SAPP v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEREK CHRISTOPHER SAPP, : CIVIL ACTION

Plaintiff :

v. :

:

ANDREW SAUL, :

Commissioner of the Social :

Security Administration, :

Defendant : NO. 19-3652

MEMORANDUM

CAROL SANDRA MOORE WELLS

UNITED STATES MAGISTRATE JUDGE April 1, 2020

Derek Christopher Sapp (“Plaintiff”) seeks judicial review, pursuant to 42 U.S.C. § 405(g),

of the final decision of the Commissioner of the Social Security Administration (“the

Commissioner”), denying his claim for disability insurance benefits (“DIB”) under Title II of the

Social Security Act. Plaintiff has filed a brief in support of his request for review, the

Commissioner has responded to it, and Plaintiff has filed a reply brief. For the reasons set forth

below, Plaintiff’s request for review is granted and the case is remanded so that the ALJ can

reconsider the weight afforded to the opinions of Plaintiff’s two treating neurologists, reevaluate

Plaintiff’s residual functional capacity and pose hypothetical questions to a vocational expert that

accurately reflect all of Plaintiff’s credibly established limitations.

I. PROCEDURAL HISTORY1

On November 8, 2012, Plaintiff applied for DIB, alleging disability, because of physical

and mental health impairments, since October 11, 2012. R. 50. The claim was denied, initially,

and upon reconsideration; next, Plaintiff requested a hearing. Id. On August 8, 2014, Plaintiff

1 The court has reviewed and considered the following documents in analyzing this case: Plaintiff’s Brief and

Statement of Issues in Support of Request for Review (“Pl. Br.”), Defendant’s Response to Request for Review of

Plaintiff (“Resp.”), Plaintiff’s Reply Brief (“Reply), and the administrative record. (“R.”).

appeared before Denise Pasvantis, Administrative Law Judge (“ALJ Pasvantis”), for a hearing in

Fort Lauderdale, Florida. Id. Plaintiff, represented by an attorney, and a vocational expert testified

at the hearing. Id. On March 9, 2015, ALJ Pasvantis, using the sequential evaluation process for

disability,2 issued an unfavorable decision. R. 50-59. The Appeals Council denied Plaintiff’s

request for review, on May 2, 2016. R. 8-13.

Plaintiff then sought judicial review in this court.3 Pl. Br. at 2. After Plaintiff filed his

request for review, the Commissioner sought, and the district court granted, remand, on March 24,

2017. R. 378.

On July 18, 2018, Plaintiff, represented by his current attorney, medical expert Stephen

Goldstein (“the ME”), Plaintiff’s wife, Dana Sapp, and vocational expert Nancy Harter (“the VE”)

testified at a video hearing, presided over by administrative law judge Nicholas R. Foster (“the

ALJ”).4 R. 379-415. On August 21, 2018, the ALJ, using the requisite sequential evaluation

2 The Social Security Regulations provide the following five-step sequential evaluation for determining whether an

adult claimant is disabled:

1. If the claimant is working, doing substantial gainful activity, a finding of not

disabled is directed. Otherwise proceed to Step 2. See 20 C.F.R. § 404.1520(b).

2. If the claimant is found not to have a severe impairment which significantly

limits his physical or mental ability to do basic work activity, a finding of not

disabled is directed. Otherwise proceed to Step 3. See 20 C.F.R. § 404.1520(c).

3. If the claimant’s impairment meets or equals criteria for a listed impairment or

impairments in Appendix 1 of Subpart P of Part 404 of 20 C.F.R., a finding of

disabled is directed. Otherwise proceed to Step 4. See 20 C.F.R. § 404.1520(d).

4. If the claimant retains the residual functional capacity to perform past relevant

work, a finding of not disabled is directed. Otherwise proceed to Step 5. See 20

C.F.R. § 404.1520(f).

5. The Commissioner will determine whether, given the claimant’s residual

functional capacity, age, education and past work experience in conjunction with

criteria listed in Appendix 2, he is or is not disabled. See 20 C.F.R. § 404.1520(g).

3 Plaintiff had moved from Florida to Philadelphia.

4 Plaintiff, his wife and the VE were in West Chester, Pennsylvania, the ME testified via telephone, and the ALJ was

in Richmond, Virginia. R. 381.

process for disability, issued an unfavorable decision. R. 358-70. The Appeals Council denied

Plaintiff’s request for review, on June 14, 2019, making the ALJ’s findings the final determination

of the Commissioner. R. 336-41. The parties have consented to this court’s jurisdiction, pursuant

to 28 U.S.C. § 636(c)(1).

II. FACTUAL BACKGROUND

A. Personal History

Plaintiff, born on April 25, 1975, R. 394, was 43 years old when the ALJ rendered his

decision. He completed high school, R. 369, and worked as an electrician’s helper and a grocery

store stocker; he last worked in 2011. R. 394, 411. Plaintiff lives with his wife and five year old

daughter. R. 397, 406-08.

B. Plaintiff’s Testimony

At the July 18, 2018 video hearing, Plaintiff testified about his limitations. R. 394-405.

He was first diagnosed with multiple sclerosis (“MS”) in 2002. R. 395. This condition causes

Plaintiff to experience muscle fatigue; beginning in 2012, he has experienced overwhelming

fatigue approximately 14-15 days each month. R. 395-96. On good days, he is able play with his

five-year old daughter; on the other days, he basically lays in bed, watching television. R. 397.

Plaintiff further testified that he was unable to read, because optic neuritis makes his right eye feel

swollen and his vision opaque. R. 398. Plaintiff has lost fine motor skills in his hands, and he

experiences numbness in both hands and feet. Id. Additionally, torn right knee cartilage causes

him difficulty. R. 399.

Plaintiff is receiving treatment for anxiety and depression. R. 402. Despite that treatment,

he has recently developed thoughts about harming other people and experienced auditory

hallucinations. R. 404. Plaintiff’s depression causes him to feel he is an unfit father who should

not be with his daughter. R. 402-03. He believes that his MS exacerbates his depression. R. 403.

C. Testimony of Plaintiff’s Wife

Plaintiff’s wife, Dana Sapp, testified at the hearing. R. 406-10. Ms. Sapp and Plaintiff

have been a couple, since 2005. R. 406. When they married in 2012, they resided in Florida;

extreme fatigue stopped Plaintiff from working shortly before the wedding. R. 406-07. The pair

moved to Pennsylvania, in part, because Florida was too hot and exacerbated Plaintiff’s MS

symptoms. R. 407.

Ms. Sapp has observed Plaintiff fall asleep while playing with their daughter. R. 408. She

calls home frequently from work to make sure Plaintiff is awake, because he is their daughter’s

sole caregiver when she is working.5 Id. Plaintiff is very short-tempered and, consequently,

isolates himself from their child and Ms. Sapp. R. 409-10. For these reasons, Ms. Sapp doubts

Plaintiff’s ability to care for their daughter. R. 409.

D. Medical Expert’s Testimony

The ME, Dr. Goldstein, is board-certified in internal medicine and neurology. R. 383. He

did not examine or treat Plaintiff but reviewed all of the medical records, including documents

submitted at the hearing. R. 383-85. The ME noted that optic neuritis is a common symptom of

MS. R. 385. Although he was reluctant to render a diagnosis of MS, he conceded that the

neurological exam that Dr. Sheremata6 performed in April 2012 contained objective findings that

supported a diagnosis of MS. R. 390-93. Finally, the ME testified that Plaintiff’s impairments,

individually, or in combination, did not meet or medically equal any listed impairment. R. 386.

5 Ms. Sapp’s mother used to help with child-care, but she had recently died. R.408.

6 Dr. Sheremata was Plaintiff’s treating neurologist in Florida.

E. Vocational Testimony

The VE classified Plaintiff’s past job as an electrician’s helper as medium7 work, with an

SVP of 38 and his grocery store stocker job as medium, with an SVP of 2.9 R. 411. The ALJ

asked the VE to consider an individual of Plaintiff’s age, education and work experience, capable

of performing light10 work, with the additional limitations of: occasionally kneeling and crawling;

frequent ability to climb ramps and stairs, but no ability to climb ladders, ropes and scaffolds;

frequent ability to stoop or crouch and reach on the right side; needing to avoid concentrated

exposure to unprotected heights, moving mechanical parts and temperature extremes; frequent

ability to demonstrate depth perception and distance acuity with the right eye; able to perform only

simple, routine, respective tasks, with no production rate expectations. R. 411-12. The VE stated

that this person could not perform any of Plaintiff’s past work, but could perform several SVP

level 2 jobs, or unskilled11 work: (1) mail clerk (76,000 positions in the national economy); (2)

sales attendant (25,000 positions in the national economy) and (3) ticket taker (109,000 positions

in the national economy). R. 412. Next, the ALJ asked the VE to consider the same individual,

but with the additional limitation of being off-task 15 percent of the day or more. R. 412. The

VE opined that this person could perform no work. Id.

Plaintiff’s attorney asked the VE to consider an individual with the limitations contained

in Exhibit 6F, the assessment of Plaintiff’s treating neurologist in Florida. R. 413. The VE testified

7 “Medium work involves lifting no more than 50 pounds with frequent lifting or carrying of weighing up to 25

pounds.” 20 C.F.R. §§ 404.1567(c).

8 Work at SVP level 3 is semi-skilled work. See Tavales v. Colvin, Civ. A. No. 16-2000, 2017 WL 1499248, *3 (E.D.

Pa. Feb. 27, 2017).

9 Work at SVP level 1-2 is unskilled work. See Baker v. Colvin, Civ. A. No. 15-1425, 2016 WL 4236561, *5 (E.D.

Pa. Aug. 11, 2016).

10 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing

up to 10 pounds.” 20 C.F.R. §§ 404.1567(b).

11 “Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a

short period of time.” 20 C.F.R. §§ 404.1568(a).

that such limitations would preclude all work. Id. Likewise, if an individual would miss more

than four days of work each month, he could not work. Id.

III. THE ALJ’s FINDINGS

In her decision, the ALJ issued the following findings:

1. [Plaintiff] last met the insured status requirements of the

Social Security Act on December 31, 2017.

2. [Plaintiff] did not engage in substantial gainful activity

during the period from his alleged onset date of October 11,

2012 through his date last insured of December 31, 2017 (20

CFR 404.1571 et seq.).

3. Through the date last insured, [Plaintiff] has the following

severe impairments: multiple sclerosis; arthritis of the right

shoulder; and meniscal tear and arthritis of the right knee (20

CFR 404.1520(c)).

4. Through the date last insured, [Plaintiff] did not have an

impairment or combination of impairments that met or

medically equaled the severity of one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20

CFR 404.1520(d), 404.1525, and 404.1526).

5. After careful consideration of the entire record, the

undersigned finds that, through the date last insured,

[Plaintiff] had the residual functional capacity to perform

light work as defined in 20 CFR 404.1567(b) except he could

frequently climb ramps and stairs, stoop, and crouch, but he

could only occasionally kneel and crawl. He could not climb

ladders, ropes or scaffolds. He needed to avoid concentrated

exposure to temperature extremes and hazards, such as

unprotected heights and moving mechanical parts. He could

frequently reach with the right upper extremity. He could

exhibit far acuity, depth perception, accommodation, and

field of vision with the right eye no more than frequently.

He was limited to the performance of simple, routine, and

repetitive tasks with no production rate expectations, such as

found in assembly-line work.

6. Through the date last insured, [Plaintiff] was unable to

perform any past relevant work (20 CFR 404.1565).

7. [Plaintiff] was born on April 25, 1975 and was 42 years old,

which is defined as a younger individual age 18-49, on the

date last inured (20 CFR 404.1563).

8. [Plaintiff] has at least a high school education and is able to

communicate in English (20 CFR 404.1564).

9. Transferability of job skills is not material to the

determination of disability because using Medical-

Vocational Rules as a framework supports a finding that

[Plaintiff] is “not disabled,” whether or not [he] has

transferrable job skills (See SSR 82-41 and 20 CFR Part 404,

Subpart P, Appendix 2).

10. Through the date last insured, considering [Plaintiff’s] age,

education, work experience, and residual functional

capacity, there were jobs that existed in significant numbers

in the national economy that [Plaintiff] could have

performed (20 CFR 404.1569, 404.1569(a)).

11. [Plaintiff] has not been under a disability, as defined in the

Social Security Act, at any time form October 11, 2012, the

alleged onset date, through December 31, 2017, the date last

insured (20 CFR 404.1520(g)).

R. 360, 364, 369-70.

IV. DISCUSSION

A. Standard of Review

Judicial review of the Commissioner’s final decision is as follows. The Commissioner’s

findings of fact will not be disturbed, if they are supported by substantial evidence. Poulos v.

Comm’r of Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Comm’r of Soc. Sec. Admin.,

181 F.3d 429, 431 (3d Cir. 1999). Substantial evidence is not “a large or considerable amount of

evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation

omitted). While it is more than a mere scintilla of evidence, Biestek v. Berryhill, 139 S. Ct. 1148,

1154 (2019, it may amount to less than an evidentiary preponderance. Fargnoli v. Massanari, 247

F.3d 34, 38 (3d Cir. 2001); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Overall, this

test is deferential to the ALJ and the court should affirm the ALJ’s findings of fact that are

supported by substantial evidence, even when the court, acting de novo, might have reached a

different conclusion. Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986),

cert. denied, 482 U.S. 905 (1987). Indeed, the court is not permitted to weigh the record evidence

itself. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). By contrast, the Commissioner’s

legal conclusions are subject to de novo review. Poulos, 474 F.3d at 91; Schaudeck, 181 F.3d at

431.

B. Burden of Proof in Disability Proceedings

To be found “disabled” under the Act, Plaintiff must carry the initial burden of

demonstrating that he is unable to engage in “any substantial gainful activity by reason of any

medically determinable physical or mental impairment . . . which has lasted or can be expected to

last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R.

§§ 404.1505(a), 416.905(a). Plaintiff may establish a disability through: (1) medical evidence

meeting one or more of the serious impairments detailed in 20 C.F.R., Part 404, Subpart P,

Appendix 1; or (2) proof that the impairment is severe enough that Plaintiff cannot engage in any

type of “substantial gainful work which exists in the national economy.” Heckler v. Campbell,

461 U.S. 458, 460 (1983); 42 U.S.C. § 423(d)(2)(A).

Under the first method, Plaintiff is considered per se disabled by meeting one of the “listed”

impairments. Heckler, 461 U.S. at 460. Under the second method, Plaintiff must initially

demonstrate that a medically determinable impairment prevents him from returning to his past

employment. See Brown, 845 F.2d at 1214. If Plaintiff proves that his impairment results in

functional limitations to performing his past relevant work, then the burden of proof shifts to the

Commissioner to prove that work does in fact exist in the national economy which Plaintiff can

perform given his age, education, work experience and residual functional capacity. See Hess v.

Comm’r Soc. Sec., 931 F.3d 198, 201 (3d Cir. 2019); Poulos, 474 F.3d at 92.

C. Review of the Administrative Law Judge’s Decision

Applying the sequential analysis process, the ALJ determined that, although Plaintiff could

not perform his past relevant work, he could perform other light jobs that exist in the national

economy; hence, Plaintiff was not disabled. R. 358-70. Plaintiff disputes the ALJ’s decision and

argues that the ALJ reversibly erred by: (1) failing to find that Plaintiff’s mental impairments were

severe; (2) failing to assign great weight to the opinions of Plaintiff’s two treating neurologists;

and (3) consequently, failing to incorporate all of Plaintiff’s credibly supported limitations into his

residual functional capacity (“RFC”) assessment and the hypothetical posed to the VE. Pl. Br. at

6-25. The Commissioner denies Plaintiff’s assertions. Resp. at 4-19. This court finds that,

although the ALJ properly found Plaintiff’s mental impairments not severe, he failed to assign

proper weight to the opinions of Plaintiff’s treating neurologists; this, in turn, caused him to render

a defective RFC assessment and pose a defective hypothetic to the VE. As a result, the ALJ’s

determination that Plaintiff is not disabled lacks substantial evidence and this case must be

remanded.

1. The ALJ Properly Determined that Plaintiff’s Anxiety and Depression were not Severe

Plaintiff alleges that the VE erred by finding that his mental impairments – anxiety and

depression – were not severe at step two of the sequential evaluation process. Pl. Br. at 6-13. The

Commissioner counters that substantial evidence supports the ALJ’s decision that these

impairments were not severe. Resp. at 6-11. This court agrees with the Commissioner.

In his decision, the ALJ considered the four, broad areas of mental functioning established

by the regulations. R. 362. In doing so, he found that for all four, Plaintiff had no functional

limitation. Id. Thus, the ALJ decided that Plaintiff’s mental impairments were not severe. Id.

This is consistent with the governing regulation, which states that, if an ALJ finds that a claimant

has no or mild limitation in all four areas of mental functioning, the claimant’s mental impairment

may be found non-severe. 20 C.F.R. § 404.1520a(d)(1). The ALJ properly applied the governing

regulation; hence, there is no basis to find that he erred.

2. The ALJ Failed to Assign Proper Weight to the Opinions of Plaintiff’s Two Treating

Neurologists, hence, his Assessment of Plaintiff’s RFC and the Hypothetical Question

he posed to the VE were Defective

Plaintiff contends that the ALJ failed to assign proper weight to the opinions of his two

treating neurologists, William Sheremata, M.D. and David C. Weisman, M.D., R. 368. Pl. Br. at

13-23. He further maintains that, as a result, the ALJ’s RFC assessment as well as the hypothetical

question posed to the VE, which yielded the answer the ALJ relied upon, were defective, in that

both omitted all of Plaintiff’s credibly established limitations. Id. at 23-25. The Commissioner

denies Plaintiff’s contentions. Resp. at 11-18. This court finds that, although the ALJ’s decision

not to afford controlling weight to the opinions of Plaintiff’s treating neurologists was proper, he

erroneously decided to afford those opinions little weight. Hence, this case must be remanded so

that the ALJ can properly assess Plaintiff’s RFC and pose a hypothetical question to a vocational

expert that includes all of Plaintiff’s credibly established limitations.

The ALJ’s error stems from his failure to acknowledge that, even if the treating

neurologists’ opinions were not entitled to controlling weight, either because they were not well-

supported by the record, or were inconsistent with other substantial evidence in the record, they

might still have been entitled to more weight than any other medical opinions contained in the

record. Social Security Ruling (“SSR”) 96-2p explains that, even where a treating physician’s

opinion(s) is(are) not entitled to controlling weight, in many cases, they will still be entitled to the

greatest weight and will be adopted. Id., 1996 WL 374188, *4. Herein, the ALJ never considered

this possibility, because he never mentioned SSR 96-2p. Instead, after summarizing the extensive

findings of each treating neurologist, in Exhibits 6F (Dr. Sheremata) and 20F (Dr. Weisman), the

ALJ identified areas where each doctor’s opinions could be construed as inconsistent with medical

and other evidence in the record. R. 368-69. The ALJ, then, summarily concluded that both

opinions were entitled to “little weight.” Id.

Since “substantial evidence” is simply “more than a mere scintilla,” Biestek, 139 S. Ct. at

1154, this court cannot find that the inconsistent evidence the ALJ identified was not substantial.

Hence, the ALJ correctly found that the opinions of neither neurologist were entitled to controlling

weight. See 20 C.F.R. § 404.1520(c)(2); SSR 96-2p, 1996 WL 374188, *3. However, SSR 96-

2p, does not allow the ALJ to automatically conclude – as he did – that, because the treating

neurologists’ opinions were inconsistent with substantial evidence, those opinions were entitled to

little weight. Instead, the ALJ was required to consider, despite the inconsistent evidence in the

record, whether their opinions deserved more weight than those of any other medical provider in

the record and should be adopted. SSR 96-2p, 1996 WL 374188, *4. Moreover, since Dr.

Sheremata’s opinions were consistent with Dr. Weisman’s, the ALJ should have considered

whether their consistency with each other enhanced their weight. See 20 C.F.R. § 404.1520(c)(4).

Because the ALJ only considered each doctor’s opinions separately, he failed to do so. The ALJ’s

failure constitutes reversible, not harmless, error, because the VE acknowledged that the opinions

of Dr. Sheremata alone were sufficient to render a person unable to work. R. 413.

The ALJ’s error affects his assessment of Plaintiff’s RFC, because, as the ALJ

acknowledged, the opinions of Dr. Sheremata and Weisman, indicate, inter alia, that Plaintiff can

perform neither the lifting nor the standing and walking requirements for light work. See R. 368.

Further, the VE answer which the ALJ relied upon presumed the ability to perform light work. R.

411-12. The VE was not presented a hypothetic considering sedentary work, the next lowest

exertion level. See id. Inasmuch as the RFC assessment the ALJ used in the hypothetical question

is flawed, the VE’s answer to the question cannot constitute substantial evidence to support the

ALJ’s conclusion. See Rutherford, 399 F.3d at 554 (noting that a hypothetical question must

include all of the claimant’s credibly established impairments, if the ALJ wishes to rely upon the

VE’s response to the question). In this circumstance, the case must be remanded for a proper

consideration of the opinions of Drs. Sheremata and Weisman, a new RFC assessment and

presentation of proper hypothetical questions to a vocational expert. See id.

V. CONCLUSION

Review of the relevant law and the record indicate that that the ALJ reversibly erred when

he accorded little weight to the opinions of Doctors Sheremata (Exhibit 6F) and Weisman (Exhibit

20F). Those errors invalidated his RFC assessment as well as the hypothetical question he posed

to the VE. Accordingly, Plaintiff’s Request for Review is granted. An implementing Order and

Order of Judgment follow.