Lamoreaux v. Berryhill

Filing 26

MEMORANDUM (Order to follow as separate docket entry)For all the reasons referenced in the foregoing memorandum, this case is remanded to the Commissioner for clarification and further development of the record in keeping with the points raised in the preceding discussion. Signed by Honorable Richard P. Conaboy on 2/6/18. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GARY KEITH LAMOREAUX,

:
: No. 3:17-cv-00238
Plaintiff
:
: Judge Richard P. Conaboy
V.
:
:
NANCY A. BERRYHILL,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant
:
__________________________________________________________________

Memorandum
I. Procedural Background.
We consider here Plaintiff’s appeal from an unfavorable decision
of the Social Security Administration (“SSA” or “Agency”)
concerning his application for Social Security Disability Benefits
(“DIB”). Plaintiff’s application was initially denied at the
administrative level on March 4, 2014. Plaintiff then filed a
request for a hearing before an Administrative Law Judge (“ALJ”).
Such a hearing was conducted on July 2, 2015 and it resulted in a
denial of benefits. Plaintiff then requested review from the
Appeals Council.

The Appeals Council denied review by written

decision dated Dec. 21, 2016 whereupon Plaintiff appealed to this
Court. This Court has jurisdiction over this matter pursuant to 42
U.S.C. § 405(g).
1

II.

Testimony before the ALJ.

A.

Plaintiff’s Testimony.

Plaintiff’s hearing was conducted in Wilkes-Barre, PA on July
2, 2015. ALJ Michele Stolls presided and testimony was taken from
Plaintiff Lamoreaux and Patricia Chilleri, a vocational expert.
Plaintiff was represented at the hearing by attorney John A.
Bednarz. Plaintiff’s testimony may be summarized as follows.
Plaintiff lives with his wife and two daughters in Nanticoke,
Pennsylvania. He is unable to help much with the care of his
daughters. The daughters were aged 9 and 13 at the time of the
hearing. He describes them as self-sustaining because he cannot
provide them much assistance and his wife also suffers from various
medical conditions.
Plaintiff’s back problems have gotten worse since he filed a
function report in March of 2014. He uses a cane intermittently but
has been advised by a physician’s assistant that he should not
become overly dependent on the cane. Accordingly, he now uses the
cane only when in stores and he is not generally in stores very
long.
He works at a part-time, modified duty type of job under the
direction of project manager Kathy Goodwin. Ms. Goodwin has
supervised Plaintiff for 5 years at two different employers, United
2

Rehabilitation Services (“URS”) and Portco. Plaintiff has
essentially performed modified light duty cleaning with no exertion
above his head or below his knees. Cleaning tasks that exceed these
parameters were performed by other employees. He also received
accommodations in the form of extra breaks if his diabetes flares
or pain in his hips or back intensifies. His work is performed in
the Federal Court House in Wilkes-Barre. He helps to clean
bathrooms, courtrooms, and the judge’s chambers. His work mainly
consists of dusting and wiping down sinks, mirrors, and tables. At
the time of his hearing, Plaintiff was working approximately 16
hours per week.
Plaintiff’s job was designed for someone with physical and/or
mental problems. His previous boss, Dave Bogar, had stated that if
the job was one where he had been held to the expectations of a
healthy worker he would have been fired a long time ago. Plaintiff
testified that he can stay on his feet for approximately 45 minutes
to an hour and that his job requires no lifting or carrying. He
pushes carts, empties waste baskets, and handles nothing heavier
that a spray bottle. He estimates that he can lift or carry about 5
pounds. Plaintiff testified further that he holds a driver’s
license and has no issues with driving. He stated that he had not

3

taken any vacations since the onset of his disability in November
of 2012.
Plaintiff weighed 410 to 415 lbs. on the date of his hearing.
He is 6 feet 3 inches tall. He has been as heavy as 430 pounds in
the past but had lost some weight by modifying his eating habits.
He takes Hydrocodone twice daily and denied side effects from that
medication. He also takes Cymbalta (30 mgs.) for pain at bed time
and Zanaflex for muscle spasms. He also denies side effects from
either of these medications. He has no difficulty concentrating.
Plaintiff’s most recent blood work caused his family doctor to
increase his Metformin prescription from 750 to 1,0000 mgs. He also
takes an unidentified medication to control his blood pressure. He
is aware of the diet a diabetic should follow and had been advised
by an unnamed physician to have bariatric surgery. He has decided
he will not undergo that surgery. Since his doctor increased his
dose of Metformin, his blood sugar level had dropped from 167 to
127. At times, though, his blood sugar drops as low as 80.
Regarding his decision to decline bariatric surgery, Plaintiff
stated that he went to two informational sessions and discussed
bariatric surgery with people who had undergone the procedure.
These discussions involved post-surgery complications and this
caused Plaintiff to decline the surgery. Plaintiff also stated that
4

pain in his left hip makes it difficult for him to walk. This pain
is arthritic and he believes it stems from an automobile accident
he had in 2000. He relates that he is in constant pain every day
and that, while the Hydrocodone helps with the hip pain, it does
little to alleviate his back pain. It was his understanding that an
MRI of his lumbar spine showed two collapsed discs, which were
surgically removed, and several other bulging discs. He states that
his low back pain is constant and that it is accompanied by muscle
spasms and stabbing pain that travels down his legs into his feet.
He states that he has purchased an adjustable bed to help him get
into a comfortable position but that he manages to get only 3 to 4
hours sleep each night.
Plaintiff’s shift starts at 6:30 a.m. His employer is
sensitive to his physical limitations and does not require him to
do various activities that his co-workers perform. He is also
allowed to take short, unscheduled brakes as he feels the need. He
tries to keep such breaks to 10 minutes or less because: “I try not
to take advantage of the situation that they provided for me.” He
estimates that he takes 4 to 5 of these 10 minute breaks during his
4 hour work day.
Plaintiff explained further that, while his employer accepts
the fact that he cannot complete his tasks as quickly as his co5

workers, he is subject to time studies which have resulted in his
hourly rate progressively dropping over a period of years. Upon
questioning by his attorney, Plaintiff explained that his
activities around the house are confined to helping his wife put
clothes in the washer and take them out of the dryer. When he feels
up to it he tries to do some cooking and cleaning to some
unspecified extent.
B.

Vocational expert testimony.

Patricia Chilleri, a vocational expert, also testified.
Without objection from Plaintiff’s counsel, Ms. Chilleri asked
Plaintiff a series of questions to better familiarize herself with
the physical demands of Plaintiff’s past relevant employment. The
vocational expert stated that from 2010 through the onset of
Plaintiff’s alleged disability on November 30, 2012 Plaintiff
worked under the supervision of URS, a company that works
cooperatively with the Pennsylvania Office of Vocational
Rehabilitation to provide supportive competitive employment with
relaxed work standards. Upon being informed of this, the ALJ stated
on the record that none of the work Plaintiff performed through URS
would be considered as past relevant work.
Ms. Chilleri stated that her review of Plaintiff’s file
indicated that he was currently 34 years of age and should be
6

considered a “younger individual”. She also indicated that
Plaintiff had a high school education and his past relevant work
history (prior to his involvement with URS) was primarily with Weis
Markets as a meat cutter, meat wrapper, and stock clerk. These jobs
were at either a heavy or medium exertional level. Plaintiff also
worked for a time at facilities where he performed packing duties
at a light exertional level.
The ALJ posed a hypothetical question to Ms. Chilleri in which
she was asked to assess the work capacity of a hypothetical
individual the same age and with the same work experience and
educational level as the Plaintiff. She was asked to further assume
that this individual had the residual functional capacity (“RFC”)
to perform sedentary work with additional limitations including:
only occasional balancing, stooping and climbing on ramps or
stairs; avoidance of climbing on ladders, ropes, or scaffolds;
avoidance of kneeling, crouching, or crawling; avoidance of pushing
or pulling with the lower extremities; avoidance of concentrated
prolonged exposure to fumes, odors, dust, gases, chemical
irritants, poor ventilation, extreme temperatures, excessive
vibration, or extreme dampness or humidity; no exposure to
dangerous machinery or unprotected heights; and limitation to low

7

stress jobs requiring only occasional interaction with supervisors,
co-workers, and the general public.
Based on this hypothetical question, the vocational expert
opined that the hypothetical person could not perform any of
Plaintiff’s past relevant work but could perform several sedentary
jobs that exist in significant numbers in the national economy.
These jobs included: “bench worker”; and “tester/inspector”. When
the vocational expert was asked a second hypothetical question
involving the same profile as the first with an additional
limitation imposed that the hypothetical person would be off task
30% of the workday due to chronic and severe back and hip pain, the
vocational expert stated that such an individual would be incapable
of sustaining full time employment of any kind.
I. Evidence of Record
A. Geisinger Health System
Treatment notes concerning this claimant are derived
exclusively from the Geisinger Health System. These notes were
compiled by several physicians and document Plaintiff’s morbid
obesity, history of laminectomy at L5 as documented by a 2004
lumbar spine MRI, multiple positive straight leg raising tests,
diabetes mellitus, degenerative joint disease bilaterally in the
ankles and hips, and degenerative disc disease of the lumbar spine
8

with attendant radiculopathy. Each of these conditions is
recognized as a “severe impairment” by the ALJ. See Doc. 10-2 at
16. None of the physicians who treated Plaintiff at Geisinger
provided any opinion, however, as to the degree of impairment these
conditions imposed nor did any of these physicians produce a
physical capacities evaluation form with respect to the Plaintiff.1
B.

Medical Opinion

A medical report from a state agency consulting physician, Dr.
Leo P. Potera, who did not physically examine the Plaintiff but
merely reviewed records produced by his treating physicians, was
produced for the Disability Determination Service on March 13,
2014. Dr. Potera indicated impairment diagnoses of discogenic and
degenerative back disorders and obesity. Dr. Potera assessed that
Plaintiff’s diagnosed impairments could reasonably be expected to
produce Plaintiff’s pain and other symptoms and also found that
Plaintiff’s complaints about the intensity, persistence and
functional limitations of his symptoms were substantiated by the
objective medical evidence.
Dr. Potera found also that Plaintiff could stand or walk for 4
hours and sit for 6 hours in an 8 hours workday. Additionally, Dr.
Potera found that Plaintiff could: lift and carry up to 20 pounds
1

Plaintiff’s counsel informs the Court that, in this case and others as well, it
has not been possible to get medical opinions from Geisinger physicians. See Doc.
19 at P.9,n.5.

9

occasionally; lift and carry up to 10 pounds frequently; operate
hand controls and foot pedals subject only to his lifting and
carrying exertional levels; and could do all these things while
operating on “normal breaks” with additional limitations as to
climbing, kneeling, and crouching. From these conclusions, Dr.
Potera opined that this 415 lb. claimant with a body mass index
measured at 52 could perform his past relevant work as a custodian.
C.

Other Relevant Evidence.

The record also includes two letters (R at 140 and 249) from
Kathy Goodwin, Plaintiff’s supervisor in his job as a custodian at
the Federal Courthouse in Wilkes-Barre, Pennsylvania. Ms. Goodwin
supervised Plaintiff for 5 years on behalf of two different
employers who contracted with the General Services Administration
(“GSA”). She described Plaintiff as a “good worker”. She also
indicated that Plaintiff’s bending restrictions, his inability to
do heavy lifting, and his fluctuating blood sugar levels combined
to require that he be accommodated in various ways in order that he
be able to maintain his employment. Ms. Goodwin also noted that his
rate of pay was subject to periodic time studies imposed by the GSA
and that these studies indicated that his performance has slowed
over the years because “certain tasks have become painfully
difficult for him”. This progressive slowing in the rate at which
10

he completes tasks has resulted in his hourly wage dropping from
$11.08 per hour to $8.84 per hour and, as of Ms. Goodwin’s last
communication, to $8.00 per hour. She described the program which
employs Plaintiff as “a non-profit vocational training facility for
adults with disabilities”.
I. The ALJ Decision.
The ALJ’s decision (Doc. 10-2) was unfavorable to the
Plaintiff. The ALJ 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 activities since November 30, 2012. The
alleged onset date.

3.

The claimant has the following severe
impairments: morbid obesity, degenerative disc
disease/degenerative joint disease of the
lumbosacral spine with radicular pain and status
post-surgery, diabetes mellitus, degenerative
joint disease of both ankles, mild degenerative
joint disease of both hips with possible femoral
11

acetabular impingement, and severe muscle
deconditioning.
4.

The claimant does not have an impairment or
combination of impairments that meets or
medically equals the severity of any of the
listed impairments in the Code of Federal
Regulations.

5.

After careful consideration of the entire
record, the undersigned finds that the claimant
has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a)
except his ability to work at that level is
reduced in that he is limited to occupations
that require no more than occasional postural
maneuvers, such as balancing, stooping and
climbing on ramps and stairs. He must avoid
occupations that require climbing on ladders,
ropes and scaffolds, or kneeling, crouching, or
crawling. He must avoid occupations that require
pushing or pulling with the lower extremities to
include the operation of foot peddles. He must
avoid concentrated prolonged exposure to fumes,
12

odors, dust, gases, chemical irritants,
environments with poor ventilation, temperature
extremes, vibration, extreme dampness and
humidity, or exposure to hazards such as
dangerous machinery and unprotected heights. He
is limited to occupations requiring no more than
simple, routine tasks, not performed in a fastpaced production environment, involving only
simple work-related decisions, and in general,
relatively few workplace changes. He is limited
to occupations which require no more than
occasional interaction with supervisors, coworkers, and members of the general public. He
is limited to occupations requiring low stress,
defined as occasional decision-making required.
6.

The claimant is unable to perform any past
relevant work.

7.

The claimant was born on November 20, 1980 and
was 32 years old which is defined as a younger
individual age 18-44, on the alleged disability
onset date.

13

8.

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

9.

Transferability of job skills is not material
to the determination of disability because
using the Medical-Vocational Rules as a
framework supports a finding that the claimant
is “not disabled,” whether or not the claimant
has transferrable job skills.

10.

Considering the claimant’s age, education, work
experience, and residual functional capacity,
there are jobs that exist in significant
numbers in the national economy that the
claimant can perform.

11.

The claimant has not been under a disability,
as defined in the Social Security Act, from
November 30, 2012, through the date of this
decision (September 2, 2015).

I.

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

2

ADisability@ is defined as the Ainability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental

14

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

20 CFR ''

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

The initial burden rests with the claimant to demonstrate

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

If the claimant satisfies this burden, then the Commissioner

must show that jobs exist in the national economy that a person

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).

15

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

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

As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found there are jobs that
exist in the national economy that Plaintiff is able to perform.
(R. at 23-24).
VI. Standard of Review
This Court’s review of the Commissioner=s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner=s decision.

42 U.S.C. ' 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means Amore 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
16

is overwhelmed by other evidenceB-particularly
certain types of evidence (e.g., that offered
by treating physicians)B-or if it really
constitutes not evidence but mere conclusion.
See Cotter, 642 F.2d at 706 (ASubstantial
evidence@ can only be considered as supporting
evidence in relationship to all the other
evidence in the record.@) (footnote omitted).
The search for substantial evidence is thus a
qualitative exercise without which our review
of social security disability cases ceases to
be merely deferential and becomes instead a
sham.

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

If she has not done so and has not

sufficiently explained the weight given to all probative exhibits,
Ato 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: ASince 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
17

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).

AThere

is no requirement that the ALJ discuss in its opinion every tidbit
of evidence included in the record.@
130, 133 (3d Cir. 2004).

Hur v. Barnhart, 94 F. App=x

A[W]here [a reviewing court] can

determine that there is substantial evidence supporting the
Commissioner=s decision, . . .
implicated.@

the Cotter doctrine is not

Hernandez v. Commissioner of Social Security, 89

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

Hartranft,

181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. ' 405(g) (A[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .@).

AHowever,

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).
18

Where the ALJ=s decision

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

See, e.g., Albury v.

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

An ALJ=s

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

See Dobrowolsky,

Social Security proceedings are not strictly

adversarial, but rather the Social Security Administration provides
an applicant with assistance to prove his claim.

Id.

AThese

proceedings are extremely important to the claimants, who are in
real need in most instances and who claim not charity but that
which is rightfully due as provided for in Chapter 7, Subchapter
19

II, of the Social Security Act.@

Hess v. Secretary of Health,

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

As such,

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

Dobrowolsky, 606

Further, the court in Dobrowolsky noted Athe cases

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

Id.

B. Plaintiff’s Allegations of Error.
Plaintiff makes four assignments of error: (1) that the ALJ
failed to explain how she evaluated Plaintiff’s obesity; (2) that
the ALJ erred by improperly rejecting Plaintiff’s subjective
complaints of the pain; (3) that the ALJ erred by improperly
assessing the statements provided by Plaintiff’s work supervisor;
and (4) that the ALJ erred by giving “great weight” to the flawed
report of a state agency consulting physician. We consider
Plaintiff’s first two assignments of error as so closely
intertwined for analytical purposes that we will examine them as
one. Plaintiff’s third and fourth assignments of error will be
addressed in turn.
1. The ALJ’s evaluation of Plaintiff’s obesity and subjective
complaints of pain.
20

The ALJ acknowledged that Plaintiff, who weighed anywhere
between 405 and 424 lbs. as recorded at various places in the
record, was morbidly obese.3 Plaintiff argues that, while the ALJ
acknowledged that he was morbidly obese, she failed to adequately
explain the limiting effect of his obesity in assessing his
(“RFC”). Plaintiff cites Diaz v. Commissioner of Social Security,
557 F.3rd 500(3rd Cir. 2009), for the proposition that the limiting
effects of obesity must be considered in combination with all other
identified impairments in determining a Plaintiff’s RFC. Further,
Diaz references the Agency’s instruction at SSR 00-3p to the effect
that:
Obesity may increase the severity of coexisting or
related impairments to the existent that the
combination of impairments meets the requirement of a
listing. This is especially true of musculoskeletal,
respiratory, and cardiovascular impairments. … and ALJ
must meaningfully consider the effect of a claimant’s
obesity, individually and in combination with her
impairments, on her workplace function at step 3 and at
every subsequent step.
3

Extreme (morbid) obesity is defined as having a body mass index (“BMI”) of 35
or more. Plaintiff’s BMI has been measured at 52 (Doc. 10-3 at 6). A BMI of 52
places the Plaintiff in the realm of super morbidity. See www.nhlhi.nih.gov.
Classification of Overweight and Obesity.

21

Diaz at 503-04.
In this case Plaintiff is identified as morbidly obese and afflicted
by severe musculoskeletal problems. Thus, he falls squarely within
the parameters of those claimants whose limitations are to be
assessed under the above-referenced SSR 00-3p. In the section of the
ALJ’s decision in which she discusses Plaintiff’s RFC (R. at 19-23),
she mentions the fact of Plaintiff’s obesity at no fewer than three
places, yet her discussions of the combined effect of his obesity
and other severe impairments is discussed only in the most generic
way. The ALJ offers the conclusory, oft-used recitation that: “the
undersigned finds that the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements considering the
intensity, persistence, and limiting effects of these symptoms are
not entirely credible for the reasons explained in this decision.”
(R. at 22). The explanation to which the ALJ refers is suspect. In
determining that Plaintiff’s RFC can permit limited sedentary work
the ALJ states that the Plaintiff’s “allegedly limited daily
activities cannot be objectively verified with any degree of
certainty.” (R. at 22-23). Having reviewed hundreds of these cases
over the years, this Court cannot recall any case where the
Plaintiff’s account of his own activities was “objectively verified”
22

and, in any event, that is not the appropriate standard. In this
case, one where the only doctor to offer an opinion as to
Plaintiff’s functional limitations has indicated that Plaintiff’s
account of the intensity, persistence, and limitations of his
symptoms are substantiated by the objective medical evidence (R. at
106), the Plaintiff’s complaints are entitled to “great weight” and
cannot be ignored unless contradictory medical evidence exists.
Mason v. Shalala, 994 F.2nd 1058, 1067-68 (3d Cir. 1993). See also
20 C.F.R. 404.1529(c)(4). The ALJ’s discussion does not identify any
contradictory medical evidence. Moreover, the ALJ’s observation
about a supposed lack of “objective verification” in no way fulfills
the obligation to explain how the Plaintiff’s obesity and other
documented medical conditions combine to affect his RFC.
The ALJ’s second reason for determining that Plaintiff remains
employable is rendered as: “even if the claimant’s daily activities
are truly limited as alleged, it is difficult to attribute the
degree of limitation to the claimant’s medical conditions.” (R. at
23). This acknowledgement hinges on a supposition the ALJ has
already rejected. (the veracity of the claimant’s complaints) and
provides no analysis of the degree to which the combined effect of
the Plaintiff’s obesity and other identified severe impairments
affect his ability to work as required by Diaz, supra. The fact that
23

Plaintiff’s severe impairments are “difficult to attribute” sheds no
light on the extent of their combined effect.
With respect to Plaintiff’s complaints of pain, the Court finds its
significant that Plaintiff’s complaints of pain are credited by the
doctor whose report was used to buttress the ALJ’s decision. When a
claimant testifies, as Plaintiff has done in this case, to the
limiting effects of pain stemming from established impairments, such
complaints are normally entitled to great weight. Sykes v Apfel, 228
F.3d 259, 266 (3d Cir. 2000). An ALJ may not discount such
complaints without credible contrary medical evidence. Green v.
Schweiker, 749 F.2nd 1066, 1068 (3d Cir. 1984). The Court has
thoroughly reviewed this record and has found no such contrary
medical evidence nor does the ALJ direct us to any.
For these reasons, Plaintiff’s allegations of error on these points
are correct. This case must be remanded for further analysis and
clarification of the degree to which Plaintiff’s obesity, in
combination with his other established impairments, including his
seemingly his well established complaints of pain, limit his ability
to work.
2. The ALJ’s evaluation of the letters provided by Plaintiff’s
supervisor.
Kathy Goodwin, Plaintiff’s supervisor of 5 years duration at
his last place of employment, provided 2 letters that explain that
24

his work was heavily accommodated in nature, part-time, and that he
had experienced increasing difficulty performing even his modified
duty job. Plaintiff contends that the content of these letters
provided evidence of the extent of Plaintiff’s limitations that
were insufficiently credited by the ALJ. See Doc. 19 at 24. The ALJ
found that Ms. Goodwin’s statements were not entitled to “great
weight”. (R. at 22). Thus, her statements were not ignored but
rather discounted. The ALJ noted that Ms. Goodwin was not “an
acceptable medical source” and that her observations “are
accommodated in the residual functional capacity.” (Id.)
Plaintiff’s reply brief (Doc. 25 at 6-7) asserts that the
ALJ’s failure to account for Plaintiff’s need for additional rest
breaks due to blood sugar fluctuations, as described by Ms. Goodwin
was error. It is true that the ALJ has acknowledged Plaintiff’s
diabetes mellitus as a severe impairment (R. at 68) and, yet, she
provides no discussion as to the limiting effects of that condition
in determining Plaintiff’s RFC. In light of this fact, it was error
not to provide more explanation of why Ms. Goodwin’s observations
regarding Plaintiff’s need for frequent unscheduled breaks were not
entitled to more significant weight. An explanation by the ALJ of
why seemingly probative evidence has been rejected is necessary.
Cotter v. Harris, Supra, at 706-07. This is more particularly so
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where, as here, a lay witness with extensive contact with the
claimant for a period of years provides evidence regarding a
Plaintiff’s physical capacities. SSR 06-03p provides that evidence
from “other sources” such as “public and private social welfare
agency personnel”, is valuable because “it may be based on special
knowledge of the individual and may provide insight into the
severity of the impairment [s] and how it affects the individual’s
ability to function.” The ALJ’s comment that Ms. Goodwin was not an
“acceptable medical source” is true but it misses the mark. Her
testimony was not offered to support a medical diagnosis. Rather,
it was offered in support of Plaintiff’s testimony as to his need
for frequent rest breaks due to fluctuating blood sugar levels. A
more detailed explanation of why Ms. Goodwin’s letters were not
accorded more credence is required here.
3. The ALJ’s reliance on the report of the state agency medical
consultant.
The ALJ assigned “great weight” to a medical report prepared
by Dr. Leo P. Potera, a state agency medical consultant. Dr. Potera
never examined Plaintiff but did review medical records from the
Geisinger Health System referring to Plaintiff’s treatment history.
It is certainly true that state agency consultant opinions normally
merit significant consideration. Chandler v. Commissioner of Social
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Security, 667 F.3d 356,361 (3d Cir. 2011). Nevertheless, two
deficiencies in the consultant’s report detract from its
reliability. The consultant found: (1) that Plaintiff’s diagnosed
severe medical conditions could be expected to produce his pain and
other symptoms; and (2) that Plaintiff’s statements about the
intensity, persistence, and functional limitations attributable to
these conditions were substantiated by objective medical evidence.
(R. 106). Conversely, after making these findings, the state agency
consultant indicated, inter alia, that this 400 plus pound man with
severe discogenic and degenerative back disorders could
occasionally climb ladders, ropes and scaffolds, crouch, and crawl.
The consultant found also that the claimant was capable of
performing his past relevant work. These findings seem
irreconcilable and, without more detailed explanation, strain
credulity.
Another infirmity of the consultant’s report is that he did
not have the benefit of the latest MRI report on the condition of
Plaintiff’s back at the time he prepared his report. He did have
the benefit of a 2010 MRI (R. 409) that demonstrated: “multiple
areas of degenerative changes and disc displacement.” A subsequent
lumbar spine MRI performed on December 26, 2012 apparently did not
make its way into the record until after Plaintiff’s hearing, an
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assertion that is undisputed by the Commissioner. (See Doc. 22 at
24). The comment by the radiologist on the 2012 MRI speaks to an
apparent deterioration of Plaintiff’s condition. Specifically, the
report states, in pertinent part:
There is now evidence of a shallow herniated disc in
the midline which has increased in size since the
previous examination and is in contact with the
dural sac which is slightly displaced posteriorly.
There is no central canal stenosis. There is
moderate compromise of the neural foramina
bilaterally.

The L4-5 disc space has also progressed slightly in
size. The disc space is narrowed and desiccated in a
similar fashion to L5-S1 and the previous
examinations and presents a broad-based herniation.
The protrusion creates encroachment of the neural
foramina bilaterally in a significant fashion. There
is facet arthrosis. Central canal is slightly
compromised.

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L3-4 disc space presents a shallow protrusion and
facet arthrosis.
(R. at 594-96).
Because of the above-referenced inconsistencies and/or
deficiencies, the Court cannot accept the consulting state
agency physician’s report as substantial evidence to support
the ALJ’s RFC determination. Accordingly, Plaintiff’s
assignment of error on this point is also well taken. The
Court suggests that it may be necessary to have this
Plaintiff seen by a consulting examining physician who can
then provide a more detailed analysis of Plaintiff’s
physical capacities and restrictions.

VIII. Conclusion:
For all the reasons referenced in the foregoing
memorandum, this case is remanded to the Commissioner for
clarification and further development of the record in
keeping with the points raised in the preceding discussion.

BY THE COURT

S/Richard P. Conaboy
RICHARD P. CONABOY
UNITED STATES DISTRICT JUDGE
Dated: February 6, 2018
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