Laucella v. Berryhill

Filing 16

MEMORANDUM (Order to follow as separate docket entry) For the reasons discussed above, Plaintiffa appeal is granted in part. This matter is remanded to the Acting Commissioner for further consideration consistent with this Memorandum. An appropriate Order if filed simultaneously with the Memorandum.Signed by Honorable Richard P. Conaboy on 7/17/18. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DEBORAH A. LAUCELLA,

:
:CIVIL ACTION NO. 3:17-CV-2019
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the Acting
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”).

(Doc. 1.)

Plaintiff protectively filed an application on April 2, 2014,
alleging disability beginning on September 30, 2012.

(R. 12.)

After Plaintiff appealed the initial May 16, 2014, denial of the
claim, a hearing was held by Administrative Law Judge (“ALJ”) Susan
L. Torres on March 8, 2016.

(Id.)

ALJ Torres issued her Decision

on April 15, 2016, concluding that Plaintiff had not been under a
disability, as defined in the Social Security Act (“Act”), from
September 30, 2012, through the date of the Decision.

(R. 25.)

Plaintiff requested review of the ALJ’s decision which the Appeals
Council denied on September 14, 2017.

(R. 1-6.)

In doing so, the

ALJ’s decision became the decision of the Acting Commissioner.
1.)
Plaintiff filed this action on November 3, 2017.

(Doc. 1.)

(R.

She asserts in her supporting brief that the Acting Commissioner’s
determination should be reversed or remanded for the following
reasons: 1) the ALJ erred in failing to adequately consider the
number of work absences that would result from emergency room
visits and hospital admissions during the relevant time period; 2)
the ALJ erred in according limited weight to Plaintiff’s treating
physicians’ opinions; and 3) the ALJ erred in failing to include
bilateral radiculopathy as a severe impairment at step two of the
sequential evaluation process.

(Doc. 13 at 19.)

For the reasons

discussed below, the Court concludes Plaintiff’s appeal is properly
granted in part.
I. Background
Plaintiff was born on January 15, 1969, and was forty-three
years old on the alleged disability onset date.

(R. 24.)

She has

a high school education and past relevant work as a hair stylist,
deli worker, and claims clerk.

(Id.)

In an April 3, 2014,

Disability Report, Plaintiff alleged that her ability to work was
limited by diabetes, a heart condition, a back condition, PTSD, and
gastroparesis.

(R. 147.)

A.

Medical Evidence

1.

Primary Care
Jason Galicia, M.D., of Keytsone Health was Plaintiff’s

primary care provider during the relevant time period.
532, 598-602, 841-58, 858-61, 872-87.)
2

(R. 490-

In February 2012 Dr.

Galicia noted the following chronic problems and the status of
each: 1) diabetes mellitus was poorly controlled with Plaintiff
taking medications regularly but not checking blood sugars at home;
2) hyperlipidemia was controlled with medication; 3) GERD was
stable and controlled with medication; 4) coronary atherosclerosis
was fairly controlled with Plaintiff taking medication regularly
and she had not yet seen a cardiologist; 5) chronic low back pain
status was stable with Plaintiff taking medications regularly and
Plaintiff complained of worsening symptoms; and 6) PTSD was stable
and Plaintiff did not require medications.

(R. 498.)

Physical

exam of the spine was positive for posterior tenderness,
paravertebral muscle spasm, and bilateral lumbosacral tenderness.
(R. 499.)
In July 2013, Plaintiff presented to Dr. Galicia for medical
assistance form completion.

(R. 504.)

He noted that she had not

been seen for eighteen months because of insurance constraints.
(Id.)

Dr. Galicia reported that diabetes was poorly controlled and

other chronic conditions were either fairly controlled or stable.
(Id.)

He recorded no problems on physical exam.

(R. 505-06.)

October 2013 office visit notes indicate Plaintiff was having
worsening exacerbation of her lumbosacral pain and worsening
radiation of the left lower extremity with weakness and numbness.
(R. 513.)

Physical exam of the extremities showed positive 3/5

muscle strength on the left lower extremity, 75% sensory deficit as

3

a pressure, pain on light touch on the left lower extremity, and
absent reflexes on both lower extremities.

(R. 514.)

On March 14, 2014, Plaintiff saw Dr. Galicia for follow up
after she had been in the hospital overnight due to nausea and
vomiting.

(R. 529.)

Office notes indicate Plaintiff had been

diagnosed with gastroparesis secondary to uncontrolled diabetes and
opioid use.

(R. 529.)

In June 2014, Plaintiff complained of gait imbalance and
unsteadiness and worsening back issues especially with prolonged
standing.

(R. 883.)

Dr. Galicia added that pain management had

increased her medications and she was doing well on Valium,
morphine, and oxycodone.

(Id.)

Dr. Galicia noted that Plaintiff

was being followed by endocrinology for her diabetes.

(R. 882.)

Regarding Plaintiff’s thoracic or lumbar radiculitis, he recorded
that her “unsteadiness could be proprioception loss, likely from
the back issue, continue pain management evaluation and will trial
physical therapy next visit if persistent.”

(Id.)

In July 2014, Dr. Galicia reported that Plaintiff was “having
difficulty sustaining any form of work because of her radicular
symptoms and with disc bulging,” and she was having difficulty with
uncontrolled blood sugars which were “very labile.”

(R. 877.)

noted that her pain specialist recommended that she was not
suitable for any kind of work and she also needed disability
because of her uncontrolled blood sugars.

4

(Id.)

He

In December 2014, Dr. Galicia noted Plaintiff’s lumbago was
doing well on her narcotic regimen, her gastroparesis was stable on
Reglan, she would be given a new prescription for Valium for her
PTSD, and she was stable from a cardiac standpoint.

(R. 857.)

Plaintiff saw Dr. Galicia in April 2015 for a routine visit.
(R. 598.)

He noted that her diabetes was being managed by

endocrinology and she was also seeing pain management.

(R. 599.)

Dr. Galicia’s Assessment/Plan included the following: her diabetes
was improving but she would need further adjustments about which he
would defer to endocrinology; cardiac problems were stable on
medication regimen; gastroparesis was stable with Plaintiff taking
Reglan as needed; GERD was controlled with Protonix; Plaintiff was
followed monthly by pain management for lumbosacral radiculopathy
and was reportedly doing well on a narcotic regimen; and PTSD was
stable on her psychiatric regimen and she would discuss medication
side effects with psychiatry.
on physical exam.

(R. 598.)

No problems were recorded

(R. 599.)

In November 2015, Dr. Galicia noted that Plaintiff recovered
well from a recent episode of gastroparesis exacerbation and she
would continue Reglan as needed.

(R. 846.)

In January 2016, Plaintiff reported chronic left shoulder pain
for which Dr. Galicia recommended further diagnostic evaluation and
ordered an upper extremity MRI.
2.

(R. 841.)

Endocrinology Specialist
On April 9, 2014, Plaintiff presented to Tiffany Morton, M.D.,
5

of Summit Endocrinology for evaluation of poorly controlled
diabetes. (R. 231.)

Dr. Morton noted that Plaintiff had not been

checking her blood sugars and needed a new meter, she was following
with GI for gastroparesis and Reglan had improved her symptoms, she
had a history of peripheral neuropathy with numbness and tingling
worse at night, she was followed in the pain clinic for chronic
back pain, she was not working, and she was filing for disability.
(R. 231.)

No problems were found on physical exam and Dr. Morton

specifically noted that Plaintiff walked with a normal gait and 5/5
muscle strength bilaterally in the upper and lower extremities.
(R. 232-33.)

She also noted that Plaintiff subjectively complained

of neuropathy symptoms but foot check showed full sensation.
233.)

(R.

Dr. Morton’s plan was for Plaintiff to continue on her

current medication regimen and check her blood sugars four times
daily for two to three weeks and bring the meter to her next visit.
(R. 233.)
On September 23, 2014, Dr. Morton noted that Plaintiff’s last
visit was five months earlier and she had missed several
appointments in the interim.

(R. 1073.)

Plaintiff reported that

she was fatigued, and had neuralgias and numbness but no leg
swelling or weakness.
exam.

(R. 1074-75.)

(Id.)

No problems were noted on physical

Dr. Morton assessed Plaintiff’s diabetes to

be poorly controlled in setting of noncompliance and poor followup.

(Id.)

She noted, however, that Plaintiff had started taking

6

insulin as directed and her blood sugars were improving.

(Id.)

Dr. Morton also noted that Plaintiff’s foot check was normal
although she subjectively complained of neuropathy symptoms.

(R.

1075.)
In November 2014, Plaintiff again reported fatigue and
arthralgias but denied leg swelling, numbness, and weakness.
1078.)

She also reported decreased energy and hair loss.

No problems were recorded on physical exam.

(R.

(R. 1079-80.)

(Id.)
Dr.

Morton continued to find diabetes poorly controlled with a history
of poor compliance and lack of blood sugar data and, although she
was attempting to improve, blood sugar levels were worse than at
the previous visit.

(R. 1080.)

She again noted that Plaintiff’s

foot check showed full sensation but subjective neuropathy symptoms
were reported and she was taking neurontin.

(Id.)

Office notes

indicate Plaintiff was being seen at the pain clinic for neuropathy
and chronic back pain with a taper of narcotic medications planned.
(R. 1078.)

In March 2015, Dr. Morton again reported poorly

controlled diabetes, adding that Plaintiff had not been checking
her blood sugars.

(R. 594.)

3.

Pain Management

a.

Rehab Medicine Associates
Plaintiff was seen at Rehab Medicine Associates, P.C., almost

monthly from March 2014 through September 2016.
83.)

(R. 465-88, 580-

She was primarily seen by Jay J. Cho, M.D., who initially

7

evaluated her on March 19, 2012, at the request of Dr. Galicia.
(R. 488.)

Plaintiff complained of pain in the low back which

sometimes extended to the left thigh and hamstring.

(Id.)

At the

time she was working as a packer in a factory where she was
standing and bending all day as well as lifting.

(Id.)

Physical

exam showed almost full mobility of the lumbar spine, tenderness at
the piriformis, and mildly limited trunk rotation.
Cho found no sign of radiculopathy.

(Id.)

(R. 487.)

Dr.

He thought the pain was

purely muscle, myofascial type pain with underlying facet
degenerative joint disease at L5-S1.

(Id.)

He noted that she was

starting to see early signs of sensory diabetic neuropathy in the
legs.

(Id.)

Ne recommended Percocet as needed for pain and

McKenzie’s exercises as the best way to decrease back pain and
increase muscle strength.

(Id.)

In April Dr. Cho noted that Plaintiff was able to resume all
activities though she said Oxycodone (given for surgery) was not
strong enough.

(R. 485-86.)

Plaintiff was working as a packer for

a food company and attending school for criminal justice at the
time.

(R. 486.)

Exam showed lumbar spine mobility was full,

single leg raise was negative bilaterally, DTR was present but
somewhat depressed, and pinprick exam was impaired in the foot
area.

(R. 484-85.)

Dr. Cho recommended that Plaintiff stop

Percocet and start Oxycodone and Amitriptyline.

(R. 485.)

In May Dr. Cho stopped Amitriptyline and tried Klonopin which

8

was reported to be “working excellent” in June with Plaintiff
continuing all activities.

(R. 483, 484.)

Although he found some

tenderness at the upper mid-thoracic area due to scapula muscle
weakness with neuropathy, absent DTR in the legs, and significant
sensory loss in the legs with trophic change in July, Dr. Cho noted
that pain was controlled well and Plaintiff had resumed all
activities, “including vocation.”

(R. 482.)

On September 13, 2012, Plaintiff reported increased pain and
back spasms related to taking care of her father.

(R. 481.)

Office notes indicate she was working as a packer at the time.
(Id.)

This report continued in October when Dr. Cho observed that

Plaintiff was doing well overall.

(R. 480.)

In November,

Plaintiff reported she was temporarily working a second job and her
pain was much better controlled.

(R. 479.)

Dr. Cho found some

trapezius tenderness, absent DTR in the legs and impaired pinprick,
and the ability to heel/toe walk.

(Id.)

He continued to assess

lumbar spine pain with facet DJD, myofascial pain, and diabetic
neuropathy.

(R. 479.)

He commented that the current medications

were controlling symptoms reasonably well.

(Id.)

In January 2013 Dr. Cho found increased muscle spasms and
diabetic neuropathy were causing more pain.

(R. 477.)

the back pain to an upper respiratory infection.

(Id.)

He related
Plaintiff

was much better by the end of January and continued to work as a
packer on second shift.

(R. 476.)

9

She reported at the time she

was going for water exercise and therapy and going to the gym
regularly which helped with her leg and back pain.

(Id.)

In March

and early April, lower back pain was reportedly well controlled.
(R. 474, 475.)

Although Dr. Cho noted the development of right

shoulder tendinopathy in March which Plaintiff said caused lifting
problems, he noted that pain was well controlled in April and
Plaintiff had been able to resume all activities.

(Id.)

On April

29, 2013, Dr. Cho noted that Plaintiff was “doing excellent.”
473.)

(R.

The Review of Systems indicated that Plaintiff had more

energy, had been able to increase her activities, she was going to
the gym, her blood sugar was more stable, and she could perform her
jobs.

(Id.)

On May 20, 2013, Dr. Cho noted that Plaintiff was

able to perform her job and all activities but she had pain in the
right shoulder due to overuse for which he gave her Voltaren gel.
(R. 472.)

On June 24, 2013, he noted that Plaintiff reported the

gel was working “fantastic” for her and she was “very happy.”

(R.

471.)
On July 22, 2013, Plaintiff stated that her lower back pain
was not too bad but she had more tingling/numbness and aching pain
in both feet and she felt some weakness after walking for a while.
(R. 470.)

She also reported that she had been in the hospital

emergency room because of severe constipation and the ER doctor
gave her magnesium citrate.

(Id.)

Dr. Cho commented that “[m]ore

diabetic peripheral neuropathy is now a problem.”

10

(Id.)

He

recommended cutting back on Oxycodone and Valium, and he gave her
laxatives.

(Id.)

No major problems were noted in August and

September (R. 468, 469) but Plaintiff reported a lot of pain in her
back related to two jobs with continuous bending and lifting (R.
467).

Physical exam showed markedly limited lumbar spine mobility

with reversed lordosis, palpable muscle spasms mid to lower lumbar
area, S-I joint tenderness, trochanter bursa tenderness, ongoing
absent DTR, and diffuse neuropathic change in the legs with
impaired pinprick.

(Id.)

Dr. Cho noted that he reviewed the

November 14, 2013, MRI films which showed mild facet DJD, mainly
L4-5, with mild foraminal stenosis and mild central spinal canal
stenosis, and small size left L5-S1 herniated disc but clinically
nonsignificant.

(Id.)

In early 2014, Dr. Cho noted that Plaintiff’s main problem was
systemic pain with advanced diabetic polynueropathy and her lower
back pain was “not a big issue.”

(R. 466.)

He recommended that

she stay on all medications and control her diabetes, take
vitamins, and do her exercises.

(Id.)

Plaintiff continued to work

through March 2014 (R. 465, 466) but in May she reported that she
stopped working at the end of March having been “on and off of work
since 2012 due to diabetes, polyneuropathy and other things.”
583.)

(R.

Dr. Cho noted that Plaintiff had applied for disability and

he agreed that Plaintiff was not able to work with the diabetic
polyneuropathy, proximal muscle weakness, and back pain with

11

aching.

(R. 583.)

On physical exam he found lumbar spine aching

pain and mildly limited range of motion; sitting single leg raise
at 90 degrees bilaterally; decreased muscle tone; tenderness in the
trochanter bursa, S-I joint, gluteus, and lumbar spine; and absent
DTR.

(Id.)
In June, Plaintiff reported trouble doing activities of daily

living, she had aching in her entire body, and she had no energy.
(R. 582.)

On physical exam, Dr. Cho’s findings included decreased

muscle tone with atrophy in the proximal muscles, trunk muscles,
and shoulder muscles; tenderness in the lower back, S-I joint, and
gluteus; absent DTR; and sensory impairment.

(Id.)

He stated the

following in the “Comment” section of the record: “[a]dvanced
diabetic polyneuropathy is a big problem[;] [p]roximal muscle
weakness[;] [t]his patient is not able to work any job.”

(Id.)

In

September 2014, Jeffrey Sarsfield, M.D., noted that Plaintiff was
on permanent disability due to diabetic neuropathy.
b.

(R. 581.)

Summit - Pain Medicine
Plaintiff had an initial visit with Amanpreet Sandhu, M.D., of

Summit - Pain Medicine on November 3, 2014.

(R. 586-89.)

She

presented with chronic pain involving her lower back which she
attributed to bulging discs as well as a burning sensation
involving both feet which she attributed to diabetic neuropathy.
(R. 586.)

She said the pain, which she rated at 8/10-10/10,

interfered with sleep, her ability to do activities of daily

12

living, and social functioning.

(R. 586.)

Plaintiff also said she

was unable to work due to chronic pain, she could not sit or stand
for long periods, and she could not lift or do any bending
activity.

(Id.)

Dr. Sandhu noted that Plaintiff had recently gone

on Medicaid and was told she would not be seen by Dr. Cho or Dr.
Sarsfield anymore.

(Id.)

Physical exam showed musculoskeletal

normal range of motion, motor 5/5 bilateral upper and lower
extremities, sensory soft touch intact bilaterally except decreased
sensation in the feet bilaterally, normal gait, SLR negative, Faber
positive bilaterally, SI tenderness bilaterally, positive midline
and paraspinal muscle tenderness of the lumbosacral spine, lumbar
flexion and extension caused pain, and facet loading strongly
positive bilaterally.

(R. 587-88.)

Dr. Sandhu assessed the

following: intervertebral disc displacement lumbar without
myelopathy; lumbago; myalgia and myositis unspecified; neuritis or
radiculitis thoracic or lumbosacral unspecified; other chronic
pain; sacroiliitis not eslewhere classified; spondylosis lumbar
without myelopathy; and diabetes with neurological manifestations
type II uncontrolled.

(R. 588.)

Dr. Sandhu explained that

Plaintiff had multiple pain generators and “unfortunately” she was
on high-dose narcotics and had developed significant tolerance and
dependency.

(R. 589.)

Because of this, Dr. Sandhu recommended

Plaintiff taper down the narcotics substantially and discontinue
Valium, and noted that following the taper Plaintiff would be

13

considered for interventional spine procedures.

(Id.)

For the

neuropathic component of her pain and diabetic neuropathy, Dr.
Sandhu recommended that Plaintiff continue Neurontin.

(Id.)

Plaintiff was to follow up with Dr. Sandhu as needed but she did
not return to the practice.
c.

(Id.)

American Spine
Plaintiff was seen for back pain almost monthly from December

2014 through February 2016 at American Spine in Hagerstown,
Maryland, by Mike Yuan, M.D., Shirley Coffie, ANP, or Susan
Bennett, PA.

(R. 889-969.)

On December 4, 2014, Plaintiff said

she had pain in her lower back which radiated to both feet, ankles,
calves, thighs, and arms.

(R. 965.)

She described the pain as

aching, burning, deep, diffuse, dull, sharp, shooting, stabbing,
and throbbing; she said it was aggravated by daily activities and
relieved by pain medications and rest.

(Id.)

Examination of back

and spine showed posterior tenderness, lumbosacral paravertebral
muscle spasm, and antalgic gait.

(R. 968.)

Dr. Yuan assessed

displacement of intervertebral disc with MRI ordered; degeneration
of lumbar or lumbosacral intervertebral disc; thoracic or lumbar
radiculitis; and chronic pain syndrome.

He noted that Plaintifff

had previously been managed by Dr. Cho and his office was closed.
(Id.)

Dr. Yuan planned to change Plaintiff’s pain medication

regimen.

(R. 969.)

In January and February 2015, Dr. Yuan noted that Plaintiff’s

14

pain was stable and her medication regimen would be continued as it
was effective and without side effects.

(R. 955, 960.)

Plaintiff reported constant severe symptoms in March 2015.
(R. 948.)

Dr. Yuan did not change her medications and noted she

was functioning without evidence of addiction or diversion.

(R.

951.)

In April, Plaintiff reported moderate to severe pain.

(R.

943.)

On physical exam, Dr. Yuan reported that Plaintiff was in

pain, with posterior tenderness, lumbosacral paravertebral muscle
spasm, positive single leg raise, passive dorsiflexion of the right
foot painful, and antalgic gait.

(R. 945.)

Plaintiff reported

that increased pain was related to taking care of her elderly
mother.

(R. 946.)

In May and June, Dr. Yuan noted that

Plaintiff’s pain was stable.

(R. 938, 942.)

On July 2, 2015, Dr. Yuan recorded that Plaintiff complained
of left shoulder pain for which he intended to get an imaging study
and he increased some pain medications.

(R. 933.)

He noted that

she was able to function with her current medications without side
effects.

(Id.)

On July 30th Plaintiff presented to Ms. Coffie with lumbar
spine pain which she said fluctuated and she rated as 10/10 at its
worst and 8/10 at the time of the visit.

(R. 925.)

She said the

pain radiated to the lower back and left leg and symptoms were
aggravated by climbing and descending stairs, daily activities,
bending, sitting, standing, and walking.

15

(Id.)

Plaintiff also

complained of shoulder pain, left greater than right, which had
been chronic and intermittent.

(Id.)

Physical exam findings

included normal gait, tenderness of the lumbar spine, moderate pain
with range of motion, and left buttock pain.

(R. 929.)

Ms. Coffie

noted that Plaintiff’s medications allowed her to perform
activities of daily living and no side effects were reported.
(Id.)

Plaintiff was again noted to be stable and able to perform

activities of daily living in August and October with no new
findings reported.

(R. 918, 923.)

Ms. Coffie recorded that the

lumbar MRI done in November 2014 showed L5-S1 annular tear with
small central disk herniation and a September 2014 EMG showed
bilateral S1 radiculopathy.

(R. 918.)

In November 2015, Ms. Bennett’s muscoloskeletal exam showed
only an antalgic gait and office notes indicated Plaintiff was
going to see her primary care provider about the left shoulder
pain.

(R. 908.)

Ms. Bennett noted in December that shoulder pain

was improving and Plaintiff’s pain medications continued to be
effective.

(R. 903-04.)

No specific problems were recorded on

physical exam in January 2016.

(R. 987.)

Plaintiff again reported

shoulder pain in February but no abnormal physical findings were
reported on objective examination.

(R. 891-92.)

Ms. Bennett noted

that Plaintiff’s pain medications enabled her to function and
perform activities of daily living with no side effects reported.
(R. 892.)

16

4.

Other Specialist Treatment

a.

Neurology
Dr. Galicia referred Plaintiff to Wellspan Neurology where she

was seen by Ruediger Kratz, M.D., on August 25, 21014.
78.)

(R. 574-

Dr. Kratz reported to Dr. Galicia that he believed the back

pain was “a combination of degenerative spine disease, although not
significant disk disease, and soft tissue disease, as well as
sciatica on left.”

(R. 574.)

He added that an EMG was in order to

distinguish how much was neuropathy and how much radiculopathy.
(Id.)

As far as management, Dr. Kratz suggested Daypro and

Gabapentin but noted he would leave the pain management to Dr. Cho.
(Id.)

Plaintiff had reported to Dr. Kratz that she had numbness in

her legs, left more than right, and sitting for a long time caused
more pain, especially in the hips.

(R. 575.)

Plaintiff also

described a vibrating sensation when she sat on her left buttock,
numbness in her left arm, and attacks of left sided numbness and
tingling occurring three to four times a week.

(Id.)

Physical

exam showed that motor tone and strength were normal in arms and
legs with no cramps, contractions, tightness, or atrophy; straight
leg raising caused pain in the back of the thighs, not the back;
tenderness over the left sciatic notch; sensation to pin, touch,
vibration, and temperature in legs up to below the knee on the left
and up to the upper calf on the right; position sense was
preserved; tendon reflexes absent at ankles and in arms, minimal at

17

knees; plantar responses were flexor; finger to nose, heel to shin,
fine motor and alternating movements were normal; Plaintiff had
difficulty with tandem walk and standing on one leg with eyes
closed; and Romberg sign was negative.

(R. 577-78.)

Plaintiff had the EMG on September 4, 2014.

(R. 572.)

Xi

Lin, M.D., Ph.D., reported the following conclusion: “[t]hese
electrophysiological findings are consistent with chronic bilateral
S1 radiculopathy and mild sensory motor peripheral neuropathy[;]
[r]ight-sided sciatica or lumbosacral plexopathy cannot be ruled
out.”
b.

(R. 573.)

Gastronenterolgoy
Plaintiff saw gastroenterologist John Enders, M.D., on March

20, 2014, following a hospital consultation.

(R. 539.)

By

history, he reported that Plaintiff had diabetes mellitus,
gastroparesis, and chronic constipation.

(Id.)

was doing significantly better with Reglan.

He noted that she

(Id.)

On physical

exam, Dr. Enders found no tenderness in any quadrant, good dorsalis
pedis and posterior tibial pulses in extremities; no edema; and
movement of all extremities with intact sensation.

(Id.)

Dr.

Enders’ assessment included diabetic gastroparesis and chronic
constipation related to narctoics.

(Id.) He recommended that

Plaintiff continue Reglan but adjust the dosage and return in six
months.

(Id.)

On March 2, 2015, Plaintiff reported to Dr. Enders that she

18

was doing a little better although she had some flares of the
gastroparesis and occasional problems with constipation.

(R. 714.)

Dr. Enders assessed likely gastroparesis aggravated by narcotic use
and poor diabetic control as well was narcotic constipation.

(Id.)

Acute abdominal series diagnostic imaging done on July 21,
2015, due to abdominal pain showed no acute abnormalities.

(R.

726.)
On July 29, 2015, Plaintiff returned reporting she had three
episodes of brief nausea with vomiting lasting about two days.
710.)

No problems were recorded on physical exam.

(Id.)

(R.

Dr.

Enders noted Plaintiff’s symptoms did not sound typical for
gastroparesis and there was a possibility of atypical bilary tract
disease despite a normal CT and ultrasound.

(Id.)

He also raised

the possibility of acalculous cholecsystitis or gastritis.

(Id.)

Dr. Enders planned to do additional testing and potentially
increase the Reglan dosage.

(Id.)

Diagnostic imaging done on August 6, 2015, showed normal
hepatobilliary scan with normal contraction of the gallbladder in
response to CCK.

(R. 725.)

The gallbladder ejection fraction of

41% was not indicative of chronic cholecsystitis or biliary
dyskinesia.
c.

(Id.)

Wound Clinic
Plaintiff had twelve visits to the wound clinic for treatment

of MRSA absesses between February 29, 2012, and September 30, 2012,

19

and she had thirty additional visits since that time.

(Doc. 13 at

7 (citing R. 281, 296-302, 319-43, 346-55, 359-76, 384-96, 412-44,
677-86).)
In January 2014, Plaintiff had a consult with Ganga B. Ramidi,
M.D., of Keystone Health who noted that Plaintiff was being treated
for MRSA, recurrent in nature, and he questioned whether it was
related to poor hygienic measures and uncontrolled diabetes or was
autoimmune.

(R. 517.)

Plaintiff reported that she had gotten four

to six episodes of MRSA per year.

(R. 518.)

Dr. Ramidi indicated

that a potential source of infection could be Plaintiff’s multiple
broken teeth and cavities.

(R. 518.)

He encouraged her to have a

dental evaluation but she said she could not afford it because of a
lack of insurance.

(Id.)

On physical exam, Dr. Ramidi found that

Plaintiff had poor hygiene and dentician, midline sternal scar,
right axilla with incision looked good with minimal drainage, no
sensory loss, and deep tendon reflexes preserved and symmetric.
(R. 520.)

He counseled Plaintiff on hygiene measures, encouraged

her to wash her hands after each contact, to avoid skin breakdown
and seek medical attention as needed, to avoid contact with sick
people, to use clean clothes, not to share insulin needles, and to
keep clean.

(R. 517.)

5. Mental Health Treatment1
Plaintiff was treated for depression and anxiety at Spectrum
1

Because Plaintiff’s claimed errors do not relate to the
ALJ’s consideration of mental health impairments, the Court will
summarize the evidence relied upon by the ALJ (see R. 22).
20

Health and Wellness from February 24, 2015, through February 19,
2016.

(R. 979-1023.)

On November 13, 2015, Dr. Coronado stated

that Plaintiff had immense feelings of depression, she took
psychotropic medications, and he later indicated she had
psychotherapy.

(R. 980, 1008.)

2015 records indicate that

Plaintiff had good insight, and depression was well-controlled on
medications.

(R. 1003, 1013.)

B. Opinion Evidence
1.

State Agency Psychiatric Consultant
Jonathan Rightmyer, Ph.D., a State agency consultant,

completed a Psychiatric Review Technique on May 13, 2014.
61.)

(R. 60-

Dr. Rightmyer first concluded Plaintiff had anxiety disorders

which were not severe.

(R. 60.)

He opined that Plaintiff had mild

restrictions in activities of daily living, mild difficulties in
maintaining social functioning, mild difficulties in maintaining
concentration, persistence, or pace, and no repeated episodes of
decompensation, each of extended duration.
2.

(R. 61.)

Pain Specialists
In June 2014, Dr. Cho, Plaintiff’s treating pain specialist,

noted the following in the “Comment” section of the office visit
record: “[a]dvanced diabetic polyneuropathy is a big problem[;]
[p]roximal muscle weakness[;] [t]his patient is not able to work
any job.”

(Id.)

Dr. Sarsfield completed a Medical Source Statement form on
21

Septemeber 23, 2014.

(R. 563-67.)

He found the following:

Plaintiff was not permitted to lift; she had no ability to stand or
walk; she could sit for less than two hours in an eight-hour
workday; she would need to periodically alternate between sitting
and standing; she would need to lie down four times during a work
shift; her ability to push and pull was limited in upper and lower
extremities; she could never climb, balance, stoop, kneel, crouch,
crawl, bend, or twist; she could frequently reach, handle, finger,
and feel; she had environmental limitations in all categories;
impairments were permanent; she would miss work more than three
times a month because of her impairments or treatment; she was
capable of no work; and the onset date of the restriction levels
identified was more than five years earlier.

(Id.)

Dr. Sarsfield

attributed limitations to advanced diabetic neuropathy,
degenerative disc disease, and cardiomyopathy.
3.

(R. 563-66.)

Primary Care Provider
On July 7, 2014, Plaintiff and Dr. Galicia completed a

Pennsylvania Department of Public Welfare Employability Assessment
Form.

(R. 560-61.)

Following Plaintiff’s statement that she could

not work because she was “experiencing pain in lower back, hands,
feet.

Unable to lift things, sit for long periods of time” (R.

560), Dr. Galicia checked a box that Plaintiff was permanently
disabled (R. 561).

Dr. Galicia’s handwritten diagnosis appears to

be diabetes type 2, uncontrolled.

22

(Id.)

In check-the-box form,

Dr. Galicia indicated this assessment was based on physical
examination, review of medical records, clinical history, and
appropriate tests and diagnostic procedures.

(Id.)

Dr. Galicia

also completed the Health-Sustaining Medication Assessment Form
which was to be completed for an “applicant/recipient who requires
medication that allows the person to be employable or continue with
employment.”

(R. 562.)

While many of Dr. Galicia’s entries on the

form are not legible, he indicated in part that Plaintiff cannot
work without diabetes medications because of uncontrolled blood
sugars.
C.

(Id.)

Testimony
When asked at the March 8, 2016, hearing about the jobs she

worked for short periods after her alleged disability onset date,
Plaintiff testified that they involved a lot of standing and
lifting and she would have to sit down a lot (because of pain in
her lower back and neuropathy) which was not acceptable.

(R. 38.)

Upon questioning by her attorney, Plaintiff reported she had
constant pain in her lower back that sometimes traveled down her
legs.

(R. 41.)

She said it was hard for her to lift her eight-

pound dog, she could sit for approximately two hours a day but then
had to get up because her legs and hips ached, she had to change
positions six to seven times a day, she did not walk much, and she
estimated she had three to four productive hours a day.
43.)

23

(R. 42-

Plaintiff testified that she had gone to the wound clinic
approximately once a week from 2011 to 2014 because of MRSA
infections and she would be there for thirty to forty-five minutes
each time.

(R. 43-44.)

Regarding diabetes symptoms, Plaintiff said she had neuropathy
of her hands and feet as well as some vision problems.

(R. 44.)

She explained that the numbness and tingling occurred daily and the
condition of her feet affected her ability to walk and stand.

(R.

45.)
Plaintiff said she had been hospitalized multiple times since
2014 because of gastroparesis and she would not have been able to
work when she had a flare.

(R. 46.)

When asked about frequency by

the ALJ, Plaintiff responded that she had a flare once or twice a
month and she had not had one since December or January.

(R. 50.)

She also said her anxiety and depression were much better since she
started medication but she still did not like to be around large
crowds.

(Id.)

Identified medication side effects included dental

problems and fatigue.

(R. 47.)

Plaintiff said she was not having

any problems at the time related to her cardiac condition.

(R.

49.)
When asked about taking care of her mother, Plaintiff said she
and her sister did the cooking and cleaning because her mother was
unable to do those things.

(R. 51.)

Plaintiff also said she did

her own laundry and she drove her mother to appointments at least

24

twice a week.

(Id.)

In response to hypothetical questions posed by the ALJ, the
Vocational Expert (“VE”) testified that Plaintiff could not perform
her past relevant work but other jobs existed in significant
numbers in the national economy which Plaintiff could perform.

(R.

53-54.)
D.

ALJ Decision
In her April 15, 2016, Decision, ALJ Torres concluded that

Plaintiff had the following severe impairments: diabetes mellitus;
peripheral neuropathy; degenerative disc disease of the lumbar
spine; coronary artery disease status post myocardial infarction
with coronary artery bypass grafting; hypertension; gastroparesis;
obstructive sleep apnea; history of MRSA; depression; and anxiety.
(R, 14.)

She determined Plaintiff did not have an impairment or

combination of impairments that met or medically equaled the
severity of a listed impairment.

(R. 15.)

ALJ Torres assessed

Plaintiff to have the residual functional capacity (“RFC”) to
perform sedentary work
except she is limited to occasional climbing
of ramps and stairs. The claimant should
never climb ladders, ropes, or scaffolds.
She is limited to occasional stooping,
kneeling, crouching, and crawling. The
claimant is limited to occasional pushing or
pulling with her lower extremities. She
should avoid concentrated exposure to
vibrations, fumes, odors, dust, gases, poor
ventilation, and hazards such as heights and
moving machinery. The claimant can
understand, remember, and carry out simple
25

instructions. Moreover, she is limited to
occasional interaction with the public.
(R. 17-18.)
Based on vocational expert testimony, ALJ Torres concluded
that Plaintiff could not perform past relevant work as a hair
stylist, claims clerk, or deli worker but she could perform jobs
that existed in significant numbers in the national economy.
24-25.)

(R.

ALJ Torres therefore concluded that Plaintiff had not been

under a disability from September 30, 2012, through the date of the
decision.

(R. 25.)
II. Disability Determination Process

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

It is necessary for the

2

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
26

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).

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

27

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. 25.)

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).
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
28

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
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
29

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
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 or remanded for the following
reasons: 1) the ALJ erred in failing to adequately consider the
number of work absences that would result from emergency room
visits and hospital admissions during the relevant time period; 2)
the ALJ erred in according limited weight to Plaintiff’s treating
physicians’ opinions; and 3) the ALJ erred in failing to include
bilateral radiculopathy as a severe impairment at step two of the
sequential evaluation process.

(Doc. 13 at 19.)
30

A.

Step Two
Plaintiff contends that the ALJ erred in failing to include

bilateral radiculopathy at step two of the sequential evaluation
and the error is harmful because the radiculopathy causes Plaintiff
to need to change positions frequently between sitting, standing,
and lying down throughout the day but the ALJ did not account for
the need to change positions in her RFC assessment.
31; Doc. 15 at 7 (citing R. 40-43).)

(Doc. 13 at

Defendant asserts that the

claimed error is without merit because Plaintiff’s doctors
disagreed on exactly what caused her back and leg symptoms and the
RFC took into account all credible limitations resulting from her
back impairment regardless of the labeled diagnosis.
21.)

(Doc. 14 at

The Court concludes Plaintiff has shown the ALJ’s error is

cause for remand.
Assuming arguendo the ALJ erred by not listing radiculopathy
as a severe impairment, Plaintiff has the burden of showing that
the error was harmful.

Shineski v. Sanders, 556 U.S. 396, 409

(1969); Woodson v. Comm’r of Social Security, 661 F. App’x 762, 766
(3d Cir. 2016) (citing Shineski, 556 U.S. at 409) (a plaintiff must
point to specific evidence that demonstrates his claimed error
caused harm); Holloman v. Comm’r of Social Security, 639 F. App’x
810, 814 (3d Cir. 2016) (citing Shineski, 556 U.S. At 409) (a
plaintiff must show how the claimed error made a difference beyond
a mere assertion that it did so).

31

A step two error may be deemed

harmless if the sequential evaluation process continues beyond step
two and 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. No. 3:13-CV-2554, 2015 WL 268791, at
*13 (M.D. Pa. Jan. 21, 2015); Lambert v. Astrue, Civ. A. No. 08657, 2009 WL 425603, at *13 (W.D. Pa. Feb. 19, 2009).
In response to Defendant’s argument that ALJ Torres included
all credible limitations in her RFC assessment and she did not fail
to account for limitations related to radiculopathy, Plaintiff
relates additional restrictions to the impairment.

32

(Doc. 15 at 7.)

Specifically, Plaintiff points to the September 2014 EMG study
which confirmed chronic bilateral radiculopathy as supportive of
her testimony about her need to frequently change positions.
(citing R. 40-43, 572-73).)

(Id.

Plaintiff asserts “[t]he ALJ did not

adequately account for the need to change positions in her RFC
assessment for a range of sedentary work, which requires prolonged
sitting.

As a result, the ALJ’s failure to include radiculopathy

as a medically determinable impairment was not remedied by the RFC
assessment.”

(Id.)

Medical professionals recognize the relationship between
lumbar/S1 radiculopathy and difficulty sitting for prolonged
periods.3

This connection is relevant to the assessment of a

claimant’s ability to do sedentary jobs which are jobs performed
primarily in a seated position with no definitional consideration
of a need to change positions frequently.
SSR 83-10, 1983 WL 31251, at *5.

20 C.F.R. §§ 404.1567;

However, the need to alternate

between sitting and standing is considered in SSR 96-9P, 1996 WL
374185, at *7, the ruling which generally addresses situations
where the claimant has a residual functional capacity for less than
the full range of sedentary work.

SSR 96-9P indicates that the

occupational base will be eroded where the need to change positions
cannot be accommodated by scheduled breaks and a lunch period.

3

See http://www.oamichigan.com/spine/spineconditions/lumbar-radiculopathy-and-sciatica.
33

Id.

The extent of the erosion depends on the facts in the case record
and the RFC must be specific as to the frequency of the
individual’s need to change positions.

Id.

In the circumstances presented here, the Court cannot conclude
that the step two error was harmless.

As Plaintiff alleges, the

September 2014 EMG verified chronic bilateral S1 radiculopathy.
(R. 572-73.)

On several occasions, Plaintiff told treating

providers about her difficulty sitting for long periods. (R. 560,
575, 586).

Plaintiff testified that she could “sit maybe two hours

a day if that.

But I have to get up because I start to ache and my

legs, my hips start to hurt.”

(R. 42.)

She estimated that she

changed positions six to seven times a day depending on what she
was doing.

(Id.)

ALJ Torres mentioned the EMG study and

referenced Plaintiff’s testimony about her “alleged back
condition,” noting that Plaintiff testified she had constant back
pain, she had days she could not get out of bed, she spent five to
eight hours a day lying down, she took medication, and she used
heating pads.

(R. 19-20.)

ALJ Torres did not acknowledge

Plaintiff’s testimony about her need to change positions frequently
(R. 42) nor did she acknowledge the multiple times Plaintiff
reported to providers that she had difficulty sitting for long
periods (R. 560, 575, 586).
As explained in Rutherford, 399 F.3d at 553-55, an ALJ must
consider all credibly established limitations.

34

A limitation is

credibly established if it is medically supported and not otherwise
controverted in the record, id. at 554.

Rutherford added that

“[l]imitations that are medically supported but are also
contradicted by other evidence in the record may or may not be
found credible–-the ALJ can choose to credit portions of the
existing evidence but cannot reject evidence for no reason or for
the wrong reason.”

Id. (citing Mason v. Shalala, 994 F.2d 1058,

1066 (3d Cir. 1993); 20 C.F.R. § 416.929(c)(4)).
The record shows that Plaintiff’s limitation regarding
continuous sitting was medically supported by the diagnostic
September 2014 EMG.

As a medically supported limitation, ALJ

Torres was required to credit the limitation or discuss why she
rejected it if she found the need to change positions contradicted
by other evidence.

Rutherford, 399 F.3d at 554.

In this context,

the Court cannot conclude that all credibly established limitations
were included in the RFC, and, because the limitation not included
arguably related to radiculopathy, Plaintiff’s claimed step two
error cannot be deemed harmless.
B.

Medical Treatment Work Absences
Plaintiff asserts the ALJ erred in failing to adequately

consider the number of work absences that would result from
emergency room visits and hospital admissions during the relevant
time period.

(Doc. 13 at 22.)

Defendant responds that “the facts

overwhelmingly support that Laucella’s combined treatments did not

35

require excessive absences.”

(Doc. 14 at 17.)

Because remand is

required on the basis discussed above, the Court concludes further
discussion of this issue is warranted.
Defendant states that at the hearing and in the written
decision the ALJ reasonably rejected Plaintiff’s argument that she
could potentially be under a disability due to excessive absences
caused by treatments for her impairments.
R. 54-56).)

(Doc. 14 at 17 (citing

The Court does not find explicit consideration of the

issue by the ALJ in the record although Defendant’s citation to the
record shows that Plaintiff’s attorney specifically raised the
frequency of impairment-related absences at the hearing (R. 55-56).
In that the statutory definition of “disability” includes the
“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment . . .
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), and the need
for treatment related to a medically determinable impairment that
would cause absences in excess of the work attendance acceptability
rate of one day per month on a regular and consistent basis would
indicate an inability to maintain employment (see R. 55),
Plaintiff’s argument has potential merit.

The record related to

emergency room visits, hospital admissions, and wound clinic
visits, as summarized in Plaintiff’s brief (Doc. 13 at 23-25),
arguably indicates absences that would average more than one day

36

per month on a consistent basis for some twelve-month period from
the alleged onset date to the date of the decision.

This deserves

more discusion on remand, especially when combined with Plaintiff’s
testimony that she had a gastroparesis flare once or twice a month
(R. 50).4
C. Treating Physician Opinions
Plaintiff claims the ALJ erred in according limited weight to
the opinions of Drs. Sarsfield, Cho, and Galicia who were all
treating physicians.

(Doc. 13 at 27.)

ALJ did not err on the basis alleged.

Defendant responds that the
(Doc. 14 at 23.)

The Court

concludes Plaintiff has not satisfied her burden of showing that
the claimed error is cause for reversal or 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.5

See, e.g.,

4

With this conclusion, the Court notes Plaintiff’s testimony
that wound clinic visits were weekly during the periods of MRSA
infection and the visits would last thirty to forty-five minutes
(R. 44) does not indicate, without more, that a would clinic visit
would cause her to miss a day of work.
5

A new regulation regarding weight attributed to a treating
source affects cases filed after March 27, 2017. For claims filed
after March 27, 2017, 20 C.F.R. § 404.1520c eliminates the treating
source rule. In doing so, the Agency 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). This case,
filed on October 5, 2016 (Doc. 1), is not affected by the new
regulation and is to be analyzed under the regulatory scheme cited
37

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).6

“A cardinal principle

in the text.
6

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
38

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).

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 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)).
In this section of her brief, Plaintiff generally criticizes
the ALJ for crafting an RFC which was not supported by a medical
source of record.

(Doc. 13 at 28.)

The Court rejects the

proposition that RFC findings must be based on a medical opinion of

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.
39

record.

Rather, as stated in Titterington v. Barhart, 174 F. App’x

6 (3d Cir. 2006), “[t]here is no legal requirement that a physician
have made the particular findings that an ALJ adopts in the course
of determining an RFC.

Surveying the medical evidence to craft an

RFC is part of the ALJ’s duties.”

Id. at 11.

Thus, if a

reasonable factfinder, considering the evidence in the record,
could have agreed with the ALJ’s assessment, a plaintiff has not
shown error.

Id.

Plaintiff argues that Dr. Sarsfield’s opinion should have been
accorded great weight for several reasons including that the
opinion is consistent with the medical records.

(Doc. 13 at 30.)

In support of this assertion, Plaintiff points to record
confirmation of chronic diabetic neuropathy, gastroparesis, chronic
bilateral radiculopathy, and lumbar degenerative disc disease.
(Id.)

Importantly, evidence of a diagnosis is not evidence of a

functional limitation and the essential inquiry concerns a
claimant’s ability to function in the workplace.

See Heckler v.

Campbell, 461 U.S. 458, 460 (1983) (“disability” under the Act
determined in terms of the effect a physical or mental impairment
has on ability to function in the work place); see also Walker, 172
F. App’x at 426 (“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.”)

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Plaintiff points to no

evidence supporting the functional limitations identified by Dr.
Sarsfield, and the Court does not find evidence supporting his
findings that Plaintiff was unable to lift, was able to stand/walk
at most less than two-hours a day,7 could sit for a total of less
than two hours in an eight-hour day, and could never engage in
identified postural positions.

(R. 563-65.)

Therefore, Plaintiff

has not shown and the Court cannot conclude that Dr. Sarsfield’s
opinion is consistent with the medical records.

Further, Plaintiff

has not shown error in that she has not undermined the evidence of
record cited by ALJ Torres in support of her conclusion that the
opinion was entitled to limited weight.

(See R. 23.)

Plaintiff does not provide a specific criticism of the ALJ’s
analysis of Dr. Cho’s opinion and a mere assertion of error is not
sufficient to satisfy her burden.

Furthermore, Dr. Cho’s opinion

was expressed in conclusory terms in the “Comment” section of the
office notes where he stated “[a]dvanced diabetic polyneuropathy is
a big problem[;] [p]roximal muscle weakness[;] [t]his patient is
not able to work any job.”

(R. 582.)

ALJ Torres explained several

reasons the opinion was not consistent with the record as a whole
and cited specific findings contained in the record.
(citations omitted).)

(R. 24

On this record, the Court cannot conclude

the ALJ’s determination regarding Dr. Cho’s opinion is error.

7

The form either indicates Plaintiff had no ability to stand
and/or walk, or she could stand/walk for less than two hours in an
eight-hour day. (See R. 55, 563.)
41

The ALJ’s criticism of ALJ Torres’ analysis of Dr. Galicia’s
opinion is deficient for the same reason–-Plaintiff makes no
attempt to undermine contradictory evidence cited by the ALJ and
does not otherwise demonstrate error.
Because Plaintiff has not satisfied her burden of showing the
ALJ erred in her assessment of treating providers’ medical
opinions, the claimed error is not cause for reversal or remand.
V. Conclusion
For the reasons discussed above, Plaintiff’a appeal is granted
in part.

This matter is remanded to the Acting Commissioner for

further consideration consistent with this Memorandum.

An

appropriate Order if filed simultaneously with the Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: July 17, 2018

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