CASSIDY v. ASTRUE

Filing 11

MEMORANDUM OPINION AND ORDER denying 6 Defendant's Motion for Summary Judgment and granting in part and denying in part 8 Plaintiff's Motion for Summary Judgment. Signed by Judge Terrence F. McVerry on 5/16/2014. (rjw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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PAMELA M. CASSIDY,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

MEMORANDUM OPINION
May 16, 2014
I.

Introduction
Pamela M. Cassidy (“Plaintiff”) brought this action pursuant to 42 U.S.C. §§ 405(g) and

42 U.S.C. § 1383(c)(3), for judicial review of the final determination of the Commissioner of
Social Security (“Commissioner”), which denied her application for disability insurance benefits
(“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 1381-1383(f). This case
comes before the Court on the parties’ cross-motions for summary judgment. (ECF Nos. 6, 9).
The record was thoroughly developed at the administrative level of the proceeding. (ECF No. 4).
Each side filed a brief in support of its motion (ECF Nos. 7, 9), and Plaintiff also filed a reply
brief in response to the Commissioner’s motion (ECF No. 10). Accordingly, the matter is ripe for
disposition, and for the following reasons, the Commissioner’s motion will be DENIED, and
Plaintiff’s motion will be GRANTED.
II.

Background
A.

Factual Background

Plaintiff was born on April 15, 1962. (R. 154). She is a high school graduate with past

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relevant work experience as a bartender, deli worker, bagger, food sales clerk, packer/inspector,
and sewing machine operator. (R. 87-88).
Plaintiff alleges disability as of February 28, 2006, due to a torn rotator cuff in each
shoulder, anxiety, arthritis, and tendonitis. (R. 158). The record reflects that Plaintiff has not
engaged in substantial gainful activity since her alleged disability onset date.
1.

History of Medical Treatment

In January 2004, Plaintiff injured her right shoulder while working at her last job. (R.
332, 341, 426). As a result, she underwent physical therapy and received chiropractic treatment.
(R. 426). A year later, she was diagnosed with a torn right rotator cuff and declared a candidate
for arthroscopic surgery. (R. 426). The surgery was performed by Ari Pressman, M.D., in May
2005. (R. 409). During the procedure, Dr. Pressman observed that Plaintiff’s rotator cuff was not
actually torn, as suspected. (R. 409). Other repairs to Plaintiff’s shoulder were made, however.
(R. 409). In the months immediately following her surgery, Plaintiff was progressing well,
though she experienced some stiffness and pain. (R. 420-23). She was undergoing physical
therapy and taking pain medications and eventually returned to work in August 2005. (R. 330,
418).
In November 2005, six months after the surgery, Dr. Pressman declared that Plaintiff was
doing “quite well,” though she was “not yet back to full function.” (R. 417). Dr. Pressman
suspected that the continued pain could be the result of a tear in the rotator cuff that went
unobserved during the surgery, so he ordered an MRI. (R. 417). The MRI revealed postoperative changes and a complete tear of the supraspinatus tendon. (R. 416). The next month,
Plaintiff followed-up with Thomas F. Brockmeyer, M.D., with continued symptoms in her right
shoulder. (R. 414). Dr. Brockmeyer reviewed the results of Plaintiff’s recent MRI and

2

acknowledged that it showed clear evidence of a rotator cuff tear with retraction. (R. 414).
Nevertheless, he continued Plaintiff on light-duty work with no overhead lifting. (R. 414). He
also noted that she should follow-up with Dr. Pressman again in three-to-four weeks and that she
would likely need repeat surgery on her right shoulder early in 2006. (R. 414).
In January 2006, Dr. Pressman referred Plaintiff to Thomas Hughes, M.D., of the Human
Motion/All Hand Center. (R. 330). During her first visit with Dr. Hughes, Plaintiff reported that
she did not feel as though she had improved after her May 2005 surgery. (R. 330). She continued
to have pain, which had progressed to the point that she could no longer do her hair with her
right hand, put dishes away in overhead cabinets, sleep on her right side, and do other daily
activities such as getting dressed and brushing her teeth. (R. 330). Upon examination, Plaintiff
did not display any acute distress. (R. 330). Her elbow had a full range of motion. (R. 330). She
had pain with active range of motion of the shoulder, with active forward flexion of only about
90 degrees, and active abduction to 70 degrees. (R. 330). She displayed excellent passive range
of motion of 100 degrees of forward flexion and 100 degrees of abduction. (R. 330). Plaintiff had
significant pain and weakness when her supraspinatus tendon was isolated. (R. 331). She also
had pain over her biceps and with crossover adduction. (R. 331). At the conclusion of the
examination, Dr. Hughes’ recommended that Plaintiff undergo surgery to repair the torn rotator
cuff. (R. 331, 333). In the meantime, Plaintiff was permitted to continue with light-duty work.
(R. 331).
On February 3, 2006, Dr. Hughes performed a right shoulder arthroscopy on Plaintiff,
during which he identified a full-thickness rotator cuff tear of the supraspinatus tendon. (R. 333).
He also observed some labral wear, which was debrided. (R. 333). Plaintiff followed-up with Dr.
Hughes on February 16, 2006, at which time her sutures were removed and she was started on

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physical therapy. (R. 333).
Plaintiff had another follow-up with Dr. Hughes on April 18, 2006. (R. 329). Plaintiff
reported that two or three weeks before her appointment, she felt a pop in her shoulder, and since
then she had less range of motion and felt more pain. (R. 329). After examining Plaintiff, Dr.
Hughes noted that Plaintiff still had good active motion of the supraspinatus with forward
elevation and abduction to at least 90 degrees. (R. 329). Although Plaintiff complained of
considerable pain in her shoulder, Dr. Hughes noted that he was not “terribly concerned” about
the pain. (R. 329). Nonetheless, Dr. Hughes decided to obtain an MRI-arthrogram. (R. 329). The
test revealed an extremely attenuated supraspinatus tendon; however, there was no full-thickness
tear or extravasation of fluid into the subacromial bursa, which suggested that Plaintiff’s rotator
cuff was still intact. (R. 334).
Dr. Hughes reviewed the results of the MRI with Plaintiff on May 23, 2006, at which
time Plaintiff reported that she had not experienced any improvement in strength or activity
level. (R. 334). She had, however, experienced a significant increase in pain. (R. 334). After
reviewing the results of the MRI with Plaintiff, Dr. Hughes recommended that she undergo
arthroscopic revision surgery to address the tear, which Dr. Hughes performed on June 26, 2006.
(R. 334).
Plaintiff had a post-operative follow-up on July 11. (R. 328). By this time, her wounds
were well healed, but she remained in pain. (R. 328). Dr. Hughes decided to keep her out of
work, sent her back to physical therapy, and kept her on Vicodin. (R. 328).
Plaintiff returned for another follow-up on August 22. (R. 327). Dr. Hughes noted that
Plaintiff continued to experience pain, which worsened during therapy. (R. 327). As a result, Dr.
Hughes instructed Plaintiff to stop attending therapy for a month. (R. 327). While Dr. Hughes

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noted that “this will put her at great risk for stiffness,” he was more concerned about “trying to
control [Plaintiff’s] pain symptoms.” (R. 327).
When Plaintiff was seen by Dr. Hughes on September 19, 2006, she reported that she
continued to experience pain, despite the cessation of therapy. (R. 326). In view of that, Dr.
Hughes decided to obtain another MRI-arthrogram to determine whether her rotator cuff had torn
again. (R. 326). The MRI was performed on October 2, and the results revealed a large, fullthickness rotator cuff tear in a new location – the posterior edge of the supraspinatus, as opposed
to the anterior edge where the previous tears had been. (R. 335). Based on the results of the MRI,
Dr. Hughes decided to perform an open rotator cuff repair with a graft jacket supplementation to
try to reinforce her tear and prevent future tearing. (R. 335). The surgery was performed on
January 5, 2007. (R. 335).
Two months after the surgery, Plaintiff had a follow-up with Dr. Hughes. (R. 322).
Plaintiff was undergoing physical therapy and was still in a lot of pain, for which she was taking
Vicodin. (R. 322). Plaintiff reported that she did not think the Vicodin was very helpful. (R.
322). Dr. Hughes’ plan was to continue Plaintiff on physical therapy. (R. 322). He also
prescribed her with Vicodin Extra Strength (“ES”) and prohibited her from returning to work. (R.
322). Dr. Hughes noted, however, that Plaintiff could possibly return to a modified-duty job in
two months. (R. 322).
Plaintiff next presented to Dr. Hughes for treatment on March 20, 2007, for the first time
complaining of pain in her left shoulder. (R. 320). Dr. Hughes ordered an MRI to determine
whether the pain was the result of a torn rotator cuff. (R. 320).
At her next appointment with Dr. Hughes, on May 15, 2007, Plaintiff said that she felt
like something may have popped in her right shoulder, which had been bothering her a bit more

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lately. (R. 319). Plaintiff thought that she should undergo an MRI to evaluate her condition. (R.
319). Dr. Hughes disagreed. (R. 319). “I told her that with [her] track record even if she has a
retear I would not really recommend further surgical intervention,” Dr. Hughes noted. (R. 319).
With respect to Plaintiff’s left shoulder, Dr. Hughes noted that the recent MRI showed a small,
full-thickness tear without retraction. (R. 319). Although Dr. Hughes felt that Plaintiff would
probably benefit from surgery to mend the tear, he felt that she could not tolerate it well at the
time because she was still recovering from the surgery on her right side. (R. 319). Plaintiff also
reported that she had recently started to experience numbness and tingling in her right hand, and
Dr. Hughes ordered an EMG to get to the root of the problem, the results of which were normal.
(R. 319).
During Plaintiff July 3, 2007, appointment, Dr. Hughes noted that Plaintiff had probably
suffered another re-tear in her right shoulder, which led him to believe that she would never
return to normal function. (R. 317-18). He did not recommend further surgery, however, because
he did not think he could do anything else to improve on what had previously been done. (R.
318). With regard to Plaintiff’s left shoulder, Dr. Hughes reiterated his earlier diagnosis of a
small tear, which had probably been caused by Plaintiff’s increased reliance on her left side as a
result of her prior right shoulder surgeries. (R. 318). At this point, Plaintiff did not want to do
anything about the tear. (R. 318). Dr. Hughes continued her on Vicodin ES and referred her to a
pain management clinic for long-term treatment. (R. 318). He noted that Plaintiff had been on
narcotics for an extended period of time and may require them permanently to manage the pain
in her right shoulder. (R. 318).
Plaintiff presented to Zongfu Chen, M.D., of UPMC Pain Medicine, for an initial
examination on July 23, 2007. (R. 272). Plaintiff described experiencing pain, accompanied by a

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limited range of motion, mostly in her right shoulder, but she also reported recently having felt
increased pain on her left side. (R. 318). She said that the pain was constantly bothering her. (R.
272). She described it as “sharp, stabbing, shooting, throbbing, tingling, tender, cold, aching, and
constant.” (R. 272). When asked to rate the pain on a scale from one to ten, Plaintiff responded
that it was nine-to-ten out of ten. (R. 272). Motion, weather changes, lifting, lying, and inactivity
all made the pain worse. (R. 272). The pain was accompanied by weakness, numbness, and
tenderness in the bilateral shoulders and sometimes radiated into her bilateral arms. (R. 272).
Additionally, she described feeling some tingling in her hands. (R. 272). Plaintiff reported that
she had been taking Vicodin ES four-to-five times daily but to no avail. (R. 272). Upon
examination, Dr. Chen found that Plaintiff could use her right arm and her hand-grip strength
was normal. (R. 273). However, while she had a normal range of motion in her left shoulder, she
had a limited range of motion in her right shoulder as a result of the pain. (R. 273). She also
displayed significant tenderness on the bilateral shoulders, most noticeably on the right side. (R.
273). Even with only a small touch of the shoulder, Plaintiff appeared to be in extreme pain. (R.
273). Dr. Chen also found, however, that whenever Plaintiff was distracted, the pain was
reduced. (R. 273). In addition, a bilateral Patrick test was negative. (R. 273). After diagnosing
Plaintiff with bilateral shoulder pain and bilateral shoulder osteoarthritis, Dr. Chen prescribed
Plaintiff with Lodine, a Lidoderm patch, Flexeril, Vicodin, and a TENS unit. (R. 274).
When she was seen by Dr. Hughes on September 4, 2007, Plaintiff reported that the
prescriptions she had received from Dr. Chu had provided some relief, but her physical therapy
was not helping. (R. 316). Dr. Hughes told Plaintiff that she was a candidate for a left rotator cuff
repair. (R. 316). He also “explained to her, however, that given the problems that she has had on
the right shoulder, I do not know that I would ever anticipate that this would go on to be

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normal.” (R. 316).
Plaintiff had the surgery on her left shoulder on October 26, and a small, full-thickness
tear of the left supraspinatus tendon was repaired. (R. 337). At her follow-up two weeks later,
Plaintiff appeared to be doing well. (R. 315). She had a lot less pain on her left side than she had
on her right side. (R. 315). Dr. Hughes nevertheless kept Plaintiff out of work, ordered her to
undergo physical therapy on her left, and scheduled a follow-up for two months. (R. 315).
Dr. Hughes last saw Plaintiff on November 15, 2007, at which point her left shoulder was
doing relatively well. (R. 337). She had 80 degrees of active forward elevation and was still
progressing with her therapy, though she did continue to experience some pain. (R. 337). By
contrast, Dr. Hughes noted that “[t]he right side remained relatively dysfunctional.” (R. 337).
Dr. Hughes wrote the following narrative report dated February 4, 2008, in relation to a
pending workers’ compensation claim filed by Plaintiff:
As far as future treatment recommendations, for the right side I do not feel that
further surgical intervention or physical therapy would be of tremendous value.
We would continue with chronic pain management as I do not think that there is
much I can do to improve her. On the right side, I believe she has reached
maximum medical improvement. I would not allow her to use that arm for work.
Given the chronic pain she has, her easy fatigability, and significant limits of her
right arm, I do not feel she can go back to her previous employment. I feel that a
completely sedentary one-handed left-sided work may be something she can
consider in the future, although obviously given her recent shoulder surgery I do
not think that that is possible right now.
(R. 338).
Also in relation to her workers’ compensation claim, Plaintiff underwent an independent
medical examination with Steven E. Kann, M.D., on July 18, 2008. (R. 340). At the time of the
examination, Plaintiff was not working or receiving any treatment for her shoulder injuries, aside
from taking anti-inflammatories and a muscle relaxant. (R. 341). Plaintiff’s chief complaint was
pain and weakness in her right shoulder. (R. 341). She also had pain and weakness in her left
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shoulder. (R. 341). Dr. Kann’s examination of Plaintiff’s right shoulder revealed well-healed
arthroscopic portal sites and a well-healed incision. (R. 341). Plaintiff could actively forwardly
flex to 90 degrees, passively forwardly flex to 130 degrees, externally rotate to 40 degrees, and
internally rotate to L1. (R. 341). She had a positive Neer test, positive Hawkins test, 4/5 isolated
supraspinatus, 4/5 external rotation, 5/5 subscapularis push-off, negative speed test, and negative
Yergason test. (R. 342). There was no overt crepitus (i.e., grating, crackling, or popping sounds)
with shoulder range of motion and no pain at the acromioclavicular (“AC”) joint region or with
cross-chest adduction. (R. 342). Examination of the left shoulder also revealed well-healed
arthroscopic portal sites. (R. 342). Plaintiff had a positive Neer, positive Hawkins, 5-/5 isolated
supraspinatus strength testing, 5/5 external rotation, and subscapularis push-off. (R. 342).
Moreover, she could forwardly flex to 160 degrees, externally rotate to 45 degrees, and internally
rotate to T10. (R. 342). Plaintiff did not experience any pain to the touch at the AC joint with
cross-chest adduction. (R. 342).
Based on his examination, Dr. Kann opined that Plaintiff “achieved a state of maximum
medical improvement” in her right shoulder, so she would always require activity modifications
with respect to that shoulder in the future. (R. 342). Dr. Kann also opined that Plaintiff had
possible persistent rotator cuff pathology of the left side. (R. 379).
Beginning in either 2009 or 2010, Plaintiff began treating with Dominic Dileo, M.D., at
Uniontown Hospital. (R. 48). At the behest of Dr. Dileo, Plaintiff underwent x-rays on February
12, 2010, after complaining of right hip pain. (R. 408). The x-rays revealed osteoarthritis of the
right hip and right SI joints, but no acute fractures. Plaintiff testified that her hip pain seemed to
worsen after these x-rays were obtained, but she lacked “insurance to be able to afford the proper

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testing to see if . . . if I need a new hip . . . .”1 (R. 63).
2.

Consultative Examination

Plaintiff underwent a physiatric disability examination with Richard S. Kaplan, M.D., on
October 1, 2010. (R. 379). During the exam, Plaintiff described constantly feeling diffuse pain
throughout her arms, particularly in her shoulders. (R. 380). Dr. Kaplan found that Plaintiff had
moderate impingement signs in both shoulders, with no overhead motion or abduction of either
shoulder more than 90 degrees. (R. 380). Plaintiff otherwise displayed a normal range of motion
in her upper extremities. (R. 380). Likewise, she displayed normal range of motion, strength, and
sensation in her lower extremities, though she did report mild hip pain upon rotation. (R. 380).
Dr. Kaplan found that she had a non-antalgic gait (i.e., she did not walk in a way that suggested
she was avoiding pain). (R. 380). She was also able to get on and off the exam table without any
difficulty. (R. 380).
Based upon his examination, Dr. Kaplan completed a medical source statement (“MSS”),
in which he indicated that Plaintiff was unable to perform overhead activities with either arm and
that Plaintiff would be able to lift/carry two-to-three pounds frequently and ten pounds
occasionally. (R. 381). He found that Plaintiff had no limitations in sitting, walking, reaching,
handling, and fingering. (R. 381). However, according to Dr. Kaplan, Plaintiff was limited in her
ability to push/pull with her upper extremities; could only occasionally bend or kneel; and could
never stoop, crouch, balance, or climb.2 (R. 382). Dr. Kaplan also opined that Plaintiff should

1

The radiology report dated February 12, 2010, is the only medical record evidencing Plaintiff’s history of treatment
with Dr. Dileo, whom she began seeing in either 2009 or 2010, and also the only record referring to Plaintiff’s hip
impairment. (R. 408). Plaintiff’s counsel represented to the ALJ that he had requested all of the records from
Plaintiff’s treatment with Dr. Dileo, but Dr. Dileo’s office failed to comply with his request. (R. 48-49).
2

There is a slight inconsistency in Dr. Kaplan’s MSS. In his letter to the state agency, which precedes the check-box
RFC assessment form, Dr. Kaplan wrote that he “would recommend only occasional postural activities[,]” without
distinguishing among the various types of postural activities. (R. 380). In his check-box form, however, he clarified

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avoid heights. (R. 382).
3.

Evidence from State Agency Consultative Physician

Ellen Wyszomierski, M.D., a state agency consultative physician, completed a physical
RFC assessment form on October 22, 2010. (R. 401). Dr. Wyszomierski opined that Plaintiff
could lift up to ten pounds frequently; stand/walk about six hours in a full workday; and sit about
six hours in a full workday. (R. 401). She found that Plaintiff had a limited ability to push/pull in
her upper extremities and could occasionally balance, stoop, kneel, crouch, and climb ramps and
stairs. (R. 402). In Dr. Wyszomierski’s view, however, Plaintiff could never crawl or climb
ladders, ropes and scaffolds. (R. 402). Dr. Wyszomierski also opined that Plaintiff was limited in
her ability to reach in all directions (including overhead) and to handle (gross manipulation), but
unlimited in her ability to finger (fine manipulation) and feel (skin receptors). (R. 402).
4.

Evidence from State Agency Consultative Psychologist

On October 19, 2010, Manella Link, Ph.D., a state agency psychologist, reviewed
Plaintiff’s file and completed a mental RFC assessment form. (R. 396). Dr. Link noted that
Plaintiff has no history of treatment for mental health issues. (R. 399). Dr. Link also
acknowledged, however, that Plaintiff did attend special education classes while in school. (R.
399). Nevertheless, Dr. Link found that Plaintiff was not significantly limited in her ability to
remember locations and work-like procedures; to understand and remember very short, simple
instructions; to carry out very short, simple instructions; to carry out detailed instructions; to
sustain an ordinary routine without special supervision; to make simple, work-related decisions;
to interact appropriately with the general public; to ask simple questions or request assistance; to
be aware of normal hazards and take appropriate precautions; or to travel in unfamiliar places

that Plaintiff could occasionally bend and kneel, but never stoop, crouch, balance, and climb. (R. 382) (emphasis
added).

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and use public transportation. (R. 397-98). Dr. Link opined that Plaintiff was moderately limited
in her ability to maintain attention and concentration for extended periods; and to perform
activities within a schedule, maintain regular attendance, and to be punctual within customary
tolerances. (R. 397-98). Based on her review of all of the evidence, Dr. Link concluded that
Plaintiff could meet the basic mental demands of competitive work on a sustained basis despite
her impairments. (R. 399).
B.

Procedural History

Plaintiff filed an application for DIB on July 28, 2010, in which she claimed total
disability since February 28, 2006. (R. 137-40). She was last insured for the purposes of DIB on
June 30, 2011. (R. 24). Plaintiff’s claim was initially denied on October 27, 2010. (R. 97).
Plaintiff thereafter requested a hearing, which was held on November 14, 2011, before
Administrative Law Judge Karen B. Kostol (“ALJ”). (R. 44-94). Plaintiff was represented by
counsel and testified at the hearing. (R. 44-81). Larry Ostrowski, Ph.D., an impartial vocational
expert, also testified at the hearing. (R. 81-94).
On January 5, 2012, the ALJ issued a decision, in which she denied Plaintiff’s claim for
benefits. (R. 21). The ALJ’s decision became the final decision of the Commissioner on July 10,
2013, when the Appeals Council denied Plaintiff’s request for review. (R. 1).
On August 28, 2013, Plaintiff filed her Complaint in this Court in which she seeks
judicial review of the decision of the ALJ. (ECF No. 1). These cross-motions for summary
judgment then followed. (ECF Nos. 6, 9)
III.

Legal Analysis
A.

Standard of Review

The Act limits judicial review of disability claims to the Commissioner’s final decision.

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42 U.S.C. §§ 405(g), 1383(c)(3). If the Commissioner’s finding is supported by substantial
evidence, it is conclusive and must be affirmed by the Court. Id. § 405(g); Rutherford v.
Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The United States Supreme Court has defined
“substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation and
quotation marks omitted). It consists of more than a scintilla but less than preponderance of
evidence. Id.
When resolving the issue of whether an adult claimant is or is not disabled, the
Commissioner utilizes a five-step sequential evaluation. 20 C.F.R. §§ 404.1520 and 416.920
(1995). This process requires the Commissioner to consider, in sequence, whether a claimant (1)
is working, (2) has a severe impairment, (3) has an impairment that meets or equals the
requirements of a listed impairment, (4) can return to his or her past relevant work, and (5) if not,
whether he or she can perform other work. 42 U.S.C . § 404.1520; Newell v. Comm’r of Soc.
Sec., 347 F.3d 541, 545-46 (3d Cir. 2003) (quoting Burnett v. Comm’r of Soc. Sec., 220 F.3d
112, 118-19 (3d Cir. 2000)).
To qualify for disability benefits under the Act, a claimant must demonstrate that there is
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.” Fargnoli v. Massanari, 247
F.3d 34, 38-39 (3d Cir. 2001) (internal citation omitted); 42 U.S.C. § 423 (d)(1). This may be
done in two ways: (1) by introducing medical evidence that the claimant is disabled per se
because he or she suffers from one or more of a number of serious impairments delineated in 20
C.F.R. Regulations No. 4, Subpt. P, Appendix 1, see Heckler v. Campbell, 461 U.S. 458 (1983);
Newell, 347 F.3d at 545-46; Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004); or (2) in the

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event that claimant suffers from a less severe impairment, by demonstrating that she is
nevertheless unable to engage in “any other kind of substantial gainful work which exists in the
national economy . . . .” Campbell, 461 U.S. at 461 (citing 42 U.S.C. § 423 (d)(2)(A)).
In order to prove disability under the second method, a claimant must first demonstrate
the existence of a medically determinable disability that precludes plaintiff from returning to her
former job. Newell, 347 F.3d at 545-46; Jones, 364 F.3d at 503. Once it is shown that claimant is
unable to resume her previous employment, the burden shifts to the Commissioner to prove that,
given claimant’s mental or physical limitations, age, education and work experience, she is able
to perform substantial gainful activity in jobs available in the national economy. Rutherford, 399
F.3d at 551; Newell, 347 F.3d at 546; Jones, 364 F.3d at 503; Burns v. Barnhart, 312 F.3d 113,
119 (3d Cir. 2002).
Where a claimant has multiple impairments which may not individually reach the level of
severity necessary to qualify for Listed Impairment status, the Commissioner nevertheless must
consider all of the impairments in combination to determine whether, collectively, they meet or
equal the severity of a Listed Impairment. Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 502 (3d
Cir. 2009); 42 U.S.C. § 423(d)(2)(C) (providing that the “Secretary shall consider the combined
effect of all of the individual’s impairments without regard to whether any such impairment, if
considered separately, would be of such severity”).
B.

The ALJ’s Decision

As step one of the sequential evaluation process, the ALJ found that Plaintiff has not
engaged in substantial gainful activity since her alleged onset date. (R. 26). At step two, the ALJ
found that Plaintiff has the following severe impairments: “bilateral rotator cuff impingement
syndrome, status post multiple surgeries; osteoarthritis of the right hip and sacroiliac (SI) joint;

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borderline intellectual functioning (BIF); and a pain disorder.” (R. 26). None of these
impairments – alone or in combination – met or equaled any of the listed impairments, however.
(R. 26). As a result, the ALJ went on to assess Plaintiff RFC and determined that Plaintiff could
perform light work with the following non-exertional limitations:
[S]he must be allowed to sit or stand alternatively so long as not off task more
than 10% of the work day. Her job must accommodate the use of a cane for
balance and/or ambulation; [she] can lift up to 3 lbs frequently and 10 lbs
occasionally, can occasionally climb ladders, ropes or scaffolds, ramps or stairs,
balance, stoop, crouch, kneel, and crawl. The claimant must avoid concentrated
exposure to excessive wetness and humidity, vibration and must avoid all hazards
(e.g. moving machinery, unprotected heights); Said individual would have limited
use of the right upper extremity such that she would only be able to use the right
upper extremity to assist the left upper extremity and manipulate light objects;
limited to no overhead activities with either arm; capable of occasional fine
manipulation; limited to simple, routine and repetitive tasks with few, if any,
changes in the work setting; occasional interaction with the general public.
(R. 30).
At step four, the ALJ found that Plaintiff did not retain the RFC to return to her past
relevant work. (R. 35). However, based on the VE’s testimony, the ALJ found that Plaintiff
could perform jobs which exist in significant numbers in the national economy: storage facility
clerk (light, unskilled work); information clerk (light, unskilled work); surveillance systems
monitor (sedentary, unskilled work); telephone quotation clerk (sedentary, unskilled work); and
charge account clerk (sedentary, unskilled work). (R. 36). Accordingly, the ALJ held that
Plaintiff was not disabled within the meaning of the Act. (R. 37).
C.

Discussion

Plaintiff raises two related arguments in support of her motion for summary judgment.
First, she contends that the ALJ violated Social Security Rulings (“SSR”) 96-6p and 96-8p and
20 C.F.R. § 404.1527(f) by failing to explain why Dr. Kaplan’s opinions were not fully adopted,
even though the ALJ found them to be “fully consistent with the medical evidence of record” and
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entitled to “great weight.” Second, Plaintiff argues that the ALJ violated SSRs 96-6 and 96-8p by
failing to sufficiently explain why Dr. Hughes’ opinion regarding Plaintiff’s inability to use her
right arm was rejected. These arguments will be addressed seriatim.
1.

Did the ALJ err in failing to explain why Dr. Kaplan’s opinion was not
fully adopted?

An ALJ must support his RFC assessment with “‘a clear and satisfactory explication of
the basis on which it rests.’” Fargnoli, 247 F.3d at 41 (quoting Cotter v. Harris, 642 F.2d 700,
704 (3d Cir. 1981)). The ALJ’s explanation for her decision “should be as comprehensive and
analytical as feasible and, where appropriate, should include a statement of subordinate factual
foundations on which ultimate factual conclusions are based.” Id. (citing Baerga v. Richardson,
500 F.2d 309, 312 (3d Cir. 1974)); see also SSR 96–8p, 1996 WL 374184, at at *7 (July 2, 1996)
(explaining that the RFC assessment “must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts . . . and nonmedical evidence”).
Medical source statements, from treating and non-treating sources alike, must be considered as
part of this discussion. See id.; SSR 96–5p, 1996 WL 374183, at *2 (July 2, 1996). “If the RFC
assessment conflicts with an opinion from a medical source, the adjudicator must explain why
the opinion was not adopted.” Id.
With regard to Dr. Kaplan, the ALJ made the following statement:
The consultative examiner, Richard S. Kaplan, M.D. opined she is not able to
perform overhead activities with either arm and she is limited to lifting no more
than 3 pounds frequently or 10 pounds occasionally. Dr. Kaplan further opined
that she was limited to only occasional postural activities, and she should avoid
working at heights or machinery. The opinion of Dr. Kaplan was fully consistent
with the medical evidence and adequately considered her subjective complaints
and the combined effects of her impairments. Therefore, the undersigned gave Dr.
Kaplan’s opinion great weight.
(R. 34) (internal citations omitted). However, as Plaintiff points out, the ALJ, despite finding Dr.

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Kaplan’s opinions worthy of “great weight,” did not include some of the limitations found in Dr.
Kaplan’s statement in her RFC assessment. Specifically, Dr. Kaplan opined that Plaintiff would
never be able to stoop, crouch, balance, or climb. (R. 382). Yet, in her RFC assessment, the ALJ
found that Plaintiff could occasionally climb ladders, ropes, scaffolds, ramps, and stairs; balance;
stoop; and crouch. (R. 30). To be sure, the ALJ was not required to adopt the opinions in Dr.
Kaplan’s MSS in toto, even if she found the MSS, on the whole, to be persuasive. Rather, she
could have adopted some and rejected others, so long as she provided a sufficient explanation for
her decision. See SSR 96-5p, 1996 WL 374183, at *4 (July 2, 1996) (“Adjudicators must
remember, however, that medical source statements may actually comprise separate medical
opinions regarding diverse physical and mental functions, such as walking, lifting, seeing, and
remembering instructions, and that it may be necessary to decide whether to adopt or not adopt
each one.”).
The ALJ, however, did not even so much as acknowledge that she was adopting portions
of Dr. Kaplan’s MSS, while rejecting others – let alone offer any explanation for the discrepancy
between her RFC assessment and Dr. Kaplan’s report, which she purportedly found to be entitled
to “great weight.” By failing to do so, she ran afoul of SSR 96–8p.3 See, e.g., Lodwick v. Astrue,
No. 10–1394–SAC, 2011 WL 6253799, at *5 (D. Kan. Dec. 13, 2011) (remanding case where
ALJ asserted that he gave “substantial weight” to medical source’s opinions, yet, without

3

It is certainly plausible, in light of the slight internal inconsistency in Dr. Kaplan’s MSS, that the ALJ did not
believe that there was any discrepancy to resolve between her RFC assessment and Dr. Kaplan’s opinion. As
previously noted, in his letter to the state agency, Dr. Kaplan remarked that Plaintiff should be limited to “occasional
postural activities.” (R. 380). Further along in the report, however, Dr. Kaplan clarified that although Plaintiff could
occasionally perform some postural activities (bending and kneeling), she could never stoop, crouch, balance, or
climb. (R. 382). Perhaps the ALJ believed that by limiting Plaintiff to occasional postural activities across the board,
she was fully adopting Dr. Kaplan’s assessment—at least the version that appears in the initial part of his MSS.
Maybe the ALJ simply overlooked the subsequent portion of the form. Nevertheless, that the ALJ may have
misinterpreted or misunderstood Dr. Kaplan’s findings with regard to Plaintiff’s postural activities does not absolve
her of her error. Rather, it highlights the need for an ALJ to fully explain her findings. Otherwise, the district court is
left to engage in this sort of speculation about how an ALJ arrived at her decision.

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explanation, failed to include some of the limitations contained in the source’s MSS in his RFC).
Although the discrepancy between the ALJ’s RFC assessment and Dr. Kaplan’s opinion
was fairly minor, the Court cannot conclude that the ALJ’s failure to resolve the discrepancy was
harmless. Completely restricting Plaintiff from being able to climb probably would not have
significantly diminished the number of jobs that Plaintiff could perform, and thus, would not
have affected the ultimate disability determination. See SSR 83-14, 1983 WL 31254, at *2
(1983) (explaining that there are “[r]elatively few jobs in the national economy” that require the
use of ladders or scaffolding, and therefore the degree to which a claimant can climb has little to
no effect on the light, unskilled occupational base). The same cannot be said with regard to the
stooping and crouching restrictions, however. As the VE testified, if Plaintiff could never stoop
or crouch, she would not be able to perform the representative jobs that the VE had identified.
(R. 93). Indeed, SSR 83-14 makes clear that “to perform substantially all of the exertional
requirements of most sedentary and light jobs,” a person would need to be able to stoop at least
occasionally, though she probably would not need to be able to crouch. 1983 WL 3125, at *2. It
is likely, therefore, that the VE’s testimony would have differed had those additional restrictions
been imposed.
Accordingly, the case must be remanded so that the ALJ may consider the specific
postural limitations identified by Dr. Kaplan (i.e., no stooping, crouching, balancing, or
climbing), and either include them in her RFC assessment (and in turn pose a new hypothetical
question to the VE) or provide a sufficient explanation of her reasons for not adopting them.4

4

Although Plaintiff has not raised the issue, the Court notes that the ALJ made a similar error in addressing the
opinion of the state agency physician, Dr. Wyszomierski. In particular, Dr. Wyszomierski opined that Plaintiff could
occasionally balance, stoop, kneel, crouch, and climb ramps and stairs but never crawl or climb ladders, ropes and
scaffolds. (R. 402). The ALJ found that Dr. Wyszomierski’s opinion was “fully consistent with the medical evidence
of record” and entitled to “significant weight.” (R. 31). She never addressed, however, why she was not adopting
Wyszomierski’s opinion regarding Plaintiff’s inability to crawl or climb ladders, ropes, and scaffolds – limitations

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Furthermore, the Court agrees with Plaintiff that the ALJ improperly failed to explain how her
finding that Plaintiff required a cane to ambulate/balance was in any way consistent with her
finding that Plaintiff could climb ladders, ropes, and scaffolds. Common sense tells us that a
person who requires a cane to balance should probably not be permitted to engage in those
activities. If, upon remand, the ALJ continues to believe that Plaintiff can climb, despite her need
for a cane, she must provide a thorough explanation as to how those two things can co-exist.
2.

Did the ALJ err in failing to sufficiently explain why Dr. Hughes’ opinion
was “rejected”?

It is well settled that a treating physician’s opinion on issues not reserved for the
commissioner must be deemed “controlling” if it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the case record.” Fargnoli, 247 F.3d at 42; see SSR 96-5p, 1996 WL 374183
(clarifying how ALJ should treat medical opinions on issues reserved for the commissioner, e.g.,
the ultimate finding of disability and a claimant’s RFC). Consequently, “[a]n ALJ may reject a
treating physician’s opinion outright only on the basis of contradictory medical evidence,”
though she “may afford a treating physician’s opinion more or less weight depending upon the
extent to which supporting explanations are provided.” Plummer v. Apfel, 186 F.3d 422, 429 (3d
Cir. 1999) (citing Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir. 1985)). If the ALJ decides to
reject a treating physician’s opinion, or accord it less weight, she must sufficiently explain her
reasons for doing so. See Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994); SSR 96-2P, 1996 WL
374188, at *5.
In this case, the ALJ considered Dr. Hughes’ opinion regarding Plaintiff’s limited ability
to use her upper extremities, but decided that it could not be accorded “great weight because it it
not contained in her RFC assessment. On remand, therefore, the ALJ must square this discrepancy, in addition to
that with respect to the opinion of Dr. Kaplan.

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is inconsistent with the totality of the evidence in the file.” (R. 34). She further concluded that
Dr. Hughes had “overestimate[d] . . . the severity of the claimant’s functional restrictions. For
instance, [Dr. Hughes] stated that the claimant was unable to use her right arm for work. This
observation is not consistent with all of the medical and non-medical evidence in the claims
folder.” (R. 34). Similarly, the ALJ opined that Dr. Hughes’ opinion was “without substantial
support from the other evidence of record, which rendered it less persuasive.” (R. 34). She also
concluded that Dr. Hughes’ assessment that Plaintiff retained the capacity for sedentary, onehanded left-sided touched on issues reserved for the Commissioner, and thus was not worthy of
receiving significant weight.
The problem with the ALJ’s treatment of Dr. Hughes’ opinion is that, as Plaintiff
contends, she did not actually cite to the medical evidence in the record that purportedly
contradicted Dr. Hughes’ point of view. The Court recognizes that ultimately it is the ALJ’s duty
– and hers alone – to determine a claimant’s RFC and that a treating source’s opinion on that
issue is not entitled to “special significance.” SSR 96-5p, 1996 WL 374183. Be that it is may,
such an opinion must still be considered and specific reasons, amply supported by citations to the
record, must be offered before deciding that the opinion is not entitled to much weight. Id.
Baldly concluding that a source’s opinion is inconsistent with or unsupported by the record is not
sufficient. See Kahle v. Comm’r of Soc. Sec., 845 F. Supp. 2d 1262, 1272 (M.D. Fla. 2012)
(explaining that “conclusory statements by an ALJ to the effect that an opinion is inconsistent
with or not bolstered by the medical record are insufficient to show an ALJ’s decision is
supported by substantial evidence unless the ALJ articulates factual support for such a
conclusion”). On remand, the ALJ must adhere to these requirements and, in re-assessing the
weight to be given to Dr. Hughes’ opinion, specifically cite to medical evidence in the record

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that contradicts or weakens Dr. Hughes’ findings as to Plaintiff’s inability to use her right arm
for work.
IV.

Conclusion
Under the Social Security regulations, a federal district court, upon review of a decision

of the Commissioner which denied benefits, has three options. It may affirm the decision, reverse
the decision and award benefits directly to a claimant, or remand the matter to the Commissioner
for further consideration. 42 U.S.C. § 405(g) (sentence four). In light of an objective review of
all of the evidence in the record, the Court finds that the ALJ failed to support her decision with
substantial evidence and that the decision must be remanded to the ALJ for further consideration
consistent with this Opinion. The Commissioner’s decision in the present case may, however,
ultimately be correct and nothing hereinabove stated should be taken to suggest that the Court
has concluded otherwise.
For these reasons, Plaintiff’s motion for summary judgment will be GRANTED insofar
as it requests a remand for further consideration in accordance with sentence four of 42 U.S.C. §
405(g); Defendant’s motion for summary judgment will be DENIED; and the decision of the
ALJ will be VACATED and REMANDED for further consideration consistent with this
Opinion. An appropriate order follows.

McVerry, J.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
)
)
) 2:13-1203
)
)
)
)
)
)
)

PAMELA M. CASSIDY,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

ORDER
AND NOW, this 16th day of May, 2014, in accordance with the foregoing Memorandum
Opinion, it is hereby ORDERED, ADJUDGED, and DECREED that:
1.

Defendant’s Motion for Summary Judgment is DENIED.

2.

Plaintiff’s Motion for Summary Judgment is GRANTED insofar as it requests
remand to the Commissioner for further proceedings consistent with the foregoing
Memorandum Opinion pursuant to the fourth sentence of 42 U.S.C. § 405(g); and
DENIED insofar as it requests that benefits be awarded.

3.

The Clerk will docket this case closed.
BY THE COURT:
s/ Terrence F. McVerry
United States District Judge

cc:

George E. Clark
Email: [e-mail]
Christy Wiegand
Email: [e-mail]

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