Skurka v. Saul

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ERIC W. SKURKA, : CIVIL NO: 1:19-CV-02127

:

Plaintiff, : (Magistrate Judge Schwab)

:

v. :

:

ANDREW SAUL, :

Commissioner of Social Security, :

:

Defendant. :

:

MEMORANDUM OPINION

I. Introduction.

This is a social security action brought under 42 U.S.C. § 405(g). The

plaintiff, Eric W. Skurka, seeks judicial review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying his claim for

Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act.

We have jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons

set forth below, the Commissioner’s decision will be vacated, and the case will be

remanded to the Commissioner for further consideration.

II. Background and Procedural History.

We refer to the transcript provided by the Commissioner. See docs. 10-1 to

10-12.1 This is not Mr. Skurka’s first case in this court appealing the denial of

benefits under the Social Security Act. In 2016, Mr. Skurka filed a complaint

appealing the denial of Disability Insurance Benefits under Title II of the Social

Security Act, asserting that he had been disabled since February 4, 2010. Admin.

Tr. at 71–75 (complaint in Skurka v. Colvin, 1:16-cv-01523 (M.D. Pa.)). Adopting

a Report and Recommendation of Magistrate Judge Saporito, on September 27,

2017, Judge Jones affirmed the Commissioner’s decision denying Disability

Insurance Benefits to Mr. Skurka. Id. at 93–94.

While Skurka v. Colvin was pending, Mr. Skurka filed another application

for benefits, the denial of which is the basis of the present case. More specifically,

on July 27, 2016, Mr. Skurka protectively filed2 an application for SSI benefits,

1 Because the facts of this case are well known to the parties, we do not repeat

them here in detail. Instead, we recite only those facts that bear on Mr. Skurka’s

claims.

2 “Protective filing is a term for the first time an individual contacts the Social

Security Administration to file a claim for benefits.” Stitzel v. Berryhill, No. 3:16-

CV-0391, 2017 WL 5559918, at *1 n.3 (M.D. Pa. Nov. 9, 2017). “A protective

filing date allows an individual to have an earlier application date than the date the

application is actually signed.” Id. Here, Mr. Skurka’s application for SSI is dated

September 9, 2016. See Admin. Tr. at 131. But there is a reference in the record to

the filing date as July 27, 2016. Id. at 92. And July 27, 2016, is the date identified

by the ALJ as the date that Mr. Skurka protectively filed his application for SSI.

Id. at 15.

contending that he became disabled on November 26, 2014.3 Admin. Tr. at 131–38.

After the Commissioner denied Mr. Skurka’s claim at the initial level of

administrative review, Mr. Skurka requested an administrative hearing. Id. at 103–

105. On August 8, 2018, with the assistance of counsel, he testified at a hearing

before Administrative Law Judge (“ALJ”) Frank Barletta. Id. at 34–70.

The ALJ determined that Mr. Skurka was not disabled since July 27, 2016,

the date he filed his application for SSI. Id. at 16, 30.4 And so he denied Mr.

Skurka benefits. Id. at 12–30. Mr. Skurka appealed the ALJ’s decision to the

Appeals Council, which denied his request for review on October 17, 2019. Id. at

1–6. This makes the ALJ’s decision the final decision of the Commissioner

subject to judicial review by this Court.

In December of 2019, Mr. Skurka began this action by filing a complaint

claiming that the Commissioner’s decision is not supported by substantial evidence

3 November 26, 2014 is the day after a prior ALJ issued his decision denying Mr.

Skurka Disability Income Benefits. See Skurka v. Colvin, 1:16-cv-01523 (M.D.

Pa.) at Doc. 9-2. November 26, 2014 was likely chosen to avoid any overlap with

the time period at issue in Skurka v. Colvin and the application of res judicata if

there was an overlap with the time period at issue in the prior case.

4 At the hearing, Mr. Skurka’s counsel asserted that he was amending the alleged

onset date to September 1, 2014. Admin. Tr. at 40 (“We would amend the alleged

onset date her to 9/1/14.”). Counsel explained that if Mr. Skurka was found

disabled going back to September 1, 2014, he would be eligible for Disability

Insurance Benefits as well as SSI since Mr. Skurka met the insurance requirements

for Disability Insurance Benefits through September 30, 2014. Id. at 40–41.

and contains errors of law. Doc. 1 at ¶¶ 14–15. He requests that the court reverse

the Commissioner’s decision and award benefits or, in the alternative, remand the

case to the Commissioner for a new hearing. Id. at § V.

After the Commissioner filed an answer and a certified transcript of the

administrative proceedings, docs. 9, 10, the parties consented to proceed before a

magistrate judge pursuant to 28 U.S.C. § 636(c), and the case was referred to the

undersigned, doc. 12. The parties then filed briefs, and this matter is ripe for

decision. Docs. 15, 18, 21.

III. Legal Standards.

A. Substantial Evidence Review—the Role of This Court.

When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, “the court has plenary review of all legal issues decided by

the Commissioner.” Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012).

But the court’s review of the Commissioner’s factual findings is limited to whether

substantial evidence supports those findings. See 42 U.S.C. § 405(g); Biestek v.

Berryhill, 139 S. Ct. 1148, 1152 (2019). “[T]he threshold for such evidentiary

sufficiency is not high.” Biestek, 139 S. Ct. at 1154. Substantial evidence

“means—and means only—‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Id. (quoting Consol. Edison Co. of

New York v. N.L.R.B., 305 U.S. 197, 229 (1938)).

Substantial evidence “is less than a preponderance of the evidence but more

than a mere scintilla.” Jesurum v. Sec’y of U.S. Dep’t of Health & Human Servs.,

48 F.3d 114, 117 (3d Cir. 1995). A single piece of evidence is not substantial

evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict

created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).

But in an adequately developed factual record, substantial evidence may be

“something less than the weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the evidence does not prevent [the ALJ’s] finding

from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n,

383 U.S. 607, 620 (1966). “In determining if the Commissioner’s decision is

supported by substantial evidence the court must scrutinize the record as a whole.”

Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).

The question before this court, therefore, is not whether Mr. Skurka was

disabled, but whether substantial evidence supports the Commissioner’s finding

that he was not disabled and whether the Commissioner correctly applied the

relevant law.

B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ.

To receive benefits under Title XVI of the Social Security Act, a claimant

must demonstrate that he or she “is unable 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 twelve months.” 42 U.S.C.

§ 1382c(a)(3)(A); see also 20 C.F.R. § 416.905(a).5 To satisfy this requirement, a

claimant must have a severe physical or mental impairment that makes it

impossible to do his or her previous work or any other substantial gainful work that

exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R.

§ 416.905(a).

Unlike with Disability Insurance Benefits under Title II of the Social

Security Act, “[i]nsured status is irrelevant in determining a claimant’s eligibility

for supplemental security income benefits” under Title XVI of the Social Security

Act. Snyder v. Colvin, No. 3:16-CV-01689, 2017 WL 1078330, at *1 (M.D. Pa.

Mar. 22, 2017). SSI “is a federal income supplement program funded by general

tax revenues (not social security taxes)” “designed to help aged, blind or other

disabled individuals who have little or no income.” Id.

5 Here and elsewhere, “we cite to the edition of the Code of Federal Regulations in

force at the time of the ALJ’s decision in this case.” Hess v. Comm’r Soc. Sec., 931

F.3d 198, 201 n.1 (3d Cir. 2019).

The ALJ follows a five-step sequential-evaluation process to determine

whether a claimant is disabled. 20 C.F.R. § 416.920(a). Under this process, the

ALJ must sequentially determine: (1) whether the claimant is engaged in

substantial gainful activity; (2) whether the claimant has a severe impairment;

(3) whether the claimant’s impairment meets or equals a listed impairment;

(4) whether the claimant is able to do his or her past relevant work; and

(5) whether the claimant is able to do any other work, considering his or her age,

education, work experience, and residual functional capacity (“RFC”). 20 C.F.R.

§ 416.920(a)(4).

The ALJ must assess a claimant’s RFC at step four. Hess v. Comm’r of Soc.

Sec., 931 F.3d 198, 198 n.2 (3d Cir. 2019). The RFC is ‘“that which an individual

is still able to do despite the limitations caused by his or her impairment(s).’”

Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (quoting

Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)). In making this RFC

assessment, the ALJ considers all relevant evidence in the record and all the

claimant’s medically determinable impairments, including any non-severe

impairment identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§

416.945(a)(1), (a)(2).

“The claimant bears the burden of proof at steps one through four” of the

sequential-evaluation process. Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d

Cir. 2010). But at step five, “the burden of production shifts to the Commissioner,

who must . . . show there are other jobs existing in significant numbers in the

national economy which the claimant can perform, consistent with her medical

impairments, age, education, past work experience, and residual functional

capacity.” Fargnoli v. Massanari, 247 F.3d 34, 39 (3d Cir. 2001).

The ALJ’s disability determination must also meet certain basic substantive

requisites. Most significantly, the ALJ must provide “a clear and satisfactory

explication of the basis on which” his or her decision rests. Cotter v. Harris, 642

F.2d 700, 704 (3d Cir. 1981). “The ALJ must indicate in his decision which

evidence he has rejected and which he is relying on as the basis for his finding.”

Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F. 3d 429, 433 (3d Cir. 1999). The

“ALJ may not reject pertinent or probative evidence without explanation.” Johnson

v. Comm’r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008). Otherwise, ‘“the

reviewing court cannot tell if significant probative evidence was not credited or

simply ignored.’” Burnett, 220 F.3d at 121 (quoting Cotter, 642 F.2d at 705).

IV. The ALJ’s Decision Denying Mr. Skurka’s Claim.

On November 30, 2018, the ALJ denied Mr. Skurka’s claim for benefits.

Before applying the sequential-evaluation process, the ALJ addressed Mr. Skurka’s

request to amend the onset date to September 2, 2014. Admin. Tr. at 15.

Construing that request as a request to reopen the prior claim for Disability

Insurance Benefits, and finding no good cause for reopening, the ALJ denied the

request to reopen the claim for Disability Insurance Benefits. Id. The ALJ then

proceeded to apply the sequential-evaluation process, and he determined that Mr.

Skurka has not been disabled within the meaning of the Social Security Act during

the relevant time. Id. at 16–30.

At step one of the sequential-evaluation process, the ALJ found that Mr.

Skurka had not engaged in substantial gainful activity since July 27, 2016, the date

he applied for SSI. Id. at 17.

At step two of the sequential-evaluation process, the ALJ found that Mr.

Skurka had the following severe impairments: osteoarthritis; Perthes disease;

blindness of the left eye; diabetes mellitus with diabetic neuropathy; obstructive

sleep apnea; hypertension; dyslipidemia; obesity; depressive disorder, bipolar

disorder; obsessive-compulsive disorder, panic disorder; and post-traumatic stress

disorder. Id. at 17–18.

At step three of the sequential-evaluation process, the ALJ found that Mr.

Skurka did not have an impairment or combination of impairments that met or

medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix

1. Id. at 18–20. More specifically, the ALJ discussed Listings 9.00, 11.14, 1.02A,

4.00, 3.09, 2.02, 12.04, 12.06, and 12.15, and determined that Mr. Skurka did not

meet any of those listings. Id.

The ALJ assessed Mr. Skurka’s RFC. In making this RFC assessment, the

ALJ reviewed Mr. Skurka’s assertions regarding his limitations, his treatment

records, and the statements of Mr. Skurka’s father. Id. at 21–25. The ALJ found

that Mr. Skurka’s medically determinable impairments reasonably could be

expected to cause his alleged symptoms. Id. at 25. But he found that Mr. Skurka’s

statements regarding the “intensity, persistence and limiting effects” of his

symptoms were “not entirely consistent with the medical evidence and other

evidence in the record for the reasons explained in [his] decision.” Id.

The ALJ also reviewed the opinion evidence in the record. Id. at 26–27. In

this regard, the ALJ considered Mr. Skurka’s GAF scores, and he gave those

scores only partial weight. Id. at 26.

The ALJ gave little weight to the opinion of Dr. Berger, who was Mr.

Skurka’s treating psychiatrist and who opined the Mr. Skurka had a host of marked

and extreme limitations and, as a result, he would miss work three times a month.

Id. at 27. The ALJ concluded that “[t]here is a lack of objective clinical or

laboratory finding to support the degree of limitation that Dr. Berger finds.” Id.

The ALJ also reasoned that Dr. Berger “does not relate his opinion to any specific

findings; his opinion is not supported by his reports, which indicate only routine

outpatient care, with often noncompliant use of prescribed medication; and his

assessment is inconsistent with [Mr. Skurka]’s self-reported activities of daily

living.” Id.

The ALJ asserted that he gave partial weight to the opinion of Dr. Grabon,

who conducted a consultative examination of Mr. Skurka and who opined as to Mr.

Skurka’s physical limitations. Id. As to Dr. Grabon’s opinion, the ALJ asserted:

The undersigned gives this opinion partial weight, as it is

consistent in some areas with the relatively benign observations

and findings during the evaluation. However, it appears that

the examiner relied on the claimant’s subjective reports of

symptoms in some instances, and these limitations are not

consistent with the evidence documented in his longitudinal

treatment records.

Id.

Finally, without explicitly stating what, if any, weight he assigned to the

opinions of the State Agency medical consultants, who evaluated Mr. Skurka at the

initial level, the ALJ stated that he considered these opinions. Id. But the ALJ

concluded that “[w]hile these opinions were reasonable at the time they were

rendered, additional evidence received since that time convinces the undersigned

that [Mr. Skurka] is more limited than was originally thought.” Id.

The ALJ found that Mr. Skurka had the RFC to perform sedentary work6

with the following limitations:

he can lift/carry 20 pounds occasionally and 10 pounds

frequently; stand/walk a total of two hours in an 8-hour

workday; sit a total of six hours in an 8-hour workday;

occasionally push/pull with the left lower extremity, but not

repetitively; occasionally climb ramps and stairs but never

ladders, ropes, or scaffolds; occasionally balance, stoop, kneel,

and crouch; never crawl; occasionally feel bilaterally; cannot

use his left eye; must avoid work involving potentially

heightened risk of eye injury, such as welding, grinding,

cutting, and sawing; must be afforded the ability to wear eye

protection to protect vision of his better eye; should avoid

concentrated exposure to extreme cold, vibration, and hazards;

would be limited to unskilled work, involving only simple tasks

that are not performed in a fast-paced production environment;

would be limited to low-stress occupations with only

occasional, simple, decision making and occasional changes in

work duties or work settings; and can have only occasional

interaction with the public, coworkers, and supervisors.

Id. at 20.

At step four of the sequential-evaluation process, the ALJ found that Mr.

Skurka could not perform his past relevant work in cemetery sales and credit-card-

equipment sales. Id. at 28.

6 See 20 C.F.R. § 416.967(a) (“Sedentary work. Sedentary work involves lifting no

more than 10 pounds at a time and occasionally lifting or carrying articles like

docket files, ledgers, and small tools. Although a sedentary job is defined as one

which involves sitting, a certain amount of walking and standing is often necessary

in carrying out job duties. Jobs are sedentary if walking and standing are required

occasionally and other sedentary criteria are met.”)

At step five of the sequential-evaluation process, considering Mr. Skurka’s

age, education, work experience, and RFC, as well as the testimony of a vocational

expert, the ALJ found that there were other jobs—such as scanner, inspector, and

assembler—that exist in significant numbers in the national economy that Mr.

Skurka could perform. Id. at 29.

In sum, the ALJ concluded that Mr. Skurka was not disabled since July 27,

2016, the date he applied for SSI benefits. Id. at 30.

V. Discussion.

Mr. Skurka claims that the ALJ erred: (1) by failing “to recognize that the

prior ALJ who denied Plaintiff’s [Disability Insurance Benefits] claim in 2014 was

not constitutionally appointed, and improperly relied on that decision as res

judicata in refusing to allow Plaintiff to amend his alleged onset date and [pursue]

his claims for both [Disability Insurance Benefits] and SSI”; (2) by failing “to

assign significant weight to the assessment of the treating psychiatrist for

erroneous reasons”; (3) by failing “to assign significant weight to the assessment of

the consultative physician for erroneous reasons”; and (4) by failing “to present a

hypothetical question containing all of Plaintiff’s credibly established limitations to

the [Vocational Expert].” Doc. 15 at 3.

Given the ALJ’s extremely terse analysis of the opinion of Dr. Grabon, the

consulting examiner, we start with Mr. Skurka’s third claim—that the ALJ erred

with respect to the weight he assigned to Dr. Grabon’s assessment. Because the

ALJ did not adequately explain his reasoning for rejecting some of the limitations

set forth by Dr. Grabon, the ALJ has not met his burden of articulation. Lacking a

clear explanation of the ALJ’s reasoning, we cannot conclude that the ALJ’s

decision was supported by substantial evidence. The ALJ’s decision, therefore,

will be vacated and Mr. Skurka’s case remanded for further proceedings.

A. Dr. Grabon’s Examination and Assessment.

Dr. Grabon examined Mr. Skurka, and he completed a report of that

examination dated December 9, 2016. Admin. Tr. at 453–469. Dr. Grabon

summarized Mr. Skurka’s complaints. Id. at 453–454. As most relevant here, Dr.

Grabon summarized Mr. Skurka’s complaints regarding his hips as follows:

He has a history of Legg-Calve-Perthes disease as well, going

back to 1980. He had a fusion of the left hip. He said he needs

a hip replacement, but he is too heavy at this time for a hip

replacement. He developed pain into the right hip as well as

into the back. The pain in the left hip is currently 8/10, sharp,

constant, and toothache like. He says he cannot sit still, trouble

with going up and down stairs. He has been taking OxyContin.

The right hip has started acting up and getting worse, achy pain,

also is mild, chronic.

Id. at 453. Dr. Grabon also stated in his report that he reviewed some of Mr.

Skurka’s records. Id. at 455.

And Dr. Grabon conducted a physical examination of Mr. Skurka. Id. at

455–57. As most relevant here, Dr. Grabon recorded his observations regarding

Mr. Skurka’s general appearance, gait, and station:

The claimant appeared to be in no acute distress. Gait is

antalgic on the left. Declines to walk on heels and toes

secondary to pain, unsteady, and loss of balance appreciated.

Squat 30 degrees. Stance normal. Assistive device: Straight

cane improves his stride length and stability. Needed no help

changing for exam or getting on and off exam table. Able to

rise from chair without difficulty.

Id. at 455–56. And he recorded his observations as to Mr. Skurka’s

musculoskeletal and neurological systems:

MUSCULOSKELETAL: No scoliosis, kyphosis, or

abnormality in thoracic spine. SLR negative bilaterally both

seated and supine. No evident joint deformity. Tenderness to

palpation at the lumbar facets and bilateral SI joints. No

redness, heat, or effusion.

NEUROLOGIC: DTRs physiologic and equal in upper and

lower extremities. Decreased sensation to light touch fingertips

of the hands and stocking-glove distribution to the feet.

Strength 4/5 throughout the left lower extremity, 5/5 in right

lower extremity and bilateral upper extremities.

Id. at 456.

Dr. Grabon listed Mr. Skurka’s diagnoses as: (1) Diabetes; (2) Hypertension;

(3) Hyperlipidemia; (4) Left eye blindness; (5) Low back pain; (6) History of

Legg-Calve-Perthes disease, status post left hip fusion in 1980s, with persistent

pain; (7) Headaches; (8) Depression; (9) Bipolar; (10) Post-traumatic stress

disorder; (11) Obsessive-compulsive disorder; and (12) Lower extremity

neuropathy. Id. at 457. And he concluded that Mr. Skurka’s prognosis was “Fair to

guarded.” Id.

Dr. Grabon also completed a “Medical Source Statement of Ability to do

Work-Related Activities (Physical)” as well as “Range of Motion Chart.” Id. at

458–63, 464–67. In his Medical Source Statement, Dr. Grabon opined that Mr.

Skurka had the following limitations: he can lift and carry up to only ten pounds

occasionally; he can sit, stand, and walk one hour without interruption and four

hours in an eight-hour work day; he requires the use of a cane, which is medically

necessary, to ambulate, but he can walk 30-40 feet without the cane; he can use his

right foot continuously and his left foot frequently; he can occasionally climb stairs

and ramps, stoop, kneel, crouch, and crawl, but he can never climb ladders or

scaffolds or balance; he can never work at unprotected heights; and he cannot walk

a block at a reasonable pace on rough or uneven surfaces. Id. at 458–63.

B. The ALJ failed to adequately articulate reasons for assigning partial

weight to Dr. Grabon’s opinion.

The ALJ’s discussion of Dr. Grabon’s opinion was brief. After summarizing

Dr. Grabon’s report, the entirety of the ALJ’s analysis of that report is as follows:

The undersigned gives this opinion partial weight, as it is

consistent in some areas with the relatively benign observations

and findings during the evaluation. However, it appears that

the examiner relied on the claimant’s subjective reports of

symptoms in some instances, and these limitations are not

consistent with the evidence documented in his longitudinal

treatment records.

Id. at 27.

In weighing any medical opinion, the ALJ must clearly articulate his or her

reasoning. In other words, the ALJ must “set forth the reasons for his decision” to

allow for meaningful judicial review. Burnett, 220 F.3d at 119 (citing Cotter, 642

F.2d at 704–05). Although an ALJ need not “use particular language or adhere to a

particular format in conducting his analysis,” the ALJ must ensure “sufficient

development of the record and explanation of findings to permit meaningful

review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). The ALJ’s decision

must set out “a clear and satisfactory explication of the basis on which it rests.”

Cotter, 642 F.2d at 704. If an ALJ “has not sufficiently explained the weight given

to all probative exhibits, ‘to say that [the] decision is supported by substantial

evidence approaches an abdication of the court’s duty to scrutinize the record as a

whole to determine whether the conclusions reached are rational.’” Dantzler v.

Saul, No. 3:16-CV-2107, 2019 WL 5569466, at *1 (M.D. Pa. Oct. 28, 2019)

(quoting Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979)).

Here, the ALJ’s rationale for rejecting some of the limitations set forth by

Dr. Grabon is too opaque to permit meaningful judicial review. Although the ALJ

states that he gave Dr. Grabon’s opinion partial weight, he fails to state which

limitations set forth by Dr. Grabon he accepted and which he rejected. Further,

although the ALJ stated that “it appears” that Dr. Grabon relied on Mr. Skurka’s

subjective symptoms in some instances, he points to nothing in Dr. Grabon’s report

to support that assertion. And he does not indicate in which instances, Dr. Grabon,

who physically examined Mr. Skurka and reviewed some of records, relied on Mr.

Skurka’s subjective reports of symptoms.7 Finally, although the ALJ contends that

some of the limitations set forth by Dr. Grabon are not consistent with Mr.

Skurka’s “longitudinal treatment records,” the ALJ fails to specify which

limitations are not consistent with the treatment records. Moreover, he fails to cite

to any treatment records. In sum, the ALJ simply has not sufficiently explained his

decision to provide partial weight to the opinion of Dr. Grabon such that we can

review that decision.

And we cannot say that the ALJ’s error in this regard was harmless because

had the ALJ credited Dr. Grabon’s opinion, the RFC that he crafted would likely

have been significantly different from the one he set forth. Take for example, Mr.

Skurka’s ability to sit. Dr. Grabon opined that Mr. Skurka could sit for a total of

7 In his brief, the Commissioner asserts that the ALJ, who found Mr. Skurka only

partially credible, “may appropriately discount the opinion of Dr. Grabon to the

extent that it was based on Plaintiff’s subjective symptoms.” Doc. 18 at 21–22

(citing Morris v. Barnhart, 78 F. App’x 820, 825 (3d Cir. 2003) (“An ALJ may

discredit a physician’s opinion on disability that was premised largely on the

claimant’s own accounts of her symptoms and limitations when the claimant’s

complaints are properly discounted.”)). That begs the question, however, whether

Dr. Grabon’s opinion was based on Mr. Skurka’s subjective complaints. And the

Commissioner has made no attempt to show whether, or to what extent, Dr.

Grabon’s opinion was based on Mr. Skurka’s subjective complaints.

four hours in an eight-hour workday. Id. at 459. But without saying why he

rejected that specific limitation, the ALJ concluded (without citation to anything in

the record to support that conclusion) that Mr. Skurka could sit for a total of six

hours. Id. at 28. Whether Mr. Skurka could sit for only four hours in an eight-hour

day or he could sit for six-hours in an eight-hour day makes a difference as to

whether Mr. Skurka can engage in sedentary work.

Further, we reject the Commissioner’s post hoc attempt to provide the

reasoning missing from the ALJ’s decision. In his brief, the Commissioner points

out that Dr. Lombard, the state agency physician, opined that Mr. Skurka could sit

for six hours in an eight-hour workday. Doc. 18 at 22. The Commissioner asserts

that “[a]lthough Dr. Lombard’s opinion was not adopted by the ALJ, it lends

support to the ALJ’s assessment that Plaintiff remained able to sit for six hours in

an eight-hour workday.” Id. “The court may not, however, evaluate the ALJ’s

administrative decision on any grounds other than those the ALJ actually relied

upon in making his decision.” Jury v. Colvin, No. 3:12-CV-2002, 2014 WL

1028439, at *6 n.13 (M.D. Pa. Mar. 14, 2014) (citing SEC v. Chenery, 332 U.S.

194, 196 (1947) (stating that a court must judge the propriety of an administrative

decision that the “administrative agency alone is authorized to make” solely on the

grounds the agency invoked, and if those grounds are inadequate or improper, the

court cannot affirm the agency’s decision)). In this case, the ALJ did not rely on

Dr. Lombard’s opinion in rejecting Dr. Grabon’s opinion. In fact, the ALJ appears

to have rejected Dr. Lombard’s opinion. Admin. Tr. at 27 (stating that he

considered the opinions of the state agency medical consultants and concluding

that “[w]hile these opinions were reasonable at the time they were rendered,

additional evidence received since that time convinces the undersigned that [Mr.

Skurka] is more limited than was originally thought.”). Thus, we reject the

Commissioner’s invitation to affirm the ALJ’s decision based on evidence that the

ALJ did not credit.

Similarly, in an attempt to bolster the ALJ’s decision, the Commissioner in

his brief contends that Mr. Skurka’s daily activities support the ALJ’s decision to

not credit Dr. Grabon’s opinion. Doc. 18 at 22. Again, however, the ALJ did not

rely on Mr. Skurka’s daily activities as a reason to reject Dr. Grabon’s opinion.

Therefore, neither can we.

The Commissioner also points to numerous references from the records of

Dr. Berger’s office that plaintiff walked with a normal gait at his visits. Id. Dr.

Berger was Mr. Skurka’s treating psychiatrist, and he did not render an opinion on

Mr. Skurka’s physical limitations. But as long as we are cherry picking references

from a psychiatrist’s records regarding Mr. Skurka’s physical limitations, we note

that in addition to the references in Dr. Berger’s records that Mr. Skurka walked

with a normal gait, there are also numerous references in the records from Dr.

Berger’s office that Mr. Skurka had a limping gait. See e.g. Admin. Tr. at 541

(progress note from July 18, 2018—“Walks with a limping gait.”); at 535 (progress

note from July 3, 2018—“Walks with a limping gait.”); at 478 (progress note from

May 15, 2018—“Walks with a limping gait.”); at 484 (progress note from May 1,

2018—“Walks with a limping gait.”). And there are numerous references that Mr.

Skurka was experiencing pain apparently while sitting. See e.g. Admin. Tr. at 537

(progress note from July 12, 2018—“Appears to be in moderate-severe distress,

moderate discomfort, experiencing pain and pain is indicated by changing

positions often.”); at 531 (progress note from June 28, 2018—“Appears to be in

moderate-severe distress, moderate discomfort, experiencing pain and pain is

indicated by changing positions often.”); at 484 (progress note from May 1,

2018—“Patient is experiencing obvious discomfort and pain is indicated by facial

grimace.”); at 486 (progress note from April 19, 2018—“Appears to be in

moderate-severe distress, moderate discomfort, experiencing pain and pain is

indicated by changing positions often.”); at 488 (progress note from April 5,

2018—“Appears to be in moderate-severe distress, moderate discomfort,

experiencing pain and pain is indicated by changing positions often.”). In any

event, the ALJ did not rely in Dr. Berger’s records to discount the opinion of Dr.

Grabon. Neither can we.

In sum, given the ALJ’s conclusory treatment of Dr. Grabon’s opinion, we

cannot conclude that substantial evidence supports the ALJ’s decision.

Accordingly, we will remand the case the Commissioner for further proceedings.

C. Mr. Skurka’s Other Claims of Error.

Because we conclude that the Commissioner’s decision must be vacated and

the case remanded based on the ALJ’s handling of Dr. Grabon’s opinion, we will

not address Mr. Skurka’s remaining claims of error. “Plaintiff’s additional claims

of error may be remedied through the case’s treatment on remand.” Brown v. Saul,

No. CV 3:18-1619, 2020 WL 6731732, at *7 (M.D. Pa. Oct. 23, 2020), report and

recommendation adopted, 2020 WL 6729164, at *1 (M.D. Pa. Nov. 16, 2020). “A

remand may produce different results on these claims, making discussion of them

moot.” Id.

VI. Conclusion.

For the foregoing reasons, the decision of the Commissioner will be vacated,

and the case will be remanded to the Commissioner for further consideration. An

appropriate order follows.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge