Reitz v. Commissioner of Social Security

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 10/19/18. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TERRY LEWIS REITZ,

:
:CIVIL ACTION NO. 3:18-CV-921
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 his application on March 20, 2015,
alleging disability beginning on January 1, 2014.

(R. 15.)

After

Plaintiff appealed the initial July 10, 2015, denial of the claim,
a video hearing was held by Administrative Law Judge (“ALJ”) David
Romeo on June 19, 2017.

(Id.)

ALJ Romeo issued his Decision on

August 11, 2017, concluding Plaintiff had not been under a
disability as defined in the Social Security Act (“Act”) from
January 1, 2014, through the date of the decision.

(R. 22.)

Plaintiff requested review of the ALJ’s decision which the Appeals
Council denied on March 1, 2018.

(R. 1-6.)

In doing so, the ALJ’s

decision became the decision of the Acting Commissioner.

(R. 1.)

Plaintiff filed this action on May 1, 2018.

(Doc. 1.)

He

asserts in his supporting brief that the Acting Commissioner’s
determination should be reversed for the following reasons: 1)

the

ALJ improperly determined that Plaintiff had the RFC to perform
medium work; 2) the ALJ did not address Plaintiff’s non-repaired
proximal biceps tendon tear; and 3) the ALJ improperly overruled
Plaintiff’s counsel’s objection to the vocational expert.
at 6.)

(Doc. 9

For the reasons discussed below, the Court concludes

Plaintiff’s appeal is properly granted.
I. Background
Plaintiff was born on January 2, 1959, and was fifty-four
years old on the alleged disability onset date.

(R. 21.)

Plaintiff has a high school education and has past relevant work as
a laborer.

(Id.)

In the May 1, 2015, Disability Report, Plaintiff

alleged his ability to work was limited by the following:
subscapularis tendon tear, right shoulder; superior labral tear,
right shoulder; and rotator cuff tear, right shoulder.
A.

(R. 203.)

MEDICAL AND OPINION EVIDENCE
Because Plaintiff’s substantive argument focuses on his

inability to lift more than twenty pounds frequently (Doc. 9 at 812; Doc. 11 at 1-5), the Court focuses on evidence related to his
lifting capacity.
As a result of a work injury which occurred on September 4,
2012, Plaintiff sustained a “rupture of the long head of biceps

2

tendon and partial thickness tear of supraspinatus right shoulder.”
(R. 285.)

Naveen Singanamala, M.D., performed right shoulder

arthroscopy and mini-open repair.

(R. 277.)

Follow-up treatment records show that Plaintiff had
physical/occupational therapy and medication management.
314.)

(R. 288-

As of February 27, 2013, which was seventeen weeks after

surgery, office notes indicated range-of-motion and strength were
improved to near-normal and Plaintiff did not have pain.
At the time, Plaintiff was on modified work duty.

(R. 315.)

(Id.)

On April 24, 2013, Dr. Singanamala advised Plaintiff to
continue his home exercise program, and he was allowed to do
lifting below shoulder level but no lifting/pulling/pushing at or
above shoulder level.

(R. 320.)

In July 2013, Plaintiff continued on modified duty and
reported to Dr. Singanamala that he had shoulder pain after doing
strenuous lifting at work.

(R. 321.)

of-motion of his right shoulder.

Plaintiff had limited range-

(R. 322.)

Dr. Singanamala

advised Plaintiff to do activity as tolerated and exercise
moderation in lifting.

(R. 323.)

In December, Plaintiff again reported right shoulder pain
which he said resulted from pushing a heavy piece of wood about the
level of his right shoulder a few days earlier.

(R. 324-25.)

Examination showed full range-of-motion, positive Yergason’s test,
positive Hawkins’s test, and positive O’Brien’s test.

3

(R. 325.)

Dr. Singanamala advised Plaintiff to avoid lifting and avoid
activity at or above shoulder level.

(R. 326.)

In January 2014, Plaintiff reported to Dr. Singanamala that
his pain had improved since he was not lifting weights at work but
the pain was present when he tried to lift weight and did anything
at or above shoulder level.
did not have pain at rest.

(R. 328.)
(Id.)

Plaintiff also reported he

Dr. Singanamala noted that

Plaintiff was recovering well from his surgery and he had ninetyfive percent of full strength and full range of motion.
Right shoulder exam was normal.

(Id.)

(Id.)

Dr. Singanamala

specifically stated that Plaintiff should continue with activities
that did not involve lifting weights over forty pounds and he
should have no activity at or above shoulder level.

(R. 329.)

In correspondence dated September 16, 2014, Dr. Singanamala
opined that Plaintiff’s right shoulder was not at full range-ofmotion or full-strength when compared to his left shoulder, he was
unlikely to recover one hundred percent function, and he would be
at increased risk of injury if he were “to start lifting heavy
weights, or above the recommendations that include a lifting limit
of 20 pounds and no lifting to or above shoulder level.”

(R. 277.)

On October 6, 2014, Plaintiff had a Functional Capacity
Assessment conducted by Rebecca Piccolo, OTR/L.

(R. 339-41.)

She

found that Plaintiff had the ability to “Lift-Carry” 55 pounds
occasionally, forty pounds frequently, and ten pounds constantly;

4

he had the ability “From floor” thirty pounds occasionally, twenty
pounds frequently, and zero pounds constantly; he had the ability
“To shoulder” twenty-five pounds occasionally, twenty pounds
frequently, and zero pounds constantly.1

(R. 339.)

Kaliopi Nestor, M.D., conducted a consultative examination on
June 2, 2015.

(R. 342-45.)

Plaintiff reported to Dr. Nestor that

Dr. Singanamala had put him on permanent restrictions of a twentypound lifting limit and no above shoulder activities in the right
upper extremity.

(R. 342.)

Dr. Nestor completed a Medical Source

Statement of Ability to Do Work-Related activities (Physical) on
the same date.

(R. 350-56.)

He concluded Plaintiff could lift up

to ten pounds continuously, eleven to twenty pounds frequently,
twenty-one to fifty pounds occasionally, and never over that.

(R.

350.)
On June 25, 2015, State agency reviewing consultant Nghia Van
Tran, M.D., reviewed records including the Function Report and Dr.
Nestor’s opinion.

(R. 54-56.)

He opined that Plaintiff could

occasionally lift fifty pounds and frequently lift twenty-five
pounds.

(R. 59.)

Dr. Tran acknowledged the twenty pound lifting

restriction identified by Dr. Singanamala and set out in the
Functional Capacity Evaluation, and he noted that he considered Dr.
Nestor’s report.

(R. 59-60.)

Dr. Tran stated that his RFC

1

“Occasionally” is defined as 1-33% of the time,
“Frequently” is defined as 34-66% of the time, and “constantly” is
defined as 67-100% of the time. (R. 339.)
5

assessment “partially reflects” or is “partially consistent” with
these opinions.

(Id.)

After Dr. Singanamala moved, Plaintiff saw Ted B. Eshbach,
M.D., for follow-up of his shoulder problem on October 26, 2016.
(R. 363.)

Dr. Eshbach noted Plaintiff was applying for disability,

and he stated he would rely upon the Functional Capacity Evaluation
to determine Plaintiff’s capabilities.

(Id.)

He further noted

that, although Plaintiff would not likely be able to perform his
previous strenuous work, he thought less strenuous work would be
possible.

(Id.)

Dr. Eschbach completed a Physical Medical Source Statement on
April 7, 2017.

(R. 371-74.)

He indicated he saw Plaintiff only

once (the October 26, 2016, visit) for his chronic shoulder pain.
(R. 371.)

He noted the clinical signs of slight limitation of the

right shoulder motion and again pointed to the Functional Capacity
Evaluation for specific limitations.
B.

(R. 371, 373.)

HEARING TESTIMONY
When questioned by ALJ Romeo at the June 19, 2017, hearing,

Plaintiff identified his lifting limitations as the reason he felt
he could not work.

(R. 34.)

He said a gallon of milk

heaviest thing he could lift around the house.

was the

(R. 41.)

Plaintiff explained he had not had health insurance since he
left his employment with Emporium Hardwoods so he had to pay for
healthcare himself.

(R. 43.)

He estimated that the last time he

6

had seen a doctor was September 2016.

(Id.)

Dr. Eric Dennison testified as a vocational expert over the
objection of Plaintiff’s attorney, Matthew Lager.

(R. 46.)

Mr.

Lager stated he could not stipulate to Dr. Dennison’s
qualifications because review of his CV and resume did not show
that he had any formal training related to vocation.

(R. 46.)

With a doctorate in continuing education and a master’s degree in
psychology, Mr. Lager stated it did not appear that Dr. Dennison
ever worked in a professional capacity in any sort of vocational
field.

(Id.)

Dr. Dennison responded that he had been in the

vocational field for almost twenty years as a career counselor in
the Navy and in his private companies where he worked with job
services including placement.

(R. 46.)

ALJ Romeo concluded Dr.

Dennison’s testimony and CV established substantial evidence to
allow him to testify as an expert in vocational placement.

(R.

47.)
Following this determination, ALJ Romeo identified a
hypothetical individual of Plaintiff’s age, education, and past
jobs who was limited to medium work with the additional limitations
of “frequent reach, handle, finger, and feel with both upper
extremities.

However, no overhead reaching or overhead lifting

with the right arm.

Never climb ropes, ladders, or scaffolds.

Never exposed to high exposed places or moving mechanical parts.”
(R. 48.)

Dr. Dennison concluded the individual could not perform

7

Plaintiff’s past relevant work but he could perform other work
including linen room attendant, checker, and caretaker.
49.)

(R. 48-

Dr. Dennison also identified jobs at the light level with the

same additional limitations as the first hypothetical.

(R. 49-50.)

When asked by Plaintiff’s attorney whether an individual who
could not lift more than twenty pounds with his right dominant arm
could perform the three medium duty level jobs identified, Dr.
Dennison responded “[i]f they can only lift up to 20 pounds with
the right dominant arm, then that would refer to them [sic] light
work.”

(R. 51.)

In summation, Plaintiff’s attorney noted Dr. Singanamala, Dr.
Eschach, and the Functional Capacity Evaluation indicated a twentypound restriction on his right arm which would limit him to light
duty at the most, and given Plaintiff’s onset date and age, under
the grid rules a fully favorable finding would be appropriate.

(R.

51-52.)
C.

ALJ DECISION
In his August 11, 2017, Decision, ALJ Romeo concluded

Plaintiff had the severe impairments of right shoulder status post
arthroscopy, mini open rotator cuff repair, subscapularis tendon
repair, and superior labral repair.

(R. 17.)

ALJ Romeo found

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

(Id.)

He

assessed Plaintiff to have the RFC to perform medium work except he

8

could “frequently reach, handle, finger, and feel with both upper
extremities; but no overhead reaching or lifting with the right
arm.

The claimant can never climbs [sic] ropes/ladders/scaffolds;

and never be exposed to high exposed places or moving, mechanical
parts.”

(R. 18.)

With this RFC, ALJ Romeo concluded Plaintiff could not perform
his past work but jobs existed in significant numbers in the
national economy that Plaintiff could perform.

(R. 21.)

Therefore, he determined that Plaintiff had not been under a
disability, as defined in the Social Security Act, from January 4,
2014, through the date of the decision.

(R. 22.)

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.
9

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

42 U.S.C. § 423(d)(2)(A).
10

can perform.

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

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

(R. 21.)

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
11

(“‘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
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.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
12

See, e.g., Knepp v.

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).
IV. Discussion

As set out above, Plaintiff asserts the Acting Commissioner’s
decision must be reversed for the following reasons: 1) the ALJ
improperly determined Plaintiff had the RFC to perform medium work;
2) the ALJ did not address Plaintiff’s non-repaired proximal biceps
tendon tear; and 3) the ALJ improperly overruled Plaintiff’s
counsel’s objection to the vocational expert.
13

(Doc. 9 at 6.)

A. MEDIUM WORK DETERMINATION
Plaintiff first asserts ALJ Romeo’s determination that he
could perform medium work is not supported by substantial evidence:
it is based on a misinterpretation of Dr. Nestor’s restrictions; it
is not consistent with any of the medical records evidence; and it
was the result of the ALJ substituting his lay interpretation of
the medical evidence for the interpretations of the physicians.
(Doc. 9 at 7.)

Defendant responds that substantial evidence

supports the ALJ’s finding that Plaintiff could perform a limited
range of medium work.

(Doc. 10 at 10.)

The Court concludes

Plaintiff has satisfied his burden of showing error on the basis
alleged and this matter must be remanded for further consideration.
“Medium work requires lifting no more that 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25
pounds.”

20 C.F.R. § 404.1567(c).

SSR 83-10 notes that “[b]eing

able to do frequent lifting or carrying of objects weighing up to
25 pounds is often more critical than being able to lift up to 50
pounds at a time.”

SSR 83-10, 1983 WL 31251, at *6.

“‘Frequent’

means occurring from one-third to two-thirds of the time.”

Id.

In his explanation of the RFC assessed, ALJ Romeo gave “great
weight” to the opinion of Dr. Nestor.

(R. 20.)

He stated Dr.

Nestor reported Plaintiff “was limited to medium lifting/carrying
with occasional reaching overhead with the left hand; right hand
was limited to frequent reaching, occasional pushing/pulling and no

14

reaching overhead” and other postural limitations.

(Id.)

The ALJ

did not discuss or acknowledge Dr. Nestor’s conclusion that
Plaintiff could lift/carry eleven to twenty pounds frequently (R.
350), and he did not explain how the assessed limitation allowed
Plaintiff to do medium work which requires the ability to
frequently lift up to twenty-five pounds.

20 C.F.R. § 404.1567.

Dr. Nestor’s opinion is the only opinion of record accorded
significant weight: ALJ Romeo gave Dr. Singanamala’s opinion that
Plaintiff would be effectively unable to use his right shoulder at
work limited weight3; he gave Dr. Tran’s opinion that Plaintiff
could engage in medium work minimal weight because it did “not
include right shoulder restrictions as a result of the claimant’s
residual pain”; he gave Ms. Piccolo’s opinion that Plaintiff was
limited to light lifting/carrying little weight because it was “not
consistent with the medical evidence as a whole [] and the opinion
of Dr. Eshbach, who reported the claimant was to avoid heavy
lifting/pushing/pulling and overhead lifting”; and he gave moderate
weight to this lifting limitation of Dr. Eshbach.

(R. 20.)

Given the ALJ’s reliance on Dr. Nestor’s opinion and the
discrepancy between the lifting/carrying limitations assessed by

3

ALJ Romeo noted that Dr. Singanamala had reported Plaintiff
could lift 40 pounds and was at 95% recovery (R. 20) but this
report preceded Dr. Singanamala’s recommendation that Plaintiff not
lift more than twenty pounds by eight months (R. 277, 328-29) and
Dr. Singanamala’s limitation was based on his assessment that
Plaintiff would be “at increased risk of reinjuring his shoulder”
if he were to lift above the recommended level (R. 277).
15

Dr. Nestor and the definition of medium work, the Court cannot
conclude ALJ Romeo’s RFC assessment is supported by Dr. Nestor’s
opinion.

Further, the Court cannot conclude the RFC assessment is

supported by substantial evidence for several additional reasons.
First, Dr. Nestor’s lifting/carrying limitations are consistent
with certain findings made in the detailed Functional Capacity
Evaluation (R. 339) which ALJ Romeo characterized as “at most light
lifting/carrying” (R. 20).

Second, although he assigned moderate

weight to some findings made by Dr. Eshbach (R. 20), ALJ Romeo
failed to note that Dr. Eschbach endorsed the FCE findings
regarding lifting/carrying (see R. 373).

Certainly Dr. Eshbach’s

endorsement of the FCE is probative evidence which required
consideration by the ALJ and, if he considered the evidence, an
explanation from the ALJ of the reason for rejecting it.
Dobrowolsky, 606 F.2d at 406; Cotter, 642 F.2d at 706-07.
Importantly, ALJ Romeo’s rejection of the FCE findings on the basis
of Dr. Eshbach’s opinion (R. 20) is flawed because Dr. Eshbach
agreed with the FCE’s lifting/carrying limitations (R. 373).
Defendant’s argument that Dr. Nestor’s opinion supports the
ALJ because Dr. Nestor found that Plaintiff could occasionally
lift/carry up to fifty pounds which is consistent with medium work
(Doc. 10 at 11) does not address the medium work requirement of
frequently being able to lift up to twenty-five pounds, 20 C.F.R. §
404.1567(c), a requirement which is not consistent with Dr.

16

Nestor’s opinion that Plaintiff could only lift twenty pounds
frequently (R. 350), and which SSR 83-10 explains is “often more
critical” than the fifty-pound consideration, 1983 WL 31251, at *6.
Further, Defendant’s assertion that the State agency opinion of Dr.
Tran supports medium work (id.) does not address ALJ Romeo’s
assignment of limited weight to the opinion or the general
supremacy of examining and treating opinions over that of a nonexamining source established in the relevant regulation, 20 C.F.R.
§ 404.1527(c).4

Finally, Defendant’s reliance on Dr. Eshbach’s

statement that Plaintiff could perform “‘less strenuous duties’” in
some capacity other than his previous heavy work (Doc. 10 at 12)
does not support an ability to do medium work in that work which is
“less strenuous” than heavy work also includes work at the
sedentary and light levels.
These findings require remand because they show that ALJ has
not provided a coherent explanation of the basis for his RFC
assessment.

In sum, the ALJ noticeably fails to discuss the

twenty-pound right arm lifting restriction assessed by examining
sources and its significance in the context of the ability to
perform medium work as evidenced by the definition of medium work

4

Dr. Tran reviewed the FCE and Dr. Nestor’s opinion which
both identified the twenty-pound lifting restriction but he did not
specifically explain the different lifting limitation he assessed,
i.e., the ability to lift twenty-five pounds frequently rather than
the twenty pounds expressed by examining providers. (Id.)
17

and the vocational expert’s testimony.
C.F.R. § 404.1567(b)-(c)); R. 51.)

(Doc. 9 at 6 (citing 20

Without explanation as to why

he disagreed with the lifting/carrying restriction of the examining
providers which would limit Plaintiff to light work, the ALJ found
Plaintiff capable of frequently lifting twenty-five pounds.
Interestingly, ALJ Romeo and Defendant gloss over the asserted
dispositive distinction in this case between finding Plaintiff
capable of medium work and light work.
52.)

(See Doc. 9 at 12: R. 51-

Upon remand, this distinction and Plaintiff’s lifting ability

warrant further consideration and detailed discussion.
B.

Proximal Biceps Tendon
Plaintiff contends the ALJ failed to address his non-repaired

tear to his proximal biceps tendon and failed to consider the
limitations imposed thereby.

(Doc. 9 at 12.)

Defendant responds

that Plaintiff has not identified limitations associated with the
non-repaired tendon, and, therefore, has not shown error on the
basis alleged.

(Doc. 10 at 16 (citing Petition of Sullivan, 904

F.2d 826, 845 (3d Cir. 1990) (a claimant must show that he has
associated functional limitations that prevent him from performing
substantial gainful activity)).)

The Court agrees that Plaintiff

has not asserted the required functional limitations associated
with the proximal biceps tendon.

However, because remand is

required for the reasons discussed above, consideration of any
associated limitations which may be established in the record
18

should be addressed.
C.

Vocational Expert Objection
Plaintiff maintains the ALJ improperly overruled his counsel’s

objection to Dr. Dennison serving as a vocational expert.
at 13.)

(Doc. 9

Defendant responds that the ALJ did not err on the basis

alleged and Plaintiff has not shown how he was prejudiced by the
alleged impropriety.

(Doc. 10 at 16-17 (citing Gachette v.

Weinberger, 551 F.2d 39, 41 (3d Cir. 1977); Hall v. Sec’y of
Health, Educ. and Welfare, 602 F.2d 1372, 1378 (9th Cir. 1979)).)
Plaintiff has not suggested specific harm related to the alleged
error and asserts that he need not do so because the burden shifts
to Defendant at step five.

(Doc. 11 at 5-6.)

Given the facts of

this case, the record before the Court, and Plaintiff’s general
averments, the Court finds no basis to deviate from the general
rule that “the burden of showing that an error is harmful normally
falls upon the party attacking the agency's determination,”
Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

Because Plaintiff

does not point to a specific harm associated with the claimed
error, the Court declines to find error on the basis alleged.
V. Conclusion
For the reasons discussed above, the Court concludes this
matter is properly remanded to the Acting Commission for further
action consistent with this opinion.

19

An appropriate Order is filed

simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: October 19, 2018

20