27-33). Specifically, the ALJ stated the
following:
After careful consideration of the entire record, the undersigned
finds that [Plaintiff] has the [RFC] to perform a range of
sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a). She can occasionally balance, stoop, crouch,
kneel, and climb, but never on ladders, ropes, or scaffolds, and
never crawling. She must avoid pushing and pulling with the
upper extremities. She can occasionally reach overhead. She
can occasionally push and pull with the lower extremities. She
must avoid concentrated exposure to vibrations and hazards,
including moving machinery and unprotected heights.
(Tr. 27-28). The ALJ concluded that Plaintiff was capable of performing past
relevant work as an order clerk and travel agent because this work did not require
performance of work-related activities precluded by her RFC. (Tr. 33-34).
Thus, the ALJ concluded that Plaintiff was not under a disability as defined
in the Social Security Act at any time between December 22, 2011, the period at

21

issue on remand, and the date of the ALJ’s decision. (Tr. 34).
DISCUSSION
On appeal, Plaintiff asserts that the ALJ: (1) improperly substituted her own
lay medical judgments for those of the treating physician; and (2) improperly
rejected Plaintiff’s hearing testimony in evaluating her credibility. (Doc. 8, pp.
11-16). Defendant disputes these contentions with on the ALJ’s first opinion
rendered in June 2012, which is not the opinion at issue. (Doc. 9, pp. 13-24).
1.

RFC Determination

Plaintiff asserts that the ALJ improperly substituted her own lay opinion in
place of the opinion rendered by her treating physician, Dr. Menio, which resulted
in an RFC determination not supported by substantial evidence. (Doc. 8, pp. 1115).
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
22

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.” 20
C.F.R. §404.1527(a)(2). Regardless of its source, the ALJ is required to evaluate
every medical opinion received. 20 C.F.R. §404.1527(c).
In arriving at the RFC, an administrative law judge should be mindful that
the preference for the treating physician’s opinion has been recognized by the
Third Circuit Court of Appeals and by all of the federal circuits. See, e.g.,
Morales v. Apfel, 225 F.3d 310, 316-18 (3d Cir. 2000). This is especially true
when the treating physician’s opinion “reflects expert judgment based on a
continuing observation of the patient’s condition over a prolonged time.”
Morales, 225 F.3d at 317; Plummer, 186 F.3d at 429; see also 20 CFR §
416.927(d)(2)(i)(1999) (“Generally, the longer a treating source has treated you
and the more times you have been seen by a treating source, the more weight we
will give to the source’s medical opinion.”).
However, when the treating physician’s opinion conflicts with a nontreating, non-examining physician’s opinion, the ALJ may choose whom to credit
in his or her analysis, but “cannot reject evidence for no reason or for the wrong
23

reason.” Morales, 225 F.3d 316-18. It is within the ALJ’s authority to determine
which medical opinions he rejects and accepts, and the weight to be given to each
opinion. 20 C.F.R. § 416.927. The ALJ is permitted to give great weight to a
medical expert’s opinion if the assessment is well-supported by the medical
evidence of record.
Pursuant to Social Security Regulation 96-6p, an administrative law judge
may only assign less weight to a treating source opinion based on a non-treating,
non-examining medical opinion in “appropriate circumstances.” SSR 96-6p, 1996
SSR LEXIS 3. This regulation does not define “appropriate circumstances,” but
gives an example that “appropriate circumstances” exist when a non-treating, nonexamining source had a chance to review “a complete case record . . . which
provides more detailed and comprehensive information than what was available to
the individual’s treating source.” Id. (emphasis added).
Regardless of what the weight an administrative law judge affords to
medical opinions, the administrative law judge has the duty to adequately explain
the evidence that he or she rejects or affords lesser weight. Diaz v. Comm’r of
Soc. Sec., 577 F.3d 500, 505-06 (3d Cir. 2009). “The ALJ’s explanation must be
sufficient enough to permit the court to conduct a meaningful review.” Burnett v.
Comm’r of Soc. Sec., 220 F.3d 112, 119-20 (3d Cir. 2000).
24

Additionally, in choosing to reject the evaluation of a treating physician, an
ALJ may not make speculative inferences from medical reports and may reject the
treating physician’s opinions outright only on the basis of contradictory medical
evidence. Morales, 225 F.3d at 316-18. An ALJ may not reject a written medical
opinion of a treating physician based on his or her own credibility judgments,
speculation or lay opinion. Id. An ALJ may not disregard the medical opinion of
a treating physician based solely on his or her own “amorphous impressions,
gleaned from the record and from his evaluation of the [claimant]’s credibility.”
Id. As one court has stated, “Judges, including administrative law judges of the
Social Security Administration, must be careful not to succumb to the temptation
to play doctor” because “lay intuitions about medical phenomena are often
wrong.” Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir 1990).
Rarely can a decision be made regarding a claimant’s residual functional
capacity without an assessment from a physician regarding the functional abilities
of the claimant. See Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986) (“No
physician suggested that the activity Doak could perform was consistent with the
definition of light work set forth in the regulations, and therefore the ALJ’s
conclusion that he could is not supported by substantial evidence.”); 20 C.F.R. §
404.1545(a).
25

As two commentators have explained:
Sometimes administrative law judges assert that they - and not
physicians - have the right to make residual functional capacity
determinations. In fact, it can reasonably be asserted that the
ALJ has the right to determine whether a claimant can engage
in sedentary, light, medium, or heavy work. The ALJ should
not assume that physicians know the Social Security
Administration’s definitions of those terms. However, the
underlying determination is a medical determination, i.e., that
the claimant can lift five, 20, 50, or 100 pounds, and can stand
for 30 minutes, two hours, six hours, or eight hours. That
determination must be made by a doctor. Once the doctor has
determined how long the claimant can sit, stand or walk, and
how much weight the claimant can lift and carry, then the ALJ,
with the aid of a vocational expert if necessary, can translate
that medical determination into a residual functional capacity
determination. Of course, in such a situation a residual
functional capacity determination is merely a mechanical
determination, because the regulations clearly and explicitly
define the various types of work that can be performed by
claimants, based upon their physical capacities.
Carolyn A. Kubitschek & Jon C. Dubin, Social Security Disability Law and
Procedure in Federal Courts, 287-88 (2011) (emphasis added). Therefore, the
administrative law judge cannot speculate as to a claimant’s residual functional
capacity, but must have medical evidence, and generally a medical opinion
regarding the functional capabilities of the claimant, supporting his or her
determination. Doak, 790 F.2d at 29; see Snyder v. Colvin, 2017 U.S. Dist.
LEXIS 41109 (M.D. Pa. March 22, 2017) (Brann, J.) (“I find that substantial

26

evidence does not support the ALJ's ultimate determination. The ALJ's decision to
discredit, at least partially, every opinion of every medical doctor's RFC
assessment of Snyder left the ALJ without a single medical opinion to rely upon in
reaching a RFC determination. ‘Rarely can a decision be made regarding a
claimant's residual functional capacity without an assessment from a physician
regarding the functional abilities of the claimant.’ Maellaro v. Colvin, Civ. No.
3:12-01560, 2014 U.S. Dist. LEXIS 84572, 2014 WL 2770717, at *11 (M.D. Pa.
June 18, 2014).”); Washburn v. Colvin, 2016 U.S. Dist. LEXIS 144453 (M.D. Pa.
October 19, 2016) (Conner, J.); Wright v. Colvin, 2016 U.S. Dist. LEXIS 14378,
at *45-46 (M.D. Pa. Jan. 14, 2016) (Rambo, J.) (“Chandler stated that an ALJ need
not obtain medical opinion evidence and was not bound by any treating source
medical opinion. Id. However, both these statements are dicta. In Chandler, the
ALJ had medical opinion evidence and there was no contrary treating source
opinion. Id. ‘[D]ictum, unlike holding, does not have strength of a decision
‘forged from actual experience by the hammer and anvil of litigation.’ . . . the only
precedential holding in Chandler is the unremarkable finding that an ALJ may rely
on a state agency medical opinion that the claimant is not disabled when there are
no medical opinions from treating sources that the claimant is disabled. See
Chandler, 667 F.3d at 361-63. . . . Consequently, with regard to lay
27

reinterpretation of medical evidence, Frankenfield, Doak, Ferguson, Kent, Van
Horn, Kelly, Rossi, Fowler and Gober continue to bind district Courts in the Third
Circuit.”); Maellaro v. Colvin, 2014 U.S. Dist. LEXIS 84572, at *32-34 (M.D. Pa.
June 18, 2014) (Mariani, J.) (“The ALJ’s decision to reject the opinions of
Maellaro’s treating physicians created a further issue; the ALJ was forced to reach
a residual functional capacity determination without the benefit of any medical
opinion. Rarely can a decision be made regarding a claimant’s residual functional
capacity without an assessment from a physician regarding the functional abilities
of the claimant. See Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986) (“No
physician suggested that the activity [the claimant] could perform was consistent
with the definition of light work set forth in the regulations, and therefore the
ALJ's conclusion that he could is not supported by substantial evidence.”). See
also Arnold v. Colvin, 3:12-CV-02417, 2014 U.S. Dist. LEXIS 31292, 2014 WL
940205, at *4 (M.D. Pa. Mar. 11, 2014); Gormont v. Astrue, 3:11-CV-02145, 2013
U.S. Dist. LEXIS 31765, 2013 WL 791455, at *7 (M.D. Pa. Mar. 4, 2013);
Troshak v. Astrue, 4:11-CV-00872, 2012 U.S. Dist. LEXIS 137945, 2012 WL
4472024, at *7 (M.D. Pa. Sept. 26, 2012). The ALJ’s decision to discredit, at least
partially, every residual functional capacity assessment proffered by medical
experts left her without a single medical opinion to rely upon. For example, three
28

physicians opined that Maellaro was limited in some way in his ability to stand
and/or walk: Dr. Dittman opined that Maellaro could stand/walk for less than one
hour, Dr. Singh believed that Maellaro could stand/walk for fewer than two hours,
and Dr. Dawson opined that Maellaro could not stand or walk for any length of
time. Tr. 183, 211, 223. In rejecting these three opinions, there were no other
medical opinions upon which the ALJ could base her decision that Maellaro
essentially had no limitations in his ability to stand or walk. Tr. 283.
Consequently, the ALJ's decision to reject the opinions of Drs. Singh and Dawson,
and the ALJ’s determination of Maellaro’s residual functional capacity, cannot be
said to be supported by substantial evidence.”); Gunder v. Astrue, Civil No. 11300, slip op. at 44-46 (M.D. Pa. Feb. 15, 2012) (Conaboy, J.) (“Any argument
from the Commissioner that his administrative law judges can set the residual
function capacity in the absence of medical opinion or evidence must be rejected
in light of Doak. Furthermore, any statement in Chandler which conflicts (or
arguably conflicts) with Doak is dicta and must be disregarded. Government of
Virgin Islands v. Mills, 634 F.3d 746, 750 (3d Cir. 2011)(a three member panel of
the Court of Appeals cannot set aside or overrule a precedential opinion of a prior
three member panel). ”); Dutton v. Astrue, Civil No. 10-2594, slip op. at 37-39
(M.D. Pa. Jan. 31, 2012) (Munley, J.) (Doc. 14); Crayton v. Astrue, Civil No. 1029

1265, slip op. at 38-39 (M.D. Pa. Sept. 27, 2011) (Caputo, J.) (Doc. 17).
The Court’s review of the administrative record reveals that the decision of
the Commissioner is not supported by substantial evidence. The ALJ gave some
weight to the opinion of PA Sharp, stating that “some of these restrictions are not
particularly well defined and a physician’s assistant is not an ‘acceptable medical
source.’” (Tr. 33). The ALJ entirely failed to assign weight to the opinion
rendered by Dr. Menio in January 2012.9 Defendant asserts that while the ALJ
impermissibly failed to address this opinion, the ALJ’s failure to do so was
harmless error, and supports this assertion with evidence originating only from the
ALJ’s June 2012 determination, which is not the determination at issue. (Doc. 9,
p. 19-20). It is well-established that, in reviewing an administrative law judge’s
decision, the District Court is permitted to analyze only those explanations that the
administrative law judge actually provides for in his or her decision. Fargnoli v.
Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001) “In the absence of such an
[explanation], the reviewing court cannot tell if significant probative evidence was
not credited or simply ignored.” Burnett, 220 F.3d at 121. As such, this Court is
not permitted to review these explanations provided by Defendant in support of

9. Regardless of its source, the ALJ is required to evaluate every medical opinion

received. 20 C.F.R. §404.1527(c).
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the ALJ’s decision.
Moreover, regardless of whether the ALJ’s failure to discuss Dr. Menio’s
opinion is harmless error, Defendant’s assertion is a moot point because the ALJ
still did not rely on any medical opinion in formulating Plaintiff’s RFC, which
violates the aforementioned Third Circuit precedent. Instead, the ALJ inserted her
lay reinterpretation of the evidence in arriving at the RFC determination when in
fact more restrictive limitations were opined by Plaintiff’s treating physician, Dr.
Menio. (Tr. 467-468). This Court cannot ascertain from the analysis conducted
by the ALJ how she was able to determine a RFC which differed from the medical
opinion of Dr. Menio regarding Plaintiff’s limitations, particularly regarding
limitations with sitting, walking, and standing.
Furthermore, the very definition of “sedentary work” found in 20 C.F.R.
§ 416.967(a) makes it all the more important that this case be remanded, for this
regulation is as follows:
Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.
20 C.F.R. § 416.967(a) (emphasis added). Social Security Regulation 96-6p
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elaborates on the definition of sedentary work, stating, “‘Occasionally’ means
occurring from very little up to one-third of the time, and would generally total no
more than about 2 hours of an 8-hour workday. Sitting would generally total
about 6 hours of an 8-hour workday.” See SSR 96-6p, Policy Interpretation,
Sedentary Work. Dr. Menio’s opinion limited Plaintiff to sitting for no more than
three (3) hours in an eight-hour workday and to standing and/ or walking for no
more than one (1) hour in an eight-hour workday, and noted that Plaintiff needed
to be able to shift positions at will for sitting, standing, and walking. (Tr. 467468). These limitations for sitting, standing, and walking were the only ones
opined by a physician, were completely ignored by the ALJ in the determination at
issue, and are not in accordance with the definition of sedentary work. The fact
that the ALJ did not give weight to any opinion involving walking, standing, or
sitting, but rather instead reinterpreted the medical evidence in arriving at her RFC
determination, goes to support the conclusion that the ALJ’s RFC determination is
not supported by substantial evidence. See Snyder, 2017 U.S. Dist. LEXIS 41109
at *13-14 (Brann, J.) (“The ALJ failed to point to any specific medical evidence
that would support a contrary opinion on Snyder's standing/walking capabilities,
and as a result, it appears that the ALJ was forced to reach a RFC determination
without the benefit of any medical opinion. Accordingly, the ALJ's conclusion is
32

not supported by substantial evidence.”). Therefore, pursuant to 42 U.S.C.
§ 405(g), remand is warranted.
This Court declines to address Plaintiff’s remaining allegations of error, as
remand may produce a different result on this claim, making discussion of them
moot. Burns v. Colvin, 156 F. Supp. 3d 579, 598 (M.D. Pa. Jan. 13, 2016); see
LaSalle v. Comm'r of Soc. Sec., Civ. No. 10-2011 U.S. Dist. LEXIS 40545, 1096,
2011 WL 1456166, at *7 (W.D. Pa. Apr. 14, 2011).
CONCLUSION
Based upon a thorough review of the evidence of record, it is determined
that the Commissioner’s decision is not supported by substantial evidence.
Therefore, pursuant to 42 U.S.C. § 405(g), the appeal will be granted, the decision
of the Commissioner will be vacated, judgment will be entered in favor of Plaintiff
and against Defendant, and the matter will be remanded to the Commissioner of
the Social Security Administration.
A separate Order will be issued.

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

33