Brown v. Colvin

Filing 19

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 isfiled simultaneously with this action.Signed by Honorable Richard P. Conaboy on 4/25/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARK BROWN,

:
:CIVIL ACTION NO. 3:16-CV-1820
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”).

(Doc. 1.)

Plaintiff filed an application for benefits on March 13, 2013,
alleging a disability onset date of October 12, 2012.

(R. 13.)

After Plaintiff appealed the initial denial of the claims, a
hearing was held on January 26, 2015, and Administrative Law Judge
(“ALJ”) Natalie Appetta issued her Decision on March 6, 2015,
concluding that Plaintiff had not been under a disability during

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.”

the relevant time period.

(R. 22.)

Plaintiff requested review of

the ALJ’s decision which the Appeals Council denied on July 11,
2016.

(R. 1-5.)

In doing so, the ALJ’s decision became the

decision of the Acting Commissioner.

(R. 1.)

Plaintiff filed this action on September 1, 2016.

(Doc. 1.)

He asserts in his supporting brief that the Acting Commissioner’s
determination should be remanded for the following reasons: 1) the
ALJ erred in her opinion analysis; and 2) the ALJ’s credibility
assessment is defective.

(Doc. 17 at 3.)

After careful review of

the record and the parties’ filings, the Court concludes this
appeal is properly granted.
I. Background
Plaintiff was born on April 8, 1962, and was fifty years old
on the alleged disability onset date.

(R. 23.)

He has a GED and

past relevant work as a carpenter and maintenance worker.
A.

(R. 21.)

Medical Evidence
William R. Milroth, M.D., was Plaintiff’s primary care

physician during the relevant time period.

(See, e.g., R. 484-86.)

His office notes consist primarily of line-entries indicating
medications prescribed.

(Id.)

Plaintiff appears to have seen Dr.

Milroth at least monthly from June 2011 through January 2012.
396-99.)

Conclusions regarding treatment and medications cannot be

ascertained from September 2012 and June 2013 record entries.
486.)

(R.

(R.

December 27, 2013, notes indicated that Plaintiff was self2

pay, that he stopped all medications and had been off them for one
year due to no insurance, and a Medical Assistance form would be
filled out.

(Id.)

The provider further noted that Plaintiff had

“enough money to smoke.”

(Id.)

Approximately one month before Plaintiff’s alleged onset date
of October 12, 2012, Amatul Khalid, M.D., performed a consultative
examination.

(R. 418-21.)

In his September 18, 2012, patient

history, Dr. Khalid noted that Plaintiff’s blood sugars had not
been checked in four months and he had not been taking his
medications since then because he did not have insurance and he was
trying to control the diabetes with his diet.

(R. 418.)

Plaintiff

reported that his toes and fingertips were burning but he did not
have blurry vision and he had no kidney damage that he knew of.
(Id.)

Plaintiff also reported left-sided back pain which had

started about two years earlier.

(Id.)

He said x-rays and a bone

scan had not found anything to explain the pain, he had been told
it was possibly arthritis, he had seen a chiropractor which had
made it worse, and he had been on pain pills but was not taking
anything for the pain at the time.

Plaintiff rated his pain at

4/10 at the time of the visit and said it was worse if he did too
much walking or standing.

(Id.)

Musculoskeletal physical

examination showed scoliosis, decreased range of motion with lumbar
flexion of 70/90 degrees, decreased left shoulder elevation of
140/150 degrees, left upper extremity decreased muscle

3

strength/tone of 3/5, grip 60% bilaterally, decreased left lower
extremity muscle strength/tone of 3/5, and single leg raise of 25
degrees on the left and 55 degrees on the right with pain in the
lower back.

(R. 420.)

Neurologic examination showed decreased

vibratory sensation of bilateral lower extremities from the ankle
down and bilateral hand tremor at rest and movement.

(R. 421.)

Dr. Khalid’s assessment included the following: Diabetes Mellitus
for which Plaintiff had been prescribed Metformin and Levemir four
months earlier but he was not on the medications due to cost;
diabetic neuropathy; thoracic dextroscoliosis and lumbar
levoscoliosis causing chronic back pain; normal gait with some
minimal problem getting on and off the exam table or walking heels
to toes; and “tremor, essential tremors, with activity and rest,
writing is nearly impossible for him.”

(Id.)

Dr. Khalid performed another evaluation on May 21, 2013.
429-32.)

(R.

In the history portion of his report, he noted that

Plaintiff had scoliosis for a long time and arthritis of the spine.
(R. 429.)

Plaintiff said he had pain in the ankles, knees, hips,

and shoulders.

(Id.)

He rated his pain at rest at 7, it increased

with movement, and he did not take pain medications because they
did not help.

(Id.)

Plaintiff said that he was not taking the

diabetes medications because he had no money or insurance and could
not afford the medication.

(Id.)

He complained of tingling and

numbness in his hands and feet and that they were cold most of the

4

time.

(R. 429.)

Musculoskeletal examination showed that Plaintiff

had a slight limp, upper and lower extremity power 3/5 on both
sides, decreased vibration sensation on both hands up to elbows and
both legs up to ankles, grip strength of 50%, deep tendon reflexes
diminished on both sides, dextroscoliosis of thoracic spine and
levoscoliosis of lumbosacral spine, tenderness on exam, straight
leg test positive on both sides at 50 degrees, and tremors noted at
rest in the left hand.

(R. 431.)

Neurologic exam showed decreased

vibratory sensation on bilateral lower extremities from the ankle
down.

(Id.)

Dr. Khalid’s assessment was essentially the same as

that rendered in September 2012.

(R. 421, 431.)

In March 2014, Dr. Milroth referred Plaintiff to Jeffrey
Small, D.O., for a colonoscopy. (R. 488.)

Office notes in March

and April include the assessments that Plaintiff had diabetes
mellitis “without mention of complication, . . . not stated as
uncontrolled.”

(R. 488, 493.)

The records indicate physical

examination showed “[e]xtremities: unremarkable” with no
elaboration regarding the extent of the examination performed.
(Id.)

By history, neuropathy was noted.

B.

Opinion Evidence

1.

(R. 475.)

Consultative Examiner
Dr. Khalid completed a Medical Source Statement of Claimant’s

Ability to Perform Work-Related Physical Activities on September
24, 2012.

(R. 422-27.)

He found the following:
5

Plaintiff could

lift and carry 2-3 pounds frequently and no more than that
occasionally; he could stand and walk for 1-2 hours in an 8-hour
day and sit for 1-1½ hours; his abilities to push and pull were
limited in the lower extremities because he was unable to feel
pedals due to neuropathy; he could occasionally bend, kneel, stoop,
crouch, and balance and he could never climb; he was limited in his
ability to reach above his head, feel and see; and his impairments
were affected by vibration and temperature extremes.

(R. 422-23.)

On the Medical Source Statement of Ability to Do Work-Related
Activities (Physical) dated May 21, 2013, Dr. Khalid opined that
Plaintiff could lift and carry up to twenty pounds occasionally;
without interruption he could sit for one hour at a time, stand for
twenty minutes, and walk for thirty minutes; and, in an eight-hour
day, he could sit for one hour, stand for thirty minutes, and walk
for thirty minutes.

(R. 438.)

Regarding the use of his hands, Dr.

Khalid found that Plaintiff could occasionally reach overhead,
could frequently reach otherwise, could frequently handle, could
occasionally finger with his right hand and never with his left,
and could frequently push and pull.

(R. 439.)

Regarding the use

of his feet, Dr. Khalid opined that Plaintiff could occasionally
operate foot controls.

(Id.)

He concluded that Plaintiff could

occasionally climb stairs and ramps, balance, and stoop, and he
could never climb ladders or scaffolds, kneel, crouch, and crawl.
(R. 440.)

Noted environmental limitations were that Plaintiff

6

could never tolerate exposure to unprotected heights, occasionally
tolerate exposure to moving mechanical parts and operating a motor
vehicle, and at least frequently tolerate exposure to other
environmental conditions.

(R. 441.)

Regarding Plaintiff’s ability

to perform other activities, Dr. Khalid noted that Plaintiff could
not travel without a companion for assistance.
2.

(R. 442.)

Treating Physician
Dr. Milroth completed a Medical Opinion Re: Ability to Do

Work-Related Activities (Physical) on November 20, 2011.
83.)

(R. 482-

He made the following findings: Plaintiff could lift and

carry less than ten pounds on an occasional basis; he could lift
and carry a maximum of ten pounds on a frequent basis; he could
stand and walk less than two hours in an eight-hour day; he could
sit less than two hours in an eight-hour day; without changing
positions, Plaintiff could sit for twenty minutes and stand for
twenty minutes; he would need to walk around every thirty minutes
for five minutes at a time; he would need to shift at will from
sitting or standing/walking; and he would frequently need to lie
down.

(R. 482.)

Dr. Milroth noted that his assessments were

supported by medical findings of severe neuropathic pain in
Plaintiff’s legs, feet, and hands.

(Id.)

Regarding postural

activities, Dr. Milroth concluded that pain in the extremities
prevented Plaintiff from climbing ladders, and he could
occasionally twist, stoop, crouch, and climb stairs.

7

(R. 483.)

He opined that Plaintiff was unable to reach, finger, and push/pull
because of pain and his ability to kneel, balance and crawl were
also affected.

(Id.)

Dr. Milroth noted that Plaintiff’s symptoms

would seldom interfere with the attention and concentration
required to perform simple, work-related tasks and Plaintiff would
likely miss more than four days per month because of his
impairments.
3.

(Id.)

Medical Consultants
State non-examining medical consultants Abu N. Ali, M.D., and

Hong S. Park, M.D., provided medical assessments on October 11,
2012, and May 30, 2013, respectively.

(R. 77-81, 88-91.)

Both

doctors opined that Plaintiff could occasionally lift and/or carry
twenty pounds; he could frequently lift and/or carry ten pounds; he
could stand and/or walk for a total of about six hours in an eighthour day; and he could sit for a total of about six hours in an
eight-hour day.

(R. 79, 89.)

Dr. Ali opined that Plaintiff had no

limitations in his abilities to push and/or pull other than what
was shown for lifting and carrying.

(R. 79.)

Dr. Park opined that

Plaintiff’s abilities to push and/or pull were limited in both
lower extremities.

(R. 90.)

Dr. Ali found that Plaintiff could

occasionally climb ramps/stairs and ladders/ropes/scaffolds, and he
could occasionally balance, stoop, kneel, crouch, and crawl.
80.)

(R.

Dr. Park found the same except he concluded that Plaintiff

could never climb ladders, ropes or scaffolds.

8

(R. 90.)

C.

Hearing Testimony
Plaintiff testified that he had a maintenance job at

Hagerstown College from September 2002 to June 2011 and he stopped
working because of his back.

(R. 38.)

At the time of the hearing

he said that neuropathy (problems with his feet, hands, and left
shoulder) also made it difficult to work a full-time job year
round.

(R. 40.)

He reported that the neuropathy in his hands had

been getting worse over the preceding year.

(R. 41.)

ALJ Appetta asked Plaintiff about his medication compliance.
(R. 41.)
(Id.)

Initially Plaintiff responded that he had been compliant.

Upon further questioning and the suggestion that Plaintiff

may not have taken medication “because you didn’t have insurance,”
Plaintiff acknowledged that he had stopped taking medication for a
while.

(R. 42.)

He further explained that he had also stopped

briefly when he was feeling better but started again when he was
not feeling well and, at the time of the hearing, he was taking
medication again.

(Id.)

Regarding activities of daily living, Plaintiff, who lives in
an apartment in his parents’ house, said that he does a little
cooking, does small projects for his parents, and does some grocery
shopping.

(R. 35, 44.)

He testified that he does not lift or

carry anything over ten or fifteen pounds, he goes for short walks
(up to fifteen or twenty minutes), and standing in place bothers
his feet and back.

(R. 45.)

He estimated that he could stand for

9

up to an hour.

(R. 46.)

Plaintiff also said he had problems

sleeping because of his back.

(R. 48.)

Both the ALJ and Plaintiff’s attorney questioned him about
work he had done the previous summer at his brother’s business.
(R. 39-40.)

Plaintiff testified that he worked at his brother’s

seasonal concession business between Memorial Day and Labor Day in
2014.

(R. 39.)

He worked at most five days a week for eight hours

or less and his job was to supervise “kids” who were renting out
boats.

(R. 39-40.)

Plaintiff said he would consider working at

the concession again depending on how his back was doing because
the sitting and standing on concrete had been difficult.

(R. 40.)

He also explained that he was able to stretch out in a recliner
during the day and he did so at least eight or ten times a day for
ten to thirty minutes.

(R. 48-49, 54.)

Plaintiff said he missed

about two or three days a month, primarily when his back was
bothering him too much.

(R. 49.)

Plaintiff testified that on a bad day he alternated between
sitting in the recliner and standing for five to fifteen minutes,
then lying down for up to an hour and a half.

(R. 51.)

He said

his tremors were bilateral and constant, he had trouble writing and
baiting fish hooks, and the numbness in his extremities was
constant and disrupted his balance.

(R. 52.)

ALJ Appetta asked Vocational Expert Alina Kurtanich (“VE”) to
consider a hypothetical individual of Plaintiff’s age, education,

10

and work experience who could perform light work with the following
limitations:
[n]o climbing ladders, ropes, or scaffolds,
can perform other postural maneuvers only
occasionally, must avoid hazards such as
unprotected heights, or dangerous or moving
machinery or parts, and must avoid vibrations
such as vibrating machinery, or equipment,
and must avoid temperature extremes such as
extreme cold or wetness, as well as heat and
humidity.
(R. 61.)

The VE testified that such an individual could not

perform Plaintiff’s past work but jobs existed in the national
economy that he could perform such as electronic worker, sorter,
and mail clerk.

(R. 61-62, 64.)

She also testified that there

would be no change if the individual required a sit/stand option
allowing him to alternate or change positions five minutes of every
hour while remaining on task.

(R. 62.)

ALJ Appetta than asked how

employment would be impacted if the individual “needed to lie down
or lay in a recliner for roughly an additional hour beyond the
scheduled breaks, or what is customarily allowed in terms of
breaks.”

(R. 63.)

be employable.

The VE responded that the individual would not

(Id.)

She said the same would be true if the

individual needed to frequently lie down during the day or would
miss more than three days per month on a regular and continuing
basis.

(Id.)

Plaintiff’s attorney then asked the VE whether the
hypothetical individual would be able to work if he “were limited

11

to sitting for up to no more than two hours, and also standing and
walking up to no more than two hours.”

(R. 65.)

The VE responded

that there would be no jobs for such an individual.

(Id.)

In

response to a question about lifting, the VE testified that the
standard is ten pounds for sedentary.
D.

(Id.)

ALJ Decision
In her March 6, 2015, Decision, ALJ Appetta made the following

Findings of Fact and Conclusions of Law:
1.

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

2.

Although it appears that the claimant
may have engaged in substantial gainful
activity (“SGA”) since the alleged onset
date of October 12, 2012, further
evidence would need to be obtained and
additional evaluations made to reach a
decision on this issue. Given the
remaining findings, it is unnecessary to
delay a decision in order to develop the
issue of substantial gainful activity
any further (20 CFR 404.1571 et seq.)

3.

The claimant has the following severe
impairments: thoracic and lumbar
scoliosis; mild degenerative joint
disease of the thoracic spine; mild
degenerative joint disease of the left
AC joint; and diabetes with neuropathy
(20 CFR 404.1520(c)).

4.

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

5.

After careful consideration of the
12

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 he cannot climb ladders, ropes or
scaffolding, while being able to perform
all other postural activities
occasionally, and he must avoid all
exposure to hazards, such as unprotected
heights and dangerous moving machinery
or parts. Further, the claimant must
avoid exposure to temperature extremes
and extremes of cold, wetness, heat and
humidity, while also needing to avoid
vibrating parts. Finally, the claimant
must be permitted to alternate positions
between sitting and standing for five
minutes of every hour, while remaining
on task.
6.

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

7.

The claimant was born on April 8, 1962,
and was 50 years old, which is defined
as an individual closely approaching
advanced age, on the alleged disability
onset date (20 CFR 404.1563).

8.

The claimant has attained a GED and is
able to communicate in English (20 CFR
404.1564).

9.

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

10.

Considering the claimant’s age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
national economy that the claimant can
13

perform (20 CFR 404.1569 and
404.1569(a)).
(R. 16-22.)

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.2

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

2

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
14

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
fourth and fifth steps of the evaluation process.

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

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

If the claimant satisfies this burden, then the Commissioner

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

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

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

(R. 23.)

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

15

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
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,
16

“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. 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.
17

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.

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 determination
should be remanded for the following reasons: 1) the ALJ erred in
18

her opinion analysis; and 2) the ALJ’s credibility assessment is
defective.

(Doc. 17 at 3.)

The Court will address each of these

in turn.
A.

Opinion Analysis
Plaintiff asserts that ALJ Appetta erred when she failed to

properly analyze the consistent opinions of Dr. Milroth and Dr.
Khalid.

(Doc. 17 at 3.)

Defendant responds that substantial

evidence supports the ALJ’s weighing of the medical opinions.
(Doc. 18 at 10.)

The Court concludes remand is required for

further consideration of the opinions at issue.
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)).

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

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

Mason

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

The regulation addresses the weight

to be given a treating source’s opinion: “If we find that a
treating source’s opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case, we
19

will give it controlling weight.”

20 C.F.R. § 404.1527(c)(2).3

“A

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

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

2000) (citations omitted); see also Brownawell v. Commissioner of
Social Security, 554 F.3d 352, 355 (3d Cir. 2008).

3

In choosing to

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.
20

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

Morales, 225

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

20 C.F.R. § 404.1527(c)(1).

Section

404.1527(c)(3) provides the following:
The more a medical source presents relevant
evidence to support an opinion, particularly
medical signs and laboratory findings, the
more weight we will give that opinion. The
better an explanation a source provides for
an opinion, the more weight we will give that
opinion. Furthermore, because nonexamining
sources have no examining or treating
relationship with you, the weight we will
give their opinions will depend on the degree
to which they provide supporting explanations
for their opinions. We will evaluate the
degree to which these opinions consider all
of the pertinent evidence in your claim,
including opinions of treating and other
examining sources.
Id.
ALJ Appetta gave significant weight to the State agency
consulting physicians, less weight to the consultative examiner,
Dr. Khalid, and no weight to the treating physician, Dr. Milroth.
(R. 20-21.)
ALJ Appetta assigned limited weight to the consultative
21

examiner’s opinions because she found
they are inconsistent with overall evidence,
which does not appear to indicate significant
limitations. Further, Dr. Khalid’s
assessments are inconsistent in that from
September 2012 to May 2013, Dr. Khalid
decreased claimant’s abilities to stand, walk
and sit, yet he simultaneously increased the
claimant’s ability to lift and carry from 2-3
pounds to up to 20 pounds. Additionally, Dr.
Khalid’s reports expressly acknowledge the
claimant’s non-compliance with his diabetes
medications, while noting mostly “minimal”
findings of examination, and the claimant’s
most recent lumbar x-ray was normal.
(R. 21.)
The Court finds several problems with this assessment.

First,

the ALJ does not indicate how Dr. Khalid’s evaluations/opinions are
“inconsistent with overall evidence.”

(R. 21.)

Importantly, she

does not provide citation to contrary evidence or elaborate on what
evidence does not “indicate significant limitations.”

(Id.)

Second, ALJ Appetta’s inconsistency finding fails to take into
account the differences in the forms which Dr. Khalid completed for
the September 2012 and May 2013 evaluations.
42.)

(See R. 422-23, 437-

Further, on the first form Dr. Khalid indicated how much

Plaintiff could “frequently” lift and carry, on the second form he
indicated how much Plainntiff could “occasionally carry”--on the
first he did not indicate how much Plaintiff could occasionally
lift and carry and on the second he did not indicate how much
Plaintiff could frequently lift and carry.

(See id.)

Similarly,

no inherent contradiction exists between a decreased ability to
22

stand, walk, and sit and an increase in the amount a person is able
to lift and carry given the different functions being assessed, the
intervening eight-month period, and the difference in the
evaluation tools previously mentioned.

Because comparisons and

claimed inconsistencies can only be evaluated contextually, the
ALJ’s criticism cannot provide a basis for undermining Dr. Khalid’s
opinions.
Third, the ALJ’s reference to Dr. Khalid’s acknowledgment of
Plaintiff’s non-compliance with his diabetes medications and
“‘minimal’ findings of examination” (R. 21) are conclusory
statements unsupported by the analysis required for the Court to
determine whether the ALJ’s assessment is supported by substantial
evidence.

The ALJ does not explain how medication non-compliance

affects Dr. Khalid’s findings.

If she is inferring that

Plaintiff’s subjective reporting to Dr. Khalid regarding his
symptoms are undermined by medication non-compliance, the ALJ must
do more, particularly in that an ALJ may only rely on a lack of
treatment compliance in making an adverse credibility finding after
considering the reasons for the lack of compliance.

See, e.g.,

Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 547 (3d Cir. 2007).
Pursuant to SSR 96-7p, “the adjudicator must not draw any
inferences about an individual’s symptoms and their functional
effects from a failure to seek or pursue regular treatment without
first considering any explanations that the individual may

23

provide.”

SSR 96-7p, 1996 WL 374186, at *7.4

Here Plaintiff

provided an explanation to Dr. Khalid regarding his failure to take
his diabetes medication during that time period–-lack of insurance
and no money.

(R. 42, 418, 429.)

Though ALJ Appetta mentioned

non-compliance in her credibility assessment, she did not discuss
Plaintiff’s lack of insurance as a factor in play at certain
relevant times.

(See R. 18.)

In her medical evidence review, she

4

SSR 96-7p was superseded by SSR 16-3p effective March 28,
2016. SSR 16-3p, 2016 WL 1119029, at *1 (S.S.A.). SSR 16-3p
eliminates the word “credibility” from the sub-regulatory policy
because the regulations do not use the term. Id. The Seventh
Circuit explained the change in Cole v. Colvin, 831 F.3d 411, 412
(7th Cir. 2016):
Recently the Social Security Administration
announced that it would no longer assess the
“credibility” of an applicant’s statements,
but would instead focus on determining the
“intensity and persistence of [the
applicant’s] symptoms.” . . . The change in
wording is meant to clarify that
administrative law judges aren’t in the
business of impeaching claimants’ character;
obviously administrative law judges will
continue to assess the credibility of pain
assertions by applicants, especially as such
assertions often cannot be either credited or
rejected on the basis of medical evidence.
Id. Substantively, SSR 16-3p’s guidance concerning the evaluation
of subjective symptoms in disability claims is largely consistent
with the policies set out in SSR 96-7p regarding the assessment of
the credibility of an individual’s statements. See, e.g.,
Sponheimer v. Comm’r of Soc. Sec., Civ. No. 15-4180, 2016 WL
4743630, at *6 n.2 (D.N.J. Sept. 8, 2016). In this case, ALJ
Appetta issued her Decision prior to the effective date of SSR 163p so her obligation was to follow the guidance set out in SSR 967p. Therefore, the Court references the standards set out in SSR
96-7p in this Memorandum.
24

notes the correlation between not taking diabetes medicine and lack
of insurance/money which Plaintiff reported to Dr. Khalid, but she
does not discuss how this affects Plaintiff’s credibility or, as
noted above, undermines Dr. Khalid’s findings.

(See R. 19.)

Finally, ALJ Appetta’s statement that Dr. Khalid noted
“mostly ‘minimal’ findings” of examination is not supported by
citation and appears to be a subjective assessment which does not
explain why problems found in physical examinations were
“minimal”–-findings which the ALJ herself referred to as “moderate”
in her review of the medical evidence.

(See R. 19-20.)

Because the the ALJ has not provided valid reasons for
discounting Dr. Khalid’s opinions, the Court cannot conclude that
her assessment is based on substantial evidence.
Turning now to the ALJ’s consideration of Dr. Milroth’s
opinion, ALJ Appetta assigned no weight to the opinion for several
reasons.

(R. 20-21.)

The Court agrees with the ALJ that the

record does not contain objective treatment notes from Dr. Milroth.
(See R. 20.)

A review of the evidence shows only sparse records

from Dr. Milroth and sparse treatment during some portions of the
relevant time period.

(See, e.g., R. 484-87.)

However, the

record does show that Dr. Milroth was Plaintiff’s treating
physician during the relevant time, and Plaintiff was seen
regularly during certain periods.

(Id.)

The first reason proffered for discounting the opinion was the

25

ALJ’s conclusion that Dr. Milroth seemed to contradict his “extreme
assessments” with his opinion that Plaintiff’s impairments would
“‘seldom’ result in symptoms severe enough to interfere with the
attention and concentration required to perform simple work-related
tasks.”

(R. 20 (citing R. 482-83, 507-08).)

The form question

asks the following: “How often are your patient’s symptoms
associated with their impairments severe enough to interfere with
attention and concentration required to perform simple work-related
tasks?”

The question does not stipulate an eight-hour day or

relate to any exertional level.

With the open wording of the

inquiry, the ALJ’s perceived contradiction does not provide a
reason to undermine the opinion in that the limitations on physical
activities assessed by Dr. Milroth do not necessarily implicate
attention and concentration if Plaintiff were to perform simple
work-related tasks within the parameters he outlined.

Conversely,

his “seldom” response does not necessarily mean that pain which may
be associated with performing tasks outside of the recommended
range/duration would not affect attention and concentration.
After noting the lack of objective treatment notes and Dr.
Small’s examination finding that Plaintiff’s extremities were
unremarkable, as well as the fact that Plaintiff did not mention
that he had any complications with his diabetes or that it was
uncontrolled, ALJ Appetta concluded that Dr. Milroth’s extreme
limitations were inconsistent with the evidence as a whole “which

26

indicates only some mild musculoskeletal impairments, while also
indicating non-compliance by the claimant regarding treatment of
his diabetes.”

(R. 21.)

As noted above, reference to non-

compliance without further analysis is problematic as is
characterizing Plaintiff’s musculoskeletal impairments as “mild.”
A further problem with the ALJ’s analysis is her reliance on Dr.
Small’s examination findings and assertion that “no mention was
made of any complications with diabetes” (R. 21) in that there is
no indication that the colonoscopy-related physical examination
included a comprehensive extremity assessment (similar to those
conducted by Dr. Khalid) and the ALJ failed to note that
Plaintiff’s medical history included neuropathy which Dr. Khalid
related to diabetes (R. 421, 431, 475).

Finally, in her assessment

of Dr. Milroth’s opinion, the ALJ did not acknowledge the objective
clinical findings made by Dr. Khalid in his two consultative
examinations–-findings which arguably support Dr. Milroth’s
limitations.
Because the the ALJ has not provided adequate reasons for
discounting Dr. Milroth’s opinion, the Court cannot conclude that
her assessment is based on substantial evidence.
Having determined that ALJ Appetta’s analyses of the opinions
of Dr. Khalid and Dr. Milroth are insufficient, the Court must
consider whether these errors are harmless.

The Court cannot deem

these errors harmless because the RFC assessed is based on the

27

ALJ’s assignment of significant weight to the State non-examining
sources which found limitations substantially different from those
assessed by Dr. Khalid and Dr. Milroth.

Given the analytical

deficits discussed above, a proper analysis of the examining source
opinions could yield exertional limitations incompatible with light
work, the full range of which requires “a good deal of standing or
walking, or when it involves sitting most of the time with some
pushing and pulling of arm and leg controls.”
404.1567(b).

20 C.F.R. §

While the ALJ did not find Plaintiff capable of a

full range of light work, she did not definitively account for
limitations on the amount of time Plaintiff could stand/walk or
limit his abilities to push/pull, the latter having been found
limited by Drs. Khalid, Milroth, and Park (R. 90, 422-23, 439,
483).

Furthermore, manipulative limitations found by Drs. Khalid

and Milroth (R. 439, 483) are not accounted for in the RFC nor are
they properly discounted in the ALJ’s decision.

See Cotter, 642

F.2d at 706 (ALJ may not reject pertinent or probative evidence
without explanation).

In that Plaintiff, as a person “closely

approaching middle age,” with a high school education and without
transferable skills, would be found disabled if he were found
capable of sedentary rather than light work, 20 C.F.R. Part 404,
Part 404, Subpart P, Appendix 2, Grid Rule 201.14, a more thorough
evaluation of the evidence is required.

28

For all of these reasons,

remand is necessary.5
B. Credibility Assessment
Plaintiff maintains the ALJ erred because her credibility
assessment is generally defective, specifically because she did not
consider Plaintiff’s work history.

(Doc. 17 at 20.)

Defendant

responds that the ALJ’s credibility determination is supported by
the record.

(Doc. 18 at 20.)

The Court concludes that the ALJ

should reconsider the credibility determination upon remand.
Because remand is required for the reasons stated above,
detailed discussion of this claimed error is not warranted.
However, the Court notes that, as previously discussed, treatment
non-compliance should not be used as a basis to discount
Plaintiff’s credibility without a full discussion of the claimed
reasons for the lack of compliance.

Further, though not a reason

for remand, Plaintiff’s long work history should be specifically
considered by the ALJ in explaining her credibility finding.
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.

5

An appropriate Order is

Given the sparse record and some consistency between the
examining providers, this may be a case where the ALJ determines on
remand that further development of the record is warranted. See 20
C.F.R. § 404.1520b(c)(1); Johnson v. Comm’r of Soc. Sec., 529 F.3d
198, 204-05 (3d Cir. 2008).
29

filed simultaneously with this action.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: April 25, 2017

30