Butler v. Commissioner of Social Security

Filing 16

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Plaintiffs appeal is properly granted and this matter is remanded to the Acting Commissioner for further consideration. An appropriate Order is filed simultaneously with this action.Signed by Honorable Richard P. Conaboy on 10;/11/16. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MYLINDA BUTLER,

:
:CIVIL ACTION NO. 3:16-CV-623
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”) and Social
Security Income (“SSI”) under Title XVI of the Act.
alleged disability beginning on May 1, 2011.

(Doc. 1.)

(R. 20.)

She

The

Administrative Law Judge (“ALJ”) who evaluated the claim, Jarrod
Tranguch, concluded in his April 24, 2014, decision that
Plaintiff’s severe impairments of a history of multiple back and
neck fractures, status post thoracic spine multi-level fusion did
not alone or in combination meet or equal the listings.

(R. 23.)

He also found that Plaintiff had the residual functional capacity
(“RFC”) to perform light work with certain nonexertional
limitations and that she was capable of performing jobs that
existed in significant numbers in the national economy.
29.)
30.)

(R. 23-

ALJ Tranguch therefore found Plaintiff was not disabled.

(R.

With this action, Plaintiff asserts that the Acting
Commissioner’s decision should be remanded because “[t]he ALJ erred
by failing to provide good/specific/supported reasons for
discounting the opinions of SSA’s examining physician and
Plaintiff’s primary care physician and nurse practitioner,
resulting in an RFC finding that does not properly consider all of
Plaintiff’s physical limitations.”

(Doc. 14 at 3.)

After careful

review of the record and the parties’ filings, the Court concludes
this appeal is properly granted.
I. Background
A.

Procedural Background
Plaintiff protectively filed for DIB on October 11, 2012, and

for SSI on October 26, 2012.

(R. 20.)

The claims were initially

denied on February 11, 2013, and Plaintiff filed a request for a
hearing before an ALJ on March 25, 2013.

(Id.)

ALJ Tranguch held a hearing on March 19, 2014.

(Id.)

Plaintiff, who was represented by an attorney, testified as did
Vocational Expert (“VE”) Josephine A. Doherty.

(Id.)

As noted

above, the ALJ issued his unfavorable decision on April 24, 2014,
finding that Plaintiff was not disabled under the Social Security
Act during the relevant time period.

(R. 30.)

Plaintiff’s request for review of the ALJ’s decision was dated
June 27, 2014.

(R. 1.)

The Appeals Council denied Plaintiff’s

request for review of the ALJ’s decision on August 25, 2015.
2

(R.

6-11.)

In doing so, the ALJ’s decision became the decision of the

Acting Commissioner.

(R. 6.)

On April 14, 2016, Plaintiff filed her action in this Court
appealing the Acting Commissioner’s decision.

(Doc. 1.)

Defendant

filed her answer and the Social Security Administration transcript
on June 20, 2016.

(Docs. 12, 13.)

brief on August 4, 2016.
September 9, 2016.

(Doc. 14.)

Plaintiff filed her supporting

(Doc. 15.)

Defendant filed her brief on

Plaintiff did not file a reply

brief and the time for doing so has passed.

Therefore, this matter

is ripe for disposition.
B.

Factual Background
Plaintiff was born on May 24, 1969, and has a high school

education.

(R. 29.)

She has past relevant work as a dental

assistant and daycare owner.
1.

(R. 29.)

Impairment Evidence
On May 1, 2011, Plaintiff was in an all terrain vehicle

(“ATV”) accident.

(Doc. 14-1 at 1.)

She sustained numerous

injuries, including fractures in her facial bones, neck, and back.
(Id.)

On May 4, 2011, Brett Schlifka, D.O., performed surgery on

Plaintiff for an unstable T8 burst fracture, compression fractures
of T7 and T9, and posterior element fractures.

(R. 265.)

On May 18, 2011, Plaintiff had a post operative visit for
suture removal.

(R. 212.)

Office notes indicate Plaintiff was

complaining of neck and back pain but said it was tolerable and she
3

was improving daily.
seen for follow up.

(Id.)

On June 8, 2011, Plaintiff was again

(R. 221.)

She reported that she was doing

well overall but had some neck and back pain that varied in
intensity and was improving.

(Id.)

She was directed not to do any

heavy lifting or excessive activity and to continue Percocet and
Flexeril as needed for pain.

(R. 222.)

At her August 2, 2011, office visit, Plaintiff reported that
she had been doing well overall, but she complained of occasional
headaches and shock-like pains that radiated down her arms into her
hands with associated numbness in the fingertips, left greater than
right, which had started a few weeks earlier.

(R. 230.)

reported that she was not taking anything for pain.

She also

(Id.)

Schlifka recommended MRI to assess nerve roots and discs.

Dr.
(R.

231.)
MRI of the cervical spine conducted on August 8, 2011,
indicated that the C2 fracture and anterior arch of the C1 fracture
had healed, the posterior arch fractures were still evident with
slight fluid around the area, and there were no other significant
abnormalities.

(R. 241.)

A CT scan was recommended to check for

callus formation and to see how the posterior arch fractures were
healing.

(Id.)

At a routine post operative visit on August 17, 2011,
Plaintiff continued to complain of intermittent frequent electrical
shock-like sensations throughout her entire body but worse

4

throughout her upper body which lasted for seconds but was not
painful.

(R. 244.)

lower extremities.

She denied pain or weakness in her upper or
(Id.)

The following Plan was recorded:

Wean Miami J collar off over next 1-2 wks.[;]
Referral to neurology for eval of shck-like
sensations offered but pt declines at this
time[;] May take baths, hot tubs, and swim;
May lift up to 20 pounds and increase 10
pounds/month as tolerated[;] Continue good
body mechanics - no deep bending, twisting
etc.[;] Continue to not sit bolt upright for
greater than 40 minutes, 4 times a day[;]
Continue to walk/stairs as tolerated[,] no
running jumping, situps, or excessive
exercise[;] . . . Medications Given: none[;]
Planning for return to work: she may return
to work as dental assistant provided she does
not lift >20 lbs[;] Will follow-up: 3 months.
(R. 245.)
At her next routine post op visit on December 1, 2011,
Plaintiff stated that was feeling well overall and her electric
shock symptoms had decreased.

(R. 252.)

She also noted that she

experienced some back discomfort when she sat upright for long
periods of time, she had pain in the mid-back that radiated to the
left side which was worse since her last visit (3/10 at the time),
she had minimal neck pain (only with extreme rotation while
driving), and she was not using any pain medications.
258.)

(R. 252,

Plaintiff reported that she had not yet returned to work

because she did not feel she had the stamina.

(Id.)

directed to continue with activities as tolerated.

Plaintiff was
(R. 253.)

requested that her next follow up visit be scheduled for three

5

She

months rather than six so that her return to work could be
reevaluated.

(Id.)

On April 26, 2012, Plaintiff again reported that she was
feeling well overall but she continued to experience some back
discomfort when she sat upright or stood for long periods of time.
(R. 432.)

She had minimal neck pain as reported at her previous

visit and she was not taking any pain medications.

(Id.)

Plaintiff stated that she had not returned to work but wanted to do
so soon.

(Id.)

Physical examination showed her back was “non-

tender,” strength was 5/5 in both upper and lower extremities in
all phases of motion, sensation was 5/5 in both upper and lower
extremities to light touch, reflexes were 2+, and her gait was
normal.

(Id.)

Office notes indicate that Plaintiff was stable and

was told that she may continue to have some neck and back
discomfort due to her severe injuries.

(R. 433.)

Recommendations

included that she follow up as needed; have x-rays of the cervical
and thoracic spine in one year; lift up to ten pounds and increase
ten pounds per month as tolerated; not sit bolt upright for more
than forty minutes four times per day; walk and climb stairs as
tolerated; and avoid jumping, situps, and excessive exercise.
(Id.)

Plaintiff said she wanted to return to work and she was

given a letter.

(Id.)

to full duty work.

Records indicate she was planning to return

(Id.)

On January 23, 2013, Plaintiff saw John Citti, M.D., a
6

consulting examiner, for a disability evaluation.

(R. 547.)

Physical examination showed the following: Plaintiff had
essentially normal range of motion of her neck but pain at the
extremes; her lateral flexion was somewhat limited due to pain; she
was able to bend over toward touching her toes; she was able to
manipulate to get on the examining table but had to be cautious
when trying to get up and down from the lying position; straight
leg raise caused some pull in her mid back; and she could try to
twist her trunk but she could not bend it from side to side.
549.)

(R.

Plaintiff was not taking any pain medications at the time

but occasionally took Advil.

(R. 548.)

Plaintiff returned to Dr. Schlifka’s office on April 11, 2013,
with complaints of upper thoracic spine pain with occasional
radiation to the cervical and lumbar region.

(R. 580.)

Plaintiff

described her back pain as constant and rated it as seven out of
ten at the time of the visit.

(R. 581-82.)

Dr. Schlifka noted

that Plaintiff denied radicular pain and requested that disability
paperwork be completed.

(R. 580.)

need temporary disability.

He noted that Plaintiff may

(R. 581.)

Examination showed mild

tenderness to palpation of the thoracic paraspinal muscles lateral
to incision.

(Id.)

Lidoderm patch.

Dr. Schlifka prescribed Mobic, Flexeril, and

(R. 584.)

He referred Plaintiff for pain therapy

and recommended follow up after she had the ordered imaging.
581, 584.)

7

(R.

After having seen her primary care physician, Michael J.
Grasso, M.D., shortly after her accident, Plaintiff returned again
on May 3, 2013.

(R. 595, 599.)

Office notes indicate that

Plaintiff had not been in because she had no insurance and had been
seeing Dr. Schlifka since 2011.

(R. 599.)

Plaintiff reported

chronic neck and back pain that was controlled to the point she was
able to function.
bad days.

(Id.)

(Id.)

She also reported that she had good and

Physical examination of the neck showed she had

ninety percent range of motion with some pain and stiffness with
movement.

(R. 600.)

Dr. Grasso noted upon musculoskeletal

examination that Plaintiff had remarkable functioning in light of
her trauma and numbness and pain varied in her limbs and face.
(Id.)

Office notes from Plaintiff’s return visit on June 14, 2013,

to follow up
good.”

on her lab results, indicate that her labs “look

(R. 603.)

Plaintiff’s complaints and physical examination

findings were essentially the same as at her May visit.

(R. 603-

04.)
Plaintiff next visited Dr. Grasso’s office on March 12, 2014,
for a routine visit and evaluation for disability.

(R. 616.)

Office notes set out the following opinion:
She is in my opinion at her maximum level of
funcioning [sic] and or improvement. I do
not see how in any way she could continue to
be gainfully employed in her profession or
any profession for that matter that requires
any physical activity and or sitting for
periods of longer than 30 minutes to an hour
at a time. Her injuries are permanent and
8

will very likely not improve at all. Her
symptoms are actually likely to get worse as
times goes on due to arthritis and aging.
(Id.)

It was also noted that, at the time of the visit, Plaintiff

complained of chronic back and neck pain “which becomes [sic]
almost unbearable” and which required narcotic medications from
time to time and/or lying down for long periods of time.

(Id.)

Examination showed that Plaintiff had some mild weakness in her
legs, she was able to move all extremities, numbness and pain
varied in limbs and face from moderate to severe, she displayed
comfort and cooperation when at rest but after ten to fifteen
minutes she became uncomfortable unless she changed positions.
(Id.)

It also showed that Plaintiff had some depression due to her

inability to function as she did before the accident but she was
alert and oriented to person, place and time, her recent and remote
memory was intact, her judgment was realistic, and her insight was
appropriate.
2.

(R. 617.)

Opinion Evidence
In addition to the examination findings set out above, John

Citti, M.D., a consulting examiner, reported the following
impression in his January 23, 2013, Disability Evaluation:
My impression is the patient is
fortunate to be alive after C2 and T8
fracture with compression fractures also of
adjacent vertebra in the mid thoracic spine
with Harrington rods in place at this time
and chronic pain from the above. She is now
approximately 20 months since her accident
and has reached full recovery. I doubt that
9

she will be recovering further than where she
is at this time.
(R. 549.)

He opined that Plaintiff could lift or carry two to

three pounds frequently and ten pounds occasionally; she could
stand and walk one to two hours in an eight-hour day; she could sit
for two hours in an eight-hour day; pushing and pulling were
limited in that she could not operate hand controls; she could
occasionally bend and never kneel, stoop, crouch, balance or climb;
her ability to reach was affected by her impairments but her
abilities to handle, finger, feel, see, hear, speak, and
taste/smell were not affected; her continence was not affected; and
Plaintiff had environmental restrictions related to heights, moving
machinery, and temperature extremes.

(R. 551-52.)

On February 6, 2013, a Physical Residual Functional Capacity
Assessment was completed by Jan Kapcala, D.O., a consulting
physician for the State agency.

(R. 83-85.)

Dr. Kapcala made the

following findings: Plaintiff could lift and/or carry tweny pounds
occasionally and ten pounds frequently; she could stand and/or walk
for more than six hours in an eight-hour workday; she could sit for
more than six hours in an eight-hour workday; her ability to push
and pull was unlimited except as shown for lift and/or carry; she
was unlimited in his abilities to climb ramps/stairs, balance,
stoop, kneel, or crouch and could frequently climb
ladders/ropes/scaffolds and crawl; and she had to avoid
concentrated exposure to extreme cold.
10

(R. 83-84.)

Dr. Kapcala’s

explanation for this assessment included the following:

the April

2012 visit to Dr. Schlifka’s office where Plaintiff did not have
back tenderness, her strength and sensation were 5/5, and she had a
normal gait and independent mobility; there was no evidence from
treating doctors’ examinations that Plaintiff ever developed any
nuerologic deficits resulting in weakness or sensory losses, or any
major musculoskeletal deficits; Plaintiff’s subjectively reported
limitations were not really consistent with objective findings; and
Dr. Citti’s opinion was not supported by other evidence, was an
over-estimate of limitations, and the limitations were not
consistent with physical findings.

(R. 84-85.)

In April 2013, Dr. Schlifka indicated that Plaintiff presented
disability paperwork and noted that she “may need temp disability”
but he did not elaborate on this statement.

(R. 581.)

On June 14, 2013, Michael Robatin, CRNP, opined in a Physical
Residual Functional Capacity Assessment that Plaintiff could
frequently lift and/or carry ten pounds; she could stand and/or
walk for less than two hours in an eight-hour day; she could sit
for less than about six hours in an eight-hour day; she must
periodically alternate between sitting and standing; and she was
limited in upper and lower extremities.

(R. 589.)

Mr. Robatin

noted that these conclusions were supported by “Fusion T6-10 & T8
Burst Fracture.”

(Id.)

Regarding postural limitations, Mr.

Robatin reported that Plaintiff could never climb ramps, stairs, or

11

scaffolds, and could occasionally balance, stoop, kneel, crouch,
and crawl.

(R. 590.)

Support for these limitations was as noted

previously and also C1-C2 fractures.

(Id.)

For the same reasons,

Mr. Robatin found Plaintiff limited in her abilities to reach,
handle, finger, and feel.

(R. 591.)

Environmental limitations

included the need to avoid concentrated exposure to extreme cold
and heat, wetness, and humidity, and avoid all exposure to fumes,
odors, dusts, gases, poor ventilation, and hazards.

(R. 592.)

Mr.

Robatin also opined that Plaintiff’s symptoms were consistent with
her injury and are likely permanent.

(R. 593.)

On February 27, 2014, both Mr. Robatin and Dr. Grasso
completed another Physical Residual Functional Capacity Assessment,
recording the same findings as in the previous form.

(R. 609-14.)

As set out above, on March 12, 2014, Mr. Robatin and Dr.
Grasso signed office notes which included the following notation:
She is in my opinion at her maximum level of
funcioning [sic] and or improvement. I do
not see how in any way she could continue to
be gainfully employed in her profession or
any profession for that matter that requires
any physical activity and or sitting for
periods of longer than 30 minutes to an hour
at a time. Her injuries are permanent and
will very likely not improve at all. Her
symptoms are actually likely to get worse as
times goes on due to arthritis and aging.
(R. 616.)
3.

Testimony
Plaintiff testified that she tried to go back to work a year

12

after her accident but she left after a couple of days because it
was not going well.

(R. 62.)

She then tried volunteering at a

summer program at the local high school but that too proved to be
too much because she could not stand or sit for long periods of
time.

(Id.)

Plaintiff testified that she had a lack of treatment after a
certain time because Dr. Schlifka said there was nothing else he
could do–-she was at full functioning capacity and she would keep
up with pain management with Dr. Grasso.

(R. 63.)

Plaintiff also

said that Dr. Schlifka told her to keep doing the best she could
which included sitting and standing for short periods of time and
alternating as needed, and avoid situations which aggravated her
symptoms.

(Id.)

She said it was not good for her to stand or sit

for more than an hour at a time and she needed to lie down
throughout the day.

(R. 67.)

Plaintiff explained that afer she

does something for about an hour, she will lie down for twenty to
thirty minutes.

(Id.)

At the time of the hearing Plaintiff was primarily taking
Advil for pain and also took Meloxicam, Cyclobenzaprine and
Tramadol when she “absolutely need[ed] it” which was several times
a week.

(R. 64.)

She testified that both cold and humidity

affected her symptoms.

(R. 63-64.)

Plaintiff noted that the

medications can make her a bit sleepy and they take the edge off
the pain.

13

ALJ Tranguch asked Vocational Expert Josephine Doherty to
consider a hypothetical individual of the same age, education, and
work experience as Plaintiff with the following
abilities/limitations:
this individual can occasionally lift and
carry 20 pounds; frequently lift and carry up
to 10 pounds. This individual can stand
and/or walk for up to six hours in an eight
hour workday; and can sit for at least six
hours. The individual would need some
flexibility with regard to a sit/stand option
or need to be able to change positions
essentially at will, but would not be off
task in performing work duties if she needed
to change position. This individual can
occasionally use her upper and lower
extremities for pushing and pulling such as
operating levels, hand controls, pedals, and
foot controls. This individual can
occasionally bend, stoop, crouch, kneel, use
ramps and climb stairs; should not perform
bending, stooping or crouching on a
repetitive basis. This individual should
avoid occupations that require any crawling
or climbing on ladders, ropes or scaffolds.
This individual should avoid concentrated
exposure to vibration and wet or slippery
conditions; and she should avoid workplace
hazards such as unprotected heights and
dangerous moving machinery.
(R. 72.)

The VE testified that this individual would not be able

to perform Plaintiff’s past relevant work but there were jobs in
the local, state, or national economy that such an individual could
perform, including the light duty unskilled positions of
information clerk, digital processor, and mail sorter.

(R. 72-73.)

With the added limitation that the hypothetical individual was
limited to standing and/or walking for no more than four hours in
14

an eight-hour workday, the VE stated that the digital processor
position would remain.

(R. 73.)

She also identified the sedentary

positions of document preparer and charge account clerk.

(Id.)

ALJ Tranguch’s next hypothetical limited the individual to
lifting and carrying no more than ten pounds and standing and/or
walking to no more than two hours in an eight-hour workday.
74.)

(R.

The VE stated that the charge account clerk and document

preparer positions would remain and she added a ticket counter
position.

(Id.)

In the final hypothetical, the individual would need to take
unscheduled breaks outside the normal breaks, she would need to
have the opportunity to change positions frequently and lie down at
times during the day which would result in her being off task up to
twenty percent of the workday, and she would be expected to be late
to work, absent from work, or would have to leave early two or more
days per month.

(Id.)

The VE responded that this individual would

be precluded from competitive employment.
4.

(R. 74-75.)

ALJ Decision
As noted above, ALJ Tranguch issued his decision on April 24,

2014.

(R. 20-30.)

He made the following Findings of Fact and

Conclusions of Law:
1.

The claimant meets the insured status
requirements of the Social Security Act
through December 31, 2016.

2.

The claimant has not engaged in
substantial gainful activity since May
15

1, 2011, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).
3.

The claimant has the following severe
impairments: history of multiple back
and neck fractures, status-post thoracic
spine multi-level fusion (20 CFR
404.1520(c) and 416.920(c)).

4.

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

5.

After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform a range
of light work as defined in 20 CFR
404.1567(b) and 416.967(b). She can
occasionally lift and carry 20 pounds,
frequently lift and carry up to 10
pounds. She can stand and/or walk no
more than 4 hours in an 8-hour workday
and can sit at least 6 hours. She would
need some flexibility with regard to a
sit/stand option. She would need to
change positions, essentially at will,
but would not be off task performing
work duties if she needed to change
position. She can occasionally use her
upper extremities for pushing and
pulling, such as operating levers, hand
controls, pedals, and foot controls.
She can occasionally bend, stoop,
crouch, kneel, use ramps, and climb
stairs, but should not perform bending,
stooping, or crouching on a repetitive
basis. She should avoid occupations
that require any crawling or climbing on
ladders, ropes, or scaffolds. She
should avoid concentrated exposure to
vibration and wet or slippery
conditions, and she should avoid
workplace hazards, such as unprotected
16

heights and dangerous moving machinery.
6.

The claimant is unable to perform any
past relevant work (20 CFR 404.1565 and
415.965).

7.

The claimant was born on May 24, 1969
and was 41 years old, which is defined
as a younger individual age 18-49, on
the alleged disability onset date (20
CFR 404.1563 and 416.963).

8.

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

9.

Transferability of job skills is not
material to the determination of
disability because using the MedicalVocational Rules as a framework supports
a finding that the claimant is “not
disabled,” whether or not the claimant
has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P,
Appendix 2).

10.

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

11.

The claimant has not been under a
disability, as defined in the Social
Security Act, from May 1, 2011, through
the date of this decision (20 CFR
404.1520(g) and 416.920(g)).

(R. 22-30.)
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to

17

determine whether a claimant is disabled.1

It is necessary for the

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

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional

1

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
18

capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

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

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

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

If the claimant satisfies this burden, then the Commissioner

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

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

As set out above, the instant decision was decided at step
five of the sequential evaluation process when the ALJ found that
Plaintiff could perform jobs that existed in significant numbers in
the national economy.

(R. 29-30.)
III. Standard of Review

This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

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

Substantial evidence

It means such relevant evidence

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

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

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
19

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.

If she has not done so and has not

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

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

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result

20

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

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

See, e.g., Knepp v.

“There is no requirement

that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Cir. 2004).

Hur v. Barnhart, 94 F. App’x 130, 133 (3d

“[W]here [a reviewing court] can determine that there

is substantial evidence supporting the Commissioner’s decision, . .
.

the Cotter doctrine is not implicated.”

Hernandez v. Comm’f of

Soc. Sec., 89 Fed. Appx. 771, 774 (3d Cir. 2004) (not
precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.

Hartranft,

181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
21

in making his findings, applied the correct legal standards to the
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.

See, e.g., Albury v. Comm’r

of Soc. Sec., 116 F. App’x 328, 330 (3d Cir. 2004) (not
precedential) (citing Burnett v. Commissioner, 220 F.3d 112 (3d
Cir. 2000) (“[O]ur primary concern has always been the ability to
conduct meaningful judicial review.”).

An ALJ’s decision can only

be reviewed by a court based on the evidence that was before the
ALJ at the time he or she made his or her decision.

Matthews v.

Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
IV. Discussion
Plaintiff asserts that the Acting Commissioner’s decision
should be remanded because “[t]he ALJ erred by failing to provide
good/specific/supported reasons for discounting the opinions of
SSA’s examining physician and Plaintiff’s primary care physician
and nurse practitioner, resulting in an RFC finding that does not
properly consider all of Plaintiff’s physical limitations.”
14 at 3.)

(Doc.

Plaintiff specifically criticizes the limited weight

assigned to the opinions of treating providers Dr. Grasso and Mr.
Robatin, and consulting examiner, Dr. Citti.

(Doc. 14 at 8-14.)

Defendant maintains that the ALJ reasonably reconciled the
22

differing medical opinions.

(Doc. 15 at 12.)

It is well established under the regulations and caselaw that
the relationship between the claimant and opining physician is an
important consideration in the determination of the weight afforded
the opinion with more weight generally afforded to the opinion of a
source who has examined the claimant than to one who has not.

See,

e.g., Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984); 20
C.F.R. § 404.1527(c)(1).

Whether the physician is a specialist is

also a relevant consideration in that more weight is generally
given to the opinion of a specialist about medical issues related
to his or her area of specialty than to the opinion of a source who
is not a specialist.

20 C.F.R. § 404.1527(c)(5).

A treating medical source’s opinions are generally entitled to
controlling weight, or at least substantial weight.

See, e.g.,

Fargnoli v. Halter, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20
C.F.R. § 404.1527(c)(2); Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981)).

This principal is codified at 20 C.F.R.

404.1527(c)(2), and is widely accepted in the Third Circuit.

Mason

v. Shalala, 994 F.2d 1058 (3d Cir. 1993); see also Dorf v. Brown,
794 F.2d 896 (3d Cir. 1986).

The regulation addresses the weight

to be given a treating source’s opinion: “If we find that a
treating source’s opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
23

inconsistent with the other substantial evidence in your case, we
will give it controlling weight.”

20 C.F.R. § 404.1527(c)(2).2

“A

cardinal principle guiding disability eligibility determinations is
that the ALJ accord treating physicians’ reports great weight,
especially when their opinions reflect expert judgment based on
continuing observation of the patient’s condition over a prolonged
period of time.”

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.

2000) (citations omitted); see also Brownawell v. Commissioner of

2

20 C.F.R. § 404.1527(c)(2) states in relevant part:
Generally, we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most
able to provide a detailed, longitudinal
picture of your medical impairment(s) and may
bring a unique perspective to the medical
evidence that cannot be obtained from the
objective medical findings alone or from
reports of individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature
and severity of your impairment(s) is wellsupported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial
evidence in your case record, we will give it
controlling weight. When we do not give the
treating source's opinion controlling weight,
we apply the factors listed in paragraphs
(c)(2)(i) and (c)(2)(ii) of this section, as
well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining
the weight to give the opinion. We will always
give good reasons in our notice of
determination or decision for the weight we
give your treating source's opinion.
24

Social Security, 554 F.3d 352, 355 (3d Cir. 2008).

In choosing to

reject the treating physician’s assessment, an ALJ may not make
“speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.”

Morales, 225

F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).
Similarly, greater deference is due an examining source than a
non-examining source.

20 C.F.R. § 404.1527(c)(1).

Section

404.1527(c)(3) provides the following:
The more a medical source presents relevant
evidence to support an opinion, particularly
medical signs and laboratory findings, the
more weight we will give that opinion. The
better an explanation a source provides for
an opinion, the more weight we will give that
opinion. Furthermore, because nonexamining
sources have no examining or treating
relationship with you, the weight we will
give their opinions will depend on the degree
to which they provide supporting explanations
for their opinions. We will evaluate the
degree to which these opinions consider all
of the pertinent evidence in your claim,
including opinions of treating and other
examining sources.
Id.
In his review of opinion evidence, ALJ Tranguch first stated
that he gave great weight to Dr. Kapcala’s February 6, 2013,
Physical Residual Functional Capacity Assessment.

(R. 26.)

concludes that “[t]his consultant’s opinions are generally
25

He

consistent with the evidence when considered in its entirety,
including rather limited follow-up treatment and limited objective
findings.”

(Id.)

The ALJ added that he gave Plaintiff “the

benefit of the doubt regarding her limitations,” and gave
additional limitations to those assessed by Kr. Kapcala.

(Id.)

ALJ Tranguch assigned moderate weight to limitations noted in
Dr. Schlifka’s August 2011 and April 2012 office visit records,
finding that the limitations were “somewhat supported through
objective examination findings at the time each was assessed.”
27.)

(R.

He concluded that greater weight should be given to Dr.

Schlifka’s April 2012 statement that Plaintiff was being released
to full duty work without restrictions “as this opinion is more
widely supported through essentially routine and benign objective
examination findings.”

(Id.)

He assigned limited weight to Dr.

Schlifka’s opinion one year later that Plaintiff may need temporary
disability because Dr. Schlifka “did not provide a full functional
evaluation and his statement is not consistent with rather benign
examination findings.”

(Id.)

ALJ Tranguch assigned limited weight to the opinions of Dr.
Grasso and Mr. Robatin dated June 14, 2013, February 27, 2014, and
March 12, 2014, and Dr. Citti’s January 2013 opinion.

(R. 26-27.)

Regarding Dr. Grasso’s and Mr. Robatin’s opinions, the ALJ’s
determination was based on his finding that the limitations noted
by these provides “are not well supported by objective findings or

26

consistent treatment.

The claimant sat for the whole hearing and

was able to stand up after the hearing without any hesitancy or
difficulty.”

(R. 27.)

The rationale provided by ALJ Tranguch for discounting the
opinions of Dr. Grasso and Mr. Robatin does not provide the Court
with sufficient detail to determine whether his assessment is
supported by substantial evidence.

His conclusion that the

limitations are not well supported by objective findings or
consistent treatment (R. 27) does not explain why the limitations
which he acknowledged were found on examination by these providers,
including chronic pain (controlled to a point but with good days
and bad days), some pain and stiffness with movement of her neck,
numbness and pain in her limbs and face which varied from moderate
to severe, and mild weakness in her legs (R. 26), did not support
the limitations assessed by Dr. Grasso and Mr. Robatin.

ALJ

Tranguch’s statement that Plaintiff “sat for the whole hearing and
was able to stand up after the hearing without any hesitation or
difficulty” (R. 27) does not undermine the providers’ assessments:
Dr. Grasso and Mr. Robatin concluded Plaintiff could sit for less
than six hours in an eight-hour day in their RFC assessments (see,
e.g., R. 610) and noted in March 2014 that she could sit for thirty
minutes to an hour (R. 616) and the hearing lasted for
approximately thirty-five minutes (R. 54, 76); and the fact that
Plaintiff could stand up without apparent difficulty after this

27

period of time is not shown to be inconsistent with other evidence
of record.
ALJ Trunguch assigned limited weight to Dr. Citti’s opinion,
particularly with regard to lifting, carrying, standing, walking,
and sitting, because “his statements are not well supported by
objective evidence or consistent with rather normal examination
findings.

It appears this examiner’s opinions are based largely on

the claimant’s subjective complaints and self-reported limitations,
not actual objective observations.”

(R. 27.)

This rationale

suffers from deficiencies similar to those discussed in conjunction
with the weight assigned to Dr. Grasso’s and Mr. Robatin’s
opinions–-Dr. Cicci found physical limitations on examination (R.
549) and the ALJ does not explain why the objective examination
findings are not supportive of the limitations assessed.
Furthermore, in a case where all providers and the examiner
opined that Plaintiff’s serious injuries would result in ongoing
symptoms (R. 433, 549, 616), and one year after her surgeon
released her for full duty he opined approximately two months after
Dr. Cicci’s evaluation that she may need temporary disability (R.
433, 581), the ALJ’s lack of citation to contradictory examining
evidence is noteworthy.

The ALJ’s assignment of greater weight to

the earlier (March 2012) assessment of Dr. Schlifka (R. 27) is
problematic in that each of the examining sources found limitations
upon examination (R. 549, 581, 599-600, 616), and the cited records

28

indicate some worsening of Plaintiff’s symptoms occurred after she
was released to work in April 2012 (R. 432-33).

Similarly,

assignment of greater weight to Dr. Kapcala’s opinion is
problematic because the weight attributed to a nonexamining source
should include the consideration of whether the opinion considers
all of the pertinent evidence, including opinions of treating
sources.

20 C.F.R. § 404.1527(c)(3).

Dr. Kapcala did not consider

Dr. Schlifka’s opinion in April 2013 that Plaintiff may need
temporary disability (R. 581), her reports to Dr. Schlifka of
increasing pain (id.), and the office notes and opinions of Dr.
Grasso and Mr. Robatin (R. 589-93, 599-604, 6609-14, 616).
While there may be a valid basis for the ALJ’s assessments of
the opinions of Dr. Grasso, Mr. Robatin, and Dr. Cicci, he has not
provided such explanations here.

In support of the ALJ’s opinion

assessments, Defendant emphasizes the limited treatment sought by
Plaintiff and limited objective findings.

(Doc. 15 at 16-17.)

However, Defendant does not provide a basis for the Court to
conclude that the ALJ himself properly assessed the opinion
evidence, nor does Defendant demonstrate that substantial evidence
supports the ALJ’s conclusion that Dr. Schlifka’s March 2012
opinion and Dr. Kapcala’s February 2013 opinion are entitled to the
greater weight attributed.3

3

The Court recognizes the reviewing court may consider ALJ
error harmless where the ALJ’s decision is explained in sufficient
detail to allow meaningful judicial review and the decision is
29

Though Defendant now provides significant reasons for
discounting the opinions, Defendant cannot do what the ALJ should
have done and the post hoc rationalization cannot provide
substantial evidence for his determinations.
v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001).

See, e.g., Fargnoli
Further, even if the

Court were to find merit in Defendant’s post hoc reasoning, the
court should not “‘supply a reasoned basis for the agency’s action
that the agency itself has not given.’”

See, e.g., Gross v. Comm’r

of Soc. Sec., No. 15-2764, ---Fed. App’x—--, 2016 WL 3553259, at *4
(3d Cir. June 30, 2016) (quoting Christ the King Manor, Inc. v.
Sec’y of Health & Human Services, 730 F.3d 291, 305 (3d Cir.
2013)).

Therefore, although the record is thin and the Court does

not assess matters left to the Commissioner, this case must be
remanded for further consideration of the opinion evidence and the
establishment of a properly supported RFC assessment.
V. Conclusion
For the reasons discussed above, Plaintiff’s appeal is
properly granted and this matter is remanded to the Acting
Commissioner for further consideration.

An appropriate Order is

supported by substantial evidence. See, e.g., Albury, 116 F. App’x
at 330. The Court does not pursue this consideration here
primarily because Defendant did not do so. As noted in the text,
Defendant essentially argues that the ALJ properly assessed the
medical opinions. (Doc. 15 at 11-24.) Furthermore, harmless error
is not clearly evident here given the considerations discussed in
the analysis of ALJ Tranguch’s assessments of the medical opinions
at issue.
30

filed simultaneously with this action.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: October 11, 2016

31