Vassell v. Astrue

Filing 16

MEMORANDUM AND ORDER vacating decision of the Commisioner of Social Security and remanding to conduct a new hearing/evaluate evidence.Signed by Honorable James M. Munley on 11/29/12. (Attachments: # 1 order)(sm)

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
CARROLLA VASSELL,
Plaintiff
vs.
MICHAEL ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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No. 4:11-CV-01185
(Complaint Filed 6/22/11)
(Judge Munley)

MEMORANDUM
Background
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Carrolla Vassell’s claim for social security
disability insurance benefits.
Vassell protectively1 filed his application for
disability insurance benefits on May 29, 2007. Tr. 17, 88 and
130-134.2

The application was initially denied by the Bureau of

Disability Determination on September 12, 2007.3 Tr. 90-94.

1. 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.
2. References to “Tr. ” are to pages of the administrative
record filed by the Defendant as part of his Answer on August 25,
2011.
3. The Bureau of Disability Determination is an agency of the
state which initially evaluates applications for disability
insurance benefits on behalf of the Social Security
Administration. Tr. 91.

On November 13, 2007, Vassell requested a hearing before an
administrative law judge. Tr. 96.

After more than 19 months had

passed, a hearing was held before an administrative law judge on
June 19, 2009. Tr. 27-70.

On October 21, 2009, the

administrative law judge issued a decision denying Vassell’s
application for disability benefits. Tr. 17-26. On November 18,
2009, Vassell filed a request for review with the Appeals
Council. Tr. 13.

After 17 months had elapsed, the Appeals

Council on April 18, 2011, concluded that there was no basis upon
which to grant Vassell’s request for review. Tr. 1-6.

Thus, the

administrative law judge’s decision stood as the final decision
of the Commissioner.
Vassell then filed a complaint in this court on June
22, 2011.

Supporting and opposing briefs and statements of

material facts were submitted and the appeal4 became ripe for
disposition on December 30, 2011, when Vassell elected not to
file a reply brief.
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

4. 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.
2

is undisputed that Vassell met the insured status requirements of
the Social Security Act through December 31, 2011. Tr. 17, 19 and
135.
Vassell, who was born on April 30, 1966, withdrew from
school5 but obtained a General Equivalency Diploma (GED) in 1984.
Tr. 130 and 153.

Vassell can read, write, speak and understand

the English language and perform basic mathematical functions.
Tr. 148 and 166.

During his schooling, Vassell attended regular

education classes. Tr. 153.

Vassell served in the United States

Military from January 20, 1988, to October 31, 1995.6 Tr. 130.
Vassell’s work history covers the years 1984 to May 25,
2006, the date on which he claims he became disabled. Tr. 133,
136-142 and 149. His past relevant work was as an electrician’s
helper, which was described by a vocational expert as medium,
skilled work as generally performed but heavy work as actually
performed by Vassell. Tr. 60. Although records indicate that he
was employed by the New York County District Attorney’s Office as
an electrician’s helper, Vassell was paid by the City of New
York.

Tr. 137-143 and 258. One record of the Social Security

Administration indicates that Vassell’s total social security

5. The record does not reveal in what grade or year Vassell
withdrew from school.
6. The record does not disclose in which branch of the military
Vassell served. It appears that part of his military service was
either in the military reserve or national guard because
commencing in 1994 he was also employed by the City of New York.
Tr. 138.
3

earnings from 1984 through 2006 were $243,497.18. Tr. 136.
However, that record excludes his earnings during the years 1995
through 2000 (as well as some of his earnings from 1994 and
2001)7 when he was apparently covered by a New York City pension
plan and not required to pay social security taxes. Tr. 136 and
138-139. From 1994 through 2006 the record reveals that Vassell
had earnings working as an electrician’s helper for the City of
New York as follows:
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
Id.

$30888.69
29884.76
25118.60
36885.44
39358.04
37880.99
37434.75
49537.08
43960.28
41763.80
21631.09
39959.33
25118.60

Vassell’s total earnings during those years were

$459,421.45. Id.

Vassell claims that he is disabled as the

result of physical conditions, including multiple vertebral disc
herniations. He claims he suffers debilitating pain.

He has not

worked since May 25, 2006. Vassell receives long-term disability
payments through a private insurance carrier in the amount of
$1980.00 per month. Tr. 144-147.

7. In 1994 Vassell’s medicare earnings were $30,888.69 and his
social security earnings were $560.40. In 2001 Vassell’s medicare
earnings were $49,537.08 and his social security earnings were
$18,192.47.
4

For the reasons set forth below we will remand the case
to the Commissioner for further proceedings.
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 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
5

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);
(3d Cir. 1999).

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

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. 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."
340 U.S. 474, 488 (1971).

Universal Camera Corp. v. N.L.R.B.,
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
6

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 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 claims for disability insurance benefits.
C.F.R. §404.1520; Poulos, 474 F.3d at 91-92.

See 20

This process

requires the Commissioner to consider, in sequence, whether a
claimant (1) is engaging in substantial gainful activity,8 (2)
8. If the claimant is engaging in substantial gainful activity,
the claimant is not disabled and the sequential evaluation
7

has an impairment that is severe or a combination of impairments
that is severe,9 (3) has an impairment or combination of
impairments that meets or equals the requirements of a listed
impairment,10 (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.11

proceeds no further.
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). 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). 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 and 404.1545(a)(2).
10. 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.
11. If the claimant has the residual functional capacity to do his
or her past relevant work, the claimant is not disabled.
8

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; 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 arguments of counsel, we will review some of the
medical records.

Vassell contends he became disabled on May 25,

2006, as the result of disorders of the back. Before and after
that date Vassell received extensive treatment from several
physicians including Mahesh D. Chhabria, M.D., a neurologist,
located in Stroudsburg, Pennsylvania. Tr. 206-215 and 231-400.
We will focus on the medical treatment received by Vassell after
his alleged disability onset date.

The following facts12 are

either undisputed or found in the record:
(1) On May 24, 2006, Vassell visited the emergency
12. The majority of these facts are taken from the statements
submitted by Vassell and the Commissioner. Docs. 11 and 15.
9

department at the Pocono Medical Center, East Stroudsburg,
Pennsylvania, after being involved in a motor vehicle accident.
Tr. 188-193.
ended. Id.

Vassell was a passenger in a vehicle which was rear
Vassell was examined and discharged the same day. Id.

The final diagnosis was “[motor vehicle accident]; muscula[r]
strain of neck.” Tr. 191.
(2) On May 25, 2006, Vassell had a cervical spine x-ray
performed at Advanced Radiology Services & The Center for
Women’s Well-Being, located in Tobyhanna, Pennsylvania,
because Vassell complained of painful and limited range
of motion of the cervical spine. Tr. 367. The x-rays revealed
normal vertebral body height and alignment, minimal
narrowing of C5-C6 disc space, no fracture or
subluxation(dislocation), and no prevertebral soft tissue
swelling. Id. The diagnostic impression by the radiologist was
essentially normal except for mild narrowing of the C5-C6 disc
space. Id.
(3) On May 30, 2006, Vassell had an appointment with
Dr. Chhabria at which Vassell complained of neck and low back
pain. Tr. 383-385. Vassell ambulated with an antalgic13 gait
pattern favoring his left side; Vassell had limited range of
motion of the cervical spine in all directions with diffuse
cervical spinal tenderness and mild paraspinal tenderness and

13. Antalgic is defined as “counteracting or avoiding pain, as a
posture or gait assumed so as to lessen pain.” Dorland’s
Illustrated Medical Dictionary, 97 (32nd Ed. 2012).
10

spasms;14 Vassell had lower lumbar spinal tenderness at L3
through S1 with left lumbar paraspinal tenderness and spasm; and
he had a negative straight leg raising test bilaterally.15 Id.
Dr. Chhabria’s assessment was that Vassell suffered from a
cervical and a lumbar strain and prescribed pain medications,
ordered MRIs of the cervical and lumbar spines, and directed that
Vassell continue with chiropractic treatments. Id. Dr. Chhabria
prognosis of Vassell was guarded. Id.
(4) On May 30, 2006, Vassell had an MRI of the cervical
spine at Pocono MRI Imaging Center, East Stroudsburg,
Pennsylvania, which revealed a “[l]eft paramedian disc herniation
C6-7, not significantly different than [a] prior study [with]
[n]o additional findings.” Tr. 390.
(5) On May 30, 2006, Vassell had an MRI of lumbar spine
at Pocono MRI Imaging Center which revealed “L4 and L5-S1
degenerative changes, not significantly different than the prior
study [with the exception that the] [u]pper facet degenerative
changes [had] progressed mildly [and there was a new finding of
a] [l]eft lateral disc herniation at L4-5 with left L4 dorsal

14. The paraspinal muscles are those that run next to and roughly
parallel to the spine.
15. The straight leg raise test is done to determine whether a
patient with low back pain has an underlying herniated disc. The
patient, either lying or sitting with the knee straight, has his
or her leg lifted. The test is positive if pain is produced
between 30 and 70 degrees. Niccola V. Hawkinson, DNP, RN, Testing
for Herniated Discs: Straight Leg Raise, SpineUniverse,
http://www.spineuniverse.com/experts/testing-herniated
-discs-straight-leg-raise (Last accessed November 27, 2012).
11

root ganglion16 impingement.” Tr. 391.
(6) On June 26, 2006, Vassell had an appointment with
Dr. Chhabria at which Vassell complained of neck pain, low back
pain, leg spasms and tingling in his hands. Tr. 269 and 381-382.
A physical examination revealed severe cervical, thoracic and
lumbosacral paraspinal tenderness as well as sensory changes in
the left and right C6-C7 distribution.17 Id. Dr. Chhabria noted
the new herniation at L4-L5 shown on the MRI of May 30, 2006. Id.
Dr. Chhabria’s assessment was that Vassell suffered from a severe
cervical strain with a herniated cervical disc, a lumbosacral
strain with a new herniated lumbar disc involving bilateral L5
radicular symptoms,18 and a severe thoracic strain possibly
secondary to a herniated thoracic disc at the T3-T4 level where
Dr. Chhabria noted the maximum “point tenderness.” Id.

Dr.

Chhabria prescribed the nonsteroidal anti-inflammatory
medications Mobic and the muscle relaxant Robaxin and directed

16. A ganglion is a defined as a bundle or mass of nerve cells.
See Dorland’s Illustrated Medical Dictionary, 757 (32nd Ed.
2012).
17. Another name for the C6 and C7 distribution is the C6 and C7
dermatomes. A dermatome is an area of the skin mainly supplied by
a single spinal nerve, There are 8 such cervical nerves, 12
thoracic, 5 lumbar and 5 sacral. A problem with a particular
nerve root should correspond with a sensory defect, muscle
weakness, etc., at the appropriate dermatome. See Stephen
Kishner, M.D., Dermatomes Anatomy, Medscape Reference,
http://emedicine.medscape.com/article/1878388-overview
(Last accessed June 27, 2012). The C6 dermatome is located on the
thumb. The C7 dermatome is located on the middle finger.
18. Radicular symptoms refers to symptoms of pain radiating from
and originating at a nerve root.
12

that Vassell continue chiropractic treatments. Dr. Chhabria
ordered bed rest for six weeks. Id.

Dr. Chhabria further stated

that Vassell “remains temporarily totally disabled” and “[h]is
prognosis is guarded at this time.” Tr. 382.
(7) On June 28, 2006, Vassell had an MRI of the
thoracic spine at Pocono MRI Imaging Center which revealed a
“[n]ew small left paramedian disc herniation [at the] T7-8
[level] with [a] stable small left paramedian disc herniation [at
the] T8-9 [level]” and a “[r]ight paramedian disc bulge [at the]
T9-10 [level] unchanged with degenerative changes [at the] T10-11
[level] and T11-12 [level] unchanged.” Tr. 389.
(8) On July 16, 2006, Dr. Chhabria completed a
statement of Vassell’s functional ability for Vassell’s private
disability insurance company. Tr. 350-351.

Dr. Chhabria

indicated that he put Vassell “on off work status” on May 30,
2006, and that his condition had not changed.

Id.

Dr. Chhabria

further stated that Vassell had “[s]evere limitations of
functional capacity: incapable of minimal (“sedentary”)
activity[.]” Id.
(9) On August 7, 2006, Vassell had an appointment with
Dr. Chhabria at which Vassell complained, inter alia,
and low back pain. Tr. 268 and 379-380.

of neck

A neurological

examination revealed significant limited range of motion of the
cervical spine in all directions secondary to spasm and
tenderness. Id. There was minimal weakness noted in the left

13

upper and lower extremities in contrast to the right. Id.

Deep

tendon reflexes were hypoactive19 because of guarding. Id.
Vassell had diffuse cervical, thoracic and lumbar spinal and
paraspinal tenderness. Id.
gait. Id.

Vassell ambulated with an antalgic

Dr. Chhabria’s assessment was that Vassell had

herniated discs in his cervical, thoracic and lumbar spines as
well as strains in those regions. Id.

Dr. Chhabria prescribed

the medications Vicodin (a narcotic pain reliever), Mobic and
Robaxin as well as Lidoderm patches. Id.

Dr. Chhabria noted that

Vassell “remains temporarily totally disabled until seen in
follow up.” Id.
(10) On August 14, 2006, Vassell had an appointment
with Dr. Chhabria at which Vassell complained of low back pain
rated on a scale of 1 to 10 as an 8 or 9 which radiated into the
left medial aspect of his left lower extremity. Tr. 268.
(11) On September 5, 2006, Dr. Chhabria completed a
“Pennsylvania Department of Public Welfare Employability

19. There are a number of possible causes of hypoactive reflexes,
including disc herniations. “Herniated discs in the spine, may .
. . cause hypoactive reflexes. When a disc herniates, the inner
jelly solution leaks out. Since the outer core is directly next
to the spinal nerve roots, the herniation will place pressure on
the nerve. The compression of the nerve produces pain into the
arms or legs, depending on the site of the herniation. Dics
herniated in the cervical area will cause pain into the arms.
Lumbar herniated discs are associated with leg pain, referred to
as sciatica. . . Due to disruption of the nerve pathway, the deep
tendon reflexes will be absent or diminished.” Deep Tendon
Reflexes that are Hypoactive, Livestrong.com, http://www.
livestrong.com/article/146425-deep-tendon-reflexes-that-are-hypoa
ctive/ (Last accessed November 27, 2102).
14

Assessment Form” on behalf of Vassell. Tr. 342-344. Dr. Chhabria
stated that Vassell suffered from cervical, thoracic and lumbar
disc herniations and a lumbosacral strain. Id.

Dr. Chhabria

further indicated that Vassell was temporarily disabled, the
disability began May 24, 2006 and was expected to last until
October 11, 2006. Id.

He also stated that his assessment was

based on his physical examination of Vassell, review of medical
records, a clinical history and appropriate tests and diagnostic
procedures. Id.
(12) On September 20, 2006, Vassell underwent
electrodiagnostic testing (an EMG)20 of the bilateral upper
extremities. Tr. 320-321.
Katara, M.D. Id.

The testing was performed by Suman

The testing revealed the following: “Mild

median nerve compression neuropathy at the wrists (carpal tunnel
syndrome) bilaterally with demyelinative changes as evidenced by
the abnormal median sensory and mixed palmar studies” and “[m]ild
chronic C6-7 radiculopathy on the left as evidence by the
20. “An electromyogram (EMG) measures the electrical activity of
muscles at rest and during contraction. Nerve conduction studies
measure how well and how fast the nerves can send electrical
signals. . . An EMG is done to: Ë Find diseases that damage
muscle tissue. These problems may include a herniated disc . . .
Ë Find the cause of weakness, paralysis, or muscle twitching.
Problems in a muscle, the nerves supplying a muscle, the spinal
cord or the area of the brain that controls a muscle can cause
these symptoms. The EMG does not show brain or spinal cord
disease. A nerve conduction study is done to: ËFind damage to
the peripheral nervous system, which include all the nerves that
lead away from the brain and spinal cord and the smaller nerves
that branch out from those nerves . . . .” Electromyogram (EMG)
and Nerve Conduction Studies, WebMD, http://www.webmd.com/brain/
electromyogram-emg-and-nerve-conduction-studies (Last accessed
November 27, 2012).
15

decreased recruitment and chronic denervation changes in the . .
. muscles.” Id.
(13) On October 1, 2006, Vassell had x-rays at the
Pocono Medical Center which revealed that he suffered from
scoliosis21 (a “left convexity scoliosis of 20 degrees from the
[Thoracic 1 level to the Thoracic 5 level]” and a “right
convexity scoliosis of 32 degrees from the [Thoracic 11 to the
Lumbar 4 level]”). Tr. 188. The x-rays further revealed that the
left femoral head was a centimeter higher than the right femoral
head. Id.
(14) On October 2, 2006, Vassell had an appointment
with Dr. Chhabria at which Vassell complained of severe neck and
low back pain and numbness in his left foot. Tr. 377-378. The
physical examination revealed “significant cervical, thoracic,
and lumbosacral tenderness” and “evidence of sensory loss in the
left lower extremity and mild weakness in the left hamstrings.”
Tr. 377.

Dr. Chhabria’s assessment was that Vassell suffered

from a lumbosacral strain with a new herniated disc at the L4-L5
level; a left L5 radiculopathy;22 a cervical strain with a

21. Scoliosis is an abnormal lateral curvature in the normal
straight line of the spine. See Dorland’s Illustrated Medical
Dictionary, 1681 (32nd Ed. 2012).
22. 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. The nerve roots exit
through holes (foramen) in the bone of spine on the left and the
right. Radiculopathy can be the result of a disc herniation or an
injury causing foraminal impingement of an exiting nerve (the
16

cervical disc herniation at the C6-C7 level and radiculopathy;
and a thoracic strain with a thoracic herniated disc. Id.

Dr.

Chhabria noted that Vassell remains “temporarily totally
disabled.” Tr. 378.

Dr. Chhabria prescribed bed rest for 6 weeks

along with pain medications. Tr. 336.
(15) On October 4, 2006, Vassell had electrodiagnostic
testing (an EMG) of the left lower extremity performed by Dr.
Katara. Tr. 317-319. The record is incomplete as to the
interpretation and results of this testing. Tr. 317.23
(16) On November 20, 2006, Vassell had an appointment
with Dr. Chhabria at which Vassell complained of chronic,
shooting pain in the left buttocks, left sided chest pain and
numbness in the left foot. Tr. 375. A physical examination
revealed that Vassell had as the result of pain limited range of
motion of the cervical spine in all directions, mild weakness in
the left deltoid muscle, diminished sensation in the left C4
through C8 distribution and the left L4 and L5 distribution
(dermatomes), hypoactive deep tendon reflexes, a negative
bilateral straight leg raising tests, mild cervical spinal

narrowing of the channel through which a nerve root passes). See,
generally, Radiculopathy, MedicineNet.com, http://www.
medicinenet.com/radiculopathy/article.htm (Last accessed November
27, 2012). 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.
23. We only located in the record the first page of the EMG report
dated October 4, 2006.
17

tenderness, bilateral paraspinal spasm in the cervical and lumbar
regions, and an intact gait. Tr. 375.

Dr. Chhabria’s assessment

was that Vassell suffered from a cervical strain, cervical disc
herniations with left radiculopathy, a thoracic strain and
herniated disc, a lumbosacral strain, and multiple lumbar disc
herniations with radiculopathy on the left originating from the
L5 level.24 Id. Dr. Chhabria stated that Vassell “remains
temporarily totally disabled until we see him in follow up in
eight weeks.” Tr. 376. Pain medications were prescribed. Id.
(17) Vassell received chiropractic treatment from
Richard Simeone, D.C., on December 22 and 29, 2006; January 8, 12
and 19, 2007; and February 21, 2007. Tr. 195-198.

At each of

these appointments Dr. Simeone found that Vassell had tenderness,
spasms, pain/soreness throughout the back and decreased range of
motion of the lumbar and thoracic regions of the spine. Id.

He

also found that Vassell had myofascial trigger points with
radiation to the low back region and a right rotation subluxation
(dislocation) in the cervical region. Id.

It was also noted at

the appointment on January 12, 2007, that Vassell had “a
persistent right leg deficiency about 3/4 inch.” Id.
(18) On January 24, 2007, Vassell had an appointment
with Dr. Chhabria at which Vassell complained of neck pain, low
back pain, mid back pain, pain radiating into the left buttock

24. Dr. Chhabria in the report of this appointment did state that
an “EMG of the left lower extremity recently obtained showing a
possible active L5-S1 radiculopathy.” Tr. 375.
18

and burning dysesthesias25 in the left foot, left jaw pain and
headaches. Tr. 315.

A physical examination revealed severe

tenderness along the left temporomandibular joint,26 cervical
paraspinal tenderness and lumbosacral tenderness. Id.
also had tenderness in the sacroiliac region. Id.

Vassell

Dr.

Chhabria’s assessment was that Vassell suffered from a cervical
strain with a cervical disc herniation, a left cervical
radiculopathy, a lumbosacral strain with left L5 radiculopathy
which was secondary to a herniated disc at the L4-L5 level, and
left temporomandibular joint dysfunction. Id.

Dr. Chhabria

advised Vassell to continue having chiropractic treatments and
taking pain medications. Id.

Dr. Chhabria further stated that

Vassell “remains totally temporarily disabled.” Tr. 316.
(19) Vassell had appointments with Dr. Simeone on
January 26 and February 5, 2007. Tr. 197-198. At each of these
appointments Dr. Simeone found that Vassell had tenderness,
spasms, pain/soreness throughout the back and decreased range of
motion of the lumbar and thoracic regions of the spine. Id.

He

also found that Vassell had trigger points with radiation of pain
to the upper and lower back.27 Id.

25. “Dysesthesia” is defined as a “distortion of any sense,
especially of that of touch.” Dorland’s Illustrated Medical
Dictionary, 577 (32nd Ed. 2012).
26. The temporomandibular joint (TMJ) is the joint of the jaw.
27. Vassell had appointments with Dr. Simeone on March 5, 14 and
26, April 6, 17 and 23, and May 4 and 23, 2007. There were
similar objective findings by Dr. Simeone during those
19

(20) On February 19, 2007, Vassell had an MRI of the
lumbar spine performed at Pocono MRI Imaging which revealed the
following:”L4-L5 diffuse disc bulge with broad-based left
foraminal and lateral disc herniations, unchanged the previous
examination” and “[m]ild L5-S1 degenerative disc disease,
unchanged.” Tr. 309.
(21) On February 21, 2007, Dr. Chhabria completed a
statement of Vassell’s functional ability for Vassell’s private
disability insurance company. Tr. 305-307.

Dr. Chhabria

indicated that Vassell had the following condition: “Marked to
severe symptoms at rest, severe symptoms with any exercise. May
only be able to carry out a very minimal range of activities
relating to personal care (e.g. washing, bathing). Frequently
unable to leave the house. May be confined to a wheelchair or bed
for much of the day.

Unable to concentrate for more than 1

hour/day.” Tr. 307.
(22) On March 23, 2007, Vassell had an appointment with
Dr. Chhabria at which Vassell complained of chronic neck and low
back pain, left temporomandibular joint pain radiating and
causing left-sided headaches, and left lower extremity pain. Tr.
208-209, 266 and 303-304.

A physical examination revealed that

Vassell had diffuse cervical, lumbar and left temporomandibular
join tenderness to palpation; his deep tendon reflexes were
hypoactive in the bilateral lower extremities; he had a mildly

appointments.
20

antalgic gait pattern; and there was no overall change in his
exam. Id.

Dr. Chhabria’s assessment was that Vassell suffered

from chronic cervical strain, chronic lumbosacral strain, left
lumbar radiculopathy and left temporomandibular joint
dysfunction. Id.

Dr. Chhabria stated that Vassell “remains

temporarily totally disabled[.]” Tr. 304.
(23) On May 30, 2007, Vassell had an appointment with
Dr. Chhabria at which Vassell complained of severe low back pain,
neck pain, back stiffness and leg weakness. Tr. 206-207, 266 and
300-301. A physical examination revealed evidence of significant
lumbosacral paraspinal tenderness, cervical paraspinal
tenderness,

limited range of motion in the lumbar spine

associated with discomfort, diffuse facet tenderness throughout
the lumbar spine, weakness in the left lower extremity with
sensory loss in the left L4-L5 distribution, and diminished knee
jerks bilaterally. Id.

Dr. Chhabria advised Vassell to continue

chiropractic treatments. Id.

Dr. Chhabria stated that Vassell

“remains temporarily totally disabled[.]” Id.
(24) On June 25, 2007, Dr. Chhabria completed a
statement of Vassell’s functional ability for Vassell’s private
disability insurance company. Tr. 296-297.

Dr. Chhabria

indicated that he put Vassell “on off work status” on May 30,
2006, and that his condition had not changed.

Id.

Dr. Chhabria

further stated that Vassell had “[s]evere limitations of
functional capacity: incapable of minimal (“sedentary”)

21

activity[.]”28 Id.
(25) On July 30, 2007, Vassell had an appointment with
Dr. Chhabria at which Vassell complained of burning dysesthesia
in the left side of his back radiating to the buttock and down
the posterior thigh to his knee. Tr. 293-294.

He also complained

about dysesthesia in the arch of the left foot. Id.

It was

noted that Vassell could not maintain a home exercise program
because of worsening pain. Id.

A physical examination revealed

diminished pinprick sensation in the left L5-S1 distribution on
the right L4 distribution, diffuse spinal tenderness and
paraspinal tenderness in the mid and lower lumbar region of the
spine and an antalgic gait pattern favoring the left. Id.

Dr.

Chhabria’s assessment was that Vassell suffered from a chronic
lumbosacral strain with a herniated lumbar disc, a thoracic
strain with a herniated thoracic disc, a cervical strain with a
herniated cervical disc and left lumbar radiculopathy. Id.
Medications were prescribed and he was advised to continue having
chiropractic treatment. Id.
(26) On September 4, 2007, Vassell was examined by
Sethuraman Muthiah, M.D., on behalf of the Bureau of Disability
Determination. Tr. 216-223. Dr Muthiah after conducting an
interview, reviewing the medical records and performing a

28. Similar statements were completed by Dr. Chhabria on July 31,
October 1, and December 4, 2007; March 4 and June 18, 2008; and
March 24, 2009. Tr. 204-205, 249-250, 253-254,258-259 and 286287.
22

physical examination stated that Vassell suffered from a left
lumbar radiculopathy, scoliosis and a cervical strain. Id.

One

of the objective findings during the physical examination of
Vassell was that Vassell had a positive bilateral straight leg
rasing test, both seated and supine. Tr. 218. Another objective
finding by Dr. Muthiah was that Vassell had an absent deep tendon
reflex of the left knee and a diminished deep tendon reflex of
the left ankle. Tr. 217. Dr. Muthiah noted that Vassell was on
the medications Vicodin, Robaxin and amitriptyline.29 Tr. 216.
Dr. Muthiah concluded that Vassell could only stand and walk
three hours and sit 3 hours in an 8-hour workday, less than the
requirements of full-time work. Tr. 218 and 220.
(27) On September 12, 2007, Louis Tedesco, M.D.,
reviewed Vassell’s medical records (but did not examine Vassell)
on behalf of the Bureau of Disability Determination and rejected
Dr. Muthiah’s opinion and concluded that Vassell could engage in
a limited range of light work on a full-time basis. Tr. 224-230.
(28) On December 4, 2007, Vassell had an appointment
with Dr. Chhabria at which Vassell complained of chronic low back
and neck pain. Tr. 262-263.

A physical examination revealed no

new changes on motor and sensory exam and significant lumbosacral
paraspinal tenderness. Id.

There was decreased range of motion

of the lumbar spine associated with pain. Id.

Dr. Chhabria

29. Amitriptyline is an antidepressant but it has other uses,
including for the treatment of migraine headaches and neuropathic
pain (nerve pain).
23

stated that Vassell was totally disabled. Id.
(29) On March 4, 2008, Vassell had an appointment with
Dr. Chhabria at which Vassell complained of numbness in the left
leg down to the foot. Tr. 237-239.

A physical examination

revealed that Vassell had weakness in the left knee flexor and
extensor as well as dorsi flexion on the left; an antalgic gait
favoring the left; limited range of motion of the cervical spine
in all directions; and diffuse spinal and paraspinal tenderness
in the cervical, thoracic and lumbar regions. Tr. 238.

Dr.

Chhabria’s assessment was that Vassell suffered from cervical,
thoracic and lumbar herniated discs. Id.

Dr. Chhabria stated

that Vassell “remains temporarily totally disabled until seen in
follow up.” Id.
Vassell was seen by Dr. Chhabria on June 10, August 8,
October 21, and December 22, 2008, and March 24, 2009. Tr. 111120, 232-236 and 240. The reports of these appointments do not
reveal any significant improvement in Vassell’s condition. In
fact the report of March 24, 2009, reveals that Vassell had
severe lumbosacral and cervical paraspinal tenderness; mild
thoracic tenderness; sensory loss in the L4 and L5 distribution
as well as weakness in the left hamstring; and he ambulated with
an antalgic gait pattern favoring the left side. Tr. 111. Dr.
Chhabria noted that Vassell was temporarily totally disabled. Id.
DISCUSSION
The administrative law judge at step one of the
sequential evaluation process found that Vassell has not engaged
24

in substantial gainful work activity since May 25, 2006, the
alleged disability onset date. Tr. 19.
At step two of the sequential evaluation process, the
administrative law judge found that Vassell has the following
severe impairments: “cervical and lumbar degenerative disc
disease with musculoskeletal pain[.]” Id. The administrative law
judge did not address whether or not Vassell suffered from the
following impairments: scoliosis and degenerative disc disease of
the thoracic spine.
At step three of the sequential evaluation process the
administrative law judge found that Vassell’s impairments did not
individually or in combination meet or equal a listed impairment.
Tr. 20.

As part of the step three analysis the administrative

law judge found that Vassell did not have “evidence of nerve root
compression characterized by neuro-anatomic distribution of pain,
limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and a positive straight leg raising test
(sitting and supine).” Id.
At step four of the sequential evaluation process the
administrative law judge found that Vassell could not perform his
prior relevant work but that he had the residual functional
capacity (“RFC”) to perform a limited range of sedentary work.
Tr. 20-21 The ALJ’s statement of Vassell’s residual functional
capacity is extremely convoluted. There is a basic principle in
setting a residual functional capacity, i.e., it is the most that
25

an individual can do.

In setting the RFC the ALJ, however, makes

our job difficult because of his imprecision.

For example, he

indicates that Vassell can stand somewhere between 4 and 6 hours.
The ALJ’s convoluted RFC assessment states in toto as follows:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform sedentary work as
defined in 20 CFR 404/1567(a). The claimant has the
capacity to perform a range of sedentary work out of
the considerations of standing and walking limitations
beneath the four hour threshold, and lifting and
carrying would only be ten pounds occasionally and five
pounds frequently. The claimant would be able to stand
or walk for the duration somewhere between four to six
hours out of an eight hour day, the claimant would be
able to sit for the balance of that, perhaps the
individual would need a self-directed sit/stand option
in the process of performing such sedentary exertion.
The individual would have minimal difficulties in
pushing and pulling that would be accomplished
bilaterally on a frequent30 basis, Operation of foot
controls, likewise, there would be some limitation
due to lumbar radiculopathy, there would not be a
capacity for constant and maybe not even frequent,
less than frequent, and thus, occasional approaching
frequent, but not quite fully frequent. This individual
by virtue of issues with low back pain and cervical
pain with radiculopathy in the upper extremity and also
into the lower extremities would be impaired from being
able to climb ladders, scaffolds or ropes on any more
than emergent basis. The person should be able to
ascend ladders or stairs at least occasionally. The
individual would be able to engage in short distance
balancing without the use of any handheld assistive
device. Stooping, crouching, crawling and kneeling
would be occasional at best in terms of capacity. From
a manipulative level, the individual does use for his
dominant right hand a brace on the wrist and the fore
thumb of his right hand; this is for support from the
residual of the carpal tunnel surgery. The individual

30. Under the Social Security regulations “frequent” is defined as
up to 2/3 of an 8-hour workday or approximately 5.33 hours.
“Occassionally” is defined as up to 1/3 of an 8-hour workday or
2.67 hours.
26

in terms of handling, fingering, feeling and grasping
activities on a gross and even fine motor level would
have some diminution in the use of the right hand from
activities at the constant level to perhaps at best
frequent from the right hand. However, on the
nondominant left hand it would be at least frequent if
not on a constant basis. From a reaching and overhead
reaching standpoint the individual would have the
capacity to reach with both the left and right hand
laterally at least on an occasional basis approaching
frequent. Overhead reaching perhaps would be restricted
to occasional at best. This is an individual who by
virtue of lumbar radiculopathy should not be engaged
in any sort of prolonged ambulation over uneven
terrain. The individual has the appropriate capacity
with respect to oral communication and perhaps some
written based on education at the GED level. He
wears glasses for corrective vision but beyond that
there is no indication of deficits with the visual
capacity.
Tr. 20-21.
Based on the above residual functional capacity and the
testimony of a vocational expert the administrative law judge
found that Vassell could perform work as a desk guard, a
surveillance system monitor, and a visual inspector, and that
there were a significant number of such jobs in the regional and
state economies. Tr. 25.
The administrative record in this case is 400 pages in
length, primarily consisting of medical and vocational records.
Vassell first argues that the administrative law judge erred when
he found that Vassell’s impairments do not meet or equal a listed
impairment. Specifically, Vassell contends that the ALJ did not
give a sufficient explanation for so finding, Second, Vassell
argues that the ALJ did not appropriately consider the treating
physician’s assessment of Vassell’s functional abilities.

27

Finally, Vassell argues that the ALJ erred in judging the
credibility of Vassell’s claims of disabling pain.

Because we

find substantial merit in the first and third arguments, we will
not address in detail the second.31
With respect to the ALJ’s step three determination, the
ALJ erroneously stated that there was no evidence of nerve root
compression.

The record reveals that Vassell suffered from “left

lateral disc herniation at L4-5 with Left L4 dorsal root ganglion
impingement.” Tr. 391.

There is also evidence of neuro-anatomic

distribution of pain for both the cervical and the lumbar discs.
Tr. 310-311, 379-385 and 394. There is repeated evidence of
limitation of motion of the spine. Tr. 198-199, 203 and 379-380.
There is evidence of motor loss with muscle weakness. Tr. 212215. There is evidence of sensory and reflex loss. Tr. 300-301
and 310-311. There are positive straight-leg raising tests. Tr.
218. Although the evidence is not always consistent, the ALJ made
a blanket statement that there was no such evidence supporting a
finding that Vassell’s condition met Listing 1.04A relating to

31. We will note that the only medical opinion supportive of the
ALJ’s decision and completely contrary to Dr. Chhabria’s numerous
statements that Vassell was totally disabled is the opinion of
Dr. Tedesco who only performed a review of Vassell’s medical
records. Under the circumstances of this case and in light of Dr.
Muthiah’s opinion that Vassell was limited to less than full-time
employment, we are not satisfied that Dr. Tedesco’s opinion is
substantial evidence supporting the ALJ’s decision even in light
of Chandler v. Commissioner of Soc. Sec., 667 F.3d. 356, 362 (3d
Cir. 2011)(“Having found that the [state agency physician’s]
report was properly considered by the ALJ, we readily conclude
that the ALJ’s decision was supported by substantial
evidence[.]”).
28

disorders of the spine.32

If there were some reason to reject

the reports in the record of nerve root compression, weakness,
sensory and motor reflex loss, and positive straight-leg raising
testing, it was incumbent upon the ALJ to set forth that reason.
The ALJ’s step three analysis is inadequate.
The administrative law judge in his decision when
judging the credibility of Vassell’s claims of disabling pain
stated as follows:
In this case, the claimant’s case in establishing
disability is directly dependent on the element of pain
which is of an intractable nature. Pain is subjective
and difficult to evaluate, both quantitatively and
qualitatively. Nevertheless, most organic diseases
produce manifestations other than pain and it is
possible to evaluate the underlying processes and
degree of resultant impairment by considering all of
the symptoms. Generally, when an individual has
suffered pain over an extended period, there will be
observable signs such as a significant loss of weight,
an altered gait or limitation of motion, local morbid
changes, or poor coloring of station. In the present
case, the claimant has complained of pain over an
extended period of time. None of the above signs of
chronic pain are evident. While not conclusory by
itself, this factor contributes to the determination

32. Listing 1.04A states in relevant part as follows:
1.04 Disorders of the spine (e.g., herniated nucleous
pulposus . . ., degenerative disc disease, . . .),
resulting in compromise of a nerve root . . . or
spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of
motion of the spine, motor lose (atrophy with
associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg
raising test (sitting and supine) . . . .
29

that the claimant is not disabled as a result of pain.
Tr. 24 (emphasis added).

Our review of the record reveals that

on several occasions Vassell had medical appointments where he
exhibited an altered gait and limitation of motion. The
administrative law judge’s assertion that Vassell did not exhibit
an altered gait or limitation of motion was clearly erroneous.
In addition to the above errors, the administrative law
judge erred at step two of the sequential evaluation process. The
Social Security regulations contemplate the administrative law
judge considering whether there are any medically determinable
impairments and then when setting a claimant’s residual
functional capacity considering the symptoms of both medically
determinable severe and non-severe impairments.
404.1529.

20 C.F.R. §

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.

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.

30

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 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.); Little v. Astrue, Civil No.
10-1626, slip op. at 19-21 (M.D.Pa. September 14, 2011)(Kosik,
J.); Crayton v. Astrue, Civil No. 10-1265, slip op. at 32-35
(M.D.Pa. September 27, 2011)(Caputo, J.); 20 C.F.R. §§ 404.1523,
404.1545(a)(2), 416.923 and 416.945(a)(2).
The record reveals that Vassell suffered from scoliosis
and degenerative disc disease of the thoracic spine.33

The

failure of the administrative law judge to find those conditions
as medically determinable impairments, or to give an adequate
explanation for discounting them, makes his decisions at steps
two and four of the sequential evaluation process defective.
The error at step two of the sequential evaluation
process draws into question the administrative law judge’s
residual functional capacity determination and assessment of the
credibility of Vassell.

The administrative law judge found that

Vassell’s medically determinable impairments could reasonably

33. The record reveals that Vassell suffered from multiple
herniated discs. It is not clear that the administrative law
judge found that they were medically determinable impairments.
Degenerative disc disease is not really a disease but part of the
normal aging process. Herniated discs generally are considered a
step beyond the normal aging process.
31

cause Vassell’s alleged symptoms but that Vassell’s statements
concerning the intensity, persistence and limiting effects of
those symptoms were not credible. Tr. 22.

This determination by

the administrative law judge was based on an incomplete and
faulty analysis of all of Vassell’s medically determinable
impairments.
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.
An appropriate order will be entered.

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

Dated: November

29, 2012

32