Sims v. Astrue

Filing 15

MEMORANDUM and ORDER directing Clerk of Court to enter judgment in favor of the pltf ; casse is REMANDED to the Commissioner of Social Security ; Clerk of Court is directed to CLOSE case.Signed by Honorable James M. Munley on 9/23/11. (sm, )

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
PATRICIA MARIA SIMS,
Plaintiff
vs.
MICHAEL ASTRUE,
COMMISSIONER OF SOCIAL
SOCIAL SECURITY,
Defendant

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No. 4:10-CV-1943
(Complaint Filed 9/16/10)

(Judge Munley)

MEMORANDUM AND ORDER
BACKGROUND
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Patricia Marie Sims’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 Sims met the insured status requirements of
the Social Security Act through June 30, 2010. Tr. 9, 11 and

115.1
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.
Sims was born in the United States on April 18, 1965.
Tr. 89.

Sims graduated from high school in 1985 and can speak

and understand the English language but has a limited ability to
read and write. Tr. 48-50, 118 and 125.

Throughout her schooling

Sims attended special education classes. Tr. 46 and 125.

Sims

has past relevant employment2 as a bakery worker which was
described as unskilled, medium work by a vocational expert.3 Tr.

1. References to “Tr. ” are to pages of the administrative
record filed by the Defendant as part of his Answer on November
29, 2010.
2. Past relevant employment in the present case means work
performed by Sims during the 15 years prior to the date her claim
for disability was adjudicated by the Commissioner. 20 C.F.R. §§
404.1560 and 404.1565.
3. The terms sedentary, light, medium and heavy work are defined
in the regulations of the Social Security Administration as
follows:
(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.
2

49.
Records of the Social Security Administration reveal
that Sims had earnings from January 1, 1995, through 2009, the
fifteen years prior to the date her claim was adjudicated, as
follows:
1995
1996
1997
1998
1999
2000

$ 10424.19
10166.22
9966.14
7678.32
14153.32
13996.30

(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, 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.
3

2001
2002
2003
2004
2005
2006
2007
2008
2009
Tr. 94.

13404.58
15643.86
13272.09
0.00
18010.05
2427.74
3825.97
0.00
0.00

Sims’s total earnings from 1995 through 2009 were

$132,968.78.

Id.

Sims claims that she became disabled on October 7, 2005,
as a result of an injury to her lower back sustained when she fell
down “several stairs carrying an empty bucket” at work. Tr. 119 and
270.

After this injury Sims continued to work on a part-time basis

and was then terminated from her job as a bakery worker in May,
2007, because of absenteeism related to the work injury and has not
worked since that time.

Tr. 41-42, 102, 112 and 119.

After being

terminated from her position as a part-time bakery worker, she lost
her home and was homeless living in a tent for a period of time.
Tr. 42-43.

After receiving a Workers’ Compensation settlement, she

purchased a trailer where she was living at the time the
administrative hearing was held in this case. Id.
Sims contends she suffers from debilitating pain in the
lower back with radiation of the pain down her right leg. Tr. 27 and
31.

Sims claims that (1) she needs assistance from family members

and friends to complete household maintenance and necessary
shopping; (2) it takes approximately one hour in the morning before
4

her medications take hold and she is able to ambulate; (3) even with
her medications she is only able to stand and walk 10-15 minutes at
a time; (4) she has difficulty sitting more than 30 minutes at a
time; (5) she has difficulty lifting items weighing as little as 5
pounds; (6) during an average day, she must recline in a flat
position 3-4 times to ease her pain; and (7) during an average week,
she has 3-4 days when she is unable to complete even simple
activities. Tr. 28-33, 39 and 45.
On October 1, 2007, Sims filed protectively4 an
application for disability insurance benefits and an application for
supplemental security income benefits. Tr. 9, 56-57, 85-91 and 9596.

On January 22, 2008, the Bureau of Disability Determination5

denied Sims’s applications. Tr. 59-68.

On February 26, 2008, Sims

requested a hearing before an administrative law judge. Tr. 71.
Approximately 13 months later, a hearing before an administrative
law judge was held on April 2, 2009. Tr. 20-55.

On September 22,

2009, the administrative law judge issued a decision denying Sims’s
applications. Tr. 9-19.

On September 28, 2009, Sims requested that

4. 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.
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. 60 and 65.
5

the Appeals Council review the administrative law judge’s decision
and on July 10, 2010, the Appeals Council concluded that there was
no basis upon which to grant Sims’s request for review. Tr. 1-5 and
81-82.

Thus, the administrative law judge’s decision stood as the

final decision of the Commissioner.
On September 16, 2010, Sims filed a complaint in this
court requesting that we reverse the decision of the Commissioner
denying her social security disability insurance and supplemental
security income benefits.

The Commissioner filed an answer to the

complaint and a copy of the administrative record on November 29,
2010.

Sims filed her brief on January 13, 2011, and the

Commissioner filed his brief on March 16, 2011.

The appeal6 became

ripe for disposition on March 25, 2011, when Sims filed a reply
brief.
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

6. 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.
6

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 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.
F.2d at 1213.

Brown, 845

In an adequately developed factual record substantial

7

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. Federal
Maritime Commission, 383 U.S. 607, 620 (1966).
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."
(1971).

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488

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 substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has

8

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 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,7 (2) has an impairment that is severe
or a combination of impairments that is severe,8 (3) has an

7. 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.
8. 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
9

impairment or combination of impairments that meets or equals the
requirements of a listed impairment,9 (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

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 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).
9. 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. 20 C.F.R. § 404.1525 explains that the listing of
impairments “describes for each of the major body systems
impairments that [are] consider[ed] to be severe enough to
prevent an individual from doing any gainful activity, regardless
of his or her age, education, or work experience.” Section
404.1525 also explains that if an impairment does not meet or
medically equal the criteria of a listing an applicant for
benefits may still be found disabled at a later step in the
sequential evaluation process.
10

determine the claimant’s residual functional capacity. Id.10
Residual functional capacity is the individual’s maximum
remaining ability to do sustained work 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
The administrative record in this case which primarily
consists of medical records is 392 pages in length and we have
thoroughly reviewed that record.

The medical records reveal that

Sims was treated for problems with her lower back.
The record reveals that after sustaining an injury to her
back Sims continued to work as a bakery worker periodically on a
part-time basis until May, 2007, when her employment was terminated.
Tr. 252, 255, 256, 258 and 260.

The administrative law judge in his

decision which we will review in detail infra found that Sims “has

10. If the claimant has the residual functional capacity to do his
or her past relevant work, the claimant is not disabled.
11

not engaged in substantial gainful activity11 since October 7,
2005.” Tr. 11.
After sustaining the injury to her back on October 7,
2005, Sims was treated on a regular basis for approximately 20
months by Mark W. Scinico, M.D., at Northeastern Medical Center,
Wilkes-Barre, Pennsylvania. Tr. 270.

Dr. Scinico limited Sims to

part-time work until April 16, 2007, with functional restrictions.
Specifically, in March 2006, Dr. Scinico limited Sims to “the
sedentary occasional demand level with no prolonged sitting or
standing positions, no climbing and no repetitive bending.” Tr. 269.
In October, 2006, Dr. Scinico limited Sims to no repetitive bending,
climbing, overhead work, or lifting more than “the light demand
level.” Tr. 260.

In addition to limiting Sims to part-time work

with varying functional restrictions, there were occasions during
the time Sims was being treated by Dr. Scinico that Dr. Scinico
stated that Sims was “not able to work.” Tr. 275 and 276.

Dr.

Scinico during the course of his treatment of Sims prescribed
physical therapy, a TENS unit12 and several pain medications,

11. 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. § 416.910. In
order to amount to substantial gainful activity the individual’s
earnings have to rise to at least a minimum level set by
regulations of the Social Security Administration.
12. “TENS” is an abbreviation for transcutaneous electrical nerve
stimulation. A TENS unit is a battery powered device used to
send electrical impulses to certain parts of the body to block
pain signals. Tens Unit Website, http://www.tensunits.com/ (Last
12

including Vicodin, Skelaxin, Ultram, Motrin and Oxycontin.13
261, 264, 269 and 276.

Tr.

Physical therapy records during the time

Sims was treated by Dr. Scinico reveal very little improvement and
sometimes a worsening of Sims’s condition.14 Tr. 148-149, 151-152,
156 and 163-166.
On May 14, 2007, Sims was examined for the last time by
Dr. Scinico. Tr. 252-253.

Prior to that examination Dr. Scinico

reviewed a report of an independent medical examination performed by
William R. Prebola, Jr., M.D., a non-treating physician who was
retained by the company that employed Sims and was defending a claim
filed by Sims for workers’ compensation benefits. Tr. 367-382.

The

actual report prepared by Dr. Prebola is not contained within the
administrative record.

However, a copy of Dr. Prebola’s deposition

accessed September 16, 2011).
13. Vicodin, a combination of acetaminophen and hydrocodone, is a
narcotic pain reliever. Vicodin, Drugs.com, http://www.drugs.com
/vicodin.html (Last accessed September 16, 2011). Skelaxin is a
muscle relaxant and used to treat musculoskeletal pain. Skelaxin,
Drugs.com, http://www.drugs.com/skelaxin.html (Last accessed
September 16, 2011). Ultram is a narcotic-like pain reliever.
Ultram, Drugs.com, http://www.drugs.com/ultram.html (Last
accessed September 16, 2011). Motrin is a nonsteroidal antiinflammatory drug used to treat pain and inflammation. Motrin,
Drugs.com, http://www.drugs.com/motrin.html (Last accessed
September 16, 2011). Oxycontin is a narcotic pain medication
similar to morphine. Oxycontin, Drugs.com, http://www.drugs.com
/oxycontin.html (Last accessed September 16, 2011).
14. A physical therapy record of January 3, 2006, reveals that
Sims “display[ed] decreased lumbar spine [active range of
motion], decreased lower extremity strength with increased pain
and increased functional limitations” in comparison to the
initial physical therapy evaluation of October 17, 2005. Tr. 156.
13

taken as part of a workers’ compensation proceedings is contained
within the administrative record. Id.

Dr. Scinico in his report of

Sims’s last appointment stated that he “reviewed Dr. Prebola’s IME
and he found multiple inconsistencies on examination.

He noted no

spasm and [full range of motion] without focal neuromotor deficits.
Based on review of his report, he indicated that there was a full
recovery.” Tr. 252.
Dr. Scinico after examining Sims on May 14, 2007, told
Sims that her “examination is benign today” and released Sims “to
regular work on a full-time basis” but noted “I will re-evaluate her
in 3-4 weeks, if needed.

I have given her Oxycontin 10 tablets one

p.o.15 daily until they are finished.
give her any refills.

Only 20 tablets.

I will not

This is only based on the fact that she

advised me that she is taking them twice daily and, indeed, I would
not want her to undergo withdrawal symptoms.”16

Tr. 252-253.

In August, 2007, Sims had an appointment with James M.
Jiunta, D.O., who maintains “a practice in osteopathic medicine and
surgery with a concentration in family and occupational medicine for
the last 22 years in Wilkes-Barre, Pennsylvania.” Tr. 362.

Dr.

15. “P.O.” is an abbreviation for “per os” meaning by mouth.
16. Sims in her reply brief has stated that “Dr. Scinico was a
panel physician affiliated with the Plaintiff’s employer with
whom she was required to treat as a condition of her Workers’
Compensation claim.” Doc. 14, Plaintiff’s Reply Brief, p. 2. Our
review of the record reveals that Dr. Scinico divided his
treatment notes of Sims into non-work related clinic notes and
work-related clinic notes. Tr. 279 and 280.
14

Jiunta’s resume reveals that he is on the staff of Wilkes-Barre
Mercy Hospital and General Hospital and was the director of the
occupational medicine program at Mercy Hospital from July, 1985, to
August, 2000. Id.

He is also a clinical instructor as a member of

the clinical faculty of the Philadelphia College of Osteopathic
Medicine, New England College of Osteopathic Medicine and the Kansas
College of Osteopathic Medicine.17 Tr. 363.
Dr. Jiunta’s physical examination of Sims on August 14,
2007, revealed deep tendon reflexes in the lower extremities of
“+2/4 at the patellar bilaterally and +1/4 at the Achilles
bilaterally” and “[d]ullness to pinprick in the L4-5, L5-S1
distribution of the right leg. . . slight decrease in strength in
the right leg compared to the left . . . some paralumbar spasm noted
on the right more than the left. . . [and] pain with palpation of

17. The University of Maryland Medical Center website indicates
that
[a] doctor of osteopathic medicine (D.O.) is a
physician licensed to practice medicine, perform
surgery, and prescribe medication.
Information:
Like allopathic physicians (or M.D.s), osteopathic
physicians complete 4 years of medical school and can
choose to practice in any speciality of medicine.
However, osteopathic physicians receive an additional
300-500 hours in the study of hands-on manual medicine
and the body’s musculoskeletal system.
http://www.umm.edu/ency/article/002020.htm (Last accessed
September 16, 2011).

15

the right sacroiliac joint.”

Tr. 297.

Dr. Jiunta’s assessment was

that Sims suffered from the following conditions:(1) possible
herniated disc secondary to a work-related injury, (2) L4-5 and L5S1 radiculopathy, (3) right leg weakness and (4) right sacroiliac
joint pain. Id.

Dr. Jiunta ordered a EMG/nerve conduction study and

an MRI of Sims’s lumbar spine. Id.
Ultracet and Celebrex.18 Id.

He also prescribed Skelaxin,

The MRI was performed on August 17,

2007, and revealed the following: “1. Right paramedian disc
herniation L5-S1. 2. Dessication without disc herniation at L1-L2,
L2-L3, and L3-L4. 3. Mild lower thoracic disc degeneration
identified at the periphery of the field of view.” Tr. 306.

The

EMG/nerve conduction study also performed on August 27, 2007,
revealed a “normal study” and

“no electrophysiological evidence of

diffuse polyneuropathy, myopathy or lumbosacral radiculopathy.”
(Emphasis added.)19
On September 25, 2007, Sims had a follow-up appointment
with Dr. Jiunta. Tr. 293.

In the report of that appointment Dr.

Jiunta stated as follows:

18. Ultracet, a drug used to treat moderate to severe pain, is a
combination of tramadol and acetaminophen. Tramadol is a
narcotic pain medication. Ultracet, Drugs.com, http://www.drugs.
com/ultracet.html (Last accessed September 16, 2011). Celebrex
is a nonsteroidal anti-inflammatory drug used to treat pain and
inflammation. Celebrex, Drugs.com, http://www.drugs.com/
celebrex.html (Last accessed September 16, 2011).
19. As will be explained shortly, a normal study and the lack of
electrophysiolgical evidence does not rule out the possibility
that an individual suffers from a radiculopathy.
16

Previous MRI of her back showed L5-S1 disc herniation.
We did evaluate her on 08-14-07 and felt she should have
an EMG/nerve conduction study and repeat MRI of the lumbar
spine. Her EMG was negative. Her MRI done 8-17-07 shows
right paramedian disc herniation at L5-S1. She is in
chronic pain at this point in time. . . This is despite
Skelaxin, Ultracet and Celebrex. . . She needs surgical
intervention. She’s been through pain management and
injection therapy without help.
Tr. 293.

Dr. Jiunta’s physical examination of Sims revealed that

she weighed 234 pounds and was “profoundly obese.” Tr. 293.

He

further stated that deep tendon reflexes in the lower extremities
were “+2/4 at the patellar bilaterally and +1/4 at the Achilles
bilaterally” and there was “[d]ullness to pinprick in the L4-5, L5S1 distribution of the right leg. . . slight decrease in strength in
the right leg compared to the left . . . some paralumbar spasm noted
on the right more than the left. . . [and] pain with palpation of
the right sacroiliac joint.” Tr. 294.

Dr. Jiunta’s assessment was

that Sims suffered from the following conditions:(1) herniated L5-S1
disc with right leg weakness, (2) right sacroiliac joint pain, and
L5-S1 radiculopathy in the right leg.

Id.

Dr. Jiunta in the “Plan”

section of his report stated that the MRI revealed a disc herniation
and that Sims needed surgery. Id.

Dr. Jiunta referred Sims to Carlo

De Luna, M.D.,20 a neurosurgeon, at Penn State Hershey Medical
Center for an evaluation. Id.

Dr. Jiunta further advised Sims to

20. As will be revealed infra Sims was evaluated by Akash Agarwal,
M.D., a neurosurgeon and colleague of Dr. De Luna at Hershey
Medical Center. The administrative record does not contain any
information on the background and experience of Dr. Agarwal.
17

continue with her current medications. Id.
On October 3, 2007, Sims was evaluated by Akash Agarwal,
M.D., at the Hershey Medical Center. Tr. 298-305.

Dr. Agarwal’s

physical examination of Sims revealed that Sims was 5 feet 1 inch
tall and weighed 230 pounds, Sims had pain on palpation over the
lower spine, and degenerative disc disease throughout her lumbar
spine.

Tr. 304.

Dr. Agarwal stated in his report that he

explained to [Sims] again that she appears to have a
slight right L5-S1 disc herniation which may be causing
some of her leg pain. However, I do not believe that this
is the cause of her back pain . . . Again, I have
explained to [Sims] that a surgical operation to
decompress the nerve at the right side L5-S1 level would
potentially help with the leg pain, but however, I do not
guarantee that her leg pain and her back pain would be
improved. It is very unlikely that her back pain would
improve with a surgical procedure. Again, I have
explained to her that I do not see any evidence of any
radiculopathy on her EMG study as this does not
demonstrate any evidence of any nerve root radiculopathy.
At this time, I recommend that she continue with physical
therapy including aquatherapy and electrostimulation. She
can reconsider steroid injections. However, I do not feel
that decompression of her right L6-S1 (sic) nerve root
would help with her predominant symptom of low back
pain. I also explained to and expressed to her that
given her weight this may also be contributing to her
mechanical low back pain. I think many of her symptoms
are paraspinous and mechanical in nature.
Id. (Emphasis added.)

At a deposition held on October 26, 2007, in

the workers’ compensation proceedings, Dr. Jiunta testified that he
basically agreed with Dr. Agarwal’s assessment, although incorrectly
referring to him as Dr. De Luna, and also explained his finding that
Sims suffered from lumbar radiculopathy.
follows:
18

Dr. Jiunta testified as

Q. Doctor, your second visit, which I believe was
your last visit to date, when was that?
A.

9/25/07.

Q.

Did you take an updated history?

A.

Yes.

Q.

Can you reveal that, please?

A. Yes. She again had lumbar back pain. I did have
the benefit at this visit of her previous MRI . . .
and this showed an L-5, S-1 disk herniation. And we
did do an EMG and a nerve conduction study that was
done also on 8/27/07. I had that report, also, at this
visit and that was deemed a normal study without
evidence of radiculopathy. And I did review those with
the patient.
And I did review the MRI with the patient that was
done on 8/17/07 that showed right paramedian disk
herniation at L-5, S-1.
*

*

*

*

*

*

*

*

*

*

*

Q. With regard to your physical, did you do a physical
on that second exam, 9/25/07?
A. Yes, I did. And, again, with regard to the
orthopedic and neurologic evaluation of this patient,
neurologically, she continued to have . . . reflexes
that were diminished at 1/4 and dullness to pinprick
in the L-4-5 and L-5, S-1 distribution in the right
leg and decreased strength in the right leg compared
to the left . . .
Basically, my exam was unchanged. From a spinal
standpoint, she still had paralumbar spasm in the right
and pain with palpation to the right sacroiliac joint.
Q.

Had your impression changed at all, Doctor?

A.

No, they had not changed at all.

Q. Now, I see that – looking at the impressions on the
9/25/07 note itself – you continued to list L-5, S-1
radiculopathy on the right leg. You testified earlier
19

the EMG study that came back and nerve conduction study
was normal?
A.

Correct.

Q.

You still maintain that diagnosis, however?

A. Yes, I do. Because of the sensory loss and the
weakness to the leg, yes, from a clinical standpoint,
she does have radiculopathy.
Q. Is an EMG, Doctor, in your opinion – can you have
a radiculopathy and a normal EMG study?
A. Yes, you can. Yes, you can.
multiple times over the years.

I have seen it

Q. Is an EMG, in your opinion, a necessary tool to
diagnose her radiculopathy?
A. No.
Tr.

344-346.

The administrative record contains no medical

evidence contrary to the opinion expressed by Dr. Jiunta that a
normal EMG/nerve conduction study does not rule out a finding that a
patient is suffering from a radiculopathy.
With regard to Dr. Agarwal’s assessment Dr. Jiunta
(although as noted previously incorrectly referring to Dr. Agarwal
as Dr. De Luna) testified in pertinent part as follows:
Q. You don’t have to get into great detail but bottom
line it for us, did Dr. DeLuna think that she was a
surgical candidate?
*

*

*

*

*

*

*

*

*

*

*

A. In Dr. Deluna’s discussion in the report he did
send to me, he explained to her that she has an L-5,
S-1 disk herniation and that it may be causing her right
leg pain but he didn’t believe this was the cause of her
back pain. And I agree, I think that the back pain is
probably coming from facet joint arthrosis.
20

And he explained to her that to operate and
decompress the nerve would potentially help the leg
pain but probably would not do anything for the back
pain, which I agree with that statement, also.
And he tends to be more conservative and he did not
feel that decompression of her L-5, S-1 nerve root would
help with the symptoms of her back pain. But, again, I
think that her pain is multifactorial and, you know, she
may need to have some of that leg pain and a partial
amount of that back pain removed with surgery and then
maybe some injection therapy to the facets to alleviate
the remainder of the pain.
Tr. 349-350.

An x-ray of the lumbar spine completed on September

25, 2007, revealed “mild degenerative disk disease21 and facet

21. Degenerative disc disease has been described as follows:
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
spondylosis.
MRI scanning
"disc space"

of the disc is medically referred to as
Spondylosis can be noted on x-ray tests or
of the spine as a narrowing of the normal
between the adjacent vertebrae.

Degenerative Disc Disease & Sciatica, MedicineNet.com,
http://www.medicinenet.com/degenerative_disc/page2.htm (Last
accessed September 15, 2011). Degenerative disc disease is
considered part of the normal aging process. 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
21

arthrosis.” Tr. 295.
DISCUSSION
Sims argues that the administrative law judge erred at
step two of the sequential evaluation process when he found that
Sims’s only medically determinable impairment was degenerative disc
disease of the lumbar spine, that the administrative law judge erred
at step three of the sequential evaluation process in finding that
her impairments did not meet or equal the requirements of a listed
impairment, and that the administrative law judge erred at step four
of the sequential evaluation when he found that Sims had the
residual functional capacity to perform sedentary work.

We need not

address Sims’s claim that the administrative law judge erred at step
three because 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 Sims’s
credibility.
The administrative law judge went through each step of the
sequential evaluation process and (1) found that Sims had not
engaged in substantial gainful activity since October 7, 2005, the

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 September 12, 2011). A
herniated disc is one cause of 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

alleged disability onset date; (2) found that Sims had the severe
impairment of “degenerative disk disease of the lumbar spine;” (3)
found that Sims’s impairments did not meet or equal a listed
impairment; (4) found that Sims lacked credibility; (5) rejected the
opinion of a treating physician James M. Jiunta, D.O., who concluded
that Sims suffered from lumbar radiculopathy in addition to
degenerative disc disease; and (6) concluded that Sims could not
perform her past relevant work but that she could perform a limited
range of sedentary work. Tr. 11-18.

Specifically, the

administrative law judge stated that Sims could engage in full-time
sedentary work as defined in the regulations including
lifting between eight (8) and ten (10) pounds
occasionally, five (5) pounds frequently, sitting for
approximately six (6) out of eight (8) hours. A
sit/stand option is needed and, at best, the
operating of foot controls should be less than
frequent, to more in the occasional range. Further,
claimant would not ever be suitable for climbing
ladders, scaffolds or ropes or actually descending
them either. Ramps and stairs should only be taken
on an occasional basis, perhaps emergent. Balancing
can be done, at least occasionally. Activities such
as stooping, crouching, kneeling and crawling would
have to drop below occasional. However, there are no
issues with the range of motion in claimant’s neck per
se. Further, there are no limitations, per testimony,
with respect to use of the hands for reaching, overhead
reaching, handling, fingering, grasping, gross dexterous
motor coordination or fine motor manipulation. However,
the claimant would not be able to tolerate any ambulation
over uneven terrain or prolonged ambulation. Due to her
chronic condition of bronchitis, the claimant would not be
able to deal with dramatic changes between cold and heat,
extreme cold or heat, or work in atmospheres where there
would be a concentrated exposure to respiratory irritants.
From a cognitive processing level, the claimant should not
work around automotive machinery, which does not mean
23

assembly lines, per se, but does mean moving vehicles and
the like, as the claimant may have the inability to
appreciate hazards. Further, she should be restricted
from performing work at unprotected heights. If there are
any communication requirements in the workplace, they
should be oral and of a very limited nature. The claimant
is not someone suitable to make workplace judgments
independently, and likewise is not able to perform any
workplace decision-making, and she would not be tolerant
of changes in work settings of any frequent nature. In
the truest sense, claimant can perform very rudimentary,
repetitive tasks.
Tr. 12-13.

At the administrative hearing, the administrative law

judge asked the vocational expert to consider an individual with the
above residual functional capacity and Sims’s educational and work
background and identify jobs which that individual could perform.
The vocational expert identified in the northeastern region of
Pennsylvania the jobs of hand packer (900 positions), sorter,
tagger, folder (cumulative total 800 positions), and assembler (1000
positions). Tr. 18.

Based on that testimony, the administrative law

judge found that Sims was not disabled because she could perform
those jobs, and that there were a significant number of such jobs in
the national economy. Id.
Sims argues that the administrative law judge erred by
failing to acknowledge all of Sims’s medically determinable
impairments established by the record.
substantial merit.

This argument has

The administrative law judge erroneously

concluded that Sims did not suffer from lumbar radiculopathy and
failed to address Sims’s obesity in accordance with regulations of
the Social Security Administration.
24

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©.

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.

If a claimant has any severe

impairments, the evaluation process continues.
404.1520(d)-(g).

20 C.F.R. §

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 two when determining which impairment is or
impairments in combination are severe, and at step four when setting
the residual functional capacity.

The social security regulations

mandate such consideration and this court has repeatedly so
indicated. See, e.g., Christenson v. Astrue, Civil No. 10-1192, slip
op. at 12 (M.D. Pa. May 18, 2011)(Muir, J.); 20 C.F.R. §§ 404.1523,
404.1545(a)(2), 416.923 and 416.945(a)(2).
The administrative law judge erroneously stated that there
was “no objective clinical evidence to corroborate claimant’s
complaints of lumbar and leg pain.” Tr. 15.

The record reveals

uncontested evidence - Dr. Jiunta’s treatment notes and testimony –
that Sims suffers from lumbar radiculopathy.

25

The failure of the

administrative law judge to find that condition as a medically
determinable impairment makes his decision at steps two and four of
the sequential evaluation process defective.
The record also reveals that Sims weighed 230 pounds and
was 5'1" tall.

An individual of such height and weight has a body

mass index of 43.5 and is considered morbidly obese. Center for
Disease Control and Prevention. Healthy Weight, Adult BMI
Calculator, http://www.cdc.gov/healthyweight/assessing/bmi/a
dult_bmi/english_bmi_calculator/bmi_calculator.html (Last accessed
September 14, 2011). “Doctors often use a formula based on [the
person’s] height and weight — called the body mass index (BMI) — to
determine if [the person is] obese. Adults with a BMI of 30 or
higher are considered obese. Extreme obesity, also called severe
obesity or morbid obesity, occurs when [the person has] a BMI of 40
or more. With morbid obesity, [the person is] especially likely to
have serious health problems.” Obesity, Definition, Mayo Clinic
Staff, MayoClinic.com, http://www.mayoclinic.com/health/obesity/
DS00314 (Last accessed September 14, 2011).
Social Security Ruling 02-1p states that “we consider
obesity to be a medically determinable impairment and remind
adjudicators to consider its effects when evaluating disability. . .
the combined effects of obesity with other impairments can be
greater than the effects of each impairment considered separately..
. adjudicators [are] to consider the effects of obesity not only

26

under the listings but also when assessing a claim at other steps of
the sequential evaluation process, including when assessing an
individual’s residual functional capacity.”

The ruling further

states that
[a]n assessment should also be made of the effect obesity
has upon the individual’s ability to perform routine
movement and necessary physical activity within the work
environment. Individuals with obesity may have problems
with the ability to sustain a function over time. . .
our [residual functional capacity] assessments must
consider an individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on
a regular and continuing basis. A “regular and continuing
basis” means 8 hours a day, for 5 days a week, or an
equivalent work schedule. In cases involving obesity,
fatigue may affect the individual’s physical and mental
ability to sustain work activity. . . The combined effects
of obesity with other impairments may be greater than
might be expected without obesity. For example, someone
with obesity and arthritis affecting a weight-bearing
joint may have more pain and limitation than might be
expected from the arthritis alone.
The administrative law judge at step two of the sequential
evaluation process did not address Sims’s obesity as required by
Social Security Ruling 02-1p.
The errors at steps 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 Sims.

The administrative law judge found that

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

This determination by the administrative law judge
27

was based on an incomplete analysis of all of Sims’s medically
determinable impairments.
The administrative law judge also inappropriately focused
on the disagreement between Dr. Jiunta and Dr. Agarwal regarding
Sims’s need for surgery and inappropriately judged the
qualifications of Dr. Jiunta by stating he was a mere osteopath
“with no specialized training in the diagnosis, care and treatment
of lumbar disorders and surgical intervention.” Tr. 15.
refutes this finding.

The record

Furthermore, “[i]n this day and age there is

no basis to find one medical practitioner to be more credible than
another merely because one has the letters “D.O.” after his name and
the other has the letters “M.D.” after his name.” Weller v. Astrue,
Civil No. 08-1765, slip op. at 30 (M.D. Pa. March 16, 2009)(Muir,
J.)
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.
An appropriate order will be entered.

s/ James M. Munley
JAMES M. MUNLEY
United States District Judge

28

Dated: September 23, 2011

29

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
PATRICIA MARIA SIMS,
Plaintiff
vs.
MICHAEL ASTRUE,
COMMISSIONER OF SOCIAL
SOCIAL SECURITY,
Defendant

:
:
:
:
:
:
:
:
:
:
:

No. 4:10-CV-1943
(Complaint Filed 9/16/10)

(Judge Munley)

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

The Clerk of Court shall enter judgment in favor of

Patricia Maria Sims and against Michael J. Astrue, Commissioner of
Social Security, as set forth in the following paragraph.
2.

The decision of the Commissioner of Social Security

denying Patricia Maria Sims 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 and vocational evidence and the
credibility of Patricia Maria Sims in accordance with the background
of this order.

30

3.

The Clerk of Court shall close this case.

s/ James M. Munley
JAMES M. MUNLEY
United States District Judge
Dated: September 23, 2011

31