Torres v. Colvin

Filing 14

MEMORANDUM (Order to follow as separate docket entry)upon consideration of the Respondents motion for an enlargement of time in which to file a response to the petition, said motion (Doc. 10) is hereby GRANTED. The Respondent may file a response to the petition on or before May 30, 2017.Signed by Honorable Richard P. Conaboy on 5/5/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Carlos Torres

:

Plaintiff

: Case No. 3:16-cv-2230

v.

: (Judge Richard P. Conaboy)

Nancy A. Berryhill1
Acting Commissioner of
Social Security

:
:

Defendant
:
___________________________________________________________________
Memorandum
I.

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

of the Social Security Administration (“SSA”) or (“Agency”) on his
application for Disability Insurance Benefits. (“DIB”).

Plaintiff

filed his Title II application for DIB on December 7, 2012 alleging
onset of disability as of January 1, 2006.
the administrative level on August 1, 2013.

His claim was denied at
Plaintiff then

requested a hearing before an administrative law judge (“ALJ”).
Plaintiff received two such hearings, one on January 28, 2015 and a
second hearing on May 5, 2015.

On May 22, 2015, the ALJ issued a

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. Section 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
Commission of Social Security or any vacancy in such office.”
1

decision denying Plaintiff’s application.

Plaintiff appealed this

decision to the Appeals Council which, on September 22, 2016,
affirmed the ALJ’s denial of benefits.

The Appeals Council’s

decision constitutes a “final decision” by the Agency and vests
this Court with jurisdiction to hear Plaintiff’s appeal pursuant to
42 U.S.C. § 405(g).

The parties have briefed their respective

positions (Docs. 11, 12, and 13) and this case is now ripe for
decision.
II.

Testimony Before the ALJ.
A.

Hearing of January 28, 2015 (R.65-93).

Present for the hearing before ALJ Reana K. Sweeney were:

the

Plaintiff and his attorney, Ronald T. Tomasko, along with Brian
Bierley, a vocational expert.
summarized as follows.

The Plaintiff’s testimony may be

He was born on February 15, 1956 and was 59

years of age on the date of the hearing.

The ALJ noted that

Plaintiff’s insured status had expired as of December 31, 2008.
During the period since January 1, 2016 through the date of the
hearing Plaintiff lived alone and he was not married.

Plaintiff

could not articulate a reason why he chose January 1, 2006 as the
alleged onset date of the disability, but he did testify that he
last worked in 2004.

He is 5'11" and weighs 170 pounds.

From

January 1, 2006 through his last insured date, December 31, 2008,
Plaintiff lived on Workmen’s Compensation payments he received
pursuant to a work-related injury in 2004.

2

He ultimately settled

his Workmen’s Compensation case in 2013.
Plaintiff has a valid driver’s license and completed 11 years
of formal schooling.
1979.

Later on, he earned a high school GED in

He has never served in the military and has never been

incarcerated.

In the 15 years immediately preceding his alleged

disability onset date the Plaintiff worked for several employers.
For a time he worked for United Parcel Services unloading trucks.
He often lifted 40-50 pound packages in the course of this
employment and occasionally moved some that weighed up to 110
pounds.

Plaintiff also worked for the Drexel Group at various

locations.

These jobs were also physically demanding and called

for frequent lifting of 40-60 pound parcels.

Typically, he would

lift packages from a skid and carry them to a table where others
would separate the contents.
B.

Hearing of May 5, 2015 (R.24-64).

Plaintiff’s reconvened hearing included his testimony and that
of Andrew Caparelli, a vocational expert.

Mr. Caparelli reviewed

the discussion of Plaintiff’s work history that had begun in the
previous hearing.

He identified Mascot Petroleum and International

Periodical Distributors as other companies who had employed
Plaintiff in the past.

The ALJ then directed questions to

Plaintiff.
Plaintiff reconfirmed the weights he customarily handled at
his prior places of employment and stated that he had not worked at

3

all since 2006.
since 2006.

He stated further that he had not looked for work

During the pertinent time frame – - January 1, 2006

through December 31, 2008 - - he had not undergone any back
surgery.

Plaintiff did participate in a physical therapy program

at a facility in Hershey, Pennsylvania.

He could not be specific

regarding how long his course of physical therapy had lasted but
stated that it had been weeks or perhaps months.
Discussion then ensued between the ALJ and Plaintiff’s counsel
in which they discussed medical documentation that Plaintiff’s
counsel had submitted.

Reference was made to a lumbar spine MRI

that demonstrated degenerative disc disease.

Epidural injections

that Plaintiff had received were also noted.

Plaintiff stated that

he had received “many” such injections and that he continues to
receive them.
Plaintiff related that a typical day for him in the period
2006 through 2008 involved arising at 6:00 a.m. to take medications
and then basically resting the rest of the day in a supine or
sitting position.
his back pain.

He was thus immobile because standing aggravated

He was taking pain medications throughout this

period and, while they were helpful, they did not completely
control his pain.

Plaintiff indicated that a Dr. Zeliger had

proposed that he undergo a back surgery but that he declined to
have surgery because “that’s a dangerous thing”.

Plaintiff

explained that he has three discs in his neck that are “no good”

4

and that he has pain in his shoulders as well as low back pain with
numbness in his arms and legs.

He indicated also that he gets

headaches because he has too much fluid in his head.
Upon questioning by his attorney, Plaintiff stated that during
the applicable period he could stand for no more than five minutes
at a time before resting.

He indicated that from 2006 through 2008

he was not capable of lifting more than 20 pounds.

He was in

constant back pain and was getting pain injections every two weeks.
These injections blunted his pain but the pain would typically
return at a greater intensity within a week of each injection.

He

opined that he would have been unable to do his past jobs from 2006
through 2008 because those jobs required a great deal of standing
as well as lifting, bending, and twisting.
The vocational expert (“VE”) then took the stand.

He stated

that he was familiar with Plaintiff’s work history and that he was
familiar with the various regulations that affect Social Security
decisions as well as the Dictionary of Occupational Titles (“DOT”).
The vocational expert indicated that on Plaintiff’s “date last
insured” (December 31, 2008) he was beyond his 52nd birthday and,
thus, was classified as “approaching advanced age”.

The vocational

expert then systematically described Plaintiff’s work history and
listed all his previous jobs as either “medium” or “heavy” in terms
of their exertional levels.
The ALJ asked the vocational expert a hypothetical question in

5

which the VE was asked to assume an individual of the same age,
education, and work experience as the Plaintiff who: could do
“medium” work as defined in the DOT while requiring only “normal”
breaks; could use hand and arm levers or foot and leg pedals only
occasionally; could climb stairs or ramps only occasionally; could
stoop, bend, squat, and kneel only occasionally; must avoid
exposure to extreme cold or moisture; must avoid working around
hazardous machinery or in high exposed places; is limited to simple
duties that can be learned on the job in a short period of time;
must avoid interaction with the general public; and have only
occasional contact with supervisors and co-workers.

The VE stated

that, given the assumptions of the hypothetical question, the
Plaintiff would be unable to do any of his past relevant work.
The ALJ then asked the VE to assume an individual identical to
the one in the first hypothetical question except for the fact that
he would be limited to “light” work as defined in the Social
Security regulations.

The VE stated that such a person would be

able to perform five (5) occupations that exist in significant
numbers in the national economy.

These occupations were identified

as: conveyor line baker worker; agricultural produce sorter;
cleaner/housekeeper; potato chip sorter; and slicing machine
tender.

The VE stated that his conclusions were based upon the

DOT, OSHA regulations, and his personal field experience.

When

asked by Plaintiff’s counsel whether all of these jobs required

6

that the individual stand the majority of the work day, the VE
responded that that was the case for each job but for the bakery
conveyor line worker.

That position would allow the individual a

sit/stand option.
III. Medical Evidence.
A.

Dr. Cho (R.607-637).

Dr. Cho was the Plaintiff’s treating physician throughout the
relevant time frame.

The record indicates that he saw Plaintiff on

at least 31 occasions between January 1, 2006 and December 31,
2008.

Dr. Cho’s progress notes regarding these visits were

informed by several imaging studies that he had requested.

One

such study was an MRI of Plaintiff’s lumbar spine performed on
March 22, 2006 that revealed degenerative changes without spinal
stenosis or herniated discs at all lumbar levels.

(Record 611).

An additional film requested by Dr. Cho was taken on September 29,
2006 that revealed no evidence of acute osseous abnormality within
the lumbar spine and stable, mild degenerative changes as compared
to the film study of March 22, 2006.

(R.613).

Dr. Cho’s progress notes for the period January 1, 2006
through December 31, 2008 are quite consistent in their assessment
of Plaintiff’s physical status throughout that period.

Dr. Cho’s

notes continually indicate that Plaintiff is experiencing lumbar
and cervical pain with mild limitation of range of motion in both
areas.

On and after December 8, 2006, Dr. Cho’s progress notes do

7

consistently demonstrate that Plaintiff’s cervical range of motion
is “full” on most occasions.

Dr. Cho’s notes often describe

Plaintiff as de-conditioned and indicate that Dr. Cho has
encouraged Plaintiff to perform re-conditioning exercises and
exercises designed to increase his range of motion.

Dr. Cho also

continuously notes that Plaintiff was able to heel/toe walk but
consistently documents a positive straight leg raising test on the
right with right-sided radiculopathy.

Dr. Cho prescribed Oxycontin

for Plaintiff’s back pain until he developed a tolerance to that
drug.
Mobic.

Afterward, Dr. Cho switched Plaintiff to Methadone and
At no time did Dr. Cho recommend that Plaintiff undergo

surgery and he confined his management of Plaintiff’s symptoms to
medication, trigger point injections, and physical therapy.
Dr. Cho never expressed any opinion as to the extent of
Plaintiff’s functional limitations.

On May 28, 2008, Dr. Cho did

note that Plaintiff’s chronic cervical spondylosis and right
shoulder A.C. joint problems were 95-97% improved.

However, Dr.

Cho never expressed any assessment of the degree to which
Plaintiff’s lumbar symptoms had improved, if at all, over the
course of his treatment.

Yet, over many visits, Dr. Cho continued

to document Plaintiff’s persistent lumbar pain with right-sided
radiculopathy and continued to prescribe various pain medications
and trigger-point injections to alleviate Plaintiff’s symptoms.
Dr. Cho also noted on May 28, 2008 that Plaintiff should exercise

8

more and that Plaintiff “should start to look for a job”.
B.

R.)2

Dr. Zeliger (R.172 and 705-707).

Dr. Zeliger, a board certified orthopedic surgeon, began
seeing Plaintiff at some point in 2011 after Dr. Cho retired.

In

January of 2015, Dr. Cho provided a medical opinion to the effect
that, based upon his review of all records compiled by Dr. Cho from
2006 through 2008, Plaintiff “was in fact disabled and unable to
work” during that time frame.

(R.172).

Dr. Zeliger has also interpreted an MRI performed on February
13, 2013 as demonstrating: marked disc space narrowing with chronic
bulging of the disc and moderate to severe right and moderate left
neuroforaminal stenosis at L5-S1; moderate bulging with facet
arthropathy and mild canal stenosis with mild to moderate
neuroforaminal stenosis, left greater than right at L4-L5; disc
space narrowing with diffuse bulging and small left paracentral
foraminal annular tear with slightly asymmetric bulging to the left
with some facet hypertrophy at L2-3; and central canal stenosis and
neuroforaminal stenosis at L3-4 and L1-L2 with moderate disc
bulging.

(R.706).

While this MRI was performed years after

Plaintiff’s last insured date, Dr. Zeliger’s impressions from this
MRI are largely consistent with MRI’s commissioned by Dr. Cho in

2

Dr. Cho continued to treat Plaintiff from the end of Plaintiff’s insured status (December 31,
2008) through May of 2011 when he retired. Inasmuch as these records do not address Plaintiff’s
physical status during the time he was insured for Social Security purposes, they are of limited
relevance to his claim.
9

2006.
IV.

ALJ Decision.
The ALJ’s decision (Doc. 10-2 at 9-23) was unfavorable to the

Plaintiff.

It included the following Findings of Fact and

Conclusions of Law:
1.

The claimant last met the insured status
requirements of the Social Security Act on December
31, 2008.

2.

The claimant did not engage in substantial gainful
activity during the period from his alleged onset
date of January 1, 2006 through his date last
insured of December 31, 2008.

3.

Through the date last insured, the claimant had the
following severe impairments: degenerative disc
disease of the lumbar and cervical spine with lower
extremity radiculopathy, bilateral shoulder
bursitis, left shoulder labral tear and right
shoulder joint degeneration, and right knee injury.

4.

Through the date last insured, the claimant did not
have an impairment or combination of impairments
that met or medically equaled 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).

10

5.

After careful consideration of the entire record,
the undersigned finds that, through the date last
insured, the claimant had the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) except occasional bilateral operation of
hand and arm levers/cranks or foot and leg
pedals/levers.

The claimant also required

occasional climbing stairs and ramps but no climbing
ladders/ropes/scaffolding and occasional stooping,
kneeling, crouching/squatting and reaching overhead
with his right upper extremity.

The claimant needed

to avoid crawling, and concentrated exposure to
extreme cold or wet/water/liquids.

The claimant

needed to avoid large vibrating objects or services,
working around or with hazardous machinery and large
fast-moving machinery on the ground, and working in
high exposed places and around or with sharp objects
and toxic or caustic chemicals.

The claimant was

limited to simple duties that could be learned in a
short period of time and requiring a GED of 1,1,1,
no direction (sic) interaction with the general
public but occasional direct interaction with
supervisors and co-workers.
6.

Through the date last insured, the claimant was

11

unable to perform any past relevant work.
7.

The claimant was born on February 15, 1956 and was
52 years old, which is defined as a younger
individual age 18-49 on the date last insured.

The

claimant subsequently changed age category to
closely approaching advanced age.
8.

The claimant has at least a high school education
and is able to communicate in English.

9.

Transferability of job skills is not an issue in
this case because the claimant’s past relevant work
is unskilled.

10.

Through the date last insured, considering the
claimant’s age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national
economy that the claimant could have performed.

11.

The claimant was not under a disability, as defined
in the Social Security Act, at any time from January
1, 2006, the alleged onset date, through December
31, 2008, the date last insured.

V.

Disability Determination Process.
V.

Disability Determination Process.

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

12

determine whether a claimant is disabled.3

It is necessary for the

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 CFR §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of
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
3

“Disability” is defined as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not less that 12
months . . . .” 42 U.S.C. § 423(d)(1)(A). The Act further provides that an individual is disabled
only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the immediate area
in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A).
13

with the claimant’s abilities, age, education, and work experience
can perform.

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

As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found there are jobs that
exist in the national economy that Plaintiff is able to perform.
(R.at 15).
VI. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

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

Substantial evidence

It means such relevant evidence

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

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

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

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
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
14

test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence.

Nor is evidence substantial if it

is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion.

See Cotter, 642 F.2d at 706

(“Substantial evidence” can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted).

The search for

substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.

710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.

If she has not done so and has not

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

15

rational.”
1979).

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

In Cotter, the Circuit Court clarified that the ALJ must

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

However, the ALJ need not undertake an

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

See, e.g., Knepp v.

“There is no requirement

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

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

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

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

the Cotter doctrine is not implicated.”

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
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
16

by substantial evidence, shall be conclusive . . .”).

“However,

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

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

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

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

See, e.g., Albury v.

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

An ALJ’s

decision can only be reviewed by a court based on the evidence that
was before the ALJ at the time he or she made his or her decision.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
VII. Discussion.
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
606 F.2d at 406.

See Dobrowolsky,

Social Security proceedings are not strictly

adversarial, but rather the Social Security Administration provides
17

an applicant with assistance to prove his claim.

Id.

“These

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

Hess v. Secretary of Health,

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

As such,

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

Dobrowolsky, 606

Further, the court in Dobrowolsky noted “the cases

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

Id.

Plaintiff’s Allegations of Error.

Plaintiff has asserted that the ALJ erred in three respects
that should cause this Court to remand this matter for further
consideration by the Agency.
1.

We shall consider these in turn.

Whether the ALJ’s Decision was Supported by Substantial
Evidence?

The ALJ concluded that the Plaintiff was capable of performing
“light work” with numerous additional limitations identified by the
ALJ.

(R.at 15).

Light work in the context of the Social Security

regulations has a very specific meaning:
The regulations define light work as lifting no more than
18

20 pounds at a time with frequent lifting or carrying of
objects weighing up to ten pounds.

Even though the

weight lifted in a particular light job may be very
little, a job is in this category when it requires a good
deal of walking or standing - -the primary difference
between sedentary and most light jobs.

A job is also in

this category when it involves sitting most of the time
but with some pushing and pulling of arm/hand or leg/foot
controls which require greater exertion than in sedentary
work....Relatively few unskilled light jobs are performed
in a seated position.
See SSR 83-10.
Our task is to determine whether the ALJ’s conclusion
that claimant could perform “light work” with various
limitations is supported by substantial evidence of record as
required by Cotter v. Harris, supra.

Having reviewed the

testimony, the medical evidence of record, and the ALJ’s
decision, we conclude that the ALJ’s residual functional
capacity (“RFC”) lacks the necessary evidentiary support.
The Government argues that the ALJ has the ultimate
authority to determine a claimant’s RFC and that an RFC
assessment need not be supported by “matching expert opinion
evidence.”

Chandler v. Commissioner of Social Security, 667

F.3d 356, 367 (3d. Cir. 2011)(cited in Defendant’s brief, Doc.

19

12 at 7).

The Government also contends that “even a treating

physician’s opinion that a claimant is unable to work is not
dispositive.”

Adorno v. Sullivan, 40 F.3d 43, 47-48 (3d. Cir.

1994)(cited in Defendant’s brief, Doc. 12 at 6).

The

Government’s assertions on these points are accurate yet they
do not resolve the Court’s concerns.
There is a great tension between the Court’s obligation
to show appropriate deference to an ALJ’s decision and its
obligation to ensure that the ALJ’s conclusions are ones that
could be credited by a reasonable mind as discussed in
Richardson v. Perales, supra.

This means that the deference

to be accorded an ALJ’s RFC determination has its limits and,
while the ALJ may be within his rightful authority in crafting
an RFC determination without a matching physician’s opinion,
he still must base his determination upon medical evidence.
In choosing to reject a treating physician’s opinion 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 credibility judgments, speculation or lay opinion.”
Morales v. Apfel, 225 F.3d 310, 317 (3d. Cir. 2000).

Dr.

Zeliger, despite the fact that he did not see Plaintiff during
the relevant time period, still qualifies as a treating
physician on the basis of his later relationship with the

20

claimant.

While his medical opinion that Plaintiff was

disabled from 2006 through 2008 is cryptic, it is based upon
diagnostic testing ordered by Dr. Cho, Plaintiff’s previous
treating physician, and voluminous progress notes authored by
Dr. Cho in the relevant time frame.

Attaching reliability to

Dr. Zeliger’s opinion in this context may be warranted in a
system that routinely permits an ALJ to elevate the opinion of
mere consulting physicians, who routinely do nothing more than
evaluate the files compiled by treating physicians, over that
of treating physicians.

In any event, the Court’s review of

this record discloses no adequate basis for the ALJ, a lay
person, to infer that Plaintiff can perform light work.
With respect to the ALJ’s reliance (R.at 17) on Dr. Cho’s
progress note of May 28, 2008 that stated, in part, that the
Plaintiff “should start to look for a job”, the Court is
struck by the fact that in dozens of notes Dr. Cho authored
both before and after that date he never made any other
allusion to Plaintiff’s employability.

Moreover, there is

complete ambiguity as to what type of job Dr. Cho may have had
in mind.

Did he envision Plaintiff working in any capacity

eight hours per day and forty hours per week?

Was he

envisioning some type of sporadic employment the performance
of which would not defeat a disability claim?

We do not know

the answer to these questions from this record and neither did

21

the ALJ.

The Court views Dr. Cho’s statement of May 28, 2008

as an outlier and an anomaly in this record which does not
provide substantial evidence that Plaintiff was capable of
full-time employment on that date or any other date in the
relevant period.
This record does contain copious documentation by a
longtime treating physician, Dr. Cho, that Plaintiff was in
near constant pain and suffering from decreased range of
motion in his shoulders, cervical spine, and lumbar spine
along with pain radiating down his right leg from the alleged
onset date (January 1, 2016) through at least the date last
insured (December 31, 2008).

Dr. Cho treated Plaintiff for

this entire period with powerful pain killing medications and
epidural injections and never expressed any opinion as to
Plaintiff’s functional capacity.

Dr. Zeliger, who became

Plaintiff’s treating physician after Dr. Cho retired,
expressed an unequivocal opinion, based upon diagnostic
studies and Dr. Cho’s progress notes, that Plaintiff was
disabled throughout the relevant period.

However, the Court

is not willing to credit Dr. Zeliger’s cryptic analysis
without further elaboration and will not fault the ALJ for her
reluctance to do so.
The Court does find, however, that there is insufficient
medical information in this file from which to reasonably

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discern the Plaintiff’s RFC.4

On this point it will be

necessary for the Commission to get a clarifying and more
comprehensive assessment from Dr. Zeliger and/or a report from
a consulting physician on the basis of the diagnostic studies
Dr. Cho relied upon and the progress notes he made.5

Then,

and only then, will the Commissioner be in a position to make
a reasoned decision as to the scope of Plaintiff’s RFC. A
remand to more fully develop the record is necessary.
2.

Whether the Agency’s decision must be vacated due to
the ALJ’s failure to give appropriate consideration
to the side effects of Plaintiff’s medications, his
limited proficiency in the English language, and the
mischaracterization of his age during the relevant
period by the ALJ?

With respect to Plaintiff’s argument regarding his
proficiency in the English language, the Court’s review of the
transcripts of the two hearings afforded him provide ample
proof that Plaintiff was reasonably proficient in the English
language.

The Court’s opinion in this regard is also informed

by Plaintiff’s acknowledgments that he completed eleventh

4

The ALJ’s obligation to fully and fairly develop the record is implicated by this finding.
See Ventura v. Shalala, 55 F.3d 900, 902 (3d. Cir. 1995).
5

The Court does acknowledge that the law provides for rare cases where an ALJ may
appropriately craft an RFC determination when no physician has opined as to a claimant’s functional
capabilities. This is not such a case.
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grade and subsequently earned his Graduate Equivalency Degree.
(R.at 78-79).

The transcripts indicate that, while

Plaintiff’s use of the English language may not be
linguistically stylish, he certainly communicates in English
on a functional level that is adequate to perform the type of
jobs the ALJ found to be within his capacities.

Plaintiff’s

argument on this point is rejected.
Plaintiff’s next argument, that the ALJ failed to provide
for the side effects of his medications in crafting his RFC,
is unpersuasive.

Our review of Dr. Cho’s extensive progress

notes reveals no repetitive theme of any side effects and
Plaintiff’s brief does not reference any specific examples of
such limitations in the record.

Accordingly, Plaintiff’s

assertion that the ALJ erred by failing to allow for
medication side effects is also rejected.
Plaintiff’s argument concerning the ALJ’s
mischaracterization of his age is accurate.

The ALJ’s finding

that the Plaintiff was a “younger individual age 18-49" on his
date last insured (R.at 18) is simply incorrect.

As Plaintiff

asserts (Doc. 11 at 5-6), he was actually an “individual
approaching advanced age” on his date last insured and,
indeed, for the 23 months preceding that date.

The Agency is

reminded that should the amplification of the record result in
a finding that Plaintiff is capable of only “sedentary” work,

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Plaintiff’s appropriate classification as an “individual
approaching advanced age” may impact the Agency’s ruling.
3.

Whether the ALJ Unreasonably Discounted the Opinion
of Dr. Zeliger Because He Had Not Treated Plaintiff
During the Relevant Period?

The Court has already indicated that the ALJ’s decision
to accord “little weight” (Record at 18) to Dr. Zeliger’s
opinion solely on the basis that he did not treat Plaintiff
during the relevant time period was erroneous.
21 ante.

See pages 20-

Thus, the Agency will be directed to procure a more

comprehensive explanation from Dr. Zeliger and/or an
evaluation of the medical evidence by a consulting physician.
VIII.

Conclusion.

For the reasons stated herein this matter will be
remanded to the Commissioner for further proceedings
consistent with points raised in this Memorandum.

An Order

consistent with this determination will be filed
contemporaneously.
BY THE COURT

S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court
Dated: May 5, 2017

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