Franks v. Berryhill

Filing 16

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. An appropriate order will be filed contemporaneously herewith.Signed by Honorable Richard P. Conaboy on 4/24/18. (cc)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
Craig A. Franks,
Plaintiff

No.3:17-CV-00961

v.

(Judge Richard P. Conaboy)

Nancy A. Berryhill
Acting Commissioner of
Social Security,
Defendants

MEMORANDUM
I.

Procedural Background.
We consider here Plaintiff Craig A. Franks’ appeal from an

adverse decision of the Social Security Administration (“SSA”)
or (“Agency”) regarding his application for Disability Insurance
Benefits (“DIB”). Plaintiff’s application was initially denied
at the administrative level on December 20, 2013 whereupon he
filed a written request for a hearing. A hearing was held on May
12, 2015 before Administrative Law Judge (“ALJ”) Gerard W.
Langan. On September 3, 2015 the ALJ issued a decision denying
Plaintiff’s application for benefits. The ALJ’s decision was
approved by the Appeals Council by letter dated April 5, 2017.
The Appeals Council’s letter constitutes a final decision and
vests this Court with jurisdiction pursuant to 42 U.S.C. § 405g.
II.

Testimony before the ALJ.

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A hearing was conducted in Wilkes-Barre, Pennsylvania on
May 12, 2015. ALJ Langan presided and heard testimony from the
Plaintiff and a Mr. Keating, a vocational expert (“VE”). The
testimony may be summarized as follows.
Plaintiff resides in Athens, Pennsylvania with his
girlfriend and his daughter who was two years of age on the date
of the hearing. Plaintiff stands five feet eleven inches tall
and weighs one hundred and seventy eight pounds. He was born
August 17, 1964. He completed high school in a regular class and
then went into the navy. He was honorably discharged from the
navy. (R. 41-42).
Plaintiff briefly recounted his work history from 2000 to
2015. In 2000 he worked at a machine shop building small parts
that weighed five to ten pounds. This work was performed while
standing. He then performed similar work for a succession of
employers for a period of years and then worked for a time for a
firm that installed rolled roofing. Later he worked for
Ingersoll Rand as a machinist who setup and ran various
machines. This work was heavier in nature and involved lifting
twenty to twenty-five pounds at times while standing. He then
worked at Amco Manufacturing doing the same type of work until
he became disabled in May of 2012. After a period of inactivity,
he attempted to return to work at a landscaping business but
after working there for three months he resigned because the

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work was physically too demanding and his hands were going numb.
At the time of his hearing, Plaintiff was not receiving
unemployment compensation benefits or any military pension. (R.
42-46).
Plaintiff testified that he cannot work because of general
fatigue and pain from his neck down to his feet. Even walking
several hundred feet out to his mailbox is tiring for him. He
gets very minimal sleep. Various medicines that he takes produce
side effects including blurred vision, diarrhea, drowsiness, and
fatigue. (R. 46-49). Plaintiff stated that he typically spends
his days sitting in the house with his daughter. His cooking is
limited to heating things in a microwave oven. He does not do
laundry, cut grass, or shovel snow. His sons take care of those
tasks. He has not driven a car since 2012. He goes grocery
shopping with his girlfriend and helps to the extent he is able.
He testified that he can lift a gallon of milk with difficulty.
He can sit for fifteen minutes to one half hour before his legs
begin to go numb. He then must stand for five to ten minutes
until the feeling returns to his legs. He estimates that he can
stand for up to thirty minutes at a time. He estimates further
that he can walk about one hundred yards before he would need to
take a break. (R. 49-51).
On questioning by his attorney, Plaintiff spoke about pain
in his hands. He described the pain as constant. His medication

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“takes the edge off” but does not completely control the pain.
He stated that he cannot use as much of the medicine as he might
like because he must be alert to watch his two year old
daughter. He testified that he was going to have nerve
conduction studies related to his carpal tunnel syndrome before
undergoing surgery. His carpal tunnel syndrome affects both
hands. His hand problems make it difficult for him to handle
small objects. He can no longer solder things or repair his own
glasses – - things he was formally able to do. He needs
assistance to dress and to wash his hair because pain in his
shoulders limits his ability to lift his hands over his head.
This difficulty to lift his hands is bilateral. His use of his
right arm is also limited by a torn bicep. (R. 51-54).
Plaintiff reiterated his earlier testimony that he can
stand for about thirty minutes but added that standing any
longer causes his feet to go numb and his legs to shake. His
difficult sleeping makes it necessary to nap each day for about
one and one-half hours. He accomplishes this by napping at the
same time as his daughter. As a side effect of his medications
he must go to the bathroom six to eight times per day. Despite
the frequency of these visits he sometimes has “accidents”. (R.
54-55).
Mr. Keating, a vocational expert, also testified. He stated
that he had reviewed Plaintiff’s work history and that his

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testimony would be consistent with the Dictionary of
Occupational Titles. In response to questions from Mr. Keating,
Plaintiff stated that his long series of jobs as a machinist
never involved the need to do heavy work such as fixing machines
that had broken down by climbing inside them. His jobs were
lighter exertional level and involved running machines during
the production process. He learned his various jobs as a
machinist while doing them and without benefit of any vocational
schooling as a machinist. (R. 58-60). Mr. Keating stated that
Plaintiff was considered a “younger individual” on his alleged
onset date in May of 2012. He characterized Plaintiff’s various
machinist jobs as skilled, light exertional level employment.
Plaintiff’s employment as a roofer qualified as skilled, heavy
exertional work. Mindful of Mr. Keating’s assessment of
Plaintiff’s work history, the ALJ asked Mr. Keating a
hypothetical question in which he was to assume the following: a
person of the same educational level, age, and work experience
as Plaintiff; a person who could perform light work with
additional limitations including avoidance of unprotected
heights and industrial machinery; the inability to climb ropes,
ladders, or scaffolds; only occasional climbing of ramps or
stairs; and only occasional exposure to temperature extremes,
humidity, wetness, and vibration. Based on the limitations
imposed by the hypothetical question, Mr. Keating testified that

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Plaintiff would be unable to perform any of his past relevant
work. Mr. Keating testified also that a person that fits the
profile of the hypothetical claimant would be capable of
performing various jobs that exist in significant numbers in the
national economy. These jobs included: assembler of small
products; pricer; and general cashier. Each of these jobs would
be categorized as “light, unskilled”. (R. 61-63).
The ALJ then modified the hypothetical question to include
the additional limitations such that the hypothetical claimant
would need to alternate between sitting and standing every
thirty minutes and would be capable of no more than occasional
use of pedals or foot controls. Given these additional
limitations, the VE stated that the hypothetical claimant would
be unable to function as a pricer, but would be able to function
as a general cashier, an assembler of small products, and as a
packer, a light, unskilled job. (R. 63-64). The ALJ then altered
the hypothetical question once again to include all the
limitations posed in both the first and second hypothetical
questions with the additional limitation that the hypothetical
claimant could work only at a sedentary job. The VE stated that
such a person could find work as a surveillance monitor or a
document preparer. When the ALJ added the additional limitation
that the hypothetical claimant would be off task more than 20
percent of the workday due to pain and the need to change

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positions, the VE testified that such a person would be unable
to maintain any employment. (R. 65-67).
The Plaintiff’s attorney briefly examined the VE. He asked
the VE to focus on the first hypothetical question that had been
phrased by the ALJ and to add to that hypothetical question the
limitation that the hypothetical claimant could only
occasionally use both his hands to perform word activity. The VE
then stated that such an individual could not sustain employment
because all the jobs that he had referenced required frequent
use of the hands. (R. 67-68).
III. ALJ Decision.
The ALJ’s decision (Doc. 9-2 at 11-27) was unfavorable to
the Plaintiff. It included the following findings of fact and
conclusions of law:
1.

The claimant meets the insured status
requirements of the Social Security Act
through September 30, 2018.

2.

The claimant has not engaged in substantial
gainful activity since May 12, 2012, the
alleged onset date.

3.

The claimant has the following severe
impairments: ankylosing spondylosis and
degenerative disc disease of lumbar spine.

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4.

The claimant does not have an impairment or
combination of impairments that meets or
medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d), 404.1525
and 404.1526).

5.

After careful consideration of the entire
record, the undersigned finds that the
claimant has the residual functional capacity
to perform light work as defined in 20 CFR
404.1567(b) except he must avoid unprotected
heights and industrial machinery. He can never
climb ropes, ladders or scaffolds but can
occasionally climb ramps and stairs. He is
allowed occasional exposure to temperature
extremes, humidity, wetness and vibration. He
is allowed occasional use of both lower
extremities for the operation of foot controls
or pedals and should be allowed the ability to
alternate between sitting and standing every
thirty minutes.

6.

The claimant is unable to perform any of his
past relevant work.

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7.

The claimant was born on August 17, 1964 and
was forty-seven years old, which is defined as
a younger individual age 18-49, on the alleged
disability onset date. The claimant
subsequently changed age category to closely
approaching advanced age.

8.

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

9.

Transferability of job skills is mot material
to the determination of disability because
using the medical-vocational rules as a frame
work 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 May
12, 2012 through the date of this decision.

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IV.

Disability Determination Process.
The Commissioner is required to use a five-step analysis to

determine whether a claimant is disabled.1

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

CFR '' 404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley,
493 U.S. 521, 110 S. Ct. 885, 888-89 (1990).

1

ADisability@ is defined as the Ainability 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).

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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 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 22-23).
V.

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).
Substantial evidence means Amore than a mere scintilla”.

It

means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.@

Richardson v. Perales, 402

U.S. 389, 401 (1971); see also Cotter v. Harris, 642 F.2d 700,
704 (3d Cir. 1981).

The Third Circuit Court of Appeals further

explained this standard in Kent v. Schweiker, 710 F.2d 110 (3d
Cir. 1983).

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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 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.@
606 F.2d 403, 406 (3d Cir. 1979).

Dobrowolsky v. Califano,

In Cotter, the Circuit Court

clarified that the ALJ must not only state the evidence

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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 were improper.@
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake

an exhaustive discussion of all the evidence.
v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

See, e.g., Knepp

AThere is no

requirement that the ALJ discuss in her 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

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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 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.@). 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).
VI.

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.
Dobrowolsky, 606 F.2d at 406.

See

Social Security proceedings are

not strictly adversarial, but rather the Social Security
Administration provides an applicant with assistance to prove

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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 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.

Dobrowolsky, 606 F.2d at 406.

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 has alleged that the ALJ erred in three areas of
his report. We shall consider these alleged errors in series.
1. Whether the ALJ’s decision to subordinate the opinions
of treating physicians to those of consulting physicians is
supported by substantial evidence?
The parties spar over the question whether the ALJ’s
evaluation of the medical evidence was consistent with approved
procedures in the Third Circuit. Plaintiff argues that the
appropriate level of deference was not given to the opinion of a
treating physician. Defendant responds that, in an appropriate
case, the ALJ may subordinate the opinion of a treating

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physician to that of a consulting physician and even to that of
a consulting non-examining physician. This Court must decide
whether the ALJ properly considered the medical evidence and
comprehensively explained how he ranked the opinions of the
various physicians.
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. Massanari, 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). This principle 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). An
Agency regulation addresses the weight to be given the treating
source’s opinion: “If we find that a treating source’s opinion
on the issue(s) of the nature and severity of the impairment(s)
is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in your case, we will give it
controlling weight.” 20 C.F.R. § 404.1527 (c)(2). “A cardinal
principle guiding disability eligibility determinations is that
the ALJ accord treating physicians’ reports great weight,
especially when their opinions reflect expert judgment based on
continuing observation of the patient’s condition over a

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prolonged period of time.” Morales v. Apfel, P. 25 F.3d 310,317
(3d Cir. 2000); See also Brownawell v. Commissioner of Social
Security, 554 F. 3d 352,355 (3d Cir. 2008). In choosing to
reject a 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,
supra, at 317 (citing Plummer v. Apfel, 186 F.3d 422,429 (3d
Cir. 1999).
The record is replete with documentation., as the ALJ
acknowledged in his decision (Doc. 9-2 at 17), that the claimant
has severe impairments of ankylosing spondylitis and
degenerative disc disease of the lumbar spine.2 Plaintiff’s
antalgic gait, limited range of motion in his back, back pain
with motion, pain radiating into his right leg, and positive
straight leg raising tests were documented in progress notes

2

Ankylosing spondylitis is an inflammatory disease that, over time, can cause some of
the vertebrae in your spine to fuse. This fusing makes the spine less flexible and can result in a
hunched-forward posture. If ribs are affected, it can be difficult to breathe deeply. …
Ankylosing spondylitis has no known specific cause, though genetic factors seem to be
involved. In particular, people who have a gene called HLA-B27 are at greatly increased risk of
developing ankylosing spondylitis. … In severe ankylosing spondylitis, new bone forms as part
of the body’s attempt to heal. This new bone gradually bridges the gap between vertebrae and
eventually fuses sections of the vertebrae. Those parts of your spine become stiff and inflexible.
Fusion can also stiffen your ribcage, restricting your lung capacity and function.
www.mayoclinic.org/diseases-conditions/ankylosing-spondylitis.

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compiled by his then treating physician, Edward L. Jones of the
Guthrie Clinic, between January and June of 2013. (Doc. 9-16 at
1031-34, 1042, 1046, 1050, and 1053). Dr. Jones first assessed
ankylosing spondylitis in his progress notes of June 18, 2012,
these notes where based upon an MRI conducted in March of 2012
which demonstrated “problems” at L4-L5 and L5-S1 suggestive of a
posterior penetrating disc at L4-L5. However, Dr. Jones has not
provided a physical capacities evaluation of the claimant.
The record indicates that Plaintiff lost his insurance when
he stopped working in May 2012. About that time he stopped
treating with Dr. Jones and sought treatment with the Veterans
Administration. His treatment records resume in January of 2013
when he came under the care of Veterans Administration
personnel. His treatment at the VA was provided mainly by
certified physician assistants, Amber J. Perdo and Scott
Weisenfluh, under the direction of Dr. Richard Eller. Dr. Eller
executed a Physical Capacites Evaluation Form on May 29, 2014 in
which he found, inter alia, that Plaintiff needed a sit/stand
option throughout the day, could not adequately use his hands
for pushing and pulling, could not use his feet for repetitive
movements as in operating foot controls, suffered from disabling
fatigue due to ankylosing spondylitis and the medications needed
to alleviate it, suffered from disabling pain as a result of
ankylosing spondylitis, and that Plaintiff’s fatigue and pain

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prevented him from full time employment even in sedentary
positions. Dr. Eller noted the Plaintiff’s degenerative disc
disease had caused nerve root compression characterized by
limitation of motion of the spine and positive straight leg
raising tests. Dr. Eller also observed that an MRI of
Plaintiff’s pelvis demonstrated erosive arthropathy in that
area. The ALJ gave little weight to the collective evaluations
of Mr. Weisenfluh, Ms. Perdo, and Dr. Eller.
The ALJ gave more weight to the Physical Capacities
Evaluation of Dr. Raphael Kon, a consulting/examining physician
who saw Plaintiff on one occasion on December 5, 2013. Dr. Kon
noted that his review of Plaintiff’s medical records indicated
“ankylosing spondylitis diagnosed in 2012 which I suspect,
however, he has longer over thirty years; degenerative disc
disease particularly at L4-L5 status post epidural X3.” (R. at
616). His impressions included: “ankylosing spondylitis with
progression of cervical, thoracic, and lumbar spine with
decreased range of motion. He is in chronic pain, taking Embrel,
Flexeril and Percoset.” Despite these observations, Dr. Kon
opined that Plaintiff had the capacity to perform full-time work
at the light exertional level. The ALJ accepted Dr. Kon’s
assessment with the added proviso that Plaintiff would require a
sit/stand option in order to work at the light exertional level.

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The Court notes that all physicians agree that Plaintiff
suffers from ankylosing spondylitis and degenerative disc
disease of the cervical, thoracic, and lumbar spine. The
physicians disagree as to the level of physical impairment
caused by these conditions. Because of the previously discussed
preference for the opinions of treating physicians, particularly
those who have a longitudinal perspective from involvement with
a patient over a protracted period of time, the ALJ must
adequately explain the decision to subordinate the opinion of a
treating physician to that of a consulting physician. We
conclude that the ALJ’s explanation here is inadequate to do so.
The evaluation of the treating physician, Dr. Eller, was
buttressed by positive HLA-B27 readings. Such readings are the
medical accepted diagnostic indicator for ankylosing
spondylitis. Similarly, the findings of the degenerative changes
at all levels of Plaintiff’s spine and a herniated disc with
central annular tear at L4-L5 are verified by several MRI’s. The
treating physicians, Jones and Eller, both noted positive
straight leg raising tests on different occasions and
documented limited range of motion in Plaintiff’s back upon
physical examination. Thus, medically acceptable clinical and
laboratory diagnostic techniques support Dr. Eller’s assessment
of Plaintiff’s physical impairments as required by 20 C.F.R.
404.1527 (c)(2). Dr. Eller’s opinion has additional credence

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because it was provided after a protracted period of observation
and treatment. Yet, the ALJ concluded that he would give Dr.
Eller’s assessment “little weight” because it lacked
“consistency with examination findings or diagnostic studies”
and was “internally inconsistent”. However, the ALJ’s conclusion
provides no specifics or citations to the record to demonstrate
this supposed lack of examination findings or diagnostic studies
nor does he identify specific “internal inconsistences” in Dr.
Eller’s evaluation. The Court finds that the ALJ’s rationale for
rejecting Dr. Eller’s assessment fails to provide an adequate
explanation for discounting his medical opinion as required by
Fargnoli, supra. Because the ALJ’s rationale is cryptic and
utterly non-specific, this Court cannot conclude that his
decision to subordinate Dr. Eller’s opinion to that of Dr. Kon
is based upon the requisite substantial evidence. Accordingly,
Plaintiff’s assignment of error on this point is approved and
remand is necessary to require a sufficiently detailed
explanation for the ALJ’s decision to elevate Dr. Kon’s opinion
over that of Dr. Eller.
II. Whether the ALJ failed to assist Plaintiff in developing the
record?
Plaintiff’s argument that the ALJ failed to develop the
record is largely based upon his assertion: “the ALJ failed to
take a single action in developing the record in favor of an

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award of benefits. Despite the volumes of medical evidence the
ALJ did not address a single interrogatory to address any of his
concerns about the medical evidence.” (Doc.12 at 25). This begs
the question whether the record was insufficiently developed in
the first place.
The record in this case is over 1,000 pages long. It
includes medical documentation from two of Plaintiff’s treating
physicians and several certified nurse practitioners who were
involved in his care. It also includes the opinions of a state
agency medical doctor who evaluated Plaintiff’s application and
his medical records as well as an evaluation by a
consulting/examining physician. While the length of a record is
not conclusive as to its sufficiency, the Court cannot agree
that this record is inadequately developed. As indicated in the
previous section of this Memorandum, there are reservations
whether the medical evidence has been evaluated properly.
However, Plaintiff’s assertion that the ALJ should have issued
some sort of unspecified “interrogatory” cannot be condoned.3
III. Whether the ALJ failed to properly consider Plaintiff’s
complaints of pain and the effect thereof on his residual
functional capacity?

3

Our review of the Hearing Transcript indicates that Plaintiff’s counsel acquiesced in the
ALJ’s offer to keep the record open for receipt of more medical records and expressed no
dissatisfaction regarding the state of the record. (R. at 31-35 and 39).

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It has been held that “even pain unaccompanied by objective
observable symptoms which is nevertheless real to the sufferer
and is so intense as to be disabling will support a claim for
disability benefits.” Taybron v. Harris, 667 F.2d 412,415 (3d
Cir. 1981). Linked, as they are, to diagnostic testing
indicating conditions that might be expected to produce the type
and level of pain that Plaintiff alleges, his complaints of pain
are entitled to great weight. Ferguson v. Schweiker, 765 F.2d
31, 37 (3d Cir. 1985). When a claimant testifies, as here, to
the limiting effects of pain stemming from established
impairments of record, such complaints should not be discounted
without credible contrary medical evidence. Sykes v. Apfel, 228
F.3d 259, 266 (3d Cir. 2000); see also Green v. Schweiker, 749
F.2d 1066, 1068 (3d Cir. 1984).
Mindful of the above-referenced authorities, the Court is
concerned that the hypothetical questions to the vocational
expert did not include any limitations that seem to account for
Plaintiff’s consistent complaints of severe, unrelenting pain
from conditions that are established of record and acknowledged
by the Agency’s medical consultant. Dr. Kon discussed
Plaintiff’s past medical history and assessed that Plaintiff was
affected by “chronic pain”. (R. at 616-618). The ALJ’s stated
reasons for concluding that Plaintiff’s pain is not as severe as
he alleges are: (1) his non-compliance with follow-up

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appointments; (2) his self-described activity level; and (3) his
unsuccessful attempt to work after his alleged onset date. (R.
at 20).
The Court is dissatisfied with the ALJ’s stated rationale
for discounting Plaintiff’s allegations of pain. Plaintiff’s
failure to appear for several follow-up appointments at the VA
in Wilkes-Barre, some ninety miles distant from his home in
Athens, is hardly surprisingly given indications in the record
that he does not drive and needs to obtain a driver to transport
him to these distant appointments. (R. at 40 and 50).
Plaintiff’s self-described activity level as rendered in the
hearing transcript hardly conflicts with his alleged inability
to maintain full-time employment inasmuch as the ability to use
a microwave to heat meals and his participation in watching his
infant daughter (while synchronizing her nap time to his to
compensate for his lack of sleep at night) hardly indicates that
he is capable of maintaining full-time employment.4 Finally,
Plaintiff’s abortive attempt to return to work in 2013 seems
more a testament to his work ethic than an indication of
duplicitous intent. In fact, Plaintiff’s honorable service in
the U.S. Navy coupled with his near thirty year work-history

4

The ALJ also alludes to Plaintiff mowing the lawn but Plaintiff specifically testified
that his sons performed that task. (R. at 49).

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should normally amplify his credibility where, as here, his
subjective complaints of pain are supported by medical evidence
of conditions that could be expected to produce that pain.
Dobrowolsky, supra, at 409.
The ALJ’s rationale for discounting Plaintiff’s complaint
of severe, unrelenting pain is insufficient given the
authorities referenced above. Accordingly, the Plaintiff’s
allegation of error on this point is approved and the effect of
Plaintiff’s pain on his residual functional capacity requires
further proceedings to determine whether his chronic pain
further erodes his ability to work.
IV.

Conclusion.
For the reasons discussed above Plaintiff’s appeal is

properly granted and this matter is remanded to the Acting
Commissioner for further consideration. An appropriate order
will be filed contemporaneously herewith.

BY THE COURT

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

Dated: April 24, 2018

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