# Gostomski v. Berryhill

> District Court, M.D. Pennsylvania · November 4, 2019

URL: https://www.frixlaw.com/law-library/cases/10407924

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** November 4, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10407924

## How later opinions describe it (automated extraction)

- explaining judges should give some review to every report and recommendation

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JAMES CHARLES GOSTOMSKI, :

:
Plaintiff
: CIVIL ACTION NO. 3:18-0680
v. :
(JUDGE MANNION)
ANDREW M. SAUL1, :
Commissioner of Social Security,
:
Defendant :
M E M O R A N D U M
Pending before the court is the report of Judge Cohn, (Doc. 10),
recommending that plaintiff’s appeal from the final decision of the
Commissioner of Social Security be granted, and that the decision of the
Commissioner be reversed and the case be remanded for further
proceedings. Judge Cohn reviewed the record in this case pursuant to 42
U.S.C. §405(g) to determine whether there is substantial evidence to support
the Commissioner’s decision denying the plaintiff’s claim for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act, (“Act”). 42
U.S.C. §§401-433, 1381-1383f. The Commissioner has filed objections to the
report. (Doc. 11). The plaintiff, James Charles Gostomski, responded to the

1Andrew M. Saul was sworn in as Commissioner of Social Security on
June 17, 2019, and is automatically substituted as the defendant in this
Commissioner’s objections.” (Doc. 12). For the following reasons, the report
and recommendation will be ADOPTED and, plaintiff's appeal of the decision
of the Commissioner, (Doc. 1), will be GRANTED. The Commissioner's
decision will be REVERSED and, plaintiff's case will be REMANDED to the
Commissioner.°

I. STANDARD OF REVIEW
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge,
and the court may rely on the recommendations of the magistrate judge to the
extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no

7In plaintiffs response to the Commissioner's objections, counsel
repeatedly misidentifies Magistrate Judge Cohn as “Magistrate” Cohn. The
title magistrate no longer exists in the U.S. Courts, having been changed from
“magistrate” to “magistrate judge” in 1990. Judicial Improvements Act of 1990,
104 Stat. 5089, Pub. L. No. 101-650, §321 (1990) (“After the enactment of
this Act, each United States magistrate . . . shall be known as a United States
magistrate judge.”). Counsel for plaintiff is reminded to use the correct title,
in the future, when referring to Judge Cohn.
°The court notes that since Judge Cohn stated the full procedural history
of this case in his report and since the parties did not object to it, the court will
not repeat it herein.

objection is made, the court should, as a matter of good practice, “satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
(explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.
When reviewing the denial of disability benefits, the court must
determine whether the denial is supported by substantial evidence. Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of
Social Sec., 529 F.3d 198, 200 (3d Cir. 2008 ). Substantial evidence “does
not mean a large or considerable amount of evidence, but rather such
relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101
L.Ed.2d 490 (1988); Hartranft v. Apfel, 181 F.3d 358, 360. (3d Cir. 1999),
Johnson, 529 F.3d at 200. It is less than a preponderance of the evidence but
more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401, 91
S.Ct. 1420, 28 L.Ed.2d 842 (1971 ). If the ALJ's decision is supported by
substantial evidence, the court is “bound by those findings.” Fargnoli_v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (citation omitted). Furthermore, in

court may not parse the record but rather must scrutinize the record as a

whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).
To receive disability benefits, the plaintiff must demonstrate an “inability
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §432(d)(1)(A). Furthermore,
[a]n individual shall be determined to be under a disability only if
[her] physical or mental impairment or impairments are of such
severity that [she] is not only unable to do [her] previous work but
cannot, considering [her] age, education, and work experience,
engage in any other kind of substantial gainful work which exists
in the national economy, regardless of whether such work exists
in the immediate area in which [she] lives, or whether a specific
job vacancy exists for [her], or whether [she] would be hired if
[she] applied for work. For purposes of the preceding sentence
(with respect to any individual), ‘work which exists in the national
economy’ means work which exists in significant numbers either
in the region where such individual lives or in several regions of
the country.
42 U.S.C. §423(d)(2)(A).
II. RELEVANT MEDICAL EVIDENCE
Judge Cohn’s report and recommendation (“R&R”), as well as the initial
briefs of the parties, contain a thorough review of the plaintiff’s medical
history. The parties did not file any objections to Judge Cohn’s report with
respect to his relevant medical history, so it will be adopted. See Butterfield
v. Astrue, 2010 WL 4027768, *3 (E.D.Pa. Oct. 14, 2010) (“To obtain de novo
determination of a magistrate [judge’s] findings by a district court, 28 U.S.C.
§636(b)(1) requires both timely and specific objections to the report.”) (quoting
Goney v. Clark, 749 F.2d 5, 6 (3d Cir.1984)). Also, since the five-step legal
framework for addressing a disability claim was properly stated in the decision

of the Administrative Law Judge (“ALJ”) and the findings of each step is in
the record, (Tr. 12-23), the court incorporates by reference these portions of
the ALJ’s decision.

III. DISCUSSION
On April 22, 2015, the plaintiff filed an application for DIB and alleged

an onset disability date of April 27, 2014. In an August 2, 2017 decision, the
ALJ found that the plaintiff was not disabled from April 22, 2015, through the
date of her decision.4 (Tr. 23). The ALJ found that plaintiff had a severe back
impairments, i.e., degenerative disc disease of the lumbar spine with
radiculopathy, as well as mental impairments related to depressive disorder
and anxiety. However, the ALJ determined that plaintiff did not have an
impairment or combination of impairments that met or medically equaled the

severity of one of the listed impairments, namely, Listing 1.04 (“disorders of
the spine”), Listing 12.04 (“depressive, bipolar and related disorders”), and
12.06 (“anxiety and obsessive-compulsive disorders”).

4Thus, the relevant time period for this case is April 27, 2014, through
August 2, 2017. September 30, 2017, is the last date that plaintiff met the
insured status requirements of the Social Security Act.
In relevant part, the plaintiff challenged the weight the ALJ gave his
treating physician, Dr. Joshua Hottenstein, and the ALJ’s RFC assessment
and finding that he could perform light work, which was partly based on the
ALJ’s rejection of Dr. Hottenstein’s opinion. In his report, Judge Cohn agrees

with the plaintiff and recommends that the Commissioner’s decision be
vacated since there is no medical evidence of record which suggests that the
plaintiff could perform all of the activities required for light work. Therefore, he
finds that the ALJ’s RFC determination was not supported by substantial
evidence in the record. Judge Cohn determined that by rejecting the opinion
of the plaintiff’s treating physician with no other medical evidence in the record

regarding the plaintiff’s RFC, the ALJ impermissibly substituted her own
judgment for that of a physician.
Specifically, Judge Cohn found that the ALJ erred in her evaluation of
plaintiff’s treating physician and in giving the opinion of Dr. Hottenstein,
including his findings in a January 24, 2017 Medical Source Statement, (Tr.
482-84), little weight. (Tr. 20). As the ALJ summarized in her decision, (Tr.
20), Dr. Hottenstein, opined that based on plaintiff’s lumbar degenerative disc

disease, lumbar radiculopathy, and a herniated lumbar disc “[plaintiff] could
lift up to 10 pounds occasionally, as well as stand/walk and sit less than two
hours in an eight-hour workday”, “[h]e could never perform posturals and he
should avoid moving machinery, temperature extremes, heights, and
vibration”, and “[he] would need breaks every 30 minutes for one to 10

6
minutes.” The ALJ gave little weight to Dr. Hottenstein’s opinion and found
that it was “unsupported by any medical findings”, and that “the record
contain[ed] no treatment notes from [him].” The ALJ also noted that the only
treatment notes in the record were from Dr. Hottenstein’s Physician’s

Assistant, Kyle Maza. The ALJ then found that plaintiff had an RFC to perform
light duty work, with limitations, which, by definition, meant that plaintiff could
lift no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. (Tr. 15). See 20 C.F.R. §416.967(b); 20 C.F.R.
§404.1567(b). As such, the ALJ’s RFC determination contradicted Dr.
Hottenstein’s opinion that plaintiff could only lift up to ten pounds occasionally.

(Tr. 482).
Judge Cohn found that there was no medical opinion in the record that
plaintiff was capable of frequent lifting or carrying 10-pound objects as
required for light work, and that substantial evidence did not support the ALJ’s
assessment of plaintiff’s physical impairments “since the ALJ rejected the only
physician opinion regarding physical limitations, instead choosing to rely on
her own lay interpretation of the medical evidence.” The judge stated that

“[r]arely can a decision be made regarding a claimant’s residual functional
capacity without an assessment from a physician regarding the functional
abilities of the claimant.” In support, he cited, in part, to Doak v. Heckler, 790
F.2d 26 (3d Cir. 1986). Judge Cohn also cited to the medical evidence in the
record, (Doc. 10 at 14-15), which substantiated Dr. Hottenstein’s opinion. The

7
judge then found that the cited evidence shows that the ALJ’s findings
regarding the severity and characterization of plaintiff's physical impairments,
and finding that plaintiff was capable of light work were not supported by
substantial evidence.
The Commissioner's objections pertain to the support for the little weight
the ALJ afforded to the opinions of Dr. Hottenstein. The Commissioner argues
that Judge Cohn’s recommendation is based on an erroneous interpretation
of the Commissioner’s regulations and is inconsistent with the Third Circuit’s
interpretation of the Commissioner's regulations. The Commissioner contends
that “the ALJ did not need to rely on a contrary medical opinion to permissibly
discount the opinions from Dr. Hottenstein.” The Commissioner states that in
giving little weight to Dr. Hottenstein’s opinions, the ALJ properly compared
Dr. Hottenstein’s findings to the other evidence in the record, and that the ALJ
rejected these opinions because that the record did not support them and did
not contain any treatment notes from Dr. Hottenstein. (Tr. 20).
This court considered the issue raised by the Commissioner in several
cases, including Brown v. Colvin, 2015 WL 7428579 (M.D.Pa. Nov. 23, 2015).
In Brown, id. at *2, this court stated that “[a]lthough the Third Circuit
previously indicated that the ALJ must always base his RFC finding on a
medical opinion from a physician, see Doak v. Heckler, 790 F.2d 26 (3d Cir.
1986),” ... “consistent with the latter case law, [see Chandler v. Comm’r of
Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011)] the Commissioner argues that

Doak does not prohibit an ALJ from making an RFC assessment even if no
physician has specifically made findings and even if the only medical opinion
in the record is to the contrary.”
This court in Brown, id., then stated:
The issue raised by the Commissioner has recently been raised
and addressed in another case in the Middle District. See Kester
v. Colvin, 2015 WL 1932157 (M.D.Pa., April 2015) (Brann, J.).
As in that case, the court agrees with the Commissioner that the
RFC assessment must be based on consideration of all of the
evidence in the record, including the testimony of the claimant
regarding his activities of daily living, medical records, lay
evidence and evidence of pain. Id. at *2 (citing Burnett v. Comm’r
of Soc. Sec. Admin., 220 F.3d 112, 121-22 (3d Cir. 2002; 20
C.F.R. §404.1545(a)). The court further agrees that the ALJ has
the sole responsibility for determining a claimant’s RFC. See SSR
96-5P.
Nonetheless, the court found “[rjarely can a decision be made regarding
a Claimant’s [RFC] without an assessment from a physician regarding the
functional abilities of the claimant.” Id. (citing Kester, 2015 WL 1932157, *2;
Gormont v. Astrue, 2013 WL 791455 at *7 (M.D.Pa., Mar. 4, 2013)). Further,
the court stated, “an ALJ must not speculate as to a claimant’s RFC and, as
such, must support a RFC determination with medical evidence in the record.
Id. (citing Kester, at *3). Thus, the court held that “the Third Circuit has upheld
remand where the ALJ’s RFC determination was not supported by the
assessment of any physician in the record.” ld. (citing Kester, at *3; Doak,

supra).°
Here, after the ALJ discussed medical evidence in the record, she
determined that the plaintiff could perform light work activity. However, the
ALJ rejected the medical assessment of plaintiff's treating physician
addressing plaintiffs RFC. Judge Cohn found that the ALJ’s determination
was based upon the ALJ’s own assessment of the plaintiffs physical
capabilities and her own lay interpretation of the medical evidence. The court
agrees with Judge Cohn’s conclusion that the ALJ improperly assessed the
plaintiffs RFC and, therefore finds that the ALJ’s RFC determination is not
supported by substantial evidence in the record. Moreover, Judge Cohn does
discuss other medical evidence in the record regarding the plaintiff's physical
impairments and his limitations which were consistent with Dr. Hottenstein’s
Opinion, and despite this evidence, the ALJ found that the plaintiff could
perform light work with limitations.

°As this court noted in Brown, 2015 WL 7428579, *2 n. 3, “in Kester,
[the court noted that] the Doak and Chandler decisions have been reconciled
as follows:
Any argument from the Commissioner that his administrative law
judges can set the residual function capacity in the absence of
medical opinion or evidence must be rejected in light of Doak.
Furthermore, any statement in Chandler which conflicts (or
arguably conflicts) with Doak is dicta and must be disregarded.
Government of Virgin Islands v. Mills, 634 F.3d 746, 750 (3d Cir.
2011) (a three member panel of the Court of Appeals cannot set
aside or overrule a precedential opinion of a prior three member
panel).
(Citing Gunder v. Astrue, 2012 WL 511936 (M.D.Pa., Feb. 15, 2012)).
10

As Judge Cohn stated in another similar case in which he issued a
report recommending that the plaintiff's appeal be granted, Cowden v. Colvin,
2017 WL 1227454, *13 (M.D.Pa. March 17, 2017), “the [District] Court
[including this court in Brown, supra] has granted claimants’ appeal in at least
thirty-three cases [before him] in just the last eighteen months when an ALJ
rejects a treating source medical opinion with only lay reinterpretation of
medical evidence.” (string citations omitted). See also Orem v. Colvin, 2016
WL 6433121 (M.D.Pa. Oct. 31, 2016); Rankins v. Colvin, 2016 WL 4502524
(M.D. Pa. Aug. 29, 2016); Rowe v. Colvin, 2016 WL 3654470 (M.D. Pa. July
8, 2016) (in these cases, this court decided similar cases to the instant one
and agreed with the reports recommending remand when the ALJ rejected the
only medical assessment in the record addressing the plaintiffs’ RFC which
was from their treating physicians).
In his objections, the Commissioner also contends that substantial
evidence support the ALJ’ s RFC determination.® The court concludes that
Judge Cohn correctly determined that substantial evidence does not support
the above stated findings of the ALJ regarding the weight given to Dr.
Hottenstein’s opinions and her RFC determination. As Judge Cohn explained,

°In his objections, the Commissioner also argues that Judge Cohn
improperly cited to and relied upon Tilton v. Colvin, 184 F. Supp. 3d. 135
(M.D.Pa. 2016). (Doc. 11 at 13-20). However, Judge Cohn did not cite to the
Tilton case. Indeed, the Commissioner refers to pages 24-29 of Judge Cohn’s
report regarding his alleged discussion of the Tilton case but his report is only
17 pages.

11

the ALJ did not properly decide plaintiff's RFC since she did not properly
analyze the medical opinions of Dr. Hottenstein and, since she failed to
reconcile his opinions, which the judge found to be supported by the medical
evidence in the record, and to adequately explain the basis of her findings as

well as the weight she afforded to the doctor’s opinions. Plaintiff also points
out in his response to the Commissioner’s objections that “[t]he ALJ ignored
most of the [medical evidence cited in Judge Cohn’s report]”, and “[i]nstead,
the ALJ recited portions of the medical record and came to her own
conclusion regarding the meaning of various tests and treatment modalities.”
Further, as plaintiff explains, Judge Cohn did not only base his

recommendation on Dr. Hottenstein’s opinions and the weight afforded to
them, rather, he found that substantial evidence did not support the ALJ’s
determination that plaintiff could perform light work.
The court agrees with Judge Cohn and finds that the ALJ did not
properly evaluate Dr. Hottenstein’s opinions and all of the medical evidence
when she determined plaintiff's RFC and found that plaintiff could perform
light work. It is well-settled that the ALJ’s RFC finding has to “be accompanied

by a clear and satisfactory explication of the basis on which it rests.” Cotter
v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). See also Fargnoli v. Massanari,
247 F.3d 34, 42 (3d Cir. 2001) (the ALJ is required to “consider and evaluate
the [relevant] medical evidence in the record” and, to discuss and weigh this
evidence).

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Therefore, the Commissioner’s objections, (Doc. 11), to Judge Cohn’s
report, (Doc. 10), will be overruled, and the report will be adopted in its
entirety.

IV. CONCLUSION
In light of the foregoing, Judge Cohn’s report and recommendation,
(Doc. 10), is ADOPTED, and the Commissioner’s objections, (Doc. 11), are
OVERRULED. The plaintiff’s appeal, (Doc. 1), is GRANTED, and the
Commissioner’s decision is REVERSED. The plaintiff ‘s case is REMANDED
to the Commissioner for further proceedings. A separate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

Dated: November 4, 2019
18-0680-01.wpd

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10407924. Public record. Not legal advice.