KOBULNICKY v. ASTRUE

Filing 16

ORDER granting in part and denying in part 9 Plaintiff's Motion for Summary Judgment; denying 11 Defendant's Motion for Summary Judgment; and remanding the case to the Commissioner for further proceedings. Signed by Judge Alan N. Bloch on 3/27/2013. (kmw)

IN THE UNITED STATES DISTRlCT COURT

FOR THE WESTERN DISTRICT OF PENNSYL VANIA

CAROL YN VIRGINIA KOBULNICKY,
Plaintiff,
vs.

)

)
)
)

)

Civil Action No. 11-1349

)
MICHAEL 1. ASTRUE,
)
COMMISSIONER OF SOCIAL SECURITY, )
)

Defendant.

)

ORDER

AND NOW, this 27th day of March, 2013, upon consideration of Defendant's Motion for
Summary Judgment (document No. 11) filed in the above-captioned matter on May 9, 2012,
IT IS HEREBY ORDERED that said Motion is DENIED.
AND, further, upon consideration of Plaintiff's Motion for Summary Judgment
(document No.9) filed in the above-captioned matter on April 9, 2012,
IT IS HEREBY ORDERED that said Motion is GRANTED IN PART and DENIED IN
PART. Specifically, Plaintiff's Motion is granted to the extent that it seeks a remand to the
Commissioner of Social Security ("Commissioner") for further evaluation as set forth below and
denied in all other respects. Accordingly, this matter is hereby remanded to the Commissioner
for further evaluation under sentence four of 42 U.S.C. § 405(g) in light of this Order.

I. Background
On April 18, 2008, Plaintiff Carolyn Virginia Kobulnicky filed her application claim for
Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§
401-434, and for Supplemental Security Income ("SSI") under Title XVI of the Social Security

1

Act, 42 U.S.C. §§1381-1383f. (R.43-54).1 Specifically, Plaintiff claimed that she became
disabled on December 26,2007, due to back pain caused by herniated and torn discs,
degenerative arthritis in the spine, and a bulging disc in her neck. (R. 37,60,68, 74, 78).
Plaintiff also alleged disability because of anxiety and depression. (R. 74).
After being denied initially on December 19, 2008, Plaintiff filed a "Request for Hearing
by Administrative Law Judge ("ALl") on January 16,2009, stating that she disagreed with the
initial determination because she "cannot handle pain during normal activities, or work at this
time. I need surgery:,2 (R. 32-41,42). On the "Request for Hearing" form, Plaintiffindicated
she did not wish to appear at the hearing and requested that the decision be made based on the
evidence in her case. (R.42). In a decision dated June 5, 2009, the ALl denied Plaintiff's
request for benefits. (R. 24-31). The Appeals Council declined to review the ALl's decision on
August 25,2011. (R. 1-3). On October 27,2011, Plaintiff filed a timely appeal with this Court,
and the parties have filed cross-motions for summary judgment.

II.

Standard of Review
Judicial review of a social security case is based upon the pleadings and the transcript of

the record. See 42 U.S.C. § 405(g). The scope of review is limited to determining whether the
Commissioner applied the correct legal standards and whether the record, as a whole, contains
substantial evidence to support the Commissioner's findings of fact. See Matthews v. Apfel, 239
F.3d 589, 592 (3d Cir. 2001) ("[t]he findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive") (quoting 42 U.S.C. § 405(g»;

1 The Court notes that Plaintiff's protective filing date was March 31, 2008. (R. 68).
The Court notes that this request was received by the Administration on January 20, 2009. (R.
42). It further notes that the "Disability Determination and Transmittal" is dated December 17,
2008. (R. 19-20).
2

2

Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999) (noting that the court has
plenary review of all legal issues, and reviews the administrative law judge's findings of fact to
determine whether they are supported by substantial evidence).
"Substantial evidence" is defined as "more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate" to support a conclusion. Plummer v.
Apfel, 186 F .3d 422, 427 (3d Cir. 1999). However, a "single piece of evidence will not satisfy
the substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence." Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Kent v.
Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). "Nor is evidence substantial ifit is overwhelmed
by other evidence - particularly certain types of evidence (e.g., that offered by treating
physicians) - or if it really constitutes not evidence but mere conclusion." Id. at 317. A
disability is established when the claimant can demonstrate some medically determinable basis
for an impairment that prevents him or her from engaging in any substantial gainful activity for a
statutory twelve-month period. See Fargnoli v. Massanari, 247 F.3d 34, 38-39 (3d Cir. 2001).
"A claimant is considered unable to engage in any substantial gainful activity 'only ifhis
physical or mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy .... '" Id. at 39
(quoting 42 U.S.C. § 423(d)(2)(A)).
The Social Security Administration ("SSA") has promulgated regulations incorporating a
five-step sequential evaluation process for determining whether a claimant is under a disability
as defined by the Act. See 20 C.F .R. § 404.1520. In Step One, the Commissioner must
determine whether the claimant is currently engaging in substantial gainful activity. See 20

3

C.F.R. § 404.1520(b). If so, the disability claim will be denied. See Bowen v. Yuckert, 482 U.S.
137, 140 (1987). If not, the second step of the process is to determine whether the claimant is
suffering from a severe impairment. See 20 C.F.R. § 404.1 520(c). "An impairment or
combination of impairments is not severe if it does not significantly limit [the claimant's]
physical or mental ability to do basic work activities." 20 C.F.R. § 404.1 521(a). If the claimant
fails to show that his or her impairments are "severe," he or she is ineligible for disability
benefits. If the claimant does have a severe impairment, however, the Commissioner must
proceed to Step Three and determine whether the claimant's impairment meets or equals the
criteria for a listed impairment. See 20 C.F.R. § 404.1520(d). If a claimant meets a listing, a
finding of disability is automatically directed. If the claimant does not meet a listing, the
analysis proceeds to Steps Four and Five.
Step Four requires the ALl to consider whether the claimant retains the residual
functional capacity ("RFC") to perform his or her past relevant work. See 20 C.F.R. §
404.1520(e). The claimant bears the burden of demonstrating an inability to return to his or her
past relevant work. See Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). If the claimant is
unable to resume his or her former occupation, the evaluation moves to the fifth and final step.
At this stage, the burden of production shifts to the Commissioner, who must demonstrate
that the claimant is capable of performing other available work in the national economy in order
to deny a claim of disability. See 20 C.F.R. § 404. 1520(g). In making this determination, the
AU should consider the claimant's RFC, age, education, and past work experience. See id. The

ALl must further analyze the cumulative effect of all the claimant's impairments in determining
whether he or she is capable of performing work and is not disabled. See 20 C.F.R. § 404.1523.

III.

The ALJ's Decision

4

In the present case, the ALl found that Plaintiff met the insured requirements of the
Social Security Act through December 31,2009. (R.26). Accordingly, to be eligible for DIB
benefits, Plaintiff had to establish that she was disabled on or before that date. See 42 U.S.c. §§
423(a)(l)(A), (c)(l)(B); 20 C.F.R. §§ 404.101, .110, .131.
The ALl then proceeded to apply the sequential evaluation process when reviewing
Plaintiff's claim for benefits. In particular, the ALl found that Plaintiffhad not been engaged in
substantial gainful activity since the alleged onset of disability. (R. 26). The ALl also found that
Plaintiff met the second requirement of the process insofar as she had severe impairments,
specifically, degenerative disc disease and obesity. (Id.). The ALl concluded that Plaintiff's
impairments did not meet any of the listings that would satisfy Step Three. (R. 28).
The ALl found that Plaintiff retained the RFC to engage in the full range of sedentary
work. (R. 28). Based on this RFC, Plaintiff established that she was incapable of returning to
her past employment; therefore, the ALl moved on to Step Five. (R. 30). No vocational expert
("VE") was called upon for Step Five of the sequential evaluation process. Instead, the ALl
employed the Medical-Vocational Guidelines, 20 C.F .R. Part 404, Subpt. P, App. 2 (the "Grids")
and determined that Medical-Vocational Rule 201.24 directed a finding of "not disabled."
Accordingly, the ALl found that Plaintiff was not disabled. (R.30).

IV.

Legal Analysis
Plaintiff raises several arguments as to why the ALl erred in finding she was not

disabled. Specifically, Plaintiff contends that the ALl committed error in: (1) finding that her
mental impairments of Bipolar Disorder and Post-Traumatic Stress Disorder ("PTSD") were
non-severe, (2) concluding that her impairments did not meet or equal a listing, (3) finding that
she validly waived her right to appear at the hearing, (4) determining that she retained the RFC to

5

perform the full range of sedentary work, and (5) applying the Medical-Vocational Guidelines
(the "Grids") at Step Five to find her "not disabled." See Plaintiffs Brief (Doc. No. 10).
Defendant argues that the record evidence as a whole provides substantial support for the ALl's
ultimate determination that Plaintiff was not disabled.
While the Court does not reach all of Plaintiff s arguments, it does agree that remand is
warranted in this case. Specifically, the Court finds that substantial evidence does not support:
(i) the ALl's Step Two determination that Plaintiffs mental impairments were non-severe, (ii)

the ALl's RFC determination that Plaintiff was able to perform the full range of sedentary work,
(iii) the ALl's use of the Grids at Step Five to find Plaintiff capable of performing "other work"

available in the national economy. In light of the errors committed by the ALJ, the Court cannot
conclude that substantial evidence supports his ultimate determination that Plaintiff is not
disabled. Accordingly, the Court will remand the case for further consideration consistent with
this Order.
A. ALl's Step Two Determination
In finding that Plaintiff only had mild limitations in (i) activities of daily living, (ii) social
functioning, and (iii) concentration, persistence, or pace, the ALJ relied solely on Dr. Newman's
opinion in Exhibit 11 F and completely ignored the conflicting opinion of Dr. Santilli in Exhibit
12F. The record indicates that Dr. Newman, a state agency psychologist, performed a
consultative examination on December 16,2008, and opined that Plaintiff had no limitations in
her ability to (i) understand, remember, and carry out instructions and (ii) respond appropriately
to supervision, co-workers, and work pressures in a work setting. See Exhibit IlF (R. 258-61).3

3 It should be noted that Dr. Newman's opinion did not contain a diagnosis, and, when asked
whether any other capabilities were affected by her mental impairments, he checked "yes" and
6

The very next day, however, Plaintiff was examined by Dr. Santilli, another state agency
psychologist, who found that Plaintiff had moderate limitations in the same functional areas;
specifically, Dr. Santilli found that Plaintiff was moderately limited in the areas of: (i)
understanding and memory, (ii) sustained concentration and persistence, and (iii) social
interaction. See Exhibit 12F (R. 263-64). Dr. Santilli recognized that her findings were at odds
with the findings of Dr. Newman and concluded that the material difference in opinion was
based on the fact that Dr. Newman had "underestimated" the severity of Plaintiffs functional
restrictions. (R. 265). Dr. Santilli explained that Dr. Newman's opinion "contrasts sharply with
other evidence in the record" and that his "statements ... concerning [Plaintiffs] abilities in the
areas of making occupational adjustments and making personal and social adjustments are not
consistent with all of the medical and non-medical evidence" in the record. (Id.).
Although Dr. Santilli noted the conflict between her opinion and the opinion of Dr.
Newman, the ALl failed to do the same in assessing the severity of Plaintiffs mental
impairments. Indeed, the ALl's discussion was focused entirely on Exhibit I1F and Dr.
Newman's consultative examination on December 16,2008, and made no mention of Exhibit
12F and Dr. Santilli's consultative exam that took place the very next day. (R. 26-28). The
Court finds that the ALl's failure to address Dr. Santilli's opinion and resolve the conflict it
created is error that requires remand.
Indeed, one ofthe ALl's primary functions is to resolve conflicting evidence in the
record. See Plummer, 186 F.3d at 429. The ALl here, however, did not even allude to the fact
that a contrary opinion existed in the record in his Step Two analysis. The ALl had a duty to
reconcile Dr. Santilli's conflicting opinion with the opinion that he relied on in finding that

stated that Plaintiff "has primary somatic complaints and I am not able to directly comment upon
them." (R. 260-61).
7

Plaintiffs mental impairments were non-severe. See Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.
1981) ("when [expert] medical testimony or conclusions are conflicting, the ALl is not only
entitled but required to choose between them."). Although the ALl certainly is not bound by the
medical opinions, he must nonetheless (i) demonstrate his consideration of all the relevant
medical evidence of record and (ii) explain which evidence he chose to reject in arriving at his
conclusion. See Plummer,186 F.3d at 429 ("The ALl must consider all the evidence and give
some reason for discounting the evidence she rejects."); see also id. at 429 ("When a conflict in
the evidence exists, the ALl may choose whom to credit but 'cannot reject evidence for no
reason or for the wrong reason."') (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.
1993)); Cotter, 642 F.2d at 706 ([T]here is a particularly acute need for some explanation by the
ALl when slhe has rejected relevant evidence or when there is conflicting probative evidence in
the record."). The ALJ's failure to address Dr. Santilli's conflicting opinion and explain his
reason for rejecting it deprives this Court of its ability to perform meaningful judicial review, as
it cannot determine whether the ALl considered and rejected Dr. Santilli's opinion or simply
ignored it altogether. 4 See Diaz v. Comm'r of Soc. Sec., 577 F.3d 500,504 (3d Cir. 2009) ("The
ALl must provide a 'discussion of the evidence' and an 'explanation of reasoning' for his
conclusion sufficient to enable meaningful judicial review.") (quoting Burnett v. Comm'r of Soc.
Sec., 220 F .3d 112, 120 (3d Cir. 2000).
Defendant's attempt to fill in the gaps by pointing to all the medical evidence in the
record that supports the ALl's finding misses the mark, as it is not Defendant's job -- nor the job
4 The Court finds that the single citation to Exhibit 12F at the end of the ALl's RFC analysis
does not suffice to explain his basis for why he chose to credit Dr. Newman's opinion over the
opinion of Dr. Santilli. See CR. 29). There is no reference to Dr. Santilli's observations or exam
findings and the Court finds that a more comprehensive discussion was required, particularly in
light of the fact that two consultative examiners evaluated Plaintiff within 24-hours of one
another yet reached materially different conclusions.

8

of the Court -- to account for the missing pieces in the ALl's explanation. See Fargnoli, 247
F.3d at 44 n.7; see also Roundtree v. Astrue, 2008 WL 161149, at *6 (E.D. Pa. Jan. 16,2008) ("it
is impermissible for the court to supply its own reasons to support an ALl's decision; the court
must limit its analysis to the explanations an ALJ actually provides for her decision").
Defendant's explanation as to why Plaintiffs medical records support a finding of non-disability
cannot substitute for the analysis that the ALJ was required to provide. It was the ALJ's duty to
communicate explicitly his rationale and his failure to explain his basis for crediting Dr.
Newman's opinion over Dr. Santilli's renders the Court unable to determine whether he gave the
latter opinion any meaningful consideration at aILS See Fargnoli, 247 F.3dat 43-44.
Accordingly, the Court finds that substantial evidence does not support the ALJ's finding that
Plaintiffs mental impairments were non-severe. 6

5 The Court notes that, although it finds that substantial evidence does not support the ALJ's Step
Two Determination because of his failure to address conflicting opinion evidence in the record,
the determination as to whether Plaintiff suffers from a severe impairment is a threshold analysis
requiring the showing of only one severe impairment. See Bradley v. Barnhart, 175 Fed. Appx.
87, 90 (7th Cir.2006). In other words, as long as a claim is not denied at Step Two, it is not
generally necessary for the ALJ to have specifically found any additional alleged impairment to
be severe. See Salles v. Comm'r of Soc. Sec., 229 Fed. Appx. 140, 145 n. 2 (3d Cir. 2007); Lee
v. Astrue, 2007 WL 1101281, at *3 n. 5 (E.D.Pa. Apr.12, 2007); Lyons v. Barnhart, 2006 WL
1073076, at *3 (W.D.Pa. March 27,2006). Since the ALJ identified two severe impairments-­
degenerative disc disease and obesity -- it technically does not matter whether the ALJ correctly
or incorrectly found her mental impairments to be non-severe at Step Two.
6 The Court notes that in finding Plaintiffs mental impairments to be non-severe, the ALJ also
omitted from his discussion the fact that Plaintiff (i) had undergone a one-week psychiatric in­
patient hospitalization ten months prior to her alleged onset date and (ii) was assessed in
treatment records from Irene Stacy with having GAF scores between 35 and 45 eight months
prior to her alleged onset date. See (R. 80, 83). Defendant argues that the ALJ's failure to
discuss this evidence is inconsequential because: (i) these records predate the alleged onset date,
(ii) Plaintiff did not seek treatment by a mental health professional following her alleged onset
date, and (iii) Plaintiff did not allege disability due to mental impairments in her applications.
See Def.'s Brief (Doc. No. 12 at 12, 14). While those factors might very well constitute the
rationale underlying the ALl's non-severity finding, the Court already has explained that it must
evaluate the ALJ's decision as it was explained by the ALJ himself. It was his obligation to set
forth his reasoning and cite to those facts if they did indeed form the basis for his implicit

9

B. ALl's RFC Determination7
The Court finds that substantial evidence does not support the ALl's RFC determination
that Plaintiff was able to perform the full range of sedentary work because the ALl failed to (i)
discuss Dr. Baumgartel's finding that Plaintiff was completely unable to stoop and (ii) account
for the limitations caused by Plaintiff s mental impairments, even if the ALl was correct in
determining that they were non-severe. First, in crafting Plaintiffs RFC, the ALl relied on the
opinion of Dr. Baumgartel, a state agency consultative examiner, who found that, although
Plaintiff was not limited in her ability to sit, she did have postural limitations and could never

rejection of that mental health evidence. See Irizarry v. Barnhart, 233 Fed. Appx. 189, 192 n. 5
(3d Cir. 2007). The ALl, however, did not set forth any explanation for his apparent rejection of
this evidence and the Court is bound by his silence. Although the ALl cited to Exhibit IF which
contained Plaintiff's record from her one-week hospitalization at Butler Hospital in support of
his finding that she had medically determinable mental impairments of Bipolar and PTSD, the
Court is unable to determine whether he considered anything aside from her diagnoses in this
exhibit in making his finding at Step Two. Furthermore, the Court notes that the ALl did not cite
to the Irene Stacy mental health record at all (Exhibit 2F) even though it contained evidence that
Plaintiff was assigned a GAF score of 45 and a notation that Plaintiff "has problems with racing
and ruminating thoughts." (R. 83). The ALl does not discuss any observations, notations, or
conclusions contained in those records and does not explain how a GAF score as low as even 45
was consistent with his finding that Plaintiff had only mild limitations in the "Paragraph B
Criteria." See (R. 27). The ALl is advised to address this evidence on remand.
The Court notes that it agrees with Plaintiff regarding the inadequacy of the ALl's Step Three
finding. See PI. Brief (Doc. No. 10 at 20-21). On remand, the ALl is advised that his discussion
at this step should entail more than a boilerpate, conclusory statement that Plaintiffs
impairments did not meet or equal a listing. See Jones v. Barnhart, 364 F .3d 501, 505 (3d Cir.
2004) (noting that the "ALl's bare conclusory statement that an impairment did not match, or is
not equivalent to a listed impairment [is] insufficient."); Diaz, 577 F.3d at 504 (same). The sum
total of the ALl's discussion at this step is as follows: "The claimant's impairment does not
meet or medically equal the requirements of any of the impairments set forth in Section 1.00 of
Appendix, dealing with the musculoskeletal system." (R.28). The Court finds that substantial
evidence does not support this finding as it is a boilerplate recitation and the ALl does not
discuss or make reference to the medical evidence he relied on in making this determination.
7

10

stoop (R. 245).8 (R.29). The ALl gave more weight to Dr. Baumgartel's opinion because he
found it to be "more consistent with the medical evidence considered as a whole," yet he neither
included the stooping limitation in his RFC assessment nor explained why he did not. 9 ~).
RFC is defined as "that which an individual is still able to do despite the limitations
caused by his or her impairment(s)." Fargnoli, 247 F.3d at 40; see also 20 C.F.R. §§ 404.1 545(a),
416.945(a). Not only must an ALl consider all relevant evidence in determining an individual's
RFC, the RFC finding "must 'be accompanied by a clear and satisfactory explication of the basis
on which it rests.'" Fargnoli, 247 F.3d at 41 (quoting Cotter, 642 F.2d at 704); see also Social
Security Ruling ("S.S.R.") 96-8p, 1996 WL 374184 (S.S.A.), at *7 (luly 2, 1996) ("The RFC
assessment must include a narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence
(e.g., daily activities, observations)"). In making his RFC determination, "an ALl must describe
how the evidence supports his conclusion and explain why certain limitations are not accepted as
consistent with the medical or other evidence." Noah v. Astrue, 2013 WL 364235, at *2
(W.D.Pa. lan. 30,2013) (citing Plummer, 186 F.3d at 429 ("An ALl must consider all the
evidence and give some reason for discounting the evidence she rejects.")).
In finding Dr. Baumgartel' s opinion to be more consistent with the evidence as a whole,
the ALl did not explain his basis for excluding the stooping limitation from his RFC

8 The ALl also relied on Dr. Newman's opinion that Plaintiffs mental impairments did not limit
her in any way (R. 258), as illustrated by the fact that he did not incorporate any corresponding
limitations in her RFC. (R. 28-29).
The Court notes that the ALl credited Dr. Baumgartel's opinion over the opinion of Dr. Tran,
another consultative examiner who evaluated Plaintiff on October 3,2008, a few weeks after Dr.
Baurngartel's exam. See Exhibit 10F (R. 251-257). The ALl gave little weight to Dr. Tran's
opinion even though Dr. Tran found that Plaintiff: (i) had no postural limitations and (ii) was
able to sit for six-hours in an eight-hour day. (R. 252-253).

9

11

detennination. This constitutes error because the ALl was required to either include this
limitation in his RFC assessment or explain why its inclusion was not warranted. The ALl,
however, did not even address the stooping limitation even though it was contained within the
opinion he relied on in making his RFC finding. The ALl's failure to discuss the stooping
limitation was a significant oversight in light ofS.S.R. 96-9p, which establishes that Plaintiffs
complete inability to stoop had a substantial effect on her ability to perfonn the full range of
sedentary work. See S.S.R. 96-9p, 1996 WL 374185 (S.S.A), at *8 (July 2, 1996). Indeed,
S.S.R. 96-9p provides that "[a] complete inability to stoop would significantly erode the
unskilled sedentary occupational base and a finding that the individual is disabled would usually
apply." Id. (emphasis in original). This is consistent with case law indicating that ALls must
discuss a plaintiffs postural limitations, particularly the ability to stoop, which factor into the
detennination of whether a claimant can perfonn a full range of sedentary work. See Butler v.
Barnhart, 353 F.3d 992, 1000-01 (D.C.Cir.2004); Spaulding v. Halter, 11 Fed. Appx. 596, 600
(7th Cir.200 1); Chester v. Callahan, 193 F.3d 10, 13 (1 st Cir.1999); Guyer v. Astrue, 2009 WL
482245 (W.D.Pa. Feb.25, 2009); De Aza v. Comm'r of Soc. Sec., 2008 WL 4723778, at *4
(D.N.J. Oct.24, 2008). Thus, the Court finds that substantial evidence does not support the
ALl's finding that Plaintiff could perfonn the full range of sedentary work in light of his failure
to address the stooping limitation.
Second, even if substantial evidence supported the ALl's finding that Plaintiffs mental
impainnents were non-severe at Step Two, the ALl still was required to analyze what limitations
her non-severe impainnents caused in constructing his RFC finding. See S.S.R. 96-8p, 1996
WL 374184, at *5 (the ALl "must consider limitations and restrictions imposed by all of an
individual's impainnents, even those that are not 'severe'" in assessing RFC); see also 20 C.F.R.

12

§§ 404.1 545(a)(2), 416.945(a)(2). "While a 'not severe' impairment(s) standing alone may not
significantly limit an individual's ability to do basic work activities, it may-when considered with
limitations or restrictions due to other impairments-be critical to the outcome of a claim." S.S.R.
96-8p, 1996 WL 374184, at *5. In making his RFC determination, the ALl is completely silent
as to the limitations caused by Plaintiffs non-severe mental impairments of Bipolar Disorder and
PTSD, despite the existence of conflicting evidence in the record which indicates that Plaintiffs
mental impairments caused moderate limitations in her ability to concentrate and interact with
others. See Exhibit 12F (R. 263-278). The ALl's failure to assess the nonexertionallimitations
caused by Plaintiff's mental impairments in making his RFC finding constitutes error and should
be addressed by the ALl on remand. See Brown v. Astrue, 2010 WL 4455825, at *4 (E.D.Pa.
Nov. 4, 2010) ("Functional limitations caused by all impairments, whether found to be severe or
non-severe at step two, must be taken into consideration at steps three, four and five of the
sequential evaluation.").
C. Application of Grids Improper
In light of the fact that the record contained evidence that Plaintiff had both exertional
and nonexertionallimitations, the Court finds that the ALl's use of the Grids at Step Five was
improper. The Third Circuit has held that an ALl cannot rely solely on the Grids "in the absence
of a rulemaking establishing the fact of an undiminished occupational base" when a claimant has
both exertional and nonexertionallimitations. Sykes v. Apfel, 228 F.3d 259,261 (3d Cir. 2000);
see also Wolfv. Apfel, 1998 WL 131729, at * 1 (E.D.Pa. Mar. 13, 1998) ("When presented with
nonexertionallimitations, an administrative law judge may not mechanically apply the "grids").
This is because "the Commissioner cannot determine that a claimant's nonexertional impairments
do not significantly erode his occupational base under the medical-vocational guidelines without

13

... taking additional vocational evidence establishing as much." Id. at 261. An ALJ may apply
the Grids under these circumstances only ifhe "rel[ies] on [a Social Security Ruling] as a
replacement for a vocational expert" and it is "crystal-clear that the [Social Security Ruling] is
probative as to the way in which the nonexertionallimitations impact the ability to work and
thus, the occupational base." Allen v. Barnhart, 417 F.3d 396, 407 (3d Cir. 2005).
Dr. Baumgartel's opinion that Plaintiff could never stoop constituted relevant medical
evidence of a nonexertionallimitation. 10 Pursuant to SSR 96-9p, a complete inability to stoop
significantly eroded the occupational base for sedentary work. Notwithstanding the evidence of
a nonexertionallimitation, the ALJ did not call upon a vocational expert to establish his burden
at Step-Five and instead applied the Grids to find Plaintiff not disabled. The ALJ applied the
Grids without reliance on any Social Security Ruling establishing the fact of an undiminished
occupational base and without regard to S.S.R. 96-9p which established the fact of a significantly
diminished base. The Court finds that this error necessitates remand.

Obesity
Though not raised by the parties, the Court finds that the ALJ committed the additional
error of failing to consider the effect of Plaintiffs obesity on her impairments. Pursuant to
S.S.R. 02-1 p, "the combined effects of obesity with other impairments can be greater than the
effects of each of the impairments considered separately." SSR 02-1 p, 2002 WL 31026506
(S.S.A.), at *57863 (Sept. 12,2002). An ALJ must "consider the effects of obesity not only

10 Plaintiff argues in her brief that, in addition to the limitations caused by her mental
impairments and her inability to stoop, her back pain also constituted a nonexertionallimitation,
and "[a]ny one of these three nonexertional impairments preclude the medical-vocational
guidelines directing a finding of "non-disabled." (Doc. No. 10 at 19). The Court agrees. See
Poulous v. Comm'r of Soc. Sec., 474 F.3d 88, 94 n. 3 (3d Cir. 2007) ("Exertionallimitations
relate to the strength demands ofjobs, in terms of sitting, standing, walking, lifting, carrying,
pushing, and pUlling. Id. All other limitations affecting the claimant's ability to meet the demands
ofjobs are classified as nonexertional. ").

14

under the listings but also when assessing a claim at other steps of the sequential evaluation
process, including when assessing an individual's [RFC]." Id. (emphasis added). An ALJ errs
when he identifies obesity as a severe impairment but fails to subsequently consider its effect in
conjunction with Plaintiffs other impairments. See Diaz, 577 F.3d at 504-05 (case remanded
where ALJ identified obesity as severe impairment but failed to discuss its combined effect on
plaintiff s impairments thereafter); Compare Douglas v. Astrue, 2011 WL 482501, at *3-4
(E.D.Pa. Feb. 4, 2011).
Here, the ALJ identified obesity as a severe impairment at Step Two, yet did not consider
its combined effect with Plaintiffs other impairments at any subsequent step of his analysis.
Indeed, his discussion made no mention of obesity at any time after he deemed it a severe
impairment, even though Plaintiff s obesity may very well have had an effect on her
degenerative disc disease and contributed to her allegations of disabling back pain. This issue
should be addressed by the ALJ on remand as well.

v.

Conclusion
In short, the Court finds that substantial evidence does not support the ALJ's RFC

determination or his findings at Steps Two, Three, and Five. Accordingly, the Court finds that
the ALl's determination of non-disability in this case does not enjoy the support of substantial
record evidence. The Court hereby remands this case to the Commissioner for reconsideration
consistent with this Order.

s/Alan N. Bloch
United States District Judge
ecf:

Counsel of record

15