Munn-Deblock v. Berryhill

Filing 17

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Plaintiffs appeal is granted and this matter is remanded to the Acting Commissioner for further consideration. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 6/5/18. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANNAMARIE MUNN-DEBLOCK,:
:CIVIL ACTION NO. 3:17-CV-1420
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
Plaintiff,

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 April 17, 2014,
alleging disability beginning on August 30, 2012.

(R. 19.)

After

Plaintiff appealed the initial August 11, 2014, denial of the
claims, a hearing was held by Administrative Law Judge (“ALJ”)
Daniel Balutis on July 21, 2016.

(Id.)

ALJ Balutis issued his

Decision on July 21, 2016, concluding that Plaintiff had not been
under a disability, as defined in the Social Security Act (“Act”)
from August 30, 2012, through the date of the Decision.

(R. 29.)

Plaintiff requested review of the ALJ’s decision which the Appeals
Council denied on June 13, 2017.

(R. 1-5.)

In doing so, the ALJ’s

decision became the decision of the Acting Commissioner.

(R. 1.)

Plaintiff filed this action on August 11, 2017.

(Doc. 1.)

She asserts in her supporting brief that the Acting Commissioner’s
determination should be reversed for the following reasons: 1) the
ALJ erred in rejecting Plaintiff’s treating physician’s opinion;
and 2) the ALJ’s residual functional capacity (“RFC”) finding did
not incorporate all of the limitations attributable to Plaintiff’s
anxiety and panic disorder.

(Doc. 15 at 3.)

For the reasons

discussed below, the Court concludes Plaintiff’s appeal is properly
granted.
I. Background
Plaintiff was born on January 13, 1967, and was forty-five
years old on the alleged disability onset date.

(R. 26.)

She has

a high school education and past relevant work as a unit clerk.
(Id.)

Plaintiff alleged that her inability to work was limited by

anxiety, chronic pain, osteoarthritis, migraine headaches, Raynaud
syndrome, panic disorder, spinal stenosis, ankylosing spondylitis,
shortness of breath, and angina.
A.

(R. 197.)

Medical Evidence
Plaintiff saw her primary care physician, Lisa Pathak, M.D.,

on her alleged disability onset date of August 30, 2012, at which
time Plaintiff reported that her back was worse but the
neurosurgeon did not think it was bad enough for surgery, and her
podiatrist was going to do surgery for toe problems.

(R. 336.)

Plaintiff told Dr. Pathak that she did not feel she could work

2

because she was in constant pain and under constant stress.

(Id.)

Dr. Pathak noted that a bone scan showed “abnormal finding mid
thoracic spine diffusely and increased activity in right toe.”
(Id.)

General examination showed the following: Plaintiff was

tearful and very anxious; she had right scapular, under right
shoulder pain with light palpation and minimal to moderate thoracic
pain to touch; she was sad and tearful, anxious and upset.

(Id.)

Dr. Pathak assessed thoracic spondylosis without myelopathy;
cervical disc herniation with myelopathy; anxiety state,
unspecified; and chronic pain syndrome.

(Id.)

Dr. Pathak noted

that Plaintiff declined Clavil for the cervical disc herniation
because of the possible side effect of weight gain and she would
pursue recommended pain management.

(Id.)

Dr. Pathak recorded

that she wrote a note for short-term disability so that Plaintiff
could get her foot surgery and get pain management under control.
(R. 337.)
Plaintiff sought an extension of her disability at her October
4, 2012, visit with Dr. Pathak because she had not yet seen a pain
management specialist.

(R. 362.)

Dr. Pathak again saw Plaintiff

on October 18, 2012, at which time Plaintiff reported that the
specialist associated the pain she was experiencing with years of
poor posture, she had another MRI on October 17th, and she had
repeat appointments later in the month with Dr. Rohan, an
orthopedist, and Dr. Castro, her pain management specialist.

3

(R.

369.)

Physical examination revealed no abnormalities.

(Id.)

Plaintiff saw Ajay Kumar, M.D., of the Pain and Neuropathy
Center of PA on November 16, 2012, for evaluation of pain in the
right thoracic area, pain in the right arm, and tingling and
numbness in the toes of the lower extremities.

(R. 441.)

He noted

by history that Plaintiff’s MRI showed disc herniations at several
levels of the thoracic spine.

(Id.) Sensory examination to light

touch and pinprick showed significant feeling of paresthesia in the
right forearm and feeling of paresthesia in bilateral dorsum of the
feet and the toes.

(R. 442.)

Examination of the right upper

extremity showed positive Adson test, tenderness along the
periscapular area, and range of motion of the right shoulder of 0130 degrees, minimally painful.

(Id.)

Dr. Kumar also found

miniminal tenderness of the lumbar spine and negative straight leg
raise bilaterally.

(Id.)

He planned to do NCV/EMG of the lower

extremities, MRI of the right brachial plexus, and x-ray of the
cervical spine.

(R. 443.)

On December 7, 2012, Dr. Kumar

explained that the pain was most likely coming from the spine and
he planned to request authorization for a thoracic epidural steroid
injection to help her pain.

(R. 440.)

He also noted “[t]he

patient is temporary [sic] disabled at this point.”

(Id.)

Dr. Pathak’s December 19, 2012, office visit records indicate
Plaintiff again sought extension of her disability.

(R. 371.)

of that time, Plaintiff reported that she had seen Dr. Kumar who

As

4

was trying to determine the cause of her pain and he planned to do
thoracic injections at the end of the month.

(Id.)

Plaintiff

claimed continuing intense pain under her right scapula and right
arm movement caused severe burning wrap-around pain.

(Id.)

Plaintiff also reported stress due to her financial situation.
(Id.)

General examination showed that Plaintiff appeared

uncomfortable, she had obvious pain on palpation just inferior to
right scapula with surrounding spasming, any movement of her right
arm caused complaint of burning pain to the right nipple, Plaintiff
was unable to rotate the right shoulder, and mental status exam was
normal except Plaintiff was tearful at times.

(Id.)

Dr. Kumar administered the steroid injection on January 5,
2013, without complications or side effects.

(R. 437.)

At her

January 18th visit with Dr. Kumar, Plaintiff reported modest relief
from the injection but said she was still in constant pain.
435.)

(R.

He planned to do another injection at a different level to

see if it would better help Plaintiff’s pain.
noted that Plaintiff was temporarily disabled.

(R. 436.)
(Id.)

He again

Plaintiff

had the injection on February 2, 2013, without complications or
side effects.

(R. 434.)

She reported further improvement on

February 8th and received another injection on February 16th.
430, 432.)

(R.

She reported added improvement but said she still had

pain which she rated at six out of ten.

(R. 428.)

Dr. Kumar noted

that Plaintiff remained temporarily disabled and he would follow up

5

with her in six weeks.

(R. 429.)

Plaintiff presented at Dr. Pathak’s office for an update on
disability on February 18, 2013.

(R. 375.)

After reporting that

Dr. Kumar had done three more injections on her thoracic spine, Dr.
Pathak recorded that Plaintiff
states that her job was posted and she now no
longer has a job to go back to. States she
is very upset about it but Dr. Kumar
continued to say she was not able to go back
yet and she has been listening to his
request. She has a person who is in HR that
is helping her to find a new job in the
hospital with a new superior. States that in
order to get this to work out correctly she
needs to be cleared to go back to work by
3/11/13 so that way she can get unemployment
with disability benefits for 6 months.
States that if a job does not show up she
wants to consider going back to school.
States that she is slowly feeling better from
the injections and her range of motion is
getting a lot better. States if she keeps
getting the injections with Dr. Kumar she
feels she will be getting much better and be
able to get back to her regular life.
(R. 375.)

Physical examination showed tenderness to palpation in

the right thoracic region and decreased range of motion of the
right shoulder on abduction and internal and external rotation.
(Id.)
At her March 26, 2013, office visit with Dr. Pathak, Plaintiff
again presented for an update on disability, stating that she
needed additional records.

(R. 381.)

Plaintiff reported that her

depression had been well controlled with Wellbutrin and she stated
that mainly her depression and anxiety was situational related to
6

financial issues while on disability.
findings were not remarkable.

(Id.)

Physical examination

(Id.)

At her April 5, 2013, visit with Dr. Kumar, Plaintiff reported
that the pain had become more intense and she had a new onset of
muscle spasms and pain in the shoulder blade area.

(R. 425.)

Examination showed tenderness along the periscapular area, right
shoulder range of motion of 0 to 30 degrees minimally painful,
restricted range of motion of the cervical spine, multiple trigger
points in the right levator scapulae, rhomboid and trapezius
muscles, and moderate tenderness in the thoracic paraspila area.
(R. 426.)

Dr. Kumar administered trigger point injections.

(Id.)

Though Plaintiff experienced some improvement, she reported 6-7 out
of 10 pain on June 7, 2013, at which time her physical examination
was basically the same as in April.

(R. 424.)

Dr. Kumar advised

Plaintiff to continue with home stretching and strengthening
program and he would reevaluate her in four to six weeks.

(Id.)

Plaintiff returned to Dr. Kumar on July 5, 2013, and requested
injections to help the pain.

(R. 421.)

He indicated that the

injections would be scheduled and Plaintiff was to take Advil and
Motrin on an as-needed basis to help with her pain.

(R. 422.)

In May 2013, Plaintiff told Dr. Pathak that she hoped to stay
on disability through “the end of the summer to be able to get a
couple more injections with Dr. Kumar since they really help.”
385.)

(R.

Dr. Pathak noted that Plaintiff’s thoracic spondylosis was

7

stable, Plaintiff was still on disability due to pain and weakness
in her right upper extremity, and she would continue to get
injections from pain management.

(Id.)

Plaintiff was again seen by Dr. Kumar on July 12, 2013, for an
emergency visit after she fell at a store and experienced
“excruciating” pain (9 out of 10) on the top of the shoulder.
419.)

(R.

Plaintiff reported difficulty moving the shoulder up and

significant worsening of the mid-back pain with radicular symptoms,
and off and on tingling and numbness in the right arm.

(Id.)

Dr.

Kumar noted that Plaintiff had an x-ray of the shoulder which
showed probability of a joint injury.

(Id.)

Dr. Kumar advised

Plaintiff to follow up with an orthopedic surgeon and noted that
further studies may be warranted if her symptoms did not improve.
(R. 420.)
At her next visit on August 2, 2013, Dr. Kumar noted that the
x-ray of the right shoulder did not show any evidence of
significant AC joint injury.

(R. 417.)

Plaintiff reported

improved symptoms but she still had pain in the right shoulder,
pain in the mid-back was doing down to the chest wall, and pain,
tingling and numbenss in the right arm.
as 8-9 out of 10.

(Id.)

(Id.)

She rated her pain

Due to persistent radicular symptoms and

worsening pain, Dr. Kumar recommended another MRI and NCV/EMG
study.

(R. 418.)

He also recommended physical therapy three times

a week for four weeks and follow up with an orthopedic surgeon.

8

(Id.)

Plaintiff told Dr. Kumar that her insurance would not cover

an orthopedic surgeon and she did not know if she could afford it.
(Id.)

He planned to see Plaintiff back in a month.

(Id.)

On August 15, 2013, Plaintiff reported to Dr. Pathak that she
was losing her insurance at the end of the month, she was getting
injections for her back pain “after the slip and fall that happened
at Weiss,” and she was getting pain in her back again which
affected her breathing, and she was very financially stressed.
552.)

(R.

Physical examination was not remarkable; mental status

findings included the notation that Plaintiff was crying and very
emotional.

(Id.)

On August 30, 2013, Dr. Kumar reported that Plaintiff’s midback pain had improved about 50-60% after the last epidural steroid
injection and she was not getting any radicular symptoms down the
chest wall but she was complaining of more pain in the right
shoulder blade area.

(R. 414.)

Dr. Kumar administered trigger

point injections, recommended continuation of home exercise
program, and planned to see Plaintiff again in two months.

(R.

415-16.)
In October 2013, Plaintiff reported to Dr. Pathak that she was
not able to work due to severe anxiety and depression and she
needed a form for short-term disability which would last until
February or March of 2014.

(R. 547.)

Other than a notation that

Plaintiff was “crying and sad” general examination findings were

9

normal.

(Id.)

Disability was again discussed in December 2013

when Plaintiff said she was unable to work because of severe
anxiety, including panic attacks.

(R. 556.)

Plaintiff reported

she was taking Percocet as needed for severe back pain and she
could not afford to see Dr. Kumar.
findings indicated no problems.

(Id.)

General examination

(Id.)

In February 2014, Plaintiff told Dr. Pathak that she was still
very stressed out and “would like to see Kr. Kumar again because
her back was hurting again.”

(R. 554.)

Dr. Pathak recorded that

Plaintiff said her son was having problems with being home schooled
and pornography was found on his computer, she lost her
unemployment, she started getting stabbing pains in the left hip
where she gets ankylosing spondylitis.
findings did not indicate any problems.

(Id.) General examination
(Id.)

Dr. Pathak gave

Plaintiff a prescription for physical therapy and referred her to
Dr. Kumar for further injections.

(R. 555.)

At her May 6, 2014, visit with Dr. Pathak, Plaintiff reported
numerous problems.

(R. 563.)

Dr. Pathak recorded that Plaintiff’s

son ran away from home but was found, her husband lost his job and
had been drinking, Plaintiff was crying and close to having a
nervous breakdown, her hip was very painful and prevented her from
sitting for a long time, her calf was aching, her hands were
“locking up” and she had no strength, she was having memory loss
and trouble concentrating, and she was having problems with

10

insomnia.

(R. 563.)

General examination showed that Plaintiff was

crying, upset, and shaking, and her affect was sad, but she had
good eye contact and normal speech, and she was oriented times
three.

(R. 565.)

no problems.

Extremity and musculoskeletal examination showed

(Id.)

In June 2014, Plaintiff reported to Dr. Pathak that her son
and husband were both working and she was doing better, she did not
want to take the increased medication dosage suggested by the
psychiatrist she had seen, and she continued to complain of leg
pain.

(R. 575.)

General examination showed some point tenderness

in her back and radiation of pain down her leg.

(Id.)

Dr. Pathak

assessed spinal stenosis of the thoracic region, with sciatica
noted to be her working diagnosis.

(Id.)

On July 8, 2014, Plaintiff was seen at Dr. Pathak’s office for
what she believed was a spider bite on her neck.

(R. 579.)

Other

than neck problems, no problems were noted on general examination.
(Id.)

On July 16, 2014, Plaintiff was seen for worsening pain from

the bite.

(R. 581.)

Other than neck problems, the provider did

not report any problems on general examination.

(Id.)

Dr. Pathak

diagnosed cellutis and absess of the neck and planned to get an
MRI.

(R. 582.)
Plaintiff had her first of three visits with neurologist

Kenneth W. Lilik, M.D., on February 18, 2015, on Dr. Pathak’s
referral for complaints of leg and lower back pain.

11

(R. 915.)

Dr.

Lilik noted that Plaintiff had the onset of sharp pain in her left
calf in March 2014 and she developed left hip pain in July 2014
that had been intermittently uncomfortable.

(Id.)

He also noted

that an August 2013 MRI showed thoracic disc herniation between T67, T7-8 and T9-10 and an a June 2014 MRI scan of the left hip
showed no pathologic abnormalities.

(Id.)

Physical examination

indicated straight leg raising caused pain at ninety degrees, left
hip pain upon rotation of the hip, moderately decreased toe tapping
on the left and normal on the right, difficulty walking on toes of
left foot but able to walk on heels of both feet, and sensory exam
normal to light touch.

(R. 916.)

Dr. Lilik noted that the EMG and

nerve conduction study done by him on the same date indicated old
or chronic mild bilateral L4 and left L5 radiculopathies and
suspected left L1 radiculopathy.

(Id.)

His diagnostic impression

included the EMG and nerve conduction study findings, multiple
thoracic disc herniations, migraine, left hip pain, depression, and
history of ankylosing spondylitis.

(R. 916-17.)

On March 6, 2015, Plaintiff saw Shalini Byadgi, M.D., to
establish care.

(R. 589.)

Records indicate that Plaintiff

presented with a history of GERD and back pain, she had the pain
for twelve years but it got worse when she fell on July 8, 2014,
she had been seen by Dr. Dholoki, a Lords Valley psychiatrist, who
presribed Wellbutrin and Xanax, she took Flexeril as needed for
spasm but she took it rarely, she rarely took Percocet, physical

12

therapy did not help at all, and she had constipation for which she
was doing all that she was told to do and was frustrated that she
still had some issues.

(Id.)

Physical examination showed mild

lumbar tenderness, no obvious joint deformity, and normal gait.
(R. 591.)
tearful.

Psychiatric exam showed that Plaintiff was anxious and
(Id.)

No other problems were indicated.

On April 22, 2015, Dr. Lilik saw Plaintiff and sent a report
to her new primary care provider, Dr. Byadgi.

(R. 906.) He

reported that a March 6, 2015, MRI indicated a diffuse bulge at L45 with a left central disc protrusion and mild central canal
stenosis along with left foraminal stenosis.

(R. 906.)

He noted

that Plaintiff had no severe spontaneous headaches since her
February visit when her medication dosage was increased, she had
developed paresthesias in the fingers and toes, and she had
longstanding cervical and shoulder pain.

(Id.)

Examination

findings included no tenderness or anomalies of the spine or
extremities, deep tendon reflexes were mildly decreased at the
quadriceps, absent at the right Achilles tendon and mildly
decreased on the left, and she had difficulty walking on her left
toe and heel due to weakness.

(R. 907.)

Dr. Lilik suggested that

Plaintiff’s diverticulitis be addressed because it was hard to
differentiate whether she was getting progression or improvement of
her low back discomfort when she has exacerbation of the low back
associated with her abdominal problems, she should have a

13

neurosurgical consult because of left lower extremity weakness, and
she should have an EMG and nerve conduction study of the right
upper extremity to determine whether she had cervical
radiculopathy.

(Id.)

On August 21, 2015, Dr. Lilik saw Plaintiff for right elbow
pain, tightness on the right side of her neck, and heaviness in her
right shoulder.

(R. 898.)

He noted that she struck her right

elbow and shoulder in a July 2013 fall and had intermitted elbow
pain since then.

(Id.)

He recorded that Plaintiff had heaviness

when raising her right arm, she had intermittent numbness of the
right thumb, index and middle fingers, and she had difficulty
opening tight bottles.

(Id.)

Following a nerve conduction study

and motor unit examination, Dr. Lilik’s impression was borderline
right ulnar neuropathy at the elbow, suspected mild right C6 or C7
radiculopathy, and motor unit loss in the right abductor pollicis
brevis muscle without a current median neuropathy at the wrist.
(Id.)

In his report to Dr. Byadgi, Dr. Lilik reported that

Plaintiff felt the Topiramate she was taking for low back pain
extending down her legs had reduced her radicular discomfort.
903.)

(R.

He added that she had no side effects of the medication,

standing for five minutes was about as much as she could do, and
she had not had any migraines since starting the Topiramate (which
he had increased in Feburary 2015), but she was having tension
headaches. (Id.)

Dr. Lilik confirmed that Plaintiff had

14

degenerative disease of the spine as well as anxiety and
depression.

(Id.)

Physical examination showed mild weakness of

the right abductor pollicis brevis and mild pain upon palpation of
the right ulnar nerve at the elbow.

(R. 904.)

Dr. Lilik suggested

that Plaintiff avoid leaning on her right elbow, an elbow pad may
be helpful, and she should return to see him in nine months.

(R.

904-05.)
On August 28, 2015, Dr. Byadgi saw Plaintiff for follow up.
(R. 601.)

He noted that since her previous visit Plaintiff had

seen a cardiologist, pulmonologist, and GI specialist.

(Id.)

Review of Systems indicated that Plaintiff reported intermittent
abdominal pain with constipation and she had no other complaints.
(R. 603-04.)

Physical examination showed mild abdominal tenderness

and no other problems were recorded.

(R. 604.)

On September 25, 2015, Plaintiff saw Dr. Biadgi because she
had injured her leg.

(R. 612.)

Other than the wound on her leg,

Reveiw of Systems was negative and physical examination showed no
problems, including no abdominal or lumbar tenderness.
15.)

(R. 614-

Other than sinus problems, no problems were noted on

examination when Plaintiff saw Dr. Biadgi in December 2015.

(R.

631.)
Dr. Biadgi’s office visit records for 2016 are similar to 2015
records.

Plaintiff presented for sinus problems on January 19,

2016, Review of Systems at the time was otherwise negative, and

15

general examination revealed sinus related problems but no other
problems.

(R. 698, 700.)

Plaintiff presented with a rash around

her mouth on February 25, 2016, and Review of Systems was again
negative.

(R. 708, 710.)

Physical examination findings did not

indicate any problems other than “some maculopapular lesions around
mouth.”

(R. 710.)

On April 5, 2016, Plaintiff presented with hand

pain in a follow up from the emergency room, an eye problem, and
flank pain.

(R. 718.)

Review of Systems indicated intermittent

back pain, intermittent headaches, and arthralgias or arthritis.
(R. 720.)

Examination showed eye problems, mild lumbar tenderness,

and normal gait.

(R. 720-21.)

Dr. Biadgi reviewed Plaintiff’s

problems and noted the following under “Assessment/Plan”: regarding
chronic pain, Plaintiff “only takes occasional refill”; regarding
chronic fatigue, future testing was planned; regarding migraine,
they had been stable after her medication dosage was adjusted by
her neurologist in the past; and regarding anxiety, Plaintiff
“occasionally takes, needs refill once in 6 months.”

(R. 721.)

On May 27, 2016, Plaintiff was seen by Daniel Terpstra, D.O.,
at Coordinated Health with the chief complaint of left shoulder and
hand pain subsequent to a fall which occurred several weeks
earlier.

(R. 932-34.)

Review of Systems indicated general

weakness and fatigue, joint pain and swelling, muscle pain and
trouble walking, frequent headaches, chest pain and shortness of
breath, and problems with light household chores and climbing

16

stairs.

(R. 932.)

Shoulder exam showed no tenderness, full range

of motion and strength, pain with flexion, and mild impingement.
(R. 934.)

Plaintiff received an injection of the left subacromial

bursa to address mild rotator cuff tendonitis.

(Id.)

Plaintiff

was referred to John Hernandez, M.D., for treatment of her left
hand.

(Id.)

930.)

He administered an injection to address the hand pain and

finger sprain.

Dr. Hernandez saw Plaintiff on June 13, 2016.

(R.

(R. 931.)

Plaintiff also saw Kristopher Korsakoff, M.D., approximately
nine times from December 2014 to March 2016 for treatment of
constipation and colon polyps.

(R. 819-74.)

Physical examinations

performed at the office visits routinely indicated no neck
problems, no tenderness or other musculoskeletal problems, and
normal mood and affect.

(R. 822, 829-30, 833-34, 838-39, 848, 852,

857, 864-65, 869-70.)
B.

Mental Health Treatment Evidence
On June 10, 2014, Plaintiff was evaluated at Wayne Memorial

Health Centers Behavioral Health Center upon referral of Dr.
Pathak.

(R. 571-74.)

Rashesh Dholakia, M.D., conducted the Adult

Initial Psychiatric Evaluation for medication management.

(Id.)

Plaintiff reported a severely depressed mood (6/10), severe panic
symptoms about two to four times a month for the past two to three
years, and 6/10 anxiety symptoms.

(R. 571.)

Plaintiff said she

had been taking Wellbutrin since 2011 and she had also been

17

prescribed Xanax which she did not take regularly “due to its
addictive properties.”

(R. 572.)

Mental status exam showed

psychomotor retardation, depressed mood, labile affect, linear and
logical thought process, poor self esteem, slightly impaired
concentration, fair impulse control, fair insight and judgment,
fair reliability, and average to above average intelligence.
573.)

(R.

Dr. Dholakia assessed the following: major depressive

disorder, recurrent, moderate without psychotic features;
dysthymia; generalized anxiety disorder; and a GAF of 50-55.
573.)

(R.

Dr. Dholakia recommended adjusting Plaintiff’s medication

regimen, including taking Xanax on a regular basis, and he stressed
the importance of psychotherapy.

(R. 573.)

return to the clinic in four weeks.

Plaintiff was to

(Id.)

Records indicate that Plaintiff was seen on November 5, 2014,
at which time Dr. Dholakia noted a hiatus of almost five months.
(R. 892.)

Plaintiff reported decreased reaction time when taking

Xanax and she avoided taking it when having to drive or needing
full mental alertness.
effects.

(Id.)

(Id.)

She denied other medication side

Mental status exam showed decreased psychomotor

activity, depressed mood, labile affect, linear and logical thought
process, poor self esteem, impaired concentration, fair impulse
control, good insight and judgment, good reliability, and average
to above average intelligence.

(Id.)

Dr. Dholakia again stressed

the importance of psychotherapy which Plaintiff had not yet begun

18

though she had planned to see Ms. Kathleen Dodson.

(R. 893.)

December 15, 2014, Mental status exam was the same (R. 890), and
she showed improved mood/affect and concentration on January 28,
2015 (R. 888).
Dr. Dholakia advised continued regular therapy with Ms. Dodson
and return to the clinic in two months.

(R. 889.)

Improved

mood/affect and attention/concentration were again in April 2015.
(R. 886.)

In July Plaintiff reported more severe and frequent

anxiety and panic attacks related to increased stressors.
884.)

(R.

Mental status exam indicated that her mood was anxious,

attention/concentration were fair, impulsivity/distractibility were
fair, and insight/judgment were good.

(Id.)

On August 26, 2015,

Plaintiff reported improved anxiety with medication change but
increased depression due to ongoing family and medical issues.
881.)

(R.

Mental status was similar to that assess in July except that

Plaintiff’s insight and judgment were found to be fair.

(Id.)

Dr.

Dholakia made similar findings in December and again stressed the
importance of psychotherapy but noted that Plaintiff was “reluctant
at this time.”

(R. 879-80.)

On February 23, 2016, Plaintiff discussed ongoing severe panic
attacks occurring on a regular basis and numerous psychosocial
issues.

(R. 877.)

previous visit.

Mental status exam was basically unchanged from

(Id.)

Dr. Dholakia switched Plaintiff from Xanax

to Klonopin to address anxiety and panic attacks.

19

(R. 878.)

He

also discussed other treatment options for management of anxiety
but Plaintiff was “not willing at this time.”

(Id.)

also refused to pursue the recommended psychotherapy.

Plaintiff
(Id.)

In

May, Plaintiff again reported increased anxiety and panic attacks
related to family problems.

(R. 875.)

Dr. Dholaki adjusted

Plaintiff’s medication regimen and noted she again refused optional
medications due to potential side effects of antidepressants.
876.)

(R.

He noted that Plaintiff planned to pursue family therapy.

(Id.)
C.

Opinion Evidence

1.

Treating Physician Opinion
On February 25, 2015, Lisa Pathak, M.D., completed a Physical

Medical Source Statement of Functional Abilities and Limitations.
(R. 584-88.)

Dr. Pathak noted she had been Plaintiff’s primary

care provider for roughly ten years.

(R. 584.)

She listed the

following diagnoses: L4-5, S1 radiculopathy; ankylosing sondylitis;
right thoracic spondylitis/myelopathy; anxiety/stress/panic
disorder; migraine; and diverticulitis.

(Id.)

Dr. Pathak

indicated Plaintiff’s symptoms were chronic pain, sciatica, panic
disorder, and chronic anxiety, and the symptoms were constant.
584, 586.)

(R.

She elaborated that Plaintiff had pain in her thoracic,

lumbar, cervical areas, and left leg pain from sciatica.

(R. 584.)

Pain was rated at 5-9/10 depending on activity, cold weather made
the pain worse, and overexertion made the pain worse.
20

(Id.)

Dr.

Pathak pointed to the clinical findings and objective signs found
in Dr. Lilick’s consultation/EMG/conduction and previous MRIs from
Newtown Medical Center and Bon Secours Health Center.

(R. 585.)

Dr. Pathak identified Plaintiff’s treatments and medications as
follows: Percocet which caused dizziness, drowsiness, and nausea;
Flexeril which caused dizziness and drowsiness; thoracic
injections; Wellbutrin; and Xanax which caused grogginess and
tiredness.

(Id.)

She opined that Plaintiff’s impairments had

lasted or were expected to last at least twelve months; Plaintiff’s
depression and anxiety affected her physical condition; and her
ability to deal with work stress was severely limited

(R. 585-86.)

Dr. Pathak further opined that Plaintiff could walk two blocks
without rest; she could sit or stand for five minutes at one time
and in an eight-hour day she could sit for less than two hours and
stand/walk for less than two hours total; she needed a job which
allowed her to change positions at will; she would sometimes need
to take unscheduled breaks multiple times during the day for
anywhere from one-half hour to three hours; her legs should be
elevated; she could never lift any weight or use her hands,
fingers, or arms; Plaintiff’s impairments would cause good days and
bad days; and she would likely miss work more than three times a
month.
2.

(R. 586-87.)

State Agency Opinion
On August 11, 2014, Melissa Diorio, Psy.D., a State agency

reviewing psychologist concluded that Plaintiff had mild
21

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

(R. 130.)

Hearing Testimony
At the June 15, 2016, hearing before ALJ Balutis, Plaintiff

testified to extensive limitations related to her physical and
mental impairments.

She said she could not walk for five minutes

due to hip pain, back pain and shortness of breath, she could stand
for five minutes then had to sit down because of hip and back pain,
and she could sit for five to ten minutes due to left hip pain and
leg numbness.

(R. 58-62.)

Plaintiff testified she could

comfortably lift two to four pounds and five pounds would present a
problem because of pain in her upper and lower back.

(R. 63.)

Regarding use of her hands, Plaintiff said she had problems with
both hands and she sometimes dropped things.

(R. 63-64.)

Plaintiff said she was completely unable to bend, stoop, or squat,
and she could walk up stairs with difficulty.

(R. 65.)

She

testified that she had increased symptoms of shortness of breath as
well as hip and back difficulties.

(R. 66.)

Plaintiff also

described very limited daily activities: she read and watched TV
but did no regular household chores except occasional dusting and
she did no yard work.

(R. 69-74.)

Plaintiff identified medication

side effects including memory loss, abdominal issues, slurred

22

speech, excessive fatigue, and dry mouth.

(R. 77-79.)

When the ALJ asked about February 2013 office notes from Dr.
Pathak which related to Plaintiff finding a new job at the hospital
where she had worked and the need to be cleared to go back to work
by March 11, 2013, Plaintiff testified that she did not remember
about it.

(R. 79.)

However, when asked whether there was any time

since August of 2012 that she felt it would be okay to go back to
work, Plaintiff said she wanted to try but could not find anything
she thought she could do.

(R. 79-80.)

By way of example, she said

she thought about going back to deli work that she had done years
before but she did not think she could stand long enough because of
sciatica.

(R. 80.)

The ALJ also asked about notes indicating

Plaintiff was considering going back to school for medical
administration and Plaintiff responded that she would have tried
that but did not because she did not have a vehicle.

(Id.)

ALJ

Balutis also asked Plaintiff about seeing a therapist and Plaintiff
said she had seen Ms. Dodson about six times and stopped for no
particular reason.
D.

(R. 81-82.)

ALJ Decision
In his July 21, 2016, Decision, ALJ Balutis found that

Plaintiff had the following severe impairments: Raynaud’s syndrome;
panic disorder; generalized anxiety disorder; major depressive
disorder; thoracic spondylosis; migraines; gastric ulcer;
gastroesphageal reflux disease (GERD); chronic pain syndrome;

23

osteoarthritis; mild sigmoid diverticulosis; right shoulder joint
injury; tendonitis of left shoulder; chronic lung disease;
borderline right ulnar neuropathy at the elbow; and lumbar
spondylosis and radiculopathy.

(R. 21.)

The ALJ determined that

Plaintiff did not have an impairment or combination of impairments
that met or equaled a listed impairment.

(R. 22.)

ALJ Balutis assessed Plaintiff to have the residual functional
capacity (“RFC”)
to perform light work . . . except she is
limited to frequent overhead reaching on the
right; she is limited to frequent handling
and fingering on the right; she can tolerate
frequent exposure to dust, odors, fumes, or
pulmonary irritants; she is limited to
performing simple, routine tasks; she can
have frequent contact with supervisors,
coworkers, and the public; her time off task
could be accommodated by normal breaks.
(R. 24.)

With this RFC, the ALJ concluded Plaintiff was unable to

perform her past relevant work but jobs existed in significant
numbers in the national economy which she could perform.

(R. 28.)

On this basis, ALJ Balutis determined that Plaintiff had not been
under a disability as defined in the Act from August 30, 2012,
through the date of the decision.

(R. 29.)

II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.1

1

It is necessary for the

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
24

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).

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).
25

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
jobs existed in significant numbers in the national economy which
Plaintiff could perform.

(R. 28.)

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).
26

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

27

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
28

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 reversed for the following reasons: 1) the
ALJ erred in rejecting Plaintiff’s treating physician’s opinion;
and 2) the ALJ’s residual functional capacity (“RFC”) finding did
not incorporate all of the limitations attributable to Plaintiff’s
anxiety and panic disorder.
A.

(Doc. 15 at 3.)

Treating Physician Opinion
Plaintiff first asserts that the ALJ erred in rejecting the

opinion of Plaintiff’s treating physician.

(Doc. 15 at 5.)

Defendant responds that substantial evidence supports the ALJ’s
treatment of Dr. Pathak’s opinion.

(Doc. 16 at 7.)

The Court

concludes this claimed error is cause for remand.
Under applicable regulations and the law of the Third Circuit,
a treating medical source’s opinions are generally entitled to
controlling weight, or at least substantial weight.2
2

See, e.g.,

For claims filed after March 27, 2017, the regulations have
eliminated the treating source rule and in doing so have recognized
that courts reviewing claims have “focused more on whether we
sufficiently articulated the weight we gave treating source
opinions, rather than on whether substantial evidence supports our
decision.” 82 FR 5844-01, 2017 WL 168819, *at 5853 (Jan. 18,
2017). The agency further stated that in its experience in
adjudicating claims using the treating source rule since 1991, the
two most important factors for determining persuasiveness are
consistency and supportability, which is the foundation of the new
regulations. Id. Therefore, the new regulations contain no
automatic hierarchy for treating sources, examining sources, or
reviewing sources, but instead, focus on the analysis of these
29

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

Sometimes called the “treating physician rule,” the

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

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

Cir. 1993); see also Dorf v. Brown, 794 F.2d 896 (3d Cir. 1986).
The regulation addresses the weight to be given a treating source’s
opinion: “If we find that a treating source’s opinion on the
issue(s) of the nature and severity of your impairment(s) is wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in your case, we will give it controlling
weight.”

20 C.F.R. § 404.1527(c)(2).3

factors.

Id.

3

“A cardinal principle

20 C.F.R. § 404.1527(c)(2) states in relevant part:
Generally, we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most
able to provide a detailed, longitudinal
picture of your medical impairment(s) and may
bring a unique perspective to the medical
evidence that cannot be obtained from the
objective medical findings alone or from
reports of individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature
and severity of your impairment(s) is wellsupported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial
evidence in your case record, we will give it
30

guiding disability eligibility determinations is that the ALJ
accord treating physicians’ reports great weight, especially when
their opinions reflect expert judgment based on continuing
observation of the patient’s condition over a prolonged period of
time.”

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

(citations omitted); see also Brownawell v. Commissioner of Social
Security, 554 F.3d 352, 355 (3d Cir. 2008).
Relevant authority makes clear that a treating physician’s
opinion is not always or automatically entitled to controlling
weight.

While the general principle that an ALJ need not cite

every piece of relevant evidence in the record applies in the
treating physician opinion context, the ALJ must adeqautely explain
the reasons for rejecting a treating physician’s opinion.
Fargnoli, 247 F.3d at 42; Sykes v. Apfel, 228 F.3d 259, 266 n.9 (3d
Cir. 2000).

In choosing to reject the treating physician’s

assessment, an ALJ may not make “speculative inferences from
medical reports and may reject a treating physician’s opinion
outright only on the basis of contradictory medical evidence and

controlling weight. When we do not give the
treating source's opinion controlling weight,
we apply the factors listed in paragraphs
(c)(2)(i) and (c)(2)(ii) of this section, as
well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining
the weight to give the opinion. We will always
give good reasons in our notice of
determination or decision for the weight we
give your treating source's opinion.
31

not due to his or her own credibility judgments, speculation or lay
opinion.”

Morales, 225 F.3d at 317 (citing Plummer v. Apfel, 186

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

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

regarding when treating source opinions are entitled to controlling
weight.

1996 WL 374188, at *1.

For an opinion to be “well-

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

SSR 96-2p, at *2.

It is a determination the adjudicator must make “and requires an
understanding of the clinical signs and laboratory findings in the
case record and what they signify.”

Id.

Similarly, whether a

medical opinion “is not inconsistent with the other substantial
evidence in your case record,” 28 U.S.C. § 404.1527(c)(2), is a
judgment made by the adjudicator in each case.

SSR 96-2p, at *3.

The ruling reinforces the need for careful review of an ALJ’s
decision to discount a treating source opinion, with particular
attention paid to the nature of the evidence cited as
contradictory.

Consistent with SSR 96-2p’s explanation of

32

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

Carver v. Colvin, Civ.

A. No. 1:15-CV-00634, 2016 WL 6601665, at *16 (M.D. Pa. Sept. 14,
2016)4 (citations omitted)).

Thus, the reviewing court should

disregard medical evidence cited as contradictory if it is really
lay interpretation or judgment rather than that of a qualified
medical professional.

See, e.g., Carver, 6601665, at *11.

Here ALJ Balutis provided the following assessment of Dr.
Pathak’s opinion:
Lisa Pathak, MD, the claimant’s treating
physician, opined that the claimant has
extreme physical limitations: she can sit or
stand for no more than five minutes at one
time, she can sit for no more than two hours
per workday, she can stand and walk for no
more than two hours per workday, she would
need to rest thirty minutes to three hours
multiple times per hour, she can never lift
even ten pounds, and she would be absent more
than three times per month. She also opined
that the claimant has significant limitations
in concentration and handling stress due to
pain, depression, and anxiety (Ex. 28F).
These opinions receive little weight, as they
are excessive on their face, and they are not
consistent with Dr. Pathak’s treatment
records (Ex. 2F; 4F; 6F; 8F; 10F; 12F; 14F).
According to Dr. Pathak’s records the
claimant’s primary physical complaints were
thoracic and right shoulder pain, which
responded well to injections. Dr. Pathak

4

Magistrate Judge Gerald B. Cohn’s Report and Recommendation
was adopted by United States District Judge Sylvia H. Rambo on
November 7, 2016. Carver v. Colvin, Civ. A. No. 1:15-CV-0634, 2016
WL 6582060 (M.D. Pa. Nov. 7, 2016).
33

also treated the claimant for anxiety and
depression, but the claimant generally had a
normal affect, good eye contact, normal
speech, and appropriate mood and affect. (Ex.
11F; 12F; 14F; 21F; 23F; 25F; 26F).
(R. 27.)
The Court concludes that ALJ Balutis’s evaluation of Dr.
Pathak’s opinion does not comport with the legal requirements set
out above primarily because he does not adequately explain his
determination.

First, ALJ Balutis does not explain why the

opinions provided “are excessive on their face.” (R. 27.)

Such a

conclusory statement is not an explanation for the assessment and
does not provide a basis of support for the decision to assign
little weight to Dr. Pathak’s opinion.
Second, ALJ Balutis’s statement that the opinions “are not
consistent with Dr. Pathak’s treatment records” is supported only
by broad citation to seven exhibits.

(R. 27.)

Because an ALJ’s

general citation to exhibits of record is not adequate evidentiary
support for conclusions, see, e.g., Gross v. Comm’r of Soc. Sec.,
653 F. App’x 116, 121-22 (3d Cir. 2016) (not precedential), ALJ
Balutis’s broad assertion does not support the conclusion that Dr.
Pathak’s opinion is entitled to little weight.

This is

particularly so in that some of the records cited predate the
alleged onset date by a significant amount of time (see, e.g., Ex.
2F [R. 263-66]) and information contained in records near and
following the onset date show objective findings which arguably

34

support limitations assessed (see, e.g., R. 332, 336, 365, 371).
Third, ALJ Balutis’s general statement regarding Plaintiff’s
positive response to injections (R. 27) is also selective reading
of the record in that the evidence review set out above shows that
Plaintiff had some improvement with injections but pain remained
and the effect of the injections diminished.

(See, e.g., R. 418,

425, 428.)
Fourth, the ALJ’s statement about mental health findings is
supported only by broad citation to seven exhibits and does not
acknowledge relevant difficulties established in the record.

(See,

e.g., R. 552, 565.)
Finally, ALJ Balutis cites no specific contradictory evidence.
While evidence which could be characterized as contradictory may
exist, the Court should not re-weigh the evidence, Richardson v.
Perales, 402 U.S. 389, 401 (1971), or provide a basis for upholding
the opinion which the ALJ himself does not, Motor Vehicle Mfgrs.
Ass’n of U.S., Inc. v. State Fweigharm Mut Auto Ins. Co., 463 U.S.
29, 43 (1983); Fargnoli, 247 F.3d at 42; Monsour Med. Ctr. v.
Heckler, 806 F.2d 1185, 1190 (ed Cir. 1986).

It is the ALJ’s

province to identify conflicting records with specificity and
provide reasons for crediting certain objective clinical findings
over others.

See, e.g., Gross, 653 F. App’x at 120-21 (citations

omitted).
The Court cannot say these errors are harmless because Dr.
35

Pathak’s opinion covers a period exceeding the Act’s twelve month
durational requirement.

42 U.S.C. § 423(d)(1)(A).

The Court’s

evidence review indicates that Plaintiff routinely reported
subjective severe symptoms from the alleged onset date through
early 2015.

(See, e.g., R. 336, 417-18. 916-17.)

During this time

period, Dr. Kumar and Dr. Lilik verified symptoms on objective
examination (see, e.g., R. 426, 441, 906, 916) and Dr. Lilik cited
objective diagnostic findings which Dr. Pathak referenced in her
February 25, 2015, opinion (R 585).

While later records do not

consistently show ongoing symptom allegations but rather point to
intermittent complaints and event-induced problems (see, e.g., R.
589, 599, 708, 710, 721), over twelve months had elapsed before
complaints became more sporadic.

In this context it is clear that

a more thorough review of Dr. Pathak’s opinion and adequate
explanation for the weight assigned the opinion are warranted.
Therefore, this matter must be remanded for further consideration.
B.

Residual Functional Capacity
Plaintiff contends that the ALJ failed to incorporate into his

RFC finding all of the limitations attributable to Plaintiff’s
anxiety and panic disorder.

(Doc. 15 at 13.)

Defendant responds

that the ALJ properly considered the effects of these impairments.
(Doc. 16 at 15.)

Because the Court concludes remand is required on

the basis set out above, the issue of the effects of Plaintiff’s
panic attacks and anxiety disorder on her ability to maintain

36

gainful employment should be further explained.

This is so

particularly because additional consideration of the weight
assessed Dr. Pathak’s opinion is required and Dr. Pathak’s opinion
included the conclusion that Plaintiff’s mental impairments
affected her physical condition and her ability to deal with work
stress.

(R. 585.)
V. Conclusion

For the reasons discussed above, Plaintiff’s appeal is granted
and this matter is remanded to the Acting Commissioner for further
consideration.

An appropriate Order is filed simultaneously with

this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: June 5, 2018

37