Halloran v. Colvin

Filing 25

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Plaintiffs appeal is properly granted. The Acting Commissioners decision is reversed and this matter is remanded for prompt award of the benefits owed Plaintiff as of the alleged disability onset date of August 1, 2012. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 11/21/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS HALLORAN,

:
:CIVIL ACTION NO. 3:17-CV-11
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 November 9, 2013, alleging a
disability onset date of August 1, 2012.

(R. 18.)

After he

appealed the initial denial of the claim, a hearing was held on
August 4, 2015, and Administrative Law Judge (“ALJ”) Michelle Wolfe
issued her Decision on October 6, 2015, concluding that Plaintiff
had not been under a disability from the alleged onset date of

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.”

August 1, 2012, through the date of the decision.

(R. 40, 50.)

Plaintiff requested review of the ALJ’s decision which the Appeals
Council denied on February 6, 2017.

(R. 1-6.)

In doing so, the

ALJ’s decision became the decision of the Acting Commissioner.

(R.

1.)
Plaintiff filed this action on January 3, 2017.

(Doc. 1.)

He

asserts in his supporting brief that the ALJ erred at step three in
his determination that Plaintiff did not meet the requirements of
Impairment Listings 1.02, 1.03, or 1.04 and when he afforded great
weight to the state agency reviewer’s decision in assessing
Plaintiff’s residual functional capacity (“RFC”).
22.)

(Doc. 18 at 21-

After careful review of the record and the parties’ filings,

the Court concludes this appeal is properly granted.
I. Background
Plaintiff was born on August 16, 1963, and was forty-eight
years old on the date last insured.

(R. 26.)

He has a college

degree, served in the United States Air Force for four years, and
worked for the United States Postal Service for more than twentyfour years as a mail clerk, letter carrier, and postmaster.
61; Doc. 18 at 3.)

(R.

He alleged disability as of August 1, 2012, due

to his progressive spinal condition, hip joint dysfunction, and
depression.

(Doc. 18 at 3.)

Plaintiff died on August 8, 2017.

(Doc. 24 at 1.)

2

A. Medical Evidence2
Plaintiff had a partial laminectomy at the L4-5 level in 1985
while serving in the Air Force.

(R. 472.)

He had a second spinal

fusion surgery at the same level in 1992 due to ongoing complaints.
(Id.)

Plaintiff ultimately had a third spinal surgery in 1993 to

remove damaged hardware.

(Id.)

Citing evidence of a progressive

spinal impairment leading up to the disability onset date (see Doc.
18 at 4-12 (internal citations omitted)), the first record evidence
cited during the relevant time period is a December 20, 2012, visit
with Dr. Metgud at the VA Medical Center in Wilkes-Barre,
On December 20th,

Pennsylvania (Doc. 18 at 12 (citing R. 421)).

Plaintiff complained of chronic bilateral leg pain rated at 5/10
which he described as throbbing and aggravated by cold weather,
walking, and activity.
(R. 415.)

(R. 421.)

He also complained of back pain.

Dr. Metgud noted that Plaintiff had spinal stenosis as

per MRI done in September 2008, he had right hip replacement in
2006 and left hip replacement in 2011.

(Id.)

On examination, Dr.

Metgud did not find edema, cyanosis, or clubbing of the
extremities, and he found no local tenderness of the back but
observed a scar in the lumbosacral region.

(R. 415-16.)

Plaintiff

was directed to follow up with an outside surgeon for his chronic
back pain and continue with vicodin.

2

(R. 416.)

Dr. Metgud’s

The evidence review focuses on that relied upon by the
parties and the ALJ relevant to Plaintiff’s claimed errors.
3

examination and recommendation were the same in August 2013.

(R.

831.)
September 2013 evaluation by the Departmant of Veterans’
Affairs indicate a diagnosis of bilateral hip degenerative joint
disease, bilateral total hip replacements, degenerative disc
disease, lumbosacral spine, lumbar spinal stenosis status post
lumbar laminectomy and fusion, and lumbar radiculopathy.
820.)

(R. 812,

Both the hip/thigh and spinal conditions resulted in daily

pain flares.

(R. 813, 821.)

Plaintiff had a decreased range of motion in both hips with
objective evidence of painful motion throughout.

(R. 813-14.)

Functional loss and/or functional impairment of the hip and thigh
were assessed bilaterally and, after repetitive use, the following
contributing factors of disability were identified: less movement
than normal; weakened movement; pain on movement; disturbance of
locomotion; and interference with sitting, standing, and/or weight
bearing.

(R. 816.)

Localized tenderness to palpation was noted

for the joints/soft tissue of the right hip.

(Id.)

Findings also

indicated degenerative or traumatic arthritis of both hips
documented by imaging studies.

(R. 819.)

The Disability Benefits

Questionnaire further indicated that Plaintiff’s hip and/or thigh
condition functionally impacted his ability to work due to pain,
decreased mobility, and difficulty with prolonged standing,
walking, or sitting.

(R. 819.)

4

Plaintiff had restricted lumbar flexion and extension as well
as limited bilateral lateral flexion and rotation.

(R. 822.)

Functional loss and/or functional impairment of the thoracolumbar
spine was assessed and the contributing factors of disability after
repetitive use were identified to be the following: less movement
than normal; weakened movement, excess fatigability; pain on
movement; disturbance of locomotion; and interference with sitting,
standing, and/or weight bearing.

(R. 823-24.)

The questionnaire

indicated that Plaintiff had localized tenderness or pain to
palpation of the lumbar spine, paraspinal and SI joint tenderness
with palpation and movement.

(R. 824.)

It also indicated that

Plaintiff had guarding or muscle spasm of the thoracolumbar spine
severe enough to result in an abnormal gait.

(Id.)

Sensory exam

showed decreased sensation to light touch of the upper anterior
right thigh, the right thigh/knee, the right lower leg/ankle, and
the right foot/toes.

(R. 825.)

Straight leg raising test was

positive on the right and negative on the left.

(Id.)

Radiculopathy evaluation indicated that Plaintiff had radicular
pain which could be excruciating at times: he had moderate constant
pain in the right lower extremity and mild intermittent pain in the
left lower extremity; he had severe paresthesias and/or
dysesthesias in the right lower extremity and mild paresthesias
and/or dysesthesias in the left lower extremity; and he had severe
numbness in the right lower extremity.

5

(R. 826.)

Nerve root

involvement was identified at right L4/L5/S1/S2/S3.

(Id.)

The

severity of the radiculopathy and side effects was assessed to be
moderate.

(Id.)

Plaintiff’s back condition was found to impact

Plaintiff’s ability to work due to pain, decreased mobility,
difficulty with lifting, bending, twisting, and prolonged standing,
walking or sitting.

(R. 828.)

On January 18, 2014, Matthew Kozicki, M.D., saw Plaintiff for
a disability evaluation.

(R. 214.)

At the time, Plaintiff rated

his lower back pain as 8/10 in severity, intermittent in nature,
and worsened by any type of bending, crouching, or activity.

(Id.)

Plaintiff also described radiation down his right leg and
associated numbness and tingling.

(Id.)

Plaintiff listed his

medications to be Naproxen, Flexeril, Vicodin, and
hydrochlorothiazide.

(R. 216.)

Physical examination showed normal

ambulation, no difficulty getting out of a chair but difficulty
lying flat on the exam table, and no difficulty getting off the
exam table.

(R. 216.)

Examination of the extremities was normal,

lumbar spine flexion was limited to forty-five degrees laterally on
the right and left it was fifteen degrees anterior to ten degrees,
external rotation to ten degrees, hip flexion severely limited to
twenty-five degrees, internal rotation right and left to ten
degrees, and abduction and extension to ten degrees.

(R. 217.)

Straight leg testing was 40 on sitting right and left, and supine.
(Id.)

Plaintiff had difficulty laying straight back on the table.

6

(Id.)

He was unable to walk on his heels, toes, squat, and do

heel-to-toe.

(Id.)

Sensation was grossly intact and deep tendon

reflexes were normoactive.

(Id.)

Dr. Kozicki’s impression

included degenerative joint disease of the back in multiple levels
status post multiple surgeries, and right and left degenerative
joint disease of the hips status post total hip replacement
bilaterally.

(R. 217-18.)

On March 14, 2014, Plaintiff reported to Dr. Metgud that he
experienced numbness in both hands, right greater than left, and he
wondered if it could be related to his neck problems.
No problems were noted on physical examination.

(R. 775.)

(R. 776.)

Plaintiff was directed to follow up with an outside surgeon for the
chronic back pain.

(Id.)

On April 1, 2014, Dr. Metgud called Plaintiff to discuss
EMG/NC results.

(R. 772-73.)

The EMG showed a diffused cervical

polyradiculopathy mostly involving the lower trunk, C7-C8, C8-T1
bilaterally.

(R. 772.)

The NCV showed sensory more than motor

mixed axonal demylinating neuropathic changes.
planned to get a cervical MRI.

(Id.)

Dr. Metgud

(Id.)

The following Impression was recorded regarding the MRI of the
cervical spine on April 14, 2014: congenital spinal canal stenosis
with AP diameter of the canal measuring 9-10mm; superimposed
protrusions at C5-C6 and C4-C5 resulting in moderate spinal canal
stenosis; and right greater than left neural foraminal stenosis

7

greater at C5-C6 which could explain a right C6 radiculopathy if
clinically present.

(R. 224.)

Lumbar MRI Impression of the same

date indicated severe degenerative change at L4-L5 which was
slightly worse than that found in 2010, and a benign cyst in the
right L5-S1 neural foramen.

(R. 226-27.)

In Dr. Metgud’s April 22, 2014, Clinic Note related to a call
to Plaintiff to discuss the results of the MRIs, he noted that
Plaintiff had the studies because Plaintiff’s back and neck pain
were getting worse.

(R. 772.)

Dr. Metgud also noted that the MRIs

showed severe degenerative joint disease of the back, spinal canal
stenosis in the neck, and foraminal stenosis.

(Id.)

for Plaintiff to see a pain management specialist.

His plan was
(Id.)

On June 24, 2014, Plaintiff saw Thomas W. Hanlon, M.D., with
the chief complaints of neck and back pain.

(R. 648.)

By history,

Dr. Hanlon noted that Plaintiff reported cervical pain with
bilateral cervical radicular radiation of pain increasing over the
preceding months and conservative treatment had failed.

(Id.)

Plaintiff also reported a long-standing problem with back pain.
(Id.)

Physical examination showed the following: decreased range

of motion in the neck and pain on turning to the right; intact
pulses in extremities with normal range of motion and no joint
deformities; and neurologically motor 5/5 for all groups tested,
slightly decreased right grip strength, grossly intact to light
touch and normal gait.

(R. 651.)

Dr. Hanlon assessed neck pain,

8

bilateral cervical radiculopathy right greater than left and low
back pain secondary to postlaminectomy pain syndrome.

(Id.)

Dr.

Hanlon planned to add a Medrol Dosepak to Plaintiff’s medication
regimen, schedule a cervical epidural steroid injection, and
address the lumbar complaints after the cervical issues resolved.
(R. 651.)

In an Addendum to the consultation record, Dr. Hanlon

noted that April 14, 2014, imaging showed multifacorial cervical
spine stenosis, lumbar spine postsurgical changes with a small cyst
at the L5-S1 exit zone, and also lumbar spine extensive
degenerative changes with multifactorial spinal stenosis.

(R. 651-

52.)
Plaintiff had a cervical epidural steroid injection to the
cervical spine on August 7, 2014, and had a follow-up visit with
Dr. Hanlon on September 8, 2014.

(R. 731, 754.)

Dr. Hanlon noted

that Plaintiff reported significant pain reduction following the
injection but he was still having some crepitus and a slight return
of the pain at the time of the office visit.
also noted that the low back pain remained.

(R. 754.)
(Id.)

Dr. Hanlon

Physical

examination of the neck showed decreased range of motion in
extension and pain on turning to the right.

(R. 732.)

No abnormal

findings were noted regarding extremity, back, and neurological
examination.

(R. 732-33.)

Dr. Hanlon assessed neck pain,

bilateral cervical radiculopathy, and low back pain secondary to
postlaminectomy pain syndrome.

(R. 733.)

9

He planned to repeat

cervical epidural injections and to address the lumbar complaints
after the cervical issues resolved.

(Id.)

At his October 22, 2014, visit to Dr. Metgud’s office,
Plaintiff reported a pain level of 4/10 with pain located in the
neck, low back, hip, and right leg.

(R. 717.)

The provider

reported that Plaintiff was taking Naproxen, Flexeril, and Tylenol
for pain with some effect.

(Id.)

In November 2014, Plaintiff reported to Dr. Hanlon that he had
some improvement with his pain following cervical injections but he
continued to have pain in his low back and heaviness in the
bilateral lower extremities.

(R. 705.)

schedule lumbar spine injections.

Dr. Hanlon planned to

(R. 706.)

In January 2015, Plaintiff reported a ninety percent reduction
in his right L4-5 radicular pain after the lumbar steroid
injection, but he said he continued to have “horizontally radiating
low back pin across his back and consistent with facet arthropathy”
which was worse with prolonged sitting or standing.

(R. 693.)

At

his April visit with Dr. Hanlon, Plaintiff said his lumbar pain was
much better controlled following injections but he continued to
have some lumbar radicular pain and ongoing cervical pain located
at the base of his neck.

(R. 975.)

Dr. Hanlon planned to continue

Plaintiff’s medication regimen and schedule bilateral cervical
facet injections.

(R. 976.)

Plaintiff followed up with Dr. Metgud on June 1, 2015, at

10

which time Plaintiff reported his pain had improved after getting
shots in the neck and back. (R. 967.)

Physical examination did not

show any specific problems, and Plaintiff was advised to follow up
with pain management for his chronic back pain and cervical
radiculopathy.

(R. 968.)

At his June 29, 2015, visit with Dr. Hanlon, Plaintiff denied
neck pain but said he experienced left cervical radicular pain that
was increasing.
activity.

(R. 956.)

(Id.)

Plaintiff reported increased pain with

He wanted to schedule a repeat cervical epidural

steroid injection.

(Id.)

Physical examination of the neck showed

decreased range of motion in extension and pain on turning to the
right and slightly decreased right grip strength.

(R. 957.)

He

was assessed to have neck pain, cervical spondylosis, and cervical
radiculopathy.

(Id.)

The plan was to continue the medication

regimen and schedule a left cervical epidural steroid injection.
(Id.)
B. Opinion Evidence
On January 18, 2014, Dr. Kozicki, the examining consultant,
provided a Medical Source Statement.

(R. 218.)

He stated that

Plaintiff
was very cooperative and did give a good
effort during the exam. There was decrease
ranged [sic] of motion as stated in the exam
in the lumbar region on flexion and
extension, rotation, as well as in all
aspects of both hips. The patient would be
severely limited in his ability to sit,
stand, and walk in an 8-hour work day. He
11

was able to work about a third of a regular
work day due to his previous surgeries and
pain. The patient will be able to lift and
carry low weight amounts, about 10 to 20
pounds, for about one-third of a workday. He
would not be able to bend, stoop, or crouch
in any way he had performed. The patient did
have severe limitation as far as that. He
had no limitations as far as fine motor
manipulation such as grasping, handling, and
reaching.
(R. 218.)
On February 4, 2014, Gerald A. Gryczko, M.D., completed a
Physical Residual Functional Capacity Assessment.

(R. 92-94.)

He

concluded that Plaintiff could lift and/or carry twenty pounds
occasionally and ten pounds frequently, stand an/or walk for a
total of about six hours in an eight-hour day and sit for the same
period of time, his ability to push and/or pull was limited in both
lower extremities, he could occasionally climb ramps/stairs,
balance and stoop, and he could never climb
ladders/ropes/scaffolds, kneel, crouch, or crawl.

(R. 93.)

In the

RFC Additional Explanation, Dr. Gryczko stated that Plaintiff had
advanced degenerative disc disease, and current physical findings
indicated significant limitation in range of motion.

(R. 94.)

He

noted that Plaintiff “described daily activities that are
significantly limited” which was “consistent with the limitations
indicated by other evidence in this case.”

(Id.)

Dr. Gryczko

added
[t]he medical evidence shows that despite ongoing
treatment the claimant continues to have pain
12

which significantly impacts on his ability to
perform work-related activities. The claimant did
undergo surgery for his joints which has not
resulted in significant improvement of his
symptoms. The claimant’s pain is so severe that
his physician has prescribed narcotic pain
medication. All evidence was considered and the
claimant’s statement(s) are found fully credible.
(R. 94.)
C.

Hearing Testimony
Plaintiff testified at the August 4, 2015, hearing that he

retired from the postal service because he had too much pain to
make it through the day.

(R. 61-62.)

He said he did not do any

chores around the house or in the yard and he did not do any
physical therapy or exercising.

(R. 63-64.)

Plaintiff explained

that repetitive motion aggravated his back problems to the point
that he just could not do those activities.

(Id.) Plaintiff

reported that he occasionally went to the grocery store to pick up
a few things but he did not do big orders.

(R. 64.)

When asked how far he was able to walk before he had to stop
and take a break, Plaintiff responded that he was slower than most
people and could not really estimate the distance.

(R. 66.)

He

said he could stand for about fifteen to twenty minutes and then he
would change positions.

(Id.)

Regarding lifting, Plaintiff

reported that he occasionally helped his wife carry something from
the car or carry a bag of garbage.

(R. 67.)

Upon questioning by his attorney, Plaintiff stated that he was
considered one hundred percent disabled by the Veterans
13

Administration.

(Id.)

Plaintiff rated his neck pain at four out of ten early in the
day and eight out of ten later.

(R. 73.)

He rated his back pain

at four on good days and he said “it just basically stops me” on
bad days.

(Id.)

Plaintiff also said he wakes up three or four

times a night due to pain.

(Id.)

Plaintiff attributed his weight

gain of about fifty pounds to a lack of activity, adding that he
had much less energy than previously.

(R. 74.)

D. ALJ Decision
In her October 6, 2015, Decision, ALJ Wolfe determined
Plaintiff had the severe impairments of degenerative disc disease
of the lumbar spine; degenerative joint disease of the hips; status
post bilateral total hip replacement; cervical radiculopathy;
obesity; and dysthymic disorder.

(R. 42.)

She also found that he

had the non-severe impairment of malunion of the ankle and his
reported carpal tunnel syndrome symptoms do not support a medically
determinable impairment.

(R. 43.)

ALJ Wolfe concluded Plaintiff

did not have an impairment or combination of impairments that met
or equaled the severity of a listed impairment.

(Id.)

The ALJ determined that Plaintiff had the residual functional
capacity (“RFC”) to perform light work except
the claimant would have occasional pushing
and pulling with the lower extremities;
occasional balancing, stooping, and climbing,
but never on ladders, ropes, or scaffolds; no
kneeling or crouching; the claimant would
need to avoid concentrated exposure to
14

temperature extremes of cold and heat,
wetness, humidity, vibrations, and hazards
including moving machinery and unprotected
heights; the claimant would require the
option to transfer positions from sitting to
standing throughout a workday, where the
maximum interval per each transfer would be
up to one hour before transferring, but he
would not be off task while transferring; the
claimant would be capable of frequent
handling with the right (dominant) hand; the
claimant would be limited to simple, routine
tasks and no complex tasks.
(R. 44.)
ALJ Wolfe assigned limited weight to Dr. Kozicki’s opinions,
finding they were not fully supported by the record.

(R. 47.)

She

assigned great weight to Dr. Gryczko’s opinion, finding it well
supported.

(Id.)

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.3

It is necessary for the

3

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his
impairments
only unable
considering
experience,

physical or mental impairment or
are of such severity that he is not
to do his previous work but cannot,
his age, education, and work
engage in any other kind of
15

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

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).
16

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. 49-50.)
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
17

evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the ALJ to
analyze all probative evidence and set out the reasons for his
decision.

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

Cir. 2000) (citations omitted).

If he has not done so and has not

sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
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.”
18

Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.

See, e.g., Knepp v.

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

Hartranft,

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

“However,

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

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

Cir. 1983) (internal quotation omitted).

Where a claimed error

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

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 in his supporting brief that the ALJ erred
at step three in her determination that Plaintiff did not meet the
requirements of Impairment Listings 1.02, 1.03, or 1.04 and when he
19

afforded great weight to the State agency reviewer’s decision in
assessing Plaintiff’s RFC.

(Doc. 18 at 21-22.)

Defendant responds

that substantial evidence supports the ALJ’s step three
determination and evaluation of medical source opinions.

(Doc. 21

at 7, 13.)
A. Step Three
Because the parties’ specific arguments focus on Listing 1.04
and ambulation considerations (Doc. 18 at 26-31; Doc. 21 at 7-12;
Doc. 24 at 3-6), the Court will do the same.

Listing 1.04

addresses the requirements for establishing disability based on
disorders of the spine.
Disorders of the spine (e.g., herniated
nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative
disc disease, facet arthritis, vertebral
fracture) resulting in compromise of a nerve
root (including the cauda equina) or the
spinal cord. With:
A. Evidence of nerve root compression
characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is
involvement of the lower back, positive
straight-leg raising test (sitting and
supine); or
B. Spinal arachnoiditis, confirmed by an
operative note or pathology report of tissue
biopsy, or by appropriate medically
acceptable imaging, manifested by severe
burning or painful dysesthesia, resulting in
the need for changes in position or posture
more than once every 2 hours; or

20

C. Lumbar spinal stenosis resulting in
pseudoclaudication, established by finding on
appropriate medically acceptable imaging,
manifested by chronic nonradicular pain and
weakness, and resulting in inability to
ambulate effectively, as defined in 1.00B2b.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04.
Listing 1.04C requires that a claimant satisfy Section 1.00B2b
which provides as follows:
b.

What we mean by inability to ambulate
effectively.

(1) Definition. Inability to ambulate
effectively means an extreme limitation of
the ability to walk; i.e., an impairment(s)
that interferes very seriously with the
individual’s ability to independently
initiate, sustain, or complete activities.
Ineffective ambulation is defined generally
as having insufficient lower extremity
functioning (see 1.00J) to permit independent
ambulation without the use of a hand-held
assistive device(s) that limits the
functioning of both upper extremities.
(Listing 1.05C is an exception to this
general definition because the individual has
the use of only one upper extremity due to
amputation of a hand.)
(2) To ambulate effectively, individuals must
be capable of sustaining a reasonable walking
pace over a sufficient distance to be able to
carry out activities of daily living. They
must have the ability to travel without
companion assistance to and from a place of
employment or school. Therefore, examples of
ineffective ambulation include, but are not
limited to, the inability to walk without the
use of a walker, two crutches or two canes,
the inability to walk a block at a reasonable
pace on rough or uneven surfaces, the
inability to use standard public
transportation, the inability to carry out
routine ambulatory activities, such as
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shopping and banking, and the inability to
climb a few steps at a reasonable pace with
the use of a single hand rail. The ability
to walk independently about one’s home
without the use of assistive devices does
not, in and of itself, constitute effective
ambulation.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B2b.

Listings 1.02

addressing Major Dysfunction of Joints, also considers the
inability to ambulate effectively.

See 20 C.F.R. Pt. 404, Subpt.

P, App. 1, § 1.02.
In Jones v. Barnhart, 364 F.3d 501 (3d Cir. 2004), the Third
Circuit Court of appeals emphasized that “‘[f]or a claimant to show
his impairment matches a listing, it must meet all of the specified
medical criteria.

An impairment that manifests only some of those

criteria, no matter how severely, does not qualify.’”
(quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)).

Id. at 504
Jones also

stated that there is no particular language or format that an ALJ
must use so long as there is “sufficient development of the record
and explanation of findings to permit meaningful review.”
505.

Furthermore, as noted in Hernandez v. Comm’r

Id. at

of Soc. Sec.,

198 F. App’x 230, 235 (3d Cir. 2006) (not precedential), if the ALJ
finds no documentation of required signs, there is nothing more he
could have discussed and a plaintiff’s complaint of inadequate
discussion is without merit.
In a one-paragraph assessment of Plaintiff’s physical
impairments, ALJ Wolfe determined that Plaintiff did not have an

22

impairment or combination of impairments that met or equaled
Listing 1.04 or 1.02.
The medical evidence regarding the
claimant’s lumbar and cervical spine
disorders does not include evidence of nerve
root compression, spinal arachnoiditis or
lumbar spinal stenosis as required under
listing 1.04 (Ex. 5F/3-7 [R. 223-27]).
Moreover, the claimant’s back disorder has
not resulted in an inability to ambulate
effectively, as defined in 1.00(B)(2)(b). He
is able to ambulate independently (4F [R.
214-19]). For the same reason, the
claimant’s hip impairment does not meet the
requirements of Listing 1.02.
(R. 43.)
Plaintiff first claims the ALJ erred in this analysis because
diagnostic imaging cited by the ALJ “unambiguously establishes
medically determinable cervical and lumbar spinal stenosis.”
18 at 26 (citing R. 222-27).)

(Doc.

A review of the referenced

diagnostic imaging studies shows that Plaintiff correctly evaluates
the findings recorded in the April 14, 2014, Radiology Reports.
MRI of the cervical spine showed mild left greater than right
neural foraminal stenosis and mild spinal canal stenosis at C3-C4;
moderate to severe bilateral neural foraminal and moderate spinal
canal stenosis at C4-C5; severe right and moderate left neural
foraminal stenosis and moderate spinal canal stenosis at C5-C6; and
moderate to severe right neural foraminal stenosis and mild spinal
canal stenosis at C6-C7.

(R. 223-24.)

MRI of the lumbar spine

showed moderate to severe spinal canal stenosis and moderate right

23

greater than left neural foraminal stenosis at L4-L5; and mild left
neural foraminal stenosis at L5-S1.

(R. 226.)

These diagnostic

findings show that the ALJ did not properly assess the evidence
relied upon in concluding that the medical evidence does not
include evidence of spinal stenosis.

(See R. 43.)

Concerning ALJ Wolfe’s additional assessment that the
claimant’s back disorder has not resulted in an inability to
ambulate effectively, as defined in 1.00(B)(2)(b)b), with citation
to evidence that he “is able to ambulate independently” (R. 43
(citing Ex 4F [R. 214-19]), Plaintiff reviews evidence of record
and concludes that “the ALJ erred by necessarily equating the
ability to ‘ambulate independently’ with the ability to ‘ambulate
effectively,’”

(Doc. 18 at 31.)

The Court agrees that the ALJ’s

single specific finding regarding ambulation–-that “[h]e is able to
ambulate independently” (R. 43)–-cannot be deemed substantial
evidence in support of the conclusion that Plaintiff’s “back
disorder has not resulted in an inability to ambulate effectively”
(R. 43 (emphasis added)) where the definition of “inability to
ambulate effectively” encompasses far more than ability to ambulate
independently, see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B2b,
and the record contains evidence which arguably supports the
contention that Plaintiff was “incapable of sustaining a reasonable
walking pace over a significant distance to be able to carry out
activities of daily living,” see id. § 1.00B2b(2).

24

(See Doc. 18 at

30-31 (citing R. 653, 654, 798, 812, 813, 814, 816, 820, 822,
855).)
Because the ALJ improperly assessed probative evidence
supporting disability, the Court cannot conclude that her step
three assessment of Plaintiff’s physical impairments is supported
by substantial evidence.

The Court also concludes this claimed

error is cause for reversal or remand because the record suggests
that proper consideration may have resulted in a disability finding
at step three.
Further, were the Court to consider the specific arguments now
advanced by Defendant in support of the ALJ’s assessment, the same
conclusion would be warranted.

Although evidence now cited by

Defendant in support of the opinion assessments cannot be
considered substantial evidence in support of the step three
determination because this Court can only review the Decision based
on the ALJ’s rationale and findings, SEC v. Chenery, 318 U.S. 80,
87 (1943); Fargnoli, 247 F.3d at 44 n.7; Sykes v. Apfel, 228 F.3d
259, 271 (3d Cir. 2000), consideration of the the evidence relied
upon by Defendant is relevant to the Court’s determination of
whether an award of benefits rather than remand is appropriate in
this case.

As explained in Podedworny v. Harris, 745 F.2d 210 (3d

Cir. 1984), the decision to “to award benefits should be made only
when the administrative record of the case has been fully developed
and when substantial evidence on the record as a whole indicates

25

that the claimant is disabled and entitled to benefits.”

Id. at

221-22; see also Brownawell v. Commissioner of Social Security, 554
F.3d 352, 358 (3d Cir. 2008).
Defendant asserts the ALJ’s step three determination is
supported by substantial evidence for the following reasons: 1)
with respect to his lumbar spine impairments, the record contains
no evidence of a positive straight leg raising test in both the
sitting and supine positions as is required by Listing 1.04A (Doc.
21 at 8); 2) regarding cervical spine impairments, “Plaintiff has
not pointed to evidence of motor loss (atrophy with associate
muscle weakness or muscle weakness) accompanied by sensory or
reflex loss” (id. at 9); and 3) evidence showed that physical
examination results were often unremarkable and within normal
limits (id. (citing R. 46, 415-16, 432, 694, 706, 715, 737, 776,
957, 976)).
Contrary to Defendant’s contention that the record does not
contain the requisite evidence of a positive straight leg raise
test in the sitting and supine positions (Doc. 21 at 8), the
consulting examiner explicitly made such a finding when he recorded
that straight leg testing was 40 on sitting right and left, and
supine.4

(R. 217.)

4

The test is positive if the patient experiences sciatic pain
when the straight leg is at an angle of between thirty and seventy
degrees. http://sciencedirect.com/topics/neuroscience/straightleg-raise.
26

With Defendant’s emphasis on “motor loss” in the assertion
regarding Plaintiff’s cervical spine impairments (Doc. 21 at 9),
she points to a March 27, 2014, finding that the nerve conduction
velocity test “‘showed sensory more than motor mixed axonal
demylinating neuropathic changes.’” (Doc. 21 at 9 (quoting R. 659,
773).)

Defendant adds that this finding was made “without a firm

observation of motor loss.”

(Id.)

Although Defendant cites the

record for this proposition, the cited material does not state that
“a firm observation of motor loss” is lacking.

(See R. 659, 773.)

The study’s conclusion that there were “sensory more than motor . .
. changes,” (R. 659) does not support a conclusion that the study
showed no evidence of motor loss.

On the contrary, the

electrodiagnostic data showed positive findings in the three
identified categories and specifically set out positive findings in
certain muscles.

(R. 658-59.)

Further, the study did not address

clinical assessment of motor loss in that the Conclusion noted that
“[t]he clinical correlation is required.”

(R. 659.)

As set out in

Plaintiff’s reply brief, the record establishes Plaintiff’s
bilateral hand numbness, decreased range of cervical motion,
decreased right hand grip strength, and the progression of
bilateral arm pain.

(Doc. 24 at 1 (citing R. 773, 775, 694, 957).)

Evidence of record shows the March 27th studies were done to assess
Plaintiff’s complaints of bilateral hand numbness and weakness
supported by physical exam.

(See R. 657, 774, 777.)

27

Defendant’s reliance on evidence showing that “physical
examination results were often unremarkable and within normal
limits” (Doc. 21 at 9 (citing R. 46, 415-16, 432, 694, 706, 715,
737, 776, 957, 976)) is misplaced.

First, Listing 1.04 does not

require consistent physical examination findings.
Pt. 404, Subpt. P, App. 1.

See 20 C.F.R.

Second, VA records document numerous

clinical findings, including restricted lumbar flexion and
extension as well as limited bilateral lateral flexion and rotation
and localized tenderness or pain to palpation of the lumbar spine,
paraspinal and SI joint tenderness with palpation and movement.
(R. 822, 824.)

Moreover, medical records show that Plaintiff’s

spinal condition caused frequent pain flares and several
limitations were related to repetitive use.
24.)

(See, e.g., R. 821-

If impairments are aggravated by activities, as documented

here (see, e.g., R. 823-24), and are characterized by pain flareups (see, e.g., R. 821), stationary examination will not
necessarily regularly reveal symptoms otherwise documented in the
record and supported by diagnostic testing.
The foregoing analysis indicates the evidence relied upon by
Defendant to show that Plaintiff failed to establish that his
impairments did not meet Listing 1.04A does not in fact make such a
showing.

Having discounted the impediments identified by Defendant

to satisfying the listing requirements, the Court concludes
reversal and award of benefits is the appropriate disposition.

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See

Podedworny, 745 F.2d at 221-22.
Although this determination renders extensive discussion of
Listing 1.04C unnecessary, evidence of record suggests that
Plaintiff’s walking difficulties may have rendered him incapable of
“sustaining a reasonable walking pace over a sufficient distance to
be able to carry out activities of daily living.”
404, Subpt. P, App. 1, § 1.00B2b.

20 C.F.R. Pt.

Evidence cited above shows that

Plaintiff’s spinal impairments interfered with his ability to walk
and this was identified as a contributing factor in the VA
disability analysis.

(R. 823.)

Dr. Kozicki, the consulting

examiner, concluded that Plaintiff would be severely limited in his
ability to walk in an eight-hour day.

(R. 218.)

Plaintiff

testified about limitations in his daily activities, including
difficulty walking at a normal pace (R. 65-66), and Dr. Gryczko
opined that Plaintiff’s description of “daily activities that are
significantly limited” were “consistent with the limitations
indicated by other evidence in this case.”

(R. 94.)

While further

development of the record regarding whether Plaintiff was incapable
of effective ambulation could clarify the extent of his limitation,
remand for this purpose is not warranted given the conclusion
regarding Listing 1.04A and the fact that Plaintiff himself could
not shed more light on the issue given his death on August 28,
2017.
B.

Residual Functional Capcaity

29

The Court briefly addresses Plaintiff’s argument that the ALJ
improperly assigned great weight to Dr. Gryczko’s opinion because
the opinion was not based on a review of the complete medical
record including diagnostic imaging and treating physician records
from January 2014 through October 2015.

(Doc. 18 at 32.)

As this

is a case where diagnostic testing supported complaints of
worsening symptoms and limitations (see, e.g., R. 224, 226-27,
772), reliance on the State agency reviewer’s opinion is
problematic.

See Batdorf v. Colvin, 206 F. Supp. 3d 1012, at 1024

(M.D. Pa. 2016).

While remand for further consideration of this

issue would be appropriate in some instances, see id., the Court’s
step three determination and Plaintiff’s death support reversal and
award of benefits in this case.
V. Conclusion
For the reasons discussed above, Plaintiff’s appeal is
properly granted.

The Acting Commissioner’s decision is reversed

and this matter is remanded for prompt award of the benefits owed
Plaintiff as of the alleged disability onset date of August 1,
2012.

An appropriate Order is filed simultaneously with this

Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: November 21, 2017

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