Rudy v. Colvin

Filing 21

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 4/5/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID RUDY,

:
:CIVIL ACTION NO. 3:16-CV-1687
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,1
:
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 XIV of the Act.

(Doc. 1.)

Plaintiff filed applications for benefits on October 22, 2012,
alleging a disability onset date of January 15, 2011.

(R. 613.)

After Plaintiff appealed the initial denial of the claims, a
hearing was held on June 23, 2014, and Administrative Law Judge
(“ALJ”) Sharon Zanotto issued her Decision on August 6, 2014,

1

Nancy A. Berryhill is now the Acting Commissioner of Social
Security. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure which addresses the substitution of parties when a public
officer is replaced, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this
suit. Fed. R. Civ. P. 25(d). No further action needs to be taken
to continue this suit by reason of the last sentence of section
205(g) of the Social Security Act, 42 U.S.C. § 405(g), which states
that “[a]ny action instituted in accordance with this subsection
shall survive notwithstanding any change in the person occupying
the office of Commissioner of Social Security or any vacancy in
such office.”

concluding that Plaintiff had not been under a disability at any
time from July 12, 2013, the amended onset date, to the date of the
decision.

(R. 620.)

Plaintiff requested review of the ALJ’s

decision which the Appeals Council denied on June 16, 2016.
7, 522-25.)

(R. 1-

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

the Acting Commissioner.

(R. 1.)

Plaintiff filed this action on August 12, 2016. (Doc. 1),
asserting in his supporting brief that the Acting Commissioner’s
determination should be reversed or remanded for the following
reasons: 1) the ALJ erred in failing to consider Plaintiff’s
chronic kidney disease, cervicalgia, hypertension, hyperlipidemia,
and migraines as severe impairments; 2) the ALJ did not properly
weigh opinion evidence; 3) the ALJ failed to construct a legally
sufficient RFC; 4) the ALJ erred in finding Plaintiff was capable
of performing past relevant work; and 5) the ALJ erred in failing
to find Plaintiff met the provisions of the Medical Vocational
Guidelines.

(Doc. 13 at 9.)

After careful review of the record

and the parties’ filings, the Court concludes this appeal is
properly granted.
I. Background
Plaintiff was born on February 2, 1957, and was fifty-five
years and eleven months old at the time of his onset.
Doc. 13 at 2.)

(R. 633;

He has a high school education and past relevant

2

work as a fast food worker and cashier.2
A.

(Id.)

Medical Evidence
Prior to the alleged onset date of July 12, 2013, Plaintiff’s

medical history included a stroke in 2009 (R. 965), and a heart
attack requiring stent placement in 2011 (R. 956).
had hypertension, and chronic kidney disease.

Plaintiff also

(R. 965, 1043.)

In

April 2011 he reported to his primary care physician, James Sioma,
M.D., that he was having back pain for which he had nephrology
follow-up and a diagnosis of chronic kidney disease, stage 3.
936, 1025-45.)

(R.

In May of 2012, Plaintiff saw Dr. Sioma for

continuing problems with lumbar muscle spasms which were diagnosed
as lumbago.

(R. 927-28.) In August of 2012 he reported headaches,

dizziness, lightheadedness, and nausea with some vomiting, and a
cervical spine x-ray showed mild cervical degenerative changes,
preserved anterior cervical lordosis, and calcified plaque in the
bilateral carotid bifurcations.

(R. 863, 893.)

From March 2012

through May 2013 Plaintiff often reported chest pain and shortness
of breath to Dr. Sioma and other providers.
1271, 1274-75.)

(R. 921-22, 929, 1224,

In May 2013 Plaintiff had another heart attack and

stent placement, after which he continued to report chest pain and
EKGs remained abnormal.

(R. 1201, 1205-07, 1266-67, 1403.)

June 2013, Plaintiff complained of back pain.

2

In

(R. 1156.)

Plaintiff had been incarcerated for ninety days beginning
in Mary 2012 and was again incarcerated from June 5, 2013, to
September 11, 2013. (R. 634.)
3

On July 12, 2013–-the amended disability onset date–-Plaintiff
was admitted to York Hospital with complaints of lightheadedness,
bilateral blurred vision, and headache.

(R. 1369-72.)

Brain

imaging studies confirmed a diagnosis of vertebral basilar
insufficiency, migraine headaches, transient ischemic attacks,
basilar artery occlusion and vertebral artery occulsions.
1371.)

(R.

On the same date, Plaintiff had an EKG due to complaints of

dizziness and vomiting which showed “nonsepcific ST&T changes” and
ischemia could not be excluded.

(R. 1208-09.)

Nuerologist Fengium

Jiang, M.D., prescribed Tramadol for headaches, discussed the
option of intracerebral arterial intervention which Plaintiff
declined, and recommended follow up with an outpatient neurologist.
(R. 1393.)

Plaintiff was discharged after four days with

medications including Tylenol, aspirin, Plavix, isosorbide,
metoprolol, simvastin, and Ultram.

(R. 1371.)

Following his hospitalization, Plaintiff continued to have
problems with headaches and dizziness for which he sought treatment
on multiple occasions in August 2013.

(R. 1131.)

On August 29,

2013, he reported sharp pain at the base of his neck and blurry
vision.

(R. 1162.)

Office notes from visits to Dr. Sioma’s office in September
and November 2013 show that Plaintiff’s cardiovascular examinations
were normal, he had a normal gait, and his diagnoses included
hypertension and hypercholesterolemia.

4

(R. 1260-61, 1264.)

On November 13, 2013, Plaintiff was admitted to York Hospital
for headache which had lasted for six days.

(R. 1362.)

Plaintiff

also complained of blurry vision, lightheadedness, neck pain, and
balance issues.

(Id.)

Brain imaging studies showed extensive

vascular calcification, and severe stenosis (versus occulsion) of
the basilar artery and distal bilateral vertebral arteries.

(R.

1352-53.)

(R.

1365.)

Plaintiff was diagnosed with a basilar migraine.

Treating provider, Robert Reif, M.D., recommended that

Plaintiff continue Plavix for stroke prevention and that he see an
outpatient nuerologist for treatment of migraines.

(Id.)

A November 14, 2013, bubble echocardiogram showed moderate
left ventricular hypertrophy, bilateral enlargement, and sclerotic
aortic vavle.

(R. 1211-12, 1358.)

Later in November 2013, Plaintiff returned for nephrology
follow up.

(R. 1222-23.)

Shelly Levenstein, CRNP, indicated

Plaintiff’s kidney disease was stable with controlled blood
pressure, and his hypertension and hyperlipidemia also remained
controlled with medication.

(R. 1223.)

On December 16, 2013, Plaintiff saw Ellen Deibert, M.D., at
WellSpan Neurology.

(R. 1283-89.)

Plaintiff reported two

headaches per week that were only severe “at times.”

(R. 1284.)

Plaintiff had normal muscle strength, tone, and bulk, normal
reflexes, and a normal gait, but diminished cranial nerve VII and
tender neck muscles.

(R. 1283, 1286.)

5

Dr. Deibert noted severe

intracranial disease and severe neck muscle spasms for which she
prescribed gabapentin and recommended physical therapy.
84.)

(R. 1283-

December 19, 2013, x-rays showed degenerative changes at C6-

C7 and vascular calcifications.

(R. 1280.)

Later in December, Plaintiff saw Dr. Sioma.

(R. 1256-58.)

Plaintiff denied chest pain, shortness of breath, and muscle pain
or weakness, but he complained of cervical muscle spasms.
1256.)

He had normal ambulation.

(R. 1257.)

(R.

Dr. Sioma diagnosed

migraine headaches and prescribed Imitrex, Tylenol, and aspirin.
(Id.)

Plaintiff continued to take gabapentin, hydralazine,

hydrochlorothiazide, potassium, and simvastin.

(Id.)

At his February 2014 visit to WellSpan Neurology, Dr. Deibert
noted headaches as well as low back and leg pain since November
2013.

(R. 1277.)

Plaintiff reported that his headaches and

dizziness had improved with physical therapy–-he only had headaches
once or twice a week, he rated the severity as three out of ten,
and he said he rarely took Tylenol for them.

(Id.)

Dr. Deibert

found sciatic notch tenderness, muscle spasms in the low back,
slightly reduced reflexes, a stiff “hunched” gait, normal stance,
negative straight leg raising, normal muscle strength, tone, and
bulk, and normal sensation.

(R. 1280.)

An x-ray showed

degenerative changes in the cervical spine.
diagnosed cervicalgia, sciatica, and lumbago.

(Id.)

Dr. Deibert

(R. 1277.)

She

increased the Gabapentin dosage and advised Plaintiff to avoid

6

Imitrex due to his history of stroke and high blood pressure and
advised Plaintiff to try to just use Tylenol for the headaches.
(R. 1278.)
Plaintiff continued to complain of low back pain at his March
2014 visit to Dr. Sioma.

(R. 1248-55.)

On April 30, 2014, Plaintiff was hospitalized overnight at
York Hospital.

(R. 1316.)

He complained of tingling in his arms,

weakness, confusion, headache, and difficulty ambulating.
1334.)

(R.

Imaging studies showed mild to moderate calcific

atherosclerotic plaque in bilateral carotid bulbs and proximal
ICA’s with posterior cruciate shadowing.

(R. 1328.)

An

echocardiogram showed concentric left ventricular hypertrophy with
underlying regional wall motion abnormalities consistent with
coronary artery disease.

(R. 1329-30.)

Neurologist Robert Reif,

M.D., diagnosed cephalgia, ruled out cardiac and ischemic events,
and assessed that carpal tunnel syndrome caused the numbness.
1316, 1334-36.)

(R.

Dr. Reif recommended EMG/nerve conduction testing,

a wrist splint at night, and continuation of physical therapy for
neck pain.

(R. 1336.)

He also recommended “aggressive control of

his hypertension and hyperlipidemia” and follow up with Dr.
Deibert.

(Id.)

At a May 13, 2014, nephrology visit, Plaintiff reported right
flank pain and decreased urine output.

(R. 1450-51.)

that Plaintiff was using a cane for ambulation.

7

She noted

(R. 1451.)

She

indicated that Plaintiff’s kidney disease remained stable and
secondarry to hypertensive nephrosclerosis.

(R. 1452.)

On May 19, 2014, Dr. Diebert prescribed a cane for Plaintiff
to use due to pain and weakness in his legs.

(R. 1460.)

B. Opinion Evidence
1.

State Agency Physician
In January 2013, Candelaria Legaspi, M.D., conducted a review

of Plaintiff’s records.

(R. 677-78.)

She opined that Plaintiff

could perform light work involving lifting and carrying twenty
pounds occasionally and ten pounds frequently, and standing or
walking six hours in an eight-hour day.
2.

(Id.)

Treating Physician
Dr. Sioma, who treated Plaintiff regularly for several years,

completed a “Physical Residual Functional Capacity
Questionnaire”(R. 1060-64), and “Cardiac Residual Functional
Capacity Questionnaire” (R. 1055-59) on February 14, 2013.

He

opined that Plaintiff could stand for fifteen minutes at a time
before needing to sit down; he could stand/walk for less than two
hours in an eight-hour day and could sit for six hours; he could
lift and carry ten pounds occasionally and less than ten pounds
frequently; he could rarely twist and climb stairs and never stoop,
bend, crouch, squat, or climb ladders.

(R. 1057-58, 1061–63.)

Dr.

Sioma also indicated that Plaintiff should avoid all exposure to
extreme temperatures, high humidity, and wetness; he should avoid
8

even moderate exposure to cigarette smoke, solvents/cleaners,
fumes, odors, gases, and dust; he needed to alternate positions; he
would require unscheduled breaks every forty-five to sixty minutes;
and he estimated that Plaintiff was likely to be absent from work
as a result of his impairments about four days per month and
related the symptoms back to January 2011 when Plaintiff had his
first heart attack.

(R. 1057-59, 1062-63.)

He indicated that

Plaintiff did not require a cane for ambulation.
3.

(R. 1062.)

Physical Therapist
Plaintiff’s physical therapist, Rick J. Topper, completed a

function questionnaire in May 2014.

(R. 1455-59.)

He had been

treating Plaintiff since January 2014 and noted diagnoses of low
back pain, sciatica, cervicalgia, and TIA.

(R. 1455.)

Mr. Topper

identified symptoms of neck pain, back pain, weakness, and
difficulty walking.
malingerer.

(Id.)

(R. 1456.)

He stated that Plaintiff was not a

He indicated that Plaintiff could sit,

stand, or walk for less than two hours each in an eight-hour day;
he could rarely twist, stoop, bend, crouch, or squat; he was
incapable of even low stress jobs; he would miss work more than
four days per month; he had significant limitations in grasping,
handling, and fingering.

(R. 1455-59.)

He did not complete

certain sections of the questionnaire, indicating they were “not
applicable.”

(R. 1457.)

The “not applicable” portion primarily

sought information about limitations which would occur in an “8-

9

hour working day” and other job-related questions and followed Mr.
Topper’s assessment that Plaintiff was incapable of even low stress
jobs.
C.

(Id.)

Hearing Testimony
Plaintiff testified that the conditions which prevented him

from working before July 2013 were breathing problems related to
his heart, thereafter the stroke on July 12, 2013, caused a lot of
issues with walking, and back pain resulting from sciatica
beginning in November 2013.

(R. 638, 640-41.)

Plaintiff also

testified that he began having problems with migraine headaches in
July of 2013.

(R. 643-44.)

He said his migraines had increased in

frequency the two months before the hearing and pain related to his
chronic kidney disease had also gotten worse.

(R. 645, 649-51.)

Upon examination of the VE, ALJ Zanotto noted that, with no
transferable skills, Plaintiff “would grid” at either the light or
sedentary level.

(R. 667.)

She then stated “[s]o the only place,

that I need to ask any questions about, would be, potentially, if I
were to find that he was able to perform his past work.”

(Id.)

ALJ Zanotto then asked the VE to consider that Plaintiff
was limited to performing the full range of light, . . . but was
limited to occasional crouching, occasional stooping; rarely
crawling; . . . needed to avoided concentrated exposure to dusts,
fumes, odors, gases, chemicals, . . . concentrated exposure to hot
and cold temperature extremes, and wetness, and humidity.”

10

(R.

667.)

The VE testifed that the hypothetical individual would be

able to perform past relevant work as a cashier and fast food
worker.

(R. 668.)

He further testified that the fast food worker

position non-exertionals include stooping on an occasional basis;
reaching and handling are constant; fingering is frequent; and
there are no environmental factors.

(Id.)

For the cashier

position, the VE testified that reaching, handling, and fingering
are all on a frequent basis and there are no environmental factors.
(Id.)
Plaintiff’s attorney asked the VE if the hypothetical
individual were limited to standing and walking less than two hours
and sitting at least six hours whether he would be able to perform
past work.
D.

(R. 669.)

The VE responded that he would not.

ALJ Decision
In her October 3, 2014, Decision, ALJ Cutter 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, 2015.

2.

The claimant has not engaged in
substantial gainful activity since July
12, 2013, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).

3.

The claimant has the following severe
impairments: coronary artery disease
post myocardial infarction, sciatica,
lumbago, transient ischemic attack, and
chronic brain artery occlusion (20 CFR
404.1520(c) and 416.920(c)).

11

(Id.)

4.

5.

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)
and 416.967(b) except he is limited to
occasional crouching and
stooping/bending, rare crawling and
needs to avoid concentrated exposure to
dust, fumes, odors, gases, chemicals,
extreme cold and heat and wetness and
humidity.

6.

The claimant is capable of performing
past relevant work as a cashier and fast
food worker. This work does not require
the performance of work-related
activities precluded by the claimant’s
residual functional capacity (20 CFR
404.1565 and 416.965).

7.

(R. 615-20.)

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).

The claimant has not been under a
disability, as defined in the Social
Security Act, from July 12, 2013,
through the date of this decision (20
CFR 404.1520(f) and 416.920(f)).

Other relevant portions of the ALJ’s Decision will be

referenced in the Discussion section of this Memorandum.
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.3
3

It is necessary for the

“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
12

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
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

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).
13

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
four of the sequential evaluation process when the ALJ found that
Plaintiff could perform his past relevant work.

(R. 619-20.)

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).

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
14

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
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.”
15

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,
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

16

claimed error may be deemed harmless.

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.”); see also Rutherford v. Barnhart, 399
F.3d 546, 553 (3d Cir. 2005) (a remand is not required where it
would not affect the outcome of the case.).

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 reversed or remanded for the following reasons: 1) the
ALJ erred in failing to consider Plaintiff’s chronic kidney
disease, cervicalgia, hypertension, hyperlipidemia, and migraines
as severe impairments; 2) the ALJ did not properly weigh opinion
evidence; 3) the ALJ failed to construct a legally sufficient RFC;
4) the ALJ erred in finding Plaintiff was capable of performing
past relevant work; and 5) the ALJ erred in failing to find
Plaintiff met the provisions of the Medical Vocational Guidelines.
(Doc. 13 at 9.)
A.

Step Two Determination
Plaintiff alleges the ALJ erred at step two in concluding that

his chronic kidney disease, hypertension, cervicalgia,

17

hyperlipidemia, and migraines were not severe impairments.
13 at 10.)

(Doc.

Defendant responds that the ALJ’s step two findings

were reasonable because these impairments did not interfere with
his basic work activities, and the claimed error would be harmless
because the ALJ did not decide the case at step two. (Doc. 18 at
15.)

The Court concludes remand is required on this issue.
If the sequential evaluation process continues beyond step

two, a finding of “non-severe” regarding a specific impairment at
step two may be deemed harmless if the functional limitations
associated with the impairment are accounted for in the RFC.
Salles v. Commissioner of Social Security, 229 F. App’x 140, 145
n.2 (3d Cir. 2007) (not precedential) (citing Rutherford v.
Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)).

In other words,

because the outcome of a case depends on the demonstration of
functional limitations, where an ALJ identifies at least one severe
impairment and ultimately properly characterizes a claimant’s
symptoms and functional limitations, the failure to identify a
condition as severe is deemed harmless error.

Garcia v.

Commissioner of Social Security, 587 F. App’x 367, 370 (9th Cir.
2014) (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007));
Burnside v. Colvin, Civ. A. No. 3:13-CV-2554, 2015 WL 268791, at
*13 (M.D. Pa. Jan. 21, 2015); Lambert v. Astrue, Civ. A. No. 08657, 2009 WL 425603, at *13 (W.D. Pa. Feb. 19, 2009).
Defendant argues that medical evidence does not support

18

functional limitations related to the impairments found non-severe,
the ALJ fully accounted for them in his RFC to the extent his
impairments resulted in functional limitations, and Plaintiff does
not identify any specific functional limitations stemming from the
non-severe impairments that were not accounted for in the RFC.
(Doc. 18 at 17-19.)
Although Plaintiff’s position on this issue is not fully
articulated, he points to medical evidence which he asserts shows
that the conditions are significant enough to affect his ability to
perform basic work activities.

(Doc. 13 at 10-12; Doc. 20 at 1-3.)

The record shows that, within a six-month period, Plaintiff was
twice hospitalized for headaches that lasted for an extended period
and his presenting condition was serious enough to warrant
admission.

(R. 1328-30, 1334, 1336, 1352-53, 1362.)

testified that headaches affected

Plaintiff

his ability to work, stating “I

get these massive headaches sometimes” and they had been getting
worse in the four or five months preceding the June 2014 hearing.
(R. 643.)

He said they often start in his neck and spread to his

face, causing a stiff neck, trouble turning his neck, trouble
keeping his eyes open and pressure in the back of his neck and
head.

(R. 647.)

He also said when the headacaches get bad and

turn into migraines he has trouble comprehending what people are
saying to him.

(R. 647-48.)

To combat the more severe headaches

he takes propranolol (which he must be careful about taking because
of his heart medicine) and otherwise treats them with Tylenol.
19

(R.

648-49.)
Plaintiff also said that kidney pain which had worsened over
the two months preceding the hearing affected his ability to work.
(R. 649.)

He explained that the pain was on the lower right side

of his back, it was made worse if he raised his hand above his
head, if he reached for something, or if he twisted the wrong way.
(R. 650.)
As noted in the ALJ’s summary of applicable law, at step two
“[a]n impairment or combination of impairments is ‘not severe’ when
medical and other evidence establish only a slight abnormality or a
combination of slight abnormalities that would have no more than a
minimal effect on an individual’s ability to work.”

(R. 614

(citing 20 C.F.R. §§ 404.1521, 416.921; SSRs 85-28, 96-3p, 96-4p).)
Plaintiff’s testimony about limitations related to some impairments
found non-severe is “other evidence.” (Id.)
supports the underlying impairments.

Medical evidence

See supra pp. 4-8.

Limitations causing hospitalization twice in six months and
limitations regularly and/or frequently affecting a claimant’s
ability to concentrate, turn his head, reach, and/or twist could
not be deemed to have only a “minimal effect” on his ability to
work.

The ALJ’s cryptic summary of evidence related to the non-

severe impairments is not a comprehensive longitudinal picture of
the evidence supporting the impairments or evaluation of the
testimonial evidence.

For example, she cites progress notes from

York County Prison showing that Plaintiff had stable blood pressure
20

from June through September 2013 but she does not talk about his
November 2013 and April 2014 hospitalizations (R. 1328-30, 1334,
1336, 1352-53, 1362) or December 16, 2013, visit with neurologist
Ellen Deibert, M.D., where, although Plaintiff reported that his
headaches which occurred twice a week were only severe at times,
she noted severe intracranial disease and severe neck muscle spasms
for which she prescribed gabapentin and recommended physical
therapy.

(R. 1283-84.)

Physical therapist Rick Topper began to

see Plaintiff in January 2014 and in May 2014 reported that
cervicalgia and neck pain were among the conditions and symptoms
that contributed to the limitations he found.4

(R. 1455.)

December 19, 2013, x-rays showed degenerative changes at C6-C7 and
vascular calcifications.

(R. 1280.)

This summary shows that ALJ Zanotto did not review evidence
relevant to the severity of conditions she found non-severe,
evidence which supports greater severity than evidence reviewed and
found compelling.

Because the ALJ did not review probative

evidence, the Court cannot say that her step two finding is based
on substantial evidence.

Cotter, 642 F.2d at 706-07.

Thus, the

Court must determine whether the ALJ’s error was harmless.
Although the disability determination proceeded beyond step
two, here the Court cannot conclude the error was harmless because

4

Mr. Topper noted that related clinical findings and
objective signs were available in “notes as requested,” as were
details about Plaintiff’s treatment and response. (R. 1455.)
21

limitations related to some conditions found non-severe were not
included in the RFC.

As noted above, Plaintiff testified about

functional difficulties related to his neck pain, kidney pain, and
headache pain.

ALJ Zanotto does not discuss functional limitations

related to these conditions in her RFC analysis and the Court
cannot glean from her discussion that she

inferentially found

these limitations not credible for specific reasons.
19.)

(See R. 617-

Because the Court cannot conclude ALJ Zanotto’s step two

error is harmless, this matter must be remanded to the Acting
Commissioner for further consideration.
B.

Opinion Evidence
Plaintiff next asserts ALJ Zanotto failed to properly weigh

opinion evidence.

(Doc. 13 at 12-15.)

Defendant maintains the ALJ

reasonably discounted the treating physician’s opinion because it
was inconsistent and unsupported by the record during the relevant
time period.

(Doc. 18 at 19-26.)

The Court concludes that further

consideration of this issue is also warranted upon remand.
Under applicable regulations and the law of the Third Circuit,
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)).

Sometimes called the “treating physician rule,” the

principle is codified at 20 C.F.R. 404.1527(c)(2), and is widely

22

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 wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in your case, we will give it controlling
weight.”

5

20 C.F.R. § 404.1527(c)(2).5

“A cardinal principle

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.
23

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 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)).
The Court of Appeals for the Third Circuit addressed a
plaintiff’s argument that an ALJ failed to give controlling weight
to the opinion of a treating physician in Horst v. Commissioner of
Social Security, 551 F. App’x 41, 46 (3d Cir. 2014) (not
precedential).
“Under applicable regulations and the law of
this Court, opinions of a claimant’s treating
physician are entitled to substantial and at
times even controlling weight.” Fargnoli v.
Massanari, 247 F.3d 34, 43 (3d Cir. 2001).
Controlling weight is given when a treating
physician’s opinion is “well supported by

24

medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent
with the other substantial evidence.” 20
C.F.R. § 404.1527(d)(2). “Although the ALJ
may weigh the credibility of the evidence, he
must give some indication of the evidence that
he rejects and his reason(s) for discounting
that evidence.” Fargnoli, 247 F.3d at 43.
551 F. App’x at 46.

Horst noted that neither the ALJ nor the court

needed to rely on the treating physician’s opinion that the
plaintiff was completely disabled: “As an initial matter, ‘the
ALJ–-not treating or examining physicians or State agency
consultants–-must make the ultimate disability and RFC
determinations.”

551 F. App’x at 46 n.7 (quoting Chandler v.

Comm’r of Social Sec., 667 F.3d 356, 361 (3d Cir. 2011); citing 20
C.F.R. § 404.1527(d)).

Although it is true that an ALJ’s

credibility judgments alone cannot override a treating physician’s
medical opinion that is supported by the evidence, Morales v.
Apfel, 225 F.3d 310, 310 (3d Cir. 2003), where an ALJ relies “upon
more than personal observations and credibility determinations in
discounting the treating physician’s finding of disability,” the
ALJ does not run afoul of relevant law.

Drejka v. Commissioner of

Social Security, 61 F. App’x 778, 782 (3d Cir. 2003) (not
precedential) (distinguishing Morales v. Apfel, 225 F.3d 310, 318
(3d Cir. 2000) (holding that an ALJ’s credibility judgments alone
cannot override a treating physician’s medical opinion that is
supported by the evidence)).
Here the ALJ reviewed Dr. Sioma’s findings and stated that she
25

found “the restrictions overstated based on the longitudinal
medical and examination findings as well as the claimant’s
activities of daily living.”

(R. 619.)

ALJ Zanotto added that the

“opinions were provided prior to the amended alleged disability
onset date and are not consistent with treatment notes from Dr.
Sioma showing very limited examination findings and improvement
with rehabilitation (Exhibit 13F).”

(Id.)

For all of these

reasons, the ALJ accorded limited weight to Dr. Sioma’s opinions.
(Id.)
As noted regarding the ALJ’s step two analysis in the
preceding section of this Memorandum, the ALJ’s RFC discussion
focuses on evidence tending to discount Plaintiff’s symptoms and
limitations and she does not discuss evidence tending to support
such limitations.

ALJ Zanotto notes that Plaintiff had normal

muscculoskeletal range of motion and strength in April 2013 and, in
January 2014, he ambulated normally and denied muscle weakness and
no exercise intolerance.
other probative evidence.

(R. 618.)

However, she does not mention

In addition to the many

hospitalizations, records also show the following: Plaintiff
reported cervical muscle spasm bilaterally in December 2013 (R.
1256); he reported exercise intolerance and being “very fatigued
with walking short distances, pain in his legs which he thought was
a hip issue . . . and back pain” to another provider on January 24,
2014 (R. 1252); Dr. Deibert’s December 16, 2013, findings that
Plaintiff’s neck muscles were tight and tender and he “most likely
26

has muculoskeletal headaches with C2 neuralgia component” for which
she prescribed gabapentin (R. 1283-84); Dr. Deibert’s February 2014
notation that Plaintiff’s exam still showed “spasms on [left] side
of neck and in the back as well as pain in the sciatic notch” with
a working diagnosis of cervicalgia and sciatica (R. 1277), and she
reported an abnormal back examination with spasms in the bilateral
lumbar paraspinous muscles (R. 1279) and a stiff, hunched gait (R.
1280); in March 2014 examination showed “right sciatic with left
hip and left leg pains” (R. 1248); and May 2014 records showed “a
slightly antalgic but narrow based gait” (R. 1301).
This type of review of evidence is problematic because it does
not contain reasoning as to why probative evidence has been
rejected which is required so that a reviewing court can determine
whether the reasons for rejection were improper and the decision is
based on substantial evidence.

Cotter, 642 F.2d at 706-07.

It

also affects ALJ Zanotto’s opinion analysis because one reason for
rejecting the opinion was overstatement based on “the longitudinal
medical and examination findings” (R. 619), the ALJ’s review of
which did not include probative evidence (R. 618).

A further

problem with the ALJ’s analysis is her finding that the opinions
were entitled to limited weight in part because they were provided
prior to the alleged onset date.

(R. 619.)

While this rationale

may be valid in isolation, here it becomes less so when the opinion
of the State agency medical consultant, which was provided before
Dr. Sioma’s opinions, is given great weight.
27

(Id.)

For all of

these reasons, further consideration of the opinion evidence is
required upon remand.6
C.

Residual Functional Capacity Assessment
Plaintiff asserts the ALJ failed to address Plaintiff’s use of

a cane or make any findings regarding his ability to stand, walk,
lift, and carry in her RFC assessment.

(Doc. 13 at 15.)

Defendant

responds that the ALJ accounted for all of Plaintiff’s credibly
established limitations.

(Doc. 18 at 26.)

The Court’s preceding

discussion regarding probative evidence not considered by the ALJ
and the determination that remand is required for further
consideration indicate that remand is required for reconsideration
of the RFC assessment.

Specifically, the ALJ discusses Plaintiff’s

testimony about use of a cane and limitations related to standing,
6

Plaintiff notes the ALJ gave no weight to his physical
therapist’s opinion. (Doc. 13 at 15.) Although 20 C.F.R. §
404.1513 addressing consideration of evidence was recently amended,
see § 404.1513(a) (referring to 20 C.F.R. § 404.1527 for cases
filed before March 27, 2017), at the time the ALJ considered the
case the regulations provided that the opinion of a physical
therapist was entitled to consideration as the opinion of a nonmedical source, and SSR 06-03p indicates that such opinions may
constitute substantial evidence where the opinions are well
documented and supported by the medical evidence. 20 C.F.R. §
404.1527(f); SSR 06-03p, 2006 WL 2329939, at *6 (S.S.A. Aug. 9,
2006); see also Acevedo v. Colvin, 20 F. Supp. 3d 377, 389 (W.D.
N.Y. 2014). As noted in Jones v. Colvin, Civ. A. No. 13-4831, 2014
WL 2862245 (E.D. Pa. June 24, 2014), physical therapists are “other
sources” whose opinions the ALJ may use to determine the severity
of a condition. Id. at *11 (citing Hatton v. Comm’r of Soc. Sec.
Admin., 131 F. App’x 877, 878 (3d Cir. 2005)). One reason given
for discounting the opinion was that it was not supported by
treatment notes. (R. 619.) Mr. Topper indicated that he would
supply supporting notes as requested. (R. 1455.) Because remand
is required for other reasons, expansion of the record regarding
Mr. Topper’s notes may be indicated.
28

walking, changing position, and lifting, but she does not reference
any evidence of record that could be considered supportive of these
limitations (R. 618-19), and, as discussed above, the record
contains such evidence.

Though Defendant expands upon the ALJ’s

RFC discussion, Defendant cannot now do what the ALJ should have
done.

Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001);

Dobrowolsky, 606 F.2d at 406-07.
D. Past Relevant Work and Medical Vocational Guidelines
Plaintiff also claims the ALJ erred in determining that
Plaintiff was capable of performing past relevant work and erred in
failing to find Plaintiff disabled pursuant to Medical Vocational
Rule 202.04 given his age (past fifty-five), skills and education.
(Doc. 13 at 16-17.)

Because the Court’s preceding conclusions call

these findings into question, further discussion is not warranted.
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

filed simultaneously with this action.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: April 5, 2017
29