Rivera v. Berryhill

Filing 14

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 consistent with this Memorandum. An appropriate Order is filed simultaneously with this action.Signed by Honorable Richard P. Conaboy on 1/29/18. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PAMELA E. RIVERA,

:
:CIVIL ACTION NO. 3:17-CV-1221
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.

(Doc. 1.)

Plaintiff

filed an application for benefits on October 2, 2013, alleging a
disability onset date of September 23, 2013.

(R. 18.)

After she

appealed the initial denial of the claim, Administrative Law Judge
(“ALJ”) Theodore Burock held a hearing on October 13, 2015.

(Id.)

With his Decision of December 2, 2015, the ALJ determined that
Plaintiff had not been under a disability as defined in the Social
Security Act from October 2, 2013, through March 31, 2015, the date
last insured.

(R. 28.)

Plaintiff requested review of the Decision

by the Appeals Council and the Appeals Council denied review on
June 7, 2017.

(R. 1-7.)

With the Appeals Council denial, the

ALJ’s Decision became the decision of the Acting Commissioner.

(R.

1.)
Plaintiff filed this action on July 12, 2017.

(Doc. 1.)

In

her supporting brief, Plaintiff asserts the ALJ erred on the
following bases: 1) he improperly based Plaintiff’s residual
functional capacity (“RFC”) on his own lay opinion; 2) substantial
evidence does not support the ALJ’s RFC assessment; 3) the ALJ
erred in his evaluation of Plaintiff’s symptoms; and 4) the ALJ
erred at step three of the evaluation process by finding that
Plaintiff does not meet Listing 12.04.

(Doc. 9 at 1-2.)

After

careful review of the record and the parties’ filings, the Court
concludes this appeal is properly granted.
I. Background
Plaintiff was fifty-two years old on the date last insured.
(Doc. 9 at 2 (citing R. 26).)

She has a high school education and

past relevant work as a home attendant and night auditor.

(Id.)

In a Disability Report dated October 22, 2013, Plaintiff identified
the following conditions that limited her ability to work:
respiratory problems; PTSD due to domestic violence; COPD;
depression; irritable bladder syndrome; and an inability to keep
weight up.

(R. 162.)

A. Medical Evidence
Plaintiff had a psychiatric evaluation by Shiv Aggarwal, M.D.,
at Holy Spirit Hospital on August 13, 2012.

(R. 244-46.)

The

reason for the evaluation was that Plaintiff had been having some
problems with depression and PTSD due to past abuse.

(R. 244.)

Dr. Aggarwal noted that stressors for Plaintiff’s symptoms included

2

“financial problems, having no job, supporting herself by cleaning
houses and on food stamps.

She has also been having a lot of

health problems including hepatitis C, going through menopausal
changes, and a chronic cough.
(Id.)

She also has no support system.”

Dr. Aggarwal reported that Plaintiff had an extensive

history of drug and alcohol abuse but, at the time of her
evaluation, she was clean from doing drugs except for cannabis and
she denied abusing alcohol.

(Id.)

Plaintiff had begun taking

psychotropic medications four months earlier and had some side
effects including constipation.

(Id.)

Plaintiff had not received

previous mental health treatment other than being in a battered
women’s group many years earlier.

(R. 245.)

Mental status

examination showed the following: Plaintiff was oriented to person,
place, date, month, and year; she had fairly good eye contact; her
mood appeared to be depressed and anxious; her affect was labile;
her thinking was clear; she denied any hallucinations or delusions
(however she reported sometimes seeing shadows walking in her room
and waking up during her sleep); she had some flashbacks and
nightmares from past abuse issues; there was no evidence of any
other cognitive deficit; her insight and judgment remained fair;
and she denied current suicidal thoughts, plans, or intent.

(Id.)

Dr. Aggarwal diagnosed chronic PTSD, recurrent major depressive
disorder, continuous cannabis abuse, and a history of polysubstance
abuse.

(Id.)

He recommended that Plaintiff continue with

3

outpatient psychotherapy and he altered her medication regimen.
(R. 246.)
Plaintiff continued to receive mental health treatment at Holy
Spirit Hospital through October 2013.

Shortly before the alleged

September 23, 2013, onset date, Plaintiff reported that she was
doing well except for panic attacks and her medications were
helping.

(R. 234.)

The following month, Plaintiff reported that

she had been diagnosed with emphysema and a lung mass for which she
was going to have a PET scan.

(R. 233.)

She said she had

heightened anxiety and agitation, she was very frightened, and she
had suicidal thoughts but would never do that.

(Id.)

CRNP Mary

Rock’s recorded impression was acute stress related to lung cancer
and she planned to refer Plaintiff for counseling.

(Id.)

Medical records show that primary care providers at Hamilton
Health Center referred Plaintiff for evaluation of a lump on her
right shoulder and lung nodule in September 2013.

(R. 274-75.)

On

October 1, 2013, she was evaluated at Penn State Hershey Medical
Center and the provider advised that the lung nodule should be
evaluated more fully prior to intervention on her right shoulder
mass.

(R. 259.)

(R. 256-58.)

On October 22, 2013, Plaintiff had a PET scan.

The Impression included a right upper lobe pulmonary

nodule concerning for primary lung malignancy.

(R. 258.)

On October 25, 2013, spirometry showed mild obstructive
ventilatory defect without significant bronchodilator effect, lung

4

volumes not consistent with restrictive ventilatory defect,
moderately impaired diffusion capacity, and resting room air SpO2
of 95%.

(R. 252.)

A Hershey Medical Center Operative Report indicates that
Jennifer W. Toth, M.D., was the chief surgeon for a hybrid
procedure including bronchoscopy, endobronchial ultrasound, and a
right upper lobectomy which was performed on November 21, 2013.
(R. 299.)

The postoperative diagnosis was COPD, adenocarcinoma of

the right upper lobe, and heavy tobacco use.

(Id.)

On February 21, 2014, Plaintiff was seen for a regular visit
at Holy Spirit Hospital Behavioral Health Services by Mary Rock,
CRNP.

(R. 592.)

Ms. Rock reported Plaintiff’s hygiene to be fair,

her motor behavioral restless, and her mood anxious but the rest of
the mental evaluation was normal.

(Id.)

At a follow-up with Dr. Toth in March 2014, Plaintiff stated
that she had not been doing well: she had recent issues with
fatigue and a productive cough; she had chronic pain from the
surgery and continued to take OxyContin, Naprosyn, and gabapentin;
she used Spireva and an albuteral inhaler; and she asked about a
nebulizer.

(R. 420.)

Dr. Toth noted that Plaintiff was in the

process of trying to qualify for disability and asked about her
lung condition.

(Id.)

Dr. Toth told Plaintiff her numbers did not

meet the criteria for pulmonary disability.

(Id.)

On March 4, 2014, Michael Rosenberg, M.D., saw Plaintiff for

5

an internal medicine examination at the request of the Bureau of
Disability Determination.

(R. 353.)

By history, Dr. Rosenberg

noted that Plaintiff had been diagnosed with lung cancer and COPD
in October 2013, that Plaintiff did not need radiation or
chemotherapy for the cancer, and she continued to have chest wall
pain that radiated up to the right shoulder which she rated at
eight of ten.

(Id.)

Plaintiff also complained of shortness of

breath which she felt had been getting worse and was brought on by
exposure to cold, exercise, and exposure to dust.

(Id.)

Dr.

Rosenberg also noted Plaintiff’s history of depression and PTSD
with associated panic attacks and nightmares.

(Id.)

Regarding

activities of daily living, Dr. Rosenberg recorded that Plaintiff
was able to cook once a day, clean, do laundry and shop with help.
(R. 354.)

He noted that help was needed because Plaintiff was told

not to lift anything over five pounds.

(Id.)

Physical examination

findings included the following: mild right chest wall pain and
right shoulder pain; significant shortness of breath during
examination and inability to hold breath for more than five to ten
seconds; normal gait and stance; pain with range of motion of
cervical spine but full range of motion; single leg raise negative
bilaterally; pain with movement of right shoulder elicited right
shoulder pain and chest wall pain; and decreased range of motion of
right shoulder related to shoulder and chest wall pain.
56.)

6

(R. 355-

On March 7, 2014, Plaintiff had a lumbosacral spine x-ray.
(R. 357.)

The impression was “negative study.”

(Id.)

At an April 15, 2014, counseling session with Angelica LopezHeagy at Hamilton Health, Plaintiff reported some improvement in
her mood since being put back on her full medication dosage and
noted some progress with her anxiety.

(R. 543.)

Plaintiff also

reported that she was attempting to socialize more with church
activites.

(Id.)

Later in April, Plaintiff told Ms. Lopez-Heagy

that she had increased outside activity and was spending more time
with neighbors and gardening which had a calming effect and helped
lessen anxiety.

(R. 542.)

Plaintiff said she did not feel that

her psychiatric medications were working as effectively as before,
and Ms. Lopez-Heagy suggested she talk with her psychiatrist about
this.

(Id.)

In May 2014, Plaintiff reported to Ms. Lopez-Heagy that her
depression was better and she continued to engage in more outside
activities.

(R. 541.)

Plaintiff also reported that her anxiety

had not improved and she continued to have panic attacks at times.
(Id.)

Plaintiff was unable to identify specific triggers other

than social situations but planned to start a log to try to
identify them.

(Id.)

Ms. Lopez-Heagy noted that Plaintiff was

alert and oriented times three and her mood and affect were
appropriate.

(Id.)

In July 2014, CRNP Rock’s mental status examination of

7

Plaintiff showed normal findings except for the notation that
Plaintiff had mild depression.

(R. 590.)

Plaintiff reported

sleeping a lot and Ms. Rock planned to decrease the Prozac dosage
because of sedation.

(Id.)

In August 2014, Plaintiff reported at a Hamilton Health
primary care visit that she was doing a little better regarding her
depression.

(R. 536.)

camping vacation.

She also said she was planning to go on a

(Id.)

In September 2014, Plaintiff had another follow-up appointment
with Dr. Toth.

(R. 412.)

Plaintiff continued to have a persistent

cough which increased when she would lie flat, and she complained
of associated shortness of breath mainly with exertion when she
goes up stairs carrying something.

(Id.)

Other than these

problems and chronic ear infections related to a perforated eardrum
for which she had just been prescribed an antibiotic, Plaintiff
reported that she had been doing well.
was not remarkable.

(R. 413.)

(Id.)

Physical examination

A CT scan performed on the same

date showed that opacities that were seen previously were much
improved and the right subpleural nodule was no longer appreciated
as on the previous study.

(Id.)

Dr. Toth noted that “[o]verall,

the CT scan demonstrates improvement and no evidence of recurrence
of disease.”

(Id.)

Dr. Toth also noted that Plaintiff’s pulmonary

function testing was improved compared to her March 2014 office
visit with the addition of bronchodilators and Spireva.

8

(Id.)

Dr.

Toth prescribed a new nebulizer machine and planned to follow up in
six months.

(Id.)

At her October and December 2014 visits with CRNP Rock,
Plaintiff’s mental status examinations were normal.

(R. 589, 594.)

At her December 8, 2014, primary care visit, Plaintiff
reported that she had been getting very discouraged two weeks
earlier because her mood and medical problems were not improving,
she had stopped taking all medications the previous week, she was
very stressed because a couple of friends had passed away over the
past year, she was behind on her rent, and she had no money coming
in.

(R. 530-31.)

Reporting a worsening mood, Plaintiff did not

want to get out of bed and was constantly tired.

(R. 531.)

Plaintiff restarted her medications on December 9, 2014.

(R. 589.)

In February 2015, Plaintiff’s mental status examination was
again completely normal.

(R. 595.)

CRNP Rock noted that Plaintiff

was stressed because of finances including back rent and a large
medical bill which she was unable to pay.

(Id.)

Ms. Rock also

noted that Plaintiff felt her medications were helping.

(Id.)

A March 17, 2015, chest x-ray showed postsurgical changes in
the right upper lobectomy with no evidence of recurrent disease.
(R. 397.)
At a follow-up visit with Dr. Toth on the same date, Plaintiff
complained of worsening shortness of breath with an increased need
for the albuterol inhaler.

(R. 407.)

9

She also complained of a

continuing cough and reported that she smoked at least three to
four cigarettes daily.

(Id.)

Dr. Toth noted that “[a] complete

12-point review of systems was performed and is negative except as
noted above.”

(Id.)

She further noted that Plaintiff’s pulmonary

function test “appeared to be stable since March 2014.”

(R. 408.)

Dr. Toth adjusted Plaintiff’s medication regimen and planned to see
her again in six months.

(Id.)

At her April 2015 visit with CRNP Rock, Plaintiff reported
that she was “fighting disability, she could not work, and she had
a lawyer helping her.”

(R. 591.)

In her mental status check, Ms.

Rock noted that Plaintiff’s appearance was normal and her exam was
normal except for a depressed mood.

(Id.)

She continued to

diagnose Plaintiff with major depressive disorder, recurrent and
severe.

(Id.)

In May 2015, Ms. Rock recorded a completely normal mental
status exam.

(R. 588.)

She noted that Plaintiff felt her

medications were helping and she denied depression.
Rock planned to see Plaintiff again in three months.

(Id.)

Ms.

(Id.)

In a June 2015 visit to Hamilton Behavioral Health, Plaintiff
reported frustration about her Social Security appeal and discussed
stressors related to finances.

(R. 526-27.)

The provider noted

that Plaintiff said she was working on pleasurable activities
instead of negative thinking.

(R. 527.)

In July and August,

Plaintiff continued to report depression and anxiety related to
10

health and financial issues.

(R. 520, 522.)

At her August visit,

the provider noted that Plaintiff’s smoking had increased ahd she
was forgetting to take her medications.

(R. 520.)

In September 2015, Plaintiff reported to CRNP Rock that she
had increased anxiety and Ms. Rock noted fair hygiene and slight
restlessness.

(R. 587.)

unremarkable.

Mental status check was otherwise

(Id.)

B. Opinion Evidence
1.

State Agency Mental Opinion
State agency psychological consultant Thomas Fink, Ph.D.,

reviewed Plaintiff’s records and completed a Psychiatric Review
Technique (“PRT”) assessment on December 18, 2013.

(R. 78-79.)

Dr. Fink found Plaintiff’s affective disorders to be non severe and
considered Listings 12.04 (Affective Disorders), 12.06 (AnxietyRelated Disorders), and 12.09 (Substance Addiction Disorders).
79.)

(R.

He determined that Plaintiff had mild restrictions in

activities of daily living, mild difficulties in maintaining social
functioning, mild difficulties in maintaining concentration,
persistence or pace, and no repeated episodes of decompensation,
each of extended duration.

(Id.)

Dr. Fink’s “Additional

Explanation” included the notation that Plaintiff’s “recent mental
status reports indicate she is significantly improved and stable.
She remains alert, oriented, nonpsychotic and cognitively intact.”
(Id.)
11

2.

Consulting Examiner Opinion
Michael Rosenberg, M.D., examined Plaintiff on March 4, 2014,

and completed a Medical Source Statement of Ability to Do Workrelated Activities (Physical).

(R. 358-63.)

He opined that

Plaintiff could never lift or carry any weight because the
Plaintiff informed him that her surgeon told her not to lift
anything greater than five pounds.

(R. 358.)

He further opined

that Plaintiff could sit, stand, and walk for four hours at one
time without interruption and she could do these activities for a
total of eight hours in an eight-hour workday.

(R. 359.)

Dr.

Rosenberg concluded that Plaintiff could reach and push/pull
frequently with her right hand and continuously with her left hand;
she could handle, finger, and feel continuously with both hands;
she could continuously use both feet for operation of foot
controls.

(R. 360.)

Regarding postural activities, Dr. Rosenberg

found that Plaintiff could occasionally climb ladders or scaffolds,
she could frequently climb stairs and ramps, and she could
continuously balance, stoop, kneel, crouch, and crawl.

(R. 361.)

Due to COPD and shortness of breath, Dr. Rosenberg concluded that
Plaintiff could never tolerate exposure to humidity and wetness,
dust, odors, fumes, pulmonary irritants, and extreme cold or heat;
she could occasionally tolerate unprotected heights; she could
frequently tolerate exposure to moving mechanical parts; and she
could continuously tolerate operating a motor vehicle and
12

vibrations.

(R. 362.)

Finally, Dr. Rosenberg found Plaintiff was

able to do all nine identified activities.
3.

(R. 363.)

State Agency Physical Opinion
On March 12, 2014, Harshadkumar Patel, M.D., completed a

Physical Residual Functional Capacity Assessment after reviewing
the record, including Dr. Rosenberg’s evaluation and opinion.
80-82.)

(R.

He concluded that Plaintiff was able to perform a range of

medium work with postural and environmental limitations.

(Id.)

He

specifically opined that Plaintiff could lift fifty pounds
occasionally and twenty-five pounds frequently; she could sit,
stand, or walk for a total of six hours in an eight-hour day; she
could occasionally climb ladders/ropes/scaffolds and crawl; she
could frequently climb ramps/stairs, balance, stoop, kneel, and
crouch; she had to avoid even moderate exposure to extreme cold,
fumes, dusts, gases, and poor ventilation; and she had to avoid
concentrated exposure to humidity.

(R. 81-82.)

Dr. Patel noted

that a report of Plaintiff’s post-lobectomy status was needed but
he did not believe that her very mild COPD or the lobectomy were
issues in her alleged disability.

(R. 82.)

Dr. Patel also noted

that his opinion regarding Plaintiff’s ability to lift differed
from that of Dr. Rosenberg and that opinion had been considered in
his assessment.
4.

(Id.)

Treating Provider Opinion
CRNP Mary Rock completed a Mental Impairment Questionnaire

13

(RFC & Listings) on July 16, 2014.

(R. 378-83.)

Ms. Rock

indicated that she first evaluated Plaintiff in August 2012 and
Plaintiff received treatment for moderate to severe recurrent
depression.

(R. 378.)

She indicated that Plaintiff’s medications

of Prozac, Buspar, Neurontin, and Ativan caused sedation and
fatigue.

(Id.)

Ms. Rock identified supportive clinical findings

to be anhedonia, prolonged sleep, critical self-talk, suicidal
ideation, and passivity.
fair.

(Id.)

(Id.)

She found her prognosis to be

Ms. Rock identified numerous signs and symptoms

including generalized persistent anxiety, seclusiveness, perceptual
or thinking disturbances, difficulty thinking or concentrating, and
memory impairment.

(R. 379.)

Regarding the mental abilities and

aptitudes needed to do unskilled work, Mr. Rock opined that
Plaintiff was unable to meet competitive standards in the following
areas: remember work-like procedures; understand and remember very
short and simple instructions; carry out very short and simple
instructions; and work in coordination with or proximity to others
without being unduly distracted.

(R. 380.)

She further opined

that Plaintiff had no useful ability to function in many areas:
maintain attention for two hour segment; maintain regular
attendance and be punctual within customary, usually strict
tolerances; make simple work-related decisions; complete a normal
workday and workweek without interruptions from psychologically
based symptoms; perform at a consistent pace without an

14

unreasonable number and length of rest periods; get along with coworkers or peers without unduly distracting them or exhibiting
behavioral extremes; respond appropriately to changes in a routine
work setting; and deal with normal work stress.

(Id.)

Ms. Rock

did not explain the limitations assessed as requested on the form.
(Id.)

However, in another section of the form, Ms. Rock explained

limitations related to mental abilities and aptitude needed to do
particular types of jobs, noting that Plaintiff was unable to
function even in an unskilled job due to severe depression, medical
illness, and social anxiety.

(R. 381.)

She also found that

Plaintiff’s mental impairments resulted in the following functional
limitations: marked restrictions in activities of daily living;
extreme difficulties in maintaining social functioning; extreme
difficulties in maintaining concentration, persistence, or pace;
and four or more episodes of decompensation within a twelve month
period, each of at least two weeks duration.

(R. 382.)

Ms. Rock

checked that the following applied to Plaintiff: “Medically
documented history of a chronic organic mental, schizophrenic,
etc., or affective disorder of at least 2 years’ duration that has
caused more than a minimal limitation of ability to do any basic
work activity, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following”1

1

Ms. Rock did not identify which of the three additional
requirements was satisfied. (See R. 382.)
15

(id.); and “an anxiety related disorder and complete inability to
function independently outside the area of one’s home” (id.).
Additionally, she believed that Plaintiff would miss more than four
days of work a month due to her impairments and her impairment
lasted or was expected to last at least twelve months.
C.

(R. 383.)

Hearing Testimony
At the October 13, 2015, hearing before ALJ Burock, Plaintiff

testified about symptoms associated with her lung conditions,
stating that she had to use her “pump or . . . defibrillator” if
she walked a flight of stairs too fast.

(R. 39.)

Plaintiff noted

that she had quit smoking nineteen days before the hearing and her
lungs felt better since then.

(R. 40-41.)

Plaintiff identified

additional physical problems to be sciatic pain for which she did
not take medication (R. 45-46) and a hernia which precluded her
from picking up more than ten pounds.

(R. 48.)

Plaintiff added

that the hernia was diagnosed after her lung surgery and her doctor
at Hamilton Health did not want to surgically repair the hernia–-he
wanted to wait until it got more severe because “[t]hey’re afraid
to put me under.”

(R. 48.)

Regarding mental health issues, Plaintiff testified that she
was “pretty much” depressed all the time and her medication helped.
(R. 43.)

She affirmed that she suffered from anxiety and said got

very anxious when there were lots of people around that she didn’t
know.

(R. 44.)

Plaintiff added that anxiety medication helped

16

sometimes but the medication (Xanax) made her tired.

(R. 45.)

Plaintiff clarified that she want to Hamilton Health for therapy
and Holy Spirit for psychiatric care because Hamilton Health did
not have a psychiatrist.

(R. 57-58.)

When asked about physical activity, Plaintiff testified that
she was able to walk two blocks and stand for twenty to twenty-five
minutes before she had to sit down.

(R. 47.)

As noted above,

Plaintiff said she was limited to lifting no more than ten pounds
because of her hernia.

(R. 48.)

Plaintiff reported that her daily

activities included taking care of her dog, cooking, sometimes
going to the laundromat, and some gardening. (R. 49.)

Other

activities included watching TV and reading her bible for ten
minutes in the morning and intermittently through the day.
56.)

(R. 55-

Plaintiff noted that she needed quiet to pay attention when

reading, she was generally able to follow the TV program she was
watching, and she could pay attention to what she was watching for
about an hour.

(Id.)

She said she took daily naps, the duration

of which depended on how tired or depressed she was.

(R. 56.)

She

added that she had been taking long naps due to depression but the
recent addition of Wellbutrin to her medication regimen had been
“pepping [her] up a little bit more.”

(R. 57.)

Plaintiff testified that she had been active in a small church
for three years and went to weekly services there.

(R. 53-54.)

She also said that she regularly socialized with her friend Nancy.

17

(R. 53.)
ALJ Burock asked Vocational Expert Brian Bierley (“VE”) to
consider an individual of Plaintiff’s age, education, and work
experience, who had the residual functional capacity for light work
and was “[n]onexertionally[] limited to routine, repetitive tasks,
as required by unskilled labor; no public interaction; occasion–which is defined as up to one-third of the workday–-ramps and
stairs, balance, stoop, kneel, crouch crawl; not even moderate
exposure to extreme temperatures, fumes, odors, dust, gases, poor
ventilation or humidity.”

(R. 63.)

The VE testified that such an

individual could not perform Plaintiff’s past relevant work as a
home attendant or night auditor.

(Id.)

The VE then identified

exemplary unskilled light jobs which the individual could perform:
bench assembler and electrical accessories assembler.

(R. 64.)

Upon questioning by Plaintiff’s counsel, the VE said that no
jobs would be available if the person regularly missed work more
than a day and a half a month or were off task more than fifteen
percent of the workday on a regular basis.
D.

(R. 64-65.)

ALJ Decision
In his December 2, 2015, decision, ALJ Burock determined that

Plaintiff had the severe impairments of COPD, generalized anxiety
disorder, major depressive disorder (recurrent, severe), stage 1A
adenocarcinoma status post right upper lobectomy, and tobacco use.
(R. 20.)

He concluded that Plaintiff did not have an impairment or

18

combination of impairments that met or equaled the severity of one
of the listed impairments.

(R. 21.)

Regarding mental impairments,

ALJ Burock specifically considered Listings 12.04 and 12.06.
21.)

(R.

He found that Plaintiff had mild restrictions in activities

of daily living, moderate difficulties in social functioning,
moderate difficulties with regard to concentration, persistence, or
pace, and she had experienced no episodes of decompensation which
had been of extended duration.

(R. 21-22.)

ALJ Burock assessed

Plaintiff to have the residual functional capacity (“RFC”) to
perform light work except that she could occasionally balance,
stoop, kneel, crouch and crawl, she could not have even moderate
exposure to extreme temperatures, fumes, odors, dust, gases, poor
ventilation or hazards, she could have no public interaction, and
she was limited to routine, repetitive tasks.

(R. 22.)

Regarding opinion evidence, the ALJ assigned significant
weight to Dr. Patel’s opinion but limited Plaintiff to light rather
than medium work because evidence after March 2014 reflected
ongoing complaints of shortness of breath with some chest wall
pain.

(R. 25.)

ALJ Burock assigned different weights to different

portions of Dr. Rosenberg’s opinion: he assigned very little weight
to the opinion that Plaintiff could not perform any lifting based
on the statements that she was told not to lift anything greater
than five pounds by her surgeon in that this was not an accurate
estimate of Plaintiff’s longitudinal abilities; and he assigned

19

partial weight to the rest of the opinion as he found it generally
consistent with the objective evidence of record and the opinion of
Dr. Patel.

(Id.)

ALJ Burock assigned limited weight to Dr. Fink’s opinion that
Plaintiff did not have a severe mental impairment because
subsequent records showed otherwise.

(Id.)

He assigned very

little weight to CRNP Rock’s opinion as the opinion was not
rendered by an acceptable medical source and appeared to be a gross
overestimate of Plaintiff’s limitations when compared to the level
and frequency of mental health treatment received and objective
findings in the record did not support the limitations.

(R. 25-

26.)
After finding that Plaintiff was not able to perform her past
relevant work, the ALJ determined that jobs existed in significant
numbers in the national economy that Plaintiff could perform.
26-27.)

(R.

Therefore, ALJ Burock concluded that Plaintiff had not

been under a disability as defined in the Social Security Act at
any time from September 23, 2013, through March 31, 2015, the date
last insured.

(R. 27.)
II. Disability Determination Process

The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.2

2

It is necessary for the

“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
20

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
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).

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).
21

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. 26-27.)
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).

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
22

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.”
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

23

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).

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
24

her decision.

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

As set out above, Plaintiff asserts the ALJ erred on the
following bases: 1) he improperly based Plaintiff’s residual
functional capacity (“RFC”) on his own lay opinion; 2) substantial
evidence does not support the ALJ’s RFC assessment; 3) the ALJ
erred in his evaluation of Plaintiff’s symptoms; and 4) the ALJ
erred at step three of the evaluation process by finding that
Plaintiff does not meet Listing 12.04.
A.

(Doc. 9 at 1-2.)

Lay Opinion
With her first claimed error, Plaintiff maintains that the ALJ

did not fill the void left by his rejection of opinion evidence and
“improperly forged ahead to render an independent assessment.”
(Doc. 9 at 9 (citing Knier v. Berryhill, No. 3:16-CV-457 (M.D. Pa.
Jul. 5, 2017)).)

Defendant responds that substantial evidence

supports the ALJ’s evaluation of the opinion evidence and he did
not rely on his own lay opinion.

(Doc. 10 at 12-15.)

The Court

concludes Plaintiff has not shown that this alleged error is cause
for remand.
The Third Circuit Court of Appeals has noted that the Circuit
Court
has repeatedly held that “an ALJ is not free
to set his own expertise against that of
physicians who present competent medical
evidence.” Fowler v. Califano, 602 F.2d 55
(3d Cir. 1979). See also Rossi v. Califano,
596 F.2d 55 (3d Cir. 1979); Gober v.
25

Matthews, 574 F.2d 772, 777 (3d Cir. 1978).
Indeed, we have previously warned that, “[i]n
cases of alleged psychological disability,
such lay observation [by an administrative
judge] is entitled to little or no weight.”
Kelly v. Railroad Retirement Bd., 625 F.2d
486, 494 (3d Cir. 1980) (quoting Lewis v.
Weinberger, 541 F.2d 417, 421 (4th Cir.
1976)). The ALJ could only have reached his
conclusion by relying solely on his own nonexpert observations at the hearing–-in other
words, by relying on the roundly condemned
“sit and squirm” method of deciding
disability cases. See, e.g., Freeman v.
Schweiker, 651 F.2d 727, 731 (11th Cir.
1982); Aubeuf v. Schweiker, 649 F.2d 107, 113
n.7 (2d Cir. 1981).
Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir. 1983).
This is not a case where the ALJ could only have reached his
conclusion by relying on his own lay opinion.

Contrary to

Plaintiff’s assertion that the ALJ rejected all opinion evidence
(Doc. 9 at 9), ALJ Burock gave significant weight to Dr. Patel’s
opinion but limited Plaintiff to light rather than medium work
because evidence indicated that after March 2014 (i.e., after Dr.
Patel rendered his opinion) Plaintiff had ongoing complaints of
shortness of breath with exertion and some chest wall pain.
R. 25.)

(See

Further, the ALJ assigned partial weight to Dr.

Rosenberg’s opinion regarding Plaintiff’s ability to sit, stand,
and walk with environmental limitations.

(Id.)

The only aspect of

Dr. Rosenberg’s opinion to which ALJ Burock assigned very little
weight was the finding that Plaintiff could not perform any
lifting, a finding which Dr. Rosenberg noted was based on

26

Plaintiff’s report of what her surgeon had said after surgery
rather than on longitudinal evidence (i.e., for a twelve month
period) of her lifting abilities and later records.

(Id.)

Plaintiff does not show how this analysis is inconsistent with the
record nor does she point to evidence which would limit her
exertional capability to less than light work.

(See Doc. 9 at 8-

10; Doc. 12 at 1-2.)
Regarding mental health opinions, ALJ Burock did not reject
all opinion evidence but afforded limited weight to Dr. Fink’s PRT
assessment because he found that records post-dating the opinion
supported a conclusion that Plaintiff’s symptoms would cause
moderate difficulties in maintaining social functioning
(particularly with the general public) and moderate difficulties in
maintaining concentration, persistence, or pace.

(R. 25.)

Plaintiff does not point to evidence showing error in these
assessments made by ALJ Burock, nor does she point to error in the
ALJ’s assessment of Ms. Rock’s opinion.
12 at 1-2.)

(See Doc. 9 at 8-10; Doc.

Thus, Plaintiff’s cursory analysis of this claimed

error does not show the case could be remanded on the basis
asserted.
B.

RFC Assessment
Plaintiff next asserts that the ALJ erred by failing to

include moderate restrictions in concentration, persistence, or
pace, and social functioning in the RFC and the hypothetical posed

27

to the VE.

(Doc. 9 at 10-12.)

Defendant responds that substantial

evidence supports the ALJ’s RFC assessment.

(Doc. 10 at 15-18.)

The Court concludes Plaintiff has shown error which is cause for
remand.
Plaintiff primarily relies on Ramirez v. Barnhart, 372 F.3d
546, 554 (3d Cir. 2002), for the proposition that limitation to
simple, routine, and repetitive tasks does not reflect moderate
restrictions in concentration, persistence, or pace.
10.)

(Doc. 9 at

Although Plaintiff’s articulation of the issue is vague, the

Third Circuit Court of Appeals clearly addressed the issue of the
need to include limitations in concentration, persistence, or pace
in an RFC assessment or VE hypothetical in Ramirez.
554.

372 F.3d at

The Court explained that the limitation to one to two-step

tasks identified in the VE hypothetical relied upon by the ALJ did
not adequately encompass deficiencies in concentration,
persistence, or pace which the ALJ had found: if the plaintiff
often suffered from the identified deficiencies and they had been
included in the hypothetical, the VE may have changed the answer
regarding whether jobs existed in the national economy that the
plaintiff could perform.

Id.

Ramirez added that

[t]his omission from the hypothetical runs
afoul of our directive in Chrupcala, that a
“hypothetical question must reflect all of a
claimant’s impairments,” Chrupcala [v.
Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)],
as well as our statement in Burns that “great
specificity” is required when an ALJ
incorporates a claimant’s mental or physical
28

limitations into a hypothetical. Burns [v.
Barnhart, 312 F.3d 113, 122 (3d Cir. 2002)].
Indeed, the SSA’s ruling requires a “more
detailed assessment” of the claimant’s mental
limitations at step five of the disability
analysis. See SSR 96-8p (July 2, 1996).
372 F.3d at 554-55.

Ramirez allowed that “there may be a valid

explanation for the omission from the ALJ’s hypothetical but such
an explanation was not contained in the record or apparent on its
face.

Id. at 555.

Defendant responds that Ramirez is distinguishable because in
Ramirez the claimant’s limitations in concentration, persistence,
or pace occurred “often” and here the limitations are considered
moderate.

(Doc. 10 at 16 (citing Ramirez, 372 F.3d at 548; Padilla

v. Astrue, No. 10-CV-4968 ES, 2011 WL 6303248, at *10 (D.N.J. Dec.
15, 2011)).)

As evidence of the significance of the distinction,

Defendant points to McDonald v. Astrue, 293 F. App’x 941, 946-47
(3d Cir. 2008), where a hypothetical limiting an individual to
“simple routine tasks” was found sufficient to account for moderate
limitations in concentration, persistence, or pace.

(Doc. 10 at

16.)
The problem with reliance on McDonald is twofold.

First, the

case is not precedential and the Court of Appeals for the Third
Circuit “steadfastly attempt[s] to discourages District Courts from
relying on nonprecedential opinions.”
266, 279 n.11 (3d Cir. 2008).

Jamison v. Klem, 544 F.3d

Second, many courts have explained

why McDonald is not persuasive, including this Court in Jury v.
29

Colvin, Civ. A. No. 3:12-CV-2002, 2014 WL 1028439, at *11 n.21
(M.D. Pa. Mar. 14, 2014).
The Commissioner relies on a nonprecedential opinion, McDonald v. Astrue, 293
F. App’x 941 (3d Cir. 2008), to establish a
distinction between “moderate” deficiencies
and “often” having deficiencies in
concentration, persistence, or pace. . . . In
McDonald, the Third Circuit found that the
plaintiff had “moderate” deficiencies in
concentration, persistence, or pace, and
noted in a footnote that Ramirez was
distinguishable because the plaintiff in
Ramirez “often” suffered from deficiencies in
concentration, persistence, or pace.
McDonald, 293 F. App’s at 946 n.10. However,
the panel did not address the recent change
in the functional five-point scale used to
assess concentration, persistence, or pace,
which changed the term “often” to “moderate”
at the third level of the five-point scale.
See Strouse v. Asture, No. 07-4514, 2010 WL
1047726, at *6 (E.D. Pa. Mar. 19, 2010); see
also Colon v. Barnhart, 424 F. Supp. 2d 805,
811 (E.D. Pa. 2006) (explaining the changes
to the functional five-point scale). Several
district courts have thus concluded that
“moderate” on the new scale and “often” on
the old scale are equivalent. See Strouse,
2010 WL 1047726, at *6; Colon, 424 F. Supp.
2d at 811; Dynko v. Barnhart, No. 03-CV-3222,
2004 WL 2612260, at *5 (E.D. Pa. Nov. 16,
2004) (considering “often” and “moderate”
impairments equally on a five-point
continuum). Moreover, the court held that
the lack of record evidence for the
plaintiff’s alleged limitations was
dispositive to his claim for social security
benefits, not the distinction between the
“often” suffering from deficiencies or
“moderate” deficiencies. McDonald, 293 F.
App’x at 946. Therefore, the court will
apply Ramirez to the present case.
2014 WL 1028439, at *11 n.21.

As in Jury, the Court finds Ramirez

30

applicable to the facts of this case and concludes that the lack of
specific consideration of concentration, persistence, or pace in
the RFC and hypothetical to the VE is cause for remand.3
Because remand is required on this basis and further VE
testimony is likely required, Plaintiff’s claimed error regarding
her moderate limitation in social functioning should also be
addressed on remand.

Pursuant to Rutherford, 399 F.3d at 554, the

hypothetical posed must “accurately convey to the vocational expert
all of a claimant’s credibly established limitations.”
Plummer, 186 F.3d at 431.)

(citing

To the extent ALJ Burock’s posed

hypothetical included a limitation to “no public interaction” (R.

3

Further, Defendant’s reliance on the ALJ’s discussion of
concentration, persistence, or pace at step three (Doc. 10 at 17)
does not acknowledge that ALJ Burock, citing SSR 96-8p, explained
the distinction between his step three evaluation and later steps
of the evaluation process: the step three determination is not a
residual functional capacity assessment and
the mental residual functional capacity
assessment used at steps 4 and 5 of the
sequential evaluation process requires a more
detailed assessment by itemizing various
functions contained in the broad categories
found in paragraph B . . . . Therefore, the
following residual functional capacity
assessment reflects the degree of limitation
the undersigned has found in the “paragraph
B” mental function analysis.
(R. 22 (emphasis added.) The ALJ’s paragraph B limitations found
at step three included moderation difficulties regarding
concentration, persistence, or pace, and social functioning and a
more detailed assessment of paragraph B limitations is not found
later in the decision. (R. 22-28.)
31

63) but did not include his finding that Plaintiff had moderate
difficulties in social functioning (R. 22), more is needed, i.e,.
the ALJ may further explain the adequacy of the limitation posed in
the hypothetical and show how it satisfies the step five burden or
pose a different, more inclusive hypothetical to a VE.
C.

Symptom Evaluation
Plaintiff presents several bases for this claimed error,

including the misapprehension of the cause of some of Plaintiff’s
symptoms, the significance of a lack of diagnostic imaging or
clinical presentation related to symptoms, consideration of
smoking, and assessment of emergency room treatment for mental
health.

(Doc. 9 at 12-15.)

Defendant maintains that the ALJ

properly evaluated Plaintiff’s subjective complaints.
18.)

(Doc. 10 at

The Court concludes that additional clarification regarding

some matters raised with this claimed error.
The Third Circuit Court of Appeals has made clear that a
reviewing court is to defer to the ALJ’s assessment of credibility.
See, e.g., Zirnsak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014).
Zirnsak cited Diaz v. Comm’r, 577 F.3d 500, 506 (3d Cir. 2009), for
the proposition that “[i]n determining whether there is substantial
evidence to support and administrative law judge’s decision, we owe
deference to his evaluation of the evidence [and] assessment of the
credibility of witnesses.”

777 F.3d at 612.

Zirnsak also made

clear that “the ALJ must specifically identify and explain what

32

evidence he found not credible and why he found it not credible.”
Id. (citing Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994)).
Because the decision under review here was issued on December
2, 2015, SSR 96-7p is the applicable Social Security Ruling
pursuant to the October 25, 2017, republication of SSR 16-3p.
SSR 16-3p, 2017 WL 5180304, at *1 (Oct.25, 2017).

See

Social Security

Ruling 96-7p provides the following guidance regarding the
evaluation of a claimant’s statements about his or her symptoms:
In general, the extent to which an
individual's statements about symptoms can be
relied upon as probative evidence in
determining whether the individual is
disabled depends on the credibility of the
statements. In basic terms, the credibility
of an individual's statements about pain or
other symptoms and their functional effects
is the degree to which the statements can be
believed and accepted as true. When
evaluating the credibility of an individual's
statements, the adjudicator must consider the
entire case record and give specific reasons
for the weight given to the individual's
statements.
SSR 96-7p.

“One strong indication of the credibility of an

individual’s statements is their consistency, both internally and
with other information in the case record.”

SSR 96-7p.

The Social Security Regulations provide a framework under
which a claimant’s subjective complaints are to be considered.
C.F.R. § 404.1529.

20

First, symptoms such as pain, shortness of

breath, and fatigue will only be considered to affect a claimant’s
ability to perform work activities if such symptoms result from an

33

underlying physical or mental impairment that has been demonstrated
to exist by medical signs or laboratory findings.
404.1529(b).

20 C.F.R. §

Once a medically determinable impairment which

results in such symptoms is found to exist, the Commissioner must
evaluate the intensity and persistence of such symptoms to
determine their impact on the claimant’s ability to work.

Id.

In

so doing, the medical evidence of record is considered along with
the claimant’s statements.

Id.

The regulations provide that factors which will be considered
relevant to symptoms such as pain are the following: activities of
daily living; the location, duration, frequency and intensity of
the pain or other symptoms; precipitating and aggravating factors;
the type, dosage, effectiveness and side effects of medications
taken to alleviate symptoms; treatment received other than
medication intended to relieve pain or other symptoms; other
measures used for pain/symptom relief; and other factors concerning
functional limitations and restrictions due to pain or other
symptoms.

20 C.F.R. §§ 404.1529(c)(3)(i-vii), 416.929(c)(3)(i-

vii).
Here ALJ Burock provided multiple reasons for his conclusions
regarding Plaintiff’s subjective symptoms.

(R. 23-25.)

For the

most part, Plaintiff cherry-picks one among many reasons provided
for a finding in an attempt to show error.

(See Doc. 9 at 13-14.)

For example, Plaintiff points to error in the ALJ’s notation that

34

Plaintiff did not require intensive treatment such as emergency
room visits for her mental impairments where this statement was
made in the context of at least ten observations regarding the
reasons ALJ Burock determined these symptoms would not preclude
Plaintiff from being able to perform work activity.
25.)

(See R. 24-

Similarly, the ALJ’s accurate observation that Plaintiff

continued to smoke is found at the end of a lengthy analysis of her
history of COPD complicated by her history of tobacco use.
24.)

(See R.

Plaintiff references the ALJ’s statement regarding the lack

of evidence of severe pathology via diagnostic imaging or clinical
presentation and SSR 96-7p’s prohibition against discrediting
symptoms solely because of a lack of medical evidence, but she does
not identify how the prohibition was violated here.
14.)

(Doc. 9 at 13-

Because ALJ Burock provided a detailed rationale for his

findings in most instances and Plaintiff has not shown error on the
three specific bases for error cited above, the Court concludes the
claimed errors are not cause for remand.
With this conclusion, Plaintiff’s assertion that the ALJ erred
in his assessment of the lack of pain medication relative to her
inability to lift or walk more than two blocks (Doc. 9 at 13)
remains.

In his decision, ALJ Burock stated that Plaintiff

“testified to extreme limitations, such as an inability to lift
greater than 10 pounds or walk more than two blocks, yet she does
not require the use of pain medications.”

35

(R. 23 (citing

Testimony).)

Close scrutiny of the reasons for discounting these

claimed limitations is warranted in that they are central to the
determination of a claimant’s appropriate exertional level when
assessing the RFC.

See 20 C.F.R. § 404.1567.

For the reasons that

follow, the ALJ’s undermining of these limitations because
Plaintiff did not require the use of pain medication and the
inferential attribution of these limitations to pain requires
further consideration and explanation.
At the October 13, 2015, hearing, Plaintiff testified that she
was unable to lift more than ten pounds “because I have –- I also
have a hernia, and my doctor wants to wait until it gets severe
enough.

They’re afraid to put me under again.”

(R. 48.)

She

added that the hernia was diagnosed after her lung surgery in
November 2013.

(Id.)

Although Plaintiff does not identify this

basis for the lifting limitation in her supporting brief (see Doc.
9 at 13), because it is the basis she identified at the hearing,
the ALJ should consider it on remand and, if indicated, explain the
basis for rejecting it.4
Regarding the inability to walk more than two blocks, the
unclear reasons for the limitation exhibited in the testimony
indicate that the fact that Plaintiff does not require pain
medication may not be relevant in that Plaintiff identified the

4

At step two, ALJ Burock found that records show Plaintiff
had numerous other medical conditions, including hernia. (R. 20.)
36

limitation after the ALJ asked how many blocks she could walk “on
level ground, not carrying anything, before you have to stop and
sit down because of shortness of breath, fatigue, weakness, or any
other symptoms.”

(R. 47 (emphasis added).)

The ALJ did not ask

the basis for the limitation but Plaintiff followed her response
that she could walk two blocks with the notation that she had
“metal and six screws holding [her] ankle together.” (Id.)

After

asking a few questions about the ankle injury, the ALJ did not
further pursue the reasons for Plaintiff’s claimed walking
limitation.

(Id.)

Therefore, Plaintiff’s allegation that she has

difficulty walking due to shortness of breath (Doc. 9 at 13) was
not directly explored at the hearing and should not be ruled out as
a basis for the limitation without further explanation.
D.

Step Three Error
Plaintiff argues the ALJ erred because he concluded that

Plaintiff did not meet Listing 12.04.

(Doc. 9 at 15-17.)

Defendant responds that the ALJ correctly found that Plaintiff did
not meet this listing.

(Doc. 10 at 22-27.)

The Court concludes

Plaintiff has not met her burden of showing error on the basis
alleged.
In support of the argument that she meets Listing 12.04,
Plaintiff relies on Ms. Rock’s opinion and her findings that
Plaintiff was unable to meet competitive standards and had no
useful ability to function in numerous areas and her finding that

37

Plaintiff had extreme difficulties in maintaining social
functioning and concentration, persistence, or pace.
16.)

(Doc. 9 at

Insofar as the Plaintiff has not shown that ALJ Burock erred

in his assessment of Ms. Rock’s opinion and his conclusion that it
was entitled to very little weight (R. 25), Plaintiff’s reliance on
it to show that she meets Listing 12.04 does not satisfy her burden
of showing error.
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 consistent with this
Memorandum.

An appropriate Order is filed simultaneously with this

action.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: January 29, 2018

38