O'Connor v. Saul

Filing 20

MEMORANDUM OPINION (Order to follow as separate docket entry). Signed by Magistrate Judge William I. Arbuckle on 9/19/2022. (caw)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
TRACIE L. O’CONNOR,
Plaintiff
v.
1

KILOLO KIJAKAZI,
Defendant

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CIVIL ACTION NO. 4:21-CV-1077

(ARBUCKLE, M.J.)

MEMORANDUM OPINION
I.

INTRODUCTION
Tracie L. O’Connor is an adult who resides in the Middle District of

Pennsylvania. She seeks judicial review of the final decision of the Acting
Commissioner of Social Security (“Commissioner”) denying her application 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 is before me, upon consent of the parties pursuant to 28 U.S.C.
§ 636(c) and Rule 73 of the Federal Rules of Civil Procedure. After reviewing the

1

Kilolo Kijakazi is the Acting Commissioner of Social Security. She is
automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d) (providing that
when a public officer sued in his or her official capacity ceases to hold office while
the action is pending, “the officer’s successor is automatically substituted as a
party.”); see also 42 U.S.C. § 405(g) (“Any action instituted in accordance with this
subsection shall survive notwithstanding any change in the person occupying the
office of Commissioner of Social Security or any vacancy in such office.”).
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parties’ briefs, the Commissioner’s final decision, and the relevant portions of the
certified administrative transcript, I find the Commissioner's final decision is not
supported by substantial evidence. Accordingly the Commissioner’s final decision
will be VACATED, and this case will be REMANDED for further proceedings.
II.

BACKGROUND & PROCEDURAL HISTORY
On January 31, 2018, Plaintiff protectively filed an application for disability

insurance benefits under Title II of the Social Security Act. (Admin. Tr. 23). In this
application, Plaintiff alleged she became disabled on October 28, 2016. Id. Plaintiff
later amended her onset date to September 19, 2019. Id. Plaintiff was 50 years old
on her amended onset date. (Admin. Tr. 36). She alleges that he is disabled due to
the following conditions: fibromyalgia, COPD, depression, anxiety, sleep apnea,
chronic pain, and thyroid issues. (Admin. Tr. 263). Plaintiff alleges that the
combination of these conditions affects her ability to lift, squat, bend, stand, reach,
walk, sit, kneel, climb stairs, complete tasks, concentrate, use her hands and get
along with others. (Admin. Tr. 296). Plaintiff has at least a high school education.
(Admin. Tr. 36). Before the onset of her impairments, Plaintiff worked as a
housekeeper and home attendant. Id.

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On July 17, 2018, Plaintiff’s application was denied at the initial level of
administrative review. (Admin. Tr. 23). On August 2, 2018, Plaintiff requested an
administrative hearing. Id.
On February 4, 2020, Plaintiff, assisted by her counsel, appeared and testified
by telephone during a hearing before Administrative Law Judge Michelle Wolfe (the
“ALJ”). Id. On March 19, 2020, the ALJ issued a decision denying Plaintiff’s
application for benefits. (Admin. Tr. 38).
On May 1, 2020, Plaintiff requested review of the ALJ’s decision by the
Appeals Council of the Office of Disability Adjudication and Review (“Appeals
Council”). (Admin. Tr. 240). Plaintiff also submitted new evidence that was not
available to the ALJ when the ALJ’s decision was issued. (Admin. Tr. 43-44).
On April 22, 2021, the Appeals Council denied Plaintiff’s request for review.
(Admin. Tr. 1). With respect to the additional evidence submitted, the Appeals
Council noted that:
You submitted two pages of additional medical evidence from Mark
Cruciani, MD, dated February 12, 2020 (2 pages). The Administrative
Law Judge decided your case through June 30, 2018. This additional
evidence does not relate to the period at issue. Therefore, it does not
affect the decision about whether you were disabled beginning on or
before June 30, 2018.
(Admin. Tr. 2).

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On June 18, 2021, Plaintiff initiated this action by filing a Complaint. (Doc.
1). In the Complaint, Plaintiff alleges that the ALJ’s decision denying the application
is not supported by substantial evidence, and improperly applies the relevant law and
regulations. (Doc. 1, ¶¶ 14-15). As relief, Plaintiff requests that the Court reverse the
final decision denying Plaintiff’s application for benefits, or in the alternative
remand this case to the Commissioner for a new hearing with directions to render a
timely decision. (Doc. 1).
On October 20, 2021, the Commissioner filed an Answer. (Doc. 10). In the
Answer, the Commissioner maintains that the decision holding that Plaintiff is not
entitled to disability insurance benefits was made in accordance with the law and
regulations and is supported by substantial evidence. (Doc. 10, ¶ 10). Along with her
Answer, the Commissioner filed a certified transcript of the administrative record.
(Doc. 11).
Plaintiff’s Brief (Doc. 14), the Commissioner’s Brief (Doc. 18), and
Plaintiff’s Reply (Doc. 19) have been filed. This matter is now ripe for decision.
III.

STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal

principles governing Social Security Appeals.

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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, 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).

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“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 Plaintiff is disabled, but whether the Commissioner’s finding that Plaintiff
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 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.

STANDARDS GOVERNING THE ALJ’S APPLICATION OF THE FIVE-STEP
SEQUENTIAL EVALUATION PROCESS

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
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20 C.F.R. § 404.1505(a).2 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).
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).

2

Throughout this Opinion, I cite to the version of the administrative rulings and
regulations that were in effect on the date the Commissioner’s final decision was
issued. In this case, the ALJ’s decision, which serves as the final decision of the
Commissioner, was issued on March 19, 2020.
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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); 20 C.F.R.
§ 404.1545(a)(1). In making this assessment, the ALJ considers all 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
him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5);
20 C.F.R. § 404.1512; 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(b)(3); 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, to facilitate review of the decision under the substantial evidence standard, the
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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).
IV.

DISCUSSION
Plaintiff raises the following issues in her statement of errors:
(1)

The ALJ erroneously dismissed Plaintiff’s bilateral carpal tunnel
syndrome without considering all the evidence.

(2)

The ALJ found the opinion of the consultative physician not
persuasive for erroneous reasons.

(3)

The ALJ failed to consider the opinions of the treating physician
for no reason.

(4)

The ALJ failed to present a hypothetical question containing all
of Plaintiff’s credibly established limitations to the Vocational
Expert, whose testimony thus did not constitute substantial
evidence supporting the decision.

(Doc. 14, p. 4). Plaintiff added a fifth “error” in her argument section by raising a
separation of powers argument.

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A.

THE ALJ’S DECISION DENYING PLAINTIFF’S APPLICATION

In her March 2020 decision, the ALJ found that Plaintiff met the insured status
requirement of Title II of the Social Security Act through June 30, 2018. (Admin.
Tr. 25). Then, Plaintiff’s application was evaluated at steps one through five of the
sequential evaluation process.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful
activity at any point between September 19, 2017, (Plaintiff’s alleged onset date)
and June 30, 2018, (Plaintiff's date last insured) (“the relevant period”). (Admin. Tr.
25).
At step two, the ALJ found that, during the relevant period, Plaintiff had the
following medically determinable severe impairments: fibromyalgia, chronic
obstructive pulmonary disorder (“COPD”), osteoarthritis of the acromioclavicular (a
shoulder joint) with tendonitis, status post greater saphenous ablation (left December
2016 and right February 2017) (a leg vein closure procedure secondary to varicose
veins), generalized anxiety disorder, major depressive disorder, mood disorder,
bipolar disorder, and post-traumatic stress disorder. Id. The ALJ also identified the
following medically determinable non-severe impairments: hypothyroidism,
osteopenia, vertigo, dermatitis, sleep apnea, and bilateral carpal tunnel syndrome.
(Admin. Tr. 26).
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At step three, the ALJ found that, during the relevant period, Plaintiff did not
have an impairment or combination of impairments that met or medically equaled
the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Id.
Between steps three and four, the ALJ assessed Plaintiff’s RFC. The ALJ
found that, during the relevant period, Plaintiff retained the RFC to engage in light
work as defined in 20 C.F.R. § 404.1567(b) with the following additional limitations:
She requires the option to transfer positions from sitting to standing,
with each interval being up to 1 hour during the workday, but since she
is not off task when transferring. The claimant is limited to frequent
pushing and pulling with the upper extremities, frequent overhead
reaching with the upper extremities, and frequent bilateral handling.
She is further limited to occasional pushing and pulling with the lower
extremities. The claimant is limited to frequent balancing, and
occasional stooping, crouching, crawling, kneeling, and climbing, but
never climbing on ladders, ropes, or scaffolds. She is limited to frequent
exposure to temperature extremes of cold, wetness, humidity,
vibrations, fumes, odors, dusts, gases, and poor ventilation, as well as
hazards, including moving machinery and unprotected heights. She can
do simple routine tasks, but no complex tasks. She is limited to frequent
interactions with coworkers and supervisors, and occasional interaction
with the public.
(Admin. Tr. 30).
At step four, the ALJ found that, during the relevant period, Plaintiff could
not engage in her past relevant work. (Admin. Tr. 36). At step five, the ALJ found
that, considering Plaintiff’s age, education and work experience, Plaintiff could
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engage in other work that existed in the national economy. (Admin. Tr. 36-37). To
support her conclusion, the ALJ relied on testimony given by a vocational expert
during Plaintiff’s administrative hearing and cited the following three (3)
representative occupations: inspector, DOT #529.687-114; bench assembler, DOT
#706.684-042; and officer helper, DOT #239.567-010. (Admin. Tr. 37).
B.

WHETHER THE ALJ PROPERLY EVALUATED DR. STONE’S OPINION

Plaintiff was referred to Dr. Marielle Stone, M.D., by the Bureau of Disability
Determination for an internal medicine examination. On June 22, 2018, Dr. Stone
examined Plaintiff. (Admin. Tr. 486-489). In her report, Dr. Stone diagnosed
Plaintiff with chronic pain, fibromyalgia, COPD, sleep apnea, depression, anxiety,
and panic attacks. During the examination Plaintiff declined to walk on her heels or
toes due to concerns about losing her balance, she was able to squat 50%, had a
normal stance, used no assistive devices, needed no help changing for the exam or
getting on and off the table, and was able to rise from a chair without difficulty.
Plaintiff had tenderness to palpation along both shoulders and had ten positive
trigger points. Her reflexes were normal, she had no sensory deficits, she had full
strength in her upper and lower extremities and full strength and sensation in her
hands.

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Following the examination, Dr. Stone completed a check-box medical source
statement. (Admin. Tr. 490-495). In that medical source statement, Dr. Stone
assessed that Plaintiff could: occasionally lift up to twenty pounds; frequently carry
up to ten pounds (even though she could only “occasionally” lift); sit up to eight
hours per day, for up to four hours at a time without interruption; stand a total of
three hours per eight-hour day, up to one hour at a time without interruption; walk
one hour per eight-hour workday, for up to fifteen minutes at one time without
interruption; continuously handle, finger, feel, and push or pull with her upper
extremities; occasionally reach in any direction except overhead, stoop, balance,
climb ramps, and climb stairs; never reach overhead, climb ladders of scaffolds,
kneel, crouch, or crawl. Id. Dr. Stone also assessed that Plaintiff could tolerate
occasional exposure to unprotected heights, moving mechanical parts, and operating
a motor vehicle; and no exposure to humidity, wetness, dust, odors, fumes,
pulmonary irritants, extreme cold, or extreme heat. Id.
Dr. Stone provided the following supporting explanation for the lifting and carrying
limitations: “limited shoulder and hip ROM. Back/Hip Shoulder pain.” (Admin. Tr.
490).
Dr. Stone provided no supporting explanation for the sitting, standing, and
walking limitations. (Admin. Tr. 491).
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Dr. Stone provided the following supporting explanation for the reaching
limitations: “limited shoulder ROM B/L. Shoulder and arm pain B/L.” (Admin. Tr
492).
Dr. Stone provided the following supporting explanation for the climbing,
balancing, stooping, kneeling, crouching, and crawling limitations: “shoulder/knee
pain/back pain/neck pain. Limited shoulder and hip ROM.” (Admin. Tr. 493).
Dr. Stone also completed a range of motion assessment. In that assessment,
Dr. Stone observed that Plaintiff had limitations in her range of motion in her
shoulders using this diagram:

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(Admin. Tr. 496).
On July 3, 2018, a state agency physician, Kevin Hollick, D.O. reviewed the
available records, including Dr. Stone’s opinion, and issued a competing assessment.
(Admin. Tr. 105-108). Dr. Hollick assessed that Plaintiff could: occasionally lift
and/or carry up to 20 pounds; frequently lift and/or carry up to 10 pounds; stand
and/or walk up to six hours per eight-hour workday; sit up to six hours per eighthour workday; and occasionally climb ladders, climb scaffolds. Id. Dr. Hollick
assessed that Plaintiff could push/pull (with arms or legs), climb ramps, climb stairs,
balance, stoop, kneel, crouch, and crawl without limitation. Id. Dr. Hollick did not,
however, issue any statement regarding Plaintiff’s ability to reach overhead and did
not reference Dr. Stone’s range of motion chart in his supporting explanation. Id.
The ALJ found Dr. Hollick’s opinion “partially persuasive,” and found that
Dr. Stone’s opinion was “not persuasive.” In doing so, the ALJ explained:
As it pertains to claimant’s physical functioning, the undersigned
considered the state agency physical assessment of Dr. Kevin Hollick,
and found it partially persuasive (Exhibit C2A). Dr. Hollick opined
claimant was limited to light work, with postural and environmental
limitations. In regards to the lifting limitations, Dr. Hollick’s
assessment is consistent with, and supported by, the limited
longitudinal record, which reflects physical examinations and
diagnostic testing which are not particularly adverse. However, when
considering claimant’s testimony, and activities of daily living, the
undersigned gave claimant every benefit of the doubt, and added
additional reaching and push/pull limitations, as well as additional
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postural and environmental limitations. For these reasons, the opinion
of Dr. Hollick is partially persuasive.
The undersigned considered the opinion of Dr. Marielle Stone, and did
not find it persuasive (Exhibit C4F). Dr. Stone opined that claimant is
capable of lifting up to 20 pounds occasionally, and carrying 10 pounds
frequently, and up to 20 pounds occasionally. She further indicated that
claimant could sit for 8 hours a day, stand for 3 hours in 1-hour
increments, and walk for 1 hour in 15-minute increments. Additionally,
she indicated claimant could never reach overhead, and could
occasionally reach in all other directions. Moreover, she placed postural
and environmental limitations on claimant. Dr. Stone’s opinion is not
consistent with, nor supported by, the longitudinal record, or her own
examination, which reflects negative straight leg raise testing
bilaterally, no joint deformity, no sensory deficit, normal strength, no
muscle atrophy, and intact bilateral grip strength. Further, her opinion
is internally inconsistent in that she found that claimant could lift up to
20 pounds occasionally, but could carry up to 10 pounds frequently.
Lastly, it appears as if Dr. Stone’s assessments are based on claimant’s
subjective complaints, rather than the objective record. For these
reasons, her opinion is not persuasive.
(Admin. Tr. 34-35).
The Commissioner’s regulations define a medical opinion as “a statement
from a medical source about what [a claimant] can still do despite [his or her]
impairment(s) and whether [he or she has] one or more impairment-related
limitations or restrictions in the following abilities:”
(i)

[The] ability to perform physical demands of work activities,
such as sitting, standing, walking, lifting, carrying, pushing,
pulling, or other physical functions (including manipulative or
postural functions, such as reaching, handling, stooping, or
crouching);
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(ii)

[The] ability to perform mental demands of work activities,
such as understanding; remembering; maintaining
concentration, persistence, or pace; carrying out instructions; or
responding appropriately to supervision, co-workers, or work
pressures in a work setting;

(iii)

[The] ability to perform other demands of work, such as seeing,
hearing, or using other senses; and

(iv)

[The] ability to adapt to environmental conditions, such as
temperature extremes or fumes.

20 C.F.R. § 404.1513(a)(2). A “medical source” is “an individual who is licensed
as a healthcare worker by a State and working within the scope of practice permitted
under State of Federal Law, or an individual who is certified by a States as a speechlanguage pathologist or a school psychologist and acting within the scope of practice
permitted under State or Federal law. 20 C.F.R. § 404.1502(d). If one medical source
submits multiple medical opinions, and ALJ will articulate how he or she considered
the medical opinions from that medical source in a single analysis. 20 C.F.R. §
404.1520c(b)(1).
An ALJ’s consideration of competing medical opinions and prior
administrative medical findings is guided by the following factors: the extent to
which the medical source’s opinion is supported by relevant objective medical
evidence and explanations presented by the medical source (supportability); the
extent to which the medical source’s opinion is consistent with the record as a whole
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(consistency); length of the treatment relationship between the claimant and the
medical source; the frequency of examination; the purpose of the treatment
relationship; the extent of the treatment relationship; the examining relationship; the
specialization of the medical source and any other factors that tend to support or
contradict the opinion. 20 C.F.R. § 404.1520c(c).
The most important of these factors are the “supportability” of the opinion and
the “consistency” of the opinion. 20 C.F.R. § 404.1520c(b)(2). The ALJ will explain
how he or she considered the “supportability” and “consistency” of a medical
source’s opinion. The ALJ may, but is not required to, explain his or her
consideration of the other factors unless there are two equally persuasive medical
opinions about the same issue that are not exactly the same. 20 C.F.R. §
404.1520c(b)(3). Unlike prior regulations, under the current regulatory scheme,
when considering medical opinions, an ALJ “will not defer or give any specific
evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from your medical sources.” 20
C.F.R. § 404.1520c(a).
The regulations also define statements on issues reserved to the Commissioner
as:
(i)

Statements that you are not disabled, blind, able to work, or able
to perform regular or continuing work;
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(ii)

Statements about whether or not you have a severe
impairment(s);

(iii)

Statements about whether or not your impairment(s) meets the
duration requirement (see § 404.1509);

(iv)

Statements about whether or not your impairment(s) meets or
medically equals any listing in the Listing of Impairments in Part
404, Subpart P, Appendix 1;

(v)

Statements about what your residual functional capacity is using
our programic terms about the functional exertional levels in Part
404, Subpart P, Appendix 2, Rule 200.00 instead of descriptions
about your functional abilities and limitations (see § 404.1545);

(vi)

Statements about whether or not your residual functional
capacity prevents you from doing past relevant work (see
404.1560);

(vii) Statements that you do or do not meet the requirements of a
medical-vocational rule in Part 404, Subpart P, Appendix 2; and
(viii) Statements about whether or not your disability continues or ends
when we conduct a continuing disability review (see 404.1594).
20 C.F.R. § 404.1520b(c)(3). The regulations also direct that this type of evidence
is inherently neither valuable or persuasive, and that because this is the case, the ALJ
need not provide any analysis about how that evidence was considered in the
determination or decision, even under 20 C.F.R. § 404.1520c. 20 C.F.R. §
404.1520b(c).
Plaintiff argues that the ALJ rejected Dr. Stone’s opinion for “erroneous
reasons.” Specifically, Plaintiff contends:
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As the regulations provide, “[a] medical source may have a better
understanding of your impairment(s) if he or she examines you than if
the medical source only reviews evidence in your folder.” 20 C.F.R. §
404.1520c(c)(3)(v); see also Mason v. Shalala, 994 F.2d 1058, 1067
(3d Cir. 1993) (examining physician more persuasive than one who
only reviews records). However, the ALJ found Dr. Stone’s opinion
“not persuasive” for erroneous reasons (R. 35). The ALJ claimed the
opinion was not supported by or consistent with the record or Dr.
Stone’s own examination, but contrary to the ALJ's claim, Dr. Stone
made multiple clinical findings as discussed above, and provided
supporting explanations for the limitations she assessed (R. 490, 49293). Dr. Stone thus provided objective medical evidence of her findings
and supporting explanations for her opinion, a fact which the
regulations emphasize as making a medical opinion persuasive. 20
C.F.R. § 404.1520c(c)(1) ("The more relevant the objective medical
evidence and supporting explanations presented by a medical source
are to support his or her medical opinion(s) . . . the more persuasive the
medical opinions... will be."). Thus, the factors of supportability and
consistency, which are the two most important factors in assessing
medical opinions, support finding Dr. Stone's opinion persuasive.
The ALJ also rejected Dr. Stone’s opinion as “internally inconsistent in
that she found that claimant could lift up to 20 pounds occasionally, but
could carry up to 10 pounds frequently” (R. 35). However, Dr. Stone
reasonably concluded that Plaintiff could lift more than she could carry,
and there is nothing “internally inconsistent” about her opinion,
contrary to the ALJ’s reasoning. Similarly, the ALJ’s claim that “it
appears as if Dr. Stone’s assessments are based on claimant’s subjective
complaints rather than the objective record” is unfounded (R. 35)
(emphasis added). Dr. Stone made findings on examination and
expressly based her opinion on those findings.
In short, the ALJ rejected Dr. Stone’s opinion for erroneous reasons.
An ALJ cannot reject evidence for “the wrong reason.” Mason, 994
F.2d at 1066. Dr. Stone’s assessment should have been found
persuasive, and would have resulted in a finding of disability. Because
the ALJ erred in rejecting it, her decision should be reversed.
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(Doc. 14, pp. 15-17).
In response, the Commissioner argues that the ALJ reasonably evaluated Dr.
Stone’s opinion. Specifically, the Commissioner contends:
Plaintiff takes issue with the ALJ’s evaluation of these opinions (Pl.’s
Br. at 15-17). She asserts that Dr. Stone’s findings were “expressly
based on her opinion on those findings” (Tr. 16-17). This is merely a
request to reweigh the evidence, contrary to the standard of review.
Chandler, 667 F.3d at 359 (the Court is “not permitted to reweigh the
evidence or impose their own factual determinations.”). Moreover,
Plaintiff’s argument is conclusory – in fact, her brief contains no
citations in support of her argument.
Because substantial evidence supports the ALJ’s evaluation of the prior
administrative medical findings and medical opinions pursuant to the
controlling regulations, this Court should affirm.
(Doc. 18, pp. 39-40).
I agree with Plaintiff’s position that the ALJ’s evaluation of Dr. Stone’s
opinion—specifically the overhead reaching limitation—is not supported by
substantial evidence. In this case, the ALJ stated that he “gave [Plaintiff] every
benefit of the doubt” when he limited her occupations that require no more than
“frequent” (up to six hours per workday) overhead reaching. (Admin. Tr. 35). The
ALJ supported this conclusion by remaking that Plaintiff had “negative straight leg
raise testing bilaterally, no joint deformity, no sensory deficit, normal strength, no
muscle atrophy, and intact bilateral grip strength.” (Admin. Tr. 35). None of this

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evidence, however, addresses the limitation to Plaintiff’s range of motion for
overhead reaching observed by Dr. Stone and her treating sources.
As discussed above, Dr. Stone’s examination report includes a completed
range of motion chart documenting that Plaintiff’s range of motion is limited to 80
degrees of forward elevation and 75 degrees of abduction. A person limited to 80
degrees of forward elevation and 75 degrees of abduction would not likely be able
to lift their arms over their head. Similarly, in March 2018 treating source Kenny
Williams, D.O. observed that:
There is tenderness over the distal rotator cuff tendons of both
shoulders, right greater than left, with positive impingement signs
including Hawkins, Neer’s and resisted empty can testing. Rotator cuff
strength appears to be full but the patient experiences pain when
performing both abduction and resisted external rotation. Range of
motion of the shoulders is about 75% of normal in both internal and
external rotation. There is otherwise normal tone, stability, functional
range of motion and no significant tenderness of the limbs.
(Admin. Tr. 464) (emphasis added).
In Cotter v. Harris, the Third Circuit recognized that there is “a particularly
acute need for some explanation by the ALJ when s/he has rejected relevant evidence
or when there is conflicting probative evidence in the record.” 642 F.2d 700, 706 (3d
Cir. 1981). In defining the parameters of this obligation, the Circuit explained:
[i]n our view and examiner’s findings should be as comprehensive and
analytical as feasible and, where appropriate, should include a
statement of subordinate factual foundations on which ultimate factual
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conclusions are based, so that a reviewing court may know the basis for
the decision. This is necessary so that the court may properly exercise
its responsibility under 42 U.S.C. § 405(g) to determine if the
Secretary’s decision is supported by substantial evidence.
Id. at 705 (quoting Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974). In its
opinion denying a rehearing in Cotter, the Circuit further elaborated that “in most
cases, a sentence or short paragraph would probably suffice.” Cotter v. Harris, 650
F.2d 481 (3d Cir. 1981).
The range of motion evidence is highly relevant to the determination of
whether Plaintiff can reach overhead. Nothing in the ALJ’s decision suggests this
evidence was considered, and even if it was considered no supporting explanation
was provided as to why it was disregarded. Furthermore, as Plaintiff noted in her
brief, each occupation identified by the VE in response to the ALJ’s controlling
hypothetical question requires frequent reaching. DOT #529.687-114, 1991 WL
674763 (occupation of Inspector requires “frequent” reaching); DOT #706.684-042,
1991 WL 679055 (occupation of Bench Assembler requires “frequent” reaching);
DOT #239.567-010, 1991 WL 672232 (occupation of Office Helper requires
“frequent” reaching”). The Dictionary of Occupational Titles does not differentiate
between reaching overhead and reaching in other directions.
Because evidence related to Plaintiff’s complete inability to reach overhead
was disregarded without explanation, I find that the ALJ’s rationale for discounting
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Dr. Stone’s opinion, and by extension the RFC assessment in this case, are not
supported by substantial evidence. Accordingly, I am compelled to remand this case
to the Commissioner for further proceedings.
C.

PLAINTIFF’S REMAINING ARGUMENTS

Plaintiff raises the following additional arguments in her Brief:
(1)

The ALJ erroneously dismissed Plaintiff’s bilateral carpal tunnel
syndrome without considering all the evidence.

(2)

The ALJ failed to consider the opinions of the treating physician
for no reason.

(3)

The ALJ failed to present a hypothetical question containing all
of Plaintiff’s credibly established limitations to the Vocational
Expert, whose testimony thus did not constitute substantial
evidence supporting the decision.

(4)

Whether Plaintiff is entitled to remand because Andrew Saul’s
appointment violates separation of powers.

Because I have found a clear basis for remand due to ALJ’s failure to properly
explain or support her decision to discount Dr. Stone’s opinion, I need not address
these remaining arguments. To the extent any further error exists, it may be
addressed on remand.

[The next page contains the Conclusion]

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V.

CONCLUSION
Accordingly, I find that that Plaintiff’s request for remand be GRANTED as

follows:
(1)

The final decision of the Commissioner will be VACATED.

(2)

This case will be REMANDED to the Commissioner for further
consideration pursuant to sentence four of 42 U.S.C. § 405(g).

(3)

Final judgment will be issued in favor of Tracie L. O’Connor.

(4)

An Appropriate Order will be issued.

Date: September 19, 2022

BY THE COURT
s/William I. Arbuckle
William I. Arbuckle
U.S. Magistrate Judge

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