Burns v. Colvin

Filing 17

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
HOWARD BURNS,

:
:CIVIL ACTION NO. 3:17-CV-418
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Supplemental Security Income (“SSI”) under
Title XVI.

(Doc. 1.)

Plaintiff filed an application for benefits

on November 27, 2011, alleging a disability onset date of April 1,
2011.

(R. 381.)

After he appealed the initial denial of the

claim, ALJ Marie Greener denied Plaintiff’s claim with her May 6,
2013, Decision.

(Id.)

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).

(Id.)

By Order of January 13,

2016, the Court vacated ALJ Greener’s May 6, 2013, Decision and
remanded the matter for further proceedings.

(Id.)

On November

28, 2016, ALJ Greener held a video hearing and additional evidence
was admitted into the record.

(Id.)

Plaintiff was represented at

the hearing and a Vocational Expert testified.

(See R. 404.)

ALJ

Greener issued the Decision under consideration here on December
30, 2016.

(R. 381-90.)

She concluded Plaintiff had not been under

a disability as defined in the Social Security Act since November
27, 2011.

(R. 390.)

Plaintiff filed this action on March 6, 2017.

(Doc. 1.)

He

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
properly granted.
I. Background
Plaintiff was born on April 14, 1967, and was forty-four years
old on the date the application was filed.

(R. 389.)

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.
A.

(Id.)

Medical Evidence
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
2

in many areas including his ability to do repetitive reaching,
handling, and fingering, his office notes seem to indicate normal
physical exam.1

(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
physician.

(R. 723.)

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.

(Id.)

He

also reported new neck pain and numbness and tingling of the distal
upper extremities.

(Id.)

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.

(Id.)

Physical examination showed, among other

things, that cervical range of motion was moderately restricted,
especially extension and left rotation (which caused increased

1

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.)
3

cervical pain) but without any radiating upper extremity symptoms.
(R. 724.)

Neurologic findings were normal but examination of the

extremities showed restricted and guarded range of motion of the
bilateral shoulders and hips.

(Id.)

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
unknown etiology.

(Id.)

On January 3, 2014, Plaintiff was seen at Barnes Kasson Health
Center by Lakshmi Mizin, M.D., on referral of Dr. DeWitt.
750.)

(R.

It appears that the reason for the referral was related to

increased chest discomfort in the midsternal region.

(R. 751.)

Physical examination findings included tenderness along the spine
and, neurologically, Dr. Chun found paraesthesia in both upper
arms.

(Id.)

On January 22, 2014, Plaintiff visited Dr. Chun with the chief
complaints of back pain and neck pain.

(R. 703.)

Plaintiff’s

specific complaints included “pain in the thoracic and cervical
spine diffusely as well as the periscapular musculature.”

(Id.)

Dr. Chun noted that trigger point injection of the left
periscapular musculature done at the last office visit had been
ineffective.

(Id.)

He recorded that Plaintiff’s pain continued to

limit his activities of bending, lifting, standing, and walking and
it caused significant sleep disturbance.

4

(Id.)

Dr. Chun also

noted that Plaintiff reported intermittent numbness and tingling of
the bilateral upper extremities.

(Id.)

Physical examination

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.
(R. 703-04.)

Dr. Chun’s impression included “[c]hronic back pain

since the L1 compression fracture and subsequent T12-L2 fusion in
1987.

Neck pain and bilateral upper extremity numbness since March

2013.

Many year history of right hip and groin pain.”

(R. 704.)

On February 7, 2014, Plaintiff reported an increase in
bilateral arm and buttock pain to Dr. DeWitt.

(R. 963.)

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

5

the pain was aggravated by sitting, bending, and reaching.

(R.

994-1030.)
B. Opinion Evidence
1.

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.

(R. 369.)

Dr.

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.

(Id.)

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
lifting.

(R. 370.)

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
sustained basis.

(R. 371.)

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.

(Id.)

Dr. DeWitt assessed Plaintiff’s prognosis to be poor, and he noted
that Plaintiff was not a malingerer.
6

(R. 369, 372.)

He indicated

that the basis for his conclusion was severe neck and low back
pain.

(R. 372.)

On January 19, 2015, Dr. DeWitt completed a Physician
Verification Form for the Domestic Relations Section of the
Susquehanna County Court of Common Pleas.

(R. 789.)

He indicated

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.

(R. 789.)

On November 11, 2016, Dr. DeWitt completed an Addendum to
Questionnaire relating to his May 9, 2012, questionnaire.
1034.)

(R.

He indicated that Plaintiff’s condition had worsened and

limitations were more severe than what was assessed in May 2012.
(Id.)

Though partially illegible, the decipherable reasons

provided for the changed assessment were increased back pain,
unable to lift or walk much.
2.

(Id.)

Treating Chiropractor
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
segmental dysfunction[;]

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

7

Pain Outcome Assessment: 70.”

(R. 889.)

Dr. Summers assessed

limitations in the areas of standing/walking, lifting/carrying, and
found that Plaintiff should alternate sitting and standing every
fifteen minutes.

(R. 890.)

The form did not seek information

about any other physical capacities.

(See R. 889-90.)

On November 23, 2016, Dr. Summers completed a Supplemental
Questionnaire.

(R. 1041-43.)

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.
3.

Consulting Examiners

a.

(R. 1041.)

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.

(R. 299.)

He

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.
87.)

(R. 286-

He found that Plaintiff had no limitations in performing

other physical functions including reaching, handling, fingering,
and feeling.
b.

(R. 287.)

Gilbert Jenouri, M.D.

8

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).

(R. 914-23.)

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.

(R. 916.)

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
extremities.

(Id.)

muscle atrophy.

Examination of the extremities did not reveal

(Id.)

Dr. Jenouri identified limitations in the areas of
lifting/carrying, sitting/standing/walking, use of hands and feet,
and certain postural activities.

(R. 918-21.)

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.
C.

(R. 920.)

ALJ Decision
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
hypokinesis.

(R. 383.)

She found Plaintiff’s neck problems to be

either non-severe or a “not medically determinable” impairment.
(R. 384.)

ALJ Greener concluded that Plaintiff’s impairments,

9

considered alone and in combination, did not meet or equal a listed
impairment.

(R. 385.)

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.
(R. 385.)
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.

(R. 386.)

assigned the opinion only some weight.

On these bases, she
(Id.)

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,

10

objective medical findings, or treatment history.

(Id.)

The ALJ

also noted that the opinion was somewhat inconsistent with
Plaintiff’s activities, demonstrated abilities, and reports.

(Id.)

Following this assessment, ALJ Greener cited record evidence
including positive clinical findings, normal neurological findings,
and mild diagnostic findings.
23F).)

(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
Commissioner.

(R. 387.)

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.

(R. 388.)

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.”

(Id.)

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.

(R. 388.)

ALJ Greener

gave Dr. Summers’ November 2016 opinion little or no weight for

11

similar reasons, adding that the record evidenced little or no
complaints regarding upper extremity dysfunction.

(Id.)

She added

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.”
(Id.)
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.

(R. 388.)

With the identified RFC, ALJ Greener concluded Plaintiff was
able to perform jobs which were available in significant numbers in
the national economy.

(R. 389.)

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
decision.

(R. 390.)

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

12

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

2

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
13

capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

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

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

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

If the claimant satisfies this burden, then the Commissioner

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

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

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

(R. 389-90.)
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).
14

The Third

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

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

Cir. 2000) (citations omitted).

If he has not done so and has not

sufficiently explained the weight given to all probative exhibits,
“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.”

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

15

1979).

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.

See, e.g., Knepp v.

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

Hartranft,

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

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
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).
16

Finally,

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

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

Plaintiff asserts that the Acting Commissioner’s determination
is error because the ALJ failed to properly assess Plaintiff’s
limitations regarding reaching, handling, and fingering.
at 2-12.)

(Doc. 15

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.)

Plaintiff’s argument

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.

See, e.g.,

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

Sometimes called the “treating physician rule,” the

principle is codified at 20 C.F.R. 404.1527(c)(2), and is widely
accepted in the Third Circuit.

Mason v. Shalala, 994 F.2d 1058 (3d

Cir. 1993); see also Dorf v. Brown, 794 F.2d 896 (3d Cir. 1986).
The regulation addresses the weight to be given a treating source’s
17

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
weight.”

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

3

20 C.F.R. § 404.1527(c)(2) states in relevant part:
Generally, we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most
able to provide a detailed, longitudinal
picture of your medical impairment(s) and may
bring a unique perspective to the medical
evidence that cannot be obtained from the
objective medical findings alone or from
reports of individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature
and severity of your impairment(s) is wellsupported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial
evidence in your case record, we will give it
controlling weight. When we do not give the
treating source's opinion controlling weight,
we apply the factors listed in paragraphs
(c)(2)(i) and (c)(2)(ii) of this section, as
well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining
the weight to give the opinion. We will always
give good reasons in our notice of
determination or decision for the weight we
give your treating source's opinion.
18

their opinions reflect expert judgment based on continuing
observation of the patient’s condition over a prolonged period of
time.”

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

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

In choosing to reject

the treating physician’s assessment, an ALJ may not make
“speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.”

Morales, 225

F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).
Pursuant to 20 C.F.R. § 404.1527(c)(2), an ALJ must assign
controlling weight to a well-supported treating medical source
opinion unless the ALJ identifies substantial inconsistent
evidence.

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

regarding when treating source opinions are entitled to controlling
weight.

1996 WL 374188, at *1.

For an opinion to be “well-

supported by medically acceptable clinical and laboratory
diagnostic techniques,” 28 U.S.C. § 404.1527(c)(2), “it is not
necessary that the opinion be fully supported by such evidence”–-it
is a fact-sensitive case-by-case determination.

SSR 96-2p, at *2.

It is a determination the adjudicator must make “and requires an
understanding of the clinical signs and laboratory findings in the

19

case record and what they signify.”

Id.

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
findings.”

Id. at *4.

In contrast to those cases where the record

20

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.”

Id.

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
contradictory.

Consistent with SSR 96-2p’s explanation of

regulatory terms, Third Circuit caselaw indicates that “lay
reinterpretation of medical evidence does not constitute
‘inconsistent . . . substantial evidence.’”

Carver v. Colvin, Civ.

A. No. 1:15-CV-00634, 2016 WL 6601665, at *16 (M.D. Pa. Sept. 14,
2016)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);

4

Magistrate Judge Gerald B. Cohn’s Report and Recommendation
was adopted by United States District Judge Sylvia H. Rambo on
November 7, 2016. Carver v. Colvin, Civ. A. No. 1:15-CV-0634, 2016
WL 6582060 (M.D. Pa. Nov. 7, 2016).
21

Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979)).

Thus, the

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
reviewed.

(R. 386-87.)

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
limitations.”

(R. 388.)

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.

The Court’s

review of the record shows that Plaintiff regularly reported to Dr.
Summers over a six-month period in 2016 that his back pain was

22

aggravated by activities which included reaching.5
1030.)

(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.
963.)

(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
conclusion.

This she cannot do pursuant to well-established Third

Circuit precedent.

Morales, 225 F.3d at 317; Plummer, 186 F.3d at

429; Frankenfield, 861 F.2d at 408.

5

(R. 388.)

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
at 42.
23

Furthermore, ALJ Greener relied in part on the consistency of
findings in opinions in assessing Plaintiff’s RFC.

(R. 388.)

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
limitations.

(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.
1996)).)

While Defendant’s observations are true, they do not

24

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
discounted.”

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.
825.

25

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
extremity limitations.

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
techniques.”

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. §
404.1512(e)(1)).
V. Conclusion
For the reasons discussed above, Plaintiff’s 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.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: October 9, 2017
26