Diaz v. Colvin

Filing 24

MEMORANDUM (Order to follow as separate docket entry) re 1 Complaint filed by Albert Diaz, Jr. For the reasons stated herein, we find that the final decision of the Commissioner of Social Security is not supported by substantial evidence. Ac cordingly, it is ordered that the final decision of the Commissioner denying Mr. Diaz's claim be VACATED and this case be REMANDED to the Commissioner to conduct a new administrative hearing pursuant to sentence four of 42 U.S.C. §405(g). Signed by Magistrate Judge Susan E. Schwab on 3/22/2017. (ktt)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALBERT DIAZ, JR.,
Plaintiff,
v.
CAROLYN W COLVIN
Acting Commissioner of
Social Security
Defendant.

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Civil No. 4:16-cv-00358

(Chief Magistrate Judge Schwab)

MEMORANDUM OPINION
I.

Introduction
Plaintiff Albert Diaz, Jr. (“Mr. Diaz”), an adult individual who resides

within the Middle District of Pennsylvania, seeks judicial review of the final
decision of the Commissioner of Social Security (“Commissioner”) denying his
claim for Disability Insurance Benefits under Title II of the Social Security Act.
Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g). This matter
has been referred to the undersigned United States Magistrate Judge on consent of
the parties, pursuant to the provisions of 28 U.S.C. § 636(c) and Rule 73 of the
Federal Rules of Civil Procedure. Doc. 20; Doc. 21.
For the reasons stated herein, we find that the final decision of the
Commissioner of Social Security is not supported by substantial evidence.
Accordingly, it is ordered that the final decision of the Commissioner denying Mr.

Diaz’s claim be VACATED and this case be REMANDED to the Commissioner
to conduct a new administrative hearing pursuant to sentence four of 42 U.S.C.
§405(g).
We recommend that, because Mr. Diaz’s application for benefits has been
pending for almost seven years, the Commissioner schedule an expedited hearing
within 120 days of the Court’s Order and promptly issue a revised decision.1
II.

Background And Procedural History
This action began as a simple application for Disability Insurance Benefits

under Title II of the Social Security Act filed by Mr. Diaz on April 16, 2010.
Since that date, Mr. Diaz’s claim navigated through a complex procedural
labyrinth, where it has been denied and remanded due to multiple defects before it
1

Although we have stopped short of ordering that a time limit be imposed in this
case, it is within our authority to do so. Butts v. Barnhart, 388 F.3d 377 (2d Cir.
2004) (imposing a time limit where the past delay is of such magnitude that a time
limit is imperative); Barbour v. Astrue, 950 F.Supp.2d 480, 491 (E.D.N.Y.
2013)(finding that a time limit is appropriate where the claimant’s application for
benefits had been pending for seven years).
We also note that, following his second administrative hearing, Mr. Diaz raised
allegations of individual bias against ALJ Hardiman. This issue was first raised in
Mr. Diaz’s brief in this case, however, during oral argument the Commissioner
reported that the allegations raised by Mr. Diaz were being investigated in
accordance with Social Security Administration policy. Mr. Diaz was satisfied that
the issue would be properly handled by the Social Security Administration, and
agreed that this Court need not rule on the merits of this issue. Nonetheless, we
also recommend that, if the Commissioner’s inquiries are still ongoing, she
consider remanding this case to a new administrative law judge.
2

arrived before us in the instant matter. Because we write solely for the benefit of
the parties, we need not discuss the procedural history of this case in detail. As
such, we will focus on the issue before us – whether ALJ Hardiman’s December
2015 decision denying Mr. Diaz’s claim is supported by substantial evidence.
Before May 8, 2008, Mr. Diaz worked in a luxury apartment building as a
maintenance director and maintenance worker. Admin. Tr. 659; Doc. 6-10 p. 77.
Impartial Vocational Expert Patricia Chilleri (“VE Chilleri”) testified that this
position was a composite job that involved elements of multiple jobs in the
Dictionary of Occupational Titles (“DOT”) published by the United States
Department of Labor. At its most demanding Mr. Diaz’s past relevant work was
classified as “very heavy” and “skilled” with a specific vocational preparation
(“SVP”) level of seven.2 Id.

Very heavy work involves lifting objects weighing more than one-hundred
pounds at a time with frequent (between one-third and two-thirds of the work day)
lifting or carrying of objects weighing fifty pounds or more. 20 C.F.R.
§404.1567(e).

2

SVP is defined as the amount of lapsed time required by a typical worker to learn
the techniques, acquire the information, and develop the facility needed for average
performance in a specific job-worker situation. Dictionary of Occupational Titles,
Vol. II 1009 (4th ed. Rev. 1991) (hereinafter “DOT”) available on Westlaw at 1991
WL 688702. Occupations with an SVP of 7 take between two and four years for a
typical worker to learn the techniques, acquire the information, and develop the
facility needed for average performance. Id. The Commissioner’s regulations do
not discuss SVP, and instead classify occupations as “unskilled,” “semi-skilled,”
3

This case was initiated based on two applications for benefits that were filed
at separate times and then consolidated by order of the Appeals Council of the
Office of Disability Adjudication and Review (“Appeals Council”). Admin. Tr.
689; Doc. 6-11 p. 21. Mr. Diaz’s first application for benefits was filed on April
16, 2010. In his first application for benefits Mr. Diaz alleged that he became
disabled on May 8, 2008. Mr. Diaz’s second application for benefits was filed on
August 13, 2013. In his second application for benefits Mr. Diaz also alleged that
he became disabled on May 8, 2008.
On May 8, 2008, when Mr. Diaz was thirty-nine years old, he fell
approximately four feet down an elevator shaft while engaging in his duties as a
maintenance director and maintenance worker. Mr. Diaz alleges that he landed on
his back and elbow. Although the full extent of Mr. Diaz’s injuries was not
immediately apparent, Mr. Diaz asserts that this injury was the underlying cause of
unremitting pain that has driven him to have multiple back and elbow surgeries.
The record in this case reflects that he first sought treatment for his injuries
on May 16, 2008, at Holy Name Hospital. Admin. Tr. 275; Doc. 6-7 p. 83. He
presented to the emergency department with complaints of severe low back pain

and “skilled.” 20 C.F.R. §404.1568. An SVP level from five through nine
corresponds to the Commissioner’s definition of “skilled” work. SSR 00-4p, 2000
WL 1898704 at *3.
4

and elbow pain. An injection of Toradol relieved his symptoms, and he was
prescribed Valium and Percocet. Admin. Tr. 276; Doc. 6-7 p. 84. An X-ray of Mr.
Diaz’s right elbow was normal. Admin. Tr. 278; Doc. 6-7 p. 86. An X-ray of Mr.
Diaz’s lumbar spine showed no change from a prior study dated August 13, 2007.
Admin. Tr. 279; Doc. 6-7 p. 87. Mr. Diaz was ambulatory on discharge, and was
released to work immediately except that he was instructed not to use his injured
right arm for one week. Admin. Tr. 281; Doc. 6-7 p. 89.
Only a month later, an MRI revealed some abnormalities in Mr. Diaz’s spine
that were not apparent on the initial x-ray. Mr. Diaz was also diagnosed with
cubital tunnel syndrome of the right elbow within months of his accident. Mr.
Diaz alleges that as a result of his injuries he cannot bend, twist, squat, lift more
than five pounds, reach with his right arm, walk more than twenty feet, climb,
kneel, concentrate for more than three minutes at a time, or remember. Admin. Tr.
835; Doc. 6-14 p. 6. It was also noted that, during the June 2015 hearing Mr. Diaz
was shaking severely. Admin. Tr. 653; Doc. 6-10 p. 70. Mr. Diaz’s counsel
explained that this was due to a spinal nerve stimulator that was surgically
implanted in his spine. Id. Mr. Diaz reported that for every thirty minute period,
his spinal implant is on for approximately twenty minutes. Admin. Tr. 655; Doc. 610 p. 72. Mr. Diaz also has manual control of the device and can turn it off or on
5

as necessary. Id. Mr. Diaz testified that he has difficulty maintaining focus while
his spinal nerve stimulator is active. Admin. Tr. 656; Doc. 6-10 p. 73. Mr. Diaz
also asserts that, in addition to the limitations above, he has great difficulty getting
up and down, and uses a portable urination device during the day when he is home
alone and had no one to assist him to the bathroom in a timely manner. Admin. Tr.
654; Doc. 6-10 p. 71.
During the relevant period from May 8, 2008, through December 31, 2013,
Mr. Diaz was treated by multiple acceptable medical sources and non-acceptable
medical sources including surgeons, specialists, physical therapists, and
occupational therapists.3

See 20 C.F.R. §404.1513(listing types of acceptable

medical sources); 20 C.F.R. §404.1502(defining treating medical sources). Mr.
Diaz was also examined by nontreating acceptable medical sources, and his
records were reviewed by nonexamining acceptable medical sources, in connection
with his applications for benefits. See 20 C.F.R. §404.1502(defining nontreating
and nonexamining sources).
Mr. Diaz appeared and testified at two administrative hearings. He was
represented by counsel at both hearings. The first hearing took place on October 5,
3

To be eligible for benefits under Title II of the Social Security Act a claimant
must show that he became disabled before his date last insured (“DLI”). ALJ
Hardiman found that Mr. Diaz’s DLI in this case is December 31, 2013, and Mr.
Diaz does not dispute this finding.
6

2011. In addition to Mr. Diaz, vocational expert Gerald Keating (“VE Keating”)
also appeared and testified.4 A second hearing took place on June 30, 2015. A
second vocational expert, VE Chilleri testified at this hearing.
On December 21, 2015, the ALJ issued a written decision denying Mr.
Diaz’s claims.
On February 27, 2016, Mr. Diaz filed a timely appeal in the United States
District Court. Doc. 1. In his complaint Mr. Diaz seeks review of the ALJ’s
adverse decision, and requests judgment for such relief as this Court deems proper.
Id.
On April 27, 2016, the Commissioner filed her answer to Mr. Diaz’s
complaint. Doc. 8. The Commissioner maintains that the ALJ’s decision denying
Mr. Diaz’s claim was made in accordance with the law and regulations, and is
supported by substantial evidence.

Id.

Together with her answer, the

Commissioner filed a certified transcript of the record of the administrative
proceedings in this case.
4

After this administrative hearing, the ALJ denied Mr. Diaz’s claim. Mr. Diaz
sought review by the Appeals Council of the Office of Disability Adjudication and
review. His request was denied, and he appealed the ALJ’s decision to the U.S.
District Court for the Middle District of Pennsylvania. Magistrate Judge Gerald B.
Cohn issued a report recommending that Mr. Diaz’s case be remanded back to the
Commissioner for a new administrative hearing. Magistrate Judge Cohn’s
recommendation was adopted by Judge John E. Jones. The second administrative
hearing was held as a result of this Court’s remand order.
7

This matter has been fully briefed by the parties, and the parties were
granted an opportunity to further elaborate on the issues raised in their briefs
during oral argument before the Court. Doc. 11; Doc. 13; Doc. 14; Doc. 21.
Below we have included a brief summary of the medical treatment Mr. Diaz
has received for the primary impairments at issue in this case. Mr. Diaz’s physical
impairments involve the following three areas of his body: (A) back and hips; (B)
right elbow; and (C) abdomen. We also note that, at times during the relevant
period Mr. Diaz was receiving simultaneous treatment for his back and right elbow
by multiple sources. Due to the complexity of his case, and the need for treatment
in multiple areas, Mr. Diaz’s surgeries had to be carefully scheduled so that his
recovery from one procedure would not impact his recovery for another.
A. Medical Treatment of Mr. Diaz’s Back Impairment
Although an X-ray of Mr. Diaz’s lumbar spine taken one month earlier was
grossly normal, on June 3, 2008, an MRI of Mr. Diaz’s lumbar spine revealed the
impression of a small to moderate sized L4-L5 diffuse posterior disc bulge with
abutment of the bilateral L5 nerve roots, but no central spinal canal or neural
foraminal stenosis. Admin. Tr. 317-318; Doc. 6-8 pp. 23-24. The scan also
revealed a small disc bulge at the L5-S1 level with minimal abutment of the
bilateral S1 nerve roots. Id.
8

On August 13, 2008, Mr. Diaz was examined by orthopedic surgeon Paul P.
Vessa (“Dr. Vessa”) for evaluation of his back pain. Admin. Tr. 335; Doc. 6-8 p.
41.

Mr. Diaz had a positive straight leg raise on the right side.

Dr. Vessa

diagnosed possible disc herniation at L4-L5 on the right side with a failure to
improve with conservative care.
On August 22, 2008, Mr. Diaz had another MRI of his lumbar spine. Admin.
Tr. 341; Doc. 6-8 p. 47.

The MRI revealed a rather large right lateral disc

herniation at L4-L5 in the neural foramen impinging on the undersurface of the
right L4 nerve root. Id.
On October 16, 2008, Mr. Diaz underwent the following surgical procedure
to address his lateral herniated nucleus pulposus at L4-L5 with right lumbar
radiculopathy: extraforaminal decompression right side L4-L5, and application of
right L4 nerve root cath. Admin. Tr. 307-309; Doc. 6-8 pp. 13-15. Mr. Diaz was
discharged from the hospital on the following day. Id.
In December 2008, Mr. Diaz reported that, although he did experience some
post-surgical improvement, his pain was getting worse. Admin. Tr. 337; Doc. 6-8
p. 43. Dr. Vessa noted that a post-surgical MRI scan showed that there was a
moderate sized posterior disc bulge, but there was no evidence of central spinal

9

stenosis and no recurrent disc herniation or any other visible suspicious entries that
might be the cause of Mr. Diaz’s increased pain. Id.
In January 2009, Mr. Diaz returned to Dr. Vessa with complaints of ongoing
pain. Admin. Tr. 338; Doc. 6-8 p. 44. Mr. Diaz was advised to continue physical
therapy.
On February 26, 2009, an EMG and nerve conduction study of Mr. Diaz’s
lower extremities revealed the impression of subacute right-sided L5
radiculopathy, and mild right S1 radiculopathy. Admin. Tr. 320; Doc. 6-8 p. 26.
On March 25, 2009, Mr. Diaz was still complaining of severe pain in his
right lower extremity, but a recent MRI showed no evidence of compression of S1
or L5. Admin. Tr. 333; Doc. 6-8 p. 39. Dr. Vessa ordered additional imaging, but
noted that in the absence of any obvious abnormality he did not believe Mr. Diaz
was a candidate for any additional spinal surgeries. Id.
An April 2009 MRI of Mr. Diaz’s hips was consistent with avascular
necrosis of the left femoral head. Admin. Tr. 339; Doc. 6-8 p. 45. An MRA of Mr.
Diaz’s abdomen was normal. Admin. Tr. 340; Doc. 6-8 p. 46.
A May 2009 MRI of Mr. Diaz’s lumbar spine revealed mild degenerative
changes at L1-L2, L4-L5, and L5-S1. Admin. Tr. 344; Doc. 6-8 p. 50.

10

On May 11, 2009, Mr. Diaz was evaluated by a second orthopedist, Richard
S. Nachwalter (“Dr. Nachwalter”). Dr. Nachwalter noted that his August 2008
post-surgical MRI was of poor quality and was of little use in assessing Mr. Diaz’s
post-operative condition. Dr. Nachwalter recommended a new MRI to rule out a
recurrence. Admin. Tr. 394-95; Doc. 6-8 pp. 100-101. Two weeks later Dr.
Nachwalter reviewed the new MRI and concluded that there was no recurrent
herniation. Admin. Tr. 391; Doc. 6-8 p. 97. Dr. Nachwalter recommended a
diagnostic injection to Mr. Diaz’s right SI joint to rule out this area as the source of
Mr. Diaz’s pain. Id.
On June 25, 2009, Mr. Diaz returned to Dr. Nachwalter after undergoing the
right SI injection. Mr. Diaz reported that the injection improved the clicking and
pain in his pelvis but did not help the persistent pain in his right leg and thigh.
Admin. Tr. 389; Doc. 6-8 p. 95. Mr. Diaz elected to proceed with a second surgery
to address his radicular pain. Id.
On July 24, 2009, Mr. Diaz underwent the following surgical procedures:
lumbar laminectomy of L4-L5, fusion of L4-L5 with instrumentation and insertion
of an intervertebral device. Admin. Tr. 348; Doc. 6-8 p. 54.
Two weeks after surgery Mr. Diaz reported that his leg pain significantly
improved. Admin. Tr. 383; Doc. 6-8 p. 89. In January 2010, however, he began to
11

report that he still had some persistent discomfort in his back with mild discomfort
in his right leg. Admin. Tr. 371-375; Doc. 6-8 p. 78-81. The recurrence of his pain
prompted him to explore new pain management options.
In May 2010, Mr. Diaz was examined by pain management specialist Phillip
Rubinfeld (“Dr. Rubinfeld”). Dr. Rubinfeld recommended that Mr. Diaz consider
a spinal nerve stimulator for his back pain. Admin. Tr. 411; Doc. 6-8 p. 117.
On July 30, 2010, Mr. Diaz had a temporary spinal nerve stimulator
implanted to determine whether this form of treatment would provide him with any
relief. Admin. Tr. 462; Doc. 6-9 p. 47. After the trial stimulator, Mr. Diaz elected
to have a permanent spinal nerve stimulator implanted on October 5, 2010. Admin.
Tr. 484-85; Doc. 6-9 p. 69. Both the temporary and permanent spinal nerve
stimulator implants appear to be outpatient procedures. However, On October 6,
2010, Mr. Diaz presented to the emergency room when he developed a headache,
and pressure in his upper back and chest, after surgery. Admin. Tr. 538-48; Doc.
6-9 pp. 124-133. A CT scan revealed that the stimulator was in good position. Mr.
Diaz was discharged home. Id.
On April 15, 2011, Mr. Diaz had a surgical revision to the placement of his
spinal nerve stimulator. Admin. Tr. 889-890; Doc. 6-15 pp. 2-3. The area of the
pulse generator became painful because it was too close to the sacral bone. The
12

pulse generator was removed and replaced in an area that would potentially be less
painful.
In May 2011, Dr. Rubinfeld noted that Mr. Diaz’s pain was controlled and
his function was improved. Admin. Tr. 1044; Doc. 6-17 p. 6. Dr. Rubinfeld also
reported that the severity of Mr. Diaz’s pain was moderate, and that when present
it interfered only with some daily activities. Id.
In June 2011, Dr. Rubinfeld noted that Mr. Diaz had good coverage with the
spinal nerve stimulator, and that although Mr. Diaz was having pain in the area of
the screws and from the revision surgery the doctor was hopeful that Mr. Diaz
could be weaned off of opioid pain medications within four weeks. Admin. Tr.
1046; Doc. 6-17 p. 8.
In August 2011, Mr. Diaz reported severe pain that interfered with most, but
not all, of his daily activities. Admin. Tr. 1047-1048; Doc. 6-17 p. 9-10. Dr.
Rubinfeld prescribed a course of nonsteroidal anti-inflammatory drugs in
combination with Mr. Diaz’s other medications, and noted that this course of
treatment is usually effective for complaints like those voiced by Mr. Diaz. Id.
In September 2011 Mr. Diaz presented to the emergency room with
complaints of flank pain. The staff physician assessed that this pain was due to a
muscle spasm. Admin. Tr. 560; Doc. 6-9 p. 145; See also Admin. Tr. 1049-1050;
13

Doc. 6-17 pp. 11-12. During a follow-up appointment with Dr. Rubinfeld, Mr.
Diaz reported that he had extreme pain near the incision for his spinal nerve
stimulator that radiated down his back and across his ribs. Admin. Tr. 1049-1050;
Doc. 6-17 pp. 11-12. Mr. Diaz reported that the medications provided in the
emergency room were effective. Id.
In October 2011, Mr. Diaz reported continuing lower back pain and referred
pain to the right hip, thigh, and lower leg. Admin. Tr. 1051-1052; Doc. 6-17 pp.
13-14. This pain was noted to be moderately severe, and Dr. Rubinfeld reported
that Mr. Diaz’s pain, when present, interfered with some daily activities. Id. Dr.
Rubinfeld administered an injection for pain that was specifically requested by Mr.
Diaz. Id.
In November 2011, Mr. Diaz reported slightly less pain, although it was still
characterized as moderately severe. Admin. Tr. 1053-1054; Doc. 6-17 pp. 15-16.
He requested another injection, which he reported had been helpful in the past. Id.
Mr. Diaz’s level of pain remained between moderately severe and moderate, and
the course of treatment remained fairly stable with minor medication adjustments
through January 2014. In August 2013, Mr. Diaz was weaned off opioid pain
medications and was taking only nonsteroidal anti-inflammatory drugs with Lyrica
and Valium. Admin. Tr. 1017; Doc. 6-17 p. 70. Mr. Diaz did report severe pain in
14

October 2013, but Dr. Rubinfeld noted that a recent hernia repair involving some
post-surgical complications contributed to his symptoms. Admin. Tr. 1111; Doc.
16-17 p. 73.
B. Medical Treatment of Mr. Diaz’s Right Arm Injury
With respect to his elbow injury, Mr. Diaz was treated conservatively with a
combination of physical therapy, and pharmaceutical pain management (including
injections) until February 18, 2009. On February 18, 2009, Mr. Diaz underwent
the following surgical procedure: right elbow medial epicondylar release with
ulnar nerve release at the cubital tunnel only. Admin. Tr. 358-59; Doc. 6-8 pp. 6465. During a follow-up visit on February 23, 2009, Mr. Diaz reported that he had
significantly reduced pain in his right elbow. Admin. Tr. 426; Doc. 6-9 p. 11.
Treating surgeon Glen P. Wainen (“Dr. Wainen”) noted that Mr. Diaz should stay
away from any kind of heavy lifting, pushing, pulling or squeezing while he
recovered. Id. On March 30, 2009, Mr. Diaz regained full range of motion in his
right arm. Admin. Tr. 423; Doc. 6-9 p. 8. On April 30, 2009, Dr. Wainen
estimated that Mr. Diaz would be fully recovered from his February 2009 surgery
in three months. Admin. Tr. 424; Doc. 6-9 p. 9. In June 2009, Mr. Diaz reported
that his right elbow felt excellent with the exception of some minor subluxation of
his ulnar nerve on flexion and extension. Admin. Tr. 421; Doc. 6-9 p. 6. Dr.
15

Wainen assessed that the only reasonable thing to do to stop Mr. Diaz’s ulnar nerve
subluxation was to have a second surgical procedure called an ulnar nerve
transposition. Id. Over the following weeks and months Mr. Diaz’s right ulnar
nerve continued to dislocate upon flexion and extension with increasing frequency
until Mr. Diaz made the decision to undergo a second operative procedure.
On February 15, 2010, Mr. Diaz underwent a right ulnar nerve transposition.
Admin. Tr. 443-444; Doc. 6-9 pp. 28-29. Three days after surgery, Mr. Diaz’s
sensation in his right arm and hand was intact to light touch, and he was able to
cross his fingers and spread them apart. Admin. Tr. 442; Doc. 6-9 p. 27. In March
2010, Mr. Diaz had almost a full range of motion, but he had some problems with
full extension of his fingers actively. Admin. Tr. 441-442; Doc. 6-9 pp. 26-27.
Mr. Diaz could passively extend his fingers with no problem. Id. In April 2010,
Mr. Diaz had good ability to spread and cross his fingers, and extend and make a
full fist. Admin. Tr. 440; Doc. 6-9 p. 25. In May 2010, Dr. Wainen noted that Mr.
Diaz could abduct his fingers with no problem but was experiencing tightness in
the flexors of the wrist and fingers. Admin. Tr. 438; Doc. 6-9 p. 23. Dr. Wainen
prescribed Dyna splints. In June 2010 Dr. Wainen noted that the motion in Mr.
Diaz’s right wrist, fingers, and elbow was significantly improved. Admin. Tr. 437;
Doc. 6-9 p. 22.
16

C. Medical Treatment of Mr. Diaz’s Abdominal and Bladder
Issues
On September 4, 2013, Mr. Diaz was examined by Dr. Katherine Wheel
(“Dr. Wheel”) with complaints of a left inguinal hernia. Mr. Diaz reported that he
had been aware of the hernia for approximately two years, but that it was
previously asymptomatic. Mr. Diaz was scheduled for surgery, and had his hernia
repaired on September 13, 2013.
Surgical records reflect that, during the procedure to repair Mr. Diaz’s
inguinal hernia, Dr. Wheel discovered that Mr. Diaz’s bladder was herniating
through his inguinal canal. Admin. Tr. 891-892; Doc. 6-15 pp. 4-5. Mr. Diaz’s
bladder and inguinal hernia were repaired during the procedure. Admin. Tr. 893895; Doc. 6-15 pp. 6-8.
After the surgery, Mr. Diaz refused to see Dr. Wheel for follow-up care.
Admin. Tr. 1008-1011; Doc. 6-16 pp. 27-30.

He was instead monitored by

Nicholas Teleo (“Dr. Teleo”). Id. Mr. Diaz reported that his groin was numb and
that he had been seen in the emergency room multiple times after the surgery due
to urinary tract infections. Id. Dr. Teleo assessed that the numbness was likely the
result of an ilioinguinal nerve injury, and that this injury should not affect his
functioning. Id. In November 2013, Mr. Diaz reported that he was “pretty much

17

all right.” Id. Mr. Diaz was instructed to follow-up in six months, but the record
in this case does not include any further treatment notes for this condition. Id.
D. Medical Opinion Evidence of Record
The Commissioner’s regulations provide that evidence from an “acceptable
medical source” is required to establish the existence of a medically determinable
impairment. 20 C.F.R. §404.1513. As of the date of ALJ Hardiman’s decision,
acceptable medical sources were limited to: licensed physicians, licensed or
certified psychologists, licensed optometrist (for vision impairments only),
licensed podiatrists (for foot and/or ankle impairments only), and qualified speech
or language pathologists (for speech or language impairments only). Id. The
Commissioner’s regulations define medical opinions as “statements from
physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of [a claimant’s] impairment(s), including
[a claimant’s] symptoms, diagnosis and prognosis, what [a claimant] can still do
despite impairments(s), and [a claimant’s] physical or mental restrictions. 20
C.F.R. §404.1527(a)(2). Regardless of its source, the ALJ is required to evaluate
every medical opinion received. 20 C.F.R. §404.1527(c).
Not all medical opinions, however, begin on equal footing.

The

Commissioner’s regulations direct an adjudicator to consider a number of factors
18

when evaluating medical opinion evidence, including the treating and examining
relationship. Id.; see also SSR 96-6p, 1996 WL 374180 at *2 (“The regulations
provide progressively more rigorous tests for weighing opinions as the ties
between the source of the opinion and the individual become weaker.”).

To

facilitate this review, medical sources may be classified based on the following
three categories: treating source, nontreating source, and nonexamining source. 20
C.F.R. §404.1502. A treating source is an acceptable medical source who provides
treatment to the claimant. Id. A nontreating source is an acceptable medical
source who has examined the claimant, but does not provide treatment (e.g., a
consultative examiner). Id. A nonexamining source is an acceptable medical
source who has never examined the claimant, but provided an opinion. Id.
The following sources provided one or more statements that are considered
opinions under 20 C.F.R. §404.1527(a)(2) about Mr. Diaz’s physical impairments
in this case: treating pain management specialist Dr. Rubinfeld; treating orthopedic
surgeon Dr. Vessa; treating orthopedic surgeon Dr. Nachwalter; nontreating
physician Thomas McLaughlin (“Dr. McLaughlin”); nonexamining physician
Feroz Sheikh (Dr. Sheikh”); and, nonexamining physician Minda Bermudez (“Dr.
Bermudez”). The following sources provided one or more statements that are
considered opinions under 20 C.F.R. §404.1527(a)(2) about Mr. Diaz’s mental
19

impairments in this case: nontreating psychologist Tiffany Griffiths (“Dr.
Griffiths”);

and,

nonexamining

psychologist

Soraya

Amanullah

(“Dr.

Amanullah”).
In addition to considering a source’s treating and examining relationship,
however, the Commissioner’s regulations also direct the ALJ to consider: the
extent to which the source presented relevant evidence to support his or her
medical opinion, and the extent to which the basis for the source’s conclusions
were explained; the extent to which the source’s opinion is consistent with the
record as a whole; whether the source is a specialist; and, any other factors brought
to the ALJ’s attention. 20 C.F.R. §404.1527(c). Apart from the added deference
which is typically accorded to a treating source, nothing precludes an ALJ from
according greater weight to nontreating or nonexamining source based on the
ALJ’s consideration of all the relevant evidence of record considered under the
factors articulated above.
1. Opinions by Treating Source, Dr. Rubinfeld
On April 28, 2009, Mr. Diaz was examined by Dr. Rubinfeld with
complaints of lower back pain radiating into his lower right extremity. Admin. Tr.
404; Doc. 6-8 p. 110. In his treatment notes, Dr. Rubinfeld commented that Mr.
Diaz “suffers from chronic intractable low back, leg pain secondary to
20

postlaminectomy syndrome and lumbar spine pathology,” and that “[d]espite
multiple treatment modalities including medications, nerve blocks, and back
surgery the patient continues to suffer from severe intractable pain, is limited in his
ability to work and perform many activities of daily living.” Admin. Tr. 406; Doc.
6-8 p. 112. Dr. Rubinfeld made identical statements in his treatment records on
May 18, 2010. Admin. Tr. 411; Doc. 6-8 p. 117.
On November 14, 2011, Mr. Diaz was examined by Dr. Rubinfeld with
complaints of lower back pain radiating into his right lower extremity. Admin. Tr.
1053-1054; Doc. 6-17 pp. 15-16. In his treatment notes, Dr. Rubinfeld assessed
that Mr. Diaz was “still unable to work due to painful condition.” Id.
On October 22, 2012, Mr. Diaz was examined by Dr. Rubinfeld with
complaints of lower back, neck, and hip pain. Admin. Tr. 1081-1083; Doc. 6-17
pp. 43-45. In his treatment notes, Dr. Rubinfeld assessed that Mr. Diaz “remains
disabled.” Id.
On December 17, 2012, Mr. Diaz was examined by Dr. Rubinfeld with
complaints of low back, right wrist, and right elbow pain. Admin. Tr. 1087-1089;
Doc. 6-17 pp. 49-51. Dr. Rubinfeld assessed that Mr. Diaz would be unable to
work indefinitely, and commented that Mr. Diaz “continues to suffer from chronic

21

back pain somewhat helped by the stimulator, meds and lumbar aircast but not
enough to allow him to perform the duties of occupation.” Id.
On March 12, 2015, Dr. Rubinfeld completed a check-box physical residual
functional capacity assessment. Admin. Tr. 1119-1122; Doc. 6-17 pp. 81-84. Dr.
Rubinfeld reported that Mr. Diaz suffered from chronic pain syndrome, post
laminectomy syndrome, and right arm pain. He assessed that Mr. Diaz could: sit
less than two hours total during an eight-hour workday, stand/walk less than two
hours total during an eight-hour workday, and must be permitted to shift positions
at will from sitting, standing, or walking and take unscheduled work breaks during
the day; never lift or carry any amount of weight; rarely crouch, stoop, twist, climb
stairs, or kneel; and rarely be exposed to temperature extremes, dust, humidity,
hazards, or fumes, odors, and chemicals. Dr. Rubinfeld also assessed that Mr. Diaz
would have significant limitations with reaching, handling or feeling secondary to
his right arm impairment, would be off task twenty-five percent or more during a
typical workday due to his symptoms, and would be absent more than four days
per month.

22

2. Opinions by Treating Source, Dr. Vessa
On March 25, 2009, Dr. Vessa completed a form for worker’s compensation.
On that form Dr. Vessa reported that Mr. Diaz was out of work. Admin. Tr. 334;
Doc. 6-8 p. 40.
On April 15, 2009, Dr. Vessa completed a form for worker’s compensation.
On that form Dr. Vessa reported that Mr. Diaz was out of work, and could not
resume full duty until he was re-evaluated. Admin. Tr. 343; Doc. 6-8 p. 49.
On May 6, 2009, Dr. Vessa completed a form for worker’s compensation.
On that form Dr. Vessa reported that Mr. Diaz was out of work. Admin. Tr. 342;
Doc. 6-8 p. 48.
3. Opinions by Treating Source, Dr. Nachwalter
In a letter dated May 11, 2009, Dr. Nachwalter reported that Mr. Diaz was
“presently unable to work in any capacity.” Admin. Tr. 395; Doc. 6-8 p. 101.
In a letter dated May 21, 2009, Dr. Nachwalter reported that Mr. Diaz was
“unable to work.” Admin. Tr. 392; Doc. 6-8 p. 98.
In a letter dated June 25, 2009, Dr. Nachwalter reported that Mr. Diaz was
“unable to work.” Admin. Yr. 390; Doc. 6-8 p. 96.
In a letter dated June 29, 2009, Dr. Nachwalter reported that Mr. Diaz
“remains out of work.” Admin. Tr. 387; Doc. 6-8 p. 93.
23

In a letter dated August 3, 2009, Dr. Nachwalter reported that Mr. Diaz
“remains out of work in the post op period.” Admin. Tr. 385; Doc. 6-8 p. 91.
In a letter dated August 10, 2009, Dr. Nachwalter reported that Mr. Diaz
“remains out of work in the post op period.” Admin. Tr. 383; Doc. 6-8 p. 90.
In a letter dated September 10, 2009, Dr. Nachwalter reported that Mr. Diaz
“remains out of work.” Admin. Tr. 381; Doc. 6-8 p. 87.
In a letter dated October 8, 2009, Dr. Nachwalter reported that Mr. Diaz
“remains out of work.” Admin. Tr. 379; Doc. 6-8 p. 85.
In a letter dated November 9, 2009, Dr. Nachwalter reported that Mr. Diaz
“remains out of work.” Admin. Tr. 378; Doc. 6-8 p. 84.
In a letter dated December 7, 2009, Dr. Nachwalter reported that Mr. Diaz
“remains out of work.” Admin. Tr. 377; Doc. 6-8 p. 83.
In a letter dated January 7, 2010, Dr. Nachwalter reported that Mr. Diaz
“remains out of work.” Admin. Tr. 375; Doc. 6-8 p. 81.
In a letter dated March 15, 2010, Dr. Nachwalter reported that Mr. Diaz
“remains out of work.” Admin. Tr. 373; Doc. 6-8 p. 79.
In a letter dated April 12, 2010, Dr. Nachwalter reported that he “placed Mr.
Diaz on permanent restrictions for his low back of 10 pounds lifting and no
repetitive bending or stooping.” Admin. Tr. 371; Doc. 6-8 p. 77.
24

4. Opinion by Nontreating Source, Dr. McLaughlin
On November 26, 2013, Mr. Diaz was examined by consultative examiner,
Dr. McLaughlin. After conducting one examination with range of motion testing,
Dr. McLaughlin completed a physical RFC assessment. Admin. Tr. 1017-1031;
Doc. 6-16 pp. 36-50. Dr. McLaughlin reported the impression of failed low back
syndrome with post laminectomy syndrome and continued pain, status post right
elbow injury with markedly decreased range of motion and loss of function, and
tobacco abuse. Dr. McLaughlin assessed that, despite the limitations resulting
from these impairments, Mr. Diaz could: never lift or carry any object of any
weight; stand two hours at one time without interruption; sit ten minutes at one
time without interruption; walk ten minutes at one time without interruption; stand
for a total of seven hours and thirty minutes per eight-hour day; walk a total of
thirty minutes per eight-hour workday, and required a medically necessary cane for
ambulation that prevents Mr. Diaz from carrying small objects with his free hand;
frequently reach, handle, finger, feel, and push or pull with his left (non-dominant)
hand and arm; never reach, handle, finger, feel, push or pull with his right
(dominant) hand and arm; occasionally use his feet to operate foot controls;
occasionally climb stairs; never climb ladders, climb scaffolds, balance, stoop,
kneel, crouch, or crawl; work in environments with occasional exposure to
25

humidity and wetness, dust, odors, fumes, pulmonary irritants, extreme cold,
extreme heat, and vibration; never work in environments where he would be
exposed to unprotected heights or moving mechanical parts, or where he would be
required to operate a motor vehicle; and tolerate a moderate level of noise.
5. Opinion by Nonexamining Source, Dr. Sheikh
On September 8, 2010, in connection with the initial administrative review
of Mr. Diaz’s April 2010 application for disability insurance benefits, Dr. Sheikh
reviewed the available medical evidence and assessed Mr. Diaz’s physical RFC.
Admin. Tr. 471-477; Doc. 6-9 pp. 56-62. Dr. Sheikh reported that the medical
evidence of record supported medically determinable impairments of chronic back
pain syndrome, degenerative disc disease, status post discectomy and fusion of the
lumbar spine, post laminectomy pain syndrome, and ulnar neuropathy status post
transposition. Dr. Sheikh assessed that Mr. Diaz could: frequently lift and/or carry
ten pounds, and occasionally lift and/or carry twenty pounds; stand and/or walk
(with normal breaks) for a total of four hours per eight-hour workday; sit (with
normal breaks) for a total of six hours per eight-hour workday; occasionally
balance, stoop, kneel, crouch, crawl, climb stairs, climb ramps, climb ladders,
climb ropes, and climb scaffolds; and work in and environment free of
concentrated exposure to hazards.
26

6. Opinion by Nonexamining Source, Dr. Bermudez
On January 13, 2014, Dr. Bermudez assessed Mr. Diaz’s physical RFC
based on the medical evidence of record available at the time. Admin. Tr. 677-680;
Doc. 6-11 pp. 9-12. Dr. Bermudez assessed that Mr. Diaz could: frequently lift
and/or carry ten pounds, and occasionally lift and/or carry twenty pounds; stand
and/or walk (with normal breaks) for a total of four hours per eight-hour workday
with the assistance of a medically required hand-held assistive device necessary for
ambulation; sit (with normal breaks) for a total of six hours per eight-hour
workday; occasionally balance, stoop, kneel, crouch, crawl, climb stairs, and climb
ramps; never climb ladders, climb ropes, or climb scaffolds; and work in and
environment free of concentrated exposure to extreme cold, extreme heat,
vibration, and hazards. Dr. Bermudez also assessed that Mr. Diaz was limited in
his ability to reach in front, overhead, or laterally with his right arm, and handle
with his right arm.
7. Opinion by Nontreating Psychologist Dr. Griffiths
On December 31, 2013, Mr. Diaz was examined by consultative examiner,
Dr. Griffiths. After conducting one examination, Dr. Griffiths completed a mental
RFC assessment. Admin. Tr. 1032-1039; Doc. 6-16 pp. 51-58. Dr. Griffiths
assessed that Mr. Diaz’s symptoms were consistent with major depressive disorder
27

and an unspecified anxiety disorder. Mr. Diaz appeared to be alert, interactive, and
oriented in all spheres. He walked with a cane, and needed to lie sideways on a
couch as a result of his pain while upright. No behavioral oddities were noted.
However, after asking Mr. Diaz to perform serial 7’s and digit span tasks, Dr.
Griffiths assessed that Mr. Diaz’s ability to concentrate was poor.
Dr. Griffiths diagnosed major depressive disorder (recurrent and moderate,
and as a result of a physical condition), and unspecified anxiety disorder. Dr.
Griffiths assessed that Mr. Diaz’s mental impairments affected his ability to
understand, remember, and carry out instructions as follows: moderate difficulty
understanding, remembering, and carrying out complex instructions; mild
difficulty understanding, remembering and carrying out simple instructions, and no
difficulty making judgments on simple or complex work-related decisions.5 Dr.
Griffiths assessed that Mr. Diaz’s mental impairments affected his ability to
respond to changes, and interact with supervisors, co-workers, and supervisors as

5

The questionnaire completed by Dr. Griffiths requested that Dr. Griffiths rate Mr.
Diaz’s capacity for each activity on the following scale: “none” defined as absent
or minimal limitations that are transient and may be a normal reaction to a
psychological stressor; “mild” defined as a light limitations that does not prevent
the claimant from functioning well; “moderate” defined as a more than slight
limitation that does not prevent the claimant from functioning satisfactorily;
“marked” defined as a serious limitation that results in a substantial loss of ability
to effectively function; and, “extreme” defined as a major limitation that prevents
any useful ability to function.
28

follows: moderate difficulty interacting appropriately with supervisors, co-workers,
and the public; and mild difficulty responding appropriately to usual work
situations and changes in routine. Dr. Griffiths assessed that these limitations were
present in 2008, on Mr. Diaz’s alleged onset date.
Dr. Griffiths assessed no more than moderate limitations in any activity. Per
the scale defined on the RFC questionnaire that she completed, a moderate
limitation would not prevent Mr. Diaz from functioning satisfactorily in any
particular area or activity.
8. Opinion by Nonexamining Psychologist Dr. Amanullah
On January 8, 2014, Dr. Amanullah assessed Mr. Diaz’s mental impairments
after reviewing the records available on that date. Admin. Tr. 675-77, 680-82;
Doc. 6-11 pp. 7-9, 12-14.
First, Dr. Amanullah completed a PRT assessment as outlined in the version
of 20 C.F.R. §404.1520a(effective Jan. 13, 2011 to Jan. 16, 2017) in effect when
the Commissioner issued her final decision. Dr. Amanullah assessed that Mr.
Diaz’s medically determinable impairments of depressive disorder, social anxiety
disorder, and attention deficit hyperactivity disorder resulted in a “mild” restriction
of activities of daily living, “moderate” difficulties maintaining social functioning,
“moderate” difficulties maintaining concentration, persistence, or pace, and no
29

repeated episodes of decompensation. Where the claimant has more than a “mild”
degree of limitation in at least one of the first three functional areas, the
impairment is generally found to be severe. See 20 C.F.R. §404.1520a(d)(1).
Second, Dr. Amanullah assessed the extent to which Mr. Diaz’s medically
determinable severe mental impairment affected his ability to engage in basic work
activities by completing a mental RFC assessment. Dr. Amanullah assessed that
despite the limitations resulting from his medically determinable mental
impairments, Mr. Diaz would be able to perform routine repetitive work activities
on a sustained basis, and that he would be able to handle routine changes without
special supervision.
E. Opinion Evidence From Non-Medical Sources
In addition to considering opinion evidence from acceptable medical
sources, the ALJ is obligated to consider opinions by non-medical sources. See 20
C.F.R. §404.1529(c)(4); SSR 06-03p, 2006 WL 2329939. On October 8, 2013,
Mr. Diaz’s wife, Elizette Diaz (“Mrs. Diaz”) completed a third-party questionnaire
in which she expressed opinions about Mr. Diaz’s functional abilities. Admin. Tr.
847-854; Doc. 6-14 pp. 18-25.

Although these opinions cannot establish the

existence of a medically determinable impairment, given her special knowledge of
Mr. Diaz, to the extent the ALJ deems them credible, Mrs. Diaz’s statements may
30

provide insight into the severity of Mr. Diaz’s impairments and how they affect his
ability to function. SSR 06-03p, 2006 WL 2329939 at *2.
Mrs. Diaz reported that she and Mr. Diaz have been married for sixteen
years, and reside together in a house. She reported that Mr. Diaz could: lift no
more than five pounds; stand up to fifteen minutes at one time; walk up to twentyfive feet at one time; sit more than fifteen minutes at one time; and never squat,
bend, kneel, reach or use with his right (dominant) arm. Mrs. Diaz also reported
that Mr. Diaz is unable to maintain sufficient concentration to carry out a long
conversation, forgets tasks he is supposed to complete, and cannot climb stairs
without suffering extreme pain and spasm. She also reported that Mr. Diaz’s pain
leaves him irritable, and may result in him arguing with others.
III.

Legal Standards
A. Substantial Evidence Review – the Role of This Court
When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, this Court’s review is limited to the question of whether
the findings of the final decision-maker are supported by substantial evidence in
the record. See 42 U.S.C. §405(g); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198,
200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D.Pa. 2012).
Substantial evidence “does not mean a large or considerable amount of evidence,
31

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).

Substantial evidence is less than a preponderance of the evidence but more than a
mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of
evidence is not substantial evidence if the ALJ ignores countervailing evidence or
fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d
1058, 1064 (3d Cir. 1993).

But 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 [the ALJ’s decision] from being supported by substantial evidence.”
Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966). “In determining if
the Commissioner’s decision is supported by substantial evidence the court must
scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627
(M.D.Pa. 2003). The question before this Court, therefore, is not whether Mr. Diaz
is disabled, but whether the Commissioner’s finding that he is not disabled is
supported by substantial evidence and was reached based upon a correct
application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014
WL 940205, at *1 (M.D.Pa. Mar. 11, 2014)(“[I]t has been held that an ALJ’s
errors of law denote a lack of substantial evidence.”)(alterations omitted); Burton
32

v. Schweiker, 512 F.Supp. 913, 914 (W.D.Pa. 1981)(“The Secretary’s
determination as to the status of a claim requires the correct application of the law
to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990)(noting
that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536
(“[T]he court has plenary review of all legal issues . . . .”).
B. Initial Burdens of Proof, Persuasion, and Articulation for the
ALJ
To receive benefits under the Social Security Act by reason of disability, a
claimant 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. §423(d)(1)(A);
see also 20 C.F.R. §404.1505(a). To satisfy this requirement, a claimant must have
a severe physical or mental impairment that makes it impossible to do his or her
previous work or any other substantial gainful activity that exists in the national
economy. 42 U.S.C. §423(d)(2)(A); 20 C.F.R. §404.1505(a). To receive benefits
under Title II of the Social Security Act, a claimant must show that he or she
contributed to the insurance program, is under retirement age, and became disabled
prior to the date on which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R.
§404.131(a).
33

In making this determination at the administrative level, the ALJ follows a
five-step sequential evaluation process.

20 C.F.R. §404.1520(a).

Under this

process, the ALJ must sequentially determine: (1) whether the claimant is engaged
in substantial gainful activity; (2) whether the claimant has a severe impairment;
(3) whether the claimant’s impairment meets or equals a listed impairment; (4)
whether the claimant is able to do his or her past relevant work; and (5) whether
the claimant is able to do any other work, considering his or her age, education,
work experience and residual functional capacity (“RFC”).

20 C.F.R.

§404.1520(a)(4).
Between steps three and four, the ALJ must also assess a claimant’s RFC.
RFC is defined as “that which an individual is still able to do despite the
limitations caused by his or her impairment(s).” Burnett v. Comm’r of Soc. Sec.,
220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R.
§§404.1520(e), 404.1545(a)(1). In making this assessment, the ALJ considers all
of the claimant’s medically determinable impairments, including any non-severe
impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R.
§404.1545(a)(2).
At steps one through four, the claimant bears the initial burden of
demonstrating the existence of a medically determinable impairment that prevents
34

him or her in engaging in any of his or her past relevant work. Mason, 994 F.2d at
1064.
Once this burden has been met by the claimant, it shifts to the Commissioner
at step five to show that jobs exist in significant number in the national economy
that the claimant could perform that are consistent with the claimant’s age,
education, work experience and RFC. 20 C.F.R. §404.1512(f); Mason, 994 F.2d at
1064.
The ALJ’s disability determination must also meet certain basic substantive
requisites. Most significant among these legal benchmarks is a requirement that the
ALJ adequately explain the legal and factual basis for this disability determination.
Thus, in order to facilitate review of the decision under the substantial evidence
standard, the ALJ's decision must be accompanied by "a clear and satisfactory
explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate
which evidence was accepted, which evidence was rejected, and the reasons for
rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in
his decision which evidence he has rejected and which he is relying on as the basis
for his finding.” Schaudeck v. Comm’r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir.
1999).
35

IV.

Discussion
A. The ALJ’s December 2015 Decision Denying Mr. Diaz’s Claim
In her December 2015 decision denying Mr. Diaz’s claims, the ALJ

determined that Mr. Diaz last met the insured status requirements of the Social
Security Act on December 31, 2013, and examined Mr. Diaz’s claim at each step
of the sequential examination process to determine whether Mr. Diaz became
disabled before his date last insured.
At step one the ALJ found that Mr. Diaz did not engage in substantial
gainful activity between May 8, 2008, and December 31, 2013.
At step two the ALJ must assess whether a claimant’s alleged impairments
are medically determinable, non-medically determinable, severe, or non-severe.
The impairments alleged by Mr. Diaz in this case have resulted in varied diagnoses
as these impairments progressed during the relevant period. In her decision, the
ALJ found that Mr. Diaz had the following medically determinable severe
impairments: degenerative disc disease/degenerative joint disease of the lumbar
spine; status post decompression of L4-L5; laminectomy with fusion L4/L5; and,
spinal cord stimulator implant and revision.

Thus, the only medically

determinable, severe impairments recognized by the ALJ pertain to Mr. Diaz’s
back impairment.
36

The ALJ refers to the following impairments as being medically
determinable but non-severe: subacute right L5 radiculopathy; mild right S1
radiculopathy. The ALJ found that there was no evidence that the following
impairments met the durational requirement of the Social Security Act, and
therefore Mr. Diaz had no medically determinable severe impairment due to the
following

conditions:

upper

extremity

impairment

(i.e.,

status

post

epicondylectomy, epiconylar release, and ulnar release and ulnar nerve
transportation); hip impairment; abdominal impairment (i.e., inguinal hernia);
urinary tract impairment; and, mental impairment (i.e., major depressive
disorder/depression/cognitive/intellectual disorders). The ALJ also found that the
following impairments were not medically determinable because the diagnoses
themselves are reflective of Mr. Diaz’s complaints of pain, and were not based on
any objective medical evidence: abdominal pain; post laminectomy syndrome; rule
out S1 joint pain; lumbar facet syndrome; discogenic pain; right vascular
claudication; chronic pain syndrome; and, right arm pain.
Between steps three and four, the ALJ assessed Mr. Diaz’s RFC. She
assessed that, during the relevant period, Mr. Diaz could perform a narrow range of
light work treated as sedentary work as defined in 20 C.F.R. §404.1567(a) except:
He could lift and carry 20 pounds occasionally, 10 pounds frequently,
stand and walk for two hours in an eight hour workday and sit for six
37

hours (a range of light work treated as sedentary herein). He does
require a sit/stand option at the will or direction of the individual. The
claimant can perform no right upper extremity pushing/pulling and no
bilateral lower extremity pushing/pulling. He is limited to occasional
climbing, balancing and stooping, and can never climb on ladders.
The claimant cannot kneel, crouch or crawl and perform no right
overhead reaching. He must avoid exposure to vibration and hazards.
He is limited to simple, routine tasks which are low stress as defined
as only occasional decision-making and only occasional changes in
the work setting.
Admin. Tr. 596; Doc. 6-10 p. 13.
At step four the ALJ’s findings were informed by VE Chilleri’s testimony.
The ALJ found that Mr. Diaz could not engage in his past relevant work as a
working supervisor/maintenance director because the physical demands of that
work exceeded Mr. Diaz’s functional capacity during the relevant period. At step
five, the ALJ’s findings were informed by VE Chilleri’s testimony, and were based
on the ALJ’s evaluation of this testimony together with the ALJ’s RFC assessment
and Mr. Diaz’s other vocational factors (age, education, and work experience). VE
Chilleri testified that an individual with the same vocational characteristics as Mr.
Diaz, and the RFC assessed by the ALJ could engage in work as an information
clerk (DOT #237.367-046), credit authorizer/checker (DOT #237.367-014), and
video monitor (DOT #379.367-010). Admin. Tr. 661; Doc. 6-10 p. 78. Relying on
this testimony, the ALJ concluded that Mr. Diaz could engage in other work that

38

existed in the national economy during the relevant period, and therefore was not
disabled under the Social Security Act.
B. Guidelines for the Use of Vocational Expert Testimony in Social
Security Disability Cases
At the final step of the sequential evaluation process, “the ALJ often seeks
advisory testimony from a vocational expert.” Burns v. Barnhart, 312 F.3d 113,
119 (3d Cir. 2002). Generally, the ALJ will also consult the DOT, a publication
that the Social Security Administration has recognized as a source of reliable data
about the physical and mental activities required to perform thousands of
occupations. 20 C.F.R. §404.1566; SSR 00-4p, 2000 WL 1898704. SSR 00-4p
provides that, before relying on VE testimony to support a disability determination
or decision, the adjudicator has an affirmative responsibility to ask about any
possible conflict between the VE’s testimony and the information provided in the
DOT, and must resolve any apparent conflict before relying on the VE’s evidence
to support his or her determination or decision. SSR 00-04p, 2000 WL 1898704.
If any conflict becomes apparent during the administrative hearing, the adjudicator
must: (1) identify the conflict; (2) elicit a reasonable explanation for the conflict
between occupational evidence provided by the VE and the information in the
DOT; and (3) explain in his or her decision how the conflict was resolved. Id.

39

The Third Circuit has declined, however, to adopt a rule that any
unexplained conflict between a VE’s testimony and the DOT requires reversal.
Inconsistencies need not be fatal if substantial evidence exists in other portions of
the record that can form an appropriate basis to support the result reached by the
adjudicator. Boone v. Barnhart, 353 F.3d 203, 209 (3d Cir. 2003). For example,
in Jones v. Barnhart, the Third Circuit found that substantial evidence existed to
support an ALJ’s conclusion that a claimant was not disabled where the DOT
description of one of the three jobs identified by the VE would have been
precluded by the ALJ’s RFC assessment. Jones v. Barnhart, 364 F.3d 501, 505-06
(3d Cir. 2004). In Jones, the Court also emphasized that the VE was clear that the
three occupations identified were “merely examples” and not a complete list of the
occupations that the claimant could perform. Id.; see also Rutherford v. Barnhart,
399 F.3d 546, 557-558 (3d Cir. 2005).
C. The Use and Analysis of the GED Reasoning Level In the
Adjudication of Social Security Disability Claims
In its description of the qualifications to perform a particular occupation the
DOT includes a General Education Development (“GED”) level, and an SVP level.
As noted by VE Chilleri, these are two similar but distinct concepts.
The SVP levels are referenced in the Commissioner’s regulations and are
routinely accounted for during disability proceedings by determining whether the
40

claimant can engage in skilled, semi-skilled, or unskilled work.

20 C.F.R.

§404.1568; see also SSR 00-4p, 2000 WL 1898704 at *3. SVP is defined as the
amount of lapsed time required by a typical worker to learn the techniques, acquire
the information, and develop the facility needed to average performance in a
specific job-worker situation. United States Department of Labor, Dictionary of
Occupational Titles Vol. 2, 1009 (4th ed. Rev. 1991) available on Westlaw 1991
WL 688702 (hereinafter “DOT Vol. 2”). “Using the skill level definitions in 20
CFR 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; semiskilled work corresponds to an SVP of 3-4; and skilled work corresponds to
an SVP of 5-9 in the DOT.” SSR 00-4p, 2000 WL 1898704 at *3.
Unlike SVP, GED embraces those aspects of education (formal and
informal) which are required of the worker for satisfactory job performance. DOT
Vol. 2 1009 available on Westlaw 1991 WL 688702. GED is broken into three
categories: (1) reasoning development; (2) mathematical development; and (3)
language development. Reasoning Development is assessed on a six-level scale.
Of notable import in this case, occupations with a GED reasoning development
level of 3 require that a worker be capable of applying “commonsense
understanding to carry out instructions furnished in written, oral, or diagrammatic
form,” and dealing “with problems involving several concrete variables in or from
41

standardized situations.” DOT Vol. 2, 1011 available on Westlaw at 1991 WL
688702. Occupations that require a GED reasoning development level of 2 require
that a worker be capable of applying “commonsense understanding to carry out
detailed but uninvolved written or oral instructions,” and dealing “with problems
involving a few concrete variables in or from standardized situations.”

Id.

Occupations that require a GED reasoning level of 1 require that a worker be
capable of applying “commonsense understanding to carry out simple one- or twostep instructions” and dealing “with standardized situations with occasional or no
variables in or from these situations encountered on the job.” Id.
Although the Social Security Administration does not typically rely on a
GED score to conclude whether a claimant can perform a particular occupation, as
explained in the following excerpt from an internal memorandum cited by the
parties in this case, the ALJ should consider GED ratings that appear to conflict
with a claimant’s RFC:
We do not rely on these [GED] ratings to conclude whether a claimant
can perform a particular occupation when we cite occupations that
demonstrate the ability to do other work. However, adjudicators
should consider GED ratings that may appear to conflict with the
claimant’s RFC and the cited occupation(s); for example, an
occupation with the GED reasoning level of 3 or higher for a claimant
who is limited to performing simple, routine, or unskilled tasks.

42

Social Security Administration Memorandum No. 09-2139 (Dec. 28, 2009)
available

at

http://www.skilltran.com/pubs/ssa_2009_ElectronicReferences.pdf

(last visited Feb. 21, 2017) (hereinafter “SSM 09-2139”). Furthermore, the mere
fact that an occupation is “unskilled” and therefore within a claimant’s SVP does
not neutralize or supplant a reasoning level conflict. McHerrin v. Astrue, No. 092035, 2010 WL 3516433 at *6 (E.D.Pa. Aug. 31, 2010).
D. Whether The ALJ Erred by Relying on VE Chilleri’s
Testimony Despite an Unresolved Reasoning Level Conflict
Mr. Diaz argues that the ALJ’s conclusion that Mr. Diaz can engage in other
work that exists in the national economy is not supported by substantial evidence
because the ALJ failed to resolve an apparent conflict between VE Chilleri’s
testimony and the DOT. Mr. Diaz asserts that the ALJ failed to comply with SSR
00-4p because the ALJ failed to ask VE Chilleri about an apparent conflict
between the VE’s testimony that an individual with the RFC assessed by the ALJ
could engage in work as information clerk (DOT #237.367-046), credit
authorizer/checker (DOT #237.367-014), and video monitor (DOT #379.367-010),
when compared to the DOT job descriptions of each position. He argues that,
according to the DOT, the positions identified by VE Chilleri require greater
reasoning skills than Mr. Diaz’s maximum capabilities as assessed by the ALJ, and
that a limitation to simple, routine tasks allows for only level 1 reasoning skills.
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He accurately notes that all three occupations identified by VE Chilleri require
level 3 reasoning skills.
As noted above, the Social Security Administration has provided no formal
guidance on this issue. One internal memorandum, however, observes that even
though GED levels are not typically evaluated during disability proceedings, they
should be considered when they appear to conflict with an ALJ’s RFC assessment.
SSM 09-2139.
In Zirnsak v. Colvin, the Third Circuit recognized a split of authority as to
whether a GED reasoning level conflict is an error that always requires remand, or
whether such a conflict can be deemed harmless where there is other evidence in
the record that suggests the claimant can engage in occupations with a reasoning
level of 3 despite being limited to simple, routine work. 777 F.3d 607, 617-619
(3d Cir. 2014). The Court in Zirnsak adopted the latter position, and articulated
three factors which it found relevant to its analysis of whether a reasoning level
conflict resulted in harm to the claimant: (1) whether the claimant argued that he or
she was incapable of performing the jobs identified by the VE, and whether there
was evidence in the record that suggests that the claimant had the requisite
education and past experience to perform at a reasoning level of 3; (2) whether the
inconsistencies between the VE’s testimony and the DOT were identified during
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the administrative hearing; and, (3) whether the occupations listed by the VE were
intended to be exhaustive or illustrative. Id.; see also Upshur v. Colvin, No. 155434, __ F.Supp. 3d __, 2016 WL 4059147 (E.D.Pa. Jul. 26, 2016) (applying
Zirnsak to a reasoning level conflict).
In this case, there is evidence that, before his injuries, Mr. Diaz was capable
of functioning at a reasoning level of 3. He completed high school, and his past
relevant work was skilled. However, the ALJ conceded in her written decision
that, as a result of his credible allegations of pain Mr. Diaz would be limited to
simple, routine tasks. Furthermore, the record reflects that VE Chilleri testified
that a limitation to simple and routine tasks would preclude the ability to carry-out
detailed written and oral instructions. Admin. Tr. 665; Doc. 6-10 p. 82. Based on
the descriptions in the DOT, it appears that a reasoning level 3 required the ability
to carry out detailed but uninvolved instructions. Thus, although there is evidence
that Mr. Diaz could, at one point, engage in work requiring a reasoning level of
three, the ALJ found this was no longer the case when she recognized that Mr.
Diaz’s credible reports of pain restricted him to the performance of simple routine
tasks in a low stress environment. See Admin. Tr. 596; Doc. 6-10 p. 13. As such,
we find that Mr. Diaz’s past performance of work at or above this level is not

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enough to support a determination that he retained that capacity during the relevant
period.
Second, Mr. Diaz attempted to point out the inconsistency between VE
Chilleri’s testimony and the DOT to the ALJ. When he did so, Mr. Diaz’s counsel
was instructed to “move on” and the ALJ found that the inconsistency was
irrelevant without allowing Mr. Diaz an opportunity to develop the issue. Admin.
Tr. 665-666; Doc. 6-10 pp. 82-83. In her written decision the ALJ explained her
resolution of this issue as follows:
There is no longitudinal evidence that the claimant has complained or
sought evaluation or treatment for any intellectual or cognitive
complaints. Thus, no medically determinable mental impairment or
cognitive/intellectual impairment has been established in the evidence
of record. While counsel for the claimant, during the vocational
testimony, raised the issue of GED level, this consideration was
overruled by the undersigned. It is clear there is no factual basis or
actual evidence of record to support the establishment of any
cognitive or intellectual impairment upon which GED levels would be
implicated and which would support any requirement that the GED
level be considered or restricted as a relevant component to the
determination of the claimant’s ability to perform unskilled work
activity hereinafter. The evidence shows that the claimant is a high
school graduate who has a history of receiving additional job training,
including certificates for such training. His past relevant work was
identified to be skilled. There is no evidence of record establishing
any cognitive or intellectual deficits. As such, the claimant has failed
to support his burden of proof to support any limitation to his GED
level.

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Admin. Tr. 595; Doc. 6-10 p. 12. The ALJ did not attempt to elicit any reasonable
explanation for the apparent conflict in this case from VE Chilleri. Further, we
find no evidentiary support for the ALJ’s assessment that a claimant’s GED
reasoning level may only be adversely affected by medically determinable
cognitive impairment, rather than by pain alone. As such, because this conflict
was apparent, and the ALJ did not elicit a reasonable explanation from VE Chilleri
as to how Mr. Diaz could perform these occupations despite his limitation to
simple tasks, we find that the ALJ’s resolution of this issue is not supported by
substantial evidence and was not properly resolved pursuant to SSR 00-4p.
Third, we must assess whether VE Chilleri’s testimony may constitute
substantial evidence despite a conflict with one or more occupations. For example,
in Jones v. Barnhart, the Third Circuit found that a VE’s testimony was still
substantial evidence despite a conflict with the DOT where (1) the conflict did not
exist with respect to all of the occupations identified and (2) the VE’s testimony
was illustrative rather than exhaustive. 364 F.3d at 506. VE Chilleri’s testimony
does suggest that the occupations she identified were “samples,” thus could
reasonably be viewed as exemplary rather than exhaustive. However, unlike in
Jones, the conflict between VE Chilleri’s testimony and the DOT exists with
respect to all occupations identified. Absent a VE’s identification of at least one
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occupation that did not include an unresolved conflict with the DOT, the fact that
VE Chilleri’s testimony was exemplary rather than exhaustive in this case does
not, by itself, constitute substantial evidence.
Accordingly, we are compelled to remand this case for a new administrative
hearing. On remand, the ALJ should resolve the outstanding reasoning level
conflict in accordance with SSR 00-4p.
With respect to Mr. Diaz’s remaining arguments, we also find that the ALJ
erred by failing to acknowledge the function report submitted by Mrs. Diaz, and
clearly explain and support the basis for her determination that Mr. Diaz could
engage in work on a regular and continuing basis. We find that Mr. Diaz’s
remaining arguments lack any obvious merit, but to the extent that any error may
exist it can be remedied on remand.
V.

Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED that Mr. Diaz’s

request for relief be GRANTED and the Commissioner’s final decision denying
Mr. Diaz’s claim be VACATED as follows:
1.

The final decision denying Mr. Diaz’s claim for disability insurance
benefits under Title II of the Social Security Act is vacated, and this
case is remanded to the Commissioner to conduct a timely
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administrative hearing and issue a timely decision pursuant to
sentence four of 42 U.S.C. §405(g);
2.

Final judgment shall be entered in favor of Albert Diaz, Jr. and against
the Commissioner of Social Security; and,

3.

The clerk of court shall close this case.

Dated: March 22, 2017
S/Susan E. Schwab
Susan E. Schwab
Chief United State Magistrate Judge

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