Burns v. Colvin
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Plaintiffs appeal is properly granted and this matter is remanded to the Acting Commissioner for further consideration. Reconsideration as directed above should be accomplished in an EXPEDITED manner given the procedural posture of this case. An appropriate Order is filed simultaneously with this action.Signed by Honorable Richard P. Conaboy on 10/9/17. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
:CIVIL ACTION NO. 3:17-CV-418
NANCY A. BERRYHILL,
Acting Commissioner of
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Supplemental Security Income (“SSI”) under
Plaintiff filed an application for benefits
on November 27, 2011, alleging a disability onset date of April 1,
After he appealed the initial denial of the
claim, ALJ Marie Greener denied Plaintiff’s claim with her May 6,
The Appeals Council denied Plaintiff’s
request for review and Plaintiff filed a civil action in this Court
(Civil Action No. 1:14-CV-1925).
By Order of January 13,
2016, the Court vacated ALJ Greener’s May 6, 2013, Decision and
remanded the matter for further proceedings.
28, 2016, ALJ Greener held a video hearing and additional evidence
was admitted into the record.
Plaintiff was represented at
the hearing and a Vocational Expert testified.
(See R. 404.)
Greener issued the Decision under consideration here on December
She concluded Plaintiff had not been under
a disability as defined in the Social Security Act since November
Plaintiff filed this action on March 6, 2017.
asserts in his supporting brief that the Acting Commissioner’s
determination is error for numerous reasons (Doc. 15 at 3), but
with his argument centers on the claimed error that the ALJ failed
to properly assess his limitations regarding reaching, handling,
and fingering (id. at 2-12).
After careful review of the record
and the parties’ filings, the Court concludes this appeal is
Plaintiff was born on April 14, 1967, and was forty-four years
old on the date the application was filed.
He has a
high school education and no past relevant work because his
earnings from his past work were below the presumptive substantial
gainful activity amounts.
The Court focuses on evidence of record cited by Plaintiff in
support of his argument that the ALJ erred in her assessment of his
limitations regarding reaching, handling, fingering and/or feeling.
(See R. 4.)
As warranted, the Court also reviews related evidence
relied upon by the ALJ and Defendant.
Before and after primary care provider Warren DeWitt, M.D.,
opined on May 9, 2012, that Plaintiff had significant restrictions
in many areas including his ability to do repetitive reaching,
handling, and fingering, his office notes seem to indicate normal
(R. 356-360, 370, 824-29.)
On July 10, 2013, Joseph Chun, D.O., of Northeastern
Rehabilitation Associates conducted a consultative examination at
the request of Warren DeWitt, M.D., Plaintiff’s primary care
By history, Dr. Chun noted that Plaintiff
had sustained a compression fracture at L1 in 1987 and underwent
posterior fusion at T12-L2.
In addition to longstanding severe
chronic pain in the thoracic and lumbosacral region, Plaintiff
complained of intermittent radiating pain along the posterolateral
buttock and thigh as well as severe right groin pain.
also reported new neck pain and numbness and tingling of the distal
Plaintiff said that his pain had been
worsening over the preceding few months, he rated it as 6/10 to
10/10 with an average of 9/10, and he felt some weakness in his
arms and legs.
Physical examination showed, among other
things, that cervical range of motion was moderately restricted,
especially extension and left rotation (which caused increased
The office note form has a printed physical exam section
which lists areas examined including “Extr/MSK” and “Neuro.” (R.
356-60, 804-29.) The form directs the provider “check if normal
note abnormal in assessment.” (Id.) With few exceptions (see R.
818, 820, 822, 823), Dr. DeWitt routinely runs a continuous line
through all identified areas of examination and also provides handwritten notes in the “Assessment” portion of the form. (R. 356360, 804-817, 819-29.) The notes are largely illegible. (Id.)
cervical pain) but without any radiating upper extremity symptoms.
Neurologic findings were normal but examination of the
extremities showed restricted and guarded range of motion of the
bilateral shoulders and hips.
Dr. Chun recorded the
following impression: cervical, thoracic, and lumbosacral
myofascial pain; lumbar post-laminectomy syndrome; possible lumbar
radiculitis; possible cervical radiculitis; and right groin pain of
On January 3, 2014, Plaintiff was seen at Barnes Kasson Health
Center by Lakshmi Mizin, M.D., on referral of Dr. DeWitt.
It appears that the reason for the referral was related to
increased chest discomfort in the midsternal region.
Physical examination findings included tenderness along the spine
and, neurologically, Dr. Chun found paraesthesia in both upper
On January 22, 2014, Plaintiff visited Dr. Chun with the chief
complaints of back pain and neck pain.
specific complaints included “pain in the thoracic and cervical
spine diffusely as well as the periscapular musculature.”
Dr. Chun noted that trigger point injection of the left
periscapular musculature done at the last office visit had been
He recorded that Plaintiff’s pain continued to
limit his activities of bending, lifting, standing, and walking and
it caused significant sleep disturbance.
Dr. Chun also
noted that Plaintiff reported intermittent numbness and tingling of
the bilateral upper extremities.
showed the following: cervical range of motion slightly restricted
through all planes with increase of cervical pain; thoracic and
lumbosacral range of motion moderately restricted throughout all
planes with increase of the lower lumbosacral pain throughout all
planes without any lower extremity symptoms; negative supine
straight leg raise bilaterally; positive lumbar facet joint loading
test bilaterally in the standing position with extension and
ipsilateral side bending/rotation causing increase of the low
lumbar pain; moderate pain to palpation bilateral lower lumbosacral
paraspinals; normal neurologic examination of the lower
extremities; normal muscle strength, tone, and reflexes; restricted
range of motion of the right hip; right groin and hip pain; and
positive provocative maneuvers including patrick’s and scour’s.
Dr. Chun’s impression included “[c]hronic back pain
since the L1 compression fracture and subsequent T12-L2 fusion in
Neck pain and bilateral upper extremity numbness since March
Many year history of right hip and groin pain.”
On February 7, 2014, Plaintiff reported an increase in
bilateral arm and buttock pain to Dr. DeWitt.
From March through September 2016, Plaintiff regularly
reported to Glendon Summers, D.C., that he had dull and aching low
back pain which radiated down the right leg to below the knee and
the pain was aggravated by sitting, bending, and reaching.
B. Opinion Evidence
Treating Primary Care Physician
In the Medical Source Statement Concerning the Nature and
Severity of an Individual’s Physical Impairment form dated May 9,
2012, Dr. DeWitt identified Plaintiff’s diagnoses to include
degenerative disc disease of the cervical and lumbar spine;
symptoms included pain, limited range of motion, and neuropathy
related to the cervical and lumbosacral region.
DeWitt rated Plaintiff’s pain at ten on a scale of one to ten and
he had not been able to completely relieve the pain with medication
without unacceptable side effects.
In addition to limitations in his ability to sit, stand/walk,
and lift/carry, Dr. DeWitt opined that Plaintiff had significant
limitation in doing repetitive reaching, handling, fingering, or
Dr. DeWitt noted that Plaintiff’s condition
interfered with his ability to keep his neck in a constant position
and he could not do a job that required that activity on a
He also opined that Plaintiff’s
ability to work at a regular job on a sustained basis would be
affected by limitations which included pushing and pulling.
Dr. DeWitt assessed Plaintiff’s prognosis to be poor, and he noted
that Plaintiff was not a malingerer.
(R. 369, 372.)
that the basis for his conclusion was severe neck and low back
On January 19, 2015, Dr. DeWitt completed a Physician
Verification Form for the Domestic Relations Section of the
Susquehanna County Court of Common Pleas.
that Plaintiff’s conditions of chronic back pain and degenerative
disc disease had affected his ability to work from January 10,
2012, through January 6, 2015, and that Plaintiff would never be
able to return to work.
On November 11, 2016, Dr. DeWitt completed an Addendum to
Questionnaire relating to his May 9, 2012, questionnaire.
He indicated that Plaintiff’s condition had worsened and
limitations were more severe than what was assessed in May 2012.
Though partially illegible, the decipherable reasons
provided for the changed assessment were increased back pain,
unable to lift or walk much.
On March 2, 2016, Dr. Summers completed a questionnaire in
which he provided the following diagnoses and conditions for which
he treated Plaintiff: “Low back pain with sacral and pelvic
Muscle spasm and disorders of the
sacrum[;] Lumbar flexion 35', right lumbar flexion 0'[;] tenderness
over the lumbar spine moderate to severe[;] diminished sensory over
the left lower leg[;] posture antalgic forward[;] Oswestry Back
Pain Outcome Assessment: 70.”
Dr. Summers assessed
limitations in the areas of standing/walking, lifting/carrying, and
found that Plaintiff should alternate sitting and standing every
The form did not seek information
about any other physical capacities.
(See R. 889-90.)
On November 23, 2016, Dr. Summers completed a Supplemental
He indicated that Plaintiff’s use of
his hands was limited in the following activities: he could never
reach or push/pull with either hand; he could occasionally
handle/finger with both hands; and he could never feel with his
right hand and occasionally feel with his left hand.
Lawrence Stepczak, M.D.
In a January 25, 2012, Disability Evaluation Lawrence
Stepczak, M.D., assessed Plaintiff to have chronic back pain with a
history of injury and problems with a metal plate.
completed a Medical Source Statement of Claimant’s Ability to
Perform Work-Related Physical Activities and assessed limitations
in the lifting, carrying, standing, walking, sitting, pushing and
pulling in the lower extremity, and postural activities.
He found that Plaintiff had no limitations in performing
other physical functions including reaching, handling, fingering,
Gilbert Jenouri, M.D.
On March 9, 2016, Gilbert Jenouri performed an Internal
Medicine Examination and completed a Medical Source Statement of
Ability to Do Work-Related Activities (Physical).
Musculoskeletal examination showed the following: Plaintiff had
positive single leg raise at twenty degrees; and he had sciatic
notch, mid-back and cervical tenderness to palpation.
Neurologic examination showed decreased sensation to fine touch in
the right lower extremity at L4 and the right upper extremity
distribution C6-8 as well as 5/5 strength in upper and lower
Examination of the extremities did not reveal
Dr. Jenouri identified limitations in the areas of
lifting/carrying, sitting/standing/walking, use of hands and feet,
and certain postural activities.
Regarding use of
hands, Dr. Jenouri opined that Plaintiff could never reach with
either hand and he could occasionally handle, finger, feel, and
push/pull with both hands.
In her December 30, 2016, Decision, ALJ Greener determined
that Plaintiff had the severe impairments of lumbar spine
degenerative disc disease status-post T12-L1 fusion and ventricular
She found Plaintiff’s neck problems to be
either non-severe or a “not medically determinable” impairment.
ALJ Greener concluded that Plaintiff’s impairments,
considered alone and in combination, did not meet or equal a listed
The ALJ found that Plaintiff had the following residual
functional capacity (“RFC”): he has
the capacity to lift and carry up to 10
pounds occasionally and less than 10 pounds
frequently; sit a total of seven hours in an
eight-hour workday, but needs to change
positions from sitting to standing after one
hour for a brief time, about five minutes,
before resuming sitting, but does not have to
leave the workplace or station during the
change of position. He can stand or walk a
total of one hour in an eight-hour workday,
but not more than 15 minutes at a time.
Additionally, he can occasionally push or
pull with his lower extremities. The change
in position may take place during customary
breaks and mealtime. He can ambulate short
distances, less than one block at a time.
In her discussion explaining the assessed RFC, ALJ Greener
first reviewed Dr. Stepczak’s opinion and noted that he examined
the claimant on one brief occasion, he did not review the
claimant’s records, and his opinion was not entirely supported by
his exam findings, the other objective evidence of record, or the
claimant’s treatment history.
assigned the opinion only some weight.
On these bases, she
ALJ Greener assigned Dr. DeWitt’s May 2012 opinion limited
weight because he was not an orthopedist but was a primary care
provider who saw Plaintiff for routine visits and medication
refills, and his opinion was not supported by his treatment notes,
objective medical findings, or treatment history.
also noted that the opinion was somewhat inconsistent with
Plaintiff’s activities, demonstrated abilities, and reports.
Following this assessment, ALJ Greener cited record evidence
including positive clinical findings, normal neurological findings,
and mild diagnostic findings.
(R. 386-87 (citing Exs. 14F-16F,
The ALJ assigned “no special weight” to Dr. DeWitt’s
January 2015 opinion that Plaintiff would never be able to return
to work because that determination was reserved to the
She assigned limited weight to Dr.
DeWitt’s November 2016 opinion that Plaintiff’s condition had
worsened since May 2012 because the opinion was not supported by
clinical findings, treatment history, or treatment notes and was
inconsistent with activities.
ALJ Greener assigned “only some weight” to Dr. Jenouri’s March
2016 opinion because Dr. Jenouri examined Plaintiff on only one
occasion, did not review his records, and rendered an opinion that
was not entirely supported by the record “i.e., the claimant’s
activities and negative clinical findings.”
Dr. Summers’ March 2016 opinion was given limited weight
because the limitations identified were not entirely supported by
the objective medical evidence or Plaintiff’s treatment history,
and were inconsistent with his activities.
gave Dr. Summers’ November 2016 opinion little or no weight for
similar reasons, adding that the record evidenced little or no
complaints regarding upper extremity dysfunction.
that “Dr. Summers did not start seeing the claimant until 2015 and
only treated him for low back pain, which could not reasonably be
expected to result in such severe upper extremity limitations.”
In her discussion explaining the assessed RFC, ALJ Greener
commented that there was a lot of variance among the opinions of
record and went on to note that both cosultative examiners found
that Plaintiff could lift and/or carry at least 10 pounds
occasionally, Dr. Jenouri and Dr. Summers opined that he could sit
for seven hours in an eight-hour day, and Dr. DeWitt, Dr. Summers,
and Dr. Jenouri all opined that he could stand/walk at least one
hour in an eight-hour day.
With the identified RFC, ALJ Greener concluded Plaintiff was
able to perform jobs which were available in significant numbers in
the national economy.
Therefore, she found that
Plaintiff had not been under a disability as defined in the Social
Security Act from November 7, 2011, through the date of the
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. §§
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
“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
capacity based on all the relevant medical evidence and other
evidence in the case record.
20 C.F.R. § 404.1520(e); 416.920(e).
The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.
The disability determination involves shifting burdens of
The initial burden rests with the claimant to demonstrate
that he or she is unable to engage in his or her past relevant
If the claimant satisfies this burden, then the Commissioner
must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).
As set out above, the instant decision was decided at step
five of the sequential evaluation process when the ALJ found that
Plaintiff could perform jobs that existed in significant numbers in
the national economy.
III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.
42 U.S.C. § 405(g); Hartranft
v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.
It means such relevant evidence
as a reasonable mind might accept as adequate to support a
Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the ALJ to
analyze all probative evidence and set out the reasons for his
Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119-20 (3d
Cir. 2000) (citations omitted).
If he has not done so and has not
sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
In Cotter, the Circuit Court clarified that the ALJ must
not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.
However, the ALJ need not undertake an
exhaustive discussion of all the evidence.
See, e.g., Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.
181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).
even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
Friedberg v. Schweiker, 721 F.2d 445, 447 (3d
Cir. 1983) (internal quotation omitted).
Where a claimed error
would not affect the outcome of a case, remand is not required.
Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).
an ALJ’s decision can only be reviewed by a court based on the
evidence that was before the ALJ at the time he or she made his or
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
Plaintiff asserts that the Acting Commissioner’s determination
is error because the ALJ failed to properly assess Plaintiff’s
limitations regarding reaching, handling, and fingering.
Defendant responds that the ALJ was not obligated to
assess manipulative limitations that she determined were not
supported by the record.
(Doc. 16 at 17.)
centers on the ALJ’s consideration of opinion evidence, pointing to
the opinions of Drs. DeWitt and Summers, treating providers, and
Dr. Jenouri, a consulting examiner, who all assessed Plaintiff to
have upper extremity limitations.
(See, e.g., Doc. 15 at 3.)
Under applicable regulations and the law of the Third Circuit,
a treating medical source’s opinions are generally entitled to
controlling weight, or at least substantial weight.
Fargnoli v. Halter, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20
C.F.R. § 404.1527(c)(2); Cotter v. Harris, 642 F.2d 700, 704 (3d
Sometimes called the “treating physician rule,” the
principle is codified at 20 C.F.R. 404.1527(c)(2), and is widely
accepted in the Third Circuit.
Mason v. Shalala, 994 F.2d 1058 (3d
Cir. 1993); see also Dorf v. Brown, 794 F.2d 896 (3d Cir. 1986).
The regulation addresses the weight to be given a treating source’s
opinion: “If we find that a treating source’s opinion on the
issue(s) of the nature and severity of your impairment(s) is wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in your case, we will give it controlling
20 C.F.R. § 404.1527(c)(2).3
“A cardinal principle
guiding disability eligibility determinations is that the ALJ
accord treating physicians’ reports great weight, especially when
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.
their opinions reflect expert judgment based on continuing
observation of the patient’s condition over a prolonged period of
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)
(citations omitted); see also Brownawell v. Commissioner of Social
Security, 554 F.3d 352, 355 (3d Cir. 2008).
In choosing to reject
the treating physician’s assessment, an ALJ may not make
“speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.”
F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).
Pursuant to 20 C.F.R. § 404.1527(c)(2), an ALJ must assign
controlling weight to a well-supported treating medical source
opinion unless the ALJ identifies substantial inconsistent
SSR 96-2p explains terms used in 20 C.F.R. § 404.1527
regarding when treating source opinions are entitled to controlling
1996 WL 374188, at *1.
For an opinion to be “well-
supported by medically acceptable clinical and laboratory
diagnostic techniques,” 28 U.S.C. § 404.1527(c)(2), “it is not
necessary that the opinion be fully supported by such evidence”–-it
is a fact-sensitive case-by-case determination.
SSR 96-2p, at *2.
It is a determination the adjudicator must make “and requires an
understanding of the clinical signs and laboratory findings in the
case record and what they signify.”
Similarly, whether a
medical opinion “is not inconsistent with the other substantial
evidence in your case record,” 28 U.S.C. § 404.1527(c)(2), is a
judgment made by the adjudicator in each case.
SSR 96-2p, at*3.
The ruling explains that
[s]ometimes, there will be an obvious
inconsistency between the opinion and the
other substantial evidence; for example, when
a treating source’s report contains an
opinion that the individual is significantly
limited in the ability to do work-related
activities, but the opinion is inconsistent
with the statements of the individual’s
spouse about the individual’s activities, or
when two medical sources provide inconsistent
medical opinions about the same issue. At
other times, the inconsistency will be less
obvious and require knowledge about, or
insight into, what the evidence means. In
this regard, it is especially important to
have an understanding of the clinical signs
and laboratory findings and any treatment
provided to determine whether there is an
inconsistency between this evidence and
medical opinions about such issues as
diagnosis, prognosis . . . , or functional
effects. Because the evidence is in medical,
not lay, terms and information about these
issues may be implied rather than stated,
such inconsistency may not be evidence
without an understanding of what the clinical
signs and laboratory findings signify.
SSR 96-2P, 1996 WL 374188, at *2.
The ruling further provides that
additional development may be needed to determine the appropriate
weight assigned a treating source opinion, “for example, to obtain
more evidence or to clarify reported clinical signs or laboratory
Id. at *4.
In contrast to those cases where the record
is adequately developed, SSR 96-2p specifically states that the ALJ
or Appeals Council “may need to consult a medical expert to gain
more insight into what the clinical signs and laboratory findings
signify in order to decide whether a medical opinion is wellsupported or whether it is not consistent with the other
substantial evidence in the case record.”
The ruling reinforces the need for careful review an ALJ’s
decision to discount a treating source opinion, with particular
attention paid to the nature of the evidence cited as
Consistent with SSR 96-2p’s explanation of
regulatory terms, Third Circuit caselaw indicates that “lay
reinterpretation of medical evidence does not constitute
‘inconsistent . . . substantial evidence.’”
Carver v. Colvin, Civ.
A. No. 1:15-CV-00634, 2016 WL 6601665, at *16 (M.D. Pa. Sept. 14,
2016)4 (citing Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 1978);
Frankenfeld v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988); Doak v.
Heckler, 790 F.2d 26, 29-30 (3d Cir. 1986); Ferguson v. Schweiker,
765 F.2d 31, 36-37 (3d Cir. 1985); Kent v. Schweiker, 710 F.2d 110,
115 (3d Cir. 1983); Van Horn v. Schweiker, 717 F.2d 871, 874 (3d
Cir. 1983); Kelly v. Railroad Retirement Bd., 625 F.2d 486, 494 (3d
Cir. 1980); Rossi v. Califano, 602 F.2d 55, 58-59 (3d Cir. 1979);
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).
Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979)).
reviewing court should disregard medical evidence cited as
contradictory if it is really lay interpretation or judgment rather
than that of a qualified medical professional.
See, e.g., Carver,
6601665, at *11.
Here the ALJ generally pointed to evidence of normal
neurologic findings as well as treatment notes and objective
findings which she determined to be unsupportive of the opinions
ALJ Greener’s opinion review contains only
two specific findings about Plaintiff’s upper extremity
limitations, both stated in the context of her review of Dr.
Summers’ November 2016 opinion:
she stated that “the record
evidenced little or no complaints regarding upper extremity
dysfunction” and concluded “that low back pain . . . could not
reasonably be expected to result in such severe upper extremity
Because the ALJ cited no specific reasons to reject the upper
extremity limitations assessed by Drs. DeWitt and Jenouri (see R.
386, 387), the Court considers the reasons provided in the broader
context of all opinions assessing such limitations.
review of the record shows that Plaintiff regularly reported to Dr.
Summers over a six-month period in 2016 that his back pain was
aggravated by activities which included reaching.5
(See R. 994-
The evidence set out in the Background section above also
shows that Plaintiff complained of upper extremity problems to Dr.
DeWitt and Dr. Chun and in some instances clinical findings
supported his subjective complaints.
(See, e.g., R. 704, 723,
Thus, the ALJ’s statement that “the record evidenced little
or no complaints of upper extremity dysfunction” (R. 388 (emphasis
added)) is not supported by the record and is not a valid reason to
discount assessed upper extremity limitations.
The ALJ’s specific
finding about the implausibility of back pain being the basis for
the assessed upper extremity limitations is also problematic in
that she made the finding without citation to evidence which
discounts a correlation between back pain and advised limitations
regarding reaching, handling, and fingering.
Therefore, the ALJ
appears to have employed lay opinion in arriving at this
This she cannot do pursuant to well-established Third
Morales, 225 F.3d at 317; Plummer, 186 F.3d at
429; Frankenfield, 861 F.2d at 408.
Defendant posits that Dr. Summers’ notes indicating that
Plaintiff reported that his pain was aggravated by reaching “more
fairly may be read to suggest issues reaching with Plaintiff’s
legs.” (Doc. 16 at 23 (citing R. 994, 997, 1000, 1003, 1006, 1009,
1012, 1015, 1018, 1021, 1024, 1027, 1030).) This suggestion does
not square with Dr. Summers’ upper extremity limitations assessed
in his November 2016 opinion (R. 1041). Further, ALJ Greener did
not make such a finding and, therefore, this rationale is not
appropriately considered on review. See, e.g., Fargnoli, 247 F.3d
Furthermore, ALJ Greener relied in part on the consistency of
findings in opinions in assessing Plaintiff’s RFC.
Although three examining acceptable medical sources, two of whom
were treating providers, opined that Plaintiff’s ability to reach,
handle, and finger were limited (see R. 370, 920, 1041), when ALJ
Greener identified limitations about which opining sources agreed,
she did not acknowledge the agreement among Dr. DeWitt, Dr.
Summers, and Dr. Jenouri on the reaching, handling, and fingering
(See R. 388.)
The only opinion which did not assess
such limitations is that of consulting examiner Dr. Stepczak who
examined Plaintiff in January 2012, which is before he reported
upper extremity problems.
(See R. 704, 723, 287.)
For all of these reasons, the Court concludes the ALJ erred in
rejecting the upper extremity limitations opined by Drs. DeWitt,
Summers, and Jenouri.
The Court is not persuaded otherwise by Defendant’s argument
that Plaintiff’s reports that reaching aggravated his pain are
subjective complaints that do not constitute clinical indications.
(Doc. 16 at 24.)
Defendant quotes Morris v. Barnhart, 78 F. App’x
820 (3d Cir. 2003) (not precedential), for the proposition that
memorialization of subjective complaints “does not elevate those
statements to a medical opinion.”
(Id. (quoting 78 F. App’x at
824-25 (citing Craig v. Chater, 76 F.3d 585, 590 n.2 (4th Cir.
While Defendant’s observations are true, they do not
resolve the issue before the Court because Defendant cites no
authority which supports the proposition that a treating or
examining medical source may not credit subjective complaints when
assessing an individual’s limitations.
Morris explained that “[a]n
ALJ may discredit a physician’s opinion on disability that was
premised largely on the claimant’s own accounts of her symptoms and
limitations when the claimant’s complaints are properly
78 F. App’x at 825.
Applying this principle here, ALJ Greener generally pointed to
evidence of normal and mild diagnostic testing, normal neurologic
findings, as well as treatment notes and objective findings which
she determined to be unsupportive of symptoms alleged and opinions
reviewed, but she did not specifically discount upper extremity
complaints in her Decision.
(See R. 385-88.)
To the extent she
addressed them directly, it was in the context discussed above
where she cited “little or no complaints regarding upper extremity
dysfunction” and the unreasonableness of a correlation between back
pain and upper extremity limitations as reasons to discount a
treating source opinion.
(See R. 388.)
Neither of these
statements properly discount Plaintiff’s subjective complaints of
upper extremity complaints.
Therefore, to the extent the opinions
at issue may have been based on Plaintiff’s subjective complaints,
Morris does not support discrediting the opinions.
78 F. App’x at
Finally, because Plaintiff has shown that the error is harmful
(Doc. 15 at 10-12), this matter is properly remanded for further
consideration, in particular for development of the record
regarding the upper extremity limitations assessed by Drs. DeWitt,
Summers, and Jenouri.
This development most likely must encompass
recontacting the providers who assessed Plaintiff to have upper
In certain circumstances, the duty to
develop the record may entail a duty to recontact a medical source
to obtain additional information, such as when the source’s report
“contains a conflict or ambiguity that must be resolved,” “does not
contain all the necessary information, or does not appear to be
based on medically acceptable clinical or laboratory diagnostic
Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 205 (3d
Cir. 2008) (citing 20 C.F.R. § 416.912(e)(1) and 20 C.F.R. §
For the reasons discussed above, Plaintiff’s appeal is
properly granted and this matter is remanded to the Acting
Commissioner for further consideration.
directed above should be accomplished in an EXPEDITED manner given
the procedural posture of this case.
An appropriate Order is filed
simultaneously with this action.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: October 9, 2017
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