Franklin v. Colvin et al

Filing 15

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 explanation consistent with this opinion. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 5/15/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY FRANKLIN,

:
:CIVIL ACTION NO. 3:16-CV-2284
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,1
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act and Supplemental Security
Income (“SSI”) under Title XVI.

(Doc. 1.)

Plaintiff filed

applications for benefits on June 17, 2015, alleging a disability
onset date of September 1, 2014.

(R. 11.)

After Plaintiff

appealed the initial denial of the claims, a hearing was held on
May 23, 2016, and Administrative Law Judge (“ALJ”) Patrick S.
Cutter issued his Decision on May 7, 2015, concluding that

1

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

Plaintiff had not been under a disability during the relevant time
period.2

(R. 23.)

Plaintiff requested review of the ALJ’s

decision which the Appeals Council denied on July 12, 2016.
6, 7.)

(R. 1-

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

Acting Commissioner.

(R. 1.)

Plaintiff filed this action on November 15, 2016.

(Doc. 1.)

He asserts in his supporting brief that the Acting Commissioner’s
determination should be reversed or remanded for the following
reasons: 1) the ALJ committed legal error when he failed to provide
an explanation as to why he applied the light grid rule; and 2) the
ALJ’s finding is an RFC for sedentary work and Plaintiff must be
found disabled under the Medical-Vocation rules if he is limited to
sedentary work.

(Doc. 12 at 3.)

After careful review of the

record and the parties’ filings, the Court concludes this appeal is
properly granted.
I. Background
Plaintiff was born on March 9, 1962, and was fifty-two years
old, which is defined as an individual closely approaching advanced
age, on the alleged disability onset date.

(R. 17.)

He has a high

school education and past relevant work as a supervisor, materials
handler supervisor, and warehouse supervisor.

2

(Id.)

Plaintiff did not appear for the hearing. (R. 14.) In
response to the Notice to Show Cause for Failure to Appear,
Plaintiff responded that he did not have access to transportation.
(R. 14, 133.)
2

A.

Medical Evidence
Plaintiff presents sparse medical evidence, simply listing

medical conditions and briefly reviewing the findings of a
consultative examiner, Spencer Long, M.D.

(See Doc. 12 at 2-3.)

Conditions identified are Diabetes Mellitus, diabetic peripheral
neuropathy, diabetic retinopathy with right-eye blindness, and
amputation of his great right toe due to diabetes complications.
(Id. at 2.)

Defendant summarizes medical evidence of record,

particularly that relied upon by ALJ Cutter.

(See Doc. 13 at 2-7.)

In his reply brief, Plaintiff did not object to Defendant’s factual
recitation.

(See Doc. 14.)

Therefore, the Court will set out the

medical evidence summarized by Defendant.3
Throughout this decision (e.g. Tr. 14, 16),
the ALJ referenced findings of Meghan L.
Edwards, PA-C, Plaintiff’s primary care
provider, who conducted several examinations
during the relevant period:
!

On October 28, 2014, PA Edwards
noted that Plaintiff’s past medical
history included (among other
things) hypertension,
gastroesophageal reflux disease
(GERD), and diabetic retinopathy
(Tr. 239). On examination, PA
Edwards found pale and swollen
nasal turbinates and thick postnasal drip related to a probable
upper respiratory infection (Tr.
239). PA Edward’s objective
physical examination findings were

3

An abbreviated review of evidence is appropriate because
Plaintiff’s claimed errors do not point to problems with the ALJ’s
evidence review.
3

otherwise completely unremarkable
(Tr. 239);
!

On March 13, 2015, Plaintiff
complained of sinus pressure and
congestion, and PA Edwards found
red and swollen nasal turbinates,
with a remarkable appearing throat
(Tr. 237). But, PA Edward’s
objective physical examination
findings were otherwise completely
unremarkable (Tr. 237);

!

On June 10, 2015, Plaintiff
complained of an ongoing cough for
several weeks, though PA Edwards
objective physical examination
findings (including as to
Plaintiff’s pulmonary function)
were completely unremarkable (Tr.
235);

!

On July 24, 2015, PA Edward’s
objective physical examination
findings were completely
unremarkable (Tr. 295); and

!

On September 11, 2015, PA Edwards
noted that Plaintiff was doing
well, and his blood pressure and
blood sugars were well controlled
(Tr. 283). Once again, her
objective physical examination
findings were completely
unremarkable (Tr. 284).

Consultative examiner Spencer Long,
M.D., also examined Plaintiff in September
2015 and noted his slow and antalgic gait;
and Plaintiff reported pain bilaterally on a
straight-leg raise test at 45 degrees; but
Plaintiff was in no acute distress; his
stance was normal; he could get on and off
the examination table and rise from a chair
without difficulty; he exhibited no evident
joint deformity; he had no scoliosis,
kyphosis or abnormality in his thoracic
spine; he had no trigger points, sensory
4

deficit, or muscle atrophy; his hand and
finger dexterity was intact; his strength was
5/5 in his arms and legs; and his grip
strength also was 5/5 (Tr. 255-56).
In view of this evidence, throughout his
decision, the ALJ analyzed Plaintiff’s
impairments. With respect to peripheral
neuropathy, the ALJ noted in particular that
Dr. Long had identified Plaintiff’s normal
stance, as well as his capacity to get on and
off the examination table or rise from a
chair (Tr. 14, referencing Tr. 255).
Similarly, with respect to GERD and
hypertension, the ALJ aptly noted an absence
of ongoing evidence functional limitations
(Tr. 14). Dr. Long had noted that Plaintiff
was negative for heart disease, and PA
Edwards discussed in September 2015 that
Plaintiff was doing well in controlling his
blood pressure (Tr. 14, referencing Tr. 254,
283).
With respect to diabetes, the ALJ noted
Dr. Long’s finding an absence of sensory of
motor deficits, and indeed, full strength
(Tr. 15, referencing Tr. 256). He also
pointed out PA Edward’s finding that
Plaintiff’s blood sugars were well controlled
(Tr. 15, referencing Tr. 283).
With respect to the condition of
Plaintiff’s right eye, the ALJ noted that
Plaintiff described total right-eye
blindness, and that he did not drive as the
result of it (Tr. 16, referencing Tr. 31).
The ALJ also explained that Dr. Long had
assessed total right-eye blindness (Tr. 16,
referencing Tr. 254). As Dr. Long detailed,
Plaintiff had undergone laser surgery, but it
had not repaired the vision in his right eye
(Tr. 16, referencing Tr. 254).
However, with respect to the condition
of Plaintiff’s left eye, the ALJ pointed to
PA Edward’s statement in June 2015 and his
diabetic retinopathy was controlled (Tr. 16,
referencing Tr. 235). Although at the time
5

Plaintiff’s diabetes was itself not
controlled (Tr. 235), withing several months
his blood sugars also were under good control
(Tr. 283). Dr. Long had noted, as the ALJ
explained, that Plaintiff had undergone
successful left-eye laser surgery (Tr. 16,
referencing Tr. 254). The ALJ also found
that Plaintiff retained a capacity to shop,
do laundry, and attend to his personal care
(Tr. 16, referencing Tr. 195-97).
With respect to Plaintiff’s rightshoulder and right-arm complaints, the ALJ
noted that Dr. Long had assessed no sensory
or motor deficits (Tr. 16, referencing Tr.
255-56). He also exhibited 5/5 arm strength
(Tr. 16, referencing Tr. 256). But, the ALJ
acknowledged and credited Plaintiff’s
testimony that he had obtained a recent
injection for right shoulder pain (Tr. 16,
referencing Tr. 32).
(Doc. 13 at 2-7.)
B.

Opinion Evidence
Dr. Long opined that Plaintiff could lift up to 10 pounds

occasionally, but never any higher weight, and he could never carry
any weight.

(R. 258.)

He noted that these limitations were due to

left shoulder pain and “DJD.”4

(R. 258.)

Dr. Long found that

Plaintiff could stand and walk for five minutes without
interruption and could perform either function for a total of
fifteen minutes in an eight-hour day.

(R. 259.)

He found that

Plaintiff could sit for thirty minutes without interruption and

4

Because Dr. Long’s diagnosis included “left shoulder pain
with degenerative joint disease,” the Court assumes DJD is
“degenerative joint disease” as no other diagnosis would be
consistent with the letters identified. (See R. 256-58.)
6

could sit of a total of eight hours in an eight-hour day.

(Id.)

Dr. Long noted that Plaintiff required the use of a cane to
ambulate, he could ambulate for fifty feet without a cane, the use
of a cane was medically necessary, and he could use his free hand
to carry small objects.

(Id.)

He indicated that his assessments

were supported by medical or clinical findings of
pain and bilateral peripheral neuropathy.

(Id.)

bilateral foot
Regarding use of

his hands, Dr. Long opined that left shoulder pain and DJD limited
Plaintiff to occasionally reaching overhead and pushing/pulling,
and frequently reaching otherwise, handling, fingering, and feeling
with his right hand; findings for the left hand differed in that he
could never reach overhead and occasionally reach otherwise.
260.)

(R.

Dr. Long concluded that, due to foot pain and poor balance,

Plaintiff could never climb ladders or scaffolds, balance, stoop,
kneel, crouch, or crawl, and could occasionally climb stairs and
ramps.

(R. 261.)

He also concluded that Plaintiff could never be

exposed to unprotected heights, moving mechanical parts, operating
a motor vehicle, extreme cold, extreme heat, and vibrations; he
could occasionally be exposed to dust, odors, fumes and pulmonary
irritants; and he could frequently be exposed to humidity and
wetness.

(R. 262.)

These assessed limitations were due to

peripheral neuropathy, diabetic retinopathy, and poor balance.
262.)

Dr. Long also concluded that Plaintiff’s physical

impairments would affect his ability to climb a few steps at a

7

(R.

reasonable pace with the use of a single hand rail, prepare a
simple meal and feed himself, care for his personal hygiene, and
sort, handle and use paper files.

(R. 263.)

He indicated that the

medical findings supporting the assessments were bilateral foot
pain, diabetes, peripheral neuropathy, diabetic retinopathy, and
poor balance.
C.

(Id.)

Hearing Testimony
At the May 23, 2016, hearing before ALJ Cutter, Plaintiff

testified that his biggest problems were his balance and dizziness.
(R. 30.)

He explained that the balance issue was persistent

throughout the day and the dizziness was sporadic.

(R. 31.)

Plaintiff said he could stand and/or walk for about ten minutes at
a time, and he tries not to sit too much.
identified right shoulder problems.

(R. 32.)

He also

(R. 32-33.)

When asked about his living situation and personal care,
Plaintiff said he lives alone and he can handle personal care but
his uncle comes to help him with things around the house like
laundry, cooking, doing dishes, and cleaning.

(R. 33.)

He

explained that the problem with performing these tasks was his
balance and dizziness.

(R. 35.)

Regarding handling and fingering things, Plaintiff said that
he is right-handed but uses his left hand most of the time because
of the pain that shoots up his arm on the right side.

(R. 34.)

He

also said that, if he drops something, it stays on the floor until

8

his uncle comes over.

(R. 34-35.)

Plaintiff’s attorney pointed out that Plaintiff had a long and
steady work history for many years with significant earnings and he
would be working if he could.

(R. 39.)

ALJ Cutter then questioned Vocational Expert Andrew Caporale
and asked him to consider a hypothetical person with Plaintiff’s
vocational profile and the residual
functional capacity to perform a range of
light work as defined in the regulations
subject to the following limitations. The
individual can continuously sit, only
occasionally stand, walk, climb ramps or
stairs, balance, stoop, kneel, crouch and
crawl, cannot perform any overhead use of
both . . . arms, can only frequently reach,
handle, finger, feel, push or pull
bilaterally, can never work at unprotected
heights, operate motor vehicles, tolerate
exposure to temperature extremes or vibration
and the individual can perform work that does
not require depth perception or color vision
on the right or field of vision on the right
and can perform work that involves only
occasional accommodation.
(R. 41-42.)

The VE testified that such an individual would not be

able to perform Plaintiff’s past relevant work but there were other
unskilled jobs in the national economy that he could perform.
42.)

(R.

The VE identified jobs “that are light occupations that are

performed in a seated position or they have a sit, stand option
associated with them.”

(R. 43.)

He specifically identified

positions as a conveyor line bakery worker, parking lot cashier,
and information clerk.

(Id.)

When ALJ Cutter added that the hypothetical individual would
9

be off task about two hours per day due to the need to rest in the
morning and afternoon, the VE responded that the individual would
not be able to work.

(R. 44.)

The VE said the same would be true

if the individual were expected to be absent twenty percent of the
work time or if the individual could only frequently maintain
concentration, persistence, or pace.

(R. 45.)

Finally, the ALJ

asked whether any of Plaintiff’s past work would be available if he
dropped the exertional level in the first hypothetical to sedentary
and added the need for the use of a cane for long ambulation.
(Id.)

The VE responded that past work would not be available and

no skills of the past work would transfer within that RFC.

(R.

46.)
D.

ALJ Decision
In his May 7, 2015, Decision, ALJ Cutter made the following

Findings of Fact and Conclusions of Law:
1.

The claimant meets the insured status
requirements of the Social Security Act
through December 31, 2019.

2.

The claimant has not engaged in
substantial gainful activity since
September 1, 2014, the alleged onset
date (20 CFR 404.1571 et seq., and
416.971 et seq.).

3.

The claimant has the following severe
impairments: diabetes mellitus; right
eye blindness; and right shoulder
tendonitis (20 CFR 404,1520(c) and
416.920(c)).

4.

The claimant does not have an impairment
or combination of impairments that meets
10

or medically equals the severity of one
of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
5.

After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform light
work as defined in 20 CFR 404.1567(b)
and 416.967(b) except he is limited to
occasional standing, walking, climbing
of ramps or stairs, balancing, stooping,
kneeling, crouching, and crawling. The
claimant can continuously sit. He is
precluded from overhead use of his
bilateral arms. The claimant is limited
to frequent reaching, handling,
fingering, feeling, pushing, and pulling
bilaterally. He should never work at
unprotected heights, operate motor
vehicles, or tolerate exposure to
temperature extremes or vibration. The
claimant is limited to work not
requiring depth perception, color vision
on the right, or field of vision on the
right. Furthermore, he can perform work
that involves only occasional
accommodation.

6.

The claimant is unable to perform any
past relevant work (20 CFR 404.1565 and
416.965).

7.

The claimant was born on March 9, 1962
and was 52 years old, which is defined
as an individual closely approaching
advanced age, on the alleged disability
onset date (20 CFR 404.1563 and
416.963).

8.

The claimant has at least a high school
education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not
material to the determination of
11

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.

(R. 13-19.)

Considering the claimant’s age, 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, 404.1569(a), 416.969,
and 416.969(a)).

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.5

It is necessary for the

5

“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).
12

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

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

The residual functional capacity assessment is then used at the
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

13

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. 17-18.)
III. Standard of Review

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

42 U.S.C. § 405(g); Hartranft

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

Substantial evidence

It means such relevant evidence

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

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

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

The Third

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

substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.

If she has not done so and has not

sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

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

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
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, . .
15

.

the Cotter doctrine is not implicated.”

Hernandez v. Comm’f of

Soc. Sec., 89 Fed. Appx. 771, 774 (3d Cir. 2004) (not
precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.

Hartranft,

181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).

“However,

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

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

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

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

Albury v. Comm’r of Soc.

Sec., 116 F. App’x 328, 330 (3d Cir. 2004) (not precedential)
(citing Burnett v. Commissioner, 220 F.3d 112 (3d Cir. 2000)
(“[O]ur primary concern has always been the ability to conduct
meaningful judicial review.”); see also Rutherford v. Barnhart, 399
F.3d 546, 553 (3d Cir. 2005) (a remand is not required where it
would not affect the outcome of the case.).
16

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) the
ALJ committed legal error when he failed to provide an explanation
as to why he applied the light grid rule; and 2) the ALJ’s finding
is an RFC for sedentary work and Plaintiff must be found disabled
under the Medical-Vocation rules if he is limited to sedentary
work.
A.

(Doc. 12 at 3.)

Grid Rule Explanation
Plaintiff first asserts the ALJ erred as a matter of law when

he failed to provide an explanation for applying the light grid
rule instead of the sedentary grid rule despite a significant
erosion of the occupational base for unskilled light work.
12 at 4.)

(Doc.

He states that his
RFC is essentially sedentary due to the ALJ’s
restriction . . . to only “occasional”
standing and walking. . . . However, at the
very least, the RFC fell between the
sedentary (the restriction to no more than
occasional standing/walking in an 8 hour work
day) and light levels (the restriction to
lifting/carrying 20 pounds occasionally and
10 pounds frequently and generally standing
and walking for up to 6 hours of the
workday).

(Doc. 12 at 4 (citing 20 C.F.R. §§ 404.1567(a),(b), 416.967(a),(b);
17

SSR 83-10, 1983 WL 31251, at *5-6).)6

Plaintiff maintains that

explanation in this situation is required by the POMS, stating that
[i]n the section addressing RFCs falling
between two opposing grid rules the POMS
states in bold font and all capital letters
the following: “IMPORTANT: Always explain the
basis for your conclusions.” POMS DI
25025.015.D. The ALJ’s decision is defective
as a matter of law because it does not
provide any of the explanation that the POMS
provision mandates.
(Doc. 12 at 6.)
The Court concurs with Defendant that this argument is without
merit.

(Doc. 13 at 16.)

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).
Even though Plaintiff contends that cases relying on decisions
issued before the promulgation of SSR 13-2p, 2013 WL 621536, at
*15, which he says “makes clear that, regardless of the context,
the Agency” requires adjudicators to follow agency policy set out
in SSRs, Ars, and other instructions, such as POMS, Plaintiff cites
no authority which suggests that POMS provisions are judicially
enforceable.

(See Doc. 14 at 3-4.)

6

Courts in this Circuit

The substance of Plaintiff’s argument that an “outright
award” should occur (Doc. 12 at 5) is repeated with his second
claimed error and will be addressed in the next section of this
Memorandum.
18

continue to follow Bordes and Edelman regarding the judicial
enforceability of internal agency guidance.

See, e.g., Osborne v.

Berryhill, Civ. A. No. 16-96, 2017 WL 818846, at *2-3 (W.D. Pa.
Mar. 2, 2017); Sumpter v. Colvin, Civ. A. No. 13-988, 2014 WL
1259604, at *5 (E.D. Pa. Mar. 27, 2014); Johnson v. Colvin, Civ. A.
No. 14-78-JFM, 2014 WL 6063435, at *2 (W.D. Pa. Nov. 12, 2014).
These cases do not support Plaintiff’s position that the POMS
provisions are judicially enforceable and require remand as a
matter of law in the situation presented here.

Therefore, the

Court concludes Plaintiff has not shown that this case must be
remanded as a matter of law for further explanation of the ALJ’s
application of the light grid rule instead of sedentary grid rule
on the basis alleged.
B.

Grid Rules Determination
Plaintiff contends that the ALJ’s findings require a

determination of disability under the grid rules because the RFC
effectively limits him to sedentary work.

(Doc. 12 at 6.)

Defendant responds that the ALJ was not obligated to find Plaintiff
disabled because of his capacity for occasional standing and
walking.

(Doc. 13 at 10.)

The Court concludes that Plaintiff the

ALJ’s determination that Plaintiff has the RFC for a limited range
of light work is not supported by substantial evidence.
Plaintiff does not argue that the RFC is deficient because it
does not include limitations supported by the record.
19

Rather, he

presents legal argument which is essentially twofold.

Plaintiff

points to the ALJ’s limitation to “occasional” standing and walking
as indicative of the capacity for sedentary work which required the
application of the sedentary grid rule and a finding of disability.
(Doc. 12 at 4-5; Doc. 14 at 1.)

He also asserts error on the basis

that the ALJ was not entitled to rely on evidence presented by the
VE because it is inconsistent with the Agency’s regulatory
definition of light work: unless he “can stand and walk for between
1/3 to 2/3 of an 8-hour day, then he cannot perform even the
minimum level of standing, walking, lifting, and carrying required
for light work as the Agency defines that term.”

(Doc. 12 at 9

(citing SSR 83-10, 1983 WL 31251, at *5-6; 20 C.F.R. §§
404.1567(b), 417.967(b)).)

The applicable exertional level is

determinative in this case: if Plaintiff were assessed at the
sedentary exertional level, he would be found disabled because the
grid rules require such a finding based on his age (an individual
aged 50-54 is an individual “closely approaching advanced age”) and
vocational factors.

(Doc. 12 at 6-8 (finding of disabled required

under 20 C.F.R., Pt. 404, Subpt. P, App. 2, Table 1, Rule 201.14)
(other citations omitted).)
The regulations governing physical exertional requirements
provide the following definitions:
(a) . . . Sedentary
more than 10 pounds
lifting or carrying
files, ledgers, and

work involves lifting no
at a time with frequent
articles like docket
small tools. Although a
20

sedentary job is defined as sitting, a
certain amount of walking and standing is
often necessary in carrying out job duties.
Jobs are sedentary if walking and standing
are required occasionally and other sedentary
criteria are met.
(b) . . . Light work involves lifting no more
than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to
10 pounds. Even though the weight lifted may
be very little, a job is in this category
when it requires a good deal of walking or
standing or when it involves sitting most of
the time with some pushing and pulling of arm
or leg controls. To be considered capable of
performing a full or wide range of light
work, you must have the ability to do
substantially all of these activities. If
someone can do light work, we determine that
he or she can also do sedentary work, unless
there are additional limiting factors such as
loss of fine dexterity or inability to sit
for long periods of times.
20 C.F.R. §§ 404.1567, 416.967.

Social Security Ruling 83-10, 1983

WL 31251 (S.S.A.), provides additional guidance and definitions for
terms used in the regulations cited: “occasionally” in the
sedentary work context means occurring from very little to up to
one-third of the time; “[s]ince being on one’s feet is required
‘occasionally’ at the sedentary level of exertion, periods of
standing and walking should generally total no more than 2 hours of
an 8-hour workday”; “frequent” in the light work context means from
one-third to two-thirds of the time; “[s]ince frequent lifting or
carrying requires being on one’s feet up to two-thirds of a
workday, the full range of light work requires standing or walking,
off and on, for a total of approximately six hours of an 8-hour
21

workday.”

Id. at *5-6.

The “light work” definition includes the

notation that “[e]ven 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 and standing–-the primary
difference between sedentary and most light jobs.”

Id. at *5.

Regarding the light jobs performed in a seated position, SSR 83-10
notes that the pushing and pulling requirements for such a job
require greater exertion than in sedentary work.

Id.

The rule

then gives examples of skilled and semiskilled jobs in this
category and notes that “relatively few unskilled light jobs are
performed in a seated position.”

Id.

Given the Agency’s regulatory definitions and explanations
regarding the meaning of the regulatory terms, ALJ Cutter’s
limitation of Plaintiff to occasional standing and walking means
that Plaintiff can stand and walk for up to one-third of the day
and he can lift or carry objects weighing up to ten pounds for up
to one-third of the day as a result of the stand/walk limitation.
20 C.F.R. §§ 404.1567(a), (b), 416.927(a), (b); SSR 83-10, 1983 WL
31251, at *5.

The latter limitation is based on SSR 83-10's

notation that “lifting or carrying requires being on one’s feet.”7
7

Defendant notes that “there is no authority for the
proposition that a person could not lift light objects (up to 10
pounds) from a seated position, as other judges have rightly
recognized.” (Doc. 13 at 21 (citing Hence v. Astrue, Civ. A. No.
4:12CV1, 2012 WL 6691573, at *7 (E.D. Va. Nov. 30, 2012)).) Hence
does not discuss the correlation in SSR 83-10 of “lifting or
carrying” with requiring “being on one’s feet.” 1983 WL 31251, at
22

1983 WL 31251, at *5.

Plaintiff’s walking/standing and

lifting/carrying capabilities are less than required for light
work; his walking and standing capabilities are consistent with
sedentary work; and his resultant lifting and carrying capabilities
arguably exceed the sedentary level because lifting/carrying ten
pounds occasionally is greater than “lifting or carrying articles
like docket files, ledgers, and small tools.”

20 C.F.R. §§

404.1567(a), (b), 416.927(a), (b); SSR 83-10, 1983 WL 31251, at *5.
Plaintiff’s limitation to frequent pushing and pulling (R. 14)
appear to be consistent with light work seated positions though
Plaintiff is limited to unskilled work (see R. 42).

Therefore,

Plaintiff’s limitations fall between two rules and these rules
direct opposite conclusions: if Plaintiff’s exertional capacity
were considered sedentary, he would be determined disabled, 20
C.F.R., Pt. 404, Subpt. P, App. 2, Table 1, Rule 201.14; if his
exertional capacity were considered light, no finding of disability

*6. Thus, it is the Agency’s own explanation of the regulatory
definition that connects “lifting or carrying” with
walking/standing. (The explanation could have, but does not, say
that only frequent carrying requires being on ones’ feet.) But for
the Agency’s explanation of the regulatory definition, the Court
would agree with Defendant that the regulatory disjunctive-“lifting or carrying,” 20 C.F.R. §§ 404.1567(b), 416.927(b)
(emphasis added)--does not preclude lifting from a seated position.
In some instances, courts have concluded that regulatory
definitions, not explanatory rulings, control. See, e.g., Hamm v.
Colvin, Civ. A. No. 1:15-CV000778, at *11 (M.D. Pa. Sept. 30,
2016). However, Defendant does not make that argument here and the
cases discussed in the text do not draw such a distinction in
similar circumstances.
23

would be directed.
Plaintiff argues in this situation the sedentary grid rule
must be applied to him because SSR 83-12 “mandates application of
the lower Grid rule, where, as here, a claimant’s exertional
capacity falls between two rules but is significantly reduced from
the higher exertional rule,” (Doc. 14 at 1 (citing SSR 83-12, 1983
WL 31253, at *2) (emphasis added)).

While SSR 83-12 applies here,

the rule does not speak in mandatory terms.

Rather, an ALJ is

afforded discretion in these circumstances.

SSR 83-12 addresses

the situation where “the exertional level falls between two rules
which direct opposite conclusions” and “the exertional capacity is
significantly reduced in terms of the regulatory definition.”
83-12, 1983 WL 31253, at *2.

SSR

The “Adjudicative Guidance” regarding

this situation does not “mandate” application of the lower grid
rule as asserted by Plaintiff (Doc. 14 at 1), but states that a
significant reduction “could indicate little more than the
occupational base for the lower rule and could justify a finding of
‘Disabled.’”

SSR 83-12, 1983 WL 31253, at *2 (emphasis added).

Guidance on the situation where two rules direct different
conclusion continues:
In situations where the rules would direct
different conclusions, and the individual’s
exertional limitations are somewhere “in the
middle” in terms of regulatory criteria for
exertional ranges of work, more difficult
judgments are involved in the sufficiency of
the remaining occupational base to support a
conclusion as to disability. Accordingly,
24

[vocational specialist] assistance is
advisable for these types of cases.
Id. at *3.

While Plaintiff’s limitations appear more consistent

with sedentary work than with light work, the Court does not find
that the ALJ erred as a matter of law in choosing to consult a VE
rather than applying the lower exertional level based on the
advisory nature of the language used in SSR 83-12.
Despite the conclusion that neither the POMS nor SSR 83-12
require remand or reversal as a matter of law, the Court finds the
ALJ’s RFC determination problematic: without any discussion of the
assignment of the light exertional capacity in spite of the
reductions discussed above, the Court cannot conclude that the
outcome determinative designation is supported by substantial
evidence.
Both parties cite numerous cases in support of their
respective positions on whether the ALJ was entitled to rely on VE
testimony to support his RFC.

(Doc. 12 at 9-10; Doc. 13 at 13-15.)

The only Third Circuit case cited is Young v. Astrue, 519 F. App’x
769 (3d Cir. 2013) (not precedential), where the Third Circuit
panel concluded that the ALJ was entitled to rely on VE testimony
when the plaintiff was limited to a narrow range of light work
which included a specific limitation to standing or walking for no
more than two hours in an eight-hour day.

Plaintiff merely

references the case as inappropriately relied upon in Ambrose v.
Colvin, Civ. A. No. 3:14-CV-1618, 2015 WL 877790, at *15 (M.D. Pa.
25

Mar. 2, 2015), because Young involved a pro se plaintiff who did
not raise the arguments raised here (Doc. 12 at 11 n.9); Defendant
notes that Young is consistent with “the wide breadth of caselaw”
which affirms the process followed here (Doc. 13 at 20).

Because

the Court of Appeals for the Third Circuit “steadfastly attempt[s]
to discourages District Courts from relying on nonprecedential
opinions,” Jamison v. Klem, 544 F.3d 266, 279 n.11 (3d Cir. 2008),
the Court considers Young of equal persuasive weight to the
District Court decisions within the Circuit upon which the parties
rely.
District Court decisions within this Circuit have cited Young
in support of the proposition that an ALJ did not err in his
determination that a claimant had the RFC to perform a “narrow
range of light work,” where the RFC included standing and walking
no more than two hours in an eight-hour day and lifting no more
than ten pounds frequently and twenty pounds occasionally.

Wiggins

v. Berrhill, Civ. A. No. 16-3991, 2017 WL 1532038, at *7 (E.D. Pa.
February 24, 2017) (citing Young, 519 F. App’x at 771-72)8; Ambrose
v. Colvin, Civ. A. No. 3:14-CV-1618, 2015 WL 877790, at *15 (M.D.
Pa. Mar. 2, 2015) (citing Young, 519 F. App’x at 771).

Though both

cases relied on Young, they did so without extensive discussion.

8

The Report and Recommendation was adopted by Order of United
States District Judge Wendy Beetlestone. See Wiggins v. Berryhill,
Civ. A. No. 16-3991 (E.D. Pa. filed April 26, 2017).
26

Furthermore, in Ambrose, the Court concluded that the plaintiff’s
capability of standing/walking occasionally equated with walking up
to one-third of an eight-hour day and, because light work involves
standing or walking “as little as one-third of the time,” the
plaintiff’s capabilities were potentially equal to the light work
requirements.

2015 WL 877790, at *15.

This rationale blurs a

distinction set out in the regulations and the Agency’s definition
of those terms: occasionally is “up to one-third of the time”;
frequently is “from one third to two-thirds of the time.”
10, 1983 WL 31251, at *5-6 (emphasis added).

SSR 83-

By definition, the

categories butt up against one another, they are not the same.

Id.

Thought Defendant did not rely on Wiggins, the Court notes that the
plaintiff was a younger individual who was limited to standing and
walking for two hours in an eight-hour day, an important
distinction with the case at bar because the distinction between
sedentary and light work rules did not direct different conclusions
for a younger individual.

This same distinction applies to a case

cited by Defendant, Palmer v. Colvin, Civ. A. No. 1:15-CV-00704,
2016 WL 5817240 (E.D. Pa. Aug. 25, 2016), where the plaintiff was a
younger individual and the court noted that, even if the plaintiff
had “successfully argued that standing for two hours or less is
inconsistent with light work, the VE also testified that there were

27

sedentary jobs that [the plaintiff] could perform.”9

Id. at *3, 5.

Here the ALJ asked the VE only about an individual who had the
residual functional capacity to perform a “range of light work as
defined in the regulations” subject to certain limitations,
including those dealing with sitting, standing, pushing and
pulling.

(R. 41.)

The VE identified light occupations that are

“performed in a seated position or have a sit, stand option
associated with them.”

(R. 43.)

He did not discuss other

occupations at the sedentary level or offer any related to the
considerations addressed in SSR 83-12 or SSR 83-10.

Therefore, the

VE testimony does not provide an explanation that would render the
ALJ’s failure to provide one harmless.
Given Plaintiff’s age, vocational profile, identified
limitations, and the remedial nature of the statute, see, e.g.,
Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979), the
Court concludes that the better course here is to follow those
cases within the Third Circuit where the potentially outcome
dispositive nature of the assigned exertional level were deemed
cause for remand.

Ford v. Colvin, Civ. A. No. 1:14-CV-01046, 2015

WL 4608136 (D. Del. July 31, 2015); Riley v. Colvin, Civ. A. No.

9

In other cases within the Third Circuit cited by Defendant
(Doc. 13 at 14), the plaintiffs’ stand/walk limitations exceeded
one-third of the day, therefore the inconsistency discussed in the
text did not apply. Lackey v. Colvin, Civ. A. No. 12-516, 2013 WL
1903662, at *2 (W.D. Pa. May 7, 2013); Dick v. Colvin, Civ. A. No.
13-1308, 2014 WL 3530004, at *8 (W.D. pa. July 15, 2014).
28

3:13-CV-1223, (M.D. Pa. Sept. 26, 2014); Campbell v. Astrue, Civ.
A. No. 04-5356, 2010 WL 4689521 (E.D. Pa. Nov. 2, 2015).

Both Ford

and Campbell addressed situations where the ALJ had found a
plaintiff in the “closely approaching advanced age” category
capable of a limited range of light work with walk/stand
limitations for two hours in an eight-hour day.

Ford, 2015 WL

4608136, at *3, 6; Campbell, 2010 WL 4689521, at *1, 5.

Both

concluded that remand was required for further explanation of the
assigned exertional level due to the inherent contradiction between
a finding that the plaintiff could lift frequently (between three
and six hours) but be on his feet for only up to two hours.

Ford,

2015 WL 4608136, at *8; Campbell, 2010 WL 4689521, at *5-6.

The

Court is aware that both Ford and Campbell contain a more clear
distinction between sedentary and light exertional levels because
the stand/walk limitations are greater and two hours in an eighthour day does not butt up against “frequent” as does Plaintiff’s
“occasional” stand/walk limitation.

However, because there is a

distinction between occasional and frequent and because the level
classification is outcome determinative, remand for clarification
is the appropriate course.10

Id.; see also Riley, 2014 WL 4796602,

10

The Regulations indicate that a capability of performing a
“full or wide range of light work” requires the individual to do
substantially all of the listed activities and SSR 83-10 explains
that a “full range of light work requires being on one’s feet for a
total of approximately six hours in an eight-hour day.” 20 C.F.R.
§§ 404.1567(b), 416.927(b); SSR 83-10, 1983 WL 31251, at *6
(emphasis added). Though being found capable of a limited range of
29

at *8.
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 explanation 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: May 15, 2017

light work alleviates these requirements, it does not necessarily
follow that the exertional level should be assigned when the
claimant does not have the capability of performing most of the
defined activities at even the minimum level identified.

30