Blum v. Colvin
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 Memorandum.Signed by Honorable Richard P. Conaboy on 6/7/17. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DANIEL E. BLUM, JR.,
:CIVIL ACTION NO. 3:16-CV-2281
NANCY A. BERRYHILL,
Acting Commissioner of
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.
filed an application for benefits on July 22, 2013, alleging a
disability onset date of July 30, 2012, which he later amended to
April 19, 2014.
After Plaintiff appealed the initial
denial of the claims, a hearing was held on January 12, 2015, and
Administrative Law Judge (“ALJ”) Richard Zack issued his Decision
on March 17, 2015, concluding that Plaintiff had not been under a
disability during the relevant time period.
requested review of the ALJ’s decision which the Appeals Council
denied on October 13, 2016.
In doing so, the ALJ’s
decision became the decision of the Acting Commissioner.
Plaintiff filed this action on November 10, 2016.
He asserts in his supporting brief that the Acting Commissioner’s
determination should be remanded for the following reasons: 1) the
ALJ erred in finding Plaintiff capable of performing his past
relevant work; and 2) the ALJ erred in relying on the an outdated
State Agency medical opinion.
(Doc. 9 at 2.)
In his reply brief,
Plaintiff also asserts that the case should be remanded for
consideration of the evidence associated with the Agency’s
subsequent award of benefits on April 2, 2017, pursuant to a new
(Doc. 11 at 4.)
After careful review of the
record and the parties’ filings, the Court concludes this appeal is
Plaintiff was born on April 10, 1964, and was fifty years old
on the amended disability onset date of April 10, 2014.
He has a GED and past relevant work as a delivery driver, pizza
deliverer, and manager.
(R. 28, 49.)
Plaintiff does not present background medical evidence and
notes that he presents evidence he considers relevant to the issues
raised on appeal in the Argument section of his brief.
(Doc. 9 at
Defendant takes a similar approach to the presentation of
(Doc. 10 at 4.)
The Court will follow suit and, as
needed, cite evidence relied upon by the parties in the context of
B. Opinion Evidence
State Agency Consulting Physician
Louis B. Bonita, M.D., found that Plaintiff had the severe
impairments of Disorders of Back-Discogenic and Degenerative, Spine
Disorders, Disorders of Muscle, Ligament and Fascia, and Obesity.
He completed a Residual Functional Capacity assessment on
August 27, 2013.
He opined that Plaintiff had the
following exertional limitations: he could lift twenty pounds
occasionally and ten pounds frequently; he could stand and/or walk
for about six hours in an eight-hour workday and sit for the same
period of time; and he was not limited in his ability to push
and/or pull except as shown for lift and/or carry.
Bonita assessed the following postural limitations: Plaintiff could
climb ramps/stairs occasionally; he could never climb
ladders/ropes/scaffolds; and he could stoop, kneel, crouch, and
Primary Care Physician
Deborah Smith, M.D., completed a Physical Residual Functional
Capacity Assessment on November 21, 2014.
diagnoses of Spinal Stenosis, Meralgia Paresthetica, and
Hyperlipidemia, Dr. Smith found the following: Plaintiff could sit
and stand/walk for about two hours in an eight-hour workday; he
needed to be able to shift positions at will; he would need to take
unscheduled breaks during a work day; he could occasionally lift
and carry less than ten pounds, rarely ten pounds, and never more
than that; he could rarely crouch, stoop (bend), and twist; he
could occasionally climb stairs; he could never kneel; he did not
have any significant limitations with reaching, handling, or
fingering; he would be off task twenty percent of the workday; he
would likely miss more than four days of work per month as a result
of his impairments; his symptoms were reasonably consistent with
the diagnoses; he could never tolerate temperature extremes and
hazards; he could rarely tolerate dust, humidity, and
fumes/odors/chemicals; and she expected his impairments and their
effects to last for a continuous period of at least twelve months.
Dr. Smith explained that Plaintiff had symptoms for
years, he was on multiple medications for pain with some relief but
he still had chronic pain, and his prognosis was poor.
C. ALJ Hearing
At the January 12, 2015, hearing held by ALJ Zack, Plaintiff
and his attorney appeared, as did Vocational Expert “VE” Carmine
Plaintiff testified that he had trouble working
because of pain and what he was able to do: he had pain and
numbness down the right side of his arms and hands and at times he
had trouble gripping things; he had pain shooting down his back and
down the right side of his leg; the bottom of his left foot was
totally numb; and the right side of his leg was numb.
Plaintiff said that surgery had not been recommended for his back
and his arthroscopic knee surgery did not help.
time of the hearing Plaintiff was taking Neurontin for nerve pain,
oxycodone and percocet for pain, and cholesterol medication.
Plaintiff testified that, although he used to lift fifty
pounds, he generally could not lift and carry more than five pounds
and he had trouble lifting a five pound container of oil and
trouble with stairs when he was making pizza deliveries.
Plaintiff said he could walk fifteen or twenty feet without
stopping, he did not walk normally because of his back and leg
pain, he could only be on his feet for five to ten minutes before
he had to sit down, and he changed positions frequently to try to
When asked by ALJ Zack what he did in his managerial job,
Plaintiff responded that he did
everything from go through produce, unloading
the trucks, making the pizzas, deliveries.
You’re lifting anywhere from 50 pounds, which
I can’t do anymore, to lifting 5 pounds,
walking up steps, which is very hard for me
to do. Even getting out of the car because
sometimes you get the car in front of the
house and there’s no steps. Other times,
you’re half a block away, and your’re walking
up the steps or you’re walking up the hill if
they don’t have steps.
Plaintiff added that, although he was a manager, he did
deliveries, made pizzas, answered phones, and unloaded trucks.
He also said he was on his feet the whole time except when
he was driving which would mean sitting down for five to ten
minutes approximately every two hours but on days where he did not
need to help with deliveries he was on his feet continuously.
ALJ Zack asked the VE to consider an individual with
Plaintiff’s profile in terms of age, education, work experience,
and medical history who
still would be able to lift up to 20 pounds
occasionally and 10 pounds frequently. With
normal breaks and lunch periods throughout
the work day, he could either sit, stand, or
walk for about six out of eight hours in each
of those categories. . . . The claimant does
not maintain an ability to use his hands for
reaching in front of himself and laterally
side to side. He can handle, finger, and
feel objects. . . . [He] doesn’t have any
significant or serious non-exertional
In response to the ALJ’s question whether such an
individual could perform any of Plaintiff’s past work, the VE
responded that he would be able to do the manager position.
ALJ Zack then crafted a second hypothetical question asking
the VE to consider an individual who had the difficulties Plaintiff
described about his back problems with pain and numbness radiating
into his right leg, his knee problems, a renewal of hand problems,
the same limitations of lifting and carrying that Plaintiff
outlined, and the same difficulty in maintaining posture and
position for long periods of time and the need to constantly change
The VE responded that no jobs would be
available for such an individual.
The VE also testified
that his testimony was consistent with the Dictionary of
Occupational Titles (“DOT”) and companion publications.
Regarding the VE’s testimony in response to the first hypothetical
that the individual could perform the manager job, Plaintiff’s
attorney then asked whether that would be as actually or generally
The VE responded that it would be as both.
D. ALJ Decision
In his March 17, 2015, Decision, ALJ Zack made the following
Findings of Fact and Conclusions of Law:
The claimant meets the insured status
requirements of the Social Security Act
through December 31, 2017.
The claimant has not engaged in
substantial gainful activity since July
30, 2012, the alleged onset date (20 CFR
404.1571 et seq.).
The claimant has the following severe
impairments: degenerative joint disease
of the right knee, status post right
knee arthroscopy, partial synovectomoy,
partial medial meniscectomy,
chondroplasty of the patellofemoral
articulation of the right knee,
degenerative disc disease of the lumbar
spine and obesity (20 CFR 404.1520(c)).
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).
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).
The claimant can lift and carry 20
pounds occasionally and 10 pounds
frequently. He can sit, stand and/or
walk up to 6 hours each in an 8-hour
workday with regular breaks and lunch
periods. The claimant can do reaching
in front and laterally, handling,
fingering and feeling.
The claimant is capable of performing
past relevant work as a manager (DOT#
185.137-010). This work does not
require the performance of work-related
activities precluded by the claimant’s
residual functional capacity (20 CFR
The claimant has not been under a
disability, as defined in the Social
Security Act, from July 30, 2012,
through the date of this decision (20
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.1
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
“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
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).
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.
20 C.F.R. §§
404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.
20 C.F.R. § 404.1520(e); 416.920(e).
The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.
The disability determination involves shifting burdens of
The initial burden rests with the claimant to demonstrate
that he or she is unable to engage in his or her past relevant
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
Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).
As set out above, the instant decision was decided at step
four of the sequential evaluation process when the ALJ found that
Plaintiff could perform his past relevant work as a manager.
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.
It means such relevant evidence
as a reasonable mind might accept as adequate to support a
Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
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
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
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.
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.
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 . . .”).
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
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).
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
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
Plaintiff asserts that the Acting Commissioner’s determination
should be remanded for the following reasons:
1) the ALJ erred in
finding Plaintiff capable of performing his past relevant work; 2)
the ALJ erred in relying on the an outdated State Agency medical
opinion; and 3) remand is required for consideration of the
evidence associated with the Agency’s subsequent award of benefits
on April 2, 2017.
(Doc. 9 at 2; Doc. 11 at 4.)
Plaintiff’s second claimed error relates to the ALJ’s RFC
assessment which precedes the step four determination, the Court
will first review the ALJ’s consideration of medical opinion
Medical Opinion Evidence
Plaintiff asserts the ALJ erred by relying on the opinion of
Dr. Bonita in formulating Plaintiff’s RFC.
(Doc. 9 at 6.)
Defendant responds that substantial evidence supports the
evaluation of the medical opinions.
(Doc. 10 at 12.)
concludes Plaintiff has shown that remand is required for further
consideration of this issue.
Social Security Ruling 96-6p clarifies Agency policy regarding
the consideration of findings of fact by State agency medical
consultants such as Dr. Bonita.
The ruling provides that the
findings of fact made by such a professional must be treated as
expert opinion evidence of a non-examining source.
WL 371180, at *1.
SSR 96-6p, 1996
The ruling states that
[i]n appropriate circumstances, opinions from
state agency medical and psychological
consultants and other program physicians and
psychologists may be entitled to greater
weight than the opinions of treating or
examining sources. For example, the opinion
of a State agency medical or psychological
consultant or other program physician or
psychologist may be entitled to greater
weight than a treating source’s medical
opinion if the State agency medical or
psychological consultant’s opinion is based
on a review of a complete case record that
includes a medical report from a specialist
in the individual’s particular impairment
which provides more detailed and
comprehensive information than what was
available to the individual’s treating
Id. at *3.2
Here, the State agency opinion was rendered on August 27, 2013
(R. 95), and record medical evidence entries are dated at least
through November 2014 (see, e.g., R. 452-55).
Thus, Dr. Bonita’s
review was not based on a review of all relevant evidence.
the “complete case record” situation cited in SSR 96-6p is merely
exemplary, this ruling and broad relevant authority indicate that
the propriety of an ALJ’s reliance on a non-examining source
opinion is assessed in the context of whether the record contains
opinion evidence entitled to greater deference.
Where an ALJ is not faced with rejecting a treating or
examining source opinion, the Third Circuit Court of Appeals has
held that an ALJ may rely on a non-examining, non-treating opinion
that is uncontradicted by any other medical opinion in the record
even where the opinion is not based on a review of all the
See, e.g., Chandler v. Comm’r of Soc. Sec., 667 F.3d
356, 361 (3d Cir. 2011).
However, because the regulations and caselaw provide that
controlling weight is generally due a well-supported treating
physician’s opinion and greater deference is due an examining
ALJs are bound by the definitions in the Social Security
Rulings in that rulings are “binding on all components of the
Social Security Administration.” 20 C.F.R. § 402.35(b)(1). As
stated in Barnhart v. Walton, 535 U.S. 212, 217 (2002), these
rulings are entitled to deference by a reviewing court because
courts are to “grant an Agency’s interpretation of its own
regulations considerable legal leeway.”
source than a non-examining source, see, e.g., 20 C.F.R. §
404.1527(c), in a case where the record contains some evidence
entitled to greater deference than a non-examining source, reliance
on a non-examining source requires careful analysis and review.
In this case, the record contains the November 21, 2014,
opinion of treating physician Deborah Smith, M.D.
She is a primary care provider who treated Plaintiff at least from
June 2011 through November 2014.
(See R. 251, 452.)
recognized by ALJ Zack (R. 28), Dr. Smith’s opinion would
ordinarily be entitled to greater deference than that of the nonexamining State agency physician.
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.
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
Sometimes called the “treating physician rule,” the
principle 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 wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in your case, we will give it controlling
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
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)
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.
(citations omitted); see also Brownawell v. Commissioner of Social
Security, 554 F.3d 352, 355 (3d Cir. 2008).
In choosing to reject
the treating physician’s assessment, an ALJ may not make
“speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.”
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)).
Pursuant to 20 C.F.R. § 404.1527(c)(2), an ALJ must assign
controlling weight to a well-supported treating medical source
opinion unless the ALJ identifies substantial inconsistent
SSR 96-2p explains terms used in 20 C.F.R. § 404.1527
regarding when treating source opinions are entitled to controlling
1996 WL 374188, at *1.
For an opinion to be “well-
supported by medically acceptable clinical and laboratory
diagnostic techniques,” 28 U.S.C. § 404.1527(c)(2), “it is not
necessary that the opinion be fully supported by such evidence”–-it
is a fact-sensitive case-by-case determination.
SSR 96-2p, at *2.
It is a determination the adjudicator must make “and requires an
understanding of the clinical signs and laboratory findings in the
case record and what they signify.”
Similarly, whether a
medical opinion “is not inconsistent with the other substantial
evidence in your case record,” 28 U.S.C. § 404.1527(c)(2), is a
judgment made by the adjudicator in each case.
SSR 96-2p, at*3.
The ruling explains that
[s]ometimes, there will be an obvious
inconsistency between the opinion and the
other substantial evidence; for example, when
a treating source’s report contains an
opinion that the individual is significantly
limited in the ability to do work-related
activities, but the opinion is inconsistent
with the statements of the individual’s
spouse about the individual’s activities, or
when two medical sources provide inconsistent
medical opinions about the same issue. At
other times, the inconsistency will be less
obvious and require knowledge about, or
insight into, what the evidence means. In
this regard, it is especially important to
have an understanding of the clinical signs
and laboratory findings and any treatment
provided to determine whether there is an
inconsistency between this evidence and
medical opinions about such issues as
diagnosis, prognosis . . . , or functional
effects. Because the evidence is in medical,
not lay, terms and information about these
issues may be implied rather than stated,
such inconsistency may not be evidence
without an understanding of what the clinical
signs and laboratory findings signify.
SSR 96-2P, 1996 WL 374188, at *2.
The ruling further provides that
additional development may be needed to determine the appropriate
weight assigned a treating source opinion, “for example, to obtain
more evidence or to clarify reported clinical signs or laboratory
Id. at *4.
In contrast to those cases where the record
is adequately developed, SSR 96-2p specifically states that the ALJ
or Appeals Council “may need to consult a medical expert to gain
more insight into what the clinical signs and laboratory findings
signify in order to decide whether a medical opinion is well18
supported or whether it is not consistent with the other
substantial evidence in the case record.”
The ruling reinforces the need for careful review an ALJ’s
decision to discount a treating source opinion, with particular
attention paid to the nature of the evidence cited as
Consistent with SSR 96-2p’s explanation of
regulatory terms, Third Circuit caselaw indicates that “lay
reinterpretation of medical evidence does not constitute
‘inconsistent . . . substantial evidence.’”
Carver v. Colvin, Civ.
A. No. 1:15-CV-00634, 2016 WL 6601665, at *16 (M.D. Pa. Sept. 14,
2016)4 (citing Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 1978);
Frankenfeld v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988); Doak v.
Heckler, 790 F.2d 26, 29-30 (3d Cir. 1986); Ferguson v. Schweiker,
765 F.2d 31, 36-37 (3d Cir. 1985); Kent v. Schweiker, 710 F.2d 110,
115 (3d Cir. 1983); Van Horn v. Schweiker, 717 F.2d 871, 874 (3d
Cir. 1983); Kelly v. Railroad Retirement Bd., 625 F.2d 486, 494 (3d
Cir. 1980); Rossi v. Califano, 602 F.2d 55, 58-59 (3d Cir. 1979);
Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979)).
reviewing court should disregard medical evidence cited as
contradictory if it is really lay interpretation or judgment rather
than that of a qualified medical professional.
See, e.g., Carver,
Magistrate Judge Gerald B. Cohn’s Report and Recommendation
was adopted by United States District Judge Sylvia H. Rambo on
November 7, 2016. Carver v. Colvin, Civ. A. No. 1:15-CV-0634, 2016
WL 6582060 (M.D. Pa. Nov. 7, 2016).
6601665, at *11.
An ALJ’s reliance on a non-examining physician’s opinion which
was not based on a review of all relevant evidence over that of a
treating physician has been an issue raised in many appeals of the
denial of benefits in this Court.
Kopinetz v. Colvin, Civ. A. No.
3:16-CV-01074, 2017 WL 714072 (M.D. Pa. 2017); Compton v. Colvin,
218 F. Supp. 3d 316 (M.D. Pa. 2016); Carver, 2016 WL 6601665;
Wright v. Colvin, Civ. A. No. 1:14-CV-02350, 2016 WL 446876 (M.D.
Pa. Jan. 14, 2016)5; Staudt v. Colvin, Civ. A. No. 1:13-CV-2904,
2015 WL 1605574 (M.D. Pa. Apr. 9, 2015).
Consistently, these and
many other cases have concluded it is error for an ALJ to assign
less than controlling weight to an opinion rendered by a treating
physician based only on one opinion from a non-treating, nonexamining source who did not review a complete case record.
Kopinetz, 2017 WL 714072, at *7-8; Compton, 218 F. Supp. 3d at 33132; Carver, 2016 WL 6601665, at *18; Wright, 2016 WL 446876, at
*20; Staudt, 2015 WL 1605574, at *10-11 (M.D. Pa. Apr. 9, 2015).
As noted in Carver, “[i]f a non-treating, non-examining source is
unable to review the complete case record, the ALJ will be required
to reinterpret the remainder of the record in order to reject a
treating source opinion,” which runs afoul of the long-standing
Magistrate Judge Gerald B. Cohn’s Report and Recommendation
was adopted by United States District Judge Sylvia H. Rambo on
February 4, 2016. Wright v. Colvin, Civ. A. No. 1:14-CV-2354, 2016
WL 452142 (M.D. Pa. Feb. 4, 2016).
prohibition against lay interpretation of medical evidence.
WL 6601655, at *15-18 (listing cases).
A review of relevant Third Circuit caselaw shows the solid
underpinnings of these decisions.
The Third Circuit has held that a
medical opinion from a non-treating, nonexamining source who did not review a
complete record was “not substantial.”
Morales v. Apfel, 225 F.3d 310 (3d Cir.
2000). In Brownawell v. Comm’r of Soc. Sec.,
554 F.3d 352 (3d Cir. 2008), the only other
precedential decision addressing an ALJ who
relied on a non-treating, non-examining
source who did not review a complete record
to reject a treating source opinion, the
Third Circuit also remanded. See Brownawell,
554 F.3d at 352. In contrast, in Brown v.
Astrue, 649 F.3d 193 (3d Cir. 2011), the
Third Circuit affirmed where there were two
non-treating opinions, one from a source who
reviewed the entire record. Id. . . .
In Diaz v. Comm’r of Soc. Sec., 577 F.3d
500 (3d Cir. 2009), there were three nontreating medical opinions and one treating
medical opinion, but the Court held that the
non-treating medical opinions did not provide
good enough reason to reject the treating
source medical opinion because they were
“perfunctory” and omitted significant
objective findings. Id. at 505.
Carver, 2016 WL 6601665, at *12.
In addition to an extensive
review of relevant caselaw in this Circuit and other Courts of
Appeal, Carver also analyzes relevant regulatory provisions,
including 20 C.F.R. § 404.1527(c)(2), and SSRs 96-6p, 96-5p, and
2016 WL 6601665, at *12-17.
The following summary
succinctly sets out a useful rule and a persuasive rationale for
its consistent application.
Read together, 20 C.F.R. § 404.1527(c)(2),
SSR 96-6p, SSR 96-5p, SSR 96-2p, Diaz,
Morales, Brownawell, Brown, and the
prohibition on lay interpretation of medical
evidence indicate that, generally, the ALJ
will lack substantial evidence to assign less
than controlling weight to a treating source
opinion with only a lay reinterpretation of
medical evidence or an opinion from a nontreating, non-examining source who did not
review a complete record. See 20 C.F.R. §
404.1527(c)(2); SSR 96-6p; SSR 96-5p; SSR 962p; Brown, 649 F.3d at 196; Diaz, 577 F.3d at
505; Brownawell, 554 F.3d at 352; Morales,
225 F.3d at 317; Gober, 574, F.2d at 777);
Frankenfeld, 861 F.2d at 408; Doak, 790 F.2d
at 29-30; Ferguson, 765 F.2d at 36-37; Kent,
710 F.2d at 115; Van Horn, 717 F.2d at 874;
Kelly, 625 F.2d at 494; Rossi, 602 F.2d at
58-59; Fowler, 596 F.2d at 603. Harmonizing
the Regulations, case law, SSRs, and other
sources of authority into a consistent
statement of the law regarding the treating
physician rule reflects “the need for
efficient administration of an obligatory
nationwide benefits program” given “more than
2.5 million claims for disability benefits
[filed] each year” because the treating
physician rule works to foster uniformity and
regularity in Social Security benefits
determinations made in the first instance by
a corps of administrative law judges.” Black
& Decker Disability Plan v. Nord, 538 U.S.
822, 833, 123 S. Ct. 1965, 1971, 155 L.Ed. 2d
1034 (2003) (internal citations omitted).
The “massive unexplained differences in the
rate at which ALJs grant or deny benefits”
heightens the need for the Courts to
articulate clear rules. Harold J. Krent &
Scott Morris, Inconsistency and Angst in
District Court Resolution of Social Security
Disability Appeals at 5 (Chi. -Kent Coll. of
Law, Research Paper No. 2014-30, 2014),
Carver, 2016 WL 6601665, at *18.
Here, ALJ Zack did not assign any particular weight to Dr.
Smith’s opinion that Plaintiff was limited to less than sedentary
(See R. 27-28.)
He rendered the following assessment of the
The opinion evidence consists of a
“check the box” form filled out by Dr. Smith,
the claimant’s primary care physician
(Exhibit 5F). Dr. Smith limits the claimant
to less than sedentary exertion. The Medical
Consultant for the Disability Determination
Service gave a residual functional capacity
opinion for light exertion. Normally the
primary care physician would trump the nonexamining Disability Determination Service
Doctor, however, Dr. Smith states she
completed the disability form with the
claimant’s help. This raises the possibility
of over reliance on what the claimant said he
could and could not do (Exhibit 12F/3).
Pursuant to the relevant authority reviewed above, ALJ Zack
did not provide adequate reasons for not assigning Dr. Smith’s
opinion controlling weight: he did not articulate a finding that
the opinion was not “well-supported by medically accepted clinical
and laboratory diagnostic techniques” and he did not articulate a
finding that the opinion was
“inconsistent with the other
substantial evidence in your case record.”
20 C.F.R. §
ALJ Zack noted that Dr. Smith’s opinion was not
consistent with Dr. Bonita’s opinion that Plaintiff had the RFC for
However, because Dr. Bonita’s opinion
was not based on a review of the entire case record, pursuant to
the rule articulated above, his opinion alone cannot be considered
substantial evidence for the purpose of determining whether there
is sufficient contradictory evidence to assign less than
controlling weight to Dr. Smith’s opinion.
Because ALJ Zack points
to no other contradictory evidence, the Court cannot conclude that
he had a sufficient basis to reject the treating source opinion
which, in turn, leads to the conclusion that his RFC is not
supported by substantial evidence.6
Therefore, remand is required
Defendant’s arguments to the contrary (Doc. 10 at 13-15) are
not persuasive. First, the mere fact that Plaintiff helped Dr.
Smith complete the form report may “raise the possibility” of overreliance on subjective complaints as noted by ALJ Zack, but without
more analysis and explanation, a mere possibility of overreliance–-the only concrete criticism of the opinion–-is an
insufficient basis to undermine a treating source opinion.
Furthermore, appropriate answers to some questions contained in
most form reports require input from the patient. Second,
Defendant’s statement that Dr. Bonita’s opinion merited
“significant consideration” pursuant to Chandler (Doc. 10 at 14) is
undermined by the analysis set out in the text, particularly given
that the record before the ALJ in Chandler did not include a
treating physician’s opinion. See 667 F.3d at 360-63. Nor does
Defendant’s citation to Jones v. Sullivan, 954 F.3d 125, 129 (3d
Cir. 1991), provide support for ALJ’s reliance on Dr. Bonita’s
opinion. (See Doc. 10 at 14.) As noted in Carver, “Jones was
decided before the SSA promulgated the controlling weight
provision, and involved multiple consistent non-treating opinions
that supported the ALJ’s determination.” 2016 WL 6601665, at *12
(citing Jones, 954 F.2d at 129)). Third, whether “diagnostic
testing and objective findings were consistent with Dr. Bonita’s
opinion” (Doc. 10 at 14), is not the relevant inquiry–-the question
is whether his opinion, based on an incomplete record, can be
considered substantial inconsistent evidence sufficient to
undermine Dr. Smith’s opinion. Based on the ALJ’s cursory analysis
of Dr. Smith’s opinion and the rule adopted in the text, the Court
concluded Dr. Bonita’s opinion did not provide substantial evidence
supporting the ALJ’s RFC assessment. Fourth, Defendant’s assertion
that “there was conflicting medical evidence in the record” may be
accurate as may be the assertion that the ALJ is entitled to choose
between conflicting medical testimony or conclusions. (Doc. 10 at
15 (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).)
However, as discussed in the text, the ALJ’s choice cannot be based
for further consideration of this issue.
Step Four Determination
Although the Court has determined that remand is required on
the basis that the ALJ’s opinion assessment and evidence relied
upon are insufficient to reject the treating source opinion, the
Court will address Plaintiff’s step four claimed error in that the
requisite analysis relates in part to Plaintiff’s RFC and points to
matters potentially requiring additional consideration upon remand.
With this claimed error, Plaintiff asserts the ALJ’s step
four finding that he could perform his past relevant work as
actually and generally performed is erroneous for several reasons.
(Doc. 10 at 6.)
Defendant responds that Plaintiff did not
demonstrate that he could not perform his past relevant work as
actually or generally performed.
(Doc. 10 at 4.)
concludes Plaintiff has shown that he could not perform the job as
actually performed but he has not shown that he could not perform
the job as generally performed.
Past Relevant Work as Actually Performed
Plaintiff first contends that the work as actually performed
on impermissible lay interpretation of medical evidence or sole
reliance on a non-examining opinion based on incomplete record
review. Finally, Defendant’s notation that Chandler observed that
“because state agency review precedes ALJ review, there is always
some time lapse between the consultant’s report and the ALJ hearing
and decision” (Doc. 10 at 16 (citing Chandler, 667 F.3d at 361)),
is a fact statement that does not conflict with the limitation of
such an opinion consistent with relevant authority as discussed in
was not consistent with light work because he performed it at the
medium exertional level as indicated by his testimony that he
lifted up to fifty pounds in his managerial position and was
constantly standing and/or walking during the work day.
(Doc. 9 at
Defendant responds that Plaintiff’s work history report
contained information that the heaviest weight he lifted in the job
was twenty pounds and, thus, differed from his testimony, and his
attempt to differentiate the standing/walking requirements of
medium and light work is erroneous because both require standing or
walking, off and on, for a total of approximately six hours of an
(Doc. 10 at 6 (citing SSR 83-10, 1983 WL 31251, at
Defendant also asserts that Plaintiff’s counsel never
challenged/questioned the VE’s description of Plaintiff’s past work
as a light job.
(Id. at 7.)
Defendant’s argument regarding standing/walking does not
acknowledge Plaintiff’s consistent assertion that he was
standing/walking all day in his managerial position.
(R. 47, 156.)
As Plaintiff notes, this takes the walking/standing demands of
Plaintiff’s job as performed out of the light category.
at 2 (citing SSR 83-10, 1983 WL 31251, at *5).)
Nor does Defendant address the fact that the ALJ did not
discount or qualify Plaintiff’s testimony about walking/standing
and weight lifted with his first hypothetical to which the VE
responded that Plaintiff could perform the position as actually and
As well as the standing/walking demands noted
above, Plaintiff described the work as actually performed to
include lifting up to fifty pounds (R. 45)–-weight well beyond the
maximum for light work.
See 20 C.F.R. § 404.1567.
On this record, the ALJ’s determination that Plaintiff could
perform the manager job as actually performed is not supported by
However, this conclusion does not give rise
to harmful error unless Plaintiff also shows that the ALJ erred in
his determination that Plaintiff could do the job as generally
See 20 C.F.R. § 404.1560(b)(2) (determining whether
claimant can do past relevant work considers whether claimant can
do work as actually performed or as generally performed); see also
SSR 82-61, 1982 WL 31387, at *2.
Past Relevant Work as Generally Performed
Plaintiff also asserts that the ALJ erred as a matter of law
in finding that he could do the manager job as generally performed.
(Doc. 9 at 5.)
This argument is based on the proposition that the
manager position was a “composite job” and, pursuant to Program
Operations Manual System (POMS) DI 25005.020(B), 2011 WL 4753471,
an ALJ cannot make an adverse step four finding that the claimant
remains capable of performing a composite job as generally
(Doc. 9 at 5.)
Plaintiff contends that his job was a
composite job because it involved “significant elements that are
not included in the DOT’s description of the Manager job.
#185.137-010. . . . [I]n addition to his managerial duties, [he]
also delivered pizzas, unloaded delivery trucks, and answered the
Defendant responds that “the inability to do past relevant
work as exactly performed does not mean that the job is a composite
(Doc. 10 at 9.)
Defendant concludes that, pursuant to SSR
82-61, and the circumstances of this case, Plaintiff did not
satisfy his step four burden of showing that his manager’s position
involved “significant elements” of any other job, and, therefore,
he did not show that the ALJ erred in finding that Plaintiff could
do his past relevant work as a manager as generally performed.
(Doc. 10 at 9-11.)
First, the Court notes that this Circuit has consistently
concluded that POMS do not have the force of law.
Bordes v. Comm’r
of Soc. Sec., 235 F. App’x 853, 859 (3d Cir. 2007) (not
precedential) (listing cases); Edelman v. Comm’r of Soc. Sec., 83
F.3d 68, 71 n.2 (3d Cir. 1996).
Because POMS provisions are not
judicially enforceable, a claimed violation of a POMS’ provision
does not require remand as a matter of law.
See, e.g., Franklin v.
Berryhill, 3:16-CV-2284 (M.D. Pa. filed May 15, 2017) (listing
Thus, Plaintiff’s assertion that the ALJ erred as a matter
of law by failing to comply with a POMS directive (Doc. 9 at 5)
would not be cause for remand.7
Furthermore, Plaintiff merely asserts in a conclusory fashion
that his job as actually performed involved “significant elements”
that are not included in the DOT description. (Doc. 9 at 5
(emphasis added).) He does not show that these were “main duties”
of his past relevant work which suggested that he performed a
composite job pursuant to the cited POMS. (See id. (emphasis
Second, Plaintiff did not show that the ALJ erred by finding
that he was able to do the manager position as generally performed.
SSR 82-61 sets out “[t]hree possible tests for determining whether
or not a claimant retains the capacity to perform his or her past
1982 WL 31387, at *1.
The third test addresses
[w]hether the claimant retains the capacity to perform the
functional demands and job duties of the job as ordinarily required
by employers throughout the national economy.”
Id. at 2.
provision notes parenthetically that the DOT descriptions “can be
relied upon–-for jobs that are listed in the DOT–-to define the job
as it is usually performed in the national economy.”
61 further explains that
it is understood that some individual jobs
may require somewhat more or less exertion
that the DOT description.
A former job performed by the claimant
may have involved functional demands and job
duties significantly in excess of those
generally required by other employers
throughout the national economy. Under this
test, if the claimant cannot perform the
excessive functional demands and/or job
duties actually required in the former job
but can perform the functional demands and
job duties as generally required by employers
throughout the economy, the claimant should
be found to be “not disabled.”
added).) Similarly, Plaintiff makes no showing that this is a case
falling under the “Further Information” section at the end of SSR
83-61 regarding cases involving “significant variations between a
claimant’s description and the description shown in the DOT” which
notes that “composite jobs have significant elements of two or more
occupations and, as such, have not counterpart in the DOT.” 1982
WL 31387, at *2.
Id. at *2.
Here, Plaintiff points to functions in excess of the DOT
managerial description–-delivering pizzas, unloading delivery
trucks, and answering the telephone (Doc. 9 at 5)–-and his
testimony indicates that he could not perform the delivery and
unloading functional demands/job duties (see, e.g., R.45-46).
Plaintiff does not argue he cannot perform the job as ordinarily
performed, i.e., the position as described in the DOT.
Plaintiff has not shown that he had a “composite job” which
operated as a matter of law against an adverse finding at step four
and he has not argued that his RFC would not allow him to perform a
manager job as generally performed.
Therefore, the current record
does not show the ALJ erred in finding that Plaintiff could perform
the manager job as generally performed and the error in the
determination that Plaintiff could do the job as actually performed
would be deemed harmless.
Sentence Six Remand
Finally, Plaintiff contends that remand is warranted under the
sixth sentence of 42 U.S.C. § 405(g) for consideration of the
Agency’s subsequent award of benefits.
(Doc. 11 at 4.)
responds that a subsequent award of benefits alone does not warrant
(Doc. 15 at 1-2.)
The Court concludes that the weight of
authority supports a conclusion that a subsequent decision is not
new evidence for purposes of a sentence six remand.
To obtain a sentence six remand, the plaintiff has the burden
of proving that evidence not submitted to the ALJ is new and
material, and he had good cause for not presenting the evidence to
42 U.S.C. § 405(g) (sentence six); Matthews v. Apfel, 239
F.3d 589, 593 (3d Cir. 2001).
A panel of the Third Circuit Court
of Appeals considered this issue in Cunningham v. Comm’r of Soc.
Sec., 507 F. App’x 111 (3d Cir. 2012) (not precedential):
[The plaintiff] requests that we
consider the fact that she has been awarded
disability benefits as of August 30, 2008–the day after benefits were denied in the
matter presently before us. But the fact
that another ALJ found [the plaintiff] to be
disabled does not, in itself, warrant remand
or reversal. See Allen v. Comm’r of Soc.
Sec., 561 F.3d 646, 652-53 (6th Cir. 2009).
Remand or reversal based on the subsequent
favorable decision would be appropriate only
if that decision was based on new and
material evidence that [the plaintiff] had
good cause for not raising in the prior
proceeding. Id. at 653. [The plaintiff] has
not presented any such evidence.
Cunningham, 507 F. App’x at 120.
The Court recognizes that the Third Circuit “steadfastly
attempt[s] to discourages District Courts from relying on
(3d Cir. 2008).
Jamison v. Klem, 544 F.3d 266, 279 n.11
However, Plaintiff cites no contrary authority and
does not point to any new and material evidence upon which the
subsequent decision was based.
(See Doc. 11.)
Although the Ninth
Circuit Court of Appeals decided that a later favorable decision
could be new and material evidence in Luna v. Astrue, 623 F.3d 1032
(9th Cir. 2010), Plaintiff does discuss the case or address the
circuit split as evidenced by Luna and the Sixth Circuit’s Allen
decision cited in Cunningham.
The Eleventh Circuit Court of
Appeals set out a well-reasoned basis for agreeing with the Sixth
Circuit’s Allen decision in Hunter v. Soc. Sec. Admin. Comm’r, 808
F.3d 818 (11th Cir. 2015), stating that “[a] decision is not
evidence any more than evidence is a decision.”
Id. at 822.
general matter, given the deferential review standard, there would
be no inherent inconsistency
in finding that two successive ALJ decisions
are supported by substantial evidence even
when those decisions reach opposing
conclusions. Faced with the same record,
different ALJs could disagree with one
another based on their respective credibility
determinations and how each weighs the
evidence. Both decisions could nonetheless
be supported by evidence that reasonable
minds would accept as adequate. Because of
that possibility, the mere existence of a
later favorable decision by one ALJ does not
undermine the validity of another ALJ’s
earlier unfavorable decision or the
factfindings upon which it was premised.
Id. (citing Allen, 561 F.3d at 653).
Based on this reasoning, the mere existence of a later
favorable decision would not be cause for remand.
soundness of the Hunter analysis does not conflict with a directive
that extra scrutiny of the record upon remand is warranted in a
case where remand is required because the reviewing court
determines that the earlier decision is not based on substantial
This is particularly important in the case decided here
given the remedial nature of the statute and the potential that,
absent a finding of an earlier onset date on remand, Plaintiff
would not be able to receive benefits for a period of disability
based on the operation of the relevant statute and administrative
delay in considering the appeal of the ALJ’s earlier decision.8
Thus, although remand is not required pursuant to sentence six of §
405(g), the circumstances of this case indicate that a careful
review of the evidence must be undertaken and, if Plaintiff is not
found disabled as of an earlier date, some acknowledgment and
explanation should be provided as to why he was found not disabled
Plaintiff explains his situation as follows:
With respect to the later award, it must
also be understood that Mr. Blum was
prohibited from filing a new application for
benefits until after the Appeals Council
denied review of the prior ALJ decision in
October 2016 (Tr. 1-7). See SSR 11-1p, 2011
WL 3962767 *2. Thus, although found disabled
as of March 18, 2015, Mr. Blum was only
awarded benefits for the period beginning in
October 2015, because the Agency “can pay
benefits no earlier than twelve months before
the month of filing” (Exhibit A). See 42
U.S.C. § 423(b). Accordingly, unless the
Court reverses or remands the ALJ’s prior
decision, Mr. Blum can never be paid for the
entire period of established disability.
Thus, remand under sentence 6 of 42 U.S.C. §
405(g) is warranted, in addition to a
sentence 4 remand.
(Doc. 11 at 5.) Defendant does not address this averment (see Doc.
15), and there is no indication that Plaintiff’s request for review
was not timely filed on May 21, 2015, or that the time from the
request for review to the Appeals Council’s October 13, 2016,
decision was in any way attributable to delay caused by Plaintiff.
on March 17, 2015, and was later found disabled as of the next day,
March 18, 2015.
(See R. 29; Doc. 11-1 at 1.)
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
An appropriate Order is filed simultaneously with
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: June 7, 2017
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