Dillow-Lopez v. Colvin
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 3/21/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
KELLY J. DILLOW-LOPEZ,
Civil No. 3:16-1442
NANCY A. BERRYHILL,
Acting Commissioner of
The above-captioned action is one seeking review of a decision of the
Acting Commissioner of Social Security (“Commissioner”), denying Plaintiff
Kelly J. Dillow-Lopez’s (“Dillow-Lopez”) application for Social Security
Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”) under Title II and Title XVI. For the reasons set forth below, we will
vacate the decision of the Commissioner and remand the case for further
Disability insurance benefits are paid to an individual if that individual is
Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
substituted for Carolyn W. Colvin, Acting Commissioner of Social Security as
the defendant in this suit
disabled and “insured”; that is, the individual has worked long enough and
paid social security taxes. The last date that a claimant meets the
requirements of being insured is commonly referred to as the “date last
insured.” It is undisputed that Plaintiff met the insured status requirements of
the Social Security Act through December 31, 2013. (Tr. 18).2
Plaintiff was born on December 3, 1963 (Tr. 29, 46). Plaintiff has her
GED (Tr. 47), and has past work experience as a cashier and sales
associate. (Tr. 28, 162). Plaintiff has testified that she stopped working in
February 2010 after a slip and fall in her then employer’s parking lot, resulting
in lumbar spine pain and nerve damage to her left leg. (Tr. 47).3 She suffers
from the following severe impairments: disc herniation at L4-5; obesity;
anxiety disorder; panic disorder; generalized anxiety disorder; major
(cardiovascular disease). (Tr. 19; Doc. 15, Ptf.’s Br., at 2).
Plaintiff protectively filed for DIB on June 3, 2013, and SSI on June 11,
2013, alleging disability beginning February 10, 2010. (Tr. 16). These claims
were initially denied on September 4, 2013. (Id.). Plaintiff requested a hearing
before the Administrative Law Judge (“ALJ”) Office of Disability and
References to “Tr. __” are to pages of the administrative record filed
by the Defendant as part of the Answer (Docs. 11 and 12) on September 21,
Plaintiff received a worker’s compensation settlement in 2012. (Tr. 47).
Adjudication and Review of the Social Security Administration, and one was
held on January 12, 2015. (Id.). At the hearing, Plaintiff was represented by
counsel and a vocational expert testified. (Id.).
On February 6, 2015, the ALJ issued a decision denying Plaintiff’s
applications. (Tr. 16-30). On March 25, 2015, Plaintiff filed a request for
review with the Appeals Council. (Tr. 12). The Appeals Council denied
Plaintiff’s request for review on May 12, 2016. (Tr. 1-7). Thus, the ALJ’s
decision stood as the final decision of the Commissioner.
Thereafter, Plaintiff filed a complaint in this Court on July 12, 2016.
(Doc. 1). The Commissioner filed an answer on September 21, 2016. (Doc.
11). After supporting and opposing briefs were submitted (Docs. 15, 18, 19),
the appeal became ripe for disposition.
II. 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. Comm’r of
Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007); Johnson v. Comm’r of Soc. Sec.,
529 F.3d 198, 200 (3d Cir. 2008). However, our review of the Commissioner’s
findings of fact pursuant to 42 U.S.C. §405(g) is to determine whether those
findings are supported by “substantial evidence.” Id. The factual findings of
the Commissioner, “if supported by substantial evidence, shall be conclusive
. . . .” 42 U.S.C. §405(g). “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.”
Johnson, 529 F.3d at 200 (3d Cir. 2008) (quoting Hartranft v. Apfel, 181 F.3d
358, 360 (3d Cir. 1999)) (internal quotations and citations omitted).
Substantial evidence has been described as more than a mere scintilla of
evidence but less than a preponderance. Brown v. Bowen, 845 F.2d 1211,
1213 (3d Cir. 1988). “It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Plummer v. Apfel, 186
F.3d 422, 427 (3d Cir. 1999) (citing Ventura v. Shalala, 55 F.3d 900, 901 (3d
Cir. 1995)) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
citations omitted)). The Court of Appeals for the Third Circuit has stated,
[O]ur 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 [Commissioner] 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.
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citing Kent v. Schweiker,
710 F.2d 110, 114 (3d Cir. 1983); Gilliland v. Heckler, 786 F.2d 178, 183 (3d
Cir. 1986)). Therefore, a court reviewing the decision of the Commissioner
must scrutinize the record as a whole. Id. (citing Smith v. Califano, 637 F.2d
968, 970 (3d Cir. 1981)).
III. SEQUENTIAL EVALUATION PROCESS
The plaintiff must establish that there is some “medically determinable
basis for an impairment that prevents him from engaging in any substantial
gainful activity for a statutory twelve-month period.” Fargnoli v. Massanari, 247
F.3d 34, 38-39 (3d Cir. 2001) (quoting Plummer, 186 F.3d at 427) (internal
quotations omitted). “A claimant is considered unable to engage in any
substantial gainful activity ‘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 . . . .’” Fargnoli, 247 F.3d at 39 (quoting 42 U.S.C.
§423(d)(2)(A)). The Commissioner follows a five-step inquiry pursuant to 20
C.F.R. §404.1520 to determine whether the claimant is disabled. In Plummer,
the Third Circuit set out the five-steps:
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful activity. 20
C.F.R. § [404.]1520(a). If a claimant is found to be engaged in
substantial activity, the disability claim will be denied. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987) . . . . In step two, the
Commissioner must determine whether the claimant is suffering
from a severe impairment. 20 C.F.R. §404.1520(c). If the claimant
fails to show that her impairments are “severe,” she is ineligible
for disability benefits.
In step three, the Commissioner compares the medical evidence
of the claimant’s impairment to a list of impairments presumed
severe enough to preclude any gainful work. 20 C.F.R.
§404.1520(d). If a claimant does not suffer from a listed
impairment or its equivalent, the analysis proceeds to steps four
and five. Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to perform her
past relevant work. 20 C.F.R. §404.1520(d). The claimant bears
the burden of demonstrating an inability to return to her past
relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994).
If the claimant is unable to resume her former occupation, the
evaluation moves to the final step. At this stage, the burden of
production shifts to the Commissioner, who must demonstrate the
claimant is capable of performing other available work in order to
deny a claim of disability. 20 C.F.R. §404.1520(f). The ALJ must
show there are other jobs existing in significant numbers in the
national economy which the claimant can perform, consistent with
her medical impairments, age, education, past work experience,
and residual functional capacity. The ALJ must analyze the
cumulative effect of all the claimant’s impairments in determining
whether she is capable of performing work and is not disabled.
See 20 C.F.R. §404.1523. The ALJ will often seek the assistance
of a vocational expert at this fifth step. See, [sic] Podedworny v.
Harris, 745 F.2d 210, 218 (3d Cir. 1984).
Plummer, 186 F.3d at 428.
The ALJ went through each step of the sequential evaluation process.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since February 10, 2010, the alleged onset date. (Tr. 18). At step two,
the ALJ found that Plaintiff had the following severe impairments: disc
herniation at L4-5; obesity; anxiety disorder; panic disorder; generalized
anxiety disorder; major depressive disorder; and non-ST elevation myocardial
infraction (cardiovascular disease). (Tr. 19). At step three, the ALJ found that
Plaintiff’s impairments did not meet or equal a listed impairment. (Id.). The
ALJ found at step four that Plaintiff had the residual functional capacity
(“RFC”) to perform:
a range of light work as defined in 20 CFR
occasionally stoop, crouch, crawl, kneel, and
climb, but no ladders, ropes, or scaffolds. She
can frequently balance. She should avoid
concentrated exposure to vibrations and
hazards, including moving machinery and
unprotected heights. She can do simple, routine
tasks, but as of April 2011, no complex tasks, in
a low stress work environment, defined as
occasional decision-making and occasional
changes in the work setting. She can have
occasional interaction with the public, coworkers, and supervisors.
At step five, the ALJ found that there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform. (Tr. 29).
Plaintiff appeals the ALJ’s determination on two grounds: (1) the ALJ
erred in assessing the medical opinion evidence; and (2) the ALJ erred in
assessing Plaintiff’s RFC. The Court notes that Plaintiff does not raise any
argument as to her alleged mental impairments, only her alleged physical
impairments. Accordingly, only those issues raised by Plaintiff will be
Medical Opinion Evidence
We first address Plaintiff’s contention that the ALJ erred in assessing
the medical opinion evidence. Specifically, Plaintiff argues that the ALJ did not
properly assess the medical opinion evidence of her three treating physicians,
assigning less than great weight to each.
The regulations set forth at 20 C.F.R. §404.1527(a)(2) and
§416.927(a)(2), define medical opinions as “statements from physicians and
psychologists or other acceptable medical sources that reflect judgments
about the nature and severity of [a claimant’s] impairment(s), including [a
claimant’s] symptoms, diagnosis and prognosis, what [a claimant] can still do
despite impairment(s), and [a claimant’s] physical or mental restrictions.”
Regardless of its source, the ALJ is required to evaluate every medical
opinion received. 20 C.F.R §404.1527(c) and §416.927(c).
We begin our analysis with the basic tenet - where the ALJ finds that no
treating source opinion is entitled to controlling weight, as in the instant case,
the regulations provide that the weight of all non-controlling opinions by
treating, non-treating, and non-examining medical sources should be
evaluated based on certain factors. Those factors include the examining
relationship, the length of the treatment relationship and frequency of visits,
nature and extent of the treatment relationship, whether the medical source
supports the opinion with medical evidence, whether the opinion is consistent
with the record as a whole, and the medical source’s specialization. 20 C.F.R.
§404.1527(c)(1-5). In addition, the ALJ should consider any other factors that
tend to support or contradict the opinion that were brought to her attention,
including “the extent to which an acceptable medical source is familiar with
the other information in [the] case record.” 20 C.F.R. § 404.1527(c)(6). See
Markoch v. Colvin, Civ. No. 14-cv-00780, 2015 WL 2374260, at *6 (M.D. Pa.
May 18, 2015).
Additionally, the ALJ must consider all of the relevant evidence and give
a clear explanation to support his or her findings. Fargnoli v. Massanari, 247
F.3d 34, 40-41 (3d Cir. 2001) (quoting Burnett v. Comm’r of Soc. Sec. Admin.,
220 F.3d 112, 121 (3d Cir. 2000)). If the ALJ discounts certain evidence, [s]he
must give some indication of the reasons for discounting that evidence.
Fargnoli, 247 F.3d at 43. While the ALJ may choose whom to credit in her
analysis, she “cannot reject evidence for no reason or for the wrong reason.”
Morales v. Apfel, 225 F.3d 310, 316-18 (3d Cir. 2000). The ALJ has the duty
to adequately explain the evidence that she rejects or to which she affords
lesser weight. Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 505-06 (3d Cir.
2009) (holding that because the ALJ did not provide an adequate explanation
for the weight he gave to several medical opinions, remand was warranted).
“The ALJ's explanation must be sufficient enough to permit the court to
conduct a meaningful review.” Morales v. Colvin, Civ. No. 14-cv-2330, 2016
WL 907743, at *8–9 (M.D. Pa. Mar. 2, 2016) (quoting In re Moore v. Comm’r
of Soc. Sec., Civ. No. 11-3611, 2012 WL 2958243, at *2 (D.N.J. July 19,
2012) (citing Burnette v. Comm’r of Soc. Sec., 202 F.3d 112, 119-20 (3d Cir.
The record in this case reveals numerous medical opinions offered by
treating, non-treating, and non-examining physicians. Of all the medical
opinions offered, the ALJ afforded the most weight, or “great” weight, to Dr.
Amir Fayyazi, an orthopedic surgeon that examined Plaintiff in connection
with her worker’s compensation claim, and Dr. Sharon Wander, a consulting
physician for the State Agency who reviewed Plaintiff’s medical records. (Tr.
26, 27). The remaining medical opinions authored by Plaintiff’s treating
physicians, Dr. Emmanuel Jacob, Dr. Albert Janerich, and Dr. Robert
Dompkosky, were all afforded “little” weight by the ALJ. (Tr. 26-28).
Dr. Jacob has been treating Plaintiff since February 23, 2010 for low
back pain and pain in the left hip down to her left lower limb. (Tr. 485-487). On
initial examination, Dr. Jacob observed an antalgic gait as well as tenderness
along the L4, L5-S1 segment and the left sacroiliac joint, and positive straight
leg elevation on the left side. (Tr. 486). Dr. Jacob assessed Plaintiff with a
compression fracture of the lumbar spine, probable lumbar disc injury, and
bruising of the left hip and lumbosacral and coccygeal bones. (Id.). Dr. Jacob
further opined that Plaintiff was temporarily totally disabled and not able to
return to work. (Tr. 487).
In the course of treating Plaintiff, Dr. Jacob obtained an x-ray of her left
hip that showed no fracture (Tr. 484), a March 4, 2010 MRI of her lumbar
spine that showed a mild central disc herniation at the L5-S1 segment, with
mild central canal stenosis and degenerative flattening of the disc with
reactive marrow changes around the endplates, and an electromyography
(EMG)4 that showed lumbar radiculopathy, left L5 roots and no
electrodiagnostic findings of diffuse neuropathy or myopathy. (Tr. 301, 480,
483). A second MRI of Plaintiff’s lumbar spine, performed on April 27, 2011,
continued to show a L4-5 disc herniations with neuroforaminal stenosis, and
a straightening of the lumbar lordotic curve which is indicative of muscle
spasm. (Tr. 302-03, 406). Throughout his treatment of Plaintiff, Dr. Jacob
noted her continued complaints of low back and limb pain, and muscle
spasm. (Tr. 372-488). Dr. Jacob helped treat Plaintiff’s symptoms with some
relief with bio-freeze and acupuncture. (Id.). During a July 21, 2010 deposition
in connection with Plaintiff’s worker’s compensation case, Dr. Jacob testified
An EMG is used to assess nerve damage.
that Plaintiff could not work in any capacity, but if she improved and
progressed, she could work with some type of restrictions in six months. (Tr.
In connection with Plaintiff’s worker’s compensation case, Dr. Amir H.
Fayazzi, a non-treating, examining physician, examined Plaintiff on two
occasions: July 22, 2010 and April 25, 2011. (Tr. 780-86). On examination,
Dr. Fayyazi noted that Plaintiff had discomfort and decreased range of motion
in her lumbar spine, that she had a normal gait, and could heel and toe walk
and stand on one leg. (Tr. 782). Dr. Fayyazi concluded that Plaintiff suffered
from disc herniation and degenerative disc disease at L4-L5. (Tr. 784). Dr.
Fayyazi further noted that Plaintiff has stopped undergoing physical therapy
after six months due to it aggravating her symptoms. (Tr. 780). He opined in
both a letter and at a deposition, where he testified on behalf of Plaintiff’s
former employer, that she has reached “maximum medical improvement” from
her condition. (Tr. 153, 784). He further stated that her symptomatology
appears to be non-physiological, and her complaints not valid. (Id.).5 Dr.
Fayyazi concluded that he would recommend no further treatment, including
the acupuncture treatment, and that Plaintiff could return to work on light duty
The Worker’s Compensation Judge noted the questionable validity of
Dr. Fayyazi’s opinions since he disregarded Plaintiff’s symptoms and
dismissed them as symptom exaggeration. Specifically, Dr. Fayyazi opined
that Plaintiff was not suffering from any symptoms from her L4-5 disc
herniation. (Tr. 153).
restrictions. (Id.). Such restrictions include alternating sitting and standing and
walking and driving for 5 to 8 hours in an 8 hour workday. (Tr. 153, 255-57).
Dr. Sharon A. Wander, a non-examining medical source, reviewed the
record evidence on July 22, 2013, and completed a Physical Residual
Functional Capacity Assessment. (Tr. 79-81). She opined that Plaintiff was
capable of standing/walking for 6 hours in an 8 hour day, and could sit for 6
hours in an 8 hour day. (Id.). She further concluded that Plaintiff could
occasionally lift and/or carry 20 pounds and could frequently lift/carry up to 10
pounds. (Tr. 79).
Plaintiff also treated with treating physician, Dr. Albert Janerich and his
physician assistant, Elaine Lacey, from April 2013 through December 2015,
for pain management. (Tr. 658-70). On initial examination on April 24, 2013,
Plaintiff was observed as having a restricted range of motion of her lumbar
spine; mild left sacroiliac joint tenderness; able to go from sit to stand and
stand to sit independently; paralumbar spasm; unable to walk on heels and
toes because of pain; and had a positive straight leg raise bilaterally. (Tr.
660). Dr. Janerich’s longitudinal treatment records reflect Plaintiff’s ongoing
“chronic low back pain,” the cause of which relates to degenerative joint and
degenerative disc disease with radiculopathy. (Tr. 658-70). Dr. Janerich’s
notes also show that Plaintiff remains obese, with spasm, and a restricted
range of motion. (Id.). In addition to her pain medications, Dr. Janerich also
placed her on a TENS unit. (Tr. 662). From May to July, 2014, Plaintiff
complained of increased lower back and leg pain. (Tr. 664-66). At her July
2014 examination, she was diagnosed with lumbosacral strain/sprain,
discogenic disease, and muscle spasm. (Tr. 665). Dr. Janerich’s notes further
indicate that her lower back pain relates to discogenic disease with a
documented radiculopathy as evidenced on her EMG. (Tr. 664). Dr. Janerich
also provided a Physical Capacities Evaluation on January 6, 2015, opining
that Plaintiff could occasionally lift/carry up to 10 pounds, and could sit for 3
hours, stand for 1 hour, and walk for 1 hour total in an 8 hour workday. (Tr.
Finally, there are records from Plaintiff’s treating physician, Dr. Robert
Dompkosky, from August 2013 through December 2014. (Tr. 697-779). The
majority of Dr. Dompkosky’s treatment notes address Plaintiff’s obesity, and
chest, migraine, and anxiety complaints. (Id.). Dr. Dompkosky’s notes also
reflect that Plaintiff reported cervical pain and mild diffuse left wrist, and neck
pain. (Tr. 712, 722, 727, 732, 737, 742, 747-48, 752, 757-58, 767, 773-74,
777-78). Dr. Dompkosky completed a Physical Capacities Evaluation form on
December 17, 2014, opining that Plaintiff could sit for 1 hour in an 8 hour
workday, stand for 2 hours, and walk for 1 hour. (Tr. 688). He also provided
that Plaintiff could occasionally lift and carry up to 10 pounds, and frequently
lift and carry up to 5 pounds. (Id.).
In her decision, the ALJ explained that she accorded “little” weight to the
medical opinions of Plaintiff’s three treating physicians for the following
reasons. With regard to Dr. Jacob, the ALJ provided that: his opinion that
Plaintiff was temporarily totally disabled was without support from the
objective findings of record, including Dr. Jacob’s own findings; there is a lack
of disability statements and specificity in his treatment records; and his
opinion as to her status of “disabled” is one reserved to the Commissioner.
(Tr. 27). With regard to Dr. Janerich, the ALJ stated: there is nothing in the
record to support such great limitations of less than sedentary exertion,
including Dr. Janerich’s own objective findings.(Tr. 28). Finally, with regard to
Plaintiff’s primary care physician, Dr. Dompkosky, the ALJ noted that there is
nothing in the record to support such great limitations, including Dr.
Dompkosky’s own objective findings. (Id.).
Instead, the ALJ chose to accord “great” weight to Dr. Fayyazi’s opinion,
rendered in a deposition for Plaintiff’s worker’s compensation case on March
14, 2012. (Tr. 27). Specifically, the ALJ accorded great weight to Dr. Fayyazi’s
opinion that Plaintiff is capable of a range of light work with no climbing of
ladders, occasional climbing of stairs, and occasional kneeling. (Id.). The ALJ
reasoned that the limitations on ladders, stairs and kneeling is supported by
the objective examinations from Plaintiff’s treating providers. (Id.). However,
the ALJ gave limited weight to Dr. Fayyazi’s opinion that she is limited
occasionally to bending at the waist, squatting at the knees, reaching above
the shoulder, and using feet for foot controls, since the ALJ found that these
limitations are entirely without support from the evidence. (Id.).
Finally, the ALJ accorded “great” weight to the non-examining State
Agency physician, Dr. Wander’s opinion. Dr. Wander opined that Plaintiff is
ladders/ropes/scaffolds, occasional stooping, and frequent kneeling,
crouching, and crawling. (Tr. 26). Dr. Wander further noted that Plaintiff would
need to avoid concentrated exposure to fumes, odors, dusts, gases, and poor
ventilation. (Id.). However, while she gave “great” weight to this opinion, the
ALJ found that the evidence supports a finding that Plaintiff could never climb
ladders/ropes/scaffolds and that she could only occasionally kneel, crouch,
and crawl. (Id.). The ALJ further provided that she found no evidence to
support Dr. Wander’s opinion that Plaintiff would need to avoid concentrated
exposure to fumes, odors, dusts, gases, and poor ventilation. (Id.). Despite
this, the ALJ still afforded “great” weight to the “overall” opinion of Dr. Wander.
Based upon the evidence above, the ALJ’s decision to accord “limited”
weight to the three treating physicians and “great” weight to the non-treating
and non-examining physician is without evidentiary support, and is thus not
supported by substantial evidence. While Defendant asserts that the ALJ
properly assigned weight to the medical opinions, citing the deferential nature
of substantial evidence review, “[a] cardinal principle guiding disability
eligibility determinations is that the ALJ accord treating physicians’ reports
great weight.” Morales, 225 F.3d at 317. In order to resolve an evidentiary
conflict against a treating source medical opinion, the ALJ must provide
“good” reasons. See 20 C.F.R. § 404.1527(c)(2). “Good reasons” must be
higher than substantial evidence, otherwise, the “good reasons” language
would be superfluous. See Bilski v. Kappas, 561 U.S. 593, 607-08 (2010)
(internal citations omitted) (Court may not interpret “any statutory provision in
a manner that would render another provision superfluous.”). While the ALJ
may choose whom to credit in her analysis, she “cannot reject evidence for
no reason or for the wrong reason.” Morales, 225 F.3d at 316-18.
Here, the ALJ noted that Plaintiff’s RFC “is supported by and consistent
with the objective medical evidence, including diagnostic testing and
measurable findings in clinical examination.” (Tr. 28). However, the ALJ does
not discuss the significant evidence that supports the opinions of the treating
physicians regarding Plaintiff’s course of treatment, the consistency of her
claims, or how the diagnostic testing fails to support her claim. The treating
source records show Plaintiff’s ongoing “chronic low back pain,” the cause of
which relates to degenerative joint and degenerative disc disease with
radiculopathy, throughout their longitudinal treatment records. (Tr. 372-488,
658-70). Also observed by the treating physicians is Plaintiff’s positive straight
leg raises, muscle spasms, and inability to walk on heels and toes because
of pain. (Tr. 486, 660). These records are supported by diagnostic tests, relied
upon by her treating physicians in the form of x-rays, MRI’s, and an EMG.
Plaintiff’s complaints of increased lower back and leg pain were also
documented by her treating physicians from May to July, 2014. (Tr. 664-66,
In contrast, Dr. Fayyazi opined that Plaintiff was not suffering from any
symptoms from her L4-5 disc herniation, that there is no evidence of muscle
spasm, that she is able to walk on her toes and heels, and that there is no
evidence of radiculopathy. (Tr. 782, 784). Despite this sharp contrasted
opinion from that of Plaintiff’s treating physicians, the ALJ accorded Dr.
Fayyazi’s opinion “great” weight that Plaintiff is able to perform a range of light
work. The ALJ has not addressed and explained the significant evidence that
actually supports the treating physician’s opinions. Accordingly, the ALJ’s
cursory analysis of the evidence precludes the Court from concluding that she
properly found that the evidence did not support the treating physician’s
opinions. See Ray v. Colvin, Civ. No. 13-CV-0073, 2014 WL 1371585, at *21
(M.D. Pa. Apr. 8, 2014) (“The cursory manner in which the ALJ rejected Dr.
Jacob’s opinions runs afoul of the regulation’s requirement to “give good
reasons” for not crediting the opinion of a treating source upon consideration
of the factors listed above. While there may be sufficient evidence in the
record to support the ALJ’s ultimate decision that Plaintiff was not under a
disability, and, thus, the same outcome may result from remand, the court
cannot excuse the denial of a mandatory procedural protection on that
basis”); Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (“the Secretary must
“explicitly” weigh all relevant, probative and available evidence. The Secretary
must provide some explanation for a rejection of probative evidence which
would suggest a contrary disposition. The Secretary may properly accept
some parts of the medical evidence and reject other parts, but she must
consider all the evidence and give some reasons for discounting the evidence
she rejects”) (citing Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.
Similarly, the ALJ afforded “great” weight to Dr. Wander’s July 22, 2013
opinion that Plaintiff is capable of light work. However, the non-treating, nonexamining source reviewed an incomplete case record. Specifically, Dr.
Wander’s review of the medical records as of July 22, 2013 did not include
any of Dr. Janerich’s notes from May to July, 2014, wherein Plaintiff
complained of increased lower back and leg pain (Tr. 664-66), or her July
2014 examination, wherein she was diagnosed with lumbosacral strain/sprain,
discogenic disease, and muscle spasm. (Tr. 665). See Brown v. Astrue, 649
F.3d 193 (3d Cir. 2011); Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352
The Court also notes that Dr. Fayyazi testified on behalf of the
defendant in Plaintiff’s worker’s compensation claim (Tr. 27, 153), and that
“social security claims and worker’s compensation claims operate under
“different standards for determining disability” and therefore, an opinion
rendered in one proceeding is of “limited significance” in the other”) Hartranft
v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999); see also 20 C.F.R. §404.1504 (“A
decision by any nongovernmental agency or any other governmental agency
about whether you are disabled ... is based on its rules and is not our decision
about whether you are disabled ... [w]e must make a disability ...
determination based on social security law. Therefore, a determination made
by another agency ... is not binding....”)
(3d Cir. 2008), 554 F.3d 352 (holding that three non-treating opinions were
not sufficient to reject a treating source medical opinion because they were
“perfunctory” and omitted significant objective findings promulgated after the
non-treating opinions were issued); Kreiser v. Colvin, Civ. No. 15-CV-1603,
2016 WL 704957, at *13 (M.D. Pa. Feb. 23, 2016 (noting that expert
“reviewed records ... through November 2012" and “the record does not
appear to contain ... treatment records which post date [the expert’s]
Moreover, it appears that the ALJ engaged in a lay evaluation of the
medical evidence by confusingly affording Dr. Wander’s opinion “great”
weight, yet ostensibly disagreeing with the same opinion she afforded great
weight to. See Burns v. Colvin, 156 F. Supp. 3d 579, 595 (M.D. Pa. Jan. 13,
2016) (An “ALJ may not reject a supported medical opinion based on the
ALJ’s lay evaluation of medical evidence.”). For example, the ALJ provides
that great weight is given to Dr. Wander’s Physical Residual Functional
Capacity assessment opining that Plaintiff is limited to a range of light work
with occasional climbing of ladders/ropes/scaffolds, occasional stooping, and
frequent kneeling, crouching, and crawling, and also that Plaintiff would need
to avoid concentrated exposure to fumes, odors, dusts, gases, and poor
ventilation. The ALJ then provides that she “generally agrees with this
consultant’s opinion”; however, then proceeds to state that she finds that
Plaintiff could “never climb ladders/ropes/scaffolds and that she could only
occasionally kneel, crouch, and crawl.” (Tr. 26). Even more, the ALJ
concludes that she finds no evidence to support Dr. Wander’s opinion that
Plaintiff would need to avoid concentrated exposure to fumes, odors, dusts,
gases, and poor ventilation. Consequently, the ALJ’s decision cannot be said
to be supported by substantial evidence.
Given the foregoing, substantial evidence does not support the ALJ’s
medical opinion evidence assessment. Pursuant to 42 U.S.C. §405(g), the
court will vacate the Commissioner of Social Security’s decision and remand
this case for further proceedings. We will decline to address Plaintiff’s other
allegation of error, as remand may produce a different result on this claim,
making discussion of it 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. 10-1096,
2011 WL 1456166, at *7 (W.D. Pa. Apr. 14, 2011). An appropriate order
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: March 21, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-1442-01.wpd
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