Bansa v. Colvin

Filing 16

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 7/19/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LISA BRIDGETTE BANSA,

:
:CIVIL ACTION NO. 3:16-CV-2286
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.

(Doc. 1.)

Plaintiff

filed an application for benefits on May 16, 2013, alleging a
disability onset date of December 29, 2012.

(R. 15.)

After

Plaintiff appealed the initial denial of the claim, a hearing was
held on September 26, 2014, and Administrative Law Judge (“ALJ”)
Jarrod Tranguch issued his Decision on April 24, 2015, concluding
that Plaintiff had not been under a disability during the relevant

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.”

time period.

(R. 28.)

Plaintiff requested review of the ALJ’s

decision which the Appeals Council denied on September 19, 2016.
(R. 1-6.)

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

the Acting Commissioner.

(R. 1.)

Plaintiff filed this action on November 14, 2016.

(Doc. 1.)

She asserts in her supporting brief that the Acting Commissioner’s
determination should be reversed or remanded for the following
reasons: 1) the ALJ erred in failing to assign controlling weight
to Plaintiff’s treating physician; and 2) the ALJ’s residual
functional capacity (“RFC”) is not reviewable or not supported by
substantial evidence.

(Doc. 11 at 7.)

After careful review of the

record and the parties’ filings, the Court concludes this appeal is
properly granted.
I. Background
Plaintiff was born on December 23, 1967, and was forty-five
years old on the disability onset date.

(R. 32.)

She has a high

school education and past relevant work as a letter carrier and
carrier supervisor.
A.

(R. 32; Doc. 11 at 2.)

Medical Evidence
Plaintiff reported a history of diabetes since 1994.

210.)

(R.

In February 2013, Plaintiff saw Christoper Yusko, D.O., of

Geisinger Pocono’s Family Practice Dpeartment for a diabetes
mellitus evaluation with the chief complaint of burning pain in her
feet.

(R. 455.)

He noted that Plaintiff had “a LONG history of

2

poor compliance with her [Diabetes Mellitus] control, multiple
cancelled and no showed apts.”

(Id.)

Dr. Yusko found decreased

sensation in her feet and discussed with Plaintiff how her poor
compliance had lead to her neuropathy and foot pain.

(R. 450.)

He

stressed the need for daily exercise, weight loss/management, and
medication compliance, and he prescribed Lyrica for the foot pain.
(Id.)
Howard Katz, M.D., of PMC Physician Associates noted in March
2013 that Plaintiff complained of persistent ankle pain, noting she
had sprained her ankle and was using an aircast.

(R. 555.)

In

April, Dr. Katz found a limited range of motion of the left ankle
with dorsiflexion, pain over the deltoid ligament and peroneal
tendon distribution.

(R. 553.)

He noted that the sprained

ankle/foot was causally related to work accident in December 2012
where she dislocated her elbow.

(Id.)

At a follow up visit with Dr. Yusko on May 20, 2013, Plaintiff
again complained of foot pain which she described as a sensation of
both feet being on fire.

(R. 488.)

Dr. Yusko recorded that

Plaintiff was frustrated with her diabetes mellitus and she was not
following her MTM (medication therapy management) as suggested.
(Id.)

He again stressed the need for better compliance with

suggested management and control strategies, stating that Plaintiff
needed “to be more serious” about these things.

(R.

489.)

Dr.

Yusko added Gabapentin to her medication regimen to address the

3

foot pain.

(Id.)

On May 21, 2013, Dr. Katz noted that Plaintiff’s ankle range
of motion was improving steadily and the ankle felt better.
551.)

(R.

He noted that the sprain and strain without tendon injury

was resolving and Plaintiff was able to work light duty only.

(R.

551.)
On June 4, 2013, Plaintiff had her initial visit at Mountain
Valley Orthopedics with the chief complaint of left elbow pain.
(R. 501.)

Records signed by Gregory Mineo, M.D., indicate that

Plaintiff reported the December 29, 2012, elbow dislocation which
was reduced and she had done well postoperatively.

(Id.)

She said

she had started with numbness and tingling in her left little
finger which was worse if she rested her elbow on a hard surface.
(Id.)

Plaintiff also reported joint pain and stiffness and trouble

walking using hip/knee joints.

(R. 502.)

Physical examination

showed that Plaintiff ambulated “in a heel-to-toe fashion without
noticeable limp.”

(Id.)

Dr. Mineo noted full range of motion of

the elbow without instability, normal motor exam and muscle
development, and minimal tenderness over the cubital tunnel.

(Id.)

He planned to review her EMG and see her in two weeks to discuss
the results.

(Id.)

Dr. Mineo also noted that Plaintiff could work

with limited use of her upper extremity.

(Id.)

At her June 7, 2013, visit with Dr. Yusko, he recorded that
Plaintiff presented “for disability” for bilateral carpal tunnel
4

and she was following with podiatry for foot pain.

(R. 504.)

He

noted that Plaintiff was a mail carrier who did a lot of walking,
and she was awaiting the results of the EMG.

(Id.) Although

physical examination did not reveal any problems, Dr. Yusko
recorded that he would give six weeks disability related to carpal
tunnel and neuropathy problems.

(R. 505.)

In June and July of 2013, EMG testing showed peripheral
neuropathy of Plaintiff’s upper and lower extremities.

(R. 525-26,

528, 534-35.)
In January 2014, Dr. Yusko noted that Plaintiff had a history
of poor diabetes control and she was following at the time with a
diabetes educator and endocrinology for her diabetes mellitus.
(R. 609.)

He recorded that her diabetes control was “horrible,”

her compliance was “terrible,” and this would likely lead to
worsening problems.

(Id.)

On May 8, 2014, Plaintiff saw Gary Hrobuchak, D.P.M., for the
chief complaint of painful feet with numbness.

(R. 550.)

She also

complained of a sore ankle for two months and pain when walking and
reported high blood sugars.

(Id.)

Physical examination findings

included non-palpable PT pulses and pain on range of motion of left
ankle.

(Id.)

Dr. Hrobuchak noted that he explained poor

circulation, neuropathy, and the importance of maintaining good
blood sugar to Plaintiff.

(Id.)

At her next visit, Dr. Hrobuchak

administered a steroid injection.

(R. 549.)

5

Two weeks later,

Plaintiff reported that she felt much better after the injection
but still felt pain.

(R. 548.)

Dr. Hrobuchak gave Plaintiff

another injection and instructed her to take motrin.

(Id.)

At her

next two-week follow up appointment on June 26, 2014, Plaintiff
reported that she was no better since the last injection and she
could not walk due to pain.

(R. 547.)

Dr. Hrobuchak prescribed

Tramadol and noted that he awaited MRI results.

(Id.)

The MRI

showed osteochondral lesion of the medial talar dome and mild edema
in Kaker’s fat pad, nonspecific but consistent with mild Achilles
peritendinitis.

(R. 603.)

On Dr. Yusko’s referral, Plaintiff was seen by Douglas C.
Nathanson, M.D., of Geisinger Pocono’s Neurology Department on July
31, 2014, for a chief complaint of neuropathy.

(R. 600.)

Plaintiff stated that her symptoms were getting progressively
worse, she had burning pain in both feet which increased with
ambulation and standing, she had more recent onset of pain in the
lower lumbar area with radiation into her buttocks and posterior
aspect of both legs into her feet, and she had
pain/numbness/tingling in both hands, especially upon wakening.
(R. 600-01.)

Plaintiff told Dr. Nathanson that she had difficulty

driving and occasionally dropped things.

(R. 601.)

Physical

examination showed 5/5 strength in upper and lower extremities,
decreased sensation to pinprick in bilateral feet with radiation to
ankles, vibratory sense decreased at bilateral toes, positive

6

Tinel’s bilaterally, decreased sensation to pinprick in fingertips
of bilateral hands, deep tendon reflexes +2 and symmetrical in
bilateral upper extremities, +2 at the knees and absent at the
ankles, and a normal gait and stance.

(R. 598.)

Dr. Nathanson

diagnosed neuropathy, lower back pain, and carpal tunnel syndrome.
(R. 598.)

He noted that the Neurontin dosage was recently

increased, he encouraged tight blood glucose control in regard to
modifying symptomatology, and he prescribed wrist splints for
bilateral carpal tunnel.

(Id.)

On September 5, 2014, Plaintiff presented as a new patient to
Elmo Baldassari, D.P.M., at his Pocono facility.

(R. 575.)

Plaintiff exhibited pain on range of motion and palpation, medial
aspect of the anterior aspect of her left ankle.

(Id.)

On

September 12, 2014, Dr. Baldassari saw Plaintiff for follow up of
her left ankle pain, noting that he reviewed earlier x-rays and her
MRI.

(R. 574.)

He also noted that Plaintiff fractured her ankle

in December 2013, she was not treated properly for it, and she was
“somewhat noncompliant,” having showed up at the emergency room and
never followed up with orthopedics.

(Id.)

He further noted that

Plaintiff had a lot of ankle instability and she had not played
volleyball since the injury because her ankle kept giving out on
her and she had pain.

(Id.)

Dr. Baldassari recommended “ankle

arthroscopy with ankle arthrotomy with lateral ankle stabilization
with a Mitek anchor if needed.”

(Id.)

7

He added that surgery would

be scheduled for October.
B.

(Id.)

Opinion Evidence
On June 11, 2013, Carol Latzanich, D.P.M., wrote on Pocono

Podiatry Associates, P.C., prescription pad paper that Plaintiff
“may not do prolonged standing or walking, may not drive mail
truck.

She has severe neuropathy–-this is for indefinite time.”

(R. 520.)
On June 17, 2013, Dr. Katz completed a Physical Residual
Functional Capacity Questionnaire.

(R. 576-79.)

He stated that

Plaintiff needed a “sedentary job that she can change positions
from at will.”

(R. 579.)

He also opined that every other day

Plaintiff would need to take unscheduled breaks of five minutes,
she would need to elevate her legs knee high thirty percent of the
day, she would be limited in her abilities to reach, handle and
finger with her right side seventy percent of the day and with her
left side five percent of the day, and she would miss work about
four days per month as a result of her impairments.

(R. 578-79.)

State agency consultant Alex Siegel, Ph.D., reviewed
Plaintiff’s records on July 2, 2013, and concluded that Plaintiff
had no medically determinable mental health impairments.

(R. 97-

98.)
On August 1, 2013, state agency consultant Louis B. Bonita,
M.D., reviewed the records and concluded that Plaintiff’s diabetes
mellitus and peripheral neuropathy were severe impairments.

8

(R.

97.)

His assessments included findings that Plaintiff could lift

and carry up to twenty pounds, and could sit and stand/walk for six
hours in an eight-hour workday.

(R. 99.)

C.

Function Report and Hearing Testimony

1.

Function Report
Plaintiff completed a Function Report on June 3, 2013.

168-77.)

(R.

She stated that her ability to work was limited by her

illnesses because she was in constant severe pain, she was unable
to walk or stand for long periods, and her sleeplessness and
continual fatigue made it very difficult to be behind the wheel of
a vehicle for eight hours daily.

(R. 168.)

Plaintiff described what she did from the time she awakened to
the time she want to bed to be reading her bible, eating, going to
doctors’ appointments and thinking.

(R. 169.)

She indicated that

she prepared meals like frozen dinners and sandwiches, and she did
laundry and cleaned which each took about one hour once a week.
(R. 170.)

Plaintiff also said she shopped for clothing and

groceries about once a week for thirty to sixty minutes.

(R. 171.)

Regarding hobbies and interests, Plaintiff said she could no longer
play sports but she continued to watch TV daily.

(R. 172.)

Plaintiff indicated that her abilities to stand, walk and climb
stairs were affected by her illnesses as a result of severe pain,
burning, and numbness in her feet.

(R. 173.)

walk one block before needing to stop and rest.

She said she could

9

(Id.)

2.

Hearing Testimony
Plaintiff testified at the September 26, 2014, hearing that

she had not worked since the day she fell in December 2012.
66.)

(R.

She said her conditions affected her ability to work because

the neuropathy caused constant pain in her feet and her foot often
goes numb which causes her to fall.

(R. 67.)

She said she was

still working on getting the diabetes under control and had
recently seen an endocrinologist and nutritionist.
70.)

(R. 67, 69,

Plaintiff said the neuropathy caused constant pain from her

waist to her feet.

(R. 70.)

She indicated she could walk or stand

for about fifteen to twenty minutes at a time and she could sit for
twenty to twenty-five minutes.

(R. 72.)

When asked by her

attorney about lifting and carrying limitations, Plaintiff said she
could not lift anything over five pounds with her left arm and the
hand gets numb and she could lift a little more with the right
side.

(R. 75-76.)

Plaintiff said she was not undergoing any

treatment for carpal tunnel at the time.

(R. 73.)

When asked about household chores, Plaintiff testified that
she could do a little bit of everything.

(R. 79.)

She said she

previously had played golf and was in a volleyball league but had
stopped both activities as of December 2012.

(R. 80.)

Plaintiff

reported that she did volunteer at the food pantry work one day a
week for an hour.

(R. 81.)

10

D.

ALJ Decision
With his April 24, 2015, Decision, ALJ Tranguch found that

Plaintiff had the severe impairments of diabetes mellitus,
peripheral neuropathy, degenerative joint disease/osteoarthritis of
the left ankle, a history of left ankle fracture, bilateral carpal
tunnel syndrome, and ulnar neuropathy of the left elbow, and that
she did not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed
impairments.

(R. 25-26.)

He concluded that Plaintiff had the RFC

to perform sedentary work except that she
is limited to lifting and carrying up to 10
pounds; could stand/walk for up to 2 hours in
an 8-hour workday; could sit for up to 6 ours
in an 8-hour workday; could occasionally use
her upper and lower extremities for
pushing/pulling, such as in the operation of
hand controls, levers, pedals, or foot
controls; could occasionally balance, crouch,
crawl and use ramps/climb stairs; should
avoid occupations that require climbing
ladders, ropes, and scaffolds; must avoid
concentrated exposure to vibrations and
wet/slippery conditions; and should avoid
workplace hazards such as unprotected heights
and dangerous moving machinery.
(R. 27-28.)

After finding that Plaintiff could not perform past

relevant work, the ALJ found that she jobs existed in significant
numbers in the national economy that Plaintiff could perform.
32.)

Therefore, he found that Plaintiff had not been under a

disability from December 29, 2012, through the date of the
decision.

(R. 33.)

11

(R.

Other relevant portions of the ALJ’s Decision will be
referenced in the Discussion section of this Memorandum.
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.2

It is necessary for the

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

20 C.F.R. §§

2

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

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

20 C.F.R. § 404.1520(e); 416.920(e).

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

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

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

If the claimant satisfies this burden, then the Commissioner

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

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

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

(R. 32.)
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).
13

Substantial evidence

means “more than a mere scintilla.

It means such relevant evidence

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

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

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

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the ALJ to
analyze all probative evidence and set out the reasons for his
decision.

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

Cir. 2000) (citations omitted).

If he has not done so and has not

sufficiently explained the weight given to all probative exhibits,
14

“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.

See, e.g., Knepp v.

Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.

Hartranft,

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

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
15

facts presented.”

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

Cir. 1983) (internal quotation omitted).

Where a claimed error

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

Finally,

an ALJ’s decision can only be reviewed by a court based on the
evidence that was before the ALJ at the time he or she made his or
her decision.

Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
IV. Discussion

Plaintiff asserts that the Acting Commissioner’s determination
should be reversed or remanded for the following reasons: 1) the
ALJ erred in failing to assign controlling weight to Plaintiff’s
treating physician; and 2) the ALJ’s residual functional capacity
(“RFC”) is not reviewable or not supported by substantial evidence.
(Doc. 11 at 7.)
A.

Treating Physician Opinion
Plaintiff asserts that the ALJ erred in failing to assign

controlling weight to Dr. Katz’s opinion.

(Doc. 11 at 9.)

Defendant responds that ALJ Tranguch properly evaluated Dr. Katz’s
opinion.

(Doc. 14 at 11.)

The Court concludes that remand is

required for further consideration of Dr. Katz’s opinion.
Under applicable regulations and the law of the Third Circuit,
a treating medical source’s opinions are generally entitled to

16

controlling weight, or at least substantial weight.3

See, e.g.,

Fargnoli v. Halter, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20
C.F.R. § 404.1527(c)(2); Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981)).

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 well-

3

Defendant notes that it is significant that the Social
Security Agency has moved away from the treating source rule
although the new regulations only affect cases filed after March
27, 2017. (Doc. 14 at 12 n.3.)
For claims filed after March 27, 2017, the
regulations have eliminated the treating
source rule and in doing so have recognized
that courts reviewing claims have “focused
more on whether we sufficiently articulated
the weight we gave treating source opinions,
rather than on whether substantial evidence
supports our decision.” 82 FR 5844-01, 2017
WL 168819, *at 5853 (Jan. 18, 2017). The
agency further stated that in its experience
in adjudicating claims using the treating
source rule since 1991, the two most
important factors for determining
persuasiveness are consistency and
supportability, which is the foundation of
the new regulations. Id. Therefore, the
new regulations contain no automatic
hierarchy for treating sources, examining
sources, or reviewing sources, but instead,
focus on the analysis of these factors. Id.
(Doc. 14 at 12 n.3.)
17

supported 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
weight.”

20 C.F.R. § 404.1527(c)(2).4

“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

4

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.
18

time.”

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)

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

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.”

Morales, 225

F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).
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
evidence.

SSR 96-2p explains terms used in 20 C.F.R. § 404.1527

regarding when treating source opinions are entitled to controlling
weight.

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.”

Id.

Similarly, whether a

medical opinion “is not inconsistent with the other substantial
19

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
findings.”

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

20

more insight into what the clinical signs and laboratory findings
signify in order to decide whether a medical opinion is wellsupported or whether it is not consistent with the other
substantial evidence in the case record.”

Id.

The ruling reinforces the need for careful review of an ALJ’s
decision to discount a treating source opinion, with particular
attention paid to the nature of the evidence cited as
contradictory.

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)5 (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)).

Thus, the

reviewing court should disregard medical evidence cited as

5

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).
21

contradictory if it is really lay interpretation or judgment rather
than that of a qualified medical professional.

See, e.g., Carver,

6601665, at *11.
ALJ Tranguch’s review of opinion evidence included
consideration of the Physical Residual Functional Capacity
Questionnaire (R. 5776-79) completed by Dr. Katz.
On June 17, 2013, Howard V. Katz, MD
completed a physical residual functional
capacity assessment of the claimant that
limited the claimant to a range of sedentary
work. Numerous added limitations were
included that further restricted the
claimant, including recommendations that the
claimant: required an ability to take
unscheduled breaks at will; must be afforded
an opportunity to elevate her legs for 30% of
the workday; and must be able to change
positions at will (Exhibit 12F). Limited
weight is given to this opinion overall.
Although the undersigned agrees with the
conclusion of this evaluator, namely, that
the claimant retains a light residual
functional capacity, the specific added
qualifiers greatly exceed the claimant’s
limitations and are not supported by the
evidence of record overall. The residual
functional capacity assessment offered by Dr.
Katz is therefore given limited weight,
subject to the aforementioned explanation.
(R. 30.)
Plaintiff points to specific problems with the ALJ’s decision
to afford this opinion limited weight: the opinion is entitled to
controlling weight because it is well-supported; the ALJ did not
identify any substantial evidence inconsistent with Dr. Katz’s
opinion; the ALJ did not address certain limitations set out in Dr.

22

Katz’s opinion; and the state agency physician’s opinion cannot
constitute substantial inconsistent evidence.

(Doc. 11 at 10-

17.)
The Court cannot conclude that ALJ Tranguch’s decision to
assign limited weight to Dr. Katz’s opinion is supported by
substantial evidence.

As argued by Plaintiff, the ALJ did not

adequately explain his decision.

ALJ Tranguch’s statement that Dr.

Katz’s “added qualifiers greatly exceed the claimant’s limitations
and are not supported by the record overall,” falls far short of
the requirement that an ALJ explain the basis for his conclusion.
The ALJ must provide specific evidence which contradicts the
treating physician’s opinion and here he does not do so.
30.)

(See R.

In this situation, the Court can only speculate as to the

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

See, e.g., Christ the King

Manor, Inc. v. Sec’y U.S. Dep’t of Health and Human Services, 730
F.3d 291, 305 (3d Cir. 2013); see also Fargnoli v. Massanari, 247
F.3d 34, 42 (3d Cir. 2001) (“Where there is conflicting probative
evidence in the record, we recognize a particularly acute need for
an explanation for the reasoning behind the ALJ’s conclusions, and
will vacate or remand a case where such an explanation is not
provided.”).

For similar reasons, Defendant’s explanation of the

basis for the ALJ’s finding regarding Dr. Katz’s opinion (Doc. 14

23

at 11-19) is unavailing in that the Third Circuit Court of Appeals
“requires the ALJ to set forth the reasons for his decision.”
Burnett, 220 F.3d at 119 (emphasis added).
When further considering the opinion upon remand, the basis
for the statement that “specific added qualifiers greatly exceed
the claimant’s limitations and are not supported by the evidence of
record overall” (R. 30) must be explained and supported by
identified evidence of record without reliance on impermissible lay
interpretation of evidence.6

Further, Dr. Katz’s opinion regarding

limitations in reaching, handling, and fingering (R. 579) must also
be addressed.

A thorough explanation of the determination of the

proper weight to be afforded Dr. Katz’s opinion should be
undertaken in the context of authority which provides that reliance
on a non-examining source’s opinion which was not based on a review
of all the evidence can be problematic, especially in cases where
the opinion of the treating source is supported by competent

6

Plaintiff avers that lack of compliance with recommended
treatment and conservative treatment cannot be considered
inconsistent evidence unless these aspects of the record are
further explored by the ALJ. (Doc. 15 at 6-7.) The Court concurs
that the ALJ may not rely on evidence of lack of treatment
compliance and/or conservative treatment without additional
consideration. Here the ALJ factored Plaintiff’s alleged lack of
compliance into his credibility determination. (R. 31.) He may
only properly do so after considering the reasons for the lack of
compliance. See, e.g., Newell v. Comm’r of Soc. Sec., 347 F.3d
541, 547 (3d Cir. 2007). Pursuant to SSR 96-7p, “the adjudicator
must not draw any inferences about an individual’s symptoms and
their functional effects from a failure to seek or pursue regular
treatment without first considering any explanations that the
individual may provide.” SSR 96-7p, 1996 WL 374186, at *7.
24

evidence and evidence of record shows that the claimant’s condition
worsened after the reviewing consultant provided an opinion.

See,

e.g., Blum v. Berryhill, Civ. A. No. 3:16-CV-2281, 2017 WL 2463170,
at *5-9 (M.D. Pa. June 7, 2017).
B.

Residual Functional Capacity Assessment
Plaintiff contends that the ALJ’s RFC assessment, hypothetical

questions to the vocational expert, and step five findings are not
supported by substantial evidence even if the Dr. Katz’s opinion is
not entitled to controlling weight.

(Doc. 11.)

Defendant responds

that the RFC is supported by substantial evidence in that the ALJ
appropriately reviewed the evidence of record and formulated a
comprehensive RFC consistent with the regulations.
23.)

(Doc. 14 at

The Court concludes that the RFC assessment should be

generally reviewed upon remand in that reconsideration and further
explanation regarding the analysis of Dr. Katz’s opinion relates to
the RFC assessment and the Court’s finding of error in the lack of
specificity in the ALJ’s

analysis of the treating physician’s

opinion also applies to his analysis of Dr. Bonita’s opinion.7
V. Conclusion
For the reasons discussed above, the Court concludes that

7

Defendant asserts that Plaintiff “mistakenly argues that
the ALJ was required to adopt a medical opinion verbatim into the
RFC. However, the RFC assessment is an administrative finding, not
a medical opinion.” (Doc. 14 at 20 (citing Social Security Ruling
(SSR) 96-5p, 1996 WL 374183).) To the extent Plaintiff may infer
that an RFC must mirror precise medical opinion findings, Defendant
correctly notes that the RFC determination is the province of the
ALJ.
25

Plaintiff’s appeal is properly granted.

This matter is remanded to

the Acting Commissioner for further consideration consistent with
this opinion.

An appropriate Order is filed simultaneously with

this Memorandum.

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

DATED: July 19, 2017

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