Chapman v. Commissioner of Social Security Administration

Filing 12

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes this matter is properly remanded to the Acting Commission for further action consistent with this opinion. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 10/24/18. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALMA E. CHAPMAN,

:
:CIVIL ACTION NO. 3:18-CV-723
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the Acting
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”) and Supplemental
Security Income (“SSI”) under Title XVI of the Act.

(Doc. 1.)

Plaintiff protectively filed applications on September 3, 2015,
alleging disability beginning on February 1, 2014.

(R. 21.)

After

Plaintiff appealed the initial December 22, 2015, denial of the
claims, a hearing was held by Administrative Law Judge (“ALJ”)
Daniel Balutis on August 2, 2017.

(Id.)

ALJ Balutis issued his

Decision on September 20, 2017, concluding that Plaintiff had not
been under a disability, as defined in the Act from February 1,
2014, through the date of the Decision.

(R. 29.)

Plaintiff

requested review of the ALJ’s decision which the Appeals Council
denied on February 15, 2018.

(R. 1-7.)

In doing so, the ALJ’s

decision became the decision of the Acting Commissioner.

(R. 1.)

Plaintiff filed this action on April 3, 2018.

(Doc. 1.)

She

asserts in her supporting brief that the Acting Commissioner’s
determination should be remanded because the ALJ erred in his
assessment of medical expert opinions which limited Plaintiff to
sedentary or less-than-sedentary work and substituted his lay
judgment for these opinions.

(Doc. 9 at 5.)

For the reasons

discussed below, the Court concludes Plaintiff’s appeal is properly
granted.
I. Background
Plaintiff was born in February 1957 and was sixty years old at
the time of the ALJ’s decision.

(Doc. 9 at 2.)

She has a high

school education and worked as a dental assistant and later a
phlebotomist.

(Id.)

When She applied for benefits, Plaintiff

alleged that her ability to work was limited by problems with
weight-bearing joints, anxiety, and depression.
A.

(R. 191.)

Medical and Opinion Evidence
On September 16, 2013, Plaintiff saw Donald D. Golobek, D.O.,

at Susquehanna Health Orthopedics at Wellsboro with complaints of
worsening knee pain.

(R. 249.)

Examination showed right knee

effusion, tenderness to palpation, and ligament laxity.

(R. 250.)

Dr. Golobek diagnosed severe degenerative joint disease with a
recent twist/sprain.

(Id.)

Dr. Golobek treated Plaintiff with

steroid injections (R. 251) but the relief lasted only three days
and she reported that her pain was worse on September 24, 2013.
2

(R. 252.)
A September 24, 2013, MRI of the right knee resulted in the
following Impression:
erosive degenerative changes particularly
about the lateral aspect of the knee joint
with areas of osteonecrosis involving the
distal lateral femoral condyle as well as the
proximal lateral tibial plateau. Erosion of
the misisci. Atretic cruciate ligaments.
Knee joint effusion. Complex Baker’s cyst and
aspiration of this complex cyst may be
considered.
(R. 291.)
Plaintiff reported improvement on October 21, 2013, after a
series of injections.

(R. 262.)

She was wearing a brace at the

time and requested pain medication but she told Dr. Golobek that
she wanted to go back to work.

(Id.)

Dr. Golobek limited her to

working four-hour shifts and planned to start physical therapy.
(Id.)
In January 2014, Plaintiff reported continuing knee pain and
Dr. Golobek discussed whether her pain warranted knee replacement
surgery.
(Id.)

(R. 266.)

Plaintiff said she would think about it.

Dr. Golobek recorded that Plaintiff was to continue her

four-hour work days and therapy twice weekly.

(Id.)

Dr. Golobek performed a total right knee arthroplasty on
February 25, 2014.

(R. 281.)

Plaintiff noted some stiffness on

March 31, 2014, but reported that physical therapy was going well.
(R. 273.)

On April 2, 2014, Dr. Golobek noted x-rays showed a

3

well-fixed total condylar knee in excellent position.

(R. 276.)

He reported a well-healed scar, good quad control, and good VMO
recruitment.

(Id.)

Dr. Golobek planned for Plaintiff to continue

therapy twice weekly and noted he would be working on getting her
back to work shortly and gradually ease her from the four-hour days
to eight-hour days.

(Id.)

At her May 28, 2014, visit with Dr. Golobek, Plaintiff
requested to go back to work full-duty and he noted she was “doing
excellent.”

(R. 278.)

Dr. Golobek acceded to Plaintiff’s request

for a Percocet prescription, noting it would be the last one.
(Id.)

He noted that he saw no reason to restrict her in any way

and would see her back in three months.

(Id.)

Plaintiff saw Dr. Golobek again on August 20, 2014, at which
time he noted she was happy, doing everything she needed to do,
moving her knee with no pain, and she had good muscle strength
testing of 5/5.

(R. 279.)

He planned to see her in a year.

(Id.)

In April 2015, Plaintiff was seen by Sally Yoder, CNP, at
Guthrie for her annual exam.

(R. 300.)

Ms. Yoder recorded that

Plaintiff had no complaints and no problems were noted on physical
exam.

(R. 301-02.)

On September 30, 2015, Plaintiff was again seen by Ms. Yoder
with complaints of knee pain.

(R. 303.)

In the “Review of

Systems” section of the office notes, Ms. Yoder stated “[s]he is
very confusing.

She seems to believe she can get disability

4

because her knee aches.
get a job.”

(R. 304.)

She is a trained phlebotomist unable to
Objectively, Ms. Yoder noted that Plaintiff

had many varicose veins and reported that her legs got tired by the
end of the day; Plaintiff had no edema in the legs; and she
“ramble[d] on and on about getting disability.”

(Id.)

Ms. Yoder

planned to get the replacement checked and assessed “leg problems”
and “very confusing conversation.”

(R. 304.)

On October 5, 2015, Dr. Golobek completed a Medical Opinion
Re: Ability to Do Physical Activities.

(R. 318-20.)

He found the

following: Plaintiff could sit for twenty minutes continuously and
for two hours total in an eight-hour day; she could stand for
fifteen minutes continuously and for less than two hours in an
eight-hour day; she would need a job which permitted shifting
positions at will; she would need unscheduled breaks four times per
day; she could occasionally lift ten pounds and never lift over
that; she could bend and twist at the waist twenty-five percent of
a work day; she had to avoid exposure to all identified
conditions/substances; she could occasionally twist, stoop (bend),
crouch, and climb stairs, and she could never climb ladders; and
she would likely be absent from work about once a month due to her
impairments or treatment.

(Id.)

Right knee x-rays done on November 9, 2015, showed the
prosthesis was in good alignment, no acute abnormality was
demonstrated, and there was no significant change since June 2014.

5

(R. 497.)
Gilbert Genouri, M.D., conducted an Internal Medicine
Examination on referral of the Bureau of Disability Determination
on November 23, 2015.

(R. 322.)

Plaintiff reported difficulty

with her right knee, including continued pain which she rated at 5
to 10/10 and said was precipitated by activity.

(Id.)

She also

reported occasional low back pain which she said occurred daily and
rated at 5 to 10/10.

(Id.)

Dr. Jenouri found Plaintiff was unable

to heel or toe walk, could squat to 50%, and had a positive
straight-leg raise test on the right side demonstrating lumbar
radiculopathy.

(R. 323-24.)

He opined that Plaintiff could

occasionally lift/carry twenty pounds and frequently lift/carry ten
pounds; and in an eight-hour day she could sit for two hours, stand
for one hour, and walk for one hour total.

(R. 327.)

He

attributed lifting limitations to her knee and low back pain as
well as decreased range of motion.

(R. 326.)

On January 29, 2016, Dr. Golobek opined that Plaintiff could
sit for thirty minutes at one time and for a total of one hour in a
workday; she could stand for thirty minutes at a time and for a
total of one hour in a workday; she needed to be able to shift
positions at will; she would need unscheduled fifteen minute breaks
every one and a half to two hours; she could occasionally
lift/carry twenty pounds and frequently lift/carry ten pounds; she
could frequently twist; she could occasionally stoop, crouch, and

6

climb stairs; she could never climb ladders; and she should avoid
exposure to all identified substances.

(R. 336-38.)

On February 15, 2016, Plaintiff saw Dr. Golobek with
complaints of pain and said her post-operative symptoms had
resolved and she was tolerating daily activities.

(R. 502.)

She

said she was not walking normally, she had difficulty navigating
stairs, and her difficulty walking progressed through the day.
(Id.)

Plaintiff also reported some back pain.

(Id.)

Dr. Golobek

planned to get a bone scan to check for inflammation or prosthetic
loosening.

(Id.)

A lumbar x-ray done on the same day showed disc

space narrowing and subluxations at L3 and L5 levels.

(R. 496.)

bone scan done on February 17, 2016, showed very mild increased

A

radiopharmaceutical activity involving the interface between the
tibial component of the right knee arthroplasty and the right knee
and presumed degenerative tricompartmental activity of the left
knee.

(R. 495.)

On March 7, 2016, Plaintiff saw Dr. Golobek for follow up of
her right knee problem.

(R. 498.)

Plaintiff reported 8/10 pain

and said that walking up and down stairs was nearly impossible for
her.

(Id.)

before.

She said the onset had been two to three months

(Id.)

Dr. Golobek said he did not know “where to go from

here” and wanted Plaintiff to get a second opinion with Michael
Hoffman, M.D.

(Id.)

Plaintiff was evaluated by Dr. Hoffman of Susquehanna Health

7

in Williamsport on April 7, 2016.

(R. 474.)

Examination findings

included active painful range of motion; gait “valgus thrust, ankle
pronation”; mild effusion on the right; and diffuse tenderness.
(R. 476.)

Dr. Hoffman assessed chronic pain of both knees for

which he planned further diagnostic evaluations; primary
osteoarthritis of the left knee; and instability of the prosthetic
knee.

(R. 477.)

Regarding the right knee, Dr. Hoffman said he

discussed treatment options with Plaintiff which included “using a
cane, brace vs revision knee replacement.”

(Id.)

He noted that

Plaintiff elected to proceed with surgery and would call if she
wanted to schedule it.

(Id.)

Plaintiff had right-knee revision surgery on June 13, 2016.
(R. 466.)

At her four-week post operative visit, Dr. Hoffman noted

that Plaintiff was “doing excellent,” walking with a cane for
stability, and had great range-of-motion.

(Id.)

In August, Dr.

Hoffman noted that Plaintiff was doing very well, she could
progress activity as tolerated, continue physical therapy, and
follow up one year postop.

(R. 464.)

In September 2016, Plaintiff reported to Dr. Hoffman that she
was very happy with the results of the right knee revision and her
left knee was the main concern at that point.
she was unable to weight-bear on it.

(Id.)

(R. 459.)

She said

Dr. Hoffman

administered an injection in her left knee and planned to repeat as
needed in three months.

(R. 461.)

8

In October, Plaintiff said the

injection had not helped and over-the-counter NSAIDs and Tylenol
were not helpful for the “horrible” left knee pain.

(R. 455.)

Hoffman planned to proceed with a left knee replacement.

Dr.

(R. 457.)

Plaintiff had left knee replacement surgery in January 2017.
(R. 364.)

Dr. Hoffman later found a well-healed incision, with

range-of-motion from 0 to 120 degrees on flexion, and good varusvulgas stability.

(R. 444.)

On March 13, 2017, Plaintiff was seen by Larry Gearhard, PA-C,
at Susquehanna Health Orthopedics and Rheumatology in Williamsport
for lumbar spine pain which she rated at a severity level of seven.
(R. 437.)

She described the pain as throbbing and radiating down

her legs and said it was aggravated by standing and walking.

(Id.)

On physical exam, Mr. Gearhard noted “when performing log roll . .
. patient did have shooting (burning/electric) pain up the
hamstrings L>R and the low back was tender to palpation.”
439.)

(R.

He reported that Plaintiff had an antalgic gait and she was

hunched over at the waist assisted with a walker.

(Id.)

Mr.

Gearhard, under the supervision and review of Dr. Hoffman, planned
to order further diagnostic evaluations of the lumbar spine.
440.)

(R.

He assessed spondylolisthesis at L5-S1 level, noting “60-70%

anterolisthesis of L5 on S1 dramatically increased since previous
plain films one year prior.”

(Id.)

Mr. Gearhard ordered a lumbar

spine MRI after which he would refer Plaintiff to Ronald E.
DiSmone, M.D., of Susquehanna Health Orthopedics for follow-up.

9

(Id.)

He also planned to refer her to Dr. DiSimone for the

assessed radiculopathy of the lumbar region.

(Id.)

Plaintiff saw Dr. DiSimone on April 19, 2017, for the lumbar
spine pain.

(R. 385.)

Examination showed lumbar spine tenderness,

tender right sciatic notch, and mildly positive Patrick’s test on
the right.

(R. 388.)

Dr. DiSimone assessed spondylolisthesis at

L5-S1, spinal stenosis in the lumbar region with neurogenic
claudication, and radiculopathy of the lumbosacral region.

(Id.)

He planned to refer Plaintiff to pain management specialist Rohit
Singh, M.D., for evaluation of the back and leg pain with walking
intolerance and also to refer her to physical therapy.

(Id.)

Regarding radiculopathy, Dr. DiSimone recorded the following
diagnostics: March 13, 2017, lumbar spine films showed Grade 1
unstable L5-S1 spondylolisthesis with a degenerative scoliosis on
the AP and sclerosis of both SI joints; anterolisthesis that
appeared stable at L3-4 in the lateral projection; March 21, 2017,
MRI showed anterolisthesis L5-S1 with minimal neural foraminal
stenosis bilaterally right greater than left; and MRI showed
numerous disc bulges centrally L2-3, L3-4, L4-5 without significant
central or neural foraminal stenosis.

(R. 388.)

He assessed grade

1 mildly unstable 5 S1 spondylolisthesis, lumbar spine canal
stenosis with pseudoclaudication; and degenerative lumbar
scoliosis.

(Id.)

In addition to medication, Dr. DiSimone recorded

the following Patient Plan:

10

Neurontin 200 mg nn qid. In lieu of formal
PT at this time, will do a stationary bike
for lower extremity strength testing.
Patient’s standing and walking tolerance is
so poor, she is available for only limited
duty and sedentary work. No more than 5
pounds lifting, 5 pound push pull,
intermittent sit/stand/walk. No climbing, no
repetitive bending, no kneeling as a
permanent restriction for this patient.
Referral to Dr. Singh in pain management for
selective nerve root blocks.
(Id.)
Dr. DiSimone completed a Medical Opinion Questionnaire on May
9, 2017, which reflected his April 19th plan.

(R. 393-95.)

He also

opined that Plaintiff could sit, stand/walk for less than two hours
total in an eight-hour day; she may need a cane or other assistive
device while engaging in occasional standing/walking; she could use
her hands to grasp, turn, and twist objects fifty percent of the
time; she could use her fingers for fine manipulation fifty percent
of the time; and she could use her arms for overhead reaching
twenty percent of the time.

(R. 393-94.)

On the same day, Plaintiff saw Christine Tofts, D.O., at
Guthrie for her annual physical.

(R. 415.)

Plaintiff reported

knee and back pain and noted that she had a pain management
referral for June.

(Id.)

Physical exam did not show tenderness,

but Plaintiff was stiff to stand from a seated position.

(R. 418.)

On June 28, 2017, Plaintiff saw Rohit Singh, M.D., a pain
management specialist for low back pain which she reported to be
persistent and moderate to severe in intensity, rating it at 711

8/10.

(R. 424.)

Plaintiff reported that the pain became worse

after her left knee surgery.

(Id.)

Physical exam showed a normal

gait; muscle spasm of the lumbar spine and moderate pain with range
of motion; mild pain with motion of both knees; paravertebral and
paraspinal tenderness; SI joint tenderness; single leg raise
limited bilaterally without lateralization; and no evidence of calf
muscle atrophy or hypertrophy.

(R. 426.)

He diagnosed lumbar

region spinal stenosis with neurogenic claudication; radiculopathy
of the lumbosacral region; spondylolisthesis at L5-S1; and chronic
knee pain.

(R. 427.)

Dr. Singh adjusted Plaintiff’s medication

regimen, planned to initiate a series of injections for the spinal
stenosis and radiculopathy, and planned aquatherapy for the
spondylolisthesis.
B.

(Id.)

ALJ Hearing
At the August 2, 2017, hearing, Plaintiff testified that lower

back pain was her main problem.

(R. 71.)

She said she always had

pain which she rated at 7/10 without medication and 5/10 with it.
(R. 72.)

She described the pain as radiating from her back to her

legs and explained that it affected her ability to walk for more
than a block, stand for more than one hour, sit form more than an
hour, climb more than a flight of stairs, and lift anything more
than ten pounds.

(R. 74-76, 77.)

Plaintiff also testified about

pushing and pulling difficulties as well as postural limitations
due to pain.

(R. 76-77.)

She talked about activities of daily

12

living, ability to do certain household chores, and her difficulty
doing others because of pain.

(R. 79-88.)

Following Plaintiff’s testimony, ALJ Balutis asked vocational
expert Josephine Doherty to consider a hypothetical individual of
Plaintiff’s age, education, and vocational background
restricted to a light exertional level with
the following additional restrictions:
posturally this person could . . . [n]ever
climb ladders, ropes, and scaffolds, and
never crawl. All of the remaining postural
movements would be occasional. For the
record, it’s climb ramps and stairs, balance,
stoop, kneel, and crouch.
Environmentally this person would have
frequent exposure to unprotected heights,
moving mechanical parts, extreme cold, and
vibration.
Pushing and pulling would be limited on
the right lower extremity to frequent.
(R. 91-92.)

When asked whether this individual would be able to

perform any of Plaintiff’s past work, Ms. Doherty responded that
she would be able to perform the phlebotomist position both as
performed and according to the DOT.

(R. 92.)

If the individual

were limited to standing and walking for a total of four hours in
an eight-hour day, Ms. Doherty said the person could not perform
past relevant work.
C.

(R. 93-94.)

ALJ Decision
With his September 20, 2017, decision, ALJ Balutis found that

Plaintiff had the following severe impairments: status post right
total knee replacement (2014); osteoarthritis of the left knee,
13

status post left total knee replacement (2017); spondylolisthesis
at L5-S1; spinal stenosis with neurogenic claudication; lumbosacral
radiculopathy; and obstructive sleep apnea.

(R. 24.)

He concluded

Plaintiff did not have an impairment or combination of impairments
that met or equalled the severity of a listed impairment.

(R. 25.)

ALJ Balutis then determined Plaintiff had the residual functional
capacity (“RFC”) to perform light work except she “should never
climb ladders, ropes and scaffolds or crawl.

She could

occasionally climb ramps and stairs, balance, kneel, stoop or
crouch.

The claimant could have frequent exposure to unprotected

heights, moving mechanical parts, extreme cold and vibration.
could frequently push/pull with the right lower extremity.”

She
(R.

25.)
With this RFC, the ALJ concluded Plaintiff was capable of
performing past relevant work as a phlebotomist.

(R. 29.)

He then

found that Plaintiff had not been under a disability as defined in
the Social Security Act from February 1, 2014, through the date of
the decision.

(Id.)
II. Disability Determination Process

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

1

It is necessary for the

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
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.
14

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

§ 423(d)(1)(A).
disabled

The Act further provides that an individual is

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).
15

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
four of the sequential evaluation process when the ALJ found that
Plaintiff could perform her past relevant work as a phlebotomist.
(R. 29.)
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
16

talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the ALJ to
analyze all probative evidence and set out the reasons for his
decision.

Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119-20 (3d

Cir. 2000) (citations omitted).

If he has not done so and has not

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

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

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
17

that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.

See, e.g., Knepp v.

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

Hartranft,

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

“However,

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

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

Cir. 1983) (internal quotation omitted).

Where a claimed error

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

Finally,

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

Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
18

IV. Discussion
As set out above, Plaintiff asserts the Acting Commissioner’s
determination should be remanded because the ALJ erred in his
assessment of medical expert opinions which limited Plaintiff to
sedentary or less-than-sedentary work and substituted his lay
judgment for these opinions.

(Doc. 9 at 5.)

Defendant responds

that substantial evidence supports the ALJ’s evaluation of medical
evidence.

(Doc. 10 at 15.)

The Court concludes Plaintiff has

satisfied her burden of showing error on the basis alleged.
Plaintiff points to the opinion of two treating physicians,
Dr. Golobek and Dr. DiSimone, and an examining physician, Dr.
Jenouri, which limited her to less-than sedentary work level.
(Doc. 9 at 6.)

She maintains the ALJ erred in finding she could do

light work “[d]espite this overwhelming, consistent, and
uncontroverted evidence.”

(Id.)

Plaintiff avers the ALJ reached

his conclusion based on “his own lay judgment and non-medical
interpretation of the medical evidence.”

(Id.)

Under applicable regulations and the law of the Third Circuit,
a treating medical source’s opinions are generally entitled to
controlling weight, or at least substantial weight.2

2

See, e.g.,

Though not applicable here, the regulations have eliminated
the treating source rule for claims filed on or after March 27,
2017, and in doing so have recognized that courts reviewing claims
have “focused more on whether we sufficiently articulated the
weight we gave treating source opinions, rather than on whether
substantial evidence supports our decision.” 82 FR 5844-01, 2017
WL 168819, *at 5853 (Jan. 18, 2017). The agency further stated
19

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

Sometimes called the “treating physician rule,” the

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

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

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

20 C.F.R. § 404.1527(c)(2).3

“A cardinal principle

that in its experience in adjudicating claims using the treating
source rule since 1991, the two most important factors for
determining persuasiveness are consistency and supportability,
which is the foundation of the new regulations. Id. Therefore,
the new regulations contain no automatic hierarchy for treating
sources, examining sources, or reviewing sources, but instead,
focus on the analysis of these factors. Id. 20 C.F.R. § 404.1520c
addresses the evaluation of opinion evidence for cases filed on or
after March 27, 2017.
3

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
20

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)).

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
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.
21

Pursuant to 20 C.F.R. § 404.1527(c)(2), an ALJ must assign
controlling weight to a well-supported treating medical source
opinion unless the ALJ identifies substantial inconsistent
evidence.

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

regarding when treating source opinions are entitled to controlling
weight.

SSR 96-2p, 1996 WL 374188, at *1.

For an opinion to be

“well-supported by medically acceptable clinical and laboratory
diagnostic techniques,” 28 U.S.C. § 404.1527(c)(2), “it is not
necessary that the opinion be fully supported by such evidence”–-it
is a fact-sensitive case-by-case determination.
374188, at *2.

SSR 96-2p, 1996 WL

It is a determination the adjudicator must make

“and requires an understanding of the clinical signs and laboratory
findings in the case record and what they signify.”

Id.

Similarly, whether a medical opinion “is not inconsistent with the
other substantial evidence in your case record,” 28 U.S.C. §
404.1527(c)(2), is a judgment made by the adjudicator in each case.
SSR 96-2p, 1996 WL 374188, at*3.

The ruling explains that

[s]ometimes, there will be an obvious
inconsistency between the opinion and the
other substantial evidence; for example, when
a treating source’s report contains an
opinion that the individual is significantly
limited in the ability to do work-related
activities, but the opinion is inconsistent
with the statements of the individual’s
spouse about the individual’s activities, or
when two medical sources provide inconsistent
medical opinions about the same issue. At
other times, the inconsistency will be less
obvious and require knowledge about, or
insight into, what the evidence means. In
22

this regard, it is especially important to
have an understanding of the clinical signs
and laboratory findings and any treatment
provided to determine whether there is an
inconsistency between this evidence and
medical opinions about such issues as
diagnosis, prognosis . . . , or functional
effects. Because the evidence is in medical,
not lay, terms and information about these
issues may be implied rather than stated,
such inconsistency may not be evidence
without an understanding of what the clinical
signs and laboratory findings signify.
SSR 96-2P, 1996 WL 374188, at *3.

The ruling further provides that

additional development may be needed to determine the appropriate
weight assigned a treating source opinion, “for example, to obtain
more evidence or to clarify reported clinical signs or laboratory
findings.”

Id. at *4.

In contrast to those cases where the record

is adequately developed, SSR 96-2p specifically states that the ALJ
or Appeals Council “may need to consult a medical expert to gain
more insight into what the clinical signs and laboratory findings
signify in order to decide whether a medical opinion is wellsupported or whether it is not consistent with the other
substantial evidence in the case record.”

Id.

Importantly, the weight assigned a treating source’s opinion
must be fully explained in the ALJ’s decision: when the decision is
not fully favorable, it “must contain specific reasons for the
weight given to the treating source's medical opinion, supported by
the evidence in the case record, and must be sufficiently specific
to make clear to any subsequent reviewers the weight the

23

adjudicator gave to the treating source's medical opinion and the
reasons for that weight.”

SSR 96-2p, 1996 WL 374188, at *5; see

also 20 C.F.R. § 404.1527(c)(2); 20 C.F.R. § 416.927(c)(2).

The

requirement that an ALJ provide a degree of specificity in support
of his conclusions cannot be satisfied by general statements or
broad reference to exhibits of record.

See, e.g., Gross v. Comm’r

of Soc. Sec., 653 F. App’x 116, 121-22 (3d Cir. 2016) (not
precedential).

Overall, SSR 96-2p, relevant regulations, and

caselaw reinforce the need for careful review of an ALJ’s decision
to discount a treating source opinion, with particular attention
paid to the reasons for discounting the opinion and the nature of
the evidence either cited as contradictory or otherwise relied upon
by the ALJ.4
Factors used to determine the weight properly attributed to an

4

Consistent with SSR 96-2p’s explanation of regulatory
terms, Third Circuit caselaw indicates that “lay reinterpretation
of medical evidence does not constitute ‘inconsistent . . .
substantial evidence.’” Carver v. Colvin, Civ. A. No. 1:15-CV00634, 2016 WL 6601665, at *16 (M.D. Pa. Sept. 14, 2016) (citing
Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 1978); Frankenfeld v.
Bowen, 861 F.2d 405, 408 (3d Cir. 1988); Doak v. Heckler, 790 F.2d
26, 29-30 (3d Cir. 1986); Ferguson v. Schweiker, 765 F.2d 31, 36-37
(3d Cir. 1985); Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir.
1983); Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir. 1983);
Kelly v. Railroad Retirement Bd., 625 F.2d 486, 494 (3d Cir. 1980);
Rossi v. Califano, 602 F.2d 55, 58-59 (3d Cir. 1979); Fowler v.
Califano, 596 F.2d 600, 603 (3d Cir. 1979)). Thus, the reviewing
court should disregard medical evidence cited as contradictory if
it is really lay interpretation or judgment rather than that of a
qualified medical professional. See, e.g., Carver, 6601665, at
*11.
24

examining source opinion are similar to those applied to a treating
source opinion, including supportability, consistency,
specialization, as well as the amount of understanding the source
has of Social Security disability programs and their evidentiary
requirements.

20 C.F.R. § 404.1527(c);

20 C.F.R. § 416.927(c).

Reviewing the ALJ’s decision on relevant opinions of record
in the legal framework set out above shows that ALJ Balutis did not
provide detailed reasons for the weight assigned any opinion at
issue here.

(R. 28.)

He found Dr. Golobek’s October 2015 opinion

entitled to little weight because it was “not supported by any
objective findings,” and the restrictions were not supported by
“the longitudinal medical evidence of record.”

(Id.)

ALJ Balutis

did not provide an explanation of why medical evidence was not
supportive of the opinion or point to any evidence which
contradicted it.

(Id.)

He assigned partial weight to Dr.

Golobek’s January 2016 opinion for the same reasons.

(Id.)

Despite the lack of explanation in his review of Dr. Golobek’s
opinions, ALJ Balutis noted elsewhere in his general review of
evidence that Dr. Golobek found no restrictions to Plaintiff
returning to work in May 2014 and in August 2014 he said he would
see her in one year.

(R. 26 (citing Ex. 1F [R. 249-91]).)

The

record contains no contact between Plaintiff and Dr. Golobek from
the August 2014 office visit to his October 2015 opinion.
supra pp. 4-5.

See

In August 2014, Plaintiff was “doing excellent,”

25

and three months earlier Dr. Golobek had cleared her to return to
work without restriction as a phlebotomist, which is a light duty
position as performed (R. 29, 91, 278, 279); in October 2015, Dr.
Golobek opined that Plaintiff was capable of performing less than
sedentary work (R. 318-20).

Similarly, evidence of record does not

show that Dr. Golobek evaluated Plaintiff between his October 2015
opinion and his January 2016 opinion.5

See supra pp. 5-6.

Reading the decision as a whole, the Court concludes the ALJ’s
error in not providing the required specificity would be harmless
because this is a case where there is “an obvious inconsistency
between the opinion and the other substantial evidence,” SSR 96-2p,
1996 WL 374188, at *3.

See Albury v. Comm’r of Soc. Sec., 116 F.

App’x 328, 330 (3d Cir. 2004) (not precedential) (where the ALJ’s
decision is explained in sufficient detail to allow meaningful
judicial review and the decision is supported by substantial
evidence, a claimed error may be deemed harmless) (citing Burnett
v. Commissioner, 220 F.3d 112, 119 (3d Cir. 2000).

Specifically,

it is obviously inconsistent for Dr. Golobek to opine that
Plaintiff was capable of less than sedentary work when he had not
seen her for over a year and had cleared her for light duty work
without restriction prior to when he last examined her.

5

(R. 278,

Although Plaintiff saw Dr. Golobek in February 2016 with
complaints of knee and back pain (R. 502), there is no indication
that he was aware of these complaints when he completed the January
2016 form opinion.
26

279, 318-20, 336-38.)

With this obvious inconsistency which shows

that Dr. Golobek’s opinions lack the support required to be
assigned controlling or significant weight, 20 C.F.R. §
404.1527(c); 20 C.F.R. § 416.927(c), remand for reconsideration of
the weight assigned the opinions is not warranted.
ALJ Balutis gave little weight to Dr. DiSimone’s opinion
regarding Plaintiff’s physical limitations.6
[R. 393-95]).)

(R. 28 (citing Ex. 9F

He did so because he concluded Dr. DiSimone’s

findings in the questionnaire that Plaintiff “would be limited to
less than a full range of sedentary work [were] not well supported
by the overall objective medical evidence of record.”

(R. 28.)

As with the his assessment of Dr. Golobek’s opinions, the
general statement explaining the weight assigned Dr. DiSimone’s
opinion does not satisfy the ALJ’s obligation to provide specific
reasons for discounting the opinion.

SSR 96-2p, 1996 WL 374188, at

*5; see also 20 C.F.R. § 404.1527(c)(2); 20 C.F.R. § 416.927(c)(2).
ALJ Balutis does not explain why the overall medical evidence of
record does not support the opinion or cite evidence which he finds
contradicts it.

(R. 28.)

However, unlike the assessments of Dr. Golobek’s opinions, the
Court cannot find the error harmless because the court is unable to

6

Although he reviewed the Physical Activities form completed
by Dr. DiSimone on May 9, 2017, ALJ Balutis did not review the
limitations expressed in Dr. DiSimone’s Patient Plan contained in
the April 19, 2017, office notes (R. 388). (See R. 27-28.)
27

conduct meaningful judicial review of the determination.
Albury, 116 F. App’x at 330.

See

At the office visit where Dr.

DeSimone’s Patient Plan included limitations consistent with those
identified in the questionnaire less than a month later, Dr.
DiSimone reviewed several diagnostic findings which he indicated
supported his assessments.

(R. 388.)

As noted above, ALJ Balutis

does not cite medical evidence or opinion contradicting Dr.
DiSimone’s analysis or determinations, and the Court does not find
inherent inconsistencies in the record as was the case with Dr.
Golobek’s opinions.

Without an explanation as to why the

diagnostics and clinical findings did not support Dr. DiSimone’s
assessed limitations, the Court cannot find the ALJ’s conclusions
are based on substantial evidence.

With no obvious inconsistencies

and no analysis, the Court agrees with Plaintiff that the ALJ
appears to have improperly relied on his own lay judgment in
rejecting Dr. DiSimone’s opinion and crafting the RFC.7

Morales,

7

The parties engage in discussion of whether an ALJ must
base the residual functional capacity determination on a medical
opinion setting out the functional capabilities of the claimant:
Plaintiff maintains that such an opinion is required pursuant to
Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986), (Doc. 9 at 7; Doc.
11 at 2-3); Defendant contends Plaintiff’s reliance on Doak is
misplaced and a specific medical opinion setting out the functional
capabilities found in the RFC is not necessary (Doc. 10 at 17-19, &
n.4 (citing Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 362 (3d
Cir. 2011); Titterington v. Barnhart, 174 F. App’x 6, 11 (3d Cir.
2006); Butler v. Colvin, Civ. A. No. 3:15-CV-1923, 2016 WL 2756268,
at *13 n.6 (M.D. Pa. May 12, 2016))).
Focusing on whether substantial evidence supports the ALJ’s
decision in this case, the Court does not adopt a per se rule that
the precise functional limitations found by the ALJ must be based
on a medical opinion or specific medical finding.
28

225 F.3d at 317.

Therefore, this matter must be remanded for

further consideration of Dr. DiSimone’s opinions.
Finally, the ALJ’s assignment of partial weight to Dr.
Jenouri’s opinion is problematic for similar reasons.

(R. 28.)

As

with Dr. DiSimone, Dr. Jenouri found Plaintiff capable of less than
sedentary work.

(R. 326-31.)

Though the ALJ’s conclusion that

Plaintiff had the RFC for light work shows that he rejected Dr.
Jenouri’s specific findings which limited Plaintiff to less than
sedentary work, ALJ Balutis provided no explanation as to what he
meant by “partial weight.”

(See R. 28.)

He stated only that he

gave partial weight to the opinion “because [Dr. Jenouri] was
relying solely and exclusively on one observation made on the day
of the examination and not upon long-term observations and
examinations of the claimant.”

(R. 28.)

The Court cannot find

this rationale adequate: if it were a sufficient reason to discount
the opinion of a consultative examiner who conducted the
examination and rendered the opinion at the request of the Bureau
of Disability Determination, then engaging the services of the
consultant would be pointless as, by nature and design, the
evaluation is a single-encounter.

Therefore, Dr. Jenouri’s opinion

must be further considered upon remand.
V. Conclusion
For the reasons discussed above, the Court concludes this
matter is properly remanded to the Acting Commission for further

29

action consistent with this opinion.

An appropriate Order is filed

simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: October 24, 2018

30