Tuttle v. Social Security Administration Michael Astrue

Filing 21

MEMORANDUM AND ORDER: 1. The Clerk of Court shall enter judgment in favor of Timothy Tuttle and against the Commissioner of Social Security as set forth in the following paragraph.2. The decision of the Commissioner of Social Security denying Timothy Tuttle disability insurance benefits and supplemental security income benefits isvacated and the case remanded to the Commissioner of Social Security to:2.1 Conduct a new administrative hearing and appropriately evaluate the medical evidence and the credibility of Timothy Tuttle in accordance with thebackground of this order.3. The Clerk of Court shall close this case. Signed by Honorable Sylvia H. Rambo on 09/07/11. (ma, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TIMOTHY A. TUTTLE,
Plaintiff
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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CIVIL NO. 4:10-CV-1392

(Judge Rambo)

MEMORANDUM AND ORDER
Background
The above-captioned action is one seeking review
of a decision of the Commissioner of Social Security
("Commissioner") denying Plaintiff Timothy A. Tuttle’s
claim for social security disability insurance benefits
and supplemental security income benefits.

For the

reasons set forth below we will remand the case to the
Commissioner for further proceedings.
Disability insurance benefits are paid to an
individual if that individual is disabled and “insured,”
that is, the individual has worked long enough and paid
social security taxes.

The last date that a claimant

meets the requirements of being insured is commonly

referred to as the “date last insured.”

It is

undisputed that Tuttle met the insured status
requirements of the Social Security Act through December
31, 2010. Tr. 11, 13 and 109.1
Supplemental security income is a federal income
supplement program funded by general tax revenues (not
social security taxes).

It is designed to help aged,

blind or other disabled individuals who have little or
no income.

Insured status is irrelevant in determining

a claimant’s eligibility for supplemental security
income benefits.
Tuttle was born in the United States on April
22, 1957. Tr. 79-80, 101 and 106.

Tuttle graduated from

high school in 1975 and can read, write, speak and
understand English and do basic mathematical functions.
Tr. 78, 118 and 177.

After graduating from high school

Tuttle obtained additional vocational training as a
machine operator. Tr.

123.

He also obtained

certificates in welding and blue print reading. Tr. 177.

References to “Tr.___” are to pages of the
administrative record filed by the Defendant as part of
his Answer on September 10, 2010.
1.

2

Records of the Social Security Administration
reveal that Tuttle had a 32-year history of employment
and earnings as follows:
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006

$

3

8.00
1133.02
4339.21
5684.15
6099.77
8441.33
9649.82
10140.55
11067.84
13122.09
13305.50
14764.22
15635.74
17015.04
19602.39
19441.40
22774.97
31035.68
35453.75
30418.06
23201.33
31217.88
36713.70
38380.97
17737.30
17248.25
22332.19
22933.37
23567.53
20862.23
(No Earnings)
6772.71
6481.21

Tr. 110.

Tuttle’s total earnings were $556,581.23. Id.

Tuttle’s past relevant employment2 was as a machine
operator and mechanic’s helper. Tr. 53.

Tuttle’s past

relevant employment was classified as unskilled to semiskilled, medium to heavy work.3
Past relevant employment in the present case means
work performed by Tuttle during the 15 years prior to
the date his claim for disability was adjudicated by
the Commissioner. 20 C.F.R. §§ 404.1560 and 404.1565.
2.

The terms sedentary, light, medium and heavy work
are defined in the Social Security regulations as
follows:
3.

(a) Sedentary work. Sedentary work involves
lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like
docket files, ledgers, and small tools.
Although a sedentary job is defined as one
which involves sitting, a certain amount of
walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally
and other sedentary criteria are met.
(b) Light work. Light work involves lifting no
more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to
10 pounds. Even though the weight lifted may
be very little, a job is in this category when
it requires a good deal of walking or standing,
or when it involves sitting most of the time
with some pushing and pulling of arm or leg
controls. To be considered capable of
performing a full or wide range of light work,
(continued...)
4

Tuttle worked as a mechanic’s helper for United
States Surgical Corporation in Connecticut from 1978 to
June, 1997. Tr. 111 and 140.

In 1997 while working for

United States Surgical Corporation Tuttle allegedly
injured his back while lifting an item weighing about 50
pounds. Tr. 145.

Tuttle then worked from 1998 to

October, 2003, for J. Calzone, Inc., as a laborer
3.

(...continued)

you must have the ability to do substantially
all of these activities. If someone can do
light work, we determine that he or she can
also do sedentary work, unless there are
additional limiting factors such as loss of
fine dexterity or inability to sit for long
periods of time.
(c) Medium work. Medium work involves lifting
no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to
25 pounds. If someone can do medium work, we
determine that he or she can do sedentary and
light work.
(d) Heavy work. Heavy work involves lifting no
more than 100 pounds at a time with frequent
lifting or carrying of objects weighing up to
50 pounds. If someone can do heavy work, we
determine that he or she can also do medium,
light, and sedentary work.
20 C.F.R. §§ 404.1567 and 416.967.

5

installing sheet metal ducts weighing 50-80 pounds. Tr.
111-112 and 140.

Tuttle was unemployed in 2004.

In

2005 and 2006 Tuttle obtained work as a manual laborer
through an employment placement agency. Tr. 112 and 140141.
Tuttle claims that he became disabled on July 1,
2006, because of a kidney stone and leg and back pain.
Tr. 119.

He also claims he suffers from panic attacks

and is “fearful of crowds and avoids people.” Tr. 169.
Tuttle has not engaged in any substantial gainful work
activity since July 1, 2006, the alleged disability
onset date. Tr. 13.
On January 17, 2007, Tuttle protectively filed
an application for social security disability insurance
benefits and an application for supplemental security
income benefits. Tr. 11, 79 and 100-108.4

On July 25,

Protective filing is a term for the first time an
individual contacts the Social Security Administration
to file a claim for benefits. A protective filing date
allows an individual to have an earlier application
date than the date the application is actually signed.
4.

6

2007, the Bureau of Disability Determination5 denied
Tuttle’s applications. Tr 79-90.6

On August 20, 2007,

Tuttle requested a hearing before an administrative law
judge. Tr. 93-94.7

After approximately fifteen months

had passed a hearing was held before an administrative
law judge on December 3, 2008. Tr. 19-60.

On February

19, 2009, the administrative law judge issued a decision
denying Tuttle’s applications for benefits. Tr. 11-18.
On March 27, 2009, Tuttle filed a request for review of

5. The Bureau of Disability Determination is an agency
of the Commonwealth of Pennsylvania which initially
evaluates applications for disability insurance
benefits and supplemental security income benefits on
behalf of the Social Security Administration. Tr. 7980.
6. Although noted in the index of the administrative
record, pages 81-90 are missing from the administrative
record. Doc. No. 8-2, Court Transcript Index. Those
documents – Notices of Disapproved Claims – are
helpful at times in determining the impairments alleged
by a plaintiff but the absence of those documents does
not preclude us from issuing a decision in the present
case.
7. Although noted in the index of the administrative
record, pages 93-94 are missing from the administrative
record. Doc. No. 8-2, Court Transcript Index. Those
documents are not essential and their absence does not
preclude us from issuing a decision in the present
case.
7

the administrative law judge’s decision with the Appeals
Council of the Social Security Administration. Tr. 6-7.
After more than 13 months had passed, the Appeals
Council on May 6, 2010, concluded that there was no
basis upon which to grant Tuttle’s request for review.
Tr. 1-5.

Thus, the administrative law judge’s decision

stood as the final decision of the Commissioner.
On July 6, 2010, Tuttle filed a complaint in
this court requesting that we reverse the decision of
the Commissioner and award him benefits, or remand the
case to the Commissioner for further proceedings.
The Commissioner filed an answer to the
complaint and a copy of the administrative record on
September 10, 2010.

Tuttle filed his brief on January

5, 2011, and the Commissioner filed his brief on
February 1, 2011.

The appeal8 became ripe for

disposition on February 18, 2011, when Tuttle elected
not to file a reply brief.
Under the Local Rules of Court “[a] civil action
brought to review a decision of the Social Security
Administration denying a claim for social security
disability benefits” is “adjudicated as an appeal.”
M.D.Pa. Local Rule 83.40.1.
8.

8

STANDARD OF REVIEW
When considering a social security appeal, we
have plenary review of all legal issues decided by the
Commissioner.

See Poulos v. Commissioner of Social

Security, 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v.
Commissioner of Social Sec. Admin.,

181 F.3d 429, 431

(3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857,
858 (3d Cir. 1995).

However, our review of the

Commissioner’s findings of fact pursuant to 42 U.S.C. §
405(g) is to determine whether those findings are
supported by "substantial evidence."

Id.; Brown v.

Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v.
Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).

Factual

findings which are supported by substantial evidence
must be upheld. 42 U.S.C. §405(g); Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001)(“Where the
ALJ’s findings of fact are supported by substantial
evidence, we are bound by those findings, even if we
would have decided the factual inquiry differently.”);
Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.
1981)(“Findings of fact by the Secretary must be
accepted as conclusive by a reviewing court if supported
9

by substantial evidence.”);

Keefe v. Shalala, 71 F.3d

1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d
171, 176 (4th Cir. 2001);

Martin v. Sullivan, 894 F.2d

1520, 1529 & 1529 n.11 (11th Cir. 1990).
Substantial evidence “does not mean a large or
considerable amount of evidence, but ‘rather such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Pierce v. Underwood,
487 U.S. 552, 565 (1988)(quoting Consolidated Edison Co.
v. N.L.R.B., 305 U.S. 197, 229 (1938)); Johnson v.
Commissioner of Social Security, 529 F.3d 198, 200 (3d
Cir. 2008);

Hartranft v. Apfel, 181 F.3d 358, 360 (3d

Cir. 1999).

Substantial evidence has been described as

more than a mere scintilla of evidence but less than a
preponderance.

Brown, 845 F.2d at 1213.

In an

adequately developed factual record substantial evidence
may be "something less than the weight of the evidence,
and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an
administrative agency's finding from being supported by
substantial evidence." Consolo v. Fed. Maritime Comm’n,
383 U.S. 607, 620 (1966).
10

Substantial evidence exists only "in
relationship to all the other evidence in the record,"
Cotter, 642 F.2d at 706, and "must take into account
whatever in the record fairly detracts from its weight."
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488
(1971).

A single piece of evidence is not substantial

evidence if the Commissioner ignores countervailing
evidence or fails to resolve a conflict created by the
evidence.

Mason, 994 F.2d at 1064.

The Commissioner

must indicate which evidence was accepted, which
evidence was rejected, and the reasons for rejecting
certain evidence. Johnson, 529 F.3d at 203; Cotter, 642
F.2d at 706-707.

Therefore, a court reviewing the

decision of the Commissioner must scrutinize the record
as a whole.

Smith v. Califano, 637 F.2d 968, 970 (3d

Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407
(3d Cir. 1979).
SEQUENTIAL EVALUATION PROCESS
To receive disability benefits, the plaintiff
must demonstrate an “inability to engage in any
11

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. § 432(d)(1)(A).

Furthermore,
[a]n individual shall be determined to be under
a disability 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. For purposes of the
preceding sentence (with respect to any
individual), “work which exists in the national
economy” means work which exists in significant
numbers either in the region where such
individual lives or in several regions of the
country.
42 U.S.C. § 423(d)(2)(A).
The Commissioner utilizes a five-step process in
evaluating disability insurance and supplemental
security income claims.

See 20 C.F.R. § 404.1520 and 20

12

C.F.R. § 416.920; Poulos, 474 F.3d at 91-92.

This

process requires the Commissioner to consider, in
sequence, whether a claimant (1) is engaging in
substantial gainful activity,9 (2) has an impairment
that is severe or a combination of impairments that is
severe,10 (3) has an impairment or combination of
If the claimant is engaging in substantial gainful
activity, the claimant is not disabled and the
sequential evaluation proceeds no further. Substantial
gainful activity is work that “involves doing
significant and productive physical or mental duties”
and “is done (or intended) for pay or profit.” 20
C.F.R. § 404.1510 and 20 C.F.R. § 416.910.
9.

The determination of whether a claimant has any
severe impairments, at step two of the sequential
evaluation process, is a threshold test. 20 C.F.R. §§
404.1520(c) and 416.920(c). If a claimant has no
impairment or combination of impairments which
significantly limits the claimant’s physical or mental
abilities to perform basic work activities, the
claimant is “not disabled” and the evaluation process
ends at step two. Id. If a claimant has any severe
impairments, the evaluation process continues. 20
C.F.R. §§ 404.1520(d)-(g) and 416.920(d)-(g).
Furthermore, all medically determinable impairments,
severe and non-severe, are considered in the subsequent
steps of the sequential evaluation process. 20 C.F.R.
§§ 404.1523, 404.1545(a)(2), 416.923 and 416.945(a)(2).
An impairment significantly limits a claimant’s
physical or mental abilities when its effect on the
claimant to perform basic work activities is more than
10.

(continued...)
13

impairments that meets or equals the requirements of a
listed impairment,11 (4) has the residual functional
capacity to return to his or her past work and (5) if
not, whether he or she can perform other work in the
national economy. Id.

As part of step four the

administrative law judge must determine the claimant’s
residual functional capacity. Id.12
Residual functional capacity is the individual’s
maximum remaining ability to do sustained work

10.

(...continued)

slight or minimal. Basic work activities include the
ability to walk, stand, sit, lift, carry, push, pull,
reach, climb, crawl, and handle. 20 C.F.R. §
404.1545(b). An individual’s basic mental or nonexertional abilities include the ability to understand,
carry out and remember simple instructions, and respond
appropriately to supervision, coworkers and work
pressures. 20 C.F.R. § 1545(c).
If the claimant has an impairment or combination of
impairments that meets or equals a listed impairment,
the claimant is disabled. If the claimant does not have
an impairment or combination of impairments that meets
or equals a listed impairment, the sequential
evaluation process proceeds to the next step.

11.

If the claimant has the residual functional
capacity to do his or her past relevant work, the
claimant is not disabled.

12.

14

activities in an ordinary work setting on a regular and
continuing basis.

See Social Security Ruling 96-8p, 61

Fed. Reg. 34475 (July 2, 1996).

A regular and

continuing basis contemplates full-time employment and
is defined as eight hours a day, five days per week or
other similar schedule.

The residual functional

capacity assessment must include a discussion of the
individual’s abilities. Id.; 20 C.F.R. §§ 404.1545 and
416.945; Hartranft, 181 F.3d at 359 n.1 (“‘Residual
functional capacity’ is defined as that which an
individual is still able to do despite the limitations
caused by his or her impairment(s).”).

MEDICAL RECORDS
Before we address the administrative law judge’s
decision and the errors committed by him, we will review
in detail Tuttle’s medical records.
The first medical record that we encounter is
from 2006.

On September 26, 2006, Tuttle had an
15

appointment with his primary care physician, Emma Rubin,
M.D. Tr. 215.

On that date Tuttle complained of

pinching pain in the right lower quadrant of his trunk
and increased urinary frequency (two to three time at
night) as well as a problem urinating. Id.

He stated to

Dr. Rubin that he was told that he had a kidney stone.
Id.

The physical examination revealed that Tuttle’s

blood pressure was 120/80, his height was 6'1" and he
weighed 153 pounds. Id.

There were no abnormal physical

examination findings noted. Id.

It was specifically

stated that Tuttle had “no CVA tenderness.”13

Id.

Under the impression section of Dr. Rubin’s medical
notes she states that Tuttle was suffering from urinary

“CVA” refers to the costovertebral angle which is
the acute angle formed between the lowest rib and the
vertebral column. Pain at this area is usually
attributed to kidney disease. Costovertebral Angle definition of costovertebral angle in the Medical
Dictionary - by the Free Online Dictionary, Mosby’s
Medical Dictionary, 8th Edition, 2009, http://medical
-dictionary.thefreedictionary.com/costovertebral+angle
(Last accessed August 24, 2011).
13.

16

frequency and possibly benign prostatic hyperplasia14 or
possibly a urinary tract infection. Id.

Dr. Rubin

ordered diagnostic tests including a urine culture and a
complete blood count. Id.

Dr. Rubin also ordered a

urology consultation and prescribed Flomax. Id.
On November 29, 2006, Tuttle had an appointment
with Donald L. Preate, Jr., M.D., a urologist.15 Tr. 185187.

When Dr. Preate reviewed Tuttle’s systems with

Tuttle, Tuttle denied suffering from nausea, vomiting.

The Mayo Clinic website describes benign prostatic
hyperplasia or hypertorphy as follows:

14.

Prostate gland enlargement is a common condition as
men get older. Also called benign prostatic
hypertrophy, prostate gland enlargement can cause
bothersome urinary symptoms. Untreated prostate
gland enlargement can block the flow of urine of
the bladder and can cause bladder, urinary tract
or kidney problems.
Prostate gland enlargement, Definition, Mayo Clinic
staff, http://www.mayoclinic.com/health/prostategland-enlargement/DS00027 (Last accessed August 23,
2011).

Dr. Preate is with Delta Medix Urology located in
Scranton, Pennsylvania. Tr. 185.

15.

17

fevers, chills, headaches, dizziness, blurry vision,
loss of vision, vertigo, chest pain, palpitations,
pulmonary difficulties (such as shortness of breath),
breathing problems, wheezing, gastrointestinal
discomfort or pain, diarrhea, cachexia,16 anorexia,
hematochezia,17 constipation, significant weight loss,
major musculoskeletal problems, skin abnormalities,
bleeding tendencies, and neurological deficits.

Dr.

Preate in his report of the appointment noted Tuttle’s
reported history of nephrolithiasis (kidney stones) as
well as voiding dysfunction and, under the physical
examination portion of his report, noted no abnormal
findings.

Specifically, Dr. Preate stated “[h]e has no

costovertebral angle tenderness.

The paraspinal muscles

are without discomfort or pain to palpation.” Tr. 186.

Cachexia is “a profound and marked state of
constitutional disorder; general ill health and
malnutrition.” Dorland’s Illustrated Medical
Dictionary, 250 (27th Ed. 1988).

16.

Hematochezia is “the passage of bloody stools.”
Dorland’s Illustrated Medical Dictionary, 741 (27 th Ed.
1988).
17.

18

Dr. Preate noted that Tuttle’s American
Urological Association Benign Prostatic Hyperplasia
symptom score was 21. Id.
to 35 is considered severe.

A self-reported score of 20
Enlarged Prostate and Your

BPH Symptoms Score, WebMD, http://men.webmd.com/enlarged
-prostate-your-bph-symptoms-score (Last accessed August
23, 2011).
186.

Tuttle’s prostate blood test was normal. Tr.

Dr. Preate’s impression was that Tuttle was

suffering from a voiding dysfunction, a history of right
sided flank pain, a history of kidney stones,
unspecified, and a history of smoking. Tr. 186-187.

Dr.

Preate prescribed the drug Hytrin,18 ordered a renal
ultrasound and a kidney, ureter and bladder (KUB) x-ray,
and scheduled a follow-up appointment in six weeks. Tr.
187.
On December 21, 2006, Dr. Rubin examined Tuttle
and completed on behalf of Tuttle a document entitled

Hytrin is a drug that makes it easier to urinate by
relaxing the muscles in the prostate and bladder neck.
Hytrin, Drugs.com, http://www.drugs.com/hytrin.html
(Last accessed August 24, 2011).

18.

19

“Pennsylvania Department of Public Welfare Employability
Assessment Form.” Tr. 180-181 and 214.

In the

Employability Assessment form Dr. Rubin stated that
Tuttle was temporarily disabled for less than twelve
months beginning November 1, 2006, and lasting until
November 1, 2007.

Tr. 181.

Dr. Rubin’s diagnosis was

that Tuttle suffered from right kidney nephrolithiasis,
benign prostatic hyperplasia and varicose veins. Id.
Her assessment was based on a physical examination of
Tuttle, review of medical records and Tuttle’s clinical
history. Id.
On February 21, 2007, Tuttle had an x-ray of his
abdomen done which revealed “a calcific density
overlying the lower pole of the left kidney.” Tr. 191.
However, it was stated that this finding might be
related to “gas and feces” in the large intestine. Id.
Sometime in February, 2007, Tuttle had an
appointment with Dr. Rubin.19 Tr. 213.

Dr. Rubin noted

The date on the record of this appointment is
illegible.

19.

20

that Tuttle’s back problem was acting up and Tuttle also
had varicose veins. Id.

Under the physical examination

portion of Dr. Rubin’s report of this appointment there
were no abnormal findings noted. Id.

Dr. Rubin’s

impression was that Tuttle was suffering from chronic
back pain and varicose veins. Id.

She ordered an x-ray

and an MRI of the lumbar spine and recommended that
Tuttle take Motrin on an as needed basis(“motrin prn”).
Tr. 213.
On March 2, 2007, Tuttle had a lower extremity
venous duplex evaluation conducted by Sara Goerlitz,
technologist and reviewed by Edward L. Batzel, M.D. Tr.
226.

This diagnostic evaluation revealed no evidence of

deep venous or superficial thrombosis bilaterally. Id.
However, the evaluation revealed reflux in the right
common femoral vein and in the bilateral greater
saphenous veins below the knees upon standing. Id.
physical examination of Tuttle’s legs revealed
varicosities bilaterally. Id.

21

A

Also, on March 2, 2010, Tuttle had an x-ray done
of the lumbar and sacral spine which revealed moderate
degenerative disc disease at the L4-L5 level with mild
spondylosis and mild scoliosis of the lumbar spine.
228.

Tr.

The scoliosis was oriented toward the left

(levoscoliosis). Id.

The x-ray revealed mild osteophyte

(spur) formation in the lumbar spine. Id.
On March 7, 2007, Tuttle had an MRI done of the
lumbar spine which revealed the following:
Degenerative 3 lower lumbar discs with annular
circumferential bulging at L4-L5 with extension
the intervertebral foramina and bilateral
foraminal narrowing and the possible nerve root
compression. Mild annulus bulging at L3-L4 and
L5-S1. No focal herniation and no bony canal
stenosis. Levoscoliosis of the lumbar spine and
no compression fracture or marrow infiltrative
process.
Tr. 217-218.
On March 13, 2007, Tuttle had a psychiatric
evaluation performed apparently by Guido Boriosi, M.D.,
at Advanced Community Service Associates, Scranton,
Pennsylvania. Tr. 13 and 239.

There is only one page of

the report of this initial evaluation included in the
22

administrative record and that page does not indicate
Tuttle’s mental status, diagnosis or prognosis.

Id.

On March 20, 2007, Tuttle had an ultrasound of
the kidneys which revealed an unremarkable right kidney
and a 7 millimeter calculus (stone) in the lower pole of
the left kidney. Tr. 225.

The kidney stone was

positioned such that it did not obstruct the flow of
urine. Id.
On April 3, 2007, Tuttle had a follow-up
appointment with Dr. Preate at Delta Medix Urology.

Dr.

Preate in his report of that appointment stated that
Tuttle “had a kidney ultrasound and a KUB which showed a
nonobstructing 7 mm stone in the lower pole of the left
kidney.

He gets occasional twinge but this is not

terribly bothersome.

At the present time he wishes to

continue on conservative management[.]” Tr. 184.

Dr.

Preate continued Tuttle on Hytrin and counseled Tuttle
regarding his diet. Id.

A six month follow-up

appointment was scheduled. Id.

23

Also, in April, 2007, Tuttle had an appointment
with Dr. Boriosi. Tr. 238.

The date on the report of

the appointment is illegible. Id.
status findings were benign.

Id.

Dr. Boriosi’s mental
He noted that Tuttle

was friendly, alert and cooperative; Tuttle denied
suicidal and homicidal thoughts; and Tuttle denied drug
and alcohol usage.

Dr. Boriosi stated that Tuttle was

“doing better” and continued Tuttle’s ongoing therapy
and medication. Id.

The record does not specify

Tuttle’s medications, other than Celexa.20 Id.
On April 23, 2007, Tuttle had an appointment
with Dr. Rubin. Tr. 212.

At that appointment Tuttle

complained of low back pain radiating to the right leg.
Id.

The physical examination revealed that Tuttle’s

blood pressure was 110/70 and he weighed 175 pounds.
Id.

There were no abnormal physical examination

findings noted. Id.

Dr. Rubin did note that the MRI of

Dr. Boriosi’s handwriting is difficult to decipher.
Celexa is a drug used to treat depression. Celexa,
Drugs.com, http://www.drugs.com/celexa.html (Last
accessed August 24, 2011).

20.

24

Tuttle’s lumbar spine revealed nerve root compression.
Id.

Dr. Rubin’s impression/diagnosis was that Tuttle

suffered from lumbar degenerative disc disease21 and

Degenerative disc disease has been described as
follows:

21.

As we age, the water and protein content of the
cartilage of the body changes. This change
results in weaker, more fragile and thin
cartilage. Because both the discs and the
joints that stack the vertebrae (facet joints)
are partly composed of cartilage, these areas
are subject to wear and tear over time
(degenerative changes). The gradual
deterioration of the disc between the vertebrae
is referred to as degenerative disc disease.
Wear of the facet cartilage and the bony
changes of the adjacent joint is referred to as
degenerative facet joint disease or
osteoarthritis of the spine.
Degeneration of the disc is medically referred
to as spondylosis. Spondylosis can be noted on
x-ray tests or MRI scanning of the spine as a
narrowing of the normal "disc space" between
the adjacent vertebrae.
Degenerative Disc Disease & Sciatica, MedicineNet.com,
http://www.medicinenet.com/degenerative_disc/page2.htm
(Last accessed August 25, 2011). Degenerative disc
disease is considered part of the normal aging process.
Id.
25

lumbar radiculopathy.22 Id.

Physical therapy was ordered

along with the use of ultra sound and hot packs. Id.
On May 7, 2007, Tuttle had an appointment with
Dr. Boriosi. Tr. 237.

Dr. Boriosi’s mental status

findings were benign. Id.

He noted that Tuttle was

friendly, alert and cooperative; Tuttle denied suicidal
and homicidal thoughts; and Tuttle denied drug and
alcohol usage.

Dr. Boriosi stated that Tuttle was

“doing good” and continued Tuttle’s ongoing therapy and
medication. Id.

The record does not specify Tuttle’s

medications, other than Celexa. Id.
Radiculopathy is a condition where one or more
nerves or nerve roots are affected and do not work
properly. The nerve roots are branches of the spinal
cord. They carry signals to the rest of the body at
each level along the spine. Radiculopathy is a result
of disc herniation or an injury causing foraminal
impingement of an exiting nerve (the narrowing of the
channel through which a nerve root passes). See
generally, Radiculopathy, MedicineNet.com, http://
www.medicinenet.com/radiculopathy/article.htm (Last
accessed August 25, 2011). A herniated disc is one
cause of radiculopathy. Id. Scoliosis also can cause
radiculopathy. Id. Radiculopathy is a step beyond
degenerative disc disease and severe cases may requires
surgical intervention. Id. However, “the majority of
patients respond well to conservative treatment
options.” Id.
22.

26

On May 8, 2007, Tuttle had an initial physical
therapy evaluation at Mercy Health Partners,
Rehabilitation Services, Scranton, Pennsylvania.
208.

Tr.

The physical therapist’s examination of Tuttle

revealed that Tuttle’s “[a]ctive and passive range of
motion of both lower extremities is within normal limits
with 4+/5 strength throughout the left lower extremity,
4/5 strength throughout the right hip and knee [and]
4+/5 strength throughout the right ankle.” Tr. 208.23
Tuttle’s active range of motion of the trunk (which
includes the spinal column) was reduced by 50% with
respect to flexion and left rotation and 25% with
respect to extension, right rotation, left lateral
flexion and right lateral flexion. Id.

Tuttle

complained of increased pain with movement of the trunk.
Id.

He also had muscle tightness in the lumbar and

sacral areas with tenderness elicited by palpation on

5/5 is normal strength. Strength of Individual
Muscle Groups, Neuroexam.com, http://www.neuroexam.com/
neuroexam/content.php?p=29 (Last accessed August 25,
2011).

23.

27

the right. Id.

The physical therapist scheduled therapy

sessions “three times a week for four weeks for moist
heat, high-volt galvanic stimulation, ultrasound,
therapeutic exercises and a home exercise program.” Id.
On May 8, 2007, Tuttle was examined by Toni Jo
Parmelee, D.O., a consultative examiner for the Bureau
of Disability Determination. Tr. 197-207.

Dr. Parmelee

listed Tuttle’s current medications as Vicodin, Motrin,
Celexa and Hytrin. Tr. 198.

Tuttle told Dr. Parmelee

that he suffers from, inter alia, excessive thirst,
rashes, backache, joint pain and stiffness, abdominal
pain, frequent urination, kidney stones, muscle
weakness, difficulty breathing, severe pain in calves
when walking, anxiety and depression. Id.

Dr. Parmelee

stated that Tuttle does not use a cane, brace or walker
for ambulation. Tr. 199. Dr. Parmelee’s findings on
physical examination of Tuttle were essentially normal
except with regard to Tuttle’s back.
With regard to Tuttle’s back Dr. Parmelee stated
as follows: “Mild C-curve scoliosis with a convexity to
28

the left with the apex in the lower thoracic area.
spinous tenderness.

Paraspinous muscles in spasm with

partial loss of lumbar lordosis.
full without pain.

No

Range of motion is

Straight leg raising test associated

with low back pain on left to 60 degrees and positive on
the right to 60 degrees, associated with low back pain
with no radiation into the legs, except for pulling in
the hamstring area.” Tr. 200.

Dr. Parmelee also noted

that full range of motion of the hips causes pain in the
lower back. Tr. 201.
With regard to Tuttle’s gait and ability to move
around, Dr. Parmelee noted that
[t]he patient stands straight and ambulates with
no noticeable limp or favoring of the effected
side. The patient is able to squat and recover
to pick up shoes from the floor. He can arise from chair
that does not have arms and can get on and off the
examination table at a reasonable speed and without
assistance. The patient demonstrates stiffness of the
lower extremities and back when changing positions and
arising from a chair, forward bending to 45 degrees. The
patient is able to heel and toe-walk.
Tr. 201-202.

29

Dr. Parmelee’s diagnosis was that Tuttle
suffered from low back pain and had “[r]adicular
findings consistent with an L4-L5 disc lesion with right
sided radiculopathy” and “[m]ild scoliosis, functional
with spasm with low back pain versus a structural
lesion.” Id.

She also concluded that Tuttle suffered

from chronic obstructive pulmonary disease, a history of
kidney stones, and benign prostatic hypertrophy. Tr.
203.
Dr. Parmelee completed a document entitled
“Medical Source Statement of Claimant’s Ability to
Perform Work-Related Physical Activities.”

Tr. 204.

In

that document Dr. Parmelee stated that Tuttle had the
ability to occasionally lift up to 10 pounds and
occasionally carry up to 20 pounds. Tr. 204.24

Dr.

Parmelee did not indicate what amount of weight Tuttle
can frequently lift and carry.25

Dr. Parmelee stated

“Occasional” is defined as “from very little up to
1/3 of an 8 hour day.” Tr. 204.

24.

25.

“Frequent” is defined as “from 1/3 to 2/3 of an 8
(continued...)
30

that Tuttle had the cumulative capacity to stand and
walk a total of 4 hours in and 8-hour workday and that
Tuttle can sit 8 hours with alternating sitting and
standing at his option. Id.

The only limitation Dr.

Parmelee found regarding pushing and pulling was that
Tuttle can not engage in “[right] foot pedal work.” Id.
With regard to postural activities, Tuttle can
occasionally bend, stoop, crouch, and balance and never
kneel or climb. Tr. 205.

According to Dr. Parmelee,

Tuttle has no other physical limitations such as
reaching, handling, fingering, and feeling and no
environmental limitations including those relating to
height, hazards and ventilation. Id.
On June 6, 2007, Tuttle had an appointment with
Dr. Rubin. Tr. 211.

At that appointment Tuttle

complained that his back was stiff in the morning and he
appears to have complained about his varicose veins.
Id.

25.

The physical examination revealed that Tuttle’s

(...continued)

hour day.” Id.
31

blood pressure was 120/80 and he weighed 173 pounds. Id.
There were no abnormal physical examination findings
noted. Id.

Under the impression section of Dr. Rubin’s

medical notes she states that Tuttle was suffering from
lumbar radiculopathy and varicose veins. Id.

Dr. Rubin

prescribed the drug Flexeril26 10 mg as needed. Id.
On June 14, 2007, Tuttle was discharged from
physical therapy. Tr. 277.

According to the physical

therapist at the time of Tuttle’s discharge Tuttle was
unable to lift items weighing more than 10 pounds and he
still had range of motion limitations.

Specifically,

with respect to lumbar flexion and extension he had a
50% decrease in active range of motion and a 25%
decrease in left lateral flexion. Id.
On June 18, 2007, Tuttle had an appointment with
Dr. Boriosi. Tr. 236.

Dr. Boriosi’s mental status

findings were benign. Id.

He noted that Tuttle was

was friendly, alert and cooperative; Tuttle denied
Flexeril is a drug that helps to relax the muscles.
Flexeril, Drugs.com, http://www.drugs.com/flexeril.html
(Last accessed August 25, 2011).

26.

32

suicidal and homicidal thoughts; and Tuttle denied drug
and alcohol usage.

Dr. Boriosi stated that Tuttle was

“doing better” and continued Tuttle’s ongoing therapy
and medication. Id.

The record does not specify

Tuttle’s medications, other than Celexa. Id.
On July 9, 2007, John D. Chiampi, Ph.D., a
psychologist, reviewed Tuttle’s medical records on
behalf of the Bureau of Disability Determination. Tr.
240-255.

Dr. Chiampi concluded that Tuttle’s

impairments did not meet or equal the requirements of a
listed mental impairment. Tr. 253.

Dr. Chiampi

concluded that Tuttle suffered from anxiety and
depression and that he had some moderate limitations in
his functional abilities, including that Tuttle was
moderately limited in his ability to maintain attention
and concentration for extended periods, perform
activities within a schedule, maintain regular
attendance, and work in coordination with, or proximity
to, others without being distracted by them. Tr. 240.
Even with these mental limitations Dr. Chiampi concluded
33

that Tuttle “is able to meet the basic mental demands of
competitive work on a sustained basis despite the
limitations resulting from his impairments. Tr. 242.
On July 24, 2007, Sharon A. Wander, M.D.,
completed on behalf of the Bureau of Disability
Determination a form entitled “Physical Residual
Functional Capacity Assessment.” Tr. 256-261.

The form

was completed based only on Dr. Wander’s review of the
medical records.

Dr. Wander did not examine Tuttle.

Dr. Wander concluded that Tuttle could perform basically
the full range of light work except Tuttle can never
climb ladders, ropes or scaffolds but can occasionally
use ramps and climb stairs and occasionally stoop. Tr.
258.

Dr. Wander also found that Tuttle should avoid

concentrated exposure to vibration and hazards. Tr. 259.
On July 26, 2007, Tuttle had an appointment with
Dr. Rubin. Tr. 278.

At that appointment Tuttle

complained of a burning sensation in both shoulders and
joint pain.

The physical examination revealed that

Tuttle’s blood pressure was 112/80 and he weighed 172
34

pounds. Id.

There were no abnormal physical examination

findings noted. Id.

Dr. Rubin did note that the range

of motion in Tuttle’s shoulders was “OK.” Id.

Under the

impression section of Dr. Rubin’s medical notes she
states that Tuttle was suffering from bilateral shoulder
spasms. Id.

Dr. Rubin recommended that Tuttle continue

to take Motrin as needed and ordered x-rays of both of
Tuttle’s shoulders.
On August 7, 2007, Tuttle had an appointment
with Dr. Batzel. Tr. 263-264.

Dr. Batzel is the

physician who in March 2007, performed a lower extremity
venous duplex evaluation. Tr. 226. Dr. Batzel’s physical
examination of Tuttle on August 7, 2007, revealed
“significant varicose veins bilaterally with
varicosities measuring up to a centimeter in diameter
going over a course of about 40 cm to 50 cm on both
legs.” Tr. 263.

Dr. Batzel concluded that Tuttle

suffered from “venous insufficiency of the bilateral
lower extremities mainly characterized by an achy pain
at the end of the day as well as varicose veins.” Id.
35

Dr. Tuttle “reiterated [to Tuttle] the importance of
elevation” and scheduled a follow-up appointment in
three months. Tr. 264.
On August 22, 2007, Tuttle had x-rays of both
shoulders which revealed “unremarkable soft tissue with
no fracture or dislocation.” Tr. 270-271 and 279.
On September 9, 2007, Tuttle had an appointment
with Dr. Rubin.

Tr. 280.

At that appointment Tuttle

complained of a burning sensation in both shoulders.
Id.

The physical examination revealed that Tuttle’s

blood pressure was 120/70 and he weighed 178 pounds.
Id.

There were no abnormal physical examination

findings noted.

Id.

Dr. Rubin did note that x-rays of

the shoulders were “OK.” Id.

Under the impression

section of Dr. Rubin’s medical notes she states that
Tuttle was suffering from chronic arthralgia of the
shoulders and chronic lumbar radiculopathy. Id.

Dr.

Rubin recommended that Tuttle continue to take Motrin as
needed.

Id.

36

On September 19, 2007, Tuttle had an x-ray of
the abdomen which revealed a “[s]table nonobstructing
left renal calculus.”

Tr. 281.

On September 21, 2007, Tuttle had an ultrasound
of the kidneys which revealed that the right kidney was
unremarkable and there was a stone in the midpole of the
“left kidney measuring 10 x 7 mm” with “[n]o
hydronephrosis[.]”27 Tr. 282.
In September 2007, Tuttle had an appointment
with Dr. Boriosi. Tr. 285.28
findings were benign. Id.

Dr. Boriosi’s mental status

He noted that Tuttle was

was friendly, alert and cooperative; Tuttle denied
suicidal and homicidal thoughts; and Tuttle denied drug
and alcohol usage.

Dr. Boriosi stated that Tuttle was

“doing better” and continued Tuttle’s ongoing therapy

Hydronephrosis is an abnormal dilation of the urine
collection system of a kidney. The condition can be
caused by a kidney stone obstructing the flow of urine.
See generally, Hydronephosis, MedicineNet.com,
http://www.medicinenet.com/hydronephrosis/article.htm
(Last accessed August 25, 2011).
27.

28.

The date is illegible.
37

and medication. Id.

The record does not specify

Tuttle’s medications, other than Celexa. Id.
On October 10, 2007, Tuttle had a follow-up
appointment with Dr. Preate at Delta Medix Urology.

Dr.

Preate in his report of that appointment stated that
Tuttle
is a 50 year old gentleman currently on Hytrin
. . . for voiding dysfunction. His AUA symptom
score is 9/3529 and he rates the quality of his
life as ‘mostly satisfied.’ He has a PSA within
normal limits and he has a family history for
prostate cancer which was negative. He also has
a history of nonobstructing left renal calculus
which he keeps under observation and this was
confirmed by Renal Ultrasound and KUB.
Tr. 274.
When Dr. Preate reviewed Tuttle’s systems with
Tuttle, Tuttle denied suffering from nausea, vomiting,
fevers, chills, headaches, dizziness, blurry vision,
loss of vision, vertigo, chest pain, palpitations,
pulmonary difficulties (such as shortness of breath),
A self-reported score of 9 out of 35 is considered
moderate. Englarged Prostate and Your BPH Symptoms
Score, WebMD,http://men.webmd.com/enlargedprostate-your-bph-symptoms-score (Last accessed August
23, 2011).

29.

38

breathing problems, wheezing, gastrointestinal
discomfort or pain, diarrhea, cachexia, anorexia,
hematochezia, constipation, significant weight loss,
major musculoskeletal problems, skin abnormalities,
bleeding tendencies, and neurological deficits.
Dr. Preate in his report of the appointment
noted Tuttle’s reported history of nephrolithiasis
(kidney stones) as well as voiding dysfunction and under
the physical examination portion of his report noted no
abnormal findings. Specifically, Dr. Preate stated “[h]e
has no costovertebral angle tenderness.

The paraspinal

muscles are without discomfort or pain to palpation.”
Tr. 275.

He further stated that Tuttle’s “mood and

affect are clear and appropriate.”

Id.

Dr. Preate’s impression was that Tuttle was
suffering from a voiding dysfunction, a history of right
sided flank pain, a history of non-obstructing kidney
stones, and a history of smoking. Tr. 276.

Dr. Preate

continued Tuttle on the drug Hytrin, ordered a renal
ultrasound, a kidney, ureter and bladder (KUB) x-ray and
39

blood tests, and scheduled a follow-up appointment in
one year. Id.
On December 14, 2007, Tuttle had an appointment
with Dr. Rubin.

Tr. 284.

At that appointment Tuttle

complained of pain past his left calf. Id.

The physical

examination revealed that Tuttle’s blood pressure was
120/80 and he weighed 185 pounds. Id.

There were no

abnormal physical examination findings noted. Id.

Under

the impression section of Dr. Rubin’s medical notes she
states that Tuttle was suffering from varicose veins,
disease of the spine and depression. Id.
In February 2008, Tuttle had an appointment with
Dr. Boriosi. Tr. 285.30

Dr. Boriosi’s mental status

findings appear to be benign. Id.

He noted that Tuttle

was friendly and cooperative; Tuttle denied suicidal and
homicidal thoughts; and Tuttle denied drug and alcohol
usage.

It is not clear whether Dr. Boriosi found Tuttle

depressed or alert.

The check mark appears to be in

front of the word “depressed.”
30.

The date is illegible.
40

The quality of the

medical record is poor.

Dr. Boriosi stated that Tuttle

was “doing good” and continued Tuttle’s ongoing therapy
and medication. Id.

The record does not specify

Tuttle’s medications, other than Celexa. Id.
On March 12, 2008, Tuttle had an appointment
with Dr. Rubin. Tr. 289.

At that appointment Tuttle

complained of lower back pain and stomach problems. Id.
The physical examination revealed that Tuttle’s blood
pressure was 120/70 and he weighed 178 pounds. Id.
There were no abnormal physical examination findings
noted. Id.

Under the impression section of Dr. Rubin’s

medical notes she states that Tuttle was suffering from
gastroesophageal reflux disease and chronic back
problems. Id.

Dr. Rubin prescribed the drug Prilosec
Dr.

and continued Tuttle on his other medications. Id.

Rubin did note that Tuttle smoked one pack of cigarettes
per day and had a smoker’s cough. Id.
On March 13, 2008, Tuttle had a chest x-ray done
which revealed “[f]indings consistent with COPD” but
“[n]o evidence of acute cardiopulmonary disease.”
41

Tr.

290. The x-ray was reviewed by Charles Barax, M.D. Tr.
291.
On June 12, 2008, Tuttle had an appointment with
Dr. Rubin. Tr. 288.

At that appointment Tuttle

complained of back pain which radiated to his right leg.
Id.

The physical examination revealed that Tuttle’s

blood pressure was 140/90 and he weighed 184 pounds.
Id.

There were no abnormal physical examination

findings noted other than his blood pressure. Id.

Under

the impression section of Dr. Rubin’s medical notes she
stated that Tuttle was suffering from gastroesophageal
reflux disease and chronic back problems. Id.

Dr. Rubin

continued Tuttle on the drug Prilosec and his other
medications. Id.
The last medical appointment of which there is a
record of in the transcript of the administrative
proceedings occurred on September 11, 2008.

Tr. 287.

On that date Tuttle had an appointment with Dr. Rubin.
The physical examination revealed that Tuttle’s blood
pressure was 110/74 and he weighed 184 pounds. Id.
42

There were no abnormal physical examination findings
noted. Id.

Under the impression section of Dr. Rubin’s

medical notes she states that Tuttle was suffering from
gastroesophageal reflux disease and chronic disc disease
of the back. Id.

Dr. Rubin continued Tuttle on all of

his medications. Id.

DISCUSSION
The administrative record in this case is 291
pages31 in length and has been thoroughly reviewed.
Tuttle argues that the administrative law judge erred in
finding that his symptoms and their limiting effects
upon him were not credible and that the administrative
law judge erred at step three of the sequential

As stated earlier in this order pages 81-94 are
missing from the record.

31.

43

evaluation process in finding that his impairments did
not meet or equal the requirements of a listed
impairment.

Tuttle’s argument that the administrative

law judge erred at step three need not be addressed
because the court concludes that the administrative law
judge committed errors at steps two and four of the
sequential evaluation process and those errors impact
the administrative law judge’s assessment of Tuttle’s
credibility.
The administrative law judge, at step one of the
sequential evaluation process, found that Tuttle had not
engaged in substantial gainful work activity since July
1, 2006, the alleged onset date of his conditions. Tr.
13.
Step two of the sequential evaluation process,
is where the administrative law judge first committed a
legal and factual error.

At step two, the

administrative law judge found that Tuttle suffers from
the following severe impairments: degenerative disc
disease of three lower discs of the lumbar spine and
44

levoscoliosis of the lumbar spine. Tr. 13.

The

administrative law judge found that Tuttle has no severe
mental impairments and that Tuttle’s voiding dysfunction
and kidney stone were nonsevere impairments. Tr. 14.
The administrative record, however, reveals that Tuttle
was diagnosed with several other conditions and the
administrative law judge did not make a determination as
to whether or not those conditions were medically
determinable impairments.

Tuttle was diagnosed with

gastroesophageal reflux disease, chronic obstructive
pulmonary disease, venous insufficiency in the bilateral
lower extremities and lumbar radiculopathy.
The determination of whether a claimant has any
severe impairments, at step two of the sequential
evaluation process, is a threshold test. 20 C.F.R. §
404.1520(c).

If a claimant has no impairment or

combination of impairments which significantly limit the
claimant’s physical or mental abilities to perform basic
work activities, the claimant is “not disabled” and the
evaluation process ends at step two. Id.
45

If a claimant

has any severe impairments, the evaluation process
continues.

20 C.F.R. § 404.1520(d)-(g).

A failure to

find a medical condition severe at step two will not
render a decision defective if some other medical
condition was found severe at step two.

However, all of

the medically determinable impairments both severe and
non-severe must be considered at step four when setting
the residual functional capacity.

The failure of the

administrative law judge to find the above noted
conditions as medically determinable impairments, or to
give an adequate explanation for discounting them, makes
his decision at step four of the sequential evaluation
process defective.
At step three of the sequential evaluation
process the administrative law judge found that Tuttle
did not have an impairment or combination of impairments
that met or equaled a listed impairment. Tr. 14.

The

administrative law judge merely stated as follows: “The
undersigned considered listing 1.04. The Claimant does

46

not have the neurological deficits required by the
listing.” Id.32
At step four of the sequential evaluation
process the administrative law judge found that Tuttle
was unable to perform his prior relevant work but that
Tuttle had the residual functional capacity to perform a
limited range of light work. Tr. 14.33 Specifically, the
administrative law judge found that Tuttle could perform
light work, including standing and walking for up to 6
hours per day with a sit/stand option.

The

administrative law judge further found that Tuttle could
The court does not believe that the administrative
law judge’s two sentence explanation for finding that
Tuttle’s impairments did not meet or equal a listed
impairment is sufficient.

32.

At the time of the administrative hearing Tuttle
was 51 years of age. Under the Social Security
regulations a person 50 to 54 years of age is
considered a “person closely approaching advanced age.”
20 C.F.R. §§ 404.1563(c) and 416.963(c). The Social
Security Administration considers a claimant 50 to 54
who has a severe impairment and limited work experience
as someone who may not be able to adjust to other work.
Id. If Tuttle would have been limited to sedentary
work by the administrative law judge, he may have been
entitled to disability benefits. See Medical-Vocational
Rule 201.14, 20 C.F.R. P. 404, Subpart P, App. 2.
33.

47

occasionally operate foot controls.

In so finding the

administrative law judge gave significant weight to the
opinion of Dr. Parmelee.
In order to be found capable of performing light
work, an individual must be able to engage in a
significant amount of walking or standing.
Ruling 83-10.

Soc. Sec,

A significant amount of walking or

standing has been defined as six hours out of an eighthour workday. Id.([“Since frequent lifting or carrying
requires being on one’s feet up to two-thirds of a
workday, the full range of light work requires standing
or walking, off and on, for a total of approximately six
hours of an eight-hour workday.”); Jesurum v. Secretary
D.H.H.S., 48 F.3d 114, 119 (3d Cir. 1995); Carter v.
Sullivan, 909 F.2d 1201, 1202 (8th Cir. 1990).

Light

work as noted earlier in this order also requires that
the individual be able to frequently lift and carry ten
pounds and occasionally lift and carry twenty pounds.
In his step four analysis the administrative law
judge stated that Dr. Parmelee was of the opinion that
48

Tuttle was capable of light work.

This is an erroneous

characterization of Dr. Parmelee’s assessment.
Dr. Parmelee stated that Tuttle’s cumulative
capacity in a eight-hour workday to stand and walk with
a sit/stand option was only four hours. Tr. 204.

Also,

Dr. Parmelee did not render an opinion as to the weight
that Tuttle could lift or carry on a frequent basis.
Instead she merely stated that Tuttle could occasionally
lift ten pounds and occasionally carry twenty pounds.
Furthermore, Dr. Parmelee stated Tuttle should avoid
right foot pedal movements. Tr. 204.

The administrative

law judge’s reliance on Dr. Parmelee’s opinion was
erroneous.

The administrative law judge also in a

cursory fashion commented on the physical therapists
conclusion that Tuttle could not lift more than ten
pounds. Tr. 15.
The only medical evidence in the record which
supports the administrative law judge’s conclusion that
Tuttle could perform light work is an assessment of
Tuttle’s functional abilities conducted by Dr. Wander, a
49

physician working for the Bureau of Disability
Determination.

The administrative law judge gave Dr.

Wander’s opinion “great weight.” Tr. 16.

Dr. Wander who

merely performed a medical records review and did not
examine or treat Tuttle concluded that Tuttle had the
ability to occasionally lift or carry twenty pounds,
frequently lift or carry ten pounds, stand or walk six
hours in and eight-hour workday, and sit six hours in an
eight-hour workday; Tuttle had unlimited ability to push
and pull with the upper or lower extremities other than
the twenty and ten pound limitations for carrying and
lifting; Tuttle could frequently, balance, kneel, crouch
and crawl and occasionally climb ramps, stairs but never
climb ladders, ropes or scaffolds; Tuttle had no
manipulative, visual or communicative limitations; and
Tuttle had no environmental limitations other than he
should avoid concentrated exposure to hazards and
vibration.

Tr. 256-259.

Dr. Wander only reviewed the

medical records existing as of July 24, 2007, and she
stated that the only medically determinable impairments
50

of which Tuttle suffered from were a history of a kidney
stone, benign prostatic hyperplasia and low back pain.
Tr. 256 and 261.

She also recognized that Dr.

Parmelee’s assessment was more restrictive and rejected
it.

Tr. 262.
At step five, the administrative law judge based

on his conclusion that Tuttle could engage in light work
and the testimony of a vocational expert found that
Tuttle had the ability to perform work as a hand
trimmer, a cleaner or janitor, a courier, clerk or mail
sorter, and a laundry folder, and that there were a
significant number of such jobs in the Northeastern
region of Pennsylvania.

Tr. 17-18

Dr. Wander’s assessment was dated July 24, 2007.
After that date Tuttle received additional medical
treatment and the administrative law judge’s hearing was
held on December 3, 2008, approximately 16 months after
Dr. Wander issued her assessment. In this case we have
(1) a physician, Dr. Parmelee, who provided an
assessment based on an actual examination of Tuttle
51

which assessment suggests that Tuttle is not able to
perform the light work found by the administrative law
judge and (2) a physical therapist who provided an
assessment based on an actual examination and treatment
of Tuttle which also precludes Tuttle from engaging in
light work.

The only contrary medical evidence is that

provided by Dr. Wander who did not examine Tuttle and
did not consider all of Tuttle’s impairments
demonstrated by the medical records.
The errors at step two and four of the
sequential evaluation process, draw into question the
administrative law judge’s residual functional capacity
determination and assessment of the credibility of
Tuttle.

The administrative law judge found that

Tuttle’s medically determinable impairments could
reasonably cause Tuttle’s alleged symptoms but that
Tuttle’s statements concerning the intensity,
persistence and limiting effects of those symptoms were
not credible.

This determination by the administrative

52

law judge was based on an incomplete analysis of all of
Tuttle’s medically determinable impairments.
Also, the administrative law judge in evaluating
Tuttle’s credibility did not consider his lengthy work
history.

As noted earlier in this order, Tuttle has a

32-year work history.

“When a claimant has worked for a

long period of time, [his] testimony about [his] work
capabilities should be accorded substantial
credibility.”

Rieder v. Apfel, 115 F.Supp.2d 496, 505

(M.D.Pa. 2000)(Munley, J.)(citing Dobrowolsky v.
Califano, 606 F.2d 403, 409 (3d Cir. 1979)).

The

administrative law judge did not give an adequate reason
for discrediting Tuttle’s testimony.
Our review of the administrative record reveals
that the decision of the Commissioner is not supported
by substantial evidence.

We will, therefore, pursuant

to 42 U.S.C. § 405(g) vacate the decision of the
Commissioner and remand the case to the Commissioner for
further proceedings.

53

An appropriate order will be entered.

s/Sylvia H. Rambo
United States District Judge
Dated:

September 7, 2011.

54

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TIMOTHY A. TUTTLE,
Plaintiff
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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CIVIL NO. 4:10-CV-1392

(Judge Rambo)

ORDER AND JUDGMENT
In accordance with the accompanying memorandum,
IT IS HEREBY ORDERED THAT:
1.

The Clerk of Court shall enter judgment in

favor of Timothy Tuttle and against the Commissioner of
Social Security as set forth in the following paragraph.

2.

The decision of the Commissioner of Social

Security denying Timothy Tuttle disability insurance
benefits and supplemental security income benefits is
vacated and the case remanded to the Commissioner of
Social Security to:
2.1 Conduct a new administrative hearing and
appropriately evaluate the medical evidence and the
credibility of Timothy Tuttle in accordance with the
background of this order.
3.

The Clerk of Court shall close this case.

s/Sylvia H. Rambo
United States District Judge
Dated:

September 7, 2011.