Spencer v. Colvin

Filing 12

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed in this Memorandum, this case will be remanded to the Commissioner for further proceedings to establish Plaintiffs appropriate residual functional capacity and to allow expert vocational testimony on whether she retains the capacity to maintain employment.Signed by Honorable Richard P. Conaboy on 3/9/17. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Terry Lee Spencer

:

Plaintiff

: Case No. 3:16-CV-628

v.

: (Judge Richard P. Conaboy)

Nancy A. Berryhill, Acting
:
Commissioner of Social Security
Social Security Administration
:
U.S. Dept. of Health & Human Svcs.
:
Defendant
_________________________________________________________________
Memorandum
I.

Procedural background.
We consider here Plaintiff’s appeal from an adverse decision

of the Social Security Administration (“SSA”) or (“Agency”).

The

Agency initially denied Plaintiff’s application for Disability
Insurance Benefits (“DIB”) and Widow’s Insurance Benefits (“WIB”)
on May 8, 2014 whereupon Plaintiff requested a hearing before the
Administrative Law Judge (“ALJ”).

The Plaintiff ultimately

received two hearings, an initial hearing on February 11, 2015 and
a supplemental hearing on April 27, 2015.

The ALJ issued a

decision denying Plaintiff benefits of any kind on April 30, 2015.
The ALJ’s decision was then affirmed by the Appeals Council by
Notice of Action dated February 22, 2016.

That Notice of Action

constitutes a final decision of the Agency that vests this Court
with jurisdiction over Plaintiff’s appeal pursuant to 42 U.S.C. §
405(g).

II.

Testimony before the ALJ.
A.

Hearing of February 11, 2015.

Plaintiff’s testimony may be summarized as follows.

She was

born on June 25, 1956 and was 58 years of age on the date of the
hearing.

She had been married but was widowed about one year

before the hearing.

She had been married for nine years.

(R.77-

78).
Plaintiff alleged that she became disabled as of September 20,
2011.

On that date she was in an automobile accident.

go to the hospital on the date of the accident.

She did not

As the days

passed, however, she grew progressively stiffer, had difficulty
walking, and began to lose function in her right arm and hand.
(R.78-79).
Plaintiff was employed at the time of her accident.

She had

been with her employer for more than five years at the time of her
injury.

At the time she stopped working she had cut her schedule

from 60 to 70 hours per week to 20 hours per week due to pain and
an inability to work.

Her employer wanted her to remain on the job

but she quit because of pain and an inability to sit for extended
periods.

Her place of employment had neither provided for short or

long term disability benefits nor provided medical coverage.
(R.79-80).
Plaintiff stated that she was right-handed, 5'4" tall, and
weighed 165 pounds.

From her disability onset date until the date

2

of her husband’s death she lived on her husband’s paycheck.

She

was not covered by health insurance by her husband’s employer.

She

received $108.01 each month from an annuity and, until August of
2014, was getting $1,000.00 per month from State Farm Insurance
Company on an income insurance plan she had purchased while she was
working.

At the time of the hearing, the Plaintiff’s only income

was from the aforementioned annuity and assistance from family and
friends.

She also receives food stamps and has obtained a medical

assistance card.

She obtained the medical assistance card in

October of 2013.

(R.80-82).

Plaintiff is a licensed driver.

She completed high school and

completed three college level courses afterward.

She is fluent in

written and spoken English and has good arithmetic skills.

She has

never been in the military nor has she ever been incarcerated.
(R.83-84).
Plaintiff’s primary work had been as a secretary.

She worked

in a law office and for a heating and air conditioning company.
Plaintiff characterized herself as a self-employed independent
contractor.

She personally did all the record keeping for her

business and prepared her own tax returns.

(R.85-86).

In her secretarial work Plaintiff normally lifted no more than
10-15 pounds but occasionally would lift up to 40 pounds in her
estimation.

At the time of her hearing, Plaintiff was still

working on a very limited basis.

(R.87-89).

3

With regard to her mental health, Plaintiff stated that she
had not undergone any inpatient hospitalization for mental health
at any time since her alleged onset date, September 20, 2011.

She

also acknowledged that she had not participated in any intensive
outpatient therapy, individual therapy, group therapy, or taken any
medications prescribed by a mental health professional since her
onset date.

She did testify that her family doctor had prescribed

“medications for mental health” for approximately four years - - a
period starting some six months before her onset date.

Plaintiff

described her mental health problems as “a lot of stress, hives off
and on, anxiety, and nervousness.”
angry, and frustrated.

She is frequently irritated,

Her family doctor has prescribed Wellbutrin

to help her with her anxiety but has not otherwise discussed
additional treatment that might help her to address her mental
health problems.

(R.89-91).

With regard to her spinal problems, Plaintiff stated that she
had not undergone any form of spinal surgery or inpatient
hospitalization since her onset date.
three spinal injections in 2012.

She has, however, received

Plaintiff explained that the

first two injections helped her to some extent but that the third
injection did not help her much.

She also stated that shortly

after she had the third injection her medical coverage expired.
She acknowledged that she saw an orthopedic physician at about the
same time she received the injections and that he noted her lower

4

back pain was markedly improved.

She stated that the orthopedic

specialist told her at their last session that she should come back
to see him “when the pain got so bad I was crawling.”

At no time

after she received her medical card in 2013 did she return to see
the orthopedic physician nor did she see another orthopedic
physician.

(R.91-94).

Plaintiff did undergo a regimen of physical therapy at the
“Hetrick Center”.

The program had lasted for two months but

according to Plaintiff participation in the program actually made
her condition worse.

At some point, Plaintiff began to see a

chiropractor three times each week.

When her medical benefits

under her auto policy were exhausted, she continued to treat with
the chiropractor.

The chiropractor is anticipating payment when

she settles a claim she has filed against the insurance company of
the man whose vehicle struck her.

Plaintiff has given a deposition

in that case and has undergone an independent medical examination
with a “Dr. Mitrick”.

Before closing the record the ALJ requested

that she be supplied with the deposition transcript and the
independent medical examination report before Plaintiff’s next
hearing.
B.

(R.95-100).
Hearing of April 27, 2015.

Plaintiff’s reconvened hearing included further testimony by
her and testimony from Brian Bierley, a Vocational Expert (“VE”).
Plaintiff’s testimony resumed with questioning regarding her carpal

5

tunnel syndrome.
sometimes painful.

She stated that her hands go numb often and it is
She indicated that she has had no treatment

specifically for carpel tunnel syndrome but that her doctor has
discussed the possibility of surgery with her.

She stated that she

is still considering whether to have such surgery.
Plaintiff also stated that there had been no change in her
back symptomology.

She stated that she had had no surgery or

additional trigger point injections since her first hearing some
ten weeks earlier.

She also denied having any physical therapy or

inpatient hospitalizations in the interim.

She stated that she

had, however, continued treating with her chiropractor and family
doctor.

Her medications keep her pain somewhat under control but

don’t work as well at present as they did in 2011.

When asked why

she had discontinued physical therapy Plaintiff reiterated that she
stopped going for physical therapy because it aggravated her
symptoms.

(R.40-46).

Plaintiff testified further that in 2012 her typical day
consisted of the following: rise between 7 and 8 a.m.; “make coffee
and wait for everything to start loosening up...so I would be
functional”; shower, dress and drive to work; in the time between
getting dressed and leaving for work she would have her breakfast,
feed her cats, and let her dogs out; on her drive to work she would
stop at a corner store and buy a bottle of water; she would arrive
at work around noon, work until 4:00 or 5:00 p.m., and leave for

6

home; on the way home she would stop at the grocery store where her
husband worked to say hello for about 15 minutes; upon arriving
home she would take a pain pill; later in the evening she would
play games on the computer for 30-45 minutes and read for 2-3 hours
before retiring for the evening at 11:00 or 11:30 p.m..

(R.47-51).

When asked what her typical day was like in the summer of
2014, Plaintiff stated that she would rise between 7:00 and 8:00
a.m.

She would then make coffee and take her pain pill.

After the

pain pill would “kick in” she would have breakfast, get dressed and
go to see Dr. Smith, her chiropractor, three days each week.
Typically, she would leave for the chiropractor about 9:40 a.m. and
return to her home about 11:30 a.m.

Upon returning home she would

take one half of a pain pill, have lunch, and then read for 2-3
hours.

Afterward she would nap for the rest of the afternoon.

In

the evening she would watch television for 5-6 hours and retire
around 11:30 p.m.

(R.51-54).

Plaintiff stated that she has been disabled since September
20, 2011 because she is no longer “functional”.

She describes her

pain as intolerable, says that her hands go numb, and says that she
can neither type nor write well anymore.

She stated further that

the pain in her legs drives her insane and her back pain is so
intense she feels like it is on fire.

(R.54-55).

Plaintiff testified that she had not seen an orthopedic
specialist or sought out any other specialist for her carpel tunnel

7

syndrome since September of 2013 when she obtained her medical
assistance card.

She stated that she did not see experts because

many of them don’t accept the medical card.

She testified further

that Dr. Endy is encouraging her to see a neurologist but that, on
the date of her second hearing – some nineteen months after getting
her medical card, she is still looking for a neurologist.
56).

(R.55-

Upon questioning by her attorney, Plaintiff testified that

she has lived alone since her husband died.
her last employment had been as a secretary.

She reaffirmed that
Previously she had

worked for Decker’s Heating and Cooling as a secretary for about
two years.

She stated that she had worked two jobs simultaneously

for much of her life until 2010.

At about that time she began to

experience pain in her low back for which she received a series of
injections.

These injections would help for a time but the pain

would always return.

After having three injections which were at

least temporarily helpful she had no others because she had no
insurance coverage and no means to pay for them.

She acknowledged

that she has been in two auto accidents, one in 2011 and one in
2013, and that litigation is pending with respect to each.

(R.56-

59).
Plaintiff estimated that she could stand or walk for about 1015 minutes before she begins to feel pressure in the small of the
back which soon becomes pain that radiates down into her right leg.
After a while her feet become numb.

8

When she walks she feels

unstable and lists to her left side.

She can sit in place for 20-

30 minutes before she becomes uncomfortable.

She stated that she

sleeps best when she uses sleeping medications, but she tries not
to use them anymore than necessary.

When she doesn’t take the

sleeping medications she doesn’t sleep at all.

She feels tired

during the day whether she uses the sleep medications or not.

Her

most comfortable position is supine with her right leg propped up
on a pillow.

(R.60-62).

Brian Bierley, a vocational expert, also testified.

He

indicated that he had reviewed Plaintiff’s file regarding her work
history and had listened to her testimony.

He stated that he was

familiar with the statutes and regulations regarding vocational
considerations and that he would explain any statement he made that
did not conform to the Dictionary of Occupational Titles (“DOT”).
Mr. Bierley stated that Plaintiff was of “advanced age” with a high
school education.

He explained that Plaintiff’s past work was

secretarial in nature and that it would be classified as
sedentary/skilled.

This occupation requires frequent reaching

forward, handling and fingering.

The “acquired skills” essential

to secretarial work would include operating a keyboard, general
office-type activities, maintaining files, and dealing with the
public.

(R.62-63).

Mr. Bierley also stated that Plaintiff’s work history included
bartending.

Bartending is “light” work as described but “medium”

9

work as performed.
employment.

Bartending is considered semi-skilled

Frequent reaching in all directions, handling,

customer contact and working a cash register are essential tasks of
a bartender.

(R.63-65).

The ALJ asked the VE a hypothetical question in which he was
asked to assume someone the same age and education as the Plaintiff
with similar work experiences.

The VE was asked to further assume

a person who was capable of “light work” and who could work an
eight-hour day taking only “normal breaks”; who had further
limitations such that climbing ramps or stairs could be done only
occasionally; who could not climb ropes, ladders or scaffolds; who
could stoop, kneel, crouch and squat only occasionally, could reach
overhead with the right arm only occasionally, and could not
repetitively handle and finger with her right hand.

The

hypothetical question also assumed only occasional exposure to
extreme cold and never exposure to large vibrating objects or
hazardous machinery.

Assuming these limitations, the VE stated

that the hypothetical person would be capable of performing the
duties of a secretary as actually and customarily performed.

The

VE also stated that a person with the limitations described in the
ALJ’s hypothetical question would also be capable of performing as
a receptionist.

Finally, the VE stated that the hypothetical

person would be capable of performing such light, unskilled jobs as
conveyor line baker worker, laminating machine tender, and

10

furniture rental consultant.

Each of the jobs identified by the VE

exists in significant numbers in the national economy.

(R.66-70).

III. Medical Evidence.
A.

Dr. Deanne Endy.

Dr. Endy treated Plaintiff as her primary care physician for
more than ten years prior to the date of the ALJ’s decision.

Dr.

Endy testified that her treatment of Plaintiff preceded and
continued throughout the time she had both auto accidents alluded
to above.

On October 28, 2011, approximately one month after

Plaintiff’s onset date, Plaintiff’s MRI revealed multi-level
degenerative discs and slight bulges at C4-C5, C5-C6, and C6-C7. At
that time, Plaintiff’s main complaints were neck pain, lateral
upper arm pain with decreased mobility, low back pain, and a
problem with her hands falling asleep.

As early as November of

2013, Plaintiff’s MRI demonstrated severe facet hypertrophy and
left neural foraminal stenosis at C4-C5.

(R.741-742).

On March 6, 2015, Plaintiff had an MRI of her lumbar spine
which showed degeneration and spondylosis at L4-L5 along with
central canal bilateral foraminal stenosis.

(R.743).

One month

earlier (in February of 2015) x-rays of Plaintiff’s lumbar region
revealed a moderate L4-L5 disc narrowing and subluxation consistent
with a Grade 1 spondylolisthesis which the reader interpreted to be
a “progression” compared to unidentified previous studies.

Dr.

Endy stated that Plaintiff’s complaints and symptomology were

11

consistent with the MRI and x-ray studies.

Dr. Endy also noted

that Plaintiff was experiencing, as of April 16, 2015, “ongoing
increased pain levels, which have become unbearable, in the left
neck into the posterior shoulder and lateral shoulder consistent
with C4-C5 left-sided neuro-foraminal stenosis”.

(R.744-745).

Dr.

Endy also noted urine and bowel urgency severe enough that
Plaintiff now wears a pad.

These symptoms could be expected to

result from Plaintiff’s spinal stenosis according to Dr. Endy.
(R.746).
Dr. Endy also stated that she has prescribed Percoset 10/325
six times daily for Plaintiff’s pain.
“moderate”.

She described this dose as

Plaintiff was also prescribed Neurontin to combat neck

spasms without complete relief.

(R.763).

Dr. Endy stated that she

has no doubt that Plaintiff’s symptoms are genuine and that she is
experiencing severe neck pain and low back pain.

(R.764).

Dr. Endy also testified that EMG studies revealed that
Plaintiff is experiencing mild bilateral carpal tunnel syndrome as
of January of 2015.

(R.765).

Dr. Endy related that Plaintiff’s

low back and carpel tunnel symptoms were both present immediately
after her first accident in 2011 and grew worse after her second
accident in 2013.

(R.766).

Dr. Endy opined that by the time of

Plaintiff’s second accident in June of 2013, Plaintiff has been
unable to perform a full day’s work due to her neck and low back
pain, inability to sit for long periods, and difficulty typing.

12

Dr. Endy stated that Plaintiff’s difficulty sleeping also impairs
her ability to work.

Dr. Endy concluded that Plaintiff needs a

surgical intervention to alleviate her pain to the point that she
can perhaps work again at some point.

(R.770-771).

B. Dr. Raymond Dahl.
In May of 2012, approximately eight months after her alleged
onset date, Plaintiff presented to Dr. Dahl, an orthopedic
specialist.

Dr. Dahl saw Plaintiff on referral from Dr. Endy.

Dr.

Dahl noted lumbar pain and a mildly positive straight leg-raising
test.

He also found that Plaintiff exhibited normal gait and

reflexes along with good motor function in all extremities.

Dr.

Dahl ordered a cervical spine MRI that showed disc disease and
stenosis at C5-C6 and C6-C7 and a lumbar spine MRI that revealed
stenosis at L3-L4 and L4-L5.

(R.350-51).

Dr. Dahl then referred Plaintiff to a pain management
specialist who administered three lumbar steroidal injections in
May and June of 2012.

At a July 2012 follow-up appointment with

Dr. Dahl, Plaintiff reported that these injections were helpful.
Dr. Dahl’s physical examination of Plaintiff at this time was
essentially unchanged but for the fact that Plaintiff’s straight
leg-raising test was negative.

Dr. Dahl’s recommendation in July

of 2012 was for no further treatment.
C.

(R.349).

Dr. Hua Yang.

Dr. Yang performed a consultative internal medical examination

13

of Plaintiff for the Board of Disability Determination on May 1,
2014 (some 31 months after Plaintiff’s alleged disability onset
date).

Dr. Yang reported that Plaintiff’s chief complaints were

neck and low back pain.

Plaintiff’s subjective complaints to Dr.

Yang closely mirrored those she had made to Drs. Endy and Dahl.
(R.644).
Dr. Yang noted that Plaintiff appeared to be in no acute
distress and that her gait was normal.

She was able to heel and

toe walk without difficulty and could perform a full squat.

She

was able to rise from the chair and get on and off the examination
table without difficulty.
assistive devices.

Her stance was normal and she used no

(R.645).

Plaintiff did not exhibit any scoliosis or other abnormality
in her thoracic spine.

She did exhibit mildly decreased range of

motion in her left shoulder.
joint deformity.

She displayed no evidence of shoulder

Plaintiff displayed no sensory deficits in her

arms or legs and demonstrated 5/5 strength in all extremities.
With respect to mental status, Plaintiff did not manifest impaired
judgement or significant memory impairment and her affect was
normal.

(R.646).

Dr. Yang diagnosed lower back pain, neck pain,

history of asthma, and history of migraine.

(R.647).

Dr. Yang also completed a Medical Source Statement of Ability
to Do Work-Related Activities Form.

He found that Plaintiff could

frequently lift up to 20 pounds with the left arm and continuously

14

lift up to 20 pounds with the right arm; frequently carry up to ten
pounds with the left arm and continuously carry up to ten pounds
with the right arm; sit six hours in an eight-hour workday; stand
two hours in an eight-hour workday; walk two hours in an eight-hour
workday; continuously use her right hand for all manipulative
activities; frequently use her left hand for all types of reaching
and continuously use her left hand for all other manipulative
activities; continuously operate foot controls; never climb ladders
or scaffolds; continuously climb ramps and stairs; occasionally
balance, stoop, kneel, crouch and crawl; occasionally be exposed to
unprotected heights and moving mechanical parts; continuously
operate a motor vehicle; and never be exposed to humidity and
wetness, dust, odors, fumes, pulmonary irritants, or temperature
extremes; excessive vibration, and very loud noise. (R.648-52).
IV.

The ALJ Decision.
The ALJ’s decision was unfavorable to the Plaintiff.

2 at 18-35).

(Doc. 5-

It included the following significant findings of

fact and conclusions of law:
5.

The claimant has the following severe impairments:
disorders of the spine and mild right-shoulder
tendinitis.

6.

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

15

404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525
and 404.1526).
7.

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in
20 CFR 404.1567(b) except occasional climbing stairs and
ramps and no climbing ropes, scaffolds, poles or ladders.
The claimant can occasionally stoop, kneel, crouch/squat,
and needs to avoid crawling on hands and knees.

The

claimant can occasionally reach overhead with the right
upper extremity.

The claimant can handle and finger with

her right upper extremity, but not repetitively (without
interruption within an eight-hour workday except for
normal breaks) over an eight-hour workday.

The claimant

can sustain occasional exposure to extreme cold.

Due to

possible side effects from medication, must avoid working
with or around hazardous machinery, in high exposed
places, objects or surfaces, and around large objects or
machinery or around large fast-moving machinery on the
ground.
8.

The claimant is capable of performing past relevant work
as a secretary.

This work does not require the

performance of work-related activities precluded by the
claimant’s residual functional capacity.

16

V.

Disability Determination Process.

The Commissioner is required to use a five-step analysis to
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 CFR §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of

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 that 12
months . . . .” 42 U.S.C. § 423(d)(1)(A). The Act further provides that an individual is disabled
only if his physical or mental impairment or impairments are of such
severity that he is not 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).
17

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 the
fourth step of the process when the ALJ found there are jobs that
exist in the national economy that Plaintiff is able to perform.
(R.29-30).
VI. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

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

Substantial evidence

It means such relevant evidence

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

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

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

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
18

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.

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

19

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

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

In Cotter, the Circuit Court clarified that the ALJ must

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

However, the ALJ need not undertake an

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

See, e.g., Knepp v.

“There is no requirement

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

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

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

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

the Cotter doctrine is not implicated.”

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
20

court would have reached different factual conclusions.

Hartranft,

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

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”

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

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

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

See, e.g., Albury v.

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

An ALJ’s

decision can only be reviewed by a court based on the evidence that
was before the ALJ at the time he or she made his or her decision.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
VII. Discussion.
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
21

we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
606 F.2d at 406.

See Dobrowolsky,

Social Security proceedings are not strictly

adversarial, but rather the Social Security Administration provides
an applicant with assistance to prove his claim.

Id.

“These

proceedings are extremely important to the claimants, who are in
real need in most instances and who claim not charity but that
which is rightfully due as provided for in Chapter 7, Subchapter
II, of the Social Security Act.”

Hess v. Secretary of Health,

Education and Welfare, 497 F. 2d 837, 840 (3d Cir. 1974).

As such,

the agency must take extra care in developing an administrative
record and in explicitly weighing all evidence.
F.2d at 406.

Dobrowolsky, 606

Further, the court in Dobrowolsky noted “the cases

demonstrate that, consistent with the legislative purpose, courts
have mandated that leniency be shown in establishing the claimant’s
disability, and that the Secretary’s responsibility to rebut it be
strictly construed.”
B.

Id.

Plaintiff’s Allegations of Error.
Plaintiff alleges that the ALJ’s analysis contains numerous

errors requiring a remand of this case.

We shall consider these in

turn.
1.

Whether the ALJ Erred by Failing to Find that Plaintiff
Met the Criteria in the Agency’s Listing 1.04A?

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Listing 1.04A states:
1.04A.

Disorders of the spine (e.g. herniated nucleus

pulposus, spinal arachnoiditis, spinal stenosis,
osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina) or the
spinal cord with:
A.

Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with
associated muscle weakness) accompanied by sensory
or reflex loss and, if there is involvement of the
lower back, positive straight-leg raising test
(sitting and supine)....

Plaintiff asserts that she meets the requirements of listing
1.04A and, thus, should be awarded DIB benefits.

Plaintiff’s

counsel states that Dr. Endy “...opined, with specific reference to
test results, that Spencer has herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease and facet arthritis.

She further opined that those

conditions result in compromise of a nerve root, including the
spinal cord.

Finally, Dr. Endy stated that there is evidence of

nerve root compression, limitation of motion of the spine, motor
loss and a positive straight leg-raising test.

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As a result, there

is uncontradicted medical evidence, from Spencer’s treating
physician, that she meets the criteria of 1.04A.

(Doc 6 at 5).

The Government disagrees and notes that a claimant seeking to
obtain benefits under a Listing must meet all the requirements of
that Listing and that meeting some of the criteria, no matter how
severe the symptoms may be, does not entitle a claimant to
benefits.

(Doc. 11 at 17) citing Sullivan v. Zebley, 493 U.S. 521,

532 (1990)).

The Government also establishes by reference to the

record that Dr. Endy’s testimony is not, as Plaintiff alleges,
uncontradicted.
Our review of the portions of the record cited by the parties
persuades the Court that the ALJ had a reasonable basis for
concluding that Plaintiff did not satisfy all criteria of Listing
1.04A.

The Government notes that two lumbar spine MRI’s, one in

May of 2012 and another in March of 2015, do not support Dr. Endy’s
characterization of the objective medical testing.

The physicians

who read the MRI’s in question did not identify any herniated discs
or compromised or compressed nerve root involvement at any level.
Testing indicates that Plaintiff does suffer from arthritis,
stenosis, and degenerative disc disease, but that very same testing
does not support the proposition that Plaintiff displays “evidence
of nerve root compression”, the sine qua non for an award of
benefits under Listing 1.04A.

Accordingly, Plaintiff’s allegation

of error on this point must be rejected.

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B.

Whether the ALJ Gave Appropriate Weight to Dr. Endy’s
Medical Opinion?

Plaintiff argues that the ALJ’s decision to give “limited
weight” to the opinion of Dr. Endy, a treating physician, was
inappropriate and error justifying a remand of this case.
Certainly, the opinion of a long-time treating physician like Dr.
Endy is normally entitled to great weight and can be rejected only
on the basis of contradictory medical evidence.
Bowen, 861 F.2d 405 (3d. Cir. 1998).

Frankenfield v.

However, Plaintiff’s argument

is unpersuasive because the ALJ’s assessment of Dr. Endy’s opinion
is not, as Plaintiff asserts, uncontradicted by the opinions of any
other physician.

(Doc. 6 at 7).

As alluded to at page 24 above, MRI and x-ray reports of
record that were interpreted by other physicians did not support
Dr. Endy’s dire view of the Plaintiff’s physical condition.
Significantly, Dr. Yang’s report and his functional capacity
evaluation of the Plaintiff were supportive of the ALJ’s RFC
finding.

Dr. Yang’s evaluation certainly provides a reasonable

medical basis for the ALJ’s conclusion that Plaintiff can perform
“light work” as further modified by numerous additional
restrictions in her RFC finding.

(R.at 25-26).

For this reason,

we must reject Plaintiff’s argument that Dr. Endy’s report was
improperly subordinated to that of Dr. Yang.

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C.

Whether the ALJ Erred by Improperly Evaluating
Plaintiff’s Mental Impairments and Thus Compromised
Her RFC Determination?

Plaintiff contends that her 2011 diagnosis of anxiety and Dr.
Endy’s assessment that she was “markedly limited” in her ability to
maintain concentration, persistence, and pace as of January 19,
2015 was not adequately considered by the ALJ in determining her
RFC.

Plaintiff contends specifically that the AlJ failed to follow

the Agency’s own procedures in this regard as set forth at 20 CFR
404.1520(a).

(Doc. 6 at 8-9).

That procedure requires the Agency

to rate the degree of limitation, inter alia, of the Plaintiff’s
ability to maintain concentration, persistence and pace.

See 20

CFR 40.1520(b)(4).
Defendant points out that to be considered severe Plaintiff’s
impairment must significantly limit her ability to carry out basic
work activities.

Defendant notes further that Dr. Yang observed

Plaintiff to be oriented to all spheres, not delusional, exhibiting
normal affect, and displaying no signs of impaired judgment or
significantly impaired memory.

(Doc. 11 at 24, citing R.646).

Defendant also calls attention to the report of a state agency
evaluator, Dr. Ondis, who reviewed Plaintiff’s treatment records in
May of 2014 and concluded that Plaintiff did not have any medically
determinable mental impairment.

(Doc. 11 at 25, citing R.114).

The ALJ specifically found (R.24) that there was no support in
26

the record that Plaintiff’s non-severe anxiety and depression
resulted “in more than a minimal degree of limitation in the
ability to perform basic work tasks.”

Having reviewed the portions

of the record cited by the parties, the Court determines that,
given the extremely conservative treatment that Dr. Endy afforded
Plaintiff for her anxiety and the absence of any indication that
Plaintiff was ever referred to a mental health specialist for that
condition, the ALJ’s finding in this regard is not patently
unreasonable.

Still, the ALJ’s failure to include some mention of

Plaintiff’s difficulty with concentration, persistence, and pace in
her hypothetical question to the vocational expert (after
acknowledging the existence of some difficulty) is problematic.

An

ALJ’s hypothetical question must include all of a claimant’s
impairments both severe and non-severe.

Ramirez v. Barnhart, 372

F.3d 546, 552 (3d. Cir. 2004); See also Chrupcala v. Heckler, 829
F.2d 1269, 1276 (3d. Cir. 1987).

Consequently, this case must be

remanded for further refinement of the Plaintiff’s RFC in light of
all her impairments be they severe or non-severe.
D.

Whether the ALJ’s Conclusion that the Plaintiff’s
Complaints Exaggerated the Level and Intensity of Her
Pain was Adequately Explained?

Plaintiff asserts that the ALJ’s rationale for finding that
her medically determinable impairments do not cause pain as
intense, persistent, and limiting as alleged was inadequate.
27

The

ALJ provided her reasons for this conclusion including: (1) MRI’s
of Plaintiff’s lumbar and cervical spine revealed only mild
narrowing at L4-L5 and moderate stenosis at C4-C5; (2) various
medical reports indicated that Plaintiff had normal posture and
gait, good sensation bilaterally in all extremities, that she
presented in no acute distress at various times, and that she
displayed 5/5 strength in all extremities on examination in May of
2014 - - some 31 months after her alleged onset date; and (3)
plaintiff has, apart from chiropractic treatments that have
afforded her some relief, received very conservative and limited
treatment since her alleged onset date more than five years ago.
(R.at 26-28).
Having read the ALJ’s decision and scrutinized the record, we
conclude that the ALJ’s reservations about the level and
persistence of Plaintiff’s pain are reasonably explained in her
decision.

The Court finds it particularly significant that

Plaintiff has not seen a specialist since her sessions with a pain
management specialist in the summer of 2012.

This is even more

significant given Dr. Raymond Dahl’s assessment in July of 2012
that epidural injections Plaintiff had received resulted in marked
improvement in her condition.

(R.349-351).

Plaintiff’s election

to treat in such a conservative manner may certainly be regarded as
probative that her symptoms may not be as severe as she contends.
Mason v. Shalala, 994 F.2d 1058, 1068 (3d. Cir. 1993).

28

Accordingly, we find that the ALJ’s rationale for not fully
crediting Plaintiff’s complaints as to the level, persistence, and
limitations of her pain was supported by the requisite substantial
evidence.
E.

Whether the Opinion Testimony of the Vocational Expert
was Flawed Because it Was Given in Response to an
Incomplete Hypothetical Question?

The Court has already concluded that the ALJ’s failure to
include mention of Plaintiff’s difficulty with concentration,
persistence, and pace was inappropriate in our discussion of
Subsection C above.
VIII.

Conclusion.

For the reasons discussed in this Memorandum, this case will
be remanded to the Commissioner for further proceedings to
establish Plaintiff’s appropriate residual functional capacity and
to allow expert vocational testimony on whether she retains the
capacity to maintain employment.
S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court
Dated: March 9, 2017

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