Perry v. Berryhill

Filing 40

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes this matter is properly remanded to the Acting Commission for further action consistent with this opinion. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 11/2/18. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JACINDA D. PERRY,

:
:CIVIL ACTION NO. 3:17-CV-1158
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the Acting
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”) and Supplemental
Security Income (“SSI”) under Title XVI of the Act.

(Doc. 1.)

Plaintiff protectively filed applications on September 25, 2014,
alleging disability beginning on November 30, 2011.
onset date was later amended to November 8, 2013.

(R. 16.)
(R. 37.)

The
After

Plaintiff appealed the initial May 27, 2014, denial of the claims,
a hearing was held by Administrative Law Judge (“ALJ”) Michelle
Wolfe on November 10, 2015.

(R. 32.)

ALJ Wolfe issued her

Decision on January 5, 2016, concluding that Plaintiff had not been
under a disability, as defined in the Act, during the relevant time
period.

(R. 29.)

Plaintiff requested review of the ALJ’s decision

which the Appeals Council denied on April 26, 2017.

(R. 1-4.)

doing so, the ALJ’s decision became the decision of the Acting
Commissioner.

(R. 1.)

In

Plaintiff filed this action on July 1, 2017.

(Doc. 1.)

She

asserts in her supporting brief that the Acting Commissioner’s
determination should be remanded for the following reasons: 1) the
ALJ did not provide meaningful discussion of listing 11.00 although
she acknowledged that SSR 14-2p required her to consider diabetic
neuropathy under listing 11.00; 2) the ALJ failed to include a
discussion of the limitations of Plaintiff’s diabetic neuropathy in
formulating the residual functional capacity assessment and failed
to include in the RFC the limits imposed by the consultative
examiner on foot manipulation; 3) the ALJ erred in rejecting the
opinion of the consultative examiner on the basis of her own
medical opinions; and 4) the ALJ failed to properly evaluate and
credit Plaintiff’s subjective complaints of pain and limitations.
(Dco. 29 at 24.)

For the reasons discussed below, the Court

concludes Plaintiff’s appeal is properly granted.
I. Background
Plaintiff was born on March 4, 1969, and has a high school
education.
(R. 25.)

(R. 26.)

She has past relevant work as a caregiver.

In a Disability Report dated April 21, 2014, Plaintiff

alleged her ability to work was limited by arthritis in her back,
numbness and tingling in her hands, diabetes, and neuropathy.

(R.

179.)
A.

Medical and Opinion Evidence
As noted above, Plaintiff amended her disability onset date to

2

November 8, 2013.

(R. 37.)

The record shows that Plaintiff

previously filed an application for benefits which was denied on
November 7, 2013.

(R. 16.)

Because ALJ Wolfe determined that res

judicata barred consideration of the period through November 7,
2013, any reference to evidence preceding November 8, 2013, is for
background purpose only.

(See R. 16.)

The Court also focuses on

evidence related to Plaintiff’s diabetic neuropathy and pain
because her asserted errors relate to these alleged problems.

(See

Doc. 29 at 1-2.)
On December 13, 2013, Plaintiff presented at St. Michael’s
Medical Center Emergency Department with complaints of blood in her
urine and stools.

(R. 303.)

Her pain level was zero.

(Id.)

Review of Systems indicates Plaintiff denied arthralgias or back
pain.

(R. 304.)

Physical exam showed lower extremity normal range

of motion and normal gait.
home later the same day.

(R. 305.)

Plaintiff was discharged to

(R. 311.)

Plaintiff was admitted to St. Joseph’s Medical Center on
February 18, 2014, with the diagnosis of diabetic ketoacidosis
secondary to possible urinary tract infection, sepsis secondary to
urinary tract infection, dyslipidemia, and hypertension.
360.)

(R. 356,

Discharge diagnoses on February 21st included insulin-

dependent diabetes mellitus type 2, uncontrolled.

(R. 357.)

Review of Systems indicated that Plaintiff had back pain with
movement but physical exam showed no tenderness, 5/5 strength in

3

all extremities, normal sensation, and normal gait.

(R. 362.)

Because Plaintiff complained of back pain, she had x-rays of the
lumbar spine done on February 18th which showed no acute fracture or
dislocation, unremarkable bony alignment, and vertebral body heigts
maintained.

(R. 376.)

The studies also showed a peripherally

calcified lesion measuring 5.8 centimeters arising from the left
side of the pelvis which the provider noted could be further
evaluated with cross-sectional imaging.

(Id.)

On March 14, 2014, Plaintiff went to the Wilkes-Barre General
Hospital emergency room with high blood sugar.

(R. 416.)

Review

of Systems indicates that Plaintiff denied musculoskeletal and
neurologic problems.

(R. 418.)

Physical exam showed no back

problems, no upper or lower extremity problems, and no neurological
problems.

(R. 419.)

Plaintiff again went to the emergency room on

March 22nd with complaints of dizziness and abdominal pain.
402-03.)

(R.

Other than abdominal tenderness and distention, physical

exam was normal.

(R. 405.)

On May 16, 2014, Plaintiff was seen by Ludmilla Aronzon, PA-C,
at Geisinger’s Family Practice Kistler Clinic.

(R. 487.)

Office

notes indicate she was seen for emergency room follow-up where she
was seen for neuropathy of the feet and hands; bloodwork showed
uncontrolled diabetes mellitus.
on physical exam.

(R. 489.)

(Id.)

No problems were recorded

Assessments included diabetic

neuropathy for which Gabapentin was prescribed.

4

(R. 489.)

On May 19, 2014, Plaintiff was seen in the Geisinger Wyoming
Valley emergency department for hand and foot pain.

(R. 1525.)

Plaintiff reported by history that she had been experiencing
pain/numbness for one and a half years but it had gotten acutely
worse the night before.

(Id.)

She said she had not been checking

her glucose levels because she had run out of strips a week
earlier.

(Id.)

Physical exam showed no back problems; normal

lower extremities with no edema, discoloration, or calf tenderness;
and normal sensorium with no weakness of arms or legs.

(R. 1527.)

Plaintiff was discharged with a diagnosis of acute extremity pain
and directed to establish care with a primary care provider.

(R.

1529.)
On May 22, 2014, Jay Willner, M.D., conducted an internal
medicine examination on referral from the Bureau of Disability
Determination.

(R. 470-73.)

Plaintiff’s chief complaints were

pain from arthritis in her back (without radiation) and diabetes
mellitus with symptoms including numbness, burning, and stinging in
her feet.

(R. 470.)

Plaintiff reported she lived with her

daughter and was unable to do activities of daily living due to
poor eyesight and neuropathy in her hands.

(R. 471.)

Dr. Willner

found that Plaintiff took short steps, she had difficulty walking
on heels and toes due to pain, she declined to squat, her stance
was normal, she needed no assistive device, she did not need help
changing for the exam or getting on and off the exam table, and she

5

was able to rise from a chair without difficulty.

(R. 471.)

Musculoskeletal exam showed positive single leg raise at ten
degrees bilaterally, confirmed sitting.

(R. 472.)

Neurologic exam

showed deep tendon reflexes depressed in upper and lower
extremities, diminished sensation on the right lateral and
posterior foot, as well as the right thumb and forearm to about six
centimeters below the elbow, and 5/5 strength in the upper and
lower extremities.

(Id.)

Examination of fine motor activity

showed hand and finger dexterity intact, 4/5 grip strength
bilaterally; Plaintiff was able to unzip and zip, unbutton and
button, and untie, but whe was unable to tie.

(Id.)

Dr. Willner

diagnosied diabetes mellitus, neuropathy, hypertension, and back
pain.

(R. 473.)

Dr. Willner completed a Medical Source Statement of Ability To
Do Work-Related Activities (Physical) on the same date and opined
that Plaintiff could never do any lifting or carrying because of
her weak grip.

(R. 474.)

He found she could sit, stand, and walk

for eight hours each without interruption and total in an eighthour day.

(R. 475.)

Regarding the use of her hands, Plaintiff

could continuously reach bilaterally and could never handle,
finger, feel, or push/pull due to weakness and neuropathy.
476.)

(R.

Dr. Willner concluded Plaintiff could never operate foot

controls with her right foot because of neuropathy and could
continuously do so with her left foot.

6

(Id.)

He also identified

neuropathy as the reason Plaintiff could never perform all
identified postural activities.

(R. 477.)

He noted that

Plaintiff’s impairments did not affect her vision or hearing, she
could tolerate no exposure to identified environmental conditions
because of weakness and neuropathy, but she could engage in moat
activities identified, including shopping, using standard public
transportation, climbing a few stairs at a reasonable pace,
preparing simple meals, and caring for personal hygiene.
79.)

(R. 477-

However, he found Plaintiff could not sort, handle, or use

paper/files.

(R. 479.)

The Range of Motion Chart accompanying Dr. Willner’s opinion
indicates mostly normal findings but Plaintiff’s grip strength was
eighty percent in both the left and right hands.

(R. 480-83.)

On May 28, 2014, Plaintiff was seen at Geisinger’s Kistler
Clinic by Sandra Roberts Korpusik, RN, a Case Manager.

(R. 503.)

She noted Plaintiff was unable to exercise due to neuropathy pain.
(Id.)

Plaintiff said the pain was in her legs and hands and she

rated it as 4/10 at the time of her office visit.

(R. 504.)

Recorded Functional Status indicated Plaintiff did not need
assistance with activities of daily living.

(R. 504.)

Ms.

Korpusik prioritized goals to include scheduling a diabetic eye
exam; Plaintiff should bring her meter and log book to her
endocrinology appointment on June 6th; and Plaintiff was to request
insulin pens at that appointment.

(R. 505.)

7

Identified barriers

included lack of or limited access to reliable transportation and
patient/caregiver’s lack of understanding of Plaintiff’s condition
and prescribed treatment plan.

(R. 506.)

On June 5, 2014, Plaintiff had an endocrinology appointment
and was seen by Jill C. Sandutch, CRNP, and Albert B. Y. Sun, M.D.
(R. 889.)

Plaintiff reported headaches as well as pain and

numbness in her feet and hands.
walking for exercise.

(Id.)

(Id.)

She said she did a lot of

Physical exam showed normal strength

in her upper and lower extremities, no focal motor/sensory
deficits, and a normal gait.

(R. 893.)

Annual diabetic foot

screening showed onychomycosis of the nails on both feet; palpable
dorsalis pedis and posterior tibial pulses on both feet; and
Plaintiff reported feeling monofilamental pressure on plantar
surface of both feet.

(Id.)

To address Plaintiff’s “significant

neuropathy pain,” Gabapentin dosage was increased and several
directives were given regarding diabetes monitoring and management,
including referrals for diabetes education and a diabetes eye exam.
(Id.)
On June 27, 2014, Plaintiff was seen by Guillermo L.
Rodriguez, M.D., as a new patient at the Geisinger Kistler Clinic
Family Practice.

(R. 517.)

Plaintiff reported she had pain all

over, she had been diagnosed with diabetic neuropathy, and she had
been seen for pain management.

(Id.)

Physical exam of the

extremities did not show joint deformities, effusion, inflammation,

8

edema, clubbing, or cyanosis.

(R. 520.)

Dr. Rodriguez adjusted

Plaintiff’s medication regimen and planned to see her again in one
month.

(Id.)

At her July appointment with Dr. Rodgiguez, Plaintiff reported
pain all over her body, worse in the lower back.

(R. 534.)

She

said “anything” worsened her pain, it was severe all the time, her
lower back, hands and feet hurt and she had numbness in her feet.
(Id.)

Physical exam showed that Plaintiff had Tinnel’s sign

bilaterally, positive Phalen’s sign, and severe spasm on the left
latissimus dorsi muscle.

(R. 353.)

Dr. Rodriguez diagnosed carpal

tunnel syndrome, neuropathy, and muscle spasm.

(Id.)

On August 26, 2014, Plaintiff was seen by Ryan J. Ness, M.D.,
of the Interventional Pain Center for evaluation.

(R. 1052.)

On September 23, 2014, she was seen at the Interventional Pain
Center by Laurel Foxworth Dodgson, PA-C, and Jolly Umbao, M.D.,
with the chief complaint of lower back pain.

(R. 1070.)

Plaintiff

specifically complained of pain in her lower back bilaterally
without radiation which she said had been progressively worsening
over the preceding two to three years.

(Id.)

She also complained

of numbness and pain in her distal lower extremities, feet, and
hands.

(Id.)

Plaintiff said her lower back pain worsened with all

activities and she could not identify any alleviating factors.
(Id.)

Physical exam of the lower extremities showed no edema,

cyanosis, or ulcerations; exam of the back did not show any

9

tenderness; and neurologic exam showed Plaintiff was able to stand
heel/toe, her gait was intact, and sensation to light touch was
decreased in the distal lower extremities.

(R. 1073.)

Motor

strength was 5/5 in the upper extremities bilaterally except finger
abduction was 4/5 on the left.

(Id.)

Motor strength testing of

the lower extremities showed poor effort and findings included hip
flexion/L2, L3-5/5 bilaterally; quadriceps/L4-4+/5 bilaterally; and
ankle dorsiflexion/L4-5/5 bilaterally.

(Id.)

The providers also

found tenderness in the lumbar facets bilaterally and SI joints
bilaterally and lumbar range of motion showed pain with flexion and
extension.

(R. 1074.)

They diagnosed lumbago, and Dr. Ombao added

that the chronic back pain had an element of deconditioning.
Lumbar x-rays as well as physical therapy were recommended.

(Id.)
(Id.)

Plaintiff was instructed to remain active as tolerated and a trial
of Zanaflex was prescribed.

(Id.)

A September 23, 2014, x-ray of

the lumbosacral spine showed mild degenerative disc disease,
stable.

(R. 1081.)

Plaintiff saw Dr. Sun again on October 20, 2014.
Dr. Sun recorded no problems on physical examination.
98.)

(R. 1097.)
(R. 1097-

He noted that her glucoses were very well controlled at that

time.

(R. 1099.)

On November 5, 2014, Plaintiff was seen at Geisinger’s
Interventional Pain Center for her low back pain.

(R. 1122.)

Plaintiff reported that her pain was worse with prolonged standing

10

and walking and her diabetic neuropathy was being addressed with
medication.

(Id.)

Plaintiff said she was not seeing much relief

with ongoing physical therapy.

(Id.)

Physical exam showed

tenderness in bilateral lumbar facets, pain in lower back worse
with extension, bilateral SI tenderness with positive Patrick’s
bilaterally, paraspinal muscle tenderness and spasm, grossly intact
sensation, and normal muscle strength in upper and lower
extremities bilaterally.

(Id.)

At a follow-up visit with Dr. Rodriguez on November 28, 2014,
Plaintiff reported that her numbness and tingling were better but
the knife-like pain on both feet was getting worse and was
aggravated by walking and standing.

(R. 557.)

that physical therapy was not helping her pain.

She also reported
(Id.)

Examination

of the extremities showed some soreness and irritated dorsal aspect
of the foot.

(R. 559.)

Dr. Rodgriguez prescribed Lyrica for the

neuropathy and chronic pain.

(Id.)

Plaintiff was seen by podiatrist Lucia K. Nguyen, DPM, on
December 2, 2014, with the chief complaint of painful, elongated
thick toenails and calluses.

(R. 1156.)

Podiatric vascular exam

showed palpable pulses, trace edema, and decreased hair growth.
(R. 1158.)

Neurologic exam showed “Spinothalamic: temperature,

pain, light touch[;] Left: diminished[;] Right: diminished.”

(Id.)

Assessment was onychomycosis with painful elongated thick toenails
x 10; bilateral diabetic neuropathy; and xerosis with painful

11

calluses x 4 lesions.

(R. 1160.)

Dr. Nguyen prescribed diabetic

custom molded shoes, did manual and electric grinding of the nails,
and trimmed the lesions.

(Id.)

She also noted that she had a long

discussion with Plaintiff about diabetic foot care and planned to
see her back in three months for follow-up.

(Id.)

Dr. Ombao administered bilateral sacroiliac joint injections
on December 10, 2014, after Plaintiff reported physical therapy did
not help her pain.

(R. 1180.)

He noted that patellar and ankle

reflexes were normal but Plaintiff had pain on back extension and
facet loading, as well as exquisite lumbar paraspinal muscle
tenderness.

(Id.)

These injections were not effective and

Plaintiff had lumbar facet injections on February 6, 2015.

(R.

1220, 1266.)
Dr. Rodriguez noted on January 15, 2015, that depression was
still an issue, hand and foot pain was still present, and Plaintiff
was unable to move and work due to pain.1

(R. 595.)

He found no

problems on physical exam and his diagnoses included neuropathy for
which Plaintiff was to take Tylenol with codeine as needed for pain
and also for generalized osteoarthritis.

(R. 598.)

Having begun to see a social worker, Tina M. Knorr, LCSW, in
December 2014, Plaintiff reported on February 11, 2015, that she
was feeling “great.”

(R. 575, 655.)

1

She reported that her pain

This notation appears to be based on Plaintiff’s subjective
reporting as it is in the History of Present Illness section of the
office notes. (R. 595.)
12

had been adequately addressed and she felt much better, she was
able to walk and walked to her appointment.

(R. 655.)

Plaintiff

denied a depressed mood and said she was focused on staying active.
(Id.)

When Plaintiff reported more knee and leg pain later in

February, she also said she needed to refill her pain medication.
(R. 666.)

She acknowledged the need to walk and keep moving but

said she was in too much pain for her to accomplish these things.
(Id.)

Plaintiff reported less pain at her March 11th appointment

with Ms. Knorr and said she was having good days and bad days with
her level of depression linked to the amount of pain.

(R. 693.)

On March 27, 2015, Plaintiff returned to the Interventional
Pain Center for reevaluation of her low back pain.

(R. 1306.)

Ms.

Dodgson noted that Plaintiff had failed SI and lumbar facet
injections and her low back pain included radiation into her legs
posteriorly to her calves.

(Id.)

Physical exam showed tenderness

with light palpation of her paraspinal muscles, SI tenderness,
sensation grossly intact bilaterally, and lower extremity strength
symmetric and equal bilaterally.

(R. 1307.)

Plaintiff had a rheumatology consultation with Jonida K. Cote,
D.O., on April 6, 2015.

(R. 1340.)

Plaintiff complained of pain

“mainly in her hands and feet, but sometimes she also has pain in
her lower back, elbows and knees,” and she had numbness and
tingling in her hands and feet.

(Id.)

Musculoskeletal exam showed

hands/wrists tender to palpation over MCPs, PIPs; right shoulder

13

tenderness and decreased range of motion; and knee crepitus
bilaterally.

(R. 1342-43.)

Dr. Cote assessed polyarthritis and a

concern for inflammatory arthritis.

(R. 1343.)

further evaluation, including diagnostic studies.

She also planned
(Id.)

April 6th

x-rays of the hands/wrists showed no radiologic evidence of
inflammatory arthritis (R. 1354); April 8th x-rays of the feet were
unremarkable, with no evidence of inflammatory arthritis (R. 1355);
and April 8th x-rays of the sacroiliac joints were unremarkable (R.
1355-56).
On Apri 18, 2015, Plaintiff saw Dr. Rodriguez for follow-up.
(R. 716.)

He noted that Plaintiff was on prednisone due to joint

swelling and she needed assistance with activities of daily living
except for dressing herself.

(Id.)

Plaintiff reported that the

hand numbness and tingling got better with Percocet.

(Id.)

She

also said pain was severe with numbness and tingling when she got
up in the morning.

(Id.)

Physical exam showed bilateral reduced

sensation along median nerve distribution, positive Phalen’s
maneuver, positive Tinel’s sign, and positive weakness of
thumb/pinky pincer grasp.

(R. 719.)

Dr. Rodriguez assessed

diabetes mellitus type 2, carpal tunnel syndrome, neuropathy, and
chronic pain.

(Id.)

At the May 5, 2015, follow-up visit with Dr. Cote, physical
exam showed tenderness to palpation over multiple areas including
muscle area over arms, legs, and upper back; hands tender over the

14

MCPs and PIPs bilaterally; feet tender to palpation over MTPs and
positive squeeze test; and intact sensation to light touch intact
and normal motor strength.

(R. 1394.)

Follow-up on May 27th

indicated Prednisone helped with the hand and foot joint pain which
was down to 5/10 in intensity but Plaintiff still had pain on the
lateral aspect of her right thigh and right lateral epicondyle.
(R. 1406.)

Physical exam was normal except for tenderness to

palpation over the right lateral epicondyle and knee tenderness
over the lateral left thigh between the left hip and knee.

(R.

1408.)
A May 28, 2015, MRI of the lumbar spine showed scattered mild
degenerative changes and the study was otherwise “unremarkable.”
(R. 1314.)
At her May 29, 2015, visit with Dr. Rodriguez, Plaintiff
reported that she was doing well as long as she used the pain
medication with ibuprofen.

(R. 762.)

Upon examination of

Plaintiff’s extremities, Dr. Rodriguez noted “leg pain present,
severe neuropathy.”

(R. 768.)

On June 9, 2015, Plaintiff saw Dr. Sun who noted that
Plaintiff had no focal motor/sensory deficits and had a normal
gait.

(R. 1438.)

bilaterally.

Foot testing showed normal sensation

(Id.)

Plaintiff saw her podiatrist, Dr. Nguyen, on June 16, 2015.
(R. 1451.)

Plaintiff reported neuropathy with constant numbness

15

and tingling in both feet.

(Id.)

Dr. Nguyen noted that Plaintiff

had advanced trophic changes, venous insufficiency, and edema.
(Id.)

Neurologically, Dr. Nguyen found a loss of protective

sensation bilaterally.

(Id.)

When Plaintiff saw Dr. Rodriguez on July 6, 2015, he noted
that Plaintiff’s diabetes was “out of control” and “neuropathy is
getting worse.”

(R. 794.)

On examination, Dr. Rodriguez found

tender paralumbar muscles bilaterally and assessed neuropathy as
the primary encounter diagnosis.

(R. 798.)

On July 30, 2015, Plaintiff saw Dr. Cote who noted that the
Prednisone trial helped some and Plaquenil, which was started at
the end of May 2015, seemed to help some but not enough.
1509.)

(R.

She further noted that Plaintiff’s pain was fifty percent

better with Plaquenil but she was still having pain in her hands
and feet.

(Id.)

Except for hand pain in her MCPs and PIPs and

knee pain with range of motion, physical exam was normal, including
intact sensation to light touch and normal motor strength.
1511-12.)

(R.

In her Assessment, Dr. Cote stated she thought

rheumatoid arthritis was a likely possibility and she adjusted
Plaintiff’s medication regimen.

(R. 1512.)

Plaintiff saw Dr. Rodriguez on August 11, 2015, for a followup visit.

(R. 830.)

Plaintiff reported that she had been having

headaches and chest pain over the preceding two months which she
related to being upset about her children.

16

(R. 831.)

Physical

exam showed severe spasm of the trapezius muscle with irradiation
to the occipital area as well as sore and irritated chest muscles.
(R. 835.)

Dr. Rodriguez assessed tension-type headache,

neuropathy, and diabetes mellitus, type 2.

(Id.)

On October 21, 2015, Plaintiff saw Ms. Knorr, her therapist,
and reported she was in a lot of pain, aqua therapy helped only
while she was in the water, and she was trying to “just ‘live with
it.’”

(R. 1616.)

Plaintiff stated that the therapy, medication,

and thirty minute daily walks helped to keep her mobile and she
felt that was important.

(Id.)

Plaintiff also expressed to Ms.

Knorr that she was doing better and was not sure whether she needed
another appointment.

(Id.)

wanted to schedule one.
B.

The plan was for her to call if she

(Id.)

ALJ Hearing
Plaintiff’s hearing took place on November 10, 2015.

(R. 32.)

Plaintiff attributed her inability to return to any type of work to
her diabetes, neuropathy, and arthritis in her back.

(R. 38.)

She

said she had limited feeling in her hands and feet and she was too
weak to do any type of work.

(Id.)

Regarding the problems with

her hands, Plaintiff explained that she felt like she was being
stuck with pins and needles if she tried to grab something and then
she got numbness.

(R. 51.)

Regarding her feet, Plaintiff said the

symptoms were the same as her hands.

(Id.)

She testified that

medication did not help either her lower back pain or her
17

hands/feet symptoms.

(R. 52.)

She added that a glass of water,

her cell phone, and her purse where about the only things she could
pick up.

(Id.)

Plaintiff testified that her daughter did all the cooking and
cleaning because she had not been able to stand long enough to do
these activities since 2013.

(R. 39.)

Plaintiff also said her

daughter did all the shopping, she did not lift or carry anything,
she had difficulty sitting because of severe pain in her lower
back, she could not stand for longer than three or four minutes due
to the back pain as well as numbness and tingling in her feet from
the neuropathy, and she could walk for less than a mile.

(R. 42.)

When asked about exercising, Plaintiff said she stopped
walking in February 2015.

(R. 40.)

She was using a cane at the

time of the hearing and said Dr. Rodriguez recommended that she get
one in August 2015.

(Id.)

ALJ asked Plaintiff what she did all day and Plaintiff
responded “I just lie in bed all day.”

(R. 41.)

When asked by her

attorney whether there was a bathroom on the same floor as her
bedroom, Plaintiff said the bathroom was downstairs but she used a
commode in her room.

(R. 43.)

Plaintiff testified that she did

not go out at all (except for doctors’ appointments) or have any
visitors.

(R. 44, 54.)

She also said she needed her daughter’s

help to get dressed and her daughter prepared her meals and brought
them to her upstairs.

(R. 46, 50.)

18

Regarding mental health treatment, Plaintiff testified that
she was seeing Ms. Knorr at the Kistler Clinic every two weeks and
she had started in about February 2015 on the recommendation of Dr.
Rodriguez.

(Id.)

ALJ Wolfe asked Vocational Expert Karen Keen to consider an
individual of Plaintiff age, education, and work experience who had
the residual functional capacity (“RFC”) to perform light work but
subject to the following:
The individual would have occasional
balancing, stooping, crouching, crawling,
kneeling, and climbing, but never on ladders,
ropes or scaffolds.
The individual also would need to avoid
concentrated exposure, temperature extremes
of cold and heat; wetness and humidity;
fumes, odors, dust, gases, and poor
ventilation; vibration, and hazards,
including moving machinery and unprotected
heights.
(R. 57.)

Ms. Keen said that such an individual could perform

Plaintiff’s past work as a cashier and there were other exemplary
jobs the individual could perform.

(R. 57-58.)

Ms. Keen further

testified that if the individual were limited to only occasional
pushing and pulling with the lower extremity, she could perform the
jobs identified.

(R. 58.)

However, she said if the individual

were limited to four hours of standing and walking during the
workday, the identified positions would be eliminated.

(Id.)

When

asked if other jobs would exist for such an individual, Ms. Keen
said that would be sedentary unskilled work and she identified
19

several exemplary positions in that category and adding the option
to transfer positions would not have an effect.

(R. 58-59.)

Ms.

Keen said the light duty jobs would be eliminated if the individual
were limited to frequent fingering and handling but the light-duty
positions would not be affected if the individual were able to use
a mouse or keypad.

(R. 59.)

However, if the individual were

limited to occasional fingering, the positions would be affected.
(Id.)
C.

ALJ Decision
In her January 1, 2016, Decision, ALJ Wolfe found that

Plaintiff had the following severe impairments: degenerative disc
disease of the lumbar spine; osteoarthritis; sacroiliitis; myalgia
and myositis; and diabetes mellitus.

(R. 19.)

ALJ Wolfe noted

Plaintiff had been assessed with lumbago but it was not a medically
determinable impairment and had been covered under the severe
impairment of degenerative disc disease of the lumbar spine.

(Id.)

She also noted that medical records indicated numerous additional
diagnoses: tinea cruris, hyperglycemia, headache, urinary tract
infection, diabetic ketoacidosis, sepsis, dyslipidemia, MRSA,
dyselectrolytemia with hypophosphatemia, hypokalemia and
hypomagnesia, groin candidal infection, lyperlipidemia, viatmin D
deficiency, disorder of refraction and accommodation, nodular
goiter status post thyroidectomy, onychomycosis, xerosis,
depression, generalized anxiety disorder, and carpal tunnel

20

syndrome.
(Id.)

(Id.)

ALJ Wolfe did not categorize these diagnoses.

She determined that Plaintiff’s medically determinable

mental impairments of depression and generalized anxiety disorder,
considered singly and in combination, did not cuase more than
minimal limitations in Plaintiff’s ability to perform basic mental
work activities and, therefore, were nonsevere.

(Id.)

ALJ Wolfe

concluded that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled one of the listed
impairments after considering listings 1.02, 1.02A, 1.02B, 1.04,
1.04A, 1.04B, 1.04C, fibromyalgia (under SSR 12-2p); and diabetes
mellitus under 9.00 et seq., SSR 14-2p, and related listings 1.00,
2.00, 4.00, 5.00, 6.00, 8.00, 11.00, and 12.00.

(R. 21-22.)

ALJ Wolfe then found that Plaintiff had the RFC to perform
light work, adding
[s]he can do occasional balancing, stooping,
crouching, crawling, kneeling and climbing,
but never on ladders, ropes or scaffolds.
She can do occasional pushing and pulling
with her lower extremities. The claimant
must avoid concentrated exposure to
temperature extremes of cold and heat,
wetness, humidity, fumes, odors, dusts,
gases, poor ventilation, vibrations and
hazards including moving machinery and
unprotected heights.
(R. 22.)

Based on this RFC, ALJ Wolfe determined that Plaintiff

could not perform her past relevant work but she could perform jobs
which existed in significant numbers in the national economy.
25-26.)

She then found that Plaintiff had not been under a

21

(R.

disability as defined in the Social Security Act from November 30,
2011, through the date of the decision.

(R. 27.)

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. §§

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).
22

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

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

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her past relevant
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. 26.)
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).
23

Substantial evidence

means “more 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).
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,
24

“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

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

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
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
25

facts presented.”

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

Cir. 1983) (internal quotation omitted).

Where a claimed error

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

Finally,

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

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

As set out above, Plaintiff asserts the Acting Commissioner’s
determination should be remanded for the following reasons: 1) the
ALJ did not provide meaningful discussion of listing 11.00 although
she acknowledged that SSR 14-2p required her to consider diabetic
neuropathy under listing 11.00; 2) the ALJ failed to include a
discussion of the limitations of Plaintiff’s diabetic neuropathy in
formulating the residual functional capacity assessment and failed
to include in the RFC the limits imposed by the consultative
examiner on foot manipulation; 3) the ALJ erred in rejecting the
opinion of the consultative examiner on the basis of her own
medical opinions; and 4) the ALJ failed to properly evaluate and
credit Plaintiff’s subjective complaints of pain and limitations.
(Doc. 29 at 24.)
A.

Listing 11.00
Plaintiff first points to error regarding ALJ Wolfe’s

discussion of neuropathy at step three of the sequential evaluation
26

process.

(Doc. 29 at 24-26.)

Defendant responds that substantial

evidence supports the ALJ’s decision that Plaintiff failed to meet
her burden of showing that she was disabled per se at step three
and Plaintiff does not now proffer evidence to show that her
conditions met or medically equaled all of the criteria under the
listing.

(Doc. 34 at 21-23.)

The Court concludes Plaintiff has

not met her burden of showing the alleged error is cause for
remand.
In Holloman v. Comm’r of Soc. Sec., 639 F. App’x 810 (3d Cir.
2016) (not precedential), a Third Circuit panel addressed the
plaintiff’s assertion that the ALJ did not properly analyze certain
impairments under the listings at step three but the plaintiff did
not identify how he met or equaled a listing and did not offer an
“explanation of how further analysis could have affected the
outcome of his disability claim.”

Id. at 814.

In these

circumstances, the panel concluded “[e]ven if we found a portion of
the ALJ’s step-three analysis to be deficient, we would have no
reason to conclude that the deficiency in analysis was harmful to
[the plaintiff’s] claim.”

Id.

This conclusion was based on the

following analysis:
Ordinary harmless error review, in which the
appellant bears the burden to demonstrate
harm, is applicable to administrative
appeals. Shinseki v. Sanders, 556 U.S. 396,
409, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009).
Holloman therefore must “explain [ ] ... how
the ... error to which he points could have
made any difference.” Id. at 413, 129 S.Ct.
27

1696 (emphasis added).3 Holloman merely
asserts that harm was done because a positive
finding at step three would have eliminated
the need to proceed through steps four and
five. But that assertion entirely sidesteps
the question, which is how Holloman might
have prevailed at step three if the ALJ's
analysis had been more thorough. Holloman
offers no answer to that question and
therefore no basis for us to remand the case
to the ALJ. See Rutherford v. Barnhart, 399
F.3d 546, 553 (3d Cir.2005) (“Rutherford has
not specified how that factor would affect
the five-step analysis undertaken by the ALJ,
beyond an assertion that her weight makes it
more difficult for her to stand, walk and
manipulate *815 her hands and fingers. That
generalized response is not enough to require
a remand....”).
Id. at 814-15.

3

Holloman footnoted the explanation as follows:
Of course, during non-adversarial
administrative proceedings before an ALJ, a
claimant's burden is different because of
“the nature of Social Security disability
proceedings which are inquisitorial rather
than adversarial and in which [i]t is the
ALJ's duty to investigate the facts and
develop the arguments both for and against
granting benefits.” Burnett v. Comm'r of Soc.
Sec., 220 F.3d 112, 120 n. 2 (3d Cir.2000)
(quotation marks omitted). But when that
claimant then challenges the ALJ's decision
in a federal court, the proceedings are
adversarial and rely on the parties to raise
arguments. If the claimant believes that an
error was made, he must clearly identify the
error and explain how the error actually
“affect[ed] [his] ‘substantial rights.’ ”
Shinseki, 556 U.S. at 407, 129 S.Ct. 1696
(quoting 28 U.S.C. § 2111).

Holloman, 639 F. App’x at 814 n.3.
28

Here Plaintiff does not attempt to make the showing explained
in Holloman.

(See Doc. 29 at 25-26; Doc. 39 at 5-6.)

In her reply

brief, Plaintiff takes the position that “she met her burden.”
(Doc. 39 at 6.)

The Court cannot agree with this assessment in the

absence of a proffer of how Plaintiff “might have prevailed at step
three if the ALJ's analysis had been more thorough.”
at 814 (citing Rutherford, 399 F.3d at 553).

639 F. App’x

As in Holloman,

Plaintiff offers no answer to that question and therefore provides
no basis for remand.
B.

Id.

Diabetic Neuropathy Limitations
Plaintiff next asserts the ALJ failed to include a discussion

of the limitations of Plaintiff’s diabetic neuropathy in
formulating the residual functional capacity assessment and failed
to include in the RFC the limits imposed by the consultative
examiner on foot manipulation.

(Doc. 29 at 26.)

Defendant

responds that ALJ Wolfe fully accounted for the functional
limitations associated with Plaintiff’s diabetes mellitus in
assessing the RFC and did not err based on foot control
limitations.

(Doc. 34 at 27, 28.)

The Court concludes Plaintiff

has satisfied her burden of showing the claimed error is cause for
remand.
1.

Neuropathy
Plaintiff specifically argues that the ALJ acknowledged she

had been diagnosed with neuropathy but she neither discusses it at
29

step two as a severe or non-severe impairment or includes related
limitations in the RFC.

(Doc. 29 at 26.)

Pointing to the finding

of several treating doctors that she had severe bilateral diabetic
neuropathy in both her hands and feet, Plaintiff maintains the ALJ
provided no meaningful limits in the RFC related to limitations in
her ability to use her hands, stand, or walk consistent with the
limitations that would clearly be present with the condition.
(Doc. 29 at 28.)
To the extent Plaintiff asserts a step two error (see Doc. 29
at 26), the Court agrees that ALJ Wolfe did not discuss diabetic
neuropathy as an impairment at step two.

(See R. 19-20.)

The

Court also agrees that the step two error may be deemed harmless
where the limitations related to the impairment are included in the
RFC.

If the sequential evaluation process continues beyond step

two, an ALJ’s failure to properly consider

a specific impairment

at step two may be deemed harmless if the functional limitations
associated with the impairment are accounted for in the RFC.
Salles v. Commissioner of Social Security, 229 F. App’x 140, 145
n.2 (3d Cir. 2007) (not precedential) (citing Rutherford v.
Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)).

In other words,

because the outcome of a case depends on the demonstration of
functional limitations rather than a diagnosis, where an ALJ
identifies at least one severe impairment and ultimately properly
characterizes a claimant’s symptoms and functional limitations, the

30

failure to identify a condition as severe is deemed harmless error.
Garcia v. Commissioner of Social Security, 587 F. App’x 367, 370
(9th Cir. 2014) (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir.
2007)); Walker v. Barnhart, 172 F. App’x 423, 426 (3d Cir. 2006)
(not precedential) (“Mere presence of a disease or impairment is
not enough[;] a claimant must show that his disease or impairment
caused functional limitations that precluded him from engaging in
any substantial gainful activity.”); Burnside v. Colvin, Civ. A.
No. 3:13-CV-2554, 2015 WL 268791, at *13 (M.D. Pa. Jan. 21, 2015);
Lambert v. Astrue, Civ. A. No. 08-657, 2009 WL 425603, at *13 (W.D.
Pa. Feb. 19, 2009).
Plaintiff focuses her argument on ALJ Wolfe’s failure to
include functional limitations in the RFC related to diabetic
neuropathy and the Court will do the same.

(Doc. 29 at 27-30.)

Regarding the relevant time period, ALJ Wolfe provides
approximately two pages of evidence review and mentions neuropathy
twice: the podiatrist’s finding on December 2, 2014, that Plaintiff
had bilateral diabetic neuropathy; and the consultative examiner’s
assessment that Plaintiff could “never lift, carry, handle, finger,
feel, push or pull with her hands because of a weak grip and
neuropathy.”

(R. 25.)

ALJ Wolfe noted the consultative examiner

found Plaintiff’s “deep tendon reflexes were depressed in both
upper and lower extremities” and she “had diminished sensation on
her right later [sic] and posterior foot and right thumb and

31

forearm.”

(R. 24.)

She also noted that Plaintiff’s primary care

doctor found on physical examination that Plaintiff had “severe
pain in both hands and feet” on August 28, 2014, and “some soreness
and irritation of the dorsal aspect of her foot” on November 28,
2014.

(Id.)

Merely reviewing evidence does not satisfy the ALJ’s
obligation to provide an explanation for the weight attributed to
probative evidence and a failure to mention and explain
contradictory objective probative evidence is error.

Burnett, 220

F.3d at 119-20; Dobrowolsky, 606 F.2d at 406; Cotter, 642 F.2d at
706-07.

Depressed deep tendon reflexes, diminished sensation, and

localized pain are symptoms associated with diabetic neuropathy,4
yet ALJ Wolfe does not explain her consideration of the evidence
which arguably supports limitations associated with the impairment
and which, importantly, the consulting physician found to be the
basis of multiple limitations.

(R. 476-78.)

Although ALJ Wolfe

cited reasons for discounting the consulting examiner’s limitations
related to neuropathy (R. 25), the reasons cannot be deemed
substantial evidence because, in addition to not discussing the
probative evidence she had set out, ALJ Wolfe did not acknowledge a
significant amount of medical evidence supporting the neuropathy
diagnosis and/or symptoms and limitations which may be related to

4

https://www.webmd.com/diabetes-neuropathy;
https://www.medscapt.com/answers/1170337-4949/how-are-deep-tendonreflexes-assessed-in-diabetic-neuropathy.
32

it.

This is particularly important given notations that the

condition was worsening following Dr. Willner’s assessments.

(See,

e.g., R. 1509.)
The evidence ALJ Wolfe failed to mention includes the
following:
•

Plaintiff’s diabetic neuropathy diagnosis on May 16,
2014, for which Gabapentin was prescribed to address hand
and foot pain (R. 489);

•

May 19, 2014, Geisinger Wyoming Valley emergency
department records indicating Plaintiff was seen for hand
and foot pain/numbness which she had experienced for over
a year but had gotten acutely worse the night before (R.
1525);

•

June 5, 2014, endocrinology appointment where office
notes described Plaintiff as having “significant
neuropathy pain” and Dr. Sun increased the Gabapentin
dosage (R. 893);

•

September 23, 2014, Interventional Pain Center visit
where Plaintiff’s complaints included numbness and pain
in her hands and feet, neurologic exam showed decreased
sensation to light touch in the lower distal extremities,
and 4/5 finger abduction on the left;

•

December 2, 2014, office visit with Dr. Nguyen, a
podiatrist, who found diminished sensation to light touch

33

bilaterally and assessed bilateral diabetic neuropathy
(R. 1158, 1160);
•

Dr. Rodriguez’s office visit notes of January 15, 2015,
which indicated Plaintiff was unable to move and work due
to pain and he diagnosed Tylenol with codeine for
neuropathy pain (R. 595, 598);

•

May 5, 2015, office visit physical exam by Dr. Cote which
showed feet tender to palpation over MTPs and positive
squeeze test (R. 1394);

•

May 29, 2015, “severe neuropathy” notation by Dr.
Rodriguez upon examination of Plaintiff’s extremities (R.
768);

•

June 16, 2015, office visit with Dr. Nguyen where
Plaintiff reported neuropathy with constant numbness and
tingling in both feet and Dr. Nguyen noted that Plaintiff
had advanced trophic changes, venous insufficiency, and
edema, as well as a loss of protective sensation
bilaterally (R. 1451);

•

Dr. Rodriguez’s July 6, 2015, notation that Plaintiff’s
neuropathy was getting worse (R. 1509).

Just as failure to analyze and explain evidence set out in the
decision constitutes error, failure to mention and explain
additional evidence supporting the diabetic neuropathy diagnosis

34

and arguably associated limitations is error.5
220 F.3d at 122.

See, e.g., Burnett,

Therefore, this matter must be remanded and, on

remand, all pertinent evidence must be reviewed with an explanation
of the reasons for rejecting evidence arguably supporting greater
limitations than those assessed in the RFC.
2.

Foot Control Limitation
Plaintiff contends the ALJ erred because the RFC did not

include the limitation regarding Plaintiff’s inability to use her
right foot for the operation of foot controls, a limitation which
the ALJ had “given weight” when assessing Dr. Willner’s opinion.
(Doc. 29 at 30.)

Defendant maintains the argument is unavailing

because the ALJ also gave weight to Dr. Willner’s opinion that
Plaintiff could “continuously” use her left foot for the operation
of foot controls.

(Doc. 34 at 28.)

Assuming arguendo it was error for the ALJ to exclude the
right foot limitation in her RFC, Plaintiff does not show how the
claimed error would affect the outcome of the case because she has

5

The Court does not infer that the cited evidence is not
contradicted by other evidence of record. The need for careful
analysis and explanation is critical where, as here, physical
examination findings vary from visit to visit. For example on June
9, 2015, Dr. Sun noted no motor/sensory deficits and foot testing
showed normal sensation (R. 1438), but one week later (on June 16,
2015) Dr. Nguyen found advanced trophic changes and loss of
protective sensation bilaterally (R. 1451). Caution regarding the
prohibition against lay interpretation of medical evidence is of
particular importance where the record presents varied physical
findings and the need for clarification from an acceptable medical
source may be warranted. See Morales v. Apfel, 225 F.3d 310, 317
(3d Cir. 2000).
35

not shown that the right foot limitation would prevent her from
performing the exemplary jobs of office helper, ticket sales, or
office helper identified by the VE.

(See R. 26.)

As discussed

above, without such a showing, remand on the basis alleged is not
required.

(See supra pp. 27-29.)

While Plaintiff has not shown that the claimed foot limitation
error alone would be cause for remand, reconsideration of
Plaintiff’s limitations regarding use of her feet will be addressed
and the inclusion or exclusion of related limitations in a residual
functional capacity assessment will be explained because the right
foot limitation was based on neuropathy (R. 476), and because later
evidence indicates neuropathy was bilateral (see, e.g., R. 1451).
C.

Consultative Examiner’s Opinion
Extensive discussion of Plaintiff’s asserted error regarding

the ALJ’s rejection of Dr. Willner’s opinion (Doc. 29 at 30) is not
warranted in that the Court’s finding on the previous alleged error
encompasses a need for the ALJ to explain why evidence consistent
with and supportive of the opinion has been rejected and, because
determinations regarding the opinion cannot be based on lay
opinion, see Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000),
the ALJ must provide medically sound reasons for discounting the
examiner’s findings.
D.

Subjective Complaints
Plaintiff maintains the ALJ failed to properly credit her
36

subjective complaints of pain and limitations.

(Doc. 29 at 34.)

Defendant responds that substantial evidence supports the ALJ’s
credibility determination.

(Doc. 34 at 30.)

The Court concludes

explanation of the ALJ’s credibility determination is warranted on
remand.
Though this record clearly contains evidence which could be
found contradictory to Plaintiff’s claimed limitations, the Court
does not find an adequate explanation in the decision for the ALJ’s
conclusion that Plaintiff’s statements “concerning the intensity,
persistence and limiting effects of these symptoms are not entirely
credible.”

(R. 23.)

ALJ Wolfe states the conclusion is based on

“the reasons explained in this decision” (id.), but the Court does
not find any explanation in the decision.

Defendant attempts to

provide the explanation lacking in the decision by citing evidence
which she considers inconsistent with Plaintiff’s subjective
complaints (Doc. 34 at 31-32), but the ALJ merely reviews evidence
without analysis/explanation and, as discussed above, the Court
cannot find that a determination is based on substantial evidence
without an explanation from the ALJ of the reason for her
determination.

See supra pp. 24-25, 32.

The responsibility of a

district court on appeal of the ALJ’s decision is to review only
evidence relied upon by the ALJ because neither the defendant nor
the reviewing court can do what the ALJ should have done–-neither
can provide post hoc reasons for supporting an the decision.

37

Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001); Dobrowolsky,
606 F.2d at 406-07.

It is the ALJ’s responsibility to explicitly

provide reasons for her decision and analysis later provided by the
defendant cannot make up for the analysis lacking in the ALJ’s
decision.

Id.

In other words, neither the Court nor Defendant can

now do what the ALJ should have done.

247 F.3d 42, 44 n.7.

V. Conclusion
For the reasons discussed above, the Court concludes this
matter is properly remanded to the Acting Commission for further
action consistent with this opinion.

An appropriate Order is filed

simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: November 2, 2018

38