“[T]he court has plenary review of all legal issues . . . .”
How later courts described this case
- “[T]he court has plenary review of all legal issues . . . .”
- “The Secretary’s determination as to the status of a claim requires the correct application of the law to the facts.”
- noting that the scope of review on legal 15 matters is plenary
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROSALYN RIVERA ROLON, : Civil No. 1:20-CV-00800
:
Plaintiff :
:
v. :
: (Magistrate Judge Carlson)
ANDREW SAUL :
Social Security Commissioner, :
:
Defendant :
MEMORANDUM OPINION
I. Introduction
Disability determinations often involve evaluation of a claimant’s changing
medical condition over time. One critical aspect of this analysis is ensuring that
material changes in the claimant’s health are fully and adequately considered. Where
a material change in the claimant’s health is not acknowledged or evaluated a remand
is often necessary. This is particularly true in cases where the ALJ relies upon a
medical opinion issued at an earlier stage in the disability evaluation process without
considering how later developments may have undermined those initial medical
opinions and assessments.
So it is here.
1
In the instant case, an ALJ denied a disability application submitted by
Rosalyn Rivera Rolon. Rolon now appeals the ALJ’s denial of her disability
application, in which the ALJ found that Rolon could perform a range of sedentary
work with some additional postural limitations. Specifically, the ALJ found that
Rolon could perform sedentary work but was limited to only occasionally stooping,
crouching, crawling, kneeling, squatting or climbing ramps and stairs; but could
never climb ladders, ropes or scaffolds. The ALJ reached this conclusion even
though the medical records indicated Rolon suffers from avascular necrosis in her
right foot, and was required to undergo two surgeries in 2018 which left her
dependent on an assistive device for ambulation.
We view this as a case in which there was a material change in Rolon’s health
following the collapse of the navicular bone in Rolon’s right foot due to avascular
necrosis and the surgeries which Rolon was required to undergo to address this
condition.1 In our view, the ALJ’s decision did not adequately consider, analyze or
address this material change in Rolon’s physical condition. Thus, after a review of
the record, including the extensive medical history regarding two separate foot
1 Avasular necrosis is the pathologic death of one or more cells, or of a portion of
tissue or organ resulting from irreversible damage; resulting from deficient oxygen
supply. Stedman’s Medical Dictionary, 28th Edition; Lippincott, Williams and
Wilkins Pub.
2
surgeries and Rolon’s use of a rolling walker and cane at the direction of hospital
staff, we find that the ALJ’s RFC determination is not supported by substantial
evidence. Accordingly, since this material change in Rolon’s physical condition was
not sufficiently addressed by the ALJ we will order that this case be remanded for
further consideration.
II. Factual Background
A. Rolon’s Medical History
Ms. Rolon filed for disability insurance benefits and for supplemental security
income on July 20, 2017. (Tr. 12, 189-95, 196-205). She was 39 years old as of the
alleged onset date of September 1, 2012 and had a high school education and past
work as a child monitor/babysitter. (Tr. 22, 89, 97). Rolon alleged impairments of
inflammatory polyarthritis, fibromyalgia, undifferentiated connective tissue
disorder, obstructive sleep apnea, depression, swelling in legs, unable to stand, and
unable to use hands and arms. (Tr. 218).
In April of 2018, Rolon was treated for foot pain in her right foot which was
diagnosed to be a reoccurrence and worsening of avascular necrosis, which had
remained asymptomatic from 2015 through 2018. (Tr. 864). Dr. Overholt at
Wellspan Health Orthopedics found that “[t]here is significant deformity of the
navicular bone or collapse” and opined that a referral should be made to a foot and
3
ankle specialist at Hershey Medical Center. (Id.) On June 14, 2018, it was noted that
post-surgery Rolon was able to wear only a post-op shoe, and that her situation was
improved some but she required a referral to a specialist at Hersey Medical Center,
as “she may need some type of resection and fusion secondary to her avascular
necrosis.” (Tr. 866-67).
On July 22, 2018 Rolon was referred to Good Samaritan Hospital Physical
Therapy to undergo therapy. (Tr. 1046-47). Treatment notes noted that MRI showed
a collapsed bone and that surgery was scheduled for August 21, 2018. (Tr. 1048).
An assessment of her functional limitations indicated that she had moderate
limitations, but that her limitations “will be severe after surgery.” (Tr. 1047). Her
prognosis was listed as fair, and it was noted that “the reality of using a walker for
[non-weightbearing] is questionable” given her upper extremity limitations. (Id.) It
was noted that Rolon needed assistance with her activities of daily living, assistance
with homemaking, and assistance with dressing. (Tr. 1048). The treatment notes
also indicated that Rolon underwent instruction and training on how to stand with
the use of a rolling walker with a noted goal for Rolon to gain the ability to walk
with the use of a rolling walker. (Tr. 1050).
An August 2, 2018 note indicates that hospital staff transferred Rolon from a
car to a wheelchair for visits. (Tr. 1072). It was noted that Rolon was capable of
4
transfer from a wheelchair to car or bed with rolling walker or no device; did not
tolerate ambulation with a rolling walker while not weight bearing on right lower
extremity, but was able to tolerate partial weight bearing and use of a rolling walker.
(Tr. 1074). At an August 3, 2018 physical therapy appointment, Rolon questioned
whether she would be able to use a scooter or walker due to pain in her shoulders
and knees. (Tr. 1083). On August 7, 2018 it was noted that Rolon would be given a
scooter that day and a wheelchair in the future. (Tr. 1097). On August 14, 2018,
physical therapists were attempting to train Rolon in good tolerance and safe use of
a knee scooter. (Tr. 1113).
Hershey Medical Center records indicate that on August 31, 2018, Rolon
underwent a right excision navicular triple arthorodesis, calcaneal bone grafting and
naviculoceneform fusion. (Tr. 1253). It was noted that prior to the procedure, Rolon
was capable of walking slowly with a cane with only 1-3 METS functional capacity.
(Id.) The operative report indicates a preoperative diagnosis of right hindfoot and
mid foot arthritis, pes planovalgus, Mueller-Weiss syndrome, and Achilles
contracture, with an identical post-operative diagnosis. (Tr. 1289). The following
procedures were performed: right subtalar fusion; right talonavicular fusion; right
navicular cuneiform fusion of the medial and lateral navicular cuneiform joints; iliac
crest bone grafting, right iliac crest; and percutaneous tendo-Achilles lengthening.
5
(Id.) Hersey Medical Center records indicate that post-surgery, Rolon ambulated
with the use of a walker. (Tr. 1168).
Rolon was admitted to a nursing facility post-surgery while her children were
cared for by her mother. (Tr. 1199). As of September 29, 2018, she remained in the
nursing facility where it was noted that Rolon remained on Toe Touch Weight
Bearing. (Tr. 1193). These treatment notes also indicated that Rolon’s activities of
daily living had decreased due to her pain and inability to complete these activities
without assistance of a wheelchair. (Id.) Notes from Hersey Medical Center indicate
that on October 11, 2018 Rolon appeared at follow-up appointment complaining of
pain and swelling in the foot, which was “worse in dependent position.” (Tr. 1232).
A treatment note from October 25, 2018 noted an x-ray that indicated a possible
ankle fracture. (Tr. 1225). This note also stated that Rolon had fallen about a week
after her surgery, which made her pain worse. (Id.) An x-ray of the foot taken at
Hersey Medical Center on November 20, 2018 indicated that osteonecrosis of the
navicular with fracture remained unchanged and that there was diffuse soft tissue
swelling in the foot. (Tr. 1224).
In addition to this objective medical evidence concerning Rolon’s foot pain,
medical opinions were rendered both prior to and subsequent to the onset of Rolon’s
recurrence of avascular necrosis. Thus, in August of 2017, Carla Huitt, M.D.,
6
performed an internal medicine examination of Rolon at the request of the
Commissioner, prior to the onset of the reoccurrence of avascular necrosis. (Tr. 648).
Dr. Huitt diagnosed Rolon with morbid obesity, undifferentiated connective tissue
disease, obstructive sleep apnea, history of fibromyalgia, and status post
arthroscopic surgery to the right shoulder and left knee. (Tr. 648-662). It was noted
that Rolon’s activities of daily living consisted of cooking, cleaning, going to church,
and was able to dress herself without assistance. (Tr. 649). Dr. Huitt opined that
Rolon was capable of standing and walking for a total of two hours in an eight hour
day, but was capable of occasionally lifting and carrying up to 50 pounds. (Tr. 654).
On September 13, 2017 state agency consultative examiner, Michael Brown,
D.O., performed a physical residual functional capacity assessment. (Tr. 103-05).
Dr. Brown opined that Rolon could lift and carry up to 10 pounds frequently and up
to 20 pounds occasionally, could sit for 6 hours or more and could walk and stand
for up to 4 hours each an average workday. (Id.) Dr. Brown’s assessment included a
notation that Rolon did not require an assistive device to ambulate. (Tr. 105).
Following Rolon’s diagnosis of avascular necrosis, in January of 2019, Dr.
Sowmya Surapaneni, M.D., a rheumatologist who treated Rolon for fibromyalgia in
the relevant period, opined that Rolon would have mild to moderate functional
limitations but would be expected to be absent from work four days per month,
7
would be expected to be off task from work 20% of the time, would require up to 3
unscheduled 10 minute work breaks per day; and would require the ability to elevate
her legs at waist level 40% of the workday. (Tr. 1492-1497). This was the only
opinion rendered subsequent to the onset of Rolon’s recurrence of avascular
necrosis.
At the administrative hearing in January of 2019, Rolon testified that she was
placed in ManorCare, a rehabilitation center, and that her wounds were healing and
looking good but that she was released from ManorCare in October. (Tr. 54-55). She
reported that she had been given a scooter and then a wheelchair because she was
not weight bearing. (Tr. 55). She was using a rolling walker at the time of the
hearing, and her doctor, who she would see again in March, had told her that she
could start putting pressure on it while using the walker and would be able to
eventually use a cane. (Tr. 55-56). Rolon stated that she was not able to wear her
shoes and was only able to wear slippers due to the swelling in her foot. (Tr. 58).
She testified that she would try to make meals for her children but that her foot would
swell and that she would need to use a bariatric walker which allowed her to sit. (Tr.
58-59). Rolon further testified that prior to the surgery she used a cane to walk. (Tr.
59). Throughout the hearing, the ALJ and Rolon’s attorney asked questions
regarding functioning with a reference to her activity “prior to the surgery.” Rolon
8
testified that prior to the surgery, she would elevate her feet but that after the surgery
she was told to elevate them at heart level. (Tr. 73-76).
A Vocational Expert (“VE”) also testified at the administrative hearing. The
ALJ posed a hypothetical to the VE, which asked the expert to identify jobs that an
individual of the claimant’s age, education and past work history could perform with
the following limitations:
For the first hypothetical I want you to consider an individual with the
same age, education, past work as the claimant who is capable of the
following: lift and/or carry 20 pounds occasionally, 10 pounds
frequently; can sit six hours; can stand or walk four hours each per
eight-hour day; occasional postural but no ladders, ropes or scaffolds.
(Tr. 83). The ALJ asked a second hypothetical, with the only difference being a
sedentary limitation. (Tr. 84).
Thus, the ALJ’s hypothetical questions to the expert did not make any
reference to Rolon’s use of an assistive device or the necessity to elevate her feet at
waist level. (Id.) However, when the plaintiff’s counsel asked the expert whether
these jobs would allow for an individual to raise their feet to waist level, as Rolon
stated is required and as Dr. Surapaneni stated was required to alleviate swelling in
Rolon’s right foot, and required the use of a roller to ambulate, the expert testified
that there would be no jobs for such a hypothetical individual. (Tr. 86).
9
It was against this backdrop that the ALJ issued a decision denying Rolon’s
claim.
B. The ALJ’s Decision
Rolon applied for disability insurance benefits and supplemental security
income on May 30, 2017, alleging an onset date of September 1, 2012. (Tr. 12). Her
initial applications for benefits were denied on September 14, 2017. (Tr. 111-15,
116-20). Thereafter, Rolon requested a hearing on November 3, 2017. (Tr. 127-28).
A hearing was held on January 14, 2019. (Tr. 12). At the hearing, both Rolon and a
Vocational Expert testified. (Id.) By a decision dated March 12, 2019, the ALJ
denied Rolon’s application for benefits. (Tr. 12-23).
At the outset, the ALJ first concluded that Rolon met the insured status
requirements of the Social Security Act through June 30, 2015, and that she had not
engaged in any substantial gainful activity since her alleged onset date of disability,
September 1, 2012. (Tr. 14). At Step 2 of the sequential analysis that governs Social
Security cases, the ALJ found that Rolon had the following severe impairments:
degenerative joint disease, obesity, and fibromyalgia. (Id.) The ALJ also noted that
the plaintiff’s asthma and sleep apnea did not meet the criteria for a severe
impairment. (Tr. 14-15). The ALJ found that Rolon suffered from avascular necrosis
10
of the right foot, which was asymptomatic from July 2015 through April of 2018,
but noted that:
In 2018, the claimant’s records showed her to have some progressive
changes but was noted within a few months to demonstrate significant
improvement in her pain with surgical intervention and the use of a
post-op shoe (Exhibit 8F, page 10). Though the claimant was noted as
unable to use a regular shoe, her records suggested little evidence of
any functional loss with use of her prescribed post-op shoe. (Exhibit
8F, page 11).
(Tr. 15). Accordingly, the ALJ found the plaintiff’s avascular necrosis to be a
nonsevere impairment. (Id.) The ALJ also found that Rolon’s depression was
nonsevere. (Tr. 18). At Step 3, the ALJ found that none of Rolon’s impairments met
or medically equaled a listed impairment. (Id.)
Between Steps 3 and 4, the ALJ fashioned a residual functioning capacity
(“RFC”), taking into account Rolon’s limitations from her impairments:
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a).
However, the claimant can only occasionally perform all postural
activities, except that the claimant can never climb ladders, ropes, or
scaffolds.
(Tr. 17).
Specifically, in making this RFC determination, the ALJ found the opinion of
Dr. Huitt to be persuasive. (Tr. 20). The ALJ reasoned that Dr. Huitt’s opinion was
consistent with her own clinical findings and observations, which found no evidence
11
of a sensory deficit, impaired gait, diminished strength, or evidence of muscle
atrophy. (Id.) The ALJ further stated that Dr. Huitt’s opinion was consistent with the
2019 opinion of Dr. Surapaneni to the extent that opinion showed that Rolon could
work at a sedentary level. (Id.)
The ALJ found Dr. Surapaneni’s opinion persuasive to the extent that she
opined Rolon could engage in sedentary work but not persuasive in that Dr.
Surapaneni opined that Rolon would be absent for 4 days a month, off task for 20%
of the day, or required to elevate her leg for 40% of the day. (Id.) The ALJ opined
that these limitations were inherently inconsistent with the level of sedentary work
that Dr. Surapaneni stated Rolon could perform, including her need for breaks and
to elevate her legs. (Id.) Notably, the ALJ further reasoned that Dr. Surapaneni’s
additional restrictions were unsupported by the longitudinal treatment records and
history of routine and conservative treatment. (Id.) Significantly, there is no mention
of Rolon’s two surgeries that she underwent in 2018 for her avascular necrosis, or
any mention of how those surgeries affected this residual functional capacity
assessment, particularly given that the treatment records indicated Rolon required
the assistance of a walker or wheelchair prior to and following her August 2018
surgery. Indeed, as we have noted, treatment records through November of 2018
indicated that Rolon required the use of an assistive device to ambulate.
12
The ALJ further found the opinion of state agency consultant Dr. Brown
persuasive, noting that Dr. Brown’s opinion was consistent with the medical record
and was based on his expert evaluation of the medical issues. (Tr. 20-21). The ALJ
reasoned that although there was medical evidence submitted after Dr. Brown
rendered his opinion, the new evidence did not demonstrate a significant decline in
Rolon’s functioning. (Tr. 21). Again, and significantly, we note that there is no
discussion concerning Rolon’s surgeries or her post-operative pain and functional
limitations, which occurred after Dr. Brown rendered his opinion in 2017.
Thus, at Step 4, the ALJ found that Rolon could not perform her past relevant
work as a child monitor (Tr. 22), but found at Step 5 that there were jobs in the
national economy that Rolon could perform, including an information clerk, credit
clerk, and product inspector. (Tr. 22-23). Accordingly, the ALJ determined that
Rolon was not disabled and denied her claim for benefits. (Tr. 23). Rolon requested
a review of the ALJ’s decision, which was denied by the Appeals Council. (Tr. 1-6).
This appeal followed. (Doc. 1).
On appeal, Rolon contends that the ALJ’s decision is not based on substantial
evidence as required under 42 U.S.C. § 405(g) because the ALJ erred in finding
Rolon’s right foot avascular necrosis and migraines nonsevere at step 2; erred in his
consideration of Rolon’s morbid obesity; erred in failing to consider Rolon’s need
13
for an assistive device; and erred in failing to comply with SSR 96-8; and that the
Appeals Council erred in failing to consider new evidence. (Doc. 18, at 5). For the
reasons set forth below, we agree and find that the ALJ erred in finding Rolon’s right
foot avascular necrosis nonsevere at step 2 and, in turn, erred in failing to consider
the limiting effects of this impairment and Rolon’s need for the use of an assistive
device in his RFC determination. Accordingly, we will order that the ALJ’s decision
be vacated and the case be remanded to the Commissioner for further proceedings.
III. Discussion
A. Substantial Evidence Review – the Role of this Court
When reviewing the Commissioner’s final decision denying a claimant’s
application for benefits, this Court’s review is limited to the question of whether the
findings of the final decision-maker are supported by substantial evidence in the
record. See 42 U.S.C. § 405(g); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200
(3d Cir. 2008); Ficca v. Astrue, 901 F. Supp.2d 533, 536 (M.D. Pa. 2012).
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, 565 (1988). Substantial
evidence is less than a preponderance of the evidence but more than a mere scintilla.
Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not
14
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 decision]
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 the claimant is
disabled, but rather whether the Commissioner’s finding that he is not disabled is
supported by substantial evidence and was reached based upon a correct application
of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205,
at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ’s errors of law denote
a lack of substantial evidence.” )(alterations omitted); Burton v. Schweiker, 512 F.
Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary’s determination as to the status of
a claim requires the correct application of the law to the facts.”); see also Wright v.
Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal
15
matters is plenary); Ficca, 901 F. Supp.2d at 536 (“[T]he court has plenary review
of all legal issues . . . .”).
Several fundamental legal propositions which flow from this deferential
standard of review. First, when conducting this review “we are mindful that we must
not substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777
F.3d 607, 611 (3d Cir. 2014) (citing Rutherford, 399 F.3d at 552). Thus, we are
enjoined to refrain from trying to re-weigh the evidence. Rather our task is to simply
determine whether substantial evidence supported the ALJ’s findings. However, we
must also ascertain whether the ALJ’s decision meets the burden of articulation
demanded by the courts to enable informed judicial review. Simply put, “this Court
requires the ALJ to set forth the reasons for his decision.” Burnett v. Comm’r of Soc.
Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). As the Court of Appeals has noted
on this score:
In Burnett, we held that an ALJ must clearly set forth the reasons for
his decision. 220 F.3d at 119. Conclusory statements . . . are
insufficient. The ALJ must provide a “discussion of the evidence” and
an “explanation of reasoning” for his conclusion sufficient to enable
meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d
501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ
particular “magic” words: “Burnett does not require the ALJ to use
particular language or adhere to a particular format in conducting his
analysis.” Jones, 364 F.3d at 505.
Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
16
Thus, in practice ours is a twofold task. We must evaluate the substance of the
ALJ’s decision under a deferential standard of review, but we must also give that
decision careful scrutiny to ensure that the rationale for the ALJ’s actions is
sufficiently articulated to permit meaningful judicial review.
B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ
To receive benefits under the Title II or Title XVI of the Social Security Act
by reason of disability, a claimant 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. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(A); see also 20 C.F.R.
§§404.1505(a), 416.905(a). 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 activity that exists in the national
economy. 42 U.S.C. §423(d)(2)(A); 42 U.S.C. §1382c(a)(3)(B); 20 C.F.R.
§§404.1505(a), 416.905(a). To receive benefits under Title II of the Social Security
Act, a claimant must show that he or she contributed to the insurance program, is
under retirement age, and became disabled prior to the date on which he or she was
last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).
17
In making this determination at the administrative level, the ALJ follows a
five-step sequential evaluation process. 20 C.F.R. §§404.1520(a), 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.
§§404.1520(a)(4), 416.920(a)(4).
Between Steps 3 and 4, the ALJ must also assess a claimant’s residual
functional capacity (RFC). RFC is defined as “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., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R.
§§404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). In making this
assessment, the ALJ considers all of the claimant’s medically determinable
impairments, including any non-severe impairments identified by the ALJ at step
two of his or her analysis. 20 C.F.R. §§404.1545(a)(2), 416.945(a)(2).
There is an undeniable medical aspect to an RFC determination, since that
determination entails an assessment of what work the claimant can do given the
18
physical limitations that the claimant experiences. Yet, when considering the role
and necessity of medical opinion evidence in making this determination, courts have
followed several different paths. Some courts emphasize the importance of medical
opinion support for an RFC determination and have suggested 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.”
Biller v. Acting Comm’r of Soc. Sec., 962 F. Supp. 2d 761, 778–79 (W.D. Pa. 2013)
(quoting Gormont v. Astrue, Civ. No. 11–2145, 2013 WL 791455 at *7 (M.D. Pa.
Mar. 4, 2013)). In other instances, it has been held that: “There is no legal
requirement that a physician have made the particular findings that an ALJ adopts
in the course of determining an RFC.” Titterington v. Barnhart, 174 F. App’x 6, 11
(3d Cir. 2006). Further, courts have held in cases where there is no evidence of any
credible medical opinion supporting a claimant’s allegations of disability that “the
proposition that an ALJ must always base his RFC on a medical opinion from a
physician is misguided.” Cummings v. Colvin, 129 F. Supp. 3d 209, 214–15 (W.D.
Pa. 2015).
These seemingly discordant legal propositions can be reconciled by
evaluation of the factual context of these decisions. Those cases which emphasize
the importance of medical opinion support for an RFC assessment typically arise in
19
the factual setting where a well-supported medical source has opined regarding
limitations which would support a disability claim, but an ALJ has rejected the
medical opinion which supported a disability determination based upon a lay
assessment of other evidence. In this setting, these cases simply restate the
commonplace idea that medical opinions are entitled to careful consideration when
making a disability determination, particularly when those opinions support a
finding of disability. In contrast, when an ALJ is relying upon other evidence, such
as contrasting clinical or opinion evidence or testimony regarding the claimant’s
activities of daily living, to fashion an RFC courts have adopted a more pragmatic
view and have sustained the ALJ’s exercise of independent judgment based upon all
of the facts and evidence. See Titterington v. Barnhart, 174 F. App’x 6, 11 (3d Cir.
2006); Cummings, 129 F.Supp.3d at 214–15. In either event, once the ALJ has made
this determination, our review of the ALJ's assessment of the plaintiff's RFC is
deferential, and that RFC assessment will not be set aside if it is supported by
substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002); see also
Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at *5 (M.D. Pa. Mar.
29, 2017), report and recommendation adopted sub nom. Metzgar v. Colvin, No.
3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017); Rathbun v. Berryhill,
No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12, 2018), report and
20
recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366 (M.D. Pa. Mar. 27,
2018).
On this score, as we have noted when evaluating medical opinions which form
the basis of an RFC determination:
[C]ase law also cautions courts to take into account the fact that state
agency non-treating and non-examining source opinions are often
issued at an early stage of the administrative process. While this fact,
standing alone, does not preclude consideration of the agency doctor’s
opinion, see Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d
Cir. 2011), it introduces another level of caution that should be applied
when evaluating reliance upon such opinions to discount treating and
examining source medical statements. Therefore, where a state agency
non-treating and non-examining opinion does not take into account
material medical developments which have occurred after the opinion
was rendered, that opinion often cannot be relied upon by the
Commissioner to carry its burden of proof. See Batdorf v. Colvin, 206
F. Supp. 3d 1012, 1023 (M.D. Pa. 2016).
Dieter v. Saul, No. 1:19-CV-1081, 2020 WL 2839087, at *7 (M.D. Pa. June 1, 2020).
At Steps 1 through 4, the claimant bears the initial burden of demonstrating
the existence of a medically determinable impairment that prevents him or her in
engaging in any of his or her past relevant work. Mason, 994 F.2d at 1064. Once
this burden has been met by the claimant, it shifts to the Commissioner at Step 5 to
show that jobs exist in significant number in the national economy that the claimant
could perform that are consistent with the claimant’s age, education, work
21
experience and RFC. 20 C.F.R. §§404.1512(f), 416.912(f); Mason, 994 F.2d at
1064.
The ALJ’s disability determination must also meet certain basic substantive
requisites. Most significant among these legal benchmarks is a requirement that the
ALJ adequately explain the legal and factual basis for this disability determination.
Thus, in order to facilitate review of the decision under the substantial evidence
standard, the ALJ's decision must 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). Conflicts in the evidence must be resolved and the ALJ must indicate
which evidence was accepted, which evidence was rejected, and the reasons for
rejecting certain evidence. Id. at 706-707. In addition, “[t]he 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., 181 F. 3d 429, 433 (3d Cir.
1999).
C. Legal Benchmarks for the ALJ’s Step Two Finding Whether a
Condition is Severe
At Step 2 of the sequential analysis, the ALJ determines whether a claimant
has a medically severe impairment or combination of impairments. Bowen v.
Yuckert, 482 U.S. 137, 140-41, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). An
impairment is considered severe if it “significantly limits an individual's physical or
22
mental abilities to do basic work activities. 20 C.F.R. 404.1520(c). Moreover, an
impairment is severe if it is “something beyond a ‘slight abnormality which would
have no more than a minimal effect on the Plaintiff's ability to do basic work
activities.’” McCrea v. Comm'r of Soc. Sec., 370 F.3d at 357, 360 (3d Cir. 2004)
(quoting SSR 85-28, 1985 WL 56856 (1985)). The Court of Appeals is clear that
the step-two inquiry is a de minimis screening device used to cast out meritless
claims. McCrea, 370 F.3d at 360; Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 546
(3d Cir. 2003). The burden, while not an exacting one, is on the claimant to show
that an impairment qualifies as severe. Bowen, 482 U.S. at 146, 107 S.Ct. 2287;
Stancavage v. Saul, 469 F. Supp. 3d 311, 331 (M.D. Pa. 2020).
D. This Case Should Be Remanded for Further Consideration and
Articulation of the Grounds for the ALJ’s Decision.
As we have noted, it is axiomatic that an ALJ’s decision must be accompanied
by “a clear and satisfactory explication of the basis on which it rests.” Cotter, 642
F.2d at 704. Furthermore, the ALJ must also “indicate in his decision which evidence
he has rejected and which he is relying on as the basis for his finding.” Schaudeck,
181 F.3d at 433. Here we find that the ALJ failed to address the medical evidence as
it pertains to Rolon’s second surgery and her necessity for an assistive device to
ambulate subsequent to her onset of right foot avascular necrosis in April 2018.
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Moreover, the ALJ has failed to resolve several inconsistencies in the record which
contradict his residual functional capacity assessment.
At the outset, we find that Rolon has clearly met the burden to show that her
right foot avascular necrosis had more than a minimal effect on her ability to do
work activity. She underwent two separate surgeries for the condition, one of which
was a complex triple arthrodesis that required her to spend more than a month
recovering in a rehabilitative care center. (Tr. 1199, 1289). Further, Rolon was
required to undergo months of physical therapy both prior to and after the surgery,
to use a wheelchair and be non-weightbearing for several months, and to ambulate
thereafter with the use of a rolling walker. (Tr. 996-1061, 1097, 1113, 1168).
Indeed, the ALJ’s finding—that Rolon’s records suggest that her condition
improved within months of its onset in April 2018 and that her records showed no
suggestion of a functional loss—is contradicted by the very exhibit and very page
numbers that he cites for support. The ALJ specifically states that Exhibit 8F at pages
10-11 notes that Rolon’s pain improved after her first surgery and that she was able
to return to normal function with a post-op shoe. (Tr. 15). However, it is noted on
those exact pages that while Rolon’s situation had improved, she required a referral
to a specialist at Hershey Medical Center, as “she may need some type of resection
and fusion secondary to her avascular necrosis.” (Tr. 866-67). In fact, as we have
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explained, Rolon underwent a second surgery in August 2018. Accordingly, a
finding that Rolon’s pain was improved but that her foot remained too swollen to fit
into a anything but a post-op shoe, and that she likely needed to be referred to a
specialist for a second surgery, cannot possibly be as characterized by the ALJ, a
finding that there was “little evidence of functional loss.”
On this score, the Commissioner argues that Rolon failed to prove that the
wheelchair, walker, or scooter were “medically required” as set forth in 96-9p. The
Commissioner points to a lack of a prescription and additionally points to the ALJ’s
recitation of Dr. Huitt’s findings that Rolon “walked slowly and did not require the
use of a cane.” (Doc. 19, at 17-18). However, we find the Commissioner’s argument
is unpersuasive.
First, while there is no “prescription” that was presented prior to the surgery,
inpatient hospital records established that the hospital outfitted Rolon with a scooter
and walker and sent her for physical therapy to be properly instructed in their use,
advising her not to bear weight on her foot and to use them for all ambulation. (Tr.
1097, 1113.). This clearly meets the requirements to show that the devices were
medical necessary. See SSR 96-9p (“To find that a hand-held assistive device is
medically required, there must be medical documentation establishing the need for
a hand-held assistive device to aid in walking or standing, and describing the
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circumstances for which it is needed”). Additionally, the findings of Dr. Huitt were
made in 2017, prior to the collapse of Rolon’s navicular bone in April 2018 due to
avascular necrosis. Thus, while Dr. Huitt’s finding might be supportive of a finding
for the period prior to April 2018, that opinion does not, and cannot, be considered
persuasive in light of the subsequent material changes in Rolon’s condition.
Likewise, the opinion of the state agency expert Dr. Brown which the ALJ also found
persuasive pre-dated this August 2018 decline in her health. Therefore, that opinion
did not, and could not take into account what appears to have been a subsequent
material change in Rolon’s health. In evaluating these opinions the ALJ did not
address how these subsequent medical developments may have undermined the
persuasiveness of the opinions. In fact, as we have noted, the ALJ failed to mention
anything regarding Rolon’s avascular necrosis after April of 2018, when the medical
record shows her condition substantially changed and declined.
Given the considerable evidence regarding the subsequent need for additional
surgery and the use of a rolling walker, we cannot find that the ALJ’s finding at Step
2 was supported by substantial evidence as it pertains to the treatment of Rolon’s
necrosis, particularly after 2018. Nor can we agree with the Commissioner’s
argument that any error at Step 2 was harmless error. The Commissioner argues that
pursuant to Salles v. Comm’r of Soc. Sec. 229 F. App’x 140, 145 n.2 (3d 2007) and
26
Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) it is harmless error for an
ALJ not to find an impairment nonsevere at Step 2 if he or she continues past Step
2. (Doc. 19, at 11). However, those cases hold that such an error is harmless as long
as the ALJ ultimately accounts for all impairments in the final RFC, including those
that are nonsevere. As we have explained, that did not happen here, as the ALJ failed
to account for the limitations caused by this impairment, including the use of an
assistive device. Moreover, the ALJ did not explain his reasoning for discounting
the evidence of Rolon’s avascular necrosis in 2018, including the evidence showing
that Rolon needed an assistive device to ambulate. Furthermore, the ALJ’s reliance
upon the opinions of Dr. Huitt and Dr. Brown in making this disability determination
does not take into account material medical developments which occurred after the
opinions were rendered. As a result these medical opinions cannot be relied upon by
the Commissioner to carry its burden of proof, particularly as it relates to Rolon’s
medical condition after 2018. See Dieter v. Saul, No. 1:19-CV-1081, 2020 WL
2839087, at *7 (M.D. Pa. June 1, 2020); Batdorf v. Colvin, 206 F. Supp. 3d 1012,
1023 (M.D. Pa. 2016).
Accordingly, we conclude that the ALJ’s RFC determination is not supported
by an adequate explanation. The ALJ determined that Rolon could perform a range
of sedentary work with certain limitations, including occasional postural limitations
27
and the ability to stand and walk for up to 2 hours in an eight-hour day. (Tr. 17). In
making this determination, however, the ALJ failed to address the medical evidence
indicating that Rolon had a second surgery and thereafter was both hospitalized and
placed in a rehabilitative treatment center, and released with directions to bear
weight on her foot only with the use of a walker. Moreover, the ALJ failed to explain
why he discounted this evidence, or how it was inconsistent with the other medical
evidence and opinions.
On this record, we cannot find that the ALJ’s decision is based upon
substantial evidence. Accordingly, we will remand the case for further consideration
by the Commissioner. Because the Court has found a basis for remand on these
grounds, we need not address Rolon’s remaining arguments. To the extent that any
other error occurred, it may be remedied on remand. Yet, while we reach this result,
we note that nothing in this Memorandum Opinion should be deemed as expressing
a judgment on what the ultimate outcome of any reassessment of this evidence
should be. Rather, the task should remain the duty and province of the ALJ on
remand.
IV. CONCLUSION
Accordingly, IT IS ORDERED that Rolon’s request for a new administrative
hearing should be GRANTED, the final decision of the Commissioner denying these
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claims is VACATED, and this case is remanded to the Commissioner to conduct a
new administrative hearing pursuant to sentence four of 42 U.S.C. § 405(g) and 42
U.S.C. § 1383(c)(3).
Submitted this 24th day of May, 2021.
/S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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