KUTZER v. COLVIN
MEMORANDUM OPINION that (ECF No. 17 ) Plaintiffs motion for summary judgment be denied and that the Acting Commissioners (ECF No. 19 ) motion for summary judgment be granted. Signed by Magistrate Judge Lisa Pupo Lenihan on 03/28/2017. (jmb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NANCY A. BERRYHILL,1
Acting Commissioner, Social Security
Civ. No. 16-1012
Magistrate Judge Lisa Pupo Lenihan
Plaintiff Scott Kutzer brings this action pursuant to 42 U.S.C. § 1383(c)(3), seeking
judicial review of the final decision of Nancy A. Berryhill, Acting Commissioner of Social
Security, which denied his application for Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act (“Act”), 42 U.S.C. §§ 401-433. The matter is before this Court on crossmotions for summary judgment (ECF Nos. 17, 19). The record has been developed at the
administrative level.2 For the reasons set forth below, Plaintiff’s motion will be denied, the
Acting Commissioner’s motion will be granted, and final judgment will be entered in favor of
the Acting Commissioner and against Plaintiff.
Statement of the Case
Plaintiff filed an application for DIB benefits on May 22, 2013, alleging disability as of
Carolyn W. Colvin was Acting Commissioner of Social Security when this action was filed against her in her
official capacity. On January 23, 2017, Nancy A. Berryhill succeeded Colvin as Acting Commissioner. Pursuant to
Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted as the defendant in this action.
All references to the administrative record, (ECF No. 7), will be cited in the following format: (R. at xx).
August 3, 2011, due to pain in his right and left knees and his right ankle (R. at 134-35, 155).
The agency initially denied his application on August 8, 2013, so he filed a request for an
administrative hearing, which was held on November 12, 2014, before Administrative Law
Judge (“ALJ”) David J. Kozma (R. at 34-57, 70-74, 95). Plaintiff appeared with counsel and
testified at the hearing, as did an impartial vocational expert (R. at 34-57).
In a decision dated January 29, 2015, the ALJ held that Plaintiff was not “disabled”
within the meaning of the Act and therefore denied his application for DIB. (R. at 29-30). After
the Appeals Council denied Plaintiff’s request for review, he commenced this action on July 7,
2016 (ECF Nos. 1, 3). Plaintiff filed a motion for summary judgment, with a brief in support, on
February 10, 2017 (ECF Nos. 17, 18). The Commissioner filed a motion for summary judgment,
with a brief in support, on March 9, 2017 (ECF No. 19, 20). The cross-motions are ripe for
Plaintiff was born on December 13, 1966, making him 44 years old as of his alleged
onset date and 47 years old as of the date of the hearing (R. at 38, 134). He graduated from high
school, attended some community college, and has past relevant work experience as a hospital
housekeeper (R. at 52, 156, 157).
Plaintiff was involved in a head-on collision on August 3, 2011 (R. at 37-38). He severely
injured his right knee and right ankle in the accident and had to undergo surgery on his ankle,
after which he spent approximately two months in a nursing rehabilitation facility (R. at 38, 42).
He has not worked since (R. at 40).
In the wake of the accident, Plaintiff’s “right ankle hurts all the time.” (Id.). The pain is
typically steady, aching, and accompanied by swelling, some days more than others (Id.). He
spends “a good part of the day” – at least a “couple” of hours – sitting in a recliner with his leg
elevated (R. at 41). He also ices his ankle every day (R. at 40-42). He does not use a cane, but he
does wear a brace on his right knee (R. at 51). In addition to the pain in his right ankle and knee,
he more recently started to experience pain in his left knee because he favors his left side when
walking (R. at 45).
Plaintiff testified that he cannot bend, kneel, stop, or engage in other postural maneuvers.
As a result, he cannot help with household chores such as sweeping and the like (R. at 41-42).
He also testified that he cannot do outdoor activities with his children as he once could (R. at 39).
However, he can drive “short distances” of approximately 45 minutes to an hour (R. at 41).
Following the aforementioned accident, Plaintiff was taken to the emergency room with
an open fracture of his right ankle (R. at 393). He also had a broken right patella (R. at 395). An
external fixator was implanted to repair his broken ankle, and he was fitted with an external
brace for his right knee, which was deemed non-operative (Id.). His orthopedic surgeon, Gary
Gruen, M.D., noted at Plaintiff’s first follow-up appointment that he would not be able to return
to work for approximately one year due to his injuries (R. at 242). A week after the surgery,
Plaintiff was admitted to a skilled nursing facility, where he spent approximately two months (R.
at 241). While there, he started to undergo physical therapy and showed modest improvement in
his ability to ambulate (R. at 206-12).
On October 6, 2011, Plaintiff had his two-month follow-up with Dr. Gruen (R. at 237).
At that time, he had still not been allowed to bear any weight on his right side (Id.). His range of
motion in his knee was 0 to 75 degrees, while his ankle range of motion was limited (Id.). Dr.
Gruen ordered Plaintiff to undergo an MRI to determine weight-bearing status and advised him
of the risks of non-union, malunion, chronic pain, stiffness, avascular necrosis, and the possible
need for a future operation (Id.).
On November 14, 2011, Plaintiff began to undergo outpatient physical therapy (R. at
347). Around that same time, he saw Dr. Gruen for another follow-up, and Dr. Gruen noted that
Plaintiff was “doing well” (R. at 236). Plaintiff had “[n]o complaints of pain” and asked Dr.
Gruen whether he could return to work (Id.). Upon examination, Plaintiff displayed active knee
range of motion from 0 to 95 degrees, but limited ankle range of motion (Id.). Dr. Gruen
instructed Plaintiff that he could remove his knee brace and “continue 50 % weightbearing in his
CAM boot” (Id.). He also noted that Plaintiff could return to work on November 28, but he
would have to be limited to “part-time sedentary duties only” (Id.).
In the ensuing months, Plaintiff continued to see his physical therapist three days per
week. On November 22, 2011, Plaintiff’s physical therapist noted that Plaintiff had just seen his
bone specialist, who approved him for full weight-bearing status without a boot and without an
assistive device as tolerated (R. at 342). On December 5, 2011, the therapist noted that Plaintiff
“continue[d] to make improvements” and was “[w]alking over the weekend with less pain” (R. at
337). The following week, Plaintiff reported pain at “2/10” and “was able to ambulate without
[a] walker and boot [for the] entire 60 minutes’ worth of exercise” (R. at 333). It was further
noted that Plaintiff’s endurance was “improving each session.” (Id.). The next day, Plaintiff
reported less pain but continued to have problems with “endurance and distance with
weightbearing” (R. at 331). The next week, Plaintiff’s therapist instructed him “to try to walk
outside of home for short trips with [a] walker.” (R. at 329). On January 3, 2012, Plaintiff
reported that “[h]ad some extra pain after walking [a] long period of time in the mall” (R. at
313). Two days later, he reported that his “signs and symptoms ha[d] decreased since [his] last
treatment session,” while he “continue[d] to see endurance gains” (R. at 311). His therapist noted
that he was “progressing toward goals approximately . . . . [He] continue[d] to perform exercises
that mimic walking on uneven surfaces with distractions” (Id.).
Around this time, there was a question as to whether Plaintiff’s insurance would continue
to cover his physical therapy. In a progress noted dated January 10, 2012, Plaintiff’s physical
therapist noted that Plaintiff “ha[d] made excellent progress” (R. at 269). “His strength [was] 5/5
for all motions and he no longer experienced the buckling of the right knee” (Id.). Furthermore,
“[h]e [was] walking with minimal pain[,]” though he “continue[d] to have an antalgic gait with
increased stance time on the right foot that [was] related to pain in the heel with weight shifts”
(Id.). And while his range of motion had improved, he continued to have “limitations in
dorsiflexion to about 5 degrees and eversion to about 8 degrees.” (Id.). The therapist noted that
she had recently begun working with Plaintiff on “work specific activities and ADL
advancement such as walking on uneven surfaces, squatting, curbs, [and] carrying objects over
[an] obstacle course” (Id.). She recommended that Plaintiff undergo six more weeks of therapy,
after which point she saw “no physical reason” why he “would be unable to return to work” (Id.).
On January 19, 2012, Plaintiff followed up with Dr. Gruen, who noted that Plaintiff was
“ambulating in normal shoes” and did not “have any pain with ambulation in his ankle.” (R. at
235). “On examination,” Dr. Gruen observed, Plaintiff “ambulate[d] into the clinic without
antalgia[,]” though his range of motion in his ankle was limited (Id.). Dr. Gruen advised Plaintiff
that he might be developing signs of avascular necrosis and recommended that he undergo an
On January 20, 2012, Plaintiff was seen for what was supposed to be his last therapy
session, as his insurance company had denied continued coverage (R. 299). It was noted that he
had recently stubbed his toe “going up steps . . . too quickly” (Id.).
In a progress note from Plaintiff’s physical therapist dated February 6, 2012, it was again
noted that Plaintiff had “made excellent progress” since his surgery (R. at 270). The therapist
recommended that Plaintiff receive four more weeks of therapy, with two therapy sessions a
week, after which time he would likely be able to return to work (Id.).
Plaintiff’s insurance company allowed him to continue physical therapy in April 2012 (R.
at 297). On May 7, 2012, Plaintiff reported “pain at 3/10 with edema as he ha[d] been on his feet
for an extended period of time” (R. at 289). On May 17, 2012, Plaintiff “complained of an
increase of stiffness and pain . . . after mowing grass and working in his shed” (R. at 283). The
next week, he reported mild improvement in ambulation, but he continued to have limited range
of motion in his ankle and “[l]imits in activity over [an] 8 hour period” (R. at 279). On June 5,
2012, he reported that he was “doing more things around the house that cause[d] him to stand on
his feet for longer periods of time,” which in turn “cause[d] him a slight increase in pain around
the lateral ankle.” (R. at 271).
At the end of June, Plaintiff had another follow-up with Dr. Gruen, who reported that
Plaintiff was “doing well with occasional mild pain” (R. at 233). According to Dr. Gruen’s notes,
Plaintiff was “trying to return to work,” and Dr. Gruen advised him that he could do so and filled
out the appropriate paperwork specifying restrictions (Id.).
When Plaintiff was next seen by Dr. Gruen on December 13, 2012, Plaintiff reported that
he “continue[d] to have aches and pains worse with cold weather that [was] aggravated by
excessive activity” (R. at 230). In particular, he had “helped a friend doing some routine
housework for 4 hours and then was in severe pain in the following 2 days” (Id.). He also
reported that he had been exercising at the gym “as much as he [could] to strengthen his right
leg,” but he was “very limited with motion secondary to pain” (Id.). Following his examination,
Dr. Gruen noted that Plaintiff was “doing relatively well” (Id.). However, “[b]ecause of his
severe subtalar dislocation, he [was] unable to invert his foot and [was] therefore expected to
have pain with prolonged activity” (Id.). Dr. Gruen also remarked that Plaintiff would likely
need fusion surgery in the future (Id.). Regarding Plaintiff’s ability to return to work, Dr. Gruen
noted, “He continues to be unable to go to work secondary to his disability. We anticipate that
this will be permanent. He was formerly a housekeeper at Latrobe Hospital and the severity of
this injury will preclude him from returning to work” (Id.).
Plaintiff returned to Dr. Gruen’s office on October 17, 2013, at which time he reported
that he still “had continued pain [in his right ankle] especially with weightbearing and long
periods of standing” (R. at 470). He continued to have pain in his right knee, as well (Id.).
“Given the severity of his injury,” Dr. Gruen explained, “[Plaintiff] [was] doing well,” albeit he
did have “continued deformity” which rendered him unable to work (Id.). Upon examination,
Plaintiff displayed a decreased range of motion with some pain; he also had tenderness to
palpation of the lateral aspect of his right foot and with range of motion of the ankle joint (R. at
470). X-rays showed bony proliferation below the medial malleolus (Id.). While no factures were
noted, there was evidence of degenerative joint disease to the ankle and subtalar joints, as well as
the calcaneal cuboid joint (Id.). In the “Plan” portion of the note, Dr. Gruen remarked that
Plaintiff “remain[ed] disabled and . . . unable to return to work for the deformity as well as pain .
. . to his right lower extremity” (Id.). He also noted that Plaintiff’s condition was unlikely to
improve (Id.). For the time being, “[Plaintiff] will continue to do things that allow him to go
about his daily activities,” Dr. Gruen explained, “and at some point,” he would likely need a
fusion at the ankle and subtalar joints (Id.).
At his three-year follow-up appointment with Dr. Gruen in August 2014, Plaintiff
reported that he had started to experience left knee pain, but otherwise had “been doing well” (R.
at 476). Dr. Gruen noted, upon examination, that Plaintiff had “[m]ild tenderness about the
ankle” (Id.). X-rays “show[ed] decreased tibiotalar joint space with heterotopic bone on [the]
medial side” (Id.). With respect to his left knee, x-rays showed no evidence of injury. (Id.).
Plaintiff was diagnosed with patellofemoral disease and instructed to perform strengthening
The ALJ’s Decision
After a consideration of the foregoing evidence, the ALJ, applying the five-step
sequential evaluation process, determined that Plaintiff is not “disabled.” The ALJ found that
Plaintiff has the following “severe” impairments: “arthritis of the right knee and right ankle,
status post surgical repair following a motor vehicle accident and osteopenia.” (R. at 24). At step
three, the ALJ considered whether these impairments, alone or in combination, met the
requirements “of any listing, paying particular attention . . . to Listing 1.02.”3 (Id.). While the
Listing 1.02 provides:
Major dysfunction of a join(s) (due to any cause): Characterized by gross
anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis,
instability) and chronic joint pain and stiffness with signs of limitation of motion
or other abnormal motion of the affected joint(s), and findings on appropriate
medically acceptable imaging of joint space narrowing, bony destruction, or
ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip,
knee, or ankle), resulting in inability to ambulate effectively, as defined in
ALJ noted that Plaintiff “does have impairment of the right knee and ankle, physical therapy
notes from 2012 show the claimant is able to ambulate effectively without the use of any
assistive device” (Id.). Thus, the criteria of Listing 1.02 were not met. The ALJ proceeded to
formulate Plaintiff’s residual functional capacity (“RFC”), concluding that he has the RFC “to
perform light work as defined in 20 CFR 404.1567(b) except [Plaintiff] would require a sit/stand
option” (Id.). At step five, the ALJ concluded, on the basis of the VE’s testimony, that Plaintiff
could perform jobs that exist in significant numbers in the national economy – namely,
photocopy machine operator, folding machine operator, and retail marker – and, thus, is not
“disabled” within the meaning of the Act (R. at 30).
Standard of Review
This Court’s review is plenary with respect to all questions of law. Schaudeck v. Comm’r
of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999). With respect to factual issues, judicial
review is limited to determining whether the Commissioner’s decision is “supported by
substantial evidence.” 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). The
Court may not undertake a de novo review of the Commissioner’s decision or re-weigh the
evidence of record. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986).
Congress has clearly expressed its intention that “[t]he findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §
405(g). 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
B. Involvement of one major peripheral joint in each upper extremity (i.e.,
shoulder, elbow, or wrist-hand), resulting in inability to perform fine and
gross movements effectively, as defined in 1.00B2c.
20 C.F.R., Subpt. P, App. 1, § 1.02.
conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks omitted).
As long as the Commissioner’s decision is supported by substantial evidence, it cannot be set
aside even if this Court “would have decided the factual inquiry differently.” Hartranft v. Apfel,
181 F.3d 358, 360 (3d Cir. 1999). “Overall, the substantial evidence standard is a deferential
standard of review.” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).
In order to establish a disability under the Act, a claimant must demonstrate a “medically
determinable basis for an impairment that prevents him from engaging in any ‘substantial gainful
activity’ for a statutory twelve-month period.” Stunkard v. Sec’y of Health & Human Servs., 841
F.2d 57, 59 (3d Cir. 1988). A claimant is considered to be unable to engage in substantial gainful
activity “only if his physical or mental impairment or impairments are of such severity that he is
not only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy.” 42 U.S.C. §§ 423(d)(2)(A).
To support his ultimate findings, an ALJ must do more than simply state factual
conclusions. The ALJ must consider all medical evidence contained in the record and provide
adequate explanations for disregarding or rejecting evidence. Weir on Behalf of Weir v. Heckler,
734 F.2d 955, 961 (3d Cir. 1984); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). This entails
making specific findings of fact. Stewart v. Sec’y of Health, Educ. & Welfare, 714 F.2d 287, 290
(3d Cir. 1983).
The Social Security Administration (“SSA”), acting pursuant to its legislatively-delegated
rulemaking authority, has promulgated a five-step sequential evaluation process for the purpose
of determining whether a claimant is “disabled” within the meaning of the Act. The United
States Supreme Court has summarized this process as follows:
If at any step a finding of disability or non-disability can be made, the SSA will
not review the claim further. At the first step, the agency will find nondisability
unless the claimant shows that he is not working at a “substantial gainful
activity.” [20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find
nondisability unless the claimant shows that he has a “severe impairment,”
defined as “any impairment or combination of impairments which significantly
limits the claimant’s physical or mental ability to do basic work activities.” §§
404.1520(c), 416.920(c). At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies. §§ 404.1520(d), 416.920(d). If the claimant’s impairment is not on the
list, the inquiry proceeds to step four, at which the SSA assesses whether the
claimant can do his previous work; unless he shows that he cannot, he is
determined not to be disabled. If the claimant survives the fourth stage, the fifth,
and final, step requires the SSA to consider so-called “vocational factors” (the
claimant’s age, education, and past work experience), and to determine whether
the claimant is capable of performing other jobs existing in significant numbers in
the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).
Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (footnotes omitted).
In an action in which review of an administrative determination is sought, the agency’s
decision cannot be affirmed on a ground other than that actually relied upon by the agency in
making its decision. Sec. & Exch. Comm’n v. Chenery Cor, 332 U.S. 194, 196 (1947). The Third
Circuit Court of Appeals has recognized the applicability of this rule in the Social Security
disability context. Fargnoli v. Massanari, 247 F.3d 34, 44, n.7 (3d Cir. 2001). Thus, the Court’s
review is limited to the four corners of the ALJ’s decision. Cefalu v. Barnhart, 387 F.Su2d 486,
491 (W.D. Pa. 2005).
In moving for summary judgment, Plaintiff argues that the ALJ (A) failed to properly
consider whether he met Listing 1.06; (B) failed to include “uncontradicted limitations” in his
RFC assessment; and (C) failed to analyze relevant medical evidence in his decision. These
arguments will be addressed seriatim.
Plaintiff maintains that the ALJ should have addressed whether he satisfied Listing 1.06
“based not only on evidence of a double non-union in Plaintiff’s right lower extremity, but also
on the fact that the DDS analysis initially raised consideration of Listing 1.06 during the
application process.” (ECF No. 18 at 14).
While the ALJ did not expressly cite Listing 1.06,4 he did note that Plaintiff did not
satisfy the criteria “of any listing.” (R. at 24). And in analyzing whether Plaintiff met the criteria
of Listing 1.02, which like Listing 1.06 requires proof of an inability to “ambulate effectively,”
the ALJ found that Plaintiff “is able to ambulate effectively without the use of any assistive
device.” (Id.). This conclusion is supported by substantial evidence.
Listing 1.06 is satisfied if the claimant has a “[f]racture of the femur, tibia, pelvis, or one
or more of the tarsal bones” along with “A. Solid union not evident on appropriate medically
acceptable imaging and not clinically solid; and B. Inability to ambulate effectively, as defined in
1.00B2b, and return to effective ambulation did not occur or is not expected to occur within 12
months of onset.” 20 C.F.R., Subpt. P, App. 1, § 1.06. “Inability to ambulate effectively means
an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously
To the extent Plaintiff believes he is entitled to a remand because the ALJ did not expressly cite
Listing 1.06, he is mistaken. The Third Circuit has held that a “bare conclusory statement that an
impairment did not match or is not equivalent to, a listed impairment [is] insufficient” to satisfy
the ALJ’s burden at step three. Jones v. Barnhart, 364 F.3d 501, 504 (3d Cir. 2004) (citing
Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000)). However, “Burnett
does not require the ALJ to use particular language or adhere to a particular format in conducting
his analysis. Rather, the function of Burnett is to ensure that there is sufficient development of
the record and explanation of findings to permit meaningful review.” Id. The ALJ’s decision in
this case, read as a whole, is more than sufficient to permit the Court to engage in the type of
meaningful review Burnett requires. He considered the evidence, evaluated it in light of the
requirements of Listing 1.02 – which overlap, in pertinent part, with the requirements of Listing
1.06 – and gave a reasoned basis for his conclusion. While a citation to Listing 1.06 would have
made for a clearer record, the ALJ was not required to go any further than he did.
with the individual’s ability to independently initiate, sustain, or complete activities.” Id. §
1.00(B)(2)(b)(1) (emphasis added). It is “defined generally as having insufficient lower
extremity functioning . . . to permit independent ambulation without the use of a hand-held
assistive device(s) that limits the functioning of both upper extremities.” Id. “[E]xamples of
ineffective ambulation include, but are not limited to, the inability to walk without the use of a
walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or
uneven surfaces, the inability to use standard public transportation, the inability to carry out
routine ambulatory activities, such as shopping and banking, and the inability to climb a few
steps at a reasonable pace with the use of a single hand rail.” Id. § 1.00(B)(2)(b)(2). Conversely,
“[t]he ability to walk independently about one’s home without the use of assistive devices does
not, in and of itself, constitute effective ambulation.” Id.
As the ALJ found, it is beyond dispute that Plaintiff does not require a cane to assist with
ambulation.5 He can also walk up and down stairs, though he only does so once or twice a day.
(R. at 48). Moreover, although Plaintiff no doubt continues to experience the lingering effects of
his accident and the surgery that followed, there is no indication in the record that he experiences
any of the “examples of ineffective ambulation” set forth in the regulations. Thus, the ALJ did
not commit reversible error at step three.
Plaintiff argues that the ALJ should not have relied on the physical therapy notes documenting
his progress because “physical therapy notes alone are not an acceptable medical source[.]” (ECF
No. 18 at 15). The Court disagrees. While a physical therapist might not be an “acceptable
medical source,” that does not mean that treatment notes from a physical therapist are not
relevant medical evidence that the ALJ must consider in rendering his decision. See Hatton v.
Comm’r of Soc. Sec. Admin., 131 F. App’x 877, 878 (3d Cir. 2005) (explaining that although a
“physical therapist is not an acceptable medical source,” “[s]tatements from a physical therapist
are entitled to consideration as additional evidence”). At any rate, Plaintiff’s ability to ambulate
effectively is not only documented in the physical therapy notes, but also in the notes from Dr.
Plaintiff next argues that remand is required because the ALJ’s RFC assessment failed to
include environmental and postural limitations found by Dr. Armanious and the state agency
examiner and because “the ALJ failed to define the intervals of his sit-stand option.”
Environmental and Postural Limitations
With regard to environmental restrictions, Dr. Armanious opined that Plaintiff could
never tolerate exposure to unprotected heights, moving mechanical parts, humidity and wetness,
extreme cold, extreme heat, and vibrations; and could only occasionally tolerate exposure to
operating a motor vehicle; dust, odors, fumes and pulmonary irritants; and loud noises. (R. at
462). Similarly, the state agency examiner noted that Plaintiff should “[a]void even moderate
exposure” to hazards such as machinery and heights. (R. at 65).
As Plaintiff points out, the ALJ made no specific reference to these limitations. But even
the Court were to conclude that the ALJ’s failure to do so amounts to an error, it would be a
harmless one because “the environmental restrictions placed on [P]laintiff, including the
restriction on being around dangerous machinery and on unprotected elevations, are not
restrictions that have a significant effect on work at any exertional level, let alone the light
exertional level.” Wood v. Barnhart, No. CIV.05-0432 SLR, 2006 WL 2583097, at *12 (D. Del.
Sept. 7, 2006). Indeed, Plaintiff has not pointed to anything that suggests that the three jobs
identified by the VE require exposure to any environmental hazards.
As for postural limitations, Dr. Armanious opined that Plaintiff could never climb stairs,
ramps, ladders, or scaffolds; balance; stoop; kneel; crouch; or crawl. (R. at 461). The ALJ
acknowledged these limitations but found that they were “not consistent with the objective
evidence in the record.” (R. at 28). In particular, the ALJ explained:
Rehab notes show the claimant was independent in transfers and in balancing
before he was discharged home in October 2011. He was able to climb stairs,
though he chooses to limit the number of times per day that he does so, secondary
to his reported pain. Moreover, the claimant has no musculoskeletal impairment
that would limit stooping, which is considered to be a postural activity involving
bending the head and body forward and down. Indeed, this movement is integral
to the action of sitting down, and the claimant reported that he was able to do so,
since he sits down in his recliner in order to elevate his leg and he acknowledged
that he was able to drive, again involving assuming a seated position in his
vehicle. Since the remainder of the described limitations appear to be those that
the claimant reported to Dr. Armanious and not those observed independently, the
undersigned gives little weight to her opinion.
(R. at 28-29).
These are legally sufficient reasons for discounting Dr. Armanious’s opinions about
Plaintiff’s claimed postural limitations, and none of the arguments advanced by Plaintiff
convince the Court otherwise. Contrary to what Plaintiff argues, the ALJ did not improperly use
“rehab” observations by a “non-medical source (a physical therapist assistant)” to reject opinions
from a consultative examiner. What the ALJ did was determine that, in light of the other
evidence in the record – specifically those observations in the treatment notes – Dr. Armanious’s
opinions were not well supported and thus not entitled to significant weight. This was entirely
proper. The Court likewise rejects Plaintiff’s contention that the ALJ somehow misapplied the
definition of stooping. In reaching an RFC assessment, the ALJ is required to consider a
claimant’s activities of daily living, such as his ability to get in and out of a chair and a car. See
20 C.F.R 416.920a(c)(3). Insofar as those activities belied Plaintiff’s descriptions of his
limitations, the ALJ was entitled to discount Plaintiff’s testimony.
Moving on, in contrast to Dr. Armanious, the state agency examiner found that Plaintiff
could occasionally climb, stoop, etc. (R. at 64). The ALJ, for his part, purported to give
“considerable weight to the opinion of the state agency medical consultant.” (R. at 29). Yet, he
did not include any postural limitations in his RFC assessment. Nor did he acknowledge that the
state agency examiner had imposed such limitations. The lack of explanation for why the ALJ
chose not to incorporate these limitations is confounding. Certainly, the ALJ has the authority to
adopt portions of an opinion and reject others. But he must at least explain why. See Hawley v.
Colvin, No. 1:13-CV-296, 2014 WL 3747686, at *7 (W.D. Pa. July 29, 2014) (explaining that
the ALJ portions of an opinion while rejecting other as long as he “explain[ed] why the opinions
that were inconsistent with his RFC assessment were not adopted”).
Nevertheless, this does not provide grounds for remand because any error on the ALJ’s
part was harmless. Social Security Ruling 85–15 says that some limitation in climbing and
balancing “would not ordinarily have a significant impact on the broad world of work.” SSR 85–
15, 1985 WL 56857, at *6 (S.S.A. 1985). Moreover, if a person can stoop or crouch
occasionally, “the sedentary and light occupational base is virtually intact.” Id. Likewise,
crawling and kneeling are “relatively rare activit[ies] even in arduous work,” and limitations on
these activities “would be of little significance in the broad world of work.” Id. Thus, even if the
ALJ would have adopted the state agency examiner’s findings wholesale, Plaintiff’s occupational
base would not have been eroded and the ALJ’s ultimate conclusion would have been the same.
Plaintiff also contends that the ALJ erred by “fail[ing] to define the intervals between
sitting and standing,” but the Court does not agree. “Social Security Ruling 96–9p requires the
ALJ to be specific as to frequency of an individual’s need to alternate between sitting and
standing when determining whether a claimant’s limitations significantly erode the full range of
sedentary work that might be available to the claimant.” Hodge v. Barnhart, 76 F. App’x 797,
800 (9th Cir. 2003). But that section only applies to sedentary work. Tschannen v. Colvin, No.
15-182, 2015 WL 7012531, at *2 (W.D. Pa. Nov. 12, 2015). “The applicable regulation, SSR
83–12, does not require an ALJ to specify the frequency of the sit/stand option.” Id. (citing
Hanbey v. Astrue, 506 F. App’x 615, 617 (9th Cir. 2013)). When the ALJ does not define how
often the claimant has to alternate between sitting and standing, it is implied that the claimant
should be permitted to sit or stand at will. Id. (citing Campbell v. Colvin, No. 1:11CV327, 2014
WL 2815781, at *5 (M.D.N.C. June 23, 2014)).
The VE testified to just that at the hearing. “Generally,” he said, the sit-stand option is “at
will.” (R. at 57). “If you literally had to sit or stand every minute,” he added, “I think that clearly
your productivity would fall below the 10 to 15 percent loss [in productivity] that we’ve talked
about. I think what is reasonable . . . is every 10 minutes. It does allow the freedom to perform at
acceptable speed while changing positions.” (Id.). It is safe to assume, then, that all three of the
jobs that the VE identified would allow for sitting and standing at will (or as frequently as every
10 minutes). Since Plaintiff has not pointed to anything which even so much as suggests that he
needs the ability to alternate between sitting and standing more frequently (e.g., “every minute,”
which the VE conceded would substantially erode the number of jobs available), “‘the Court will
not remand the decision so that the ALJ can clarify the sit/stand option to be ‘at will’ and have
the VE repeat the same testimony.’” Tschannen, 2015 WL 7012531, at *2.
Failure to Analyze Relevant Medical Evidence
Lastly, Plaintiff submits that the ALJ failed to analyze two findings contained in the
treatment notes from Dr. Gruen: one from December 13, 2012, which indicates that Plaintiff
could not invert his right foot; and the other from June 28, 2012, which records the results of an
x-ray showing that Plaintiff’s fractured patella was incompletely healed and that his right ankle
was fractured. As Plaintiff himself acknowledges, though, the ALJ is under no obligation “to
reproduce every finding, from every medical record in a decision[.]” (ECF No. 18 at 13); see
Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001) (“[W]e do not expect the ALJ to make
reference to every relevant treatment note[.]”); Hur v. Barnhart, 94 F. App’x 130, 133 (3d Cir.
2004) (“There is no requirement that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”). The ALJ’s decision must simply make clear that he considered all
relevant medical evidence and provided good reasons for rejecting conflicting evidence. See
Fargnoli, 247 F.3d at 41.
The decision in this case meets that standard. True, the ALJ did not quote Dr. Gruen’s
statement that Plaintiff could not “invert his foot” and would continue “to have pain with
prolonged activity.” (R. at 230). But it is clear from the ALJ’s discussion that he fully considered
the contents of the December 13, 2012, treatment note to which Plaintiff makes reference. In
point of fact, the ALJ observed that, as of December 13, 2012, Plaintiff “continued to have a
limited range of motion in the right ankle along with some tenderness to palpation over the
lateral aspect of the ankle.” (R. at 26). This is an accurate statement.
Moreover, while Plaintiff is correct that the ALJ did not specifically cite the x-ray report
from June 28, 2012, he has not explained how the ALJ’s failure to consider this piece of
evidence affected the ALJ’s decision. The x-ray results are not particularly notable. The ALJ did
not seem to dispute that Plaintiff had continued problems with his ankle and knee, as
documented in the x-ray report. In fact, the ALJ recognized elsewhere in his decision that
Plaintiff would continue to have deformity, mobility issues, and pain and that his condition was
unlikely to improve much. (R. at 27). Nonetheless, based on his consideration of the entirety of
the evidence, the ALJ concluded that Plaintiff was not “disabled.” His failure to cite one x-ray
result does not undermine that conclusion.
For the foregoing reasons, Plaintiff’s motion for summary judgment will be denied, the
Acting Commissioner’s motion for summary judgment will be granted, and final judgment will
be entered in favor of the Acting Commissioner and against Plaintiff. An appropriate Order
Dated: March 28, 2017
LISA PUPO LENIHAN
U.S. Magistrate Judge
all counsel of record via CM/ECF
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