Avaritt v. Berryhill et al

Filing 16

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes Plaintiffs appeal is properly granted. This matter is remanded to the Acting Commissioner for further consideration consistent with this opinion. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 4/18/18. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RYAN AVARITT,

:
:CIVIL ACTION NO. 3:17-CV-1444
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of 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 July 11, 2014,
alleging disability beginning on March 12, 2013.
later amended the onset date to June 14, 2014.

(R. 16.)
(Id.)

He

After

Plaintiff appealed the initial October 3, 2014, denial of the
claims, a video hearing was held on December 14, 2016, and
Administrative Law Judge (“ALJ”) Patrick S. Cutter issued his
Decision on March 9, 2017, concluding that Plaintiff had not been
under a disability as defined in the Act from June 14, 2014,
through the date of the decision.

(R. 16-27.)

Plaintiff requested

review of the ALJ’s decision which the Appeals Council denied on
July 20, 2017.

(R. 1-6.)

In doing so, the ALJ’s decision became

the decision of the Acting Commissioner.

(R. 1.)

Plaintiff filed this action on August 3, 2017.

(Doc. 1.)

He

asserts in his supporting brief that the Acting Commissioner’s
determination is error for the following reasons: 1) the residual
functional capacity assessment is not supported by substantial
evidence; 2) the ALJ did not properly evaluate Plaintiff’s obesity;
3) the ALJ did not properly weigh opinion evidence; 4) substantial
evidence does not support the ALJ’s finding that Plaintiff’s severe
spine impairment does not meet or equal listing 1.04A; 5) the ALJ’s
multiple errors with symptoms evaluation require reversal; and 6)
substantial evidence does not support the ALJ’s step two
evaluation.

(Doc. 10 at 1-2.).

For the reasons discussed below,

the Court concludes Plaintiff’s appeal is properly granted.
I. Background
Plaintiff was forty-five years old on the amended alleged
onset date of June 14, 2014.

(R. 26.)

He has at least a high

school education and past relevant work as a cashier, grocery
clerk, fast food worker, and nurse assistant.

(R. 25-26.)

Plaintiff alleged that his inability to work was limited by chronic
COPD, bipolar disorder, major depressive disorder, lower back pain,
and arthritis.

(R. 245.)

A. Medical Evidence1
1.

Physical Impairments
Preceding the alleged onset date of June 14, 2014, Plaintiff

1

The following review focuses on those impairments and
evidence related to Plaintiff’s claimed errors.
2

was seen by his primary care provider Thomas P. Kunkle, D.O.

On

February 25, 2014, Dr. Kunkle noted that Plaintiff had extreme
lower back pain from slipped and bulging discs, he had a history of
degenerative disc disease, and he had not been on any pain
medications for the previous year but wanted something for pain.
(R. 442.)

On March 25th, Dr. Kunkle recorded that Plaintiff had

severe edema on his ankles and his back was about the same.
Dr. Kunkle planned to arrange physical therapy.

(Id.)

(Id.)

Plaintiff began physical therapy at the Drayer Physical
Therapy Institute in May 2014.

(R. 427.)

Records indicate that

Plaintiff presented with lumbar spine pain, resultant immobility
and activity of daily life limitations.

(R. 427.)

Plaintiff

attended several physical therapy sessions in May and June (see,
e.g., 395-413), ultimately reporting no improvements in his pain
level (R. 399).

On June 20, 2014, Plaintiff was assessed to have

significant pain symptoms and difficult mobility.

(Id.)

At his

June 27th appointment the therapist noted that Plaintiff was unable
to progress due to his pain level.

(R. 395.)

Plaintiff saw Dr. Kunkle on July 9, 2014, and reported that
physical therapy was not working.

(R. 435.)

In August, Plaintiff

requested that Dr. Kunkle complete disability forms.

(R. 443.)

On September 29, 2014, Spencer Long, M.D., conducted an
internal medicine examination at the request of the Bureau of
Disability Determination.

(R. 464-67.)

3

Dr. Long noted Plaintiff

had lower back pain for over ten years which had gradually gotten
worse.

(R. 464.)

He recorded that MRI showed a slipped disc at

L4-L5 and previous treatment with pain management and nerve
stimulation did not work.

(Id.)

Physical examination showed that

Plaintiff was
obese, slow moving, depressed appearing [and]
uncomfortable. He walks with assistance of a
cane and a limp. He cannot walk on heels or
toes. He cannot squat. Stance normal. He
uses a cane. Needed no help changing for
exam or getting on and off exam table. Able
to rise from chair without difficulty.
(R. 466.)

Other than hip and buttock pain bilaterally with single

leg raise to thirty degrees, systems evaluation was normal.
466-67.)

(R.

Dr. Long’s diagnoses included lower back pain,

degenerative disc disease, and arthritis of the hips and knees.
(R. 467.)
Lumbosacral spine x-ray of September 30, 2014, showed
degenerative changes, spondylolisthesis, and an old compression
fracture.

(R. 468.)

In August 2015, Plaintiff told Dr. Kunkle that he wanted to
talk about trying to make his back and hips better.

(R. 606.)

On

physical examination, Dr. Kunkle noted that Plaintiff was generally
alert and healthy.

(R. 607.)

His diagnoses included generalized

osteoarthritis, and he planned to send Plaintiff to an orthopedist.
(Id.)

Nursing Notes from the office visit indicate that Plaintiff

reported his pain medication was not working and he was having

4

trouble walking.

(R. 614.)

On October 1, 2015, Plaintiff saw Eric Kutz, D.O., of
Arlington Orthopedics for left hand pain, numbness and tingling.
(R. 490-91.)

Evaluation of the left hand showed positive Tinel’s

test at the wrist and elbow, 4/5 grip strength, and diminished
sensation.

(R. 490.)

Dr. Kutz diagnosed carpal tunnel syndrom and

cupital tunnel syndrome.

(R. 491.)

He recommended left cupital

tunnel and carpal tunnel release.

(Id.)

on October 7, 2015.

At his October 22, 2015, post-

(R. 484-85.)

The procedures were done

operative visit with Dr. Kutz, Plaintiff presented with pain (rated
at 10/10) and swelling on the left side.

(R. 487.)

that symptoms were aggravated by daily activities.

He reported
(Id.)

Physical

examination of the left wrist showed decreased active range of
motion and limited strength.

(R. 488.)

Plaintiff was referred to

physical therapy and advised to resume activity as tolerated.
(Id.)
At his October 25, 2015, office visit for a refill of pain
medications, Dr. Kunkle’s physical examination was unremarkable
other than noting obesity and healing surgical scars.

(R. 618.)

Dr. Kunkle noted that the orthopedic surgeon had referred Plaintiff
to a pain center.

(Id.)

Plaintiff was referred to Select Physical

Therapy where he tolerated his initial November 12, 2015, treatment
with minimal complaints of pain.

(R. 495-96.)

Plaintiff

subsequently missed at least two therapy appointments.

5

(R. 493-

94.)
Plaintiff was seen by Paul Ritenour, D.O., at the Fourth and
Diamond Medical Clinic on September 7, 2016.

(R. 646.)

At this

initial visit, Plaintiff subjectively reported that he was
generally healthy.

(R. 646.)

Physical examination did not reveal

any musculoskeletal problems, and Dr. Ritenour noted that he would
recheck Plaintiff in two weeks.

(R. 646.)

Records indicate that Dr. Ritenour referred Plaintiff to the
Mansfield Pain Clinic where Plaintiff had his initial visit with
Ali Rao, M.D., on September 16, 2016.

(R. 647.)

Physical

examination showed that Spurling and Hoffman tests were negative
bilaterally, cervical facet tenderness was positive bilaterally,
straight leg raise was positive on the right, lumbar facet
tenderness was positive bilaterally, and lumbar facet loading test
was positive bilaterally.

(R. 650.)

Dr. Rao diagnosed the

following: radiculopathy of the cervical region, spondylosis of the
cervical region, other cervical disc degeneration, radiculopathy of
the lumbar region, spondylosis of the lumbosacral region, spinal
stenosis of the lumbar region, other interverebral disc
degeneration of the lumbar region, and other vertebral disc
displacement of the lumbar region.

(R. 651.)

Dr. Rao prescribed

Percocet for moderate to severe pain, Topamax for neuropathic pain,
and Flexeril for muscle cramps/spasms.

(Id.)

bilateral lumbar medial branch blocks.

(Id.)

6

He also recommended

Dr. Ritenour saw Plaintiff again on September 20, 2016, and
recorded no objective problems.

(R. 645.)

As with the previous

visit, back examination revealed no tenderness, and Plaintiff had
free range of motion of his extremities and no deformities, edema
or erythema.

(Id.)

At his October 18, 2016, visit with Dr. Rao, Plaintiff
received lumbar facet injections to address lumbar spondylosis and
lumbar degenerative disc disease.

(R. 658.)

At his November 1st

visit, Plaintiff did not have the scheduled second injections
because the first had not helped.

(R. 665.)

Plaintiff continued

to report pain in his neck, low back, hips, and knees.

(R. 663.)

December 8, 2016, x-ray of the lumbar spine showed
degenerative disc disease with a grade 1-2 spondylolisthesis L5 on
S1.

(R. 667.)

2.

Mental Impairments
Plaintiff was seen by providers including Maribeth Bucher,

CRNP, at Holy Spirit Hospital in Camp Hill, Pennsylvania, preceding
his amended alleged onset date of June 14, 2014.

On March 13,

2014, she noted no problems in her mental status examination and
specifically stated that Plaintiff was in a much better frame of
mind.

(R. 367.)

July 2014.

No mental status findings were recorded in May or

(R. 366, 432.)

At his September 30, 2014, visit to Holy Spirit, fair hygiene,
blunted affect, and anxious/depressed mood were noted.

7

(R. 515.)

Mental status examination was otherwise normal.

(Id.)

His exam

was similar in October but in November his mental status exam was
normal other than the notation of fair hygiene.

(R. 513, 514.)

Blunted affect and depressed mood were again noted in February
2015.

(R. 509.)

Records indicate that Plaintiff was “no show” for

his April and June 2015 visits.

(R. 509, 510.)

On September 29, 2014, Michael Caiazzo, Psy. D., performed a
consultative psychiatric evaluation.

(R. 456-60.)

Plaintiff

reported that he was residing with his partner and he had most
recently been employed as a cashier and stocker at a convenient
store for three months but he left because it was too painful.
456.)

(R.

Dr. Caiazzo noted that Plaintiff was cooperative, he used a

cane, and wore a back brace.

(R. 457.)

Mental status examination

revealed the following: Plaintiff’s thought process was coherent
and goal directed; his affect was of full range and appropriate in
speech and thought content; his mood was euthymic; his attention
and concentration were impaired due to nervousness; his recent and
remote memory skills were impaired due to nervousness; his
cognitive functioning was average; and his insight and judgment
were fair.

(R. 458.)

Dr. Caiazzo stated that the results of the

evaluation appeared to be consistent with psychiatric problems
which could significantly interfere with Plaintiff’s ability to
function on a daily basis.

(R. 459.)

He recommended that

Plaintiff continue with medication management and that he receive

8

weekly outpatient therapy.
On March 26, 2016, Plaintiff sought emergency treatment at
OhioHealth Hospitals in Mansfield, Ohio, because he was “severely
depressed” and suicidal.

(R. 522.)

Plaintiff reported he had

relocated to Ohio from Pennsylvania in November 2015 and had not
taken any psychiatric medications since then.

(Id.)

Mental status

examination showed that Plaintiff was alert and oriented to time,
place, and person; his hygiene, dressing, and grooming were
unkempt; his mood was irritable with congruent affect; he reported
recurrent intrusive thoughts of suicide and wanting to take an
overdose but also stated he did not intend to take an overdose or
do anything to hurt himself; his attention span was poor; his
memory for recent and immediate events was poor; his IQ was average
as was his general fund of knowledge; and his insight and judgment
were poor.

(R. 523.)

Major depression, recurrent, severe, and

noncompliance with treatment were diagnosed.

(Id.)

Inpatient

treatment was recommended by the consulting physician and it was
estimated that he would be hospitalized for five to seven days.
On March 27th Plaintiff demanded to go home and he

(R. 524, 540.)

reported that he had not gotten his pain medication.

(R. 531.)

Notes of the same date indicate Plaintiff had not had any narcotic
pain medication since he moved to Ohio.

(Id.)

Plaintiff was

discharged on March 30, 2016, with improved mental status
examination.

(R. 525.)

Plaintiff was counseled about the

9

importance of medication and appointment compliance.

(Id.)

Following his hospital discharge, Plaintiff had an Initial
Psychiatric Evaluation at Catalyst Life Services on April 14, 2016.
(R. 570.)
BC.2

The evaluation was conducted by Debbie Marshall, PMHNP-

(See R. 576.)

Plaintiff said he had many life stressors over

the preceding three years, he was living with his daughter and her
family but was not happy about it, he would be OK if her were on
his own, his chronic pain increased his irritability, and he had no
income or benefits aside from a medical card and food stamps.
(Id.)

He noted that one stressor was the death of his partner

eighteen months earlier and he had not maintained steady employment
or stable housing since then.
that some of the

(R. 567, 570.)

Plaintiff reported

medications prescribed during his hospitalization

were helping but he still had irritability.

(Id.)

He also

reported decreased sleep, amotivation, anergia, and crying spells.
(Id.)

Mental status exam showed average eye contact and activity,

clear speech, logical thought processes, cooperative behavior, and
no report of impaired cognition.

(R. 573.)

His diagnois was

unspecified depressive disorder and unspecified personality
disorder.

(R. 575.)

Plaintiff’s list of medical problems included

a history of diabetes that was controlled by diet at the time of

2

“PMHNP-BC” is the designated title for “Psychiatric-Mental
Health Nurse Practitioner–-Board Certified.”
https://nursinglicensemap.com/.../psychiatric-and-mental-healthnurse-practioner-pm.
10

intake, and a history of hypertension, thyroid dysfunction, heart
problems, and diverticulitis.

(R. 572.)

Ms. Marshall saw Plaintiff on April 25th, May 25th, and June
27th, and recorded similar problems with Plaintiff’s living
situation.

(R. 577, 580, 583.)

concerns at these visits.

(Id.)

He reported no new medical
On June 27, 2016, Ms. Marshall

noted that Plaintiff was pursuing disability, he was “referred for
vocational,” and hoped to get a part-time job the following week.
(R. 583.)
B.

Opinion Evidence

1.

Physical Ability Opinions
Dr. Kunkle completed a Medical Source Statement of Ability to

Do Work-Related Activities (Physical) on August 1, 2014.
47.)

(R. 444-

He opined that Plaintiff could never lift or carry any

weight; because Plaintiff “needs to lie down” he could sit for one
hour and stand/walk for fifteen minutes at one time without
interruption and in an eight-hour day he could sit for a total of
two hours and stand/walk for a total of thirty minutes; he
medically required the use of a cane; and the identified
limitations were supported by MRI showing spondylolisthesis at L5S1.

(R. 444-45.)

Of the identified postural activities, Dr.

Kunkle determined that Plaintiff was precluded from all except
climbing stairs and ramps which he could only do occasionally.
446.)

Dr. Kunkle further opined that Plaintiff could perform

11

(R.

activities like shopping, he could travel without a companion for
assistance, he was able to ambulate without using a wheelchair,
walker, two canes or two crutches, he could not walk a block at a
reasonable pace on rough or uneven surfaces, he could use standard
public transportation, he could climb a few steps at a reasonable
pace with the use of a single handrail, he could prepare a simple
meal, care for his personal hygiene, and sort, handle and use paper
files.

(R. 447.)

Finally, Dr. Kunkle noted that the limitations

had lasted or were expected to last for twelve consecutive months.
(Id.)
On the same date, Dr. Kunkle completed a Lumbar Spine Residual
Functional Capacity Questionnaire.

(R. 448-55.)

He found

Plaintiff more limited on this form, opining that Plaintiff could
only sit for fifteen minutes before needing to get up rather than
the one hour previously noted.

(R. 445, 449.)

Dr. Kunkle noted

that surgery was not recommended for the spondyloslisthesis and
pain management but orthopedic consult was recommended.

(R. 448.)

He indicated that Plaintiff had constant low back pain which
radiated to both lower extremities, the pain was aggravated by
standing and walking, and he had an abnormal gait.

(R. 449.)

Dr.

Kunkle also opined that Plaintiff could continuously use his hands
and could use his feet of operation of foot controls occasionally.
(R. 454.)
On September 26, 2014, Dr. Long, the consulting examiner,

12

found that Plaintiff had the following abilities: he could
frequently lift/carry up to ten pounds, occasionally up to twenty
pounds, and never over that due to back and neck pain; he could
sit/stand/walk for twenty minutes without interruption and he could
sit for six hours total in an eight-hour day and stand/walk for two
hours total.

(R. 470.)

Dr. Long noted that Plaintiff required the

use of a cane to ambulate, it was medically necessary, and he could
walk ten feet without it.

(Id.)

Regarding the use of his hands,

Dr. Long opined that, because of neck pain, Plaintiff could use his
hands occasionally for overhead reaching and frequently use them
for all other identified activities.

(R. 471.)

Dr. Long

determined that Plaintiff could frequently use his feet for the
operation of foot controls, he could occasionally climb
stairs/ramps and balance, and he could never perform other
identified postural activities.

(R. 471-72.)

postural limitations to back pain.

(R. 472.)

He attributed
Dr. Long opined that

Plaintiff could not perform activities like shopping, travel
without a companion, or walk a block at a reasonable pace on rough
or uneven surfaces.
2.

(R. 474.)

Mental Impairment Opinions
On September 29, 2014, Dr. Caiazzo completed a Medical Source

Statement to Do Work-Related Activities (Mental).

(R. 461-63.)

Based on a history of learning support when Plaintiff was a
student, Dr. Caiazzo opined that Plaintiff had mild limitations in

13

all areas identified in relation to understanding, remembering, and
carrying out instructions.

(R. 461.)

He also found that Plaintiff

had marked limitations in the three categories identified related
to his ability to interact appropriately with supervisors, coworkers, and the public as well as respond to changes in the
routine work setting.

(R. 462.)

Dr. Long stated that these

limitations were due to Plaintiff’s daily depression and manic
symptoms.

(Id.)

He noted that the depression began at age eleven

or twelve and the mania at age thirty-six.

(Id.)

On October 1, 2014, Richard Williams, Ph.D., a non-examining
Disability Determination Services psychologist, found that
Plaintiff had the severe impairment of affective disorders, mild
restrictions in activities of daily living, moderate difficulties
in maintaining social functioning, moderate difficulties in
maintaining concentration, persistence, or pace, and no repeated
episodes of decompensation, each of extended duration.

(See R. 81-

82.)
Ms. Marshall, a treating provider beginning on April 14, 2016,
completed a Mental Impairment Questionnaire on July 12, 2016.
553-58.)

(R.

She identified diagnoses of Depressive Disorder, NOS, and

Personaliy Disorder, NOS.

(R. 553.)

She noted that Plaintiff was

taking Trazadone, Lexapro, and Risperdal with no side effects
reported.

(Id.)

She opined that Plaintiff’s prognosis was fair

with continued treatment, “especially routine psychotherapy as the

14

bulk of his distress is situational.”

(R. 553.)

She found that

Plaintiff experienced the following symptoms: thoughts of suicide;
feelings of worthlessness; mood disturbance; emotional withdrawal
or isolation; intense and unstable interpersonal relationships;
impulsive and damaging behavior; emotional lability; sleep
disturbance; and recurrent severe panic attacks.

(R. 554.)

Regarding mental abilities and aptitudes needed to do unskilled
work, Ms. Marshall found that Plaintiff was unlimited or very good
in seven of the sixteen identified categories and was limited but
satisfactory in the other nine categories.

(R. 555.)

She also

found Plaintiff to be limited but satisfactory in his abilities and
aptitudes needed to do semiskilled and skilled work.

(R. 556.)

Ms. Marshall opined Plaintiff had at most mild restrictions in his
activities of daily living, moderate difficulties in maintaining
social functioning and maintaining concentration, persistence or
pace, and one or two episodes of decompensation within a twelve
month period, each of extended duration.
C.

(R. 557.)

ALJ Decision
In his March 9, 2017, Decision, ALJ Cutter concluded that

Plaintiff had the severe impairments of degenerative disc disease
of the lumbar spine, coronary artery disease, osteoarthritis of the
hips and knees, obesity, depression, and anxiety.

(R. 18.)

determined that Plaintiff had the non-severe impairments of

He

diabetes mellitus, migraine headaches, and left carpal tunnel

15

syndrome.

(R. 19.)

ALJ Cutter found that Plaintiff did not have

an impairment or combination of impairments that met or equaled a
listing.

(Id.)

ALJ Cutter determined Plaintiff had the residual functional
capacity to perform sedentary work
except he can continuously sit. The claimant
is limited to occasional standing, walking,
overhead reaching, bilaterally, climbing of
ramps and stairs, or balancing. He can
frequently reach, handle, finger, feel, push
and pull bilaterally, and use foot controls
bilaterally. The claimant should never climb
ladders, ropes or scaffolds. He should never
stoop, kneel, crouch, or crawl. The claimant
should never work at unprotected heights,
contact moving mechanical parts, or operate
motor vehicles. He should never tolerate
exposure to dust, fumes, gases, temperature
extremes or vibration. Furthermore, the
claimant can perform routine, repetitive one
to two step type tasks. He can occasionally
interact with the public, co-workers and
supervisors. The claimant can perform work
involving occasional changes in work
situations in routine work settings.
(R. 22.)

In explaining his RFC, ALJ Cutter assigned limited weight

to the opinions of Dr. Kunkle and Dr. Caiazzo.

(R. 25.)

He

assigned significant weight to the opinions of Dr. Williams, Dr.
Long, and Ms. Marshall.

(Id.)

After finding that Plaintiff was unable to perform past
relevant work, the ALJ concluded that jobs existed in significant
numbers in the national economy which Plaintiff could perform.
26.)

He therefore found that Plaintiff had not been under a

(R.

disability as defined in the Act from June 14, 2014, through the
16

date of the decision.

(R. 27.)

II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.3

It is necessary for the

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.

3

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
17

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

20 C.F.R. § 404.1520(e); 416.920(e).

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

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

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

If the claimant satisfies this burden, then the Commissioner

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

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

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

(R. 26.)

III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.

18

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).
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
19

approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

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

In Cotter, the Circuit Court clarified that the ALJ must

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

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.

See, e.g., Knepp v.

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

Hartranft,

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

“However,

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

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d
20

Cir. 1983) (internal quotation omitted).

Where a claimed error

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

Finally,

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

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

As set out above, Plaintiff asserts the Acting Commissioner’s
determination is error for the following reasons: 1) the residual
functional capacity assessment is not supported by substantial
evidence; 2) the ALJ did not properly evaluate Plaintiff’s obesity;
3) the ALJ did not properly weigh opinion evidence; 4) substantial
evidence does not support the ALJ’s finding that Plaintiff’s severe
spine impairment does not meet or equal listing 1.04A; 5) the ALJ’s
multiple errors with symptoms evaluation require reversal; and 6)
substantial evidence does not support the ALJ’s step two
evaluation.
A.

(Doc. 10 at 1-2.).

Step Two Evaluation
Plaintiff asserts that the ALJ’s step two evaluation is not

supported by substantial evidence because ALJ Cutter determined
that his left carpal tunnel syndrome and migraine headaches were
non-severe impairments.

(Doc. 10 at 25.)

Though Plaintiff

references both impairments, his argument addresses only carpal
tunnel syndrome.

(Id. at 26-27; Doc. 15 at 1-2.)
21

Defendant

responds that remand on the claimed basis is not warranted because
the ALJ proceeded beyond step two and properly considered
Plaintiff’s work-related functional limitations.
18.)

(Doc. 14 at 16-

The Court concludes Plaintiff has not shown that remand is

warranted on the basis claimed.
If the sequential evaluation process continues beyond step
two, a finding of “nonsevere” regarding a specific impairment at
step two may be deemed harmless if the functional limitations
associated with the impairment are accounted for in the RFC.
Salles v. Commissioner of Social Security, 229 F. App’x 140, 145
n.2 (3d Cir. 2007) (not precedential) (citing Rutherford v.
Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)).

In other words,

because the outcome of a case depends on the demonstration of
functional limitations rather than a diagnosis, where an ALJ
identifies at least one severe impairment and ultimately properly
characterizes a claimant’s symptoms and functional limitations, the
failure to identify a condition as severe is deemed harmless error.
Garcia v. Commissioner of Social Security, 587 F. App’x 367, 370
(9th Cir. 2014) (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir.
2007)); Walker v. Barnhart, 172 F. App’x 423, 426 (3d Cir. 2006)
(not precedential) (“Mere presence of a disease or impairment is
not enough[;] a claimant must show that his disease or impairment
caused functional limitations that precluded him from engaging in
any substantial gainful activity.”); Burnside v. Colvin, Civ. A.

22

No. 3:13-CV-2554, 2015 WL 268791, at *13 (M.D. Pa. Jan. 21, 2015);
Lambert v. Astrue, Civ. A. No. 08-657, 2009 WL 425603, at *13 (W.D.
Pa. Feb. 19, 2009).
Plaintiff merely states that he was diagnosed with carpal
tunnel syndrome, Dr. Kutz performed a release, and Plaintiff had
four occupational therapy sessions following the release.
at 26; Doc. 15 at 1-2.)

(Doc. 10

He does not identify any functional

limitations not addressed at later stages of the sequential
evaluation process.

(See id.)

Therefore, Plaintiff has not

satisfied his burden of showing harmful error related to the ALJ’s
finding that his carpal tunnel syndrome was non-severe.
B.

Step Three Evaluation
Plaintiff contends the ALJ erred at step three in that

substantial evidence does not support his finding that Plaintiff’s
severe spine impairment does not meet listing 1.04A.
19.)

(Doc. 10 at

Defendant responds that the evidence does not document the

specific findings required for listing-level severity.
18.)

(Doc. 14 at

The Court concludes Plaintiff has not shown the ALJ erred on

the basis alleged.
Listing 1.04 provides:
Disorders of the spine (e.g., herniated
nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative
disc disease, facet arthritis, vertebral
fracture) resulting in compromise of a nerve
root (including the cauda equina) or the
spinal cord. With:

23

A. Evidence of nerve root compression
characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is
involvement of the lower back, positive
straight-leg raising test (sitting and
supine); or
B. Spinal arachnoiditis, confirmed by an
operative note or pathology report of tissue
biopsy, or by appropriate medically
acceptable imaging, manifested by severe
burning or painful dysesthesia, resulting in
the need for changes in position or posture
more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in
pseudoclaudication, established by finding on
appropriate medically acceptable imaging,
manifested by chronic nonradicular pain and
weakness, and resulting in inability to
ambulate effectively, as defined in 1.00B2b.
20 C.F.R. Pt. 404, Subpt. P, App. 1.
In Jones v. Barnhart, 364 F.3d 501 (3d Cir. 2004), the Third
Circuit Court of appeals emphasized that “‘[f]or a claimant to show
his impairment matches a listing, it must meet all of the specified
medical criteria.

An impairment that manifests only some of those

criteria, no matter how severely, does not qualify.’”
(quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)).

Id. at 504
Jones also

stated that there is no particular language or format that an ALJ
must use so long as there is “sufficient development of the record
and explanation of findings to permit meaningful review.”
505.

Id. at

This principal was applied to Listing 1.04A in Johnson v.

Comm’r of Soc. Sec., 263 F. App’x 199, 202-03 (3d Cir. 2008) (not
24

precedential), where the Circuit Court noted that there was no
evidence of motor loss and, thus, the plaintiff did not qualify as
disabled under the listing.

Similarly, in Garrett v. Comm’r of

Sec. Sec., 274 F. App’x 159, 163 (3d Cir. 2008), the ALJ’s finding
that the claimant did not meet Listing 1.04A was found to be
supported by substantial evidence where the plaintiff failed to
point to evidence of nerve root compression.
in Hernandez v. Comm’r

Furthermore, as noted

of Soc. Sec., 198 F. App’x 230, 235 (3d

Cir. 2006) (not precedential), if the ALJ finds no documentation of
required signs, there is nothing more he could have discussed and a
plaintiff’s complaint of inadequate discussion is without merit.
Here ALJ Cutter specifically considered listing 1.04 and
concluded the evidence did not show that Plaintiff met or equaled
the requirements of the listing.

(R. 19.)

In his supporting

brief, Plaintiff points to clinical findings of lumbar facet
tenderness and positive straight leg raise on the right as well as
his need to use a cane.

(Doc. 10 at 20.)

By way of example,

Defendant argues Plaintiff has not shown that he meets the listing
requirements because he “does not assert and the record does not
show any ‘motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss.’”

(Doc. 14

at 20 (quoting 20 C.F.R. 20 C.F.R. Pt. 404, Subpt. P, App. 1).)
his reply brief, Plaintiff reiterates clinical and diagnostic
findings but he does not address the lack of evidence cited by

25

In

Defendant.

(See Doc. 15 at 2-3.)

Thus, Plaintiff has not met his

burden of showing that he meets all of the requirements of listing
1.04A and remand is not warranted on the basis alleged.
C.

RFC Assessment
Plaintiff cites numerous bases for his claimed RFC error.

The

Court will address each in turn.
1.

Cane Use
Plaintiff first argues that the ALJ erred by failing to make a

finding about his use of a cane, and the ALJ rejected Plaintiff’s
need to use a cane while standing without adequate explanation.
(Doc. 10 at 9.)

Defendant provides a two-pronged response: first,

the ALJ’s RFC assessment allows Plaintiff to “‘continuously sit,’
thus obviating his need for a cane” (Doc. 14 at 22 (citing R. 22));
second, Plaintiff’s need for a cane is contradicted by the record
and the ALJ had no duty to include it in the RFC (id.).

In his

reply brief, Plaintiff again points to the ALJ’s failure to provide
a valid explanation for rejecting the need to use a cane, but he
does not address Defendant’s first argument regarding the RFC
assessment that Plaintiff was limited to light work where he would
“continuously sit.”

(See Doc. 15 at 3.)

The Court concludes the

ALJ did not provide an adequate explanation for his finding
regarding Plaintiff’s medical need for a cane.
In his discussion of Plaintiff’s osteoarthritis of the hips
and knees, ALJ Cutter stated that Plaintiff
26

testified that he uses a cane all the time .
. . . However, the claimant’s alleged
medical need for a cane is found not
persuasive. On September 29, 2014, Dr. Long
stated that there is no evident joint
deformity (Exhibit C9F/3 [R. 466]). Dr. Long
also stated that the claimant’s joints are
stable and non-tender (Exhibit C9F/3 [R.
466]). There is no indication in the medical
evidence of a record that the claimant has
had any surgeries related to osteoarthritis
of the hips and knees.
(R. 24.)
Plaintiff does not consider this a valid explanation for
rejecting the medical need for a cane (Doc. 10 at 9; Doc. 15 at 3),
and the Court agrees.

First, pursuant to Third Circuit precedent,

the ALJ was obligated to consider all probative evidence on the
issue and explain the weight given to all probative exhibits.
Burnett, 220 F.3d at 119-20; Dobrowolsky, 606 F.2d 403, 406;
Cotter, 642 F.2d at 706-07.

The ALJ did not do so in that he did

not acknowledge Dr. Kunkle’s opinion and Dr. Long’s opinion that
Plaintiff’s need for a cane was medically necessary.
470.)

(See R. 445,

Second, his explanation encompasses the supposition that the

medical need for use of a cane had to be predicated on joint
deformity, non-stable and tender joints, or surgeries related to
osteoarthritis of the hips and knees.

(R. 24.)

As no medical

evidence supports the relationship inferred by ALJ Cutter, the
Court cannot say his conclusion regarding Plaintiff’s need for a
cane is supported by substantial evidence.

Insofar as the ALJ’s

discussion of the need for a cane is also predicated only on
27

osteoarthritis, he does not contemplate the effects of other
impairments, including lumbar disc disease and obesity as well as
Plaintiff’s related documented complaints of pain, on Plaintiff’s
ability to ambulate effectively without an assistive device.
Defendant’s argument that the RFC assessment allowing
Plaintiff to “continuously sit” obviates his need for a cane (Doc.
14 at 22) relates to the harm associated with the ALJ’s finding.
The Court cannot consider this a harmless error because the RFC
also allowed that Plaintiff could occasionally stand and walk (R.
22), Dr. Kunkle found that Plaintiff had to use a cane “while
engaging in occasional standing/walking” (R. 450), and Dr. Long
determined that Plaintiff’s medically necessary use of a cane
precluded him from carrying small objects with his free hand (R.
470).

Without discussion of these matters, further consideration

of harm associated with the ALJ’s cane analysis is not warranted.
Therefore, Plaintiff’s claimed error regarding the ALJ’s analysis
of the medical need for a cane is cause for remand.

Upon remand,

full consideration of all probative evidence on the issue must be
undertaken, including medical source opinions relative to the
necessity of a cane, and reassessment of what appears to be the
ALJ’s lay opinion on the bases for finding the medical need for a
cane not persuasive.
2.

Concentration and Persistence Difficulties
Plaintiff next asserts that the ALJ erred by failing to

28

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

(Doc. 10 at 10.)

Defendant responds that the ALJ

adequately accounted for these limitations.

(Doc. 14 at 23-27.)

Because remand is required for the reasons discussed above, the
Court concludes detailed discussion of the issue is not warranted
and this aspect of the ALJ’s decision should be addressed upon
remand.
In brief, Plaintiff primarily relies on Ramirez v. Barnhart,
372 F.3d 546, 554 (3d Cir. 2002), for the proposition that
limitation to routine, repetitive one to two step tasks does not
reflect moderate restrictions in concentration, persistence, or
pace.

(Doc. 10 at 10.)

Although Plaintiff’s discussion of the

issue is brief, 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.

372 F.3d at 554.

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.

29

Id.

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. 14 at 23-24 (citing Ramirez, 372 F.3d at 552-55).)

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. 14 at

24.)
Many courts have explained why McDonald is not persuasive,
including this Court in Jury v. 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
30

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

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 should be addressed on remand.
3.

Ability to Stoop
Plaintiff argues that ALJ Cutter erred when he determined that

Plaintiff could do sedentary work despite his finding that
Plaintiff could never stoop because an inability to stoop can
significantly erode the unskilled sedentary occupational base.
(Doc. 10 at 11 (citing SSR 96-9p).)

Defendant responds that SSR

96-9p acknowledges that there are some sedentary jobs that do not
require stooping.
374185, at *6).)

(Doc. 14 at 27 (citing SSR 96-9p, 1996 WL
The Court concludes this claimed error is not

cause for remand.
31

SSR 96-7p states that “a complete inability to stoop would
significantly erode the unskilled sedentary occupational base and a
finding that the individual is disabled would usually apply.”

1996

WL 374185, at *8.
The Court finds it significant that SSR 96-7p uses the
qualifying “usually,” particularly in light of the fact that the
ALJ relied on vocational testimony which included consideration of
a hypothetical individual with Plaintiff’s vocational profile who
could perform sedentary work with certain limitations (see R. 5051).

Further, the Court concludes Plaintiff has not sufficiently

developed his argument on this issue including his failure to
address adequate specifics of his case.

Therefore, the Court does

not find error on the basis alleged.
D.

Obesity
As discussed above regarding ALJ Cutter’s assessment of

Plaintiff’s use of a cane, the combined effects of Plaintiff’s
impairments, including obesity, should be considered on remand.
Because remand is required and Plaintiff points to inadequacies in
the consideration of obesity regarding sitting limitations (Doc. 10
at 12-14; Doc. 15 at 4-5), a more thorough analysis of the effects
of Plaintiff’s obesity should be undertaken upon remand.
E.

Opinion Evidence
Because this matter must be remanded for the reasons

previously identified, extensive discussion of the claimed errors

32

related to opinion evidences is not needed.

The Court concludes

that further consideration and analysis of opinions regarding
physical impairments is warranted.

For example, ALJ Cutter’s

analysis of certain opinions is quite cryptic, such as the generic
statement that “Dr. Kunkle’s opinions that the claimant can never
lift and/or carry up to 10 pounds . . . are not supported by the
clinical signs and findings in the specialist’s notes” (R. 25)
where the record arguably contains evidence of the existence of
related clinical signs (see Doc. 10 at 16 (citing evidence)).

In

keeping with the Court’s findings on the cane and obesity issues,
further consideration should include evidence relevant to
Plaintiff’s use of a cane and postural limitations.
Regarding mental health opinions, the Court acknowledges
Plaintiff’s distinction between Dr. Caiazzo and CNP Marshall on the
basis of the designation of who was an acceptable medical source at
the time Plaintiff’s claim was filed.

(Doc. 10 at 18.)

Upon

remand the ALJ is to clarify his assessments of these providers’
opinions.4

The ALJ is also directed to provide additional

explanation for his conclusion that Dr. Caiazzo’s findings of
marked limitations are not supported by the clinical signs and

4

Ms. Marshall’s treating status is significant, see 20
C.F.R. § 404.1527(f)(1), and revised regulations (effective for
claims filed after March 27, 2017) include her status as a licensed
advanced practice nurse in the definition of acceptable medical
source, see 20 C.F.R. § 404.1502(a)(7). See Jenkins v. Berryhill,
Civ. A. No. 3:17-CV-0211, 2017 WL 4012607, at *8-9 (M.D. Pa. Sept.
17, 2017).
33

findings in his notes.

(See R. 25.)

Plaintiff’s conclusory statements regarding the ALJ’s
consideration of Dr. Williams’ opinion based only on the assertion
that he is a state agency consultant (Doc. 10 at 18) is
insufficient to show error.

However, because the hierarchy and

bases of the other mental health opinions are to be considered on
remand, the significant weight assigned to Dr. Williams’s opinion
may also need to be addressed.
F.

Symptom Evaluation
Based on the findings set out above, reevaluation of

Plaintiff’s symptoms will be undertaken on remand and the ALJ is
directed to articulate specific findings related to alleged
symptoms, including pain.
V. Conclusion
For the reasons discussed above, the Court concludes
Plaintiff’s appeal is properly granted.

This matter is remanded to

the Acting Commissioner for further consideration consistent with
this opinion.

An appropriate Order is filed simultaneously with

this Memorandum.

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

DATED: April 18, 2018

34