Krout v. Colvin

Filing 20

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes that Plaintiffs appeal is properly granted. This matter is remanded to the Acting Commissioner for further consideration consistent with this opinion. An appropriate Order is filed simultaneously with this MemorandumSigned by Honorable Richard P. Conaboy on 6/22/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HEIDI KROUT,

:
:CIVIL ACTION NO. 3:16-cv-2055
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A BERRYHILL,
:
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.

(Doc. 1.)

Plaintiff

filed an application for benefits on October 2, 2013, alleging a
disability onset date of June 26, 2013.

(R. 15.)

After Plaintiff

appealed the initial denial of the claims, a hearing was held on
January 28, 2015, and Administrative Law Judge (“ALJ”) Scott M.
Staller issued his Decision on March 11, 2015, concluding that
Plaintiff had not been under a disability during the relevant time
period.

(R. 24.)

Plaintiff requested review of the ALJ’s decision

which the Appeals Council denied on September 15, 2016.

(R. 1-7.)

In doing so, the ALJ’s decision became the decision of the Acting
Commissioner.

(R. 1.)

Plaintiff filed this action on October 12, 2016.

(Doc. 1.)

She asserts in her supporting brief that the Acting Commissioner’s
determination should be reversed or remanded for the following

reasons: 1) substantial evidence does not support the ALJ’s
evaluation of the opinion of the consulting psychologist; and 2)
substantial evidence does not support the ALJ’s credibility
evaluation.

(Doc. 16 at 2.)

After careful review of the record

and the parties’ filings, the Court concludes this appeal is
properly granted.
I. Background
Plaintiff was born on July 6, 1971, and was forty-one years
old on the amended disability onset date.

(R. 23.)

She has a high

school education and past relevant work as a cosmetologist.
A.

Medical Evidence

1.

(Id.)

Physical Impairments
Records from Hayshire Family Medicine span from September 5,

2012, to November 18, 2014.

(R. 218-64, 265-73, 345-80.)

In September 2012, Plaintiff was seen at Hayshire by Tatiana
Dalton, M.D., after having had two fainting episodes.
Physical and mental exams were normal.

(R. 243-44.)

(R. 242.)
Dr. Dalton

ordered a CT scan and bloodwork and assessed fainting,
hypertension, obesity, and nicotine dependence.

(R. 242.)

Other

“Active Problems” included anxiety disorder, depression, and
migraine headaches.

A September 24th visit with Marie

(R. 242-43.)

Kellett, M.D., at Hayshire indicates that Plaintiff’s CT scan of
the head showed no evidence of acute infarction, hemorrhage, or
mass.

(R. 240.)

Dr. Kellett also recommended MRI of the head and

2

an event monitor to assess the fainting episodes.

(R. 238.)

A

later MRA done in October 2012 was also unremarkable, and Dr.
Kellett noted on October 25, 2012, that she wanted Plaintiff to
proceed with an event monitor and echocardiogram to further assess
the fainting.

(R. 232.)

December 28, 2012, office notes show

that Plaintiff cancelled or did not show for several appointments.
(R. 228.)
Plaintiff again saw Dr. Kellett on June 27, 2013, the day
after Plaintiff found her son dead in bed (and the day of her
alleged onset of disability).

(R. 15, 225.)

Plaintiff’s son had

been having problems but been clean and sober for a few weeks, and
his death was a possible suicide.

(R. 225.)

Plaintiff was

distraught, crying constantly, not sleeping, and completely
overwhelmed.

(Id.)

On August 13, 2013, Plaintiff saw Dr. Kellet who assessed
elbow pain, depression, anxiety, and grief reaction.

(R. 220.)

Dr. Kellett provided the following history:
42 year-old female who presents for
followup of depression, anxiety and grief
regarding her son who passed away almost 2
months ago. She suspects it is more of an
unintentional overdoes and suicide attempt at
this time. He was abusing prescription drugs
she has since found out. Unfortunately most
family members have started to move on and
she is unable to get beyond her grief. She
[has] not had any formal counseling. . . .
She . . . is involved . . . with some online
support groups. She is also having numbness
in her left fourth and fifth fingers which
[s]he thinks is coming from her elbow. She
3

does have some discomfort. She would like to
be referred to an orthopedic specialist.
(R. 220.)
221.)

Under “Physical Exam,” Dr. Kellett noted “tearful.”

(R.

She encouraged Plaintiff to seek counseling and recommended

that she see an orthopedic specialist for her left elbow discomfort
and numbness.

(Id.)

On September 5, 2013, Plaintiff was seen for an orthopedic
consultation at OSS Health by Darcy Kresge, PA-C. (R. 265-66, 27981.)

Joseph E. Alhadeff, M.D., was the supervising phsyician.

(Id.)

Dr. Kellett had referred Plaintiff because of left elbow

pain.

(R. 265.)

OSS office records indicate that Plaintiff was

working regular duty as a kennel manager and was able to perform
activities of daily living.

(R. 279.)

Review of Systems indicates

that Plaintiff reported joint pain, anxiety, depression, and
insomnia, but she denied memory loss.

(R. 280.) Plaintiff was

diagnosed with left elbow pain, ulnar neuritis, and medial
epicondylitis and placed on a prednisone taper.

(Id.)

Plaintiff

was instructed to rest the injured body part, to ice injured area,
and to have further studies conducted on the area (electromyography
“EMG” and nerve conduction study “NCS”).

(R. 266-67, 280.)

October 9, 2013, office notes signed by supervising physician
William H. Ulmer, Jr., D.O., from OSS Health indicate that
Plaintiff had constant pain in her left elbow which increased with
lifting, exercise, twisting and bending.

(R. 276-78.)

She

reported numbness and tingling from the left hand that radiated to
4

her elbow.

(R. 276.)

Notes also show she continued to work

regular duty as a kennel manager.

(Id.)

Cervical spine x-rays

revealed “a loss of the cervical lordosis with noted early reverse
cervical lordosis being observed.
between C6-C7 is present.”

Only mild disk space narrowing

(R. 277.)

EMG study of the left arm

“did not show any nerve conduction abnormalities suggestive of
cervical radiculopathy, plexopathy, myography, peripheral
polymyopathy, or medial or ulnar nerve mononeuropathy.”

(Id.)

Plaintiff was diagnosed with cervical radiculitis and medial
epicondylitis of the left elbow.

(Id.)

Notes indicate that

Plaintiff had received significant relief with Medrol Dosepak, she
was prescribed a stronger prednisone taper, and she received a
steroid injection.

(Id.)

At Plaintiff’s November 26, 2013, Hayshire office visit,
physical examination showed neck pain with movement to the right
and left and pain over the cervical spine.

(R. 374.)

Plaintiff

was assessed to have cervical disc herniation and cervical
radiculopathy for which she was prescribed Meloxicam and
Gabapentin.

(R. 373.)

The provider noted that Plaintiff had been

seen at OSS then went to Johns Hopkins University for a second
opinion because the pain was getting worse.

(Id.)

Plaintiff

reported she was likely going to have cervical fusion on her neck
over the next few months.

(Id.)

Plaintiff was again seen at Hayshire on December 3, 2013, for

5

neck pain.

(R. 370-72.)

Dr. Kellett noted that Plaintiff reported

constant, severe, and debilitating pain and she appeared to be in
moderate pain throughout the visit.

(R. 370-72.)

She noted that

Hopkins wanted to do neck surgery but Plaintiff was reluctant and
wanted to seek another opinion.

(R. 371.)

Dr. Kellett recommended

Fentanyl 25 microgram patch and Oxycodone for breakthrough pain.
(Id.)

She cautioned Plaintiff about side effects including

drowsiness, recommended that Plaintiff continue her antidepressant
medication.

(R. 370.)

Dr. Kellett’s Assessment included grief

reaction, cervical disc herniation, cervical radiculopathy, chronic
pain syndrome, and depression.

(Id.)

In January 2014, Dr. Kellett discontinued Fentanyl and started
Oxycontin with Oxycodone for breakthrough pain.

(R. 367.)

indicate that disability forms would be filled out.

(Id.)

Notes
Under

“Physical Exam,” Dr. Kellett noted that Plaintiff appeared
uncomfortable.

(R. 369.)

At her February 6, 2014, visit with Dr. Kellett, Plaintiff
reported that she was feeling better regarding her
grief/anxiety/depression, she remained reluctant to pursue surgery,
and the MS Contin was working very well for her pain.

(R. 365.)

Under “Physical Exam,” Dr. Kellett noted that Plaintiff was in no
apparent distress.

(R. 366.)

In March 2014, Dr. Kellett recorded that Plaintiff appeared
“mildly uncomfortable,” Plaintiff reported no side effects from her

6

medication which she said helped to control her pain but did not
eliminate it.

(R. 361-62.)

Plaintiff reported that she continued

to have struggles with the death of her son and she continued to
see a “new age” chiropractor in Lancaster.

(Id.)

In May 2014, Plaintiff reported that she was having
significant pain in her elbow and the chronic neck pain continued.
(R. 358.)

She had scheduled an appointment at the Spine Institute

in Philadelphia to get another opinion regarding neck surgery.
(Id.)

Plaintiff reported significant pain in her left elbow and

was given a steroid injection which had helped in the past.
358-60.)
for pain.

(R.

Plaintiff’s medications included morphine and Oxycodone
(R. 357.)

Plaintiff said she was doing yoga.

(R. 358.)

She continued to report problems dealing with her son’s death, she
said she was not sleeping well, and she was having issues with her
daughter.

(Id.)

Physical exam findings indicate that Plaintiff

was tearful and had left elbow pain at the medial epicondyle and
pain with pronation.

(R. 359.)

Plaintiff was seen by John Frank Spallino, M.D., at the Laser
Spine Institute in Wayne, Pennsylvania, on June 30, 2014, for
review and evaluation of MRI/X-ray concerning her cervical spine
pain with radiculopathy.

(R. 398.)

Dr. Spallino assessed spinal

stenosis in the cervical region, displacement of cervical
intervertebral disc without myelopathy, cervical spondylosis
without myelopathy, and degeneration of cervical intervertebral

7

disc.

(R. 399.)

He recommended a new cervical MRI and

laminectomy, foraminotomy, and decompression of the nerve root.
(Id.)
In July 2014, Dr. Kellett reported that Plaintiff was on
narcotics for chronic pain due to degenerative disc disease with
radicular symptoms, her depression and anxiety worsened after the
death of her son the preceding year, her migraine headaches were
fairly well controlled, she was planning to have laparoscopic
surgery at the Spinal Institute in the fall, she lost twenty
morphine tablets and managed to survive without them, and medical
issues were stable but not where Plaintiff would like them to be.
(R. 355.)

Dr. Kellett also noted that Plaintiff was tearful at

times during her office visit.

(R. 356.)

On August 21, 2014, Plaintiff had a neurological consultation
with Albert Heck, M.D., of WellSpan Neurology.

(R. 335.)

Dr. Heck

summarized his findings in a letter to Dr. Kellett on the same
date:
As you know, she is a 43 year-old with
symptoms involving her left arm. Family is
neurologically unremarkable without evidence
of myelopathy or radiculopathy clinically.
She is locally tender at the biceps origin
and also lateral elbow, and I wonder whether
some of her pain complaints, including those
that are “shooting” might not be tendinitis
rather than neurologic. This is also
supported by the fact that her symptoms seem
to worsen when she flexes her elbow
suggesting a localized process. Her chronic
pain syndrome may be playing some role here
as well, and certainly the issues of ongoing
8

grief and depression influencing her symptoms
should be considered. I am not sure whether
or not surgery will improve her symptoms, but
it is reasonable to consider. I have asked
her to look into grief counseling and see her
back in 6-8 weeks for reevaluation after she
considers our long discussion today.
(R. 335.)
On October 3, 2014, Dr. Kellett noted that Plaintiff continued
to deal with the grief of losing her son and commented that she was
glad Plaintiff was seeing a counselor.

(R. 352.)

Plaintiff was to

continue with pain medication and follow up with neurology.
351.)

(R.

Dr. Kellett reported that Plaintiff was in no apparent

distress.

(R. 353.)

At Plaintiff’s follow-up visit with Dr. Heck on October 10,
2014, he reported that her neurological exam was mostly
unremarkable and she had pain consistent with tennis elbow.
324.)

(R.

Dr. Heck said that Plaintiff had a suggestion of nerve root

impingement at C7 on the left but he was not sure that it was a
clinical issue at the time.

(Id.)

Dr. Heck suggested that,

although the pain comes back when the Gabapentin wears off,
Plaintiff should continue the medication to keep her pain under
control and she should be followed with observation.

(R. 324-25.)

Dr. Heck noted that Plaintiff believed counseling was helping her
and he encouraged her to continue it.1

1

(Id.)

February 3, 2015, correspondence addressed “To Whom It May
Concern” from GSC Counseling Associates indicates that Plaintiff
attended two outpatient therapy sessions to address issues of loss.
9

On October 22, 2014, Plaintiff saw Pawel Ochalski, M.D., at
WellSpan Neurosurgery for a neurosurgical consultation.

(R. 331.)

In his summary letter to Dr. Heck, the referring physician, Dr.
Ochalski noted that palpation of the cervical, thoracic, and lumbar
spine did not show tenderness or muscle spasms, motor examination
revealed 5/5 strength in both upper and lower extremities, deep
tendon reflexes were 3+ throughout the upper and lower extremities,
and Plaintiff’s gait was ataxic.

(R. 330.)

Dr. Ochalski

recommended new MRI and CT scan of the cervical spine and
prescribed methylprednisolone pack with reassessment in two weeks.
(Id.)

He added that he discussed the natural history of cervical

spondylitic myelopathy and a risk for quadriparesis if it is
untreated.

(Id.)

At her visit with Dr. Kellett on October 31, 2014, Dr. Kellett
recorded that Plaintiff’s pain had escalated, Plaintiff expected to
have surgery scheduled shortly, the neurosurgeon discussed the
possibility of quadriplegia if the problem was not taken care of,
she was not sleeping due to pain, and she was taking more oxycodone
than she should.

(R. 349.)

Dr. Kellett reported that Plaintiff

was tearful, appeared uncomfortable, and was slightly antaxic when
first getting up.

(R. 350.)

Dr. Kellett recommended increasing

(R. 462.) Plaintiff’s initial session was on September 11, 2014,
and her second session was on September 25, 2014. (Id.)
The
letter states that Plaintiff’ “cancelled many times, then stopped
attending.” (Id.)
10

the dosage of the long-acting morphine which she hoped would
decrease the need for oxycodone for breakthrough pain, getting
another MRI and CT scan, and follow up with neurosurgery.

(R.

348.)
On the same date, Plaintiff had the MRI of the cervical spine
and CT of the cervical spine ordered by Dr. Ochalski.
342.)

(R. 340,

The CT scan showed scattered degenerative changes and

referred to the MRI for better soft tissue evaluation. (R. 342.)
The MRI showed “degenerative disc disease of C6-7 with severely
narrowed left neural foramen, mainly due to bony spur and focal
ossification of the posterior longitudinal ligament.
bulge is present.

Mild disc

The right neural foramina is mildly to

moderately narrowed.”

(R. 340.)

The MRI also showed “[d]iffuse

disc bulge at C5-6 level with facet arthropathy, greater on the
right and mild narrowing of the right neural foramina.
of spinal canal stenosis.
and C4-5.”

No evidence

Right sided facet arthropathy of C3-4

(Id.)

Plaintiff had her neurosurgical follow up appointment with Dr.
Ochalski on November 5, 2014.

(R. 319.)

In Dr. Ochaslki’s report

to Dr. Heck, he acknowledged Plaintiff’s worsening symptoms of neck
discomfort which he rated as moderate, noted that Neurontin helped
her left side arm symptoms, and also noted some low back
discomfort.

(R. 319.)

Dr. Ochalski reported motor examination

findings of 5/5 motor strength in upper and lower extremities and

11

normal gait with no evidence of ataxia.

(Id.)

He said he had

reviewed the October 2014 updated MRI and CT scan which showed
evidence of spondylotic changes at C5-6 and C6-7 but no evidence of
cord compression.

Dr. Ochalski recommended referral to physiatry

to develop nonoperative treatment strategies for medical management
of Plaintiff’s discomfort as well as consideration of epidural
injections.

(Id.)

Office records from Plaintiff’s November 18, 2014, visit with
Dr. Kellett indicated that Plaintiff would follow up with pain
management because the neurosurgeon decided against surgery after
her recent MRI.

(R. 345-46.)

Plaintiff reported that she hoped to

start acupuncture when she had enough money for the first
appointment and she did not want to start physical therapy.
346.)

(R.

Plaintiff wanted to increase Gabapentin and start weaning

off narcotics.

(Id.)

On November 25, 2014, Plaintiff was seen at WellSpan Physiatry
by Henry A. Richardson, M.D. (R. 381-89.)

Plaintiff complained of

neck pain, rated at 6/10, and leg weakness.

(R. 382.)

Physical

examination showed appropriate affect and mood within normal
limits, limited range of motion of cervical and lumbar spine,
cervical facet loading present bilaterally, normal strength, and
gait within normal limits.

(R. 386-87.)

Dr. Richardson ordered

MRI of the lumbar spine and physical therapy referral.

(R. 381.)

He noted that cervical epidural injections would be held because

12

Plaintiff said that radicular pain down her arms had subsided with
low dose Neurontin.

(Id.)

Dr. Richardson commented that Plaintiff

had been on high dose morphine and she previously was on Oxycontin
and Fentanyl and he did not recommend high-dose narcotics for
treatment of chronic neck pain.

(Id.)

The December 5, 2014, MRI of the lumbar spine indicated the
following: L2-L3 mild disc dessication and disc bulge with mild
indentation of the thecal sac, mild spinal canal stenosis, and mild
bilateral neural foraminal narrowing; prominent Tarlov cyst
scalping the posterior margin of S2 vertebral body; and some mild
facet osteoarthropathy at the L4-L5 and L5-S1 levels.
B.

Opinion Evidence

1.

(R. 390.)

Examining Consultant
On November 5, 2013, Anthony J. Fischetto, Ed.D., performed a

clinical psychological examination and review of documents, and
completed a Medical Source Statement of Ability to do Work-related
Activities (Mental).

(R. 307-14.)

The Medical Source Statement

indicates that Dr. Fischetto concluded Plaintiff had mild to
moderate limitations in many areas and a marked restriction in her
ability to respond appropriately to usual work situations and to
changes in a routine work setting.

(R. 307-08.)

He noted that

factors supporting his assessment included “depressed, crying,
shaky, anxious, panic attacks.”

(R. 308.)

In the narrative

portion of his report, Dr. Fischetto noted that Plaintiff was very

13

distressed and grieving about her seventeen year old son’s June
2013 suicide.

(R. 310.)

He reported that Plaintiff last worked

the day before her son died and she could not work because she
could not stop crying and could not think clearly as a result of a
combination of her son’s death and her mental illness.

(R. 312.)

Mental Status Examination included the following: Plaintiff was
crying, shaking, nervous and jittery; her mood and affect were
depressed and anxious; she had trouble sleeping; her productivity
of thought was slow; her continuity of thought was goal-directed
with no looseness of association; her abstract thinking was good
for similarities; her general fund of information was average;
regarding concentration, she was slow for serial sevens; she was
oriented to time, place, and person; remote memory, recent past
memory, and recent memory were average; immediate retention and
recall was poor for digit span; test judgment was good; insight was
average; and reliability was good.

(R. 313.)

Dr. Fischetto

concluded that Plaintiff’s prognosis was poor and she would benefit
from ongoing psychiatric and pscyhological help.

(R. 314.)

Regarding the effects of her impairment on functioning, he noted:
in activities of daily living, Plaintiff was able to drive when not
taking pain medicine for her neck, she does not like shopping or
being around a lot of people, she gets nervous, and she was able to
cook and clean; in social functioning, Plaintiff was limited; in
concentration, persistence and pace, Plaintiff was a little slow

14

and appeared to be in another world and very distraught which was
exacerbated by the suicide of her son.
2.

(Id.)

Reviewing Consultant
On November 19, 2013, Sharon Becker Tarter, Ph.D., a State

agency consultant, reviewed records and completed a Psychiatric
Review Technique (“PRT”).

(R. 63-64.)

Dr. Tarter concluded that

Plaintiff had moderate restrictions in activities of daily living,
moderate difficulties in maintaining social functioning, moderate
difficulties in maintaining concentration, persisence or pace, and
no repeated episodes of decompensation, each of extended duration.
(R. 63.)
C.

Function Reports and ALJ Hearing

1.

Plaintiff’s Function Report
In a Function Report dated October 11, 2013, Plaintiff said

that her ability to work was limited by the loss of her son which
caused insomnia and constant breaking down.

(R. 151-59.)

She said

it was also limited by compressed discs in her neck, going for
physical therapy, pain medications, she could not hold objects and
could barely bend her elbow, and her anxieties.

(R. 151.)

Plaintiff indicated that her ongoing hobbies included running
a website, that she spent about three hours a day with others
including time with her husband, time on the computer, and talking
on the phone.

(R. 153.)

She said she goes to grief support once a

week, visits with her children once a week and attends physical
15

therapy three times a week.

(Id.)

She also said her social

activities had changed in that she didn’t do a lot except visit and
she didn’t go out.

(R. 154.)

Regarding abilities listed in check-

the-box form, Plaintiff indicated she was unable to do most things
due to her neck, left arm, and elbow problems.

(R. 154.)

However,

she said she could walk one-half mile before needing to rest.
(Id.)

She also said she did not follow written instructions well

and she did not follow spoken instructions well because she was
forgetful.

(Id.)

Plaintiff indicated that she prepared food like

sandwiches and she did light housework and laundry two to three
times a week for about two hours.
2.

(R. 159.)

Third Party Fucntion Report
Douglass Krout, Plaintiff’s husband, completed a Function

Report on October 12, 2013.

(R. 161-68.)

He said that Plaintiff’s

ability to work was limited because she did not sleep well and
cried constantly, she was in pain most of the time, her left side
was barely functional, and she may have had a minor stroke after
finding her deceased son.

(R. 161.)

Mr. Krout said that Plaintiff

does not go outside much because of depression.

(R. 164.)

He also

noted that she continued her hobbies of reading, writing, and
painting and she did them all well and often.

(R. 165.)

Mr. Krout

indicated that Plaintiff spent time with others–-she visited
friends, had computer buddies, and she talked via text.

(Id.)

However, he also said her social activities had changed in that she

16

was not active anymore and tended to stay isolated.
3.

(R. 166.)

ALJ Hearing
At the January 28, 2015, hearing in Harrisburg, Pennsylvania,

Plaintiff, who was represented by an attorney, stated that she was
a stay-at-home mother for fifteen years, worked as a hair stylist
for several years beginning in 2007, and then worked for the Dover
Area Animal Hospital from 2012 to 2013 (“about a year, until my son
died”).

(R. 35.)

The ALJ instructed the Vocational Expert (“VE”),

Andrew Caparelli, that the Dover Animal Hospital job did not meet
the requirements for substantial gainful activity.

(Id.)

Plaintiff testified that she had numerous physical problems
including constant pain in the neck for which she took morphine
twice a day and electrical jolts down her left arm for which she
took Gabapentin.

(R. 36-37.)

She also said she had problems with

mood swings which caused insomnia and “uncontrollable bouts of
losing it” and she had a panic attack about every six months.
38.)

(R.

Plaintiff stated that she did not have problems getting along

with people but gets nervous being around people.

(R. 38-39.)

Regarding household chores and related activities, Plaintiff
testified that she did not cook or do housework, and she went
grocery shopping with her husband once every two weeks.
She reported that she painted and wrote a blog.

(R. 40.)

(R. 41.)

Plaintiff said that medications did not relieve all of her
symptoms and her medications caused concentration issues and

17

perhaps contributed to her insomnia and appetite issues.

(R. 42.)

She rated her pain with medication at six on a scale of one to ten.
(R. 44.)

She said her crying spells could last all day on a bad

day and she had a bad day “every couple of days.”

(R. 46.)

Regarding concentration, she said that she would be doing something
and then just forget what she was doing.

(R. 46.)

When asked about future treatment for her physical problems,
Plaintiff said nothing could be done for her ankle because it was
arthritis, her neck problem was arthritis and she may have a nerve
cauterization, treatment for her back was unknown because she had
just had the MRI which showed spinal stenosis and she was going to
see a neurosurgeon in February, and surgery or further treatment
for her left elbow was “on the back burner.”

(R. 48-49.)

Plaintiff testified that treatment for her mental health problems
included trying to see her counselor once a week for an hour and
working on getting the medications right.

(R. 49.)

The ALJ asked Vocational Expert Andrew Caparelli (“VE”) to
consider a person with Plaintiff’s background and work experience
who could perform no greater than light work,
could occasionally climb ramps or stairs.
Never climb ladders, ropes, or scaffolds.
They could occasionally balance, stoop,
kneel, crouch or crawl. They must avoid
concentrated exposure to extreme cold. They
would be able to understand, remember and
carry out simple instructions.
They can make judgments on simple work
18

related decisions. That they would need a
job with only occasional decision making and
only occasional changes in the work setting.
They should have no interaction with the
public. Only occasional interaction with
coworkers or supervisors.
They could maintain attention and
concentration for two-hour segments over an
eight-hour period, and that they could
complete a normal work week without excessive
interruptions from psychologically and
physically based symptoms.
(R. 51.)

The VE testified that such a person could not perform

Plaintiff’s past work but there would be other work available
including the jobs of marker, mail clerk, and conveyer line bakery
worker.

(R. 52.)

If reduced to the sedentary level, the

individual would be able to perform jobs such as final assembler,
carding machine operator, and semiconductor bonder.

(R. 53.)

However, if the individual were to be off task more than fifteen
percent of the workday, or missed two or more days per month, the
VE testified that no jobs would be available.

(Id.)

He also

explained that the work would be more limited if a sit/stand option
were introduced and jobs would remain at both the sedentary and
light levels if the individual had only occasional use of the left
upper extremity.
D.

(R. 54-55.)

ALJ Decision
In his March 11, 2015, Decision, ALJ Staller made the

following Findings of Fact and Conclusions of Law:
1.

The claimant meets the insured status
requirements of the Social Security Act
19

through March 31, 2018.
2.

The claimant has not engaged in
substantial gainful activity since June
26, 2013, the alleged onset date (20 CFR
404.1571 et seq.).

3.

The claimant has the following severe
impairments: degenerative disc disease
of the cervical spine; chronic pain
syndrome; bipolar disorder; anxiety
disorder; and a personality disorder (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
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 she should never climb ladders,
ropes or scaffolds. The claimant is
limited to occasional climbing of ramps
or stairs, balancing, stooping,
kneeling, crouching, and crawling. She
should avoid concentrated exposure to
extreme cold. The claimant is able to
understand, remember and carry out
simple instructions. She can make
judgments on simple work related
decisions. The claimant is limited to
only occasional decision-making and only
occasional changes in the work setting.
She should have no interaction with the
public. The claimant is limited to only
occasional interaction with co-workers
and supervisors. She is able to
maintain concentration and attention for
two-hour segments over an eight-hour
period. Furthermore, the claimant is
able to complete a normal work-week
without excessive interruptions from
20

psychologically or physically based
symptoms.
6.
7.

The claimant was born on July 6, 1971
and was 41 years old, which is defined
as a younger individual age 18-49, on
the alleged disability date (20 CFR
404.1563).

8.

The claimant has at least a high school
education 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
perform (20 CFR 404.1569 and
404.1569(a)).

11.

(R. 17-24.)

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

The claimant has not been under a
disability, as defined in the Social
Security Act, from June 26, 2013,
through the date of this decision (20
CFR 404.1520(g)).

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

21

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
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

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).
22

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

20 C.F.R. § 404.1520(e); 416.920(e).

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

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

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

If the claimant satisfies this burden, then the Commissioner

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

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

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

(R. 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
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).
23

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 ALJ to
analyze all probative evidence and set out the reasons for his
decision.

Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119-20 (3d

Cir. 2000) (citations omitted).

If he 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.”

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

24

1979).

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.

See, e.g., Knepp v.

Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
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 a claimed error

would not affect the outcome of a case, remand is not required.
Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).
25

Finally,

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 reversed or remanded for the following reasons: 1)
substantial evidence does not support the ALJ’s evaluation of the
opinion of the consulting psychologist; and 2) substantial evidence
does not support the ALJ’s credibility evaluation.
A.

(Doc. 16 at 2.)

Consulting Psychologist Opinion
Plaintiff contends that substantial evidence does not support

the ALJ’s evaluation of Dr. Fischetto’s opinion because he provided
no valid reasons for rejecting the opinion which included the
finding that Plaintiff had marked restrictions in her ability to
respond appropriately to work pressures in a usual work setting and
to changes in a routine work setting.
inter alia R. 308).)

(Doc. 16 at 6-10 (citing

Defendant responds that the ALJ reasonably

discounted this one aspect of Dr. Fischetto’s opinion.
13.)

(Doc. 18 at

The Court concludes that remand is required for further

consideration of the ALJ’s assessment of Dr. Fischetto’s opinion.
The regulations provide that greater deference is due an
examining source than a non-examining source.
404.1527(c)(1).

20 C.F.R. §

Section 404.1527(c)(3) states the following:

The more a medical source presents relevant
evidence to support an opinion, particularly
26

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.

Section 404.1527(c)(6) indicates that other factors which will

be taken into account in considering how much weight to give a
medical opinion include the amount of understanding the source has
of disability programs and their evidentiary requirements and the
extent to which the source is familiar with other information in
the case.
ALJ Staller stated that he “assigns limited weight to Dr.
Fischetto’s Medical Source Statement (Mental) . . . .

Dr.

Fischetto’r opinion that the claimant has marked restrictions is
not supported by the record as a whole and is not consistent with
Dr. Fischetto’s observation that the claimant is oriented to time,
place and person.”

(R. 22 (citing Ex. 5F).)

The only marked restriction in the Medical Source Statement
(Mental) is in Plaintiff’s ability to “[r]espond appropriately to
usual work situations and to changes in a routine work setting.”
(R. 308.)

Dr. Fischetto identified factors supporting his

assessment to include “depressed, crying, shaky, anxious, panic
27

attacks.”

(Id.)

The ALJ does not cite any evidence in support of the claimed
conflict nor elaborate why being “oriented to time, place, and
person” in a clinical setting is not consistent with the opinion
that the individual would have a marked restriction in the ability
to “[r]espond appropriately to usual work situations and to changes
in a routine work setting” based on numerous Mental Status
Examination findings.

(See R. 308, 312, 313.)

Common sense

suggests that orientation to time, place, and person may be a
baseline requirement for appropriate workplace responses but the
latter involves far more.

Thus, without additional explanation,

the ALJ’s asserted internal contradiction does not provide an
adequate basis to undermine Dr. Fischetto’s finding on the marked
restriction identified.
ALJ Staller’s general statement that the marked restriction
“is not supported by the record as a whole,” considered alone or in
combination with the asserted internal contradiction, does not
provide the substantial evidence required for several reasons.
First, an ALJ’s “mere recital of boilerplate language” does not
satisfy the ALJ’s obligation to explain the basis for his decision.
Cotter, 642 F.2d at 707 n.10; see Miller v. Colvin, Civ. A. No. 141283, 2015 WL 1811296, at *4 (W.D. Pa. Apr. 21, 2015) (ALJ’s
assignment of little weight to doctor’s Mental Residual Functional
Capacity Form on bases that doctor was not a mental health

28

professional and his opinion was “not consistent with the record as
a whole or with the claimant’s treatment history” (without
specifying inconsistencies) was not supported by substantial
evidence and required remand); see also Carter v. Apfel, 220 F.
Supp. 2d 393, 397 (M.D. Pa. 2000).

Here, the ALJ does not identify

any specific evidence of record which contradicts the marked
restriction finding, and his reference to “the record as a whole”
must be considered boilerplate language.

(See R. 22.)

Therefore,

this Court cannot conclude his assessment of Dr. Fischetto’s
opinion regarding Plaintiff’s marked restriction is supported by
substantial evidence.3
This conclusion is bolstered by the fact that ALJ Staller’s
review of evidence related to Plaintiff’s alleged mental
impairments includes numerous citations to treating physician’s
references to the presence of factors identified by Dr. Fischetto
as supportive of his opinion regarding the marked restriction.
(See R. 21, 308.)

While the ALJ also cites evidence that could be

construed as indicative of less serious limitations and/or an
improving condition (see R. 21-22), without further analysis by the

3

Regarding § 404.1527(c)(6) factors--the provider’s
familiarity with disability programs/requirements and other
information in the case--Dr. Fischetto reviewed documents of record
(R. 310) and, in the Court’s history of reviewing Social Security
appeals, the Court is familiar with Dr. Fischetto’s examining
consultant role in disability cases, a role which suggests
familiarity with programs and their requirements. Therefore,
application of § 404.1527(c)(6) factors weighs in favor of
deference to Dr. Fischetto’s opinion.
29

ALJ, the Court can only speculate as to the evidence relied upon, a
practice prohibited by the law of this Circuit in that a reviewing
court cannot provide a post hoc rationalization for the ALJ’s
decision.

See, e.g., Christ the King Manor, Inc. v. Sec’y U.S.

Dep’t of Health and Human Services, 730 F.3d 291, 305 (3d Cir.
2013); see also Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir.
2001) (“Where there is conflicting probative evidence in the
record, we recognize a particularly acute need for an explanation
for the reasoning behind the ALJ’s conclusions, and will vacate or
remand a case where such an explanation is not provided.”).
Though Defendant attempts to link the ALJ’s reference to “the
record as a whole” with his discussion of Plaintiff’s mental health
treatment and activities of daily living (Doc. 18 at 15-16), the
ALJ’s failure to make any link himself to specific evidence cannot
be rehabilitated by Defendant’s post hoc rationalization.

Just as

the reviewing court cannot “supply a reasoned basis for the
agency’s action that the agency itself has not given,” Christ the
King Manor, 730 F.3d at 305, the defendant is likewise prohibited
from doing so–-the ALJ must provide justification for his
conclusion in the first instance, Fargnoli, 247 F.3d at 42.
Consistent with the law of this Circuit, the Court cannot
conclude that ALJ Staller’s assessment of Dr. Fischetto’s opinion
is supported by substantial evidence.

Therefore, remand is

required for further consideration of this issue.
30

B.

Credibility Evaluation
Plaintiff contends that the ALJ’s credibility determination is

not supported by substantial evidence.

(Doc. 16 at 10.)

Defendant

responds that the ALJ reasonably found that Plaintiff’s allegations
of disabling pain were not entirely credible.

(Doc. 18 at 19.)

The Court concludes that review of the ALJ’s credibility
determination is appropriate upon remand.
The Third Circuit Court of Appeals has stated that “[w]e . . .
ordinarily defer to an ALJ’s credibility determination because he
or she has the opportunity at a hearing to assess a witness’s
demeanor.”

Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003).

An “ALJ is empowered to evaluate the credibility of witnesses,” but
the determination must be supported by substantial evidence.

Van

Horn v. Schwieker, 717 F.2d 871, 873-74 (3d Cir. 1983).
ALJ Staller states that he did not find Plaintiff’s
allegations regarding the intensity, persistence and limiting
effects of her symptoms “entirely credible for the reasons
explained in this decision.”

(R. 20.)

Following this statement,

he sets out a review of alleged physical impairment evidence which
includes citations to evidence arguably supporting alleged effects
of her symptoms and evidence arguably undermining the alleged
effects.

(See R. 20-21.)

As with his review of mental impairment

evidence, the ALJ does not state specifically what evidence he
relies upon or rejects and his reason for the reliance or rejection

31

with limited exceptions discussed below.

(See R. 20-22.)

Rather,

he summarizes his finding that Plaintiff is only partially credible
as follows:
the objective medical evidence of record
fails to support the claimant’s complaints of
a disabling impairment. The claimant worked
as a kennel manager in 2013 after her alleged
onset date of June 26, 2013. The undersigned
finds the claimant is able to perform light
work. Furthermore, the undersigned notes
that there are no medical source statements
regarding the claimant’s physical abilities
in the medical evidence of record. The
undersigned also notes that there is no
indication that the claimant’s alleged
migraines, insomnia, possible minor stroke,
and a reconstructed ankle (left side) have
caused more than minimal limitation in the
claimant’s ability to work.
(R. 22.)
ALJ Staller went on to review Plaintiff’s husband’s Third
Party Function Report, noting that it essentially mirrored
Plaintiff’s statements in her own Function Report and he found
claimant and the claimant’s husband to be not
fully credible. The undersigned assigns
limited weight to the Third Party Function
Report (Exhibit 4E). The opinion of the
claimant’s husband that the claimant tends to
stay isolated (Exhibit 4E/7) is not supported
by the record as a whole and is not
consistent with the claimant’s statement that
she spends time with others for three hours a
day (Exhibit 3E/4).
(R. 22.)
While there may be adequate evidence in the record to
undermine Plaintiff’s credibility, the ALJ’s summary assessments

32

fall short of satisfying the requisite standard.

Without more

analysis, the ALJ’s reference to Plaintiff’s work as a kennel
manager after her alleged onset date does not necessarily impact
credibility because the ALJ determined that the job did not
constitute substantial gainful activity.

(R. 35.)

The ALJ’s

finding that Plaintiff was capable of performing light work is a
conclusion based in part on his finding that Plaintiff was not
entirely credible (R. 19-22)--to say that she is partially credible
because he finds she can do light work is circular at best and a
variant on similar language/reasoning has been rejected by this
Court and others.

See, e.g., Fell v. Astrue, Civ. A. No. 3:12-CV-

275, 2013 WL 6182041, at *11 (M.D. Pa. Nov. 25, 2013); see also
Bjornson v. Astrue, 671 F.3d 640, 644-45 (7th Cir. 2012) (listing
cases).

The ALJ’s notation that there are no medical source

statements regarding Plaintiff’s physical abilities in the medical
evidence of record is true, but it does not ipso facto support
diminished credibility.

The ALJ’s reference to his finding “that

there is no indication that the claimant’s alleged migraines,
insomnia, possible minor stroke, and a recontsructed ankle (left
side) have caused more than minimal limitation in the claimant’s
ability to work” does not save his credibility analysis because
Plaintiff’s function report and hearing testimony indicate that she
said her arm and neck problems were the main physical impairments
that impacted her ability to work (R. 36-37, 151).

33

Thus, the ALJ’s

finding that the record does not show that other impairments
limited Plaintiff’s ability to work is not a basis to undermine
Plaintiff’s credibility.
Finally, ALJ Staller’s reliance on the Third Party Function
Report as a basis to undermine Plaintiff’s credibility is
misplaced.

First, the ALJ’s statement that the opinion of the

claimant’s husband that the claimant tends to stay isolated
(Exhibit 4E/7) is not supported by the record as a whole” (R. 22)
suffers from the same boilerplate language problem discussed in the
preceding section of this Memorandum.
Second, the ALJ’s statement that “the opinion of the
claimant’s husband that the claimant tends to stay isolated
(Exhibit 4E/7) . . . is not consistent with the claimant’s
statement that she spends time with others for three hours a day
(Exhibit 3E/4)” (R. 22) is not supported by a contextual review of
the cited statements.

In the “Social Activities” section of

Plaintiff’s Function Report, in answer to the question “Do you
spend time with others?” and “If ‘YES,’ describe the kinds of
things you do with others,” Plaintiff responded “Husband, talk on
phone, computer.”

(R. 153.)

In answer to the follow-up question

of how often she did these things, Plaintiff responded “3 hrs a
day.”

(Id.)

At the end of the “Social Activities” section of the

form, the claimant is requested to “Describe any changes in social
activities since the illnesses, injuries, or conditions began.”

34

(R. 154.)
visit.

Plaintiff responded “I don’t do a whole lot except

I don’t go out.”

(Id.)

In comparison, in the “Social Activities” section of the Third
Party Function Report, Plaintiff’s husband answered “YES” to the
question of whether Plaintiff spent time with others, adding in
follow-up questions that she visits friends, has computer buddies,
and talks via text and she does these things often.

(R. 165.)

When asked to describe “changes in social activities since the
illnesses, injuries, or conditions began,” he said “she’s not
active anymore tends to stay isolated.”

(R. 166.)

This comparison shows differences in responses and shows
similarities as well.

Importantly, the ALJ’s perceived

contradiction between Plaintiff’s response that she spends three
hours a day with her husband, talking on the phone, and on the
computer, and Plaintiff’s husband’s statement that she tends to
stay isolated are not inconsistent when considered in context:
Plaintiff’s reported activities take place at home and Plaintiff
indicated that her social activities have changed in that she does
not go out.

(R. 153-54.)

Engaging in activities at home for three

hours a day and a change in activities of not going out cannot be
considered inconsistent with an assessment that Plaintiff’s social
activities have changed because she tends to stay isolated.

(R.

154, 166.)
Because ALJ Staller has not provided adequate reasons for

35

undermining Plaintiff’s credibility, the Court cannot conclude his
credibility determination is supported by substantial evidence.
Therefore, upon remand, further consideration of this issue is
required.
V. Conclusion
For the reasons discussed above, the Court concludes that
Plaintiff’s appeal is properly granted.

This matter is remanded to

the Acting Commissioner for further consideration consistent with
this opinion.

An appropriate Order is filed simultaneously with

this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

DATED: June 22, 2017

36